Tuesday, 9 October 2007

Re W (A Child) [2007] EWCA Civ 102

Re W (A Child) [2007] EWCA Civ 102 is an example a) of where the Protocol can cause the wrong result and b) the extent that it cannot come before the law.

A child was taken from the mother at 11 months old in May 2005 and at a final hearing in February 2006 a care order was made with the mother’s consent and not opposing a freeing application. On the 9th of March 2006 the mother and child saw each other for the last time.

(I pause to wonder what quality of advice she was being given at this point, particularly as she was of restricted intelligence. The court repeated one of my favourite admonitions in the course of this judgment from Re L (Children)(Threshold Criteria) (2006) that the courts of this country do not take children of parents for being unintelligent, but because s31 is met)

Despite the mother’s position, the matter went to the Court of Appeal and the orders were set aside for reasons which need not concern us here, and on the 18th of October HHJ Onions made another care order and freeing order despite a number of comments by him that indicated that properly considered, the threshold criteria were not satisfied.

He seemed to be driven on by the need to come to a determination, and reached one.

Further procedural steps followed and mercifully the child was not adopted despite the mother accepting the recommendations of her assessment and the Guardian and not opposing the making of a freeing-order.

And so, in February 2007, the child then being two and a half years old, the case was back at the Court of Appeal again, the care order set aside because there was no jurisdiction to make it in the first place (the local authority having failed to make out its case) and an interim order made.

As the case was remitted we cannot know what happened next but the point is that even well after the point that one might have thought that all argument must cease as the child’s need for placement would predominate, the court properly stopped the case in its track because the basic issue of the threshold criteria had not been properly determined.

Re R (A Child) [2007] EWCA Civ 943

Regular readers/insomniacs will recall I discussed Re W (A Child) [2007] EWCA Civ 102 indicating the dangers of judge’s being overawed by the constant advice to progress cases.

Another less common but related error is found in Re R (A Child). The principal error into which the judge fell in this case was to look at the case from the adult’s point of view. Having effectively forgotten the welfare principle, he nonetheless remembered the need to press on and make an order.

A father against whom findings of fact had been made of domestic violence and inappropriate physical chastisement to the child sought what the judge described as ‘modest’ contact of two half-hour sessions during the Summer holidays. But though from the father’s perspective the contact was modest and the court would in normal circumstances be almost bound to order it, from the daughter’s it was not. She was partially blind, had Asperger’s Syndrome and exhibited extreme behaviour at school, where she was not settled.

Moreover, CAFCASS had observed a contact session with the father and had reported that the effect on the child was such that it was not appropriate to continue. The CAFCASS and a doctor’s report both recommended that it would be prudent to allow the child to settle into school before trying again and CAFCASS went further to say that even then, contact should not take place without a positive school report. One was not available at the disposal and neither expert was cross-examined.

The Court of Appeal, overturning the judge’s order, found that at the child’s stage of development, the two half-hour sessions were ‘an enormous leap’ and the benefit of waiting as suggested by the experts outweighed any disbenefit to the relationship with her father. The Court of Appeal seems to have been reasonably polite given that the judge a) effectively ignored the welfare checklist &/or b) gave disproportionate weight to the need to conclude matters swiftly and c) gave no consideration to the fair trial rights of the mother who opposed the making of the order but had no opportunity to re-examine the experts who agreed with her, as they had not given evidence.

Monday, 8 October 2007

Leman-Klammers v Klammers [2007] EWCA Civ 919

A silly case this, surrounding the efforts of a man to avoid his wife divorcing him. Its use to practitioners is a) to be reminded that the jurisdictional rules in Brussels II are absolutely clear b) that our courts are not inclined to revisit the Brussels II decision of another jurisdiction and c) the almost absolute nature of the discretion in the rarely-contested decision to grant a decree absolute.

The Klammers had issued proceedings on the same day in England and France and Mr Klammers then went before a French court arguing that it had jurisdiction to the exclusion of the courts of England & Wales. Unfortunately for him evidence was not produced that his proceedings were issued earlier in the day: worse still, that was incapable of remedy by his representative as the rules of the French court forbade evidence being given by a maitre (barrister). The French court therefore decided that the English & Welsh courts had jurisdiction.

The husband was not giving up, so invited the English court now vested with jurisdiction to revisit the French decision and send the proceedings back to France. No Can Do, said the court: the matter has been determined, and a decree nisi followed.

The husband had meanwhile had the idea of appealing the decision in France which, according to the evidence produced here, is a Byzantine process of indeterminate length and uncertain prospects. Pending his appeal, he argued, there should be no change in the status of the marriage. He delicately did not mention that he wanted to avoid the consequences of an English distribution of assets. (To be fair, this is the writer’s unsupported suspicion: there was no matrimonial home but given the lifestyles and incomes of the parties, one imagines there was something to fight about, at least until the legal costs of this process were incurred.)

Singer J went along with this to some extent, ordering that the decree should not be made absolute until the earlier of a) the outcome of the appeal or b) further order of the court. The diligent husband then appealed that decision but was refused by the Court of Appeal.

A request for a further order as allowed in Singer J’s order came before Baron J who was therefore dealing with a contested application for a decree absolute.

And quite simple it was too, as despite the small disadvantage to the wife involved in having to wait a little longer for a divorce (again, no-one mentioning the money) the husband had conducted himself with such desultoriness (the delay being described by the Court of Appeal as ‘extravagant’) that he had whistled away all the sympathy the court might have had for him.
The Court of Appeal, repeatedly emphasising the ‘unquestionably wide’ discretion that Baron J had available to her, decided that she had been right to take into account the husband’s failure to move his French appeal on, despite urging from Singer J and entirely within her rights to grant Mrs Leman-Klammers’ application.

Charging assessment/contact costs to the Legal Services Commission

Readers will be aware of the horse-trading that precedes the making of an order for assessment and the incurring of costs for experts’ reports. They will also be mindful of the phenomenon of a publicly-funded party’s certificate bearing the whole cost of a report or supervised contact sessions where the other side is privately-funded.
Though the general mechanism for this is for the court to specify that it is a proper disbursement on the funding certificate in question, readers should be aware that in the view of the LSC at least, that apportionment is subject to the scrutiny of the costs assessors of the Fund. (I have not read Lambeth v S, C, V & J and the LSC [2005] EWHC 776 Fam, which purports so to find) The consequence of that is that solicitors could find themselves having paid a bill of several thousands of pounds and never recovering it from the LSC. Worse still, they could recover it, have it spotted in an audit and lose their franchise as a consequence of having over-billed.

It is responsible in the writer’s view for counsel to remind themselves of the relevant guidance which appears at http://www.legalservices.gov.uk/docs/civil_contracting/Vol1PartDSection5.6FINAL49.9KB.pdf.
This gives the Commission’s view on the effect and consequences of the Calderdale guidelines (Calderdale v S [2004] EWHC 2529). Two moot points which it is useful to have the Commission’s view on are a) that just because a party is interested in a particular part of an expert’s report, it does not follow that they should share in the costs of the whole report (see para 5.8.4 (where, maddeningly, the LSC state that ultimately the apportionment is a matter for the judge (i.e. conflicting with the overall thesis that the costs assessor is the ultimate authority)) and b) that apportionment should be divided between the parties including each child i.e. if there are four parties and one child, a five-way split; four parties and three children, a seven-way split.

On the discrete point of contact centre fees, readers should not miss the short guidance at paragraph 5.9 of the paper and in particular the three bullet-points which suggest to the writer’s mind that the LSC might have in mind a tightening up of this growth area of expenditure. This area does not, happily, bear the risk that the fees cannot be paid (as for those associated with 38(6) assessments, even if ordered) but there remains the risk that they will not.