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Children: Private Law Update (May 2012)

Alex Verdan QC of 4 Paper Buildings considers several recent important judgments covering a range of private law issues concerning children

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: 

Same Sex Parents 
A v B and C [2012] EWCA Civ 285
In this case the appellant was the biological father of the child, a 2 year old boy. The respondents were the biological mother and long term lesbian partner. The parties were all gay. The respondents decided they wanted a child and the appellant offered to father the child by artificial insemination. The mother was from a religious family, and decided to marry the appellant in order to create a conventional family. However, it was always intended that the child should live in the mother's household with her partner, and that they would be the primary carers with the father taking on a secondary role.

The parties' relationship broke down when the father sought overnight staying contact and holidays. The respondents did not agree, stating that it was not what they had agreed originally and would be an intrusion on the family unit. The father made a contact application. The respondents made an application for a residence order and specific issue order to limit the father's exercise of his parental responsibility.

The court refused to direct the instruction of independent expert evidence from Cafcass or a psychiatrist and allowed both parties to use research papers.

After a four day hearing including oral evidence from the three parties, the Circuit Judge, sitting as a judge of the High Court, decided that father's visiting contact be moderately increased. However, it was made clear that the father's role in the child's life should be secondary, and the father was not to have any staying contact for the foreseeable future, meaning at least 3 to 4 years.

The father's appeal was essentially directed to the judgment and the conclusions drawn as to the future relationship rather than to the resulting order. The father sought to attack the contact order on the basis that it did not provide for staying contact. 

In allowing the appeal the Court of Appeal held that:

The matter was remitted to a Family Division judge for consideration of all factors relevant to the welfare balance. The court is to further 'assess the immediate future in the light of the immediate past'.

The Court of Appeal specifically declined to give any distinct guidance which distinguishes these types of cases beyond the universal and overriding principle of paramountcy and welfare but provided the following key observations: 

For a more detailed an analysis of this case and lessons that can be learnt for practitioners please see Alternative Families and Children: A review of the recent case of A v B and C by Alex Verdan QC and Charles Hale.

Z (A Child)
[2002] EWHC 139 (Fam)
This case concerned an application by the mother for a residence order in respect of the parties' daughter (Z) and for permission to relocate from England to Australia.

The Belgian father did not consider that the courts of England and Wales had jurisdiction after a holiday to Belgium when the father failed to return (Z) to England. However, it was declared that the courts of England and Wales were first seised and the father did not seek to appeal this declaration.

The mother wanted to go to Australia because her family lived there, she had job offers and secured a school place for Z, and was feeling increasingly isolated in this country. She offered regular skype contact twice per week for up to two hours and direct contact under supervision in Australia and England.

The father opposed the application on the basis that he would not see enough of Z if at all, and sought a return to Belgium. The father was not present for the hearing as he was fearful of activating a passport order. He made an application for an adjournment so he could attend by video link, and for the judge to recuse herself on the basis of perceived bias and the father's impression that the court did not want 'personal contact' to occur. Pauffley J refused the father's applications.

The judge in considering Z's welfare needs had regard to the events surrounding Z's unlawful retention by the father in Belgium which involved highly stressful circumstances with the police securing a return, and decided that her needs would be best met by a residence order to the mother. The judge further considered the guidance in Payne [2001] EWCA Civ 166 and K v K [2011] EWCA Civ 793. She found the mother's motivation to be genuine, her proposals were realistic and were not driven by a desire to defeat the father's relationship with Z. It was of further importance that should the mother's application be refused the mother would be 'utterly shattered' and there would be a potential for deterioration in the mother's mental well-being.

Declaration of parentage
F (Children)
[2011] EWCA Civ 1765
This appeal concerned whether the court could defer the registration of a declaration of parentage pursuant to section 55A(7) Family Law Act 1986, notwithstanding r.8.22(2) Family Procedure Rules 2010 which requires that the Registrar General must be notified of the declaration by an officer of the court within 21 days.

In this case the biological father sought to have a declaration of parentage in respect of twins. The mother and the 'psychological' father opposed. HHJ Meston QC made the declaration of parentage but ordered that it 'would not take effect and that the Registrar General would be notified only when the children themselves know the truth.'

The father appealed on the basis that the order conflated with the question of public record registration with welfare issues. The judge had sought to reduce the risk of the children accidentally discovering the truth of their parentage. This was in direct conflict with the statutory provision at section 55A(7) FLA and r. 8.22 FPR 2010.

