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Children (Private Law) Update December 2006

John Tughan of 9 Gough Square reviews the latest developments in private children case law

John Tughan, 9 Gough Square

Two decisions have been recently handed down in relation to the issue of the enforcement of private law orders.

In Re P (A Child) [2006] the Court of Appeal was considering the enforcement of a contact order by the making of a suspended committal order against a mother without having given a Judgment. The Court held that the judge had been entitled to deal with an application to commit a mother for contempt in her absence, and to have given no judgment, where the reasons for that decision were obvious and clear.

The appellant mother ("M") appealed against an order of a judge imposing a suspended sentence of seven days' imprisonment for contempt of court. M had failed to produce her six-year-old daughter ("C") for contact with the respondent father ("F") on four successive weekends, contrary to an earlier order by the judge. A penal notice had been attached to the order at the recommendation of the CAFCASS officer following's M many previous failures to attend court or facilitate contact. F applied for M to be committed to prison for breach of that order. M was served 12 days before the hearing with a notice to show good reason why she should not be committed. On the morning of the hearing she informed her solicitor that she could not attend court as she was unable to arrange a childminder for C. M did not attend the committal hearing and an application on her behalf for an adjournment was refused. The judge gave no judgment, but stated that he had taken account of the history of the matter, and imposed the committal order suspended on the basis that M comply with contact in accordance with the earlier order. M contended that the judge had erred in dealing with the matter in an indefensibly summary fashion. She submitted that he had denied her an opportunity to justify her non-attendance and ought to have granted an adjournment, and had further failed to give reasons for his decision to make the committal order.

The Court held: (1) In an appropriate case, the court might deal with matters in the absence of the party against whom a committal order was sought. The appropriateness of proceedings in a party's absence had to be viewed within the factual context of the case as a whole. In the instant case, the judge had substantial and detailed knowledge of the matter, and it had been open to him to use his wider case knowledge when assessing the reason given by M for her non-attendance. The judge clearly had in mind the desirability of an order being made, and for M to have pressed upon her the importance of compliance with the court's order. The judge's decision in refusing an adjournment was, therefore, one that he had been entitled to reach. (2) The purpose of giving reasons for a decision was to enable the person concerned to understand why an order had been made. In the instant case, whilst it would have been better for the judge to have expressed his reasons for refusing to grant an adjournment and making the committal order, given M's history of non-compliance with contact orders, which had not been in dispute, it was nonetheless clear why he had reached the decision he had. In those circumstances no injustice had been done to M and the judge's decision would stand.

In Re G (A Child) [2006] EWCA Civ 1507 the Court of Appeal were considering the upholding of Australian orders to the effect that a child should attend a specified school in the United Kingdom where his father taught and that if the school was too far from the mother, with whom the child resided, she should move to facilitate the order.

The appellant mother ("M") appealed against a contact order made in favour of the respondent father ("F") and an order that the child of the family ("C") attend a specified school where F taught. F and M, who were residents of the United Kingdom, had separated whilst living in Australia. Both F and M wanted to return to the UK and various orders were made in the Australian courts including orders that C should reside with M and have contact with F. The court further ordered that C, who was aged 10, should be educated at a specified school in the UK. Following their return to the UK, F had made unsuccessful attempts to have contact with C, who refused to see him. On an application to the court to enforce the orders the judge ordered that C reside with M and have contact with F in accordance with the orders made in Australia and for C to attend the school, which was approximately one hour from where M had been living at the time of the hearing. The judge held that if the school was too far from M she would have to move to facilitate the order. Since the making of the order M had moved much further away from the school to be near her family.

The Court held: (1) The judge had erred in not sufficiently examining the basis on which the order relating to the school had been made, and not sufficiently analysing the deficiencies in the evidence before the Australian court. The first task of the family jurisdiction in the UK was to decide with whom a child should live and to make a residence order. In normal circumstances a residence order should not be fettered with conditions that a parent be confined to a particular locality. It was unrealistic to expect C to travel such a great distance to school and the judge was wrong to impose conditions on the residence order that M should reside near to the school. The order relating to the specified school was discharged. (2) It was clear from the evidence that the contact order could not work given C's reluctance to see F, and to enforce the order could work adversely to the wishes of C. The order was suspended until further reconsideration by the High Court.

In S v S [2006] EWCA Civ 1617, the Court of Appeal considered the making of an order pursuant to s.91(14) of the Children Act 1989 to the effect that a father should not make further applications relating to the residence or contact of his children until they were 16. The Judge was entitled in the circumstances to make such an order, even though no formal notice of the application had been served, but was not entitled to attach conditions to it.

