Law - Introduction to Children's Act 1989

An Introduction to Private Law Children Cases Janet Bazley23 January 2003Continuing Professional Development LectureAN INTRODUCTION TO PRIVATE LAW CHILDREN CASES[Please note that this seminar does not cover applications under Schedule 1 of the Children Act]. GENERAL PRINCIPLES UNDER THE CHILDREN ACT 1989s. 1(1) - The welfare principle (sometimes known as the "welfare test")In deciding any question with respect to the upbringing of a child (administration of its property or the income arising out of it) the child's welfare shall be the paramount consideration.The welfare checklist - s.1(3) and (4)If the court is considering whether to make, vary or discharge a section 8 order and the making, variation or discharge of the order is opposed by any party to the proceedings or the court is considering whether to make, vary or discharge an order under Part IV, the court shall have regard in particular to:- (see s.1(3))(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)(b) his physical, emotional and educational needs;(c) the
likely effect on him of any change in his circumstances;(d) his age, sex, background and any characteristics of his which the court considers relevant;(e) any harm which he has suffered or is at risk of suffering;(f) how capable each of his parents is of meeting his needs;(g) the range of powers available to the court under this Act in the proceedings in question.The "no order" principle - s. 1(5) -The court shall not make an order under the Act unless it considers that doing so would be better for the child than making no order at all.Delay - s. 1(2) -In any proceedings in which any question with respect to the upbringing of a child arises, the
court shall have regard to the general principle that any delay in determining the question is likely to prejudice the child.Definitions - See Section 105 Procedure for applying for orders under the Children Act:-See the Family Proceedings Rules 1991 (only a brief summary is given here)Rule 4.3 - Application for leave to commence proceedingsNote that a child's application
for leave should be made in the High Court, even if the proceedings are being or would be heard in a lower court. Rule 4.4 - Application 1. File the documents referred to in 4.4(1A) - Forms C1- C4 or C51 and such of the supplemental Forms C10 or, where appropriate, a statement in writing of the order sought. Where the application relates to more than one child, include
all the children in one application.2. Serve the application and a form C6A on the relevant persons (see Appendix 3 to the rules)3. Upon receiving the documents filed, the proper officer shall:-(a) fix the date for a hearing or directions appointment, allowing time for service(b) endorse the date fixed(c) return to the applicant forthwith the relevant formsApplications not on notice (formerly ex parte)Rule 4.4 (4) provides that an application for(a) a section 8 order(b) an emergency protection order (c) a warrant under s.48(9)(d) a recovery order(e) a warrant under s.102(1)may be made not on notice.The applicant must file the application in the form in Appendix 1 to the Rules -(a) within 24 where the application is made by telephone;(b) in any other case, at the time the application was made andin the case of an application for a s.8 order or an emergency protection order, serve a copy of the application on each
respondent within 48 hours of the making of the order.

If the court declines to make the order not on notice, it may direct that it be made on notice. For guidance as to the making of not-on-notice orders, see:-Re J (Children) (Ex parte orders) [1997] 1FLR 606 andRe S (a child) (Family Division: without notice orders) [2000] 1FLR 308Human Rights Act 1998 and the European Convention

Be aware of Article 6 - right to a fair hearing and Article 8 - the right to family life. Bear in mind that the Children Act was drafted with an eye to the Convention and the Courts do not favour the wholesale quotation of European authorities.The right to a fair hearing is an absolute
right:-Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 - a care case but Munby J held that the right to a fair hearing is not confined to the judicial part of the proceedings but to all stages of the litigation.It is European law that restrictions may be placed on the right of the
parent to family life with the child where the interests of the child require it1. Similarly, where there is a conflict between the child's right
to family life and that of the parent, the rights of the child are the
paramount consideration:-Yousef -v- Netherlands [2003] 1 FLR 210 See also
Hoppe -v- Germany [2003] 1 FCR 176.Be aware of and follow the Practice
Direction at [2000] 2 FLR 429 on citation of authorities.Practice, Practice
Directions etc.1. Generally - be aware of and, where possible follow, the
Best Practice Guidance in Children Act cases of June 1997 (reproduced in
most of the text books).Note that the court in family proceedings closely
controls the management of cases, through directions hearings, control of
instruction of experts and the filing of evidencegenerally. There is also
control of court bundles.2. Court documents - be aware of the Presidents
Direction as to documents to be filed in advance of the hearing. See
Practice Direction on Case Management [1995] 1 FLR 456 and the Presidents
Direction of 10 March 2000 [2000] 1 FLR 429 (replacing paras 5 and 8 of the
Case Management Practice Direction). If your case has been commenced or is
transferred to the High Court, the President's Direction of 22nd March 2002
applies1. This provides for the allocation of the case to one judge of the
Division and regulates the management of the case generally. Be familiar
with the requirements of this Direction.3. Experts - there are clear
rules regarding the instruction of experts. Experts must be independent of
the parties and should generally be jointly instructed, with one solicitor
as lead in the instruction (almost always the Guardian's solicitor in care
cases or where a Guardian has (unusually) been appointed in private law
proceedings.Care must be taken as to the choice of expert. Find out before
you go to court which expert (if any) your solicitor would like to instruct
and make sure you have copies of the experts CV and dates of availability.
The court will make directions as to who is to be instructed, whether there
is to be leave to see/examine the child and as to timetabling. For guidance
as to the instruction of experts, experts meetings/discussions see:-Re G
(Minors) (Expert Witnesses) [1994] FLR 291Re CS (Expert Witnesses) [1996] 2
FLR 115Re C (Expert evidence: Disclosure: Practice) [1995] 1 FLR 204Re CB
and JB (Care Proceedings: Guidelines) [1998] FLR 211Re R(Care: Disclosure:
Nature of Proceedings) [2002] 2 FLR 211Re L (Care: Assessment: Fair Trial)
[2002] 2 FLR 730For a caution as to the care which needs to be taken with
whom to instruct:Re X (Non-Accidental Injury: Expert Evidence) [2001] 2 FLR
90Which court/level of judiciary?The Children (Allocation of Proceedings)
Order 1991 regulates where proceedings may be commenced and deals with
transfer between courts. The Family Proceedings (Allocation to Judiciary
Amendment) Directions 20022 allocates proceedings as between district
judges, circuit judges and High Court judges.Consideration of the transfer
or allocation of the proceedings must be done as early as possible to avoid
delay in timetabling.As regards transfer from the Family Proceedings Court,
the criteria in Article 7 of the Children (Allocation of Proceedings) order
apply. The case may be transferred to link with proceedings in another
court or if transfer will otherwise mean a quicker hearing. Usually,
however, the application is made on the basis that the proceedings are
"exceptionally grave important or complex" and regard is had to:-(a) whether
there is complicated or conflicting evidence about risk to the child's
physical or moral well-being or about other matters relating to the welfare
of the child;(b) the number of parties;(c) conflict with the law of another
jurisdiction(d) some novel or difficult point of law(e) some question of
general public interest.Refusal to transfer and transfer between county
courtsIf the FPC refuses a transfer, application may be made to a care
centre/divorce county court for an order transferring the proceedings to
itself.The county court will consider the checklist in Article 7 (above) and
may, at the same time, transfer the proceedings to the High Court (under
Article 12).See Article 10 for transfer between county courts.Transfer back
to the FPCUnder Article 11(2) Children (Allocation of Proceedings) Order,
the county court has the power to transfer private law proceedings back to
the magistrate's court. Appeal against this decision is to a judge of the
Family Division or, where the order was made by a district judge or a deputy
district judge or the Principal Registry, when the appeal is to the circuit
judge.Some authorities on transferC -v- Sollihull MBC [1993] 1 FLR 290 (also
useful on delay)L -v- Berkshire CC [1992] 1 FCR 481R -v- South East
Hampshire FPC ex parte D [1994] 1 WLR 611Re A & D (NAI: Subdural haematoma)
[2002] 1 FLR 337RESTRICTION ON FULL HEARINGSIssue estoppel has limited
application in children cases. However, the court may take into account
findings of fact made in the past. In deciding whether (and to what extent)
to do so, the court has an "entirely free hand"Re S, S and A (care
proceedings: issue estoppel) [1995] 2 FLR 244Re S (discharge of care order)
[1995] 2 FLR 639Re B (Children Act proceedings) (issue estoppel) [1997] 1
FLR 285Discretion as to conduct of proceedingsThe court has a wide
discretion as to how to conduct family proceedings. The judge is not
obliged to hold a full hearing but may restrict the evidence and limit the
scope of the proceedings:-Cheshire County Council -v- M [1993] 1 FLR 463W
-v- Ealing LBC [1993] 2 FLR 788Re N [1994] 2 FLR 992Re B (minors: contact)
[1994] 2 FLR 1Re CB and JB [1998] 2 FLR 211s. 91(14) ordersThe section
applies to both private and public family law proceedings and permits the
court, when dealing with any application for an order under the Children Act
1989, to restrain future applications without leave of the court.The power
to make such order should be used sparingly and the order should usually
only be made on notice, although the court may, in an exceptional case, make
it without notice or even without application.Before making the order, the
court must be satisfied that the welfare of the child requires a restriction
on applications by the parent in question. It is usually only made where
there have been repeated applications with little or no merit but, where
there is cogent evidence that the child's welfare would be greatly adversely
affected by a future application, the order may be made.A s.91(14) order
should normally be limited in time.See especially:-B -v- B [1997] 1 FLR 139,
where Waite LJ said that s.91(14 should be read in conjunction with S.1.(1),
which made the child's welfare the paramount consideration. He said:-"The
judge must, therefore ask him or herself in every case whether the best
interests of the child require interference with the fundamental freedom of
a parent to raise issues affecting the child's welfare before the court as
and when such issues arise".Re P (Section 91(14) Guidelines) [1999] 2 FLR
573 Butler-Sloss LJ (as she was then) reviewed the case law and extracted
guidelines:-(a) s.91(14)is to be read in conjunction with s.1(1);(b) all
relevant circumstances must be taken into account in considering whether to
exercise the discretion;(c) any exercise of the s.91(14) jurisdiction is a
statutory interference with a person's right to access to the court.
However, the section is HRA compliant since it does not bar access to the
court but merely controls it.(d) the exercise of s.91(14) requires great
care and is to be considered the exception rather than the rule;(e)
generally the making of a s.91(14) order is a weapon of last resort in cases
of repeated unreasonable application;(f) there may be cases where there is
no history of repeated applications but the child's welfare makes the order
necessary;(g) a further check is to consider whether there is a serious
risk that the child or his primary carer will be subject to unacceptable
strain if the order is not made;(h) the order may be made without formal
application or of the court's own motion provided the court is considering
an application by one of the parties for an order under the Act1;(i) the
order may be with or without time limit;(j) the order should specify the
type of application being restrained and be no wider than necessary;(k)
without notice orders should only be made in very exceptional
circumstances.See also:-Re M (Section 91(14) Order) [1999] 2 FLR 553Re C
(Prohibition of Further Applications) [2002] EWCA Civ 292 - wrong in
principle, except in exceptional circumstances, to place a litigant in
person in the position at short notice of confronting a s.91(14) order that
barred him from dealing with any aspect of the case relating to his
children, particularly contact.Appeals in children cases.Generally as of
right from a decision of the magistrate's court to make or refuse to make an
order - s. 94 Children Act See Rule 4.22 FPR 1991 for the procedure for
appeals either to the High Court under s. 94 or from any decision of a
district judge to the judge of the court in which the decision was made.
Appeals from the county court or High Court to the Court of appeal (in
respect of orders made after 2nd May 2000) are governed by CPR 1998, Part 52
and PD 52Permission to appeal, where required, must be obtained either from
the court at which the decision is made or the Court of Appeal (CPR, Pr
52.3(2))Although an application for permission to appeal may be made to the
appeal court even if no oral application has been made to the lower court
(CPR Pt 52 para 4.7) permission should be sought at the end of the hearing
if it is thought that a decision may be taken to appealThe original court
will almost always refuse permission:-Re F (Minors) (Contact: Appeal) [1997]
1 FCR 523Time limitsThe time for filing of the appellant's notice is 14 days
after the date of the decision appealed against, unless a longer period is
ordered by the lower court (CPR 1998 Pt 52.1(3) and 52.4(2). The appeal
notice should be served within 7 days of the date on which it was filed (Pt
52.6 and PD 52, paras 5.2 to 5.4).Stay, documents for the appeal, service of
documents and skeleton argumentsAll covered by CPR Part 52 and PD52There is
no appeal - (a) where permission has not been granted(b) against the
granting of permission to appeal(c) against the granting of an extension of
time for appealing(d) from the grant or refusal of an emergency protection
order(e) from the decision of magistrates to decline jurisdiction(f) from
the decision not to interview a child in private(g) from an order
transferring or refusing to transfer proceedings, except as provided for in
the rules.Note that appeals against interim orders are difficult and
generally discouraged. Further, it is difficult to appeal a decision to
refuse or grant an adjournment.Appeals to resolve a dispute or issue of law
as to which the parties have no real concern are likely to be regarded as an
abuse of the process and the lawyers involved may be the subject of wasted
costs ordersRe C (abused children: orders) [1992] 1 FCR S -v- S (abuse of
process of appeal) [1994] 2 FCR 941Re N (Residence: Hopeless Appeals) [1995]
2 FLR 230AppealWhere it is said that the trial judge erred in law or in the
exercise of his discretion, the proper course is to appeal.If it is said
both that an error occurred and that fresh evidence has come to light which
undermines the basis for the decision, the proper course is to appeal and to
seek to adduce the fresh evidence.The appeal is technically a rehearing.
However, only exceptionally is any oral evidence allowed.Test on an
appeal:-G -v- G [1985] FLR 894The Court of Appeal will not overturn a
decision because it would have come to a different conclusion on the
evidence available below. It must be satisfied that:(a) the judge erred as
a matter of law(b) the judge took into account evidence which he should have
ignored, or ignored evidence which he should have taken into account(c) the
decision is "plainly wrong"The Court of Appeal will have in mind that there
is often no "right" answer in children's cases.Note that a judge is obliged
to give reasons for his decision, particularly if rejecting expert evidence
or the recommendation of the CAFCASS officer. Failure to do so may result
in a successful appealRehearingIf it is not contended that the judge erred
on the evidence available to him but that important evidence has come to
light, which undermines the basis for the decision, an application for a
rehearing should be made to the trial judge. Such an application should be
made on notice not more than 14 days after the date of the trial.See CPR
1998, schedule 2Discharge/variationSuch an application may be made where the
circumstances have materially changed since the making of the original
order.PARENTAL RESPONSIBILITY ("PR")Meaning - s.3 Children Act 1989By s.3(1)
- All the rights, duties, powers, responsibilities and authority which by
law a parent of a child has in relation to the child and his property .Also
by s.3(2) - the rights, powers and duties which a guardian of the child's
estate would have had in relation to the child's property.By s.1(4) - the
fact that a person has, or does not have, parental responsibility for a
child shall not affect:-(a) any obligation which he may have in relation to
the child or(b) any rights which, in the event of the child's death, he may
have in relation to the child's property.By s.1(5) A person who -(a) does
not have parental responsibility for a particular child but(b) has the care
of the child, may (subject to the provision of the Act) do what is
reasonable in all the circumstances for the purpose of safeguarding or
promoting the child's welfare.Position of motherThe concept of pr does not
apply to a child in utero: Re F [1988] 2 FLR 307The mother automatically has
pr on the birth of the child. There is therefore no provision for a mother
to apply.The mother's pr will continue unless specifically terminated by
order of the court (such as an order freeing the child for adoption or on
the making of an adoption order). In the event that a mother loses pr, she
may reacquire it by obtaining:-(a) an order under the inherent
jurisdiction revoking the freeing order;(b) an order setting aside the
adoption order(c) an adoption order in respect of the child(d) a
residence order pursuant to s.8 Children Act 1989Position of the
fatherDepends upon whether he was married to the child's mother at the time
of the birth.A married father acquires pr on the child's birth.In the case
of a father who was not married to the child's mother at the date of the
birth, see -s.4(1) -(a) the court may, on the application of the father1,
order that he shall have pr for the child;(b) the father and mother may by
agreement ("a parental responsibility agreement") provide for the father to
have pr for the child.s.4(2) - the pr agreement must be in the prescribed
form - courts have these.s.4(3) - provides that the father's pr (whether
pursuant to an order or an agreement) may only be brought to an end by an
order of the court made on the application of:-(a) any person who has pr(b)
with the leave of the court, the child himself, such leave to be granted
only if the court is satisfied that the child has sufficient understanding
to make the application (see s. 4(4))Note that a father's pr may not be
determined whilst he has a residence order in respect of the child (s.4(3)
and s.12(4)). A father's pr will come to an end if the child is freed for
adoption or adopted or if the child's welfare requires it. Instances
include conviction and imprisonment for sexual abuse and killing the mother
in the presence of the children.Parents may enter into a parental
responsibility agreement in respect of a child in care:-Re X (Parental
Responsibility Agreement: Child in care) [2000] 1 FLR 517The Adoption and
Children Act 2002 will provide that an unmarried father will acquire pr if
he is named as father on the child's birth certificate. Position of others
-A person in whose favour a residence order pursuant to s.8 Children Act is
made automatically acquires pr1. A shared residence order is sometimes
used to confer pr on a person who would not otherwise have parental
responsibility:-G -v- F [1998] 2 FLR 700 was a case where a child had been
born to a lesbian couple as a result of one of them being artificially
inseminated. They had jointly cared for the child but had separated.
Bracewell J. granted permission for the "absent" partner to apply for a
shared residence order as she had played and continued to play an important
role in the life of the child. Re D (Parental Responsibility: IVF Baby)
[2001] 1 FLR 972 concerned a man and woman who, after a relationship lasting
several years sought IVF treatment. They presented themselves as a stable
couple and signed the consent form, which acknowledged that the man would be
the legal father of any resulting child. The treatment, using sperm from an
anonymous donor, was unsuccessful. The couple separated and the woman, who
had commenced a new relationship, resumed treatment, without informing the
clinic of her change of partner. Treatment, using anonymous donor sperm,
resulted in a live birth. The original partner, who had signed the consent
forms, applied for parental responsibility and contact, relying on his
status, under the Human Fertilisation and Embryology Act 1990, s.28(3)2.
The judge assumed jurisdiction on the basis that the parties agreed that the
man should be treated as the father. He ruled in favour of indirect
contact, indicating that it would probably not be appropriate to make a
direct contact order until the child was about three years old. The
application for parental responsibility was adjourned generally on terms
that any application by the mother to adopt the child would reinstate it.
The applicant "father" appealed on the basis that he should be granted pr
(and direct contact) immediately. He was refused permission. In relation
to pr, the Court of Appeal said that, applying the ordinary tests in
relation to parental responsibility, this was a father who had demonstrated
potential commitment and had genuine motives, but who had not had an
opportunity to know the child. It was proper, in the circumstances to defer
his application to see if commitment was maintained. Further, the judge had
taken steps to prevent the mother from making applications which might
adversely affect the father's position.Once pr is acquired, it continues
unless specifically terminated3.Determination of pr applicationsThe court
will consider:-(a) the degree of commitment shown by the father to the
child(b) the degree of attachment between the father and the child(c) the
reasons why the father is making the application(d) all the relevant
circumstances.The court will also apply the welfare checklist in s1.3 of the
ActSee:-Re RH (Parental responsibility) [1998] 1 FLR 855Re S (Parental
responsibility) [1995] 2 FLR 648Use of pr -Must not be unilateral. For
example, a person with pr must not decide to change a child's school without
consulting any other person with pr1.A parent must not change a child's
surname without the consent of the other parent or the leave of the
court2.SECTION 8 ORDERS1. Types of order availables.8(1) Children Act
1989 provides that there are four different orders available:-(a) "a contact
order" - an order requiring the person with whom a child lives or is to
live, to allow the child to visit or stay with the person named in the
order, or for that person and the child otherwise to have contact with each
other;(b) "a prohibited steps order" - an order that no step which could be
taken by a parent in meeting his parental responsibility for a child, and
which is of a kind specified in the order, shall be taken by any person
without the consent of the court;(c) "a residence order" - an order
settling the arrangements to be made as to the person with whom a child is
to live; and(d) "a specific issue order" - means an order giving directions
for the purpose of determining a specific question which has arisen, or
which may arise, in connection with any aspect of parental responsibility
for a child.2. Who may apply?An application may be made either as of
right or with the leave of the court. A section 8 order may also be made of
the court's own motion. See s.10(1) for the court's power to make s.8
orders.Applications without leaves.10(4) provides that a parent or guardian
of the child and any person in whose favour a residence order is in force
has the right to apply for a Section 8 order.s.10(5) adds to the category of
those entitled to apply:-(a) any party to a marriage(whether or not
subsisting) in relation to whom the child is a child of the family;(b) any
person with whom the child has lived for a period of at least three
years;(c) any person who -(i) in any case where a residence order is in
force with respect to the child, has the consent of each of the persons in
whose favour the order was made;(ii) in any case where the child is in the
care of the local authority, has the consent of that authority; or(iii) in
any other case, has the consent of each of those (if any) who have parental
responsibility for he child.s. 10(6) provides that a person who would not
otherwise be entitled under sub-sections (4) or (5) to apply, may apply for
the variation or discharge of a Section 8 order if -(a) the order was made
on his application; or(b) in the case of a contact order, he is named in the
order.Applications with leaveOthers may apply with leave:-Persons other than
the child concerned (including a child applicant who is not the child who is
to be the subject of the order):-s. 10(8) provides that, where the person
applying for leave to make a section 8 application is not the child
concerned, the court shall, in deciding whether or not to grant leave, have
particular regard to -(a) the nature of the proposed application for the
section 8 order;(b) the applicant's connection with the child;(c) any risk
there might be of that proposed application disrupting the child's life (d)
to such an extent that he would be harmed by it; and(e) where the child is
being looked after by a local authority -(i) the authority's plan's for
the child's future; (ii) the wishes and feelings of the child's
parents.Note that applications for contact orders in respect of children who
have been adopted will be subject to special considerations:-Re E (Adopted
Child: Contact:Leave) [1995] 1 FLR 57Re S (Contact Application:Sibling)
[1998] 2FLR897Authorities - Re A (Residence orders; Leave to Apply) [1992]
Fam 182; [1992] 3 All ER 872Re M (Grandmother's application for leave)[1995]
2 FLR 86Re W (Contact Application: Procedure) [2000] 1 FLR 263Especially: Re
J (Leave to issue application for residence order) [2003] 1 FLR 114 The
child as applicant -s10(8) provides that, before granting permission, the
court must be satisfied that the child has sufficient understanding to make
the proposed application. The child must be considered to be able to
understand the issues in the proceedings and give instructions - sometimes
known as "Gillick competent". The person who has to make the initial
judgment is usually the solicitor whom the child wishes to instruct. The
view of an experienced solicitor, who is a member of the Children's panel,
will carry considerable weight. However, the fact that a child has
sufficient understanding does not always mean that the application will be
granted; the court has a discretion.Note that the criteria under s.10(9) do
not apply to an application by the child himself.Although there has been
some variance in the authorities, it seems that the child's welfare is
paramount in reaching a decision.Authorities:-Gillick -v- West Norfolk &
Wisbech Area Health Authority [1986] AC 112Re A (A minor) (Residence
Application: leave to apply) [1993] 1 FLR 425Re H (Residence: Child's
Application for Leave) [2000]1 FLR 780.Consideration may have to be given
for the representation of a child by a guardian:-A -v- A (Contact:
Representation of Child's Interests) [2001] 1 FLR 715General principles in
determining s. 8 applications - s.11 -(a) Timetabling. s. 11(1) The court
shall:-(a) draw up a timetable with a view to determining the question
without delay and(b) give such directions as it considers appropriate for
the purpose of ensuring, so far as is reasonably practicable, that the
timetable is adhered to.(b) Provisions to prevent delay. s.1(2) - Rules
of the court may -(a) specify periods within which specified steps must be
taken;(b) make other provision for the purpose of ensuring, so far as is
reasonably practicable, that such questions are determined without delay.(c)
"Interim" orders1. s.11(3) - Where the court has power to make a s.8
order, it may do so at any time during the proceedings, even though it is
not in a position to finally dispose of the proceedings(d) Joint/shared
residence. S.11(4) - the court may specify the periods during which the
child is to live in the different households concerned.(e) Resumption of
cohabitation - s.11(5 ) and 11(6) -A residence (11(5)) and a contact order
(s.11(6)) cease to have effect if the parents live together for a continuous
period of six months.(f) Directions and conditions - s. 11(7) -A section 8
order may contain directions as to how it is to be carried into effect.
Further, it may impose conditions, which must be complied with by the person
in whose favour the order was made, a parent, a person with pr who is not a
parent or a person with whom the child is living.Restrictions on making s.8
ordersA s.8 order should not:-(a) be made in respect of a child who is 16
or over(b) be expressed to continue beyond the child's sixteenth birthday
(except in exceptional circumstances);(c) be made where a care order is in
place or to be made (not so with a supervision order). (d) be made in
favour of a local authority.Use of Child and Family Court Reporter and
Reports under s.7 and s.37Under s.7, a Cafcass officer is generally directed
to investigate and report to the court on issues of residence and contact
and in difficult applications for specific issue orders or prohibited steps
orders (such as change of name, permanent removal from the jurisdiction).The
Cafcass officer should see the child with each parent in that parent's
environment.The report may contain hearsay evidence but, if so, the source
of the evidence must be clearly spelt out. The report often annexes a
school report on each child.The commissioning of a welfare report usually
involves a delay of about 16 weeks. The court will consider the impact of
any delay and may proceed without a report.Although the report should always
be taken into account, the ultimate decision as to what should happen in the
case rests with the judge, who may reject the recommendation in the report.
A judge should give reasons for so doing:-S -v- Oxfordshire County Council
[1993] 1 FLR 452Re W (Residence) [1999] 2 FLR 390s.7 also provides that the
court may ask a local authority to prepare the report. s.37 if the court
considers that a care or supervision order may be necessary, it may direct
that a report under s.37 be prepared by a local authority.ConciliationIn the
Principal Registry of the Family Division, applications for residence and
contact must be referred for conciliation. Applications for specific issue
and prohibited steps orders may be referred for conciliation at the request
of the applicant.Conciliation takes place before a district judge with a
Cafcass officer present. The parties have an opportunity to attempt to
reach an agreement with the help of the Cafcass officer. A consent order
may be made if agreement is reached.In other courts, there is often access
to conciliation facilities and the court should consider whether
conciliation would be an appropriate course.Because the case may (or will)
be referred for conciliation, no statements should be filed until the court
has made the appropriate direction.CONTACT ORDERSApproach - there is a
strong presumption in favour of contact.The court will make a contact order
in favour of the "absent" parent unless it is demonstrated that to do so
would be contrary to the child's welfare:-Re H (Minors: Access) [1992] 1
FLR 148 All applications are subject to the welfare principle and the
welfare checklist.Hostility to contactThe court has to consider the reasons
for the hostility and how it should be dealt with. One issue is whether the
hostility is "implacable":-Re D (Contact: Reasons for Refusal) [1997] 2 FLR
48In Re P (Contact: Discretion) [1998] 2 FLR 696 Wilson J. outlined three
ways in which hostility to contact might arise and how it should be dealt
with:-(a) where there are no rational grounds - the court should only
refuse contact where there is a risk of emotional harm to the child(b)
where the grounds are insufficient to displace the presumption in favour of
contact - contact should be ordered.(c) where the arguments are rational
but not decisiveBut see below - it is now recognised that a mother's
hostility to contact may arise because of violence by the father. See below
for approach in such circumstances.See also:-Re D (Contact: Mother's
hostility) [1993] 2 FLR 1Re C & V (Contact: Parental Responsibility) [1998]
1 FLR 392Re P (Minors) (Contact: Discretion) [1998] 2 LFLR 696Re K
(Residence Order: securing contact) [1999] 1 FLR 583Re K (Contact) (Mother's
Anxiety) [1999] 2 FLR 703A -v- N (Committal: Refusal of Contact) [1997] 1
FLR 533Contact and domestic violenceWhere there are allegations of domestic
violence, the court must look at the conduct of each party towards the other
and towards the children, the effect of the violence on both the resident
parent and the children and the motivation of the party seeking
contact.Where there are allegations of serious domestic violence, the court
is most unlikely to make an interim order for direct contact. The
allegations will need to be investigated first and findings made.There is no
presumption that findings of domestic violence against the applicant parent
will result in no contact. The court will assess the violence in the
context of s.1(3) and weigh the risks involved and the impact of contact on
the resident parent and the child against the positive factors, if any, of
contact. The court will have regard in particular to whether the offending
parent recognises his past conduct and his willingness and ability to
change. See:-Re S (Violent Parent: Indirect Contact) [2000] 1 FLR 481Re L,
V, M, H (Contact: Domestic Violence) [2000] 2 FLR 3341Re M (Interim Contact:
Domestic Violence) [2000] 2 FLR 377Re L (Contact: Genuine Fear) [2002] 1 FLR
621Re G (Domestic Violence: Direct contact) [2000] 2 FLR 865Re J-S (Contact:
Parental Responsibility) [2002] EWCA Civ 1028There may be other
circumstances in which it is appropriate for contact to be terminated. See,
for example:-Re H (Contact Order) (No. 2) [2002] 1 FLRHowever, this is a
discretion which should be exercised carefully:-Re J-S (A Child) (Contact:
Parental Responsibility) [2002] 3 FCR 433 CAForm of the contact orderIt is
good practice for the order for contact to direct the resident parent to
"make the child/children available for contact" as defined in the order.
This is particularly important when it is felt that the resident parent may
be resistant to contact.Sanctions for refusal of contact without good
reasonA penal notice may be attached to an order for contact. Make sure the
order is in the above form. If it is not, amend it.Where the hostility of
the resident parent to contact frustrates the order, the court may consider
a transfer of residence or committal to prison. Many judges are most
reluctant to commit, particularly if the non-resident parent is not in a
position to care for the child and it is a weapon of last resort:-Re B
(Contact) [1998]1 FLR 368A & N (Committal: Refusal of Contact) [1997] 1 FLR
533Re M (Contact Order: committal) [1999] 1 FLR 533Note that conditions may
be attached to contact orders:Re O (Contact: Imposition of Conditions)
[1995] 2 FLR 124Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR
721Special precautions may also be taken by the court when permitting
contact abroad in circumstances where there is risk that the child may not
be returned:-Re T (Staying Contact in Non-Convention Country) [1999] 1 FLR
262Re A (Security for Return to Jurisdiction) (Note) [1999] 2 FLR 1Re P (A
child: Mirror Orders) [2000] 1 FLR 435RESIDENCE ORDERSDirect with whom a
child is to live.The general principles for the Children Act and for the
making of s.8 orders apply.See above re method of application and
applications not on notice.The court may make a residence order of its own
motion. The order cannot be made in favour of the child himself.Shared
residence/joint residenceArrangements whereby a child spends part of his
time living with one parent and part with the other.Until recently these
were seldom made and required special circumstances making a shared
residence order desirable in the interests of the child. However, there is
recent Court of Appeal authority to the effect that neither exceptional
circumstances nor, probably, evidence of a positive benefit to the child is
required. It need only be demonstrated that the order is in the interest
of the child in accordance with the requirements of Section 1 Children Act
1989:-D -v- D [2001] 1 FLR 495One example is where it to confer parental
responsibility on a non-parent with whom the child lives part of the
time.Shared care arrangements are most often arrived at by agreement, in
which case the "no order" principle may well apply. See also:-A -v- A
(minors) [1994] 1 FLR 669Re H (shared residence: parental responsibility)
[1995] 2 FLR 883G -v- F (Contact and Shared Residence: applications for
leave) [1998] 2 FLR 799Enforcement of residence ordersSee s. 14PROHIBITED
STEPS ORDERSThe prohibited steps order is an order empowering the court to
restrain a person from an exercise of parental responsibility. This may
relate to such issues as education (not to withdraw a child from a
particular school, not to go to the child's school etc) and medical care
(other than emergency treatment) or, for example, to restrain a threatened
removal of the child from the jurisdiction. Note that a person with a
residence order in respect of a child may, without the permission of the
court or the other party, remove the child from the jurisdiction for a
period of less that one month.A prohibited steps order may be made
prohibiting a non-parent from contacting children.1Note that no court may
make a prohibited steps order in any way which is denied to the High Court
(by s.100(2)) in the exercise of its inherent jurisdiction. Similarly, no
order will be made with a view to achieving a result which could be achieved
by making a residence or contact order (s.9(5))SPECIFIC ISSUE ORDERSAn
application for a specific issue order is made in order that the court may
decide a specific issue relating to the child.The order may be made in
conjunction with a residence or contact order or on its own.The application
may be made not on notice in an appropriate case.Examples are issues about
religious upbringing, circumcision, schooling, the surname by which the
child is known and applications to remove a child from the jurisdiction
(whether temporarily or permanently).s. 13 regulates change of name and
removal from the jurisdiction. It is an automatic condition of a residence
order that no person will cause the child to be known by another surname or
remove him from the jurisdiction (save under the automatic leave), without
either the written consent of every person who has pr or the leave of the
court.Change of surname See:-Dawson -v- Wearmouth [1999[ AC 308Re C (Change
of Surname) [1999] 2 FLR 656Temporary removal from the jurisdictionThe
welfare of the child is the paramount consideration.Prima facie, the
application should be granted if there is a sensible plan to visit relatives
or enjoy a holiday. Reasons for refusal may be grounds for believing the
parent may not return or, for example, the child being too young to
undertake the journey.Undertakings to return the child to the jurisdiction
at the end of the holiday and, even, deposits of money may be required as a
condition for the granting of leave.Permanent removal from the
jurisdictionThere is no difficulty if parents agree. A parent may remove a
child permanently from the jurisdiction with the consent of all others who
have pr.It is a criminal offence to remove a child from the jurisdiction
without the appropriate consents or leave.1The court has said that
applications for permanent removal require "profound investigation and
judgment".The issue is whether the plan is a reasonable and sensible one
and, is it compatible with the welfare of the child, taking into account the
impact upon contact with the other parent.See:-Re H (Application to remove
from jurisdiction) [1999] 1 FLR 848Re A (Permission to remove from
jurisdiction: Human Rights) [2000] 2 FLR 225Re C (leave to remove from the
jurisdiction) [2000] 2 FLR 457Each case is to be decided on its own
facts:-Payne -v- Payne [2001] 1 FCR 425
Janet BazleyOne Garden Court,Temple,London EC4
Recent Developments in Children Law David Vavrecka30 January 2003Continuing
Professional Development LectureCHILDREN LAW & PRACTICERECENT
DEVELOPMENTS30th January 2003Speaker: David Vavrecka, Coram ChambersPrivate
Law Update1. Judicial statistics 2001112,000 private law applications in
England & Wales (up 17%)2. Ask trial judge for Permission to appealRe T
(Contact: Permission to Appeal) [2002] EWCA Civ 1736Court of Appeal stressed
again importance of making application for permission to appeal to trial
judge. See notes 52.3.4 - 52.3.6 in Part 52 CPR. Applications to Court of
Appeal without prior application to trial judge where judgment handed down
or client not available or had changed mind3. Split hearings in relation to
contact should be heard by same benchM v A (Contact: Domestic Violence)
[2002] 2 FLR 921Parties separated prior to birth of child and communication
and relationship resumed for 5 months once child 1 year old before ending in
violence. Seven months later father applied for contact. Justices made
findings on violence by mother on one occasion and threats by father over
period. Also made findings about mother's motives for resisting contact.
Later directions by a different bench and transfer to PRFD meant case came
again to court one year after application made. Judgment highlighted need
for same bench to hear final hearing as the preliminary hearing.In the light
of Re L/V/M/H (Contact: Domestic Violence) [2000]2 FLR 334 - view formed
at factual inquiry informs approach to disposal. Identify transfer cases
earlier4. CostsQ v Q (Costs: Summary Assessment) [2002] 2 FLR 668Wilson J
asked to consider who should pay costs after 13 interlocutory hearings
(costs reserved in 10 of these) over number of years in bitter private law
dispute. Order for father to pay, sum of £150k being a summary assessment
of mother's costs. W actual costs 336K. Power to make summary assessment
under PD Costs 13.1 had to be considered in every case and not just in
special circumstances. Whilst no order is accepted starting point, on
balance father's unjustified residence application, stance on educational
issues and resistance to investigation of medical condition, meant
appropriate that he pay significant share of costs on indemnity basis5.
Importance of Legal Representation in committal proceedingsRe K (Contact:
Committal Order) [2002] EWCA Civ 1559Unmarried mother of two was
unrepresented when committed to prison for 42 days for contempt for failing
to abide by repeated orders for indirect and supervised contact, part of
which was for assessment by CWO. Trial judge also made residence order in
father's father. Court of Appeal allowed the mother's appeal and stressed
criminal nature of contempt proceedings entitled mother to at least
protection of Art 6(3)(c) and effect of Article 8 on decision to separate
mother from her children. Transfer of residence - unusual order and welfare
and not punishment is paramount consideration6. Importance of determining
paternityRe H and A (Paternity: Blood Tests) [2002] EWCA Civ 383Mother and
husband had 22 year old son when twin daughters born in 1997. Unbeknown to
father, mother had relationship with another man around time of twins
conception who she introduced to the twins and who had contact, unbeknown to
the husband, who meanwhile had assumed primary care of the twins whilst the
mother worked. The other man sought PR and contact when his affair with the
mother ended which resulted in a consent order for DNA test and arrangement
for supervised contact. Mother did not comply with DNA test or more than
one contact. Mother concealed litigation from husband for a year but he
accidentally found out and filed a statement indicating he would give up
mother and twins if the other man were the father. Mother said she only had
limited sexual relations with other man before probable period of conception
and husband said he was 99% sure he was father. Judge refused DNA tests on
basis of disastrous disintegrative effects of finding of paternity. Other
man succeeded on appeal as Court of Appeal felt possibility of issue
remaining a family secret not acceptable, which might result in twins at
unpredictable future date finding out with shocking consequences. Paternity
to be established by science not legal presumption or inference7. Use of
McKenzie friendsRe H (McKenzie Friend:Pre-Trial Determination)[2002]1 FLR
39Thorpe LJ allowed an appeal against the refusal to allow Dr P to appear as
father's McKenzie friend in contested contact proceedings, stressing
'presumption in favour of permitting a McKenzie friend is a strong one' As
to role of McKenzie friend: Re H (Chambers Proceedings:McKenzie
Friend)[1999] 2FLR 434 - role to sit and advise and quietly to offer help8.
Disclosure to CAFCASSRe M (A Child)(Disclosure to Children and Family
Reporter) [2002] EWCA Civ 1199,CA, [2002] 2 FLR 893CAFCASS office in course
of inquiries told by mother and child of inappropriate behaviour by father.
Officer asked judge for permission to disclose information to social
services but he refused. Thorpe LJ held does not have to seek judge's
permission to report concerns to Social Services; the rules do not prevent
disclosure of material acquired in course of inquiries9. Litigating the use
of first namesRe H (Child's Name: First Name)[2002] EWCA Civ 190Married
parents separated when mother 6 weeks pregnant. Father visited on day of
child's birth and five days later he registered child's birth choosing first
name MI. Six days later mother registered child with first name H.
Registrar of Births and Deaths ruled father's registration legal and
mother's cancelled. Mother sought specific issue to determine by what first
name child should be known. At the appeal, mother's counsel stated change
of name not sought, rather that mother be permitted to use mane H when
dealing with educational, health and other authorities. Court of Appeal
allowed her appeal in basis that unlike surnames which have particular
significance in indicating family to which a child belongs, given names have
less concrete character and commonplace for different given names to be
received after registration. Common sense mother as single parent and
primary carer needs support in outcome of legal proceedings and in
recognition of her liberty and judge plainly wrong to inhibit her use of
name H providing she recognised child has series of immutable names by
statutory registration10. Courts approach to parental alienation evidenceRe
S (Contact:Children's Views)[2002] EWHC 540 (Fam, [2002] 1 FLR 1156Parents
of three children aged 16, 14 and 12. All three lived with mother in
England and father had visiting contact when he came over from Italy. In
reporting to the court, the CAFCASS reported recommended no order in
relation to the older two based in part on their expressed views. The
father and his mother were convinced the mother had poisoned the children
against the father. In making no order for contact in respect of the older
two and an order that the father pay two-thirds of the costs, the judge
dismissed as nonsense the father's claim that the children had been
poisoned. The father had simply failed to realise his hectoring approach
was counter-productive. Father's pursuit of litigation unreasonable, but
punitive to make him pay all costs11. but see also Re C (Prohibition on
further applications [2002] EWCA Civ 292, [2002] 1 FLR 1136 where a father
in person sought contact and residence in relation to daughters (claiming
situation akin to parental alienation syndrome) In the Court of Appeal the
President asked the expert to look at all issues, including issue of PAS,
but commented that the father had 'seriously under appreciated the effect on
the mother and four girls of the final parting in 1998'12. No power to order
residential assessment in private law proceedingsR v R (Private law
proceedings: Residential Assessment) [2002] 2 FLR 953Young child stayed with
mother after separation. She claimed she had shaken baby. She later
retracted this but social services arranged for child to stay with father.
Mother was having supervised contact and following a recommendation in a
social services report to the court, she sought an order authorizing a
residential assessment of her and child. Father objected. Holman refused
the application on basis there was no jurisdiction to order a residential
assessment if one parent with the child against the wishes of the other. In
the event a residual power existed in the exercise of the inherent
jurisdiction, not appropriate to be exercised13. Contact researchLCD
research paper Safety and Child Contact analyses role of contact centres in
context of domestic violence and concluded need for active screening and
assessment in relation to domestic violence, greater support and advocacy
for children and use of clearer terminology (high, medium or low vigilance),
greater availability of centresJoseph Rowntree Foundation in Making contact:
How parents and children negotiate and experience contact after divorce In
depth interviews based on 61 families demonstrated limited capacity of legal
process to facilitate contact or reverse a downward spiral in contact
relationships and advocated resources be redirected to more creative work or
improving parental relationshipsFeb 2002 saw publication of Children Act
Sub-Committee's report to Making Contact recommending proper funding and
role for CAFCASS including the strengthening of family assistance orders,
more specialist contact centres,and publicly funded accredited lawyers to do
children's cases. In Aug 2002 came the Government response to Making Contact
Work in which it accepted recommendations in principle only, but the core
need to use family assistance orders via CAFCASS was rejected.Public Law
Update 14. Judicial statistics 200124,000 public law applications in England
& Wales (up nearly 10%)Care Proceedings15. Practice direction on Judicial
ContinuityPractice Direction issued by the President, 22/3/02 [2002] 2 FLR
367Effectively all care order applications transferred to the High Court
will be allocated a judge who should stay with the case, and after transfer
a CMC (Case Management Conference) is fixed. Variety of documents required
for this hearing.(LA 5 days before, respondents 2 days) Purpose of CMC
toIdentify issues, experts, twin-track planning, need for split hearing16.
The perils of ignoring the expertsRe M (Residence) [2002] EWCA Civ 1052,
[2002] 2 FLR 1059Care proceedings involving a family where the mother had
died and the father of the youngest child age 3 (M) had been recalled to
prison as his life licence was revoked. The oldest children, and the child
of the father had gone to live with the maternal uncle. All the experts
agreed all the children including M should stay with the uncle and agreed on
the father being dangerous. Holman J did not find the threshold crossed and
refused to make a residence order to the uncle on the basis that M should
return to his father. Holman had formed his own assessment of the father in
the face of the unanimous view of the experts and Court of Appeal ruled it
was not open to him to reject their conclusions based on his own impression
of the father or reject guardian's view without fuller reasons.17. Re B
(Non-accidental injury: compelling medical evidence) [2002] EWCA Civ
902Mother, with 6 year old daughter had another child, and after his birth
began to cohabit with another man. Subsequently the child suffered serious
injury - 94 injuries in all, and dies a few months later. The older child
moved to live with a relative and mother separated a year later from the
man. At the preliminary hearing in the care order application in respect of
the daughter, judge concluded the male partner was the perpetrator and
mother could be exonerated and she had not failed to protect the son at any
stage, On the local authority's appeal the Court of Appeal found the trial
judge to be plainly wrong as his finding contrary to expert evidence.
Either the mother or her partner perpetrated these injuries and the mother
had failed to protect the child. A degree of heightened cogency was
necessary to enable the judge to say injuries could not have been inflicted
by the mother and that standard had not possibly been met18. Findings to be
incorporated into court orderRe M and MC (Care: Issues of Fact: Drawing of
Orders) [2002] EWCA Civ 499Findings should be set out in court order where
court had directed determination of specific issuesFollowing trial and
prelim findings of which of parents responsible, one of parents confessed -
shd not be retrial but start disposal hearing with findings as foundation
and adjust in light of developments19. Care proceedings practiceRe R (Care:
Disclosure : Nature of Proceedings) [2002] 2 FLR5Five children from one
family were the subject of care proceedings. Some of the children made
allegations of sexual abuse against parents and other relatives. The local
authority case was initially based on these allegations but after 13 days of
the hearing dropped them and based the case on neglect and emotional harm.
In his judgment Charles J gave a number of important points of guidance(1)
where local authority decided not to pursue allegations of sexual abuse and
the threshold criteria satisfied on different basis, then at
welfare/disposal stage the court cannot approach case on basis was sexual
abuse or might have been sexual abuse(2) local authority should identify as
soon as possible allegations on which it relies, done by someone with
appropriate knowledge and training(3) all parties share duties in respect of
evidence- to check full disclosure and proper instruction of experts(4) most
cases no restriction on disclosure(5) local authorities and guardians should
be more willing to exhibit notes rather than preparing summaries(6) as soon
as carer informs local authority child has made allegations of abuse, full
history should be taken from that carer by person with relevant
experience20. Need for evidence of victimRe D (Sexual Abuse Allegations:
Evidence of Adult Victim) [2002] 1 FLR 635Split hearing in care proceedings
had to consider allegations as to the unsuitability of paternal grandfather
as a potential carer; an alleged victim of inappropriate touching by him in
1985 (now an adult) did not make a witness statement or give oral evidence.
Magistrates relied on social worker's account that she found victim
believable and CAFCASS officer also gave evidence which magistrates treated
as suggested alleged victim's account should be accepted. Grandfather
consistently denied the allegations. Magistrates felt account probably
true. On appeal the President allowed the appeal and ordered transfer to
County Court. Court expected adult victim to give evidence and at least
make a statement in line with dicta in Re H and R (Child Sexual Abuse:
Standard of Proof) [1996] 1 FLR 8021. Re L (Care: Assessment: Fair Trial)
[2002] EWHC 1379 (Fam)Munby J in a detailed judgment analyses the extent and
scope of Article 6 and 8 rights within care proceedings. Mother's first
child died of NAI aged 4 months and second child on register. Care
proceedings commenced and child place din foster care. A psychiatrist was
instructed jointly to decide whether to assess mother for possible rehab.
After a 3 day assessment the psychiatrist advised residential assessment
appropriate, but after a meeting from which the mother was excluded, the
psychiatrist changed his decision. No minutes of this meeting were taken.
The mother opposed the care plan of adoption and claimed there had been
breaches of good practice and she had no had sufficient opportunity to argue
her case. Although the mother's application for further assessment was
dismissed, Munby explained that the mother's article 6 rights to a fair
trial were absolute and were not limited just to the judicial stage of the
proceedings - the failure to allow a litigant to examine and comment on
documents or cross-examine witnesses then relied upon in producing a report
was likely to amount to an article 6 breach. LA had duty to have
transparent and fair procedures at all stages, in and out of court.
Documents must be made available and crucial meetings conducted openly with
parents having opportunity to attend or be represented. However generalised
discovery not necessary or desirable. Earlier unfairness to mother in not
being sufficiently involved overcome in later stages of process22.
Importance of representation in care and adoption proceedingsP., C. and S. v
UK, [2002] 2 FLR 631P and C were the parents of S. born in 1998. In 1994
P's child B was removed from her care due to concerns that she was suffering
from Munchausen's Syndrome by Proxy (MSBP) which caused her to harm the
child. P was subsequently convicted in a Californian court of a misdemeanour
in relation to her harming the child and B lived with his father thereafter.
In 1996 P met C, a social worker, researching a doctorate on women wrongly
accused of MSBP - they married in 1997. In May 1998, S was born and was
removed from her parents and placed with foster parents - less than 12 hours
after her birth under an emergency protection order - a care order was
subsequently obtained. The parents were allowed supervised contact and were
seen to have developed a good relationship with C. At the final care
hearing, P's lawyers were allowed to withdraw from the proceedings due to
her unreasonable conduct and C withdrew from case In March 1999 a Court
granted the care order and fixed a date for a freeing application one week
later. P & C attended but did not have legal representation. The judge
refused to grant an adjournment to allow P to obtain legal representation
and made a freeing order Leave to appeal was refused and the child was
adopted in March 2000. The applicants claimed a violation of Article 6(1)
(fair trial) and Article 8 ( the right to respect for family life).Article
6The E.Ct of HR noted that given the complexity of the case and what was at
stake for the applicants and the emotive nature of the subject matter, the
principles of effective access to court and fairness required that the
mother P receive legal assistance. It found that the while the domestic
courts tried in good faith to strike a balance between the interests of the
parents and the welfare of S., the procedures adopted not only gave the
appearance of unfairness but they prevented the applicants from putting
their case forward in a proper and effective manner on issues which were
important to them. It concluded that the assistance of a lawyer during the
hearing of the two applications which had such crucial consequences for the
applicants' relationship with their daughter was an indispensable
requirement. Consequently the applicants did not have fair and effective
access to court and there had been a breach of Article 6(1).Article 8Court
noted that while there was legitimate cause for concern due to P having a
previous conviction for harming a child, nonetheless, the removal of a child
from its mother at birth required exceptional justification. It was not
apparent why the child could have had some contact with the mother at the
hospital. It concluded that there was no immediate risk to the child and
the removal at birth was not supported by relevant and sufficient reasons
and thus violated Article 8.It also found that freeing the child for
adoption breached Article 8 because of the lack of legal representation and
the lack of any real time lapse between the proceedings. It concluded that
given what was at stake Article 8 was violated due to the parents not being
involved in the decision making process to a degree sufficient to provide
them with the requisite protection of their interests.23. House of Lords and
Starred Care PlansRe S (Minors)(Care Order: Implementation of Care Plan; Re
W(Minors)(Care Order: Adequacy of Care Plan) [2002] UKHL10, [2002] 1 FLR
185The House of Lords did not uphold the Court of Appeals creation of
starred care plans, a bold attempt to devise a way for care plans which were
not being implemented coming back to court; instead they stressed the need
for the government to urgently review this (see children reviewing officers
under Children and Adoption Act - to refer to CAFCASS if appropriate)- power
of section 3 HRA limited, court must be mindful of outer limit.
Interpretation upto courts but enactment and amendment matter for
Parliament- starred milestones departed substantially from Parliamentary
intentions3 so far as it is possible to do so, primary legislation ..must be
read and given effect in a way which is compatible with convention rights24.
Challenging plans of local authority on human rights groundsC v Bury
Metropolitan Council [2002] EWHC 1438 (Fam), [2002] 2 FLR 868Mother made
applications under ss6 and 7 HRA on her own behalf and that of child for
review of local authority care plan, which proposed residential school in
distant part of UK. Mother had not been present at all meetings where plan
discussed. The President did not find that the procedural flaws in the case
management had a detrimental effect on mother's case nor had the child's
rights been adversely affected. The decision of the local authority was
proportionate and in child's best interests and no breaches of Article 8
upheld. Like in Re M (Challenging decisions by local authority)[2001]2 FLR
1300 the court entertained a freestanding HRA application. The President
stated human rights applications should be heard in the Family Division,
preferably by judges with experience of sitting in the Administrative
CourtSee also M (Care:Challenging Decisions by Local Authority) [2001] 2 FLR
1300,25. Effect of failure to prove parent a perpetratorRe O and N
(Children) [2002] 3 FCR 418In care proceedings, the local authority sought
care orders on 2 children due to NAI on older child. Father admitted
causing fractured skull and subdural haematoma but denied other injuries.
At preliminary hearing, the judge found in the absence of acceptable
explanation by either parent, neither parent exculpated and injuries caused
by either or both. Judge also found mother had failed to protect elder
child from harm. The Court of Appeal restated the established law as to
burden of proof at threshold stage, remains on local authority, and same
standard at disposal / welfare stage. Only finding open to judge on
evidence was that LA failed to establish on balance of probability that
mother had injured older child and proceeded on basis did not. However
finding she failed to protect inevitable26. Protection for parents making
admissions to expertsRe AB (Care Proceedings: Disclosure of Medical Evidence
to Police) [2002] EWHC 2198 (Fam)Guidelines made by Wall J in case where he
gave disclosure of expert medical evidence to police ; including (1) need to
carry out balancing exercise Re C (A Minor)(Care Proceedings: Disclosure)
[1997] Fam 76 (2) no presumption of disclosure (3) importance of frankness
and protection of s98(2) (4) advice to parents not to cooperate in court's
investigation of child abuse poor practice and likely to lead to inferences
being drawn against parent (5) lawyers should not put pressure on expert as
to how to conduct investigation (6) court more likely to refuse an
application for disclosure to police where frank acknowledgment of
responsibility by abusing parent27. see also Re M (Care Proceedings:
Disclosure: Human Rights) [2001] 2 FLR 1316During care proceedings a mother
admitted responsibility for serious shaking injuries to her child. During
the hearing the mother wrote an account in which she admitted responsibility
for the injuries and both parents made further written statements. Upon
discovering the existence of this material (following unauthorized
disclosure by a social worker to a case conference) the police applied for
disclosure of mother's written account and statements and relevant parts of
transcript. Judge refused the application giving greater weight to fairness
to the mother and any danger of oppression, together with the importance of
maintaining frankness and confidentiality in care cases, to that of the
public interest of prosecution of serious crimes and punishment of
offenders28. Disclosure to Third PartiesRe C (Disclosure: Sexual Abuse
Findings) [2002] EWHC 234 (Fam)Judge in care proceedings found father a
dangerous paedophile who posed a considerable risk to any child. A care
order was made and local authority given leave to disclose copy of judgment
to DOH and any social services or police force within area husband living.
SS and police wishes to disclose certain findings made in the care
proceedings to an identified housing association and to any future
landlords. The judge allowed disclosure to housing association but refused
an order to disclose to future landlords as difficulties of controlling the
information if more widely disseminated and could lead to people going
underground29. Local authority desire to disclose information about sex
offender not irrationalR (J and P) v West Sussex County Court and Wiltshire
County Court [2002] EWHC 1143 (Admin) [2002] 2 FLR 1192Local Authority
concerned about grandmother who was seeing her grandchildren every few
months. Her new partner had Sch 1 conviction for indecent assault on
stepdaughter and has completed term of imprisonment. Risk he posed such
that local authority decided there was pressing need to tell children's
mother, even though grandmother willing to undertake he would not have any
contact with her grandchildren. Sullivan J held substantial justification
needed to interfere with grandmother's article 8 rights; but here real and
cogent evidence of pressing need for disclosure 30. Parents entitled to have
disclosure of files where LA seeking to rely on summaryRe B (Non-Accidental
Injury)[2002] EWCA Civ 752Care proceedings in relation to baby with subdural
haemorrhages and no other injuries. Parents declined to give evidence at
split hearing and judge held one or other of parents responsible. Evidence
detailing fathers care of an older (17 year old) son in foster care had been
summarised and were to be used in the disposal hearing. The judge refused
parents application for disclosure of files in question. Court of Appeal
held situation here unusual (would normally be some earlier litigation in
which record of previous parenting established. Here files were best
(probably only evidence) and even most careful summary may not be completely
balanced and to ensure parents have confidence, should have access31.
Witness anonymity highly exceptionalRe W (Care Proceedings: Witness
Anonymity)[2002 EWCA Civ 1626 Court of Appeal quashed findings based on
social worker's evidence where given anonymously from behind screen.
Threats of violence from parents in care cases an occupational hazard -
anonymity reserved for exceptional cases32. Jurisdiction to make interim
order where child's father had diplomatic statusRe B (Care Proceedings:
Diplomatic Immunity) [2002] EWHC 1751 FamThe President sought to continue an
interim care order obtained in respect of a 13 year old girl who was a
Moroccan national and whose father was a driver in the Moroccan embassy, and
where severe bruising seen at school found on examination to be serous and
non-accidental. Following reasoning of Re R (Care Orders: Jurisdiction)
[1995] 1 FLR 711,basis of jurisdiction habitual residence or physical
presence at time of application. ICO fell within exception to Art 37(2) of
Vienna Convention on Diplomatic Relations 1961 (Vienna Convention and so no
procedural bar. Where threshold criteria crossed, Article 3 of European
Convention breached and positive obligation on states to investigate33.
Difficulty of conflicting research in shaking baby casesRe A and D
(Non-accidental injury:subdural haematomas)[2002] 1 FLR 337Questions of
degree of force required for subdural haemorrhage to occur subject of
conflicting medical opinions. Forces which lead to this occur when baby
shaken ('shaken baby syndrome') Less force required than previously
believed. More research needed34. Recognition of role of grandparents to be
considered in leave applicationsRe J (Leave to Issue Application for
Residence Order) [2003] 1 FLR 114Care proceedings where mother unable to
care due to mental ill-health and local authority assessment ruled out 59
year old grandmother due to volatile nature of mother's possible reaction.
Trial judge refused grandmother's application for party status and leave to
issue residence application. Court of Appeal emphasised importance of
s10(9) checklist. Court anxious at application of decision in Re M
(Care:Contact:Grandmother's Application for Leave)[1995]2 FLR 86 since
whether applicant had a good arguable case applied to section 34(3) not
10(9) - anxiety heightened where applicants enjoyed Art 6 rights to fair
trial and possibly Art 8 rights. Important role of grandparents to be
recognised, particularly in relation to children of disabled parents.Have
regard to nature of proposed application, connection with child, risk
proposed application disrupting child's life to such an extent harmed by it,
where looked after, authority plans for future and wishes and feelings of
parents Adoption35. Importance of religious matching and the role of
judicial reviewRe C (Adoption: Religious Observance) [2002] 1 FLR 1119Local
Authority seeking care order with respect to almost 3 year old girl with
plan of adoption. Child was to be placed with prospective adopters with a
fairly strong Jewish identity but with a relatively low level of religious
observance. On the basis that the only connection with Judaism was that the
child's mother was Jewish by birth, the Guardian argued that the Jewish
couple were unsuitable as the child's mixed heritage required placement in
a religiously neutral environment from which exposure to different elements
of her background could be developed, and opposed the care order and sought
judicial review of the Adoption Panel's recommendation to match the child to
the proposed couple. Wilson J in making a care order and approving the plan
of adoption with the proposed adopters found the guardian's use of the
judicial review procedure as misguided and held that the proper forum to
challenge the plan was in the care proceedings. The approach of the
guardian was described as inflexible and doctrinaire.36. Identity of
AdoptersRe X (Adoption: Confidential Procedure)[2002] EWCA Civ 828Siblings
removed and placed with foster parents with whom parents had good
relationship. Foster parents wished to adopt but keep identity secret and
filed serial number adoption. Guardian supported adoption. Parents opposed
adoption. Parent's solicitor inadvertently learnt truth and applied for
permission to disclose identity of adopters to parents. Refusal of judge to
allow disclosure upheld on appeal on basis judge not plainly wrong as
parent's case could still be presented. Interests of children in
maintaining happy ands secure home now so great that outweighed problems
associated with fair trialContact in adoption37. Permission to refuse
contact to father in care proceedings overturned where insufficient judicial
analysisRe G (Adoption: Contact) [2002] EWCA Civ 761Ward LJ in the Court of
Appeal allowed a father's appeal in a care case where the judge had given
the local authority permission to refuse contact to the father where 4
children (2 sets of twins aged 3 and 18mths) were with foster parents who
were going to adopt the children. The care proceedings in relation to 5
children arose of NAI where judge at trial unable to attribute
responsibility for injuries between one or both of parents. Oldest child
(aged 6) to remain with maternal grandmother. Judge granted s34(4) in
relation to father , whilst allowing mother, uncle and aunt ongoing contact.
Ward LJ allowed the appeal on the basis judge had not analyses the
difference in treatment between mother and father given the exclusion of the
father not based on finding he was perpetrator.38. Foster care payments to
relatives or friendsR v Manchester City Council [2001] EWHC Admin 707Munby J
viewed different rates of allowance to family and non-family foster carers
as unlawful39. Article 8 rights engaged in question of artificial
insemination informationRose v Secretary of State for Health and Human
Fertilisation and Embryology Authority [2002] EWHC 1593 (Admin), [2002] 2
FLR 962Claimants born as a result of artificial insemination by an anonymous
donor judicially reviewing DOH . Scott Baker declared Article 8 rights
engaged with regard to identifying and non-identifying information40.
Representing Children when no guardian appointedAlthough issued to Panel
solicitors, Law Society Guidance (Sept 2002) applicable: Advocate should
represent child in furtherance of the best interests of the child (s41
Children Act & r4.13) While trying to act in accordance with child's best
interests, not in a position to advise court what is in the child's best
interests. Proper and appropriate to (a) critically appraise LA action and
evidence in support of those actions, and seek directions to require filing
of further evidence if appropriate, to test and probe case and ensure court
has sufficient evidence on which to base its decisions and to test evidence
of all parties at contested interims (b) at every opportunity seek appt of
CAFCASS guardian and keep it under constant review (c) request and collate
as soon as possible all relevant papers (d) should be generally aware of and
play a leading role in case management and timetabling issues for benefit of
the running of proceedings as a whole.41. Adoption and Children ActRoyal
assent 7/11/02Biggest overhaul of adoption law for 25 yearsKey concern is to
increase adoption for looked after children being adoptedMajor changes in
adoption practice:- contact. Moves towards openness addressed in explicit
duty on court to consider arrangements for allowing any person contact with
the child and requirement in section 1 to have regard to the child's
relationshipss1 (4)(f) ct should have regard to ability and willingness of
any of the child's relatives . to provide the child with a secure
environment in which the child can develop, and otherwise meet the child's
needs- need for special support for those affected by adoption.
Comprehensive duty placed on local authorities to provide adoption support-
placement orders - authorising placement by local authorities with
prospective adopters- introduction of special guardianship. Deals with need
for permanence for children foe whom adoption is not appropriate- new
national adoption register to ensure faster matches- independent review
mechanism for prospective adopters who feel they have been turned down
unfairly- new facility for step-parents. Step-parents can acquire PR by
agreement or PR without removing other parent's parental status by an
adoption orderFirst phase of new adoption support framework to be
implemented from April 2003 ahead of full implementation of Act currently
planned to be in 2004Key concerns: delay and resourcesGovernment has set a
public service agreement target: to increase by 40% the number of looked
after children who are adopted, increase to 95% proportion of looked after
children placed for adoption within 12 months of the best interest's
decision42. DelayFurther to Booth report on delay in 1996, LCD study in
September 2002 Reducing Delays in Family Proceedings recommends more
flexible transfer between courts, changes to format of written reasons,
greater consistency by extending use of practice directions.43.
GuardiansSerious problems with CAFCASS continue44. Victoria ClimbieReport
published 28th January 2003. Full text on
www.victoria-climbie-inquiry.org.uk45. Useful websites·
www.courtservice.gov.uk/judgments/judg_home.htm (Judgments)·
www.official-documents.co.uk (Selected white/green papers)·
www.parliament.uk/ (Hansard from June 96)· www.lawrepors.co.uk (Online
summary of cases)· www.hcch.net (Hague signatories and Intercountry
adoption)· www.incadat.com (Child Abduction Database)·
www.offsol.demon.co.uk (Child Abduction Unit)· www.unicef.org/crc (UN
Conv on Rights of Child)· www.echr.coe.int (ECHR cases)· www.coe.int
(Council of Europe)· www.doh.gov.uk/quality protects/index.htm (DOH
material)· www.lcd.gov.uk (Lord Chancellor's Department)· www.alc.org.uk
(Association of Lawyers for Children)
An Introduction to Ancillary Relief Nicholas Cusworth5 December
2002Continuing Professional Development LectureAN INTRODUCTION TOANCILLARY
RELIEF A. THE LAW1. Basic Principles1.1 Section 25 of the Matrimonial
Causes Act 1973 applies in all cases whether the assets are large or small -
welfare of the child(ren) is the first but not the paramount
consideration1.2 The section then sets out the criteria to be considered -