IQ Legal TrainingBerkeley Lifford Hall Accountancy Services Alphabiolabs

Home > Articles > 2016 archive

Children: Private Law Update (June 2016)

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


In this update I will consider the following areas:

• Covert recording of children
• A Cafcass officer's duties when preparing welfare reports
• The role of the natural parent on the death of a primary carer
• Enforceability of undertakings
• Costs orders against a non-party
• DNA testing.

Covert recording of children

In M v F [2016] EWFC 29 Jackson J was concerned with a dispute about with which parent the child should live. The father and his partner had made extensive covert recordings, in part secured by sewing recording devices into the child's clothes and also on the father's iphone.

Jackson J at the outset of his judgment says:

"it is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence……this judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way."

The court was asked to rule as to whether evidence should be admitted, the father having produced transcripts of 16 conversations running to over one hundred pages. The father said the purpose of the recordings was to protect his daughter from any abuse she may be suffering.

The court was reminded of its power under FPR 2010 r.22.1 to exclude evidence that would otherwise be admissible. The court permitted the evidence to be admitted on the basis that "the possible relevance of these actions to the child's welfare could be considered in the wider context."

The court found that the evidence increased the length and cost of the hearing and did not produce a single piece of useful information. Rather, the act of recording "further damaged the relationship between child and father…. showed the father's inability to trust professionals…… and created a secret that may well affect [the child's] relationship with her father and step mother when she comes to understand what has happened."

The court ordered the father to pay the proportion of the mother's costs attributable to the time spent on the recordings (£9,240) and made a child arrangements order for the child to live with the mother.

Jackson J concluded his judgment by saying:

"This judgment does not relate to the practice of recording adults covertly for the purposes of family proceedings, or of recording children in other ways.  Experience suggests that such activities normally say more about the recorder than the recorded (as in Re C [2015] EWCA Civ 1096), but there are so many possible circumstances that it is not possible to generalise.  I note that the Cafcass Operating Framework (at 2.27) says that its officers should have nothing to fear from covert recording, but should bring it to the court's attention if they become aware of it, and ensure that it is dealt with methodically.  That is no encouragement to the production of recordings, merely a reflection of situations that sometimes arise. "  

This decision serves as a useful reminder to clients seeking to admit such evidence, and of the risk of adverse findings being made.

Cafcass officer's duties when preparing welfare reports

In Re S (A Child) [2016] EWCA Civ 495, a father appealed against a child arrangements order in favour of the mother in respect of their son, who was nearly four years old. The father submitted that the judge had erred by reaching unsupported conclusions and failing to take account of, or give appropriate weight to, certain factors, including (1) the risk of the mother removing the child from the jurisdiction given that she had previously unlawfully removed him to Malta and retained him there for one year until the father obtained a return order; (2) making unfair or critical findings about the father; (3) the risk presented by the mother's new partner; (4) the absence of adequate checks or assessments of the mother, and  the absence of any reasons for departing from the Cafcass view that there was no evidence to recommend removal of the child from the father.

The Court of Appeal dismissed the appeal and held that the judge had clearly had the risk of abduction in mind because she referred to the case history and to a Maltese court order directing the child's return to the UK. Moreover, that the judge had been entitled to make findings having listed to the evidence for five days.

The father's assertion that there had been inadequate checks and assessments of the mother ignored the fact that Cafcass had undertaken a safeguarding check at the mother's home at his insistence. Based on that check, the judge had found that there was no criticism of the mother's parenting capacity. The court made clear that unless it is expressly required that extensive enquiries are to be made, Cafcass did not have to explore every aspect of a parent or a child's life to investigate matters not in issue in the proceedings (see paragraph 28).

Role of the natural parent

In Re E-R (A Child) [2015] EWCA Civ 405 the court was concerned with E, aged 5 years. E lived with her mother, but following the mother's diagnosis of terminal cancer, E and her mother went to live with H, her friend. H applied for a special guardianship order when the mother's death appeared imminent. The mother had nominated H as the child's guardian in the event of her death. The judge made an interim parental responsibility order in favour of H. But refused the application for a SGO, rather making a child arrangements order for E to live with her father and see H on the basis that there was a 'broad natural parent presumption' favouring a child living with her natural parent.

The court held that the welfare of the child was the paramount consideration. There was no question of a parental right or 'broad natural parent presumption' (Re G (Children)(Residence: Same Sex Partner) [2006] UKHL 43). There is also no principle that the child is to live with a testamentary guardian. The appointment of testamentary guardians does not take effect as long as the other parent is alive and has parental responsibility (CA 1989 s. 5(7) & (8)).

Each case is fact specific and each factor is to be given appropriate weight when determining the child's best interests. The court, in such circumstances, would have benefitted from the appointment of a guardian and a report.

Enforceability of undertakings

In Q v Q (Contact: Undertakings) [2016] EWFC 5 the court was dealing with a father's application for a child arrangements order, and the mother's application for a prohibited steps order and a s.91(14) order. The father was convicted for a sexual offence against a young male. The father sought supervised and indirect contact. Expert reports concluded that the child would not be safe in the father's care and there should be no contact.

The court held that the order sought by M was unusual: it lay at the very extremities of the court's powers. There should almost always be some contact between child and parent. It would only be in a rare and exceptional case that there should be none. However, this instance was such a case. Any kind of contact would require supervision or monitoring by appropriately skilled professionals alert to the dangers posed.

The mother also sought a protective order in the same terms as undertakings already given.  Munby P made clear:

"The fact is, the law is, that an undertaking is enforceable in just the same way as an injunction. It is equally binding on the person to whom it attaches. And the court should not lend any credence to any suggestion to the contrary."

Munby P also made clear: "in an appropriate case the Judge can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter."

Cost orders against a non-party

In HB v PB [2013] EWHC 1956 (Fam), [2016] 1 FLR 92 the local authority had failed to prepare a proper section 37 report, which had led to wasted hearings. The court made a non-party cost order against the local authority allowing the father to recover his cost wasted. The local authority was sufficiently closely connected with the litigation to justify a non- party cost order, and its 'systematic and specific failures' carried the case over the 'exceptionality' threshold.

DNA testing

Recent changes to DNA testing directed under section 20 Family law Reform Act 1969 mean that Cafcass and CAFCASS Cymru are able in defined circumstances to facilitate the provision of DNA tests which are directed under section 20 of the Family Law Reform Act 1969 by Courts in England and Wales. In such cases the cost of the DNA testing will not fall on the parties to the proceedings (it will be met by Cafcass in England and the Ministry of Justice in Wales via Cafcass). The service will be limited to the following circumstances:

(1) An application has been made for a Child Arrangements order under section 8 of the Children Act 1989, and

(2) The application cannot be determined unless a dispute about the paternity of the child is resolved and

(3) The parents or persons with care of the child are prepared to cooperate with the direction made by the court.

For further information and draft precedents for orders, click here