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Children: Private Law Update (Autumn 2019)

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

Alex Verdan QC4 Paper Buildings

In this update I will consider the following areas:

• Identity of the natural parent

• Cost orders

• Applications for fresh evidence on appeal

• Section 91(14) orders

• Termination of contact cases.

Identity of the natural parent

In AB v CD & C [2019] EWHC 1695 (Fam) the High Court was concerned with an unusual application, presenting the question as to whether a boy should be told who his biological father was.

The child, C, believed AB, the husband of the child's mother, to be his father. However, C was conceived as a result of an affair the mother had with X.

AB issued a raft of applications against the mother, including proceedings for breach of confidence, and a claim for the monies he had spent on C together with damages for the distress he had suffered.

AB sought an order for C to be informed who his biological father was and to reveal his identity. The mother submitted that C would not understand what he was being told and there should be a period of two years before being told. A Guardian was appointed for C and she recommended that C be told now rather than wait and run the risk of C finding out by other means.

Cohen J reached the view that X's position needed to be ascertained before his identity could be revealed to C, because if X did not want to play a role in C's life then this would impact on what C should be informed. The learned Judge drafted a letter, agreed by the parties, to be sent to X to confirm his position, and the matter to be listed for a further hearing once his position had been made clear. In the meantime various orders were made enforcing AB's role including the granting of parental responsibility and an order for C to spend time with him.

Cost orders

In Timokhina v Timokhin [2019] EWCA Civ 1284 the Court of Appeal was concerned with an appeal brought by the mother against an order for her to pay £109,394 in costs. The substantive application before the court was by the father for permission to remove the parties' son to Russia to live with him. During the course of the proceedings the mother travelled to Russia and was arrested for attempting to bribe police officers to instigate criminal proceedings against the father in order to gain advantage. The mother was remanded in custody in Russia. The final hearing on the leave to remove application was adjourned once by reason of the mother's incarceration. Her subsequent application for an adjournment was refused and the court granted the father permission to remove the child to Russia to live with him and made a cost order against the mother. The mother appealed the decision. King LJ, in refusing the appealing but reducing the cost order to £78,144, outlined the relevant jurisprudence, and the rarity of such orders in children proceedings:

"For completeness it should be added that the general rule that costs will follow the event does not apply to an appeal to the Court of Appeal in any family proceedings (CPR 44.2(3)) and that only rarely will costs orders be made in children proceedings; see: Re S (A Child)(Costs: Care Proceedings) [2015] UKSC 20, [2015] 2 FLR 208. The concession on behalf of the mother that she should be responsible for costs (at least on a standard basis) in respect of the withdrawn appeal, rightly recognised that, on the facts of this case, notwithstanding the general approach to costs in cases involving children, an order for costs could legitimately have been made; see: Re T (Care Proceedings: Costs) [2012] UKSC 36, [2013] 1 FLR 133.

The appellate court also determined that it was plainly within the trial judge's discretion to make a cost order on an indemnity basis having regard to the principles in Three Rivers District Council v Bank of England [2006] 5 Costs LR 714.

Applications for fresh evidence on appeal

In Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 the Court of Appeal confirmed the procedure by which findings of fact may be challenged on the basis of further evidence. Jackson LJ confirmed that a party can seek to pursue an appeal accompanied by an application to file further evidence pursuant to CPR 1998 51.21(2) and the principles established in Ladd v Marshall. However, he goes on to say that there may be circumstances where in general an application to the trial court is likely to be the more suitable course pursuant to Part 18 FPR 2010. The trial judge will be in a far better position to assess the relevance and significance of such new evidence, and deal with any application more quickly.

Section 91(14) orders

Re N (Children) [2019] EWCA Civ 903 provides practitioners with a helpful reminder as to the fundamental requirements on making a section 91(14) Children Act order. The parties were involved in protracted proceedings regarding their two children which had been ongoing for five years. A directions hearing took place and the father did not attend, but did file a position statement. The Judge heard evidence from the Guardian and the mother and indicated after hearing the evidence that he was minded to make a s. 91(14) order against both parents and proceeded to make such an order for two years. The father applied to vary the order, but the mother did not attend and the court was not provided with a bundle, and the application was dismissed. The father appealed the decision and the Court of Appeal emphasised the very clear guidance in Re P [1999] EWCA Civ 1323 and comments of Tomlinson LJ in Re T (A child)(Suspension of contact) [2015] EWCA Civ 719 as follows:

"50. … Given the significant implications of this statutory intrusion into a party's ordinary ability to access justice, it is imperative that the court is satisfied that the parties affected:

(1) Are fully aware that the court is seised of an application, and is considering making such an order.

(2) Understand the meaning and effect of such an order.

(3) Have full knowledge of the evidential basis on which such an order is sought.

(4) Have a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to be made in writing and on notice.

51. These fundamental requirements obtain whether the parties are legally represented or not. It is, we suggest, even more critical that these requirements are observed when the party affected is unrepresented."

In Re P & N (Section 91(14): Application for permission to apply: Appeal) [2019] EWHC 421 (Fam) Cobb J sets out the correct procedure and test on applying for permission to apply for a section 8 order after the making of a s. 91(14) order. A s. 91(14) order had been made for three years against the father. He had applied previously for permission to apply for a section 8 order, which was refused. His second application was listed for a hearing without any formal notice to the mother, and the Guardian was not able to attend. The Judge granted permission to the father to make an application for a section 8 order. Cobb J decided that this approach was wrong and had been procedurally unjust. Cobb J sets out the legal context as follows in such applications:

"i) Nothing in the CA 1989 or the FPR 2010 specifically prescribes how the court should approach an application for permission to apply for a CA 1989 order following the imposition of a section 91(14) order; I do not regard this as an application to which section 10(9) CA 1989 applies as the father would be 'entitled' (section  10(4)(a)) to apply for an order were it not for the court-imposed restriction;

ii) A judge sitting in the Family Court generally enjoys a wide spectrum of procedure when determining applications under the CA 1989 (Re B (Minors) (Contact) [1994] 2 FLR 1 at p.6 1);

iii) That there is no more recent or authoritative pronouncement on the appropriate procedure under review here than the Court of Appeal's judgment in Re S [2006] EWCA Civ 1190, [2007] 1 FLR 482 ('Re S');

iv) Section 1(1) and section 1(3) of the CA 1989 do not apply to an application for permission to apply for an order, although the welfare of the child will be a relevant consideration.  The court should, however, have some regard to the 'overriding objective' of family court process, and the obligations arising under rule 1 FPR 2010 – in particular to deal with application "justly", "fairly", "ensuring that the parties are on an equal footing" and "saving expense" "

Cobb J goes on to identify two questions requiring resolution: i) What test should the court apply on an application for permission to make an application following the imposition of an order under section 91(14)? and ii) Should the application for permission be determined on notice to the other party or parties to the original litigation or not? 

Cobb J reviews the previous authorities and provides the following summary:

"40. The appropriate procedure for a court to follow when presented with such an application, in my judgment, is that laid out in the judgment in Re S (see [18] above), namely that the application should be considered 'in the first instance' on the papers, or at on an oral hearing which can be 'without notice' to the respondent particularly if there are concerns about the effect on the respondent of learning of a fresh application (what Wall LJ referred to in Re S at [92]/[93] as "certain sensitive circumstances… a case in which the stress of previous litigation has destabilised the family, and in which the fragile capacity of the resident parent may well be adversely affected by the service of an application for permission to apply"– see [18] above).  If the applicant seeks an oral hearing, he/she should not be denied this.  If the application is without merit, then it can be dismissed at that stage, and the potential respondent may well have been spared any engagement with the process.  However, if the application shows sufficient merit (i.e. the applicant has demonstrated a prima facie case that there is a need for renewed judicial investigation on the basis that he has an arguable case), the court should list the application for an 'on notice' hearing to allow the respondent to make representations.  This procedure is clearly indicated from the judgment in Re S but it was not followed here."

He goes on to make three further points:

(1) First, the grounds laid out in an application for permission to make a fresh application may not tell the whole, or indeed a true, story; the situation 'on the ground' may not be as the applicant asserts.  Before a judge opens the gateway to fresh litigation – in circumstances when a court has earlier taken the exceptional course of imposing a restriction on further applications – an  opportunity should be given to the respondent to fill any factual gaps, or correct any factual errors (deliberate or unwitting), in the material on which the judge is being asked to consider the application, and to respond on the merits.  On this point, it is illustrative to reconsider what I set out at [36] above.

(2) Secondly, as Hale J contemplated in Re N (see [16]), there may be no "genuine need to invoke the court's assistance in the problem that had arisen" – a point which Thorpe LJ repeated in Re A (see [13] above: he referred to there being no need for "renewed judicial investigation").  It may be that the issue – when analysed with the benefit of both parties' contributions – does not warrant the expense and time of court intervention, thereby saving the parties' and the court's limited resources.

(3) Thirdly, and yet more significantly, only by offering the respondent an opportunity to be heard will the judge, in my view, be fulfilling his or her obligation under the 'overriding objective' under the FPR 2010 to deal with case "justly" and "fairly" (see [10](iv) above): there will be few, if any, situations in which the respondent is not likely to be materially affected by the grant of the application to re-open the litigation. Justice and fairness surely require that the respondent is given the chance to inform and influence the decision whether further litigation should be instigated.

The application for permission to apply for a section 8 order was remitted to the Family Division Liaison Judge and listed for hearing on notice to the mother and Guardian.

Termination of contact cases

Re A [2019] EWHC 612 (Fam) is a helpful case for practitioners faced with applications to terminate contact. Cohen J was concerned with an appeal against an order which stopped all contact between the mother and a 7 ½ girl, A. The mother alleged that the father had sexually abused the child. The allegations were determined at a fact finding and were not made out. The court went on to make an order that A live with her father. The mother continued to make allegations to the local authority and police that the father had sexually abused A. The Judge made an order for no contact, various prohibited steps orders and a s. 91(14) order. Those orders were appealed by the mother on the basis that the Judge had failed to consider the impact on the child from having frequent contact with her mother to no contact whatsoever, and in absence of expert evidence from a psychiatrist or psychologist to report on the effect on A.

On considering the appeal, Cohen J refers to the passages from Re J-M and the need for the court to grapple with all available alternatives before abandoning contact. He allowed the appeal in part and found that to 'terminate the child's relationship with the mother and sister is very draconian and it seems to me that this is a case where all available alternatives had not been fully explored.' The case was remitted for directions to consider whether a child and adolescent psychiatrist should be instructed.