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Children: Private Law Update (Spring 2018)

Alex Verdan QC of 4 Paper Buildings reviews recent important judgments in private law children cases.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings  

In this update I will consider the following areas: 

The 'psychological parent'

In Re E-R (Child Arrangements) (No.2) [2017] EWHC 2382 (Fam) and Re E-R (Child Arrangements order – costs no. 2) EWHC 2535 (Fam), Cobb J was concerned with an application to vary a child arrangements order by the 'psychological parent'.

The court had previously made an order for T, aged 8, to live with her deceased mother's friends, and to spend time with her biological father and his partner. The father subsequently breached the order by removing the child from where she was living. The father subsequently sought for the child to live with him. The child's psychological parents applied to vary the original order to reduce the time the father spent with T.

In varying the order and affirming the arrangements for T to live with her psychological parents, Cobb J referred to "the adults who have cared for her, and who have nurtured her through an impossibly difficult time following the sad death of her mother" [54].

The court found that the father's breach of the order was reprehensible and unreasonable, and ordered the father to make a contribution of £15,000 towards the applicant's costs of £35,000, not to be enforced without leave of the court.

Cost orders in relocation cases

In S v S (Relocation) [2017] EWHC 2345 (Fam) the court was concerned with a father's application to relocate to Switzerland with the parties' two children, aged 15 and 13, who were joined as parties to proceedings. The parents were Russian nationals, but the family was used to spending time in Cyprus, Switzerland and the UK. The independent social worker recommended that in light of the children's wish to live with their father in Switzerland, they move. Moreover, she said that a refusal might cause irreparable damage to the children's relationship with their mother.

The court granted the father's application but also made a child arrangements order for the children to live with both parents for unequal periods of time, and that the father provide the mother with £5,000 per month, by agreement, to secure accommodation in Switzerland when she visited.

The parties' combined costs were £938,000. The court found that, despite the father's application being successful, his behaviour was 'reprehensible' in the way he had run his case and pursued issues to a final hearing, and made a costs order against him.

This represents a further example of the court exercising its discretion to make costs orders where a party has behaved unreasonably.

The court further proffered  guidance to solicitors representing children in respect of their meetings with child clients. Referring to the fact that in this case the solicitors had met the children without the knowledge of the mother but with the full knowledge of the father, the court noted that "there was a tension between the rights of children to receive legal advice and the need for parents to know what is happening in children's lives so that they can look after them properly." [32]

Hair strand testing

In Re H (A child – hair strand testing) [2017] EWFC 64 Jackson J (as he then was) was dealing with the reliability of hair strand testing in care proceedings. The significance of this decision is relevant to all children act proceedings.

The issue related to a mother's use of cocaine. She accepted that she had used cocaine up until July 2015 but not thereafter. However, the hair strand tests for the two year period from 2015-17, obtained from three testing organisations, showed a low level use of cocaine for some of that time. All three witnesses bar one from the testing organisations gave evidence to the effect that the positive results were from from cocaine use, rather than external contamination.

Jackson J provides a helpful summary relating to the science behind hair strand testing at paragraph 28:

(1) Normal hair growth comprises a cycle of three stages: active growing (anagen), transition (catagen) and resting (telogen).  In the telogen stage can remain on the scalp for 3-4 (or even 5 or 6) months before being shed.  Approximately 15% of hair is not actively growing; this percentage can decrease during pregnancy.

(2) Human head hair grows at a relatively constant rate, ranging as between individuals from 0.6 cm (or, in extreme cases, as low as 0.5 cm) to 1.4 cm (or, in extreme cases, up to 2.2 cm) per month.  If the donor has a growth rate significantly quicker or slower than this, there is scope both for inaccuracy in the approximate dates attributed to each 1 cm sample and for confusion if overlaying supposedly corresponding samples harvested significant periods apart.

(3) The hair follicle is located approximately 3-5 mm beneath the surface of the skin; hence it takes approximately 5-7 days the growing hair to appear above the scalp and can take approximately 2-3 weeks to have grown sufficiently to be included in a cut hair sample.