The mother argued that the judge below had exercised his discretion appropriately having regard to the overriding objective, and r. 4.1(3) of the then FPR 1991 (as they then were) that the court has power to extend or shorten the time for compliance with any rule, which liberated the judge from the restriction of statute that the Registrar General be notified of the declaration by the court within 21 days. Furthermore, his decision was in the interests of the children and it was within his generous ambit to make such decision.
In allowing the appeal Thorpe LJ in considering the judge's decision making said 'four months in 2010 was perhaps towards the margin of the exercise of the discretion, but four years a year later is in my view plainly wrong.' There were no public policy reasons for not making the declaration.

In dealing with judge's interpretation of the rules, Thorpe LJ said:

'Any discretion that may arise from the Rules must be exercised with an eye to the statutory context in which recourse is being had to the powers conferred under the Rules.  Here that statutory context is Part 3 of the Family Law Act 1986.  I do not see how it could be said to be consistent with that statutory context to defer notification to the Registrar General for a period such as the judge permitted here.  I would prefer in those circumstances not to express a view as to the extent, if at all, to which the general powers of the Family Procedure Rules can be used to extend the time prescribed by Rule 8.22(2) of the Family Procedure Rules for the purposes of Section 55A(5).' [27]

H (A Child) [2012] EWCA Civ 281
This case concerned a child (C) aged 3 years. The biological father, Mr W, made applications for parental responsibility and contact orders which were opposed by the mother and her husband (Mr and Mrs H). Mr H was unable to have children and it was proposed that Mr W be the couple's sperm donor. However, Mr W and Mrs H went on to form a relationship and C was conceived naturally.

Over the course of a three day hearing, having heard oral evidence, the district judge found that contact between C and Mr W would be incompatible with maintaining stability for C within the family unit with Mr and Mrs H and would inevitably cause upset. Accordingly, Mr W's applications were dismissed and a declaration of paternity under s 55A Family Law Act 1996 made instead.

Mr W appealed the decision and the circuit judge, also hearing evidence, found that the district judge's decision making process had been plainly wrong and set aside the orders. The circuit judge made orders for direct contact with Mr W and that C be joined as a party to proceedings.

Mrs W appealed. In considering the appeal, McFarlane LJ found that the district judge had failed to carry out a proper welfare investigation, placing too much weight upon the potential for instability in the family should contact be ordered. McFarlane LJ further considered that the circuit judge had been correct to allow the appeal against the decision below but had fallen into the same trap as the district judge by ordering contact without going through a full welfare evaluation process.

McFarlane LJ, in allowing the appeal and remitting the matter to be heard by a high court judge, said the following:

'The starting point for these courts is that children will normally benefit from having a full and meaningful relationship with both of their parents as they grow up. …….Whilst the original reasons that Mrs H and Mr W first talked about the conception of a child was through artificial insemination, the child was born as a result of a full relationship and there was a need for the Judge below to have approached Mr W's and C's relationship by giving that priority and then balancing it against other issues in the case.' [18]

Section 91(14) Children Act 1989
Re M (A Child)
[2012] EWCA Civ 446
This was an appeal from the making of a section 91(14) order.

This case concerned the father's applications for contact and parental responsibility orders in respect of M, an eight year old. During the course of the hearing the father 'lost his self-control and, as the judge put it in the note of the judgment we have, ranted at the injustice of the system and at the performance of the guardian.' The father then applied to withdraw his applications. The judge refused and the father left the court.

In giving judgment that judge concluded by saying:

'The father does not seek indirect contact or put forward proposals for supervised contact. I had not made up my mind about contact or about parental responsibility prior to him leaving court, and I am not inclined to make an order.

'The preamble can record what has happened and provide for indirect contact. The Mother has parental responsibility and as a basic human right the father has the right to receive some information about [M].  The ball is in mother's court as to how much information he does receive. I have not granted parental responsibility.

'Mother has suffered within the proceedings.  The view of the expert and the children's guardian is that there should be no further proceedings for a period of 2 years.  I am satisfied that the welfare of the child and the mother requires this.  The order is proportionate and justified and it is acknowledged that it is a draconian order. I make this section 91(14) for 2 years to expire on 28.02.2013.  By this time [M] will be 10½ years old.  Any application for leave is to be served on the Court and the Court is to give notice to mother.'

In allowing the appeal, Thorpe LJ concluded that the judge, when considering the child's welfare, should have given the father an opportunity to come to his senses and to adjourn the matter for 24 hours. The judge was plainly wrong to proceed to dismiss the father's applications. 'The proper course was to draw him back into the proceedings and not put a barrier on his further engagement with the system.'

Thorpe LJ made clear that there is 'abundant authority to say that the court must be cautious in making these prohibitions. They should be properly advanced by application supported by evidence, and the person who is sought to be prohibited must be given every opportunity to respond to the application.' [9]

The section 91(14) order was set aside. It was further proposed that the father give an undertaking to issue an application for contact, the treating psychologist files a supplementary report, a new guardian prepare a report and the matter be listed for directions in the father's application.

Application for permission to appeal
AV v RM [2012] EWHC 1173 (Fam)
This case concerned the parties' cross applications for residence and contact. The district judge made a shared residence order. The mother applied for permission to appeal arguing the district judge was plainly wrong, that there had been bias as the district judge had visited the mother's home during the hearing.

Moor J sought to clarify the law in relation to applications for permission to appeal.

Appeals are governed by the Family Proceedings Rules 2010, pursuant to rule 30.3(7):

(7) Permission to appeal should only be given where –

(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.

The judge's attention was drawn to the decision of Mostyn J in NLW v  ARC [2012] EWHC 55 in which he said:

'I would suggest that the concept of a real prospect of success must mean, generally speaking, that it is incumbent on an appellant to demonstrate that it is more likely than not that the appeal will be allowed at the substantive hearing.  Anything less than a fifty-fifty threshold would of course, by linguistic definition, mean that it is improbable that the appeal will be allowed and in such circumstances it would be hard to say that any appeal had a real prospect of success; rather, it could only be said as a matter of logic that it had a real prospect of failure.' [8]

Moor J made clear that judicial gloss such as this must not be placed on the words of statute or the rules. The dictum of Brooke LJ in the Court of Appeal decision of Tanfern Limited v Cameron MacDonald [2000] 1 WLR 1311 was the correct approach to adopt to permission applications:

'Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard (CPR 52.3(6)).  Lord Woolf MR has explained that the use of the word of 'real' means that the prospect of success must be realistic rather than fanciful [see Swain v Hillman The Times, 4th November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999].' [21]

The test for permission to appeal is exactly the same in the Court of Appeal and no gloss should be placed on the words of the Family Procedure Rules; ie 'real' means that the prospect of success must be realistic rather than fanciful.

Domestic violence and contact
Re W (Children)
[2012] EWCA Civ 528
This case concerned the father's application for a variation of an interim contact order for unsupervised contact. The mother opposed this, relying upon a history of domestic violence. Following a fact finding judgment where HHJ Yelton had made a number of findings of domestic violence, the mother applied for a psychological assessment of the father and a section 7 report before the court considered varying contact. The judge refused the mother's application and ordered that the father could have unsupervised contact outside the contact centre.

The mother appealed, arguing that in refusing the application:

(i) the judge did not have the necessary evidence before him to determine what was in the children's best interests;
(ii) the judge erred in not giving the mother an opportunity to explain the effect of the father's conduct on her and the children; and
(iii) the judge's approach was not in accordance with Practice Direction 12 J Family Procedure Rules ('residence and contact orders: Domestic Violence and Harm'), and the Re L (Contact: Domestic Violence) [2000] 2 FLR 334. The mother further referred the court to Re Z (Unsupervised Contact: Allegations of Domestic Violence) [2009] EWCA Civ 430.  In that case the Court of Appeal stressed that the practice direction must be followed in cases involving allegations of domestic violence;
(iv) The judgehad not weighed the seriousness of the domestic violence and the risks involved and the impact on the child against the positive factors of contact.

Specifically the judge had not considered the five factors at paragraph 17 of Practice Direction 12J:

(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;

(b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;

(c) the likely behaviour during contact of the parent seeking contact and its effect on the child;

(d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;

(e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately.

Although the Court of Appeal found that a judge is not required slavishly to recite the authorities and practice directions, it emphasised that the court must bear them in mind and apply them correctly when reaching a decision. The factors at PD 12J should be considered in every case where a finding of domestic violence is made.

Black LJ found that the judge's approach had not been sufficient and he had not properly considered the factors at PD 12J as a result of the following: