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Children: Private Law Update (Summer 2006)

John Tughan, barrister at 9 Gough Square, reviews recent decisions in private law children proceedings.

John Tughan, Barrister, 9 Gough Square, London

There have been various decisions in relation to the issue of contact between the children and their parents. In Re P (Non-Disclosure of HIV Status) [2006] FLR (forthcoming) Mr Justice Bodey had to deal with the issue of whether the mother's HIV positive status should be disclosed to the father within the proceedings.

The mother sought a review of the order which defined her contact with the children. During the preliminary stages the CAFCASS officer became aware that the mother was HIV positive. Although the officer did not refer to the mother's health in the report prepared for the court, the mother was concerned that the issue might arise, and applied ex parte for a direction that her positive HIV status need not be disclosed to the father.

The Family Proceedings Court had directed the mother to disclose the fact of her HIV status to the father, on the ground that openness was essential. Bodey J held that this was one of the rare cases where an ex parte application was appropriate and that, exceptionally, notice of the application to withhold the information concerned need not be given to the father's solicitors. Disclosure of the mother's HIV status was neither necessary nor appropriate, given the very limited issue that existed between the parties. It was very personal information going to no live issue and was not relevant to the case. Nothing suggested that the welfare of the children would be improved or maintained by disclosure and much suggested that disclosure might be detrimental to their relationship with their mother.

The Court of Appeal has looked again at the issue of domestic violence within the context of contact proceedings in Re H (A Child) [2005] EWCA Civ 1404. The Court held that the judge's failure to have any regard to Re L (Contact: Domestic Violence) [2002] FLR 334, or to the Guidelines prepared by the Children Act Sub-Committee of the Lord Chancellor's Advisory Committee on Family Law in relation to contact cases where there had been domestic violence, was responsible for the judge's serious minimisation of a serious assault on the mother, and had led him inappropriately to ignore the father's violence when making his order for supervised contact. The Guidelines had been breached in a number of respects, but in particular the judge had failed to consider the capacity of the parent seeking contact to appreciate the effect of past and future violence on the other parent and the children concerned, or the attitude of the parent seeking contact to past violent contact by that parent; and whether that parent had the capacity to change and/or to behave appropriately.

The chronology of the case had been wholly unacceptable: there had been enormous delay; hearings had been vacated and moved apparently without explanation and there had been a complete lack of structured planning and judicial case management. In every case in which domestic violence was put forward as a reason for refusing or limiting contact the court should at the earliest opportunity, that is the first appointment, consider the allegations made and decide whether the nature and effect of the alleged violence was such as to make it likely that the order of the court for contact would be affected if the allegations were proved.

In another case concerning domestic violence but also dealing with the fairness of the procedure adopted by the Court at first instance, the Court of Appeal in Re C (Contact: Conduct of Hearing) [2006] EWCA Civ 144 held that the proceedings had been unfair. The mother resisted contact between the child and the father on the basis of serious allegations of violence and inappropriate sexual behaviour. Interim supervised contact was ordered; a family support worker observed this and produced a report recording an entirely positive relationship between the father and the child but recommending continued supervised contact because, as the child had not displayed any challenging behaviour yet, it was difficult to assess the father's ability to cope in the future. This was the first time that any question of the father's practical ability to cope with the child had been raised, the mother never having done so. The mother had not withdrawn her allegations, but at the hearing chose not to give evidence, effectively choosing not to pursue them.

The judge ordered supervised contact based solely on the evidence of the family support worker in respect of father's parenting capability. Although she had heard oral evidence from the family support worker, the judge made it clear that that there was little point in the father giving oral evidence on this issue, as no matter what he said he could not outweigh the evidence of the family support worker.

The Court of Appeal held that the trial had been unfair. In cases involving children judges had a broader discretion in the mode of their conduct of the hearing than did judges in other civil cases, but the judge should not have effectively denied the father his right to give evidence on a demonstrably arguable issue raised in the course of the trial.

Parental responsibility orders
The Court of Appeal held in Re G (A Child) [2006] EWCA Civ 745 that in proceedings for contact and for a parental responsibility order the judge was wrong to grant a suspended parental responsibility order.

The appellant father appealed, inter alia, against a parental responsibility order made in his favour suspended on terms that the respondent mother provided certain information about their child (B). B had been conceived following a "one night stand" between the parents. B, who was aged seven, had grown up with another person acting in the role of father to him. The father had made a determined effort to form a relationship with B, despite great objections and intransigence from the mother. Following numerous applications to the court, an order was made for direct contact on a twice-yearly basis and for a parental responsibility order. However the judge suspended the parental responsibility order on terms that M provided information to F in relation to, inter alia, B's education and health.

