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Children Private Law Update (July 2007)

John Tughan looks at recent developments in private children cases including some recent cases involving transfer of residence.

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John Tughan, 9 Gough Square

This article will consider the recent cases on change of a child's residence between parents and some problems of enforcement of orders.

Residence
In H (Children) [2007] EWCA Civ 529, the Court of Appeal, sitting in May of this year, considered a case where the parents had contested residence and each had made allegations against the other. The judge found that none of the allegations against either parent had been proved and ordered that the two children were to reside with the mother, with the father having contact on alternate weekends. When the father came to collect the children for one of the contact sessions, the elder child was unwell with an abscess; the mother asked the father to let the child remain at home, but the father insisted on taking her away. The child's condition worsened during the day, and the father took the child to hospital, where she was treated as a medical emergency. The father refused to return the children to the mother on the basis that the mother was neglecting the children. The judge considered that the father's allegations of neglect were unfounded, but that the children should remain with him on an interim basis.

The mother's appeal was allowed. There had been no compelling reason for the change of residence from the mother to the father. The judge had failed to apply the principle set out in Re K (Interim Residence Order) [2004] All ER (D) 276 (Dec) that an interim change of residence could only be justified if it was in the interests of the child, or that there was an emergency that required intervention.

In Re A (Residence Order) the Court of Appeal, sitting in June 2007 considered the case of an 8 year-old child who lived with the mother and had contact with the father pursuant to a court order. The mother was very hostile towards the contact, and interfered with and frustrated the father's contact sessions over a long period. Eventually, the father issued an application for a transfer of residence.

A psychological assessment of the mother suggested that the mother was suffering from a personality disorder, and that the mother's dispute with the father would eventually lead to psychological problems for the child. The report also stated that the mother was incapable of reforming her behaviour, and had no insight into it. The independent social worker indicated that the assessment had led him to conclude that the child should live with the father, and that, notwithstanding the child's excellent relationship with the mother, by reference to the mother's actions the mother was incapable of parenting the child sufficiently well. The judge considered that the mother was a good mother, but that in relation to contact her behaviour was appalling, and that the father was a good father who could provide for the child's needs. The judge concluded that the child should live with the father, as that would be in his best long-term interests.

The Mother appealed and the Court dismissed the mother's appeal, noting that expert evidence from two sources had made strong recommendations that it was in the child's best interests that his residence be changed. Evidence of the mother's good parenting had been taken into account; it was not enough for the mother to complain that it had not been given sufficient weight. Although the child wanted to live with the mother, the child's long-term interests outweighed the short-term problems he would face in making the move. The judge had presided over the case for over two years and had had a good opportunity to engage in the problems surrounding contact and there was no ground upon which the decision could be interfered with.

In Re C (Residence Order) the Court of Appeal, in July 2007 were considered the case of a five year old child who had lived all her life with her mother. The mother had refused contact between the child and the father since October 2003, which resulted in the father becoming a 'virtual stranger' to the child. Following, inter alia, V v V [2004] EWHC 1215 (Fam), [2004] 2 FLR 851 and Re A [2007] All ER (D) 156 (Jun) the judge made an order for the transfer of residence of the child from the mother to the father.

The mother's appeal against the decision was dismissed and the matter was remitted back to the court for ancillary orders relating to contact, therapy for the child and family assistance. The Court of Appeal stressed the importance of courts acting robustly in cases of failing and/or failed contact. The full appeal in this case was heard within six working days of the date of the first instance judgment, illustrating the speed with which appeals in family cases can be heard.

These are important dicta for those practising in this area and the repeated urging of Courts acting "robustly" in cases of a parent refusing or blocking contact is something practitioners should be aware of, whichever side they represent.

