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Children: Private Law Update (May 09)

John Tughan, of 4 Paper Buildings, reviews the key decisions in children private law over the past few months

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John Tughan, 4 Paper Buildings

In this article I will consider some of the recent decisions in the area of private law proceedings relating to children.  The areas covered include:

(i) implacably opposed parents and the issue of a change of residence for a child in those circumstances;
(ii) electronic tagging of parents for the purposes of facilitating contact
(iii) professional contempt of court
(iv) the role of the Guardian in private proceedings.

In CP v AR [2009] EWCA Civ 358  the Court of Appeal were considering a dispute between parents that had lasted for 6 years of the life of the 8 year old child.  It had become clear that the parents were implacably hostile to each other.  The child was living with the mother, with contact to the father.  The expert instructed by the guardian reported on the damaging impact of the ongoing conflict on the child, suggesting that the court seriously consider independent foster care for the child, to remove him from the conflict.  However, the guardian's report proposed that the child live with the paternal grandparents, although the grandparents had not made any attempt to apply for a residence order themselves.  At the hearing of cross applications by the parents for a residence order, the expert gave oral evidence that a placement with the paternal grandparents would work only if both parents agreed, otherwise it would not remove the child from the battle between them.  The mother was strongly opposed to such a placement.  The local authority had been asked for it’s views and it had stated that the threshold had been crossed, and it was not prepared to get involved.  The judge made a residence order in the grandparents' favour.

None of the professionals involved doubted that the dispute between the parents had caused serious emotional harm. However, the local authority could not be required to institute care proceedings, even if the court took the view that such proceedings were essential for the protection of a given child.  The judge had been correct to say that there was no point in a s 37 report, as it would not result in the local authority taking action and enabling the judge to make an interim care order.  Placing the child with independent foster carers was an option that was simply not open to the judge.

The Court (which in this case comprised three family Judges, Thorpe and Wall LJJ and Holman J) considered that the judge should not have made a residence order in favour of the grandparents.  In doing so the judge had given insufficient weight to the importance of parental care and of the child's family life with his half-sibling, who also lived with the mother.  There was also a fundamental flaw in the judge's reasoning, in that a placement in an environment that was recognised not to be independent could not achieve the stated aim of removing the child from the contest. The paternal grandparents had been and continued to be directly critical of the mother. Further, there had been insufficient preparation for this change of residence.  The judge had also been wrong to overlook the expert's recommendation that further therapeutic work with the parents might assist.  Further work with the parents should be undertaken.  Like many separated parents these parents had made the damage to the children caused by the separation much worse by continuing their battles against each other in legal proceedings.  They had already caused the child serious harm; if they were not capable of grasping this opportunity, they might well lose care of the child.

In Re B (Contact: Appointment of Guardian) [2009] EWCA, the Court of Appeal was again considering long standing proceedings (some ten years). The father was currently having no contact with the child.  Because of the father's dissatisfaction with the help he was getting from the Cafcass officer appointed as guardian, the court invited the National Youth Advocacy Service to intervene in the proceedings, for the purpose of preparing a report as to what assistance could be offered to re-establish face-to-face contact, and to consider whether NYAS could replace the Cafcass officer as guardian. The response from NYAS was that it was unable to undertake the work involved unless formally appointed under Family Proceedings Rules, r 9.5. The judge rejected the father's application for the appointment of NYAS to replace the guardian.

The father's appeal was dismissed. Given the long period during which the existing guardian had been involved in the case, and the potential effect on the child of replacement, the judge had been entitled to refuse to replace the guardian.

In A v Payne and Williams; A v G and N [2009] EWHC 736 (Fam) the President was faced with allegations of contempt against professionals involved in the case in circumstances that will be familiar to many practitioners in this area.

The circumstances were that following protracted court proceedings in relation to the child, a detailed and comprehensive consent order was made.  Among other things, the consent order stipulated the attendance of both parents at therapy and parenting classes, as proposed by the guardian.  In order to progress this without further delay, the guardian, having taken advice from the child's solicitor, sent copies of four expert reports filed in the case to the therapy centre, with the aim of giving the therapist an understanding of the difficult background to the case.  The guardian did not obtain the court's approval for this move, or the consent of the parents, but acted in the belief that disclosure for this purpose was nonetheless lawful.  The father served the child's solicitor with an application for the committal of both the solicitor and the guardian for contempt, immediate return of the reports, and the removal of both the solicitor and the guardian, in whom, he said, he had lost confidence.

The contempt had been established.  The solicitor and guardian had failed to understand the effect of the Family Proceedings Rules, r 10.20A, which permitted disclosure of information relating to family proceedings without the court's permission only in certain specified circumstances.  In this case the reports had not been communicated to a health care professional for health care or counselling purposes, because the disclosure had been by the guardian, acting on the child's behalf, for the purpose not of health care or counselling for either the child or the guardian, but of counselling for the parents.  Equally, disclosure had not been to a mediator, who must, under r 10.20A, be an appropriately qualified family mediator, but rather to a therapist. 

