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Contact with Siblings – Re H

Leanne Barton, solicitor with Watson Esam Solicitors, and Jessica Pemberton, barrister, of Paradise Chambers consider the significance of sibling relationships in the light of Re H [2010] EWCA Civ 1200.

Leanne Barton, Solicitor, Watson Esam Solicitors  Jessica Pemberton, Barrister, Paradise Chambers

Leanne Barton, Solicitor, with Watson Esam Solicitors and Jessica Pemberton, Barrister, of Paradise Chambers

The recent case of Re H [2010] EWCA Civ 1200 has revisited two important and developing principles in family law.  The first is a child's right to know who is within their family, an issue that is likely to become more significant as the dynamics of family life in today's society are ever evolving and changing.  The second is the significance and importance of sibling relationships.  Both of these issues form part of the child's wider right to a private and family life.  

The applicant was the half sibling of the two subject children.  The children shared a mother but had different fathers.  The applicant, on reaching adulthood, had made an application for contact with her half siblings.  The half siblings (now aged 10 and 9) lived with their father and new partner.  They had not had contact with their mother for some 6 years and had not seen their half sister (the applicant) for 3 or 4 years. 

CAFCASS had prepared a report in the original proceedings confirming that the children did not know that they had a half sister and had limited and incomplete knowledge of their maternal family.   The recommendation of the CAFCASS officer was that the children should be given information in respect of who was in their family and that indirect contact should be introduced with their half sibling to be managed by CAFCASS.   The reasoning behind the CAFCASS officer's recommendations was that the children had a right and needed to know who was in their family so that they could make sense of their family background. 

The father objected to the proposals of the CAFCASS officer on the basis that he felt that for the children to be given such knowledge would be potentially disruptive and upsetting for them.  He felt that it would re-open potentially negative memories for the children of their maternal family.  

The judge at first instance refused the application for contact feeling that the potential harm to the children of disruption to their lives outweighed any benefit to them of knowing that they had a half sister and having contact with her.  The judge felt that there was no real benefit to them knowing about their half sister and that the father with parental responsibility should be allowed to determine what information his children should be given in respect of their family. 

The applicant half sibling appealed.   Lord Justice Thorpe, in allowing the appeal, held that the trial judge had insufficiently weighed the right of the children to a wider family life which would include their half sibling and the judge had erred in elevating the father's anxiety over and above the importance of the potential gain for the children.  Lord Justice Thorpe held that the balance came down firmly in favour of a positive approach given the potential benefit to the children.  He ordered that the applicant be introduced to the children through indirect contact over a period of six months. Given the children's current lack of knowledge of the half sibling and wider maternal family, the indirect contact must take place once per month and be managed by CAFCASS. This approach would ensure that appropriate safeguarding methods would be put in place so that the benefit to the children would outweigh any potential risk.

The principle of a child's right to know their background has significantly developed over recent years.  From the historical paternalistic approach of "protecting" children from the truth about their background, including not telling them about the fact of their adoption, in many cases until adulthood or even at all, to a far more open position in society today.  In adoption cases now it is common practice for detailed life story work to be done with children explaining to them where they have come from and the fact of their adoption together with real information about who their birth parents were and who else was in their family.  The advice from BAAF is very clear that children should be raised knowing they were adopted. 

The right of a child to have key information in respect of their identity or other significant circumstances has for many years been recognised as one of the factors for consideration when having regard to the child's emotional needs.  As Ward LJ recognised in Re H (Paternity : Blood Tests)  [1996] 2 FLR 65: 

"Every child has a right to know the truth unless his welfare clearly justifies the cover-up.   The right to know is acknowledged in the UN Convention on the Rights of the Child … and in particular article 7 which provides "that a child has, as far as possible, the right to know and be cared for by his or her parents" … the clear intent of the article is that there are two separate rights, the one to know and the other to be cared for by one's parents." 

When considering the welfare checklist, the court will of course also be mindful of any potential harm in information being passed on to a child and in the case of Re K (Specific Issue Order) [1999] 1 FLR 280 it was held that it would be too detrimental to the child's emotional welfare to be told the true identity of his father because of the mother's obsessive hatred of that father.  However the cases in which the court will determine that a child should not be told the truth about their identity (and their wider family members) are likely to become even less frequent with the rapid onset of new technology and the reality that children may well inadvertently discover information about themselves and their backgrounds through the use of websites such as Facebook.   It is obvious that to discover the truth about one's background by accident is almost certain to be harmful to any child and it follows therefore that importance of a child knowing at an early stage, the truth about their background and identity is almost certain to outweigh any argument about potential harm in them having such information.   As Lord Justice Thorpe identified in the case of Re H,  the right to have knowledge about the members of one's family and the potential that that will bring for one to have a relationship with those wider family members is an important part of the Article 8 right to a private and family life.

In respect of the significance of sibling relationships there is surprisingly little case law dealing with the issue of sibling contact in terms of the upbringing of siblings, the principle of children being brought up together wherever possible has long been recognised in Children Act proceedings.  In the case of C v C (Minors : Custody) [1988]  2 FLR 291 it was held that young brothers and sisters should wherever possible be brought up in the same household so they could provide an emotional support to each other in the break up of the family unit.  However, the case of B v B (Resident Order : Restricting Applications [1997] 1 FLR 139 confirmed that the separation of siblings may be justified.  However, in that case the children lived only a few streets apart and would have regular opportunities to see each other which clearly mitigated the effect of the split. 

Whilst in the current case of Re H the siblings were only half siblings and had not actually lived in the same household, it is still important to recognise that they will have shared characteristics and a sense of shared history.  One's sibling relationship is likely to be the longest relationship in one's life and this must be a factor recognised in determining issues in respect of sibling contact and knowledge of siblings.  In the current case, if the relationship between the half siblings is able to develop, it is likely that the older sibling will be able to give the younger children extremely important and useful information in respect of their maternal family and their background. 

Leanne Barton, Solicitor, Watson Esam Solicitors and Jessica Pemberton, Barrister, Paradise Chambers