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Children: Private Law Update (November 2010)

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

 












Alex Verdan QC, 4 Paper Buildings

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


Transfer of Residence and Parental Alienation
Re S (A Child – Transfer of Residence)
This case involved S, a 12 year old child who had been the subject of court proceedings for almost his entire life. Contact with the father broke down in 2006 and despite numerous contact orders and therapeutic measures meaningful contact never restarted.  In January 2010 HHJ Bellamy ordered a transfer of residence from the mother to the father. The mother appealed and was unsuccessful. Subsequently the case came back to court to deal with the facilitation of the transfer of residence and the judge ordered that the child move directly to the father's care with the assistance of the tipstaff. The mother appealed the manner of the transfer of residence. This appeal was upheld with the Court of Appeal deciding that they would adopt a stepping stone approach and that S would move first to a foster care placement, with extensive contact to the father, before moving S to his father's care.

Despite this approach and the assistance of Dr Kirk Weir, The Centre for Separated Families and CAMHS, the transfer of residence failed. After S's move to foster care CAMHS informed the father that they considered S to be clinically depressed by the contact/residence situation. In July 2010 the father abandoned his attempt to enforce the transfer of residence and by consent it was ordered that there should be a residence order to the mother, a supervision order to the local authority, indirect contact to the father by way of the provision of school photos and reports and a s.91(14) order to prevent any further applications to the court by either parent until S was 16.

HHJ Bellamy made the following helpful remarks about cases involving alienation:

Indirect Contact
H (Children) EWCA Civ 1200
An application made by the children's sister for indirect contact with her siblings, supported by a Cafcass report, suggested that the contact should take the form of a letter to the children every three weeks facilitated by the Cafcass officer. The children resided with their father and the children's mother had fallen out of their lives some time ago. The Cafcass officer believed it was important that the children knew about their background, heritage and family relationships and that communication with their sister would enlarge their knowledge of this aspect of their lives. However, the father believed that indirect contact with the sister was a backdoor attempt to allow the children's mother back into their lives. Departing from the recommendation of the Cafcass officer the judge dismissed the application for indirect contact and the sister appealed.

The Court of Appeal upheld the appeal and ordered that the indirect contact take place for six months and should all be managed by the Cafcass officer. Thorpe LJ held  that 'the Judge fell into the fundamental error in elevating the father's anxiety above the potential gain for these children.' Thorpe LJ emphasised the essential balance between the advantage to the children and the risk of harm. In this case the 'potential benefit to the children is real' and he did not believe 'the risk to the children is of anything like the same magnitude.'

For a more detailed consideration of this judgment, see Contact with Siblings - Re H by Leanne Barton and Jessica Pemberton.

Enforcement of contact
L-W (Children) sub nom CPL (v) (1) CH-W (2) ML-W (3) EL-W ( By their guardian) EWCA Civ 1253
This was an intractable contact case. The parties had two children; a boy aged 10 (B) who lived with the father and a girl who lived with the mother. There were lengthy proceedings concerning the mother's contact with her son. The mother applied for an enforcement order and a compensation order for financial loss and her petrol costs of attending contact on the basis of the father's breach of the contact orders. The Cafcass report stated that B did not want to visit the mother but the judge held that the father was obliged to exercise effective parental control over B and that it was not reasonable to say he would not force B to go to contact if he did not wish to do so. The judge made a suspended enforcement order and a compensation order. At subsequent hearings the judge reiterated that the father had failed to make B available for contact and made further compensation orders and enforcement orders with penalty notices attached. The continuing failure for B to have contact with the mother resulted in the judge ultimately making a committal order in respect of the father. The father appealed against the two enforcement orders, three compensation orders and the committal order.

It was held by the Court of Appeal that the judge had overstated what the contact orders required the father to do and had wrongly rejected the impossibility of performance as being a defence. Running through the judgment in the court below was the assumption that the father's obligation was to 'ensure' that B went with the mother and that contact took place; however the orders simply stated that the father should 'make B available for contact' or 'allow' contact. On this basis the father did not have a legal obligation to ensure contact happened and had not breached the relevant orders, save for the instances when the father had in fact failed to even make B 'available' for contact. Further, the father was not under a legally enforceable obligation to exercise his reasonable parental discipline, guidance and encouragement to ensure that contact took place. The Court of Appeal further noted that before making a coercive order against a parent, who the court believed to be the author of the child's resistance to contact, it was important for the court to ascertain whether that parent was still capable of reversing the child's attitude otherwise the coercive steps could be counter productive.

Accordingly the committal order and compensation orders could not stand and only part of one of the enforcement orders remained which related to the occasions on which the father had not made B available for contact at all.

Police Disclosure to Cafcass
G v B [2010] EWHC 2630 (Fam)
In accordance with the Revised Private Law Programme a Cafcass officer produced a risk assessment in advance of a First Hearing Disputes Resolution Appointment (FHDRA.) Unfortunately the first FHDRA had to be adjourned and at the second hearing a different Cafcass officer refused to disclose the initial risk assessment citing that it did not meet Cafcass' 'quality assurance' requirement. The district judge became very concerned by the lack of transparency and ordered disclosure of the initial risk assessment. In fact it was later revealed that it was not open to Cafcass to disclose the initial risk assessment because the report went beyond the police disclosure permitted in the agreement between Cafcass and the Association of Chief Police Officers (ACPO).

Sir Nicholas Wall appended the details of the agreement between Cafcass and ACPO in his judgment to inform judges and legal representatives about police disclosure in the Revised Private Law Programme:

Guidance note for CAFCASS England

What CAFCASS staff can do

What is not permitted

Comments

Seek and receive information relating to the welfare of children on new private law cases as outlined in the Safeguarding Framework (2.13-2.25)

Information on third parties such as new partners without seeking specific written consent or permission of the court

Guidance on making a judgement as to whether or not to request a police check in private law applications is set out at 2.14 of the CAFCASS Safeguarding Framework

Ask the local authority to do the same in public law cases

Routine requests for police information without checking what information held in the local authority file

Seeking information routinely, will both overload the police and reduce the responsibility of the social worker responsible for the child and family. We are seeking to ensure that these checks are undertaken by the local authority before they initiate proceedings

Discuss this information with the party to whom it refers and the judge concerned; its is also permitted and often necessary to discuss any information relevant to the welfare of the child with the other parent or carers, subject to section 5 above

To give a copy of police documentation to any of the parties or their legal representatives

To discuss sensitive information about one party with another unless it relates to the child, subject to section 5 above

The police are rightly concerned with this sensitive information falling into the wrong hands

Refer in the report to any police information which is relevant to the child's welfare, subject to section 5 above

To attach a copy of the police documentation to the court report or refer in report to any information which is not relevant to the child.

As above – in addition it does not help the conflict between the parties to disclose convictions or incidents unless they are relevant to the child

Go back to the police if more information is needed – key to quote the original reference so time is not wasted on a fresh search from scratch

 

Care must be taken that we do not overuse what is a generally good service from the police

Disclose the information with the local authority Children's Social Care service if there are urgent child protection issues or if they are preparing a Section 7 report and are willing to abide by the same disclosure rules as CAFCASS/CAFCASS CWMRU

Disclose the information to other agencies when there are no urgent child protection issues

The police are willing to accept that if the local authority is preparing a report then they should benefit from the initial checks undertaken by CAFCASS rather than start again with their enquiries provided they abide by the contents of this procedure

 


Hair Strand testing
London Borough of Richmond v Others [2010] EWHC 2903 (Fam)
This was a public law case but the comments on the effectiveness of hair strand testing of alcohol consumption are equally useful in private law cases. The following conclusions about the limitations of hair strand testing were agreed by Mr Justice Moylan and the parties:

- Hair strand testing should only be used as part of the evidential picture. Alcohol consumption at very high levels might form a significant part of the evidence but on the whole the hair strand experts agreed that hair strand tests should not be used to reach evidential conclusions in isolation.

- Because of the respective strengths and weaknesses of each of the tests (ethyl glucuronide (EtG) and fatty acid ethyl esters (FAEEs)) both tests should be used.

- The results produced by the tests should only be used for the purposes of determining whether or not results are consistent with excessive alcohol consumption using the cut off levels agreed by the Society of Hair Testing. Below that cut off point it is not possible to determine whether the results are indicative of social drinking or abstinence. There is no agreed cut off line between social abstinence and social drinking.

- The Society of Hair testing has only agreed cut off levels for 3cms segments of hair. Whilst the testing of 1 cm segments might have some value for the purpose of looking at trends no cut off levels have been agreed for 1cm segments of hair and there is not sufficient published data for the validity of such tests to have been established.

For a more detailed article concerning this judgment, see Hair strand testing for Alcohol: Hair today, gone tomorrow? by Henry Lamb.

Revised Private Law Programme
The PLP has been in force since 1st April 2010 but there were widespread reports that judges were not persuaded about the difference between the conciliation hearing format and the new First Hearing Disputes Resolution Appointment. The following points have been clarified by Senior District Judge Waller:

-'The Practice Direction of 12 March 2004 must be read subject to the PLP Practice Direction, which provides that the hearing is not privileged (para 4.2) and that the court may make interim orders (paras 5.6(b), 6.1(d)).'

-'Under the previous arrangements the rationale for only making orders by consent was that, as the hearing was privileged, the court could not make any substantive order which might require disclosure of the underlying discussions and reasons. That no longer applies and non-consent orders may now be made.'

However Senior District Judge Waller did reiterate that the FHDRA was intended to encourage agreement between the parties therefore it is unlikely that substantive orders would be made on submissions at a FHDRA hearing eg. a decision to start staying contact. However the Judge could make orders about narrower issues such as the venue and timing of contact even if they could not be agreed between the parties.