(4) After a drug enters the human body, it is metabolised into its derivative metabolites.  The parent drug and the metabolites are present in the bloodstream, in sebaceous secretions and in sweat.  These are thought to be three mechanisms whereby drugs and their metabolites are incorporated into human scalp.

(5) The fact that a portion of the hair is in a telogen stage means that even after achieving abstinence, a donor's hair may continue to test positive for drugs and/or their metabolites for a 3-6 month period thereafter.

(6) Hair can become externally contaminated (e.g. through passive smoking or drug handling).  Means of seeking to differentiate between drug ingestion and external contamination include:

(i) washing hair samples before testing to remove surface contamination

(ii) analysing the washes

(iii) testing for the presence of the relevant metabolites and establishing the ratio between the parent drug and the metabolite

(iv) setting threshold levels.

(7) Decontamination can produce variable results as it depends upon the decontamination solvent used.

(8) The SoHT has set recommended cut-offs of cocaine and its metabolites in hair to identify use:

(i) cocaine: 0.5 ng/mg

(ii) metabolites BE, AEME, CE and NCOC: 0.05 ng/mg

(9) Cocaine (COC) is metabolized into benzoylecgonine (BE or BZE), norcocaine (NCOC) and, if consumed, together with alcohol (ethanol), cocaethylene (CE).  The presence of anydroecgonine methyl ester (AEME) in hair is indicative of the use of crack smoke cocaine.

(10) Cocaine is quickly metabolised in the body: therefore, in the bloodstream the concentration of cocaine is usually lower than that of BE.  However, cocaine is incorporated into hair to a greater degree than BE: therefore, the concentration of cocaine in the hair typically exceeds that of BE.  Norcocaine is a minor metabolite and its concentration in both blood and hair is usually much lower than either cocaine or BE.

(11) Some metabolites can be produced outside the human body.  In particular, cocaine will hydrolyse to BE on exposure to moisture to variable degree, although high levels of BE as a proportion of cocaine would not be expected.  It is very unlikely that NCOC will be found in the environment.  The fact that cocaine metabolites can be produced outside the body raises the possibility that their presence is due to exposure: this is not the case with cannabis, whose metabolite is produced only inside the body.

(12) Having washed the hair before testing, analysis of the wash sample can allow for comparison with the hair testing results.  There have been various studies aimed at creating formulae to assist in differentiating between active use and external contamination.  In particular:

(i) Tsanaclis et al. propose that if the ratio of cocaine in the washing to that in the hair is less than 1:10, this indicates drug use. 

(ii) Schaffer proposed "correcting" the hair level for cocaine concentration by subtracting five times the level detected in the wash.

The underlying fundamentals are that if external contamination has occurred (and therefore a risk of migration into the hair giving results that would appear to be positive) this is likely to be apparent from the amount of cocaine identified in the wash relative to that extracted from the hair.

It transpired, having heard evidence from the three testing organisations, that they used different thresholds, based on different numerical values, for the categorisations of the results being: low, medium or high. Notably, the high category for the mother documented by one organisation would have been medium in the other two.

At paragraph 57 Jackson J reminded testing organisations and practitioners of the need to approach the interpretation of results with care:

"[I]t is also important to stress the responsibility for making proper use of scientific evidence falls both on the writer and the reader. The writer must make sure as far as possible that the true significance of the data is explained in a way that reduces the risk of it becoming lost in translation. The reader must take care to understand what is being read, and not jump to a conclusion about drug or alcohol use without understanding the significance of the data and its place in the overall evidence."

On the basis of the difference in opinion of the testing organisations the court could not be satisfied that the mother had taken cocaine over the period in dispute.

Covert recordings

In Re B (A Child) [2017] EWCA Civ 1579 the President was dealing with the question as to whether it was appropriate for HHJ Bellamy's judgment (at first instance) to be publicised, which intended to provide guidance as to the use of covert recordings in private law proceedings.

The President observed that the issue of covert recording and its use in proceedings had become problematic in recent times due to the sophistication and miniaturisation of recording equipment. Moreover, there were three categories of recordings: (i) of children; (ii) of parents; and (iii) of professionals.

