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Children: Private Law Update (Autumn 2006)

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

John Tughan, 9 Gough Square

In Re G (Children) [2006] UKHL 43 the House of Lords considered some fundamental principles of general importance to all cases involving children.

In this case G and W had cohabited in a same-sex relationship, during which G conceived two children following anonymous donor insemination. Following their separation the children stayed with G but had regular contact with W and remained happy with both parents. In breach of an order imposed by the court G relocated with the children from the Midlands to Cornwall. W issued applications to locate the children and made an application for a shared residence order and to be the primary carer. The judge granted the order and reversed the times allocated to each home. Her reasoning was that she had no confidence that if the children remained in Cornwall G would promote the children's essential close relationship with W. The Court of Appeal upheld that decision. In the House of Lords G submitted that the courts below were wrong to attach no significance to the fact that G was the natural mother of the children. Moreover, G argued that the High Court judge had been so distracted by her disapproval of G's behaviour, that she failed to give full consideration to the evidence relating to the children's welfare. G contended that the reversal in the parties' positions in response to G's removal of the children to Cornwall did not refer to the important fact that G was both their biological and their psychological parent and there was no good reason to change the children's primary home.

Their Lordships held : (1) The courts below had allowed the unusual context of the dispute to distract them from principles that were of universal application. The key consideration, reinforced by statute, in relation to any parental dispute was that the welfare of the children was paramount. Moreover, that principle was equipped to encompass the wishes of the parents, J v C (1970) AC 668 followed. However, the fact of parentage was still important. G's status as the natural mother of the children was a significant factor to take into account, yet it did not feature in the Court of Appeal's judgment. (2) The evidence showed that the children were happy and doing very well in G's home and that should not have been changed without good reason. Although G had deliberately disobeyed the court's order, since she had been located contact arrangements between the children and W had been reinstated and G continued to abide by the order. Had the situation been the usual case of a similar dispute between mother and father, it was difficult to believe that the court would have contemplated changing the children's primary home while contact was continuing in accordance with the court's order. K (A Minor) (Ward: Care and Control), Re (1990) 1 WLR 431; H (A Minor) (Custody: Interim Care and Control), Re (1991) 2 FLR 109 and In Re W (A Minor) (Residence Order), Times April 16 1993 considered.

Notwithstanding the same-sex relationship that was at the centre of this case, it is suggested that the principles considered are of universal application to disputes involving children. The importance of the biological link is re-stated and in the context of the recent case law involving a change of residence following a refusal of contact this decision is important in terms of the guidance given to courts of first instance.

Two recent cases involving sexual abuse allegations are of importance.

The first is a decision of Mr Justice Coleridge made in the context of care proceedings. In B v A the Court was dealing with Care orders that had been made in respect of two children, on the basis of the stepson's allegations that the father had abused him sexually. Under the order the children were moved to foster care and contact with the father stopped. When the children had been in foster care for four years the stepson, now 17 years old, admitted to his family and to the authorities that his allegations of abuse had been false. The father and mother, with the children's support, applied for the discharge of the care orders, unopposed by either the guardian or the local authority. In addition, the father sought to have the original findings of sexual abuse set aside.

It was held that it was right to re-examine the findings of sexual abuse in the light of the fresh evidence. The original findings of abuse were wholly wrong and should be set aside. The case offered a salutary lesson to all courts dealing with these kinds of very serious sexual allegation. However good the procedures for interviewing children, interviews were not evidence tested by the court. Had such testing taken place, obvious inconsistencies in the versions of events produced by the stepson would have been identified. The use of experts to produce personality profiles as tending to show that an individual might have certain tendencies was to be deprecated. There was no substitute for live tested evidence in court and serious consideration should be given to children of the age of this child, rising 13, giving evidence with the usual safeguards and the procedural arrangements familiar in the criminal jurisdiction. The stakes were just as high in care proceedings if wrong findings were made as they were in criminal proceedings.

Although given in the context of a care case, this guidance may impact on the conduct of private law disputes involving serious allegations of sexual abuse. The balance of competing rights involved will mean that there are different considerations in play in the private arena, as his Lordship pointed out the care jurisdiction findings meant the stakes were just as high as in the criminal arena. The same conclusion may be more difficult to reach in a private case but it is suggested that it is arguable that the impact to family life of such findings is so serious as to allow a proper forensic examination of the allegations.

The second is Re F (Contact : Lack of Reasons) [2006] EWCA Civ 792, a Court of Appeal decision in which the approach of the Court at first instance was criticised.

The Court was dealing with the reinstatement of contact between two children and their father in circumstances where the father had been accused of sexual assault. The issue was remitted for retrial where the judgment of the trial judge was so lacking in reasoning and substance that it presented at least an appearance of not having engaged fully with the important issues in the case and it was wholly deficient in explanations as to how or why he had arrived at the conclusions that he had. A particular concern was the absence of explanation as to why the judge disbelieved two of the witnesses in relation to the second allegation.

