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Children: Private Law Update (October 2007)

John Tughan, of 4 Paper Buildings, reviews the latest private children law cases

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John Tughan, 4 Paper Buildings

In this update I will consider a number of recent decisions which touch upon the following areas of practice:

In Re M (A Child) [2007] EWCA Civ 954 (24th August 2007) the Court of Appeal was considering the role of expert evidence in the context of shared residence orders.

It was held that the judge had erred in making a residence order in favour of a mother as the judge had failed to give reasons for her departure from compelling expert evidence that suggested that it was not suitable to allow the children to reside with the mother.

F and M were the parents of four children aged between two and twelve years old. M had a prolonged history of amphetamine addiction. In family proceedings a judge had been required to determine parental responsibility and residency of the children. The judge had before her reports from a jointly instructed psychologist, M's psychiatrist and a key social worker. In addition there were the results from hair, saliva and urine tests conducted on M to show her drug usage. The reports strongly suggested that all four children should reside with the father and the tests indicated that whilst M had not tested positive for drug use at the time of the hearing, her drug use had continued prior to that hearing. M gave evidence that she no longer used drugs.

F was granted parental responsibility and shared residency of the children. As part of the residence order M was granted residency of all four children for the period of the school week during the school term. F contended that the expert evidence had been dismissed without sufficient analysis or reasoning and that inappropriate weight had been attached to M's evidence.

Held: It was axiomatic that where a judge in the exercise of her discretion departed from clear expert opinions she had to give reasons for her departure. In the instant case the judge had failed to explain why she had departed from the clear expert evidence that strongly suggested that the judge should adopt the opposite course to that which she had in fact taken. Her failure to do so vitiated her conclusions. Moreover the judge had attached a disproportionate amount of weight to M's evidence and had adapted the expert evidence around M's evidence. Accordingly the judge's decision could not stand and the matter was remitted to a different judge for rehearing.

In Re P (A Child) (2007) (25.7.07) the Court of Appeal was considering the issues of contact, residence and surrogacy agreements.

The appellant (M) appealed against a decision transferring residence of an 18-month-old child (P) to the respondent (F). P was born as a result of a surrogacy agreement between M and F. The judge rejected M's evidence and commended the responsibility of F, finding in particular, that M had deliberately embarked upon half-deception driven by a compulsive desire to bear further children and had no other objective than to obtain insemination by surrogacy with the single purpose of obtaining another child. In reaching his decision the judge took into account reports of a medical expert and the views of the guardian. M submitted that (1) the judge gave insufficient weight to the adverse effect on P, relying on the fact that he stated that both M and F were in the same position as parents, and that he did not take into account P's early life attachments; (2) in contemplating the future, the judge overestimated the likelihood of satisfactory contact between P and M if placed with F because sufficient consideration was not given to the distance between the homes, the inability of F to finance the journey and the responsibility F and his wife had to other children and the emotional turmoil that was predictable if P was taken; (3) the judge gave insufficient consideration to M and her husband's capacity as parents.

Held: (1) When referring to the fact that the parents were in the same position, the judge was distinguishing the case from those such as disputes between mothers and grandmothers. It was manifest from the later passages in the judgment that the judge had the important consideration firmly in his mind throughout his analysis. (2) The judge clearly weighed the scenarios raised carefully, as had the medical expert who attached great importance to maintaining future contact with the biological parents who were not the carers. A judge would be very bold to forecast with any confidence what P's prospects of future contact were. (3) It was possible to demonstrate that the judge had relevant factors in mind and it was impossible to say that he overplayed or underestimated them.

In Re F (Children) [2007] EWCA Civ 873, the Court of Appeal was faced with an issue arising from a paternity dispute within private law proceedings.

The Court held that the courts had jurisdiction to make an order requiring that children be informed of the identity of their father.

The appellant mother (M) appealed against a decision, made in proceedings for a declaration of paternity and a contact order brought by the respondent (F), that the court had jurisdiction to direct that their children be informed of F's status as their natural father. M was the mother of eight-year-old twins and an older child. DNA tests showed that F was the father of the twins. However, the twins recognised as their natural father a man (C) with whom M had cohabited for a substantial period and who was the father of M's other child. The united position of M and C was that the twins' understanding of their paternity should not be disturbed.

M submitted that the question of whether and if so, when, to inform the children did not lie within the jurisdiction of the court under section 8 of the Children Act 1989 or within the inherent jurisdiction. M supported that submission on the basis that, for practical purposes, any order made would be unenforceable.

In reaching his decision, the judge referred to J v C (Void Marriage: Status of Children) [2006] EWCA Civ 551 and J (Paternity: Welfare of Child) [2007] 1 FLR 1064.