It was held that the parental responsibility order would be set aside because the judge was not permitted to make a suspended parental responsibility order. The application for parental responsibility would be adjourned with liberty to restore if the undertakings of mother were not complied with.

In Re D (Contact and PR: Lesbian mothers and known father) (No.2) [2006] EWHC 2 (Fam) Black J was considering a lesbian couple who wished to have a child together, identified a man willing to conceive a child with one of the two women, on the basis that the child would live with the lesbian couple, but retain an ongoing relationship with the father. The adults disagreed from an early stage as to the extent of that relationship.

A judge eventually granted contact to the father, with a residence order to the couple to protect the family relationship of the non-biological mother. Some years later, the father sought an extension of the contact, plus parental responsibility. A variation of contact was agreed to, in broad terms, in the course of the hearing, but the lesbian couple were very concerned that a grant of parental responsibility would damage their integrity as a family unit. The father offered certain undertakings to limit the practical impact of any parental responsibility order. At the judge's instigation, expert evidence was obtained on the likely impact of such an order on this unusual family situation.

The judge cited the expert evidence at length, noting that it "may be of interest and assistance in other cases of this kind in the future and may obviate the need to make repeated calls on experts for guidance in similar situations". The parental responsibility order was granted, but the recital of certain conditions was included to protect the integrity of the lesbian couple as a family unit.

s. 91(14): The Court's Power to Prevent Future Applications Without Leave
There have been two recent decisions on the use of s.91 (14) of the Children Act 1989 in order to stop future applications to the Court without leave.

In Re W (Children) (2006) CA (Civ Div) (Wall LJ, Maurice Kay LJ) 26/4/2006 the Court held that it was inappropriate for an order to be made under the Children Act 1989 s.91 (14) where a joint residence order had been made and there was substantial contact between the children and both parents as problems could arise that required judicial intervention, particularly in circumstances where the parents were unable to communicate with each other. The appellant father (F) appealed against an order made under the Children Act 1989 s. 91(14) that neither he nor the respondent mother (M) were entitled to make any further applications without the court's permission. F and M had three children who were all subject to proceedings in relation to residence and contact. A joint residence order was made with the children's time being divided equally between F and M. Various applications were made by F and M in relation to the orders culminating with the judge making the order under s. 91(14) of the Act. F contended that, as a litigant in person, he had not been given an opportunity to address the judge and the order had been made without any discussion.

It was held that in a case where there was substantial contact between the children and both parents and where a joint residence order was made there were bound to be teething troubles, particularly where the parents could not communicate with each other. As a matter of policy a judge should adopt a hands-on approach so that if either party had difficulty with any aspect of the arrangements they could go to the judge for further guidance. Accordingly, in the instant case, it was inappropriate for the judge to have made a s. 91(14) order as there was plainly a need for further judicial intervention if required by F or M.

In Re C-J, Coleridge J held (on 10 April 2006) that the Judge should not have made a s.91 (14) of the Children Act 1989 (the 1989 Act) order of his own motion. It was inappropriate to employ s 91(14) of the 1989 Act when proceedings were ongoing and an application under s. 91(14) of the 1989 Act had to be issued in advance and supported by evidence. This was not a case involving urgent or exceptional circumstances and the court should not have ignored the usual procedural steps of an application on notice supported by evidence. Nor was this a case in which the father had made repeated unreasonable applications to the court or where the father's conduct suggested that he was bringing proceedings in an abusive way or would threaten to do so in of future.

In C v C (Without Notice Orders) [2005] EWHC 2741 (Munby J, 29 November 2005) the Judge reminded the professions that in relation to injunctions made at ex parte hearings, the obligation on the applicant's legal representatives to respond forthwith to any reasonable request from the party injuncted or his legal representatives either for copies of the materials read by the judge or for information about what took place, extended to any person served with or given notice of the injunction, and was not restricted to parties to the proceedings.

In Re F (Family Proceedings: Section 37 Investigation) Sumner J was considering the mother's contact with the two children, aged 9 and 7. Contact had ceased because of their expressed hostility towards the mother. The father supported the children in their stance, maintaining that the children were old enough to make this decision for themselves without any further intervention. The father's attitude towards the mother, his refusal to let the children be seen, his complete subjugation to their expressed views, and their reaction and attitude to their mother in which he was complicit, all caused the children emotional harm, likely to be significant. The removal of the children from the father under a s.37 order, even temporarily, would cause the children enormous upset and must be avoided if at all possible. However, a s. 37 report was justified unless the father would permit a child psychiatrist to see the children, assess their views and consider the other relevant issues.