Law - Introduction to Children's Act 1989

An Introduction to Private Law Children Cases Janet Bazley23 January 2003Continuing Professional Development LectureAN INTRODUCTION TO PRIVATE LAW CHILDREN CASES[Please note that this seminar does not cover applications under Schedule 1 of the Children Act]. GENERAL PRINCIPLES UNDER THE CHILDREN ACT 1989s. 1(1) - The welfare principle (sometimes known as the "welfare test")In deciding any question with respect to the upbringing of a child (administration of its property or the income arising out of it) the child's welfare shall be the paramount consideration.The welfare checklist - s.1(3) and (4)If the court is considering whether to make, vary or discharge a section 8 order and the making, variation or discharge of the order is opposed by any party to the proceedings or the court is considering whether to make, vary or discharge an order under Part IV, the court shall have regard in particular to:- (see s.1(3))(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)(b) his physical, emotional and educational needs;(c) the
likely effect on him of any change in his circumstances;(d) his age, sex, background and any characteristics of his which the court considers relevant;(e) any harm which he has suffered or is at risk of suffering;(f) how capable each of his parents is of meeting his needs;(g) the range of powers available to the court under this Act in the proceedings in question.The "no order" principle - s. 1(5) -The court shall not make an order under the Act unless it considers that doing so would be better for the child than making no order at all.Delay - s. 1(2) -In any proceedings in which any question with respect to the upbringing of a child arises, the
court shall have regard to the general principle that any delay in determining the question is likely to prejudice the child.Definitions - See Section 105 Procedure for applying for orders under the Children Act:-See the Family Proceedings Rules 1991 (only a brief summary is given here)Rule 4.3 - Application for leave to commence proceedingsNote that a child's application
for leave should be made in the High Court, even if the proceedings are being or would be heard in a lower court. Rule 4.4 - Application 1. File the documents referred to in 4.4(1A) - Forms C1- C4 or C51 and such of the supplemental Forms C10 or, where appropriate, a statement in writing of the order sought. Where the application relates to more than one child, include
all the children in one application.2. Serve the application and a form C6A on the relevant persons (see Appendix 3 to the rules)3. Upon receiving the documents filed, the proper officer shall:-(a) fix the date for a hearing or directions appointment, allowing time for service(b) endorse the date fixed(c) return to the applicant forthwith the relevant formsApplications not on notice (formerly ex parte)Rule 4.4 (4) provides that an application for(a) a section 8 order(b) an emergency protection order (c) a warrant under s.48(9)(d) a recovery order(e) a warrant under s.102(1)may be made not on notice.The applicant must file the application in the form in Appendix 1 to the Rules -(a) within 24 where the application is made by telephone;(b) in any other case, at the time the application was made andin the case of an application for a s.8 order or an emergency protection order, serve a copy of the application on each
respondent within 48 hours of the making of the order.

If the court declines to make the order not on notice, it may direct that it be made on notice. For guidance as to the making of not-on-notice orders, see:-Re J (Children) (Ex parte orders) [1997] 1FLR 606 andRe S (a child) (Family Division: without notice orders) [2000] 1FLR 308Human Rights Act 1998 and the European Convention

Be aware of Article 6 - right to a fair hearing and Article 8 - the right to family life. Bear in mind that the Children Act was drafted with an eye to the Convention and the Courts do not favour the wholesale quotation of European authorities.The right to a fair hearing is an absolute
right:-Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 - a care case but Munby J held that the right to a fair hearing is not confined to the judicial part of the proceedings but to all stages of the litigation.It is European law that restrictions may be placed on the right of the
parent to family life with the child where the interests of the child require it1. Similarly, where there is a conflict between the child's right
to family life and that of the parent, the rights of the child are the
paramount consideration:-Yousef -v- Netherlands [2003] 1 FLR 210 See also
Hoppe -v- Germany [2003] 1 FCR 176.Be aware of and follow the Practice
Direction at [2000] 2 FLR 429 on citation of authorities.Practice, Practice
Directions etc.1. Generally - be aware of and, where possible follow, the
Best Practice Guidance in Children Act cases of June 1997 (reproduced in
most of the text books).Note that the court in family proceedings closely
controls the management of cases, through directions hearings, control of
instruction of experts and the filing of evidencegenerally. There is also
control of court bundles.2. Court documents - be aware of the Presidents
Direction as to documents to be filed in advance of the hearing. See
Practice Direction on Case Management [1995] 1 FLR 456 and the Presidents
Direction of 10 March 2000 [2000] 1 FLR 429 (replacing paras 5 and 8 of the
Case Management Practice Direction). If your case has been commenced or is
transferred to the High Court, the President's Direction of 22nd March 2002
applies1. This provides for the allocation of the case to one judge of the
Division and regulates the management of the case generally. Be familiar
with the requirements of this Direction.3. Experts - there are clear
rules regarding the instruction of experts. Experts must be independent of
the parties and should generally be jointly instructed, with one solicitor
as lead in the instruction (almost always the Guardian's solicitor in care
cases or where a Guardian has (unusually) been appointed in private law
proceedings.Care must be taken as to the choice of expert. Find out before
you go to court which expert (if any) your solicitor would like to instruct
and make sure you have copies of the experts CV and dates of availability.
The court will make directions as to who is to be instructed, whether there
is to be leave to see/examine the child and as to timetabling. For guidance
as to the instruction of experts, experts meetings/discussions see:-Re G
(Minors) (Expert Witnesses) [1994] FLR 291Re CS (Expert Witnesses) [1996] 2
FLR 115Re C (Expert evidence: Disclosure: Practice) [1995] 1 FLR 204Re CB
and JB (Care Proceedings: Guidelines) [1998] FLR 211Re R(Care: Disclosure:
Nature of Proceedings) [2002] 2 FLR 211Re L (Care: Assessment: Fair Trial)
[2002] 2 FLR 730For a caution as to the care which needs to be taken with
whom to instruct:Re X (Non-Accidental Injury: Expert Evidence) [2001] 2 FLR
90Which court/level of judiciary?The Children (Allocation of Proceedings)
Order 1991 regulates where proceedings may be commenced and deals with
transfer between courts. The Family Proceedings (Allocation to Judiciary
Amendment) Directions 20022 allocates proceedings as between district
judges, circuit judges and High Court judges.Consideration of the transfer
or allocation of the proceedings must be done as early as possible to avoid
delay in timetabling.As regards transfer from the Family Proceedings Court,
the criteria in Article 7 of the Children (Allocation of Proceedings) order
apply. The case may be transferred to link with proceedings in another
court or if transfer will otherwise mean a quicker hearing. Usually,
however, the application is made on the basis that the proceedings are
"exceptionally grave important or complex" and regard is had to:-(a) whether
there is complicated or conflicting evidence about risk to the child's
physical or moral well-being or about other matters relating to the welfare
of the child;(b) the number of parties;(c) conflict with the law of another
jurisdiction(d) some novel or difficult point of law(e) some question of
general public interest.Refusal to transfer and transfer between county
courtsIf the FPC refuses a transfer, application may be made to a care
centre/divorce county court for an order transferring the proceedings to
itself.The county court will consider the checklist in Article 7 (above) and
may, at the same time, transfer the proceedings to the High Court (under
Article 12).See Article 10 for transfer between county courts.Transfer back
to the FPCUnder Article 11(2) Children (Allocation of Proceedings) Order,
the county court has the power to transfer private law proceedings back to
the magistrate's court. Appeal against this decision is to a judge of the
Family Division or, where the order was made by a district judge or a deputy
district judge or the Principal Registry, when the appeal is to the circuit
judge.Some authorities on transferC -v- Sollihull MBC [1993] 1 FLR 290 (also
useful on delay)L -v- Berkshire CC [1992] 1 FCR 481R -v- South East
Hampshire FPC ex parte D [1994] 1 WLR 611Re A & D (NAI: Subdural haematoma)
[2002] 1 FLR 337RESTRICTION ON FULL HEARINGSIssue estoppel has limited
application in children cases. However, the court may take into account
findings of fact made in the past. In deciding whether (and to what extent)
to do so, the court has an "entirely free hand"Re S, S and A (care
proceedings: issue estoppel) [1995] 2 FLR 244Re S (discharge of care order)
[1995] 2 FLR 639Re B (Children Act proceedings) (issue estoppel) [1997] 1
FLR 285Discretion as to conduct of proceedingsThe court has a wide
discretion as to how to conduct family proceedings. The judge is not
obliged to hold a full hearing but may restrict the evidence and limit the
scope of the proceedings:-Cheshire County Council -v- M [1993] 1 FLR 463W
-v- Ealing LBC [1993] 2 FLR 788Re N [1994] 2 FLR 992Re B (minors: contact)
[1994] 2 FLR 1Re CB and JB [1998] 2 FLR 211s. 91(14) ordersThe section
applies to both private and public family law proceedings and permits the
court, when dealing with any application for an order under the Children Act
1989, to restrain future applications without leave of the court.The power
to make such order should be used sparingly and the order should usually
only be made on notice, although the court may, in an exceptional case, make
it without notice or even without application.Before making the order, the
court must be satisfied that the welfare of the child requires a restriction
on applications by the parent in question. It is usually only made where
there have been repeated applications with little or no merit but, where
there is cogent evidence that the child's welfare would be greatly adversely
affected by a future application, the order may be made.A s.91(14) order
should normally be limited in time.See especially:-B -v- B [1997] 1 FLR 139,
where Waite LJ said that s.91(14 should be read in conjunction with S.1.(1),
which made the child's welfare the paramount consideration. He said:-"The
judge must, therefore ask him or herself in every case whether the best
interests of the child require interference with the fundamental freedom of
a parent to raise issues affecting the child's welfare before the court as
and when such issues arise".Re P (Section 91(14) Guidelines) [1999] 2 FLR
573 Butler-Sloss LJ (as she was then) reviewed the case law and extracted
guidelines:-(a) s.91(14)is to be read in conjunction with s.1(1);(b) all
relevant circumstances must be taken into account in considering whether to
exercise the discretion;(c) any exercise of the s.91(14) jurisdiction is a
statutory interference with a person's right to access to the court.
However, the section is HRA compliant since it does not bar access to the
court but merely controls it.(d) the exercise of s.91(14) requires great
care and is to be considered the exception rather than the rule;(e)
generally the making of a s.91(14) order is a weapon of last resort in cases
of repeated unreasonable application;(f) there may be cases where there is
no history of repeated applications but the child's welfare makes the order
necessary;(g) a further check is to consider whether there is a serious
risk that the child or his primary carer will be subject to unacceptable
strain if the order is not made;(h) the order may be made without formal
application or of the court's own motion provided the court is considering
an application by one of the parties for an order under the Act1;(i) the
order may be with or without time limit;(j) the order should specify the
type of application being restrained and be no wider than necessary;(k)
without notice orders should only be made in very exceptional
circumstances.See also:-Re M (Section 91(14) Order) [1999] 2 FLR 553Re C
(Prohibition of Further Applications) [2002] EWCA Civ 292 - wrong in
principle, except in exceptional circumstances, to place a litigant in
person in the position at short notice of confronting a s.91(14) order that
barred him from dealing with any aspect of the case relating to his
children, particularly contact.Appeals in children cases.Generally as of
right from a decision of the magistrate's court to make or refuse to make an
order - s. 94 Children Act See Rule 4.22 FPR 1991 for the procedure for
appeals either to the High Court under s. 94 or from any decision of a
district judge to the judge of the court in which the decision was made.
Appeals from the county court or High Court to the Court of appeal (in
respect of orders made after 2nd May 2000) are governed by CPR 1998, Part 52
and PD 52Permission to appeal, where required, must be obtained either from
the court at which the decision is made or the Court of Appeal (CPR, Pr
52.3(2))Although an application for permission to appeal may be made to the
appeal court even if no oral application has been made to the lower court
(CPR Pt 52 para 4.7) permission should be sought at the end of the hearing
if it is thought that a decision may be taken to appealThe original court
will almost always refuse permission:-Re F (Minors) (Contact: Appeal) [1997]
1 FCR 523Time limitsThe time for filing of the appellant's notice is 14 days
after the date of the decision appealed against, unless a longer period is
ordered by the lower court (CPR 1998 Pt 52.1(3) and 52.4(2). The appeal
notice should be served within 7 days of the date on which it was filed (Pt
52.6 and PD 52, paras 5.2 to 5.4).Stay, documents for the appeal, service of
documents and skeleton argumentsAll covered by CPR Part 52 and PD52There is
no appeal - (a) where permission has not been granted(b) against the
granting of permission to appeal(c) against the granting of an extension of
time for appealing(d) from the grant or refusal of an emergency protection
order(e) from the decision of magistrates to decline jurisdiction(f) from
the decision not to interview a child in private(g) from an order
transferring or refusing to transfer proceedings, except as provided for in
the rules.Note that appeals against interim orders are difficult and
generally discouraged. Further, it is difficult to appeal a decision to
refuse or grant an adjournment.Appeals to resolve a dispute or issue of law
as to which the parties have no real concern are likely to be regarded as an
abuse of the process and the lawyers involved may be the subject of wasted
costs ordersRe C (abused children: orders) [1992] 1 FCR S -v- S (abuse of
process of appeal) [1994] 2 FCR 941Re N (Residence: Hopeless Appeals) [1995]
2 FLR 230AppealWhere it is said that the trial judge erred in law or in the
exercise of his discretion, the proper course is to appeal.If it is said
both that an error occurred and that fresh evidence has come to light which
undermines the basis for the decision, the proper course is to appeal and to
seek to adduce the fresh evidence.The appeal is technically a rehearing.
However, only exceptionally is any oral evidence allowed.Test on an
appeal:-G -v- G [1985] FLR 894The Court of Appeal will not overturn a
decision because it would have come to a different conclusion on the
evidence available below. It must be satisfied that:(a) the judge erred as
a matter of law(b) the judge took into account evidence which he should have
ignored, or ignored evidence which he should have taken into account(c) the
decision is "plainly wrong"The Court of Appeal will have in mind that there
is often no "right" answer in children's cases.Note that a judge is obliged
to give reasons for his decision, particularly if rejecting expert evidence
or the recommendation of the CAFCASS officer. Failure to do so may result
in a successful appealRehearingIf it is not contended that the judge erred
on the evidence available to him but that important evidence has come to
light, which undermines the basis for the decision, an application for a
rehearing should be made to the trial judge. Such an application should be
made on notice not more than 14 days after the date of the trial.See CPR
1998, schedule 2Discharge/variationSuch an application may be made where the
circumstances have materially changed since the making of the original
order.PARENTAL RESPONSIBILITY ("PR")Meaning - s.3 Children Act 1989By s.3(1)
- All the rights, duties, powers, responsibilities and authority which by
law a parent of a child has in relation to the child and his property .Also
by s.3(2) - the rights, powers and duties which a guardian of the child's
estate would have had in relation to the child's property.By s.1(4) - the
fact that a person has, or does not have, parental responsibility for a
child shall not affect:-(a) any obligation which he may have in relation to
the child or(b) any rights which, in the event of the child's death, he may
have in relation to the child's property.By s.1(5) A person who -(a) does
not have parental responsibility for a particular child but(b) has the care
of the child, may (subject to the provision of the Act) do what is
reasonable in all the circumstances for the purpose of safeguarding or
promoting the child's welfare.Position of motherThe concept of pr does not
apply to a child in utero: Re F [1988] 2 FLR 307The mother automatically has
pr on the birth of the child. There is therefore no provision for a mother
to apply.The mother's pr will continue unless specifically terminated by
order of the court (such as an order freeing the child for adoption or on
the making of an adoption order). In the event that a mother loses pr, she
may reacquire it by obtaining:-(a) an order under the inherent
jurisdiction revoking the freeing order;(b) an order setting aside the
adoption order(c) an adoption order in respect of the child(d) a
residence order pursuant to s.8 Children Act 1989Position of the
fatherDepends upon whether he was married to the child's mother at the time
of the birth.A married father acquires pr on the child's birth.In the case
of a father who was not married to the child's mother at the date of the
birth, see -s.4(1) -(a) the court may, on the application of the father1,
order that he shall have pr for the child;(b) the father and mother may by
agreement ("a parental responsibility agreement") provide for the father to
have pr for the child.s.4(2) - the pr agreement must be in the prescribed
form - courts have these.s.4(3) - provides that the father's pr (whether
pursuant to an order or an agreement) may only be brought to an end by an
order of the court made on the application of:-(a) any person who has pr(b)
with the leave of the court, the child himself, such leave to be granted
only if the court is satisfied that the child has sufficient understanding
to make the application (see s. 4(4))Note that a father's pr may not be
determined whilst he has a residence order in respect of the child (s.4(3)
and s.12(4)). A father's pr will come to an end if the child is freed for
adoption or adopted or if the child's welfare requires it. Instances
include conviction and imprisonment for sexual abuse and killing the mother
in the presence of the children.Parents may enter into a parental
responsibility agreement in respect of a child in care:-Re X (Parental
Responsibility Agreement: Child in care) [2000] 1 FLR 517The Adoption and
Children Act 2002 will provide that an unmarried father will acquire pr if
he is named as father on the child's birth certificate. Position of others
-A person in whose favour a residence order pursuant to s.8 Children Act is
made automatically acquires pr1. A shared residence order is sometimes
used to confer pr on a person who would not otherwise have parental
responsibility:-G -v- F [1998] 2 FLR 700 was a case where a child had been
born to a lesbian couple as a result of one of them being artificially
inseminated. They had jointly cared for the child but had separated.
Bracewell J. granted permission for the "absent" partner to apply for a
shared residence order as she had played and continued to play an important
role in the life of the child. Re D (Parental Responsibility: IVF Baby)
[2001] 1 FLR 972 concerned a man and woman who, after a relationship lasting
several years sought IVF treatment. They presented themselves as a stable
couple and signed the consent form, which acknowledged that the man would be
the legal father of any resulting child. The treatment, using sperm from an
anonymous donor, was unsuccessful. The couple separated and the woman, who
had commenced a new relationship, resumed treatment, without informing the
clinic of her change of partner. Treatment, using anonymous donor sperm,
resulted in a live birth. The original partner, who had signed the consent
forms, applied for parental responsibility and contact, relying on his
status, under the Human Fertilisation and Embryology Act 1990, s.28(3)2.
The judge assumed jurisdiction on the basis that the parties agreed that the
man should be treated as the father. He ruled in favour of indirect
contact, indicating that it would probably not be appropriate to make a
direct contact order until the child was about three years old. The
application for parental responsibility was adjourned generally on terms
that any application by the mother to adopt the child would reinstate it.
The applicant "father" appealed on the basis that he should be granted pr
(and direct contact) immediately. He was refused permission. In relation
to pr, the Court of Appeal said that, applying the ordinary tests in
relation to parental responsibility, this was a father who had demonstrated
potential commitment and had genuine motives, but who had not had an
opportunity to know the child. It was proper, in the circumstances to defer
his application to see if commitment was maintained. Further, the judge had
taken steps to prevent the mother from making applications which might
adversely affect the father's position.Once pr is acquired, it continues
unless specifically terminated3.Determination of pr applicationsThe court
will consider:-(a) the degree of commitment shown by the father to the
child(b) the degree of attachment between the father and the child(c) the
reasons why the father is making the application(d) all the relevant
circumstances.The court will also apply the welfare checklist in s1.3 of the
ActSee:-Re RH (Parental responsibility) [1998] 1 FLR 855Re S (Parental
responsibility) [1995] 2 FLR 648Use of pr -Must not be unilateral. For
example, a person with pr must not decide to change a child's school without
consulting any other person with pr1.A parent must not change a child's
surname without the consent of the other parent or the leave of the
court2.SECTION 8 ORDERS1. Types of order availables.8(1) Children Act
1989 provides that there are four different orders available:-(a) "a contact
order" - an order requiring the person with whom a child lives or is to
live, to allow the child to visit or stay with the person named in the
order, or for that person and the child otherwise to have contact with each
other;(b) "a prohibited steps order" - an order that no step which could be
taken by a parent in meeting his parental responsibility for a child, and
which is of a kind specified in the order, shall be taken by any person
without the consent of the court;(c) "a residence order" - an order
settling the arrangements to be made as to the person with whom a child is
to live; and(d) "a specific issue order" - means an order giving directions
for the purpose of determining a specific question which has arisen, or
which may arise, in connection with any aspect of parental responsibility
for a child.2. Who may apply?An application may be made either as of
right or with the leave of the court. A section 8 order may also be made of
the court's own motion. See s.10(1) for the court's power to make s.8
orders.Applications without leaves.10(4) provides that a parent or guardian
of the child and any person in whose favour a residence order is in force
has the right to apply for a Section 8 order.s.10(5) adds to the category of
those entitled to apply:-(a) any party to a marriage(whether or not
subsisting) in relation to whom the child is a child of the family;(b) any
person with whom the child has lived for a period of at least three
years;(c) any person who -(i) in any case where a residence order is in
force with respect to the child, has the consent of each of the persons in
whose favour the order was made;(ii) in any case where the child is in the
care of the local authority, has the consent of that authority; or(iii) in
any other case, has the consent of each of those (if any) who have parental
responsibility for he child.s. 10(6) provides that a person who would not
otherwise be entitled under sub-sections (4) or (5) to apply, may apply for
the variation or discharge of a Section 8 order if -(a) the order was made
on his application; or(b) in the case of a contact order, he is named in the
order.Applications with leaveOthers may apply with leave:-Persons other than
the child concerned (including a child applicant who is not the child who is
to be the subject of the order):-s. 10(8) provides that, where the person
applying for leave to make a section 8 application is not the child
concerned, the court shall, in deciding whether or not to grant leave, have
particular regard to -(a) the nature of the proposed application for the
section 8 order;(b) the applicant's connection with the child;(c) any risk
there might be of that proposed application disrupting the child's life (d)
to such an extent that he would be harmed by it; and(e) where the child is
being looked after by a local authority -(i) the authority's plan's for
the child's future; (ii) the wishes and feelings of the child's
parents.Note that applications for contact orders in respect of children who
have been adopted will be subject to special considerations:-Re E (Adopted
Child: Contact:Leave) [1995] 1 FLR 57Re S (Contact Application:Sibling)
[1998] 2FLR897Authorities - Re A (Residence orders; Leave to Apply) [1992]
Fam 182; [1992] 3 All ER 872Re M (Grandmother's application for leave)[1995]
2 FLR 86Re W (Contact Application: Procedure) [2000] 1 FLR 263Especially: Re
J (Leave to issue application for residence order) [2003] 1 FLR 114 The
child as applicant -s10(8) provides that, before granting permission, the
court must be satisfied that the child has sufficient understanding to make
the proposed application. The child must be considered to be able to
understand the issues in the proceedings and give instructions - sometimes
known as "Gillick competent". The person who has to make the initial
judgment is usually the solicitor whom the child wishes to instruct. The
view of an experienced solicitor, who is a member of the Children's panel,
will carry considerable weight. However, the fact that a child has
sufficient understanding does not always mean that the application will be
granted; the court has a discretion.Note that the criteria under s.10(9) do
not apply to an application by the child himself.Although there has been
some variance in the authorities, it seems that the child's welfare is
paramount in reaching a decision.Authorities:-Gillick -v- West Norfolk &
Wisbech Area Health Authority [1986] AC 112Re A (A minor) (Residence
Application: leave to apply) [1993] 1 FLR 425Re H (Residence: Child's
Application for Leave) [2000]1 FLR 780.Consideration may have to be given
for the representation of a child by a guardian:-A -v- A (Contact:
Representation of Child's Interests) [2001] 1 FLR 715General principles in
determining s. 8 applications - s.11 -(a) Timetabling. s. 11(1) The court
shall:-(a) draw up a timetable with a view to determining the question
without delay and(b) give such directions as it considers appropriate for
the purpose of ensuring, so far as is reasonably practicable, that the
timetable is adhered to.(b) Provisions to prevent delay. s.1(2) - Rules
of the court may -(a) specify periods within which specified steps must be
taken;(b) make other provision for the purpose of ensuring, so far as is
reasonably practicable, that such questions are determined without delay.(c)
"Interim" orders1. s.11(3) - Where the court has power to make a s.8
order, it may do so at any time during the proceedings, even though it is
not in a position to finally dispose of the proceedings(d) Joint/shared
residence. S.11(4) - the court may specify the periods during which the
child is to live in the different households concerned.(e) Resumption of
cohabitation - s.11(5 ) and 11(6) -A residence (11(5)) and a contact order
(s.11(6)) cease to have effect if the parents live together for a continuous
period of six months.(f) Directions and conditions - s. 11(7) -A section 8
order may contain directions as to how it is to be carried into effect.
Further, it may impose conditions, which must be complied with by the person
in whose favour the order was made, a parent, a person with pr who is not a
parent or a person with whom the child is living.Restrictions on making s.8
ordersA s.8 order should not:-(a) be made in respect of a child who is 16
or over(b) be expressed to continue beyond the child's sixteenth birthday
(except in exceptional circumstances);(c) be made where a care order is in
place or to be made (not so with a supervision order). (d) be made in
favour of a local authority.Use of Child and Family Court Reporter and
Reports under s.7 and s.37Under s.7, a Cafcass officer is generally directed
to investigate and report to the court on issues of residence and contact
and in difficult applications for specific issue orders or prohibited steps
orders (such as change of name, permanent removal from the jurisdiction).The
Cafcass officer should see the child with each parent in that parent's
environment.The report may contain hearsay evidence but, if so, the source
of the evidence must be clearly spelt out. The report often annexes a
school report on each child.The commissioning of a welfare report usually
involves a delay of about 16 weeks. The court will consider the impact of
any delay and may proceed without a report.Although the report should always
be taken into account, the ultimate decision as to what should happen in the
case rests with the judge, who may reject the recommendation in the report.
A judge should give reasons for so doing:-S -v- Oxfordshire County Council
[1993] 1 FLR 452Re W (Residence) [1999] 2 FLR 390s.7 also provides that the
court may ask a local authority to prepare the report. s.37 if the court
considers that a care or supervision order may be necessary, it may direct
that a report under s.37 be prepared by a local authority.ConciliationIn the
Principal Registry of the Family Division, applications for residence and
contact must be referred for conciliation. Applications for specific issue
and prohibited steps orders may be referred for conciliation at the request
of the applicant.Conciliation takes place before a district judge with a
Cafcass officer present. The parties have an opportunity to attempt to
reach an agreement with the help of the Cafcass officer. A consent order
may be made if agreement is reached.In other courts, there is often access
to conciliation facilities and the court should consider whether
conciliation would be an appropriate course.Because the case may (or will)
be referred for conciliation, no statements should be filed until the court
has made the appropriate direction.CONTACT ORDERSApproach - there is a
strong presumption in favour of contact.The court will make a contact order
in favour of the "absent" parent unless it is demonstrated that to do so
would be contrary to the child's welfare:-Re H (Minors: Access) [1992] 1
FLR 148 All applications are subject to the welfare principle and the
welfare checklist.Hostility to contactThe court has to consider the reasons
for the hostility and how it should be dealt with. One issue is whether the
hostility is "implacable":-Re D (Contact: Reasons for Refusal) [1997] 2 FLR
48In Re P (Contact: Discretion) [1998] 2 FLR 696 Wilson J. outlined three
ways in which hostility to contact might arise and how it should be dealt
with:-(a) where there are no rational grounds - the court should only
refuse contact where there is a risk of emotional harm to the child(b)
where the grounds are insufficient to displace the presumption in favour of
contact - contact should be ordered.(c) where the arguments are rational
but not decisiveBut see below - it is now recognised that a mother's
hostility to contact may arise because of violence by the father. See below
for approach in such circumstances.See also:-Re D (Contact: Mother's
hostility) [1993] 2 FLR 1Re C & V (Contact: Parental Responsibility) [1998]
1 FLR 392Re P (Minors) (Contact: Discretion) [1998] 2 LFLR 696Re K
(Residence Order: securing contact) [1999] 1 FLR 583Re K (Contact) (Mother's
Anxiety) [1999] 2 FLR 703A -v- N (Committal: Refusal of Contact) [1997] 1
FLR 533Contact and domestic violenceWhere there are allegations of domestic
violence, the court must look at the conduct of each party towards the other
and towards the children, the effect of the violence on both the resident
parent and the children and the motivation of the party seeking
contact.Where there are allegations of serious domestic violence, the court
is most unlikely to make an interim order for direct contact. The
allegations will need to be investigated first and findings made.There is no
presumption that findings of domestic violence against the applicant parent
will result in no contact. The court will assess the violence in the
context of s.1(3) and weigh the risks involved and the impact of contact on
the resident parent and the child against the positive factors, if any, of
contact. The court will have regard in particular to whether the offending
parent recognises his past conduct and his willingness and ability to
change. See:-Re S (Violent Parent: Indirect Contact) [2000] 1 FLR 481Re L,
V, M, H (Contact: Domestic Violence) [2000] 2 FLR 3341Re M (Interim Contact:
Domestic Violence) [2000] 2 FLR 377Re L (Contact: Genuine Fear) [2002] 1 FLR
621Re G (Domestic Violence: Direct contact) [2000] 2 FLR 865Re J-S (Contact:
Parental Responsibility) [2002] EWCA Civ 1028There may be other
circumstances in which it is appropriate for contact to be terminated. See,
for example:-Re H (Contact Order) (No. 2) [2002] 1 FLRHowever, this is a
discretion which should be exercised carefully:-Re J-S (A Child) (Contact:
Parental Responsibility) [2002] 3 FCR 433 CAForm of the contact orderIt is
good practice for the order for contact to direct the resident parent to
"make the child/children available for contact" as defined in the order.
This is particularly important when it is felt that the resident parent may
be resistant to contact.Sanctions for refusal of contact without good
reasonA penal notice may be attached to an order for contact. Make sure the
order is in the above form. If it is not, amend it.Where the hostility of
the resident parent to contact frustrates the order, the court may consider
a transfer of residence or committal to prison. Many judges are most
reluctant to commit, particularly if the non-resident parent is not in a
position to care for the child and it is a weapon of last resort:-Re B
(Contact) [1998]1 FLR 368A & N (Committal: Refusal of Contact) [1997] 1 FLR
533Re M (Contact Order: committal) [1999] 1 FLR 533Note that conditions may
be attached to contact orders:Re O (Contact: Imposition of Conditions)
[1995] 2 FLR 124Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR
721Special precautions may also be taken by the court when permitting
contact abroad in circumstances where there is risk that the child may not
be returned:-Re T (Staying Contact in Non-Convention Country) [1999] 1 FLR
262Re A (Security for Return to Jurisdiction) (Note) [1999] 2 FLR 1Re P (A
child: Mirror Orders) [2000] 1 FLR 435RESIDENCE ORDERSDirect with whom a
child is to live.The general principles for the Children Act and for the
making of s.8 orders apply.See above re method of application and
applications not on notice.The court may make a residence order of its own
motion. The order cannot be made in favour of the child himself.Shared
residence/joint residenceArrangements whereby a child spends part of his
time living with one parent and part with the other.Until recently these
were seldom made and required special circumstances making a shared
residence order desirable in the interests of the child. However, there is
recent Court of Appeal authority to the effect that neither exceptional
circumstances nor, probably, evidence of a positive benefit to the child is
required. It need only be demonstrated that the order is in the interest
of the child in accordance with the requirements of Section 1 Children Act
1989:-D -v- D [2001] 1 FLR 495One example is where it to confer parental
responsibility on a non-parent with whom the child lives part of the
time.Shared care arrangements are most often arrived at by agreement, in
which case the "no order" principle may well apply. See also:-A -v- A
(minors) [1994] 1 FLR 669Re H (shared residence: parental responsibility)
[1995] 2 FLR 883G -v- F (Contact and Shared Residence: applications for
leave) [1998] 2 FLR 799Enforcement of residence ordersSee s. 14PROHIBITED
STEPS ORDERSThe prohibited steps order is an order empowering the court to
restrain a person from an exercise of parental responsibility. This may
relate to such issues as education (not to withdraw a child from a
particular school, not to go to the child's school etc) and medical care
(other than emergency treatment) or, for example, to restrain a threatened
removal of the child from the jurisdiction. Note that a person with a
residence order in respect of a child may, without the permission of the
court or the other party, remove the child from the jurisdiction for a
period of less that one month.A prohibited steps order may be made
prohibiting a non-parent from contacting children.1Note that no court may
make a prohibited steps order in any way which is denied to the High Court
(by s.100(2)) in the exercise of its inherent jurisdiction. Similarly, no
order will be made with a view to achieving a result which could be achieved
by making a residence or contact order (s.9(5))SPECIFIC ISSUE ORDERSAn
application for a specific issue order is made in order that the court may
decide a specific issue relating to the child.The order may be made in
conjunction with a residence or contact order or on its own.The application
may be made not on notice in an appropriate case.Examples are issues about
religious upbringing, circumcision, schooling, the surname by which the
child is known and applications to remove a child from the jurisdiction
(whether temporarily or permanently).s. 13 regulates change of name and
removal from the jurisdiction. It is an automatic condition of a residence
order that no person will cause the child to be known by another surname or
remove him from the jurisdiction (save under the automatic leave), without
either the written consent of every person who has pr or the leave of the
court.Change of surname See:-Dawson -v- Wearmouth [1999[ AC 308Re C (Change
of Surname) [1999] 2 FLR 656Temporary removal from the jurisdictionThe
welfare of the child is the paramount consideration.Prima facie, the
application should be granted if there is a sensible plan to visit relatives
or enjoy a holiday. Reasons for refusal may be grounds for believing the
parent may not return or, for example, the child being too young to
undertake the journey.Undertakings to return the child to the jurisdiction
at the end of the holiday and, even, deposits of money may be required as a
condition for the granting of leave.Permanent removal from the
jurisdictionThere is no difficulty if parents agree. A parent may remove a
child permanently from the jurisdiction with the consent of all others who
have pr.It is a criminal offence to remove a child from the jurisdiction
without the appropriate consents or leave.1The court has said that
applications for permanent removal require "profound investigation and
judgment".The issue is whether the plan is a reasonable and sensible one
and, is it compatible with the welfare of the child, taking into account the
impact upon contact with the other parent.See:-Re H (Application to remove
from jurisdiction) [1999] 1 FLR 848Re A (Permission to remove from
jurisdiction: Human Rights) [2000] 2 FLR 225Re C (leave to remove from the
jurisdiction) [2000] 2 FLR 457Each case is to be decided on its own
facts:-Payne -v- Payne [2001] 1 FCR 425
Janet BazleyOne Garden Court,Temple,London EC4
Recent Developments in Children Law David Vavrecka30 January 2003Continuing
Professional Development LectureCHILDREN LAW & PRACTICERECENT
DEVELOPMENTS30th January 2003Speaker: David Vavrecka, Coram ChambersPrivate
Law Update1. Judicial statistics 2001112,000 private law applications in
England & Wales (up 17%)2. Ask trial judge for Permission to appealRe T
(Contact: Permission to Appeal) [2002] EWCA Civ 1736Court of Appeal stressed
again importance of making application for permission to appeal to trial
judge. See notes 52.3.4 - 52.3.6 in Part 52 CPR. Applications to Court of
Appeal without prior application to trial judge where judgment handed down
or client not available or had changed mind3. Split hearings in relation to
contact should be heard by same benchM v A (Contact: Domestic Violence)
[2002] 2 FLR 921Parties separated prior to birth of child and communication
and relationship resumed for 5 months once child 1 year old before ending in
violence. Seven months later father applied for contact. Justices made
findings on violence by mother on one occasion and threats by father over
period. Also made findings about mother's motives for resisting contact.
Later directions by a different bench and transfer to PRFD meant case came
again to court one year after application made. Judgment highlighted need
for same bench to hear final hearing as the preliminary hearing.In the light
of Re L/V/M/H (Contact: Domestic Violence) [2000]2 FLR 334 - view formed
at factual inquiry informs approach to disposal. Identify transfer cases
earlier4. CostsQ v Q (Costs: Summary Assessment) [2002] 2 FLR 668Wilson J
asked to consider who should pay costs after 13 interlocutory hearings
(costs reserved in 10 of these) over number of years in bitter private law
dispute. Order for father to pay, sum of £150k being a summary assessment
of mother's costs. W actual costs 336K. Power to make summary assessment
under PD Costs 13.1 had to be considered in every case and not just in
special circumstances. Whilst no order is accepted starting point, on
balance father's unjustified residence application, stance on educational
issues and resistance to investigation of medical condition, meant
appropriate that he pay significant share of costs on indemnity basis5.
Importance of Legal Representation in committal proceedingsRe K (Contact:
Committal Order) [2002] EWCA Civ 1559Unmarried mother of two was
unrepresented when committed to prison for 42 days for contempt for failing
to abide by repeated orders for indirect and supervised contact, part of
which was for assessment by CWO. Trial judge also made residence order in
father's father. Court of Appeal allowed the mother's appeal and stressed
criminal nature of contempt proceedings entitled mother to at least
protection of Art 6(3)(c) and effect of Article 8 on decision to separate
mother from her children. Transfer of residence - unusual order and welfare
and not punishment is paramount consideration6. Importance of determining
paternityRe H and A (Paternity: Blood Tests) [2002] EWCA Civ 383Mother and
husband had 22 year old son when twin daughters born in 1997. Unbeknown to
father, mother had relationship with another man around time of twins
conception who she introduced to the twins and who had contact, unbeknown to
the husband, who meanwhile had assumed primary care of the twins whilst the
mother worked. The other man sought PR and contact when his affair with the
mother ended which resulted in a consent order for DNA test and arrangement
for supervised contact. Mother did not comply with DNA test or more than
one contact. Mother concealed litigation from husband for a year but he
accidentally found out and filed a statement indicating he would give up
mother and twins if the other man were the father. Mother said she only had
limited sexual relations with other man before probable period of conception
and husband said he was 99% sure he was father. Judge refused DNA tests on
basis of disastrous disintegrative effects of finding of paternity. Other
man succeeded on appeal as Court of Appeal felt possibility of issue
remaining a family secret not acceptable, which might result in twins at
unpredictable future date finding out with shocking consequences. Paternity
to be established by science not legal presumption or inference7. Use of
McKenzie friendsRe H (McKenzie Friend:Pre-Trial Determination)[2002]1 FLR
39Thorpe LJ allowed an appeal against the refusal to allow Dr P to appear as
father's McKenzie friend in contested contact proceedings, stressing
'presumption in favour of permitting a McKenzie friend is a strong one' As
to role of McKenzie friend: Re H (Chambers Proceedings:McKenzie
Friend)[1999] 2FLR 434 - role to sit and advise and quietly to offer help8.
Disclosure to CAFCASSRe M (A Child)(Disclosure to Children and Family
Reporter) [2002] EWCA Civ 1199,CA, [2002] 2 FLR 893CAFCASS office in course
of inquiries told by mother and child of inappropriate behaviour by father.
Officer asked judge for permission to disclose information to social
services but he refused. Thorpe LJ held does not have to seek judge's
permission to report concerns to Social Services; the rules do not prevent
disclosure of material acquired in course of inquiries9. Litigating the use
of first namesRe H (Child's Name: First Name)[2002] EWCA Civ 190Married
parents separated when mother 6 weeks pregnant. Father visited on day of
child's birth and five days later he registered child's birth choosing first
name MI. Six days later mother registered child with first name H.
Registrar of Births and Deaths ruled father's registration legal and
mother's cancelled. Mother sought specific issue to determine by what first
name child should be known. At the appeal, mother's counsel stated change
of name not sought, rather that mother be permitted to use mane H when
dealing with educational, health and other authorities. Court of Appeal
allowed her appeal in basis that unlike surnames which have particular
significance in indicating family to which a child belongs, given names have
less concrete character and commonplace for different given names to be
received after registration. Common sense mother as single parent and
primary carer needs support in outcome of legal proceedings and in
recognition of her liberty and judge plainly wrong to inhibit her use of
name H providing she recognised child has series of immutable names by
statutory registration10. Courts approach to parental alienation evidenceRe
S (Contact:Children's Views)[2002] EWHC 540 (Fam, [2002] 1 FLR 1156Parents
of three children aged 16, 14 and 12. All three lived with mother in
England and father had visiting contact when he came over from Italy. In
reporting to the court, the CAFCASS reported recommended no order in
relation to the older two based in part on their expressed views. The
father and his mother were convinced the mother had poisoned the children
against the father. In making no order for contact in respect of the older
two and an order that the father pay two-thirds of the costs, the judge
dismissed as nonsense the father's claim that the children had been
poisoned. The father had simply failed to realise his hectoring approach
was counter-productive. Father's pursuit of litigation unreasonable, but
punitive to make him pay all costs11. but see also Re C (Prohibition on
further applications [2002] EWCA Civ 292, [2002] 1 FLR 1136 where a father
in person sought contact and residence in relation to daughters (claiming
situation akin to parental alienation syndrome) In the Court of Appeal the
President asked the expert to look at all issues, including issue of PAS,
but commented that the father had 'seriously under appreciated the effect on
the mother and four girls of the final parting in 1998'12. No power to order
residential assessment in private law proceedingsR v R (Private law
proceedings: Residential Assessment) [2002] 2 FLR 953Young child stayed with
mother after separation. She claimed she had shaken baby. She later
retracted this but social services arranged for child to stay with father.
Mother was having supervised contact and following a recommendation in a
social services report to the court, she sought an order authorizing a
residential assessment of her and child. Father objected. Holman refused
the application on basis there was no jurisdiction to order a residential
assessment if one parent with the child against the wishes of the other. In
the event a residual power existed in the exercise of the inherent
jurisdiction, not appropriate to be exercised13. Contact researchLCD
research paper Safety and Child Contact analyses role of contact centres in
context of domestic violence and concluded need for active screening and
assessment in relation to domestic violence, greater support and advocacy
for children and use of clearer terminology (high, medium or low vigilance),
greater availability of centresJoseph Rowntree Foundation in Making contact:
How parents and children negotiate and experience contact after divorce In
depth interviews based on 61 families demonstrated limited capacity of legal
process to facilitate contact or reverse a downward spiral in contact
relationships and advocated resources be redirected to more creative work or
improving parental relationshipsFeb 2002 saw publication of Children Act
Sub-Committee's report to Making Contact recommending proper funding and
role for CAFCASS including the strengthening of family assistance orders,
more specialist contact centres,and publicly funded accredited lawyers to do
children's cases. In Aug 2002 came the Government response to Making Contact
Work in which it accepted recommendations in principle only, but the core
need to use family assistance orders via CAFCASS was rejected.Public Law
Update 14. Judicial statistics 200124,000 public law applications in England
& Wales (up nearly 10%)Care Proceedings15. Practice direction on Judicial
ContinuityPractice Direction issued by the President, 22/3/02 [2002] 2 FLR
367Effectively all care order applications transferred to the High Court
will be allocated a judge who should stay with the case, and after transfer
a CMC (Case Management Conference) is fixed. Variety of documents required
for this hearing.(LA 5 days before, respondents 2 days) Purpose of CMC
toIdentify issues, experts, twin-track planning, need for split hearing16.
The perils of ignoring the expertsRe M (Residence) [2002] EWCA Civ 1052,
[2002] 2 FLR 1059Care proceedings involving a family where the mother had
died and the father of the youngest child age 3 (M) had been recalled to
prison as his life licence was revoked. The oldest children, and the child
of the father had gone to live with the maternal uncle. All the experts
agreed all the children including M should stay with the uncle and agreed on
the father being dangerous. Holman J did not find the threshold crossed and
refused to make a residence order to the uncle on the basis that M should
return to his father. Holman had formed his own assessment of the father in
the face of the unanimous view of the experts and Court of Appeal ruled it
was not open to him to reject their conclusions based on his own impression
of the father or reject guardian's view without fuller reasons.17. Re B
(Non-accidental injury: compelling medical evidence) [2002] EWCA Civ
902Mother, with 6 year old daughter had another child, and after his birth
began to cohabit with another man. Subsequently the child suffered serious
injury - 94 injuries in all, and dies a few months later. The older child
moved to live with a relative and mother separated a year later from the
man. At the preliminary hearing in the care order application in respect of
the daughter, judge concluded the male partner was the perpetrator and
mother could be exonerated and she had not failed to protect the son at any
stage, On the local authority's appeal the Court of Appeal found the trial
judge to be plainly wrong as his finding contrary to expert evidence.
Either the mother or her partner perpetrated these injuries and the mother
had failed to protect the child. A degree of heightened cogency was
necessary to enable the judge to say injuries could not have been inflicted
by the mother and that standard had not possibly been met18. Findings to be
incorporated into court orderRe M and MC (Care: Issues of Fact: Drawing of
Orders) [2002] EWCA Civ 499Findings should be set out in court order where
court had directed determination of specific issuesFollowing trial and
prelim findings of which of parents responsible, one of parents confessed -
shd not be retrial but start disposal hearing with findings as foundation
and adjust in light of developments19. Care proceedings practiceRe R (Care:
Disclosure : Nature of Proceedings) [2002] 2 FLR5Five children from one
family were the subject of care proceedings. Some of the children made
allegations of sexual abuse against parents and other relatives. The local
authority case was initially based on these allegations but after 13 days of
the hearing dropped them and based the case on neglect and emotional harm.
In his judgment Charles J gave a number of important points of guidance(1)
where local authority decided not to pursue allegations of sexual abuse and
the threshold criteria satisfied on different basis, then at
welfare/disposal stage the court cannot approach case on basis was sexual
abuse or might have been sexual abuse(2) local authority should identify as
soon as possible allegations on which it relies, done by someone with
appropriate knowledge and training(3) all parties share duties in respect of
evidence- to check full disclosure and proper instruction of experts(4) most
cases no restriction on disclosure(5) local authorities and guardians should
be more willing to exhibit notes rather than preparing summaries(6) as soon
as carer informs local authority child has made allegations of abuse, full
history should be taken from that carer by person with relevant
experience20. Need for evidence of victimRe D (Sexual Abuse Allegations:
Evidence of Adult Victim) [2002] 1 FLR 635Split hearing in care proceedings
had to consider allegations as to the unsuitability of paternal grandfather
as a potential carer; an alleged victim of inappropriate touching by him in
1985 (now an adult) did not make a witness statement or give oral evidence.
Magistrates relied on social worker's account that she found victim
believable and CAFCASS officer also gave evidence which magistrates treated
as suggested alleged victim's account should be accepted. Grandfather
consistently denied the allegations. Magistrates felt account probably
true. On appeal the President allowed the appeal and ordered transfer to
County Court. Court expected adult victim to give evidence and at least
make a statement in line with dicta in Re H and R (Child Sexual Abuse:
Standard of Proof) [1996] 1 FLR 8021. Re L (Care: Assessment: Fair Trial)
[2002] EWHC 1379 (Fam)Munby J in a detailed judgment analyses the extent and
scope of Article 6 and 8 rights within care proceedings. Mother's first
child died of NAI aged 4 months and second child on register. Care
proceedings commenced and child place din foster care. A psychiatrist was
instructed jointly to decide whether to assess mother for possible rehab.
After a 3 day assessment the psychiatrist advised residential assessment
appropriate, but after a meeting from which the mother was excluded, the
psychiatrist changed his decision. No minutes of this meeting were taken.
The mother opposed the care plan of adoption and claimed there had been
breaches of good practice and she had no had sufficient opportunity to argue
her case. Although the mother's application for further assessment was
dismissed, Munby explained that the mother's article 6 rights to a fair
trial were absolute and were not limited just to the judicial stage of the
proceedings - the failure to allow a litigant to examine and comment on
documents or cross-examine witnesses then relied upon in producing a report
was likely to amount to an article 6 breach. LA had duty to have
transparent and fair procedures at all stages, in and out of court.
Documents must be made available and crucial meetings conducted openly with
parents having opportunity to attend or be represented. However generalised
discovery not necessary or desirable. Earlier unfairness to mother in not
being sufficiently involved overcome in later stages of process22.