Held: (1) The judge was correct to hold that there was nothing in J v C that obstructed his power to conclude that he had the necessary jurisdiction to make the order, and J (Paternity: Welfare of Child) did not carry the matter further, J v C and J (Paternity: Welfare of Child) considered. It was obvious that in the course of its protective function, the family justice system had, since time immemorial, made decisions to promote the welfare of children. Whether and when children should be told the truth regarding their origins were decisions affecting their welfare. The courts' responsibility to take such decisions in cases of parental dispute had never been in doubt or question. (2) The fact that a parent might not be willing to carry out an order to provide information to a child would not prevent the order from being carried out by a professional person and magnified the need in such cases for professional intervention.

In G v D, X and Y (By their Children's Guardian) [2007] EWHC 1752 Mrs Justice Black determined, during a fact-finding hearing within care proceedings but on an issue that related to the private contact dispute between the parents, that whilst some allegations of violence by a father against a mother during their relationship had been made out, the mother had not established that the father had raped her on either of the occasions she had alleged or at all.

In the course of private law proceedings in which the applicant father (G) had renewed his application for contact with his daughters (X and Y), the court was required to make findings of fact as to the conduct of G during his relationship with their mother (D). G and D had begun their relationship in 1995 and had married in the following year. X had been born about eight months prior to the marriage and Y was born few months after the marriage. G had been tried on two charges of raping D in 1998 and 1999 but he was later acquitted. He then began proceedings for a contact order in relation to X and Y. G did not attend the hearing and no order was made on his application. The parties finally separated and were divorced in 2000. D had difficulty meeting the children's needs and they were removed from her care and placed with local authority foster parents under an interim care order. Care proceedings awaited determination at a separate hearing. G subsequently renewed his application for contact with X and Y, and the court determined that it would be appropriate to hold a separate fact-finding hearing in respect of the parties' history, as D had made allegations of violence against G. Notwithstanding the verdict of the jury at G's trial, D invited the court to find that G had in fact raped her twice. The court heard oral evidence from D and G and other individuals, including their former and current partners and friends, and was provided with material in the private law proceedings and relating to the public law proceedings.

Held: In making findings of fact, the court had borne in mind the well known principle that the more serious an allegation, the less likely that it was that the event had occurred and, hence, the stronger should be the evidence before the court concluded that it was more likely than not that it had occurred, re H & R (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563.
In a case where the allegations concerned events as long ago as the allegations in the instant case, it was almost inevitable that it would be impossible to reach safe conclusions about some, or potentially even all, of them. The court had, however, managed to reach a clear view about certain of the matters alleged by D and about the climate in the household shared by her and G. The relationship between the parties had been exceptionally volatile and lurched rapidly from separation to reconciliation and back again. Each party made a contribution to that because of their particular disposition. The court found that incidents had occurred in which G had grabbed D around the throat and pinned her against a wall; that G had fallen through a glass door in one of their properties in anger late one night, pulled D to the floor and again put his hands around her throat and on her mouth; and that G had visited D's property armed and intent on sorting out, with violence if necessary, a situation he perceived to have arisen in relation to a man at her property. The children had been affected by the domestic climate to which both parents had contributed. In the circumstances, however, D had not established that G had raped her on either of the occasions she had alleged or at all. It would be necessary for social services and experts to take stock of the matter and advise in the light of those findings.

I would suggest that this is interesting Judicial comment on the hurdles facing a party who seeks to prove historical allegations that are some years of age.

Finally, In Re LM (Reporting restrictions: Coroner's Inquest) [2007] EWHC 1902 (Fam) the President was considering an application for a reporting restriction order at an inquest relating to the death of a child.

It was held that it was inappropriate to grant reporting restrictions on a coroner's inquest into the death of a child, as the media's right to freedom of expression under the European Convention on Human Rights 1950 Art.10 to report the proceedings outweighed the rights of the deceased's child's sibling under Art.8 of the Convention where the court was not satisfied that there would be lasting harm to the sibling referable to the publicity created by the reporting. However, restriction on the reporting of the sibling's identity or existence and the provision of any information leading to her identification was proportionate and necessary to protect her Art.8 rights.

Although a very specific authority in relation to the role of inquests, this is an important and developing area of the law relating to children. The balance that a Court must strike in such applications is between the Article 8 right to family life and the Article 10 right to a freedom of expression. Any authority which assists with the approach of the Court to the balancing exercise in play during an application for a reporting restriction order can only assist practitioners in advising clients and preparing for such applications.

John Tughan
4 Paper Buildings,
15th October 2007