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)).