Importance of representation in care and adoption proceedingsP., C. and S. v
UK, [2002] 2 FLR 631P and C were the parents of S. born in 1998. In 1994
P's child B was removed from her care due to concerns that she was suffering
from Munchausen's Syndrome by Proxy (MSBP) which caused her to harm the
child. P was subsequently convicted in a Californian court of a misdemeanour
in relation to her harming the child and B lived with his father thereafter.
In 1996 P met C, a social worker, researching a doctorate on women wrongly
accused of MSBP - they married in 1997. In May 1998, S was born and was
removed from her parents and placed with foster parents - less than 12 hours
after her birth under an emergency protection order - a care order was
subsequently obtained. The parents were allowed supervised contact and were
seen to have developed a good relationship with C. At the final care
hearing, P's lawyers were allowed to withdraw from the proceedings due to
her unreasonable conduct and C withdrew from case In March 1999 a Court
granted the care order and fixed a date for a freeing application one week
later. P & C attended but did not have legal representation. The judge
refused to grant an adjournment to allow P to obtain legal representation
and made a freeing order Leave to appeal was refused and the child was
adopted in March 2000. The applicants claimed a violation of Article 6(1)
(fair trial) and Article 8 ( the right to respect for family life).Article
6The E.Ct of HR noted that given the complexity of the case and what was at
stake for the applicants and the emotive nature of the subject matter, the
principles of effective access to court and fairness required that the
mother P receive legal assistance. It found that the while the domestic
courts tried in good faith to strike a balance between the interests of the
parents and the welfare of S., the procedures adopted not only gave the
appearance of unfairness but they prevented the applicants from putting
their case forward in a proper and effective manner on issues which were
important to them. It concluded that the assistance of a lawyer during the
hearing of the two applications which had such crucial consequences for the
applicants' relationship with their daughter was an indispensable
requirement. Consequently the applicants did not have fair and effective
access to court and there had been a breach of Article 6(1).Article 8Court
noted that while there was legitimate cause for concern due to P having a
previous conviction for harming a child, nonetheless, the removal of a child
from its mother at birth required exceptional justification. It was not
apparent why the child could have had some contact with the mother at the
hospital. It concluded that there was no immediate risk to the child and
the removal at birth was not supported by relevant and sufficient reasons
and thus violated Article 8.It also found that freeing the child for
adoption breached Article 8 because of the lack of legal representation and
the lack of any real time lapse between the proceedings. It concluded that
given what was at stake Article 8 was violated due to the parents not being
involved in the decision making process to a degree sufficient to provide
them with the requisite protection of their interests.23. House of Lords and
Starred Care PlansRe S (Minors)(Care Order: Implementation of Care Plan; Re
W(Minors)(Care Order: Adequacy of Care Plan) [2002] UKHL10, [2002] 1 FLR
185The House of Lords did not uphold the Court of Appeals creation of
starred care plans, a bold attempt to devise a way for care plans which were
not being implemented coming back to court; instead they stressed the need
for the government to urgently review this (see children reviewing officers
under Children and Adoption Act - to refer to CAFCASS if appropriate)- power
of section 3 HRA limited, court must be mindful of outer limit.
Interpretation upto courts but enactment and amendment matter for
Parliament- starred milestones departed substantially from Parliamentary
intentions3 so far as it is possible to do so, primary legislation ..must be
read and given effect in a way which is compatible with convention rights24.
Challenging plans of local authority on human rights groundsC v Bury
Metropolitan Council [2002] EWHC 1438 (Fam), [2002] 2 FLR 868Mother made
applications under ss6 and 7 HRA on her own behalf and that of child for
review of local authority care plan, which proposed residential school in
distant part of UK. Mother had not been present at all meetings where plan
discussed. The President did not find that the procedural flaws in the case
management had a detrimental effect on mother's case nor had the child's
rights been adversely affected. The decision of the local authority was
proportionate and in child's best interests and no breaches of Article 8
upheld. Like in Re M (Challenging decisions by local authority)[2001]2 FLR
1300 the court entertained a freestanding HRA application. The President
stated human rights applications should be heard in the Family Division,
preferably by judges with experience of sitting in the Administrative
CourtSee also M (Care:Challenging Decisions by Local Authority) [2001] 2 FLR
1300,25. Effect of failure to prove parent a perpetratorRe O and N
(Children) [2002] 3 FCR 418In care proceedings, the local authority sought
care orders on 2 children due to NAI on older child. Father admitted
causing fractured skull and subdural haematoma but denied other injuries.
At preliminary hearing, the judge found in the absence of acceptable
explanation by either parent, neither parent exculpated and injuries caused
by either or both. Judge also found mother had failed to protect elder
child from harm. The Court of Appeal restated the established law as to
burden of proof at threshold stage, remains on local authority, and same
standard at disposal / welfare stage. Only finding open to judge on
evidence was that LA failed to establish on balance of probability that
mother had injured older child and proceeded on basis did not. However
finding she failed to protect inevitable26. Protection for parents making
admissions to expertsRe AB (Care Proceedings: Disclosure of Medical Evidence
to Police) [2002] EWHC 2198 (Fam)Guidelines made by Wall J in case where he
gave disclosure of expert medical evidence to police ; including (1) need to
carry out balancing exercise Re C (A Minor)(Care Proceedings: Disclosure)
[1997] Fam 76 (2) no presumption of disclosure (3) importance of frankness
and protection of s98(2) (4) advice to parents not to cooperate in court's
investigation of child abuse poor practice and likely to lead to inferences
being drawn against parent (5) lawyers should not put pressure on expert as
to how to conduct investigation (6) court more likely to refuse an
application for disclosure to police where frank acknowledgment of
responsibility by abusing parent27. see also Re M (Care Proceedings:
Disclosure: Human Rights) [2001] 2 FLR 1316During care proceedings a mother
admitted responsibility for serious shaking injuries to her child. During
the hearing the mother wrote an account in which she admitted responsibility
for the injuries and both parents made further written statements. Upon
discovering the existence of this material (following unauthorized
disclosure by a social worker to a case conference) the police applied for
disclosure of mother's written account and statements and relevant parts of
transcript. Judge refused the application giving greater weight to fairness
to the mother and any danger of oppression, together with the importance of
maintaining frankness and confidentiality in care cases, to that of the
public interest of prosecution of serious crimes and punishment of
offenders28. Disclosure to Third PartiesRe C (Disclosure: Sexual Abuse
Findings) [2002] EWHC 234 (Fam)Judge in care proceedings found father a
dangerous paedophile who posed a considerable risk to any child. A care
order was made and local authority given leave to disclose copy of judgment
to DOH and any social services or police force within area husband living.
SS and police wishes to disclose certain findings made in the care
proceedings to an identified housing association and to any future
landlords. The judge allowed disclosure to housing association but refused
an order to disclose to future landlords as difficulties of controlling the
information if more widely disseminated and could lead to people going
underground29. Local authority desire to disclose information about sex
offender not irrationalR (J and P) v West Sussex County Court and Wiltshire
County Court [2002] EWHC 1143 (Admin) [2002] 2 FLR 1192Local Authority
concerned about grandmother who was seeing her grandchildren every few
months. Her new partner had Sch 1 conviction for indecent assault on
stepdaughter and has completed term of imprisonment. Risk he posed such
that local authority decided there was pressing need to tell children's
mother, even though grandmother willing to undertake he would not have any
contact with her grandchildren. Sullivan J held substantial justification
needed to interfere with grandmother's article 8 rights; but here real and
cogent evidence of pressing need for disclosure 30. Parents entitled to have
disclosure of files where LA seeking to rely on summaryRe B (Non-Accidental
Injury)[2002] EWCA Civ 752Care proceedings in relation to baby with subdural
haemorrhages and no other injuries. Parents declined to give evidence at
split hearing and judge held one or other of parents responsible. Evidence
detailing fathers care of an older (17 year old) son in foster care had been
summarised and were to be used in the disposal hearing. The judge refused
parents application for disclosure of files in question. Court of Appeal
held situation here unusual (would normally be some earlier litigation in
which record of previous parenting established. Here files were best
(probably only evidence) and even most careful summary may not be completely
balanced and to ensure parents have confidence, should have access31.
Witness anonymity highly exceptionalRe W (Care Proceedings: Witness
Anonymity)[2002 EWCA Civ 1626 Court of Appeal quashed findings based on
social worker's evidence where given anonymously from behind screen.
Threats of violence from parents in care cases an occupational hazard -
anonymity reserved for exceptional cases32. Jurisdiction to make interim
order where child's father had diplomatic statusRe B (Care Proceedings:
Diplomatic Immunity) [2002] EWHC 1751 FamThe President sought to continue an
interim care order obtained in respect of a 13 year old girl who was a
Moroccan national and whose father was a driver in the Moroccan embassy, and
where severe bruising seen at school found on examination to be serous and
non-accidental. Following reasoning of Re R (Care Orders: Jurisdiction)
[1995] 1 FLR 711,basis of jurisdiction habitual residence or physical
presence at time of application. ICO fell within exception to Art 37(2) of
Vienna Convention on Diplomatic Relations 1961 (Vienna Convention and so no
procedural bar. Where threshold criteria crossed, Article 3 of European
Convention breached and positive obligation on states to investigate33.
Difficulty of conflicting research in shaking baby casesRe A and D
(Non-accidental injury:subdural haematomas)[2002] 1 FLR 337Questions of
degree of force required for subdural haemorrhage to occur subject of
conflicting medical opinions. Forces which lead to this occur when baby
shaken ('shaken baby syndrome') Less force required than previously
believed. More research needed34. Recognition of role of grandparents to be
considered in leave applicationsRe J (Leave to Issue Application for
Residence Order) [2003] 1 FLR 114Care proceedings where mother unable to
care due to mental ill-health and local authority assessment ruled out 59
year old grandmother due to volatile nature of mother's possible reaction.
Trial judge refused grandmother's application for party status and leave to
issue residence application. Court of Appeal emphasised importance of
s10(9) checklist. Court anxious at application of decision in Re M
(Care:Contact:Grandmother's Application for Leave)[1995]2 FLR 86 since
whether applicant had a good arguable case applied to section 34(3) not
10(9) - anxiety heightened where applicants enjoyed Art 6 rights to fair
trial and possibly Art 8 rights. Important role of grandparents to be
recognised, particularly in relation to children of disabled parents.Have
regard to nature of proposed application, connection with child, risk
proposed application disrupting child's life to such an extent harmed by it,
where looked after, authority plans for future and wishes and feelings of
parents Adoption35. Importance of religious matching and the role of
judicial reviewRe C (Adoption: Religious Observance) [2002] 1 FLR 1119Local
Authority seeking care order with respect to almost 3 year old girl with
plan of adoption. Child was to be placed with prospective adopters with a
fairly strong Jewish identity but with a relatively low level of religious
observance. On the basis that the only connection with Judaism was that the
child's mother was Jewish by birth, the Guardian argued that the Jewish
couple were unsuitable as the child's mixed heritage required placement in
a religiously neutral environment from which exposure to different elements
of her background could be developed, and opposed the care order and sought
judicial review of the Adoption Panel's recommendation to match the child to
the proposed couple. Wilson J in making a care order and approving the plan
of adoption with the proposed adopters found the guardian's use of the
judicial review procedure as misguided and held that the proper forum to
challenge the plan was in the care proceedings. The approach of the
guardian was described as inflexible and doctrinaire.36. Identity of
AdoptersRe X (Adoption: Confidential Procedure)[2002] EWCA Civ 828Siblings
removed and placed with foster parents with whom parents had good
relationship. Foster parents wished to adopt but keep identity secret and
filed serial number adoption. Guardian supported adoption. Parents opposed
adoption. Parent's solicitor inadvertently learnt truth and applied for
permission to disclose identity of adopters to parents. Refusal of judge to
allow disclosure upheld on appeal on basis judge not plainly wrong as
parent's case could still be presented. Interests of children in
maintaining happy ands secure home now so great that outweighed problems
associated with fair trialContact in adoption37. Permission to refuse
contact to father in care proceedings overturned where insufficient judicial
analysisRe G (Adoption: Contact) [2002] EWCA Civ 761Ward LJ in the Court of
Appeal allowed a father's appeal in a care case where the judge had given
the local authority permission to refuse contact to the father where 4
children (2 sets of twins aged 3 and 18mths) were with foster parents who
were going to adopt the children. The care proceedings in relation to 5
children arose of NAI where judge at trial unable to attribute
responsibility for injuries between one or both of parents. Oldest child
(aged 6) to remain with maternal grandmother. Judge granted s34(4) in
relation to father , whilst allowing mother, uncle and aunt ongoing contact.
Ward LJ allowed the appeal on the basis judge had not analyses the
difference in treatment between mother and father given the exclusion of the
father not based on finding he was perpetrator.38. Foster care payments to
relatives or friendsR v Manchester City Council [2001] EWHC Admin 707Munby J
viewed different rates of allowance to family and non-family foster carers
as unlawful39. Article 8 rights engaged in question of artificial
insemination informationRose v Secretary of State for Health and Human
Fertilisation and Embryology Authority [2002] EWHC 1593 (Admin), [2002] 2
FLR 962Claimants born as a result of artificial insemination by an anonymous
donor judicially reviewing DOH . Scott Baker declared Article 8 rights
engaged with regard to identifying and non-identifying information40.
Representing Children when no guardian appointedAlthough issued to Panel
solicitors, Law Society Guidance (Sept 2002) applicable: Advocate should
represent child in furtherance of the best interests of the child (s41
Children Act & r4.13) While trying to act in accordance with child's best
interests, not in a position to advise court what is in the child's best
interests. Proper and appropriate to (a) critically appraise LA action and
evidence in support of those actions, and seek directions to require filing
of further evidence if appropriate, to test and probe case and ensure court
has sufficient evidence on which to base its decisions and to test evidence
of all parties at contested interims (b) at every opportunity seek appt of
CAFCASS guardian and keep it under constant review (c) request and collate
as soon as possible all relevant papers (d) should be generally aware of and
play a leading role in case management and timetabling issues for benefit of
the running of proceedings as a whole.41. Adoption and Children ActRoyal
assent 7/11/02Biggest overhaul of adoption law for 25 yearsKey concern is to
increase adoption for looked after children being adoptedMajor changes in
adoption practice:- contact. Moves towards openness addressed in explicit
duty on court to consider arrangements for allowing any person contact with
the child and requirement in section 1 to have regard to the child's
relationshipss1 (4)(f) ct should have regard to ability and willingness of
any of the child's relatives . to provide the child with a secure
environment in which the child can develop, and otherwise meet the child's
needs- need for special support for those affected by adoption.
Comprehensive duty placed on local authorities to provide adoption support-
placement orders - authorising placement by local authorities with
prospective adopters- introduction of special guardianship. Deals with need
for permanence for children foe whom adoption is not appropriate- new
national adoption register to ensure faster matches- independent review
mechanism for prospective adopters who feel they have been turned down
unfairly- new facility for step-parents. Step-parents can acquire PR by
agreement or PR without removing other parent's parental status by an
adoption orderFirst phase of new adoption support framework to be
implemented from April 2003 ahead of full implementation of Act currently
planned to be in 2004Key concerns: delay and resourcesGovernment has set a
public service agreement target: to increase by 40% the number of looked
after children who are adopted, increase to 95% proportion of looked after
children placed for adoption within 12 months of the best interest's
decision42. DelayFurther to Booth report on delay in 1996, LCD study in
September 2002 Reducing Delays in Family Proceedings recommends more
flexible transfer between courts, changes to format of written reasons,
greater consistency by extending use of practice directions.43.
GuardiansSerious problems with CAFCASS continue44. Victoria ClimbieReport
published 28th January 2003. Full text on
www.victoria-climbie-inquiry.org.uk45. Useful websites·
www.courtservice.gov.uk/judgments/judg_home.htm (Judgments)·
www.official-documents.co.uk (Selected white/green papers)·
www.parliament.uk/ (Hansard from June 96)· www.lawrepors.co.uk (Online
summary of cases)· www.hcch.net (Hague signatories and Intercountry
adoption)· www.incadat.com (Child Abduction Database)·
www.offsol.demon.co.uk (Child Abduction Unit)· www.unicef.org/crc (UN
Conv on Rights of Child)· www.echr.coe.int (ECHR cases)· www.coe.int
(Council of Europe)· www.doh.gov.uk/quality protects/index.htm (DOH
material)· www.lcd.gov.uk (Lord Chancellor's Department)· www.alc.org.uk
(Association of Lawyers for Children)
An Introduction to Ancillary Relief Nicholas Cusworth5 December
2002Continuing Professional Development LectureAN INTRODUCTION TOANCILLARY
RELIEF A. THE LAW1. Basic Principles1.1 Section 25 of the Matrimonial
Causes Act 1973 applies in all cases whether the assets are large or small -
welfare of the child(ren) is the first but not the paramount
consideration1.2 The section then sets out the criteria to be considered -
broadly:-(a) income, earning capacity, property and other financial
resources;(b) financial needs, obligations and responsibilities;(c)
standard of living;(d) age of parties; duration of marriage;(e)
physical or mental disability;(f) contributions (including to welfare of
family both in past and in foreseeable future);(g) conduct (but not very
often);(h) loss as a result of the divorce (nearly always pensions). 1.3
Two main aspects:(i) HousingM -v- B (ancillary proceedings: lump sum)
[1998] 1 FLR 53, 1 FCR 213 - one of the paramount considerations in applying
s25 criteria is to stretch what is available to cover the need for each
spouse to have a home particularly where there are young children But see -
Piglowska -v- Piglowski [1999] 2 FLR 763, 2 FCR 481; House of Lords say no
rule that spouses' housing needs are to be given greater weight than the
other section 25 criteria although "sound sense" of remarks in M -v- B not
doubtedBut if insufficient for both to have a home - consider a deferred
charge; to give the carer of the children all the (limited) capital might
seem harsh Clutton -v- Clutton [1991] 1 FLR 242, FCR 265 - a charge does not
offend the principle of the clean break; but not a deferred charge that will
simply leave the wife homeless when the children are adult (see, for
example, Carson -v- Carson [1983] 1 WLR 287, 1 All ER 478)(ii)
Maintenance Campbell -v- Campbell [1998] 1 FLR 828, 3 FCR 62 - maintenance
cases need to be evaluated on a broad perspective rather than to look with
scrupulous care at every item in a budget; the court balances the wife's
needs against the husband's ability to pay1.4 Can a husband make a
claim?Yes, both parties come to the court as equals - Calderbank [1976] Fam
93, [1975] 3 All ER 333 although that does not mean that justice requires an
equal division of the assets.1.5 Is there a presumption of equality?White v
White [2001] 1 All ER 1, [2000] 3 FCR 555 The House of Lords refused to
accept that there is a presumption of equality. However, before a final
order, a judge should check his views against "the yardstick of equality"
and equality should only be departed from "if, and to the extent that, there
is good reason for doing so.."The House of Lords did stress that the
decision in White related principally to how assets should be divided in
"big money" cases. Where needs, and especially the requirements of children
of the family, render anything approaching an equal division impossible, the
approach of the courts has not been altered by the decision in White, or by
the cases that have followed it.1.6 What is meant by 'big money'?Basically,
when there is a significant sum of money left over after both parties and
any children have been re-housed and are provided for by income in a similar
style to that enjoyed up to the breakdown of the marriage.Mrs. White got
about 40%. Most wives in the 'big money' category were getting about 40% as
well (See eg. Cowan v Cowan [2001] 2 FLR 192; N v N (Financial Provision:
Sale of Company) [2001] 2 FLR 69). However, the very recent decision in a
case called Lambert v Lambert in the Court of Appeal (14th November 2002)
suggests that very few husbands will be able to plead 'exceptional
contribution', as Mr. Cowan did successfully, in future. Far more long
marriages with children will in future be the subject of 50/50 division in
big money cases after the figures have been adjusted for issues like
liquidity and inheritance. For the first recent example of the post Lambert
approach in practice - see the even more recent decision of Bennett J. of
28th November 2002 (probably to be reported as N v N). 2. Initiating the
application2.1 Ancillary Relief Rules - all applications in Form A If
seeking a Pensions Act order, must say so in application; trustees/managers
must be served Leave required if claim not made in Petition [Rule 2.53(2)]
Applications against yourself - Dart [1996] 2 FLR 286, [1997] 1 FCR 21 2.2
Claim must be made before remarriage - section 28(3) but can be adjudicated
upon thereafter Claim in Petition sufficient - Jackson [1973] Fam 99, 2 All
ER 3952.3 No final order until Decree Nisi - otherwise voidMunks [1985] FLR
576 2.4 Only one substantive order for ancillary relief - Coleman [1973]
Fam 10, [1972] 3 All ER 886 and de Lasala [1980] AC 546, [1979] 2 All ER
1146 No power to vary property adjustment or lump sum orders - eg. Carson
[1983] 1 WLR 287, 1 All ER 478 - unless lump sum order is pursuant to the
Pensions Act or is for payment by instalments also see Sandford -v-
Sandford [1986] 1 FLR 4122.5 Section 31(7B) of the MCA 1973 - a wife can
apply to capitalise her periodical payments even where there has already
been a dismissal of her capital claims2.6 Pension Sharing came into force
for all Petitions filed after 1st December 2000 (see below). Pension
attachment (formerly earmarking) under the Pensions Act 1995 has survived
but is unlikely to be used as often. It remains a useful tool whilst there
are still pre-December 2000 Petitions coming up for final hearing. 2.7
Maintenance pending suit until Decree Absolute; thereafter, interim
periodical paymentsSee Rule 2.69F for procedureHighly unusual to have oral
evidence on an application for mps - court invariably proceeds on the basis
of the (short) Sworn Statements (or Forms E)2.8 Child periodical payments
- jurisdiction if:-(i) school fees;(ii) top up only if reached maximum
and assessment already made;(iii) step-parent;(iv) variation of existing
order (including nominal order obtained by consent)(v) consent order;(vi)
tertiary education;(vii) overseas element.but you should prepare a CSA
calculation so that the court knows what would be ordered if a CSA case (see
E -v- C (child maintenance) [1996] 1 FLR 472, 1 FCR 612). From an
undetermined future date, current CSA calculation will be replaced by
simpler calculation, whereby absent parent will pay 15% of net income for
one child (20% for 2 children and 25% for 3 or more children) 3. Enforcing
the order obtained3.1 Periodical paymentsMaintenance Enforcement Act 1991 s1
- the court can direct that an order for pps (including mps) is paid by
standing order and make an Attachment of Earnings Order at the time of
making the pps order or at any time thereafters8 - the Magistrates Court can
order interest on arrears3.2 Sale of a matrimonial home3.2.1 The order
itselfMCA s24(A) - can order a sale at the same time as the order for
ancillary relief or at any time thereafters24(A)(ii) - can make "such
consequential or supplementary provisions as the court thinks fit" eg
directing sale at a particular price or to a particular individual3.2.2 A
recalcitrant spouseFPR Rule 2.64(3) applies to RSC Order 31(1) to ancillary
relief proceedings - the court can order possession against a recalcitrant
spouseSCA 1981 s39; CCA 1984 s38 - DJ can execute transfer documents if a
spouse refuses or neglects to do so3.2.3 A trap to avoidIf equity being
divided - do so on a percentage basis if possible to avoid problem in Heard
-v- Heard [1995] 1 FLR 9713.2.4 Interim orders for sale and
distributionWicks -v- Wicks [1998] 1 FLR 470, 1 FCR 465 -(i) no power to use
FPR Rule 2.64(3) to obtain an interim order for sale (Green -v- Green
[1993] 1 FLR 326 disapproved)(ii) no power of appropriation to deal with net
proceeds of a sale in interim (Barry -v- Barry [1992] Fam 140, 3 All ER
405 disapproved)Can apply for a sale pursuant to Married Women's Property
Act 1882 [in the suit - FPR 3.6(2)] or Trusts of Land and Appointment of
Trustees Act 1996 (if time) but NB. cannot direct use of the proceeds of
sale to buy an alternative property in the interimNeed to await
implementation of s22A(4) - interim lump sums - but this not on the horizon
at present.3.3 Lump sum3.3.1 MCA 1973 s 23(3)(c) - payment by
instalmentss31(2)(d) - unlike single lump sums, can be varied (Tilley -v-
Tilley [1980] 10 Fam Law 89)3.3.2 Variation as to timingMasefield -v-
Alexander [1995] 1 FLR 100, 2 FCR 6633.3.3 InterestThe County Courts
(Interest on Judgment Debts) Order 1991MCA 1973 s23(6)L -v- L (lump sum:
interest) [1994] 2 FLR 324, [1995] 1 FCR 603.3.4 Adjourning the claim M-T
-v- M-T [1992] 1 FLR 362, [1991] FCR 6493.4 Judgment Summons3.4.1 No legal
aid in County Court and very restricted orders for costs 3.4.2 FPR 7.4(10) -
Suspended committal orders3.4.3 The Debtors Act 1869 s5(2) - "must prove to
the satisfaction of the court that the person making default either has or
has had .... the means to pay ... and has refused or neglected or refuses or
neglects to do so" 3.4.4 Standard of proof - criminal (Woodley -v- Woodley
[1992] 2 FLR 417, [1993] 1 FCR 701)3.4.5 Maximum imprisonment is 6 weeks and
cannot be imprisoned twice for the same debt although other means of
enforcement can be used 3.4.6 Can enforce undertaking in this way provided
"integral to the order" (Symmons -v- Symmons [1993] 1 FLR 317)3.4.7 Can
enforce school fees order by Judgment Summons even if quantum of school fees
not included in the order (L -v- L (payment of school fees) [1997] 2 FLR
252, 3 FCR 520) but not an order for costs (B -v- B (injunction: restraint
on leaving jurisdiction) [1997] 3 All ER 258, 2 FLR 148)3.4.8 The use of
Judgment Summons now likely to be severely curtailed following Practice
Direction: Committal Applications [2001] (16/3/01) which applies the Human
Rights Act 1998 (esp. Art. 6) to the Judgment Summons process, and Muburak
v. Muburak [2001] 1FLR 698, 1FCR 193 - the creditor not only has to prove
ability to pay, but also particularise the default.4. The effect of
cohabitation 4.1 If a wife has "earned her share" by contributions during a
long marriage, she will not lose that share just because she is cohabiting (
Duxbury -v- Duxbury [1992] Fam 62, [1990] 2 All ER 77)4.2 Maintenance will
not automatically cease on cohabitation - it depends on the circumstances of
the cohabitant (Atkinson -v- Atkinson [1988] Fam 93, FCR 356 and another
case called Atkinson at [1995] 2 FLR 356 and [1996] 1 FLR 51)4.3 The
definition of cohabitation - see Kimber -v- Kimber [2000] 1 FLR 785.
Termination of maintenanceNote the Court of Appeal cases to the effect that
great caution needs to be exercised before terminating periodical payments
orders in cases where there is no established earning capacity egFlavell -v-
Flavell [1997] 1 FLR 353, 1 FCR 332 - lady in her mid 50sG -v G (periodical
payments: jurisdiction) [1997] 1 FLR 368, 1 FCR 441 - lady in her mid 40s
with teenage childrenC -v- C (financial provision: short marriage) [1997] 2
FLR 26, 3 FCR 360 - lady in her early 40s with very young child6. Short
marriage casesPutting the applicant back in the position he or she occupied
before the marriage S -v- S [1977] Fam 127, 1 All ER 56 Attar -v- Attar (No.
2) [1985] FLR 653but cf position where there are children eg C-v-C above7.
The Legal Aid Charge Practice Direction (statutory charge: form of order of
court) [1991] 3 All ER 896, 2 FLR 384See also Piglowska (above) - should be
taken into account but not entitled to make a greater award to one spouse
than would otherwise be proper in order to ensure that the charge is
postponed8. Pension Sharing An order only available in cases where the
proceedings (ie. The Petition) were issued after 1.12.2000. Introduced by
WRPA 1999, inserting ss.21A & 24B into MCA 1973Not available in JS - only
divorce or nullity The parties may agree to rescind a Decree Nisi to enable
the court to have pension sharing powers under a new petition (S v S [2001]
1FLR 457). Though a husband is entitled to decline a proposal by the wife to
the filing of a fresh petition in these circumstances, that he has failed
to consent may be one of the circumstances to be taken into account (Rye v
Rye [2002] 2 FLR 981) 9. CostsNote the new (penal) rules on costs - Rule
2.69B - D Gojkovic -v- Gojkovic (no2) [1991] 3 WLR 621, FCR 913 A -v- A
(costs: appeal) [1996] 1 FLR 14, 1 FCR 186 The need for a costs estimate (to
include how much paid) The difference between standard and indemnity costs
B. THE PRACTICEFundamental changes made by the Ancillary Relief Rules. (i)
The overriding objective; (ii) Exchange of Forms E (now with the requirement
to exhibit a number of specified documents); (iii) Preparation of
Questionnaire (if necessary), Chronology, Statement of Issues and Form G
(can First Appointment be used as FDR) 14 days before First Appointment;(iv)
Judicial control of litigation at First Appointment; (v) Concept of
Financial Dispute Resolution hearing with all offers, proposals and
responses available to Judge; (vi) Need for costs estimates at all times and
possibility of wasted costs orders if non-compliance with rules;(vii) Need
for client attendance at all hearings unless otherwise directed(viii) Need
for open proposals before final hearing; (ix) No Sworn Statements without
direction (although see W -v- W [2000] Fam Law 382/473);10. Preparing
Questionnaires10.1 See the New Rules - the Questionnaire must be drafted
with reference to the Statement of Issues [(Rule 2.61(b)(7)(c)]; in some
cases, there will be no need for a Questionnaire at all10.2 Stick to
relevant questions (eg do not ask refuse collectors for details of their
offshore trusts)10.3 Credit card statements - highly unlikely to need more
than one year (holidays, standard of living)10.4 Bank statements - one
year's statements should be annexed to Form E; if appropriate, ask for
identification of specific credits and debits; look for transfers to
undisclosed accounts or payments for non-disclosed policies10.5 When
answering a Questionnaire, always ensure the Reply includes the Question 11.
Preparing the bundles11.1 See Practice Direction: Court Bundles [2000] 1 FLR
536 - applies to all hearings of 1/2 day or more and any hearings in the
High Court/RCJ11.2 The bundle must be paginated (numbered) throughout and
placed in a ring binder or lever arch file (no more than 350 pages in
each)11.3 Note the order of the documents - (a) applications and orders; (b)
statements and affidavits; (c) expert's reports; (d) other documents11.4 Try
not to include documents disclosed in reply to a Questionnaire unless they
are likely to be referred to in court11.5 Rule 3.1 - the bundle should
commence with (a) a summary of the background to the hearing; (b) a
statement of the issue(s) to be determined; (c) a summary of the order
sought; (d) a chronology if a final hearing or (a) above is insufficient;
(e) skeleton arguments as appropriate with copies of authorities relied on
11.6 In all but the most simple case, a Schedule of Assets will also be
vital (bringing the content of the 2 Forms E together).11.7 The bundles
should be filed 2 clear days prior to the hearingSee Re CH (family
proceedings: court bundles) [2000] 2 FCR 193 for the penalties for
non-compliance12. Preparing for the final hearing12.1 Highlighters and
"post-its" are invaluable for finding documents/important passages12.2 When
reading the papers, jot down points for cross-examination bearing in mind
that they need to be relevant to section 25 factors13. Ascertaining the
assets13.1 Joint experts now far more likely but, if not, the experts must
talk to each other to attempt to agree values prior to the date of the
hearing13.2 An accurate redemption statement should be obtained for all
mortgages or charges13.3 Surrender values (or sale values) for all endowment
policies plus dates of maturity with projected maturity values13.4 Pensions
- transfer values and projections 14. Alternative property particulars14.1
Get a good spread but not hundreds of particulars14.2 Provide a map with the
properties identified plus the matrimonial home, children's school, etc14.3
Your client should view all particulars (to point out the power station
behind the garage etc) and take pictures if possible 15. Earning
capacity15.1 Client should keep a list of all applications, rejection
letters, etc15.2 On the other side, general questioning is not particularly
effective. Get details of relevant courses, copies of job advertisements,
etc. In an appropriate case, an Employment Agency may be able to provide a
Statement 16. Submissions16.1 The New Rules require "open" offers prior to
the hearing; in any event, you must always know what order you are asking
for and why - the DJ may ask you at the conclusion of your opponent's
opening16.2 Final submissions can much more effective in writing but this is
not always possible. NB - don't prepare them before your client's evidence -
you may find your case changes! Nicholas Cusworth1 Mitre Court
BuildingsTempleLondonEC4Y 7BS24 February 2003
The Human Rights Act 1998 - An Introduction for Family Practitioners Stewart
Leech10 April 2003Continuing Professional Development Lecture THE HUMAN
RIGHTS ACT 1998AN INTRODUCTION FOR FAMILY PRACTITIONERSbyStewart Leech,
Queen Elizabeth Building10th April 2003 PART I: BACKGROUNDA. THE HUMAN
RIGHTS ACT 1998 - SCOPE AND SCHEME1. Bringing Rights home1.1. The Act, which
came into force on 2 October 2000, enjoys a unique position on the statute
book. Rights have been "brought home" in the sense that individuals are
now able to rely on their fundamental rights and freedoms as protected by
the European Convention in their relations with the state in all its
manifestations. In terms of litigation they no longer have to exhaust their
domestic remedies then bring a case in Strasbourg: they are able to raise
Convention arguments in any court in the land. [Note, however, that if all
else fails a new "slimmed down" Strasbourg remains the ultimate tribunal in
terms of human rights.]2. The Two key features of the Act2.1. A strong
interpretative section.2.2. A new cause of action for breach of statutory
duty.3. Interpretation of legislation3.1. All primary and secondary
legislation, whenever enacted, must (so far as it is possible to do so) be
read and given effect in a way which is compatible with the rights and
fundamental freedoms set out in those parts of the European Convention on
Human Rights which have been enacted .3.2. Where a court or other tribunal
is determining any question which arises in connection with a "Convention
right", it must take into account any Strasbourg jurisprudence which, in the
opinion of the court or tribunal, is relevant to the question which has
arisen .3.3. Declarations of IncompatibilityWhere a higher court (the High
Court and above ) is satisfied that a provision in primary legislation is
incompatible with a Convention right it may make a declaration of
incompatibility . Similarly, a higher court may make such a declaration in
respect of subordinate legislation which it considers incompatible where the
primary legislation under which it is made prevents removal of the
incompatibility . Where the court takes the view that the relevant primary
legislation does not prevent removal of the incompatibility, it may simply
quash the subordinate legislation.3.4. Note that the government is entitled
to notice in any case in which the court is considering making a declaration
of incompatibility so that it may intervene .3.5. Note also that
parliamentary sovereignty is preserved in that, irrespective of any
declaration, incompatible legislation remains fully in force (pending any
remedial action being taken by the relevant Minister) . It follows that a
declaration of incompatibility is not binding on the parties to the
proceedings in which it was made .3.6. The interface between interpretation
and incompatibilitySince the 1998 Act come into force the family courts have
shown themselves to be very reticent in terms of making a declaration of
incompatibility. The preferred approach is to stretch the construction of a
statutory provision (for examples of this in action see Re K (Secure
Accommodation Order: Right to Liberty) where the President said "the duty
of the English court under the Human Rights act 1998 is to attempt to find a
compatible interpretation. If a compatible interpretation can be found
there is no justification for a declaration of incompatibility". The
President went on to quote with approval an extra-judicial observation of
Lord Cooke who said "Section 3(1) will require a very different approach to
interpretation from that to which the United Kingdom courts are accustomed.
Traditionally the search has been for the true meaning, now it will be for a
possible meaning that will prevent the making of a declaration of
incompatibility." See also Re W and B; Re W (Care Plan) where Hale LJ
stressed that "the Human Rights Act 1998 was carefully designed to promote
the search for compatibility rather than incompatibility between primary
legislation and the Convention rights."3.7. R v A (No 2) This was perhaps
the 'high water mark' in terms of stretching interpretation to avoid
incompatibility. The case centred on s41 of the Youth Justice and Criminal
Evidence Act 1999 which severely limited the circumstances in which a
complainant in a rape case can be cross-examined about her sexual history.
Lord Steyn stated that section 3 of the HRA 1998:"places a duty on the court
to strive to find a possible interpretation compatible with Human Rights.
Under ordinary methods of interpretation a court may depart from the
language of the statute to avoid absurd consequences: section 3 goes much
further. In accordance with the will of Parliament as reflected in section 3
it will sometimes be necessary to adopt an interpretation which
linguistically may appear strained. The techniques to be used will not only
involve reading down the statute but also the implication of
provisions."3.8. Lord Irvine stated that the decision in R v A (No.2) "was
an expansive use of section 3" and that "it appears to have been the most
extreme use of the interpretative power" . 3.9. The House of Lords appears
to have backtracked somewhat in the family case of Re S in which it was
held that the provisions of the Children Act 1989 rendered the court functus
once a care order had been made and could not be interpreted in such a way
as to permit ongoing supervision by the court of the implementation of a
care plan. Lord Nicholls, at para. 40 of his speech, stated:"For present
purposes it is sufficient to say that a meaning which departs substantially
from a fundamental feature of an Act of Parliament is likely to have crossed
the boundary between interpretation and amendment. This is especially so
where the departure has important practical repercussions which the court is
not equipped to evaluate."4. Acts of public authorities4.1. It is now
unlawful for a public authority to act in a way which is incompatible with a
Convention right (although it is a defence if the public authority could
not have acted differently due to primary legislation or is acting pursuant
to primary legislation which cannot be read compatibly ). "An act" includes
a failure to act . A new statutory cause of action is therefore created
against all public authorities, with the exception of either House of
Parliament (apart from the House of Lords acting in a judicial capacity ).
4.2. The definition of public authority is extremely wide and includes:(a)
a court or tribunal(b) any person certain of whose functions are functions
of a public nature (eg NSPCC).4.3. Horizontal effect in family
proceedingsThe effect of the Act in terms of public law and the relationship
between the individual and the State (in the form of local authorities, the
police etc) is obvious. The Act does not make it unlawful for a private
individual to act in a way which interferes with another's Convention
rights. The Act does, however, have an impact on private law disputes in
two ways. First, the Strasbourg organs have long recognised that there may
be positive obligations on a State to take measures designed to secure
respect for, for example, private or family life even in the sphere of the
relations of individuals between themselves (see the quotation from X and Y
v The Netherlands set out below). Secondly, once a court becomes seized of
a private dispute the court (qua public authority ) must act compatibly with
the Convention rights of all the individuals concerned . It cannot sanction
one party's interference with another's rights unless such an interference
is permissible under the Convention itself. (For an example of this
horizontal applicability in action see Payne v Payne , a leave to remove
case, where Thorpe LJ said that the view expressed by Buxton LJ in an
earlier case to the effect that the Convention had no place in private
disputes was not sustainable).5. Procedure5.1. See FPR r10.26 (inter alia
you should plead human rights points in your originating process) and note
President's Direction 24 July 2000 Human Rights Act 1998 [2000] 2 FLR 429
(list of 'human rights' authorities to be lodged 2 clear days before the
hearing). B. THE EUROPEAN CONVENTION6. The Relevant Articles6.1. Not all of
the provisions of the European Convention have been incorporated into the
1998 Act. Those that have been are as follows (the key Articles for family
lawyers are in bold):· Article 2 Protection of life· Article 3 Inhuman and
Degrading Treatment· Article 4 Forced or Compulsory Labour· Article 5
Liberty and Security of the Person· Article 6 Right to a Fair Trial·
Article 7 Retrospective Criminal Law· Article 8 Respect for Family and
Private Life· Article 9 Freedom of Conscience· Article 10 Freedom of
Expression· Article 11 Freedom of Association· Article 12 Right to Marry
and Found a Family· Article 14 Freedom from DiscriminationProtocol 1·
Article 1 Enjoyment of possessions· Article 2 Right to Education· Article
3 Free ElectionsProtocol 6· Article 1 Abolition of the Death Penalty·
Article 2 Death Penalty in Time of War7. The nature of rights7.1. The
Rights protected by the Convention fall into two categories: absolute rights
which permit of no derogation or qualification (eg Article 3 "No one shall
be subjected to torture or to inhuman or degrading treatment or punishment")
and non-absolute rights the enjoyment of which may be qualified in some way
(eg Article 8 "Everyone has the right to respect for his private and family
life, his home and correspondence. There shall be no interference by a
public authority with the exercise of this right EXCEPT ..."7.2. Note that
Article 14 is a dependant right. It is not a free-standing
anti-discriminatory provision. The would-be complainant must first
demonstrate that one of the substantive rights set out in the Convention is
engaged in the sense that the matter of which (s)he complains falls within
the ambit of a substantive right . It is not necessary, however, to
establish a breach of the substantive right. Note, however, that not all
differences in treatment amount to unlawful discrimination. A difference in
treatment will not be considered to be contrary to Article 14 if it has an
objective and reasonable justification. This means that: (i) it must be in
pursuit of a legitimate aim and (ii) there is a reasonable relationship of
proportionality between the means employed and the aim sought to be achieved
.8. Key Principles of Construction8.1. A living instrumentThe convention is
often referred to as a "living instrument" requiring a "dynamic"
interpretation. Human rights standards as embodied in the Convention must
be interpreted in the light of changing circumstances and values in a
developing society. What is or is not acceptable has to be re-evaluated as
times change : this has obvious implications for the Common Law system of
precedent. 8.2. Autonomous ConceptsHuman rights are to be considered as
autonomous concepts. A government cannot opt out of its obligations under
the Convention by re-classifying obligations in domestic law. So, for
example, the UK government will not be able to avoid its obligations in
respect of quasi criminal matters such as committals by classifying them as
"civil matters".8.3. The Margin of AppreciationStrasbourg, as an
international court, has long recognised that domestic authorities may be
better placed to determine certain issues, particularly where there is a
number of possible views or approaches and where moral or social issues are
concerned. A doctrine has therefore emerged whereby domestic authorities
are given a certain latitude or "margin of appreciation". This doctrine
has been subject to criticism from within and outside the Court and reliance
on it in some cases can be interpreted as a "fudge" or, worse, as a desire
to reduce human rights standards to the lowest common denominator.
Practitioners should be wary of setting too much store by cases which are
resolved on the basis of the margin of appreciation. Note that the margin
is a concept which is unique to international law and it is not open to our
domestic courts to import such a doctrine into the application of Convention
Rights here.PART II: ISSUES ARISING OUT OF ARTICLE 8 (RIGHT TO RESPECT FOR
FAMILY LIFE) AND ARTICLE 6 (RIGHT TO A FAIR TRIAL)9. ARTICLE 89.1. Article 8
of the Convention reads:1. Every body has the right to respect for his
private and family life, his home and his correspondence.2. There shall be
no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.10. Applicability10.1. The Convention applies to children
(from the moment of birth) as it does to adults. There is no explicit
presumption that the welfare of the child is the paramount consideration in
resolving disputes. Nevertheless, the ECHR has found that the best
interests of the child may be the paramount factor in determining custody .
The Commission, too, has referred to the child's interests being dominant,
saying:"Where there is a serious conflict between the interests of the child
and one of its parents which can only be resolved to the disadvantage of one
of them, the interest of the child must prevail." 10.2. Moreover, the Court
has observed that:".... the parent cannot be entitled under Article 8 of the
Convention to have such measures taken as would harm the child's health and
development." 10.3. And in a more recent case the Court has reiterated
that:". in judicial decisions where the rights under Article 8 of parents
and those of a child are at stake, the child's rights must be the paramount
consideration. If any balancing of interests is necessary, the interests of
the child must prevail." 10.4. It seems that as far as the English Court of
Appeal is concerned, our domestic "paramountcy principle" is in no way in
conflict with the Convention - see eg Thorpe LJ in Payne v Payne "the
jurisprudence of the European Court of Human Rights inevitably recognises
the paramountcy principle albeit not expressed in the language of our
domestic statute".10.5. The Strasbourg authorities have been reticent in
terms of setting out what factors domestic courts should take into account
in determining what is in the best interests of the child although they have
signified the importance of continuity of development or consistency in the
child's upbringing. They have yet, however, to insist that the child's
wishes be taken into account although clearly an award of, say, residence to
a parent in the face of strong opposition from a mature child would raise
issues of arbitrariness .11. Family life11.1. Although the European
Convention contains no definition of "family life" the Court and Commission
have interpreted the notion widely and the concept has evolved to take stock
of changes in society.11.2. Essentially, the existence of "family life" is
a question of fact to be resolved by taking account of all the circumstances
of a given case. Some family relationships, however, attract the
protection of Article 8 automatically. In particular where marriage is
involved. Thus, a child born to parents who are lawfully married will be
part of that relationship from the moment of and by the very fact of his/her
birth . Similarly, the relationship between a mother and her child appears
to attract the provisions of Article 8 automatically, irrespective of
marriage .11.3. Unmarried fathersFamily life will normally be found to exist
between unmarried fathers and their children where they live or have lived
together (although the European Court has frequently stressed that
cohabitation is not a sine qua non of family life). In the absence of
cohabitation, however, Strasbourg jurisprudence has, historically at any
rate, sought evidence of some sort of constancy in the parental relationship
or of some commitment from unmarried fathers seeking to invoke Article 8,
whether in the form of contact or financial support for their children.
More recent cases hint at a relaxing of this approach, however, particularly
in the context of immigration . In the case of Söderbäck v Sweden family
life was found to exist between an unmarried father and his child despite
the fact that they had never lived under the same roof and had not enjoyed
regular contact. For a recent domestic decision where a difference was
found to exist between two unmarried fathers in respect of whether they had
a right to family life with children who were being placed for adoption see
Re H; Re G (Adoption: Consultation of Unmarried Fathers) .11.4. It should be
noted, however, that ECHR jurisprudence has dealt with the wider issues
involving unmarried fathers on a case-by-case basis and there is room for
some perhaps surprising results. In Keegan v Ireland , which concerned the
placement of a child for adoption without the unmarried father's knowledge
or consent, the court held that the relationship between the applicant and
the mother had the hallmark of family life and therefore the placement for
adoption amounted to an interference with the father's right to respect for
his family life with the child. In McMichael v UK , on the other hand, the
unmarried father whose child was placed in care and freed for adoption
complained that, under Scots law, unlike the mother, he had no parental
rights from the child's birth, no legal right to custody and no right to
participate in proceedings. His complaint was rejected by the Court, which
held that the aim of the relevant legislation which was to provide a
mechanism for identifying "meritorious" fathers was legitimate and that the
conditions imposed on natural fathers for obtaining recognition of their
status were proportionate to that legitimate aim. The notion that it may be
legitimate to treat married and unmarried fathers differently has recently
been restated by the European Court in B v UK (a case concerned with
international child abduction) - although contrast that with Sahin v Germany
.11.5. The extended familyThe convention has been held to extend to
relations between grandparents and grandchildren , siblings and uncle and
nephew . Each case depends on its facts and on the nature of the bond
between the child and the person claiming to have a right to family life
with him/her. Family "ties" do not in themselves constitute family life and
a complainant may need to substantiate the reality of an actual and
subsisting family life, regardless of blood or other ties. 11.6. Atypical
family structuresAtypical units may also fall within the concept of family
life if the de facto reality of their situation is to all appearances
indistinguishable from the traditional family unit. Thus in X, Y and Z v UK
the Commission accepted the existence of family life where a child was born
by artificial insemination by anonymous donor to a woman living in a
long-term stable relationship with a female to male transsexual.With
same-sex couples, however, the Commission has found that a stable homosexual
or lesbian relationship does not fall within the ambit contemplated by
"family life", even where there is a sharing of a parental role, although
issues can arise with regard to respect for private life (also protected by
Article 8) . The position of same-sex couples in Europe is evolving,
however, and it may be that where, for instance, both parent and partner
have joint residence orders (thereby conferring parental responsibility on
the partner) family life will exist between the partner and the child - a
point that the UK government conceded in the X, Y and Z case. Note that our
domestic courts may well take a more enlightened approach in terms of
accepting that "family life" extends to same-sex couples - see, for example,
the comments by Singer J in Re W (Adoption: Homosexual Adopter) where he
said in relation to a child whose adoption was in dispute "the family in
question comprises two women living together in a lesbian relationship" and
the views expressed by the majority of the House of Lords in Fitzpatrick v
Sterling Housing Association Ltd .11.7. Family life exists between within
adopted families and, depending on the facts, may also exist within foster
families. However, a natural parent who donates sperm or an egg for the
purpose of AID does not acquire a right to respect for family life solely by
virtue of that fact . 12. Ending family lifeOnce established, family life
does not come to an end on divorce or on the end of cohabitation, even if
the relationship broke down and the parties ceased to cohabit prior to the
birth of the child . Nor is family life in these circumstances terminated
by a decision to place a child in care although subsequent events such as
adoption may, in exceptional circumstances, end it .13. Justifiable
interference with family life13.1. As noted above, the rights set out in
paragraph 1 of Article 8 are not absolute. 13.2. Paragraph 2 permits
interferences subject, however, to the provisos set out in that
paragraph.13.3. "... in accordance with the law"The first proviso is that
any interference must be in accordance with the law. This does not simply
mean that there must be a statutory provision or other legal basis (eg
common law) permitting the interference. ECHR jurisprudence has established
that:(a) the legal basis for the interference must be sufficiently precise
in its formulation to allow the citizen - with appropriate professional
advice if necessary - to foresee, to a degree that is reasonable in the
circumstances, the consequences which his or her acts might entail.(b) the
scope of any discretion conferred by the law and the manner of its exercise
should be indicated with sufficient clarity to protect the individual
against arbitrary interferences.13.4. "... necessary in a democratic
society..."The second proviso is that any interference must be "necessary"
in a democratic society. The word "necessary" has been interpreted to mean
that there must be a "pressing social need" for the measure in question. To
be legitimate, an interference must also be proportionate. The means that:·
there must be a reasonable relationship between the means employed and the
ends envisaged· the interference should impair as little as possible the
right or freedom in question· any measures adopted which may or will
interfere with that right must be carefully designed to meet the objectives
in question· the interference should not be based on arbitrary, unfair or
irrational considerations. 13.5. The pursuit of a legitimate aimThirdly,
the interference must pursue one of the legitimate aims set out in paragraph
2. Ordinarily, measures interfering with family life will be aimed at
protecting the health or the rights and freedoms of other members of the
family, particularly children. In other contexts (such as in
immigration/deportation cases where families may be broken up) the
interference may be in pursuit of other legitimate aims such as the economic
well-being of the country or the prevention of crime. 14. Example14.1. In W
v UK , a case dating from 1987, a man and his wife who had experienced
difficulties voluntarily placed their child in the care of the local
authority. The local authority subsequently assumed parental rights and
took steps to place the child for adoption with a termination of contact.
