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Children: Private Law Update (August 2010)

Alex Verdan QC of 4 Paper Buildings reviews important recent developments relating to private children law

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

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

Interim contact
In H (A Child) [2010] EWCA Civ 448 the Court of Appeal varied an order in respect of a 4 ½ month old child who had 'clubfoot'. The child had been cared for by the mother since birth. The father was a General Practitioner. Since separation of the parties the mother had moved to Manchester, while the father remained in Essex. Under the circuit judge's order the child was to spend one week in four with the father in Ilford.

In fact, the circuit judge had previously made a shared residence order in the mother's absence which required her to travel to London for handovers. When he subsequently read a statement of the mother explaining her obvious difficulties he decided to stay this order. The Court of Appeal was particularly critical of the fact that the hearing at which the shared residence order was made had not been listed to consider that issue, so the mother had no notice.

Scott Baker LJ concluded that, in making the interim contact order, there had been insufficient consideration of factors which should have been addressed under the welfare checklist: there was no consideration of the father's parenting skills (although he was a doctor, he had no relevant experience and had not worked in paediatrics), the fact that the mother was the child's sole carer, that the child was very young and had specific health needs, and that the mother was still breastfeeding him. His lordship said that the judge did not give weight to the obvious anxiety that an order of this kind would create in the mother of such a young child.

The Court of Appeal substituted an order for contact to take place at weekends in Manchester. Where the father's work schedule permitted, this was to take place overnight, otherwise it would be in a contact centre.

Refusal of contact
G (A Child)
[2010] EWCA 470 was a case in which an order for no contact at first instance was substituted on appeal for an order for indirect contact. The circuit judge also made a s.91(14) order against the father for 5 years. This was reduced to 2 years on appeal, after which the father would be permitted to apply for direct contact.

The child was 3 ½ years old at the date of the appeal. There had been allegations against the father of violence and excessive alcohol consumption (although no findings had been made, the father had declined to place any evidence of his own before the court).

The circuit judge had relied on an outdated social services report, and also appeared to take the view that contact was impracticable because the father was resident in Panama. However, he had since given up his residence there and moved to the UK to be nearer the child. Thorpe LJ considered this a significant change in circumstances.

The Court of Appeal gave weight to the fact that, had the 5 year prohibition on applying for direct contact been maintained, the child would be almost 8 years old by the time the father would be seeking to meet her.

The judgment is clear that the father would have to behave appropriately in the next 2 years to have any chance of obtaining an order for direct contact:

"if he can demonstrate in that period that those presents are appropriate, and the messages he sends are calm and suitable; and if he is able to accept the fact that his daughter is living with her mother and will continue to live with her mother throughout her minority – if he can do that for a period of two years, then it seems to me he should then be able to apply for a more direct form of contact. It may in the first instance have to be supervised…"

K (A Child) [2010] EWCA 478 had a similar outcome, a reversal of a no contact order.

In that case the father had been imprisoned for people-trafficking before the family moved to England. On one occasion he had abducted the child from the mother for almost two days. After the relationship broke down in 2003 the child was in the father's care for a year, during which time he began a relationship with his mother-in-law (the maternal grandmother). The child then went to live with the mother. Though now 8 years old, she had been too young at that time to understand the complexity of her father's relationship. Significantly the father continued to cohabit with his mother-in-law even at the date of the appeal.

In April 2007, Bodey J made an order for quarterly supervised contact. However, after two sessions the father was found to have breached a non-molestation order and the matter returned to court. The circuit judge hearing the matter made an order for no contact on the grounds of (i) the father's relationship with the maternal grandmother (particularly the risk that it would be revealed to the child) and (ii) his continuing denial of serious breaches of the non-molestation order which had been found against him.

On appeal, Wilson LJ held that the circuit judge was entitled to his criticisms of the father's general trustworthiness but had not taken into account the countervailing features of the case:

An independent social worker with appropriate ethnic expertise had been instructed. He felt that there was little risk of the child becoming aware of the nature of her father's relationship with her maternal grandmother. Furthermore, the guardian gave evidence that, in her opinion, the father did not want the child to know of this relationship.

The order refusing contact was set aside and the application was remitted for a rehearing. 

Transfer of residence
D (Children)
[2010] EWCA 496 Civ concerned two boys, aged 12 and 10 respectively. The father had been found to have sexually abused his stepdaughter, the boys' half-sister. Nevertheless this was a finding he did not accept.

The mother was considered to be a good parent insofar as providing for the boys' physical needs, however, she developed obsessional (and incorrect) beliefs that the father was a paedophile and had abused the boys as well. Due to risk of emotional harm, and after the mother refused to implement an order for supervised contact with the father, the court at first instance transferred residence to the paternal grandparents (whom it considered would not allow the boys to come to any harm).

In refusing the mother permission to appeal out of time, the Court of Appeal was particularly swayed by the very strong opinion of Dr Hamish Cameron, a usually measured child and adolescent psychiatrist, that the mother's beliefs could leave the older child emotionally crippled.

The judgment made it clear that, despite her belief system, the mother had been given a lifeline when previous orders for contact were made on the basis the children resided with her, but she refused to implement them. It was noted that the judge had considered the outcome and reached his decision over a significant length of time. Wall LJ (as he then was) said that the exercise of the judge's discretion had been faultless and the mother's proposed appeal stood no chance of success whatsoever.

