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Children: Private Law Update (June 2008)

John Tughan, of 4 Paper Buildings, reviews the latest developments in private children law.

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John Tughan, 4 Paper Buildings

New Practice Directions
New guidance has been published relating to the rule 9.5 appointment of a Guardian in private proceedings. The guidance issued on the 25th February 2005 has been revoked. An order in the county court joining a child to private law proceedings and appointing a Guardian may now be made by any nominated Judge or District Judge. Practitioners are reminded of the Practice Direction on the Representation of Children in family proceedings of the 5th April 2004 which remains valid.

Further guidance is to be found in the form of a new practice direction entitled Residence And Contact Orders: Domestic Violence And Harm, was published by the President of the Family Division on the 9th May 2008. It applies to High Court, County Court or FPC proceedings in which an application is made for a residence order or a contact order in respect of a child under the Children Act 1989 or the Adoption and Children Act 2002 or in which any question arises about residence or about contact between a child and a parent or other family member. The guidance is to be followed in any such case in which it is alleged or there is otherwise reason to suppose, that the subject child or a party has experienced domestic violence perpetrated by another party or that there is a risk of such violence.

Leave To Remove
There have been two recent cases on leave to remove from the jurisdiction. In Re G (Leave to Remove) [2008] EWHC 324 (Fam) the Court of Appeal dealt with a submission from the Appellant that Payne v Payne was being misapplied by the lower Courts. The Court confirmed the approach as stated in Payne.

The second case has potentially far-reaching consequences in relation to the Court's hearing directly from the children involved in proceedings. In Re W (Children) (2008), [2008] EWCA Civ 538 the Court of Appeal (on the 20th May 2008) allowed an appeal by a Mother who was seeking permission to return to Sweden with the children.
The Mother (M) and her former husband (F), who divorced in 2006, were both Swedish nationals. The family lived in a spacious home in London. The children were aged 15, 13 and 11, and were particularly intelligent and mature. M wished to return to Sweden, where housing and private education for the children would be much cheaper. The children supported the move to Sweden. Their wishes and feelings were advanced in the report of a CAFCASS officer. The CAFCASS officer applied her own analysis to the children's statement, with the result that she ended up advising the judge to exercise a degree of caution in evaluating the children's stated wishes. The judge had raised the possibility of meeting with the children, but the matter was not pursued and M's counsel did not press the point. M submitted that the judge had erred in weighing up the financial factors, in particular the effect that refusal of her application would have upon the London home that she and her children would be sharing. M further argued that the judge did not sufficiently consider the wishes and feelings of the children.

The Court of Appeal held (Per Thorpe L.J.)

(1) that the judge had erred in finding that M would have enough equity to acquire an "acceptable" or "satisfactory" house in London if the family home had to be sold.

(2) (Per Thorpe L.J.) The participation of children in private law Children Act proceedings was a matter of particular topical concern. The Family Justice Council's sub-committee "The Voice of the Child" was strongly in favour of judges seeing children much more frequently than in the past. The eldest Child, in particular, was an autonomous person with clear rights, and was entitled to be heard. That could be achieved in three ways: separate representation, discussion with the judge, or through a CAFCASS officer. That third method had caused the eldest Child to feel that her wishes were insufficiently considered by the judge, because they were diminished by the very professional whom she trusted to advance them. That conclusion might have been avoided had the judge had a meeting with the children. It was regrettable that the judge had been dissuaded from that course.

(3) (Per Wilson L.J.) The wishes and feelings of the children had not been satisfactorily weighed by the judge, probably because they were conveyed to him by a CAFCASS officer who was making a recommendation which conflicted with those wishes. The difficult position of the CAFCASS officer might have given rise to a strong argument for the separate representation of the children by a guardian ad litem other than her, or she could have sent a copy of her report to the children and asked for their written comments on it for transmission to the judge. Alternatively, their interviews with her could have been videotaped and shown to the judge. The discretion of judges to meet children privately was largely untrammelled by authority, and was the exception rather than the norm. It was a matter of concern that Thorpe L.J.'s expression of opinion that it was regrettable that the judge did not meet the children might pre-emptively alter the current neutral state of affairs, especially considering that the judge had not been pressed to see the children and was not criticised by counsel in the appeal for not having done so.

(4) (Per Charles J.) Although the views of the children, and in particular the eldest, had not been given sufficient weight, it was not clear that a meeting between the judge and the children would have been appropriate or would have provided a fair solution. Before any meeting between the judge and a child took place, the following needed to be carefully addressed: (a) the format, structure, content and purpose of the meeting; (b) the role of the judge; (c) the participation and presence of others; (d) what was to be passed on to anyone not present; (e) how matters asserted by a child to the judge were to be tested; (f) whether anything that was not passed on to the parties could be taken into account by the judge; (g) what explanation was to be given to the child before and after the meeting.

In R v P [2008] EWHC 737 (Fam), Sumner J was dealing with an application for unsupervised contact to a Father that had previously abducted the child in circumstances where the father had since shown restraint in his actions and considerable commitment to visiting his son from abroad; and where it was not in the son's best interests to revert to only seeing his father in a contact centre.

Shared Residence
In M v H (Educational Welfare) [2008] EWHC 324 (Fam) Charles J was considering a shared residence arrangement whereby the child lived with the mother in Germany; the father lived in England. The English court had retained jurisdiction in respect of the child's welfare. Following the mother's baptism as a Jehovah's Witness, it became apparent that the mother did not wish to promote the child's relationship with the father. The issue then arose whether the child should attend full-time education in England or Germany.

It was held that the court had to identify what was most likely, if successful, to promote the short, medium and long-term welfare of the child, and then to see if that was a realistic possibility and how it was best to be achieved. The court had to be aware that it might have to take the path that reflected the least bad solution. It was in the interests of the child that she be able to continue and build her relationship with both parents; the least bad option was to order that the child attend school in England, on the basis that there was a higher risk that the mother would not promote the child's relationship with the father if the child attended school in Germany.

Transfer of Proceedings
Finally, in Re C (Contact, Parental Responsibility and Residence Orders) [2008] EWCA Civ 502 the Court of Appeal were dealing with the transfer of a case from County Court level back to the Magistrates. A fact-finding hearing in a case concerning contact, parental responsibility and residence orders, which had increased in complexity since being transferred from the family proceedings court to the county court, should not have been transferred back to the family proceedings court on the court's own motion in an attempt to avoid delay. A discrete element of a case ought not to be transferred; the parties ought to have been permitted to make representations concerning the transfer; and there was no evidence that the magistrates' court had been notified in accordance with rule 4.6 of the Family Proceedings Rules 1991

John Tughan
4 Paper Buildings
29th May 2008