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Children: Private Law update (May 2013)

Alex Verdan QC of 4 Paper Buildings considers several recent judgments in Children private law proceedings which provide practitioners with helpful guidance.

Alex Verdan QC
of 4 Paper Buildings

In this review I will focus on recent judgments concerning the following topics:

• Leave to remove from the jurisdiction
• Interim contact and fact finding hearings
• No order as to contact and domestic violence
• The termination of and making parental responsibility orders

Leave to remove from the jurisdiction
In Re TC and JC (Children: Relocation) [2013] EWHC 292 (Fam) Mostyn J provides a useful summary of the jurisprudence in relocation cases setting out the governing principles, and some key observations of the recent leading authority from the New Zealand Supreme Court.

The case concerned an application by the mother for permission to permanently remove two young children aged 3 ½ and 2 years of age to Australia. The parties met in Australia in 2001 where they married and then moved to the UK in 2010. The marriage subsequently broke down and the mother abducted the children to Australia. Hague proceedings followed in Australia and the children were then returned to the UK.

The unusual facet about this case is that both parents agreed that whatever decision the court made as to where the children were to live, the unsuccessful parent would go and live in that jurisdiction as well.
Mostyn J undertook a careful analysis of the jurisprudence, and set out the governing principles to any relocation application at [11]:

i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.

ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.

iii) The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.

iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):

a) Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?

b) Is the mother's application realistically founded on practical proposals both well researched and investigated?

c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

d) Is the father's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?

e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?

f) To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?

v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.

vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more that a reflection of the reality of the human condition and the parent-child relationship.

vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements.

Mostyn J also pays heed to the recent decision of the Supreme Court of New Zealand (relocation never having been considering in the Supreme Court of England and Wales) in the case of Kacem v Bashir [2010] NZSC 112. Whilst the legislative language is different, the principles of paramountcy governing these applications is the same. Interestingly, Mostyn J quotes key sections from the New Zealand judgment, which emphasize that there should be no be a presumption in favour of an application to relocate:

"At the highest level of generality the competition in a relocation case is likely to be between declining the application for relocation because the children's interests are best served by promoting stability, continuity and the preservation of certain relationships, as against allowing it on the ground that the interests of the children are thereby better served. Put in that way, it is difficult to see how any presumptive weight can properly be given to either side of those competing but necessarily abstract contentions. To do so would risk begging the very question involved in what is necessarily a fact-specific inquiry.

Everything will depend on an individualized assessment of how the competing contentions should be resolved in the particular circumstances affecting the particular children. If, on an examination of the particular facts of a relocation case, it is found that the present arrangements for the children are settled and working well, that factor will obviously carry weight in the evaluative exercise. All other relevant matters must, of course, be taken into account and given appropriate weight in determining what serves the child's welfare and best interests, as s 4(5) puts it. The key point is that there is no statutory presumption or policy pointing one way or the other. All this seems to us to follow from ss 4 and 5 of the Act as a matter of conventional statutory interpretation." [24]

Mostyn J further refers to key sections of the judgment in an effort to dispel concerns that these decisions are unpredictable, because of the width of the judge's discretion in deciding them. Mostyn J uses the decision to try and show that the judge's decision 'is not really 'discretionary' at all, at least not in the sense of a judge making a decision from a range of legitimate solutions none of which can be said to be wrong.'

The New Zealand Supreme Court explains:

''But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court." [34]

When addressing the alleged unpredictability and the width of "discretion" they stated at paragraph 35:

"These and other concerns … are inherent in the exercise in which judges administering ss 4 and 5 of the Act are involved. Lack of predictability, particularly in difficult or marginal cases, is inevitable and the so-called wide discretion given to judges is the corollary of the need for individualised attention to be given to each case. As we have seen, the court is not in fact exercising a discretion; it is making an assessment and decision based on an evaluation of the evidence. It is trite but perhaps necessary to say that judges are required to exercise judgment. The difficulties which are said to beset the field are not conceptual or legal difficulties; they are inherent in the nature of the assessments which the courts must make. The judge's task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme."

This case law serves to reinforce the way in which the courts of England and Wales determine these applications in that there is no presumption in favour of the applicant mother, and that the court will start with a 'blank sheet', and the guidance provided by previous decisions can only be 'aids to the determination of the ultimate question which is of course: what is in the best interests of these children.'

In determining this application Mostyn J considered the governing principles he identified at paragraph [11], and opined that the key consideration in this instance was the impact on the mother of refusing her application to relocate, and that would bear far more heavily on her than the other way round. This decisive factor pushed the court to favour the mother's proposal and to find that to be in the children's best interests.

The court made the following order:

(i) Mother's application to relocate to Australia is granted;

(ii) Shared residence order in Australia with the children's time to be divided equally between the children on an alternate weekly basis in term time and on dates to be agreed in holiday time;

(iii) Any dispute as to the living arrangements to be adjudicated by the family court of Australia.

Interim contact and fact finding hearings
In the case of Re H (A child) [2013] EWCA Civ 72 Black LJ provides practitioners with a helpful review of the authorities and key considerations for the court in making interim orders as to contact and residence and fact finding hearings.

This was an appeal brought by the mother concerning an 8 year old boy (H) against a relaxation of restrictions to interim contact that prevented the father from taking the child to his home. The mother sought to argue that the exercise of the judge's discretion had been flawed in the light of allegations of violence perpetrated against the children by the father, and the judge directing that the issue of the progression of interim contact was to be determined on submissions prior to the final hearing.

The Court of Appeal re-emphasised the approach taken to appeals made against case management decisions by referring to the recent decision of  Re TG (A Child) [2013] EWCA Civ 5 when it was decided that robust but fair case management decisions would be supported by the Court of Appeal and would only be interfered with in  limited circumstances where:

"it is satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge." [35]

In respect of interim contact and finding of fact hearings Black LJ provided a detailed summary of the jurisprudence. Black LJ makes clear that the starting point is Practice Direction 12 J Family Procedure Rules 2010, which does not prevent a judge from making an order for contact without making findings of fact in relation to disputed allegations of domestic violence, but the court is to determine as soon as possible whether it is necessary to conduct such hearing before it can go on to consider disposal issues (paragraph 13). Although paragraph 15 of PD12J contemplates a two stage process of fact finding and then welfare hearing the Court of Appeal's interpretation was not that two separate hearings were required but rather:

''PD 12J should be read, in my view, as imposing an obligation on the court to determine whether findings need to be made about factual issues at all and whether, if so, that should be done in a separate fact finding hearing or as part and parcel of a composite fact finding and welfare hearing. If it decides a separate fact finding hearing is necessary then it has to give directions for that and it must be sure to fix the welfare hearing there and then.'' [54]

In this case the appeal could only succeed if it could be established that the exercise of the judge's discretion in relation to case management or contact was flawed. The judge correctly considered the provision in PD12J, albeit not making explicit reference to it, and carried out a balancing exercising in considering the risk of contact progressing, against H's need to have a proper relationship with his father in normal circumstances.

The Court of Appeal referred to Munby J's (as he then was) judgment in Re C (Children) [2012] EWCA Civ 1489 highlighting the breadth of the family judge's discretion to determine the way in which an application should be pursued, and whether an issue is to be dealt on the basis of written evidence or oral submissions only.

At the end of her judgment Black LJ provided the following guidance as to appeals regarding the exercise of a tribunal's discretion:

''We should resist the temptation, as Lord Hoffmann told us in Piglowska, to subject the judge's judgment to "a narrow textual analysis", particularly when it was an extempore judgment delivered at an interim hearing that lasted for much longer than the time allocated for it in the list. We should read Judge Powles' reasons "on the assumption that, unless he demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". It has not been demonstrated to me that Judge Powles erred in making the order that he did which was within the bounds of his discretion, supported by the evidence and explained in his judgment.'

No order as to contact and domestic violence
AB v BB and Others [2013] EWHC 227 (Fam)
concerned a father's application for contact to his four children C 6 years, D 4 years, E 3 years and F 2 years. The mother sought an order for no contact against a background of a prolonged history of domestic violence for which the father had received numerous convictions. The mother further sought permission to change the children's surnames to prevent the father from locating them.

