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Children: Private Law Update (May 2011)

Alex Verdan QC of 4 Paper Buildings reviews recent judgments and rule changes relating to private law children proceedings

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings


In this review I will focus on recent material covering the following topics: 

Internal removal

Re R (Children) (2011)
Application to appeal against a Circuit Judge's decision to refuse the father's appeal against an interim residence order in favour of the mother. 

The case involved a seven year old child who had been living with his father and one of his brothers since 2009. In September 2010 the mother, without the father's consent, picked the child up from school and took him to live in another county. The father made an application in the form of a C100 for the child's return which was listed for a hearing the following week. In view of the mother's removal the father's solicitors asked for the 15 minute time estimate to be extended but there was no response to their request. At the hearing the mother successfully applied for the proceedings to be transferred to her new local family proceedings court. The father subsequently made a C2 application for interim residence and return of the child to the father's home. The matter was heard on 26th November with evidence from both parties and the Justices rejected the father's C2 application. The father appealed to the county court where his appeal was refused but the court retained the proceedings and listed the matter for a 3 day final hearing in May 2011, including the father's C100 application.

Although the appeal was dismissed, the Court of Appeal provided guidance in situations where there had been a seemingly unlawful removal from a child's place of residence: 

The three lessons to be learnt from such cases were:

  1. The seemingly unlawful removal of a child ordinarily called for a peremptory order for his return; 
  2. Any application had to be made at once, to any court that had 24 hour service or at least a judge available every court day for an immediate order without notice, or for an inter partes hearing days thereafter; 
  3. When no such application was issued and the court was not engaged for a peremptory return order and weeks were allowed to pass before judicial determination, then the ordinary rule was unlikely to be applicable.

Leave to Remove
W (Children)
[2011[ EWCA Civ 345
Successful appeal brought by a mother against a refusal of permission to relocate with two children aged 12 and 8 to Australia.

The parties had not been married or lived together as a couple. The children had been in the mother's sole care for the majority of their lives and the father had not had regular contact despite living close by to the mother and children. He had never applied for a contact order or indeed sought to obtain parental responsibility for the children. A Cafcass report was undertaken which reported that the relocation was in line with the children's wishes and should be permitted. The judge at first instance found that the move to Australia to be near the mother's family was well thought out and well intentioned and that the refusal of permission to relocate would be devastating to the mother. However, the judge also found that the children's relationships with their father needed to continue to grow and develop (a process which had begun during the proceedings by way of interim orders) and therefore refused the mother's application for permission to relocate.

The President found that the judge had erred such that his conclusion was plainly wrong. The judge had failed specifically to consider the criteria as set out by Dame Butler-Sloss in Payne v Payne; in particular he had failed to give sufficient weight to how the mother's devastation at permission being refused would affect the children and failed to consider the loss to the children of close relationships with their extended maternal family in Australia.

The President took this opportunity to clarify some of his previous comments in the case of Re D (Children) which had been seen as clear criticism of Payne v Payne:

'I fear that too much weight may have been given to words of mine spoken in a judgment which I have in an application to this court for permission to appeal a relocation case. Whilst I do not resile from most of what I said, I am of the clear view that undue prominence has been accorded to Re D, in which I refused a litigant in person permission to appeal against a relocation order, and in which I went out of my way to explain in detail to him why, in my judgment, his application had to be refused.. During the course of my judgment, I said: -
"2 There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent."
129. Wilson LJ in Re H (A Child) [2010] EWCA Civ 915 rightly criticises my use of the word "ignores", which I retract. It further occurs to me that unless and until we have the research identified by Professor Freeman, and unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Payne v Payne. The judge in the instant case rightly recognised that he had to follow Payne v. Payne. In my judgement, however, he failed to do so.'

The case was sensationally reported in the Daily Mail under the headline 'Let them use Skype! Judge sends children to Australia and tells Father to talk to them via skype.' Although this summary of the appeal is clearly unhelpful it should be noted that the President did think it significant that the judge had completely failed to consider how orders for indirect contact via skype, telephone and letter writing may have affected the balancing exercise to be undertaken.

S (Children) [2011] Civ 454
A mother's successful appeal against the granting of the father's application to relocate to Canada with the parties' son aged 12.

The father in this case was Canadian and the Mother was a UK citizen. The parties met and married in Canada but had lived in the UK since 1996. There were two children of the family, B aged 16 and C aged 12. The parties separated in 2006 and thereafter the children lived with the mother with contact to the father. The mother made an application for residence in 2010 in response to learning of the father's intention to apply to relocate with the boys and was granted residence.

The judge heard from the children in a number of ways. A Cafcass report was undertaken in which it was made clear that B wished to go to Canada and it was reported that C also appeared to want to go. Both children sent a letter to the judge expressing their wish to move to Canada and B spoke to the judge on the day of the hearing to communicate similar views. The parties and Cafcass both advocated that whatever decision was made by the judge it should be a unitary decision in that the children should remain together. The father's permission to relocate was granted. B left for Canada soon after and started living with the paternal aunt but the father and C remained in England as the father had not yet managed to let his property and remained working in the UK. The mother appealed in respect of C.

The Court of Appeal expressed sympathy with the approach of the court below but found that in view of the differences between the children (their ages, stage of development and the nature of their needs) the unitary approach adopted had in fact resulted in C's best interests being inimically subordinated to the wishes and perceived needs of B.

In the Court of Appeal's opinion the application to relocate was a 'lifestyle choice' case as the status quo in England was entirely satisfactory from the point of view of the children's current welfare. Unlike many other relocation cases where the primary carer had compelling reasons in relation to health, happiness or employment to move abroad, the father in this case was successfully and gainfully employed in England. The father's reasons for relocating with the children were neither developed nor compelling and the children's education in England was proceeding very well.

C was still at a tender age and was in secure surroundings from which there was no compelling reason to uproot him. Thus the Court of Appeal held that the 'top down' approach to the balancing exercise which had been conducted at first instance was plainly wrong. The Court of Appeal held that had the judge separately considered the individual interests of both children he would have been driven to the conclusion that the application should have been refused. In any event the appeal related only to C as B had already moved to Canada and the appeal was therefore allowed in respect of C.

Section 91(14) Orders
Re T (A Child- murdered parent)
(2011) EWHC

Application for contact by a father who had murdered the child's mother.
The father applied for a contact order in respect of T who was eight years old. T had lived with her maternal aunt since she was three having been placed there by the local authority under a special guardianship order following her mother's murder. The father had been convicted of manslaughter on the grounds of diminished responsibility having been diagnosed with paranoid schizophrenia. He was made subject to orders under the Mental Health Act 2003 and was detained in hospital. The father subsequently successfully applied to a mental health tribunal to be released from hospital in 2009. It was of note that the tribunal had been impressed by the father's expression of remorse about the maternal family and his intention not to seek contact with T for 3-5 years. He was released with conditions that he should not contact any of the maternal family or T and should not go within an exclusion zone of the maternal aunt's home.

B accepted during the hearing that there should be no indirect contact and accepted the opinion of the NYAS guardian that there should be a 91(14) order until T was 13. The maternal aunt sought an order that the 91(14) order last until T was 16.

The judge confirmed that despite the gravity of the facts of this case there was no presumption that when one parent murders another the offending parent has to surmount a prima facie barrier of no contact. However the judge questioned whether the father had sufficient insight into the affects of his actions on the maternal family especially when he had brought proceedings so soon after he was discharged from hospital. Further the father admitted that since his release he had smoked cannabis on a number of occasions despite its link to his previous schizophrenic symptoms. The judge ordered that there should be no contact of any kind between the father and T and that a 91(14) order would be made to last until T reached the age of 16.

The judge was also extremely concerned about the safety of the maternal aunt as he noted that the only sanction for a breach of the father's discharge conditions was a discretionary recall to hospital. The judge therefore made a non molestation order. He wished to include an exclusion element to the order but as the maternal aunt would not be an 'entitled applicant' for the purposes of an occupation order the judge deemed that the act of coming within a defined radius of the property could come within the definition of 'molestation.'

Family Procedure Rules 2010

In most areas of private law the new rules act as a consolidation and reshaping of the present rules however a number of points are worth noting:

  1. The overriding objective: This may be particularly relevant to many private law cases where the issues are narrow. The court must 'deal with the case in ways which are proportionate to the nature, importance and complexity of the issues' and allot to the case 'an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.' The court must also try to save expense where possible. 
  2. Appointment of a guardian in private law cases: broad test can be found in rule 16.2. Essentially a guardian can be appointed if it in the best interests of the child to do so. This test largely reflects the President's practice direction of 5th April 2004. The new rules do however distinguish between the contrasting powers and duties of a children's guardian appointed in public law proceedings and those in private law proceedings. The powers and duties of a guardian in private law proceedings can be found in chapter 7, rr 16.22 to 16.28 and PD16A, Part 4. 
  3. Enforcement of orders: the rules in relation to the enforcement of orders and the remedies available have been streamlined, including the 'pay up' summons. These rules can be found at Part 33.

For a more detailed article on the effect of the Family Procedure Rules in relation to children proceedings, see Family Procedure Rules 2010: A Guide to Private and Public Law Family Proceedings concerning Children, by Clive Redley. Alternatively, if you are a CPD subscriber, listen to David Salter's podcast.