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Children Private law update Summer 2018

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

Alex Verdan QC, 4 Paper Buildings 

In this update I will consider the following areas:

• Preservation of a child's life – 'Alfie'
• Leave to remove
• Transfer of residence
• Parental orders

Preservation of a child's life – 'Alfie'

In Alder Hey Children's NHS Foundation Trust v Evans & Ors [2018] EWHC 818 (Fam) Hayden J was dealing again with the welfare of Alfie, and was concerned with an application by Alfie's parents for a writ of 'habeus corpus' to release Alife from hospital.

This application followed a number of hearings where the court was dealing with very sad circumstances, where Hayden J had concluded, in his earlier judgment, that Alfie has suffered with a neuro-degenerative disease which corroded his brain to the extent that 'his life was futile.' The court had declared that it was not in his best interests for ventilation to continue. This reflected a consensus of global medical opinion.

Alfie's parent's appealed that decision to the Court of Appeal and were unsuccessful. They subsequently sought permission to appeal to the Supreme Court and European Court of Human Rights but were refused.
The Court of Appeal had directed that the matter be listed on short notice before Hayden J in respect of the implementation of the terms of the 'end of life plan', or the date for the withdrawal of artificial ventilation.

Alfie's parents, with the assistance of a new legal team, sought a writ of 'habeus corpus', predicated on the rights of the parents in English law, to release Alfie from hospital.

Hayden J took the view that the argument was 'entirely misconceived', and further clarified the test the court is concerned with on such applications being the child's best interests. Hayden J repeated Lady Hale's comments, made at the permission hearing, comparing the test to the gold standard:

"A child, unlike most adults, lacks the capacity to make decisions about future arrangements for themselves. Where there is a dispute, it is for the court to make a decision, as it would in respect of an adult without capacity. This is the gold standard by which most of these decisions are reached. It is an assessment of best interests that has been concluded to be perfectly clear."

Hayden J further clarified the writ of habeus corpus applies 'only to individuals unlawfully detained or whose civil liberties have been compromised in some way. It is axiomatic, given my conclusions as to where Alfie's best interests lie, that there can be no compromise of his liberty in the circumstances where the identified best interests are being met.'

Alfie's parents appealed this decision to the Court of Appeal, which was refused. The Court of Appeal making clear that the 'application of a different label, namely habeus corpus, does not change the fact that the court has already determined the issues which the parents now seek, again, to advance.'

Leave to remove

In S v V (Children – Leave to Remove) [2018] EWHC 26, Mostyn J was concerned with an application by a mother for the permission of the court to return with the parties' children, aged 5 and 2 years, to Ukraine.

Mostyn J neatly summarised the applicable legal test as follows:

"[2]. The legal test to be applied is now very straight-forward. It is the application of the principle of the paramountcy of the children's best interests, as taxonomised by the checklist in section 1(3) of the 1989 Act. That principle is not to be glossed, augmented or steered by any presumption in favour of the putative relocator. Lord Justice Thorpe's famous "discipline" in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, guidance which can be drawn on, or not, as the individual case demands. In fact, most of the features of that guidance are statements of the obvious. Obviously, if the applicant's case is not well thought out and is not supported by evidence it will likely fail. Obviously, if the applicant's case, or the respondent's defence, is not advanced in good faith but rather is driven by an unworthy ulterior motive, then that case, or defence, will fail. Obviously, the court must consider the impact on the mother if the application is refused as well as the impact on the father if it is granted.

[3]. It is said that in trying these cases the court must undertake a "global" or "holistic" or "360 degree" exercise, which again to my mind is to state the obvious. Plainly, the court is not going to undertake a partial or superficial or limited or incomplete survey of the case. 
[5]. The court's function in a relocation case is one of evaluation rather than a pure exercise of discretion (see Kacem v Bashir [2010] NZSC 112). Inevitably, the court will have to resolve disputed facts and there is a burden of proof on the party alleging the facts in issue. But once the facts are established there is no formal legal burden of proof on the applicant: see Payne v Payne at para 25 where Lord Justice Thorpe stated: "I do not think that such concepts of presumption and burden of proof have any place in Children Act litigation where the judge exercises a function that is partly inquisitorial." However, common sense dictates that where one parent seeks that a well-functioning status quo should be changed she has to make the running in terms of the evidence and argument to show that change would be more in the children's interests than no change. Notwithstanding the partly inquisitorial function of the court to my mind the maxim affirmati non neganti incumbit probatio should loosely apply to the case for change."

The mother was Ukrainian, and the father Russian. The parties met in Vienna and were married in Ukraine in 2012. They then came to live in London. The arrangements for the children were intended to have been settled by a Ukrainian parenting agreement, which specified that the children were to live with their mother permanently in the UK. The mother originally sought to move to California with her partner, and then revised her plans to move back to Ukraine.

The mother then travelled to Ukraine, during the proceedings, with the children, without notice to the father and in breach of her earlier assurances. Nonetheless, the mother was permitted to remain in Ukraine pending the determination of the leave to remove application.

