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Children: Private Law Update (December 2009)

Alex Verdan QC, of 4 Paper Buildings, reviews the latest key decisions in private children law.

Image of Alex Verdan QC, barrister, 4 Paper Buildings








Alex Verdan QC, 4 Paper Buildings 

In this Review I will focus on recent developments covering the following topics:

Transfer of residence
In A (Children) [2009] EWCA Civ 1141 a primary carer mother successfully appealed against an order transferring residence of the three children to their father.

The parties married in 1997 and had three children but, on separation, proceedings began for a defined contact order. The mother made many allegations of domestic violence which resulted in a fact-finding hearing. The judge rejected some of the allegations but concluded that it had been a volatile marriage with both parties to blame. She also made clear in an oral observation, after reading the judgment, that her findings were not a bar to contact. However the mother continued to obstruct any contact though just prior to the final hearing, which was also to consider a competitive application for residence by the father, the mother changed her stance, allowing generous contact to the father, if she retained residence. In that light, the judge concluded that she could not trust the mother's change of position and so transferred residence but with equally generous contact to the mother.

On appeal, the mother argued primarily that the judge had identified the wrong issue. While the issue of whether the mother could be trusted to sustain her change of heart was important, the crucial issue was the risk of transferring the children. Thorpe LJ agreed with that submission, especially as no detailed contact order had been made which the mother had sought to frustrate,  commenting that:

"The transfer of residence from the obdurate primary carer to the parent frustrated in pursuit of contact is a judicial weapon of last resort.  There was hardly a need for a psychologist to establish the risks of moving these girls from mother to father....... The risks of gamesmanship from the mother in the future, confirmed in residence but nailed down with a clear detailed contact order, were plainly less, and from that essential risk balance the judge was diverted."

The judge failed to undertake the essential task, namely to assess the risk of shifting the children from mother to father and to balance that against other risks that would undoubtedly arise if endorsing the mother’s proposals. 
Coleridge J, sitting in the Court of Appeal, agreed and added that whilst the Recorder was to be applauded for taking a robust approach to yet another case involving a parent determined to exclude a perfectly adequate non-resident parent from having a proper relationship with the child, as these cases were the scourge of the whole family justice system and were always extremely difficult to resolve, where as here there had been an apparent volte-face by a mother and a concession that now contact should happen, combined with an acceptance by all that the mother’s care was in all other respects adequate, the remedy of last resort needed to be deployed with great care and any apparent change of heart, fully tested.  Given that the mother had not been in breach of any defined contact order, so that her future response to court orders was quite unknown, that should be assessed and tested.

The Court of Appeal warned the mother that she must embrace not only the letter but the spirit of this order.  She had to allow the children to have a proper and full relationship with their father.  If she failed to do that, it would be detected extremely quickly and the contact order would simply not operate properly.  If that was the case, the consequences would be all too obvious.  The children would indeed move to make their primary home with their father.  The mother should be under no illusion that that was the course that the court would take on the next occasion if these contact orders were not rigorously obeyed by her.

Occupation orders
In Grubb v Grubb [2009] EWCA Civ 976 a husband's application for permission to appeal an occupation order that he should vacate the matrimonial home was refused.

The application arose in the course of defended divorce proceedings where the husband, until the morning of the appeal, denied that the marriage had broken down irretrievably and that he behaved such that the wife could not be expected to live with him. There were five children in the marriage of which two still lived at home (though attended boarding school) so it was accepted that the children and wife should remain in the matrimonial home pending the financial settlement. The husband ran various businesses from the property and regarded himself as steward of the estate which had been in his family for over a century; there were also other homes on the estate. The deteriorating marriage therefore made him fearful of the financial consequences of divorce though the wife did not wish to remain in the matrimonial home after the settlement. As the marriage broke down the husband, among other acts,  refused the wife keys to the house and threatened to lock her out if she did not return home in time from an evening out.

