March 2002

BUTTERWORTHS FAMILY AND CHILD
LAW BULLETIN

Bulletin No 56
Butterworths Family and Child Law Bulletin  – March 2002

Bulletin Editor
Jonathan Montgomery, BA, LLM
Professor of Law, University of Southampton

Butterworths Family and
Child Law Bulletin provides an immediate updating
service for the main text of Butterworths Family Law
Service and Clarke Hall and Morrison on Children. The
Bulletin is published every month and sent to subscribers to those
publications.

References to BFLS and CHM above each
case are to the relevant paragraphs in Butterworths Family Law
Service and Clarke Hall and Morrison on Children.

Procedure
Family Law Protocol

The Law Society’s Family Law Protocol was
launched on 7 March 2002. It provides best practice guidelines
designed to reduce acrimony in dealing with the legal consequences
of relationship breakdown. It stresses the importance of resolving
disputes in a dignified way, using contested hearings as a last
resort and highlighting the use of other forms of dispute
resolution, including negotiation and mediation. Practitioners are
encouraged to put the interests of children first, not use them as
an emotional bargaining chip, and be sensitive to the risks and
signs of physical abuse of the parties or children.

The guidelines were produced in association with the Solicitors
Family Law Association, the Lord Chancellor’s Department and
the Legal Services Commission. Compliance with the Protocol will be
a prerequisite for accreditation as a member of the Law Society
Family Law Panel and the SFLA Specialist Accreditation Panel.
Failure to follow the Protocol will result in loss of membership of
the Panels.

Family or Queen’s Bench Division?

A (a patient) v A Health Authority; re J (a child); R v
Secretary of State for the Home Department
(2002)
Times, 11 March (FD & QBD)

In A (a patient) v A Health Authority; re J (a child); R v
Secretary of State for the Home Department (2002) Times, 11
March, James Munby, sitting in the Family Division and the
Administrative Court of the Queen’s Bench Division,
considered when private and public law procedures should be used in
cases concerning incompetent adults. Best interests decisions
should be heard in the Family Division (Practice Direction
(Declaratory proceedings: Incapacitated adults) [2002] 1 WLR
325, [2002] Fam Law 145). The test was whether the substantive
decision to be made by the judge concerned coming to a decision for
or on behalf of the incompetent adult or child. If so the welfare
of that person was the paramount consideration and the case should
be heard in the Family Division. If, however, the task was solely
to review the decision of a public authority taken in the exercise
of some statutory power, then the governing principles were those
of judicial review in public law and the case should be heard in
the Queen’s Bench Division.

Comment: The Times report does not set out the
facts of the cases concerned, so it is a little difficult to be
sure how the division drawn by Munby J was applied. However, it
seems that any doubt in cases of mixed ‘best interests’
and public law issues should be allocated to the Family Division
because the welfare considerations are deemed to be the most
significant.

Private law issues
Mother should not be forced to use father’s choice of first
name

Re H (child’s name: first name)
(2002)
Times, 6 February, CA

In Re H (child’s name: first name) (2002) Times,
6 February, CA the married parents of the child had separated when
the mother was six weeks pregnant. The father had no contact with
the mother during the pregnancy but visited her in the maternity
hospital shortly after the birth to discuss the child’s
names. Without telling the mother, the father registered the
child’s birth six days before the mother registered him. They
chose different names. A decision was taken administratively that
the only legal registration was the first in time. The mother
applied to the court for a decision about the child’s first
name. The judge held that the name of statutory registration should
be used for purposes external to the family (recognising that it
was common for different names to be used at baptism or by custom
and adoption within the family). He included a provision to this
effect in residence and contact orders made under s 8 of the
Children Act 1989. The Court of Appeal found that the judge had
placed too much weight on the fortuitous fact that the husband had
been the first to register the birth when he required the mother to
use the statutory name. This ignored the realities. While the
mother needed to recognise that the child had an immutable series
of names by statutory registration, she should not be precluded
from using her chosen names for her son when registering for
schooling or health care.

Comment: There are perhaps two interesting
features of this case. Then first is the fact that it concerns
first names rather than surnames. Most cases concern the latter.
Although the report does spell it out, it seems likely that similar
arguments would be applied to resolve disputes over first names as
are applied to surnames. However, some of the arguments will be
less relevant. For example, the symbolic link of identity with an
absent parent that is given by a shared surname will be less
significant. The second feature is the use of a direction within
residence and contact orders to resolve the issue.

