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Children: Private Law Update (Autumn 2008)

John Tughan, barrister at 4 Paper Buildings, reviews the latest key cases in private children law proceedings

Picture of John Tughan

John Tughan, Barrister, 4 Paper Buildings

In a recent decision on the use of shared residence orders to confer parental responsibility on people who were not the biological parent of a child, the Court of Appeal confirmed the use of such orders.

In Re A (Joint Residence: Parental Responsibility) [2008] EWCA Civ 867 the Court of Appeal were considering a child who had been brought up on the assumption that the man was the father.  The man had been present at the birth, and lived with the child and the mother for 2 years before the relationship broke down.  During proceedings in which the man sought parental responsibility, residence and contact, it emerged that he was not the biological father. The recorder eventually made a joint residence order, the only route whereby the man could obtain parental responsibility; in a supplementary order the recorder stated that the man was to be regarded for all purposes as the child's father, and described as such in the order.

Upholding the joint residence order, which was a legitimate means by which to confer parental responsibility on an individual who could not otherwise apply for it, the court, however, noted that the man was not the child's father, either in common parlance or under any statutory definition.  He was a person who jointly, with the mother, enjoyed the rights, duties, powers, responsibilities and authority of a parent in relation to the child, but he did not thereby become the father of the child.  The recorder should have accepted the proposal that the man be referred to in the order as 'the applicant'

In another case, the Court of Appeal was dealing with issues of fact finding in the context of private contact proceedings and Appeal was faced with the fact that the Father had been acquitted at his criminal trial of the facts alleged.

In TH v RB; Re H [2008] EWCA Civ 539, the Court was dealing with an appeal from a fact-finding hearing in contact proceedings in which the recorder found that the father had attempted to poison the mother with a mixture of tablets, notwithstanding that the father had been acquitted of this at a criminal trial.  Further, that the recorder had made several adverse findings as to the mother's credibility, rejecting some of the mother's evidence as to the incident.

It was held that the recorder's finding had been unsafe, and must be set aside.  There was to be a re-trial; the fact that the recorder's decision could not stand did not necessarily mean that it was wrong.

In F(Family Proceedings: Costs) [2008] EWCA Civ 938 the child had suffered an injury that raised fears that he had been sexually abused.  The father brought residence proceedings alleging that the mother's partner had sexually abused the child and the mother alleged that the father had abused the child.  The injury was sufficient to trouble the child's GP, to involve social services, and lead a psychiatrist to conclude on the papers that there had been sexual abuse.  A number of interlocutory orders were made, some by consent.  The judge was eventually satisfied that there had been no sexual abuse, although she did find that the mother's partner had played spanking games that the child had not liked. 

At a costs hearing, which the father was unable to attend through illness, the judge found that the father had behaved in a harassing and totally unacceptable manner during the course of the litigation, and awarded the mother her costs on an indemnity basis, amounting to about £120,000.

The Court of Appeal held that the father had properly brought his concerns to court, but in the conduct of the case had gone beyond what was appropriate, however, the judge had erred in failing to take into account the fact that the mother's case had not been established.  The judge ought to have ordered the father to pay one half the costs of the proceedings.  Ordering indemnity costs was a condign action, and to order them throughout the duration of the proceedings without investigation had been wrong. Consent orders and compromised orders would ordinarily require an order for no order for costs, and certainly would not justify indemnity costs without investigation. The judge had been wrong to undertake an assessment on the bald facts set out in the schedule without a detailed consideration of what was a large bill for a disputed residence application; she should have ordered an assessment, not undertaken the exercise herself. The father was to pay costs assessed in the sum of £50,000.

In SB v RB [2008] EWHC 938 (Fam) the 11-year old child had been made a ward of court after the mother agreed to marry the child to a 20-year old in Bangladesh. With the assistance of the Forced Marriage Unit the child returned to the UK and was placed with an aunt and uncle. The child's marriage was subsequently declared void. The mother applied for the return of the child to her care.

The reports by the social workers advising that a return to the mother's care would be potentially dangerous, putting at risk the progress made since the child's return to the UK, had gone unchallenged. The mother's application was dismissed.

In Re S and Others (Residence) (Court of Appeal; Thorpe, Wall and Stanley Burnton LJJ; 13 May 2008) the parents had separated and the four children, aged 13, 10, 7 and 4, remained with the mother in the matrimonial home, but after a very short time the eldest child went to live with the father.  Family proceedings began in relation to the other three children; the children were joined as parties to the case and a guardian was appointed.  The guardian reported that that the children had suffered emotional harm because of the mother, and recommended that the children move to live with the father, acknowledging that the move would be disruptive but taking the view that it would be less harmful than remaining in the mothers care.  The judge found that the mother was neglecting the children, that the mothers series of new partners had impacted adversely on the children’s lives, and that the mother had failed the children in rejecting the guardians advice that any new partner should be introduced gradually. The judge also found that the mother had physically assaulted the eldest child. Concluding that there was no clear basis on which to depart from the guardians recommendations, the judge ordered that the children reside with the father.

The mothers appeal was dismissed. The judge had not expressed her conclusion well but it had been a permissible one.  Once the guardian had concluded that the children had suffered emotional harm, the case had taken on a quasi-public law complexion.

In Re A and Another (Contact) the Court of Appeal was faced with a case in which there had been various hearings between the parents as to the fathers contact with the two children.  A guardian was appointed to represent the children.  At a fact-finding hearing the father, who had a previous conviction for assault against the mother, was found to have assaulted her.  The father persisted in denying strongly any episode of past violence against the mother.  At a hearing listed as the final hearing of the father’s application for contact, the judge adjourned the case for over 6 months, ordering indirect contact between the father and the children, and giving the guardian leave to arrange supervised contact.  The preamble to the order expressed the hope that the mother would seek counselling and that the father would obtain anger management training.  The guardian appealed, supported by mother.

The Court held that the postponement had been pointless, as the steps proposed by the judge were unrealistic or unachievable.  The judges order was set aside; the court made a 6 month family assistance order in respect of the mother and the children, and a s 91(14) order in respect of the father.

In H (A Child) [2008 EWCA Civ 980, the parents' relationship had eventually broken down over accusations that the father had assaulted one of the mother's two children from a previous relationship (both those children suffered from Asperger's syndrome). In subsequent contact sessions and contact proceedings other allegations emerged including a report by the mother to her GP that the daughter had a sore vagina following a contact visit. This matter had been considered by the relevant local authority and they concluded that the soreness was not indicative of sexual abuse. The issues were to be heard at a fact finding enquiry listed for six days at a later date but at a hearing to determine the contact the judge concluded that the father could have unsupervised contact, which was previously supervised by the local authority and then unsuccessfully by a maternal aunt.

Counsel for the mother appealed this decision on the grounds that the judge had been wrong to dismiss her hints for an adjournment. Ward LJ rejects this argument as the conclusion of the judge was within his discretion and he had the benefit of having heard the parties. Neither the social worker nor the guardian had raised any issues about the relationship between father and daughter and though it was "a bold decision" Ward LJ supported the judge by saying that "the judge was not plainly wrong but I go further and say I may well have come to the same conclusion myself."

At the beginning of the judgment Ward LJ also makes some comments about the "utterly extraordinary" background to the case in that the mother "is a children’s advocate specialising in the representation of children with special needs" and the father "a chartered child educational psychologist": "One would have hoped that with that professional background this case would never have seen the light of day and to my utter astonishment it has grown like Topsy".