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Children: Private Law Update (September 2011)

Alex Verdan QC reviews the most significant of the latest judgments in private law Children applications, including the important decisions of the Court of Appeal relating to leave to remove

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:

Leave to remove

Re K
  [2011] EWCA Civ 793 has been heralded as the end of Payne v Payne [2001] EWCA Civ 166 hegemony but it is worthwhile to compare the decision of Re H  made only months before in March  2011 to examine the movements in emphasis being made by the Court of Appeal pre-Re K.

Re H (Children) [2011] EWCA Civ 529 
The father applied for permission to appeal a decision made by His Honour Judge Corrie in the Oxford County Court granting permission to the mother to relocate with the parties' two children, aged 10 and 9, to Canada.

The appeal was made in person by the father in the Court of Appeal and was unsuccessful. However it is interesting to note that Hughes LJ sought to move away from Payne's perceived emphasis on the effect of a refusal of an application to relocate on the primary carer and instead reinforced an emphasis on the paramountcy of the welfare of the children.

Hughes LJ accepted that some first instance courts may misread Payne and believe that if practical plans have been made for the relocation and the primary carer is arguing that the children will be adversely affected by a refusal of the application on them 'then that is more or less the end of the matter.'  However the Court of Appeal did not consider that HHJ Corrie had made such a mistake. It was held that he had kept the paramountcy of the welfare of the children in the front of his mind and had balanced the relevant factors in his judgment. He had adequately considered the likely effect of the move on the children's relationship with the father and his new family but had concluded that on the facts specific to this case the impact on the primary carer and the subsequent impact on the children were the tipping factors and thus granted leave to remove.

Hughes LJ reiterated for clarity that it is of course open to a trial judge to reject the recommendation of the Cafcass report and HHJ Corrie provided good reasons for doing so:

'It is trite law that the decision is for the judge and not for the Welfare Officer, and the judge provided clear and rational reasons why he differed from her.  They included what he had heard in the course of the hearing, which I have already dealt with, and they included also the fact that when she came to consider the question afresh in her evidence at the hearing the Welfare Officer expressed the view that if mother were required to remain here that would cause her significant distress, affecting her ability to parent her children.  So again there was a proper basis for the judge's conclusion, and this court is in a position to interfere only when there is not.' 

Unfortunately because it was only a short judgment given in respect of the permission to appeal application there were no details about how the children's time was shared between their parents so it is not possible to provide a analysis of how Re H and Re K differ in that sense.

Re K (Children) [2011] EWCA Civ 793
An application was brought by a father for permission to appeal against an order granting leave to remove the parties' two girls, aged 4 and 18 months, to Canada.

The mother was Canadian and the father was Polish. They had met in Toronto in 1992 and later moved to England where they had settled. They married in 2004 in London and subsequently separated in July 2010 with a shared residence order put in place very shortly afterwards in August 2010. Under the shared residence order the children split their time as follows:

Both parents worked part time in the banking sector. The mother had the assistance of a nanny when the children were with her (save for Wednesdays and the weekends when she does not work) but the father did not. The Court of Appeal concluded that therefore despite the seemingly unequal split of time between the parents the father's share of the children's care was not inferior to the mother's because he cared for the children unaided whilst they were with him.

The mother sought permission to relocate and emphasised her desire to have the support of her parents following the breakdown of her relationship with the father. The father strongly objected to the relocation and understandably emphasised the shared care arrangement and his commitment to the girls.

A Cafcass report was prepared which concluded that it was a fine and difficult balance but recommended that the mother's application be refused. She went on to say however that if the mother still expressed a desire to go to Canada in 3-4 years time that such a move would likely to be in the bests interests of the children.

On hearing the evidence of the parents and the Cafcass officer, HHJ Bevington granted the mother leave to remove the children from the jurisdiction to Canada.

Thorpe LJ described the task of criticising the judgment in the court below as an 'easy task.' The grounds of appeal were as follows: 

The Court of Appeal allowed the father's appeal. Thorpe LJ, Moore-Bick LJ and Black LJ all agreed that the only principle to come from Payne was the reiteration of the principle that the welfare of the children was paramount. The rest of the guidance as set out by Dame Butler Schloss in paragraph 85 of her judgment in Payne v Payne is to be applied or distinguished depending on the circumstances.

Thorpe LJ confirmed that the approach of Hedley J in Re Y should have been applied and that that the guidance in Payne is only applicable where the applicant is the primary carer. Therefore where parents share the burden of caring for the children in more or less equal proportions the approach in Payne should not be applied. Thorpe LJ did however emphasis that the title of shared residence was not enough; there had to be a fairly equal split of time in reality for Re Y  to apply.

Although Black LJ reached the same conclusion as Thorpe and Moore-Bick LJJ she explained that she had come to the conclusion by a different route. In her reasoning she said that Re Y and Payne were not different lines of authority but were simply two decisions within a framework of case law on leave to appeal matters. Black LJ also emphasised the importance of not getting sidetracked with arguments about whether each situation was a Re Y or a Payne case:

'Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application. The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered.'

Appeals

O v O
Baron J sought to clarify the new rules and procedure for appeals from a district judge following the implementation of the Family Procedure Rules 2010.