There followed proceedings in wardship but by the time the case came on for
final hearing the trial Judge felt he had no practical alternative but to
leave the child with his foster carers in view of the time that had elapsed
since the child last had contact with his natural parents. Eventually, the
child was adopted.14.2. The father brought a complaint before the ECHR.
There was no issue that the local authority had acted in accordance with the
law and in pursuit of a legitimate aim. The heart of the matter was whether
the procedures adopted by the authority were "necessary in a democratic
society". The applicant father and his wife had not been informed or
consulted in advance about the parental rights resolutions nor, apparently,
about the proposed placing for adoption and termination of contact. The
ECHR held that they had not been sufficiently involved in the
decision-making process and that there were insufficient procedural
guarantees for them which meant that the interference in their family life
could not be regarded as "necessary in a democratic society". 15. Failures
to act15.1. There may also be a breach of the right to family life even
where there has been no obvious "interference" within the meaning of
paragraph 2. A failure to take positive action (whether by the legislature,
courts, or other public authorities) may in certain circumstances amount to
a failure to meet the obligations imposed by article 8. In X and Y v
Netherlands the Court said:"(Article 8 does not merely compel the State to
abstain from ... interference: in addition to this primarily negative
undertaking, there may be positive obligations inherent in an effective
respect for private and family life.... These obligations may involve the
adoption of measures designed to secure respect for private life even in the
sphere of the relations of individuals between themselves."15.2. Examples
of failures to meet this positive obligation within the context of article 8
may be found in Marckx v Belgium , where the Court concluded that the state
had failed to take appropriate action in fulfilment of its positive
obligation under article 8 in particular by failing to recognise a child
born outside marriage as a member of her mother's family, thereby preventing
the applicants from leading a normal family life, and in Hokkanen v Finland
where the court found that the state had failed to take sufficient steps to
enforce contact orders and had failed to make reasonable efforts to reunite
parent and child. (Note, however, Glaser v UK where the court said that
while national authorities must do their utmost to facilitate cooperation in
respect of contact, any obligation to apply coercion must be limited since
the interests as well as the rights and freedoms of all concerned must be
taken into account.)15.3. On this latter point, it is important to note the
emphasis placed by the Strasbourg authorities in this case and many others
on trying to encourage reunification of families and the fostering of real
contact with a view to achieving that end in cases where children are placed
with alternative carers. In Johansen v Norway the ECHR indicated that if
at all possible the taking of a child into care should be a temporary
measure and that the termination of contact (a fundamental aspect of family
life) could only be justified in exceptional circumstances and where the
best interests of the child required it. So too, in Eriksson v Sweden the
Court was particularly concerned that the unsatisfactory situation appeared
to stem in large measure from the authorities' failure to ensure any
meaningful contact between a Mother and her child with a view to reuniting
them. 16. Suggested approach to potential article 8 issues1. Is article 8
engaged? (ie has the applicant/complainant established a private/family
life/home/correspondence to be respected?)2. Has there been an
interference?3. If so, was the interference in accordance with the law?4. If
so, was it in pursuit of one of the legitimate aims set out in Art 8(2)?5.
Was it "necessary in a democratic society"? (was it proportionate)6. Is it
non-discriminatory (in terms of Art 14)?17. ARTICLE 617.1. Article 6(1) of
the Convention provides:In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the
trial in the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of
the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.17.2. Article 6 requires
that parties to litigation have access to a fair, adversarial procedure.
There should be "equality of arms" between them. The principle was
described thus in Dombo Beheer v Netherlands :"It is clear that the
requirement of 'equality of arms', in the sense of a 'fair balance' between
the parties, applies in principle to 'cases concerning civil rights and
obligations' as well as to criminal cases. The court agrees with the
Commission that as regards litigation involving opposite private interests,
'equality of arms' implies that each party must be afforded a reasonable
opportunity to present his case - including his evidence - under conditions
that do not place him at a substantial disadvantage vis-a-vis his
opponent."This might mean, for example, that parents should have access to
relevant documents, such as social reports, that have been lodged at Court .
17.3. The right is a right of effective access to court. This has
implications in respect of those areas in which certain authorities or
individuals enjoy immunity from suit and in relation to the availability or
non-availability of legal aid for certain proceedings .17.4. The right to
appear in person is implied in the notion of a fair trial and it is arguable
that parties ought to be able to give/challenge oral evidence in cases where
they traditionally do not do so (eg child abduction cases which are usually
disposed of summarily with no oral evidence , ex parte proceedings such as
EPOs and many interim care orders ). Note, however, the recent case of Re B
and T (Care Proceedings: Legal Representation) where the Court of Appeal
restated the principle that, in deciding whether anyone has been deprived of
a fair hearing the court must look at the entirety of the proceedings; it
was not fair to extract part of the process and look at that in
isolation.17.5. Article 6(1) also requires that cases be heard within a
reasonable time and the Strasbourg authorities have held that what is
"reasonable" will vary according to the complexity of a given case and to
the way in which the parties have conducted themselves in terms of the
litigation . Reasonableness is also to be measured in terms of what is at
stake for the parties and any others affected by the proceedings and by
whether the effectiveness or credibility of justice may be impinged. Delay
in cases involving children - especially where there is a removal of
children from the care of their parents and/or a cessation of contact
pending a final hearing - is an area where there is a very real prospect of
breaching article 6. 17.6. Article 6(1) provides that everyone is entitled
to a public hearing and to public pronouncement of the judgment. The first
entitlement is subject to certain exceptions, most notably where the
interests of juveniles (not defined in the Convention) or the private lives
of the parties so require. In B v UK; P v UK the European Court sanctioned
our domestic practice in respect of children's cases. It has also held that
excluding the public from divorce cases is justifiable as being necessary in
terms of protecting the private lives of the individuals concerned . It
remains to be seen whether the practice of hearing ancillary relief cases in
private will continue. As far as the English Court of Appeal is concerned,
however, the position is "no change" - see Allan v Clibbery .18. WHERE CAN I
FIND OUT MORE?The best way to get a feel for this area is to read the
reports as they appear in the FLR (subject heading "Human Rights") or the
EHRR if you have access to them. The EHRLR contains many specialist
articles (including one by me!).The "usual" text books are as follows:-Law
of the European Convention on Human Rights, Harris, O'Boyle and Warbrick
(1995)The European Convention on Human Rights, Jacobs and White (1996)See
also European Human Rights Law, Starmer (1999) andHuman Rights Practice,
Simor and Emmerson (looseleaf)The main specialist family book is Family Law
and the Human Rights Act 1998, Swindells et al (1999) The best tool for
researching caselaw from the European Court is to go to the HUDOC website.
To do this go to www.echr.coe.int, click on "HUDOC", then click on "Access
HUDOC" and that will take you to the search engine. Good luck! STEWART
LEECHQueen Elizabeth BuildingTempleLondonEC4Y 9BSApril 2003
Domestic Violence Injunctions Joanne Brown13 March 2003Continuing
Professional Development LectureDOMESTIC VIOLENCE INJUNCTIONS
Non-molestation orders (Family Law Act 1996) Occupation orders (Family Law
Act 1996)Who may apply An associated person (s62(3))· They are or have been
married· They are cohabitants or former cohabitants (s62(1))Crake v
Supplementary Benefits Commission [1982] 1 All ER 498Re J (Income Support:
Cohabitation) [1995] 1 FLR 660 G v G (Non-molestation Order: Jurisdiction)
[2000] 2 FLR 533· They live or have lived in the same household, otherwise
than merely by reason of one of them being the other's employee, tenant,
lodger or boarder (s62(3)(c))· They are relatives (s63(1))· They have agreed
to marry each other (whether or not that agreement has been terminated)
(s62(3)(e))· In relation to a child both persons are parents or have or have
had parental responsibility for the child· They are parties to the same
family proceedings Is property a dwelling house?Did the parties occupy it,
or intend to occupy it as their home?Are the parties associated?If yes, yes
and yesS33 application if entitled, or married to respondent, or divorced
but retaining matrimonial home rights by virtue of court orderS35 if
entitled and former spousesS36 if entitled and not former spousesS37 if the
property is the present or former matrimonial home of spouses or former
spousesS38 if the property is the home where the parties last lived together
and they are cohabitants or former cohabitants Without notice applications
FPR r3.8(5)- sworn statement must state reasons for no notice having been
givenSection 45(1)Guidelines set out in section 45(2) - all the
circumstances +· Any risk of significant harm to the applicant or relevant
child attributable to conduct if the order is not made immediately· Whether
it is likely that the applicant will be deterred or prevented from pursuing
the application if an order is not made immediately· Whether reason to
believe that the respondent is deliberately evading service and that the
applicant or a relevant child will be seriously prejudiced by delay involved
in effecting service (magistrates' court) or in effecting substituted
service (any other case)Re S (Ex Parte Orders) [2001] 1 FLR 308 - "Munby's
Rules"· Duty to make full, candid, frank disclosure of all relevant
circumstances · Under an obligation to bring to the attention of the
respondent, at the earliest practicable opportunity, the evidential and
other persuasive materials on the basis of which the without notice
injunction was granted · It is appropriate for the court to require the
applicant (and, where appropriate, the applicant's solicitors) to give the
following undertakings:o where proceedings have not yet been issued, to
issue and serve on the respondent either by some specified time or as soon
as practicable o where an application has been made otherwise than on sworn
evidence, to cause to be sworn, filed and served on the respondent as soon
as practicable an affidavit or affidavits substantially in the terms of the
draft affidavit(s) produced to the court or, as the case may be, confirming
the substance of what was said to the court by the applicant's counsel or
solicitors; ando subject to the above, to serve on the respondent as soon as
practicable (i) the proceedings, (ii) a sealed copy of the order (iii)
copies of the affidavit(s) and exhibit(s) containing the evidence relied on
by the applicant and (iv) notice of the return date including details of the
application to be made on the return date· A person who finds himself unable
to comply timeously with his undertaking should either (i) apply for an
extension of time before the time for compliance has expired or (ii) pass
the task to someone who has available the time in which to do it· Whether or
not express undertakings as set out above have been given, but subject to
any orders to the contrary, an applicant who obtains without notice
injunctive relief is under an obligation to the court, and the solicitor
acting for the applicant is under an obligation both to the court and to his
lay client, to carry out the various steps set out above · A without notice
order containing injunctions should set out either by way of a recital or
schedule, a list of all affidavits, statements and other evidential
materials read by the judge· Persons injuncted without notice are entitled
to be given, if they ask, proper information as to what happened at the
hearing and to be told, if they ask (i) exactly what documents, bundles or
other evidential materials were lodged with the court either before or
during the course of the hearing (iii) what legal authorities were cited to
the judge· Applicant's legal representatives should respond forthwith to any
reasonable request from the respondent or his legal representatives either
for copies of the materials read by the judge or for information about what
took place at the hearing.· It is prudent for those acting for the applicant
to keep a proper note of the proceedingsNon-molestation ordersHow will the
court exercise its discretion?Section 42(5) - matters to which the court
must have regard - "to all the circumstances including the need to secure
the health, safety or well-being" of the applicant, the person for whose
benefit the order would be made and of any relevant child.Length of
non-molestation orderSection 42(7) - "a non-molestation order may be made
for a specified period or until further order"Power of arrestS47(2) where
"(a) court makes a [non-molestation or occupation order]; and (b) it appears
to the court that the respondent has used or threatened violence against the
applicant or a relevant child it shall attach a power of arrest to one or
more provisions of the order unless the court is satisfied that in all the
circumstances of the case the applicant or child will be adequately
protected without such a power of arrest"Re H (Respondent under 18: Power of
Arrest) [2001] 1 FLR 641 - can attach a power of arrest when the respondent
is under 18.Duration of power of arrest - s47(4) and (5) Re B-J (Power of
Arrest) [2000] 2 FLR 443 - can be shorter than the duration of the
injunction.Applications for occupation orders under section 33Has the
applicant established that she, or a relevant child, is likely to suffer
significant harm attributable to conduct of the respondent if an order is
not made. (s33(7) and s63)Yes NoHas the respondent established
s33(6) factorsthat he or any relevant child is likelyto suffer significant
harm if the orderwere made? YesBalance of harm test.Duration of orders -
s33(10)Chalmers v Johns [1999] 1 FLR 392B v B (Occupation Order) [1999] 1
FLR 715G v G (Occupation Order: Conduct) [2000] 2 FLR 36Remember s40 Nwogbe
v Nwogbe [2000] 2 FLR 744Applications for occupation orders under section
35· S35(6) sets out matters to which the court must have regard when
considering orders under s35(3) or (4) (includes lapse of time since
separation and since dissolution of the marriage)· S35(7) sets out matters
to which the court must have regard when considering orders under
s35(5)Don't forget subsection (8) - if an order is to be made, the court
shall include a subsection (5) provision unless the respondent or any
relevant child is likely to suffer significant harm if the provision is
included in the order and .balance of harm.testS v F (Occupation Order )
[2000] 1 FLR 255Duration of orders (s35(9) and (10)) - for no longer than
six months, any number of extensions can be ordered.Applications for
occupation orders under section 36Note the differences at s36(6)(e) to (h)
and s36(7)Duration of orders (s36(9) and (10) - for no longer than six
months, only one extension can be ordered.Applications for occupation orders
under section 37 and 38Note the different factors under section
38(4)Duration of orders (s37(5) and s38(6)) - for no longer than six months,
only one extension can be orderedUndertakings · S46· Power of Arrest cannot
be attached to an undertaking· The court shall not accept an undertaking
where a power of arrest would be attached to an orderProcedure:Recording of
undertaking In Form N117 - should be explained to the respondent by the
judge and the respondent asked to sign itMutual undertakings Two separate
formsService of undertakings Court must provide a copy to the person giving
the undertaking. Service - by handing a copy to him before he leaves the
court building (court clerk must record the way in which delivery was
effected in the relevant box on back of form), by posting him a copy,
through solicitor or by personal service.Judge's responsibility 1. to
approve the terms of the undertakings2. to ensure giver understands meaning
of undertakings and consequences of breach3. to consider whether giver
should sign undertakingCommittal President's Direction (Committal
applications and proceedings in which a committal order may be made) [2001]
1 FLR 949Hale v Tanner [2000] 2 FLR 879 and A-A v B-B [2001] 2 FLR 1-
guidance on sentencingPotential pitfalls1. Without notice applications a.
explanation as to why the application is being made without notice MUST be
included in the sworn statementb. Respondent MUST be PERSONALLY SERVED
with:i. copy of the order madeii. copy of the application iii. copy of the
sworn statementiv. notice of the date of the full hearing2. Application for
an occupation order and notice in Form FL416 MUST be served by FIRST CLASS
POST on the mortgagee or landlord.3. Tenanciesa. An order for a transfer of
a tenancy under any statutory provision needs to be made before the tenancy
has come to an endb. An application for a transfer should be made as soon as
possiblec. Consider whether an application for an injunction preventing the
outgoing tenant serving a notice to quit on the landlord should be made
(mandatory injunction to maintain the rights created by the tenancy and
injunction not to serve a notice to quit pending the determination of the
substantive application (see Bater v Greenwich London Borough Council [1999]
2 FLR 993).d. If the Respondent "agrees" to leave the property - will be
intentionally homeless if the order is made by consent and will not be
rehoused. 4. Is the order compatible with any current or future contact
arrangements?5. The Respondent is unrepresented:a. Stay the right side of
the explanation/advice lineb. Should you agree contact arrangements?c.
Should you agree arrangements for collection of belongings?6. The Applicant
is publicly funded and the Respondent is working - should an application for
costs be made?7. Cross-undertakings. What else should I know?1.
ContactRemember: · Allegations of domestic violence should be heard and
adjudicated upon before a final section 8 order is made.· There is no
presumption against direct contact in cases involving domestic violence2.
Trusts of land3. Schedule 1 of the Children Act 19894. Ancillary relief
applicationWhat happens next?1. Evidencea. medical reportb. telephone
recordsc. tape recordingsd. text messagese. statements from friends and
family2. Tell the clienta. What has happenedb. What order has been madec.
When the order takes effectd. What happens to the Power of Arreste. How the
order will be servedf. What to do if there is a breach of the orderg. What
may happen at the next hearingThe final word - literary comfortersThe Family
Court Practice Domestic Violence and Protection From Harassment (4th
Edition) - Roger BirdEmergency Remedies in the Family CourtsJoanne Brown12
March 2003 Chambers of Lionel Swift QC4 Paper BuildingsTemple
Public Child Law Judith Rowe QC23 October 2003Continuing Professional
Development Seminar ADOPTIONRe G (Adoption: Contact) (2003) 1 FLR 270 CA A
local authority brought care proceedings in respect of 5 children, three of
whom hadsustained injury. In those proceedings the Judge found that the
mother and/or the father of the youngest 4 children had caused the injuries,
but he could not make a finding against one parent rather than the other.
The eldest child was settled with her grandmother, but the local authority
applied in respect of the youngest 4 children for orders freeing them for
adoption (with a plan that they be adopted by their foster carers) and
orders permitting the authority to terminate contact with both parents. The
Judge approved the plan of adoption by the foster carers, but he refused to
free the children for adoption as the foster carers would be making their
won adoption application. He proceeded nonetheless to decide the issue of
contact. He refused a s34(4) order in respect of the mother, saying that
some limited contact to her would benefit the children, but granted it in
respect of the father. The only factual distinction between the parents was
that since the mother would be seeing the eldest child and that eldest child
would be seeing her younger siblings, the Judge felt it was logical for the
mother also to see the younger children. Reading between the lines it may be
that the Judge felt that the father was more likely to have injured the
children than the mother but since this was not a finding he had made it
could not justify treating the parents differently. The CA allowed the
father's appeal against the s34(4) order saying that it was not clear on the
merits why the distinction was made between the parents, and the Judge did
not give any adequate reasons for the differentiation.The Court also
expressed the view that the Judge should not have made a s34(4) at this
point in any event having refused to free the children. The right time to
consider what kind of contact natural parents are to have with children
being adopted was on the occasion adoption was under consideration: Ward LJ
at 275[17].Re J (Adoption: Contacting Father) (2003) 1 FLR 933 FD (Bennett
J) A young mother fell pregnant during a fleeting relationship with a young
man who knew nothing of her pregnancy or of the birth of the child J. The
mother wanted the child to be adopted without the father being notified. She
did give the father's details to the local authority but only after the
authority assured her that they would not contact him. The position changed
when J was diagnosed as suffering from severe cystic fibrosis, and the
authority sought declarations enabling them lawfully to contact the father
notwithstanding the mother's objection. Bennett J in fact declared that it
was lawful for the authority not to tell the father and further that it was
lawful for the authority to place J for adoption without informing him. In
the circumstances of the parents' relationship there was no "family life"
for the purposes of Article 8 ECHR. Further, the exceptional facts of the
case took it out of the general rule that fathers should be informed of such
applications. The child had nothing to gain whereas the mother had a great
deal to lose. The father was unlikely to have wished for involvement in J's
life. Further the mother had only revealed the father's identity in the
belief that he would not be told. Bennett J also considered that the failure
to inform the father that he may be a carrier of cystic fibrosis was not an
interference with his right to respect for private life under Article 8 his
brother is a carrier, so, reasoned the Judge, he must know in any event and
can take appropriate steps to inform himself of whether he is also a
carrier) [938/939].Re M (Adoption: International Adoption Trade) (2003) 1
FLR 1111 FD (Munby J) A British couple adopted a baby, M, from a US couple
paying a substantial amount ofmoney to the birth parents and to the
professionals helping them through the process. They commissioned a home
study from a British "independent social worker" called Jay Carter whose
home study was found by Munby J to be deeply flawed in its omission of many
critical problems with the prospective adopters. M was adopted in the US and
placed with the adopters but, as was in fact all but inevitable, the
placement went wrong and the baby was placed in foster care. The local
authority sought to free M for adoption whilst the birth parents sought the
child's return to the US. They were assessed as unable to care for her.
Munby J freed M for adoption, commenting that the adoption should never have
been allowed to take place. He sympathised with the claim of the birth
family, but had no choice but to reject their application for M's return.
The " independent social worker" had committed criminal offences under s11
and s57 Adoption Act, and the Judge alerted the DPP and the AG to what had
happened. He took the unusual step of naming the "isw" to alert others who
might come into contact with her of the views of the court in this and other
similar cases. He encouraged any authority alerted to a situation like this
in the future to voice its concerns "clearly, loudly and explicitly" to the
relevant foreign court.Frette v France (2003) 2 FLR 9 ECHR A single
homosexual male applied to adopt a child. Assessments found that he would
bea good parent, but his application was rejected on the basis that there
was no maternal role model. Held by a majority that Article 8 was applicable
but that there was no discrimination for the purposes of Article 14. Article
6(1) had been breached· The application was rejected squarely on the basis
of the applicant's homosexuality;· Since there was no cross-Europe
uniformity on approaching applications by homosexuals indicating that the
law was in a transitional phase, there had to be a wide margin or
appreciation· It was legitimate and reasonable for national authorities to
consider that the applicant's right to adopt was limited by the interests of
the children eligible to be adopted - given the scientific differences over
the effect on a child of being adopted by one or more homosexual parents,
the justification was objective and reasonable and the difference in
treatment complained of was not discriminatory for the purposes of Article
14· The applicant had been denied a fair trial before the domestic appeal
tribunal due to the lack of notice of the hearing or of the grounds argued
against himThe 2 dissenting Judges felt that having given single applicants
the chance to apply to adopt, France was then obliged to implement the
system in a non-discriminatory way. The domestic court had failed to assess
the particular individuals in this particular situation. PRACTICE AND
PROCEDURERe J ((Leave to Issue Application for Residence Order) (2003) 1 FLR
114 CA Within care proceedings a grandmother was assessed and rejected by
the local authorityas a carer for one child. The grandmother applied for
leave to apply for a residence order. The Judge rejected her application on
the basis, put forward by the authority and guardian, that while the
grandmother's application was understandable, it was not a realistic option
meriting judicial consideration. The CA allowed her appeal and reviewed the
appropriateness of the test set out in the earlier case of Re M (Care:
Contact: Grandmother's Application for Leave) (1995) 2 FLR 86. The CA
emphasised the need to give the statutory checklist at s10(9) its proper
recognition and weight. It is not appropriate to substitute the test "has
the applicant established that he or she has a good arguable case" for the
test set out by Parliament in s10(9). Further, bearing in mind the rights of
the applicants under ECHR Articles 6 and 8 Judges must be careful not to
dismiss an application without "full enquiry". It is important to remember
what grandparents can offer their grandchildren.Re M and MC (Care: Issues of
Fact: Drawing of Orders) (2003) 1 FLR 461 CATwo children suffered injuries
and care proceedings were issued. At the fact findinghearing the Judge made
findings about the injuries and, inter alia, expressed no confidence in
either the mother or Mr C but fixed liability more firmly on Mr C than on
the mother. Before the second stage of the proceedings took place, the
mother purported to admit causing some of the injuries, and her "admissions"
were put in a statement. Counsel for both parents applied to the Judge for a
rehearing of the causation issues in the light of this development. The
Judge refused on the basis that as he had already expressed a lack of
confidence in either adult, he did not consider it necessary to rehear the
issues merely on their "say so". The mother's appeal succeeded in part. The
court emphasised that the normal ruled of issue estoppel are at least "more
flexible" in children proceedings (Neuberger J 466[24]). On the other hand
the notion that the first trial should effectively be torn up as if it had
not happened was plainly unlikely to succeed. Thorpe LJ favoured the
"obvious" middle way whereby at the disposal hearing the initial findings
were treated as the foundation, to be adjusted if and as necessary to
reflect any subsequent developments rigorously tested through the process of
evidence in chief and cross examination (including any further medical
evidence from experts asked to look at and report further in the light of
those developments) (464[14]). The Court also took this opportunity to
stress the need for Court orders to record fully exactly what happens at
the relevant hearings. The court stressed the importance of recording
specific findings of fact on the face of the order.Re W (Care Proceedings:
Witness Anonymity) (2003) 1 FLR 329 CA In care proceedings in respect of 2
children, the local authority's concerns centred uponthe extreme violence of
the father. When an independent social worker recommended a residential
assessment of the children with the mother IF she had absolutely no contact
to the father, the court ordered such an assessment. Before it could start,
however, a social worker involved earlier with the mother saw the mother in
a car with a man. She had never met the father but identified him as the
driver when she was shown a photocopy of a photograph of the father. The
authority returned to court asking the court to revisit the s38(6) order. At
that hearing, the Judge allowed the social worker to give evidence
anonymously and accepted her identification evidence. The Court of Appeal
allowed the mother's appeal, holding that the Judge should not have
permitted anonymity and anyway should not have made a finding on
identification on the basis of the evidence she gave.The CA was referred to
the approach of the criminal courts to witness anonymity. The CA was of the
view that there were clear parallels with public law cases such as care
proceedings - certainly the consequences for the parents of the court
admitting and accepting anonymous evidence such as this were as dire as for
defendants in criminal proceedings. Anonymity should be given to a
professional social worker witness in care proceedings only in highly
exceptional cases. The threat of violence from parents was a professional
hazard of social work and was not exceptional. NB: there have been
significant changes in the approach of the criminal courts to vulnerable
witnesses Re AB (Care Proceedings: Disclosure of Medical Evidence to Police)
(2003) 1 FLR 579 FD (Wall J) In care proceedings based on the death of the
subject child's 2 younger brothers, aConsultant Paediatrician was instructed
to provide a paediatric overview for the causation hearing. The practice of
this expert includes interviewing the parents. The mother sought a number of
conditions as to confidentiality to which the expert did not agree, however
the expert agreed to make it clear on the face of his report that he would
never agree to the disclosure of his report to the police. On a subsequent
application by the police for disclosure of the report the Court did order
disclosure. Wall J reasserted that the application fell to be decided by
carrying out the discretionary balancing exercise laid down by Re C (A
Minor)(Care Proceedings: Disclosure) (1996) 2 FLR 725 CA. Absolute
confidentiality for what a parent tells the court, an expert, the local
authority and the guardian within care proceedings is impossible. Wall J
emphasised that the case of Re C did not create any presumption in favour of
disclosure. S98(2) was not limited to statements or admissions made in oral
evidence but extended to cover statements made to expert witnesses who were,
for these purposes, analogous to guardians. What this mother had said to the
expert was inadmissible against her in the criminal proceedings. The court
stressed that it is not acceptable practice for lawyers representing parents
to try and put pressure on expert witnesses to conduct their investigations
in a particular way in order to protect the parents' position The
conclusions of the case appear in a useful checklist at 612/3 paragraph
[134]. President's Direction: HIV Testing of Children (2003) 1 FLR 1299
Decides venue for the hearing of such rare applications (county court in the
usual way)and defines the role of CAFCASSRe Y and K (Split Hearing:
Evidence) (2003) 2 FLR 273 CA (Thorpe and Hale LJJ) In this case the CA
allowed the appeal of the local authority against a Judge's rejection,at
first instance, of the evidence of sexual abuse adduced by the authority
during the first stage of a split hearing. The CA emphasised the need not to
be over adversarial at the first stage. It also stressed the importance of
considering the statements of a child in their totality - taken together,
the child's statements indicated a pattern which could not be dismissed as
giving rise to no concern. The CA considered per curiam the issue of the
compellability of the parents in these proceedings. Thorpe LJ expressed his
gratitude to Hale LJ who pointed out that he had been wrong on this issue in
a previous reported case [281]! Hale LJ then pointed out [283 paragraph 34]
that Parents can be compelled to give evidence in care proceedings; they
have no right to refuse to do so; they cannot even refuse to answer
questions which might incriminate them. The position is no different in a
split hearing from that in any other hearing in care proceedings. If the
parents themselves do not wish to give evidence on their own behalf, there
is, of course, no property in a witness. They can nevertheless be called by
another party if it is thought fit to do so, and the most appropriate person
normally to do so would be the guardian acting on behalf of the
child.Protocol for Judicial Case Management in Public Law Children Act Cases
(June 2003) (2003) 2 FLR 719Re B (Appeal: Lack of Reasons) (2003) Fam Law
716 CA At the conclusion of a 5 day care case, the Judge reserved judgment
and then gave ajudgment which was criticised by the parents' representatives
inter alia for its lack of clear reasoning. On appeal the CA adjourned the
appeal and remitted the case to the trial judge with an invitation to
provide additional reasons for his decision in four areas. In taking this
course, as suggested by Hale LJ when she gave permission to appeal, the CA
followed the practice outlined in the case of English v Emery Reimbold &
Strick (2002) 1 WLR 2409 CA. The CA took a very practial approach to the
case and urged that where a judgment is criticised for lack of reasons,
advocates as a matter of good practice seek to set up an oral hearing at
which any matter arising from the judgment can be ventilated, thus avoiding
unnecessary appeals. Postscript: in this case once the further reasons were
given, the appeal was abandoned. In re S (a Child)(Identification:
Restrictions on publication) (The Times 21.07.03) This case has an
interesting discussion about the extent of the inherent jurisdiction of
theHigh Court to restrain the publication of information arising in criminal
proceedings (a murder trial of a mother for poisoning her son) in order to
protect the privacy of her son who was the subject of care proceedings.
Although the court accepted that there was jurisdiction to make the order
sought restraining publication of the identity of the defendant and her
victim, by a majority the court decided that when balancing the child's
right to respect for his family and private life against the right of the
press to freedom of expression, reporting restrictions on the identity of
the defendant and victim ought not to be imposed. Hale LJ's was the
dissenting voice.In re W (Children)(Care proceedings: Disclosure) (The Times
11.07.03) (Wall J) A local authority having issued care proceedings placed
the child with the mother. Theywere then provided by the police with
confidential information to the effect that a suspected drugs supplier was
living at the mother's address. Disclosure of the information to any family
members risked both a large scale police operation and the informant's life.
The authority wanted to tell the mother about this and sought guidance from
the court on disclosure. Wall J reminded himself that the weight of
authority reinforced by Article 6 ECHR made it clear that only in the face
of a compelling case could information in care proceedings not be disclosed
to all parties. He took the view that this mother had to know the substance
of the police information and her advisers were entitled to know the wider
picture and that the process had been fair (OS v K (1965) AC 201 and In re M
(Disclosure)(1998) 2 FLR 1028) and to see the information placed before the
court provided they undertook not to pass to the mother anything other than
the substance of the information without the court's permission. He said
that it was vital that the police passed on such information and equally
vital that the authority could then use it in a way which protected the
children. There needed to be a structure within the local authority which
could properly process the information and decide how it should be acted on
preferably in consultation with the police.In re O and Another (Children:
Care proceedings evidence) (The Times 14.08.03) (Johnson J) As a general
rule where a parent declined to answer questions or give evidence in care
proceedings the court ought usually to draw the inference that any
allegations against the parent were true unless there was "some sensible
reason to the contrary". CARE PROCEEDINGSRe B (Care Proceedings: Diplomatic
Immunity) (2003) 1 FLR 241 FD (The President) An ICO was made on a 13 year
old child who had sustained serious non-accidentalinjury. The family were
foreign nationals and the father was a driver with a foreign embassy. The
ICO had been made without reference to the issue of the diplomatic status of
the father and the family. The President held that whilst the father enjoyed
certain privileges accorded to administrative and technical staff of an
embassy under the Diplomatic Privileges Act 1964, such employees were not
immune from civil proceedings relating to acts performed outside the course
of their duties. The father and his family were thus susceptible to care
proceedings, however that did not necessarily solve the problem of
enforcement due to the family's diplomatic immunity and the inviolability of
their home. In fact in this unusual case, a request had been submitted to
the relevant foreign country to waive diplomatic immunity and an answer was
awaited. These proceedings were only at the interim stage. There was no
submission that the court was without jurisdiction to hear the care case.
The real submission was whether it should do so if any order made would be
unenforceable. The President was very keen that the proper structure be put
in place on an interim basis to protect the child concerned whilst the way
forward was addressed through negotiation rather than confrontation.Re D, L
and LA (Care: Change of Forename) (2003) 1 FLR 339 FD (The President) Three
children were placed in foster care and were not to return to their parents.
Theeldest and youngest, placed together, were in due course to be adopted by
their carers. The middle child, functioning at the mental age of a baby,
remained with long term foster carers. The carers for the two children
changed the forename of the youngest child since they did not like his
original forename. The carer of the middle child also cared for another
child of the same name, so she used the child's middle name. In neither case
had the parents agreed to any change of name and in each case the local
authority, on realising what had happened, told the carers to revert to the
children's original names. Neither of the carers agreed to stop using the
forename of their choice, and so the guardian for the children started
proceedings on the basis that the changes of name infringed Article 8 ECHR
in that persons without parental responsibility changed the names of
children in their care. The President dealt pragmatically with the actual
applications before her (the younger of the children placed together was by
now adopted and so the carers had acquired sole PR for her, whilst it was
too late to revert back in the case of the child placed alone). She then
gave guidance on the general issue of change of name, as it emerged that
this situation is far from unique (and needs, she said, to be nipped in the
bud). She made or noted the following points:-· The limits of their role
must be made clear to all authority carers from the outset of every
placement. Authorities must not just wait to pick up the pieces once things
have gone wrong when, as in this case, it might be too late to put things
right;· The DOH were aware of this case and indicated to the Judge that they
intended to bring the issue - and the court's judgment - to the attention of
all directors of social services.· The ability of prospective adopters to
change children's names prior to adoption is wrong just as if the
prospective adopters are merely foster carers. The DOH intends in the longer
term to cover this issue in the guidance supporting the delivery of the
National Adoption Standards;· Local authority's must advise foster carers
that if for some good reason they do wish to call a child by a different
name then they are not entitled to take the initiative however good their
case if as they do not have parental responsibility for the child. They must
go straight to the social worker and take the matter up through them.The
case is useful for the President's brief summary of why a child's given name
is soimportant, and a change so sensitive. Whilst the points are fairly
obvious, this is a useful summary To change a child's name is to take a
significant step in a child's life. Forename or surname, it seems to me, the
principles are the same in general. A child has roots. A child has names
given to him or her by parents. The child has a right to those names and
retains that right, as indeed, the parents have rights to retention of the
name of the child which they chose. Those rights should not be set aside
other than for good reasons.. [346E]. For good measure, the President did
also add a pragmatic note acknowledging that inreality names do change
[346H].R v CAFCASS (2003) 1 FLR 953 QBD (Charles J) The issue in this
judicial review was the extent of the duty and obligation of CAFCASSwith
respect to Guardians to be appointed in specified proceedings under the
Children Act. The applications were pursued because of the lapse of time in
CAFCASS providing guardians in 2 cases although the relevant court orders
had been made. Charles J concluded that the relevant provision was s12(2)
Criminal Justice and Courts Services Act 2000. For several reasons he
concluded that this provision did not impose a duty on CAFCASS to provide a
guardian immediately, but, rather, to provide a guardian as soon as
practicable after the request had been made. This there could be a gap in
time between court order and appointment. Charles J at the end of his
judgment [977/978] recorded CAFCASS's acceptance of theimportance of the
children's guardian in specified proceedings and the fact that the sooner a
guardian is appointed to promote the welfare of subject children, the better
for those children. Charles J expressed his hope that CAFCASS would receive
sufficient funding to enable it to act accordingly. Re O and N; Re B (2003)
1 FLR 1169 HL In these two joined cases, the HL was required to look at the
familiar situation of children injured in homes whilst in the care of two
adults, where there is no independent evidence permitting the court to
identify one as the perpetrator rather then the other. In one case, at first
instance the court exonerated one of the adults whilst in the CA the court
held that it was not possible to exclude either adult as a possible
perpetrator and anyway at the least a non injuring adult failed to protect.
In the other case, at first instance the court of first instance refused to
exonerate either parent and further found that a non injuring adult would
have failed to protect. In this case the CA allowed the mother's appeal
saying that as it had not been established on the balance of probabilities
that she had injured the child, she must be treated as if she had not,
though she had failed to protect. The HL refused the first appeal and
allowed the local authority's appeal in the second. The HL said that where a
child suffered significant harm but the court was unable to identify which
parent had been the perpetrator - or whether both had been - the court
should proceed at the welfare stage on the footing that each parent was a
possible perpetrator. Any other approach would be "grotesque". Transcripts
of the findings should be readily available to Judges at the welfare stage.
Read for a useful general discussion and some thoughts on the issue of risk
of harm in private proceedings (Re M and R considered) Useful articles· On O
and N: by Ernest Ryder QC Fam Law (2003) 741;· on cases of serious injury to
children by Dr Peter Dale, Independent Social Worker: Fam Law (2003)
668North Yorkshire County Council v SA (2003) 2 FLR 849 CA (The President,
Thorpe and Clarke LJJ) In this case of non accidental injury to a child, the
court considered the possibility that thechild was injured by either parent,
a grandmother or a night nanny. The Judge at first instance could not
identify a perpetrator to the H&R standard. He then went on to consider
whether he could exclude any of these four adults. Applying the test that
there was "no possibility that the relevant person injured the child" he did
not exclude anyone. The CA allowed the appeal and substituted a finding
which excluded the grandmother orthe nanny as perpetrators. The CA said that
the test of "no possibility" was too wide and could include even people who
had had fleeting contact with a child during the relevant timeframe. The
test which was first applied in the case of Re B (Non-Accidental Injury:
Compelling Medical Evidence) (2002) 2 FLR 599 CA was not a test of "no
possibility" but was "no real possibility". Where there is insufficient
evidence positively to identify the perpetrator of injuries using the
balance of probability test, the test to be applied was "is there a
likelihood or a real possibility that A or B or C was the perpetrator or a
perpetrator of the inflicted injuries?" The Court emphasised the importance
of the Protocol which will require a careful - early - analysis of the
relevant issues including the identity of all possible perpetrators. The CA
also considered whether it might in some cases be inappropriate to direct a
split hearing even if in the event there needed to be an adjournment at the
end of the hearing for further assessment.Re J (Care Proceedings:
Disclosure)(2003) 2 FLR 522 FD (Wall J) This case concerned a local
authority who misled both a natural mother and the court. A foster child
moved placement on the arrest of the foster father in connection with
enquiries into child pornography. The authority told the mother that the
move was for "personal reasons" and secured her consent to a "welfare
medical". Further, at an application for an interim care order the real
reason for the move was withheld from the court. When a guardian
subsequently appointed sought discovery of further documentation the
justices made an order under s42 CA - which the authority disobeyed. In a
subsequent hearing the authority relied on PII arguing that they wished to
preserve the confidentiality of the foster parents. When the case returned
to court on the guardian's application, the truth emerged. The justices
through their clerk complained to the local head of children's services as a
result of which an independent enquiry was commissioned into these events.
The report of the independent enquiry was then not disclosed to the guardian
or to the court. Held that the report and other documents sought came within
s42 Children Act in which case PII did not arise in connection with the
guardian's examination of them. The authority had a duty to be open and
frank with the court, and the authority's resistance to the guardian's
application had been wrong from beginning to end. [with costs
implications].Re M and J (Wardship: Supervision and Residence Orders) (2003)
2 FLR 541 FD (Charles J) Throughout care proceedings 2 little boys remained
living with their mother. At the finalhearing the mother conceded the
threshold criteria and agreed that one boy should live with the father and
one with the maternal grandmother, in line with the psychological advice. An
agreed threshold document was filed with the court. The recital to it
recorded that the mother did not accept the extent of the harm alleged in
the psychologist's reports and that they took issue with a number of factual
issues in the report. The local authority (who did not entirely accept the
psychologist's report either) recommended residence and supervision orders
and, further, said that if the court were minded to make care orders, then
there would need to be further assessment which might lead to alternative
placements for the boys. The Judge did made residence orders and supervision
orders, but also made wardship orders in respect of each boy with orders as
to contact. On the threshold criteria, Charles J found that the stage had
been reached where the court should say that the factual basis for the order
to be made is established and there is no realistic point in going on to
decide outstanding issues of fact. In principle, the court should make
orders within the statutory scheme of the Act rather than retreating into
the area of inherent jurisdiction. To make public and private orders and to
continue wardship is to take an exceptional course. That course was
justified in this case because of the degree and nature of the harm suffered
by these children and the familial situation generally. This combination of
orders provided the best solution for the medium to long term welfare of the
children.Re M (Intractable Contact Dispute: Interim Care Order) (2003) 2 FLR
636 FD (Wall J) This is an extremely interesting case in which Wall J used
Part IV Children Act to resolve an "intractable contact dispute" in private
law proceedings. The mother had gone to extraordinary lengths to deny the
father contact to two children, falsely alleging through two separate trials
that he had sexually abused them. Contact was ordered but the mother
disobeyed the order - leading to the court making a committal order which
was then not implemented pending a further hearing. The elder child, aged
13, then made her own application for permission to apply for a prohibited
steps order against contact. All matters were consolidated and transferred
to the High Court and the mother's committal was stayed. An officer of
CAFCASS legal was appointed the children's guardian and the two children
(aged 13 and 10) were joined as parties. Wall J ordered a s37 investigation
resulting in care proceedings being issued by the local authority, the
removal of the children from the mother on interim care orders and,
subsequently, residence orders to the father with a 2 year supervision
order. In a consolidated judgment Wall J explains his reasons. He discussed
at length the circumstances in which the use of Part IV in these
circumstances may be appropriate[638/639]. He emphasised that a local
authority required to investigate a case under s37 needed to know the
findings of the court in respect of allegations made by the parent opposed
to contact. The reasons for requesting s s37 report must be spelled out in a
judgment of which either a transcript or a full note must be provided to the
authority and the report should preferably be supported by professional
expert advice. He stressed that children should be separately represented in
private law proceedingswhere all contact has ceased and the issue of contact
has become intractable. Finally Wall J emphasised that judicial continuity
is essential so that the judge can keep a tight control on progress and
ensure that, through a system of review, the children's relationship with
both parents is preserved.Re B (Care: Interference with Family Life) (2003)
2 FLR 813 CA This is a curious case in which a local authority having been
alerted to possible sexualabuse within a family, applied to the High Court
within wardship proceedings rather than applying under Part IV of the
Children Case. By the date of the hearing the LA had decided to apply for an
interim care order, though as a result of their not having taken this course
previously, the children were not represented and they did not have a
guardian. The Court made an interim care order in respect of the 6 children,
provided the authority would give the parents 48 hours notice if they
decided to remove the children thereby giving the parents the opportunity to
apply to court for a "judicial veto". The CA granted the parent's appeal
against the order and instead adjourned theapplication for an interim care
order with liberty to apply on short notice to the parents. The CA did not
agree with the appellants that the threshold had not been crossed.
Theyallowed the appeal on the basis that the Judge in granting the order had
not considered, having once found the threshold to have been crossed, gone
on to consider the right order to make. Particularly given the effect of
Article 8 ECHR, there is a critical judicial task between finding the
threshold to have been met and endorsing the making of a care order. The
Judge should have put the burden on the authority to apply to remove the
children rather than on the parents to veto such a move. HUMAN RIGHTS
Venema v The Netherlands (2003) 1 FLR 552 ECHR Doctors who suspected the
mother of a young baby of suffering from MSBP made their suspicions known to
the Child Welfare Board (duties similar to the statutory duties of local
authorities under the Children Act) who advised them to discuss their fears
with the parents. The doctors did not do so. Further suspicions led to
medical reports being submitted by the hospital to the CWB which immediately
applied for a supervision order and an order requiring the baby girl to be
placed away from her parents. The application was heard and the orders made
without the parents having any knowledge of the doctors' fears, of the
applications or of the hearing. Provisional orders were extended and the
baby was away for her parents for 5 months before further reports concluded
without reservation that she should return home. The European Court declared
that there had been a violation of Article 8 of the Convention. The essence
of the parents' case was that they were at no stage prior to the making of
the provisional order consulted about the concerns being relied on nor were
they given the opportunity to contest the reliability of the information
being compiled on them. The court did not accept the explanation for the
lack of openness that the parents were likely, if involved, to act
unpredictably, especially as the baby was safe in hospital at the time of
the applications to court. The court found that it was crucial for the
parents to be able to put forward at some stage before the making of the
provisional order their own point of view.Re G (Care: Challenge to Local
Authority's Decision) (2003) 2 FLR 42 FD (Munby J) Care orders were made on
the basis of rehabilitation. Those care plans were later changedin the face
of concerns expressed by the local authority staff at a meeting to which the
parents were not invited. Once notified of the new plan, the parents -
unable to obtain copies of the minutes of the meeting - applied to the court
for revocation of the Care Orders and orders under s7 HRA preventing the
removal of the children from their care. Although the LA continued to fail
in its duty to provide relevant minutes, it did eventually revert to
rehabilitation plans which were acceptable to the parents and the guardian.
Granting permission to the parents to withdraw their applications, Munby J
emphasised that Article 8 afforded protection to parents not only
substantively in respect of inappropriate state interference, but also
procedurally. It was critical that local authorities involve parents in the
decision making process - and enable them to be involved effectively. It
should ensure that clear balanced coherent minutes are kept of
decisionmaking meetings which can then be disseminated to all concerned.