Theis J reminded herself of the relevant key considerations in determining such draconian applications:

'In considering the applications before the court the court's paramount consideration is the welfare of each of the children, having regard to the welfare checklist in section 1 (3) Children Act 1989. I am acutely conscious of the importance for children, when their parents separate, of remaining in contact with the non-resident parent, but this has to be subject to the welfare needs of each child and the facts of each case. I also recognise the draconian nature of the order being sought by the mother. The court should be very slow to make such an order, unless the welfare of each of the children demands it. The Article 8 rights of the parents and the children are clearly engaged in this case. They can only be interfered with if it is proportionate to do so, on the facts of the particular case.'

The judge found that the three older children had suffered harm from previous episodes of violence in the home and that there was a risk of future harm to all the children. The mother had a genuinely held fear as to what the father might do, and this would have an adverse impact on the children's emotional stability should there be any direct or indirect contact. Accordingly, the judge ordered that there be no direct or indirect contact save letter box contact twice per annum to be held by Cafcass and accessed by the mother in accordance with the children's best interests.

The court also granted the mother's application for a change of the children's surname in light of the father's expressed intentions to find out where the children and mother live. In applying the welfare test for each child, and whilst acknowledging the importance of the children's identity, the court considered it in the children's welfare to secure their safety.

The father also made an application for a risk assessment by a consultant psychiatrist, which was refused with reference to r. 25.1 Family Proceedings Rules 2010, the court finding that such expert evidence was not 'reasonably required to resolve the proceedings.' (this being the applicable rule when the case was heard, since amended to evidence 'necessary to assist the court to resolve the proceedings'). The judge had found there to be little evidence of any real change by the father, the court having the benefit and assessment of the Children's Guardian for assistance.

Termination of and making parental responsibility orders
Baker J's decision in the case of CW v SG [2013] EWHC 854 (Fam) and the Court of Appeal's judgment in W (Children) [2013] EWCA Civ 335 provide practitioners with a helpful review of the principles governing applications to terminate and make parental responsibility orders.
CW v SG concerned an application by a mother for an order terminating the father's parental responsibility in respect of D, a boy aged 6 ½ years old and a second application was by the father for a specific issues order requiring the mother to supply him with school reports.

The relationship between the parents was a turbulent one. The father has been convicted for sexually abusing the mother's other two children: A and C aged 10 and 9 years old. The father expressed a wish to have contact with D, which prompted the mother to make an application for an order terminating the father's parental responsibility.

The matter was transferred to the High Court because the application appeared to raise a potential new point of law; the eighteen year old decision of Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 being the only reported case concerning an application for the termination of parental responsibility, and the father seeking to distinguish this case from that decision on the basis that it was no longer good law, it being argued that it was incompatible with the Human Rights Act 1998 and the Adoption Act 2002. In Re P, Singer J provided the following guidance:

"I start from the proposition that parental responsibility – both wanting to have it and its exercise – is a laudable desire which is to be encouraged rather than rebuffed. So that I think one can postulate as a first principle that parental responsibility once obtained should not be terminated in the case of a non-marital father on less than solid ground, with a presumption for continuance rather than for termination.

The ability of a mother to make such an application therefore should not be allowed to become a weapon in the hands of the dissatisfied mother of the non-marital child: it should be used by the court as an appropriate step in the regulation of the child's life where the circumstances really do warrant and not otherwise.

I have been referred in outline to four authorities as to the circumstances in which a court will make an order for parental responsibility [here the learned judge identified the well-known authorities dealing with such applications]….

Such applications for parental responsibility orders are governed by the considerations set out in section 1(1) of the Children Act, namely that the child's welfare is the court's paramount consideration. I can see no reason why that principle should be departed from in considering the termination of a parental responsibility order or agreement.

Key concepts to the consideration of the making of an order are evidence of attachment and a degree of commitment, the presumption being that other things being equal a parental responsibility order should be made rather than withheld in an appropriate case."

Applying those principles to the facts of that case, Singer J concluded (at page 1053):

"I have to say, notwithstanding the desirability of fostering good relations between parents and children in the interests of children, I find it difficult to imagine why a court should make a parental responsibility order if none already existed in this case. I think the continuation of a parental responsibility agreement in favour of the father in this case has considerable potential ramifications for future adversity to this child. I believe it would be a message to others that he has not forfeited responsibility, which to my mind it would be reasonable to regard him as having done. I believe that it might be deeply undermining to the mother and her confidence in the stability of the world surrounding (the child)."

Later, he added (on page 1054):

"I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4…bringing to an end the parental responsibility agreement entered into…."

