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Children: Private Law Update (April 2010)

Alex Verdan QC, of 4 Paper Buildings, reviews the latest key decisions in private children law













Alex Verdan QC, 4 Paper Buildings

Introduction

In this review I will focus on recent cases covering the following topics:

Children's wishes and feelings
In C (A Child) [2010] EWCA Civ 89 a mother successfully appealed an order for staying contact with the paternal grandparents where the father had been found to have been guilty of sexual misconduct with his son.

The child had lived with the mother after the parents separated. Until the age of eight years old he had been having supervised contact with the father. At this point it was decided by the court that he needed to be told why contact was taking place in this manner. Thereafter he refused to attend contact. He had trouble sleeping, telling his GP that he was stressed 'because of the dad thing'. He also frequently failed to attend school and stopped engaging with his peer group. The reporting psychiatrist became concerned for his well-being.

Meanwhile the paternal grandparents, in whose favour a contact order had previously been made, were pushing for contact to take place. They threatened committal proceedings against the mother (who, as it turned out, had not failed to promote contact) and sought a transfer to the High Court.

A transfer upwards was certainly merited. There was a serious concern that the child, who had been suffering depression, might see an attempt at suicide as a way out of the court's order. He told the psychiatrist that he wished he was dead, and that he wanted nothing to do with the paternal family. All five professionals involved in the case, including the guardian and the psychiatrist, were of the view that contact should not be forced on the child for the time being.

At the same hearing where he granted the transfer, the circuit judge decided to bring forward the grandparents' contact to commence later that same day. A stay of execution was obtained until the matter could become before the Court of Appeal. Wilson LJ said of the circuit judge's approach:

"a decision by a circuit judge, however respected, to transfer a case to a higher level is hardly to be expected to be accompanied by taking the bull by the horns, rejecting the views of the five relevant professionals (there was no professional support of what the judge had decided to do) and making an order for contact, there and then, to take effect three hours later. I regard the order for contact as entirely inconsistent with the thinking behind the order for transfer to the High Court." 

The Court of Appeal stated that the circuit judge should have explained his reasoning for departing from the views of the professionals. Although not expressly part of the appellate court's reasoning, it may be worth noting that the father had not accepted the findings made against him, even after a failed appeal.

Wilson LJ did comment that this was not a case in which there was a pre-existing relationship between the child and paternal grandparents which was at risk of being broken.

Interim contact
In SS v KS [2009] EWHC 1575 (Fam) Hedley J heard an appeal against a district judge's order for supervised interim contact where a domestic violence fact finding hearing had been adjourned for four months.

His Lordship concluded that:

"To say [the district judge] was plainly wrong would in reality be to say that it could really never be right to order interim contact in a Re L context where the principle of contact was in issue. It may only rarely be justified, perhaps, but in the context described in this judgment I am unable to say that this decision fell outside the generous breadth of discretion afforded to a trial judge in this case."

The following observations were made in the judgment:

It is clear that Hedley J was not saying that this was necessarily the decision that he would have come to; however, he did not feel entitled to interfere given that this order was within the broad ambit of the first instance judge's discretion.

Shared residence
In R (A Child) [2010] EWCA Civ 303 a mother appealed against a shared residence order on the grounds of procedural unfairness.

The mother had been told by the circuit judge that residence and parental responsibility were 'the same sort of thing'. Thorpe LJ held that, although judicial error normally leads to the grant of an appeal, this should not be the case here because this was a paradigm case for shared residence.

The Court of Appeal said that not merely was shared residence within the circuit judge's discretion, but it was plainly the right order.

The parents separated when the child was 2 ½ years old. Thereafter she was cared for by the mother, although the father was heavily involved. However, the father's role increased in 2009 when the mother went through a turbulent phase in her life after beginning a new relationship. The father became a support when the mother had to travel to America to visit her fiancé, and also when she contracted swine flu. It was noted that the father may have taken advantage of the situation by applying for prohibited steps orders to prevent the mother removing the child from the jurisdiction or from his care. However, the court does not appear to have counted this against him.