With each recording arose the difficult questions of: (i) the lawfulness of the recording; (ii) best practice outside the court room; (iii) the admissibility of the recording; and (iv) further issues about the authenticity of the recording and its quality etc.

The President opined that the topic was nuanced, and such 'guidance judgments' should be the work of a judge of the Division or the President.

The President ordered that the order for the publication of the judgment be set aside, and the Family Justice Council be invited to consider the question of covert recording from a multi-disciplinary perspective.

The findings of the Council will be summarised in a forthcoming review as soon as they are available.

Temporary relocations

In Re DO & BO [2017] EWHC 858 (Fam) Baker J was primarily dealing with an application by a mother to take the parties' two children, aged 8 ½ and 6, on holiday to China for 21 days each year. The mother was a Chinese national. The court had joined the children to proceedings and directed for expert evidence to instruct an expert in Chinese law to consider the enforceability of any order made in England.

In considering the relevant principles dealing with temporary relocation in Re R (A Child) [2013] EWCA Civ 1115 the court found that:

(1) As to the magnitude of the risk of breach of the order if permission was given, there was a 'moderate' risk that the mother would not return the children to England.

(2) As to the magnitude of the consequences of breach, the retention of the children in China would have devastating consequences for the children.

(3) As to the level of security that might be achieved by building in to the arrangements all of the available safeguards, accepting the evidence of the expert, there were no effective safeguards which could be implemented to prevent the children from being retained if the mother so chose to keep them there. China is not a signatory to the Hague Convention and there is no bilateral agreement with the UK.

After considering these factors, Baker J decided that it would not be in the children's best interests to travel to China at this point.

Transgender parent and the ultra-orthodox Jewish community

Re M (Children) [2017] EWCA Civ 2164 is a helpful authority for practitioners dealing with cases where a cessation of contact is sought. 

In this decision the Court of Appeal overturned a decision of Jackson J (as he then was) in J v B (ultra-orthodox Judaism: Transgender) [2017] EWFC 4 in which he refused direct contact, and ordered indirect contact only, between a transgender father and her five children from an ultra orthodox community.

The father (a transgender woman) came from a Charedi community in North Manchester and applied for direct contact with her five children in 2015. The court at first instance found that despite listing fifteen reasons in favour of direct contact, ultimately the risk of psychological harm to the children by having direct contact outweighed the positives, because they would be ostracised by the community.

The Court of Appeal found that the learned judge had erred in reaching his decision because: (i) He had not asked himself 'a number of pertinent questions', including how his conclusion could follow from his role as a judicial responsible parent applying the standards of reasonable men and women in 2017, in circumstances where the community focus was as much on itself and the adults as it was on concern for the children [77]. (ii) He had not suitably dealt with the children's and parent's human rights [78]. (iii) The reasons for preferring indirect contact over direct contact, in circumstances where the concern was the role of the community, were unclear. (iv) Not all efforts to make contact work had been 'grappled' with.

In allowing the appeal the court emphasised the role of the court to act as the "judicial reasonable parent":

"[T]he judge in a case like this is to act as the 'judicial reasonable parent', judging the child's welfare by the standards of reasonable men and women today, 2017, having regard to ever changing nature of our world including, crucially for present purposes, changes in social attitudes, and always remembering that the reasonable man or woman is receptive to change, broadminded, tolerant, easy going and slow to condemn. We live or strive to live, in a tolerant society. We live in a democratic society subject to the rule of law. We live in a society whose law requires people to be treated equally and their human rights are respected. We live in a plural society, in which the family takes many forms, some of which would have thought inconceivable well within living memory." [60].

Moreover, that the court has a positive duty to attempt to promote contact and that means 'grappling' with all the available alternatives before abandoning all hope (Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [2011] 2 FLR 912).

In opining that direct contact was in the children's best interests the Court of Appeal concluded:

"[I]n our judgment the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the court must, with respect to the learned judge, persevere. As the law says in other contexts, "never say never". To repeat, the doors should not be closed at this early stage in their lives." [138]