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Children (Private Law) Update (September 2009)

Alex Verdan QC, of 4 Paper Buildings, reviews the latest key decisions in private children law


Picture of Alexander Verdan

Alex Verdan QC, 4 Paper Buildings


In this Review I will focus on recent cases covering the following topics:

Fact Finding in domestic violence cases
1. In Z (Children) [2009] EWCA Civ 430 - an appeal by the mother against an order for unsupervised contact by their father to her two youngest children - the Court of Appeal stressed again the importance of fact finding.

2. The parents had split in June 2008, since which time the father had not seen the children and so applied for contact. The mother countered with allegations of domestic violence and a fear that the father would seek to abduct the children back to his home country of Algeria. After some delays to adduce further evidence, a fact finding hearing of two days was fixed. After the first day of the hearing a violent incident took place outside the judge’s room that resulted in injuries to the father’s cohabitee partner. The judge was informed of the incident first thing at the next day of the hearing and as a result he decided to cut short the fact-finding hearing. He then made an order for unsupervised contact and suggested that if the allegations were proved then the father would require anger management.

3. Wall LJ allowed the appeal on the grounds that the judge had not completed the fact-finding exercise and particularly not allowed cross-examination of the father on the possibility of abduction. Wall LJ stressed the importance of compliance with the Practice Direction on domestic violence - reported at [2008] 2 FLR page 103 - namely that the judge should conduct a fact-finding hearing and it was only if, at the conclusion of that hearing, the judge found as a fact, having heard all the evidence, that the children were in no way at risk or that, for some other reason, contact, unsupervised or unsupported, could take place that he should and could make an order for contact. Wall LJ stressed that the Practice Direction was a document about which all practitioners and all tribunals ought to be very much aware. It was not designed to tell judges what to decide; it was there to tell judges how to go about deciding issues of residence and contact where there are allegations of domestic violence.  Above all, the Practice Direction placed proper and firm emphasis on the importance of the fact-finding exercise, which process could not be short-circuited. The Practice Direction could not be overemphasised and, however experienced the judge, its terms could not simply be ignored.  The judge should hear all the evidence.  It was simply not good enough for a judge to say he had heard one side, did not think much of it, therefore he was not going to permit cross-examination of the other side of the issues involved, particularly where the safety and welfare of children were concerned.  There was no equivalent of the concept of “no case to answer” in proceedings relating to children: see Re R (A Child) [2008] EWCA Civ 1619.

4. Wilson LJ stated that this was even more the case when a fact finding hearing had been expressly set up by previous case management orders - referring to Re FH (Dispensing with Fact-Finding Hearing) [2009] 1 FLR 349, in which the Court of Appeal stressed the caution which a judge should bring to bear in deciding to reverse a programme, previously set by another judge, that a fact-finding hearing should take place.

5. Wall LJ also held that it was not the judge's role to decide against anger management but simply to find whether the allegations were true and then allow CAFCASS to consider any therapy required. The judge was plainly premature in making that judgment.  That was a judgment he could only properly make if he had heard the father (and in particular heard the father cross-examined) and taken the advice of the CAFCASS officer. 

6. In SS v KS [2009] EWHC 1575 (Fam) Hedley J considered the issue of whether any form of contact should be allowed where there are allegations of domestic violence before the fact-finding hearing had been completed and whether the current delays in court timetables would justify such an order. The case raised an issue of increasing concern, at least in London, namely the propriety or otherwise of making interim contact orders, where cases increasingly were being adjourned for substantial periods of time, in this case 4 months. While acknowledging the difficult circumstances of the case Hedley J concluded that such contact was rarely justified but that did not mean it could never be right. Hedley J identified the difficulty facing judges; namely that whilst an interim contact order begged the very question in the proceedings namely whether there should be contact at all; on the other hand the longer the delays, if it be that contact should be ordered, the more inimical to the best interests of the child of not having contact.  That was quite apart from the concern (not suggested, be it said, in this case) that unscrupulous parents could effectively derail contact by the making of false or exaggerated allegations of domestic violence.  In this case the judge at first instance’s order was very restrictive; amounting as it did to contact for an hour once a fortnight completely supervised. Hedley J confirmed that normally an order for interim contact should not be made in cases involving allegations of domestic violence where such allegations (if true) would be relevant to the issue of whether, and if so what, contact order should be made.
Children’s wishes and Cafcass opinion
7. R (A Child) [2009] EWCA Civ 445 concerned an appeal by a mother against a residence order in favour of the father where the child wished to return to his mother and the CAFCASS officer recommended the same.

