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Children Private Law Update (March 2007)

John Tughan, of 9 Gough Square, reviews the latest key decisions in private children law

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John Tughan of 9 Gough Square, London

In this article I will consider a number of new cases in the areas of leave to remove from the jurisdiction, sexual abuse findings and contact disputes.

Leave to remove from the jurisdiction
The Court of Appeal in In the Matter of J (Children) [2006] EWCA Civ 1897 was faced with two older children of the family who were living with the father but refusing any contact with their mother,. The younger child, aged 6, was living with the mother and having frequent contact with the father and the elder children. In the course of cross-residence order applications by the parents the father made an urgent application for leave to remove the two elder children to Bulgaria. The father presented himself as in desperate financial straits, and as unemployed; he claimed to have been offered employment in Bulgaria. The judge, noting that unless the father was given permission, the family would become dependent on the State, granted permission to relocate to Bulgaria with the two children. The mother appealed, arguing that the father had failed to establish that practical arrangements for home, school and employment had been made.

In the circumstances of this unusual case, in which the judge ultimately had to decide between a mother's proposals for a residence order to be implemented in this jurisdiction and a father's residence order application to be implemented in another state, the discipline suggested in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052, hardly applied. Further, there was the extraordinary and driving consideration in this case that a sound future for the family could be achieved only by the father recovering an earning capacity in some other economy. The judge had been perfectly right to give great weight to the practicalities.

Sexual Abuse findings
In the autumn private children law article published in Family Law Week in September 2006 (http://www.familylawweek.co.uk/library.asp?i=2506) I drew attention to the public law decision of Mr Justice Coleridge in B v A and speculated on the importance of that decision for the private law arena. The Court of Appeal in LM (By her Guardian) v Medway Council, RM and YM [2007] EWCA Civ 9 has reached a decision on the point (whether a child should give evidence in a case involving allegations of sexual abuse). This case is dealt with in the February public law article by Alex Verdan QC in Family Law Week at http://www.familylawweek.co.uk/library.asp?i=2787

In H v L and R [2006] EWHC 3099 (Fam) Mr Justice Roderic Wood dealt with the issue of an alleged perpetrator, who was appearing in person, cross-examining the complainant. Usefully, and by analogy with the provisions of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act), the learned Judge held that an adult witness should not be cross-examined by a litigant in person in the family courts in relation to allegations of the kind covered by s. 62 of the 1999 Act (sexual offences). This raised a difficulty given the increasing number of litigants in person. Urgent attention was needed to the creation of a new statutory provision to provide for representation in such circumstances. In some cases the child's guardian might be able to cross-examine the adult witness in relation to allegations of sexual abuse, but that had not been appropriate in this case. It was not appropriate to call on CAFCASS Legal, the Official Solicitor, or the Attorney-General for assistance in such cases, although exceptionally the Attorney-General had assisted the court in this case. Only exceptionally should a judge exercising the family jurisdiction cross-examine a witness in such circumstances.

Also relevant to consideration in the private law sphere is the decision in D v B (Flawed Sexual Abuse Enquiry) [2006] EWHC 2987 (Fam). This case has already been considered by Alex Verdan QC in the February public law article, which is to be found at http://www.familylawweek.co.uk/library.asp?i=2787

Contact Disputes
In a case involving the Czech system of contact enforcement, the ECHR held that the toleration by the courts of the mother's consistent refusal to cooperate and the absence of measures aimed at establishing effective contact constituted a violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, see Zavrel v Czech Republic (Application no 14044/05) (European Court of Human Rights; 19 January 2007).

In our own jurisdiction the recurring issue of the enforcement of contact orders was again considered in Re P (Committal for Breach of Contact Order: Reasons) [2006] EWCA Civ 1792. In this case the mother had repeatedly failed to comply with court orders, and to attend court hearings. Following personal service of a contact order to which, on the recommendation of CAFCASS, a penal notice had been attached, the mother breached the order by failing to produce the child for contact with the father over four successive weekends. The father applied for substituted service in respect of a notice to the mother to show good cause why an order for the mother's committal to prison should not be made. On the morning of the hearing the mother went to the office of her solicitors to inform them that she would not be attending court because she had no-one to look after the child. The judge refused to adjourn the hearing, referring to the history of the case, and committed the mother to prison for 7 days, suspended provided the mother complied thereafter with the contact arrangements. The mother appealed on the basis that insufficient reasons had been given for the decision. However, the Court of Appeal held that consideration of the case history showed that the judge had been entirely justified in making the committal order. The judge should have given clear reasons for his decision, however there had been no real uncertainty as to the reasons for the decision made and the appeal would be dismissed.

In Re C (Contact: Moratorium: Change of Gender) [2006] EWCA Civ 1765 the father had not had contact with the children since they were 6 and 4 years old respectively, when he began to live as a woman. After having gender reassignment surgery the father sought contact with the children, now aged 11 and 8. The expert expressed concern that if the children were not soon told the truth in a structured and sensitive way they would be likely to be damaged by finding it out for themselves. He recommended professional support and assistance from the National Youth Advocacy Service (NYAS) in informing the children of the truth, particularly in the light of the mother's attitude towards the gender reassignment. The judge instead ordered a 20 month moratorium, with very limited indirect contact in the form of Christmas, Easter and birthday cards. At the end of that period the mother would be required to file a statement setting out how and when she proposed to inform the children of the father's gender reassignment.

It was held that the judge had failed to explain his departure from the expert's recommendation. It was important to distinguish two separate strands in this case. Had contact been the only issue the moratorium could not have been criticised, but there was also the issue of informing the children of the truth and the longer the moratorium the greater the risk that the children would be damaged by discovering the truth independently. The children needed and were entitled to professional help in dealing with the truth. The children were to be joined as parties and NYAS was to be involved.

John Tughan
March 2007