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Children: Private Law Update (December 2013)

Alex Verdan QC of 4 Paper Buildings considers a wide range of children private law issues which have recently come before the courts.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

In this article I will consider recent decisions relating to the following areas of private law:

Jewish schooling

[2013] EW Misc 21 (CC)
This case concerned the father's application for a specific issue order in respect of the choice of secondary school for the parties' four younger children aged 4, 6, 9 & 11. The family was from the Hasidic Jewish community.

In 2012 the Court of Appeal in Re G [2012] EWCA Civ 1233 refused the father's application to appeal a shared residence order and order that the parties' eldest child attend the school proposed by their mother. The court held that the mother's choice of schooling would best serve the child's interests.

The mother wished for the younger children to go to the same school which she considered to be more liberal than the father's choice and was co-educational. The father disagreed and sought for the children to go to an orthodox school. It was accepted that there was little educational difference between the proposals.

The father sought for any decision to be delayed until a welfare report had been obtained as to the children's wishes and feelings, arguing that different considerations were to be applied to the younger children.

The judge decided that a delay in obtaining a report carried a risk of damaging the choices available in schools for the children, and even if it did not, a report was filed last year upon which a decision had been made and a further report was not necessary. The court found that it was in the best interests of the children to go to their mother's choice of school and made a decision in respect of all the children.

Procedural formalities on without notice applications

C (A Child) & Anor v HK [2013] EWCA Civ 1412
This was an appeal by the father against an order prohibiting him from removing his son, aged 5 years, from the mother or from his school.
The mother made a without notice application for a prohibited steps order preventing the father from removing the child from her care and control or from the child's nursery. This followed concern that the father might abduct the child. The judge heard oral evidence from the mother and duly made an order.

The matter was subsequently listed for a First Hearing Dispute Resolution Appointment and a number of directions appointments, which provided, inter alia, for a section 7 report to be filed. The father was subsequently arrested for going to the child's nursery.

The Cafcass officer, being mindful that she would not be able to comply with the court timetable because of the intervening event, emailed the court, without notice to the father, to inform it that the father had withdrawn his application for contact; although he may have threatened to do so, he had not in fact done so. The Cafcass officer was also a complainant in the criminal proceedings against the father but continued to be involved in the case.

The report filed by the officer detailed allegations of fact previously unknown to the court in terms which read as if the allegations had been found.

The matter was listed for a contested hearing and the court ordered that the injunctive relief remain. The father was to have indirect contact.

The father's appeal was allowed on the basis of significant procedural errors made by the court below. In his judgment Ryder LJ provided helpful guidance on the formalities to be complied with in regard to without notice applications and the principles set out in the private law programme:

(i) Evidence adduced orally at a without notice hearing must be recorded on the face of the order, transcribed or contained in a witness statement and served on the respondent: r18.10(2) FPR 2010.

(ii) No reason was given as to why the father was constrained to have 24 hours to vary or set aside the order.

(iii) There is a need for 'exceptional urgency' to justify the making of a without notice order.

(iv) The pre-application protocol for mediation information and assessment (PD3A) was not complied with. This is not optional.

(v) The Cafcass officer was a complainant in criminal proceedings against the father. It was wholly inappropriate for her to remain involved in the case.

(vi) The Cafcass officer's report contained allegations of fact by the mother against the father which had not been established. However, these were recorded as if true. The report should have emphasised that this was not so.

(vii) At the contested hearing the Cafcass officer gave evidence behind a screen. There should have been an on notice application made to the parties as to the necessity for this.

The appeal was allowed, the contact order set aside and directions made for a rehearing before another judge.

Change of name

Re W (Children)
[2013] EWCA Civ 1488
This was an appeal by a mother from an order that D, aged 2, have his name changed to include his father's forename as a middle name.

The appeal was allowed on the basis that the first instance court had failed to apply the principles in Dawson v Wearmouth [1992] 2 AC 308 and subsequently Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930:

"(9) The present position, in summary, would appear to be as follows:

(a) If parents are married, they both have the power and the duty to register their child's names.

(b) If they are not married the mother has the sole duty and power to do so.

(c) After registration of the child's names, the grant of a residence order obliges any person wishing to change the surname to obtain the leave of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the s1(3) criteria.

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father.  Registration is always a relevant and an important consideration but it is not in itself decisive.  The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child's name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father's surname if the child was so registered.

(l) Where the child's parents were not married to each other, the mother has control over registration.  Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the existence or absence of parental responsibility are all relevant factors to take into account.

(10) I cannot stress too strongly that these are only guidelines which do not purport to be exhaustive.  Each case has to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing."

The judge had failed to apply the correct test. This was to consider what added benefit could be brought by the change of name rather than to apply strictly the welfare checklist.

The case was remitted for a rehearing.

Termination of parental responsibility

A v D (Parental Responsibility)
[2013] EWHC 2963 (Fam)
This case concerned the mother's application for a residence order in respect of A, a boy aged 4 years, an order granting her permission to change the child's forename and surname and an order terminating the father's parental responsibility.

The father had a history of extensive violence against the mother, which A had witnessed.

The father did not attend the hearing and was serving a term of imprisonment for GBH against the mother.

The test in respect of a change of name was confirmed as that set out in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930. The judge found that in this instance a change of name would reduce the chance of the father ascertaining the child's whereabouts; although the 'biographical integrity' of the child should be respected where possible. Accordingly, the judge made an order.

In respect of the termination of parental responsibility Wood J identified the two relevant authorities: Re P (terminating parental responsibility) [1995] 3 FCR 753 and CW v SG [2013] EWHC 854 (Fam) and crucially at [59] of that judgment:

'As in Re P, I find that if the father did not have parental responsibility it is inconceivable it would now be granted to him, and that this is factor I should take into account when considering the application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make up parental responsibility which this father could, in present or foreseeable circumstances, exercise in a way which would be beneficial for D.'

Wood J found that to leave the father as a joint holder of parental responsibility would leave the mother in an intolerable situation and might lead to instability. Furthermore, the father had failed to express any interest in A. Accordingly, to prevent any further insecurity to the child's placement the judge terminated the father's parental responsibility.

In respect of the making of a residence order, given there was nowhere else for A to live and applying the no order principle, there did not appear to be a necessity for an order. However, the court did make an order for the following reasons: (i) it would recognise the reality of the past, present and future care arrangements; and (ii) it would give the mother a sense of security as to the court's approval of arrangements.

Application for a child to receive the MMR vaccination

F v F [2013] EWHC 2683 (Fam)
The parents had previously agreed that their daughter, now aged 15, should not receive the MMR booster and their second child, aged 11, should not be immunised at all.

The parties subsequently separated and the father sought the mother's agreement for both children to be immunised. The mother did not agree.
A Cafcass report was filed which stated that the children did not want to be vaccinated because they were concerned about the possible side effects.

The court considered the case of Re C (welfare of children: immunisation) [2003] 2 FLR 1095, which confirmed that the paramount consideration was the child's welfare but that each case was fact specific and the benefits and risks of vaccination would need to be considered.

Theis J made a declaration that it was in the children's best interest to receive the vaccination for the following reasons:

(i) The children's wishes and feelings had been influenced by their mother's views. The children should not be treated differently in this instance as both children lacked the ability to consider the advantages and disadvantages of the vaccination. Their wishes and feelings were not determinative and the benefit of the vaccination on their health outweighed their wishes.

(ii) The medical advice was for the children to be vaccinated, although there were potential side effects.

(iii) The children had a secure and strong relationship with both parents which would ensure that the consequence of the decision would be managed properly.

Domestic violence and contact

Re M (Children)
EWCA Civ 1147
This was an appeal against an order refusing the father contact with his three sons, aged 7, 5 and 3.

The circumstances of this case were that the father had inflicted significant violence on the mother, which was witnessed by two of the children. The father also had convictions for assault. The father had not seen the boys for 18 months and had attended a number of courses aimed at intervention.
The judge was left in 'no doubt whatsoever of the mother's terror of the father' and had found that the father was 'minimising his behaviour, attributing blame to the victim of his violence ….. He failed to satisfy me that he had learned anything from his engagement with the assessments and therapy save what he needed to say in order to attain his goal.'