Arden LJ said that, under the CPR (52.3.2), the mother should have informed the Court of Appeal of her subsequent application to vary the previous order, following her move nearer the child's school. As it happened, this change of circumstances only made the case even more suitable for shared residence as the parties were now living much closer to each other. Arden LJ suggested that, after a variation application had been issued, in reality the appeal was now only addressing a period which had already passed and this was a wholly disproportionate approach (although, by way of comment, it may be argued that the court hearing the variation application would be more likely to accede if the shared residence order had been discharged on appeal).

Transfer of residence
In S (A Child) [2010] EWCA Civ 325 a mother's application for permission to appeal against a transfer of residence to the father was refused.

The residence order was made following a decade of litigation over contact, during which contact continually broke down.

The circuit judge had originally taken the view that it would be hard to persuade him to order a transfer of residence. Part of the mother's attack on his subsequent order was that there had been relatively little evidence since he had expressed that indication.

The other line of attack was that there had been almost no oral evidence at the final hearing. There had been a case management direction that the hearing was to take place on submissions only. This direction was not appealed, nor even challenged at the time it was made. The circuit judge allowed some limited evidence on practicalities when the mother's counsel requested it on the day of the hearing. Also, the parties had been given the opportunity to test the expert evidence of Dr Weir by putting questions to him on his report. Furthermore, this was a judge with a deep knowledge of the case.

Both the NYAS guardian and, to a lesser extent, the child psychiatrist Dr Weir were against transferring residence. Furthermore, the child (now 12 years old) also opposed the move.

Thorpe LJ said that "a clear procedural case had been established that required convincing rebuttal".

It was the fact that the case management order was not challenged or appealed which resonated with Thorpe LJ. Furthermore, as regards departure from the professionals' opinions, the NYAS guardian had previously stated her passion for fighting for the child – it was considered that she had lost objectivity. In fact, Dr Weir's position was not one of clear opposition to the transfer, rather he quoted certain authorities which suggested a need for significant harm before transfer could be justified. The judge reminded himself in his judgment that there was no professional in favour of the order he was making.

The circuit judge dealt with the significance of the child's wishes and feelings in his judgment, concluding that they could not be taken at face value given the impact of alienation (which was Dr Weir's evidence).

Thorpe LJ held that the circuit judge's conclusion was "plainly open to him on the material he had". He continued:

"this is the third occasion on which in recent months, in my experience, this court had to consider applications for changes of residence, and our approach has been consistent: namely, if the court below has exercised its discretion appropriately on all the material, has taken into account all the relevant factors and has not taken into account material which is immaterial or irrelevant, then this court will not interfere."

Although the decision in this case to some extent flew in the face of professional opinion, it was upheld because the judge carefully reasoned his conclusion and made it clear that he was balancing the evidence against making such an order. This should be contrasted with C (A Child), above, where the circuit judge did not demonstrate why he had departed from professional opinion.

This case came back before the Court of Appeal as Re S (A Child) [2010] EWCA Civ 219 on an appeal by the guardian and mother against enforcement by the tipstaff of a direct transfer of residence to the father.

The circuit judge had rejected the idea of an interim foster care placement to smooth the transition from mother to father. He decided that the transfer would be effected by the tipstaff if the mother would not comply.

Under the order, the child was prohibited from knowing the date of the transfer. This was challenged by the guardian as being unfair, as the child should have the right and ability to instruct his own lawyers. In fact, the order had allowed the child to be told that he would not be going to a foster placement and the transfer would be direct to the father.  In reality he could have challenged the decision without knowing the date. Moreover, his interests were extremely effectively represented by his rule 9.5 guardian.

A further argument was suggested: need to safeguard the child from life-threatening self-harm. There was no evidence of this at the time the residence order was made. What had emerged since was insufficient to engage article 2 of the Convention (right to life) as the guardian suggested. The child had said that he might stop eating at his father's, that he might run away and might jump out of his father's car.

