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Children: Private Law update (August 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 article I will consider recent decisions relating to the following areas of private law:

- Transfer of residence

- Declarations under s 55A of the Family Law Act 1996

- Costs in private law proceedings

- Cost orders against a local authority within private law proceedings

- Permanent leave to remove from the jurisdiction

Transfer of residence
In TB v DB [2013] EWHC 2275 (Fam) the court was concerned with an application to discharge a shared residence order and make a sole residence order to the father, which was supported by the child's guardian.

The court had found against the mother in relation to her allegations that the father had failed to protect the parties' five year old son from sexual abuse by the paternal uncle, and further that the mother had made false allegations that the father had a drinking problem, which it was found had been made to thwart contact between the child and father.

Keehan J, in considering the authorities in respect of a transfer of residence and it being the judicial weapon of last resort, accepted that if the shared residence order could work, its continuation would be in the child's best interests. However, in light of the severity of the findings and in the absence of assurances from the mother that she would not seek to disrupt the shared care arrangement, any risk posed to the child through disruption in a change of care were outweighed by the risk of further emotional and psychological harm if the status quo were maintained.

Declarations under s 55A of the Family Law Act 1996
In M v F and H [2013] EWHC 1901 (Fam) the court was dealing with the legal parentage of two year old child. The child was conceived after his mother met his biological father on an internet website where he advertised his services as an unpaid sperm donor.

The issue for the court was whether the child was conceived as a result of artificial insemination as the father said or sexual intercourse as the mother asserted. If by sexual intercourse the father would be the legal parent, but if not the Human Fertilisation and Embryology Act 2008 would be in play.

The mother's application was for a declaration pursuant to s. 55A of the Family Law Act 1986 that the father was the legal parent, and for financial provision under schedule 1 of the Children Act 1989.

The court found that the child had been conceived by sexual intercourse, and accordingly the Registrar General of the Declaration of Parentage was notified, and the birth re-registered pursuant to the Births and Deaths Registration Act 1953, s 14A. However, by reason of s.14A not being one of the enactments specified in Children Act 1989, s. 4(1A) this did not confer parental responsibility on the father.

The Father also sought a prohibited steps order preventing the disclosure of any evidence adduced within the proceedings. Family Procedure Rules 2010 r.12.73 & 12.75 protect information arising from the proceedings, either by way of written or oral evidence, or by description of what occurred in court, but at the same time permit disclosure of information relating to the proceedings in defined circumstances, which do not include communication to the public at large.

Mr Justice Jackson made it clear that:

'In the absence of a specific order, there is nothing to prevent anyone talking privately or publicly about matters that do not originate from within the proceedings: the mere fact that information arising independent of the proceedings is then referred to within the proceedings does not mean that it cannot continue to be spoken of.'

In balancing the Article 8 and 10 rights of the parties the court decided that it would be inappropriate to make such an order, it not having any real effect on the welfare of the child or any other children.

Costs in private law proceedings
There was also an application for costs made by the mother against the father following the fact finding.

Jackson J provides a helpful review of the authorities on costs in Children Act proceedings, and in particular refers to the cases of Re T (costs: care proceedings: serious allegations not proved) [2012] UKSC 36
and Re J (costs of fact finding hearing) [2009] EWCA Civ 1350  and the dicta of Wilson LJ:

In Re J (Children) [2009] EWCA Civ 1350 involved contact proceedings between a mother and father. The district judge held a fact finding hearing to resolve allegations of violence made by the mother and denied by the father. Most of the mother's allegations were held to be established and she sought the costs of the hearing. The district judge refused her application and made no order as to costs. The mother appealed to the county court. She invited the judge to draw a distinction between the fact finding hearing and that part of the hearing that related to the welfare of the children. The judge declined to do so. He held that the father had not acted unreasonably in giving evidence in opposition to the mother and dismissed her appeal. 

On appeal to the Court of Appeal, Wilson LJ, giving the only reasoned judgment, held that the circuit judge had been wrong not to adopt a "compartmentalised" approach. He held at para 17:

"…..The order for a bespoke fact-finding hearing was surely to consign the determination of the mother's allegations into a separate compartment of the court's determination of the father's application for an order for contact. It went almost without saying, although the circuit judge chose to say it, that the optimum outcome of the contact application could be determined only by reference to the findings made at the fact-finding hearing; but the effect of the direction for a separate fact-finding hearing was that the costs incurred by the mother in relation to that hearing can confidently be seen to be wholly referable to her allegations against the father. There was, in that sense, a ring fence around that hearing and thus around the costs referable to it. Those costs did not relate to the paradigm situation to which the general proposition in favour of no order as to costs applies."