Public law proceedings
Starred care plans rejected

Re W & B (Children: Care Plan); re W (Child: Care
Plan)
[2002] UKHL 10, (2002) Times, 15
March

In Re W & B (Children: Care Plan); re W (Child: Care
Plan) [2002] UKHL 10, (2002) Times, 15 March the House of
Lords overturned aspects of the decision of the Court of Appeal.
The innovation of starred milestones introduced by the Court of
Appeal went beyond the legitimate scope of interpretation of the
Children Act 1989 be reserving to the court matters that Parliament
had determined were for local authorities. By requiring local
authorities to resubmit cases to the court where starred milestones
were not met, the Court of Appeal had created a supervisory
jurisdiction for the courts that could not be derived from any
provision of the Children Act, even allowing for the extended scope
of interpretation permitted by s 3 of the Human Rights Act 1998.
The starring system would have imposed upon local authorities
obligations even where there had been no finding that they were
acting unlawfully, and when no breach of a convention right had
been committed or proposed. So far as care plans themselves were
concerned, Art 8 of the European Convention on Human Rights
required that due respect be given to the interests of the
parents’ and child’s guardian’s rights. If they
were to have a fair and adequate opportunity to make
representations on whether a care order was appropriate, they
should be provided with an appropriately specific care plan. If
this was not available it might sometimes be appropriate to make an
interim care order, but the court should always maintain a proper
balance between the need to satisfy itself about the
appropriateness of the care plan and the need to avoid ‘over
zealous investigation into matters which were properly the
discretion of the local authority’ (see Re J [1994]
1 FLR 253 at 262).

Comment: The decision of the House of Lords
should not be taken as a rejection of the Court of Appeal’s
view that it was too often the case that children were let down by
the failure of local authorities to discharge their
responsibilities to an acceptable standard. Lord Nicholls spelt out
his view that there was a pressing need for the serious practical
and legal problems to be addressed, but felt that the issues called
for wider examination that could be undertaken by a court. What was
rejected was the suggestion that a starring system could be
focussed on the scope of Convention rights. It would not
necessarily be the case that the failure to meet a starred
milestone would constitute a breach of either Art 8 or Art 6 of the
Convention. Thus, the starred system could not be said to derive
from those rights. However, as a public body, the local authority
was subject to a claim under s 7 of the Human Rights Act from any
person who was the victim of an actual breach of rights. The House
of Lords noted that this provision had already been used in In
re M (29 June 2001, unreported). It follows that local
authorities should still consider whether their actions in looking
after children, possibly including an inability to further a care
plan, sufficiently affect the balance of Convention rights to
expose them to an allegation that their conduct fails to meet their
obligations under the HRA 1998. It might, therefore, still be
prudent to refer back some such cases to the courts even though
this cannot be required in advance by the ‘star
system’.

Financial provision
Status of agreement from FDR hearing

Rose v Rose (2002) Times, 14 March, CA

In Rose v Rose (2002) Times, 14 March the Court of
Appeal considered the status of an outline agreement between the
parties recorded by a judge at a financial dispute resolution (FDR)
hearing. Overturning the decision of Coleridge J, the Court of
Appeal held that the agreement was an unperfected order of the
court, not merely a contractual agreement between the parties.
Consequently, the husband could not resile from the agreement
before it was implemented. The judge had been wrong to give
directions for a further FDR hearing and accelerated trial should
that hearing fail.

Comment: Some caution should be exercised in
regarding this decision as of general application. Thorpe LJ noted
that FDR hearings could take many forms and that it would be wrong
to impose restrictions on the discretion of the judge. The case
looked closely at the way in which the judge, Bennett J, had
conducted the FDR, and the criticisms made were rejected. In this
case, the FDR hearing had led to a neutral evaluation by Bennett J
that led to broad indications being given by him as to the likely
outcome of a contested hearing. It showed that the judge had found
for the wife on the key issue. In subsequent negotiations, the
husband eventually accepted the wife’s proposal. The terms
were put before the judge who declared himself happy to record the
agreement. In such circumstances, to allow the issue to proceed to
litigation would have undermined the whole purpose of the FDR
process because there would be no security to the results and no
incentive to avoid contested litigation.