An independent social worker had been instructed, and recommended that the children remain in London, there being heightened concerns about the mother's partner's controlling influence, especially given that he now refused to return with the mother to London, and the consequential impact on the children.

In refusing permission Mostyn J found:

(i) The refusal of the mother's partner to give evidence led him to find that he had something serious to hide. Mostyn J referred to the principles in Prest v Petrodel Resources Ltd & Ors [2013] UKSC 34 that inferences can be drawn from the absence or silence of a witness, who might be expected to have material evidence to give on an issue in an action; and if a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party, or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(ii) The mother's case was 90% about her partner rather than returning to Kiev.

(iii) The court accepted the evidence of the ISW that the following presented concerns about the proposed move:

(a) The mother had fallen out with the grandmother who lived in Kiev and was close to the children.

(b) The partner's influence and controlling behaviour.

(c) The travelling for the children to London and back would be tiring.

(d) Any contact with the father in Kiev will not be of the same quality as in London where the children will be with the paternal family.

(e) Infrequent and lengthy visits will not foster the same relationship.

(f) The mother having dismissed the children's nanny removed a protective part of the move.

(iv) The court also expressed a concern about the mother's willingness to comply with orders.

Transfer of residence

In Re C (A child) [2018] EWHC 557 (Fam) Knowles J was dealing with an appeal against a decision which transferred the residence of a 6 year old from her mother to her father by reason of the mother's opposition to progressing contact.

The mother had been found to be wholly opposed to any progression of contact, which had been positive. The court made a stepped order for a progression of contact and a family assistance order. Within three weeks of the order the father applied to enforce it. Cafcass had reported that the mother was not engaging with the family assistance order. C was subsequently joined as a party to the proceedings and a guardian was appointed.

The court concluded at the final hearing that the mother had a deeply ingrained hostility to the father and his family, and would only agree to contact on her terms, which did not include overnight and holiday time. It was further found that it had been impossible to progress contact despite the involvement of Cafcass, a guardian and a family assistance order. The court ordered that on balance it was in child's best interests to move to live with her father.

The mother appealed the decision, on two grounds: (i) Cafcass and the guardian had been inconsistent in ascertaining in the views of the child, and a lack of judicial continuity had resulted in further conflict between the parents; and (ii) the Judge had failed to apply the welfare checklist properly.
In dismissing the appeal, Knowles J found that there had been no criticism of the guardian's procedures raised at the final hearing, and there was no evidence that the lack of judicial continuity had any adverse impact on the parties.

As to the Judge's said failure to apply the welfare checklist properly, Knowles J found that whilst the judgment makes no express reference to the child's wishes and feelings that "was not an omission I regard as significant given the Judge's very careful analysis of the other matters…… which included C's emotional need to have a normal relationship with her father and to be spared adult conflict and the likely effect upon her of what would be a significant change in her circumstances."

Parental orders

In AB v CD EF GH & IJ [2018] EWHC 1590 (Fam) Keehan J was concerned with two children: GH and IJ. The children were born as a result of a surrogacy arrangement entered into in India. In accordance with that agreement, the mother, KV and her husband, HV handed over the care of the children to the first and second respondents, CD and EF, but neither of the respondents was aware of the need to apply for a parental order, and therefore, the legal parentage remained with KV and HV.

The respondents subsequently separated and the first respondent entered into a relationship with the applicant, AB, and the children lived with them. AB then made an application for parental responsibility orders in respect of both children, which was subsequently withdrawn, because s. 4 Children Act 1989 exclusively refers to the term 'father' and not 'biological parent' in relation to the acquisition of parental responsibility, and given that the applicant was not married to a person who was, recognised as the legal mother of parent, the court had no power to make a parental responsibility order.

Thereafter, applications were made by the applicant and the first respondent for: (i) the children to be made wards of court; (ii) a letter requesting the court to consider granting the second respondent parental responsibility for both children.

The court found itself in a statutory lacuna. Keehan J was "extremely frustrated, as no doubt are the first and second respondents, that I am prevented, without any obvious good, legal or policy reason from making orders which explicitly recognise them as the legal mother and the legal father of these children."

Neither of the respondents was able to satisfy the conditions for the making of a parental order pursuant to s. 54(2) or 54(4)(a) Human Fertilisation and Embryology Act 2008 ('HEFA').

Accordingly, only the surrogate mother and her husband could be treated as the mother and father of the children.

In light of this void in the statute to recognise the respondents as the mother and the father of the children, the court found that it was wholly necessary in accordance with the children's welfare to: (i) make them wards of court for the time being; (ii) make a child arrangements order in favour of the first respondent and the applicant; (iii) make no order as to contact between the second respondent and the children (findings of sexual assault and controlling behaviour having been made); and (iv) to restrict the exercise of parental responsibility of the surrogate mother and her husband.
Keehan J said of the current state of the law:

"[74]. The absurdity of the law not recognising the first and second respondent as the mother and the father of these children is plain. The losers are predominately the children who do not have their biological parentage recognised in law.

[76]. ….. I am forced, as have other judges before me, to construct a set of orders to secure the welfare of the children which fall very far short of the transformative effect of a parental order."