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Children: Private Law Update (February 2017)

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: 

Child arrangements application by a transgender parent in respect of his children living in the Jewish Charedi community

In J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 Jackson J was concerned with five children ranging in age from 2-12. The family were members of the Charedi community. Following separation the father left home to live as a transgender person. The father's subsequent efforts to maintain contact were ignored. The father sought an arrangement whereby the children would be sensitively reintroduced to him.

The children were represented by a guardian, who had sought a report from the Anna Freud Centre, who advised that "by a narrow margin and with evident reluctance that the benefits to the children of resuming contact with their father would be outweighed by the harmful community reaction that would be visited upon the children." Accordingly, the recommendation was for indirect contact three times per year, no direct contact and a course of life story work to explain the father and his departure from the family.

Jackson J, in deciding that direct contact could not take place and there would only be indirect contact four times per year, said:

"[T]he unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ulta-orthodox community is so real, and the consequences so great, that this one factor despite its many disadvantages, must prevail over the many advantages of contact."

Application by a 14-year-old girl suffering from a rare form of terminal cancer for order for her to be cryo-preserved upon death

Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) - In this exceptional case Jackson J was dealing with an application by JS, a 14-year-old girl, diagnosed with a rare form of cancer and was receiving palliative care or her body to be preserved upon death. JS's parents did not agree as to what was going to happen regarding arrangements on death, and JS did not want her father to have knowledge of her wish.

JS had undertaken research into cryonics: the freezing of a dead body in the hope that resuscitation may be possible in the future. The matter came before the court because, whilst JS was competent, she could not make her own will by reason of being under the age of 18 years.

The court therefore made the following orders: 

The court found that the making of such order was prospective, and the power to do so derived from the application of the welfare checklist, and that JS's welfare could not be adequately protected by the court refusing to make such orders.

For an article considering this judgment in detail, click here.

Administration of treatment to children whose parents are Jehovah witnesses

In An NHS Foundation Trust v T [2016] EWHC 2980 (Fam) Jackson J was concerned with an application for a declaration in respect of treatment, including the administration of blood products, to a two-year-old boy, T, who suffered from low blood platelet count, and whose parents were Jehovah's Witnesses.

T's parents were unable to consent to the administration of blood products by reason of their religious beliefs. They did not oppose the application by the hospital trust, and did not attend the hearing and were not represented, but had sent a letter to the court explaining their position.

The court decided, having regard to the medical evidence and having considered the position of T's parents, that it was 'overwhelmingly' in T's best interests for him to receive the proposed treatment.

Accordingly, the order, made under the inherent jurisdiction, recorded that such treatment would only be given after consultation with the parents and that blood products or blood would only be used if there was no clinically appropriate alternative.

Jurisdiction to make final order

In AS v TH (No 2) (Jurisdiction to make final orders) [2016] EWHC 2825 (Fam) MacDonald J was concerned with the court's jurisdiction to make final child arrangement orders in respect of two children who had been removed from Scotland by the mother to England.

The father questioned the court's power to make final orders in respect of the children's welfare when they were habitually resident in Scotland, and that if they were to be returned to Scotland at the conclusion of the proceedings their habitual residence, if it had ever been lost, would once again be in Scotland, and therefore the Scottish court were best placed to deal with any welfare issue.

The father's argument was put on the premise that the court had hitherto only made interlocutory orders exercising the 'emergency' jurisdiction pursuant to s. 2(3)(b)(ii) of the Family Law Act 1986, and the court could make only short term orders required to protect the children's welfare pending further proceedings in Scotland.

The mother and children's guardian disagreed and submitted that the court had power to make substantive final orders.

MacDonald J found that the children had lost their Scottish habitual residence since coming to England, but had not yet acquired a new habitual residence, and in these 'highly exceptional' circumstances were without one. By reason of this MacDonald J found that the court had jurisdiction pursuant to s. 2(1)(b)(ii) and/or s. 2(3)(b)(i) FLA 1986 and therefore had power to make final orders.

Appeal against finding of fact

In Re S (a Child) [2017] EWCA Civ 44 the Court of Appeal was concerned with an appeal by a mother against findings made that she had created allegations against the father concerning alleged sexual assault in respect of the child in order to achieve a tactical advantage in the proceedings.

The mother was unsuccessful in overturning the court's findings in respect of her false allegations. However, the mother also appealed the decision on the basis that the judge had erred in dismissing an allegation of assault of the child by the father.

King LJ found that the judge at first instance had failed to provide proper reasons as to why he was unable to rely upon the child's (aged 8 years) account of events, and why he took no account of the father's previous physical chastisement of the child.

It was found that the judge had failed to demonstrate sufficiently "that he had taken the relevant matters into account and to explain what he had made of them."

The judge's finding that the assault on A did not take place was set aside and the issue remitted for hearing before another judge.