The appellant father ("S") appealed against the s.91 (14) order. Towards the end of protracted proceedings S had been given permission to withdraw his applications for residence and contact orders in respect of his children. On an oral application by the children's mother and their guardian ad litem, and in order to protect the welfare of the children, the court had imposed a s.91 (14) order on S and attached a condition requiring S to have sought treatment and to have obtained a psychiatric or psychological report indicating the progress he had made in treatment before he could apply for permission to apply for any further residence or contact orders. S contended that (1) he had not been given sufficient notice of the application for the s.91 (14) order and that the judge should have adjourned the application; (2) on the facts, an order should not have been made; (3) the order should not have been extended until the children had reached the age of 16, that it had already been in force for as long as had been necessary and should be discharged.

HELD: (1) Although no formal application notice for a s. 91(14) order had been issued or served on S, he had been told informally that an application was going to be made. He had by letter sought permission to withdraw his applications for residence and contact, he had not attended the hearing, and he had refused to engage with the guardian ad litem or read his report. In the circumstances, and given the duration of the proceedings, the very great number of previous applications, and the settled nature of the children with their mother, the judge had been entitled in the overall exercise of his discretion to consider making a s.91 (14) order even though no formal application had been made. (2) The judge had been entitled on the material available to him to impose a s.91 (14) order, Re P (A Child) [1999] 3 WLR 1164 followed. (3) The judge had been entitled to conclude that the children should be able to live out the remainder of their minorities without being the subject of further application to the court, unless S first satisfied a judge that he had an arguable case with some prospect of success. (4) It had not been permissible for the judge to attach conditions to the s.91 (14) order, Re S (Children) [2006] EWCA Civ 1190 followed. By imposing the condition the judge had effectively made findings of fact in relation to matters about which he had not heard evidence. Therefore the condition was deleted. (5) When imposing a s.91 (14) order it would be permissible for a judge to tell a litigant, without making it a condition, that, unless he addressed a particular issue and could show that he had addressed that issue, any application for permission to apply to the court for further relief was unlikely to be successful.

See also the decision of Mr Justice Coleridge in DJ v MS [2006] EWHC 1491 which deals with the imposition of a s.91 (14 order on the Court's own motion.

Lord Justice Wall, in refusing permission to appeal in two cases of Re B; Re O [2006] EWCA Civ 1199, made comments relating to the perception of the family justice system in relation to non-residential fathers. "It was in the interests of open justice to discuss these cases, not least to dispel the myth that there was a gender bias in the family court system which operated to deny contact to non-residential fathers." While contact did sometimes break down because of implacable hostility of the mother, in the Judge's experience it broke down more often because of the behaviour of the father.

The comments of Lord Justice Wall will add to the growing body of case law and argument which is pointing to proceedings relating to children being heard in open Court, (see also the Family Law Week article by Alexander Verdan QC which deals with this issue).

Mr Justice Sumner in J v C [2006] EWHC 2837 (Fam) had to deal with a case which involved an applicant father (F) who had applied for contact with his son, (J), born in 1996. The application was opposed by the respondent mother (M) because of the circumstances surrounding J's conception and the fact that F had not seen him following his birth. DNA testing confirmed F was J's father. A fact-finding hearing was held to determine the circumstances in which J was conceived, and whether it was consensual, as F claimed, or by force, as M said. That hearing was adjourned by which time F's whereabouts were unknown and his solicitors had come off the record. An issue arose as to whether the court of its own motion should endeavour to persuade or direct M that J at the age of 10 should be informed about his true father. J believed that M's current partner (O) was his father. M accepted that that should be done but both she and O considered it better for J to be told when he reached the age of 16. It fell to be determined whether the instant case was one where the court should intervene if it was clearly in J's best interests to be told sooner rather than later about his paternity. Reports from a psychiatrist and a CAFCASS officer supported M's claim that she was vulnerable and experiencing stress and pressure arising from the instant proceedings. M submitted that it would be detrimental to her mental state to deal with the issue at the present time and it would not be in J's best interests for M to be directed to tell him.

HELD: There were situations where the seriousness of an issue raised in relation to a child and its impact on the child's welfare would require the court to act of its own motion, appointing a guardian for the child and hearing further argument. However, that jurisdiction ought not to be exercised in the instant case. M was not refusing to inform J that his belief in the identity of his father was wrong but was saying that she would not do so until he was 16 years old. The undoubted advantage to J of learning the truth of his paternity at the present stage was outweighed by the impact it would be likely to have on M and the family upon whom he was so dependent. F's application for contact would be dismissed.

Whilst there were situations where the seriousness of an issue raised in relation to a child and its impact on the child's welfare would require the court to act of its own motion, appointing a guardian for the child and hearing further argument, that jurisdiction ought not to be exercised in the instant case.

John Tughan
December 2006