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Children: Private Law Update (September 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 areas: 

Intractable contact disputes – Re H-W (A child) [2017] EWCA Civ 154
The Court of Appeal was concerned with the welfare of a nine-year-old boy (W) and the lower court's decision that his father should not have contact with him, because it was not considered to be in W's best interests.

This decision related to long running proceedings, which had been on foot since W was aged one, over which period the court had made findings against the father that he had been physically abusive to the mother and her older children. At a final hearing the court made an order that there be no direct contact, but only indirect contact by way of letter, cards and small presents, and for there to be a family assistance order.

The father appealed the decision on the bases that the court had (i) failed to seek assistance from an expert, (ii) failed to consider W's interests in the longer term when he is older, and (iii) failed to return to a former strategy for the mother to engage in therapy and make further efforts to facilitate contact.

Black LJ upheld the decision finding that the judge had not been wrong to make no order for contact having regard to all the circumstances of the case.

The Court of Appeal helpfully clarified the following point in respect of the court's duty to re-establish contact in such cases by saying:

"[50] Before going on to look at some of the elements of the Judge's decision in order to see whether it could be said that despite appreciating her duty to consider way to re-establish contact, Judge Newton failed to fulfil it, I should make the following general point. If the father was going so far as to submit that the court has an obligation to try every single possibility that might, in theory, achieve direct contact, that does not accord with my understanding of the position. The obligation of the court is to make a decision about contact, with the child's welfare as its paramount consideration (Section 1(1) Children Act 1989), and having regard in particular to the matters set out in section 1(3) of that Act. Within this framework, the task of the Judge is to weigh up the pros and cons of what might be possible ways forward, looking to see what chances they have of working, what benefits they might bring and what harm might be occasioned in the attempt. This exercise might lead to the abandonment of some options that might have looked worth pursuing. In this case, it led the Judge to discard the possibility of seeking general expert advice, over and beyond that offered by the Cafcass officer, even though this had not so far been tried and might have been the only remaining option." 

Palliative care for a child against his parents' wishes – An NHS Trust v SK (Best interest decision – palliative care) [2016] EWHC 2680 (Fam)
The court was concerned with an 11-year-old boy (SK) who was suffering from end stage high grade recurrent osteosarcoma and metastic lung disease.

The issue for the court was whether SK should receive palliative end of life treatment and care. SK's parents objected to that course of action, because they accepted neither his diagnosis nor that he was going to die.

The NHS Trust sought a declaration from the court that it was in ZK's best interests to receive a palliative treatment plan. 

The Guardian's position was that ZK was not Gillick competent in respect of the treatment because he was heavily influenced by his mother's views on the issue.

The court found that there was no evidence to substantiate the mother's position that ZK's diagnosis was inaccurate and endorsed the Guardian's analysis that whilst palliative chemotherapy was in SK's best interests, SK should not be compelled to accept the treatment in a way which would put him in opposition to his mother during the final weeks of his life. It further found that it was in his best interests to receive psycho-oncology to assist him with his condition, and his parents were prohibited from interfering with his treatment plan.

Dissemination of information regarding private law proceedings – Gibbs v Gibbs [2017] EWHC 1700 (Fam)
The court was concerned with private law proceedings which commenced in 2001, and focused on the father's application for contact with the parties' two children. The mother had raised a number of allegations which were not found to be proved.

The parties then entered into a consent order for the father to spend time with the children; contact subsequently broke down, and the mother continued to make allegations to the children and to others in the community about the father. The father then abandoned his application due to the difficulties.

The proceedings were brought back to life some 13 years later when it became apparent that the mother had issued emails to thousands of individuals accusing the father of physical, sexual or emotional abuse.
The court made a series of orders, reinforced by penal notices, prohibiting the mother from disseminating, disclosing or publishing any information about the proceedings as follows:

"Until further order the respondent must not disclose, disseminate, or publish any information about these proceedings concerning the applicant, or any proceedings in the family court that have involved the parties, and any allegations made within the context of proceedings in the family court, whether by print, electronic form, or on the world wide web and should not instruct, encourage or in anyway suggest that another person should do so."

The mother was found to have breached these orders and was committed to prison for nine months.

Non-biological mother's application for a child arrangements order – Re B (A Child by her Guardian) [2017 EWHC 488 (Fam)
The court was concerned with the welfare of B who was subject to proceedings since 2014 and was the focus of the Supreme Court case of Re B (A child) [2016] UKSC 4, which put to bed the issue that B was habitually resident in England and Wales at the material time. Russell J was now concerned with the disposal of the proceedings and the non-biological mother's application for a child arrangements order where B was living with her mother in Pakistan.

R and J were in a same-sex relationship and underwent NHS intrauterine insemination treatment, and B was born. B saw J and R as her mothers, and continued to see R after the parties separated. J subsequently applied for removal to Pakistan and was successful – B had only limited telephone contact with J thereafter.

