April 2002

BUTTERWORTHS FAMILY AND CHILD
LAW BULLETIN

Bulletin No 57
Butterworths Family
and Child Law Bulletin
 – April 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.

Domestic violence
Intentional homelessness in domestic violence cases turns on
probability of violence, not reasonableness of actions of
victim

Bond v Leicester CC [2002] 1 FCR 566, [2001]
EWCA Civ 1544

In Bond v Leicester CC [2002] 1 FCR 566, [2001] EWCA
Civ 1544, the Court of Appeal considered a decision by a local
authority that a woman who left after alleged domestic violence was
to be treated as being intentionally homeless. Under s 177 of the
Housing Act 1996 it was not reasonable to expect someone to occupy
property where it was probable that they would suffer domestic
violence. The court had to consider whether the availability of
legal remedies should be taken into account when considering
whether violence was probable. The Court of Appeal held that the
statutory test raised an issue of fact, it did not involve any
assessment of what the woman should have done. If there were legal
steps which had in fact been taken or would probably be taken and
which would probably prove effective, then this might alter the
assessment of the probability of violence. On the facts of the
case, the local authority had not applied the correct test and
would need to reconsider its decision.

Comment: This decision ensures that local
authorities do not make judgements about whether those subject to
domestic violence should do more to protect themselves. Instead
they should consider what the victim has actually done or is going
to do and consider the probable outcome of any proceedings. To take
a different view is to expose the victim of violence to the risk
that legal action will prove ineffective rather than providing them
with protection.

Public law proceedings
Inadequate reasons for disregarding medical opinion and radically
changing direction in management of case

Re M (a child) [2001] EWCA 1313, [2002] 1 FCR
88

In Re M (a child) [2001] EWCA 1313, [2002] 1 FCR 88 the Court of
Appeal found that the judge had failed to explain why a care order
had been discharged, against the united opinion of the medical
experts involved. He also failed to give sufficient recognition to
the significance of the fact that a decision had been taken at an
earlier stage in the proceedings not to discharge the care order
but to establish a placement with a view to adoption. This plan had
been communicated to the boy and the foster parents and relied upon
by them. In such circumstances, there was severely limited scope
for judicial reconsideration and a reversal of the plans. The care
order was restored and an order made freeing the child for
adoption.

Comment: This decision does not go so far as to
suggest that a judge could never reverse a decision that there was
no prospect for rehabilitation with the family. However, it
indicates that there must be strong reasons for such a radical
change of direction. The fact that the mother had made good
progress in dealing with her problems was not sufficient to justify
turning the previous expectations on their head and moving from
plans for adoption to return to the mother. The child, foster
parents and the local authority had progressed the adoption plans
in good faith and the judge would have needed to set out why it was
appropriate to frustrate their expectations. The Court of Appeal
also found that he had wrongly disregarded the view of the doctors
involved that adoption would still be the best plan. This is
probably best regarded as a finding that the judge had
misinterpreted the views expressed by the doctors. However, if he
was to depart from their advice, the reasons for this would need to
be far more clearly explained than they had been.

Further use of information disclosed in Part IV Family Law Act
1996 proceedings does not require court approval

Clibbery v Allan [2002] EWCA 46, [2002] 1 FCR
387

Clibbery v Allan [2002] EWCA 46, [2002] 1 FCR 387
concerned the disclosure by one party to proceedings under Part IV
of the Family Law Act 1996 of statements made by her former
partner. They were used by a journalist in an article in the Daily
Mail. The man sought to restrain further such uses of the
information, arguing that it was impermissible without prior
approval from the court. In the High Court, Munby J rejected the
argument that there was a general principle that evidence adduced
in family proceedings was confidential. In his view, this was not
supported by authority and was inconsistent with the existence of
special provision for confidentiality in specific cases. Examples
included that in relation to children under the Administration of
Justice Act 1960, s 12 and that limiting disclosure in relation to
divorce and nullity proceedings to specified information under the
Judicial Proceedings (Regulation of Reports) Act 1926, s 1. The
Court of Appeal agreed. Save where these specific provisions
existed, family proceedings were not in a separate category to
other civil proceedings. The Court of Appeal also agreed with Munby
J that the fact that a case was heard in chambers was not
significant. They found that the crucial question was whether there
was an implied undertaking not to use information disclosed in
proceedings for other purposes. This depended upon whether the
disclosure was under compulsion. Thus, in ancillary relief cases,
the duty of full and frank disclosure implied a limitation on
further use of information. There was no equivalent requirement of
disclosure in proceedings under Part IV of the Family Law Act
1996.