The wife made the application for the occupation order under s33(6) of the Family Law Act 1996 so that there was no requirement to establish the prospect of significant harm (in contrast to an application under s33(7)). The husband appeal's, among other things, stated that the trial judge had failed to recognise the seriousness of the order and that the likely duration of the order, given the extant divorce proceedings, might be impermissibly too long. Wilson LJ rejected these arguments as the seriousness of the order was “greatest” when there was no alternative accommodation available and the issue of the length of time was “wholly unreal” as it was a matter entirely within the husband's control.

Wilson LJ stated that an occupation order was always serious, and no doubt could sometimes be particularly serious when it related to a spouse’s removal from what one might almost call his ancestral home. But the occupation order was likely to carry its greatest level of seriousness when it was made against a spouse to whom alternative accommodation was not readily available. In the present case immediate separation was not only “beneficial” but “necessary” and, in the light of the husband’s failure to craft proposals for the wife’s accommodation, the only way of achieving it was to evict the husband, to whom another property was readily available and who in any event had massive resources with which to fund his comfortable accommodation elsewhere.

In B (A Child) [2009] UKSC 5 the Supreme Court allowed an appeal by a maternal grandmother against a decision to transfer residence of her grandchild, who had lived with her since birth, to the child’s biological father.

The appeal was from the decision of the Court of Appeal B (A Child) [2009] EWCA Civ 545 where the Court of Appeal refused the grandmother’s appeal to reverse the decision of the circuit judge after the FPC had initially made a residence order in her favour. The Court of Appeal had refused her appeal primarily on the ground that the circuit judge had not been plainly wrong.

The Supreme Court unanimously allowed the appeal. In doing so, it reaffirmed the central message in Re G [2006]UKHL 43 that, where in a case between private individuals, a child’s custody or upbringing were in question, the welfare of the child was the paramount consideration. The judgment delivered by Lord Kerr was the judgment of the court to which all of its members contributed.

The Supreme Court allowed the grandmother's appeal for the following reasons:

Media access
Further reform to the reporting of family proceedings are set out in the Children, Schools and Families Bill.

The starting principle is that no information relating to family proceedings is to be published and publication is a contempt of court unless authorised: clause 32.

Publication of judgments are prohibited unless authorised by the court: clause 33. So judgments released for publication on the BAILII website are freely publishable; whilst handed down judgments are not unless permission is granted.

Authorised news publications are permitted: clause 34; but subject to strict conditions. The publisher of the information has to be an accredited news representative or have the consent of that representative: clause 34(3). The accredited media can only publish information obtained from observing or listening to the proceedings: clause 34(2). 

News publications cannot include identification information, sensitive personal information or restricted adoption information unless permitted by the court: clause 34(4); if satisfied of the matters listed in clause 35(2)-(4).
The definition of ‘sensitive personal information’ as set out in Schedule 3 to the Bill is wide.

The media are not allowed access to the case papers for fear that families will be thereby identified and their right to privacy breached.

Clause 37 provides the conditions for the court to exercise its powers to impose restrictions on publication of information and requires the court to consider the risk of prejudice to the safety of any person, the welfare of the child or vulnerable adult or the interests of justice.

Clause 34(4)(c) of the Bill allows for ‘professional witnesses’ as opposed to individuals to be identified by the media subject to the provisions of clause 37(3). They are defined by clause 41 as persons who give evidence for a fee and whose instruction have been authorised by the court. Thus professional witnesses include neither social workers nor Guardians.

Clause 34 prohibits the publication of ‘identification information’ or ‘sensitive personal information’ as defined widely in Schedule 3 to include information provided by the child, relating to a medical, psychological or psychiatric condition or examination relating to any health care, treatment or therapy without  a judge’s permission.

Adam Wolanski has devoted a recent article to the provisions of the Bill relating to media access (see Media Access to the Family Courts: the Latest Proposals).