8. The couple had a relationship of about 3 years and had separated in early 2001 when the child was nearly two. The father remarried and had another child while the mother suffered from drink problems though their son continued to live with her. In 2008 the mother approached the father for help as she felt she could not cope and it was agreed that the son should live with the father given the mother’s problems: the father therefore applied for residence. A CAFCASS report concluded that the child should return to live with mother but the judge made the residence order to the father.

9. The Court of Appeal concluded, by a majority, that the judge had erred in his treatment of the child’s wishes and had been wrong to reject the CAFCASS recommendation; primarily because the child was now approaching an age when his views should weigh heavily on the outcome and the judge had not sufficiently reasoned why he rejected the CAFCASS recommendation, especially as he had not heard her in court.

10. The judge had erred in setting on one side the firm evidence of the child’s own wishes and in rejecting the Cafcass reporter’s own clear recommendation, in favour of a return to residence with the mother, together with the reasons given for both. He had not done so because of any new evidence or of a reasoned challenge to the opinion of the Cafcass officer. He had simply critically discounted the child’s wishes and essentially ignored the Cafcass recommendations and conclusions, and had done so without hearing either. The Court of Appeal stressed that the Cafcass reporter was, to a very great extent, the eyes and ears of the court, especially where the child was concerned, but the judge had not “listened” to the child, and he had ignored the reporter.

11. The Court of Appeal stressed again the importance of listening to a child once he or she had reached the age of 10 (here, the child was almost 9½ when he was seen by Cafcass) referring to various authorities such as Re L and others (Contact: Domestic Violence) [2000] 2 FLR 334 at 340 and Re D (Abduction: Rights of Custody) [2006] 1 AC 619 at [57], particularly where the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and with considerable emotional understanding. 

12. The Court of Appeal also considered the judge erred in rejecting the Cafcass reporter’s conclusions without hearing the reporter for himself as it was widely recognised in the authorities that this should not happen if it could be avoided. In addition, the judge failed to articulate the basis of his disagreement with the report. He discounted the views of the child and ignored the recommendation of the report. The Court of Appeal considered that a short adjournment to allow for the attendance of the Cafcass officer should have been feasible as it would have been valuable for the judge to have heard what the reporter might have said in explanation of her understanding of the child’s wishes or of her ultimate recommendation or on the question of the child’s settled status.

13. The Court of Appeal stated that in general, unless there were strong reasons to do otherwise judges should follow the guidance of Thorpe L.J. in Re A (Children: 1959 UN Declaration) [1998] 1 F.L.R. 354 and if minded to depart from the recommendation of an experienced CAFCASS officer should test any misgivings that they may have with the officer in the witness box before reaching a final decision.

Welfare test for grandparents
14. The appeal of B (A Child) [2009] EWCA Civ 545 raised a number of points of interest for the profession relating: (1) to second appeals in children’s cases; and (2) to the application of the welfare test under section 1 of the Children Act 1989 to a case involving a residence dispute between the father and the maternal grandmother of a child. 

15. The grandmother had been looking after the child since birth, firstly with the mother who moved out to her own home when the child was 11 months old. The order giving the grandmother residence also gave the father contact, which was regular save for a period when he was imprisoned for assault. The mother was also granted contact at a later date and in 2009 both mother and father raised concerns and so a s7 report was ordered for a final hearing where the justices maintained the status quo and rejected the father’s residence application. This was overturned by the circuit judge on appeal who ordered that the child should reside with the father.

16. Wall LJ identified that the case confirmed that in the light of the Lords decision in Re G [2006] UKHL 43 the test under section 1 of the 1989 Act was welfare alone, and that it is wrong to talk in terms of “rights". That case underlined some basic and universal propositions. The principal message was that parental “rights” in this context had no role to play: the welfare of the child in question was the court’s paramount consideration in every case. The justices had therefore fallen into error in finding that the grandmother was the child’s psychological parent but not discussing the father’s role in the child’s life.

17. The Court of Appeal made clear that second appeals were subject to the provisions of section 55(1) of the 1999 Act and Rule 52.13 of the Civil Procedure Rules (CPR). Section 55(1) limited such appeals to the Court of Appeal unless the Court of Appeal considered that the appeal would raise an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it; a higher hurdle than required for first appeals. The Court of Appeal confirmed that the purpose behind section 55(1) of the 1999 Act and CPR 52.13 was that, in general, there should only be one appeal from any given decision.  Were either arguability or even a strong prospect of success to constitute a compelling reason for a second appeal, there would be no difference between first and second appeals, and the statute would be deprived of its meaning and effect.  The statute applied equally in family appeals although the Court of Appeal hinted that the effect of a decision relating to the welfare or future upbringing of a child may itself constitute a compelling reason for hearing a second appeal. The importance of such decisions for the children and adults concerned could not be over-emphasised. Moreover, the fact that two courts had reached different conclusions may reinforce the justification for hearing the appeal.