Wilson LJ went on to hold that the husband had not acted irrationally and that a proper exercise of the court's discretion did not depend upon why he chose to deny allegations that he must have known were true. He remarked that issues of fact arose in most disputed cases in relation to children and that his decision in the instant case should not be taken as an indication that it was appropriate to make an order for costs in the vast run of such cases. He held, however, that the mother's case fell into "a separate and unusual category". It was devoted exclusively to consideration of the serious and relevant allegations made by the mother against the father, most of which were established. In these circumstances he held that the proper order was for the father to pay two thirds of the mother's costs of the hearing. 

This decision could have been justified on the ground that the costs in question had been caused by the father's unreasonable refusal to admit the facts that were ultimately proved against him, but Wilson LJ's reasoning appears to have been simply that a party who makes allegations of fact against another party that prove to be unfounded, or who challenges allegations of fact that prove to be well founded, should be liable for the costs of resolving those issues, whether his conduct was reasonable or not.  (my emphasis)

Jackson J clarified that the principle of unreasonableness or reprehensibility can be applied outside of the fact finding arena:

'This principle can be applied in all kinds of proceedings concerning children, regardless of whether the proceedings involve local authorities or private parties, or whether the hearing is a welfare hearing, a fact finding hearing or a mixture. Orders for costs may be made where a party's conduct has been reprehensible or significantly unreasonable but not otherwise.'

The court found that F's conduct was reprehensible and significantly unreasonable, and awarded a full cost order against F from the date the mother was bearing her own costs.

Permanent leave to remove from the jurisdiction
In O (A Child) [2012] EWCA Civ 1955  the father appealed an order permitting the mother to permanently remove their 9 year old daughter from the jurisdiction to the Republic of Ireland.

At first instance the judge granted permission on the basis of the child's welfare and crucially the financial surety the move would provide as the mother was to benefit from a repatriation package with the Allied Irish bank. This was in the face of the child expressing clear wishes to the cafcass officer not to relocate.

Before the final order was perfected there was a dramatic development in that the father who had previously withheld periodical payments offered to make all the outstanding and future payments, which would enable the mother and child to remain in the jurisdiction.

The judge was invited to reopen the matter and reconsider the decision in light of the change in financial circumstances. However, the court still found, notwithstanding the financial viability of remaining in England that the child's best interests were served through relocation with the mother who was to pursue her repatriation package.

The father appealed the decision on the basis of the child's wishes and feelings.

By the time of the appeal it had transpired that the mother no longer intended to work in Ireland but would take early retirement, thereby changing the landscape upon which the court had ordered the relocation.

The father further argued that this was a material omission, which may have changed the outcome, and the mother had not been frank.

The appeal was dismissed on the basis that the fresh evidence of the retirement would not have led the court to a different conclusion, because the mother was freer to be available for the child than under the repatriation scheme, and the mother had sufficient financial security to meet the child's needs.

The Court of Appeal emphasised the importance of focusing on financial security and emotional security for the primary carer in determining such applications.

Costs orders against a local authority
In HB v PB, OB and the London Borough of Croydon [2013] EWHC 1956 (Fam)  the local authority had been directed to file a section 37 Children Act 1989 report in light of the father's allegations that the mother had led him to falsely believe that she and the child had serious health conditions.

It transpired during the final hearing that the author of the section 37 report had failed to  consider the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in Whom Illness is Fabricated or Induced (guidance issued by the Department for Children Schools and Families in 2008, s. 7 of the Local Authority Social Services Act 1970). Pursuant to section 16 of the Children Act 2004 the local authority is required to have regard to such guidance.

Cobb J found that:

'In my judgment the failures in this case are not 'minor'; they are extensive, and have had a profound effect on the conduct of proceedings. The local authority has in my judgment failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father's allegations when it prepared its section 37 report or at any time in the period which followed prior to the hearing.'

In reviewing the limited authorities to make costs orders against non-parties Cobb J decided that pursuant to s. 51 of the Senior Courts Act and FPR 2010 r. 28.1 the court has a wide discretion to make costs orders as it thinks fit, but that such an order would be 'exceptional'. However, it was not necessary to demonstrate improper conduct by the non-party to establish exceptionality.

Accordingly, the court made a costs order against the local authority.