Baker J found Re P to provide invaluable guidance and remained good law, and that such applications are to be determined by the paramountcy test that Singer J referred to.

In applying the welfare checklist, Baker J found that D had suffered harm as a result of the turbulence and disruption endured by the family during the mother's relationship with the father and the criminal trial. Moreover, D expressed a clear wish to have no involvement with his father. The court further took into consideration the mother's capacity to meet D's needs. It found that if the father were to retain parental responsibility, the mother would be placed under a very great strain and, all things considered, would find it 'well-nigh impossible to send a regular report to the father concerning D's progress'. Moreover, if the father were to make an application for parental responsibility now it would be inconceivable that it would be granted. All these factors pointed the court to terminating the father's parental responsibility under s. 4(2A) and dismissing his application for a specific issue order.

The judge did not accede to the mother's application to make a s. 91(14) order, reminding himself that such orders should only be made with great care and sparingly, and the issue had not been fully argued having only arisen during the course of the hearing.

There is currently no appellate court guidance on terminating parental responsibility.

W (Children) [2013] EWCA Civ 335 concerned an appeal by a father against an order for direct contact and parental responsibility in respect of R aged 6 years old.

The magistrates had dismissed the father's application on the basis of a Cafcass recommendation which reflected the fear held by the mother of the impact of contact on R, which would be such as to cause harm or risk of harm and it was simply a risk that could not be contemplated. Pertinently, the magistrates were satisfied that if the father were to exercise his inherent powers of parental responsibility this would significantly and adversely affect R's future stability and well-being. The father had had no active direct relationship or fact to face contact with R since the very early months of his life.

The father appealed this order and the matter came before HHJ Vincent who upheld the magistrates' decision, and added that the central reason the magistrates could have relied on was that the father did not have an existing, or sufficient, relationship with R.

The Court of Appeal did not allow the appeal in respect of contact, that being a matter of the finding of fact by the magistrates, but did allow the appeal in respect of parental responsibility finding the magistrates to have fallen into error by firstly not having a recommendation before them from Cafcass for the refusal of the application. Secondly, the magistrates did not consider the leading authority in respect of parental responsibility (it not being put before them) Re C & V [1998] 1 FLR 392. Thorpe LJ quoted the key passage of Ward LJ's judgment from that case:

"These are wholly separate applications and it should be understood by now that a parental responsibility order is one designed not to do more than confer on the natural father the status of fatherhood which a father would have when married to the mother.  There is also a sad failure fully to appreciate, when looking at the best interests of the child (which are paramount in this application, as elsewhere) that a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it."

Thorpe LJ reached the conclusion that the magistrates had not considered the dicta of Ward LJ and had misdirected themselves in law.

McFarlane LJ added that in circumstances where contact was not to be ordered the issue of parental responsibility should be given greater prominence. McFarlance LJ referred to his recent decision of Re W (Direct Contact) [2013] 1 FLR 494 at [76]:

"Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent."

And then 78:

"Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard."

McFarlane LJ continued to emphasize in this case the importance of each parent exercising their responsibility for the child in an appropriate way and to promote both parent's role in the child's life [16]:

'This case before us is one riven with very substantial difficulties.  Both parents, as my Lord, Lord Justice Thorpe observed during submissions, are human beings, each with benefits and detriments, capacities and incapacities to bring to the task of establishing a healthy relationship between their son and each of his two parents.  The stand-off in the case is not one readily capable of resolution as a legal dispute with lawyers and judges in a courtroom.  It is a problem of human relationships, and in the end it only will be resolved or ameliorated by a change in the key human relationship between the parents, assisted one hopes by the wider family.  The granting of equal status, namely that of parental responsibility to this father, is not simply a matter of ticking a box; it is to do with status.  He now has the status of a father with parental responsibility but the word, I would stress to both him and the mother, is not the word "rights" which they will read into the lines of that phrase, but the word "responsibility", which is plainly written on the label.  They each have a responsibility now to look to each other, to look to their child, to see whether there are ways, despite the stand-off, despite the court order, in which this boy can be brought up to have the favourable positive image of the absent parent to which Ward LJ refers.  It will not be easy.  It will take both of them to understand and empathise with each other and to begin to meet each other even a quarter of the way will be a step in the right direction.  One hopes the wider family will assist them.'