In H v D [2007] EWHC 802 (Fam) Mr Justice Sumner took the unusual step of giving a full judgment, notwithstanding the fact that there was no dispute between the parties. The fairly extreme facts of the case were that the father had succeeded in obtaining the return of the two children to Venezuela following the mother's abduction and all issues relating to the children were before the Venezuelan courts. However, after an incident in which the mother was shot at and injured by a hired gunman, she removed the children from Venezuela. Even though the mother was in breach of an order of the Venezuelan court, the English court refused to order the summary return of the children, having accepted the mother's Article 13B defence that returning to Venezuela would place the children in an intolerable situation. (Re D (Article 13B: Non-Return) [2006] EWCA Civ 146, [2006] 2 FLR 305.) The children were made wards of court. The mother sought a residence order; the father wanted direct contact with the children, although he also challenged the jurisdiction of the English court, relying upon the Venezuelan proceedings. The father then attempted to abduct one of the children; he was taken into police custody and the mother and the children were taken to a safe house at an address. unknown. The police considered the threat to the mother and the children to be so high that it would be unsafe and dangerous for the mother to attend court; the father declined the invitation to attend, although he had been made available. The father wished to withdraw his application for contact with the children, and to take no further part in proceedings.

Unusually, although there was no dispute before the court, a judgment was provided for the benefit of the father, and for the benefit of the Venezuelan court. The children remained wards of court in the care of the mother. No one was to remove them from the mother and the father was prevented from communicating with them, or going within 100 metres of their home or school. The court had jurisdiction to make the orders sought, notwithstanding the concurrent Venezuelan proceedings. The English High Court has a clearly exercisable inherent jurisdiction to protect children physically present within its jurisdiction from harm and this could be exercised irrespective of the proceedings in which the need to protect the children arose. It could be exercised if there were concurrent proceedings in another jurisdiction, and even if the child's presence was transient, provided the risk to the child's well-being had been established. These children were in clear need of protection, and that amounted to a good reason in the interest of their welfare to exercise the Court's jurisdiction because the children's safety required it.

Enforcement
In Patel v Patel [2007] EWCA Civ 384 the Court of Appeal (April 2007) considered the sentence passed in committal proceedings. The couple were married with children, and lived in the same road. The wife was caring for the couple's five daughters, and the husband was caring for the son. The husband had been convicted of threats to kill the wife, and common assault. He had repeatedly breached court orders made against him. Following an incident in which the husband, having been invited into the property by one of the children to act as a translator, physically and verbally intimidated the wife and threatened to kill her, the judge made a committal order imposing an immediate custodial sentence of 10 months, consisting of 6 months for the instant breach, and activation of a suspended 4 month sentence. The husband continued to deny the breach and showed no remorse.

The Court of Appeal held that the sentence was not manifestly excessive, given the cumulative effect of successive incidents and the fact that the wife was entitled to consider herself as under the protection of the suspended committal sentence.

In G v G (Contempt, Sentencing) [2007] EWCA Civ 680 the Court of Appeal, sitting in June 2007, dealt with the breach of an injunction by the mother of a child who was living with the maternal grandmother. The mother was seeking contact. The maternal grandmother had obtained an injunction against the mother with a power of arrest under Family Law Act 1996, Pt IV. The mother had breached the injunction on a number of occasions and at the previous three committal hearings she had received: a suspended custodial sentence; a remand in custody for psychiatric evaluation (unsuccessful because the mother had refused to be interviewed by the psychiatrist); and an immediate custodial sentence of 3 months. The mother had consistently appeared in person and refused to obtain legal representation. The maternal grandmother applied for committal for a fourth time, alleging 19 further breaches of the injunction. The judge, who did not raise the possibility of legal representation with the defendant mother, found that the injunction had been breached and sentenced the mother to an immediate custodial sentence of 6 months.

The Court of Appeal found that the judge had been justified in not raising the issue of legal representation because it was quite clear that the defendant mother would have refused the opportunity to obtain such representation. The judge had also been entitled to find that there had been breaches of the injunction. However, the mother should have been given an opportunity to address matters as to sentencing. In all the circumstances, although the judge had been entitled to impose an immediate sentence of imprisonment, the defendant mother would be immediately released to give her the opportunity to prepare properly for the trial of the contact issues.