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Children: Private Law Update (November 2012)

Alex Verdan QC of 4 Paper Buildings reviews important recent developments relating to private children law.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC
, 4 Paper Buildings

n this review I will focus on recent case law in respect of the following topics:

Conditional residence orders
M (Children) [2012] EWHC 1948 (Fam)

This case concerned two children aged 10 and 8, and the father's application for a transfer of residence. The children lived with the mother and her partner. Contact with the father had broken down, and it was clear that the mother was influencing the children against the father. The mother subsequently relocated from Blackpool to Devon without notice to the father and disengaged with proceedings. A Guardian was appointed and recommended there be limited contact of twice per year for four hours, despite contact having taken place successfully and frequently. The Guardian was subsequently replaced by the Judge as a result of her flawed approach.

The father's application for residence was listed for hearing before Jackson J who found that the mother did not consider the children needed a relationship with their father and was not supporting contact, and that the children wanted to see their father but were being prevented from doing so. The judge found that the children's welfare would be best promoted by living with their father unless the mother was able to promote contact.

In carrying out a fine balancing exercise the judge found that the change in residence and associated disruption to the children was a risk, and therefore decided that the children remain in the care of the mother. However, in the event the mother failed to facilitate staying contact with the father there would be a transfer of residence to the father, and an application for the recovery of the children should be made if the mother refused to give the children up.

The judge decided that a conditional order would best promote the children's welfare and set out the mechanics of the order as follows:

"A conditional residence order is in my view appropriate where the court can confidently foresee the circumstances in which it might come into effect. I therefore limit it to the period of the next eight weeks. Thereafter, and until the end of next year, the order will not automatically come into effect if there are failed contacts, but if there are, the father can restore his application before me for an early decision." [77]

Parental orders under the Human Fertilisation and Embryology Act 2008
D and L (Surrogacy)
[2012] EWHC 2631 (Fam)

This case concerned an application by male civil partners for parental orders. The applicants sought to become parents through a surrogacy arrangement at an Indian clinic. The applicants entered into a formal court surrogacy agreement and agreed that the first applicant would be the genetic father of the child. The applicants paid $22,000 and an additional $5,000 if the mother gave birth to twins to the clinic.

The clinic subsequently informed the applicants that their procedure following birth was that the surrogate need only have 3-4 weeks to consider her final decision to hand over her baby. This was inconsistent with the provision of HEFA 2008, the applicants needing to prove that the surrogate mother had given her consent 'fully and unconditionally' more than six weeks after the birth.

The applicants intended to request the surrogate sign a document six weeks after birth consenting to parental orders being made. However, the clinic did not respond to the applicants and the surrogate could not be found despite an enquiry agent having been instructed.

The applicants made an application in England for parental orders. Baker J had to determine whether the requisite criteria under section 54 were met, ie could the court dispense with the consent of the surrogate which was required at least six weeks after the birth, and secondly could the court grant retrospective permission for the payment of compensation as prohibited by section 54(8) HEFA?

Baker J dispensed with the need to obtain the surrogate's consent on the basis that the children's welfare being the court's paramount consideration demanded the making of a parental order, and given that all reasonable steps had been made to locate the mother without success.

With regards to the payment of compensation, Baker J endorsed the approach taken by the President in Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam) and found that whilst the payment exceeded what was reasonable, the children's welfare would 'unquestionably be enhanced by the making of the parental orders.'

Leave to remove
Re F (A Child) [2012] EWCA Civ 1364

This case concerned the father's appeal against an order that the mother had permission to remove the child (P) permanently to Spain.

The parents were Spanish nationals and came to this country to live in 2009, and agreed to remain in this country until at least 2013 due to the father's work. The Mother was the primary carer.

The parents returned to Spain for a holiday in 2011. The parents returned to this country with P but the mother subsequently returned to Spain anticipating that P would follow. However, the child remained in this country with his father who became the primary carer.

Hague proceedings were initiated with the mother seeking residence in Spain and the father seeking residence in England. P was habitually resident in this country and the mother's application for the return of the child to Spain was dismissed. The parties' cross applications for residence came before HHJ Martston who made a shared residence order but gave the mother permission to permanently remove P from the jurisdiction. He ordered that P live with his father for one week during the Easter holiday and not less than five weeks during the summer holidays.

In reaching this decision the judge posed the question 'is this a case to which Payne v Payne applies?' He found that the mother was the primary carer for P until August 2011 when the father was making significant contributions to P's care. The parties agreed that in the future there would be a shared care arrangement. However, the judge found that at the point of trial there was not a shared care arrangement and he was entitled to look at the Payne guidelines. The judge found that he had on the Payne basis a very well balanced case with both parents becoming emotionally devastated should their plans not be accepted. The judge went onto to apply section 1(3) Children Act 1989 and decided the child should live with the mother in Spain.

The father appealed on the basis that Payne did not apply because whilst the father was the primary carer, the judge had treated the mother as primary carer. The father further submitted that the principles in K (Children) [2011] EWCA Civ 793 did not apply either because it was not a shared residence case.

The mother in resisting the appeal argued that the judge had proper regard to the fact that the father was the primary carer, and had not erred in law, because he loyally applied the paramountcy principle.

In carrying out an analysis of the case law Court of Appeal fully endorsed the approach taken in K  at paragraph [29]:

"that the only principle to be applied when determining an application to remove a child permanently from the jurisdiction was that the welfare of the child was paramount and overbore all other considerations however powerful and reasonable they might be; that guidance given by the Court of Appeal as to factors to be weighed in search of the welfare paramountcy and which directed the exercise of the welfare discretion was valuable in so far as it helped judges to identify which factors were likely to be the most important and the weight which should generally be attached to them and promoted consistency in decision-making; but that (per Moore-Bick and Black LJJ), since the circumstances in which such decisions had to be made varied infinitely and the judge in each case had to be free to decide whatever was in the best interests of the child, such guidance should not be applied rigidly as if it contained principles from which no departure were permitted".

The Court of Appeal further focused on the two differing approaches in K and the application of the Payne guidelines between Lord Justice Thorpe and Lady Justice Black. Thorpe J in approving Hedley J's analysis in Re Y said at [57]:

"Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised. The judge should rather exercise his discretion to grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989."

Black LJ (paragraph [96]) adopted a rather different approach:

"Where my reasoning and that of Thorpe LJ diverge is … in particular in relation to the treatment of Payne v Payne. Thorpe LJ considers that Payne should not be applied in circumstances such as the present and that the judge should instead have applied the dicta of Hedley J in Re Y. For my part, as will become apparent, I would not put Payne so completely to one side."

Following a careful analysis of the authorities, Black LJ continued in this important passage (paragraphs [141]-[142]):

"The first point that is quite clear is that … the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court's paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

"Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else – the valuable guidance – can be ignored. It must be heeded … but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable."

This view suggests that Payne identifies a number of factors, which will or may be relevant to relocation and the welfare of the child.

The Court of Appeal in this instance found that the gap between Thorpe LJ and Black LJ in K was not that great as Thorpe LJ's approach at paragraph 40 of Payne was not confined to cases where the applicant is the primary carer, it is guidance that may be utilised in other kinds of relocation case.

The issue in the present case was whether the circuit judge's explicit reference to Payne in reaching his decision was wrong because the mother was not the primary carer. The key point is that the judge did not ask himself whether this was a Payne case but is this a case to which Payne applies. He looked at the guidance at paragraph 40 and then went onto to apply the welfare checklist and came to a conclusion. This was not an error of law.

Specific issue order in relation to education  
Re G [2012] EWCA Civ 1233

This was the father's permission to appeal from an order of HHJ Copley against the making of a specific issue order in relation to the schooling of five children from the Hasidic orthodox Jewish community aged 11, 8, 5, 10 and 3, and shared residence. The father was given permission to pursue the specific issue order but not the residence.

The mother had sought to enrol the children into a new co-educational school where they had greater educational opportunities. The father opposed this and favoured the children remaining where they were and leading strict orthodox lives. It was the mother's case that she wanted her children to undertake secular qualification. The father did not agree and wanted the children to pursue Talmudic qualification.

The basis of the father's appeal was that the judge in deciding in favour of the mother attributed too much weight to the benefits which a change in school could bring to the children rather than the extent that it would change their lives.

The Court of Appeal found that the judge below had correctly applied the law and made clear that he had in mind what he called the strictures set out in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239. He described the first and principal issue as follows:

"I decide the case, not on any view of mine as to the beliefs of the parents, but by considering all the circumstances and all the evidence to determine where lie the interests of the children."

The Court of Appeal found that the judge appropriately took a broad and all embracing view of the likely advantages to a change of school, which included how it would change their lives in light of their strict orthodox practices.

In reaching this view on the appeal the court posed the question how was the judge to resolve this dispute [80]:

"In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future."

In endorsing this approach and the decision of HHJ Copley, the court likened this case to Re W (A minor) (Medical treatment: Court's jurisdiction) [1993] Fam 64 where a teenager was to submit against their wishes to life saving treatment, and the court had to resort to what would be in the child's best interests.

For an article, written by Karwan Eskerie, analysing the court's approach in this case, please click here.