Wishes and feelings
In S (Children) [2010] EWCA Civ 447 the children were 13 and 12. The judge at first instance had made a contact order which stipulated as a condition that the child had to decide whether to take up contact or not. This condition did not have the support of either expert in the case or either parent.

The father appealed. He argued that given the children's hostility to contact this was tantamount to no order (particularly in relation to one of the children). Thorpe LJ concluded that the children's wishes and feelings were secondary to their welfare which, on the facts of the case, required the removal of the condition and a remitted hearing.

Jurisdiction of s.8 orders
In S (A Child) [2010] EWCA Civ 705, the circuit judge made an order providing that "the father shall have the care of the child" at stipulated times. Thorpe LJ held that there is nothing in the Children Act 1989 which allows the court to impose provision as to one parent or the other 'caring for' or 'having care of' a child other than in the form of a contact order.

The Court of Appeal also made it clear that a specific issue or prohibited steps order cannot be used to achieve such an outcome (this being prevented by s.9(5)(a) of the Children Act 1989). However, the court noted that there is nothing to prevent this form of words being used in a contractual agreement or schedule to an order.

Adjournments to seek representation
In S (A Child) [2010] EWCA Civ 786, among a number of other appeals which were significantly out of time, the mother appealed against the decision of the court to refuse her an adjournment to seek legal representation. This is a complex and long-running case, the background to which I shall not begin to summarise in this article. The most striking feature of the case was that, at first instance, the mother had stormed out of the court hearing when her adjournment application was refused. The reasons which influenced Wilson LJ's decision to refuse the appeal in relation to the refused adjournment were (paragraph 26):

Fact findings
In May 2010, Sir Nicholas Wall P issued his Guidance in relation to Split Hearings, concerned that many had been taking place unnecessarily and those which were needed had nevertheless consumed disproportionate time and resources.

The salient points of the President's guidance are:

AA v NA and Kab [2010] EWHC 1282 is a good example of the sort of case which led the President to issue the above guidance.

A fact finding hearing was listed to determine 49 allegations made by the mother and 31 allegations made by the father. The hearing took place on 17 days over a 9-month period. The judgment was 66 pages long. The court found in the mother's favour on all the allegations but then made an interim shared residence order, effectively by consent. The case was then listed for disposal at a 10-day final hearing. The father appealed the findings of fact to the High Court. Mr Justice Mostyn allowed the appeal.

Mostyn J observed that 'a hearing should only be ordered if the court considering setting one up can discern a real purpose for such a hearing'. He made an interesting comparison to the limitations on allegations of conduct in ancillary relief (paragraph 18). His lordship suggested that the case had acquired an 'unstoppable momentum of its own' and the inquiry had become wholly disproportionate to the allegations. He queried whether all those findings would really affect the result of the case, and said there was a strong case to argue that the exercise had been completely futile (paragraphs 28-31). He suggested that the court should have regard to the spirit of the overriding objective of the CPR 1998.

Mostyn J said that an appeal against a fact finding hearing would only succeed if:
(i) The conclusion was demonstrably contrary to the weight of the evidence; or

(ii) The decision making process can be identified as being plainly defective so that it can be said the findings in question are unsafe (e.g. errors of principle as to, say, the burden and standard of proof; or failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings).

Three errors were identified.

(1) Litigation misconduct. His lordship held that the father's attempt to prevent certain witnesses from attending court did not necessarily affect his truthfulness. It may have merely stemmed from a will to win.

(2) Inconsistencies. In each of the seven most serious allegations of assault the mother had changed her story at least once. In many cases, it changed twice: what was pleaded in her original Scott Schedule differed from what she told the guardian at a subsequent meeting, and her account changed further when she came to give oral evidence at the hearing.

(3) Unexplained amendment to draft judgment. Shortly before the fact finding, the mother expanded her allegations to include a general allegation that the father had hit the children, and a specific allegation that he had done so with a belt. This was not dealt with fully in the original draft judgment, although the father was exonerated of hitting the children with a belt. However, when the mother's counsel queried the omission the judge amended his judgment to include a finding that the father had hit the children on their face, back and legs with his hands (which was not what the mother had alleged). His lordship said that, although a judge may amend his/her judgment up to the time it is handed down, such a significant change should have been accompanied by an explanation (paragraph 94). 

Mostyn J was clear that the father and his family had bullied the mother and behaved badly (and the mother had been left without financial support), but importantly this was not a reason to permit unsafe findings to stand: "my sympathy for M in relation to this episode and the sad events which unfolded must not deter me from reaching my clear conclusion which is that on the evidence before the court it was simply untenable for the district judge to conclude [as he did]" (paragraph 88). Having set aside all of the findings, his lordship decided to vacate the final hearing in the light of the shared residence order and listed a review in one year's time.

Judges meeting children
In April 2010 the Family Justice Council produced their Guidelines for Judges Meeting Children who are subject to Family Proceedings, as approved by the President.
When deciding whether to meet with the child:

o Advise whether the child wishes to meet the judge;
o Explain from the child's perspective, the purpose of the meeting;
o Advise whether it accords with the welfare interests of the child for such a meeting to take place;
o Identify the purpose of the proposed meeting as perceived by the child's professional representatives.

If there is to be a meeting:

o Explain that a judge cannot hold secrets; what is said, other than in exceptional circumstances, will be communicated to the parties;
o Explain that the decisions in the case are the responsibility of the judge and never the child;
o Discuss how the decision will be communicated to the child;
o Give the parties the opportunity to respond to the content of the meeting, by submissions or oral evidence.