White v White not ‘Barder event’
on facts

S v S (2002) 152 NLJ 398, FD

In S v S (2002) 152 NLJ 398, FD Bracewell J was invited
by the wife to set aside a lump sum order on the basis that the
subsequent decision of the House of Lords in White v White
[2001] 1 All ER 1 constituted a supervening event that falsified
the basis of the order within the principles established in
Barder v Barder [1987] 2 All ER 440. Counsel for the wife
sought to extend the Barder principles to include mistakes
of law and subsequent changes in the law. Bracewell J was satisfied
that it was possible, as a general proposition, that a subsequent
change of the law could constitute a supervening event. However,
the new event had to be a complete change in circumstances and not
merely a development of facts that were or should have been known
or envisaged at the time of the order. If, with diligent inquiry,
the supervening event could have been ascertained prior to its
occurrence, then the person who failed to make such enquiry could
not then seek to impugn the order. The decision in White v
White had been widely anticipated and the wife could have
suspended negotiations pending the decision. The fact that she had
not done so was fatal to her claim. Bracewell J rejected the
suggestion that an error of law could vitiate a consent order in
ancillary relief proceedings (rejecting the suggestion that the
restitution case of Kleinwort Benson v Lincoln City
Council [1999] 2 AC 349 could be extended to the family law
context).

Comment: The nearest precedent to this decision
was the rejection in Crozier v Crozier [1994] 1 FLR 126 of
the argument that the implementation of the Child Support Act 1991
justified reopening an order made on the basis that there would be
no further applications in respect of the child’s
maintenance. There the court took the view that the legal changes
were only to the mechanism for enforcing obligations of child
support not to its substance. This implicitly adopted the position
that a change in the substantive law could constitute a
circumstance justifying reopening a decision. Bracewell J rejected
the suggestion that White v White did not introduce a
sufficiently significant change in the law because the statutory
framework remained the same. The very significant effect that the
decision has on large money cases led to the conclusion that it
could in principle constitute a ‘Barder
event’. However, two further important principles were
identified by Bracewell J. The first was the foreseeability of the
change. Building on Maskell v Maskell [2001] 3 FLR 26,
Chaudhuri v Chaudhuri [1992] 2 FLR 73 and Cook v
Cook [1988] 1 FLR 51, she pointed out that where changes were
essentially foreseeable the courts had declined to reopen orders.
Thus, an event that was reasonably foreseeable at the time of the
making of the order should not be regarded as a supervening event.
The second principle is the expectation that diligent enquiries are
made to ensure that there are no such foreseeable events on the
horizon. This implies that practitioners need to be aware of cases
pending before the higher courts and planned developments of the
law in order to ensure that clients are not precluded from relying
on changes of circumstance by their ignorance.

Practice Direction

Declaratory proceedings concerning incapacitated adults:
medical and welfare decision [2002] 1 WLR
325, [2002] Fam Law 145

This Practice Direction was issued by Elizabeth Butler-Sloss P
on 14 December 2001 with the approval of the Lord Chief Justice and
the Lord Chancellor. It advises that proceedings which invoke the
jurisdiction of the High Court to grant declarations as to the best
interest of incapacitated adults are civil proceedings under the
Civil Procedure Rules 1998. Although not assigned to any division,
they are more suitable for hearing within the family division.

Permanent vegetative state cases should be issued in the
Principal Registry of the Family Division and will be determined by
the President or a judge nominated by her. Interlocutory
applications will also be heard by the President or a judge
nominated by her.

Other proceedings may be commenced in any registry but must be
determined by a judge of the family division. Interlocutory
applications are also to be heard by a judge of the division.

Guidance in relation to these proceedings has been issued in
Practice Note (Official Solicitor: Declaratory Proceedings:
Medical and Welfare Decisions for Adults who Lack Capacity
[2001] 2 FLR 158 and the new Direction reinforces the importance of
following that guidance.

Statutes

Land Registration Act 2002 (c 9)

This Act provides for a new scheme of Land Registration, and
will repeal the earlier Land Registration Acts when it is brought
fully into force.

While knowledge of the new scheme will be vital for
conveyancing, the most important provisions for family lawyer are
probably those relating to the fact that an interest under a trust
of land is an excluded interest that is not registrable (s 33).
Such an interest will be protected from being overridden when the
interest holder is in actual occupation, unless they unreasonably
failed to disclose that interest when enquiries were made of them
or their occupation would not have been obvious on a reasonably
careful inspection. Where there is actual knowledge of the
occupation, this latter provision does not apply (Sch 3).

Statutory Instruments

Magistrates’ Courts (Civil Jurisdiction and Judgments Act
1982) (Amendment) Rules 2002, SI 2002/194

These Rules, which came into force on 1 March 2002, amend the
Magistrates’ Courts (Civil Jurisdiction and Judgments Act
1982) Rules 1986. The amendments are needed in consequence of the
coming into force on 1 March 2002 of Council Regulation (EC) No
44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters. This
Regulation applies to all Member States except Denmark. The Civil
Jurisdiction and Judgments Order 2001, which, for the most part,
also came into force on 1 March 2002, makes the main legislative
changes needed in respect of the Regulation.

In addition, amendments have been made to correct and clarify
those Rules, references to Secretary of State have been changed to
the Lord Chancellor (consequential upon the Transfer of Functions
(Magistrates’ Courts and Family Law) Order 1992), and the
cross-references in r 6A, inserted by the Magistrates’ Courts
(Maintenance Enforcement Act 1991) (Miscellaneous Amendments) Rules
1992 have been corrected.

Social Security (Attendance Allowance and Disability Living
Allowance) (Amendment) Regulations 2002, SI 2002/208

These Regulations, which came into force on 1 March 2002, amend
the Social Security (Attendance Allowance) Regulations 1991 and the
Social Security (Disability Living Allowance) Regulations 1991.
They provide that the cost of the accommodation for the purposes of
regs 7 and 8(6) of the Attendance Allowance Regulations and regs 9
and 10(8) of the Disability Living Allowance Regulations does not
include the cost of services provided pursuant to the National
Health Service Act 1977 or the National Health Service (Scotland)
Act 1978.

Supreme Court Fees (Amendment) Order 2002, SI 2002/222

This Order amends the Supreme Court Fees Order 1999 to take
account of the new rules on enforcement introduced by the Civil
Procedure (Amendment No 4) Rules 2001. Fee 3.2 (fee payable on oral
examination) now refers to an application for an order requiring a
judgment debtor or other person to attend court to provide
information in connection with enforcement. Fee 3.3 (fee payable on
application for garnishee order or charging order) now refers to an
application for a third party debt order and a charging order. Fee
3.5 (fee payable in relation to enforcement of foreign judgments,
arbitration awards and enforcement of judgments abroad) is extended
to include a fee payable for a certificate for use abroad. (Such
certificates are issued under Art 54 and Annex V of the Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and
the recognition and enforcement of judgments in civil and
commercial matters. The effect of Art 54 is that a person wanting
to enforce a judgment in all Member States except Denmark will need
to apply for a certificate rather than a certified copy of the
judgment.) There is no change in the amount of any of the fees. The
revised definitions will take effect on 25 March 2002.

County Court Fees (Amendment) Order 2002, SI 2002/223

This Order amends the County Court Fees Order 1999 to take
account of the new rules on enforcement introduced by the Civil
Procedure (Amendment No 4) Rules 2001. Fee 4.3 (fee payable on oral
examination) now refers to an application for an order requiring a
judgment debtor or other person to attend court to provide
information in connection with enforcement. Fee 4.4 (fee payable on
application for garnishee order or charging order) is revised so
that it now refers to an application for a third party debt order
and a charging order. A new fee 4.10 (fee payable in traffic
enforcement cases) is substituted. The new fee 4.10 has been
extended to embrace all sums that are, or are treated as, specified
debts in the Enforcement of Road Traffic Debts Order 1993 (charges
payable in relation to traffic enforcement). A consequential
amendment is made to the notes to fee 2.5. There is no change in
the amount of any of the fees. The revisions will take effect on 25
March 2002.

Income Support (General) (Standard Interest Rate Amendment) (No
2) Regulations 2002, SI 2002/338

These Regulations, which came into force on 17 March 2002, amend
Sch 3 to the Income Support (General) Regulations 1987, as
substituted and amended, with respect to the standard rate of
interest applicable to a loan which qualifies for income support
under that Schedule to those Regulations. The new rate is 5.34 per
cent. The Regulations also revoke, with a saving provision,
regulations which made the previous amendment to that standard rate
of interest.

Social Security (Claims and Payments and Miscellaneous
Amendments) Regulations 2002, SI 2002/428

These Regulations, which come into force on 2 April 2002, amend
the Social Security (Claims and Payments) Regulations 1987 and the
Social Security and Child Support (Decisions and Appeals)
Regulations 1999.

Regulation 2 amends reg 6 of the Claims and Payments Regulations
to provide for certain claims to take effect earlier when
entitlement is affected by benefit awarded to a partner or child or
where entitlement to income support or jobseeker’s allowance
is affected by a qualifying benefit, and makes minor amendments
relating certain provisions in reg 6 to the award rather than the
payability of a benefit. Regulation 3 amends reg 19 to provide for
an extension of the time for claiming income support,
jobseeker’s allowance, working families’ tax credit and
disabled person’s tax credit in specified circumstances.
Regulation 4 amends the Decisions and Appeals Regulations. The
power to revise or supersede a decision under reg 3(7) or 6(2)(e)
is amended. The date certain decisions are superseded under reg
7(7) is amended.

Social Security (Incapacity) (Miscellaneous Amendments)
Regulations 2002, SI 2002 /491

These Regulations further amend the Social Security (Incapacity
for Work) (General) Regulations 1995 as they relate to the
circumstances in which a person is to be treated as capable of work
for the purposes of entitlement to certain social security
benefits, and make miscellaneous amendments in other instruments
relating to incapacity benefit.

Regulation 2 amends reg 10A of the principal Regulations to
substitute references to officers of, and persons providing
services to, the Secretary of State in place of references to the
Employment Service of the Department of Employment. Regulation 3
amends reg 17 of the principal Regulations in connection with the
categories of work that may be undertaken by a person without his
being treated (under reg 16 of those Regulations) as being capable
of work. In particular, the requirement that some categories of
work may be undertaken only on medical advice has been replaced
with a requirement that notice must be given to the Secretary of
State that the work is being done.

Changes have also been made in those categories of work, by the
substitution of work which gives rise to earnings of no more than
£20 a week; work under supervision; and work during a maximum
period of 26 weeks or (where beneficial to the person’s
capacity for future full-time employment) 52 weeks.

Regulation 4 corrects a reference in the Social Security
(Incapacity Benefit) Regulations 1994 as they relate to persons
aged less than 20 on 6 April 2001 who have been in receipt of
severe disablement allowance. Regulation 5 revokes reg 7 of the
Social Security (Incapacity Benefit) (Transitional) Regulations
1995 which provided for a person to be deemed to be incapable of
work notwithstanding that he was undertaking specified work for
more than 16 hours in any week. Regulation 6 makes transitional
provision, in connection with the amendments made by reg 3 and the
revocation made by reg 5, in relation to persons who, shortly
before these Regulations come into force, are not regarded as
capable of work by virtue of the provisions that are now to be
amended or revoked.

Social Security (Guardian’s Allowances) Amendment
Regulations 2002, SI 2002/492

These Regulations, which take effect on 1 April 2002, amend the
Social Security (Guardian’s Allowances) Regulations 1975 in
relation to the circumstances in which a person is to be treated as
being in prison for the purposes of s 77(2)(c) of the Social
Security Contributions and Benefits Act 1992. They reduce the
minimum length of custodial sentence from five to two years; and
include persons who are ordered by a court to be detained in
hospital under the Mental Health Act 1983 following conviction, or
under the Criminal Procedure (Insanity) Act 1964 or the Criminal
Appeal Act 1968 following a verdict of not guilty by reason of
insanity or a finding that the accused was under a disability.

Housing Benefit and Council Tax Benefit (Child Care Charges)
Regulations 2002, SI 2002/499

This statutory instrument amends the Housing Benefit (General)
Regulations 1987 and the Council Tax Benefit (General) Regulations
1992 with effect from 1 April 2002. These principal Regulations
stipulate that for housing benefit and council tax benefit
purposes, certain specified ‘relevant child care
charges’ shall be deducted from the income of a claimant when
calculating entitlement to benefit. Regulation 2 of this instrument
enlarges and updates the category of ‘relevant child care
charges’ to take account of changes to the Children Act 1989
brought in by the Care Standards Act 2000, in respect of England
and Wales and provisions in the Regulation of Care (Scotland) Act
2001, which replace the relevant provisions in the Children Act
1989 in respect of Scotland.

Recent articles in family and child law

The unexpected impact of White—Taking
‘Equality’ too far? Lucinda Fisher [2002] Fam Law
108

Time for the courts to stand up to the Child Support Act? An
address to district judges James Pirrie [2002] Fam Law 114

Asperger’s Syndrome in child contact cases Lynn Henderson
& Nicole Hackett [2002] Fam Law 119

Parental hitting—the ‘responses’ to
‘protecting children, supporting parents’ Chris Barton
[2002] Fam Law 124

The 1996 Hague Convention—A proposal for simplification
Professor Eric Clive [2002] Fam Law 131

When will I see my Dad? James Kingsley [2002] Fam Law 141

CAFCASS—twisted knickers District Judge Stephen Gerlis
[2002] Fam Law 144