Comment: The Court of Appeal also confirmed
that it was permissible for family proceedings to be heard in
private. However, a measure of privacy was not the same as
confidentiality and did not lead to the permission of the court
being required for the use of information revealed in the
proceedings. The practical issue in the case was whether the woman
was entitled to tell her story to the press. Had there been no
court proceedings, she would have been at liberty to do so (see
A v B [2002] 1 FCR 369); the fact that there had been
litigation did not preclude her doing so.

Statutory Instruments

National Care Standards Commission (Inspection of Schools and
Colleges) Regulations 2002, SI 2002/552

These Regulations, which came into force on 1 April 2001, make
provision relating to the inspection of schools and colleges
providing accommodation for children. Section 87(5) of the Children
Act 1989 (as amended by the Care Standards Act 2000), confers power
on a person authorised by the National Care Standards Commission to
enter the premises of a school or college accommodating children,
in order to determine whether the welfare of the children is being
adequately safeguarded and promoted. A person so authorised may
inspect the premises of the school or college, its records, and the
children accommodated there, as provided for by these
Regulations.

Disqualification from Caring for Children (England) Regulations
2002, SI 2002/635

These Regulations replace, with modifications, the
Disqualification for Caring for Children Regulations 1991, for
England only. They came into force on 1 April 2002. Regulation 2
makes provision for the circumstances in which a person is
disqualified from fostering a child privately. By virtue of the
Children Act 1989, s 68 such a person may only foster a child
privately with the consent of the local authority.

A person will be disqualified if, in particular, a care or
similar order has been made with respect to his child, or so as to
remove a child from his care; he has been convicted of an offence
specified in the Regulations; he has been refused registration, or
had any such registration cancelled in respect of a
children’s home, day care provision or for childminding; or a
prohibition has been imposed upon him in respect of private
fostering.

By virtue of the Children Act 1989, s 65 as amended by the Care
Standards Act 2000, a person who is disqualified from fostering a
child privately is also disqualified from carrying on or being
concerned in the management of, or having any financial interest
in, a children’s home, and may not be employed in a
children’s home, without the consent of the National Care
Standards Commission.

Social Security (Disability Living Allowance) (Amendment)
Regulations 2002, SI 2002/648

These Regulations, which came into force on 8 April 2002, amend
the Social Security (Disability Living Allowance) Regulations 1991
in relation to the conditions of entitlement to the mobility
component of a disability living allowance. They provide that a
person does not meet the conditions of s 73(1)(d) of the Social
Security Contributions and Benefits Act 1992 if the reason he does
not take advantage of the faculty of walking out of doors
unaccompanied is fear or anxiety. This provision does not apply
where the fear or anxiety is a symptom of a mental disability and
so severe as to prevent the person from taking advantage of the
faculty of walking out of doors unaccompanied.

Social Security Benefits Up-rating Order 2002, SI 2002/668

This Order is up-rates the amounts paid as social security
benefits. It takes effect in April 2002.

Social Security Benefits Up-rating Regulations 2002, SI
2002/684

These Regulations make amendments consequential on the Social
Security Benefits Up-rating Order 2002 (see above). They took
effect on 8 April 2002

Community Legal Service (Financial) (Amendment) Regulations
2002, SI 2002/709

These Regulations, which came into force on 8 April 2002, amend
the Community Legal Service (Financial) Regulations 2000 so as to
increase the income limits for the purposes of determining
eligibility for services provided by the Legal Services Commission
as part of the Community Legal Service. This is in line with the
relevant uprating of social security benefits. In addition, they
make various further minor changes with regard to financial
eligibility.

Legal Aid in Family Proceedings (Remuneration) (Amendment)
Regulations 2002, SI 2002/710

These Regulations, which came into force on 8 April 2002, amend
the Legal Aid in Family Proceedings (Remuneration) Regulations 1991
in order to add the Law Society Family Law Panel Advanced to those
panels whose members receive an uplift in relation to the sums
payable for work carried out by them.

Civil Legal Aid (General) (Amendment) Regulations 2002, SI
2002/711

These Regulations, which came into force on 8 April 2002, amend
the Civil Legal Aid (General) Regulations 1989 in order to provide
for the imposition of an embargo against any further work being
carried out under a legal aid certificate once notice has been
served that it may be discharged or revoked. They also clarify the
position regarding amendments of certificates. They apply to
transitional cases to which the principal Regulations continue to
apply by virtue of the provisions in the Access to Justice Act 1999
(Commencement No 3, Transitional Provisions and Savings) Order
2000.

Reciprocal Enforcement of Maintenance Orders (Designation of
Reciprocating Countries) Order 2002, SI 2002/788

Article 3 of this Order designates Brunei Darussalam and
Newfoundland and Labrador as reciprocating countries for the
purposes of Part I of the Maintenance Orders (Reciprocal
Enforcement) Act 1972, with effect from 28 May 2002. Article 4 of
this Order contains transitional provisions in respect of
maintenance orders and proceedings to which the Maintenance Orders
(Facilities for Enforcement) Act 1920 applied before the coming
into operation of this Order.

Maintenance Orders (Facilities for Enforcement) (Revocation)
Order 2002, SI 2002/789

This Order revokes the Maintenance Orders (Facilities for
Enforcement) Order 1959 insofar as it extends the Maintenance
Orders (Facilities for Enforcement) Act 1920 to Brunei and the
territory of Newfoundland. This country and that territory now
known as Newfoundland and Labrador are designated as reciprocating
countries for the purposes of Part I of the Maintenance Orders
(Reciprocal Enforcement) Act 1972 by the Reciprocal Enforcement of
Maintenance Orders (Designation of Reciprocating Countries) Order
2002, SI 2002/788, which comes into force on the same date as this
Order. The Order takes effect on 28 May 2002.

Social Security (Miscellaneous Amendments) Regulations 2002, SI
2002/841

These Regulations, which come into force on 8 April 2002, amend
the Income Support (General) Regulations 1987, the
Jobseeker’s Allowance Regulations 1996, the Housing Benefit
(General) Regulations 1987 and the Council Tax Benefit (General)
Regulations 1992. In particular, they provide for income disregards
in respect of war widowers’ pensions and extend the 52 week
linking provisions to claimants whose housing costs are met in
part.

Practice Directions

Practice Direction (video conferencing: procedure)
[2002] 1 FCR 480

14 January 2002—Senior District Judge Gerald
Angel

This Practice Direction sets out the procedure to be observed in
using the video conferencing facilities in Court 38 of the Royal
Courts of Justice in proceedings in the Principal Registry of
Family Division. Directions for a video conference hearing should
be given, without attendance provided all parties consent. They
should specify in general terms the purpose of the hearing, its
date time and place, and the place or country with which the link
is to be effected. Availability of the facilities must be
ascertained prior to the directions order (contact tel 0207 947
6581). Arrangements must be settled with the video managers well in
advance of the appointed date. Where lack of availability of the
facilities might cause delay, consideration should be given to the
use of facilities at the Law Society or Bar Council.

Recent articles on family and child law

Facing up to a child’s dilemma B Mahendra (2002)
151 NLJ 426

Child Law Update Richard White (2002) 152 NLJ 467

The Family Law Protocol—revolution or evolution?
Charlotte Bradley (2002) 152 NLJ 495

Divorce Law Update Kerry Fretwell (2002) 152 NLJ
519

Graduated fees in family cases Jody Beveridge (2002)
152 NLJ 524