J initially sought for B to return to England, and for there to be regular direct contact. She subsequently tempered her positon and no longer sought a return, but for there to be regular direct contact.

Russell J, having regard to Re G (Shared residence order: Biological mother of donor egg) [2014] EWCA 336, which considered the legal framework governing parental responsibility in the expanded boundaries of legal parenthood, including same-sex couples, concluded that the only governing principle remains the paramountcy of the child's welfare while particular consideration must be given to the part each adult can play in the child's life.

In ordering contact once per year plus telephone and Skype contact, and for there to be a parental responsibility order in favour of J to recognise her role and status in B's life (but for this to be limited in that J was not to approach B's school or medical practitioner), Russell J emphasised that "family life is a matter of fact, one of substance, not form. In this case in her earliest childhood and after J and her mother separated B had a family life which included the applicant."

The court further ordered that the matter would be adjourned until February 2018 to ensure the order was taking effect.

Enforcement of child arrangement order under Brussels IIA – M (Children) [2017] EWCA Civ 891
The court was dealing with the father's appeal in private law proceedings to enforce an interim child arrangements order made in Estonia in 2015. The British mother moved from Estonia to live in England with the parties' two children. The father remained in Estonia and obtained an order from the Estonian Court for supervised contact each mother in England. The father had previously, unsuccessfully, attempted to secure the children's return to Estonia. He then sought to enforce the contact order under Brussels IIA (Council Regulation (EC) No 2201/2003) Article 41(1), which provides:

"The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal."

However, the relevant local authority refused to supervise the contact, having reached the view that it was not in the child's best interests. The court concluded that in such circumstances it lacked the power to order the local authority or Cafcass to supervise contact, and therefore, was unable to enforce the order under sections 16 or 11A-P of the Children Act 1989.

Temporary leave to remove from the jurisdiction – AM v DF [2017] EWHC 2034 (Fam)
This was an appeal from HHJ Tolson QC to Baker J in respect of an order made varying a prohibited steps order, which permitted the mother to take the children aged 7 and 5 to Iraq for a four-week summer holiday.

An order had previously been made, on the father's application, preventing the mother from removing the children from England and Wales. The mother later indicated a wish to take the children to Iraq, and the matter was listed for hearing. At that hearing the court expressed a concern that there were insufficient details about the mother's travel plans, the reciprocal arrangements in Iraq, how the mother intended travelling with the children, how she intended keeping the children safe and any information from the Home Office.

The mother subsequently abandoned her plans to travel and reignited them the following summer. The hearing on that application came before HHJ Tolson QC and the mother, through her counsel, provided the details which were previously missing. The judge granted permission for the mother to travel with the children.

The father appealed the decision on the bases that the judge had failed to take account of the risk of harm and failed to apply the welfare checklist.
Baker J in allowing the appeal and staying the order, helpfully summarised the relevant principles at paragraph 24 – 26 of the judgment referring to the leading authorities of Re M (Removal from the jurisdiction: Adjournment) [2010] EWCA Civ 888, Re R (A child) [2013] EWCA Civ 1115 and Re H (A child) [2014] EWCA Civ 989. The approach to such cases is set out in Re R by Patten LJ:

"[23].  The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the chart's return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course. 


[25].  ….[A]pplications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements: (a) the magnitude of the risk of breach of the order if permission is given; (b) the magnitude of the consequences of breach if it occurs; and (c) the level of security that may be achieved by building in to the arrangements all of the available safeguards. It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave."
Baker J also referred to Re H, in which Ryder LJ, at paragraph 12, said:
"When dealing with the risk element in cases such as this, it is important to take into account not just the facts as they appear from the evidence of the parties but also the opinions of those agencies that provide assistance to courts and to individuals when asked to do so."

He cited in particular the FCO guidance available in that case. At paragraph 14, he reiterated the need for "rigorous scrutiny" of the three factors identified in paragraph 25 of Patten LJ's judgment in Re R.

Procedure for appeals from a District Judge sitting in the Central Family Court
Baker J has confirmed that permission to appeal applications from a District Judge sitting in the Central Family Court should be listed before a Circuit Judge sitting as a Deputy Judge of the High Court at First Avenue House. Baker J issued the following notification:

"Under the new arrangements, applications for permission to appeal should be listed before a Circuit Judge at First Avenue House.  Mr Justice Baker, the judge in charge of appeals, and the President of the Family Division have agreed that appeals from District Judges at the Central Family Court should be heard by a Circuit Judge sitting as a Deputy Judge of the High Court.  All other appeals from District Judges are to be heard by Circuit Judges.  If the Circuit Judge considers it appropriate, he/she can transfer the matter to be heard by a High Court Judge."