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Children: Private Law Update (June 2014)

Alex Verdan QC of 4 Paper Buildings considers recent judgment in private law children cases.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

In this children private law update I will consider:

Change of residence and interviews with the child

In Re H (Children) [2014] EWCA Civ 733 the Court of Appeal was considering an appeal against a change of residence in respect of three children from the mother to paternal grandmother and father pending the outcome of further assessments.

Parker J had found that the mother had emotionally manipulated the children against the father and encouraged them to make false allegations against him. The social worker and guardian had both opined that the children should remain in the mother's care on the basis of their express wishes and feelings. The judge distinguished these feelings from their ascertainable wishes and feelings which were, on the evidence, that they enjoyed contact with their father.

The mother appealed the decision primarily on the basis that the judge had interviewed the children during the hearing and crucially after they had spent a night with the father.

The Court of Appeal refused permission on the basis that the interview was conducted in accordance with the guidance set out in Judges Meeting Children who are subject to Family Proceedings [2010] 2 FLR 1872, which makes clear that a judicial meeting is not for the purpose of gathering evidence but 'to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her.'

Declaration as to family life between child and former partner of biological parent

In L v C [2014] EWFC 1280 an application was made by a former female partner of the mother of the child for permission to apply for residence and contact orders, and for a declaration that she was the psychological parent pursuant to Article 8 of the ECHR. The child, G, had been conceived by artificial insemination. The parties had agreed to have a child together and their intention was to be equal parents, but the relationship ended when G was 2 ½ months old.

The application for residence and contact was opposed on the basis that the English court did not have jurisdiction by reason of G not being habitually residence in England and Wales, having been lawfully removed to Ireland. The court found it did not have jurisdiction in relation to matters pertaining to parental responsibility.

In respect of a declaration as to being a psychological parent pursuant to article 8, the court did not consider this appropriate: there was no precedent for such application and declarations are normally reserved for matters of fact.
However, the court did consider the situation prior to the child's move to Ireland and whether the mother's partner shared G's family life within the meaning of article 8 at this time. The court was invited to make such declaration and did so finding that it might benefit G as follows:

"First, as an objective contribution to G's future wellbeing, and secondly as a record that may be useful to any other court considering her situation."

In opposing such declaration the mother argued that it would trespass on the Irish jurisdiction.

However, Jackson J found that:

"The international element is undoubtedly a special feature of the case,  but I do not find it provides a reason for declining to make a declaration. The matter arises from events in England. The limited nature of the declaration in question would not trespass on any potential Irish proceedings, and might event assist if there were any."

Appeal by maternal grandmother against order for no direct contact

In H (A Child) [2014] EWCA Civ 271 the Court of Appeal was concerned with an appeal within private law proceedings between the mother and maternal grandmother concerning A, a 9 year girl.

The grandmother had enjoyed frequent contact which then broke down following an allegation made by the grandmother against the mother's partner, and lengthy delay ensued.

The grandmother applied for direct contact, which was duly ordered by Holman J. However, when it came to it, the child refused to attend. The grandmother enforced the contact order, but the court would not order direct contact in light of the child's strong wishes, and made an order for indirect contact which was supported by Cafcass.

The grandmother appealed primarily on the bases that the judge had failed to allow the grandmother to give evidence and that there had not been judicial continuity as directed by Holman J.

The grandmother's submissions, built on the observations of McFarlane LJ in Re A (A Child) [2013] EWCA Civ 1104, were that she as grandmother had de facto a right to family life with her grandchild and permission to make a direct contact application, so that it was arguable that article 8 was engaged. Ryder LJ noted a distinction between this and the earlier case, as Re A concerned two parents rather than a grandmother but said that "the principles are the same."

Whilst refusing the appeal, the Court of Appeal did attribute great weight to the importance of judicial continuity in saying:

"that it was central and made in accordance with paragraph 60 of Re A. his direction should have been complied with by Her Majesty's Court and Tribunals Service who should have obtained the judge's assistance and directions if there was any doubt about how to put the direction into effect. The purpose of the direction goes to the heart of this appeal. It was to achieve a judicially set strategy for the case in accordance with paragraph 60 if Re A."

The Court of Appeal also said it is good practice to swear in or affirm litigants in person before they make submissions so that there is formal evidence on record, and then the judge should explain to the litigant in person that they can ask questions through the judge who will decide whether the questions are appropriate.

Legal representation in private law proceedings

In the very recent case of Q v Q [2014] EWFC 7 the President took the bold step to adjourn private law proceedings concerning a 6 year old boy where the father had convictions for sexual offences with young male children, spoke little English and sought contact, and where the mother sought a s.91(14) order.

The reports filed in the proceedings recommended plainly that the child would not be safe in the father's presence and there should no contact, direct or indirect, certainly until some work had been undertaken. At that juncture the father's legal aid was terminated.

The President said:

"Tempting though it is to think that the father's case is totally lacking in merit, it does seem to me ... and recognising the constraints which may be imposed on cross-examination by the fact that, in part, challenge on behalf of the father would be to his own expert, I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

"Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.  It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters."

Therefore, in a last ditch attempt to secure representation for the father, the President adjourned the case for a short period and invited the Secretary of State for Justice (or, as it might be, the Minister for the Courts and Legal Aid) to intervene in the proceedings to make such submissions as appropriate in relation to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency, but which is necessary to be incurred to ensure proceedings are just and fair, can be met either from the Legal Aid Agency by route of the other party's certificate, in this case the mother's certificate, or directly at the expense of the court.

Duty of care owed by Cafcass to a parent

In F-D v Children and Family Court Advisory Service [2014] EWHC 1619 (QB) the court was dealing with a claim by a father who sought damages from Cafcass for breach of a common law duty to give him appropriate advice and support in respect of private law children proceedings, misfeasance in public office, and breach of his right to family life under article 8.

Section 12(1)(c)(2) of the Criminal Justice and Court Service Act 2000 imposed a general public law duty on Cafcass to ensure children were represented in care proceedings, but did not impose a specific duty either to ensure a specific child was represented or to ensure representation was achieved within a particular timescale.

The father averred that Cafcass had failed to attend a hearing, failed to file reports on time, which he argued would have supported contact with him and his son, and failed to deal with his complaint promptly. As a result he withdrew from the contact proceedings and had not seen his son since 2008 when he enjoyed overnight staying contact.

In dismissing the claim the court found that there was no such duty of care between Cafcass and the father as a the duty would only arise where there was foreseeability of damage, a relationship of proximity and in circumstances where it would be fair, just and reasonable to impose a duty. In this instance it would not be fair, just and reasonable to impose a duty of care.

Moreover, the court clarified that there could be no public duty owed by Cafcass to an individual father of a child in proceedings where Cafcass was involved nor independently of proceedings. It would entirely hamper Cafcass in its primary duty to the child if it owed the parents a duty of care.

It was also appropriate to have regard to the resources available to Cafcass at the time.