Previously the High Court listed all appeals from a district judge for a 30 minute direction hearing at which both parties were expected to attend. That procedure made perfect sense under the old rules as no permission was required and an appeal from a district judge to the High Court was by right. However the FPR 2010 has 'revolutionised the appeal process' in that, subject to the exceptions set out in rule 30(2), permission is required for appeals from any decision of a district judge. Despite this change, Baron J identified that appeals were still being listed for a 30 minutes inter partes hearing, even when permission had not yet been given.

Under the new rules the first attempt to obtain permission to appeal (if not made orally at the end of the first instance hearing) is by written application to be dealt with by the court on paper. In the event that the court decides that the appeal has prospects of success the judge can grant permission on paper. Alternatively, if the permission to appeal is refused on paper the appellant has the right to ask for an oral hearing.

It is of course open to the judge to list the permission application for a hearing rather than deal with it as a paper exercise and if they do so then this will be a one sided hearing unless otherwise indicated.

'In essence the new rules are akin to the procedure in the Court of Appeal and applications and permission to appeal should be dealt with and listed accordingly.'

91(14) Order

Re C (A Child) [2011] EWCA Civ 521
This case involved a mother's appeal against a final contact order which provided for indirect contact only and a s.91(14) order preventing further applications for direct contact until February 2012.

The case involved a 3 year old girl, 'C'. The proceedings arose from the father's application for residence, specific issue and prohibited steps orders. At an interim stage residence was awarded to father with interim supervised contact to the mother.

A three day fact finding hearing took place in 2009 in which the mother made allegations of rape against the father and the father made cross allegations dealing with the mother's unstable behaviour and her mental heath difficulties. The judge found that the allegations of rape were untrue and had been made by the mother knowing they were untrue. He found some of the cross allegations made by the father but said that apart from the mother's suicide attempt her behaviour did not go significantly beyond that of many people in decaying relationships. Numerous assessments were subsequently ordered including a psychologist assessment of both parents, a psychiatric assessment of the mother and an assessment of the contact between the mother and C by the director of the Living Springs Family Centre. The judge also appointed a 9.5 guardian for C.

At a lengthy final hearing the trial judge heard evidence from the experts, the parties and the guardian. He concluded that, despite his starting point of a presumption that face to face contact should take place between a parent and a child, on the circumstances of this case face to face contact was likely to be significantly damaging to C. She needed to be able to settle and the mother needed to maintain good indirect contact whilst seeking the therapy recommended by the psychologist instructed in the proceedings. He made clear that "if after that period the mother can demonstrate that she has undertaken the therapy that is necessary and that contact consequently with C can be a comfortable experience then I expect steps to be taken to reintroduce face-to-face contact between C and her mother."  

In order to allow C to settle he made a 91(14) order for 18 months.

The focus of the mother's appeal was that it was plainly wrong and premature for contact to be suspended in the absence of any cogent, let alone exceptional, evidence. In doing so the judge had abandoned the possibility of any relationship between the mother and C. It was submitted on behalf of the mother that the judge should have directed the appointment of a further expert to undertake a family assessment.

The Court of Appeal unanimously dismissed the mother's appeal. The judge had correctly stated and emphasised the importance of the presumption of face to face contact and had made clear that there was a requirement of very good grounds if it was to be suspended. The judge's conclusions were firmly supported by the expert evidence which had all been pointing the same way and the judgment made clear that the welfare checklist had been kept very much in mind throughout his decision. There was no appropriate reason to depart from the decision of the court below.

Munby LJ also added that the decision was not an abandonment of contact but a forward thinking plan to make contact work in the future. The making of a 91(14) order was therefore appropriate as it allowed the mother to undertake the therapeutic work recommended without her time being consumed by litigation.

Costs

R and another v A [2011] EWHC 1158

This case has an unusual factual matrix where a child's relatives sought leave to withdraw their Children Act applications.

The child's father (the child's only living parent) made cross applications to have their applications dismissed and for the relatives to pay his costs on the basis of their litigation conduct.

The case had numerous jurisdictional complications but in essence it was an application for residence by the children's maternal relatives following the child's mother's death. The father opposed the application and questioned the English court's jurisdiction. Shortly after the matter was listed for an initial hearing, the applicants accepted that Nigeria rather than England was the appropriate forum for their applications and suggested they each withdraw their applications in this jurisdiction and pay their own costs. The father opposed this and sought for their applications to be dismissed and for a costs order to be made against the applicants.

The President allowed the applicants to withdraw their applications as in his judgment to dismiss them would imply some adjudication of the issues. In terms of costs the President noted that under the FPR 2010 r.28.1 he had a broad discretion to make such orders as he thought just. He found that whether by reason of their litigation misconduct or simply because it was just, the applicants should pay the costs of the father.

The President supported this decision with reference to the following features of the case:

'This is a tragic case, and having read the documents I am left with the strong impression that the applicants have sought to further their case by making a number of highly unpleasant and irrelevant allegations about the respondent, which he had been obliged to defend, but which the applicants have then not brought to the court to be tested.

'I see no reason to doubt the respondent's parental relationship with K and the plan which he has made for her. In my judgment, the applicants should not have instituted these proceedings. In my judgment, much of the applicants' evidence has little to do with the welfare of K, and amounts to little more than an attack on the father. In my judgment, as I have already said, the respondent had no alternative but to defend the proceedings.'