A number of decisions on the issue of relocation of children have been handed down.

In F v (1) M (2) C (A Child by his Guardian) [2006] EWHC 1783 (Fam), Mr Justice Sumner was dealing with an application by a a mother to take her four-year-old son to live permanently with her in the United States.

F was homosexual, and had met M through his sister with whom M had a long-term lesbian relationship. M and the sister decided to parent a baby and F provided sperm with which M impregnated herself. Although it had been agreed initially that F would be an uncle to the child, he declared his intent to play a parental role. Years of bitter acrimony between F and M followed, ending M's relationship with the sister and leading to over twenty court appearances, and allegations by M of sexual abuse of C by F, who twice faced criminal charges in that respect. Supervised contact between F and C resumed, but very serious tensions remained on both sides. F contended that he feared that M was coaching C to say negative things about him, and that unless M could positively endorse his relationship with C, the court should consider a shared residence order or sole residence order to him. M submitted that she wished to move to the US with C because she had a good job offer there with improved housing prospects, and faced bleak employment prospects in the United Kingdom; further, M's mother in the US suffered poor health and needed her. M argued that she would provide generous contact to F, and that not going to the US would be devastating to her because of her mother and because of the continuing acrimonious relationship with F. The guardian stated that she was concerned that the level of conflict between F and M would seriously impact C in the future. Expert evidence from a child psychiatrist emphasised that the discord was liable to harm C, and that relocation was the only way to avoid hostility, and C's guardian agreed.

The Court held (1) In the circumstances, a sole residence order in favour of F was out of the question. M had always been C's prime carer and there were no concerns about her day to day care. There was no proper basis in C's interest on which a change of residence from M to F could be considered. Further, the prospect of shared residence working when the parties could not talk to each other was very low indeed. The conflict between F and M did not permit of a shared residence order at this time, and the unanimous opinion of the experts could not be ignored and was decisive. F's application would, accordingly, be refused. (2) The genuineness of M's application, which was motivated by her employment prospects and her mother's health more than by a desire to exclude F, and the serious impact on M were she not able to go, were strong reasons to allow M to relocate. Further, there would be a seriously negative effect on C were the present situation to continue. The short term upset for C of seeing less of F was, in the circumstances, heavily outweighed by the prospects for the future with M in employment and a substantial reduction in acrimony. M would, therefore, be granted permission to relocate, conditional upon her fulfilling a number of conditions, Payne v Payne (2001) EWCA Civ 166 applied. Those conditions included facilitating contact by F in the US, and the greater part of the proceeds of sale of her flat in the UK would be held for an indeterminate time to secure that.

In Re N (Children) (2006) the Court of Appeal heard an appeal by the appellant mother (M) who appealed against a residence order and a trial relocation order made in favour of the respondent father (F). F, while in the process of emigrating to Canada, had applied for a residence order and a relocation order in relation to his two children (C and S), aged 12 and 9 respectively. A residence order was made in favour of M, and F was granted contact, which continued after his move to Canada. On his return there was a turbulent relationship between C and M and C ran away from school. F returned to England and resumed staying contact. After such contact C refused to return to M. F issued an application for a residence order in relation to both C and S and for permission to relocate to Canada. An interim residence order was made in favour of F in relation to C, and F subsequently conceded that S should stay with M. At the full hearing the judge granted a residence order in favour of F and granted a trial relocation order to be reviewed in a years' time. The judge held that F manipulated C in order that C should support F, and that he had put C in an impossible situation. She further held that C and S would be emotionally harmed if they were living in different parts of the world, but that despite anxieties it was practicably impossible to reverse the structure of the interim order.

The Court of Appeal found that the crucial question for the judge was not the residence order, but the very difficult question of relocation. When considering the residence order the judge carried out a full balancing exercise and clearly established her rationalisation for the order, but when considering the relocation application the judge carried out a very sparse balancing exercise. Whilst the decision might have had pragmatic justification, the decision was not supported by reasons and findings, and it would be an injustice to M to allow the flaws in the judge's decision to stand. The relocation order would be set aside and the matter remitted for retrial.

And finally, a must read document for all practitioners. The President of the Family Division issued a practice direction FAMILY PROCEEDINGS: COURT BUNDLES (UNIVERSAL PRACTICE TO BE APPLIED IN ALL COURTS OTHER THAN THE FAMILY PROCEEDINGS COURT) on 27 July 2006. It aims to achieve consistency across the country in all family courts (other than the family proceedings court) in the preparation of court bundles and in respect of other related matters. It replaces the President's Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536 and will come into force on 2 October 2006. It will not remove or alter any obligation to comply with the requirements of the Public Law Protocol. The Practice Direction is reproduced here.

John Tughan 12th September 2006
9 Gough Square, London