18. Cases involving grandparents were no exception to the above principles. The child’s welfare was the paramount consideration.  But the fact that the residence dispute was between his father and his grandmother was plainly relevant. In this context it was of note that grandparents did not enjoy the same status as parents under the 1989 Act and there was a strong supposition that, other things being equal, it was in the interests of the child that it should remain with its natural parents. Status quo versus parental care was at the heart of the case, and the judge decided this issue of principle, for this child, in favour of the latter.  The section 7 reporter’s conclusion that the father and his wife could provide the child with appropriate care supported the judge’s decision. The judge was thus entitled to interfere with the decision of the justices.

Committal proceedings
19. In Burgess v Stokes [2009] EWCA Civ 548 the appellant mother had been committed to prison for three concurrent terms of 28 days: two for not making the child available for contact and the third for not attending a hearing about contact. At the time of the order the mother was also breastfeeding a three month old child by another man (her fiancée) but it became clear that the prison would not accept the infant with the mother, though that was the assumption of the court making the order. The mother argued principally that i) the judge had erred in taking other breaches of the contact orders into account when he had directed himself not to do so and ii) that the order had not appreciated the effect on the infant child. Ward LJ rejected the first ground of appeal as the judge had rightfully accounted for other breaches in making such an order. However on the second ground he found that the appeal should be allowed and the matter returned to the judge for reconsideration once an application for the infant to be admitted to the prison has been made and the outcome known. He did not though reject the judge’s conclusion that the breaches justified imprisonment as he remarked "the days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders." Ward LJ held that the baby at least had very potent rights under Article 8 of the European Convention on Human Rights; and that, without realising that he was doing so, the judge by his order infringed them.  The judge failed to consider whether the grave interference on his part by his order with respect for the baby’s private and family life with the mother was proportionate and justified, because he did not realise that the interference, in the form of separation of the baby from his mother, would occur. 

Media access
20. Child X (Residence and Contact – Rights of media attendance – FPR Rule 10.28(4)) concerned media access under the new rules to residence and contact proceedings involving celebrities.

21. The proceedings began in 2007 in the County Court and throughout the parties had undertaken not to disclose information about them. There were concerns about the impact on the child expressed at directions hearing in December 2008. Following a fact-finding hearing in March 2009, the judge issued a contra mundum order setting out restrictions on publicity. A date for another hearing was set on 27 April 2009, the same date at which the rules opening up media access to courts came into force. That hearing was adjourned to determine issues of media access.

22. In this judgment, the President reviewed the history and substance of new rule 10.28., together with the interaction of s12 of the Administration of Justice Act and the ECHR. He concluded that the exclusion of the media was appropriate for this hearing and probably the final hearing though this should be reviewed by the judge. He made several observations about the procedure for making applications and informing the press and the basis of the contra mundum order, which he concluded breached the Direction of 2005. He also observed that private law family cases concerning the children of celebrities were no different in principle from those involving the children of anyone else. An application by a celebrity who happened also to be a parent who was unable to agree with a former spouse or partner over the appropriate arrangements for their child(ren) was not governed by any principle or assumption more favourable to the privacy of the celebrity than that applied to any other parent caught up in the court process.

23. In deciding to exclude the media, the President concluded that the intrusion of the press into the proceedings in relation to this particular child and the particular matters investigated in Court would constitute a betrayal of the trust already built up between the child and Dr C and Mrs E and would present a grave danger to a successful outcome for the welfare and family issues on the case. He also concluded that with the high level of media, including foreign media, interest, if the press were admitted to the proceedings, there was inevitably a danger of details of the case as explored and discussed in Court leading to a wider audience and, in the case of the foreign media, being published in a country beyond the reach of this Court so far as proceedings for contempt of court were concerned. If this happened, there was an obvious danger that the contents of the article may come to the attention of the child via her own access to the internet or via her friends.

24. The Court also stressed the need for compliance with the President’s Direction dated 18 March 2005 and with the provisions of s.12 of the Human Rights Act, namely that, if the person against whom the application for relief was made was neither present nor represented, no relief should be granted unless the Court was satisfied that the applicant had taken all practical steps to notify such person or that there were compelling reasons why such person should not be notified. If it was not possible to draft explanatory documentation in the time available before the hearing, the Court should require the applicant to file it at the earliest opportunity and to make it available on request to any person who was affected by the order.

