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.
