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Children: Private Law Update (March 2016)

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: 

Internal Relocation

In Re C (Internal Relocation) [2015] EWCA 1305 the Court of Appeal provided long awaited clarity and guidance as to the law concerning internal relocation cases.

The governing principle in relocation cases, both internal relocation within the UK and external relocation, is the child's welfare, the Court of Appeal held.

There was no rule that moving a child could only be prevented in exceptional cases, and no requirement for a court, having carried out its comprehensive analysis of the welfare considerations, to subject its conclusion to a cross-check by considering whether the consequent interference with the parties' rights under the ECHR Article 8 was proportionate.

The father appealed against an order permitting the mother to move with the child, C aged 10 years old, from London to Cumbria. C had been spending two nights a week and alternate weekends with her father. At the final hearing of the mother's application to move, which the father opposed, the judge considered a CAFCASS report, which concluded that a move was not in the child's best interests, despite the fact that C wanted to move to Cumbria, and was confident that she would be able to maintain a strong relationship with the father if she did so.

The judge accepted that if the mother was forced to stay in London she would feel deeply unhappy, and he found that her feelings were likely to have a serious and very harmful impact on the child. He considered that the relationship between the child and the father was very good and sufficiently well-established to continue essentially as it was, even if the periods of time he was to see her were reduced. He found that the parents' relationship would inevitably deteriorate if the mother was unable to move, and that she would find it much more difficult to make the current arrangements work. The judge attributed some weight to the child's wishes about the move, and did not think that it be would be emotionally damaging to her, but rather, she would be upset if she was not allowed to move.

The judge permitted the move, and made a child arrangements order in respect of the division of the child's time between her parents. It was ordered that C was to live with her father on alternate weekends, alternating between Cumbria and London; if the father was able to travel to Cumbria during the week, she was to be in his care overnight for up to two nights. There was also provision for daily indirect contact, and holidays were divided equally between the parents.

The father appealed the decision on the basis that the trial judge had wrongly applied the law by relying on the Payne considerations, and in treating the mother as the primary carer.

In dismissing the appeal, the Court of Appeal provided the following essential guidance:

Further to the leading judgment of Black LJ, Bodey J provided the following summary:

The proper approach to the whole issue of relocation may be stated in summary as follows:

a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.

b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.

c) In either type of relocation case, external or internal, a judge is likely to find helpful some or all of the considerations referred to in Payne v Payne; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

Section 7 reports and professional standards

In D v E [2016] EWFC 3, MacDonald J was concerned with competing applications in respect of an 11 year old boy for a special guardianship order by his maternal aunt, and a 'live with' order with his father. In determining that it was in the child's best interests to live with his aunt, the court undertook a detailed analysis of the quality of the section 7 reports produced by the LB of Newham, and emphasised the importance of proper training for social workers undertaking such reports.

The mother was in Mozambique and the father in Manchester, and the child had been living with aunt. The child had moderate to severe ADHD, global developmental delay and dyslexia. He needed stable and consistent routines and had 1-to-1 educational intervention four times each week.

The court had directed a section 7 report and two further addendum reports by the LB Newham. By reason of the poor quality of the report the court was unable to attribute any weight to the report and analysis.

The judgment provides an assessment of the misgivings of the report and analysis undertaken:

"35. It transpired in oral evidence that the social worker is newly qualified and has never before authored a section 7 report.  Her current position with Newham is her first.  The social worker told me that her academic studies (a BSc in social work) did not cover the preparation of section 7 reports.  She further made clear that the training afforded to her by Newham in preparation for completing what was to be her first section 7 report, comprised a ninety minute discussion with her supervisor. 

36. Within this context, it became apparent that the social worker appeared to lack even a basic understanding of the nature of the proceedings in which she was being asked to provide a report, she describing these proceedings as being "private care proceedings" on 12 August 2015 when making enquiries of the hospital at which C was born. 

37. Further, it was apparent from the evidence of the social worker (and the late filing of her section 7 report) that there was a substantial delay in the legal department at Newham communicating His Honour Judge Millon's direction for a section 7 report to the social services department.  This delay on the part of the legal department meant that a newly qualified social worker who was already prejudiced by her lack of experience in preparing a section 7 report was further challenged by having limited time in which to prepare what constituted a complex piece of work in respect of a child with complex needs in a complicated family situation spanning two continents.

38. Finally, it is important, and indeed concerning, to note that each of the social worker's reports were signed off by her supervising Practice Manager as meeting the standards required by the court following a discussion between them.  In the circumstances, the mistaken view of the social worker that she was doing that which was required of her was further amplified and reinforced by her supervising Practice Manager.  This, perhaps and in part, explains the social worker's repeated failures to comply with the express directions of the court.

39. Having listened to the evidence of the social worker I was left with the clear impression that her academic social work qualification and such training, administrative support and supervision as was provided to her by her employer left this newly qualified professional poorly equipped to undertake a competent report pursuant to section 7 of the Children Act 1989 in what is a complex and demanding private law case.  Such criticisms of the social worker's work as I feel compelled to make in this judgment must be seen in this context."

The judgment provides a helpful reminder to practitioners and local authorities as to complying with the professional standards required in undertaking such statutory reports, and that such failings are likely to result in costs consequences, but for the court, in this instance, being able to rely on the special guardianship report.

Funding the cost of independent social workers

In Re D (Children) [2016] EWCA Civ 89 the Court of Appeal determined that the court does not have jurisdiction to order one party to pay the costs an independent social worker in private law proceedings in the context of supervising contact between parent and child.

The Court directed that an independent social worker supervise contact between the child and father and provide contact reports. Arrangements broke down and the father refused to pay for the ISW's costs. The court ordered that the father was to pay, and if he failed to do so the mother was not obliged to make the child available for contact. The father appealed arguing that the court had exceeded its jurisdiction, and the ISW was not an expert within these proceedings, and the contractual obligations were only enforceable in the county court. The mother argued that the court did have power ancillary to s. 11(7) Children Act 1989.

The Court of Appeal held that the ISW was not in this instance a court appointed expert for the purposes of Part 25 Family Procedure Rules 2010. Although s. 11(7) enables the court to specify conditions of contact, it was so held that it did not give the court jurisdiction to determine a dispute on payment where one party refused to pay a non-party.

Refusal of direct contact – exploring all the available options

In Re K (Children) [2016] EWCA Civ 99 the Court of Appeal was concerned with an appeal against a final child arrangements order for children, aged 5 and 6, to live with their mother and have indirect contact with their father.

The court had heard a fact finding hearing on the mother's allegations of violence against the father. The recorder hearing the matter had found that the father had been controlling and exhibited aggressive confrontational behaviour, but had not made a finding of routine violence as sought by the mother.

The children had been joined as parties to proceedings and a Guardian appointed. The Guardian having not spoken with the father, accepted the mother's view that the father had failed to maintain regular indirect contact with the children, and the father was currently 'an unassessed risk in terms of direct contact', and that until the father 'addresses this issue the risks are too high for direct contact to be initiated.'

The court made an order for indirect contact, noting that direct contact may be the right course in the future.

The father appealed, having been in person at the final hearing, on the basis that the court had failed to explore all the options available to restore contact.
The Court of Appeal allowed the appeal and remitted the matter to the Designated Family Judge in Exeter for further case management. The Court referred to the guidance set out in PD 12J child arrangements and contact orders: Domestic Violence and Harm, which was not followed, and to the President's decision in Q v Q [2015] EWCA Civ 991, as follows: 

The court found that the recorder had failed to grapple with all the available alternatives before abandoning hope of achieving direct contact.

Legal aid funding in private law cases

In R (on the application of Rights of Women) v Lord Chancellor [2016] EWCA Civ 91, the Court of Appeal was dealing with the appellant charity's, Rights of Women's appeal against a decision refusing its application for judicial review of the Civil Legal Aid (Procedure) Regulations 2012, Regulation 33.

Regulation 33 specified the supporting evidence which had to be provided by a legal aid applicant who claimed to be the victim of domestic violence. With certain exceptions, it provided that legal aid would not be available unless documentary proof of domestic violence was provided within a period of 24 months before the legal aid application was made.

The charity argued that regulation 33 exceeded the powers, conferred on the Lord Chancellor, to make regulations by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Or alternatively, it breached the principles in Padfield v Minister of Agriculture, Fisheries and Food [1968] A.C. 997, because it frustrated the purpose of the Act.

The Court of Appeal in allowing the appeal held that the rule operated in a completely arbitrary manner and there was no safety valve which enabled the victims of domestic violence to explain why they were unable to obtain verification of that violence less than 24 months before proceedings began. For those reasons, Regulation 33 frustrated the purposes of the Act and was invalid insofar as it imposed a requirement that the verification of the domestic violence had to be dated within a period of 24 months before the application, and insofar as it made no provision for victims of financial abuse.