The challenge under article 5 (right to liberty) to the intervention by the tipstaff was rejected because of the specialist skills and experience of that office, and the need for such being covered by the qualification to that article.

The Local Authority, which had become involved, argued that the circuit judge's preference for Dr Weir's suggestion of direct transfer, over the interim foster placement advocated by the guardian and social worker, was wrong because the former's conclusion was arrived at by generalisations whereas the latter had a particularly strong understanding of this family.

Thorpe LJ, paying particular regard to the arguments raised by the Local Authority, concluded that a direct transfer would be the wrong choice:

"I think it is so important in the present case to hold on to anything that is less than confrontational in the immediate."

His lordship ordered that the foster placement would be for 21 days, during which the father would have prolonged contact. The mother was to have telephone contact which would cease if she expressed any negativity about the transfer.

Disclosure
In C (Children) [2010] EWCA Civ 239 the father appealed against an order requiring him to disclose information relating to communications and meetings with his local MP which he had instigated for the purpose of supporting his residence case. He was given leave to appeal, but the appeal itself was refused.

There were three children who had been living with their father. He took them to see his MP (presumably at his constituency surgery). The children told the MP that they were happy with their father and their mother excessively chastised them. The MP contacted the borough's director of children's services in an attempt to place the content of his meeting before the court.

The guardian did not seek the disclosure of the communications from the MP to the father. Rather she sought only the father's communications to the MP. Moreover, she was only seeking disclosure to herself, in the first instance, in the event that the distribution of material might be prejudicial to the father.

Arguments surrounding the confidentiality of an individual's communications with his elected representative were rejected. Thorpe LJ explained that the court has a duty under the Children Act to investigate relevant matters.

Thorpe LJ held that the balancing exercise had been properly conducted, and the order for disclosure was well within the judge's discretion. Furthermore, in cases where there are allegations and the communications may be relevant, the guardian is entitled, and in fact bound, to see whether they shed any light on the matter. The possibility of alienation needed to be investigated fully.

Thorpe LJ also queried the proprietary of the MP's involvement, and whether he was "invading territory that has rightly been assigned by parliament to other professionals". Arden LJ explained that article 8 is a qualified right. She said that any interference must be proportionate and justified, and that requirement is met in this case. The application for permission was granted only so that the Court of Appeal could express the above-stated guidance.

Costs orders following domestic violence fact finding
In J (Children) [2009] EWCA 1350 the Court of Appeal allowed an appeal by a mother who had unsuccessfully sought her costs at the end of a fact finding hearing where the majority of her allegations were made out. The Court of Appeal ordered the father to pay two thirds of her costs.

The parties had married and subsequently moved to Germany where the father was a serving as a soldier in the British Army. Unknown to the father, before they left for Germany the mother had made disclosures to her GP that the father was violent to her. After a time, she took the children and left him in Germany to return to London.

Upon the father's return to barracks in England, the mother would only let him have supervised contact, because of the father's alleged violence. His solicitors responded to the mother's allegations by making an unnecessarily aggressive threat that he would be seeking his costs if the allegations were not proved at a fact finding.

In the event, the mother raised 20 allegations. The district judge failed to deal with one. However, he found against the father on 14 and made no finding on five (ie. he did not find that the mother had fabricated these). Many of the allegations involved violence in front of the children and some involved a degree of violence directed at the children themselves.

At the end of the hearing the mother asked for her costs. The district judge rejected this application, saying only:

"I am not going to make an order in this case. I think the parties had a right to come to court and in those circumstances I am not going to make an order for costs."

The mother's appeal to a circuit judge was refused. However, the Court of Appeal was persuaded that, in this case, costs should have been awarded. Wilson LJ commented: "Of course they had a right to come to court. But at whose expense?"