25. The President also outlined by what machinery the media, for the purposes of their submissions as to their proposed exclusion, be appraised of the materials upon which an applicant based his application to exclude, when the protection of the confidentiality and/or sensitivity of the details contained within those materials, constituted the very reason for the application to exclude by reference to the President’s Direction of 18 March 2005 relating to Reporting Restrictions, coupled with the further guidance in the Official Solicitor/ CAFCASS Procedural Note of the same date. In addition, the Press Association’s Copy Direct service should be used for the purposes of notification to the media on the basis that such notification was supported by the same documentation as was provided for in the Practice Note of 18 March 2005.

26. The Practice Note provided for service of a witness statement justifying the need for an order which frequently was a statement by the parties’ solicitor. This could exhibit documents or opinions referred to in the statement which supported the grounds of justification advanced. Where, as here, the grounds were based upon the confidentiality and sensitivity of material contained in medical and social work reports, it was sufficient for the justifying statement, without revealing the detail of the sensitive or confidential matter, to outline and make clear the nature of the matters and issues covered in such reports; in a manner sufficient to enable the media to make an informed decision as to whether they wished to attend the hearing of the application and/or the proceedings to which it related. Where the reports or other documents containing sensitive matters were already in the possession of the applicant’s solicitors, they should be brought to the hearing of the application in a convenient bundle to enable the Judge to refer to such documents as seem to him necessary for the purposes of his decision. Such a procedure was fully in accordance with the principles discussed and applied by Lord Mustill in Re D (Minors) Adoption Reports: Confidentiality) [1996] AC 593 and it was a procedure sufficient to make disclosure to the media of the case they had to meet where application was made to exclude them from the proceedings altogether.

27. Further, in cases involving the children of “celebrities”, it was incumbent upon an applicant who wished to exclude the media from a substantive hearing ab initio to raise the matter with the Court prior to the hearing for consideration of the need to notify the media in advance of the proposed application and that, if this was done, the Court should require the applicant to notify the media via the Copy Direct service in accordance with the procedure provided for in the CAFCASS Practice Note. The Court should at the same time make directions for the hearing of the application whether by way of special appointment or consideration at the outset of the next substantive hearing. It was not necessary for the matter to be dealt with by a High Court Judge and it should, wherever possible, be dealt with by the trial judge. Para 6.4 of the Practice Direction of 20 April 2009 should be read as if there were added at the end of the final sentence in that paragraph the words “and should do so by means of the Press Association Copy Direct service, following the procedure set out in the Official Solicitor/CAFCASS Practice Note dated 18 March 2005”.

28. In C (A Child) [2009] EWCA Civ 674 Wall LJ provided a checklist of 7 points to consider in such applications.

1) Ideally, such an application should be made in writing on notice in the normal way. 

2) The court could then, having heard all relevant submissions, make an order one way or the other. There could, however, be cases in which the question of a section 91(14) order arose either during or at the end of a hearing.  It could arise on the application of one of the parties, or on the court’s own initiative.  One or more of the parties before the court could be unrepresented. 

3) In the circumstances identified in paragraph (2), the court could make an order under section 91(14).  It was, however, of the utmost importance that the party or parties or other persons affected by the order, particularly if they are in person: (a) understood that such an application was being made, or that consideration was being given to making a section 91(14) order; (b) understood the meaning and effect of such an order; and (c) had a proper opportunity to make submissions to the court in answer to the application or to the suggestion that a section 91(14) order be made.

4) Where the parties (and in particular the person affected by the section 91(14) order) were unrepresented, it could be possible for the court to deal with the matter in argument without a formal application, although if the representative for the party affected sought a short adjournment to take instructions, such an application should normally be granted. If there was a substantive objection to the section 91(14) order, then the court should require the application to be made formally on notice in the normal way.

5) Where the party affected by a proposed section 91(14) order was in person it was particularly important that he or she (a) understood the effect of such an order; and (b) was given a proper opportunity to respond to it.  This could mean adjourning the application for it to be made in writing and on notice. 

6) Where the parties were both or all in person, there was a powerful obligation on any court minded to make a section 91(14) order to explain to them the course the court was minded to take.  This would involve the court telling the parties in ordinary language what a section 91(14) order was; and what effect it had, together with the duration of the order which the court had in mind to impose. 

7) Above all, unrepresented parties had to be given the opportunity to make any submissions they wished about the making of such an order, and if there was a substantive objection on which a litigant wished to seek legal advice the court should either normally not make an order; alternatively it could make an order and give the recipient permission to apply to set it aside within a specified time.  91(14) orders were exceptional orders.