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Children: Private Law Update (September 2012)

Alex Verdan QC of 4 Paper Buildings considers those judgments of the last few months which are of most importance in the area of private law children proceedings.

Alex Verdan QC, Head of Chambers, 4 Paper Buildings



Alex Verdan QC, 4 Paper Buildings

In this review I will focus on recent material covering the following topics: 

Costs at First Hearing Dispute Resolution Appointments
[2012] EWHC 2199 (Fam)

This case concerned an application by a father for permission to appeal the decision of the district judge's order for costs made against him at the first hearing dispute resolution appointment.

The child concerned was 16 years old and was adamant that she did not want contact with her father. Accordingly, the mother had made clear that she would seek an order for costs should the father make an application for contact.

The child, having met with Cafcass, expressed a clear wish not see her father and the district judge ordered the father to pay the mother's costs, and in giving judgment said:

'This is not a meeting house. Although counsel for the father said he simply wished to come here to establish the child's wishes and feelings, it is not appropriate to use this court simply to do that.'

Holman J, referring to the Private Law Programme, emphasised that the express purpose of the First Appointment is to provide a forum as a means to reach an understanding of issues and for the resolution of them. Moreover, there is no other means by which a parent could engage the services of Cafcass to ascertain a child's wishes and feelings without issuing an application.

On this basis Holman J accepted that such an appeal would have a real prospect of success. However, in applying the overriding objective the judge considered that the full cost of an appeal would be disproportionate to the sum in issue and refused permission to appeal.

Setting aside parental orders

G v G [2012] EWHC 1979 (Fam)

This case concerned a surrogacy agreement between the commissioning parents Mr and Mrs G, and SK the surrogate mother in respect of D. Mr G was D's biological father. A parental order was made in favour of Mrs G pursuant to section 54 of the Human Fertilisation and Embryology Act 2008. Mr and Mrs G subsequently separated, and Mr G applied to set aside the parental order.

The basis for the application was that the order had been wrongly made. Firstly, as a result of procedural flaws: (i) the court did not consider a parental report in making the order, contrary to rule 13.5 Family Procedure Rules 2010; and (ii) there had been no consideration of the welfare issues or requirements of section 54(8) of the Human Fertilisation and Embryology Act 2008, despite £10,000 exchanging hands. Secondly, it was asserted that it had been Mrs G's true and concealed intention to separate from Mr G and bring D up alone at the time of the making of the order. On this basis Mr G would not have continued and SK would not have consented to the making of an order.
There is no precedent for the setting aside of a parental order, and no statutory power to do so. Hedley J drew on guidance from the authorities concerning the revocation of adoption orders, in particular Re M (Minors) (Adoption) [1991] 1 FLR 458, which concerned a parent providing his agreement to an adoption order unaware that the adopter was terminally ill. Hedley J equated this case to the high water mark in law of the case advanced by Mr G.

Hedley J found that despite the procedural flaws the court would still have made the order as there was nothing in the parental report to suggest the criteria were not met. Also, the balance of welfare demands would have outweighed any anxieties as to whether the monies paid were limited to reasonable expenses (see Re L (Minor) [2010] EWHC 3146 (Fam) and Re X (Children) [2011] EWHC 3147 (Fam)). The court also found that at the time the order was made Mrs G did not have a settled intention to leave.

Hedley J refused the application. The setting aside of the parental order would not promote the welfare of the child in the current circumstances. Moreover, by drawing an analogy from setting aside adoption orders the bar is very high and the facts of this case did not go far enough.

Residence orders and grandparents
Re B (A Child)
[2012] EWCA Civ 858

This case concerned an appeal of a residence order made in favour of the paternal grandmother in respect of K, aged 5 years.

Following the relationship breakdown K remained in the care of the mother. The mother was opposed to any contact between K and the father and extended paternal family, and sought to rely upon serious allegations of domestic violence.

Orders for contact were made but were breached by the mother.

A fact finding hearing was fixed to investigate the mother's allegations. The mother's counsel and the community practice nurse, who was to accompany the mother to all hearings, were not available. The judge refused an application for an adjournment and the mother, rather than proceeding in full, sought to make concessions in respect of the findings sought.

Further orders for contact with father and grandmother were made and subsequently breached. The grandmother then made an application for residence after the mother threatened to abandon K.

A residence order was made in favour of the grandmother on the basis that it was better for the child to live with her grandmother and have contact with her mother than no contact with the paternal family. This decision was taken in light of the local authority's view that a change of residence would be harmful to K, and a refusal to reopen the allegations the mother had made which had previously been compromised.

In allowing the appeal Thorpe LJ said:

'I know of no case in which such dire sanction has been exercised against an obdurate parent to transfer the primary care to a grandmother. Manifestly grandparents are not on an equal footing with parents.' [13]

The trial judge had been wrong not to reconsider the mother's allegations in the context of the grandmother's application, and had not fully assessed the emotional corollary a change of residence would involve. The case was remitted for a retrial and the trial judge urged to appoint a guardian for K.

Residence and internal relocation

Re S (A Child) [2012] EWCA Civ 1031

This was the father's appeal against a decision granting a residence order to the mother and permission to relocate from London to Norwich. The father's argument was centred on two bases: (i) the judge characterised the mother as the primary carer and approached the question of relocation by simply asking whether she should be allowed to move; and (ii) the father asserted there was a shared care arrangement and the judge failed to distinguish between B's needs and the wishes of the mother to move to Norwich.

In turning to the law relating to internal relocation and its relationship with residence the Court of Appeal confirmed that even in those cases where there is a shared residence order it was not an automatic bar or trump card preventing a parent and child from relocating. It was always necessary for the court to determine what was in the child's best interests ( Re T (A Child) [2009] EWCA Civ 20, sub nom Re L (Shared Residence Order) [2009] 1 FLR 1157).

In dismissing the appeal, the Court of Appeal disagreed with the father's argument that the court below had oversimplified the issue of relocation by equating the mother's interests with those of the child. The judge had correctly applied the paramountcy principle and found that the wish to move was reasonable and justified, and that the contact arrangement with the father, despite a three hour journey each way, was manageable.

The prominence of parental responsibility in private law disputes
Re W (Children)
[2012] EWCA Civ 999

This case concerned an appeal by a father against an order for no direct contact with his daughters, aged nine and six years.

The background concerns allegations by the mother of domestic violence against the father and of sexual abuse against the grandfather on the children, neither of which were found.

The basis for the order had been that after a lengthy period of no contact the child psychologist recommended that both children would require 'long term desensitisation to contact' with the father, and for the mother and father to engage in therapeutic services to develop emotional awareness and for the father to control his anger.
By the time of the final hearing this work had not taken place and the psychologist was of the view that the mother's distress and anxiety about the father were so great that there should be no contact.

The Court of Appeal found the judge below had erred in her approach and re-emphasised the dicta of Ward LJ in Re P (Children) [2008] EWCA Civ 1431 that 'contact should not be stopped unless it is the last resort for the judge.' The judge had failed to grapple with all the alternatives that were open to her and the focus should have been on implementing steps to achieve engagement in therapy.

McFarlane LJ went onto to provide a wider perspective on the responsibility of parents, rather than the courts, in deciding and implementing arrangements that are in the best interests of their children, and the potential for it to be given greater prominence in the resolution of private law disputes. He said at [80]:

'Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the 'responsibility' which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may have hitherto been the case.'