The father's argument had been that the usual order in Children Act proceedings is no order as to costs, and a fact finding should not be 'compartmentalized'. The judgment discusses the case of LB Sutton v Davis (Costs) (No.2) [1994] 2 FLR 569 in which costs were awarded where a mother made a second wave of allegations after being unsuccessful on the first. Wilson J (as he then was) had said in Davis:

"The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate… But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable."

Wilson J accepted that the father's stance at the fact finding was not irrational. However, he suggested that the sheer number of allegations found against him cannot have been as a result of mistake or lapse of memory on his part. The implication is that he was lying and therefore he should pay the costs of a hearing which he caused.

Wilson J stated that this was not a run of the mill fact finding. By way of comment, it is not expected that hereafter costs will follow the event in domestic violence fact finding hearings. However, in an appropriate case costs should be awarded.

The Court of Appeal held that the district judge should have taken into account:

S.91(14)
In A (A Child) [2009] EWCA Civ 1548 the father's appeal against a s.91(14) order made without hearing any evidence on the issue was allowed.

Wilson LJ stated:

"the judge's view represented no more than her instinct and, although it is possible that her instinct was well-directed, such is not the basis upon which judicial decisions may be cast."

"I might add that this court spends a surprising and unfortunate amount of its time in reversing orders under s.91(14) made on the inappropriate summary basis here exemplified."

During the contact proceedings the parties reached broad agreement, however, complaining of two minor matters in relation to holiday contact which were missed out. The father brought the matter back to court, requesting a variation. The mother offered alternative additional contact dates but he was still not satisfied. Furthermore, he withdrew his consent to the mother having residence on the day of the hearing, arguing that the no order principle applied (a submission which he had not made before).

It was seen as relevant that the mother's solicitors' draft order had not requested a s.91(14) order. As it happened, not only did the judge not hear submissions or evidence on the s.91(14) point, the judge had no bundle at the hearing. Moreover, the drafting of the order was suspect: contrary to the requirement of the section itself, it did not specify what kinds of applications it applied to, or even which parent it was directed against (though the latter was apparent from the context).

Wilson LJ said that, at the very least, the circuit judge should have invited submissions about the propriety of the order (referring to Re C (Litigant in Person: Section 91(14) order) [2009] 2 FLR 1461 per Wall LJ at 13).

His lordship re-stated the guidance of Butler-Sloss LJ in Re P [1999] 2 FLR 573 that these orders are to be made sparingly and with great care as a weapon of last resort in cases of repeated and unreasonable applications.

Committal
In S-C (Children) [2010] EWCA Civ 21 a mother successfully appealed a committal application by the father arising from her disclosure of a report prepared for the purpose of their contact proceedings in England.

The mother was Iranian and the father Turkish. They married in Turkey in 1999. After separating in 2006 there were contact proceedings in 2008 in England. Within these proceedings a psychologist's report was prepared which described the father as 'by nature, narcissistic'. At the conclusion of the proceedings there was a clause preventing disclosure of any documents from the case. However, the mother did subsequently disclose the report's contents to her lawyers in Turkey.

Wall LJ set aside the committal order on the grounds that:

Wall LJ went so far as to say that this information should have been communicated to the Turkish court, in the interests of comity and so as that court had as much relevant information as possible before it in order to reach its decision.

His lordship explained that breach of formalities, such as a penal notice, could be overlooked where it does not affect the justice of a case (see Nicholls v Nicholls [1997] 1 FLR 649).

He went on to say that it should have been open to the mother to make a submission of no case to answer (Re B (contempt of court: affidavit: evidence) [1996] 1 WLR 626).

Judicial review against Cafcass
In R (Kang) v Cafcass [2010] EWCA Civ 317 a father who had been unsuccessful in contact proceedings sought judicial review against Cafcass for their refusal to progress his complaint to the next (third) stage. His application to the High Court was unsuccessful, as was his appeal.

Wilson LJ made the following comments:

Arguments relating to articles 6 and 8 failed on the basis that: