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Children: Private Law Update (January 2015)

Alex Verdan QC, of 4 Paper Buildings, reviews recent important judgments in private law children cases.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC,4 Paper Buildings

In this update I will consider the following areas: 

HMCTS funding legal representation
Following the President's decision in Q v Q [2014] EWFC 7 it seemed inevitable that the court was likely to make orders against HMCTS to pay for legal representation in appropriate circumstances.

In Re K and H (children – unrepresented father, cross examination of child) [2015] EWFC 1, HHJ Bellamy, sitting as a deputy High Court Judge, was considering circumstances where the two subject children's older half sibling had made very serious allegations of sexual abuse against the father who sought contact with his children, and he had no recourse to representation. The matter was listed for fact finding, with the half sibling giving evidence on the allegations. The father's circumstances meant that he fell outside of the legal aid provisions, and he said he could not afford private representation.

The judge granted the Lord Chancellor's office leave to intervene, and considered whether the court should order HMCTS to pay for the father's legal representation in order to circumvent the issue of the father potentially cross-examining his alleged victim.

The judge, in considering all possible options to avoid ordering HMCTS to pay, weighed up whether appointing a Guardian to cross-examine on behalf of the children would remedy the issue. However, the court decided that it did not follow that it would be appropriate for the guardian to cross-examine on behalf of the father. The court also considered whether the judge could cross-examine on the father's behalf. The judge decided that it would be wholly inappropriate for him to do so.

In deciding that the only solution was for HMCTs to pay for the father's representation, the court provided the following guidance to be applied in such instances:

a) It is the first duty of judges sitting in the Family Court to ensure that proceedings are conducted fairly (FPR 2010 rule 1.1). Failure to do so may lead to the court itself acting unlawfully (s.6(1) of the Human Rights Act 1998)

(b) Where a party is unrepresented (whether because legal aid is not available or by choice) and is 'unable to examine or cross-examine a witness effectively', the court has a duty to assist that party (s.31G(6) of the Matrimonial and Family Proceedings Act 1984). This requires the court 'to put, or cause to be put' questions to a witness.

(c) The court will itself put questions to a witness if it is satisfied that it is 'necessary and appropriate' to do so. It will not normally be appropriate to do so when the case involves issues which are grave and/or forensically complex.

(d) Where the court is satisfied that it is not 'appropriate' for the judge to put questions to an alleged victim, the court must arrange for (cause) a legal representative to be appointed to put those questions.

(e) The court may direct that the costs of the legal representative be borne by HMCTS.

(f) The court may nominate the legal representative who is to be appointed to undertake that task.

(g) The extent of the work to be undertaken by a legal representative so appointed should be made clear at the outset and should be proportionate.

(h) In those limited cases where legal aid is still available in private law Children Act proceedings there is a detailed regulatory framework governing the calculation of costs payable to (claimable by) a solicitor for undertaking such work. The fees payable by the Legal Aid Agency are less than a solicitor might charge a privately paying client for doing the same work. That has always been so. I can see no cogent argument for suggesting that a legal representative appointed by the court should be entitled to a higher rate of remuneration than if that work were undertaken under the legal aid scheme.
It seems likely, now that the ice has been broken that subsequent orders against HMCTS to pay for legal representation will be forthcoming.

Leave to remove
In NJ v OV [2014] EWHC 4130 (Fam) Mostyn J was considering whether to grant permission to a Swedish mother to remove a 5 year old permanently to Sweden where the child had lived in London for her whole life. In deciding the application Mostyn J reviewed the authorities, and reemphasised the principles to be applied from his previous decision in TC v JC (children: relocation) [2013 EWHC 292 (Fam) as follows:

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 than 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.

In granting the mother permission to relocate, Mostyn J was quick to rebut the suggestion that the current law is muddied and in need of urgent clarity by the Supreme Court, by saying that since the decisions of the Court of Appeal in Re K (Children) [2011] EWCA Civ 793 and F (A Child) [2012] EWCA Civ 1364, 'the law is now clear and stable'.

The courts have also recently revisited the principles to be applied in removing children from the jurisdiction on an interim basis. In C v K [2014] EWHC 4125 (Fam) Cobb J was tasked with deciding whether a mother should be granted permission to remove two children aged 5 and 3 to Algeria, a non-hague country.

Cobb J reiterated the principles set out in Re A [2014] 1 FLR 643 (sub nom Re R (A Child) [2013] EWCA Civ 1115) that the court should consider in such circumstances:

(i) Whether the travel was in the best interests of the child;

(ii) The court must be satisfied that the advantages outweigh the risks to the child's welfare;

(iii) Any safeguards to minimise the risk of retention must be capable of having a real and tangible effect in the jurisdiction they are to operate and be capable of being easily accessed by the UK-based parent;

(iv) In most cases there is need for the effectiveness of any suggested safeguard to be established by a competent expert; and

(v) If in doubt the court should err on the side of caution and refuse to make the order.

Cobb J also referred to paragraph 19 of Thorpe LJ's decision in Re K (Removal from the Jurisdiction: Practice) [1999] 1 FLR 1084 that it is necessary for the court to consider, and keep in focus at all times the following:

(i) the magnitude of the risk of breach of the order if permission is granted;

(ii)  the magnitude of the consequences of a breach; and

(iii) the level of security that may be achieved by building into the arrangements all of the available safeguards.

In considering the expert evidence, and the lack of safeguards available to the father the judge declined the mother's application to take the children to Algeria.

Blood transfusion and Jehovah's Witnesses
In A NHS Trust v Child B and Others [2014] EWHC 3486 (Fam) Moylan J had to decide upon an emergency application made by a hospital in respect of a very young child whose parents were Jehovah witnesses,  as to whether the child should have a blood transfusion following a burns accident.

Moylan J, in deciding that the child was to receive a blood transfusion, reaffirmed the principles established in Re A (children)(conjoined twins: surgical separation) [2001] Fam 147 that such decision must be determined by an assessment of what is in the child's best interests, and whilst 'the court must give 'very great respect' to the parents' wishes, they are subordinate to welfare.'

The use of oral evidence from parents in private law disputes at an interlocutory stage
In Re D (A Child: Private Law Proceedings) [2014] EWHC 2749 (Fam) Pauffley J was dealing with entrenched private law proceedings concerning a 10 year old girl who had been the subject of litigation for over 4 years. The difficulties were born out of an ongoing dispute between the mother and her female partner, and the father, and were such that the local authority issued proceedings and sought a supervision order.

The court found, on hearing evidence from the parties that the parents had exposed the child to their adult conflict and acrimony, and the child had suffered significant emotional harm as a result. Much of what was in dispute, in respect of the progression of the father's contact with the child at the beginning of the hearing, was agreed by the end.

Pauffley J helpfully provided the following guidance to be applied in such private law cases:

"53….this case exemplifies how important, even crucial, it is for the court to hear evidence in those private law disputes which show signs of being impervious to very early compromise. The process of describing the difficulties of itself, for those most intimately involved, can be immensely cathartic.

54. The court can only make informed child arrangements orders when there is a full understanding of why relationships between parents have faltered. Trying to impose what may seem like common sense proposals, against the wishes of one parent and without permitting each of them the opportunity for a proper hearing may impede rather than expedite progress. A sticking plaster over a gaping and infected wound would never be an adequate treatment plan.

55. Where, as here, ill feeling and mistrust have persisted for years the parents may come to believe – with some justification – that their litigation problems will never end. Almost always, the impact upon their child / children will be profoundly damaging. Ensuring early and appropriately child centred finality must be a priority in every private law case."

The approach taken promotes the use of oral evidence from the parents at an early stage in proceedings in order to grapple with the cause of the parties' disputes to reach a speedy resolution. However, it remains to be seen whether the courts will begin to hear evidence in such cases at an interlocutory stage.