Parents in the position of these parents have an effective remedy available
under the HRA for the breach by the LA of either the substantive or the
procedural requirements of Article 8 ECHRRe L (Care Proceedings: Human
Rights Claims) (2003) 2 FLR 160 FD (Munby J) In care proceedings before the
FPC the LA had eventually decided on a care plan of adoption. The mother of
the little boy L wished to challenge the care plan and so she applied for
the proceedings to be transferred to the High Court where she invited the
court to exercise its inherent jurisdiction to compel the LA to change its
care plan or to provide a remedy under the HRA. Only this element of the
application was transferred up; the substantive care proceedings remained
listed for hearing in the FPC. Munby J found that the mother's application
could be granted only in either JR or HRA applications. The FPC had
jurisdiction under the HRA and the proceedings should nothave been
transferred to the High Court. He emphasised the distinction to be drawn
between those cases in which care proceedings had come to an end where
freestanding applications under s7(1)(a) HRA were appropriate and those
cases where care proceedings were ongoing where s7 provided an appropriate
remedy within the care proceedings themselves. These should be dealt with in
the care proceedings in the court hearing the care proceedings and not as a
discrete issue separated from the rest. He stressed that the reason why it
is critical to use the correct procedure is so that any delay in the hearing
of the substantive application is avoided. JUDICIAL REVIEWRe M (Care
Proceedings: Judicial Review) (2003) 2 FLR 171 QBD (Munby J) Learning that a
local authority planned to remove their baby at birth (contrary to an
earlier indication that it would pursue a residential assessment of parents
and child together), parents via judicial review sought an injunction
restraining the authority from commencing emergency protection or care
proceedings. Such an application was surely doomed to failure. Munby J duly
rejected the application. He found that· Given the background in this
particular case it would not be possible to argue that the issue of
proceedings was unreasonable;· The parents' remedy was to defend those
proceedings;· It was necessary to be extremely cautious about using judicial
review to prevent the commencement of what were on the face of it proper
proceedings in a court with jurisdiction to hear those proceedings· The
removal of a baby at birth was however draconian requiring exceptional
justification and where the parents are entitled to prior notice;· If a baby
is removed, then at a minimum the authority should provide extremely
generous contactR (W) v Leicestershire County Council (2003) 2 FLR 185 |QBD
(Wilson J) A foster mother wished to adopt twins placed with her. Before she
could do so the LAremoved the twins from her care. She could not then apply
in her own right for an adoption order and so she sought permission to apply
for judicial review of the decision to remove the children on the basis that
there had been insufficient consultation and that the removal was intended
to prevent her adoption application rather than to further the children's
best interests. Wilson J refused her permission to apply. He found that no
court could say that the decision to remove the twins was not welfare based,
and there had been sufficient consultation. As Wilson J noted in his
judgment, it is very hard for foster parents to challenge decisions made by
the local authorities which have placed the child with them [191]
Ancillary Relief Costs Nicholas Cusworth2 October 2003Continuing
Professional Development SeminarANCILLARY RELIEF COSTSNorris, Haskins & the
Future1. The Past'My observation that there was no difference in principle
between the failure of the payer in family cases to meet the sum awarded by
the court and the failure to reach the payment into court in civil
proceedings is to be seen as applicable to the Gojkovic (No. 2) situation of
only one offer and no opportunity to counter-offer. I am somewhat dismayed
to learn that it may have been taken far more broadly by the legal advisers,
thereby ignoring the significant importance of the need for a counter-offer
and for genuine negotiation by both parties. As I said, in the passage set
out above, the starting point is the offer by the paying party but the
absence of a counter-offer may well be reflected in costs.' Per Dame
Elizabeth Butler-Sloss P. in Norris/Haskins, at para. 141.1 So, by that
passage, we have all learned definitively what must have been increasingly
clear to us as time has passed since the decision in White, and
proportionate division in entitlement based cases has become the order of
the day: namely that the approach to costs in ancillary relief cases where
funds were available was going to be in for a thorough overhaul.1.2 What
perhaps we could not have foreseen, is that we had all been misapplying the
landmark case of Gojkovic (No. 2). That case should never have been taken as
authority for the proposition that the husband who doesn't offer enough pays
costs in most circumstances. How could we all have got is so wrong (and with
us the judges of the Family Division, circuit judges, district judges and
deputies)?1.3 The answer lies in a careful reading of Gojkovic (No. 2), a
study of the ancillary relief rules which have sought to follow that
judgment, consideration of the impact of the CPR, and the changing approach
to responsibility in ancillary relief cases in the 3 years that have
followed the House of Lords decision in White.1.4 Gojkovic (No. 2) [1992]
Fam. 54. It should always be remembered that in Gojkovic, the husband
disclosed late and offered even later. Ward J. at first instance found it
not unreasonable for the wife not to have made a counter-offer in the
circumstances. All that the President went on to say in that judgment has to
be seen in that context. When the husband's team (lead by Nicholas Wall QC)
brought up the lack of counter-offer in the court of Appeal, they were
firmly squashed by reference to that finding.1.5 What Butler-Sloss LJ. (as
she then was) actually said was: 'But the starting point in a case where
there has been an offer is that prima facie, if the applicant receives no
more or less than the offer made, she/he is at risk not only of not being
awarded costs, but also of paying he costs of the other party after
communication of the offer and a reasonable time to consider it...I cannot
for my part see why there is any difference in principle between the
position of a party who fails to obtain an order equal to the offer made and
pays the costs, and a party who fails by the offer to meet the award made by
the court. In the latter case prima facie costs should follow the event, as
they would do in a payment into court, with the proviso that other factors
in the family division may alter that prima facie position.'1.6 The 2
positions being compared are:1) A party who rejects a successful Calderbank,
and2) A party whose best offer is less advantageous to the other side than
the Court's award.1.7 Of course, if this analysis is referred to the facts
of Gojkovic (No. 2), then - · When only one side has offered, · and the
other side has been found not unreasonable in not responding, · and, if the
only offeror is short of the mark, · then he (as he did) must pay. 1.8 In
effect, because of the husband's late disclosure and offer the wife was
deprived of the chance to negotiate. She is therefore spared the need to
make an offer in terms of the award sought. It is assumed for her that she
would have done so. In effect, she is awarded 'a penalty try.'2. Family
Proceedings Rules 19912.1 Soon after Gojkovic (No. 2) came the FPR 1991. 2.2
So soon indeed that when the original Rule 2.69 was drafted, it simply
applied CCR Order 11 rule 10 to ancillary relief proceedings in a county
court. O.11 r.10 permitted the court to take Calderbank letters into account
in the exercise of its discretion. 2.3 R.2.69 simply obviated the
requirement to file the offer at court. The lawyers were thus left unhelped
by the rules to do their best with the interpretation of authority. 2.4 In
the era of reasonable requirements, when wives got what they needed, and
not, despite trying sometimes, what they wanted - costs orders against
husbands (that is against wealthy men who hadn't offered enough) were
usually fair enough. So the dictum in Gojkovic became a convenient peg on
which to hang the practice that husband's who didn't beat their own offer
should pay. 2.5 Mrs. Gojkovic hadn't made an offer. Butler-Sloss LJ. had
found her husband liable to pay her costs because he had offered too late
and because hadn't offered her enough. The above cited passage was easily
interpreted to require any husband whose offer proved insufficient as liable
to pay, regardless of the wife's negotiating position.2.6 In the era of
reasonable requirements, no one was brave enough to throw good money at the
Court of Appeal to challenge that interpretation.2.7 To this scenario was
then added (almost unnoticed by most family practitioners) the advent of the
CPR, as applied by FPR r.10.27, with effect from 26th April 1999:FPR 10.27
Costs(1) Order 38 of the County Court Rules 1981[5] and Order 62 of the
Rules of the Supreme Court 1965[6] shall not apply to costs in family
proceedings, and CPR Parts 43, 44 (except rules 44.9 to 44.12), 47 and 48[7]
shall apply to costs in those proceedings, with the following modifications
- (a) in CPR rule 43.2(1)(c)(ii), "district judge" includes a district judge
of the Principal Registry of the Family Division;(b) CPR rule 44.3(2) (costs
follow the event) shall not apply.CPR 44.3 Court's discretion and
circumstances to be taken into account when exercising its discretion as to
costs(1) The court has discretion as to -(a) whether costs are payable
by one party to another;(b) the amount of those costs; and(c) when
they are to be paid.(4) In deciding what order (if any) to make about costs,
the court must have regard to all the circumstances, including -(a) the
conduct of all the parties;(b) whether a party has succeeded on part of
his case, even if he has not been wholly successful; and(c) any payment
into court or admissible offer to settle made by a party which is drawn to
the court's attention (whether or not made in accordance with Part 36).(Part
36 contains further provisions about how the court's discretion is to be
exercised where a payment into court or an offer to settle is made under
that Part.)(5) The conduct of the parties includes -(a) conduct before,
as well as during, the proceedings, and in particular the extent to which
the parties followed any relevant pre-action protocol;(b) whether it
was reasonable for a party to raise, pursue or contest a particular
allegation or issue;(c) the manner in which a party has pursued or
defended his case or a particular allegation or issue;(d) whether a
claimant who has succeeded in his claim, in whole or in part, exaggerated
his claim.(6) The orders which the court may make under this rule include an
order that a party must pay -(a) a proportion of another party's
costs;(b) a stated amount in respect of another party's costs;(c)
costs from or until a certain date only;(d) costs incurred before
proceedings have begun;(e) costs relating to particular steps taken in
the proceedings;(f) costs relating only to a distinct part of the
proceedings; and(g) interest on costs from or until a certain date,
including a date before judgment.(7) Where the court would otherwise
consider making an order under paragraph (6)(f), it must instead, if
practicable, make an order under paragraph (6)(a) or (c). 3. Ancillary
Relief Rules3.1 First introduced as 'the Pilot Scheme' the new rules sought
to front load ancillary relief costs with 2 results. (1) A lot more cases
settled.(2) Lawyers tended to get paid more for cases that were always going
to settle.(3) Lawyers got paid less for cases that would have previously
fought to the door of the court but now settled at the FDR.3.2 The old rule
2.69 disappeared, to be replaced with a new rule designed to give teeth to
the Calderbank process, with effect from 5th June 2000. In order to effect
this, the draftsman (I think pretty clearly) went back to the leading
authority (Gojkovic No.2). 3.3 And this is what he produced:FPR 2.69 Offers
to settle(1) Either party to the application may at any time make a written
offer to the other party which is expressed to be 'without prejudice except
as to costs' and which relates to any issue in the proceedings relating to
the application.(2) Where an offer is made under paragraph (1), the fact
that such an offer has been made shall not be communicated to the court,
except in accordance with rule 2.61E(3), until the question of costs falls
to be decided. 2.69A [Repealed (24.2.03) - interpretation of Base
Rate]2.69B Judgment or order more advantageous than an offer made by the
other party(1) This rule applies where the judgment or order in favour of
the applicant or respondent is more advantageous to him than an offer made
under rule 2.69(1) by the other party.(2) The court must, unless it
considers it unjust to do so, order that other party to pay any costs
incurred after the date beginning 28 days after the offer was made. 2.69C
[Repealed (24.2.03) - where both applicant and respondent have made offers
and one party has beaten his, he may apply for interest/indemnity costs. NB
- this power in addition to powers under 2.69B]2.69D Factors for court's
consideration under rule 2.69B(1) In considering whether it would be unjust,
or whether it would be just, to make the order referred to in rule 2.69B,
the court must take into account all the circumstances of the case,
including -(a) the terms of any offers made under rule 2.69(1);(b)
the stage in the proceedings when any offer was made;(c) the
information available to the parties at the time when the offer was made;(d)
the conduct of the parties with regard to the giving or refusing to give
information for the purposes of enabling the offer to be made or evaluated;
and(e) the respective means of the parties.3.4 Remember the 2 cases
posited by Butler-Sloss LJ. -i) a party who fails by the offer to meet the
award made by the court - r.2.69B -other party gets costs (unless unjust) as
from 28 days after offer made.ii) a party who fails to obtain an order equal
to the offer made and pays the costs - r.2.69C - as above, with potential
for indemnity assessment and interest.3.5 But of course, by closely
following the analogy in Gojkovic, the draftsman has not taken into account
the fact that there was no counter-offer, or need of a counter-offer in that
case. r.2.69B works perfectly if there an onus only on one party to make an
offer, and he fluffs it.3.6 But as we remember, Butler -Sloss LJ. was at
pains to point out in that case that in the usual run of things there is a
duty to negotiate on both parties. How then can r.2.69B be applied?3.7 This
was the problem that Mr. Mostyn QC and Mr Marks QC were wrestling with in GW
v. RW [2003] 2 FCR 289. As Mr. Mostyn said:'83. Thus we are left only with
Rule 2.69B which appears to contemplate the position where one party alone
has made a Calderbank offer. Where the position is (as here) that each party
has made such an offer, the rule becomes unworkable. I agree with Mr Marks'
submission that The surviving rule 2.69B is incomprehensible. It is
impossible to divine what the draftsman had in mind. Very often in a case
such as this the order ends up between the offers - in which case, under the
rule, both parties pay "the costs". 3.8 With impeccable timing, these rules
then came into force just 4 months before the House of Lords delivered
judgment in White, and of those months 2 were the summer vacation. These
rules were sculpted (rather too closely) around the old leading authority -
but though the rule was new, would the authority upon which it was
erroneously based survive the era of entitlement and the yardstick of
equality?3.9 The answer initially was undoubtedly yes. Indeed, in the two
cases under appeal in June, both judges had made it clear at first instance
that they considered that the principle that the husband who has not offered
enough pays was still unimpeachable law.3.10 Mr. Blair QC in Haskins at
first instance went as far as to say:'So, pursuant to the conventional, one
could almost say axiomatic, principle (and I have in mind in particular such
decisions as Gojkovic v. Gojkovic (No. 2)) the husband being offeror, the
wife offeree, and his offers in their entirety being well short of that
which has been ordered, the wife is entitled in justice to her costs.'3.11
Bennett J. in Norris at first instance responded to the 'simple submission'
by the wife's counsel (Tim Scott QC) that the judge's order had comfortably
beaten the Calderbank offer, by saying: 'I am with you'.So, what happened
next? 4. Norris v. Norris / Haskins v. Haskins [2003] EWCA 1084 - Judgment
28th July 2003.4.1 The first point of note is that both appellant husbands
were unsuccessful. But do not take from this that the interpretation of
Gojkovic (No. 2) adopted by the judges at 1st instance has emerged
triumphant. Far from it.4.2 Second, although Mrs. W (of GW v. RW fame)
withdrew her appeal against the failure of Mr. Mostyn QC to make a costs
order in her case, (in effect an appeal from the other side to those in the
two cases which were heard,) she is unlikely to be cursing herself for doing
so, even though Mr. Mostyn takes a fair amount of stick in the judgment.4.3
Thirdly, although Mr. Mostyn's name appears in the judgment more often (I
suspect) than any other counsel or deputy judge, he did not appear in the
court of appeal nor was his decision the subject of one of the appeals -
truly a case of 'Hamlet without the prince'.4.4 Indeed, his ears must have
been burning. In commenting on the passage from his judgement in GW v. RW
cited above, Butler Sloss LJ. said (at para.21):'In any event it is not for
judges to deem a rule or a section of an Act of Parliament incomprehensible
or unworkable. If passed by Parliament, whether it be primary or secondary
legislation, it is the duty of the court to do its best to make sense of it.
Judges do not have the right to dump the awkward passage wholesale. In my
judgement, therefore, Mr. Mostyn QC in his judgement in GW v. RW (above) was
wrong to treat the rule as incomprehensible and to substitute his own
approach by making a decision which was not based on the existing rules.'4.5
And to Thorpe. LJ. (para.62):Thus I do not consider that Mr Mostyn was right
to reject the Rules as being incomprehensible or unworkable and develop from
a clean sheet a new code. The courts must continue to determine costs
applications in accordance with the Rules. However within the broad
discretion that the Rules confer the judge is of course entitled to give due
weight to the general evolution signalled by Mr Mostyn's decision in GW v RW
and the report of the sub-committee.4.6 So how should the existing rules be
applied? Per the President (para.24):Rule 2.69D and its effect on rule 2.69B
merits closer consideration. In rule 2.69D the court must take into account
all the circumstances of the case including the list set out therein. This
includes, in (a), the terms of any offers. That must include counter-offers.
It also requires, in (e), the court to take into account the respective
means of the parties. In my view, (e) enables the court to look at the whole
position of the parties after the order has been made and see whether costs
may fall disproportionately on one party rather than the other. It may
enable a judge or district judge to mitigate, to some extent, the
uncomfortable consequences of a Calderbank situation in a case where there
is some but not a substantial amount of property and/or money to divide and
costs will have to be paid from the available capital. The judge, in such a
case, may make an order, often just enough to buy a suitable property for
the wife, and then find that effect of the Calderbank offers may totally
destabilise his order. Equally, of course, the Calderbank process must have
teeth which can bite. Both parties are under an obligation to engage in
genuine negotiation with the other side, otherwise one party may have to be
penalised in costs. In medium asset cases I do not underestimate the
difficulties. Rule 2.69D does however give the court a greater latitude in
making costs orders than may so far have been widely recognised.4.7 So, the
court must look to see if costs 'may fall disproportionately on one party',
when deciding whether it is just to make an order for costs against a party
whose Calderbank is insufficient. This will be important especially if money
is tight.4.8 Also, and importantly, the court must consider the terms of any
counter offers before deciding whether it is just to make an order for
costs. So, if one is judging the sufficiency of an offer which has fallen
just short of the mark, and the terms of the wife's counter offer indicate
that she was a lot further from the target area than the husband - it may
well not be just to make the order against him.4.9 When one considers the
wife's offer in that situation, where she is a lot further from the mark
than the husband, her defence may not be as strong - she may need to fall
back on arguments of disproportionality. 4.10 Per the President again
(para.25):In my judgment, therefore, rules 2.69B and 2.69D can be managed
and, where the court considers it unjust to apply rule 2.69B, it can make a
different costs order to reflect the justice of the case. Mr Pointer QC, in
his thoughtful and comprehensive skeleton argument, sets out in a bar chart
a series of permutations arising from a court order to a wife of £1 million.
I take one hypothetical situation. If a husband offers £800,000 and the wife
asks for £1,200,000, neither has achieved the figure of the order and each
is wide of the mark by the same amount. In broadly comparable situations,
not tied to exact percentages since each case must be decided on its own
facts, the result might be termed, as Mr Cusworth for Mr Norris suggested, a
draw. In my view, in some offer and counter-offer cases, the proper approach
might well be, under the present procedure, to make no order as to costs and
leave each party to pay his/her own costs.4.11 Here, the court considers the
draw. This situation, where each is broadly equally close is one where 'the
proper approach might well be, under the present procedure, to make no order
as to costs' 4.12 The FPR only cater for costs oncle a Calderbank has been
made. The President goes on at para.26:A complication in sub-rule 2.69B(2)
is that the order for costs dates from 28 days after the (relevant) offer
was made. Neither judge in the two cases before us had his attention drawn
to that part of the sub-rule. It seems to me, however, that the costs prior
to the relevant offer are to be dealt with in the exercise of the court's
discretion. 4.13 So, in dealing with costs incurred before the offers are
made, the court's discretion is to be applied, and that discretion is
exercised in the light of the relevant provisions of the CPR. This, from
Thorpe LJ. at para.61:Whilst I am in complete agreement with the direction
that Mr Mostyn sought to take in his costs judgment in the case of GW v RW I
cannot agree his route. As a matter of principle the determination of any
question of costs in ancillary relief proceedings must be governed by CPR
44.3 together with FPR 2.69 in its current form, namely 2.69, 2.69B and
2.69D. The harmonious integration of these separate codes is in my judgment
best achieved by treating CPR 44.3 as covering all cases. If in a specific
case no Calderbank offer has been written then the judge will apply CPR 44.3
without more. In a case in which a Calderbank offer or offers are relied
upon then I consider that the judge should apply CPR 44.3 notionally
inserting into the exercise FPR 2.69 in substitution for CPR 44.3(4)(c).4.13
The president expressly agrees with this paragraph at para.27, and
continues:The exercise which the court undertakes under CPR 44.3(4) requires
consideration of all the circumstances, including the parties' respective
conduct and success and, under subsection (4)(c), any offers made. In so far
as the court is looking at a Calderbank type case, the exercise under
subsection (4)(c) is better dealt with under the fuller provisions to be
found in FPR rules 2.69, 2.69B and 2.69D. Reading the two sets of rules
together, the court has a general and wide discretion to depart from the
starting point of 'winner takes all'. The Present5.1 So what for the moment
does that mean for the incidence of costs in affluent ancillary relief
cases?5.2 Until the first appointment5.2.1 CPR 44.3 will apply (see above) -
generally a discretion exercisable in the light of all the
circumstances.5.2.2 Circumstances include the conduct of the parties (CPR
44.3(4)(a))5.2.3 Conduct includes the extent to which the parties have
followed any relevant pre-action protocol, reasonableness in and manner of
raising or contesting any particular issue, and whether a successful claim
has been exaggerated (CPR 44.3(5))5.2.4 Plenty to argue on costs at a first
appointment, especially as by CPR 44.3 (6)(d) the court can make an order in
relation to costs incurred before proceedings have begun5.2.5 Generally,
where both have acted appropriately up to that point - before any Calderbank
can be considered - no order will be a frequent order (or perhaps reserved
to await answers to questionnaire).5.2.6 Costs in the application may well
be a less popular order at this stage, as paying parties will want to
distinguish later between the costs incurred up to this point and the costs
incurred once negotiations have begun.5.2.7 See here the very recent
decision of Charles J. dealt with below re determining who should pay costs
at an early stage (Stop Press p.16). 5.3 From first appointment to the
outset of negotiations5.3.1 Again, CPR 44.3 will apply, as above, and no
order until the end of the discovery process is likely to be the most
frequent order provided the discovery process goes smoothly (and subject to
the remarks of Charles J. - as to which see below).6 From the start of
negotiations to the point when one party makes a sufficient offer, or to
trial if no such offer is made6.1 CPR 44.3 will again apply, but once
Calderbanks can properly be exchanged - ie. between the answering of
questionnaires and the FDR, both parties are prima facie at risk on costs if
they don't make a sufficient offer, either from 28 days after they make an
insufficient offer (FPR2.69B), or if they make no offer at all when it is
reasonable for them to do so - see eg. The President at para.24 - 'Both
parties are under an obligation to engage in genuine negotiation with the
other side, otherwise on party may have to be penalised in costs'.6.2 In
deciding whether to make an order for costs as a result of an unsuccessful
Calderbank offer, the court considers (FPR 2.69D): 6.2.1 the terms of any
other Calderbank offers; 6.2.2 the stage when any offer was made; the
information available when any offer was made; 6.2.3 conduct re giving or
refusing information for the purposes of enabling the making or evaluating
of any offer; 6.2.4 and the respective means of the parties.6.3 In other
words, if a Calderbank is insufficient because the other side have given
inaccurate or incomplete disclosure, or because it is made too early and is
undermined by subsequent unforeseeable developments, it may well not be
penalised in costs; similarly, if such an order would have a
disproportionate financial effect it may not be made.6.4 If both have got
their offer slightly out but both have had a fair stab, and are reasonable
proximate by the final hearing, then no order throughout may well be the
appropriate order - para.25 of the President's judgement above.6.5 If the
margin of error differs markedly, or by reference some other factor referred
to in FPR 2.69D, the court determines to make a costs order of some sort,
then by CPR 44.3(6) it can make an order for any of the following: 6.5.1 a
proportion of the costs; 6.5.2 a stated amount; 6.5.3 costs from a certain
date; 6.5.4 costs incurred before proceedings; 6.5.5 costs re particular
steps taken in the proceedings; 6.5.6 costs re a distinct part of the
proceedings; 6.5.7 interest from or until a certain date, which may be
before judgment.7 From the making of a sufficient offer until trial7.1 FPR
2.69B does not apply to this situation (FPR 2.69C, which did, was repealed
with effect from 24th February 2003 - and provided for interest or indemnity
costs in this situation.)7.2 CPR 44.3(2)(a) - the general rule that an
unsuccessful party will be ordered to pay - is disapplied in family
proceedings by the Family Proceedings (Miscellaneous Amendments) Rules 1999,
r.4(1)(b).7.3 By CPR 44.3(4)(c), in deciding what order to make about costs
the court must have regard to all the circumstances including any admissible
offer to settle by a party which is drawn to the court's attention.7.4 At
the same time, the court must consider the parties' conduct - CPR
44.3(4)(a), conduct as defined in CPR 44.3(5) - see above - and whether or
not a party has succeeded on part of his case, even if not wholly successful
- CPR 44.3(4)(b).7.5 Although FPR 2.69C has gone, the power in CPR
44.3(6)(g) to order interest on costs remains, in the right case. 8. Stop
Press8.1 New Decision by Charles J. - judgement date 14.8.038.2 Effectively
a gloss on Haskins/Norris - to be reported in anonymised form8.3 The judge
proposes 'a practical approach in many cases'8.3.1 To ask who would or
should have paid the costs if agreement had been reached at an early stage
(the judge sees the answer as determining who should pay prima facie up to a
certain point).8.3.2 To identify the issues not in dispute at trial.8.3.3 To
identify the issues in dispute and consider their impact on costs - time
taken on each/ who won/ nature of issues and of award8.3.4 Consider the
Calderbank offers and apply FPR 2.698.3.5 Consider the matters in CPR
44.38.3.6 Consider how the costs of both parties have been affected by the
disputed issues8.3.7 Remember the court's broad judicial discretion 9. The
future9.1 Per The President - para.28 of Norris/HaskinsThe difficulties
which undoubtedly arise from rule 2.69, set out by Mr Mostyn with clarity in
his judgment in GW v RW, do now urgently require a rethink and it is time
for further amendments to the rules governing awards of costs in ancillary
relief cases. The present rules may affect disproportionately the payers in
big money cases. The effect of costs is however to be felt across all
ancillary relief claims. Although I have criticised Mr Mostyn for the
cavalier way in which he dismissed the Family Proceedings Rules, his
approach to the reconsideration of costs requires careful thought, and I
agree with the overall direction of his judgment for the future.9.2 Letter
received from the Senior Costs Judge by the President on the 27th January
2003: ".The purpose of this letter is to suggest that it may be worth giving
serious thought to doing away with fee shifting in family proceedings. The
Family Proceedings (Miscellaneous Amendment) Rules 1991 disapply CPR 44.3(2)
(costs follow the event). It is therefore a relatively short step to
providing that in family proceedings no order for costs will be made unless
a particular party has behaved in such an unreasonable manner that the court
feels that a sanction should be imposed. I would suggest that if this idea
were to be adopted the court making such an order should decide what amount
should be paid by way of costs there and then. The level of venom in
detailed assessment in family proceedings is such that I am firmly of the
view that the removal of costs as an area of conflict would have an overall
beneficial effect. If costs were never in issue the heat would be taken out
of the situation far more quickly and any incentive to legal representatives
to pursue remedies over vigorously in the hope of recovering greater costs
would also disappear." 9.3 President's Advisory Committee on Ancillary
Relief:9.3.1 Terms of reference for their report 'What changes (if any) in
the rules relating to costs in ancillary relief proceedings are necessary or
desirable to reflect developments in principles and practice in the light of
developments in civil litigation'9.3.2 The problems identified as being
caused by the present rules 9.3.2.1 Difficult to specify the event that
costs should follow - Gojkovic from the era of reasonable requirements - now
inappropriate9.3.2.2 Court assistance in reorganising finances should not of
itself imply blame on either party9.3.2.3 FPR 2.69B unworkable where both
parties have made offers, so of little value9.3.2.4 The Calderbank process
requires the parties to bet on the result of a case, which can seem simply
unfair9.3.2.5 In low value cases costs orders can have a disproportionate
effect9.3.2.6 Costs orders can increase acrimony, and obscure the fact that
parties are spending their own money9.3.3 Their Conclusions9.3.3.1 Costs
following the event is no longer appropriate and should be abandoned9.3.3.2
If replaced, the new principle should be either each party bear their own
costs, or all costs paid from assets (before division)9.3.3.3 Must be a
residual power to make an order against a party who has acted
unreasonably9.3.3.4 Without prejudice offers should not be taken into
account when deciding costs - all offers should be open. Without prejudice
correspondence no longer admissible.9.3.3.5 Reasonable costs in future to be
included as part of assets and liabilities - with schedules exchanged for
comment and decision on a summary basis. Costs orders could then be made as
part of main judgement.9.3.4 ProposalsAustralian practice contained in s.117
of their Family Law Act 1975 - basic 'no order' regime, but with
jurisdiction to make an order where one party has acted unreasonably, to be
taken as starting point with modifications.The proposed new rule (to replace
all existing rules)[See Annexure].NICHOLAS CUSWORTH1 HARE COURT1st October
2003
Ancillary Relief Update Philip Moor QC16 October 2003Continuing Professional
Development SeminarTHE SECTION 25 MATRIX RELOADED -RECENT DEVELOPMENTS IN
ANCILLARY RELIEF 1. The case of Mr Agent Smith Mr Agent Smith has
instructed you to represent him in his divorce proceedings from Mrs Agent
Smith. They married in June 1995, having cohabited since the late 1980s.
They have two children, aged 10 and 8. You are told that there are only
really three assets in the case. The first is the former matrimonial home,
which is worth some £500,000 but is subject to a mortgage of (£325,000).
The second asset is the pension fund, with a CETV of £225,000. The third is
the shares in the family business, the Neo Company, which specialises in
computer games. Mr Agent Smith tells you that he owns all the shares in the
Neo Company. The company was set up after he started to cohabit with his
wife but before they married. His wife is a director and did some book
keeping work for the company in the early years but has had no involvement
since the birth of the children. The company was valued at £2,250,000 a
year ago, when consideration was being given to flotation on the Alternative
Investment Market ("AIM"). It has since suffered from real problems as a
computer game on which great hopes were riding has "bombed" in the shops and
a second one has had serious production difficulties. He doubts whether the
shares are now worth £500,000. He tells you that he has worked 70 hours per
week in the business for the last ten years. A friend of his, who is a
Judge, told him a year ago that he wouldn't have to pay half as he had made
a "stellar contribution" and that the company was quite safe from his wife's
clutches. The company owns some land in Morphew Lane, from which it trades.
His wife is convinced that it is worth many millions due to the possibility
of obtaining planning permission to build executive homes. Mrs Agent Smith
has a report from a planning adviser, Mr Trinity, which says that there is
no prospect of planning permission at present as the land is in the Green
Belt, although that might change in about ten years time, as the Local
Authority may need to build a new school in the area by then and might be
prepared to grant planning permission for 1,000 new homes in exchange for
the developers building the school. Mr Agent Smith dismisses this
suggestion as being "pure fantasy". His bank manager, Mr Cypher, has
written a letter saying that there is no liquidity in the business at all.
Finally, Mr Agent Smith read on the front page of the Times that the law had
changed to make everything fair. He is pinning great hopes on this.Mr Agent
Smith asks you the following questions:-(a) Has he made a stellar
contribution sufficient to reduce the wife's share to less than 50%? If not,
what would he have to do make his contribution stellar?Cowan -v- Cowan
[2001] 2 FLR 192 - per Thorpe LJ:- ".fairness certainly permits and in some
cases requires recognition of the product of genius with which one only of
the spouses may be endowed" - Paragraph [67]. Lambert -v- Lambert [2003] 1
FLR 139 - per Thorpe LJ:- "Having now heard submissions, both full and
reasoned, against the concept of special contribution save in the most
exceptional and limited circumstance, the danger of gender discrimination
resulting from a finding of special financial contribution is plain. If all
that is regarded is the scale of the breadwinner's success, then
discrimination is almost bound to follow since there is no equal opportunity
for the homemaker to demonstrate the scale of her comparable success." -
Paragraph [45].The House of Lords dismissed the husband's appeal in Lambert
and the wife's renewed appeal in Cowan on the same day.However, note that in
Lambert, Thorpe LJ does say at Paragraph [46] that:-"special contribution
remains a legitimate possibility but only in exceptional circumstances.In
the course of argument, I suggested it might more readily be found in the
generating force behind the fortune rather than the product itself. A
number of hypothetical examples were canvassed ranging from the creative
artist via the superstar footballer to the inventive genius who not only
creates but also develops some universal aid or prescription. All that
seems to me to be more safely left to future case-by-case exploration." (b)
Is the length of the marriage a reason for departureIn GW -v- RW [2003] 2
FLR 108, Nicholas Mostyn QC awarded a wife 40% of the assets. One of his
reasons for justifying departure from equality was the length of the
marriage. The court could not ignore the fact that section 25 specifically
requires the court to have regard to the duration of the marriage. He said
at Paragraph [40]:-"It seems to me that the assumption of equal value of
contribution is very obvious where the marriage is over 20 years. For
shorter periods, the assumption seems to me to be more problematic. I am
not attracted to a formulaic solution, as suggested by John Eekelaar, but I
do in essence accept his proposition that the entitlement to an equal
division must reflect not only the parties' respective contributions but
also accrual over time." (c) Does the period of cohabitation count?
Again, see GW -v- RW [supra] at Paragraph 33:-"where a relationship moves
seamlessly from cohabitation to marriage without any major alteration in the
way the couple live, it is unreal and artificial to treat the periods
differently. On the other hand, if it is found that the pre-marital
cohabitation was on the basis of a trial period to see if there was any
basis for later marriage, then I would be of the view that it would not be
right to include it as part of the "duration of the marriage".(d) What about
inherited assets? Norris -v- Norris [2003] 1 FLR 1142, Bennett J at
Paragraph [67]:-"..if the inherited assets of the wife are to be taken into
account as part of her contribution to the marriage and the family, which,
in my judgment, they must, then there is no reason to exclude them from the
wife's assets when performing the discretionary exercise. For to do so
would mean the wife could have her cake and eat it. She gets credit for her
contribution from the inherited assets and further credit if the value of
the inherited assets are deducted from the total of her assets before
division. That would be tantamount to double counting and thus unfair."On
the other hand, money which had been recklessly overspent by the husband,
amounting to £250,000 was added back into his assets, prior to the equal
division. But compare the approach in H -v- H [2002] 2 FLR 1021, where
Peter Hughes QC excluded from the pool of assets to be divided equally an
American inheritance of the husband's which was kept separate and apart and
not drawn on, the husband saying that he saw it as something to pass on to
his children.(e) What about earning capacity acquired before the marriage?
In GW -v- RW [supra], Nicholas Mostyn QC said at Paragraph [51]:-"H also
brought to the marriage a developed career, existing high earnings and an
established earning capacity. I cannot see why this should not be treated
as much as a non-marital asset as the provision of hard cash. In argument,
I suggested that H here was in terms of his career "fledged" at the time of
the marriage, rather than being the fledgling, which is so often the case.
Mr Marks said that his client was far more than fledged. He was fully
airborne. I tend to agree and in this aspect also I fond that H made a
contribution unmatched by any comparable contribution by W."(f) Is liquidity
relevant?In Cowan -v- Cowan [supra], per Thorpe LJ at [66]:-".had the wife
brought her claim to trial shortly after the final separation, the majority
of the family's assets would have been tied up in the private companies and,
in assessing the wife's entitlement, the judge would have had to have regard
to what cash could be withdrawn from the trading companies without
jeopardising their continuing trade"See also Singer J in F -v- F [2003] 1
FLR 847 - illiquidity was an extremely relevant factor when carrying out the
s25 exercise, not to be disregarded any more than the non-availability as
free capital of the bulk of a pension fund. The illiquidity of assets, even
very considerable assets, might make it unfair and unjust to impose the
clean break favoured by section 25A of the MCA. As the husband would, in
effect, be trading with part of the wife's share, the maintenance order
could be looked on in part as a dividend to her for the use of the capital
by the husband.(g) Is it unfair to give the wife the liquid assets and allow
the husband to retain the illiquid ones?See Wells -v- Wells [2002] 2 FLR 97;
Thorpe LJ at Paragraph [24]:-"Had the marriage survived, the family would
undoubtedly have shared adversity as it had shared prosperity.But the future
years look hazardous.In principle, it seems to us that the separation of the
family does not terminate the sharing of the results of the company's
performance.In [a clean break case], sharing is achieved by a fair division
of both the copper-bottomed assets and the illiquid and risk-laden assets."
(h) Should the wife receive shares in the husband's business? This has been
done in two cases. First, in G -v- G [2002] 2 FLR 1143, Coleridge J awarded
a wife some shares in the husband's property company to ensure broad
equality of both assets and risk. Second, in C -v- C [2003] 2 FLR 493, the
same judge varied a trust to award a wife 30% of the husband's shares (15%
of the company) in a private pharmaceutical company. He relied on the
potential value of the company and the part the wife had played and wanted
to continue to play in it. These considerations had to be balanced by the
fact that the husband played the leading role in the company's formation and
the fact that the wife would be having the security of the whole of the
matrimonial home. However, such solutions run completely counter to the
whole ethos of the divorce court over the last thirty years. The aim has
been to "separate" spouses, both physically and financially, in situations
where their marriages have failed. If the wife did not have shares in the
husband's business whilst they were happily married, is it really a good
idea to give her such shares following their divorce? It runs the risk of
further litigation (eg by an oppressed minority in the Companies Court).
What is to stop the husband simply putting the company into liquidation;
offering no warranties to a prospective purchaser and starting again?
Indeed, in this regard, note that in Parra -v- Parra [2003] 1 FLR 942,
Thorpe LJ said at [27]:-"As a matter of principle, I am of the opinion that
judges should give considerable weight to the property arrangements made
during marriage." If there is to be a transfer of shares between spouses,
see the Inland Revenue Note "Capital Gains: Transfer of Assets Under A Court
Order - Restriction of Gift Hold-Over Relief" [August 2003]. As from
31.07.02, transfers of business assets will be free of any immediate capital
gains tax consequences provided the Court makes an order which results in
the transfer of assets between the spouses. The transferee spouse will then
inherit the transferor's base cost for the purpose of CGT on any future
disposal of the asset. (i) Could Mrs Agent Smith get more than half? Charles
J had awarded a wife 54.3% of the assets in the case of Parra -v- Parra
[supra] as a result of his assessment that the husband's future prospects
were better than those of the wife.The Court of Appeal allowed the appeal
and divided the assets equally. Thorpe LJ thought the case "fundamentally
simple". The parties had owned everything jointly, including the company
shares and the land from which the company traded. Either it should all be
sold or the husband should buy out the wife's share but there was no
justification for her getting more than half, particularly when she was
going to be receiving liquid assets whereas he was likely to be saddled with
debt. The court should not adjust the division on the basis of speculation
as to what each may or may not achieve in the years ahead. Moreover, as
everything was being divided equally, the parties should each pay one-half
of the children's school fees. (j) Should Mrs Agent Smith have any sort of
charge in case the land is eventually developed? In Parra -v- Parra
[supra], Charles J gave the wife a charge for half of the net gain resulting
from any future residential development value of the land. The Court of
Appeal thought such an order highly exceptional and inconsistent with the
clean break provisions of section 25A. Although the prospects of development
were remote, if it occurred, the windfall would be huge. The husband had
accepted in evidence that it would be fair for the wife to benefit if it
ever occurred. The provision was therefore retained.Note - The husband
clearly had second thoughts. He immediately put the land on the market for
sale. When it failed to reach its reserve, he bought it back himself. In
doing so, he managed to avoid making any payment pursuant to the charge.If
you need expert evidence on the value of land or any other important issue,
note the Practice Direction re: single joint experts at [2003] 1 FLR 431.(k)
Does Mr Agent Smith have any prospect of obtaining a Mesher order?In B -v- B
[2003] 2 FLR 285, the marriage lasted less than a year, but there was a
child. The Deputy District Judge awarded the wife £175,000 to purchase a
house but declined to give the husband any deferred interest such as a
Mesher order. Munby J dismissed the husband's appeal. He rejected the
suggestion that a Mesher order would leave the wife in fear of constant
observation by the husband. However, such an order would still be wrong as
the wife had only a small prospect of generating capital in the years ahead
due to her commitment to the child, whereas the husband would be likely to
generate such capital. The advantage to the husband of the Mesher order
would be modest, whereas the burden to the wife would be significant. (l) Is
there a presumption of no order as to costs? First, the Family Proceedings
(Amendment) Rules 2003 repeals Rule 2.69C (indemnity costs/penal interest on
lump sum if you have beaten your own Calderbank offer). Norris -v- Norris;
Haskins -v- Haskins - Court of Appeal [28.07.03] - there is no presumption
at present of no order as to costs. Rule 2.69B applies until the rules are
changed or amended. Any injustice can be mitigated by use of Rule 2.69D,
which gives a general and wide discretion to depart from the starting point
of "winner takes all". You cannot avoid Rule 2.69B by not making any offers
as there is an obligation to engage in serious negotiation. The Court of
Appeal was attracted to the idea of a starting point of "no order as to
costs", particularly if the assets are being divided equally but referred
the matter back to the Rules Committee for further consideration. (m) Has
the law changed or is it about to change? Financial Provision on Divorce -
Clarity and Fairness; Proposals for Reform by The Law Society's Family Law
Committee is a very useful set of proposals to improve the operation of
ancillary relief work. The Times, however, got it completely wrong in June
2003 when the front page of the paper said that the law had changed. The
Report makes a number of recommendations. In particular, it proposes that
section 25 be amended to incorporate guidelines as to how the discretion
should be exercised to give greater certainty and clarity. The draft makes
a distinction between those cases where the assets exceed needs and those
where it does not. In the latter situation, housing the minor children must
be the first priority of the court.There are also proposals to reform
procedure; to permit interim lump sums and to allow pre-marital contracts.
2. The case of Mrs Jean Grey Mrs Jean Grey comes to see you in some
distress. She married her husband, Mr Rogue Grey in 1990. They have one
child, who lives with Mrs Grey. The marriage broke down in 1999 and Mrs
Grey presented a Petition that year. A Decree Nisi was pronounced but it
has never been made Absolute.The former matrimonial home is known as
Wolverine. It is a property worth around £350,000 but is subject to a
mortgage of £150,000. It is held in Mr Grey's sole name.Over the years, Mr
Grey has had all sorts of business interests, some of which have succeeded
and some of which failed. He claims to have no other assets, apart from a
pension fund with a CETV of £95,000. Unfortunately, he has been involved in
importing televisions into this country on which he did not pay the VAT.
The Customs and Excise have made a claim against him.His most recent venture
was with his girlfriend, Magneto, and was known as Cerebro. It failed last
year. He claims there were lots of debts, but Mrs Grey assures you that
Magneto is very wealthy and paid them all off. He then obtained a job
working for a local crook called Stryker, selling a children's toy, called
the Cyclops. He was still working for Stryker when the ancillary relief was
heard. He told the District Judge that he did not think the job would last
as the Cyclops was "imported rubbish". The District Judge rejected Mr
Grey's evidence about virtually everything. In particular, he made a
finding that there were no debts from the business, Cerebro. An order was
made transferring the matrimonial home to Mrs Grey and giving her
maintenance. Just as Mrs Grey's previous solicitors were about to get the
home transferred, Mr Grey made himself bankrupt, relying on a number of
"very dodgy debts". The trustee now says that the property will have to be
sold to discharge the debts. The house has gone up in value dramatically.
Moreover, Mr Grey has lost his job. He has told Mrs Grey that he intends to
apply to the court to set aside the order, as there has been such a huge
change in circumstances. Since he lost his job, he has not been paying the
maintenance. Mrs Grey's previous solicitors issued a Judgment Summons but
she has just received a letter from Mr Grey's solicitors saying that they
are applying to dismiss as it was issued on the wrong form. Mr Grey told
his wife, off the record, that Stryker has a new venture afoot. He wants to
"cut Mr Grey in" but only if Mr Grey is "free of any matrimonial problems".
To this end, Stryker would be prepared to pay some capital to Mr Grey to
enable him to pay Mrs Grey, but only if there is a clean break. She told
him she would like a clean break but he would have to pay off the mortgage
on her home as well as giving her enough to live on. Mrs Grey was told by
her friend, Mr Xavier, that her previous solicitors, Messrs Storm & Co, were
negligent as they should have applied to rescind the Decree Nisi and get her
a pension sharing order. Mr Grey's response was to say that he would
immediately apply for Decree Absolute.There have been six different hearings
so far and they have all been heard by different judges. Mrs Grey is very
upset by this. She wants the nice Judge that heard the case the last time
to deal with it in future. Mr Grey objects as, apparently, the Judge called
him a "rogue", rather than Mr Rogue. She asks:-(n) Can she rescind the
Decree Nisi, so as to obtain a pension sharing order?S -v- S [2002] 1 FLR
457 - Singer J held that there was no difficulty in rescinding a decree nisi
that had not been made absolute where both parties agreed, even if the
object was to achieve a pension sharing order following the later
petitionBut in H -v- H [2002] 2 FLR 116 - Bodey J held that recission was
not possible unless both parties consent. To do otherwise, would be
contrary to the will of Parliament that there should be a clear date
(01.12.00) before which pension sharing was not available.In Rye -v- Rye
[2002] 2 FLR 981, Charles J decided that the court was entitled to have
regard to the fact that the husband was not prepared to co-operate in
reducing the long term risks for the wife by allowing there to be a pension
share. This justified transferring the matrimonial home to her to improve
her security.Finally, in W -v- W [2002] 1 FLR 1225, Bodey J found that the
operative date was the date of the husband's petition. The fact that a
cross-petition was dated after 01.12.00 did not assist as it did not
constitute separate proceedings. (o) How will the court respond to Mr
Grey's application to make the Decree Absolute?See Re: G [2003] 1 FLR 870 -
to prevent an application to make a decree absolute, a wife has to make out
a case that she would be prejudiced by its grant. The mere fact that the
ancillary relief proceedings had not yet been determined was not sufficient
of itself. Equally, a husband did not have to show that he would be
prejudiced by delay in obtaining the decree. (p) Is it possible to set
aside the bankruptcy?In Couvaras -v- Wolf [2002] 2 FLR 107 - Wilson J
annulled a bankruptcy order and dismissed the bankruptcy petition, having
found that it was a sham. The petition had been devised by the husband to
enable him to avoid paying a lump sum to the wife, when he was not genuinely
insolvent. Also note Cartwright -v- Cartwright [2002] 2 FLR 610 - a foreign
periodical payments order could not be regarded as final and conclusive. It
was therefore a debt unenforceable at common law in England and not provable
as a bankruptcy debt. A foreign lump sum order, which did not contain any
element of capitalised periodical payments, was not variable and could
therefore be enforced at common law. Arden LJ repeated the invitation to
the Insolvency Rules Committee to allow an English lump sum order to be
provable in bankruptcy (NB - the decision of Rimer J at [2002] 1 FLR 919 was
overturned).But see The Enterprise Act 2002 - the period for discharge of
bankruptcy has been reduced to only 12 months to "encourage honest risk
takers", although the Official Receiver can apply for various restrictions,
eg on the ability to obtain credit, being engaged in business on his own
account or acting as an insolvency practitioner! (q) If not, will the
trustee be bound by the ancillary relief order?Mountney -v- Treharne [2002]
2 FLR 930 - a property adjustment order, which ordered a husband to transfer
his interest in the matrimonial home to the wife, conferred an equitable
interest on her at the moment the order was effective, ie on decree
absolute. The trustee in bankruptcy therefore took subject to her interest
under the order and the wife was entitled to enforce the order against the
trustee. Again, note that [2002] 2 FLR 406 is no longer good law. See
also, F -v- F [2003] 1 FLR 911 - Coleridge J set aside a number of charges
placed on property by an intervenor on the basis that the husband had failed
to rebut the presumption that he had agreed to the charge with the intention
of defeating the wife's claim. Equally, the bankruptcy order made against
the husband was set aside as his assets exceeded his liabilities by some
£310,000. The intervenor did have a one-third interest in the various
properties but, so far as the matrimonial home was concerned, realisation of
the interest was postponed until such time as it was no longer required to
house the children. (r) Can Mr Grey set aside the order on the grounds
that he has lost his job?Maskell -v- Maskell [2003] 1 FLR 1138 -
unemployment is not an unforeseen and fundamental supervening event,
sufficient to justify an appeal based on Barder -v- Caluori [1988] AC 20.
However, the judge had given the wife the equity in the matrimonial home on
the base that the husband retained a pension fund of roughly equal value.
This was fundamentally flawed as the court should not confuse present liquid
capital with future pension rights, given the restrictions on such pensions.
Rose -v- Rose (No 2) [2003] 2 FLR 197 - the court has jurisdiction to strike
out an unmeritorious application to set aside a consent order, if the court
is satisfied that no useful purpose would be served by reopening matters.
The husband's delay was an additional reason why the application should not
be allowed to proceed any further. See also Shaw -v- Shaw [2002] 2 FLR 1204
- given the overriding importance of finality to litigation, any application
to set aside should be made promptly. Delay should be censured. Moreover,
the wife's relationship with her boyfriend had been fully investigated at
the trial. The fact that the relationship persisted thereafter, did not
give the husband the right to reopen the process, particularly when the
wife's award was based on entitlement rather than needs. (s) If the husband
was able to launch an appeal, on what basis would it be determined? Family
Proceedings (Amendment) Rules 2003 - Rule 8.1(3):- "the appeal shall be
limited to a review of the decision or order of the district judge unless
the judge considers that, in the circumstances of the case, it would be in
the interests of justice to hold a rehearing"Oral evidence or evidence not
before the District Judge may be admitted if it is in the interests of
justice to do so.(t) What will happen to the Judgment Summons?See the Family
Proceedings (Amendment) Rules 2003 which amend FPR Rule 7.4 to make the
rules Mubarak [2001] 1 FLR 673 compliant. A new Form M17 has been
introduced which must be used. And Corbett -v- Corbett [2003] 2 FLR 385 -
the new form does not dilute or obscure the need to give the respondent
clear particularity of the case he has to meet before he has to respond.
Remember that the court can consider variation of the original order
(including retrospectively) even where an application has not been made. If
there is to be an application to vary, it should be determined first and
should investigate motivation and good faith as well as means. (u) Are
there any other means of enforcement?Oral examination - see Mubarak -v-
Mubarak (No 2) [2003] 2 FLR 553 - Hughes J. Although Order 48 does not
specifically authorise a freestanding process of specific discovery, the
rules do permit the examination to be adjourned from time to time. Orders
can be made for the production of documents, provided they are relevant to
the means of paying. A document could be sought even if it was not in the
physical possession of the debtor provided he had a clear and enforceable
right to obtain it in his personal capacity, rather than merely as a
director of a company. Field -v- Field [2003] 1 FLR 376 - Wilson J. The
court has no power to make a charging order on entitlements under a pension
scheme. Section 37(2) of the MCA could not be used to obtain a mandatory
injunction, requiring a husband to take his pension lump sum immediately.
The section only enables the court to make prohibitory orders, not mandatory
ones. Finally, the court could not appoint a Receiver as the husband's
rights in the pension scheme were not of such a nature as to make his
interest assignable. (v) Will the Customs & Excise be able to apply to
recover their debt? Re: MCA; HM Customs and Excise Commissioners and Long
-v- A [2003] 1 FLR 164; dismissing an appeal by HM Customs and Excise from
Munby J at [2002] 2 FLR 274. There was nothing in either the confiscation
provisions of the Drug Trafficking Act 1994 or the MCA 1973 to indicate that
one statute took priority over the other; both statues conferred discretion
on the court. There was therefore jurisdiction for a court to transfer the
matrimonial home to the wife, notwithstanding a confiscation order against
her husband's assets in a case where she was wholly innocent of any
wrongdoing, ignorant of her husband's criminal activities and the property
itself was untainted by the drug trafficking.See also CPS -v- Grimes [2003]
2 FLR 510 - Wilson J. The house was in the husband's sole name; a
confiscation order was made against him for more than the net equity.
Nevertheless, the court awarded half the equity to the wife, following a
declaration that she was an equal owner in equity. In the alternative, the
court could order a lump sum under the MCA equal to half the equity, given
the wife's contributions; the fact that she had not participated in, or had
any knowledge of, the husband's criminal activities and her state of health
and poor financial position. On the other hand, the husband's illicit
income had also contributed to the costs of the home and, given the
confiscation order, the other half should go in partial satisfaction of the
order.(w) On what basis would the court capitalise the maintenance. Could
Mrs Grey get the mortgage discharged?Pearce -v- Pearce - Court of Appeal
[28.07.03] - when capitalising periodical payments pursuant to MCA section
31(7B), the court should not reopen capital claims. Hence, the lump sum
cannot be increased to enable a wife to discharge her mortgage at the
husband's expense. Cornick -v- Cornick (No 3) [2001] 2 FLR 1240
disapproved. The court's objective should be to substitute for the
periodical payments order such lump sum as will fairly compensate the payee
and at the same time complete the clean break.W -v- W - Nicholas Mostyn QC
[08.09.03] - imposing a Duxbury rate of 3.75% on a claimant spouse exposes
her to a considerable risk of the money running out. An older wife deserves
greater security than the standard Duxbury calculation. The eventual lump
sum equated to a rate of return of 3.25% or a standard rate of return plus a
further £25,000 for "the exigencies of life, death and markets".(x) Should
there be judicial continuity? The Practice Direction on Judicial Continuity
[2002] 2 FLR 368, which deals primarily with children's cases in the High
Court, does not formally apply to ancillary relief cases but judicial
continuity will be observed whenever possible (save for the FDR). Note that
there is a provision in the Practice Direction for applying to a DJ prior to
the First Appointment for transfer to the High Court in a suitable case.
3. The case of Mr Johnny English Mr Johnny English is an old client of your
senior partner, Mr Bough, and you have been asked to help out on his case.
You agree to have lunch with Johnny. He comes from a very wealthy family,
who have maintained Johnny throughout his life to a very high
standard.Unfortunately, Johnny has got himself into a number of unfortunate
scrapes over the years. He met a woman called Lorna Campbell and they had a
son. They never married, nor did they live together. Lorna has brought a
claim against him under Schedule 1 of the Children Act. She says that she
wants to live in Chelsea, as that is the only suitable area for the son of
an English. At the same time, Johnny was married to a French lady, Madame
Sauvage. Madame Sauvage has instituted proceedings here. Johnny
instituted them in France, on the advice of your wily Senior Partner. When
you look at the documents, it appears his Petition was three days earlier
than Madame Sauvage's English Petition. Madame Sauvage has brought a claim
for maintenance pending suit here. It includes a claim that Johnny pays her
costs. Johnny says that his Papa and Aunt are frightfully miffed about the
whole thing and have decided to cut him off without a penny. Indeed, just
at this moment, the bill for lunch arrives and, after fishing about in his
pockets, he grins and passes it over to you. Although it was a short
childless marriage to Madame Sauvage, they do have one asset. Johnny set up
a business selling bugging devices to his friends. Apparently, they work
rather well. His papa put in £25,000 but Madame Sauvage put in £35,000.
The business is now worth £75,000 and he would like to sell it to his great
mate, Jimmy Bond. He asks you the following questions:-(y) How will the
court deal with Lorna's wish to live in Chelsea in her application pursuant
to Schedule 1 of the Children Act 1989In K -v- K [2003] 1 FLR 120, Rodger
Hayward-Smith QC allowed £1.2 million for a house in Central London. A
child of parents between whom there was a great disparity of wealth was
entitled to be brought up in circumstances which bore some sort of
relationship to the current resources and standard of living of the
wealthier parent. The length of the marriage was irrelevant in this
context. Re P (Child) - Court of Appeal [24.06.03] is the first case where
a Schedule 1 application has been considered by the Court of Appeal. Again,
the father was very wealthy, but the parents had never lived together. The
Court of Appeal allowed the mother's appeal. A settlement of property order
was made to enable the mother to buy a property in Central London for £1
million, with reversion to the father. The justification was very much as
per K -v- K. A further sum of £100,000 was ordered to enable it to be
furnished suitably.The groundbreaking part of the order, though, is the size
of the periodical payments order for the three year old child, namely
£70,000 per annum. Thorpe LJ said at [48]:-"Thus there is an inevitable
tension between the two propositions, both correct in law, first that the
applicant has no personal entitlement, second that she is entitled to an
allowance as the child's primary carer. Balancing this tension may be
difficult in individual cases. In my judgment, the mother's entitlement to
an allowance as the primary carer (an expression which I stress) may be
checked but not diminished by the absence of any direct claim in law."And at
[49]:-"Thus in my judgement, the court must recognise the responsibility,
and often the sacrifice, of the unmarried parent (generally the mother) who
is to be the primary carer for the child, perhaps the exclusive carer if the
absent parent disassociates from the child. In order to discharge this
responsibility, the carer must have control of a budget that reflects her
position and the position of the father, both social and financial."The
judgment seems to suggest that just about the only things deducted from the
budget were pension contributions, endowment policies and the ability to put
money away for a rainy day. (z) Given the proceedings in France, with the
English court entertain the application for maintenance pending suit?In
Ghoth -v- Ghoth [1992] 2 FLR 300, a wife obtained a modest maintenance
pending suit order prior to her petition being dismissed on the basis that
she was not domiciled here. She appealed and the Court of Appeal gave her
some Mareva protection in respect of maintenance pending suit pending her
full appeal. In Wermuth -v- Wermuth (No 2) [2003] 1 FLR 1029, the Court of
Appeal discharged a maintenance pending suit order on the basis that it was
not a protective or provisional measure under Art 12 of Brussels II. The
whole purpose of Brussels II was to eliminate superfluous and expensive
litigation. There was a strong presumption that the court of first issue
was the court first seized under Brussels II. The other jurisdiction should
merely "hold itself in waiting" just in case the apparent priority should be
disproved or declined. (aa) If the court did deal with the application for
maintenance pending suit, how would it react to the family's refusal to
support Johnny?In M -v- M [2002] 2 FLR 123, Charles J awarded interim
maintenance of £330,000 pa in a case where the husband claimed that his
father was withdrawing financial support. The court was not bound to accept
this contention and did not have to proceed on the basis of what the husband
said as to his present resources. The court would consider the principles
and guidance in Thomas -v- Thomas [1995] 2 FLR 668.Equally, in G -v- G
[2003] 2 FLR 71, Charles J held that, in deciding whether or not to accept
H's assertions as to his means and ability to pay, the court had to consider
his explanation of his financial position and the quality of the disclosure
he had provided. The court did not have to accept his contentions at face
value if he had failed to provide full disclosure. If the resulting order
was too high, he could always provide the missing disclosure and then apply
to vary.(bb) If the ancillary relief proceeds here, how will the court
divide the proceeds of sale of the business?Foster -v- Foster [2003] 2 FLR
299 - there is no justification for discriminating between spouses on the
basis of differences in income earned during the marriage. The District
Judge was right, in a short, childless marriage to return to the parties
what he or she had brought into the marriage and divide the profits made
during the marriage equally between them. Where there was no issue as to
housing needs, the profits accruing during the marriage amounted to the
proceeds of a joint enterprise, to which both had contributed. The net
result was a division 61% to the wife and 39% to the husband.(cc) Madame
Sauvage make an application here pursuant to Part III of the 1984 Act?A -v-
S [2003] 1 FLR 431 - international comity strongly indicated that Part III
could not be used in the vast majority of cases where a foreign court had
dealt with an ancillary relief claim. However, in this instance, the Texan
court had not determined the relevant issues of fact, namely whether or not
the husband had promised the wife an interest in their English property. As
the court felt that the outcome in Texas (wife to get nothing) was not just,
Part III could be used to right the wrong. However, the English court would
intervene only to the minimum extent required to remedy the perceived
injustice.Philip Moor QC1 Hare CourtTempleLondonEC4Y 7BE28 October 2003
Private Law Developments in Children Cases Andrew McFarlane QC30 October
2003Continuing Professional Development SeminarPRIVATE LAW DEVELOPMENTS IN
CHILDREN CASESAndrew McFarlane QCWelfare IssuesECHR: definitive statement
that welfare of the child is paramount consideration under Art 8In the
context of a private law dispute between parents, a father took proceedings
to achieve legal recognition of his status as 'father'. He was unsuccessful
and complained to the ECHR, which, on the facts, dismissed his complaint.In
the course of its judgment the ECHR recorded:'The court reiterates that in
judicial decisions where the rights under Art 8 of parents and those of a
child are at stake, the child's rights must be the paramount consideration.
If any balancing of interests is necessary, the interests of the child must
prevail.'Yousef v The Netherlands [2003] 1 FLR 210Court should respect the
wishes of older childrenHH Judge Tyrer paid due regard to the clear wishes
and feelings of a 16 and a 14 year old. If young people are to be brought up
to respect the law, the law has to respect them and their wishes, even to
the extent of allowing them, as occasionally they may do, to make
mistakes.Re S (Contact: Children's Views) [2002] 1 FLR 1156Court should take
account of the different role and function of men and womenThe Court of
Appeal (Thorpe LJ) refused permission for a father to appeal a residence
order made in favour of the mother. The mother, who was a City high flyer,
proposed to give up her career to care for the two young children. The
father's proposed appeal was on the basis that if the genders were reversed
and as father proposed to give up a lucrative employment so that the whole
family suffered financial he would have no chance of success. Thorpe LJ
observed that that submission ignored the realities, namely the very
different role and function of men and women.Re S (Children) [2002] EWCA Civ
583Importance of grandparents / test for application for leave Plan for
adoption of child whose grandmother sought to care for her. Local authority
and guardian rejected grandmother's proposals on the basis that at 59
bringing up a child would be too great a burden. Grandmother's application
for party status and to make a residence application refused. Court of
Appeal [Thorpe LJ Ferris J] allowed the appeal holding that Re M (Care:
Contact: Grandmother's application for leave) [1995] 2 FLR 86 had served a
valuable purpose in its day but it was not appropriate to substitute the
test "has the applicant satisfied the court that she has an arguable case"
for the test in CA 1989, s 10(9) namely the nature of the application, the
applicants connection with the child, risk of disrupting the child's life
and the wishes and feelings of the parents and plan of the local authority.
Applicants under s 10(9) now enjoyed rights under Arts 6 and 8 and the
minimum essential protection meant that judges should be careful not to
dismiss such an application without full inquiry. It is important that
judges should recognise the greater appreciation that had developed of the
value of what grandparents had to offer.Re J (Leave to issue application for
residence) [2003] 1 FLR 114 Residence OrdersShared residence should only be
made if there is an element of 'residence'A shared residence order was made
at first instance in order to recognise the equal status of each parent. On
appeal, the Court of Appeal [Hale and Rix LJJ] held that where the child was
not only not going to reside with the other parent, but was not even going
to visit him, a residence order was not appropriate. Shared orders were not,
however, necessarily exceptional orders.Re A (Shared Residence) [2002] 1 FCR
177Shared residence order is not precluded by adverse findings against one
parentThe Court of Appeal [Thorpe LJ and Wilson J] dismissed a father's
appeal against the making of a shared residence order. The fact that the
judge had been critical of the mother did not preclude making a shared
order, nor the fact that the parties may live in different parts of the UK.
A shared order was not confined to cases where a child spent equal times in
each home. If the home offered by each parent is of equal status and
importance to the child an order for shared residence can be valuable.Re F
(Shared Residence Order) [2003] EWCA Civ 592; [2003] 2 FLR 397.Residence
order: conditions limiting movement of family [1]A judge made a residence
order providing for a child to continue to reside with her mother. The judge
added a condition requiring the child to continue to reside in her present
location (and not move to Cornwall as the mother intended) unless ordered by
the court. The Court of Appeal (Thorpe and Clarke LJJ) allowed the mother's
appeal and remitted the case for rehearing. In determining the residence
issue the court should evaluate the mother's proposals as a whole, including
the likelihood that she may move out of the current location. The court
should not limit a parent's ability to move within the jurisdiction.
Conditions under s 11 should be confined to situations where there were
specific concerns about a parent's ability to provide good enough care.
There was a need for a consistent approach between those cases where a
parent sought to remove a child from the jurisdiction (for example Payne v
Payne) and the present type of case where the parent sought liberty to move
within the jurisdiction.Re S (A Child) (Residence Order: Condition) [2001]
EWCA Civ 846; [2001] 3 FCR 154Residence order: conditions limiting movement
of family [2]The Court of Appeal (Thorpe LJ and Astill J) dismissed a
father's appeal from an order granting him residence, but imposing a PSO
preventing the child's permanent removal to Northern Ireland. N Ireland is
within the UK and therefore s 13(1)(b) did not apply. In the 'highly
exceptional' circumstances of this case, where the medical evidence
indicated that the effect of a move away from the area where the mother
lived would be devastating to the children, such a condition was justified.
These facts therefore justified a different course from normal approach
described in Re S (above).Re H (Children) (Residence Order: Condition)
[2001] EWCA Civ 1338; [2001] 2 FLR 1277Residence order: conditions limiting
movement of family [3]The case of Re S ([1] above) returned to the Court of
Appeal (Butler-Sloss P, Waller and Laws LJ). At the second county court
hearing the court had heard evidence of the impact upon the mother and her
family of preventing a move to Cornwall (a key flaw in the first hearing).
The judge once again imposed a condition preventing removal to Cornwall. The
judge held that the child's special characteristics (Down's Syndrome and
heart problem) combined with the risk of suffering serious emotional harm
were highly exceptional circumstances which justified the imposition of a
condition. The Court of Appeal held that the judge had been entitled to
treat the case as exceptional and his conclusion could not be faulted.
Appeal dismissed.Re S (A Child) (Residence Order: Condition) (No 2) [2002]
EWCA Civ 1795; [2003] 1 FCR 138.Contact OrdersTime spent in recognisance may
be desirable before refusing contactA judge made no order for direct contact
to a father, who, 3 months earlier, had threatened to kill himself and his
children. The Court of Appeal allowed the father's appeal to the extent that
the making of a final decision in such a case only 3 months after the event
was premature. An adjournment of 6 months would have allowed a proper
assessment of any continuing risk.The case was remitted for hearing before
Wall J who held that where the need to preserve the physical and mental
health of the primary carer was the most important consideration, that
factor could outweigh the wishes of the children to maintain contact.Re H
(Children) (Contact Order) [2001] 1 FCR 49 (CA)Re H (Contact Order) (No 2)
[2002] 1 FLR 22 (FD)Dominant factor is the need to protect the primary
carerFather who had Huntington's disease, a disorder leading to adverse
effects on mood and personality having generous contact with the children
made a plan to kill the children and commit suicide. Prevented by a passer
by. Application for contact refused on the basis that the court had to
consider the fundamental need of the children to have an enduring
relationship with both parents balanced against the harm that would be
suffered if contact was ordered. The overriding consideration was the need
to protect the mother, the primary carer who was suffering PTSD. Per curiam:
where contact issues are as difficult as these, consideration should be
given to separate representation for the childrenRe H (Contact Order)(No 2)
[2002] 1 FLR 22 Court should consider the medium and long-term consequences
of terminating contactThe Court of Appeal [Ward, Clarke LJJ and Sir Martin
Nourse] allowed a father's appeal from an order terminating his contact to
his 4-year-old son. The mother terminated contact after the father had made
referrals to social service alleging neglect and abuse by the mother and her
boyfriend. The judge held that the referrals were unjustified and had been
used by the father to harass the mother and found that the father had put
false ideas into the child's mind about being hit by the boyfriend. The
judge held that these factors were sufficiently cogent reasons to justify
terminating contact. Ward LJ held that the judge had ignored the established
attachment between father and son and the harmful effect severance of that
would have. It was necessary to look at the medium and long-term effects of
termination and as a result the judge's conclusion was plainly wrong.Re J-S
(A Child) (Contact: Parental Responsibility) [2002] 3 FCR 433.Domestic
violence: preliminary hearing on factual issues - bench to retain case
thereafterWhere a court (in this case an FPC) holds a preliminary fact
finding hearing on issues of domestic violence within the compass of a
contact dispute (such a step being entirely appropriate), the same bench
should then continue to be seized of the case and treat it as part heard for
all future substantive hearings.M v A (Contact: Domestic Violence) [2002] 2
FLR 921.Indirect contact even with genuine and intense phobiaFather had
history of violence. Stabbed mother, he solicitor and her boyfriend. During
relationship there had been extreme domestic violence and thereafter
harassment and stalking. Mother had phobia of the father which was genuine
and intense. Direct contact would be profoundly destabilising. Nevertheless
indirect contact was containable and outweighed in the balance by the
potential benefit to the child of retaining some awareness of the father.Re
L (Contact: Genuine Fear) [2002] 1 FLR 621 Transfer of residence not to be
used as punishment for contemptThe Court of Appeal [Peter Gibson, Mance and
Hale LJJ] allowed a mother's appeal from an order committing her to prison
for 42 days and her appeal against a residence order made in favour of the
father following the mother's failure to abide by contact orders.On the
issue of residence, Hale LJ held that when a court makes a s 8 order the
paramount consideration should be the welfare of the child, and not a desire
to punish the mother or provide a way of enforcing the contact order.
Transfer of residence is sometimes appropriate and can work very well in
securing contact, but the two little girls had not lived with the father for
many years and a transfer of residence was not justified on welfare grounds.
Re K (Contact: Committal Order) [2002] EWCA Civ 1559; [2003] 1 FLR 277.Duty
on court to assess origins of apparent alienation and make findingsThere was
a long-standing history of litigation over contact, during which successive
orders had been made for full staying contact. The child, now 11, in
contrast to his previous approach to the father, began to show hostility
towards him and towards contact. The judge attributed the child's alienation
to the father's long-standing drug and alcohol problems and did not make any
express findings concerning the mother's potential role in the development
of alienation. The judge made an order for interim indirect contact.On
appeal, the Court of Appeal [Thorpe, Rix and Arden LJJ] set aside the order
and directed the joint instruction of a child psychiatrist. The judge should
have considered whether the mother and her family were, at least
unwittingly, an agent of the child's malignity. The obligation to
investigate the origins of alienation stems from our domestic law.However,
ECHR cases suggest that the methods and levels of investigation that our
courts have conventionally adopted when assessing issues of alienation may
not meet the requirements of Art 6 and Art 8:- should judges see children to
ascertain wishes and feelings?- to what extent should separate
representation of the child occur?- what services can CAFCASS provide in
this regard?[Note: the three ECHR cases relied upon [Sahin, Sommerfield and
Hoffmann v Germany] have since been amended in their effect by the Grand
Chamber]Re T (Contact: Alienation: Permission to Appeal) [2003] 1 FLR
531Intractable contact dispute: use of care proceedings and change of
residenceTwo children aged 13 and 10 years had been the subject of long
running contact proceedings. Contact stopped when, as the court found, the
mother had falsely persuaded the children that the father and his parents
had physically and sexually abused them. Contact was ordered but mother
disobeyed the order. Further allegations of sexual abuse were found to be
untrue and had been made as a result of the mother emotionally manipulating
the children. Case transferred to the High Court.Over a number of hearings
Wall J:- ordered a s 37 investigation- care proceedings having been issued,
removed the children from mother under an ICO- subsequently made a residence
order to father and a 2 year supervision order.S 37 was justified in that
the children were suffering significant harm because of the residential
parent's false and distorted belief system about the other parent. 'The
procedure is not a panacea and comes with strong health warnings.' The
consequences must be fully thought through before embarking on this
course.Where there are serious factual allegations made, the court must
adjudicate upon them and those findings should inform any LA
assessment.Children should be separately represented in private law
proceedings where all contact has ceased and the issue of contact has become
intractable.Judicial continuity is essential.Re M (Intractable Contact
Dispute: Interim Care Order) [2003] EWHC 1024 (Fam); [2003] 2 FRL
636.Contact: ECHR CasesThree Strasbourg decisions on contactFirst Instance
(The Chamber) Decision:In three cases against Germany decided on the same
date the ECtHR considered the approach of the German courts to contact
applications by unmarried fathers. The German law at the time made a
distinction between the rights of fathers who were married to the child's
mother and those who were not. The ECtHR held that the law amounted to
discrimination in breach of Art 14. Under Art 8 the ECtHR held that
consideration of what lies in the best interest of the child is of crucial
importance in every case of this kind. A fair balance has to be struck
between the interests of each parent and those of the child and that in
doing so particular importance must be attached to the best interests of the
child, which, depending on their nature and seriousness, may override those
of the parent. In particular, a parent cannot be entitled to have such
measures taken as would harm the child's health and development.At no stage
in the process in one of the cases had the 5 yr old child been heard in
court. The expert had not asked the child about her father for fear that the
child might gain the impression that her replies were decisive. The ECtHR
held that this revealed an insufficient involvement of the applicant in the
process. It is essential that the court has direct contact with the child.
The regional court should not have been satisfied with the expert's view.
Correct and complete information on the child's relationship to the
applicant as the parent seeking access is an indispensable prerequisite for
establishing the child's true wishes and thereby striking a fair balance
between the interests at stake.In the second case, a failure to order a
psychological report on the possibilities of establishing contact revealed
that the father had not been sufficiently involved in the process. Sahin v
Germany; Sommerfield v Germany; Hoffmann v Germany [2002] 1 FLR 119 [1st
Instance]Grand Chamber Decision (ref Sahin and Sommerfield):The Grand
Chamber considered two of the cases and rowed back from the Chamber's
decision in some respects:(a) it is going too far to say that domestic
courts should always hear evidence from a child in court on the issue of
access or that a psychological expert should be involved. The German courts
had proceeded reasonably in both cases and the procedural requirements in
Art 8 had been met;(b) the distinction in treatment before the courts with
respect to unmarried, as opposed to divorced, fathers was unjustified and
there had been discrimination under Art 14;Sahin v Germany; Sommerfield v
Germany [2003] 2 FLR 671No violation of Art 8 where reduction in contact is
justified in child's interestsWhere it had been held that extensive contact
to the father exposed a young child to a conflict of loyalty between the
parents with which the child could not cope, the German court had limited
the father's contact and held that the father had failed to show concern for
the child's psychological welfare by refusing to accept the restriction.The
ECtHR held that the decision clearly engaged Art 8, but that the actions of
the domestic courts were based on reasons that were relevant and sufficient
to meet Art 8(2).The ECtHR stated:'Undoubtedly, consideration of what lies
in the best interests of the child is of crucial importance in every case of
this kind. . A fair balance must be struck between the interests of the
child and those of the parent and that, in striking such a balance,
particular importance must be attached to the best interests of the child
which, depending on their nature and seriousness, may override those of the
parent.'Hoppe v Germany [2003] 1 FLR 384.Need for adequate enforcement of
private law ordersAustrian wife took her 1 yr old daughter from USA to
Austria without consent. The father obtained an order for summary return
under the Hague Convention. An enforcement order was made and executed by
bailiffs and police, but they could not locate the child. The mother
appealed 8 months after the return order. Enforcement order was set aside
and the return order was referred for further consideration in the light of
the passage of time. The courts then went on to find that the situation had
changed, the child's welfare was paramount and removal from the mother would
expose the child to serious psychological harm. The husband complained to
the ECHR:Held that there had been a violation of Art 8: one of the positive
obligations on public authorities under Art 8 is to take measures to enforce
a parent's right to be reunited with his child. The obligation is not
absolute and the interests and freedoms of all parties had to be taken into
account.Necessary steps to achieve enforcement should be taken quickly after
an order is made: this is particularly so in Hague Convention proceedings. A
change in circumstances might exceptionally justify not enforcing a return
order, but the court would have to be satisfied that this change and not
brought about by the State's failure to take all reasonable measures. In
this case the Austrian authorities have failed to take adequate measures
promptly.Sylvester v Austria [2003] 2 FLR 210.Removal from the
jurisdictionImportance of risk of thwarting primary carer's plans when
determining leave to removeJohnson J granted an application for a mother to
remove her two children to the USA, despite evidence from three professional
witnesses to the effect that the eldest child, who had moderate learning
disability, would be disadvantaged by the move. The judge held that
insufficient weight had been attached by the professionals to the
disadvantage to the whole family if the move did not go ahead. These were
sensible plans, not motivated by a desire to reduce contact, the
arrangements were at least adequate and the mother was exceptionally
committed to the children's care.L v L (Leave to Remove Children from
Jurisdiction: Effect on Children) [2003] 1 900.No presumption that a
reasonable proposal to move abroad will be grantedCharles J granted an
application by a Singaporean mother to take the two children to live in
Singapore. Following Payne v Payne [2001] 1 FLR 1052, there is no
presumption that once a proposal to move abroad is shown to be reasonable it
will be granted. That is the first hurdle. Thereafter there must be a
welfare evaluation, in which the effect of refusal on the mother's care of
the children (if detrimental) would be likely to outweigh other factors.
Usually the harm that would flow from a reduction of contact to the other
parent will not outweigh factors in favour of a move.Re C (Permission to
Remove from Jurisdiction) [2003] EWHC 596 (Fam); [2003] 1 FLR
1006Application to move after remarriage in order to be with new
husband/stepfatherMother in Re B divorced and then married a successful and
affluent S African business man, despite trying to do so, he could not run
his business interests from the UK and she applied to move to S Africa with
the two children. Her application was refused.In Re S the mother divorced
and now intended to marry a successful citizen of the Philippines who worked
in W Australia. Her application was also refused.The Court of Appeal
[Thorpe, Judge and Sedley LJJ] allowed both appeals and granted orders for
leave to remove from the jurisdiction.The impact of a refusal had to be
carefully assessed, this was particularly so when the new relationship was
with a foreign national. The welfare of children is best served by being
brought up in a happy, secure family atmosphere. Where the stepfather is a
foreign national, the court risks jeopardising such a family unit if leave
to remove is refused. Sedley LJ: the policy of CA 1989 has placed more
emphasis on the importance to children's welfare of a stable and viable
family unit in which to grow up.Re B (Removal From Jurisdiction), Re; S
(Removal From Jurisdiction) [2003] EWCA Civ 1149; [2003] 2 FCR 673 Specific
Issue OrdersFirst names can be chosen by primary carerParents separated
before child born and had no contact with each other during pregnancy. On
child's birth father registered the birth with names MI. Mother went to
register birth in the name of H. This registration was later cancelled
leaving registration in the names MI. Mother sought a declaration that she
could use the name H without representing that this was the registered name.
Held : No order of the court could prevent the mother using the name of her
choice - the given name that is customary in the primary home. Too much
emphasis should not be placed upon the process of registration or the
fortuitous fact that the father's registration was first in time Re H (A
Child) [2002] EWCA Civ 190; [2002] 1 FLR 973Carer without PR should not
change namesFoster carers decided to use middle names for three children in
their care and in respect of two of whom they eventually adopted. Held:
following adoption they were entitled to change names but in respect of
other child they should not do so but after two years of so doing would not
now be required to change the name back. Change of name is an important
matter and should be treated with appropriate seriousness. The limit of the
power of a foster carer should be made clear to them. If a foster carer
wishes to change a name they should consult the local authority and the
parents views should be sought. If necessary an application should be made
to court (under the inherent jurisdiction).Re D, L and LA (Care: Change of
forename) [2003] 1 FLR 339 Choice of schoolThe Court of Appeal [Hale and
Keene LJJ] dismissed an appeal against a county court order that permitting
a mother to move all three children to the state school that was local to
her home. The father wanted one of the children to remain at private
school.Hale LJ stressed the importance of considering the effect on any
change on children: the court will normally require compelling reasons for
making an order that will further disrupt the life of a child.Each child's
interests had to be looked at separately. Overall the judge's decision could
not be criticised.Re W (Children) (Education: Choice of School) [2002] EWCA
Civ 1411; [2002] 3 FCR 473.Wrong to delegate power to one parentParents
unable to agree on choice of private school. Judge ordered that older child
attend school as proposed by mother and then that future issues as to the
children's schooling be determined by mother following consultation with the
father. Appeal allowed. Held: the order amounted to a failure to adjudicate.
The parents had a right to judicial determination and the court could not
abdicate its fundamental duty to decide the issue.Re P (Parental Dispute:
Judicial Determination) [2002] EWCA Civ 1627 [2003] 1 FLR 286MMR
decisionSumner J heard two separate applications from fathers to determine
whether their children should have MMR vaccinations. Having heard extensive
medical evidence, the judge decided that the medical argument was in favour
of the MMR being administered. Despite the firm opposition of both of the
mothers, Sumner J held that it was in the best interests of the children to
have the vaccinations and he therefore made orders directing that they
should be carried out.Re C (Welfare of Child: Immunisation) [2003] EWHC 1376
(Fam).[Note: The Court of Appeal dismissed the mothers' appeal on 30th July
2003: [2003] EWCA Civ 1148; (2003) Times, August 15]Paternity and
PRPaternity should be established by science and not by legal presumptionThe
mother of twin girls was married to R, but had had a sexual relationship
during the marriage with A. Two years after the birth of the twins the
mother's relationship with A ended. A applied for contact and parental
responsibility. The mother disputed his paternity. R had been throughout in
ignorance of the relationship between his wife and A. R had always regarded
himself as the genetic father. The judge refused to order scientific tests
because of the potentially disastrous effects on the family of a finding
that A was the father.The Court of Appeal [Butler-Sloss P and Thorpe and Kay
LJJ] [per Thorpe LJ] questioned the relevance of the presumption of
legitimacy in the early part of the 21st century. The presumption arose at a
time when science had little to offer and the stigma of illegitimacy was
great. Now both the advancement of science and the expansion in the number
of children born outside marriage means that 'the paternity of any child is
to be established by science and not by legal presumption or inference'. Re
H and A (Children) [2002] EWCA Civ 383; [2002] 2 FCR 469Parental
responsibility order refused where it will be of no benefitFather allowed
indirect contact only. Prevented from making application for residence
without leave. Father does not know where the child lived or went to school
and has no direct contact with the mother. Giving him parental
responsibility would cause distress to the mother and not identify any
positive benefits to the child. It would be regarded as a symbol but would
not in this case confer statusRe L (Contact : Genuine fear) [2002] 1 FLR 621
Using correct test to determine PR application Judge refused to grant Father
PR on the basis that he would use it to undermine Mother's care of the child
and cause her stress. Appeal allowed and PR order made. Court of Appeal
(Ward, Clarke LJJ and Sir Martin Nourse) held: Judge did not have the proper
test in mind. He should have applied the criteria of Re H (Illegitimate
Children: Father: Parental Rights (No 2) [1991] 1 FLR 214 namely the degree
of commitment, the degree of attachment and the reasons for applying. It is
possible that a father can behave so irresponsibly to be denied PR. Those
cases are collected in the judgment of Hirst LJ in Re P (Parental
Responsibility) [1997] 2 FLR 722. They are far removed from this case. This
father had played an important part in his son's life and should be granted
PR. [Note such a father would be automatically given PR once the A+CA 2002
is implemented].Re J-S (Contact: Parental Responsibility) [2002] EWCA Civ
1028 [2003] 1 FLR 399Embryo: partner not biologically related to embryo only
'father' if implantation in 'course of treatment' to them couple togetherAn
unmarried couple attended for IVF treatment whereby the sperm of an
anonymous donor was mixed with the woman's eggs. The man signed a form
acknowledging that he would be treated in law as the father of any resulting
child. The implantation of three of the embryos was unsuccessful. The
remaining embryos were stored by the clinic. Some months later the woman
requested the implantation of a further three of the embryos. By this time
she had parted company from her partner. He did not know she was attending
the clinic and she did not tell the clinic that they had separated.
Following the birth of a child, the man, who had no biological connection
with the child, claimed he was the 'father'.HFEA 1990, s 28(3) provides that
such a man is to be regarded as the father if the embryos had been placed in
the mother 'in the course of treatment services provided for her and the man
together.' At first instance Hedley J held that this was indeed the case and
made a declaration of paternity in the man's favour.On appeal the Court of
Appeal [Sir Andrew Morritt VC, Hale and Dyson LJJ] allowed the mother's
appeal and set aside the paternity order overturning the 1st instance
decision reported as B and D v R (by her guardian) [2002] 2 FLR 843 (Hedley
J). The key time when the factual question of whether the man and woman are
in receipt of treatment together is the date of implantation of the embryos.
This man could not be said to have been receiving treatment at that time.
While it is clearly in a child's interest to have a legal father if
possible, the 1990 Act expressly provides for situations were that is not
the case.Re R (IVF: Paternity of Child) [2003] EWCA Civ 182; [2003] 1 FLR
1183.Effect of mistake during embryo treatment on position of 'father' In a
much publicised case two couples attended a hospital for sperm injection
treatment to mix the husband's sperm with the wife's egg in each case. By
mistake the sperm of Mr B was mixed with the egg of Mrs A. Mrs A in due
course gave birth to twins. All parties agreed that the children should
remain in the A family and a residence order was made. There was then a
hearing to establish paternity.Dame Elizabeth Butler-Sloss P held that the
common law presumption of legitimacy during marriage was displaced by DNA
that showed Mr B as the biological father. Mr A was not to be treated as the
father of the child under HFEA 1990, s 28(2) because he had not consented to
the actual treatment that had been provided to his wife (ie using sperm from
another man).He could not retrospectively consent. The hospital's mistake
was fundamental and went to the root of the consents that had been given.