Independent News and Media Ltd & Ors v A (by the Official Solicitor) [2009] EWHC 2858 (Fam) concerned an application by media organisations to attend Court of Protection hearings involving a young adult (A) who lacked capacity but who had a talent that had brought him public recognition. The applicants argued that the open justice principles of Scott v Scott should prevail, especially when read in conjunction with the Human Rights Act 1998, and that the Article 10 rights of the media were engaged. Moreover, much of the information was already in the public domain and any truly private information could be managed through r.91 of the Court of Protection Rules, which could place restrictions on what could be reported. Counsel for A argued that the proceedings were one of the three types excluded by Scott and that therefore the Article 10 rights of the media were not engaged. Further that the purpose of the privacy provisions in the rules was to protect the privacy of the person who lacked capacity and also to encourage frankness in the discussion before the court of such private matters. Just because A was famous was not a good reason to displace that basic rule.

In this judgment Hedley J reviewed the Court of Protection Rules and the legislative background. He agreed with counsel for A that the proceedings were within the exceptions to open justice and that the Article 10 rights of the media were not automatically engaged unless an application was made under r.91 where good reason had to be demonstrated and, if so, the balancing exercise between Article 8 and 10 rights be undertaken. He then concluded that there was good reason as i) the issues were already in the public domain; ii) the court had powers to preserve privacy; and iii) the decision would have major implications for A and it was in the public interest that the workings of the court should be known. He then conducted the balancing exercise and allowed the media access to the proceedings but with restrictions on what could be reported. He also commented that the court should take note of the unfortunate consequences that could flow from an over protective concern to ensure privacy at any cost as has been seen from some of the experience within the Family Justice system.

Findings of fact
The order under appeal in E (A Child) [2009] EWCA Civ 1238 arose out of the mother's allegations of physical abuse by the father. The judge found the allegations proved and in his judgment went on to state, without hearing submissions from the parties, that the father's application for contact was almost bound to fail. However there had been no argument as to what contact, if any, should be allowed in the light of the findings.

In allowing the appeal, Ward LJ concluded that the judge should not have expressed his view on the issue of contact at this juncture, without giving this father the opportunity to address them. After reviewing the comments of Baroness Hale in Re B [2008] UKHL 35, he then went on to direct that the issue should be remitted back to the county court but that this was a case where the final hearing should be heard by a different judge because of the procedural irregularity caused by the judge's remarks.

Ward LJ also observed how unfortunate it was that following a fact finding judgment no order whatever was drawn by the court recording the findings of fact that were in fact made. 

In M (Children) [2009] EWCA Civ 1216 an application by a father for permission to appeal, with appeal to follow, refusal to adjourn contact proceedings as the father was not fit to give evidence on the day, was allowed.

The parents of two children had separated in 2007 following violent quarrels. The father suffered from bi-polar affective disorder and failure to take lithium regularly may have contributed to the relationship breakdown. His commenced contact proceedings in 2008 but was unable to give evidence at a scheduled fact-finding hearing because of a deterioration in his mental health, corroborated by medical evidence. In addition the father had an impeccable record of attending previous court hearings. Accordingly, the judge concluded that there was little prospect of success for the father's application and that further delay would be contrary to the best interests of the child, so he refused an adjournment.

Thorpe LJ allowed the appeal primarily as, though the judge had correctly directed himself that he could not proceed to disposal without a fact finding hearing, all that was sought was an adjournment of that hearing and so he "had to confine his discretionary consideration to issues that were so limited and not issues that would arise at an investigation of the merits of the father’s case at a later stage in the proceedings".

The judge should have seen that to dismiss the case entirely at that stage was likely to deny the father a fair trial.

Section 91(14)
N (A Child) [2009] EWHC 3055 (Fam) arose from a guardian's application for a s.91(14) orders against both parents following litigious contact and residence proceedings. An order was made for four years; the guardian had initially asked for seven, until the child was 16.

In making the order Munby J observed that: i) the order was not merely necessary in the Strasbourg jurisprudence sense but "absolutely essential" given the history of the litigation; ii) he had "not the slightest confidence that on some future occasion, when it suited him, the father would not repudiate" his claim to have nothing further to do with the family courts"; iii) even after the order expired, he would expect any judge to scrutinise further application very carefully and, if necessary, use their power of summary dismissal for unmeritorious applications; iv) both parents would do well to bear in mind the limited ability of the court to resolve parental disputes as to the arrangements for a Bar Mitzvah.