However, given that no ill motive had been established, it would not be appropriate or constructive to impose any penalty in respect of the contempt.  The reports were to be returned by the therapy centre. Neither the guardian nor the child's solicitor was to be replaced.  Such removal would not be in the child's best interests, not least because it would cause delay.  In many cases involving children one of the parties was critical of the guardian's views, and expressed themselves as having lost confidence in the guardian.  If that frequently encountered situation were sufficient to justify replacement of the guardian in every case in which such loss of confidence was asserted, the progress of such cases would become yet further extended and the work of Cafcass impossible to organise

In Re A (Family Proceedings: Electronic tagging) [2009] EWHC 710 (Fam) Mrs Justice Parker was considering a case in which the mother had twice abducted the child to the mother's country of origin. The child had been returned pursuant to the Hague Convention, and was now in the father's care.  The mother sought an interim order allowing the child to spend substantial periods of time with the mother. The father feared that without safeguards the mother might remove the child again. Eventually the parents agreed that when the child was with the mother, the mother should, on an interim basis, be subject to curfew supported by electronic tagging.

Because the availability of tagging arrangements in family proceedings was not widely known, the court described them for the assistance of the profession. Since the decision in Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, which set out the principle that electronic tagging could be used in family proceedings, the President's Office had devised a procedure for arranging electronic tagging through the Tagging Team of the National Office for the Management of Offenders.  Orders were to be made and sealed by 3.30 pm on the day before implementation, and must contain: the full name of the person to be tagged; the full address of the place of curfew; the date and time for the installation of the monitoring device; a schedule of times at which the person was expected to be home, so that the service could monitor compliance; the start date of the curfew and, if known, the end date of the curfew, the days on which the curfew operated and the curfew hours each day; and the name and contact details of the relevant officer to whom the service should report if there was any breach of the schedule or if the person appeared to have removed the tag.

After the separation both parents continued to play a substantial role in the child's life. Eventually, on the mother's application to relocate to Israel, which was refused, the judge made a shared residence order. The father had mid-week contact, and staying contact on alternate weekends. The mother moved, without warning, from south to north London; the father followed as soon as he could make arrangements to do so. The child, now 5, started at a primary school in north London. The mother then applied to the court, seeking to relocate to Somerset, where she had obtained employment. She accepted that the shared residence order should remain in place, and proposed that the father should receive longer contact during the holidays to make up for the fact that mid-week contact would no longer be practical. The child's journey time between the two homes would be about 3? hours, and by public transport would involve taxi, bus, train and tube rides. The mother argued that she had been unable to obtain employment in London. The father opposed the move, arguing that it would seriously disrupt his relationship with the child, and that it was part of a pattern of moves designed to minimise his role in the child's life. The judge refused the mother permission to relocate, not by imposing conditions under Children Act 1989, s 11(7), but by varying the shared residence order to extend the father's contact with the child during the school week. He dismissed the father's application for a variation in the shared residence order, dividing the child's time equally between the parents on a 4 day rotation.

In Re L (Shared Residence Order) [2009] EWCA Civ 20 the Court of Appeal were considering what was believed to be the first 'internal relocation' case involving a pre-existing shared residence order to reach that level of Court. 
It was held that it was wrong in principle to apply different criteria to the question of internal relocation simply because there was a shared residence order.  Although in some, rare cases, an equal division of the children's time between the parents was appropriate, there was no doubt that a shared residence order could properly be made when there was a substantial geographical distance between the parties.  Plainly a shared residence order was an important factor, but it was not a trump card preventing relocation.  The judge below had been wrong to distinguish this case from the authorities on the basis of the shared residence order, and had failed to consider the likely effect on the mother of a refusal of permission. However, given the background to the case, in particular the mother's history of seeking to move away from the father, the judge had been entitled to conclude that relocation was not in the child's best interests

In Re L (Identity of Birth Father) [2008] EWCA Civ 1388 the Court of Appeal were considering a case in which the father had not seen the child since the child was 2 months old.  The child, who suffered from ADHD and possibly Asperger's, was now 15 years old. The father sought contact with the child, who had been brought up to believe that his stepfather was his biological parent. The court refused contact, but the issue arose as to when the child should be informed of his true paternity.  The mother wished to wait until the end of the next academic year; the alternative was to tell the child as soon as possible. For unexplained reasons, the mother did not want the child's psychiatrist to become involved, therefore a different child psychiatrist was appointed as a joint expert.  He provided a paper-based assessment that led the judge to order the mother to inform the child about his true paternity before the start of the new academic year. The mother appealed.

Although none of mother's grounds of appeal justified allowing the appeal, the court had a fundamental misgiving concerning the exclusion of the evidence of the child's psychiatrist. The welfare decision had been taken on incomplete evidence, without the most crucial source of evidence. The mother's wishes had denied the court of a contribution that was, at minimum, highly relevant and potentially decisive. The child's psychiatrist should investigate and produce an evaluation for consideration by the court below.