The Court of Appeal found that the judge's assessment of the parent's character was unassailable on appeal; however, the draconian nature of the order was not.

In applying Re L (Contact: Domestic Violence) [2000] 2 FLR 334, the court said that domestic violence was not a bar to direct contact but must be assessed in the circumstances as a whole. Moreover, the court must address the parents' and child's article 8 rights.

The judge had diverted her focus from consideration of supervised contact. She had been adversely influenced against direct contact by reason of her perception that the father would press for unsupervised contact. The judge fell into error by failing to address adequately 'why the children's safety and the management of the mother's anxieties could not be achieved under any circumstances of supervision.'

Macur LJ held:

"24. However, there is no question but that an order that there should be no contact between a child and his non residential parent is draconian. In this case, the order dated 17 May 2013 can only be lawful within the meaning of Art 8(2) of the Convention if the order for no direct contact is necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm. In order to reach that conclusion the court must consider and discard all reasonable and available avenues which may otherwise promote the boys rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father."

The appeal was allowed, the order set aside and matter remitted for rehearing.

Evidence from non-English speaking witnesses

NN v ZZ & Ors
[2013] EWHC 2261 (Fam)
Jackson J provided the following guidance on obtaining evidence from non-English speaking witnesses:

(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness's own language before being translated into English.  This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that: 

Where the affidavit/statement is in a foreign language –
(a) the party wishing to rely on it must –

(i) have it translated; and

(ii) must file the foreign language affidavit/statement with the court; and

(b) the translator must sign the translation to certify that it is accurate.

(2) There must be clarity about the process by which a statement has been created.  In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness's own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence. 

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign.  If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter.  However, this must be made clear either within the body of the statement or in a separate affidavit.

6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator's jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness's own language and the English translation should be provided to them well in advance of the hearing. 

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country's laws, a certified translation of that statement must be filed together with the original document.   

Guidance on the court's approach to high conflict cases

Re A (A Child) [2013] EWCA Civ 1104
This case concerned a girl, M, aged 14 years, who was the subject of a long running high conflict case.

The father sought to appeal the final order made for no direct contact and a s. 91(14) order until October 2013.

Litigation commenced in 2001, and since 2006 there had been 82 court orders, seven judges and more than ten Cafcass officers. During the 12 years of litigation the mother had alleged that the father had sexually abused M. Following a five day fact finding hearing no findings were made on the allegations. The mother's health also deteriorated significantly over this time, having been diagnosed with Crohn's disease. The father had been granted residence for a short period whilst the mother's health was poor. M then returned to her mother, expressing a wish to do so and contact did not take place thereafter.

Dr Weir was instructed to provide a report and concluded that the mother could not be trusted to support contact. He strongly recommended that a transfer of residence should be considered. However, by the time of the hearing some 1 ½ year later, his view had been diluted not least because of the extremely limited contact there had been. In light of the duration of the case the judge considered that M's interest lay in making an order for no contact with s. 91(14) orders in respect of both parents, whilst accepting that the family justice system had failed the child and parties.

The crux of the father's appeal was that the decision made was incompatible with his article 8 rights and the rights of the child. In considering Re B (A Child) [2013] UKSC 33 McFarlane LJ clarified that the trial judge's task must be to exercise his discretion in a way which was not incompatible with the Article 8 rights that are engaged. McFarlane LJ held:

"65. Standing back, therefore, and looking at the process from October 2011 as part of the proceedings as a whole, I can only conclude, as I have stated, that collectively the combined interventions of the court over this very extended period have, from a procedural perspective, failed to afford due consideration to the Art 8 rights of M and her father to a timely and effective process in circumstances where there is no overt justification for refusing contact other than the intractable and unjustified hostility of the mother. The failure that I have identified is of such a degree as to amount to an unjustified violation of M's and the father's right to respect for family life under ECHR, Art 8."

It was on this basis that the order was set aside and the father's application for residence / contact would be reheard before a judge of the Family Division.

McFarlane LJ also provided the following guidance on high conflict cases: