by Catherine Le Quesne
The subject of child maintenance was in the news this summer when barrister and father of five Michael Cox was imprisoned for 42 days by magistrates for refusing to pay maintenance calculated by the Child Support Agency. Cox argued that since he and his ex wife had a shared care arrangement and the children spent equal amounts of time with each of their parents, he should not have to pay any child maintenance. He was freed after 14 days on appeal.
Cox’s case highlights the difficulties surrounding child maintenance when there is a shared care arrangement. The courts have been more willing to make shared residence orders since the case of D v D (Shared Residence Order) [2001] 1 FLR 495, when the Court of Appeal held that, contrary to earlier case law, it is not necessary to show that exceptional circumstances exist before a shared residence order may be granted. The provision of child maintenance is still governed by the Child Support Act 1991. Under that act, one must first determine which of the parents is the ‘non-resident parent’(NRP) and which is the ‘person with care’(PWC). Maintenance is then calculated and paid by the NRP to the PWC. Where both parents provide day-to-day care to the child and there is nothing to choose between them, the deciding factor is who is in receipt of child benefit.
The amount of maintenance payable by the NRP is reduced according to how many nights the child spends with him or her:
Number of nights Fraction to subtract
52 to 103 one-seventh
104 to 155 two-sevenths
156 to 174 three-sevenths
175 or more one-half
If the one-half threshold is reached for any given child, the maintenance is reduced by a further £7 a week. Therefore if care is shared equally, the maintenance payable is reduced by half and then by £7 a week for each child. The fairness of a system in which even when care is split down the middle, one parent must still pay maintenance to the other, must, it is submitted, be questionable.
The government is about to overhaul the child maintenance system and the Child Maintenance and Other Payments Bill was published on 6th June 2007. This would replace the Child Support Agency with the Child Maintenance and Enforcement Commission. Measures contained in the bill are intended to encourage parents to make their own arrangements for child maintenance and to simplify how maintenance is calculated. Tougher enforcement powers to collect arrears are also introduced. It is regrettable that the government have not used this opportunity to introduce a more equitable basis for the calculation of maintenance in shared care arrangements when such arrangements are being favoured by the courts.
Friday, 21 September 2007
Thursday, 20 September 2007
Oldham MBC v GW, PW and KPW [2007] EWHC 136 (Fam)
Digging a little further into the archive, this case illustrates the sort of difficulty one can get into when dealing with cases at the cutting-edge of medical knowledge. Though few of us will expect to encounter such extraordinary circumstances, it is well to consider this judgment in its recommendations at paragraphs 91 to 100 which have more general application to the role of experts.
This was a particularly tragic case as paragraph 76 illustrates, but the court refused to criticise any one party, preferring to suggest that there was a general, systemic failure of the system to serve justice. Though one can well understand the court’s wish not to put the physician whose diagnosis caused the wrongful removal of the child from her parents, it should in my view have answered the question posed at paragraph 79(ii) explicitly.
Essentially a baby presented with highly unusual symptoms in that there was no visible indication of what might otherwise be thought to be brain injury through abuse. Though the parents appeared to be beyond suspicion, the doctors quite properly referred the case to appropriate specialists, resulting eventually in the opinion from an eminent expert that non-accidental injury could not be ruled out. By reason of his expertise and seniority, none of the other doctors who had formerly not thought this to be an option felt able to disagree.
There were three problems though: firstly the expert himself had very little experience of what he was observing but did not say so; secondly he was simply unaware of research in the field, later confirmed by a professor whose expertise was sufficiently rare for him to have to be traced to his institute in Sweden; thirdly, he expressed himself too absolutely by saying that the presentation was pathognomic (i.e. illustrative of cause by) NAI.
What we learn from this is to be eternally sceptical of evidence. The third point was characterised by the court as the expert having taken upon himself the role of decision-maker, compounded by the court not realising that it had failed to guard that role at its own. It seems to me that there must be some criticism of the representatives in the case for allowing that to happen and rightly so: it is vanishingly rare that an expert can properly say that an injury or physical insult was caused by an event unless there is some supportive evidence (i.e. a witness saw a knife being used to stab) Experts should in the main be restricted to saying whether an observation is consistent with or not consistent with a hypothesis: the decision as to whether the whole evidence supports a finding is for the court alone.
Whether one can ever succeed in uncovering the second error described above is a matter of research and luck combined, but the first is a live issue in every case. One rarely encounters an expert in care proceedings who is not eminently well qualified in their discipline but it does not follow that they will be an expert in the particular symptoms/injury/circumstances presented in an individual case. The doctor in this case agreed on reflection that he could have more forcefully brought the unusual features of the case – that is, those which were inconsistent with his diagnosis – to the attention of the court. That he did not do so was accepted to have resulted from his human and professional wish to protect a child about whose diagnosis he could not actually be sure. This reminds us to invite an expert a) to reflect on their issue-specific experience and knowledge and b) to accept that they might not actually know the answer.
This was a particularly tragic case as paragraph 76 illustrates, but the court refused to criticise any one party, preferring to suggest that there was a general, systemic failure of the system to serve justice. Though one can well understand the court’s wish not to put the physician whose diagnosis caused the wrongful removal of the child from her parents, it should in my view have answered the question posed at paragraph 79(ii) explicitly.
Essentially a baby presented with highly unusual symptoms in that there was no visible indication of what might otherwise be thought to be brain injury through abuse. Though the parents appeared to be beyond suspicion, the doctors quite properly referred the case to appropriate specialists, resulting eventually in the opinion from an eminent expert that non-accidental injury could not be ruled out. By reason of his expertise and seniority, none of the other doctors who had formerly not thought this to be an option felt able to disagree.
There were three problems though: firstly the expert himself had very little experience of what he was observing but did not say so; secondly he was simply unaware of research in the field, later confirmed by a professor whose expertise was sufficiently rare for him to have to be traced to his institute in Sweden; thirdly, he expressed himself too absolutely by saying that the presentation was pathognomic (i.e. illustrative of cause by) NAI.
What we learn from this is to be eternally sceptical of evidence. The third point was characterised by the court as the expert having taken upon himself the role of decision-maker, compounded by the court not realising that it had failed to guard that role at its own. It seems to me that there must be some criticism of the representatives in the case for allowing that to happen and rightly so: it is vanishingly rare that an expert can properly say that an injury or physical insult was caused by an event unless there is some supportive evidence (i.e. a witness saw a knife being used to stab) Experts should in the main be restricted to saying whether an observation is consistent with or not consistent with a hypothesis: the decision as to whether the whole evidence supports a finding is for the court alone.
Whether one can ever succeed in uncovering the second error described above is a matter of research and luck combined, but the first is a live issue in every case. One rarely encounters an expert in care proceedings who is not eminently well qualified in their discipline but it does not follow that they will be an expert in the particular symptoms/injury/circumstances presented in an individual case. The doctor in this case agreed on reflection that he could have more forcefully brought the unusual features of the case – that is, those which were inconsistent with his diagnosis – to the attention of the court. That he did not do so was accepted to have resulted from his human and professional wish to protect a child about whose diagnosis he could not actually be sure. This reminds us to invite an expert a) to reflect on their issue-specific experience and knowledge and b) to accept that they might not actually know the answer.
Re A [2007] EWCA Civ 889
An unusual case this, as there were two experts who unequivocally advised the court that the residence of the child should be transferred from the intransigent mother to the father. More striking still, was that this was against the express wishes of the child (aged 8 and well able to express a view) yet the court took that course.
There were a number of further unusual aspects of the case including the sheer number of occasions the court had dealt with it (14), the amount of judicial continuity (particularly with a Recorder – six of the most recent hearings), and the instruction of a psychologist into the mother’s propensity to adopt a more emollient view towards the father.
The tragedy of the mother’s case was that all parties accepted that she was a perfectly good parent and that the child was happy and prospering, yet she was apparently psychologically incapable of being reasonable towards the father. Of a video which she exhibited in a spectacularly unsuccessful attempt to bolster her case, Wilson LJ said he was ‘sickened that the mother should have created so unpleasant a scene... and... if her disorder drives her to inflict such damage on a son whom (sic) she greatly loves, the situation is deeply tragic’ (para 14)
Hedley J added at para 29
‘This case affords another vivid illustration of the inability of a court, in any jurisdiction, to protect children from all the consequences of the way their parents choose to behave. Where criticism of parenting is exclusively referable to issues of contact a transfer of residence will, of course, always remain the exceptional response, but there must be times when the court is able and seen to be willing to carry through a transfer of residence where all else has failed.’
Query whether the mother did indeed choose to behave in the manner she did, but the court endorsed the change of residence and in the process gave two pieces of advice to courts considering such a step.
First, there should be plenty of opportunity given to the parent at fault to improve his or her behaviour. In para 3 Wilson LJ wrote ‘I have no doubt that, in circumstances in which a court is considering whether to transfer residence by reference to contact difficulties, however extreme, created by the residential parent, it is in the interests of the child for warnings [of the possible necessity for change of residence were her course of conduct to continue], and thus opportunities for change, to be given.’ Though not unequivocally part of the ratio of the case, this is probably authority enough in my view to make an order made without such warnings, appealable.
The second advice concerns what to do when the order is made. In this case the Recorder refused permission to appeal and also refused an application for a stay of execution. At paragraph 27 Wilson LJ said that in his view a court faced with a dramatic change in the child’s life and an application for permission to appeal should always give serious consideration to staying the execution of its order (by whatever means) for a few hours to allow the aggrieved party an opportunity to seek relief from an appellate tribunal. (He then described the emergency procedures available to aspiring appellants even if no such stay is granted)
Now I have put the emphasis in the preceding paragraph to draw attention to the tentative nature of this guidance, but I wonder whether it is really guidance at all. His Lordship explains the rationale of his words in the next sentence where he says that ‘the judge needs to consider whether a refusal to afford a narrow opportunity for such an approach [i.e. a brief stay to allow an application to the appellate jurisdiction] unfairly erodes the facility for effective appeal.’
My difficulty with this is that the judge will have decided whether there is a need to provide a facility for an appeal in determining the application for permission so I fail to see why he should render his judgment vulnerable to the same attack from a different angle. Reading these remarks in the context of the whole judgment I think my Lord has fallen into error not by promoting fairness, but by suggesting that an unfair litigation advantage should be retained by one of the parties. To explain: courts are reluctant to make orders of the type in this case. Therefore a judgment which has not been given effect is far more likely to be overturned than one which has. If Wilson LJ’s guidance is followed then, a judge who has felt compelled to make an order and is convinced it is the right one (as shown by refusal to grant leave to appeal) should nonetheless hand an unfair advantage to the imminently-ex-resident parent by not requiring the order to be given effect until the appeal process (which, I repeat, the court has already ruled inappropriate) has been initiated.It seems to me that this second part of the guidance in the case is not so helpful as the first and seems to introduce to the process the sort of equivocality denigrated in Re C (A Child) 2007 (still unreported (unless you count my update of the 17th of July 2007) but demonstrably known about in the courts).
There were a number of further unusual aspects of the case including the sheer number of occasions the court had dealt with it (14), the amount of judicial continuity (particularly with a Recorder – six of the most recent hearings), and the instruction of a psychologist into the mother’s propensity to adopt a more emollient view towards the father.
The tragedy of the mother’s case was that all parties accepted that she was a perfectly good parent and that the child was happy and prospering, yet she was apparently psychologically incapable of being reasonable towards the father. Of a video which she exhibited in a spectacularly unsuccessful attempt to bolster her case, Wilson LJ said he was ‘sickened that the mother should have created so unpleasant a scene... and... if her disorder drives her to inflict such damage on a son whom (sic) she greatly loves, the situation is deeply tragic’ (para 14)
Hedley J added at para 29
‘This case affords another vivid illustration of the inability of a court, in any jurisdiction, to protect children from all the consequences of the way their parents choose to behave. Where criticism of parenting is exclusively referable to issues of contact a transfer of residence will, of course, always remain the exceptional response, but there must be times when the court is able and seen to be willing to carry through a transfer of residence where all else has failed.’
Query whether the mother did indeed choose to behave in the manner she did, but the court endorsed the change of residence and in the process gave two pieces of advice to courts considering such a step.
First, there should be plenty of opportunity given to the parent at fault to improve his or her behaviour. In para 3 Wilson LJ wrote ‘I have no doubt that, in circumstances in which a court is considering whether to transfer residence by reference to contact difficulties, however extreme, created by the residential parent, it is in the interests of the child for warnings [of the possible necessity for change of residence were her course of conduct to continue], and thus opportunities for change, to be given.’ Though not unequivocally part of the ratio of the case, this is probably authority enough in my view to make an order made without such warnings, appealable.
The second advice concerns what to do when the order is made. In this case the Recorder refused permission to appeal and also refused an application for a stay of execution. At paragraph 27 Wilson LJ said that in his view a court faced with a dramatic change in the child’s life and an application for permission to appeal should always give serious consideration to staying the execution of its order (by whatever means) for a few hours to allow the aggrieved party an opportunity to seek relief from an appellate tribunal. (He then described the emergency procedures available to aspiring appellants even if no such stay is granted)
Now I have put the emphasis in the preceding paragraph to draw attention to the tentative nature of this guidance, but I wonder whether it is really guidance at all. His Lordship explains the rationale of his words in the next sentence where he says that ‘the judge needs to consider whether a refusal to afford a narrow opportunity for such an approach [i.e. a brief stay to allow an application to the appellate jurisdiction] unfairly erodes the facility for effective appeal.’
My difficulty with this is that the judge will have decided whether there is a need to provide a facility for an appeal in determining the application for permission so I fail to see why he should render his judgment vulnerable to the same attack from a different angle. Reading these remarks in the context of the whole judgment I think my Lord has fallen into error not by promoting fairness, but by suggesting that an unfair litigation advantage should be retained by one of the parties. To explain: courts are reluctant to make orders of the type in this case. Therefore a judgment which has not been given effect is far more likely to be overturned than one which has. If Wilson LJ’s guidance is followed then, a judge who has felt compelled to make an order and is convinced it is the right one (as shown by refusal to grant leave to appeal) should nonetheless hand an unfair advantage to the imminently-ex-resident parent by not requiring the order to be given effect until the appeal process (which, I repeat, the court has already ruled inappropriate) has been initiated.It seems to me that this second part of the guidance in the case is not so helpful as the first and seems to introduce to the process the sort of equivocality denigrated in Re C (A Child) 2007 (still unreported (unless you count my update of the 17th of July 2007) but demonstrably known about in the courts).
Family Advice and Information Service pilot report
One of the initiatives of the LSC has been to set up a pilot project in seven areas of the country predicated on the assumptions that family solicitors are a) unnecessarily expensive and b) too defensive of their role leading to an absence of joint working. The evaluation of the data collected over the life of the project established that neither is true.
In something of a Hoorah! To our desk-bound colleagues, the report finds the only real change in solicitors’ working methods is that they are marginally more likely to discuss mediation, but less likely to actually refer and that they took an average of eight more minutes to interview their clients. The report suggests that these unspectacular results might result from the fact that in other jurisdictions the engagement with non-legal solutions is a precondition of access to legal services. What that actually means is that where clients can get access to lawyers, they do, and I should have thought that to do fairness in the report, its authors should have said so. As it is, the report does absolutely nothing to support any proposed changes in the funding or arrangement of solicitors’ contracts but I am perfectly sure that that will not stop it happening.
In something of a Hoorah! To our desk-bound colleagues, the report finds the only real change in solicitors’ working methods is that they are marginally more likely to discuss mediation, but less likely to actually refer and that they took an average of eight more minutes to interview their clients. The report suggests that these unspectacular results might result from the fact that in other jurisdictions the engagement with non-legal solutions is a precondition of access to legal services. What that actually means is that where clients can get access to lawyers, they do, and I should have thought that to do fairness in the report, its authors should have said so. As it is, the report does absolutely nothing to support any proposed changes in the funding or arrangement of solicitors’ contracts but I am perfectly sure that that will not stop it happening.
Friday, 14 September 2007
Update 21st of August 2007
The Zimbabwean M v M reported last time now has a citation: [2007] EWHC 1820.
I am not alone in Chambers in having recently encountered a judge who was not capable of understanding the burden of proof. A timely reminder is found in G v D(1), X & Y(2) [2007] EWHC 1752 (Fam) wherein Lady Justice Black tip-toed through a mine-field of unattractive behaviour and unreliable witnesses and plainly kept in mind the guidance of H & Ors (Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 HL. It is a long read largely because of the factual complexity and because it is a first instance judgment so reasons have to be full, but while it is interesting, it does not move the law on: the standard is the civil standard; the more serious the allegation the more cogent the evidence required to satisfy that standard.
In contempt proceedings and only in criminal proceedings the criminal standard applies, but in Re JC (A Child) (2007) (for which I have Greg Dow to thank) we are reminded that the application of the criminal standard does not a criminal trial make. The disgruntled contemnor complained that he had been committed on the basis of evidence relating to an address other than that described on the occupation order and/or that the judge had not in his reasons dealt with all unresolved disputes in relation to, say, dates and times. The latter would not apply in a criminal trial but both points were of a type of pickiness which can work in that milieu.
Not here. The Court of Appeal held that though the address might have been wrong, the contemnor knew what it was he should not have done and the judge was sure that he had done it. The Court also gave short shrift to the second complaint, seeming to apply a similar purposive approach, i.e. that the court had been entitled on the evidence to find the contempt proved to the criminal standard even if (which the appellate court did not decide) there were some discrepancies in relation to other or contingent matters. Indeed, in relation to the address the court commented that had it been brought to the attention of the court below, the error could have been corrected by the slip-rule.
I doubt I am the only member of chambers who has encountered county court judges who treat every line of CCR O29 as being carved in stone. There is of course no excuse for not pleading or preparing a case properly, but just as Somerset v DFM (update 24th of July) suggests that it is wrong to adhere too precisely to the pleaded case, Re JC makes the same point in contempt proceedings.
This week I was consulted by a censorious 16 year old who did not like her mother’s live-out lover. She sought to compel the exercise of PR by her mother viz. by continuing to provide board and lodging despite her daughter’s continual, loud and disruptive disapproval. I advised that that was not a permissible use of s8 of the Children Act 1989 as her mother was not exercising her PR but abdicating from it, so s8 did not apply. Reference was made in passing to the limits to the use of s8 by the Court of Appeal last month in Re F (Declaration of Paternity). The issue for the Court was the regulation of the decision to inform a child about the truth concerning his paternity. The Times reports that the Court held the family justice system to be entitled to take the decision to tell or not to tell a child who his father was (which, by coincidence, the court did in D v G, X & Y above). But in so saying, the Court left unchallenged the comments (obiter dicta in my view) at paragraph 41 of J v C(1) & E(2) [2006] EWCA Civ 551 that that decision probably was not justiciable under s8.
There, Wall LJ opined that ‘There is a limit to which the court can and should seek to govern parental behaviour.’ That may be so, but Wall LJ was not required to decide the matter and did not do so. And in my view he was wrong, given that telling a child is plainly a decision relating to the exercise of PR, albeit that an order might not, in the interests of the child, be made. Having had myself to research s8 recently, I observe that there is precious little case-law on it save for PSOs relating to leaving the jurisdiction. Re F and J v C & E confirm my impression that the courts have a curious reluctance to use s8 where one might have thought a well-constructed skeleton would require it. I should be interested to hear colleagues’ views.
By contrast, Chief Constable of Greater Manchester Police v KI & KW [2005] EWHC 1837 (Fam) showed how s8 can be used when no other provision will achieve a desirable end. In an everyday story from my home town, a Mancunian mother left her 12yo and two 7yo daughters in the care of her 16yo son while she went to a funeral of a shooting-victim in London. As I remember my own mother doing (!), prior to leaving she buried a gun in the back garden and told the son where it was. He dug it up and shot his eldest sister dead in the presence of the younger two. He said that it had been in his pocket and ‘went off’ (begging the question how it got ammunition into it). The children were taken into care, custody and the morgue as appropriate and the Chief Constable sought permission to interview the girls given that the mother would not give her consent.
Joking apart, it was a terrible case and the eye-watering gall of the mother’s submissions at paragraph 34 have to be read to be believed, but there it is a thoughtful read about the nature of the court’s supervisory role in children’s lives and the process of balancing the public good and the welfare of children. In the event, there was substantial evidence that contrary to the self-serving and breath-taking contentions of the mother and son that the little ones had suffered enough, they would actually benefit from being interviewed. The decision was therefore straightforward (and largely determined by Re M (Permission to interview)).
I am not alone in Chambers in having recently encountered a judge who was not capable of understanding the burden of proof. A timely reminder is found in G v D(1), X & Y(2) [2007] EWHC 1752 (Fam) wherein Lady Justice Black tip-toed through a mine-field of unattractive behaviour and unreliable witnesses and plainly kept in mind the guidance of H & Ors (Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 HL. It is a long read largely because of the factual complexity and because it is a first instance judgment so reasons have to be full, but while it is interesting, it does not move the law on: the standard is the civil standard; the more serious the allegation the more cogent the evidence required to satisfy that standard.
In contempt proceedings and only in criminal proceedings the criminal standard applies, but in Re JC (A Child) (2007) (for which I have Greg Dow to thank) we are reminded that the application of the criminal standard does not a criminal trial make. The disgruntled contemnor complained that he had been committed on the basis of evidence relating to an address other than that described on the occupation order and/or that the judge had not in his reasons dealt with all unresolved disputes in relation to, say, dates and times. The latter would not apply in a criminal trial but both points were of a type of pickiness which can work in that milieu.
Not here. The Court of Appeal held that though the address might have been wrong, the contemnor knew what it was he should not have done and the judge was sure that he had done it. The Court also gave short shrift to the second complaint, seeming to apply a similar purposive approach, i.e. that the court had been entitled on the evidence to find the contempt proved to the criminal standard even if (which the appellate court did not decide) there were some discrepancies in relation to other or contingent matters. Indeed, in relation to the address the court commented that had it been brought to the attention of the court below, the error could have been corrected by the slip-rule.
I doubt I am the only member of chambers who has encountered county court judges who treat every line of CCR O29 as being carved in stone. There is of course no excuse for not pleading or preparing a case properly, but just as Somerset v DFM (update 24th of July) suggests that it is wrong to adhere too precisely to the pleaded case, Re JC makes the same point in contempt proceedings.
This week I was consulted by a censorious 16 year old who did not like her mother’s live-out lover. She sought to compel the exercise of PR by her mother viz. by continuing to provide board and lodging despite her daughter’s continual, loud and disruptive disapproval. I advised that that was not a permissible use of s8 of the Children Act 1989 as her mother was not exercising her PR but abdicating from it, so s8 did not apply. Reference was made in passing to the limits to the use of s8 by the Court of Appeal last month in Re F (Declaration of Paternity). The issue for the Court was the regulation of the decision to inform a child about the truth concerning his paternity. The Times reports that the Court held the family justice system to be entitled to take the decision to tell or not to tell a child who his father was (which, by coincidence, the court did in D v G, X & Y above). But in so saying, the Court left unchallenged the comments (obiter dicta in my view) at paragraph 41 of J v C(1) & E(2) [2006] EWCA Civ 551 that that decision probably was not justiciable under s8.
There, Wall LJ opined that ‘There is a limit to which the court can and should seek to govern parental behaviour.’ That may be so, but Wall LJ was not required to decide the matter and did not do so. And in my view he was wrong, given that telling a child is plainly a decision relating to the exercise of PR, albeit that an order might not, in the interests of the child, be made. Having had myself to research s8 recently, I observe that there is precious little case-law on it save for PSOs relating to leaving the jurisdiction. Re F and J v C & E confirm my impression that the courts have a curious reluctance to use s8 where one might have thought a well-constructed skeleton would require it. I should be interested to hear colleagues’ views.
By contrast, Chief Constable of Greater Manchester Police v KI & KW [2005] EWHC 1837 (Fam) showed how s8 can be used when no other provision will achieve a desirable end. In an everyday story from my home town, a Mancunian mother left her 12yo and two 7yo daughters in the care of her 16yo son while she went to a funeral of a shooting-victim in London. As I remember my own mother doing (!), prior to leaving she buried a gun in the back garden and told the son where it was. He dug it up and shot his eldest sister dead in the presence of the younger two. He said that it had been in his pocket and ‘went off’ (begging the question how it got ammunition into it). The children were taken into care, custody and the morgue as appropriate and the Chief Constable sought permission to interview the girls given that the mother would not give her consent.
Joking apart, it was a terrible case and the eye-watering gall of the mother’s submissions at paragraph 34 have to be read to be believed, but there it is a thoughtful read about the nature of the court’s supervisory role in children’s lives and the process of balancing the public good and the welfare of children. In the event, there was substantial evidence that contrary to the self-serving and breath-taking contentions of the mother and son that the little ones had suffered enough, they would actually benefit from being interviewed. The decision was therefore straightforward (and largely determined by Re M (Permission to interview)).
Update 6th of August 2007
This week two interesting attempts to kick the Child Support Agency into shape, one case on loopy experts, two on Hague, a money case and two illustrating how late in the day a children case can be rescued.
Rowley & Ors v SoS for the DWP (‘Resolution’ intervening) [2007] EWCA Civ 598 is a decision on a case where a mother sought damages for psychological disturbance and for economic loss flowing from negligence – that is the CSA’s failure to deal timeously with her application to collect, and subsequently to enforce, maintenance against the children’s father. She lost.
Cited in that judgment is R (Kehoe) v SoS for Work & Pensions [2005] UKHL 48 which was a claim from a mother in a similar position for damages under Article 13 for a breach of her and the children’s Article 6 rights. That claim failed at the House of Lords (Baroness Hale dissenting) and by coincidence was reported the week following Rowley, having been the subject of an application before the ECHR for admissibility to that court to argue Mrs Kehoe’s case notwithstanding her failure in the HoL. She won and will proceed to the ECHR.
It is, to my mind, important to remember that the two women were claiming wholly different relief.
The trial judge struck Mrs Rowley’s claim out, reasoning that it was bound to fail as a common law duty by the SoS – a necessary prerequisite of success – was inconsistent with the statutory scheme of the Child Support Act 1991. In reaching this conclusion he opined that he was driven to that conclusion by Kehoe.
In Kehoe the Lords had considered whether there was a free-standing justiciable right to which Article 6 could attach. It is trite law that Article 6 does not exist in a vacuum: an applicant can only insist on a fair trial if the national scheme of law allows the issue in question to be tried. All five Law Lords addressed the mother’s (and in the case of Baroness Hale, the children’s) right to enforce maintenance obligations against the father. Four found that she had no right because the statutory scheme had been designed to entirely replace the previous enforcement mechanisms of the common law right to child support against a parent. Baroness Hale found that such a right survived the 1991 Act. In doing so she made a distinction between the enforcement mechanisms (which she accepted had been entirely swept away by the Act) and the right to maintenance itself. This, she argued existed at common law long before legislation came along, but it was unenforceable until given effect, first by the ecclesiastical courts, then the Poor Laws and then matrimonial laws as they developed in the century prior to their replacement in 1991 (save for Schedule 1 of the Children Act 1989) And because that right persisted, she argued, Article 6 was engaged and because the CSA had been so incompetent, Mrs Kehoe was entitled to damages under Article 13. Except of course she was not as this was a 4-1 decision.
Taking the judgment of the Court of Appeal from the top, Dyson LJ recognised that CSA cases are overwhelmingly for pure economic loss. Accordingly he reasoned that it was necessary to consider the three means by which a litigant can succeed in establishing a liability in negligence for such a loss. These were contained in Barclays and were a) the assumption of responsibility/reliance test (after Hedley Byrne v Heller), b) the three-fold test (proximity/foreseeability/just and reasonable, after Caparo v Dickman) and the incremental test (which in this case was held to add nothing). The court rejected the first and third of these and accepted the first two parts of the Caparo test but in looking at the third, reasoned that it was highly relevant what other options Mrs Rowley had faced to avoid her plight. He cited with approval the comment of Hale LJ in A v Essex County Council [2003] EWCA Civ 1848 that “the important point is that a duty of care must not be inconsistent with the presumed intention of Parliament.”
At paragraph 66 of Rowley the trial judge’s error was spotted, in that the Dyson LJ commented:
The fact that a scheme is detailed and comprehensive so as to preclude any claim by the parent with care against the absent parent does not necessarily mean that a claim against the Secretary of State is also precluded. The question of the liability of the Secretary of State to a parent with care was not in issue in Kehoe.
He continued however:
But having regard to the nature of the complaints made by Mrs Kehoe, it would be surprising if the House of Lords had not considered whether the Secretary of State owed a common law duty of care to her...
though none of the noble Lords mentioned doing so. He went on:
... If Mrs Kehoe had a right of action in negligence against the Secretary of State, that would have been an answer to her claim, admittedly a different kind of answer to that given by the House of Lords... [who in fact gave no answer] ...the fact that no reference was made to the possibility of a claim for damages for negligence is of significance. Moreover, the... emphatic observation of Lord Brown is particularly important: “the only right now enjoyed by those in Mrs Kehoe’s position is to look to the CSA for the proper discharge of its public law obligations under the statute, a right which of course is itself sustainable under the courts’ supervisory jurisdiction.”
This seems to me, with due respect to the Court of Appeal, dangerous reasoning. The proper approach to Kehoe was surely to distinguish it and mention it no more. Citing what it did not say as authority for a finding on another issue surely cannot be right?
Dyson LJ then considered the putative fact that there is a route of appeal prescribed in the 1991 Act (as amended) i.e. to an appeal tribunal, and that from 1998 s46A of the Act provided that the decision of the SoS or tribunal where a route of appeal existed was final.
This is, with respect, a thoroughly bad point as that route (insofar as it was in force at all at the relevant times) concerned only decisions of the SoS. There is not, was not and never has been a means of complaining within the Act about the SoS’s failure to decide or to failure to act in accordance with a decision.
Dyson LJ might have been thought to have dealt with this by reference to the interest provisions of s40 (now penalty payments provisions of s41A) which he said provided the very compensation (together with ex gratia payments) that Mrs Rowley sought, to which he added that the mechanism of judicial review was available to an applicant to compel the CSA to act.
(He also mentioned that the Ombudsman service had a role but as that service was established independently of the 1991 Act adn for broader purposes, it is not clear to me how it can be relevant to whether the SoS might owe a duty. Paragraph 79 (that the Ombudsman existed in 1991 so Parliament must have thought he could act to protect applicants) is another rather unsatisfactory leap of deduction to my mind)
But despite what he said about the appeal and interest provisions, in paragraph 74 and 75 Dyson LJ accepted that the whole scheme would not cover all the losses caused to an applicant from all instances of the incompetence of the Agency but concludes that that is insufficient reason to find that a duty exists on the part of the SoS to deal with applications in good time.
Lord Reid in Dorset Yacht v Home Office [1970] AC 1004 described the law thus:
When Parliament confers a discretion... there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred... Parliament cannot be supposed to have granted immunity to persons who do that... [the officers in question] were given orders which they negligently failed to carry out.
Could there be a better description of the CSA failing to process an application in good time or failing to take enforcement action against a non-payer? Is that not something which the SoS is obliged to do but simply does not do so?
Lord Browne-Wilkinson in his seminal judgment in X (Minors) v Bedfordshire CC [1995] 2 AC 933 played down the relevance of whether a public authority was or was not operating within its powers – he felt that that was an unhelpful importation of administrative law principles into tort – but made the distinction instead between areas of policy or discretion (from which no liability can arise) and those of operation (from which it can).
So in this case the CSA had made decisions (the discretion) but failed to do anything about them (operational matters) which would seem to fall outside of the protection Parliament would have intended per X (Minors). Alternatively, the CSA having made a decision from which the operational imperative was clear, and simply did not follow through so offending against Dorset Yacht.
The court (who were not taken to the passages I have cited) appears to have determined the case on the three bases at paragraph 72 i.e. i) that there is a right of appeal in the 1991 Act; ii) the Act contains ways of getting compensation for payments in arrear and iii) there’s always the Admin Court to get the SoS to get a move on. It did not appear to consider i) that the right of appeal is limited in scope and did not cover Mrs Rowley’s complaint; ii) that the provisions for payments in arrears could not conceivably have been designed to deal with the arrears induced by the CSA’s own lack of action and; iii) that the Admin Court is a very expensive and less available alternative to the County Court.
It has been suggested that it is relevant that the seven lawyers in the case were specialists in administrative law and tort, and none of the three judges known for family expertise. Furthermore Mrs Rowley’s team and the intervenor’s are said to have slipped up by admitting that there was no private law right to sue the SoS for breach of statutory duty. I cannot see the force in either of those points but perhaps the better focus for the way ahead is to hope that Mrs Kehoe succeeds in her rather more imaginative trip to the ECHR.
Re J & O 20th July 2007
I have not been able to find a reference or report for HHJ Cahill QC’s judgment while sitting in the High Court in Re J & O and would be grateful to anyone who can do so and circulate it. It should be a brief read and a salutatory one as it is a warning not to get too excited about every favourable expert.
Not knowing who it was I cannot libel them, but it seems that the mother’s psychologist was a loon who completely ignored the High Court judge’s findings and made an assessment of the mother in relation to contact with her children in the care of the local authority on the basis of what the mother said alone. This being very much more favourable than the court’s findings, the report was rather more positive than might otherwise have been expected. It was also unhesitatingly rejected as being useless, another report ordered, the matter put back and the mother’s case almost certainly weakened by the delay which was necessarily occasioned.
M v M [Roderick Wood J, HC] not to be confused with M v M (2007) [Sumner J] [2007] EWHC Fam 1404
The first of these is a reminder of how strictly our courts enforce the Hague Convention. For all that the mother was held to be extremely unreliable in contrast to the father, one might have thought that a pleading of ‘grave risk’ of return to Zimbabwe per Art 13(b) of the Convention, together with a finding that the children were actually settled per Art 12, and their expressing their objections to return would be enough for the mother to retain the children here despite her unlawful removal. It is perhaps relevant (though I have not read the report) that six months delay, during which the children would have become attached to their new home, was occasioned by bad advice in Zimbabwe so that the judge discounted the settlement and objection points.
In any event, the children were returned to that unhappy country and next time I have a client wanting to take a child on holiday to Syria or other unpopular destination I shall pray to be before R Wood J.
In Sumner J’s M v M the comment was made that the court was not aware of any case in which a child had been returned once the putatively abducting parent had proved that there was consent to the removal (that not being procured by fraud). One would hope that this would be so, as surely no-one should be afforded the opportunity to change their mind over so important a decision, but it could be a useful reminder.
Avis v Turner [2007] EWCA 748 nearly made it into the update two weeks ago and though I discussed it with our head of chambers I have not been able to digest it thoroughly. YET AGAIN, I invite someone to type a few lines on this most interesting subject. For those who are strangers to law and news pages, this is the case where the Trustee in Bankruptcy successfully went after a wife occupying a home under a Mesher or Martin order, for the part of the house which the Trustee (and the court) treated as belonging to her former spouse. This was many years after the divorce and would cause a substantial difference to the style of living of the former wife (if not actual hardship). I have deliberately not checked the facts of the terms of her occupation in the hope that I will irritate someone enough with my inaccuracy that they will respond with an explanation of the true position...
Re W (Children) [2007] EWCA 753 is a blissfully short judgment which does little other than to demonstrate that one may rescue a contact situation surprisingly late in the day, and also remind us that the family courts will take an unusually lenient approach to the admission of new information on appeal where it is in the interests of the children. Indeed, in giving leave, Wall J actually advised the father’s advisors what to bring to court.
The case concerned two young children who had abruptly ceased seeing their father following the breakdown of the parents’ relationship, and subsequent FLA proceedings. CAFCASS did a cursory job and in the view of the Court of Appeal, only began to consider contact with the father as an option in the witness box. Nevertheless his recommendation remained for limited letter-box contact.
Pending the oral hearing for the appeal – the only purpose of which seems to have been for Wall J to give the father an opportunity to succeed – the father procured data about a not-for-profit organisation which worked to re-establish contact. The court referred the father to that organisation and the case continues.
Rowley & Ors v SoS for the DWP (‘Resolution’ intervening) [2007] EWCA Civ 598 is a decision on a case where a mother sought damages for psychological disturbance and for economic loss flowing from negligence – that is the CSA’s failure to deal timeously with her application to collect, and subsequently to enforce, maintenance against the children’s father. She lost.
Cited in that judgment is R (Kehoe) v SoS for Work & Pensions [2005] UKHL 48 which was a claim from a mother in a similar position for damages under Article 13 for a breach of her and the children’s Article 6 rights. That claim failed at the House of Lords (Baroness Hale dissenting) and by coincidence was reported the week following Rowley, having been the subject of an application before the ECHR for admissibility to that court to argue Mrs Kehoe’s case notwithstanding her failure in the HoL. She won and will proceed to the ECHR.
It is, to my mind, important to remember that the two women were claiming wholly different relief.
The trial judge struck Mrs Rowley’s claim out, reasoning that it was bound to fail as a common law duty by the SoS – a necessary prerequisite of success – was inconsistent with the statutory scheme of the Child Support Act 1991. In reaching this conclusion he opined that he was driven to that conclusion by Kehoe.
In Kehoe the Lords had considered whether there was a free-standing justiciable right to which Article 6 could attach. It is trite law that Article 6 does not exist in a vacuum: an applicant can only insist on a fair trial if the national scheme of law allows the issue in question to be tried. All five Law Lords addressed the mother’s (and in the case of Baroness Hale, the children’s) right to enforce maintenance obligations against the father. Four found that she had no right because the statutory scheme had been designed to entirely replace the previous enforcement mechanisms of the common law right to child support against a parent. Baroness Hale found that such a right survived the 1991 Act. In doing so she made a distinction between the enforcement mechanisms (which she accepted had been entirely swept away by the Act) and the right to maintenance itself. This, she argued existed at common law long before legislation came along, but it was unenforceable until given effect, first by the ecclesiastical courts, then the Poor Laws and then matrimonial laws as they developed in the century prior to their replacement in 1991 (save for Schedule 1 of the Children Act 1989) And because that right persisted, she argued, Article 6 was engaged and because the CSA had been so incompetent, Mrs Kehoe was entitled to damages under Article 13. Except of course she was not as this was a 4-1 decision.
Taking the judgment of the Court of Appeal from the top, Dyson LJ recognised that CSA cases are overwhelmingly for pure economic loss. Accordingly he reasoned that it was necessary to consider the three means by which a litigant can succeed in establishing a liability in negligence for such a loss. These were contained in Barclays and were a) the assumption of responsibility/reliance test (after Hedley Byrne v Heller), b) the three-fold test (proximity/foreseeability/just and reasonable, after Caparo v Dickman) and the incremental test (which in this case was held to add nothing). The court rejected the first and third of these and accepted the first two parts of the Caparo test but in looking at the third, reasoned that it was highly relevant what other options Mrs Rowley had faced to avoid her plight. He cited with approval the comment of Hale LJ in A v Essex County Council [2003] EWCA Civ 1848 that “the important point is that a duty of care must not be inconsistent with the presumed intention of Parliament.”
At paragraph 66 of Rowley the trial judge’s error was spotted, in that the Dyson LJ commented:
The fact that a scheme is detailed and comprehensive so as to preclude any claim by the parent with care against the absent parent does not necessarily mean that a claim against the Secretary of State is also precluded. The question of the liability of the Secretary of State to a parent with care was not in issue in Kehoe.
He continued however:
But having regard to the nature of the complaints made by Mrs Kehoe, it would be surprising if the House of Lords had not considered whether the Secretary of State owed a common law duty of care to her...
though none of the noble Lords mentioned doing so. He went on:
... If Mrs Kehoe had a right of action in negligence against the Secretary of State, that would have been an answer to her claim, admittedly a different kind of answer to that given by the House of Lords... [who in fact gave no answer] ...the fact that no reference was made to the possibility of a claim for damages for negligence is of significance. Moreover, the... emphatic observation of Lord Brown is particularly important: “the only right now enjoyed by those in Mrs Kehoe’s position is to look to the CSA for the proper discharge of its public law obligations under the statute, a right which of course is itself sustainable under the courts’ supervisory jurisdiction.”
This seems to me, with due respect to the Court of Appeal, dangerous reasoning. The proper approach to Kehoe was surely to distinguish it and mention it no more. Citing what it did not say as authority for a finding on another issue surely cannot be right?
Dyson LJ then considered the putative fact that there is a route of appeal prescribed in the 1991 Act (as amended) i.e. to an appeal tribunal, and that from 1998 s46A of the Act provided that the decision of the SoS or tribunal where a route of appeal existed was final.
This is, with respect, a thoroughly bad point as that route (insofar as it was in force at all at the relevant times) concerned only decisions of the SoS. There is not, was not and never has been a means of complaining within the Act about the SoS’s failure to decide or to failure to act in accordance with a decision.
Dyson LJ might have been thought to have dealt with this by reference to the interest provisions of s40 (now penalty payments provisions of s41A) which he said provided the very compensation (together with ex gratia payments) that Mrs Rowley sought, to which he added that the mechanism of judicial review was available to an applicant to compel the CSA to act.
(He also mentioned that the Ombudsman service had a role but as that service was established independently of the 1991 Act adn for broader purposes, it is not clear to me how it can be relevant to whether the SoS might owe a duty. Paragraph 79 (that the Ombudsman existed in 1991 so Parliament must have thought he could act to protect applicants) is another rather unsatisfactory leap of deduction to my mind)
But despite what he said about the appeal and interest provisions, in paragraph 74 and 75 Dyson LJ accepted that the whole scheme would not cover all the losses caused to an applicant from all instances of the incompetence of the Agency but concludes that that is insufficient reason to find that a duty exists on the part of the SoS to deal with applications in good time.
Lord Reid in Dorset Yacht v Home Office [1970] AC 1004 described the law thus:
When Parliament confers a discretion... there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred... Parliament cannot be supposed to have granted immunity to persons who do that... [the officers in question] were given orders which they negligently failed to carry out.
Could there be a better description of the CSA failing to process an application in good time or failing to take enforcement action against a non-payer? Is that not something which the SoS is obliged to do but simply does not do so?
Lord Browne-Wilkinson in his seminal judgment in X (Minors) v Bedfordshire CC [1995] 2 AC 933 played down the relevance of whether a public authority was or was not operating within its powers – he felt that that was an unhelpful importation of administrative law principles into tort – but made the distinction instead between areas of policy or discretion (from which no liability can arise) and those of operation (from which it can).
So in this case the CSA had made decisions (the discretion) but failed to do anything about them (operational matters) which would seem to fall outside of the protection Parliament would have intended per X (Minors). Alternatively, the CSA having made a decision from which the operational imperative was clear, and simply did not follow through so offending against Dorset Yacht.
The court (who were not taken to the passages I have cited) appears to have determined the case on the three bases at paragraph 72 i.e. i) that there is a right of appeal in the 1991 Act; ii) the Act contains ways of getting compensation for payments in arrear and iii) there’s always the Admin Court to get the SoS to get a move on. It did not appear to consider i) that the right of appeal is limited in scope and did not cover Mrs Rowley’s complaint; ii) that the provisions for payments in arrears could not conceivably have been designed to deal with the arrears induced by the CSA’s own lack of action and; iii) that the Admin Court is a very expensive and less available alternative to the County Court.
It has been suggested that it is relevant that the seven lawyers in the case were specialists in administrative law and tort, and none of the three judges known for family expertise. Furthermore Mrs Rowley’s team and the intervenor’s are said to have slipped up by admitting that there was no private law right to sue the SoS for breach of statutory duty. I cannot see the force in either of those points but perhaps the better focus for the way ahead is to hope that Mrs Kehoe succeeds in her rather more imaginative trip to the ECHR.
Re J & O 20th July 2007
I have not been able to find a reference or report for HHJ Cahill QC’s judgment while sitting in the High Court in Re J & O and would be grateful to anyone who can do so and circulate it. It should be a brief read and a salutatory one as it is a warning not to get too excited about every favourable expert.
Not knowing who it was I cannot libel them, but it seems that the mother’s psychologist was a loon who completely ignored the High Court judge’s findings and made an assessment of the mother in relation to contact with her children in the care of the local authority on the basis of what the mother said alone. This being very much more favourable than the court’s findings, the report was rather more positive than might otherwise have been expected. It was also unhesitatingly rejected as being useless, another report ordered, the matter put back and the mother’s case almost certainly weakened by the delay which was necessarily occasioned.
M v M [Roderick Wood J, HC] not to be confused with M v M (2007) [Sumner J] [2007] EWHC Fam 1404
The first of these is a reminder of how strictly our courts enforce the Hague Convention. For all that the mother was held to be extremely unreliable in contrast to the father, one might have thought that a pleading of ‘grave risk’ of return to Zimbabwe per Art 13(b) of the Convention, together with a finding that the children were actually settled per Art 12, and their expressing their objections to return would be enough for the mother to retain the children here despite her unlawful removal. It is perhaps relevant (though I have not read the report) that six months delay, during which the children would have become attached to their new home, was occasioned by bad advice in Zimbabwe so that the judge discounted the settlement and objection points.
In any event, the children were returned to that unhappy country and next time I have a client wanting to take a child on holiday to Syria or other unpopular destination I shall pray to be before R Wood J.
In Sumner J’s M v M the comment was made that the court was not aware of any case in which a child had been returned once the putatively abducting parent had proved that there was consent to the removal (that not being procured by fraud). One would hope that this would be so, as surely no-one should be afforded the opportunity to change their mind over so important a decision, but it could be a useful reminder.
Avis v Turner [2007] EWCA 748 nearly made it into the update two weeks ago and though I discussed it with our head of chambers I have not been able to digest it thoroughly. YET AGAIN, I invite someone to type a few lines on this most interesting subject. For those who are strangers to law and news pages, this is the case where the Trustee in Bankruptcy successfully went after a wife occupying a home under a Mesher or Martin order, for the part of the house which the Trustee (and the court) treated as belonging to her former spouse. This was many years after the divorce and would cause a substantial difference to the style of living of the former wife (if not actual hardship). I have deliberately not checked the facts of the terms of her occupation in the hope that I will irritate someone enough with my inaccuracy that they will respond with an explanation of the true position...
Re W (Children) [2007] EWCA 753 is a blissfully short judgment which does little other than to demonstrate that one may rescue a contact situation surprisingly late in the day, and also remind us that the family courts will take an unusually lenient approach to the admission of new information on appeal where it is in the interests of the children. Indeed, in giving leave, Wall J actually advised the father’s advisors what to bring to court.
The case concerned two young children who had abruptly ceased seeing their father following the breakdown of the parents’ relationship, and subsequent FLA proceedings. CAFCASS did a cursory job and in the view of the Court of Appeal, only began to consider contact with the father as an option in the witness box. Nevertheless his recommendation remained for limited letter-box contact.
Pending the oral hearing for the appeal – the only purpose of which seems to have been for Wall J to give the father an opportunity to succeed – the father procured data about a not-for-profit organisation which worked to re-establish contact. The court referred the father to that organisation and the case continues.
Update 1st of August 2007
New legislation on forced marriages this week, a couple of consultations, and cases on matrimonial finance, how not to act as a litigant in person in a family case, and a potentially invaluable tool in child-protection matters.
DCSF CONSULTATIONS
Recently launched but missed by me include Staying Safe, a remarkable document, in my opinion, as I cannot see what the impetus for it is. It contains one decent proposal (to extent anti-bullying policies and training from schools into other areas of children’s services) though one would have hoped that that could be achieved without the need for a new strategy. Beyond that, it seems another means by which to encourage the belief that British children are the subject of huge danger from which they all need to be protected. For a counter-argument, see the book Freakonomics or the Paliamentary All Party Group for Adventure and Risk in Society (‘A Risc’), headed by Cheeky-Girl squeezing MP Lembit Opik. It might be thought that the proposal in Staying Safe to ‘launch a communications campaign to encourage parents to let their children play outside in safe environments’ is meant to achieve what A Risc seek, but I will believe it when I see it. The consultation runs to October.
In a similar vein, in the wake of the alleged abduction of a British child from a holiday villa in Portugal the Government invites comment on the paper Safeguarding Children who may have been Trafficked. This takes as its starting point a report by another agency as revealed in paragraph 3.1.1 under the heading What evidence is there for child trafficking? The paper reports that ... data collected by Child Exploitation Online Protection Centre (CEOP) in its scoping report (11 June 2007) provide evidence of child trafficking into and within the UK. The CEOP report identified 330 children as trafficked cases.
That is not actually true. The most striking feature of the CEOP document is the fact that all the data in it are from secondary or tertiary sources every one of which is an agent of intervention. That is to say, that the only evidence in the scoping report is evidence of the success of the state and its partners in tackling the problem.
The authors accept that in the case of 92% of boys they could not actually identify a cause and therefore the children might have been smuggled i.e. for their good rather than for exploitation.
Using a separate methodology, it was accepted that 68% of all the children in the survey might not have been trafficked and that only in 32% of cases (105) was there actual evidence of exploitation (including that the child had so claimed).
So this consultation is actually about 105 children in 18 months who have been successfully rescued by the state.
The paper goes on to speak about the phenomenon of trafficking within the UK and refers to a paper by CROP (the Coalition for the Removal of Pimping http://www.crop1.org.uk/), an organisation set up by a mother in the wake of the appalling experience of her daughter being drawn into prostitution and being murdered very soon after. It has three full time and three part-time staff. According to Safeguarding Children at paragraph 4.2.2 ‘there are documented cases of girls, born in the UK, being targeted for trafficking between towns and cities for sexual exploitation. Such cases are highlighted in [the CROP paper] “Trafficking in our midst”’ In fact it does nothing of the sort, and admits that there are actually no statistics to indicate the size of the problem.
Readers may remember that many millions of pounds of damage arose from riots in Birmingham which were caused by one community believing that another had raped some girls from the first community. It would be grotesque to suggest that the entirely well-meaning efforts of whoever published this consultation can be said to be equivalent of the rampant destruction of an area of the Midlands, but one has to worry about the necessity of the consultation given the sources of the data collected and the quality of the research upon which it is based.
If trafficking exists – and there certainly is some (see 4.2.1) – then it should not be allowed. But this paper seems to be long on supposition; very, very long on complicated descriptions of inter-agency working and short on real concrete proposals. As far as I can make out they are a) the establishment of a child trafficking desk within the CEOP (an excellent organisation, for all the shortcomings I might find in its involvement in this particular initiative) to disseminate best practice advice within the police (4.1.7.3) (a role acknowledged in the consultation to be a function outwith the police already fulfilled by the UK Human Trafficking Centre); b) the establishment of an NSPCC Child Trafficking Advice and Information Line (4.3.5); c) a requirement that 10% of each port’s immigration staff have specialist training in interviewing children and young people and an awareness of trafficking issues (4.3.6.8); d) a requirement that all agencies work with the new Border and Immigration Agency (4.3.6) and; e) commentary to the effect that as private fostering arrangements can be used to hide trafficked children, no-one should hold back from reporting concerns to the local authority which can use the registration requirements in Part IX of the Children Act 1989 to investigate (4.3.8).
4.5 to 10 are achingly complicated provisions telling agencies to work together and do what common sense would dictate, while paragraph 5 proposes a role in the prevention of trafficking of Local Safeguarding Children’s Boards (see s13 Children Act 2004 and Chapter 3 of Working Together to Safeguard Children DFES, 2006
(http://www.everychildmatters.gov.uk/_files/AE53C8F9D7AEB1B23E403514A6C1B17D.pdf)).
Appendix 2 is a commendable effort at trying to cover absolutely everyone who might be involved with a child, including librarians and fire officers, but excluding barristers, and to describe what should be done, but in the whole document there is one surprising lacuna: there is no power that I can see to allow detention of a child pending enquiries in circumstances where there is reasonable cause to believe that that child might be trafficked.
Perhaps it is thought that such a power is not necessary at a port as if an entry-clearance officer has doubts over the reliability of a person’s story of documents, he need not allow that person to enter without first interviewing him. But one would have thought that if there are going to be 10% of staff specially trained to interview children and young people at each port, it might be helpful to give an additional power to detain pending that specialist interview. It does not appear to me that the provisions of CA89 s46 meet the case: firstly they extend only to the police and secondly they require the police to remove the child to suitable accommodation or prevent its removal from accommodation. What is surely needed is a power to detain a child for a maximum of – say – two hours for interview (extendable on PACE-type lines or by application to the magistrates).
This prolix consultation ends fairly shortly on the 16th of August.
LAW
On the 26th of July, Royal Assent was given to the Forced Marriage (Civil Protection) Act 2007. This tacks a Part 4A onto the end of the Family Law Act 1996 starting at s63A. The said Part gives rise to a power of the court to order an injunction to prevent someone from taking any steps towards obliging another to enter a marriage against his or her will, whether that conduct is within the jurisdiction or elsewhere. Such an injunction is a ‘forced marriage protection order’.
The form of Part 4A is plainly modelled on non-molestation orders under s42 so there is provision to consider the welfare of the person being protected when considering whether to make the order; the order can be made on application or without application in relevant proceedings (though only against someone also involved in those proceedings (see s63C(6)(c))); it can be made ex-parte (and, Lord Woolf, the Act does use that term!); the application can be compromised by way of undertakings; a power of arrest can be attached; a warrant can be applied for on affidavit evidence for an arrest for breach where no power of arrest was attached and; the order can be for any period.
(A little historical note is that Singer J in the High Court found no difficulty in making an order of the type that would now be covered by Part 4A as long ago as February 2005 (Re SK Proposed Plaintiff [2004] EWHC 3202 (Fam) but he did so under his inherent jurisdiction which did not extend to county court judges. Notwithstanding Part 4A that judgment remains useful to see what the High Court can do and how it does it, and by providing a template order for the tricky business of getting other jurisdictions to co-operate.)
Finally I suspect that it might be the intention of Parliament that a breach of a Part 4A order should be punishable as a breach of s42A is i.e. in a criminal or civil court. On the other hand in 2005 the Government rejected the proposal of the Forced Marriage Unit to make a specific criminal offence of forcing someone into marriage (though to do so will almost certainly involve other offences), so perhaps I am wrong.
CASES
W (Children) [2007] EWCA Civ 786 is one of the most extraordinary judgments you will read this year. It concerns a father with a grievance against the system but who is far from unintelligent or uninformed. Indeed, he plainly spent a great deal of time researching disparate bits of law and cases on the internet and represented himself with great – too much – passion. He wanted the World to know that the System was involved in a campaign of child abuse (by requiring him to behave reasonably towards his children) and I would put good money on the fact that the expert he engaged to assist him (who the court was too delicate to name) was Dr L.F. Lowenstein, largely-unsuccessful champion of ‘parent alienation syndrome’.
The judgment makes no new law but it is plain that permission was granted to appeal right up to the Court of Appeal, and the judgment was reported, in order to publicise to all that the court system is not pursuing a campaign against absent parents, but simply applying the law. Consequently the judgment is written in an unusual form as it frequently addresses the reader, and I would advise practitioners to be aware of it in order to hand a copy to recalcitrant litigants in person.
North v North [2007] EWCA Civ 760 is the preliminary outcome of the case widely reported in the newspages where a wife applied for a variation of periodical payments 26 years after ancil proceedings were compromised on the basis of a consent order and got a capitalised sum at the county court of £202,000. The county court judge in his judgment ran through each of the reasons why in the intervening period she had lost money and concluded that none of them were matters for which the husband could be said to be responsible. But without any explanation (though seemingly because he thought the former husband could spare the cash and the former wife needed it) he then made a capitalised award representing £16,500 p.a.
Because of the absence of explanation the order could not stand, the Court of Appeal held, and it also went on to discuss the merits, coming close to agreeing with everything the county court had said about the reasons for the loss of fortune, but making this distinction: where the losses were occasioned by the financial mismanagement by the former wife, the former husband could not be expected to bail her out – he was not an insurer against all risk; but where it was through sheer misfortune, he might be. (Note that this point is not picked up in the digest on Lawtel which, until the final judgment is published, should be treated with caution)
Somerset v DFM (the father) [2007] EWCA Civ 810 is a case of which I managed to make use within 30 hours of judgment and could be very, very useful to practitioners. The meat of it is in paragraph 44. The local authority had made an application before the FPC for an interim care order and the matter was transferred to the county court. The district judge who got hold of it issued directions which, despite the presence of representation for the local authority, wrongly set the matter down for the first part of a split hearing. This was wrong for two reasons: firstly there was no need for a split hearing as the local authority was not seeking disposal – their application was merely for an ICO to allow further assessment of the parents who were co-operating splendidly; secondly because the local authority did not seek findings of fact – they just wanted an ICO to protect the child while they went about their business.
HHJ O’Malley (mentioned in glowing terms last week) heard the matter and but for introducing the erroneous concept of ‘no case to answer’ was broadly right in saying that the local authority failed to satisfy the test in s31. He was not asked to nor did he address his mind to s36 which was, from the luxurious position of outside the case, obviously the right course.
This led to Wall LJ saying in paragraph 44:
...in my judgment, a circuit judge is not necessarily obliged simply to try the case which is put in front of him. He is entitled – indeed obliged – to consider whether or not the case presented to him is being presented as it should be – and that the relief being sought is genuinely in the interests of the child.
The case I am currently involved in gives an example of how this might be useful. The local authority has produced a schedule of findings of fact which it invites the court to make in the first half of a split hearing. Those findings are not necessary to cross the s31 threshold as all parties concede that point. But the local authority seek them because they are entitled to ask, another local authority seek them because they are going to have to take the case on and want to know what they are dealing with, and the grandmother and mother want them in order to be able to get some finality and to move on.
We have a judge who sits in the criminal division, adding to the likelihood that she is inclined to restrict herself only to the findings sought. (Even family judges tend to do this because of the similarity between a fact-finding hearing and a contempt hearing under the CCR O29 rules). But it can be argued that it is in the interests of the children (who need protection from the fathers) for some finding to be made that there has been violence in the household notwithstanding that the individual allegations (now 1-4 years old) cannot stand up.
To my mind it was open to me to say that the court was compelled to consider what findings could be made on the basis of the evidence which were in the interests, and then to make those findings.
I may not succeed, but Wall LJ’s comments seem to me to be very powerful authority to allow parties to rescue a badly or infelicitously prosecuted case &/or to defeat an excessively technical approach by a party who denies allegations against him/her in childcare proceedings.
DCSF CONSULTATIONS
Recently launched but missed by me include Staying Safe, a remarkable document, in my opinion, as I cannot see what the impetus for it is. It contains one decent proposal (to extent anti-bullying policies and training from schools into other areas of children’s services) though one would have hoped that that could be achieved without the need for a new strategy. Beyond that, it seems another means by which to encourage the belief that British children are the subject of huge danger from which they all need to be protected. For a counter-argument, see the book Freakonomics or the Paliamentary All Party Group for Adventure and Risk in Society (‘A Risc’), headed by Cheeky-Girl squeezing MP Lembit Opik. It might be thought that the proposal in Staying Safe to ‘launch a communications campaign to encourage parents to let their children play outside in safe environments’ is meant to achieve what A Risc seek, but I will believe it when I see it. The consultation runs to October.
In a similar vein, in the wake of the alleged abduction of a British child from a holiday villa in Portugal the Government invites comment on the paper Safeguarding Children who may have been Trafficked. This takes as its starting point a report by another agency as revealed in paragraph 3.1.1 under the heading What evidence is there for child trafficking? The paper reports that ... data collected by Child Exploitation Online Protection Centre (CEOP) in its scoping report (11 June 2007) provide evidence of child trafficking into and within the UK. The CEOP report identified 330 children as trafficked cases.
That is not actually true. The most striking feature of the CEOP document is the fact that all the data in it are from secondary or tertiary sources every one of which is an agent of intervention. That is to say, that the only evidence in the scoping report is evidence of the success of the state and its partners in tackling the problem.
The authors accept that in the case of 92% of boys they could not actually identify a cause and therefore the children might have been smuggled i.e. for their good rather than for exploitation.
Using a separate methodology, it was accepted that 68% of all the children in the survey might not have been trafficked and that only in 32% of cases (105) was there actual evidence of exploitation (including that the child had so claimed).
So this consultation is actually about 105 children in 18 months who have been successfully rescued by the state.
The paper goes on to speak about the phenomenon of trafficking within the UK and refers to a paper by CROP (the Coalition for the Removal of Pimping http://www.crop1.org.uk/), an organisation set up by a mother in the wake of the appalling experience of her daughter being drawn into prostitution and being murdered very soon after. It has three full time and three part-time staff. According to Safeguarding Children at paragraph 4.2.2 ‘there are documented cases of girls, born in the UK, being targeted for trafficking between towns and cities for sexual exploitation. Such cases are highlighted in [the CROP paper] “Trafficking in our midst”’ In fact it does nothing of the sort, and admits that there are actually no statistics to indicate the size of the problem.
Readers may remember that many millions of pounds of damage arose from riots in Birmingham which were caused by one community believing that another had raped some girls from the first community. It would be grotesque to suggest that the entirely well-meaning efforts of whoever published this consultation can be said to be equivalent of the rampant destruction of an area of the Midlands, but one has to worry about the necessity of the consultation given the sources of the data collected and the quality of the research upon which it is based.
If trafficking exists – and there certainly is some (see 4.2.1) – then it should not be allowed. But this paper seems to be long on supposition; very, very long on complicated descriptions of inter-agency working and short on real concrete proposals. As far as I can make out they are a) the establishment of a child trafficking desk within the CEOP (an excellent organisation, for all the shortcomings I might find in its involvement in this particular initiative) to disseminate best practice advice within the police (4.1.7.3) (a role acknowledged in the consultation to be a function outwith the police already fulfilled by the UK Human Trafficking Centre); b) the establishment of an NSPCC Child Trafficking Advice and Information Line (4.3.5); c) a requirement that 10% of each port’s immigration staff have specialist training in interviewing children and young people and an awareness of trafficking issues (4.3.6.8); d) a requirement that all agencies work with the new Border and Immigration Agency (4.3.6) and; e) commentary to the effect that as private fostering arrangements can be used to hide trafficked children, no-one should hold back from reporting concerns to the local authority which can use the registration requirements in Part IX of the Children Act 1989 to investigate (4.3.8).
4.5 to 10 are achingly complicated provisions telling agencies to work together and do what common sense would dictate, while paragraph 5 proposes a role in the prevention of trafficking of Local Safeguarding Children’s Boards (see s13 Children Act 2004 and Chapter 3 of Working Together to Safeguard Children DFES, 2006
(http://www.everychildmatters.gov.uk/_files/AE53C8F9D7AEB1B23E403514A6C1B17D.pdf)).
Appendix 2 is a commendable effort at trying to cover absolutely everyone who might be involved with a child, including librarians and fire officers, but excluding barristers, and to describe what should be done, but in the whole document there is one surprising lacuna: there is no power that I can see to allow detention of a child pending enquiries in circumstances where there is reasonable cause to believe that that child might be trafficked.
Perhaps it is thought that such a power is not necessary at a port as if an entry-clearance officer has doubts over the reliability of a person’s story of documents, he need not allow that person to enter without first interviewing him. But one would have thought that if there are going to be 10% of staff specially trained to interview children and young people at each port, it might be helpful to give an additional power to detain pending that specialist interview. It does not appear to me that the provisions of CA89 s46 meet the case: firstly they extend only to the police and secondly they require the police to remove the child to suitable accommodation or prevent its removal from accommodation. What is surely needed is a power to detain a child for a maximum of – say – two hours for interview (extendable on PACE-type lines or by application to the magistrates).
This prolix consultation ends fairly shortly on the 16th of August.
LAW
On the 26th of July, Royal Assent was given to the Forced Marriage (Civil Protection) Act 2007. This tacks a Part 4A onto the end of the Family Law Act 1996 starting at s63A. The said Part gives rise to a power of the court to order an injunction to prevent someone from taking any steps towards obliging another to enter a marriage against his or her will, whether that conduct is within the jurisdiction or elsewhere. Such an injunction is a ‘forced marriage protection order’.
The form of Part 4A is plainly modelled on non-molestation orders under s42 so there is provision to consider the welfare of the person being protected when considering whether to make the order; the order can be made on application or without application in relevant proceedings (though only against someone also involved in those proceedings (see s63C(6)(c))); it can be made ex-parte (and, Lord Woolf, the Act does use that term!); the application can be compromised by way of undertakings; a power of arrest can be attached; a warrant can be applied for on affidavit evidence for an arrest for breach where no power of arrest was attached and; the order can be for any period.
(A little historical note is that Singer J in the High Court found no difficulty in making an order of the type that would now be covered by Part 4A as long ago as February 2005 (Re SK Proposed Plaintiff [2004] EWHC 3202 (Fam) but he did so under his inherent jurisdiction which did not extend to county court judges. Notwithstanding Part 4A that judgment remains useful to see what the High Court can do and how it does it, and by providing a template order for the tricky business of getting other jurisdictions to co-operate.)
Finally I suspect that it might be the intention of Parliament that a breach of a Part 4A order should be punishable as a breach of s42A is i.e. in a criminal or civil court. On the other hand in 2005 the Government rejected the proposal of the Forced Marriage Unit to make a specific criminal offence of forcing someone into marriage (though to do so will almost certainly involve other offences), so perhaps I am wrong.
CASES
W (Children) [2007] EWCA Civ 786 is one of the most extraordinary judgments you will read this year. It concerns a father with a grievance against the system but who is far from unintelligent or uninformed. Indeed, he plainly spent a great deal of time researching disparate bits of law and cases on the internet and represented himself with great – too much – passion. He wanted the World to know that the System was involved in a campaign of child abuse (by requiring him to behave reasonably towards his children) and I would put good money on the fact that the expert he engaged to assist him (who the court was too delicate to name) was Dr L.F. Lowenstein, largely-unsuccessful champion of ‘parent alienation syndrome’.
The judgment makes no new law but it is plain that permission was granted to appeal right up to the Court of Appeal, and the judgment was reported, in order to publicise to all that the court system is not pursuing a campaign against absent parents, but simply applying the law. Consequently the judgment is written in an unusual form as it frequently addresses the reader, and I would advise practitioners to be aware of it in order to hand a copy to recalcitrant litigants in person.
North v North [2007] EWCA Civ 760 is the preliminary outcome of the case widely reported in the newspages where a wife applied for a variation of periodical payments 26 years after ancil proceedings were compromised on the basis of a consent order and got a capitalised sum at the county court of £202,000. The county court judge in his judgment ran through each of the reasons why in the intervening period she had lost money and concluded that none of them were matters for which the husband could be said to be responsible. But without any explanation (though seemingly because he thought the former husband could spare the cash and the former wife needed it) he then made a capitalised award representing £16,500 p.a.
Because of the absence of explanation the order could not stand, the Court of Appeal held, and it also went on to discuss the merits, coming close to agreeing with everything the county court had said about the reasons for the loss of fortune, but making this distinction: where the losses were occasioned by the financial mismanagement by the former wife, the former husband could not be expected to bail her out – he was not an insurer against all risk; but where it was through sheer misfortune, he might be. (Note that this point is not picked up in the digest on Lawtel which, until the final judgment is published, should be treated with caution)
Somerset v DFM (the father) [2007] EWCA Civ 810 is a case of which I managed to make use within 30 hours of judgment and could be very, very useful to practitioners. The meat of it is in paragraph 44. The local authority had made an application before the FPC for an interim care order and the matter was transferred to the county court. The district judge who got hold of it issued directions which, despite the presence of representation for the local authority, wrongly set the matter down for the first part of a split hearing. This was wrong for two reasons: firstly there was no need for a split hearing as the local authority was not seeking disposal – their application was merely for an ICO to allow further assessment of the parents who were co-operating splendidly; secondly because the local authority did not seek findings of fact – they just wanted an ICO to protect the child while they went about their business.
HHJ O’Malley (mentioned in glowing terms last week) heard the matter and but for introducing the erroneous concept of ‘no case to answer’ was broadly right in saying that the local authority failed to satisfy the test in s31. He was not asked to nor did he address his mind to s36 which was, from the luxurious position of outside the case, obviously the right course.
This led to Wall LJ saying in paragraph 44:
...in my judgment, a circuit judge is not necessarily obliged simply to try the case which is put in front of him. He is entitled – indeed obliged – to consider whether or not the case presented to him is being presented as it should be – and that the relief being sought is genuinely in the interests of the child.
The case I am currently involved in gives an example of how this might be useful. The local authority has produced a schedule of findings of fact which it invites the court to make in the first half of a split hearing. Those findings are not necessary to cross the s31 threshold as all parties concede that point. But the local authority seek them because they are entitled to ask, another local authority seek them because they are going to have to take the case on and want to know what they are dealing with, and the grandmother and mother want them in order to be able to get some finality and to move on.
We have a judge who sits in the criminal division, adding to the likelihood that she is inclined to restrict herself only to the findings sought. (Even family judges tend to do this because of the similarity between a fact-finding hearing and a contempt hearing under the CCR O29 rules). But it can be argued that it is in the interests of the children (who need protection from the fathers) for some finding to be made that there has been violence in the household notwithstanding that the individual allegations (now 1-4 years old) cannot stand up.
To my mind it was open to me to say that the court was compelled to consider what findings could be made on the basis of the evidence which were in the interests, and then to make those findings.
I may not succeed, but Wall LJ’s comments seem to me to be very powerful authority to allow parties to rescue a badly or infelicitously prosecuted case &/or to defeat an excessively technical approach by a party who denies allegations against him/her in childcare proceedings.
Update 17th of July 2007
Not a lot to report this week save a report on change of residence (see below under 'OTHER NEWS') and the substantial draft legislative programme: http://www.official-documents.gov.uk/document/cm71/7175/7175.pdf. It is a long document and contains much of interest to us as citizens but as family practitioners it contains the Child Maintenance and Other Payments bill (as formerly mentioned - really just an Act purportedly tidying up the administration of such payments) and the Children in Care Bill.
It does appear that the government has approached children's issues with an amount of intelligence, apparently looking at the problem areas and then seeking to do something about it. Who'd have thought?
First evidence was the establishment of the Department of Children, Schools & Families which, according to the Secretary of State will take a lead on ALL matters relating to children from youth justice to class-room discipline. His first statement to the House was last Tuesday and is digested by him on You Tube (I kid you not!) in a slightly unsettling development in government communications. Not much was said, but to be fair he is in new territory.
Second evidence is that the said SoS is Ed Balls, who is apparently incapable of pronouncing the word 'bureaucracy' (Freudian?) but is notorious for being close to the new Prime Minister. This might have some positive funding implications but it is far too early to say whether this might assist in payments for the lawyers who give effect to some of the initiatives...
But in my view the CinC bill is the third and more substantial evidence that child policy might be turning in a positive direction. The White Paper runs to 144 pages (http://www.dfes.gov.uk/publications/timeforchange/docs/timeforchange.pdf, if you want to trawl through it) and in the initiatives it proposes plainly admits that the care system (Corporate Parenting as the bill puts it) has failed children. In particular, Chapter 7 proposes a number of alterations to social work practice right from recruitment through mentoring, CPD and review. The role of Independent Reviewing Officers is re-visited with the frank admission that they have not operated as they should, either being insufficiently independent or simply not reviewing. The paper does not propose externalising the IROs yet, but making it much clearer what their role is, appointing an IRO to every case.
(A complete cynic might point out that if IROs do their job properly there would be scope in the future to remove the role of Guardian from public law proceedings, with a considerable cost saving, and a transfer of what is currently a legal process of challenge into an administrative procedure. There is no such proposal.)
Chapter 2 deals with assisting parenting within the family and strengthens yet further the emphasis on finding a placement within the family or extended family, while Chapter 3 explores parenting outside the family including better training for fosterers, processes for making fostering more visible to potential fosterers and establishment of new standards and accountability for residential care. This latter is one of the more surprising and to my mind welcome developments in the bill. Paragraph 3.19 seems to suggest that the government has finally got the message that community placements are not always the best option for children. Accordingly the bill proposes more rigorous commissioning for care providers, the introduction of a 'social pedagogy' model into residential care, liaison with Youth Justice Boards to predict demand, development of national standards etc etc. Despite its horrible name, the 'social pedagogy' idea is, if I might say, both bold and exciting: it is in effect requiring residential care to do all that a loving parent would in terms of the overall development of his or her child: participation, expression, exploration, growth through association with others. At this stage the bill proposes an evaluation of those authorities who have been employing German and Danish pedagogues but having had some small experience in Denmark of this system, my personal hopes are quite high for the system. Whether providers of residential care have the imagination to give effect to it is perhaps a less happily answered question.
Other practical steps include the appointment of Designated Teachers for children in care, placing a requirement not to move children's schools in Years 10 & 11 save in exceptional circumstances and making the process of leaving care gentler and more tailored to the individual. This is currently being explored in a pilot which requires any change in the placement of a child aged 16-18 to be subject to review with an advocate of the child's choice. It is also proposed that children can remain with fosterers (that is, paid for, as they could do so anyway) until 21, and have a personal adviser up to 25, have a nest egg of £100 per year in care invested on their behalf and given to them on leaving, fees top-up for university and other practical help with accommodation and employment.
However, apart from ensuring compliance with the new methods of working, there is little in the bill for we lawyers. There is a greater emphasis on children's views throughout the process and though the bill does not always specify who is to provide advocacy to that end, it does not suggest that we should be involved.
Finally, if anyone can trace the person in the Department who chose the name for the leaving care pilot 'Right2B Cared4' and shoot them, I will contribute handsomely to your defence fund.
OTHER NEWS
On another subject, Ward J continues on his still-fairly-lonely campaign to encourage the lower courts to use change of residence as a tool to secure the best interests of the child. The judgment has yet to be published (given on the 3rd of July) but a useful comment for practitioners can be found in the lawtel report of Re C (A Child) 2007: "The option to make no order was an option of abdication that was all too frequently resorted to by the courts and led to appeals from fathers protesting that the courts failed to enforce their orders." I could not agree more, having been knocked-back by Hogg J in very similar circumstances. Without seeing the judgment I cannot comment further save to say that there are cases where it can be said that the disbenefit of a change of residence is outweighed by the disbenefit of leaving the child where s/he is and not having contact, but that it is the Devil's own job to persuade a court to act. Re C may help.
It seems that I might have a response to my request for an article on the Child Maintenance & Other Payments Act. It strikes me that someone would do the members of the teams a service in spending an hour of two knocking up a brief history of the development of the law in relation to changes of residence. In my experience, the process is treated by the lower courts & many practitioners an aberration. The quote from Re C makes clear that that attitude must stop. An article/model skeleton argument would be useful. Any takers?
It does appear that the government has approached children's issues with an amount of intelligence, apparently looking at the problem areas and then seeking to do something about it. Who'd have thought?
First evidence was the establishment of the Department of Children, Schools & Families which, according to the Secretary of State will take a lead on ALL matters relating to children from youth justice to class-room discipline. His first statement to the House was last Tuesday and is digested by him on You Tube (I kid you not!) in a slightly unsettling development in government communications. Not much was said, but to be fair he is in new territory.
Second evidence is that the said SoS is Ed Balls, who is apparently incapable of pronouncing the word 'bureaucracy' (Freudian?) but is notorious for being close to the new Prime Minister. This might have some positive funding implications but it is far too early to say whether this might assist in payments for the lawyers who give effect to some of the initiatives...
But in my view the CinC bill is the third and more substantial evidence that child policy might be turning in a positive direction. The White Paper runs to 144 pages (http://www.dfes.gov.uk/publications/timeforchange/docs/timeforchange.pdf, if you want to trawl through it) and in the initiatives it proposes plainly admits that the care system (Corporate Parenting as the bill puts it) has failed children. In particular, Chapter 7 proposes a number of alterations to social work practice right from recruitment through mentoring, CPD and review. The role of Independent Reviewing Officers is re-visited with the frank admission that they have not operated as they should, either being insufficiently independent or simply not reviewing. The paper does not propose externalising the IROs yet, but making it much clearer what their role is, appointing an IRO to every case.
(A complete cynic might point out that if IROs do their job properly there would be scope in the future to remove the role of Guardian from public law proceedings, with a considerable cost saving, and a transfer of what is currently a legal process of challenge into an administrative procedure. There is no such proposal.)
Chapter 2 deals with assisting parenting within the family and strengthens yet further the emphasis on finding a placement within the family or extended family, while Chapter 3 explores parenting outside the family including better training for fosterers, processes for making fostering more visible to potential fosterers and establishment of new standards and accountability for residential care. This latter is one of the more surprising and to my mind welcome developments in the bill. Paragraph 3.19 seems to suggest that the government has finally got the message that community placements are not always the best option for children. Accordingly the bill proposes more rigorous commissioning for care providers, the introduction of a 'social pedagogy' model into residential care, liaison with Youth Justice Boards to predict demand, development of national standards etc etc. Despite its horrible name, the 'social pedagogy' idea is, if I might say, both bold and exciting: it is in effect requiring residential care to do all that a loving parent would in terms of the overall development of his or her child: participation, expression, exploration, growth through association with others. At this stage the bill proposes an evaluation of those authorities who have been employing German and Danish pedagogues but having had some small experience in Denmark of this system, my personal hopes are quite high for the system. Whether providers of residential care have the imagination to give effect to it is perhaps a less happily answered question.
Other practical steps include the appointment of Designated Teachers for children in care, placing a requirement not to move children's schools in Years 10 & 11 save in exceptional circumstances and making the process of leaving care gentler and more tailored to the individual. This is currently being explored in a pilot which requires any change in the placement of a child aged 16-18 to be subject to review with an advocate of the child's choice. It is also proposed that children can remain with fosterers (that is, paid for, as they could do so anyway) until 21, and have a personal adviser up to 25, have a nest egg of £100 per year in care invested on their behalf and given to them on leaving, fees top-up for university and other practical help with accommodation and employment.
However, apart from ensuring compliance with the new methods of working, there is little in the bill for we lawyers. There is a greater emphasis on children's views throughout the process and though the bill does not always specify who is to provide advocacy to that end, it does not suggest that we should be involved.
Finally, if anyone can trace the person in the Department who chose the name for the leaving care pilot 'Right2B Cared4' and shoot them, I will contribute handsomely to your defence fund.
OTHER NEWS
On another subject, Ward J continues on his still-fairly-lonely campaign to encourage the lower courts to use change of residence as a tool to secure the best interests of the child. The judgment has yet to be published (given on the 3rd of July) but a useful comment for practitioners can be found in the lawtel report of Re C (A Child) 2007: "The option to make no order was an option of abdication that was all too frequently resorted to by the courts and led to appeals from fathers protesting that the courts failed to enforce their orders." I could not agree more, having been knocked-back by Hogg J in very similar circumstances. Without seeing the judgment I cannot comment further save to say that there are cases where it can be said that the disbenefit of a change of residence is outweighed by the disbenefit of leaving the child where s/he is and not having contact, but that it is the Devil's own job to persuade a court to act. Re C may help.
It seems that I might have a response to my request for an article on the Child Maintenance & Other Payments Act. It strikes me that someone would do the members of the teams a service in spending an hour of two knocking up a brief history of the development of the law in relation to changes of residence. In my experience, the process is treated by the lower courts & many practitioners an aberration. The quote from Re C makes clear that that attitude must stop. An article/model skeleton argument would be useful. Any takers?
Update 24th of July 2007
This week:
· a case demonstrating the durability of the rule in G v G (that on appeal in the family courts’ system an appellant will only succeed if the judge subject to that appeal is plainly wrong) and on case management;
· a case illustrating the unique considerations relevant to an application for leave to defend an adoption;
· a reminder of counsel’s duty to the court where a judgment is deficient and;
· a re-statement of the propositions for the court to consider when deciding whether to allow or forbid medical treatment to a child.
As ever, I should be grateful to hear from anyone prepared to submit an article for dissemination throughout the Family Law Team.
Somerset v D
In Somerset County Council v D & ors [2007] EWCA Civ 722 the President sat with Sedley & Wilson LJJ on an appeal from a decision each of us will have wanted to hear.
HHJ O’Malley sitting at Taunton had heard a case in which two drunkards had had their six children taken off them. The care plans before the judge in February were for adoption.
Despite the local authority having the full support of the Guardian and the parents problems being fairly chronic, the judge refused to make care orders, expressing the view that the parent’s should be given further opportunity to succeed, so made interim care orders. (This confirms my theory that the further you go from London the bolder judges are prepared to be) When the matter came back before him in March he made further interim care orders and was appealed on the basis that he had given insufficient reasons for that decision.
The Court of Appeal felt on balance that his reasons, though brief, were adequate, but that the appeal would succeed because the judge had entirely failed to give directions of sufficient formality &/or structure which would allow the adjournment to have a useful function: all parties needed to know what was expected of them and the standards against which they would be judged.
But – and this is the G v G point – the court did not make the final care orders which the local authority sought as it felt it could not find that HHJ O’Malley was wrong enough. In paragraph 8 the court spoke of the high regard in which the judge was held and that this judgment showed the depth of his compassion ‘and perhaps also... his courage’. That, to my mind, is as close to saying that he got it wrong without overturning him as it is possible to get.
The practical application of the judgment must be limited as one has to start with a judge brave enough to do what he personally thinks is right without thought to how it will look elsewhere. But as I have said, it is testament to the endurance of G v G.
Re P (A Child)(2007)
A less happy case is Re P (A Child)(2007) [2007] EWCA Civ 616 in which Thorpe and Wall LJJ and Hedley J sat.
The point on appeal was rather simple: when the court is considering the exercise of its discretion under s47 of the Adoption & Children Act 2002 (i.e. should the parents be able to defend adoption proceedings in the light of changes of circumstances) are the interests of the child or children paramount (as is suggested by s1 of the same Act)? The question being simpler than the answer, it was necessary that this be dealt with as there did not appear to be any guidance from the higher courts as to the interrelationship between the two sections and therefore, how judges at first instance should proceed. The answer provided by the Court of Appeal was ‘Yes’: the child’s interests were paramount and this is the principal significance of the judgment as a precedent.
The judgment at first instance was, in my view, a harsh one. The baby in question had been taken from its parents when just two days old. A few months before the adoption application was to be heard they had had another baby. They entered a residential assessment with that child which was successful and though the child remained on the child protection register, no proceedings were initiated nor in prospect.
The judge held that in the light of his fairly dim view of the progress made by the parents (which he described as ‘...inchoate... to be applauded but not finally crowned...’) they had not shown a relevant change of circumstances so did not satisfy s47(7). The Court of Appeal commented that had he stopped there, they might have been minded to overturn him.
Unfortunately for the parents, the judge then continued that even if he were wrong, the other circumstances of the case, including the bond built with the prospective adopters, meant that it would not be in the child’s interests for her parents to defend.
In my introduction I mentioned a unique feature of applications to defend, and it is this: applications to become involved in proceedings are normally under s10(9) of the Children Act 1989. As such the only relevance of the interests of the child/ren is where the admission of a party carries a risk that it will ‘disrupt... the child’s life to such an extent that he would be harmed by it.’ (s10(9)(c)) whereupon the party should not be admitted. The applicant’s prospects are irrelevant, to some extent so is delay, and the application is to be dealt with on the basis of fairness to the applicant rather. The same reasoning applies to applications for Special Guardianship Orders under s14A of the CA 89.
Applications to defend an adoption however fall foul of s1(7)(b) of that Act and are thereby subject to the paramount interests of the child and it is for this reason that the Court of Appeal found that the judge at first interest was entirely within his jurisdiction to proceed as he did.
Which leaves two interesting questions to my mind:
firstly, though in paragraph 52 et seq the Court addressed the question ‘Was the hearing fair’, it did so with reference only to the materials available to the court, the state of knowledge of the judge and so on. It did not address, nor does it appear to have been invited to address, the apparent conflict between the guidance in Re L (Care Proceedings: Fair Trial) and the outcome of the reasoning on s1 of the ACA 02 in this case (readers will remember Munby LJ’s Portia-like comments to the effect that the quality of Article 6 fairness could not be subsumed by the Article 8 or other rights of a child)
second, I see no reference in the judgment (nor in what it repeats from the first instance judgment) to the importance of placement within the family. At the time of the application to defend, the first and subject child was just 20 months old. That she had bonded with the prospective adopters was unquestionable and probably not surprising as she had never had an opportunity to bond with anyone else. I am unsettled to see mentioned in paragraph 2 of the Court’s judgment that the application by the parents was opposed by the prospective adopters as the ACA 02 does not involve them (see s1(4)), nor can I think of any principle of law which would do so. As I wrote last week, it may be that the emphasis on placement within the family may soon be restated in forthcoming legislation. In this case that emphasis seems to have been sidestepped by a very quick placement at the beginning of the child’s life and which set the pattern of her being brought up by (no doubt perfectly-competent) strangers.
Re S (Omission from Judgment) [2007] EWCA Civ 694
In this judgment the Court of Appeal reminded practitioners that it was not appropriate for counsel to ask for permission to appeal from a judgment just delivered without first discussing with the judge the flaw which had been spotted and inviting him or her to remedy it. Though slightly depressing that we should have to be reminded of this rather obvious point, here it is re-stated.
The NHS Trust v A [2007] EWHC 1696 (Fam) 18/07/07
This is of course of academic interest to me as I am unlikely ever to be involved in such matters, but readers may be interested to know that Holman J sat on this slightly unusual human-interest case and in doing so restated his principles for decision making which he had promulgated a year before (An NHS Trust c MB)
The parents were educated and professional people whose Christian faith was much in evidence throughout the proceedings. The judge evidently felt a special responsibility as their respect for the law made it likely that they would abide by his decision notwithstanding that they might fundamentally disagree with it (and as it turned out, did so disagree).
I have described this as unusual for two reasons: firstly it was a case in which the Trust wanted to carry out a procedure to prolong life whereas the parents opposed it; secondly because the options were certain death without intervention and anything up to a full recovery and ordinary life (with a question mark about fertility alone) with intervention.
The judge at paragraph 40 repeated his propositions of which two are operative rather than administrative. They are vii/viii – that there is a strong presumption in all such cases that life should be prolonged (that presumption being rebuttable) and ix – that each case is fact specific.
The child had been born apparently healthy but had rapidly deteriorated and spent time in a Paediatric Intensive Care Unit. This was a horrible experience for the parents and, in anyone’s view but particularly theirs, for their daughter. The Trust sought to execute a bone marrow transplant which would involve about two months’ treatment. It would undoubtedly be painful and could perhaps lead to a painful death, but on the one hand, without it she would die, and on the other, if it worked she would have an entire life with a normal span and without complications save the likely loss of fertility.
In conclusion it seems that the parents were overwhelmed by the hideousness of what they had seen and did not feel they could allow anything similar to happen again. They had a slightly exaggerated view of how long the intervention would last but no-one was likely to criticise them for that. But in the end, the proposition that life should be prolonged and the unusually high potential benefit to the child meant that the court felt that it had to rule in favour of the Trust carrying out the treatment.
In the circumstances of reporting this case I will now abuse my position and ask that any member who does not currently give blood consider doing so. Bone marrow may also be taken by the National Blood Transfusion Service if tissue types match. London members may visit the donor centre any week day at Margaret St W1, and all members may find a peripatetic session by going to www.blood.co.uk/pages/search.asp.
· a case demonstrating the durability of the rule in G v G (that on appeal in the family courts’ system an appellant will only succeed if the judge subject to that appeal is plainly wrong) and on case management;
· a case illustrating the unique considerations relevant to an application for leave to defend an adoption;
· a reminder of counsel’s duty to the court where a judgment is deficient and;
· a re-statement of the propositions for the court to consider when deciding whether to allow or forbid medical treatment to a child.
As ever, I should be grateful to hear from anyone prepared to submit an article for dissemination throughout the Family Law Team.
Somerset v D
In Somerset County Council v D & ors [2007] EWCA Civ 722 the President sat with Sedley & Wilson LJJ on an appeal from a decision each of us will have wanted to hear.
HHJ O’Malley sitting at Taunton had heard a case in which two drunkards had had their six children taken off them. The care plans before the judge in February were for adoption.
Despite the local authority having the full support of the Guardian and the parents problems being fairly chronic, the judge refused to make care orders, expressing the view that the parent’s should be given further opportunity to succeed, so made interim care orders. (This confirms my theory that the further you go from London the bolder judges are prepared to be) When the matter came back before him in March he made further interim care orders and was appealed on the basis that he had given insufficient reasons for that decision.
The Court of Appeal felt on balance that his reasons, though brief, were adequate, but that the appeal would succeed because the judge had entirely failed to give directions of sufficient formality &/or structure which would allow the adjournment to have a useful function: all parties needed to know what was expected of them and the standards against which they would be judged.
But – and this is the G v G point – the court did not make the final care orders which the local authority sought as it felt it could not find that HHJ O’Malley was wrong enough. In paragraph 8 the court spoke of the high regard in which the judge was held and that this judgment showed the depth of his compassion ‘and perhaps also... his courage’. That, to my mind, is as close to saying that he got it wrong without overturning him as it is possible to get.
The practical application of the judgment must be limited as one has to start with a judge brave enough to do what he personally thinks is right without thought to how it will look elsewhere. But as I have said, it is testament to the endurance of G v G.
Re P (A Child)(2007)
A less happy case is Re P (A Child)(2007) [2007] EWCA Civ 616 in which Thorpe and Wall LJJ and Hedley J sat.
The point on appeal was rather simple: when the court is considering the exercise of its discretion under s47 of the Adoption & Children Act 2002 (i.e. should the parents be able to defend adoption proceedings in the light of changes of circumstances) are the interests of the child or children paramount (as is suggested by s1 of the same Act)? The question being simpler than the answer, it was necessary that this be dealt with as there did not appear to be any guidance from the higher courts as to the interrelationship between the two sections and therefore, how judges at first instance should proceed. The answer provided by the Court of Appeal was ‘Yes’: the child’s interests were paramount and this is the principal significance of the judgment as a precedent.
The judgment at first instance was, in my view, a harsh one. The baby in question had been taken from its parents when just two days old. A few months before the adoption application was to be heard they had had another baby. They entered a residential assessment with that child which was successful and though the child remained on the child protection register, no proceedings were initiated nor in prospect.
The judge held that in the light of his fairly dim view of the progress made by the parents (which he described as ‘...inchoate... to be applauded but not finally crowned...’) they had not shown a relevant change of circumstances so did not satisfy s47(7). The Court of Appeal commented that had he stopped there, they might have been minded to overturn him.
Unfortunately for the parents, the judge then continued that even if he were wrong, the other circumstances of the case, including the bond built with the prospective adopters, meant that it would not be in the child’s interests for her parents to defend.
In my introduction I mentioned a unique feature of applications to defend, and it is this: applications to become involved in proceedings are normally under s10(9) of the Children Act 1989. As such the only relevance of the interests of the child/ren is where the admission of a party carries a risk that it will ‘disrupt... the child’s life to such an extent that he would be harmed by it.’ (s10(9)(c)) whereupon the party should not be admitted. The applicant’s prospects are irrelevant, to some extent so is delay, and the application is to be dealt with on the basis of fairness to the applicant rather. The same reasoning applies to applications for Special Guardianship Orders under s14A of the CA 89.
Applications to defend an adoption however fall foul of s1(7)(b) of that Act and are thereby subject to the paramount interests of the child and it is for this reason that the Court of Appeal found that the judge at first interest was entirely within his jurisdiction to proceed as he did.
Which leaves two interesting questions to my mind:
firstly, though in paragraph 52 et seq the Court addressed the question ‘Was the hearing fair’, it did so with reference only to the materials available to the court, the state of knowledge of the judge and so on. It did not address, nor does it appear to have been invited to address, the apparent conflict between the guidance in Re L (Care Proceedings: Fair Trial) and the outcome of the reasoning on s1 of the ACA 02 in this case (readers will remember Munby LJ’s Portia-like comments to the effect that the quality of Article 6 fairness could not be subsumed by the Article 8 or other rights of a child)
second, I see no reference in the judgment (nor in what it repeats from the first instance judgment) to the importance of placement within the family. At the time of the application to defend, the first and subject child was just 20 months old. That she had bonded with the prospective adopters was unquestionable and probably not surprising as she had never had an opportunity to bond with anyone else. I am unsettled to see mentioned in paragraph 2 of the Court’s judgment that the application by the parents was opposed by the prospective adopters as the ACA 02 does not involve them (see s1(4)), nor can I think of any principle of law which would do so. As I wrote last week, it may be that the emphasis on placement within the family may soon be restated in forthcoming legislation. In this case that emphasis seems to have been sidestepped by a very quick placement at the beginning of the child’s life and which set the pattern of her being brought up by (no doubt perfectly-competent) strangers.
Re S (Omission from Judgment) [2007] EWCA Civ 694
In this judgment the Court of Appeal reminded practitioners that it was not appropriate for counsel to ask for permission to appeal from a judgment just delivered without first discussing with the judge the flaw which had been spotted and inviting him or her to remedy it. Though slightly depressing that we should have to be reminded of this rather obvious point, here it is re-stated.
The NHS Trust v A [2007] EWHC 1696 (Fam) 18/07/07
This is of course of academic interest to me as I am unlikely ever to be involved in such matters, but readers may be interested to know that Holman J sat on this slightly unusual human-interest case and in doing so restated his principles for decision making which he had promulgated a year before (An NHS Trust c MB)
The parents were educated and professional people whose Christian faith was much in evidence throughout the proceedings. The judge evidently felt a special responsibility as their respect for the law made it likely that they would abide by his decision notwithstanding that they might fundamentally disagree with it (and as it turned out, did so disagree).
I have described this as unusual for two reasons: firstly it was a case in which the Trust wanted to carry out a procedure to prolong life whereas the parents opposed it; secondly because the options were certain death without intervention and anything up to a full recovery and ordinary life (with a question mark about fertility alone) with intervention.
The judge at paragraph 40 repeated his propositions of which two are operative rather than administrative. They are vii/viii – that there is a strong presumption in all such cases that life should be prolonged (that presumption being rebuttable) and ix – that each case is fact specific.
The child had been born apparently healthy but had rapidly deteriorated and spent time in a Paediatric Intensive Care Unit. This was a horrible experience for the parents and, in anyone’s view but particularly theirs, for their daughter. The Trust sought to execute a bone marrow transplant which would involve about two months’ treatment. It would undoubtedly be painful and could perhaps lead to a painful death, but on the one hand, without it she would die, and on the other, if it worked she would have an entire life with a normal span and without complications save the likely loss of fertility.
In conclusion it seems that the parents were overwhelmed by the hideousness of what they had seen and did not feel they could allow anything similar to happen again. They had a slightly exaggerated view of how long the intervention would last but no-one was likely to criticise them for that. But in the end, the proposition that life should be prolonged and the unusually high potential benefit to the child meant that the court felt that it had to rule in favour of the Trust carrying out the treatment.
In the circumstances of reporting this case I will now abuse my position and ask that any member who does not currently give blood consider doing so. Bone marrow may also be taken by the National Blood Transfusion Service if tissue types match. London members may visit the donor centre any week day at Margaret St W1, and all members may find a peripatetic session by going to www.blood.co.uk/pages/search.asp.
Update 12th of September 2007
LAW
On the 2nd of August 2007 ss 11, 12 and part of 14 of the Children & Adoption Act 2006 came into force. This will have passed practitioners by as the last of these is of semantic effect while the other two relate to the imposition on adoptions into the UK in certain circumstances, which are themselves regulated by s9 which is not in force.
Coming into force on the 1st of October are the more immediately relevant ss6, 7 and 15 of the same Act (see Commencement Order No 1 SI2007/2287) which relate to Family Assistance Orders.
Not before time s6 (via s15 and Sch.3) repeals s16(3)(a) of the Children Act 1989 with the effect that a FAO can be made even where the circumstances are not exceptional. I have long felt that this was a necessary change given that there are many circumstances where a local authority’s assistance could avoid more invasive legal interventions later. (Admittedly, this depends on the local authority, but Westminster needs mention in my experience for doing family assistance rather well)
It also stretches the maximum duration of such an order from six to 12 months and provides that where a s8 order is also in force, one of the tasks for the local authority or officer can be to give effect to that order.
Arguably substituting for the repealed s16(3)(a) is the practice direction marked ‘Consultation’ set out below. One senses the broad parallel with the Special Guardianship procedure s14A(11) whereby the court cannot make an order until it has received a report on the proposal and I suggest that there is a departmental aim always to precede an order relating to children with an expert’s report. This seems to have been missed out by the parliamentary draftsman, but Sir Mark Potter has caught it as it was falling.
s7 introduces an additional child protection mechanism in the context of Children Act 1989 Part I proceedings in the form of a new s16A. In proceedings concerning children reporting officers are often invited to comment on particular risk factors and one hopes that if they identify any others, they would consider them. See the entry for practice directions below for an explanation of its effect.
PRACTICE DIRECTIONS
Of the 3rd of September 2007: Consultation
Timed to take effect when s16(3)(a) is abolished, this PD requires the court to know the opinion of a proper officer (which could be in any form including orally or in a s7 report) as to whether it would be in the best interests of a child to make a Family Assistance Order, and to afford any person named in an order to comment on that opinion.
Of the 3rd of September 2007: Risk Assessments
This pre-dates by three weeks the coming into force of s16A of the Children Act 1989 (see Children & Adoption Act 2006, s7. The section is in force on the 1st of October).
That section is perfectly straightforward. It provides that where in family proceedings a welfare officer & c. is given cause to suspect that a child might be at risk, that officer has two duties viz. to carry out a risk assessment and to provide that assessment to the court.
The Practice Direction serves to emphasise that the second duty exists whether the risk assessment bears out the suspicion or not but the PD seems to augment the section by requiring the officer to ‘make clear the factor or factors that triggered the decision to carry out the assessment’. So the court is to be advised of what has been said, seen or heard even where the child has been found to be not at risk. I can well see that this could prevent the same allegations or suspicions counting against parties at a later stage (because they would already have been considered and rejected). My only concern is that the PD applies to all courts including the FPC where I can easily imagine a magistrate reading about the allegation, not being satisfied with the officer’s conclusion and trying to go behind it. We shall see.
CASES
If anyone can make real sense of HA v MB and A [2007] EWHC 2016 (Fam) I should be grateful if they would share that knowledge with the rest of us. It concerns the interface between the Hague Convention and the apparent (don’t quote me here) conflicting jurisdiction of Art 11 of Brussels II by which a court in the country from which the child was abducted (or from which it was unlawfully kept) can order the child’s return notwithstanding the court in the country where the child went had refused to order its return under Hague Art 13.
As if that were not startling enough, the Brussels II Art 11 offers no appeal from the decision to order return (though my benighted mind perceives that that could be because the domestic right of appeal could cover it).
And this is the first authority on the point, which I venture to suggest may well be a matter which will be encountered by colleagues despite the density of the argument.
As I know vaguely one of the counsel in the case and am utterly convinced that s/he will not have understood anything Singer J said, I feel slightly better about having a headache after getting about half-way through the judgment. But if, as I say, there is a genius reader who can help, please do as this is not as obscure as the complexity of the law suggests.
More digestible is S v S [2007] EWHC 1975 (Fam) which reminds readers of the principles of appeal applicable to ancil proceedings (para 35, Cordle v Cordle); of the limited notice which the court should take of potential testamentary property (para 43) and gives a little guidance as to the proper course to take to compensate a person who has had to wait for a lump sum (para 59)
Baron J makes three points in passing i.e. where trust property is held for children of the family who have reached their majority those children should probably be joined but that the court should be slow to interfere with the administration of such monies in any event (para 23); and that it is wrong to state that once a decree nisi is made a decree absolute will inevitably follow.
But the point to come out of the judgment is to emphasise the importance of an FDR. As readers are aware, FPR91 r2.61D requires an FDR unless the court decides that one is inappropriate, and a number of courts use a declaration on making that decision that an FDR would not assist the parties in approaching settlement. Obviously this can rarely be said.
In S v S the parties seem to have conspired with the judge to avoid the FDR; I say that as the trial judge sat on the FDR but did so little that the parties agreed he could hear the case. Thinking this through, it seems to me that the reason why the court did not seize the case by the throat at FDR could only have been that the judge did not really understand how to deal with the issues in it (i. testamentary property; ii. trust property; iii. pensions). If that is so, he cannot possibly have been the right person to hear the trial.
I may be reading too much into the words of paragraph 16 to infer Baron J harboured the same suspicion, but she expressed the need for an FDR to take place, for it to be effective, for the parties to have an opportunity to mediate and then;
It must become before an experienced tribunal and it must be given sufficient time to enable that tribunal to read the papers fully and to engage with the parties... in order that the matter can, if possible, be sorted out.
The failure to do this was the first step on the way to the parties spending in fees the entirety of the amount in dispute between them. One wonders what their lawyers were doing advising them to persist...
Reading In the matter of J-C (A Child) [2007] EWCA Civ 896, one has to hope that inexperienced counsel before the Court of Appeal does not give up and run away. This case was mentioned in the update of the 21st of August 2007 concerning the procedural requirements in committal proceedings and I here provide the reference. It is most unfortunate reading for counsel in the case who seems really to have rattled Wall LJ into using emphatic, sometimes demotic language (“apple-pie order”, “that is 100 miles from this case”, “a thoroughly bad point”, “quite impermissible”, part of the grounds “simply does not bear examination...[it] simply has no substance”, a pleaded fact “is neither here nor there’; and of the judge, he gave an “immaculate direction”, was “extremely careful” etc.), but though I thoroughly enjoyed reading it, I have described the point in a previous update.
For a truly spectacular example of a family let down by the System, see Gull v Gull [2007] EWCA Civ 900 which concerns a man with learning difficulties who repeatedly broke a non-molestation injunction. He was, as often happens, insufficiently well to access some services and insufficiently ill to access others. So on release from prison or on being given a suspended sentence, he would return to his mother’s house and beg to be admitted, thereby breaching the order.
The court cut his sentence from 21 months to 12 (whereby he would be released within a fortnight of the judgment) but in serving a copy of the judgment on Bradford Social Services, clearly hoped that they would find some resource which would assist, notwithstanding the court did not care to identify what it might be.
In reality, it could be that this man and his family will have to wait until he breaches the order again and is prosecuted in order to get any real assistance. I make that slightly surprising comment having been prompted by the concluding words of the judgment relating to Family Law Act 1986 s42A of which;
[t]he effect would be to criminalise breaches so that a wider range of sentencing options would be available to the court.
A few commentators have commended the government for criminalising breaches but far more have complained that the effect is to some extent to dull the sensitivity of the breach procedure to the needs of the victim. In this very unusual case, where the needs of the perpetrator do deserve to be given primary consideration in order to break the cycle of destructive behaviour, the new procedure has an unequivocally positive effect in that the whole range of imaginative sentencing options are now available including support, testing where appropriate, tagging, accommodation restrictions, assistance with accommodation and life-skills and so on. Let’s hope for the sake of the Gulls that it works.
A couple of updates ago I left hanging what the outcome in North v North [2007] EWCA Civ 760 was. The court has now decided that the proper amount of compensation to the wife for the failure of the investments which she had received by way of settlement 26 years before was £3,000 pa which was then Duxburyised (a verb I have borrowed from Baron J, so it must exist). This was rather less than the £16,500 pa which the first-instance judge had allowed, but it is certainly enough to put beyond doubt that one can seek an adjustment of periodical payments seemingly until death.
Finally a money case, Holman v Howes [2007] EWCA Civ 877 wherein the court used the device of estoppel to do what in my view ss13, 14 and 15 of TOLATA could have achieved more neatly.
A property was bought in roughly equal shares and conveyed into the man’s name in 1979 in anticipation of the reconciliation of parties who had divorced the preceding year. The reconciliation did not last long and in 1980 the man left his former wife and child in situ and did not return. In 2005 the court was asked to determine the proportion of the beneficial interests (the parties accepting that the beneficial interests were not the same as the legal ones) and to find or reject the contention that the man was stopped from evicting the woman during her lifetime on the basis of words said at the time of the purchase. The judge at first instance said:
‘I do accept that the [man] almost certainly said something to the [woman] which gave her the clear impression that, in whosever name the Property was purchased, she was going to be secure in the Property for however long she wished. The impression would thus be that in those circumstances, even if the relationship was not restored and the [man] left her, the [man] was not going to make any ‘claim’ to the Property, but that this would be in the sense of maintaining a claim to evict her and (as she then was) her child from it’
On the proportion point, the Court of Appeal upheld the first-instance decision that the intentions of the parties in relation to the beneficial ownership was 50:50
Turning to the argument concerning the woman’s continuing occupation, Lloyd LJ indicated that the above finding was crucial. At paragraph 42 he listed the factors which he felt indicated that the woman had acted on the man’s assurances to her disbenefit and found therefore that the minimum that Equity had to do to reflect the estoppel which arose therefrom was to bar the man from getting an order for sale against the house against the will or consent of the woman. No doubt the woman was content with that outcome and will be happy to see the matter drop there, but close analysis of that paragraph shows the reasoning to be flawed. I say so as the only act to the woman’s disbenefit which she took was to invest all of her savings in this property which then accumulated value. Since then she had had the considerable advantage of a similar investment from the man – entirely cost free – and so had effectively lived in twice the house she would otherwise have been able to afford and there is every chance that between 1980 and 2005 the accumulation of value in such a house as the parties owned would have been greater in percentage terms than a more modest property. Some disbenefit! I find it very, very difficult to accept this reasoning notwithstanding that the result (a 50:50 distribution but the man unable to enforce against the woman’s will) was right.
The alternative approach would be to consider that the finding of the first-instance judge plainly evidenced the intentions of the parties at the time of creating the trust (TOLATA s15(1)(a)) and the purposes for which the trust property was held (s15(1)(b)). s15 provides the matters which the court is to have regard when deciding on an application under the under-used s14(2)(a) concerning the exercise of trustees duties and freedoms. It may be that the court felt restrained as no application of that sort had been made, but one might have expected mention having been made of it.
I should declare an interest in that I recently used s13, 14(2)(a) and 15 to seek a Mescher-type order in a case involving unmarried joint tenants. The argument there was that the house had been bought as a family house to provide for the accommodation of the children during their minority. (i.e. the trust was established for that purpose) The court indicated its inclination to make such an order but adjourned for the parties to take stock and settle. I should be most interested to hear of any similar solutions encountered or devised by colleagues.
ENDS
On the 2nd of August 2007 ss 11, 12 and part of 14 of the Children & Adoption Act 2006 came into force. This will have passed practitioners by as the last of these is of semantic effect while the other two relate to the imposition on adoptions into the UK in certain circumstances, which are themselves regulated by s9 which is not in force.
Coming into force on the 1st of October are the more immediately relevant ss6, 7 and 15 of the same Act (see Commencement Order No 1 SI2007/2287) which relate to Family Assistance Orders.
Not before time s6 (via s15 and Sch.3) repeals s16(3)(a) of the Children Act 1989 with the effect that a FAO can be made even where the circumstances are not exceptional. I have long felt that this was a necessary change given that there are many circumstances where a local authority’s assistance could avoid more invasive legal interventions later. (Admittedly, this depends on the local authority, but Westminster needs mention in my experience for doing family assistance rather well)
It also stretches the maximum duration of such an order from six to 12 months and provides that where a s8 order is also in force, one of the tasks for the local authority or officer can be to give effect to that order.
Arguably substituting for the repealed s16(3)(a) is the practice direction marked ‘Consultation’ set out below. One senses the broad parallel with the Special Guardianship procedure s14A(11) whereby the court cannot make an order until it has received a report on the proposal and I suggest that there is a departmental aim always to precede an order relating to children with an expert’s report. This seems to have been missed out by the parliamentary draftsman, but Sir Mark Potter has caught it as it was falling.
s7 introduces an additional child protection mechanism in the context of Children Act 1989 Part I proceedings in the form of a new s16A. In proceedings concerning children reporting officers are often invited to comment on particular risk factors and one hopes that if they identify any others, they would consider them. See the entry for practice directions below for an explanation of its effect.
PRACTICE DIRECTIONS
Of the 3rd of September 2007: Consultation
Timed to take effect when s16(3)(a) is abolished, this PD requires the court to know the opinion of a proper officer (which could be in any form including orally or in a s7 report) as to whether it would be in the best interests of a child to make a Family Assistance Order, and to afford any person named in an order to comment on that opinion.
Of the 3rd of September 2007: Risk Assessments
This pre-dates by three weeks the coming into force of s16A of the Children Act 1989 (see Children & Adoption Act 2006, s7. The section is in force on the 1st of October).
That section is perfectly straightforward. It provides that where in family proceedings a welfare officer & c. is given cause to suspect that a child might be at risk, that officer has two duties viz. to carry out a risk assessment and to provide that assessment to the court.
The Practice Direction serves to emphasise that the second duty exists whether the risk assessment bears out the suspicion or not but the PD seems to augment the section by requiring the officer to ‘make clear the factor or factors that triggered the decision to carry out the assessment’. So the court is to be advised of what has been said, seen or heard even where the child has been found to be not at risk. I can well see that this could prevent the same allegations or suspicions counting against parties at a later stage (because they would already have been considered and rejected). My only concern is that the PD applies to all courts including the FPC where I can easily imagine a magistrate reading about the allegation, not being satisfied with the officer’s conclusion and trying to go behind it. We shall see.
CASES
If anyone can make real sense of HA v MB and A [2007] EWHC 2016 (Fam) I should be grateful if they would share that knowledge with the rest of us. It concerns the interface between the Hague Convention and the apparent (don’t quote me here) conflicting jurisdiction of Art 11 of Brussels II by which a court in the country from which the child was abducted (or from which it was unlawfully kept) can order the child’s return notwithstanding the court in the country where the child went had refused to order its return under Hague Art 13.
As if that were not startling enough, the Brussels II Art 11 offers no appeal from the decision to order return (though my benighted mind perceives that that could be because the domestic right of appeal could cover it).
And this is the first authority on the point, which I venture to suggest may well be a matter which will be encountered by colleagues despite the density of the argument.
As I know vaguely one of the counsel in the case and am utterly convinced that s/he will not have understood anything Singer J said, I feel slightly better about having a headache after getting about half-way through the judgment. But if, as I say, there is a genius reader who can help, please do as this is not as obscure as the complexity of the law suggests.
More digestible is S v S [2007] EWHC 1975 (Fam) which reminds readers of the principles of appeal applicable to ancil proceedings (para 35, Cordle v Cordle); of the limited notice which the court should take of potential testamentary property (para 43) and gives a little guidance as to the proper course to take to compensate a person who has had to wait for a lump sum (para 59)
Baron J makes three points in passing i.e. where trust property is held for children of the family who have reached their majority those children should probably be joined but that the court should be slow to interfere with the administration of such monies in any event (para 23); and that it is wrong to state that once a decree nisi is made a decree absolute will inevitably follow.
But the point to come out of the judgment is to emphasise the importance of an FDR. As readers are aware, FPR91 r2.61D requires an FDR unless the court decides that one is inappropriate, and a number of courts use a declaration on making that decision that an FDR would not assist the parties in approaching settlement. Obviously this can rarely be said.
In S v S the parties seem to have conspired with the judge to avoid the FDR; I say that as the trial judge sat on the FDR but did so little that the parties agreed he could hear the case. Thinking this through, it seems to me that the reason why the court did not seize the case by the throat at FDR could only have been that the judge did not really understand how to deal with the issues in it (i. testamentary property; ii. trust property; iii. pensions). If that is so, he cannot possibly have been the right person to hear the trial.
I may be reading too much into the words of paragraph 16 to infer Baron J harboured the same suspicion, but she expressed the need for an FDR to take place, for it to be effective, for the parties to have an opportunity to mediate and then;
It must become before an experienced tribunal and it must be given sufficient time to enable that tribunal to read the papers fully and to engage with the parties... in order that the matter can, if possible, be sorted out.
The failure to do this was the first step on the way to the parties spending in fees the entirety of the amount in dispute between them. One wonders what their lawyers were doing advising them to persist...
Reading In the matter of J-C (A Child) [2007] EWCA Civ 896, one has to hope that inexperienced counsel before the Court of Appeal does not give up and run away. This case was mentioned in the update of the 21st of August 2007 concerning the procedural requirements in committal proceedings and I here provide the reference. It is most unfortunate reading for counsel in the case who seems really to have rattled Wall LJ into using emphatic, sometimes demotic language (“apple-pie order”, “that is 100 miles from this case”, “a thoroughly bad point”, “quite impermissible”, part of the grounds “simply does not bear examination...[it] simply has no substance”, a pleaded fact “is neither here nor there’; and of the judge, he gave an “immaculate direction”, was “extremely careful” etc.), but though I thoroughly enjoyed reading it, I have described the point in a previous update.
For a truly spectacular example of a family let down by the System, see Gull v Gull [2007] EWCA Civ 900 which concerns a man with learning difficulties who repeatedly broke a non-molestation injunction. He was, as often happens, insufficiently well to access some services and insufficiently ill to access others. So on release from prison or on being given a suspended sentence, he would return to his mother’s house and beg to be admitted, thereby breaching the order.
The court cut his sentence from 21 months to 12 (whereby he would be released within a fortnight of the judgment) but in serving a copy of the judgment on Bradford Social Services, clearly hoped that they would find some resource which would assist, notwithstanding the court did not care to identify what it might be.
In reality, it could be that this man and his family will have to wait until he breaches the order again and is prosecuted in order to get any real assistance. I make that slightly surprising comment having been prompted by the concluding words of the judgment relating to Family Law Act 1986 s42A of which;
[t]he effect would be to criminalise breaches so that a wider range of sentencing options would be available to the court.
A few commentators have commended the government for criminalising breaches but far more have complained that the effect is to some extent to dull the sensitivity of the breach procedure to the needs of the victim. In this very unusual case, where the needs of the perpetrator do deserve to be given primary consideration in order to break the cycle of destructive behaviour, the new procedure has an unequivocally positive effect in that the whole range of imaginative sentencing options are now available including support, testing where appropriate, tagging, accommodation restrictions, assistance with accommodation and life-skills and so on. Let’s hope for the sake of the Gulls that it works.
A couple of updates ago I left hanging what the outcome in North v North [2007] EWCA Civ 760 was. The court has now decided that the proper amount of compensation to the wife for the failure of the investments which she had received by way of settlement 26 years before was £3,000 pa which was then Duxburyised (a verb I have borrowed from Baron J, so it must exist). This was rather less than the £16,500 pa which the first-instance judge had allowed, but it is certainly enough to put beyond doubt that one can seek an adjustment of periodical payments seemingly until death.
Finally a money case, Holman v Howes [2007] EWCA Civ 877 wherein the court used the device of estoppel to do what in my view ss13, 14 and 15 of TOLATA could have achieved more neatly.
A property was bought in roughly equal shares and conveyed into the man’s name in 1979 in anticipation of the reconciliation of parties who had divorced the preceding year. The reconciliation did not last long and in 1980 the man left his former wife and child in situ and did not return. In 2005 the court was asked to determine the proportion of the beneficial interests (the parties accepting that the beneficial interests were not the same as the legal ones) and to find or reject the contention that the man was stopped from evicting the woman during her lifetime on the basis of words said at the time of the purchase. The judge at first instance said:
‘I do accept that the [man] almost certainly said something to the [woman] which gave her the clear impression that, in whosever name the Property was purchased, she was going to be secure in the Property for however long she wished. The impression would thus be that in those circumstances, even if the relationship was not restored and the [man] left her, the [man] was not going to make any ‘claim’ to the Property, but that this would be in the sense of maintaining a claim to evict her and (as she then was) her child from it’
On the proportion point, the Court of Appeal upheld the first-instance decision that the intentions of the parties in relation to the beneficial ownership was 50:50
Turning to the argument concerning the woman’s continuing occupation, Lloyd LJ indicated that the above finding was crucial. At paragraph 42 he listed the factors which he felt indicated that the woman had acted on the man’s assurances to her disbenefit and found therefore that the minimum that Equity had to do to reflect the estoppel which arose therefrom was to bar the man from getting an order for sale against the house against the will or consent of the woman. No doubt the woman was content with that outcome and will be happy to see the matter drop there, but close analysis of that paragraph shows the reasoning to be flawed. I say so as the only act to the woman’s disbenefit which she took was to invest all of her savings in this property which then accumulated value. Since then she had had the considerable advantage of a similar investment from the man – entirely cost free – and so had effectively lived in twice the house she would otherwise have been able to afford and there is every chance that between 1980 and 2005 the accumulation of value in such a house as the parties owned would have been greater in percentage terms than a more modest property. Some disbenefit! I find it very, very difficult to accept this reasoning notwithstanding that the result (a 50:50 distribution but the man unable to enforce against the woman’s will) was right.
The alternative approach would be to consider that the finding of the first-instance judge plainly evidenced the intentions of the parties at the time of creating the trust (TOLATA s15(1)(a)) and the purposes for which the trust property was held (s15(1)(b)). s15 provides the matters which the court is to have regard when deciding on an application under the under-used s14(2)(a) concerning the exercise of trustees duties and freedoms. It may be that the court felt restrained as no application of that sort had been made, but one might have expected mention having been made of it.
I should declare an interest in that I recently used s13, 14(2)(a) and 15 to seek a Mescher-type order in a case involving unmarried joint tenants. The argument there was that the house had been bought as a family house to provide for the accommodation of the children during their minority. (i.e. the trust was established for that purpose) The court indicated its inclination to make such an order but adjourned for the parties to take stock and settle. I should be most interested to hear of any similar solutions encountered or devised by colleagues.
ENDS
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