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Children: Private Law Update (April 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: 

Permanent removal from the jurisdiction
In S v G [2015] EWFC 4 Jackson J provided a useful review of the case law concerning leave to remove applications. The court was concerned with the mother's application to return to Russia with D, a 2 year old boy who had spent one year in Russia and the remainder of his life in the UK.

In granting the application, Jackson J reviewed the principal issues in such cases: 

"(1) To scrutinise the proposals of the applicant bearing in mind that in a going home case that may be a less arduous undertaking than if it is an entirely new venture.

(2) To scrutinise the motives of the applicant in making the application and, in particular, considering whether or not a significant motivation is to exclude the other parent from the life of the child.

(3) To scrutinise the motives of the left behind parent who objects, in particular to check that the reasons for objection are truly child-centred and are not simply part of an adult battle about rights.

(4) The court must scrutinise the impact of relocation upon the left behind parent and his or her extended family whilst of course recognising that relocation may bring benefits in terms of widening the network of extended family by including the proposed country of return.

(5) The court should scrutinise the impact on the applicant of the order being refused or on the respondent of the order being granted, but, for the reasons I have given, this impact will be relevant generally only insofar as it impacts on the child."

In Re B (A Child) (Relocation: Sweden) [2015] EWCA Civ 286 The Court of Appeal considered an appeal from the decision of Mostyn J to grant a mother permission to relocate in Sweden with the parties' 5 year old girl. The court heard from the mother's psychologist that a refusal to return to Sweden would result in a substantial decline in the mother's emotional well-being. Notwithstanding the recommendation of Cafcass and the social worker that the move be refused due to concerns about the mother's lifestyle and alcohol use, Mostyn J granted permission. On dismissing the appeal, the Court of Appeal reaffirmed the principles set out in K (Children) [2011] EWCA Civ 793, and made clear that Mostyn J had had the benefit of hearing the oral evidence below, and it could not be said that he had taken the wrong approach.

Children giving evidence
In Re R (Children) [2015] EWCA Civ 167 the Court of Appeal was concerned with an appeal by a 14 year old child following a decision to refuse her application to give evidence in a fact finding hearing dealing with allegations that the father had sexually abused her.

The Court of Appeal reaffirmed the test set out in Re W (Children) [2010] UKSC 12 that the court must consider and weigh up: (i) what the advantages of the child giving evidence will bring to the determination of the truth; and (ii) the damage giving evidence may do to the welfare of this or any other child. In considering (ii) the court should see what measures can be put in place to reduce any pressure on the child. The appeal was allowed and remitted for rehearing.

Domestic violence
In Re V (A Child) [2015] EWCA Civ 274 the Court of Appeal allowed a father's appeal against findings of domestic violence on the basis that the judge below had not properly evaluated the evidence to make the findings. In determining the appeal McFarlane LJ provided a helpful review of the principles to be applied in such cases:

"35. It is necessary therefore to remind oneself of basic principles.  Those are to be found in the well known authority of this court in the case of Re: L, Re: V, Re: M, Re: H [2000] 2 FLR 334.  I am not going to read into my judgment now what is so carefully set out, in particular by Dame Elizabeth Butler Sloss, the then President, in her judgment but I do make one or two observations.  The first is this: that the case was not a narrow case which simply looked at domestic violence and then considered the negative consequences of that upon children; a much more sophisticated evaluation is described in the pages of the judgment and there is a further distinction to be made within that.  The first third of the then President's judgment is spent describing the important advice that the court had from Dr Claire Sturge and Dr Danya Glaser, both consultant child psychiatrists, on the issue of domestic violence and contact.  Even those well seasoned in family law would benefit from going back to this decision now in 2015 and re reading.  There the reader finds a balanced description of the benefits and potential detriments to a child where domestic abuse of some form is alleged.  It does not recommend an automatic provision of a solution but it describes a sophisticated weighing of the checks and balances of the benefits and detriments of contact.

36. The second point to make is this: that the description of the psychiatrists' advice, endorsed though it was in general terms by the President, is not the President's judgment.  That follows from page 341 of the law report under the heading "General Comments", and whilst the President is undoubtedly totally in tune with what the psychiatrists advise, the legal impact of that is what she says after that heading and in particular what she says in relation to the extant case law, including the decision of the then Master of the Rolls Sir Thomas Bingham in the case of Re: O [1995] 2 FLR 124.  The President goes on to describe a process of evaluation that has to be undertaken by the court in accordance with its duty to come eventually to a decision which is in the best interests of the child by applying section 1 of the Children Act 1989.

37. That is Re: L, and although it is 15 years ago that that decision was handed down, it remains the bedrock of the approach to this topic.  But matters move on and practice develops and the current practice is embodied in the Family Procedure Rules 2010, Practice Direction 12J, which in turn builds on predecessors, each of which dealing with the topic "Child Arrangements and Contact Order: Domestic Violence and Harm".  Again, I am certainly not going to read all of that Practice Direction into this judgment but I quote the following:

'5. Domestic violence and abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to violence or abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which violence or abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with violence or abuse, and may also suffer harm indirectly where the violence or abuse impairs the parenting capacity of either or both of their parents.'

Then at paragraph 6 the court is exhorted to evaluate a number of factors at all stages of the proceedings.  Those factors include the following:

'Consider the nature of any allegation, admission or evidence of domestic violence or abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms.'"

Prohibited steps order
Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) [2015] EWFC B16 concerned an appeal by the father, a candidate for UKIP, against the making of a prohibited steps order preventing the father from involving the children in political activities. The case highlights the procedural errors made in making such orders. The father had not been provided with notice of the hearing, and when his position was ascertained it was clear the matter was disputed, but the court did not hear evidence. The wording of the order was ambiguous in respect of its ambit and duration. The appeal court found that the order interfered with the father's article 8 rights. HHJ Wildblood QC, who allowed the appeal, emphasised the need for the terms of such orders to be clear and justified in order to be enforceable. 

Wasted costs orders and non-compliance with orders
In HU v SU [2015] EWFC 18 Keehan J made a wasted costs order against the mother's solicitors for failing to seek the court's permission for an extension of time to comply with directions to file statements and obtain police disclosure. The result was an adjournment of the fact finding hearing and a waste of costs for the father. Keehan J revisited Ridehalgh v Horsefield [1994] Ch 205 and the principles to be applied on making such orders, namely:

"a) Had the legal representative of whom complain was made acted improperly, unreasonably or negligently?

b) If so, did such conduct cause the applicant to incur unnecessary costs?

c)If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?"

Keehan J found that 'the serial failures of the mother's solicitors were elementary. The failure to seek the leave of the court to extend the time for compliance with the directions order is to be characterised as incompetence. Their actions, as set out above, are redolent of past poor practices which should no longer feature in private or public law family proceedings.'