The embryo had been created without the consent of either mother or her
husband. HFEA 1990, s 28(3) (a couple being treated together) was not
intended to apply to husbands and in any event, due to the mistake, did not
apply here.Leeds Teaching Hospitals NHS Trust v A [2003] EWHC 259 (QB);
[2003] 1 FLR 1091.Representation of Children in Private Law
ProceedingsIncreased use of guardians for children in private law
proceedingsContact proceedings were pending. The mother relied on
allegations of sexual abuse of the child and his siblings. The mother
approached NYAS who sought leave to intervene and to act as the child's
guardian ad litem. The judge refused the application and NYAS appealed. The
Court of Appeal [President, Hale and Potter LJJ] allowed the appeal holding
it was appropriate for the child to be separately represented in the light
of the problems facing both parents, the allegations of sexual abuse, and
the potential conflict of interests between the parents and the child. The
HRA 1998 was likely to lead to an increased use of guardians in private law
proceedings. [nb the CAFCASS amendments to the FPR require the welfare
officer to specifically consider separate representation]. In order to avoid
any perception of bias resulting from the fact that NYAS had been brought in
by the mother, the OS would be appointed to act as guardian ad litem.A v A
(Contact: Representation of Child's Interests) [2001] 1 FLR 715Application
by child to intervene in residence applicationApplication by a 12 year old
to intervene in the residence dispute within divorce proceedings. Solicitor
instructed was satisfied that he had the necessary understanding. The boy
wanted to make sure that his wishes and feelings were fully argued before
the court. Johnson J refused the application on the ground that there was
no argument that could be addressed to the court on behalf of the child that
would not be addressed on the father's behalf (there being a unity of
interest in their respective cases). There was no advantage to the child or
to the court in having separate representation.On a second point, the child,
who was the subject of a s 8 contact order, was not entitled to apply to
vary the order as he was not a person 'named in the order'.Re H (Residence
Order: Child's Application for Leave) [2000] 1 FLR 780.Where child is too
young to instruct, it is inappropriate to appoint a solicitor for himThe
Court of Appeal held that a judge had been wrong in s 8 proceedings, to join
a 2-year-old child as a party and to appoint a solicitor to act for him
under FPR, r 9.2A without a guardian ad litem. The judge should have sought
to appoint a guardian ad litem under r 9.5, having (pre CAFCASS) invited the
OS to act. If the solicitor had been appointed to act as guardian ad litem,
rather than solicitor, that would not have been inappropriate. The
objections to this process should have been made at the time and not only on
appeal.Re N (Residence: Appointment of Solicitor: Placement with Extended
Family) [2001] 1 FLR 1028Best practice: approach CAFCASS Legal before
appointing any other guardian ad litemThe Court of Appeal held [The
President, Ward and Keene LJJ - in November 2001] that a county court had
been wrong to appoint a local solicitor to represent at 7 year old child in
contact proceedings with the welfare input being provided by an independent
social worker instructed by the solicitor.The proper course in such cases is
for a Child + Family Reporter's report to be requested. Only if that report
was inadequate would the question of separate representation arise. If
separate representation was sought, then CAFCASS Legal should be invited to
represent the child (as a Rule 9 guardian ad litem). If CAFCASS declined the
invitation, 'a local guardian and local solicitor' could be approached.Re W
(Contact: Joining Child as Party) [2001] EWCA Civ 1830; [2003] 1 FLR
681.Separate representation justified where contact issue is difficultWall J
observed that in a difficult contact case consideration should be given to
the child being separately represented and, where appropriate, expert
evidence being sought on their behalf. In such cases children frequently
have particular interests and standpoints which do not coincide with or can
be adequately represented by the parents.Re H (Contact Order) (No 2) [2002]
1 FLR 22Test for child acting without a guardian ad litem: 'sufficient
understanding to participate'In long running contact proceedings, the three
children were represented by a solicitor appointed as guardian ad litem
under FPR 1991, r 9(2)A. The oldest child, aged 11¼ yrs, sought to discharge
the GAL in order to oppose the judge's plan for the reintroduction of
contact and in order to apply to lift a prohibition on therapy at a
particular unit that the trial judge had imposed. The issue was determined
by a different judge, Coleridge J, who held that the test in relation to
discharging the present guardian, and the test for leave to defend the
proceedings under CA 1989, s 10(8) were effectively the same, namely
'sufficient understanding to participate as a party/make the proposed
application'.The essential question was not whether the child was capable of
articulating instructions but whether the child was of sufficient
understanding to participate as a party, in the sense of being able top cope
with all the ramifications of the proceedings and giving considered
instructions of sufficient objectivity.The court should have regard to:- the
nature of the proceedings- length of time the proceedings had already been
before the court [2 years]- likely future conduct of the proceedings- likely
applications and future applications that would need to be made.This child
lacked sufficient understanding and to give instructions that were fully
considered as to their implications. He would undoubtedly become totally
embroiled in the detail of the dispute and it was inconceivable that at his
age he could appreciate the totality of the complex issues.Re N (Contact:
Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 FLR 652.New
Practice Direction on separate representationFollowing a consultation
process over the summer, The President is expected to issue a Practice
Direction during the autumn giving guidance upon the circumstances that are
likely to lead to a court directing that a child should be made a party to
private law proceedings and afforded representation.The Practice Direction
is likely to be accompanied by guidance from CAFCASS.Representation of
Children: Adoption and Children Act 2002 amendment122 Interests of children
in proceedings(1) In section 41 of the 1989 Act (specified proceedings)- (a)
in subsection (6), after paragraph (h) there is inserted- "(hh) on an
application for the making or revocation of a placement order (within the
meaning of section 21 of the Adoption and Children Act 2002);",(b) after
that subsection there is inserted- "(6A) The proceedings which may be
specified under subsection (6)(i) include (for example) proceedings for the
making, varying or discharging of a section 8 order."(2) In section 93 of
the 1989 Act (rules of court), in subsection (2), after paragraph (b) there
is inserted- "(bb) for children to be separately represented in relevant
proceedings,".GENERALJurisdiction: Birth following a surrogacy
agreementEnglish surrogate mother entered into a surrogacy agreement in
California with a US married couple. Egg from anonymous donor, fertilised by
the husband. The mother was found to be carrying twins. Declaration of the
Californian court that the on birth the US couple would have full custody
rights and that the surrogate mother did not have any parental
responsibility or rights.The surrogate mother returned to England and
refused to give up the children after their birth in England. Hague
Convention proceedings brought by the US couple failed and they therefore
sought an order that the twins be summarily sent to California.Hedley J
ordered summary return to California on the grounds that that was the most
convenient jurisdiction for the determination of the merits of the future
care of the twins. It was where the biological father and wife lived, the
agreement had been made there and, significantly, there had already been
litigation there at the suit of the surrogate mother. In making the order
Hedley J made a number of observations intended to assist the US court.W and
H v H (Child Abduction: Surrogacy) No 2 [2002] 2 FLR 252. Wrong in principle
to face litigant in person with s 91(14) order at short noticeThe Court of
Appeal [Butler-Sloss P, Thorpe and Kay LJJ] held that a judge who at short
notice made an order under CA 1989, s 91(14) prohibiting a litigant in
person from making any further applications relating to residence or contact
for three years was wrong. Such an order should not be made against a
litigant in person at short notice unless the circumstances are
exceptional.Re C (Prohibition on Further Applications) [2002] 1 FLR
1136Fundamental that any expert report commissioned in CA 1989 case must be
disclosedIt is absolutely fundamental in CA 1989 proceedings that any expert
report commissioned must be made available in the litigation even if it is
contrary to the interests of the party who commissioned it. It must be
disclosed to the other side, the court and any other expert.Re A (Change of
Name) [2003] EWCA Civ 56; [2003] 2 FLR 1.Strong presumption in favour of
allowing a McKenzie FriendThe Court of Appeal [Thorpe and Keene LJJ] allowed
a father's appeal from a judge's refusal to allow him to have Dr P as a
McKenzie Friend at a contested contact hearing. Thorpe LJ stressed that the
presumption in favour of granting a McKenzie friend was a strong one. Thorpe
LJ took the opportunity to record that he had never himself seen Dr P act
other than in an entirely helpful way both to the person being assisted and
to the court.Re H (McKenzie Friend: Pre-trial Determination) [2001] EWCA Civ
1444; [2002] 1 FLR 39Contempt proceedings for publicising confidential
information about caseA father placed details of his contact proceedings on
the Families Need Fathers website. There was no application to commit, but
the judge found the father to be in contempt and sentenced him to 14 days
suspended for 6 months and made a PSO prohibiting further publicity. The
father appealed.The Court of Appeal [Butler-Sloss P, Mummery and May LJJ]
allowed the appeal setting aside all the orders and findings. A county court
has jurisdiction to commit for contempt in the face of the court or
disobedience of a court order, any other contempt in connection with
proceedings in the county court is punishable only by an order for committal
made in the QBD. Practice Direction (Family Proceedings: Committal) [2001] 1
WLR 1253 para 1.1 is therefore incorrect.Committal on the court's own
initiative is an exceptional course and should normally be adjudicated upon
after time for due reflection.The procedure of hearing the matter where the
father was not represented, not permitted an adjournment to get
representation, cross examined without being warned that he was not obliged
to give evidence was seriously flawed and should be set aside. The hearing
was wrongly held in private.Re G (Contempt: Committal) [2003] EWCA Civ 489;
[2003] 2 FLR 58.Parental order made despite payment for surrogacyCouple paid
£12,000 to surrogate mother (using AID). Application for parental order
under HFEA 1990, s 30 which prohibits such an order if there has been
payment (other than expenses reasonably incurred) "unless authorised by the
court". Wall J held that there had been payment but gave retrospective
authorisation.In the matter of C (A Child) [2002] EWHC 157 (FAM) 22.2.02
Legality of morning after pill Society for the Protection of the Unborn
Child sought a declaration that a woman who takes the morning after pill is
potentially committing a criminal offence under OAPA 1861 because there is a
requirement that two doctors should certify the conditions in the Abortion
Act 1967 apply. Munby J reviewing the whole area of law refused the
application. The costs of the entire proceedings were to be paid by the
SPUC.R v Sec of State for Health and Schering Health Care Ltd and Family
Planning Assn [2002] EWHC 610 [2002] 2 FLR 146Court lacks power to direct
residential assessment (if contested) in private proceedingsHolman J
(following Birmingham CC v H [1992] 2 FLR 323) held that in private law
proceedings the court did not have the power (which is present in s 38(6) in
public law cases) to direct a residential assessment of the child with one
parent against the will of the other parent.R v R (Private Law Proceedings:
Residential Assessment) [2002] 2 FLR 953Judge should not depart from expert
assessment of personality and stabilityThe Court of Appeal allowed an appeal
in a residence case where the judge had substituted his own assessment of
the party's personality and stability for that of the experts who had
carried out an assessment. Given the unanimity of expert view, it was not
open to the judge to reject the experts' assessment.Re M (Residence) [2002]
2 FLR 1059 (sub nom Re N-B [2002] 3 FCR 259)Family Division has power to
order summary assessment of costsWilson J held that the Family Division has
jurisdiction to make a summary assessment of costs and will do so in a
significant minority of long cases. Costs do not follow the event in child
cases. The welfare of the child is not the paramount consideration, but is a
factor.Q v Q (Costs: Summary Assessment) [2002] 2 FLR 668Approach to jointly
instructed expertsRegard should be had to new guidance on the approach to a
jointly instructed expert in ancillary relief proceedings. It is suggested
that the same approach should apply to children cases.Of particular note,
the best practice requires:'Any meeting or conference attended by the JE
should normally be with both parties and/or their advisers. Unless both
parties have agreed in writing, the JE should not attend any meeting or
conference which is not a joint one.Best Practice Guide for Instructing a
Single Joint Expert [2003] 1 FLR 573.President's Direction: HIV testing of
childrenPrevious guidance @ [1994] 2 FLR 116 has been revised and updated
where there is a need to test a child for the presence of HIV. The need to
make an application will be rare. An application should be made, or
transferred to, a county court. The High Court should only be involved if
there are pending proceedings there or there is a need to use the inherent
jurisdiction.Where a child of sufficient understanding opposes the
application, reference to the court is necessary. If there are no pending
proceedings, then application should be made to the High Court under the
inherent jurisdiction. Notice should be given to CAFCASS Legal (as it should
if the application is urgent and the parents lack legal
representation).President's Direction: HIV testing of children [2003] 1 FLR
1299.Disclosure of InformationBalance required when considering disclosure
of documents Appellant convicted of 5 counts of rape and 6 of indecent
assault on wife's cousin (aged 8) and family friend with severe learning
difficulties. Application for contact refused. Application for permission to
use documents (including welfare report, psychologist report on children and
psychiatric report on Appellant) for proposed civil proceedings, leave to
appeal his conviction and for a further psychiatric report as to his own
state in relation to his own treatment in prison. Judge refused application
without judgment. Court of Appeal [Hale and Latham LJJ] allowed appeal
matter sent back to county court to consider which documents should be
disclosed. The factors that the court must consider on an application for
disclosure are: the interests of the children concerned; the interests of
the good conduct of children cases generally in preserving confidence in
those who give evidence or information to or for the purposes of those
proceedings; the interests of the administration of justice and the
interests of children generally (for example that perpetrators of abuse are
brought to justice). Here there was an appearance of unfairness and the
matter should be remitted for consideration. Re R (children: disclosure)
[2003] EWCA Civ 19; [2003] 1 FCR 193 No need for C+F reporter to obtain
court's leave to report possible abuse to LAThe Court of Appeal [Thorpe LJ
and Wall J] allowed an appeal against a judge's direction that the CAFCASS
officer appointed as child and family reporter should not report allegations
of possible sexual abuse to the LA. The investigations of the reporter
were not protected by FPR, r 4.23 (confidentiality of documents). Further, a
discussion between a CFR and a social worker in the course of their
professional duties does not constitute 'publication' for the purposes of
breaching the privacy of the CA proceedings. National guidance to the effect
that once an allegation has been referred by the CFR to the LA the reporter
should suspend his/her investigation pending further direction from the
court was held to go 'too far'. The decision to suspend any enquiry must be
for the judge and not the CFR. The relationship between judge and CFR is
collaborative. The Court of Appeal gave detailed guidance on the approach to
be adopted in practice.Re M (Disclosure: Children and Family Reporter)
[2002] EWCA Civ 1199; [2002] 2 FLR 893Bar on 'publication' of informationThe
Court of Appeal [Butler-Sloss P, Thorpe and Rix LJJ] allowed an appeal
against a widely drawn order prohibiting a father from disclosing any papers
filed in the proceedings to either of two named, or any other, expert in
parental alienation syndrome or to FNF or a similar organisation. The Court
of Appeal preferred a less widely drawn order and, following Re G [2003] 2
FCR 231, limited the prohibition to any document held by the court, any note
of judgment and any order made.Thorpe LJ also questioned whether a litigant
in person would need the leave of the court before taking his case to FNF,
who in other cases have provided a great deal of helpful advice. The same
applies to a McKenzie Friend.FPR 1991, r 4.23 has shortcomings and needs to
be revisited.Re G (Child) [2003] EWCA Civ 1055; (2003) Times, July 31.Should
the court disclose information of adult inter-sibling incest to police and
LA?In private law contact proceedings Hedley J found that the father was
engaged in 'a sexually active' relationship with his half sister. Such a
relationship is a criminal offence. The guardian ad litem [presumably FPR
1991, r 9.2A] sought leave to disclose this information to the police and
social services.Hedley J held that the effect of FPR 1991, rr 4.11+4.23 was
that the guardian was not entitled to disclose the information without the
leave of the court. In determining the issue, the court should give weight
to the need to encourage frankness in private law proceedings. Other factors
are the gravity of the offence, any risk to children and issues of public
policy. Regard is also had to the child's welfare and to the guidelines in
Re C (Care Proceedings: Disclosure) [1997] Fam 76 (sub nom Re EC [1996] 2
FLR 725). Leave to disclose to the police was refused (interest in
encouraging candour outweighed interest in prosecution) leave to disclose to
local authorities was granted.Re D and M (Disclosure: Private Law) [2003] 1
FLR 647.[Note: Re C/Re EC has recently been affirmed with respect to care
proceedings in the detailed judgment of Wall J in Re AB (Care Proceedings:
Disclosure of Medical Evidence to Police) [2003] 1 FLR 579]Strong
presumption for disclosing material from family court to assist criminal
defenceFather charged with murder and wounding after driving car at mother's
relatives and neighbour. Father's relatives applied for private law orders
relating to the children. His relatives told the father that the mother's
witness statement in s 8 case was materially different from her police
statement. Father applied for access to the statement for use in his
criminal defence.Munby J allowed the application. It would be an exceptional
case where the family court could deny a defendant facing such a serious
charge access to material that might [and that's the test] assist his
defence. It was in the interests of the children that there was no
miscarriage of justice and that the truth became known. There is no
necessity for applications of this sort to be heard in the High Court.Re Z
(Children) (Disclosure: Criminal Proceedings) [2003] 1 FLR 1194.DOH Guidance
on law of confidentialityIn May 2003 the DOH issued guidance designed to
explain the law of confidentiality, the Data Protection legislation and the
HRA 1998 as it applies to an individual who receives information that
suggests that a child may be being abused. The key concept is disclosure on
'a need to know' basis to a professional who also has a duty to keep
information confidential and only, in turn, pass it on on the 'need to know'
basis.The guide is intended to be very widely available:
seewww.doh.gov.uk/safeguardingchildren/index/htm'What to do if You're
Worried A Child is being Abused'AppealsTrial judge to have opportunity to
correct 'lack of reasons' before appeal launchedWhere application for
permission to appeal is made to the trial judge on the ground of lack of
reasons, the judge should consider whether this is a defect in the judgment
and, if necessary set out to remedy the defect by provision of additional
reasons.If such an application is made to the Court of Appeal, that court
will consider remitting the case to the trial judge with an invitation to
provide additional reasons.In some cases it is the duty of the advocate to
draw the attention of the court to omissions in the judgment.Finally, where
judgment is handed down, any application for permission to appeal should be
made at that time to the judge in order that he/she can set out reasons for
granting or rejecting the application for permission on the requisite
form.Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736;
[2003] 1 FLR 531 [see Arden LJ @ para 37]G v G applies even where no
evidence is heardHouse of Lords allowed appeal against decision of the Court
of Appeal to set aside an adoption order made by Bracewell J in favour of
unmarried father. The order was one that was open to the Judge to make on
the evidence before the court and interpretation of the statute. There was
no indication that she misdirected herself or was manifestly wrong. Hearing
witnesses is not an essential ingredient of the circumstances in which the
principle in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 applies.Re B
(Adoption: Natural Parent) [2001] UKHL 70; [2002] 1 FLR 196 AMENDMENTS TO
THE CHILDREN ACT 1989 FROM THE ADOPTION AND CHILDREN ACT 2002111 Parental
responsibility of unmarried father (1) s.4 of the 1989 Act (acquisition of
responsibility by the father of a child who is not married to the child's
mother) is amended as follows. (2) In subsection (1) (cases where parental
responsibility is acquired), for the words after "birth" there is
substituted ", the father shall acquire parental responsibility for the
child if- (a) he becomes registered as the child's father under any of the
enactments specified in subsection (1A); (b) he and the child's mother make
an agreement (a "parental responsibility agreement") providing for him to
have parental responsibility for the child; or (c) the court, on his
application, orders that he shall have parental responsibility for the
child."(3) After that subsection there is inserted- "(1A) The enactments
referred to in subsection (1)(a) are- (a) paragraphs (a), (b) and (c) of
s.10(1) and of s.10A(1) of the Births and Deaths Registration Act 1953; (b)
paragraphs (a), (b)(i) and (c) of s.18(1), and ss.18(2)(b) and 20(1)(a) of
the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c) sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and
Deaths Registration (Northern Ireland) Order 1976. (1B) The Lord Chancellor
may by order amend subsection (1A) so as to add further enactments to the
list in that subsection."(4) For subsection (3) there is substituted- "(2A)
A person who has acquired parental responsibility under subsection (1) shall
cease to have that responsibility only if the court so orders. (3) The court
may make an order under subsection (2A) on the application- (a) of any
person who has parental responsibility for the child; or (b) with the leave
of the court, of the child himself, Subject, in the case of parental
responsibility acquired under subsection (1)(c), to s.12(4)."(5)
Accordingly, in s.2(2) of the 1989 Act (a father of a child who is not
married to the child's mother shall not have parental responsibility for the
child unless he acquires it in accordance with the provisions of the Act),
for the words from "shall not" to "acquires it" there is substituted "shall
have parental responsibility for the child if he has acquired it (and has
not ceased to have it)".(6) In s.104 of the 1989 Act (regulations and
orders)- (a) in subsection (2), after "section" there is inserted "4(1B),",
and(b) in subsection (3), after "section" there is inserted "4(1B) or".(7)
Paragraph (a) of s.4(1) of the 1989 Act, as substituted by subsection (2) of
this section, does not confer parental responsibility on a man who was
registered under an enactment referred to in paragraph (a), (b) or (c) of
s.4(1A) of that Act, as inserted by subsection (3) of this section, before
the commencement of subsection (3) in relation to that paragraph. 112
Acquisition of parental responsibility by stepparentAfter s.4 of the 1989
Act there is inserted- "4A Acquisition of parental responsibility by
step-parent (1) Where a child's parent ("parent A") who has parental
responsibility for the child is married to a person who is not the child's
parent ("the step-parent")- (a) parent A or, if the other parent of the
child also has parental responsibility for the child, both parents may by
agreement with the step-parent provide for the step-parent to have parental
responsibility for the child; or (b) the court may, on the application of
the step-parent, order that the step-parent shall have parental
responsibility for the child. (2) An agreement under subsection (1)(a) is
also a "parental responsibility agreement", and s.4(2) applies in relation
to such agreements as it applies in relation to parental responsibility
agreements under s.4. (3) A parental responsibility agreement under
subsection (1)(a), or an order under subsection (1)(b), may only be brought
to an end by an order of the court made on the application- (a) of any
person who has parental responsibility for the child; or (b) with the leave
of the court, of the child himself. (4) The court may only grant leave under
subsection (3)(b) if it is satisfied that the child has sufficient
understanding to make the proposed application."113 s.8 orders: local
authority foster parentsIn s.9 of the 1989 Act (restrictions on making s.8
orders)- (a) in subsection (3)(c), for "three years" there is substituted
"one year", and(b) subsection (4) is omitted.114 Residence orders: extension
to age of 18(1) In s.12 of the 1989 Act (residence orders and parental
responsibility), after subsection (4) there is inserted- "(5) The power of
a court to make a residence order in favour of any person who is not the
parent or guardian of the child concerned includes power to direct, at the
request of that person, that the order continue in force until the child
reaches the age of eighteen (unless the order is brought to an end earlier);
and any power to vary a residence order is exercisable accordingly. (6)
Where a residence order includes such a direction, an application to vary or
discharge the order may only be made, if apart from this subsection the
leave of the court is not required, with such leave".In s.9 of that Act
(restrictions on making s.8 orders), at the beginning of subsection (6)
there is inserted "Subject to s.12(5)". (3) In s.91 of that Act (effect and
duration of orders), in subsection (10), after "9(6)" there is inserted "or
12(5)". The Adoption and Children Act 2002 (amendments to the Children Act
1989)115 Special guardianship(1) After s.14 of the 1989 Act there is
inserted- "Special guardianship14A Special guardianship orders (1) A
"special guardianship order" is an order appointing one or more individuals
to be a child's "special guardian" (or special guardians). (2) A special
guardian- (a) must be aged eighteen or over; and (b) must not be a parent of
the child in question, and subsections (3) to (6) are to be read in that
light. (3) The court may make a special guardianship order with respect to
any child on the application of an individual who- (a) is entitled to make
such an application with respect to the child; or (b) has obtained the leave
of the court to make the application, or on the joint application of more
than one such individual. (4) s.9(3) applies in relation to an application
for leave to apply for a special guardianship order as it applies in
relation to an application for leave to apply for a s.8 order. (5) The
individuals who are entitled to apply for a special guardianship order with
respect to a child are- (a) any guardian of the child; (b) any individual in
whose favour a residence order is in force with respect to the child; (c)
any individual listed in subsection (5)(b) or (c) of s.10 (as read with
subsection (10) of that section); (d) a local authority foster parent with
whom the child has lived for a period of at least one year immediately
preceding the application. (6) The court may also make a special
guardianship order with respect to a child in any family proceedings in
which a question arises with respect to the welfare of the child if- (a) an
application for the order has been made by an individual who falls within
subsection (3)(a) or (b) (or more than one such individual jointly); or (b)
the court considers that a special guardianship order should be made even
though no such application has been made. (7) No individual may make an
application under subsection (3) or (6)(a) unless, before the beginning of
the period of three months ending with the date of the application, he has
given written notice of his intention to make the application- (a) if the
child in question is being looked after by a local authority, to that local
authority, or (b) otherwise, to the local authority in whose area the
individual is ordinarily resident. (8) On receipt of such a notice, the
local authority must investigate the matter and prepare a report for the
court dealing with- (a) the suitability of the applicant to be a special
guardian; (b) such matters (if any) as may be prescribed by the Secretary of
State; and (c) any other matter which the local authority consider to be
relevant. (9) The court may itself ask a local authority to conduct such an
investigation and prepare such a report, and the local authority must do so.
(10) The local authority may make such arrangements as they see fit for any
person to act on their behalf in connection with conducting an investigation
or preparing a report referred to in subsection (8) or (9). (11) The court
may not make a special guardianship order unless it has received a report
dealing with the matters referred to in subsection (8). (12) Subsections (8)
and (9) of s.10 apply in relation to special guardianship orders as they
apply in relation to s.8 orders. (13) This section is subject to s.29(5) and
(6) of the Adoption and Children Act 2002.14B Special guardianship orders:
making (1) Before making a special guardianship order, the court must
consider whether, if the order were made- (a) a contact order should also
be made with respect to the child, and (b) any s.8 order in force with
respect to the child should be varied or discharged. (2) On making a special
guardianship order, the court may also- (a) give leave for the child to be
known by a new surname; (b) grant the leave required by s.14C(3)(b), either
generally or for specified purposes.14C Special guardianship orders: effect
(1) The effect of a special guardianship order is that while the order
remains in force- (a) a special guardian appointed by the order has parental
responsibility for the child in respect of whom it is made; and (b) subject
to any other order in force with respect to the child under this Act, a
special guardian is entitled to exercise parental responsibility to the
exclusion of any other person with parental responsibility for the child
(apart from another special guardian). (2) Subsection (1) does not affect-
(a) the operation of any enactment or rule of law which requires the consent
of more than one person with parental responsibility in a matter affecting
the child; or (b) any rights which a parent of the child has in relation to
the child's adoption or placement for adoption. (3) While a special
guardianship order is in force with respect to a child, no person may- (a)
cause the child to be known by a new surname; or (b) remove him from the
United Kingdom, without either the written consent of every person who has
parental responsibility for the child or the leave of the court. (4)
Subsection (3)(b) does not prevent the removal of a child, for a period of
less than three months, by a special guardian of his. (5) If the child with
respect to whom a special guardianship order is in force dies, his special
guardian must take reasonable steps to give notice of that fact to- (a) each
parent of the child with parental responsibility; and (b) each guardian of
the child, but if the child has more than one special guardian, and one of
them has taken such steps in relation to a particular parent or guardian,
any other special guardian need not do so as respects that parent or
guardian. (6) This section is subject to s.29(7) of the Adoption and
Children Act 2002.14D Special guardianship orders: variation and discharge
(1) The court may vary or discharge a special guardianship order on the
application of- (a) the special guardian (or any of them, if there are more
than one); (b) any parent or guardian of the child concerned; (c) any
individual in whose favour a residence order is in force with respect to the
child; (d) any individual not falling within any of paragraphs (a) to (c)
who has, or immediately before the making of the special guardianship order
had, parental responsibility for the child; (e) the child himself; or (f) a
local authority designated in a care order with respect to the child. (2) In
any family proceedings in which a question arises with respect to the
welfare of a child with respect to whom a special guardianship order is in
force, the court may also vary or discharge the special guardianship order
if it considers that the order should be varied or discharged, even though
no application has been made under subsection (1). (3) The following must
obtain the leave of the court before making an application under subsection
(1)- (a) the child; (b) any parent or guardian of his; (c) any step-parent
of his who has acquired, and has not lost, parental responsibility for him
by virtue of s.4A; (d) any individual falling within subsection (1)(d) who
immediately before the making of the special guardianship order had, but no
longer has, parental responsibility for him. (4) Where the person applying
for leave to make an application under subsection (1) is the child, the
court may only grant leave if it is satisfied that he has sufficient
understanding to make the proposed application under subsection (1). (5) The
court may not grant leave to a person falling within subsection (3)(b)(c) or
(d) unless it is satisfied that there has been a significant change in
circumstances since the making of the special guardianship order.14E
Special guardianship orders: supplementary (1) In proceedings in which any
question of making, varying or discharging a special guardianship order
arises, the court shall (in the light of any rules made by virtue of
subsection (3))- (a) draw up a timetable with a view to determining the
question without delay; and (b) give such directions as it considers
appropriate for the purpose of ensuring, so far as is reasonably
practicable, that the timetable is adhered to. (2) Subsection (1) applies
also in relation to proceedings in which any other question with respect to
a special guardianship order arises. (3) The power to make rules in
subsection (2) of s.11 applies for the purposes of this section as it
applies for the purposes of that. (4) A special guardianship order, or an
order varying one, may contain provisions which are to have effect for a
specified period. (5) s.11(7) (apart from paragraph (c)) applies in relation
to special guardianship orders and orders varying them as it applies in
relation to s.8 orders.14F Special guardianship support services (1) Each
local authority must make arrangements for the provision within their area
of special guardianship support services, which means- (a) counselling,
advice and information; and (b) such other services as are prescribed, In
relation to special guardianship. (2) The power to make regulations under
subsection (1)(b) is to be exercised so as to secure that local authorities
provide financial support. (2) At the request of any of the following
persons- (a) a child with respect to whom a special guardianship order is in
force; (b) a special guardian; (c) a parent; (d) any other person who falls
within a prescribed description, a local authority may carry out an
assessment of that person's needs for special guardianship support services
(but, if the Secretary of State so provides in regulations, they must do so
if he is a person of a prescribed description, or if his case falls within a
prescribed description, or if both he and his case fall within prescribed
descriptions). (4) A local authority may, at the request of any other
person, carry out an assessment of that person's needs for special
guardianship support services. (5) Where, as a result of an assessment, a
local authority decide that a person has needs for special guardianship
support services, they must then decide whether to provide any such services
to that person. (6)If- (a) a local authority decide to provide any special
guardianship support services to a person, and (b) the circumstances fall
within a prescribed description, The local authority must prepare a plan in
accordance with which special guardianship support services are to be
provided to him, and keep the plan under review. (7) The Secretary of State
may by regulations make provision about assessments, preparing and reviewing
plans, the provision of special guardianship support services in accordance
with plans and reviewing the provision of special guardianship support
services. (8) The regulations may in particular make provision- (a) about
the type of assessment which is to be carried out, or the way in which an
assessment is to be carried out; (b) about the way in which a plan is to be
prepared; (c) about the way in which, and the time at which, a plan or the
provision of special guardianship support services is to be reviewed; (d)
about the considerations to which a local authority are to have regard in
carrying out an assessment or review or preparing a plan; (e) as to the
circumstances in which a local authority may provide special guardianship
support services subject to conditions (including conditions as to payment
for the support or the repayment of financial support); (f) as to the
consequences of conditions imposed by virtue of paragraph (e) not being met
(including the recovery of any financial support provided); (g) as to the
circumstances in which this section may apply to a local authority in
respect of persons who are outside that local authority's area; (h) as to
the circumstances in which a local authority may recover from another local
authority the expenses of providing special guardianship support services to
any person. (9) A local authority may provide special guardianship support
services (or any part of them) by securing their provision by- (a) another
local authority; or (b) a person within a description prescribed in
regulations of persons who may provide special guardianship support
services, and may also arrange with any such authority or person for that
other authority or that person to carry out the local authority's functions
in relation to assessments under this section. (10) A local authority may
carry out an assessment of the needs of any person for the purposes of this
section at the same time as an assessment of his needs is made under any
other provision of this Act or under any other enactment. (11) s.27
(co-operation between authorities) applies in relation to the exercise of
functions of a local authority under this section as it applies in relation
to the exercise of functions of a local authority under Part 3.14G Special
guardianship support services: representations (1) Every local authority
shall establish a procedure for considering representations (including
complaints) made to them by any person to whom they may provide special
guardianship support services about the discharge of their functions under
s.14F in relation to him. (2) Regulations may be made by the Secretary of
State imposing time limits on the making of representations under subsection
(1) (3) In considering representations under subsection (1), a local
authority shall comply with regulations (if any) made by the Secretary of
State for the purposes of this subsection."(2) The 1989 Act is amended as
follows. (3) In s.1 (welfare of the child), in subsection (4)(b), after
"discharge" there is inserted "a special guardianship order or". (4) In s.5
(appointment of guardians)- (a) in subsection (1)- (i) in paragraph (b), for
"or guardian" there is substituted ", guardian or special guardian", and(ii)
at the end of paragraph (b) there is inserted "; or (c) paragraph (b) does
not apply, and the child's only or last surviving special guardian
dies.",(b) in subsection (4), at the end there is inserted "; and a special
guardian of a child may appoint another individual to be the child's
guardian in the event of his death", and(c) in subsection (7), at the end of
paragraph (b) there is inserted "or he was the child's only (or last
surviving) special guardian". Andrew McFarlane QC1 Kings Bench
WalkTempleLondonOctober 2003
International Children Michael Nicholls6 November 2003Continuing
Professional Development SeminarFAMILY LAW BAR
ASSOCIATION___________________________________________________________INTERN
ATIONAL CHILDREN 6 NOVEMBER 2003Michael
Nicholls___________________________________________________________ 1.
Conflicts of ConventionsUntil relatively recently, the international horizon
above the family lawyers' parapet was the 1980 Hague Abduction Convention
and, to a lesser extent, the Council of Europe's 1980 Custody Convention.
There were a few overseas adoptions, but very few Convention adoptions, and
immigration and asylum issues were hardly visible.But there are now new
instruments created by new players, and their application and their
relationship with the older conventions and with each other is now becoming
the focus of attention - "conflict of conventions" is replacing "conflict of
laws". One effect of this conflict is to restrict the choice of remedies.
And an immediate example is to be found in Art 37 of Brussels II, which
provides that as between member states of the EU (but not Denmark), it takes
precedence over a number of international conventions, including the 1980
European Custody Convention. So if the order you want enforce falls within
the definition of "judgment", in Brussels II, you can use the 1980 Hague
Abduction Convention (free legal aid), but not the 1980 European Custody
Convention (free legal aid). You have to use Brussels II (no Central
Authority, no free legal aid). Except if the order was made in Denmark. So
that's clear, then. 2. Brussels IIInterpreting Brussels IIWhen considering
and interpreting Brussels II, it has to be remembered that EU regulations
are directly effective. Direct effect means that domestic legislation has to
be read alongside (rather than instead of) a regulation and will not, so far
as is possible, repeat its provisions. The Council Regulation was originally
in the form of a draft convention known as "Brussels II" because it was
Brussels I was seen as a general convention and the proposed Brussels II
convention as a "lex specialis", following its principles as far as possible
. So, as the Borras Report (the explanatory report on the proposed Brussels
II Convention) explains, identical terms in Brussels I (now Council
Regulation (EC) 44/2001) and the Council Regulation must be given the same
meaning. Concepts like habitual residence and the service of documents will
therefore be defined by the jurisprudence of Brussels I, not domestic law,
although in the Council Regulation "domicile" has the same meaning as it has
under the law of the United Kingdom and Ireland . The ECJ case-law on the
meaning of articles, words and phrases in Brussels I will have to be taken
into account, because they will have the same meaning in the Council
Regulation. It may also be necessary to have regard to the text of Brussels
I (and now Council Regulation (EC) 44/2001), the Jenard Report on Brussels I
and material relating to the Council Regulation itself, including the Borras
Report.Brussels II - The Effect on Jurisdiction in Private Law Children's
Cases in England and WalesThe effect of Brussels II coming into force is not
only to restrict remedies, but also to expand the jurisdictional schemes
relating to private law disputes about children:i. where jurisdiction is
conferred because their parents are involved in matrimonial proceedings
under the Council Regulation;ii. children whose parents are involved in
matrimonial proceedings other than by way of the Council Regulation;iii.
those whose parents are not involved in matrimonial proceedings at all .The
private law orders subject to statutory jurisdictional rules are original
orders under Children Act 1989 s 8 and orders made within the High Court's
inherent jurisdiction with respect to children in so far as they give the
care of a child to a person or provide for contact with, or the education
of, a child . Only original orders, not variations of previous orders, are
"Part I orders" and subject to the jurisdictional rules in the Council
Regulation and Part I of 1986 Act .So for jurisdictional purposes,
children's cases are divided into four classes: i. where both of the parents
are involved in matrimonial proceedings relating to their marriage in
England and Wales; ii. where both of the parents are involved in
matrimonial proceedings relating to their marriage elsewhere in the United
Kingdom; iii. where both of the parents are involved in matrimonial
proceedings relating to their marriage elsewhere in the EU (with the
exception of Denmark) and iv. all other cases, including those in which only
one of the parents is involved in matrimonial proceedings, whether in
England and Wales or elsewhere in the United Kingdom or the EU, cases in
which one or both parents are involved in matrimonial proceedings in Denmark
or outside the EU and cases in which the parents are not involved in
matrimonial proceedings at all.In the first case, the English courts can
exercise jurisdiction either:i. under the provisions of the Council
Regulation, provided that the children are habitually resident in England
and Wales or are habitually resident in another Member State, one of the
parents has parental responsibility for them and the jurisdiction of the
court is accepted by both parents and is in the best interests of the
children or, if the Council Regulation does not apply ,ii. under the 1986
Act on the basis that there are matrimonial proceedings "continuing" in
England and Wales in respect of the marriage of the parents of the child
concerned .The significant differences are that:a. the jurisdiction
conferred by the Council Regulation over the children comes to an end when
the decree nisi is made absolute or, if the application in relation to the
children is still pending, when that application is determined , whereas the
jurisdiction under the 1986 Act continues until the children reach the age
of 18 ;b. only an order made under the Council Regulation will fall within
its rules for recognition and enforcement. Orders made other than under the
Council Regulation can only be recognised and enforced under the 1980
European Custody Convention.Where there are matrimonial proceedings between
the parents in progress elsewhere in the United Kingdom, the English courts
may not entertain an application for a section 8 order unless the court in
which the matrimonial proceedings are continuing considers that it would be
appropriate for it to do so , but if the children are present within England
and Wales the High Court can exercise its inherent jurisdiction for their
immediate protection .If there are matrimonial proceedings between the
parents in progress elsewhere in the EU (with the exception of Denmark)
before a court which has jurisdiction over the children the English courts
must decline jurisdiction unless they only intend to take provisional,
including protective, measures . In the cases where only one of the parents
is involved in matrimonial proceedings in England and Wales or elsewhere in
the United Kingdom or the EU, or cases in which one or both parents are
involved in matrimonial proceedings in Denmark or outside the EU and cases
in which the parents are not involved in matrimonial proceedings at all, the
English courts can exercise jurisdiction under the 1986 Act on the basis of
the children being either habitually resident or present within England and
Wales on the "relevant date" . If the children are present within England
and Wales, but are habitually resident elsewhere in the United Kingdom, only
the High Court can exercise its inherent jurisdiction for their immediate
protection . If the children are present within England and Wales, but are
habitually resident somewhere other than in the United Kingdom, the court
may stay the proceedings on the basis that it would be more appropriate for
the matter to be determined elsewhere 3. RelocationHow do you deal with
Payne v Payne? See Re C (Permission to Remove from Jurisdiction) [2003] 1
FLR 1006. It is not that a reasonable plan will succeed, but that a
reasonable plan is the first hurdle. After the reasonable plan comes the
welfare evaluation, in which one of the most significant factors is the
effect of refusing to accept the reasonable plan is likely to have on the
parents' care of the children. (And see Re B (Removal from Jurisdiction), Re
S (Removal from Jurisdiction) [2003] 2 FCR 673 on the importance of not
jeopardising a new family unit). 4. Child AbductionThe New OrdersPassport,
Location and Collection Orders. Note that there is no restraint on applying
for travel documents in the injunctions.Linking the Limbs of Art 13bRe S
(Abduction: Custody Rights) [2002] EWCA Civ 908; [2002] 2 FLR 815 at
827"There seems to us, therefore, to be considerable international support
for the view that there is a link between the limbs of Art 13(b). In our
judgment, the proper approach for the court considering a defence alleging a
grave risk of exposure to physical or psychological harm should be to
consider the grave risk of that harm as a discrete question but then stand
back and test the conclusion by looking at the Article in the round,
reflecting whether the risk of harm is established to an extent which would
lead one to say that the child will be placed in an intolerable situation if
returned."Child's Objections - the New Art 13bThe reunite Mediation Pilot
Scheme5. Coming SoonA decision on the scope of s 5 of the Child Abduction
and Custody Act 1985A decision on the scope of Brussels II.Brussels IIbis
"Brussels IIbis", which is intended to provide for the recognition and
enforcement of all orders relating to children, both public and private,
marital and non-marital, it will also deal with child abduction within the
Member States of the European Union. The substance of Brussels IIbis has
received political approval, although the text needs perfecting, and it will
be applied from 1 March 2005. So there will be three ways of dealing with
international child abduction under international instruments, one within
the EU (with the exception of Denmark), one involving non-EU states who are
parties to the 1980 Hague Abduction Convention (including Denmark) and one
under the 1980 European Custody Convention.1996 Hague Convention If the
United Kingdom does become a party to the 1996 Hague Convention on
jurisdiction, applicable law, recognition, enforcement and co-operation in
respect of parental responsibility and measures for the protection of
children, its courts may, exceptionally, apply or take into consideration
the law of another state "with which the situation has a substantial
connection." 2003 Contact ConventionThe Council of Europe has produced a
Convention on Contact Concerning Children, adopted by the Committee of
Ministers on 3 May 2002 and opened for signature on 3 May 2003, which sets
out the principles to be applied to contact orders and fixes safeguards for
the return of children after visiting a parent in another state. 6. Work in
Progress The Hague ConferenceA global convention on the recovery of
maintenance, dealing primarily with the administrative problems.Special
Commissions on the operation of the Adoption Convention (October 2004) and
the Abduction Convention (2005)A Training Institute The Council of
EuropeRevision and updating of the European Convention on the Adoption of
ChildrenSucession The European UnionHarmonisation of Substantive Law
(residence, tax, succession, social security)See draft Article 111-170 of
the proposed Treaty of the European Union. 1. The Union shall develop
judicial co-operation in civil matters having cross-border implications,
based on the principle of mutual recognition of judgments and decisions in
extra judicial cases. Such co-operation may include measures for the
approximation of the laws and regulations of the Member States.Brussels III
(financial relief on divorce and separation)Rome III (divorce and other
matrimonial suits)7. Trouble AheadThere are few, if any, formal agreements
with Islamic states and the Caribbean. There are still conflicts of
jurisdiction and conflicts of orders, even within the United Kingdom.
Current international instruments still do not deal very effectively with
access. They are either too prescriptive or the way that they have been
interpreted means that they lack power and flexibility. Continuing to
differentiate, as the EU has done in Brussels II, between on the one hand,
the children of spouses, and on the other step-children or children born out
of wedlock will still lead, for the time being, to the prospect of partial
recognition of orders and continuing injustice for some unmarried fathers
who have failed to obtain parental responsibility. It is also questionable
whether the strict interpretation of Art 13b of the 1980 Hague Abduction
Convention by the courts of the contracting states, especially the English
courts, is truly in the best interests of children. Nearly three-quarters of
"abductors" are mothers who are the primary carers of their children. A
significant number are trying to escape from violence or exploitation, or
have husbands or partners involved in organised crime or corruption, from
which even the most sophisticated countries are unable to guarantee
protection. So proceeding on the footing that all removals are axiomatically
harmful, and all returns beneficial, in the face of all evidence and
experience to the contrary and the expressed wishes of the children is not
calculated to enhance public confidence. 6 November 2003
Offshore Trusts Timothy Scott QC13 November 2003Continuing Professional
Development SeminarOFFSHORE TRUSTSTimothy Scott Q.C.Introduction1. The law
of trusts is a dangerous area for ancillary relief practitioners. Trusts
crop up in a wide range of cases, not only big money cases. Indeed trusts in
big money cases are often less worrying for us because trust law advice may
be obtained by our instructing solicitors either in-house or from specialist
counsel. It is the cases in which trusts play a significant role but where
the available resources do not make it practicable to obtain specialist
advice where we have to wrestle with the problems ourselves.2. It would be
quite impossible (both for lack of time and for lack of expertise) to try to
give an overview of the law relating to offshore trusts. The purpose of this
talk is to mention some of the issues which ancillary relief practitioners
most frequently encounter, and to try to give guidance with a view to
avoiding the worst pitfalls.Variation of trusts: S24 Matrimonial Causes Act
1973 (as amended) 3. Since the power to vary trusts under S24 is the power
with which ancillary relief practitioners will generally be concerned, it is
worth setting out those parts of the section which deal with trusts:-"(1) On
granting a decree of divorce, a decree of nullity of marriage or a decree of
Judicial Separation or at any time thereafter (whether, in the case of a
decree of divorce or of nullity of marriage, before or after that decree is
made absolute), the court may make any one or more of the following orders,
that is to say - .(b) an order that a settlement of such property as may be
so specified, being property to which a party to the marriage is so
entitled, be made to the satisfaction of the court for the benefit of the
other party to the marriage and of the children of the family or either or
any of them;(c) an order varying for the benefit of the parties to the
marriage and of the children of the family or either or any of them any
ante-nuptial or post-nuptial settlement(including such a settlement made by
will or codicil) made on the parties to the marriage, other than one in the
form of a pension arrangement (within the meaning of section 25D below);(d)
an order extinguishing or reducing the interest of either of the parties to
the marriage under any such settlement, other than one in the form of a
pension arrangement (within the meaning of section 25D below);. (2) The
court may make an order under subsection 1(c) above notwithstanding that
there are no children of the family."4. The variation of trusts aspects of
S24 can be traced back to S.5 Matrimonial Causes Act 1859. Accordingly cases
on the predecessor statutes are likely to be relevant to any issues arising
under S24.Is the trust a post-nuptial settlement?5. This is usually the
first question which has to be addressed, whether the trust is onshore or
offshore. The law relating to post-nuptial settlements was reviewed by the
House of Lords in Brooks v Brooks [1995] 2 FLR 13. At p.19 Lord Nichols
said:"In the Matrimonial Causes Act 'settlement' is not defined, but the
context of s.24 affords some clues. Certain indicia of the type of
disposition with which the section is concerned can be identified reasonably
easily. The section is concerned with a settlement 'made on the parties to
the marriage'. So, broadly stated, the disposition must be one which makes
some form of continuing provision for both or either of the parties to a
marriage, with or without continuing provision for their children.(T)he
authorities have consistently given a wide meaning to 'settlement' in this
context, and they have spelled out no precise limitations. This seems right,
because this approach accords with the purpose of the statutory provision.
Financial provision that is appropriate so long as the parties are married
will often cease to be appropriate when the marriage ends. In order to
promote the best interests of the parties and their children in the
fundamentally changed situation, it is desirable that the court should have
power to alter the terms of the settlement. The purpose of the section is to
give the court this power. The object does not dictate that settlement
should be given a narrow meaning. On the contrary, the purpose of the
section would be impeded, rather than advanced, by confining its scope. The
continuing use of the phrases "ante-nuptial" and "post-nuptial" does not
point in the opposite direction. These expressions are apt to embrace all
settlements in respect of the particular marriage, whether made before or
after the marriage.. One feature of the power of the court under the section
is to be noted. The section gives the court power to vary a settlement.
Inherent in this provision is the notion that the court's jurisdiction
extends to all the property compromised in the settlement. Thus it includes
any interest the settler may have in the settled property by virtue of the
settlement. Further, the court's power is not confined to varying the
interests of the parties to the marriage under the settlement. The power
includes, for instance, the interests in the settled property of the
children or, more widely, of others under an old fashioned protective
trust."6. Thus a wide range of trusts will be susceptible to variation under
S24. However, the phrase "all settlements in respect of the particular
marriage" is to be noted. A trust will not have the necessary 'nuptial'
element just because spouses of beneficiaries are in general terms also
potential beneficiaries unless the particular spouse was in the
contemplation of the settlor. Thus if H's father has settled a trust which
includes his children and their spouses as actual or potential
beneficiaries, this will not be susceptible to variation under S24 if the
settlement was made before H and W had met.7. In certain cases questions may
arise not only as to whether a trust has a sufficient nuptial element, but
whether the entity in question is a trust for the purposes of English law.
Civil law jurisdictions with no tradition of trust law have nevertheless
evolved a number of institutions which bear a strong resemblance to trusts
and may be treated as such by English courts. The stiftung and the anstalt
are examples of such entities. Consideration of whether any such creatures
are trusts capable of being varied will require detailed examination of
their terms, usually with the assistance of a lawyer from the country in
question, and in the light of the Recognition of Trusts Act 1987.Recognition
of Trusts Act 19878. This brings into effect in UK law the 1986 Hague
Convention on the law applicable to trusts and on their recognition. The
Convention aims to "establish common provisions on the law applicable to
trusts and to deal with the most important issues concerning the recognition
of trusts". A trust is defined in the Convention as the legal relationship
created, inter vivos or on death, by a person, the settlor, when assets have
been placed under the control of a trustee for the benefit of a beneficiary
or for a specified purpose (Article 2(1)). The Convention applies only to
trusts created voluntarily and evidenced in writing (Article 3).9. The
Convention is primarily concerned with the law applicable to trusts. Article
6 provides that the trust shall be governed by the law chosen by the
settlor. Article 7 provides a checklist for determining the proper law if
the settlor has not made a choice. However, Dicey & Morris (13th Ed.)
suggests (29-019) that the 1987 Act should not affect the powers of the
court under S24. 10. Probably the principal importance of the 1987 Act for
ancillary relief practitioners is that (as the Lord Chancellor put it in
introducing the Bill into the House of Lords) the Convention "allows us to
export to Civil Law countries, first the concept of a trust; secondly our
rules laying down the law which governs such a trust, and, thirdly, the
circumstances in which it should be recognised". It is vital to have the
Convention in mind especially when considering whether a particular type of
civil law trust-like entity is or is not a trust for the purposes of English
law in general and S24 in particular.Should the trustees be joined?11. Once
it is established that a trust is capable of being varied, the next key
question which will usually arise is whether to apply to join the trustees
as a party to the proceedings. The obvious disadvantages of joining the
trustees are the additional costs of a further party and the likely delay.
On the other hand trustees when joined can be required to give discovery and
will be bound by any order the court may make.12. This is often a difficult
call and no general guidance can be given. Reasons not to seek to join the
trustees would be:-· If the assets are limited and the costs of a third
party would be disproportionate.· If the claim can be met without having to
attack the trust assets.· If the trustees have indicated that they will
cooperate without being joined.13. A range of issues about joining offshore
trustees was considered by Wilson J in T v T (Joinder of Third Parties)
[1996] 2 FLR 357. In that case Jersey trustees had been joined under an
order made ex parte and were applying to set aside that order. They had
undertaken to hold £5m. to the order of the Jersey court but not to the
order of the English court. Wilson J considered the provisions of RSC O15
r6(2)(b) (still in force in relation to ancillary relief proceedings) and
refused the application to set aside the order. It is implicit in the
Judgement that if the trustees had agreed to hold an appropriate sum to the
order of the English court, their application would at least have been much
more likely to succeed.14. In some case the trustees may be content to be
joined or may even apply for this. If trustees are concerned about their
position, and in particular about the propriety of spending trust assets on
legal costs, they can apply to the court for directions and a Beddoe order:
see Re Beddoe [1893] 1 Ch 547.Joining other parties15. In some cases it may
be appropriate to join someone other than the trustees. In one unreported
case concerning a network of 13 trusts, the adult son of the parties, who
was the principal beneficiary of the trusts successfully applied to be
joined. The proceedings turned into a three cornered fight in which the son
backed his mother (notwithstanding that it was his father who had made him
the principal beneficiary of the trusts).Disclosure16. The rights of
beneficiaries and the powers of the courts to require disclosure of
documents by trustees were considered by the Privy Council (on appeal from
the Isle of Man) in the important new case Schmidt v Rosewood Trust Ltd
[2003] UKPC 26. The principal issue under debate was whether a beneficiary's
right to demand production of trust accounts and other documents arises on a
proprietary basis: i.e. because the beneficiary is the true owner of the
documents as they are held for his benefit. This proprietary basis had been
widely adopted in earlier cases.17. However, the Privy Council took a
different approach. Their Judgement (delivered by Lord Walker) has a number
of perceptive observations about the reasons why trusts are established in a
modern context, and also about the shoddy drafting of many offshore trusts.
However, the key passage on the approach to disclosure is to be found at
Paragraph 51:-"Their Lordships consider that the more principled and correct
approach is to regard the right to seek disclosure of trust documents as one
aspect of the court's inherent jurisdiction to supervise, and if necessary
to intervene in, the administration of trusts. The right to seek the
court's intervention does not depend on entitlement to a fixed and
transmissible beneficial interest. The object of a discretion (including a
mere power) may also be entitled to protection from a court of equity,
although the circumstances in which he may seek protection, and the nature
of the protection he may expect to obtain, will depend on the court's
discretion."18. The approach is therefore discretionary. The court will
weigh up the reasons why disclosure of a particular document or class of
documents is sought and will balance that against any reasons advance
against disclosure: e.g. confidentiality, the position of other
beneficiaries etc. A beneficiary with vested rights will normally be in a
stronger position than a mere discretionary object, but will not be able to
assert a claim as of right on proprietary grounds.Protectors19. One feature
of offshore trusts who is seldom to be found in onshore trusts is the
protector. Although the term had some limited use in English trust and land
law (cf Fines and Recoveries Act 1833), the modern usage is largely as a
creature of the offshore trust industry. However, it is not a term of art
and may have different meanings in different contexts. The protector is not
a trustee, but is given a watchdog role in respect of the trustees'
administration of the trust.20. The protector will of course have such
powers as are conferred by the trust deed and any other relevant trust
documentation. Typically the protector's consent may be required to the
exercise of specified powers by the trustees. The protector is usually able
to appoint and remove trustees. However since (as we shall see) the court
has power under S24 to write the protector out of the trust, the refinements
of the role will not normally be very important in ancillary relief cases.
Varying foreign trusts21. A number of authorities both in the context of
matrimonial finance and otherwise confirm the jurisdiction of the court to
vary trusts notwithstanding that they are subject to a foreign proper law;
and/or that the assets of the trust are abroad; and/or that the trustees are
foreign. 22. In Nunneley v Nunneley (1890) 15 App Cas 186 settlements
executed in contemplation of marriage were respectively English and
Scottish. Sir James Hannen P. said:"The language of the Act [of 1859] is
exceedingly wide. I am clearly of the opinion that the power conferred
thereby extends to a settlement though made in another country and according
to the law of that country. It is clear that the present respondent who was
up to the time of her marriage a Scotchwoman, by marrying an Englishman
acquired her husband's domicil and became subject to the law of England. I
have no reason to doubt that I have power to make the desired variation in
the marriage settlement in question".23. In Forsyth v Forsyth [1891] P 363
the court was again concerned with an application to vary trusts in
Scotland. Jeune J said (at 366):"Nunneley v Nunneley seems to me to go the
whole length of deciding that whatever be the law applicable to the
settlements, the effect of s.5 of the (Matrimonial Causes Act 1859) is to
give this court power to vary the settlements in its discretion according to
the principles laid down in that section..the principle of his (Sir James
Hannen P.'s) decision was that s.5 of the (1859 Act) gave power to vary the
settlement although it was Scotch and was to be interpreted according to
Scotch law."24. In Goff v Goff [1934] P 107 Sir Boyd Merriman P. was
concerned with a New York trust. He said (p111):"It is clear from the
decisions in Nunneley and Forsyth that this court has the power to vary a
settlement inter partes even though it comprises property out of the
jurisdiction and the trusts are administered by trustees out of the
jurisdiction and the settlement is governed by foreign law."25. Goff is also
significant in that the question arose of whether any order which the court
might make would be effective; and, if not, whether it should make an order.
Evidence from a New York lawyer satisfied the court that the trustees had
not been properly served under New York law. The court therefore set service
aside, but without prejudice to the Petitioner's right to apply to dispense
with service on the trustees. The principle set out by Sir Boyd Merriman P.
(at p114) was:-"Ultimately what matters in these proceedings to vary is not
whether in certain circumstances it may be impossible to make an effective
order against the trustees, but whether it is possible to make an effective
order against the spouse. It may be possible to make an effective order
against the husband."26. The courts have also made orders varying the
provisions of foreign trusts outside the context of variation of trusts in
matrimonial proceedings. In Ewing v Orr Ewing (1883) 9 App Cas 34 the House
of Lords considered the jurisdiction to vary foreign settlements, being the
will trusts of a testator who died domiciled in Scotland. The assets of the
trust were located in Scotland and the proper law of the trusts was
Scottish. An infant beneficiary brought an action to administer the trusts
in England. The Earl of Selbourne L.C. said:"The Courts of Equity in England
are and always have been courts of conscience operating in personam and not
in rem; and in the exercise of this personal jurisdiction they have always
been accustomed to compel the performance of contracts and trusts as to
subjects which were not either locally or ratione domicilii within their
jurisdiction. They have done so as to land, in Scotland, in Ireland, in the
Colonies, in foreign countries. A jurisdiction which is not excluded ratione
rei sitae as to land cannot be excluded as to moveables because the author
of the trust may have had a foreign domicil; and for this purpose it makes
no difference whether the trust is constituted inter vivos or by a will or
mortis causa deed. Accordingly it has always been the practice of the
English court of Chancery to administer as against executors and trustees
personally subject to its jurisdiction, the whole personal estate of
testators or intestates who have died domiciled abroad by decrees like that
now in question."The speech of Lord Blackburn was in similar terms.27. In re
Ker's Settlement Trusts [1963] 1 Ch 553 Ungoed Thomas J was concerned with
an application to vary a Northern Ireland trust under the Variation of
Trusts Act 1959. He said (556):"I was referred to Forsyth v Forsyth which
was a decision on the power to vary settlements conferred by s.5 of the
Matrimonial Causes Act 1859. It was there decided that under s.5 of that Act
the court could vary settlements whatever be the law applicable to them. in
the absence of indication to the contrary, there is no reason for limiting
to English settlements a power conferred on an English court to vary the
trusts of a settlement. And I can see no reason for reading any such
limitation into the statute in this case."28. More recently, in Chellaram v
Chellaram [1985] 1 Ch 409 Scott J was concerned with trusts subject to the
laws of India and Bermuda respectively. He said (at 427B):"Current authority
establishes that the court does have a discretion to decline jurisdiction on
forum conveniens or forum non conveniens grounds. But the principle that the
English court has jurisdiction to administer the trusts of foreign
settlements remains unshaken. The jurisdiction is in personam, is exercised
against the trustees on whom the foreign trust obligations lie, and is
exercised so as to enforce against the trustees the obligations which bind
their conscience. The jurisdiction I hold the court enjoys embraces, in my
view, jurisdiction to remove trustees and appoint new ones. the courts of
this country, having jurisdiction to administer the trusts of the two
settlements, have jurisdiction ancillary thereto to remove the
trustees."Powers of the Court29. The powers which the court can exercise
under s24(1)(c) are very wide-ranging. The court will not interfere with a
trust more than is necessary to achieve justice, but subject to that
principle the powers of the court to vary a trust are in effect
unlimited.30. E v E (Financial provision) [1990] 2 FLR 233 concerned a
discretionary offshore trust. The husband's father (who strongly disapproved
of the wife's claim for ancillary relief) was the protector. Ewbank J:-·
Carved £250,000 out of the trust fund for the benefit of the wife.· Removed
the husband's father as protector.31. There was an issue in E v E as to
whether the court could and/or should remove the trustee company as trustee.
Ewbank J said (at 250E):"The trustees here are not personal trustees. It is
a trust company and there is no question of suggesting that the trustees
have exercised their powers wrongly. On the other hand, in my judgment, it
will be in the interests of the beneficiaries that there should be a change.
I do not agree that this Division cannot deal with that on a variation of
post-nuptial settlement. In fact, I am clearly of the view that it can and
should. So I propose to order that there should be such a change."Scott J
also ordered removal of trustees in Chellaram.32. If necessary the court
could also exercise the power conferred by s. 41(1) Trustee Act 1925 to
order the appointment of a new trustee "whenever it is expedient to appoint
a new trustee. either in substitution for or in addition to any existing
trustee". Although this power would normally be exercised in the Chancery
Division, a Practice Direction at [1973] 1 WLR 627 provides that any
division of the High Court has power to grant any relief or remedy
notwithstanding that proceedings for such remedy or relief are assigned to
another division.33. The most important limitation on the powers of the
court is whether they can be exercised effectively. The court will decline
to exercise its powers where any order it might make would be wholly
ineffective: Tallack v Tallack [1927] P 211; Goff v Goff (see above); and
Wyler v Lyons [1963] P 274. In Re Paget's Settlements [1965] 1 WLR 1046 (a
case under the Variation of Trusts Act 1964) it was said that where there
were substantial foreign elements in the trust, the court should consider
carefully whether it was proper to exercise its jurisdiction. 34. However,
in ancillary relief cases, the critical point is likely to be whether the
underlying assets of the trust (or any significant part of them) are
situated in England and Wales. If there are, the English court will be able
(and often willing) to sidestep the foreign elements of the trust by varying
its terms so as to enable orders to be made in respect of the English
assets.Vesting orders 35. S51 Trustee Act 1925 confers on the Court a power
to make an order "vesting the right to transfer or call for a transfer of
stock .in such person as the court may appoint." One of the circumstances in
which the power is exercisable is if the trustee entitled to the stock is
out of the jurisdiction of the High Court: S51(1)(ii)(b). S56 provides that
the power to make vesting orders "shall extend to all property in any part
of Her Majesty's dominions except Scotland."
Prenuptial Agreements Nicholas Francis QC27 November 2003Continuing
Professional Development SeminarPre-Nuptial AgreementsNicholas Francis
Q.C.Thursday 27th November 2003FLBA Continuing Education Seminar
This course qualifiesFor 1.5 CPD hours 1. Definition1.1. Not easy to find
references to the subject at all in the text books. 1.2. Rayden devotes
precisely 1 of its 2000 odd pages to the subject. There we see ante nuptial
agreements defined as "a contract by which a man and a woman, prior to
marriage, seek to regulate their financial liabilities and responsibilities
the one towards the other in the event of a divorce". Pre nuptial
agreements are not maintenance agreements (by definition they are not
entered into by parties who are husband and wife (Matrimonial Causes Act
1973 s34(2)). Nor are they ante nuptial settlements, which are settlements
in contemplation of marriage, not divorce. Ante nuptial settlements must
confer a benefit or benefits on spouses in their capacity as husband and
wife, not former spouses.1.3. There are 3 references in Duckworth.2. The
traditional view2.1. Rayden paragraph 19.14 states in bald terms that ante
nuptial agreements are unenforceable in English law. 2.2. Duckworth says
that Britain has a rule of public policy that agreements made in
contemplation of future separation are contrary to public policy and void as
weakening the institution of marriage. 2.3. The traditional view was
expostulated in Hyman [1929] AC 601 where the HL said in terms that it is a
matter of public policy that the parties cannot by agreement oust the
jurisdiction of the court. Any covenant not to claim is void. 2.4. We all
speak of the section 25 factors. There is no reference to pre nuptial
agreements. Courts have on occasions tried to give it relevance by calling
it "conduct" (Brockwell v Brockwell (1975) 6 Fam Law 46) or, more recently,
one of the "circumstances of the case". 2.5. In Edgar it was said that men
and women of full age, education and understanding, acting with competent
advice available to them, must be assumed to know and appreciate what they
are doing. The courts have generally upheld separation agreements, subject
to important safeguards such as the need for legal advice, (inequality of
bargaining power; Xhydhias etc) whilst stressing that agreements are not
contractually binding but are always subject to the approval of the court,
underlined the desire to hold parties to their agreements. 2.6. Agreements
between a couple before their marriage are enforceable in the following
variety of circumstances:2.6.1. if they are pre-nuptial settlements2.6.2. if
they are deeds of gift2.6.3. if they are declarations of trust2.6.4. if they
constitute any other agreement complying with the general law of contract
and not interpreted by the court as being contrary to public policy. 2.7.
But the courts have generally adopted a different approach to pre-nuptial
agreements, saying that substantial weight will not be given to them. This
view was stressed in F v F (ancillary relief: substantial assets) [1995]
2FLR 45 ("in this jurisdiction they must be of very limited significance").
3. The wind of change3.1. In S v S (Divorce: staying proceedings) [1997]
2FLR 100 the judge determined an application for a stay of divorce
proceedings upon the contents of a pre-nuptial agreement. 3.2. More recently
in N v N (Jurisdiction: pre-nuptial agreement) [1999] 2FLR 745, Wall J
recorded that the attitude of the English courts to pre-nuptial agreements
are perceived as contrary to public policy for undermining the concept of
marriage as a life long union. But he went on to hold, in the special
circumstances of this case, that, whilst unenforceable, pre-nuptial
agreements could have evidential weight when the terms of the agreement were
relevant to an issue before the court in subsequent proceedings for divorce.
The existence of the agreement, and the weight to be given to it, were both
factors to be taken into account in the overall balance when the court was
deciding, on the facts of the individual case, whether or not to exercise
its discretion under s25 of the Matrimonial Causes Act 1973 to make orders
for financial provision under sections 23 and 24. 3.3. But it is important
to note the particular facts of N v N, where the relevant clause of a
pre-nuptial agreement addressed issues relating to the obtaining of a Get
from the Beth Din. 3.4. The Court of Appeal had cause to consider the issue
in the unreported case of Wyatt-Jones v Goldsmith (28th June 2000), but the
facts of that case are exceptional and wholly outside the facts of any
average case. 4. White v White4.1. In an article in the April 2001 edition
of Family Law, Simon Bruce argued that the decision of the House of Lords
was likely to make pre-nuptial agreements more popular with spouses who wish
to avoid an equality of distribution. He also argued that respecting
outcomes envisaged by pre-nuptial agreements would increase a trend towards
litigation truly becoming the lesser alternative method of problem solving.
4.2. In M v M [2002] 1 FLR 654, Connell J did allow the existence of a
pre-nuptial agreement significantly to affect the award that he made to the
wife. He said that it did not matter whether the court treated the
pre-nuptial agreement as a circumstance of the case or as an example of
conduct which it would be inequitable to disregard. Under either approach,
while the court was not in any way bound by the terms of the pre-nuptial
agreement, the court should look at it and decide in the particular
circumstances what weight should, in justice, be attached to the agreement.
This agreement did not dictate the wife's entitlement, but had been borne in
mind as one of the more relevant circumstances of the case and had tended to
guide the court to a more modest award than might have been made without it.
It would have been as unjust to the husband to ignore the existence of the
agreement and its terms as it would have been to the wife to hold her
strictly to those terms. In the post White era, the issue that Connell felt
he needed to address was why he should depart from equality. 5. "Supporting
Families" 5.1. The complex issue of the family was considered by the new
Labour government in 1998 in the government Green Paper "Supporting
families" dated 4th November 1998. There is a list of 6 circumstances in
which it was suggested that such an agreement would not be legally binding.
· Where there is a child of the family, whether or not that child was alive
or a child of the family at the time the agreement was made · Where under
the general law of contract the agreement is unenforceable, including if the
contract attempted to lay an obligation on a third party who had not agreed
in advance · Where one or both of the couple did not receive independent
legal advice before entering into the agreement· Where the court considers
that the enforcement of the agreement would cause significant injustice (to
one or both of the couple or a child of the marriage) · Where one or both of
the couple have failed to give full disclosure of assets and property before
the agreement was made · Where the agreement is made fewer than 21 days
prior to the marriage.5.2. No legislation has yet followed the Green Paper.
It is interesting to consider:Ø the relevance (if any) of a Green Paper on
the decision of a court;Ø the extent to which courts should impose what
government has separately considered, but failed to introduce. 6. K v K6.1.
On 5th July 2002, Rodger Hayward Smith QC (sitting as a deputy judge of the
family Division) delivered judgment in the case of K v K (as yet unreported,
but noted in December 2002 Family Law). 6.2. The facts of the case
summarised The following findings of fact were made:1. The wife was aged 28
and has assets in the region of £1m. The nature of the trust within which
those assets were held meant that the capital should be treated as a source
of income rather than capital available for the purpose of her housing.2.
The husband was aged 39 and had built up substantial assets by way of
property dealing and was worth at least £25m, to which the wife had made no
contribution.3. The wife was intelligent but not well versed in financial
matters.4. The wife's position, on discovering that she was pregnant, was
that she did not want to be a single mother bringing up a child alone.
Either they should marry or she would seek to have the pregnancy terminated.
She loved the husband and thought that their marriage would be successful.
5. The husband was wholly opposed to termination but did not feel that they
were ready to marry.6. At the end of a 5 week holiday, the husband proposed,
but on the basis that they would not marry for some time, and certainly not
until after the baby was born. The wife agreed.7. The wife's family put
them both under pressure to marry before the baby was born. 8. The husband
and the wife's father met and were both in favour of a pre nuptial
agreement. 9. The wife's father saw a pre nuptial agreement as a carrot to
persuade the husband to marry the wife before the baby was born.10. At no
time did the husband tell the wife that he would not marry her without a
pre-nuptial agreement.11. The husband did not put the wife under any
pressure to sign the agreement.12. The wife understood the agreement but did
not really care about it and was not interested in it.13. The husband and
the wife were advised that a pre nuptial agreement would not be strictly
binding on a court, but in the event of divorce would be taken into account.
Having said that, it would be less relevant the longer the marriage went on
for, and if children were involved it was not likely to be of significant
value but may still be of some evidence as to intention. To maximise the
influence, both parties should take independent legal advice.14. The
husband, the wife and the wife's advisors all knew that the wife was
pregnant.15. The husband indicated that he wished fully to provide for any
children and a clause was inserted to that effect.16. There was not full
disclosure of assets, although the decision not to press for values came
from the wife's side and it was known that the husband was very wealthy. 17.
The pre-nuptial agreement was signed the day before the parties married.18.
After the marriage the husband and the wife lived comfortably but they did
not live the lifestyle of the ostentatious rich and neither of them have
ever done so, apart from expensive holidays. 19. It was always intended by
the parties that they would eventually move to a very grand property
purchased by the husband and worth upwards of £11m. 6.3. The test set out by
the court: The judge was referred to the authorities, including those set
out above, and said that he distilled from the authorities the following
questions to be asked in determining the issue whether as against the wife
the agreement is binding or influential in any of the decisions that he had
to make: 1. Did she understand the agreement? 2. Was she properly advised as
to its terms?3. Did the husband put her under any pressure to sign it?4. Was
there full disclosure?5. Was the wife under any other pressure?6. Did she
willingly sign the agreement?7. Did the husband exploit a dominant position,
either financially or otherwise?8. was the agreement entered into in the
knowledge that there would be a child?9. has any unforeseen circumstance
arisen since the agreement was made that would make it unjust to hold the
parties to it?10. What does the agreement mean?11. Does the agreement
preclude an order for periodical payments for the wife?12. Are there any
grounds for concluding that an injustice would be done by holding the
parties to the terms of the agreement?13. is the agreement one of the
circumstances of the case to be considered under section 25?14. Does the
entry into this agreement constitute conduct which it would be inequitable
to disregard under section 25(2)(g)? 6.4. He then went on to pose the
question whether he was breaking new ground by holding the wife to the
capital terms of the agreement, to which he said the answer was "no",
referring to Wilson J in S v S and to Connell J in M v M. 6.5. The judge
gave effect to the capital part of the pre-nuptial agreement by awarding the
wife the £100,000 plus 10% per annum for which they had contracted. He
interpreted the phrase "reasonable financial provision for the child" to
mean in the facts of this case a lump sum of £1.2m for a suitable house for
the wife and child, to be held in trust until the child finishes full time
education, together with the agreed £15,000 pa periodical payments for the
child. He also ordered the husband to make periodical payments to the wife
in the sum of £15,000 pa during the period of the trust. 7. Issues posed by
the judgment7.1. The wife was advised that the agreement would not be
binding, especially if there were children. It is hard to see how that
advice could have been wrong at the time that it was given. In the event,
the agreement was largely upheld. 7.2. The judge effectively ignored the
Green Paper, saying that he applied the law as it is now, and not as it may
or may not be after discussion and consultation elsewhere. This arguably
ignored the fact that the whole point of the Green Paper was to try and
change the law as to pre-nuptial agreements. Arguably, what the judge did
was to apply the law as it might have been after the Green Paper, had it
emerged into legislation. It is interesting to note that, even if the Green
paper had become an Act of Parliament, the pre-nuptial agreement in this
case would not have been binding, given that: (a) it was signed fewer than
21 days before the marriage (b) there was a child (c) full disclosure was
not given. 7.3. The judge found that the wife was not under pressure to
sign the agreement. Perhaps she was not under inappropriate pressure from
the husband, but the fact that she was already 5 months pregnant, that she
wanted a termination if they did not marry and that the husband was utterly
opposed to termination may be thought by some to amount to pressure. 7.4. On
his own admission (although at times he tried to back track from this) the
husband was a wealthy man who could afford any order that the court might
make. In these circumstances, it is a matter for debate whether the wife
was fairly treated. The only career she ever had was as a model, which she
ceased when she became pregnant. There was no credible evidence that she
would return to this career. She had no qualifications. Her primary task
for the next 20 years will be the care of the parties' child, whereafter she
will return the family home to the husband who, unless his fortunes have
drastically reduced, will have no requirement for that money. Maybe the
judge assumed that she will inherit, or re-marry: as to the former, there
was no evidence save for a general statement that the wife had a wealthy
father. What if he were to re-marry, or squander his fortune, or live to a
ripe old age, or prefer others in his will? As to re-marriage, what if the
wife were so in love with the husband that she could not contemplate another
marriage? In any event, why should she have to re-marry to be properly
housed having devoted her middle years to child care? 8. Insurance Issues
8.1. The usual minimum BMIF cover is £2.5m. This tends to work out at about
1% of gross fee income, although it varies according to practice areas. 8.2.
For PI claims, the relevant period of cover is NOT the year when you are
negligent, but the year of claim. Pre nuptial agreements therefore raise
worrying insurance issues. 8.3. This year, the cost of top up insurance was
:In excess of £2.5m:Limit Premium2.5 4605 9357.5 1,32012.5 2,06017.5
2,75022.5 3,43027.5 4,11032.5 4,79538.5 5,4808.4. What happens when you are
asked to draft a pre nuptial agreement for a fabulously wealthy client?
What are the insurance ramifications? I recently learned that most
attorneys in California won't draft pre nuptial agreements because the
insurance position renders them unprofitable. 8.5. Should we as a profession
be taking steps to limit liability, and to what extent would this be
enforceable? 8.6. Does this mean that we need greater knowledge of other
jurisdictions, and in any event to what extent is a jurisdiction clause
likely to be valid? 8.7. What is the position at the bar where we don't even
have a contract with our lay clients? 9. The future 9.1. Where next? There
can be no doubt that the mood is presently in favour of paying more
attention to pre nuptial agreements than was formerly the case. Like so
many other areas of the law, the present situation is unclear and we cannot
easily advise clients what lies ahead. Few would probably doubt now that
future developments will go in broadly the same direction. 9.2. The "old
law" in big money cases has been re-written (or, as we should say, the law
has been "re-stated"). In the old days, a wife got her reasonable
requirements (albeit generously interpreted in the bigger cases). Now that
there is no limit (other than, perhaps, 50%), wealthy spouses can now be
expected to take steps to protect their wealth. It is suggested that pre
nuptial agreements will have greatest effect in "mature marriages" between
older couples where children are not part of the plan and money has already
been made. KvK, of course, was far from one of those cases. 9.3. Is there
a need for legislation? Even if there is such a need, is it likely to
happen? Nicholas Francis QC November 2003
Brussells II Nicholas Mostyn QC31 January 2004Rome ConferenceENGLAND 0 ITALY
2A BRUSSELS II CASE STUDY1. Consider the facts of the following fictitious
case (which is in fact modelled on a real case argued before the High Court
in London, but where identities have been obscured and other facts changed
in order to preserve confidentiality).2. The wife (W) was born English. The
husband (H) was born Italian. On the parties' marriage in 1975, W moved
permanently to Italy where the parties spent their entire married life
together. By virtue of her marriage W acquired Italian citizenship which she
maintained (as well as her British citizenship) throughout the de facto
duration of the marriage. The marriage produced three sons all now over 18
years of age. Prior to the marriage the parties entered into an Italian
marriage contract providing for separation of property.3. The parties never
lived in England, only in Italy. Whenever the parties came to England to
visit W's family, they used to stay with W's sister at her home, or in
hotels. 4. The marriage was entirely Italian. The marital home was in
Italy.5. The parties separated in 1999. In January 2001 the parties jointly
applied in Rome for a legal separation, which order was made by the
Tribunale di Roma in February 2001. That order provided (by approving the
separation report) that the marital home in Rome should be awarded to W,
child maintenance awarded for the youngest son, and alimony for W.6. In the
Summer of 2002 W moved back to England.7. In November 2002 the wife filed a
petition for divorce in the English court.8. The question that arises is
which is court is "first seised" for the purposes of Article 11 of Brussels
II ? SCOPE OF APPLICATION OF BRUSSELS II: THE RATIONE MATERIAE ISSUE9. Art
11 is entitled Lis Pendens and Dependent Actions. According to Paragraph 53
of the Borras Report, Art 11(1) contains the traditional lis pendens rule
(the exclusive jurisdictional rule of prior temporis, i.e. first seised),
for cases in which the subject-matter and cause are the same between the
same parties. It providesWhere proceedings involving the same cause of
action and between the same parties are brought before courts of different
Member States, the court second seised shall of its own motion stay its
proceedings until such time as the jurisdiction of the court first seised is
established. 10. Art 11(2) extends this rule to what are called in the
Regulation "dependent actions". Dependent actions are proceedings not
involving the same cause of action but which are proceedings for divorce,
annulment or judicial separation between the same parties. Art 11(3) sets
out the consequences of the acceptance of jurisdiction by the court first
seised: the court second seised shall decline jurisdiction.11. Art 11(2)
provides:Where proceedings for divorce, legal separation or marriage
annulment not involving the same cause of action and between the same
parties are brought before the courts of different Member States, the court
second seised shall of its own motion stay its proceedings until such time
as the jurisdiction of the court first seised is established.Art 11(3)
provides:Where the jurisdiction of the court first seised is established,
the court second seised shall decline jurisdiction in favour of that court.
In that case, the party who brought the relevant action before the court
second seised may bring that action before the court first seised. 12.
Jaffey on the Conflict of Laws (2nd ed, Butterworths, 2002) provides, at p
387, an illustration of the operation of Art 11(2) :So, if a French court is
seized of proceedings for legal separation, an English court must decline
jurisdiction if divorce proceedings are commenced here.13. The authors go
on to observe that Art 11(2) of Brussels II is in fact tighter than the
analogous Art 28 of Brussels 1 under which the court has a discretion to
decline jurisdiction where there are related proceedings pending in another
member state: no such discretion is afforded by Art 11(2) of Brussels II. Of
course, Art 11(2) is itself limited to the situation where the proceedings
in the two counties are for divorce, annulment or legal separation. 14. In
my article at [2000] IFL 162, republished updated and slightly amended at
[2001] Fam Law 359, I submitted that the Regulation was clearly referring to
the situation that obtains here, namely where different matrimonial causes
have been commenced in different countries. 15. That view, it is suggested,
is conclusively affirmed by the terms of Paragraphs 53 to 57 of the Borras
report, and the terminology of the Italian, Spanish and French texts of the
Regulation. These texts refer to proceedings for divorce, legal separation
or marriage annulment, neither having the same "oggetto, objeto, objet"
(object) nor the same "titolo" (title) (Italian) or "causa/cause" (cause)
(Spanish and French). This makes it clear that Article 11(2) and (3) applies
in a case such as this.16. Furthermore, the effect of Article 11(2) and (3)
on the facts of our case is to prevent the wife for ever from petitioning
for divorce in any other contracting state other than Italy. This is what I
opined in my article at [2001] Fam Law 365. This is wholly consistent with
the policy of the Regulation, namely that the court first seised should have
exclusive jurisdiction. For these purposes it has been agreed by the member
states that those countries that only allow divorce after a period of
separation should be put on an equal footing to those that permit instant
divorce. In the latter type of jurisdiction the filing of a petition, will
prevent, for ever, once jurisdiction is established, the pursuance of a
later petition in another contracting state. It is therefore logical and
right that an equivalent rule should apply to those countries that only
permit divorce after a period of separation. 15. The policy underlying the
relevant Convention provisions is explained in the Borras Report, especially
Paragraphs 52 and 54. Their purpose is to accommodate differences between
Member States in relation to the availability of relief by way of divorce,
annulment and legal separation. As the Report points out, some national laws
make no provision for separation or annulment, but only for divorce.
Further, the very notion of lis pendens differs between Member States. Some
require the same subject-matter, same cause of action and same parties,
whereas others require only the same cause of action and the same subject
matter. According to Paragraph 54 of the Borras Report, Art 11(2) is
designed specifically to deal with the differences between the various
Member States on the admissibility of proceedings for separation, divorce or
marriage annulment. The solution arrived at avoids 'retaining the force of
attraction of the jurisdiction producing the greatest effects...' 16.
Therefore merely because it would be open to either party to petition for
divorce in Italy in February 2004, three years having elapsed by that date
since the order for legal separation, it does not follow that the wife (or
the husband for that matter) can petition on that date in some other
contracting state which might otherwise have jurisdiction. The effect of Art
11(2) and (3) is precisely the opposite. 17. In our case W argues that
because there is no existing lis between the parties, once the Italian court
had validated their consensual separation, the case is taken out of Article
11, and therefore the English Court is first seised. The answer to this is
first that Lis pendens is the juridical notion employed by, and confined to
Art 11(1) of Brussels II, which is not relevant here. This case concerns Art
11(2), which deals with the altogether distinct juridical notion of what are
in the English text described as 'dependent actions', but, having regard to
the Italian, French and Spanish texts are perhaps better described as
'related', 'connected' or 'associated' actions. The term is connessione in
Italian, dependentes in French and dependientes in Spanish. Cassells Italian
Dictionary translates connessione as "connection".18. Does Article 6 aid
W's argument that there must be a continuing lis? Article 6 provides:
Without prejudice to Article 2, a court of a Member State which has given a
judgment on a legal separation shall also have jurisdiction for converting
that judgment into a divorce, if the law of the Member State so provides.
19. W asks why is Article 6 worded as it is? Why is the jurisdiction
created by Article 6 expressed to be "without prejudice to" and therefore
additional to Article 2? In the same way, why is there "also" this
jurisdiction? W contends that if H is correct Article 6 should read:
"Without prejudice to Notwithstanding Article 2, a court of a Member State
which has given a judgment on a legal separation shall also have exclusive
jurisdiction for converting that judgment into a divorce, if the law of the
Member State so provides."20. Therefore W argues that the very existence of
Article 6, and its wording, must mean that where earlier separation
proceedings have been concluded it is open to a party to those proceedings
to travel to another member state, and provided that they satisfy the
jurisdictional rules under Article 2, commence proceedings there, which will
trump any later proceedings in the courts of the country which ordered the
separation. 21. H's response to this is that the object of Article 6 is
clearly to permit the later conversion of a legal separation into a divorce
in circumstances where by that later date there is no primary jurisdiction
under Article 2. It supplies a limited extension to the jurisdictional rules
under Article 2. The Borras Report (see Paragraph 43) is tolerably clear on
this point.22. In any event, the relevant provisions of Italian domestic law
make it clear, I believe, that the Italian court remains seised of the
parties' separation in the context of a change in their personal status. I
gather that under Italian law, formal judicial approval is necessary to give
the parties' consensual separation an initial legal effect: see Italian
Civil Code, Art 158(1). Where divorce is based on separation, the court must
be satisfied that the separation has continued uninterrupted for at least
three years from the date when the spouses appeared before the court in the
separation procedure: Law No 898 of 1 December 1970.23. Accordingly there
is, in fact, a continuing lis in Italy, if this is to be implied as a
condition of Art 11(2). But such a condition should not be implied for it
would make a nonsense of Brussels II for those countries that require an
order of separation followed by a period of separation before a divorce can
be obtained. Italy and Portugal are such countries. Ireland requires a
period of 4 years separation, but does not require a decree of Judicial
Separation at the commencement of the period. But imagine that an Irish
decree of Judicial Separation had been obtained and that 3½ years of
separation had thereafter elapsed. Is it seriously to be argued that in such
circumstances an English petition could be filed which robbed the Irish
court of jurisdiction to pronounce a divorce in 6 months' time? It is
submitted that this would so fundamentally encroach into the intent of the
Regulation as to require attention by the European Court of Justice. 24. In
this case the English judge posed a hypothetical question concerning the
application and operation of Art 11(2) in the situation where a country
'countenances separation but not divorce'. I replied that no such country
exists, but speculated that if it did, then a party would be unable to get
divorced in the EU and would have to seek a divorce elsewhere.25. It is now
to be noted, as a matter of interest, that the learned judge's hypothetical
question will become reality in the near future. Malta will join the EU from
1 May 2004, and at present permits no divorce. So where judicial separation
proceedings have been commenced on the Island, a Maltese spouse will have to
seek her or his divorce in the sunnier climes of, say, Nevada. SCOPE OF
APPLICATION OF BRUSSELS II: THE RATIONE TEMPORIS ISSUE 26. A fundamental
issue is that of the scope of application of Brussels II. For Article 11 to
apply, the proceedings must be within the scope of Brussels II ratione
temporis (as well as ratione materiae).27. Here the judicial separation
proceedings in Italy occurred before 1 March 2001(the date on which the
Convention entered into force) and the filing of the divorce petition in
England after that date. Art 42 states:The provisions of this Regulation
shall apply only to legal proceedings instituted...and to settlements which
have been approved by a court in the course of proceedings after its entry
into force28. The question is: does the Regulation catch cases where the
dependent actions (to use the terminology of Art 11) straddle the date on
which the Regulation came into force?29. The Regulation applies in this
situation. Such a conclusion is supported by the plain words of Art 11, by
authority, and by a common sense and purposive construction of the
Regulation as a whole.30. Art 11(2) and (3) require the court second seized
to stay its proceedings or to decline jurisdiction where another court of a
Member State has been first seised of a dependent action. In our case, in
the literal sense of the ordinary plain meaning of the words employed (the
first principle of statutory construction), proceedings have - as a factual
matter - been brought before courts of different member states. The English
court is incontrovertibly - as a factual matter - second seised, and has
become second seised on a date after the entry into force of the Convention.
There is no justification for construing these provisions in a technical way
which would require being 'seised' to be confined to the situation where
both courts are seised after the date of entry into force of the Convention.
The focus of Art 11 is the staying or declining of jurisdiction by the court
second seized. It is the date on which that court becomes seised which is
crucial. Provided the second court was seised after 1 March 2001, it matters
not that the first court was seised before that date.31. Any other
construction would produce results which are manifestly absurd. All cases
which straddled 1 March 2001 would be excluded from the Convention, which
cannot have been the intention. 32. As stated, Art 42 (1) (transitional
provisions) states that 'the Regulation shall apply only to legal
proceedings instituted...after its entry into force'. However, that
provision does not expressly state that all relevant proceedings must have
been instituted after that date in order for Convention to apply.33. The
issue of the scope of application of ratione temporis in a case of
straddling proceedings has been determined by the European Court of Justice
in the context of Brussels I as amended by Art 29 of the San Sebastian
Convention 1989 (the Accession Convention of Spain and Portugal) in Von Horn
v Cinnamond [1997] ECR I - 5451 [1998] QB 214.34. The reasoning in Von Horn
is directly applicable by analogy in the present case, notwithstanding that
different Conventions were involved in the two instances. In Wermuth v
Wermuth (No 2) [2003] 1 FLR 1029 the Court of Appeal in London had express
recourse to authorities decided under Brussels I in the interpretation of
Brussels II. The rationale is that the latter Convention is modelled on the
former.35. The outcome in Von Horn confirms that the English court is
obliged to decline jurisdiction in W's proceedings, provided that the
Italian court assumed jurisdiction in the judicial separation proceedings on
the basis of a rule which accords with the provisions of Chapter II of
Brussels II. This was the case, in that the assumption of jurisdiction by
the Italian court was on the basis of the spouses' habitual residence in
Italy, and their Italian nationality.36. Von Horn was a case which
concerned the sale of shares, where the two relevant proceedings straddled
the date of the coming into force of Brussels I between Portugal and the
UK.37. The convention of 26 May 1989 on the accession of Spain and Portugal
to Brussels I ('the San Sebastian Convention') entered into force between
Portugal and the UK on 1 July 1992. In August 1991 C (domiciled in the UK)
brought proceedings in Portugal for a declaration that he did not owe VH
(domiciled in Portugal) a sum claimed by her in relation to the sale of
shares; VH counterclaimed for a declaration to the opposite effect and for
an order for payment. In November 1992 VH brought an action against C in the
High Court in England for payment of the sum claimed and damages. C issued a
summons for a declaration that the High Court lacked jurisdiction, relying
on Art 21 of Brussels I as amended by the San Sebastian Convention. A Master
stayed the English proceedings, but the High Court subsequently allowed VH's
appeal against that decision. The Court of Appeal dismissed C's appeal. The
House of Lords gave C leave to appeal. The House of Lords considered that an
interpretation of the relevant provisions of the Brussels and San Sebastian
Conventions was necessary to enable it to give judgment, and referred the
ratione temporis question to the European Court of Justice. The Commission,
through the opinion of the Judge Rapporteur, suggested that the English
court was not required to decline jurisdiction but had discretionary power
to do so. 38. However, the Advocate-General opined, and the ECJ held, on the
reference that on the true Construction of Art 29(1) of the San Sebastian
Convention, when proceedings involving the same cause of action and between
the same parties were pending in two contracting states, the first
proceedings having been brought before the date of entry into force of
Brussels I between those states and the second proceedings after that date,
the Court second seised was to apply Art 21 of the Brussels Convention if
the court first seised had assumed jurisdiction on the basis of a rule which
accorded with the provisions either of Title II of Brussels I or of another
convention in force between those states. It further held that in its
deliberation the court second seised was to assess the jurisdiction of the
court first seised not in the light of the law peculiar to its own state but
having regard only to the rules of Brussels I or any other convention
between the states, which were of common application.39. The application of
the ECJ's ruling on the reference in Von Horn to our case would require the
English court to decline jurisdiction on W's English petition, as it is
clear that the Tribunale di Roma assumed jurisdiction on the basis of the
parties' habitual residence in Italy and their Italian nationality, which
accords with the provisions of Chapter II of Brussels I (the equivalent to
Title II of Brussels I). The transitional provision of Brussels II (Article
42) is worded in the same way as Art 29 of the San Sebastian Convention, the
interpretation of which was in issue in Von Horn.40. This interpretation
accords with the purposive construction of the Convention adopted by the
ECJ, and applied here by the Court of Appeal to Brussels II by the decision
of Wermuth v Wermuth (No 2).41. The policy underpinning the decision of the
ECJ in Von Horn is the avoidance of irreconcilable judgments being delivered
in different States in the EU: see [1998] QB 214 at 240C - H. That policy
readily translates to the circumstances of the present proceedings.42. You
will probably want to know the result of the real case. There never was one,
because the parties settled all their differences the day before the judge
was due to give his judgment!Nicholas Mostyn QC21 November 2003
The Judge in Proceedings under the Children Act 1989 Judge David Harris QC
and Judge Maureen Roddy31 January 2004Rome ConferenceTHE JUDGE IN
PROCEEDINGSUNDER THE CHILDREN ACT 1989byJUDGE DAVID HARRIS QCandJUDGE
MAUREEN RODDYQUEEN ELIZABETH II LAW COURTS, LIVERPOOL 1. INTRODUCTION:
The object of this paper is (i) to identify certain important aspects of the
nature, ethos, and procedural management of litigation under the Children
Act 1989 relating to the welfare of children, and (ii) to discuss the impact
which these features have on the role of the judge hearing such cases. 2.
THE INVESTIGATIVE NATURE OF CHILDREN ACT PROCEEDINGS: The Children Act 1989
is the most important statute ever enacted in the field of English family
law. It covers both (i) the intervention of the State in the child's family
life, primarily, though by no means exclusively, through care or supervision
proceedings ('public law' cases), and (ii) other conflicts as to future
arrangements for the child, mainly, but not entirely, within the child's
family ('private law' cases). The main area of law which is not covered by
the 1989 Act is adoption, which is regulated by a different statutory code.
In the field of private law, the 1989 Act replaced the regime of custody and
access orders under the Matrimonial Causes Act 1973 with orders for
residence and contact, reinforced by the concept of parental responsibility
for the child. Custody orders in particular were considered to be indelibly
associated in the public perception with outdated concepts of proprietorial
rights over or interests in the child, which impaired the ability of parents
to concentrate on the child's essential welfare interests, and were
productive of parental conflict. In the field of public law, the Children
Act substituted a new coherent and accessible code for the previous
bewildering array of different statutory provisions, regulating the
circumstances in which the State could remove a child from parental care or
supervise the exercise by the parents of their parental responsibility.
Section 1 (1) of the Children Act provides that when a court determines any
question with respect to the upbringing of a child, "the child's welfare
shall be the court's paramount consideration". Although the paramountcy
principle had existed in statutory form since 1925, the Children Act
provides for the first time in one statute a comprehensive framework of
legal principles, designed to safeguard and promote in practice the welfare
and protection of children. In determining the arrangements which will best
promote the child's welfare, the court must consider in particular a number
of specified issues, known as 'the welfare checklist'. These factors
include, by way of example, (a) the ascertainable wishes and feelings of the
child concerned (considered in the light of his age and understanding), (b)
his physical, emotional and educational needs, and (f) how capable each of
his parents, and any other person in relation to whom the court considers
the question to be relevant, is of meeting of his needs. Section 1 (2)
provides that "In any proceedings in which any question with respect to the
upbringing of a child arises, the court shall have regard to the general
principle that any delay in determining the question is likely to prejudice
the welfare of the children". Accordingly, one of the major
responsibilities of a judge hearing a Children Act case is to monitor with
care the progress of the litigation, and drive it forward proactively to
avoid unnecessary delay. Obviously, however, the capacity of the judge to
expedite the proceedings is dependent on a number of factors outside his/her
control, such as (a) the intrinsic difficulties and requirements of the
litigation, (b) the availability of suitable expert witnesses, (c) the
resource constraints of CAFCASS (the Children and Family Court Advice and
Support Service), (d) the availability of any necessary health and social
services resources and (e) the pressure on court time. We will return to
the question of delay when we consider the Protocol for Judicial Case
Management in Public Law Children Act Cases, which applies inter alia to all
applications issued on or after 1st November 2003. In Oxfordshire County
Council v. M it was held by the Court of Appeal that proceedings under the
Children Act relating to the welfare of a child are essentially
investigative and non-adversarial in nature. The duty of the court is "to
investigate and seek to achieve a result which is in the interests of the
welfare of the child" . In In re L (A Minor) (Police Investigation:
Privilege) , the House of Lords confirmed this fundamental principle , and
at page 31 Lord Nicholls summarised its essential consequences as follows:
"In practice the application of the paramountcy principle requires a judge,
in the fashionable jargon, to be proactive and not merely reactive. It
means that in family proceedings as defined in the Act, the court is not
concerned simply to decide an issue between the parties and to do so on the
basis of the evidence the parties have chosen to present. The court is
concerned to protect the child and promote the child's welfare. The court
is not confined to the issues, or the evidence, the parties have brought
forward. Nor is it confined to the alternative courses proposed by the
parties . During the proceedings the court may at any time, of its own
motion, take steps which it considers necessary or desirable to protect the
child or promote the child's welfare. The judge may call for more evidence
or for assistance from other parties or instigate applications for
appropriate orders".In these respects, the investigative nature of Children
Act proceedings, and accordingly, the functions of the judge, differ
fundamentally from the normal model of English adversarial proceedings, such
as applies in criminal cases and the majority of civil litigation. In
adversarial proceedings in English law, the parties in the main determine
the issues to be decided by the court, and (subject to a degree of judicial
control based on relevance, admissibility, and efficient case management)
decide the nature and extent of the evidence to be placed before the court.
Accordingly, rules of evidence and procedure, which derive from and support
the adversarial model, have in general been abandoned in Children Act
proceedings. 3. ETHICS, PRACTICE AND PROCEDURE SINCE THE IMPLEMENTATION OF
THE CHILREN ACT: In the period of only twelve years since October 1991, when
the Children Act came into force, the senior family law judiciary in England
has succeeded in redefining the ethos and practice applicable to cases
involving the welfare of children, in order to ensure, to the maximum extent
practicable, that family courts are in a position to make informed,
appropriate, and expeditious decisions about the best interests of the
children before them. The changes have been profound, not only in terms of
the individual principles laid down, but even more importantly in
revolutionising the philosophy and expectations as to how cases involving
the welfare of children should be conducted. The dominant philosophy is now
'transparency'. The English family courts require parties and their
professional teams to conduct children cases in an open, cooperative,
efficient, and restrained manner, which will best promote the ascertainment
of the truth and the determination of the child's best welfare interest.
Tactical manoeuvrings are deplored. The approach which now prevails was
described by the former President of the Family Division, Sir Stephen Brown,
as follows: "The Courts of this country are particularly anxious that in
children cases those representing them and who are representing the parties
in children cases should be specially experienced . The whole ethos,
following the coming into force of the Children Act, is that these cases
must not be carried on as battles in the old adversarial system, but should
be carried out much more discreetly having regard to the overriding
interests of the children. It is not in their interests that battles should
be fought" . Of course, the modern approach does not mean that Children Act
disputes are not firmly and thoroughly contested. It is necessary to an
effective investigation of all issues which bear upon the child's welfare
requirements that such issues should be properly explored and tested through
cross-examination and opposing evidence. Nevertheless, there is now an
important responsibility on the lawyers, and an important obligation on the
judge, to ensure that the litigation is conducted in the open and restrained
manner described. Should a lawyer substantially fail to comply with the
expectations that the case should be conducted openly and cooperatively,
with all cards on the table at the earliest possible time, the lawyer may
well find that his/her publicly funded costs are partly or even completely
disallowed, and if the default results in delay or in unnecessary
expenditure, the offending lawyer may find him/herself the subject of a
wasted costs order. The judge, therefore, exercises an important function
in ensuring that the case before him/her is conducted in the open,
restrained, and responsible way described. How open must the conduct of a
party and his/her legal representatives be? The investigative nature of
proceedings under the Children Act, in conjunction with the critical
importance of achieving an outcome which will best promote and secure the
child's welfare, have led to the expectation that parties to such
proceedings will make voluntary disclosure of all information and material
in their possession relevant to the issues before the court, even if
disclosure might damage the disclosing party's case . In In re L, the House
of Lords was invited to consider whether the dicta by judges of the Family
Division, asserting the existence of a duty to make full and frank
disclosure, represent good law. Lord Jauncey, with whose speech Lords Lloyd
and Steyn agreed, felt it unnecessary to decide whether the suggested legal
duty exists, but observed that "It may well be that this further development
of the practice in cases where the welfare of children is involved is to be
welcomed". On the other hand, Lord Nicholls, with whom Lord Mustill agreed,
expressed "grave doubts" whether the dicta asserting the duty are correct.
The issue has still not been authoritatively decided, but, notwithstanding
the reservations of the minority in In re L, in our experience many English
family law practitioners are now strongly influenced by the ethical
principle that a person, claiming a role in the child's life, has a
responsibility to assist the court to reach the best conclusion for the
child by making a frank disclosure to the court of relevant material and
information, and will give strong advice to that effect to his/her client.
If the client declines to accept the advice, and in effect insists that
relevant but damaging information be withheld by the court, then, depending
on the importance of the information, the legal representative may feel
obliged to withdraw. This is, however, a grey area, in which the response
of family lawyers varies. It would be idle to suggest that every case in
England is conducted with rigorous regard for the principles and philosophy
we have discussed. Some practitioners remain wedded to the old ways and at
times judges may be less than effective in controlling the conduct of
proceedings. Nevertheless, there has in general undoubtedly been a
fundamental cultural change amongst the family judiciary, family lawyers,
and expert witnesses, which assists the court to make a properly informed
determination of the child's welfare interests, concentrating on the real
issues and undistracted by tactical ploys. The judge self-evidently has an
essential role in achieving this desirable state of affairs. 4. JUDICIAL
CASE MANAGEMENT GENERALLY: Following the implementation of the Children Act
in October 1991, the English family courts gradually developed very
extensive powers to control the preparation and conduct of hearings in the
interest of the efficient and cost-effective discharge of their
investigative functions. In part, this important development was achieved
through statements of principle and practical guidance formulated by family
judges of the High Court and Court of Appeal in the course of their
judgments in specific cases. This developing jurisprudence on judicial
case-management was reflected and elaborated in Practice Directions to the
judiciary published by the President of the Family Division of the High
Court and in the early years of the Children Act, by the guidance produced
by the now sadly defunct Children Act Advisory Committee. The jurisprudence
was developed principally in public law cases, but the guidance on best
practice formulated by the judges in public law litigation applies also to
private law cases. In Re G (Case Proceedings: Split Trials) , Lady Justice
Hale observed: "We have had timetabling and active case management in care
cases for a very long time now. We are proud in the Family Division that we
embarked on that process long before it was embarked upon in other areas of
the civil law". The best practice in judicial case management is
reflected, and enormously elaborated, in the Protocol for Judicial Case
Management in Public Law Children Act Cases, mentioned above. The
President's Practice Direction, to which the Protocol is annexed, contains a
further annex, containing a number of 'Principles of Application', which are
intended to govern the operation of the Protocol. Paragraph 2.1 of the
Practice Direction provides that "The purpose of the Practice Direction,
Principles and Protocol is to ensure consistency in the application of best
practice by all Courts dealing with care cases and, in particular, to
ensure: (a) that care cases are dealt with in accordance with the
overriding objective; (b) that there are no unacceptable delays in the
hearing and determination of care cases; and (c) that save in exceptional or
unforeseen circumstances every care case is finally determined within 40
weeks of the application being issued" (emphasis added). Paragraph 3.1
defines the 'overriding objective' in the following terms: "The overriding
objective is to enable the Court to deal with every care case (a) justly,
expeditiously, fairly and with the minimum of delay; (b) in ways which
ensure, so far as is practicable, that (i) the parties are on an equal
footing; (ii) the welfare of the children involved is safeguarded; and
(iii) distress to all parties is minimised; (c) so far as is practicable,
in ways which are proportionate (i) to the gravity and complexity of the
issues; (ii) to the nature and extent of the intervention proposed in the
private and family life of the children and adults involved". Paragraph 3.3
requires the parties to help the Court to further the overriding objective.
The Protocol and its associated documentation comprise 95 pages, which
cannot be effectively summarised for the purpose of this paper. A key
objective is to ensure continuity of judicial case management by the early
appointment of one, and certainly no more than two, case management judges,
who will undertake the proactive and informed management of the case through
its various judicial stages to the Final Hearing. Where practicable, the
Final Hearing should also be undertaken by the, or one of the, case
management judge(s). The Protocol provides for three principal intermediate
hearings in preparation for the Final Hearing: (i) an Allocation Hearing
which, in the County Court, must take place no later than the 11th day after
the commencement of the proceedings, (ii) the very important Case Management
Conference which, in the County Court, must take place between the 15th and
60th days after the commencement of proceedings, and (iii) the final
directions hearing which must be listed by week 37, although it can be
dispensed with, should it be unnecessary. Other intermediate hearings may
be listed, if required by the needs of the individual case. At each
hearing, the Judge is expected to consider and, if appropriate, determine a
substantial number of defined issues or considerations, and to give
appropriate directions for the preparation of the case, utilising standard
or 'standard variable' forms. The Protocol expects that there will also be
continuity on the part of the advocates, and requires the arrangement of
Advocates Meetings, to be attended by the parties' lawyers and by any
unrepresented party prior to the Case Management Conference and the Final
Directions Hearing. The process of achieving efficient and consistent
management of public law cases by the judiciary is intended to be
facilitated by the use of detailed, structured, standard form questionnaires
and checklists. A further important and laudable objective of the
Protocol is to reduce the enormous volume of documentation, which has
conventionally been generated in any public law case of even moderate
complexity. By way of example, it was commonplace for the relevant history
and essential chronology to be reproduced in each main social work
statement, and each medical and mental health report. In addition, vast
quantities of social work and medical records were frequently lodged with
the Court, few of which were actually deployed during the hearing. The
Protocol seeks to avoid this costly and time-consuming exercise by (i)
limiting the core documentation, and (ii) the use of supporting records. It
is too early to assess whether the Protocol will achieve the efficient,
focused, proactively managed, and expeditious conduct of public law cases,
which is its essential object. From the judicial perspective, the case
management judge can only rigorously control the proceedings, as
contemplated by the Protocol, if he/she has sufficient time, in advance of
the hearing, to (a) read the relevant papers which, even if the Protocol is
properly applied, will be extensive, (b) consider the parties' proposals for
the further management of the case in their completed questionnaires, and
(c) determine whether the case can be more efficiently progressed by some
other directions, not contemplated by the parties. Not infrequently,
however, the volume of work before the Judge in any given day may be too
great for the Judge to carry out the pre-reading contemplated by the
Protocol or to conduct the hearing in the detail required by the Protocol.
Should this occur, as is not infrequently the case, the proactive and
rigorous case management expected of the Judge by the Protocol may be
significantly compromised. It is to be hoped that as the Protocol gradually
achieves the slimming-down of public law cases, judicial time will be
released which can then be devoted to the degree of pre-reading and
proactive management contemplated by the Protocol. Should the Protocol prove
successful, it is likely that the principles, practices, and ethos of the
Protocol will gradually be applied, to the extent that they are relevant, to
private law proceedings. This process will inevitably be driven by the
judges in their case management of private law disputes.5. JUDICIAL
CASE-MANAGEMENT AND EXPERT EVIDENCE: Appendix C to the Protocol comprises a
'Code of Guidance for Expert Witnesses in Family Proceedings'. The Code
reproduces case law on the management of expert evidence, which has been
developed by the senior judiciary since the implementation of the Children
Act, and is of equal importance in private law cases. It is now
well-established in public proceedings that the role of the expert is to
assist the court with a responsible and balanced opinion, and not to adjust
or distort his/her report and/or evidence in a manner designed to promote
the client's case. The expert must not mislead by omission, and must not
fail to discuss material matters which detract from his/her concluded
opinion or may be inconsistent with his/her client's position. The expert
should give essentially the same opinion, regardless of the client by whom
he/she is instructed. An expert witness who substantially defaults on these
responsibilities is likely to find him/herself criticised by the judge in a
reported case, and hence have his/her authority damaged, at least as an
expert witness. The insistence by the family judiciary during the last
decade or so that experts should fulfil their obligations to the court as
described above has effected a radical change in the conduct of professional
witnesses in family proceedings, with far more objective, carefully
considered and child centred reports and evidence. The insistence by the
court on good quality and objective expert evidence is reinforced by
judicial control through the court's case management power to approve of the
selection and instruction of experts, the timetabling of expert reports and
evidence, and the meeting of experts in order to identify the areas of
agreement and disagreement amongst them. Amongst the features most relevant
to the ambit of this paper are the following:(i) A lawyer, seeking leave to
instruct an expert, must support the application with details of the
expert's curriculum vitae, including area of specialisation and forensic
experience, the relevance of the opinion of the expert to the matters in
issue, and (to cite the Code of Guidance) "the specific questions upon which
it is proposed that the expert should give an opinion". The lawyer must
also ascertain the time required by the expert to furnish a report, together
with the availability of the expert to give evidence at the time the case is
likely to be listed. (ii) Should the Judge consider, in the light of his/her
experience, that the expert's opinion is unnecessary for the proper
determination of the issue in question, the Judge will refuse permission for
the expert's opinion to be obtained. It is not uncommon, for example, in a
public law case for one of the parties (normally a parent) to apply for a
psychological opinion on the quality of the attachment between the child and
that parent. If, however, there is no unusual dimension to the child's
attachment to the parent, the assessment of the attachment may well be
within the expertise of the local authority's key social worker and the
child's Guardian, who will also be trained in social work. In such
circumstances, the Judge may properly decide that the additional report of
an independent child psychologist is unnecessary to the determination of the
issues in the case, and refuse that party's application. (iii) Should the
Judge conclude that he/she would be assisted by the opinion of the proposed
expert, or of some other expert of the same specialty, the Judge will then
consider whether it is appropriate to allow the applicant party to instruct
the expert him/herself, or alternatively whether the expert should be
instructed by all parties acting jointly, or instructed on behalf of the
child alone, if the child is separately represented. In recent years, joint
instruction of an expert has become increasingly common, even in complex
cases. Self-evidently joint instruction may well avoid the proliferation of
experts on a particular issue, and prevent unnecessary delay and avoidable
expenditure of scarce public funds. But recent experience in England has
demonstrated the potential fallibility even of experts of high reputation,
and it is open to question whether this experience will result in a
reconsideration of the common practice of courts of insisting upon the use
of jointly instructed experts. (iv) Experts who are to give evidence at the
trial must be kept up-to-date on relevant developments, including further
expert reports, witness statements, and medical records. In addition, a
party seeking to cross-examine an expert on material which he/she has not
previously considered is obliged to bring that material to the expert's
notice prior to the hearing. Any failure to comply with this practice which
results in delay is likely to be visited by a wasted costs order. The
English courts will not tolerate cross-examination by ambush.(v) Save where
the experts are plainly in agreement, the Judge will direct at the Case
Management Conference that the experts should confer with each other in
order to discuss and explore the issues, and to identify those matters on
which agreement can be reached and those which remain in dispute, together
with the nature of and reasons for disagreement. The discussion, which may
be wholly or in part by telephone or video link, should be chaired by the
solicitor for the child (if available), and in a case of any complexity, an
agenda should be prepared and circulated in advance of the hearing. A
minute of the meeting, together with a statement of concurrence and
disagreement, should be prepared, served on the parties and filed with the
court. All these matters will be the subject of directions by the Judge at
the Case Management Conference.6. JUDICIAL CASE MANAGEMENT AND SPLIT
HEARINGS: In many public, and some private law cases, an issue may arise as
to whether a child has been physically or sexually abused and, if so, by
whom. Issues of this type will often be highly contentious and complex. The
outcome may well depend, not only on the credibility of the lay evidence,
but on vigorously disputed medical evidence as to the nature and
significance of physical findings by the doctors. Is an injury to a young
baby, for example, the result of abuse, the stresses of the birth process,
or some natural condition? If it was caused by an abusive act, what is the
time bracket during which the injury must have occurred, and which of the
relevant adults had the care of the child in that period? Until issues of
this sort have been determined, it may be difficult for a definitive
assessment to be made of the risks to the child in the care of each parent.
It may sometimes be convenient, therefore, for the factual issues relating
to the alleged abuse to be decided, at the earliest possible stage, so that
the assessment and determination of the child's consequential welfare needs
can then proceed with greater focus and expedition. Rule 4.14 of the
Family Proceedings Rules 1991 confers on the court the power to give, vary
or revoke directions for the conduct of the proceedings. It has been common
in public law cases for the court to utilise this power, in the exercise of
its case management functions, to direct a preliminary hearing of factual
issues, such as (i) the nature and extent of any injury suffered by the
child, (ii) whether such injuries or any of them were non-accidental in
causation, (iii) if so, the probable mechanisms by which the injuries were
caused and the likely perpetrator, and (iv) the extent of any failure by the
parent who did not inflict the injury to anticipate and protect the child
against the risk of injury from the perpetrator. It has in the past been
readily considered that this split hearing procedure will promote the most
expeditious and efficient resolution of the dispute. More recent
experience, however, has suggested that the benefits of split hearings may
be outweighed by their disadvantages. In the first place, it is difficult
in advance of the hearing to define the evidence which is likely to be
relevant to the issues which fall to be determined. It may well be, for
example, that features in the family dynamics and context are relevant to
the determination whether an injury is non-accidental and, more
particularly, the identity of the perpetrator. If, for example, there is
some dysfunction in the relationship of a particular parent with the child,
or one of the parents is subject to a level of stress which he/she is
finding it difficult to cope with, or one of the parents has demonstrated in
the family context a particular difficulty in anger management, such factors
may assist in the determination, on the balance of probabilities, of the
perpetrator of any identified non-accidental injuries, and even (although
more rarely) whether the injury was non-accidental. It may well be
inappropriate, therefore, to seek to decide the issues mentioned above on
the basis of one part of the evidence only. In addition, the use of split
trials may be attended by delay. For these reasons, in very recent times
there has been a reduction in the use of split trials, although they
continue to be directed in private law cases where there are disputed issues
of domestic violence and/or drug abuse. 7. POST-SCRIPT: We very much hope
that this brief review of some of the practical and case-management issues
which frequently arise in proceedings under the Children Act 1989 will be of
interest to our Italian colleagues, and give you some impression of the
virtues and (no doubt) deficiencies of the English family law system. 21
January 2004
An Introduction to Ancillary Relief Rebecca Carew Pole20 May 2004New
Practitioners Programme 2004AN INTRODUCTION TOANCILLARY RELIEF A. THE LAW1.
Basic Principles1.1 Section 25 of the Matrimonial Causes Act 1973 applies in
all cases whether the assets are large or small - welfare of the child(ren)
is the first but not the paramount consideration1.2 The section then sets
out the criteria to be considered - broadly:-(a) income, earning capacity,
property and other financial resources;(b) financial needs, obligations and
responsibilities;(c) standard of living;(d) age of parties; duration of
marriage;(e) physical or mental disability;(f) contributions
(including to welfare of family both in past and in foreseeable future);(g)
conduct (but not very often);(h) loss as a result of the divorce (nearly
always pensions). 1.3 Two main aspects:(i) HousingM -v- B (ancillary
proceedings: lump sum) [1998] 1 FLR 53, 1 FCR 213 - one of the important
considerations in applying s25 criteria is to stretch what is available to
cover the need for each spouse to have a home, particularly where there are
young children. Bear in mind that most judges will strain to see the
child(ren) with a roof over their head(s) and in practice you will find this
is the driving force behind many cases.But N.B. - Piglowska -v- Piglowski
[1999] 2 FLR 763, 2 FCR 481; House of Lords say no rule that spouses'
housing needs are to be given greater weight than the other section 25
criteria although "sound sense" of remarks in M -v- B not doubted.If there
is insufficient for both to have a home - consider a deferred charge: to
give the carer of the children all the (limited) capital might seem harsh.
For the arguments for and against Mesher - type charges see Elliott -v
Elliott [2001] 1 FLR 477, CA and B -v- B [2002] EWHC 3106 [Fam]; [2003] 2
FLR 285 (Munby J). Clutton -v- Clutton [1991] 1 FLR 242, FCR 265 - a charge
does not offend the principle of the clean break; but not a deferred charge
that will simply leave the wife homeless when the children are adult (see,
for example, Carson -v- Carson [1983] 1 WLR 287, 1 All ER 478).(ii)
Maintenance Campbell -v- Campbell [1998] 1 FLR 828, 3 FCR 62 - maintenance
cases need to be evaluated on a broad perspective rather than to look with
scrupulous care at every item in a budget; the court balances the wife's
needs against the husband's ability to payN.B. the Court of Appeal's
decision (awaited) in the conjoined appeals Parlour and McFarlane dealing
with how to assess spousal periodical payments in high net income cases. 1.4
Can a husband make a claim?Yes, both parties come to the court as equals -
Calderbank [1976] Fam 93, [1975] 3 All ER 333 although that does not mean
that justice requires an equal division of the assets.1.5 Is there a
presumption of equality?White v White [2001] 1 All ER 1, [2000] 3 FCR 555
The House of Lords refused to accept that there is a presumption of
equality. However, before a final order, a judge should check his views
against "the yardstick of equality" and equality should only be departed
from "if, and to the extent that, there is good reason for doing so.."The
House of Lords did stress that the decision in White related principally to
how assets should be divided in "big money" cases. Where needs, and
especially the requirements of children of the family, render anything
approaching an equal division impossible, the approach of the courts has not
been altered by the decision in White, or by the cases that have followed
it.1.6 What is meant by 'big money'?Basically, when there is a significant
sum of money left over after both parties and any children have been
re-housed and are provided for by income in a similar style to that enjoyed
up to the breakdown of the marriage.Mrs. White got about 40%. Most wives in
the 'big money' category have been getting about 40% as well (See e.g.
Cowan v Cowan [2001] 2 FLR 192; N v N (Financial Provision: Sale of
Company) [2001] 2 FLR 69). However, in Lambert v Lambert [2002] EWCA Civ
1685; [2003] 1 FLR 139, where Mrs Lambert got 50%, the Court of Appeal said
that very few husbands will be able to plead 'exceptional contribution', as
Mr. Cowan did successfully, in future. "Special" contributions remain a
legitimate possibility, but only in exceptional circumstances. In a marriage
which has subsisted for many years with the parties performing different
roles, those different roles are, save in exceptional circumstances, to be
regarded as of equal value (although note that equality of contributions
does not necessarily mean equality of outcome). 2. Initiating the
application2.1 Ancillary Relief Rules - all applications in Form A If
seeking a Pensions Act order, must say so in application; trustees/managers
must be served Leave required if claim not made in Petition [Rule 2.53(2)]
Applications against yourself - Dart [1996] 2 FLR 286, [1997] 1 FCR 21 2.2
Claim must be made before remarriage - section 28(3) but can be adjudicated
upon thereafter Claim in Petition sufficient - Jackson [1973] Fam 99, 2 All
ER 3952.3 No final order until Decree Nisi - otherwise voidMunks [1985] FLR
576 2.4 Only one substantive order for ancillary relief - Coleman [1973]
Fam 10, [1972] 3 All ER 886 and de Lasala [1980] AC 546, [1979] 2 All ER
1146 No power to vary property adjustment or lump sum orders - eg. Carson
[1983] 1 WLR 287, 1 All ER 478 - unless lump sum order is pursuant to the
Pensions Act or is for payment by instalments also see Sandford -v-
Sandford [1986] 1 FLR 4122.5 Section 31(7B) of the MCA 1973 - a wife can
apply to capitalise her periodical payments even where there has already
been a dismissal of her capital claims2.6 Pension Sharing came into force
for all Petitions filed after 1st December 2000. Pension attachment
(formerly earmarking) under the Pensions Act 1995 has survived but is
unlikely to be used as often. It remains a useful tool whilst there are
still pre-December 2000 Petitions coming up for final hearing. 3. What you
will be asking for3.1 Maintenance pending suit until Decree Absolute;
thereafter, interim periodical payments.See Rule 2.69F for procedureHighly
unusual to have oral evidence on an application for mps - court invariably
proceeds on the basis of the (short) Sworn Statements (or Forms E).Provision
for legal fees can be allowed as part of the budget for maintenance pending
suit, although note that the reported cases are big money (see A -v- A
(Maintenance Pending Suit: Provision of Legal Fees) [2001] 1 FLR 377; M -v-
M (Maintenance Pending Suit) [2002] 2 FLR 123). 3.2 Lump sums - MCA 1973 s
23(3)(c) - payment by instalments s31(2)(d) - unlike single lump sums, can
be varied (Tilley -v- Tilley [1980] 10 Fam Law 89). Section 31(1) of the MCA
1973 empowers the court not only to re-timetable and/or adjust the amounts
of individual instalments (see Masefield -v- Alexander [1995] 1 FLR 100, 2
FCR 663) but also to vary, suspend or discharge the principal lump sum
itself. This latter power is to be used extremely sparingly and only where
there has been a significant change of circumstances (see Westbury -v-
Sampson [2001] EWCA Civ 407; [2002] 1 FLR 166). 3.2.1 Adjourning the
claim M-T -v- M-T [1992] 1 FLR 362, [1991] FCR 649; D -v- D (Lump sum:
Adjournment of Application) [2001] 1 FLR 633, FD; Re G (Financial Provision:
Liberty to Restore Application for Lump Sum) [2004] EWHC 88 (Fam). 3.3
Child periodical payments - the court only has jurisdiction if:-(i)
consent order;(ii) top up only if CSA calculation is in force and the payer
is deemed to have the maximum assessable income (currently £2,000 net per
week);(iii) step-parent (in respect of a child of the family);(iv) variation
of existing order; (v) school fees;(vi) tertiary education;(vii) overseas
element.Remember that parties can no longer oust the jurisdiction of the CSA
forever by agreeing to submit to the jurisdiction of the court. Even where
there is a court order, either party can apply to the CSA to deal with child
maintenance after one year, whereupon the court order lapses. You should
always prepare a CSA calculation so that you know what the figure is (see GW
-v- RW [2003] All ER (D) 40 (May)). Since March 2003, the complicated old
CSA formula has been replaced (for new cases) with a simpler
percentage-based approach: 15% of net income for one child (20% for 2
children and 25% for 3 or more children). N.B. the reduction that applies
depending upon the number of overnight stays the relevant child(ren) has
with the paying parent. 4. The effect of cohabitation 4.1 If a wife has
"earned her share" by contributions during a long marriage, she will not
lose that share just because she is cohabiting ( Duxbury -v- Duxbury [1992]
Fam 62, [1990] 2 All ER 77)4.2 Maintenance will not automatically cease on
cohabitation - it depends on the circumstances of the cohabitant (Atkinson
-v- Atkinson [1988] Fam 93, FCR 356, recently confirmed by the Court of
Appeal in Fleming -v- Fleming [2003] EWCA Civ 1841; [2004] 1 FLR 667). 4.3
The definition of cohabitation - see Kimber -v- Kimber [2000] 1 FLR 78 4.4
Note the effect of pre-marital cohabitation when considering the weight to
be accorded to the length of the marriage. See GW -v- RW [2003] All ER (D)
40 (May) and C -v- C (Ancillary Relief: Pre-marriage cohabitation) [2004]
EWHC 287 (Fam). 5. Termination of maintenanceNote the Court of Appeal cases
to the effect that great caution needs to be exercised before terminating
periodical payments orders in cases where there is no established earning
capacity.Flavell -v- Flavell [1997] 1 FLR 353, 1 FCR 332 - lady in her mid
50sG -v G (periodical payments: jurisdiction) [1997] 1 FLR 368, 1 FCR 441 -
lady in her mid 40s with teenage childrenC -v- C (financial provision: short
marriage) [1997] 2 FLR 26, 3 FCR 360 - lady in her early 40s with very young
child6. Short marriage casesPutting the applicant back in the position he or
she occupied before the marriage S -v- S [1977] Fam 127, 1 All ER 56 Attar
-v- Attar (No. 2) [1985] FLR 653but cf position where there are children eg
C-v-C above 7. Pension Sharing An order only available in cases where the
proceedings (ie. the petition) were issued after 1.12.2000. Introduced by
WRPA 1999, inserting ss.21A & 24B into MCA 1973Not available in JS - only
divorce or nullity The parties may agree to rescind a Decree Nisi to enable
the court to have pension sharing powers under a new petition (S v S [2001]
1FLR 457). Though a husband is entitled to decline a proposal by the wife to
the filing of a fresh petition in these circumstances, that he has failed
to consent may be one of the circumstances to be taken into account (Rye v
Rye [2002] 2 FLR 981) 8. Costs See Norris -v- Norris; Haskins -v- Haskins
[2003] EWCA Civ 1084; [2003] 2 FLR 1124. The need for a costs estimate (to
include how much paid) The difference between standard and indemnity costs
B. THE PRACTICEGoverned by the Ancillary Relief Rules (FPR 1991 r.2.51B -
2.70). (i) The overriding objective; (ii) Exchange of Forms E (note the
requirement to exhibit specified documents); (iii) Preparation of
Questionnaire (if necessary), Chronology, Statement of Issues and Form G
(can First Appointment be used as FDR?) 14 days before First
Appointment;(iv) Judicial control of litigation at First Appointment; (v)
Financial Dispute Resolution hearing with all offers, proposals and
responses available to Judge; (vi) Need for costs estimates at all times and
possibility of wasted costs orders if non-compliance with rules;(vii) Need
for client attendance at all hearings unless otherwise directed(viii) Need
for open proposals before final hearing; (ix) No Sworn Statements without
direction.9. Preparing Questionnaires9.1 Questionnaire must be drafted with
reference to the Statement of Issues [(Rule 2.61B (7)(c)]; in some cases,
there will be no need for a Questionnaire at all9.2 Stick to relevant
questions (eg do not ask refuse collectors for details of their offshore
trusts)9.3 Credit card statements - highly unlikely to need more than one
year (holidays, standard of living)9.4 Bank statements - one year's
statements should be annexed to Form E; if appropriate, ask for
identification of specific credits and debits; look for transfers to
undisclosed accounts or payments for non-disclosed policies9.5 When
answering a Questionnaire, always ensure the Reply includes the Question.
10. Preparing the bundles10.1 See Practice Direction: Court Bundles [2000] 1
FLR 536 - applies to all hearings of 1/2 day or more and any hearings in
the High Court/RCJ10.2 The bundle must be paginated (numbered) throughout
and placed in a ring binder or lever arch file (no more than 350 pages in
each)10.3 Note the order of the documents - (a) applications and orders; (b)
statements and affidavits; (c) expert's reports; (d) other documents10.4 Try
not to include documents disclosed in reply to a Questionnaire unless they
are likely to be referred to in court10.5 Rule 3.1 - the bundle should
commence with (a) a summary of the background to the hearing; (b) a
statement of the issue(s) to be determined; (c) a summary of the order
sought; (d) a chronology if a final hearing or (a) above is insufficient;
(e) skeleton arguments as appropriate with copies of authorities relied on
10.6 In all but the most simple case, a Schedule of Assets will also be
vital (bringing the content of the 2 Forms E together).10.7 The bundles
should be filed 2 clear days prior to the hearingSee Re CH (family
proceedings: court bundles) [2000] 2 FCR 193 for the penalties for
non-compliance11. Preparing for the final hearing11.1 Highlighters and
"post-its" are invaluable for finding documents/important passages11.2 When
reading the papers, jot down points for cross-examination bearing in mind
that they need to be relevant to section 25 factors12. Ascertaining the
assets12.1 Joint experts now far more likely but, if not, the experts must
talk to each other to attempt to agree values prior to the date of the
hearing12.2 An accurate redemption statement should be obtained for all
mortgages or charges12.3 Surrender values (or sale values) for all endowment
policies plus dates of maturity with projected maturity values12.4 Pensions
- transfer values and projections 13. Alternative property particulars13.1
Get a good spread but not hundreds of particulars13.2 Provide a map with the
properties identified plus the matrimonial home, children's school, etc13.3
Your client should view all particulars (to point out the power station
behind the garage etc) and take pictures if possible 14. Earning
capacity14.1 Client should keep a list of all applications, rejection
letters, etc14.2 On the other side, general questioning is not particularly
effective. Get details of relevant courses, copies of job advertisements,
etc. In an appropriate case, an Employment Agency may be able to provide a
Statement 15. Submissions15.1 Open offers required prior to the hearing; in
any event, always know what order you are asking for and why - the DJ may
ask you at the conclusion of your opponent's opening15.2 Final submissions
can much more effective in writing but this is not always possible. NB -
don't prepare them before your client's evidence - you may find your case
changes! Rebecca Carew Pole1 Hare CourtTempleLondonEC4Y 7BE21 May 2004
An Introduction to Public Law Children Cases David Vavrecka27 May 2004New
Practitioners Programme 2004PUBLIC LAW CHILDRENRECENT DEVELOPMENTS27th May
2004Speaker: David Vavrecka, Coram Chambers Judicial Statistics1. Most
recent statistics from DCA:Public law applications between 1992 - 2002
tripled: 2,263 to 6,335 (165.9%)Adoptions in same period; fell from 8894 to
4400Private law in same period 52,924 - 94,548Care Proceedings2. Practice
direction; the Protocol Protocol for Judicial Case Management in Public Law
Children Act Cases (June 2003) [2003] 2 FLR 719- Implemented as from
November 2003; longest practice direction (85 pages) ; 5 step protocol-
Attempt to produce standardised procedure for public law cases- Central
purpose to achieve speedier and more efficient resolution of process for the
benefit of child- Applicable to every level of court- Collaborative effort-
Aim is to transform the culture3. Is the Protocol the servant or the
master?Re G (Protocol for Judicial Case Management) [2004] EWHC 116
(Fam)Protocol case where LA placed child with MGP. On the hearing where it
was decided to transfer to care centre, LA sought ICO with plan of removal.
MGP sought to be joined to proceedings to oppose the application (which was
based on evidence involving them). Justice refused to hear them stating
they were required so to act by Protocol. Hedley J allowed MGP appeal:
HELD- every court in approaching Protocol had to keep in mind its terms as
well as its purpose. If pursuit of purpose (overriding objective at para
3.1 of Practice Direction) required departure from terms of Protocol, proper
reasons hade to be given- order made contravened spirit and purpose of
Protocol- Protocol a 'tool' to help secure best interests of children4.
Medical Evidence: Roy Meadows & the Implications of R v CanningsR v Cannings
[2004] EWCA 1 (Crim) Court of Criminal Appeal made clear- need for
particular care in looking at medical evidence when reputable experts
disagree- danger of misinterpreting rarity of events- expressly endorsed
legitimacy of concluding an injury or condition unexplained or unknown-
highlighted need to reject dogma of experts where not supported by research-
need to be alert to developments in understanding and research in medical
science5. Reaction to CanningsOn 21 January 2004 Harriet Harman Solicitor
General announced urgent review of cases of woman convicted of killing their
babies. The President of the Family Division alerted Judges of
arrangements for any applications arising out of decision in R v Angela
Cannings. In February 2004 Margaret Hodge asked LA to immediately review
'current' cases, and within 12 weeks 'past' care orders (excluding those
where adoption orders made) to discover whether any of them relied upon
flawed medical evidence; if in child's best interests LA should apply to
discharge order or encourage parents to do so6. Re LU and LB [2004] EWCA
(Civ ) 567; 14th May 2004The President gave the judgment of the court;
these are the first two post Cannings appeals. Both appeals were
dismissed.In reviewing the standard of proof she cited extensively from the
key recent decisions; including the most recent family case on this issue
(Re ET), which was expressly disapproved by CA:Re ET (Serious Injuries:
Standard of Proof) [2003] 2 FLR 1205 - Care proceedings on seriously injured
baby involved great deal of medical evidence around timing of injuries
(whether before or after taken to hospital) Bodey J considered the issue of
the proper approach to the standard of proof in cases involving very serious
allegations;- burden of proof rested on LA. If the court remained
uncertain, then the particular point had not been established to requisite
standard required for s31- standard of proof was civil standard on balance
of probabilities, remembering always the more improbable the event, the
stronger the evidence must be before its occurrence could be held to have
been established. Applying that standard did not mean that where a serious
allegation was in issue, the required standard of proof was higher. It
required bearing in mind the dicta of recent authorities that the difference
between the civil and criminal standards of proof was largely illusory-
recent case law reviewed B v Chief Constable of Avon and Somerset
Constabulary [2001] 1 WLR 340 and R (McCann) v Crown Court at Manchester
[2002] 3 WLR 1313]7. Conclusion so far as the standard of proofIn Re LU and
LB at para 13 the suggestion that the distinction between criminal and civil
standards was largely illusory was said to be mistaken. "The standard of
proof to be applied in Children Act cases is the balance of probabilities
and the approach to these difficult cases was laid down by Lord Nicholls in
Re H. That test has not been varied or adjusted by the dicta of Lord
Bingham or Lord Steyn who were considering applications made under a
different statute. ..In our judgment therefore Bodey j applied too high a
standard of proof in the case of Re ET and the principles set out by Lord
Nicholls should continue to be followed.8. Conclusions as to effect of
Cannings on family proceedingsCourt adopted the following at para 23- cause
of an injury or an episode that cannot be explained scientifically remains
equivocal- recurrence is not in itself probative- particular caution is
necessary in any case where the medical experts disagree; one opinion
declining to exclude a reasonable possibility of natural cause- court must
always be on guard against the over-dogmatic expert, the expert whose
reputation or amour proper is at stake or an expert who has developed a
scientific prejudice- the judge in care proceedings must never forget that
today's medical certainty may be discarded by the next generation of experts
or that scientific research will throw light into corners that are at
present dark9. At paragraph 29 "In summary the decision of the court in R v
Cannings has no doubt provided a useful warning to judges in care
proceedings against ill-considered conclusions or conclusions resting on
insufficient evidence. The extent of the retrospective effect remains to
emerge. However practitioners should be slow to assume that past cases
which have been carefully tried on a wide range of evidence will be readily
reopened10. Standard of Proof; yet another authorityRe T (Children) [2004]
EWHC Civ 558; CALA and Guardian appealed against the decision that the
threshold had not been met (and care proceedings dismissed) in relation to 2
children where 3 year old examined and found by a consultant to have a
perineal tear, anal fissures and an anal tag. Photographs were taken of the
injuries and children moved to MGP and ICO made. Differing opinions between
3 doctors (partly as a result of different sets of photos being viewed) One
of doctors at court changed his opinion. Judge found medical evidence
insufficient to hold child sexually abused and threshold had not been
crossed. On appeal it was argued that (1) judge applied wrong standard of
proof by requiring standard equal to criminal standard (2) misinterpreted
medical evidence (3) failed to analyse parent's evidence and to make
findings about the lack of explanations about child's injuries. The Court
of Appeal reiterated that Re ET mistaken, and judge should have taken an
overview of the totality of the evidence. Local protocols should be devised
to enable all photographs to be released to all relevant experts when they
received instructions. Case transferred to High Court for rehearing.11. Use
of PhotographsRe Y (Evidence of Abuse: Use of Photographs) [2003] EWHC 3090
(Fam), [2004] 1 FLR 855Girl aged almost 3 reported that her stepfather had
hurt her in the genital area. Anogenital examination carried out and photos
taken; 2 doctors felt digital penetration had occurred. In subsequent care
proceedings, further medical exams, drawings and pictures, led to 4 medical
experts agreeing evidence suggested sexual abuse. At fact finding hearing,
5th doctor advanced another hypothesis explaining difficulties other four
doctors under. Proceedings dismissed, but reinstated by CA before different
judge. Joint examination of child ordered and conclusion reached previous
photos unreliable and misleading, as were current ones. American expert
said original examination misread. LA withdrew its application. Holman J
invited to give some comments- he questioned whether guidance of Royal
College in relation to reliance on of 2nd opinions on video or still photos
(obtained by colposcope) needed revision (see Royal College of Paediatric
and Child Health and the Association of Police Surgeons Guidance on
Paediatric Forensic Examination in Relation to Possible Child Sexual Abuse
(2002)- further examination, although intrusive, sometimes preferable to
potential grave miscarriage of justice12. DisclosureRe W (Care Proceedings:
Disclosure) [2003] EWHC 1624 (Fam), [2003] 2 FLR 10235 children were with
MGP under ICO until moved by LA to live with their M, still under ICO (who
had criminal record and history of drug use) LA received information that
drug dealer living at M address but told not to inform any family member, as
this would prejudice operation and out informer's life at risk. LA applied
to court and Wall J granted them permission to disclose info to M. M had to
be informed of substance of allegations against her, as LA needed to
establish threshold (presence of drug dealer in her home) and non-disclosure
of relevant info the exception rather than the rule. Where clash between
protection of police activities and protection of children to that extent
that confidentiality must be breached, it must be right for a local
authority to seek guidance from the court13. Child giving evidenceRe O (Care
Proceedings: Evidence) [2003] EWHC 2011 (Fam)In care proceedings concerning
teenage boy and girl, LA concerns arose out of incidents of violence by M to
younger girl, one of which involved striking a severe blow with flex on an
outstretched hand, The boy claimed to be responsible. Both children
fostered. 4 years earlier M had pleaded guilty to criminal charges relating
to assault with electric flex. M denied these allegations but gave no oral
evidence and judge (DJ Million) attached no weight to her statements. The
boy who supported M denials was ordered to be separately represented and
given leave to file a statement about the allegations and issue of his oral
evidence was reserved to trial. Later DJ refused application to give
evidence (not appealed). Findings later made against M which she appealed.
Johnson J dismissed appeal. HELD- DJ should not have attached no weight to
statement but failure to give evidence sought usually allowed court to draw
inference that allegations true - no room for the no comment interview-
Decision of DJ not to hear from boy within his discretion14. Human Rights
Claims and other challengesRe V (Care Proceedings: Human Rights Claims)
[2004] EWCA Civ 54, [2004] Fam Law 310During care proceedings (F Schedule 1
offender, M history of relationship with offenders and previous 2 children
placed for adoption - in previous proceedings ,parents attended various
assessments but not at therapy sessions recommended to them.) LA took stance
no assessment or treatment appropriate. Parents claimed LA failed in duty to
take positive steps to reunify family. At start of final hearing, Judge
adjourned proceedings and ordered parents applications regarding alleged
breaches of ECHR be transferred upto High Court. . LA appeal allowed by LA,
and Judge's order set aside- alleged breaches of ECHR by LA can and should
be dealt with in care proceedings in court hearing the care case; not
necessary to transfer up merely because breach of convention right alleged-
applications for transfer to be strongly discouraged, and may amount to
breach of process - should not have been done at such a late stage, and
failure to refer judge to case law reprehensible.- only declarations of
incompatibility reserved to High Court (see Practice Direction: Human Rights
Act 1998 [2000] 2 FLR 42915. In Re S (Habeas Corpus); S v Haringey LBC
[2003] EWHC 2734 (Admin) Munby J dealt with JR and habeas corpus
applications by a mother in person, in relation to the removal from her care
of 4 children. In dismissing both sets of proceedings he held- proper forum
for challenging issues while care proceedings ongoing almost always in the
care case even at FPC level even if HRA issues or of a kind that might
otherwise be subject of JR- habeas corpus deprecated where care proceedings
on foot; child in any event not in detention but living with foster carers-
this case reiterates what said in Re C (Adoption: Religious Observance)
[2002] 1 FLR 1119 and Re L (Care Proceedings: Human Rights Claim) [2003] 2
FLR 16016. Residential assessmentsRe G (Interim Care Order: Residential
Assessment) [2004] EWCA Civ 24, [2004] 1 FLR 876, CA8 month old baby looked
after by mother since birth. M's 2nd child (by previous father) died 4
years earlier and neither M nor father of that child exculpated. After
birth and ICO issued, parents made s38(6) application and admitted to Cassel
Hospital (therapeutic community hospital) At a review, Johnson J ordered
further 6 weeks assessment and 2nd review. At 2nd review, extended stay
recommended in light of significant change in mother. LA plan was
ultimately rehabilitation, child to live with paternal grandmother and
father in meantime. Johnson J invited LA to file evidence in relation to
funding and set a further hearing. At that hearing, LA thought only a
directions hearing and filed sparse financial info. Johnson proceeded to
determine issue rather than waiting until further full hearing. He
dismissed parents application for an extension to assessment and held he had
no jurisdiction to extend s38(6) assessment, but even if he did, would not
in these circumstances. Parents appeal allowed, and CA made further s38(6)
assessment. HELD- essential question for court was whether or not what was
sought could broadly be classified as an assessment so as to enable the
court to obtain the info necessary for its own decision. However, what
court saw as an assessment may well be experienced by the family as therapy
- in present case, psychotherapeutic engagement with family over an
extensive period was an essential element of the assessment- artificial and
legalistic to label first period of admission assessment and second referral
as therapy - Johnson wrong to hold he lacked jurisdiction- application under
38(6) potentially engaged Arts 6 & 8 and her parents were denied a fair
hearing on this issue of funding. M entitled to test wider budgetary
implications of residential assessment - breach of Art 6 rights- CA
disapproved of guidelines of Holman J in Re M (Residential Assessment
Directions) [1998] 2 FLR 371 and instead restated the importance of the
broad purposive approach analysed in Re C (Interim Care Order: Residential
Assessment) [1997] 1 FLR 1 - this appears to move away from assessment vs.
therapy distinction (for which see Re D (Jurisdiction: Programme of
Assessment and Therapy) [1999] 2 FLR 632; Re B (Psychiatric Therapy for
Parents) [1999] 1 FLR 701; Re B (Interim Care Order:Directions) [2002] 1 FLR
54517. Principle of fairness; proper involvement of parentsRe L (Care:
Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730Although not
a recent case, Munby J decision still a vital case; In his (as usual)
detailed judgment, he analyses the extent and scope of Article 6 and 8
rights within care proceedings. Mother's first child died of NAI aged 4
months and second child on register. Care proceedings commenced and child
place din foster care. A psychiatrist was instructed jointly to decide
whether to assess mother for possible rehab. After a 3 day assessment the
psychiatrist advised residential assessment appropriate, but after a meeting
from which the mother was excluded, the psychiatrist changed his decision.
No minutes of this meeting were taken. The mother opposed the care plan of
adoption and claimed there had been breaches of good practice and she had no
had sufficient opportunity to argue her case. Although the mother's
application for further assessment was dismissed, Munby explained that the
mother's article 6 rights to a fair trial were absolute and were not limited
just to the judicial stage of the proceedings - the failure to allow a
litigant to examine and comment on documents or cross-examine witnesses then
relied upon in producing a report was likely to amount to an article 6
breach. LA had duty to have transparent and fair procedures at all stages,
in and out of court. Documents must be made available and crucial meetings
conducted openly with parents having opportunity to attend or be
represented. However generalised discovery not necessary or desirable.
Earlier unfairness to mother in not being sufficiently involved overcome in
later stages of process18. The ignorant & absent Father; to serve or not to
serve?Re AB (Care Proceedings: Service on Husband Ignorant of Child's
Existence) [2003] EWCA Civ 1842A married woman shortly prior to birth of
child asked LA to take the child for adoption as she said the pregnancy was
due to rape and her pregnancy was unknown to her husband. Baby girl placed
immediately in foster care and within subsequent care proceedings N sought
to exclude her husband from any knowledge of the proceedings. LA asked or
directions. Deputy HC Judge found M wholly and deliberately untruthful and
concluded in favour of notifying H of child's existence and of the
proceedings. CA dismissed the M appeal and held the court would be
exceptionally slow to grant a relaxation of the rules of service in any
circumstances, other than the most extreme. M should have followed the
route of s55A of Family Law Act 1986 (declaration as to parentage)19.
Designating the appropriate authority; Northamptonshire revisitedRe H (Care
Order: Appropriate Local Authority) [2003] EWCA Civ 1629Child who was
originally (but briefly) in care of Norfolk CC was moved to Oxford with his
mother when aged 2 ½ . It was here that police had to remove him due to NAI
for which mother and her partner held responsible. Oxford CC obtained ICO
but Wall J decided child should return to Norfolk to be looked after by
grandparents, where he has remained. F obtained PR and an order restraining
M from approaching home children were in and reduced her contact to three
times a year. Care order made to protect placement Consideration was given
to making residence (to grandparents) and supervision orders which Norfolk
would have accepted, but that the care order should be designated to Oxford.
Hogg J found compelling reasons to depart from the established authorities
and designated Norfolk under the care order.Thorpe LJ upheld her order,
whilst maintaining Northamptonshire County Council v Islington LBC [2001]
Fam 364 and C (A Child) v Plymouth County Council [2000] 1 FLR 875 still
good law. However in this case, once child returned from foster family to
the birth family in Norfolk (living under section 23(6), he was no longer
being provided with accommodation by Oxford (within meaning of s105(6)) and
was ordinarily resident in Norfolk; duty now fell on Norfolk as the
disregard provision did not apply20. Asylum law meets Family LawRe A (Care
Proceedings: Asylum Seekers) [2003] EWHC 1086( Fam)Munby J's analysis of the
separate functions of the Secretary of State and the family court are
required readingParents and two children came to UK in 2002 and applied for
asylum, This was refused and all subsequent appeals by F rejected. F taken
into custody and reported by asylum team to be extremely distressed and
concern he would kill himself and children. M took overdose but discharged
from hospital next day. LA granted an ICO for both children but subsequent
investigations showed no concerns, but parents nonetheless sought to
continue the proceedings. Munby discharged IC) and dismissed the
proceedings as no risk of harm and no basis for saying parents could not
parent effectively in country of origin (to which would be deported)- for
the court, child welfare paramount, whereas Secretary of State did not21.
The test at interim hearingsOxfordshire CC v S [2003] EWHC 2174 (Fam),
[2004] 1 FLR 426Justices gave written reasons for dismissing ICO application
and stated they were not satisfied that there were reasonable grounds for
believing children were suffering or likely to suffer. They went on to day
they were not satisfied that the threshold criteria had been met and
concluded the children do not appear to be presently suffering or likely to
suffer significant harm. LA appealed and argued Bench applied wrong test.
Munby overturned the justices and reiterated mandatory nature of r21(5) and
(6). Court must where it makes a finding of fact state such a finding and
complete Form C22 and state the reasons for the court's decision. In this
case, not possible to conclude justices had correctly identified relevant
legal principles (and applied right test) Adoption22. Care & Freeing
OrdersRe M (Care Order: Freeing for Adoption) [2003] EWCA Civ 1874, CA,
[2004] 1 FLR 82618 month old child placed with foster parents when a few
days old. Parents had mental health difficulties and their older (three)
children lived with grandparents. LA plan was for adoption and applied for
freeing. The mother reluctantly agreed to adoption but father withheld
consent. Foster parents approved as adopters. Late in the proceedings
paternal cousins came forward as possible carers but LA and Guardian felt
too late. F sought and granted adjournment of care/freeing proceedings and
directed assessment of cousins, and psychological report of child's
attachment to foster parents. Guardian's appeal allowed, and CA made care
and feeing orders. HELD- care and freeing applications separate & distinct
applications - judge should deal with care order first, and only if granted,
go on to consider freeing- child's attachment to foster carer totally secure
and adoption had every prospect of success and would secure welfare during
minority. Not open to find F refusal to agree reasonable simply because he
was free of blame and his mental health prevented him from caring for child-
CA assimilated test of Hale LJ in Re C and B (Care Order: Future Harm)
[2001] 1 FLR 611 at p621 (cutting off ties only justified by overriding
necessity of the interests of the child) and the established jurisprudence
that natural family should not be displaced without cogent reasons, which is
to be determined by the child's welfare23. Duty of care of adoption agency
to adoptersA v Essex County Council [2003] EWCA Civ 1848LA placed a boy and
his younger sister with prospective adopters. In foster care prior to this
placement, boy noted to be aggressive by foster mother and recommendation of
child psychiatrist for child guidance not followed. Adopters had stated
they did not want child with physical or mental disability or special
educational needs. A medical led to a doctor concluding child might have
special educational needs and might need child guidance and respite.
Doctors concerns documented but letter not recorded as being sent to
adopters. Adopters were refused access to childcare files. Soon after
adoption orders made, adoptive mother became pregnant and hospitalised as
precaution against boy's violence. When info as to his history received,
adopters described this as bombshell and claimed for damage to their home
and psychiatric injury through LA negligence in not fully informing them.
Judge found LA adoption agency liable to claimants in negligence for failing
to provide them with all relevant info about the children, but only liable
for injury and loss between tome of placement and date of adoption orders.
Claimants appeal dismissed24. Adoption/Freeing: Placement abroadRe G
(Adoption:Ordinairy Residence) [2002] EWHC 2447 (Fam)2 children placed by LA
with uncle and aunt in states while under care orders, but ongoing issue was
legal; framework under which the two girls were to remain there. Aunt and
Uncle applied under section 55 for an order vesting PR in themRe B
(Children) [2004] EWCA Civ 515;CAParents appealed against a dismissal of
their application to revoke freeing orders made in relation to 2 of their
children. LA had originally placed all 4 of the couple's children with
prospective adopters who lived abroad. Placement only partially successful
and 2 of children returned and placed with foster parents in UK. This
placement was done without authority under Sch II of the Children Act or
section 55/56 of Adoption Act. The parents submitted that this application
was unlawful and was a criminal offence. The Court of Appeal accepted the
illegality of the initial placement but given the placements were in the
children's best interests and time for prosecuting expired, it was an
effective placing for adoption under section 20(1)(b) of the 1976 Adoption
ActOther developments and issues more generally of interest to Public Law
Children Practitioners 25. Good Practice in Child Care CasesLaw Society
recent guidance in Good Practice in Child Care Cases sets out general
principles, and extensive advice on good practice26. Representing Children
when no guardian appointedAlthough issued to Panel solicitors, Law Society
Guidance (Sept 2002) applicable: Advocate should represent child in
furtherance of the best interests of the child (s41 Children Act & r4.13)
While trying to act in accordance with child's best interests, not in a
position to advise court what is in the child's best interests. Proper and
appropriate to (a) critically appraise LA action and evidence in support of
those actions, and seek directions to require filing of further evidence if
appropriate, to test and probe case and ensure court has sufficient evidence
on which to base its decisions and to test evidence of all parties at
contested interims (b) at every opportunity seek appt of CAFCASS guardian
and keep it under constant review (c) request and collate as soon as
possible all relevant papers (d) should be generally aware of and play a
leading role in case management and timetabling issues for benefit of the
running of proceedings as a whole.27. Obtaining passports for children in
absence of signature of person with PRPresident's office guidance in Jan
2004 is helpful for children being looked after who may wish to go on
holiday with carers; an order from the court is required which states (a)
parent should not use their PR to veto the application (b) that the court
considers it in the best interests of the child that a passport be issued28.
Communicating with Passport Service and Home OfficePresident's office
guidance in November and December 2003 provides a mechanism for obtaining
information; forms on which requests must be channelled through court
available from Ms Ananda Hall, Family Division Lawyer, President's Chambers,
Royal Courts of Justice, Strand, London WC"A 2LL, Tel 020 7947 7197, or
Ananda.Hall@courtservice.gsi.gov.uk29. Adoption and Children ActRoyal assent
7/11/02Biggest overhaul of adoption law for 25 yearsKey concern is to
increase adoption for looked after children being adoptedMajor changes in
adoption practice:- contact. Moves towards openness addressed in explicit
duty on court to consider arrangements for allowing any person contact with
the child and requirement in section 1 to have regard to the child's
relationshipss1 (4)(f) ct should have regard to ability and willingness of
any of the child's relatives . to provide the child with a secure
environment in which the child can develop, and otherwise meet the child's
needs- need for special support for those affected by adoption.
Comprehensive duty placed on local authorities to provide adoption support-
placement orders - authorising placement by local authorities with
prospective adopters- introduction of special guardianship. Deals with need
for permanence for children for whom adoption is not appropriate- new
national adoption register to ensure faster matches- independent review
mechanism for prospective adopters who feel they have been turned down
unfairly- new facility for step-parents. Step-parents can acquire PR by
agreement or PR without removing other parent's parental status by an
adoption order- consultation regarding regulations still ongoingFirst phase
of new adoption support framework to be implemented from April 2003 ahead of
full implementation of Act currently planned to be in 2004/5Key concerns:
delay and resourcesGovernment has set a public service agreement target: to
increase by 40% the number of looked after children who are adopted,
increase to 95% proportion of looked after children placed for adoption
within 12 months of the best interest's decision30. GuardiansJuly 2003 saw
the Select Committee report on CAFCASS; the response came in October 2003 in
the report of Constitutional Affairs Committee (CM 6004) (2003) CAFCASS
continues to be exposed to a large number of difficulties. As a result of
mass resignations, CAFCASS now has a different chair and board; 31. Children
BillPublished March 2004; comes out of Green Paper Every Child Matters, Cm
5860 (2003)Aims to - encourage partnership working and accountability-
children's commissioner (voice for children & young people at national
level) - better integrated planning, commissioning and delivery of
children's services- duty on LA to arrange local agency cooperation- new
duty of LA to promote educational achievement of looked after children-
statutory local safeguarding children boards (to replace child protection
committees- creation of databases holding info on children and young people-
LA in England to put in place a Director of Children's Services, to be
accountable for education & SS insofar as relate to children- Integrated
inspection framework- 32. The bill draws on the conclusions of Lord Laming's
inquiry into death of Victoria Climbie. Report published 28th January 2003.
Full text on www.victoria-climbie-inquiry.org.uk33. Education of Children in
Care - as highlighted by Children BillDifficulties of children in care also
highlighted in Social Exclusion Report A Better Education for Children in
Care (2003)8% those in care for over 1 year gained 5 or more GCSE's as
against 50£ of all young people42% sit not sit GCSE or GNVQ (as opposed to
4% of al childrenObvious link between poor education and subsequent social
exclusion10 times more likely to be excluded if in care34. Combined Family
Courts- the way forward?Birmingham has integrated the FPC, County Court and
High Court in one building providing one stop shop for family cases,
allowing flexibility of listing and rapid response35. Useful websites·
www.courtservice.gov.uk/judgments/judg_home.htm (Judgments)·
www.official-documents.co.uk (Selected white/green papers)·
www.parliament.uk/ (Hansard from June 96)· www.publications.parliament.uk
Children's Bill· www.lcd.gov.uk/judicial/cap/index.htm Protocol·
www.cafcass.gov.uk Report on CAFCASS· www.dfes.gov.uk/consultation
Consultation by Department of Education & Skills on Adoption & Children Act·
www.lawrepors.co.uk (Online summary of cases)· www.lawsociety.org.uk Law
Society Good Practice· www.hcch.net (Hague signatories and Intercountry
adoption)· www.incadat.com (Child Abduction Database)·
www.offsol.demon.co.uk (Child Abduction Unit)· www.unicef.org/crc (UN
Conv on Rights of Child)· www.echr.coe.int (ECHR cases)· www.coe.int
(Council of Europe)· www.doh.gov.uk/quality protects/index.htm (DOH
material)· www.lcd.gov.uk (Lord Chancellor's Department)· www.alc.org.uk
(Association of Lawyers for Children)