September 2003

Bulletin No 72
Butterworths Family and Child Law Bulletin – September 2003
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.

Jurisdiction

House in England did
not establish habitual residence

Armstrong v
Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375

BFLS 2A[107]

In Armstrong v Armstrong
[2003] EWHC 777 (Fam), [2003] 2 FLR 375, Elizabeth Butler-Sloss P
considered whether a husband was habitually resident in England as
well as his mutually accepted habitual residence in South Africa.
The wife sought to establish that he was habitually resident in
England in order to found jurisdiction to bring divorce proceedings
against him. He had spent only 71 days in the previous year in
England (compared to 171 in South Africa) and those trips were
explained as work related rather than domestic. This could not be
said to establish sufficient quality of residence to meet the
requirement of habitual residence.

Comment: The
President accepted that it was in principle possible to have two
places of habitual residence (see also Ikimi v Ikimi [2001] 2 FLR
1288). However, it was necessary to establish that there was an
intention to settle, and the evidence in this case indicated that
the husband maintained a home in England because it was convenient
for his business rather than due to an intention to settle
there.

Private law
proceedings

Not reasonable to
prevent new family settling abroad where step-father has his main
connections in country of proposed residence

Re B (children: removal from
jurisdiction); Re S (child) (removal from
jurisdiction) (2003) Times, 29 August, CA

BFLS 3A[1219]; CHM
1[727]

Re B (children: removal from
jurisdiction); Re S (child) (removal from jurisdiction) (2003)
Times, 29 August, CA concerned two cases where the mothers wished
to emigrate from the UK with their new partners. In both cases they
had been refused permission by the county court to take their
children abroad. In the first case the judge had found that the
mother’s new relationship was untried and untested so that
the proposed arrangement was not realistic when looked at from the
children’s point of view. The stepfather in the case was a
South African businessman and the family planned to settee in South
Africa. In the other case, the stepfather was a Filipino citizen
with a right to reside in Australia. Once again the county court
refused the application to permit the children to be taken abroad.
The Court of Appeal allowed both appeals. Although it had been
concerned with a parent who wished to return, with her children, to
her own country of origin, the case of Payne v Payne [2001] Fam
473 indicated that the natural gravitation of the child’s new
family had an important bearing on the outcome of the case. The
welfare of the children could not be achieved unless the new family
had the ordinary opportunity to make choices without unreasonable
restriction. The requirement (drawn from Payne) that consideration
of the impact of refusal of permission to take the children abroad
on a mother’s realistic proposal applied with great force
where the stepfather was a foreign national. If the court
frustrated the natural emigration to the place indicated by his
history, family ties and loyalties then it would blight the new
family’s potential for fulfilment and happiness. There might
be a price to pay in terms of the diminution of the
children’s contact with their natural fathers and with their
extended families. However, the courts’ powers to ensure
continuing contact were necessarily circumscribed and contact might
equally be reduced if the father went abroad. In those
circumstances there would be no power in the court to require
contact to be maintained in the interests of the child.

Comment: This case
seems to adopt a test of the reasonableness of restricting the new
families choice of location. Earlier formulations in terms of
whether the mother’s plans were reasonable have not proved
acceptable because it looks only at the situation from the
mother’s point of view and makes consideration of the
children and the father’s perspectives difficult. A
formulation in terms of whether it would be reasonable to restrict
a new family’s choices enables the court to look at all the
factors, while still capturing the principle that the starting
point would be that
newly constituted families should be given the chance to
order their own affairs, not over-constrained by the wishes of
absent parents.

Shared residence
order across two countries

Re F (Shared Residence
Order) [2003] EWCA Civ 592, [2003] 2 FLR 397

BFLS 3A[1706]; CHM
1[635]

Re F (Shared Residence
Order) [2003] EWCA Civ 592, [2003] 2 FLR 397 concerned a case
where the judge had made a shared residence order in the hope that
it would reduce the likelihood that the mother would gradually
exclude the father from the children’s lives. She noted that
the mother would not be sorry to see the amount of contact with the
father reduced and had plans to move to Scotland, which would make
contact difficult for the father. There was also an ominous
precedent of the mother enrolling the children at a school without
proper consultation. The Court of Appeal upheld the order, which
included detailed specification of the amount of time the children
would spend with the father once the mother moved to Scotland (in
effect most of the school holidays).

Comment: This
decision clearly turns on its facts; in particular, the
judge’s the assessment of the parents and their relationship
and its impact on the future welfare of the child. However, it is
interesting for its recognition that a shared residence order may
be appropriate even though the parents live in different countries
and for its use of shared residence to construct a more robust
order than separate contact and residence orders would have
created. Judge Jane Bonvin found that her formulation of the
proposed arrangements in terms of shared residence would be more
likely to reinforce in the mother’s mind the importance of
the father’s contribution to the children’s
welfare.

Taxation

(Note contributed by
Philip Wylie, tax editor of BFLS)

CGT hold-over relief for
transfers of business assets in ancillary relief
proceedings

In the August 2003
edition of Tax Bulletin the Inland Revenue announced that,
following comments by Coleridge J in G v G [2002] EWHC 1339
(Fam), [2002] 2 FLR 1143, para [43], they had revised their view on
the availability of hold-over relief under TCGA 1992, s 165 for
transfers of business assets under a court order, whether contested
or consent, in ancillary relief proceedings. They now accept that
no consideration has been provided by the recipient spouse, and
that consequently hold-over relief under s 165 is available, where
a court makes an order transferring qualifying business assets on
an ancillary relief application, or formally ratifies an agreement
reached by the divorcing parties dealing with the transfer of
assets. Para 67192 of the Capital Gains Tax Manual has been amended
accordingly.

The change of
practice applies from 31 July 2002 (the date of publication of the
G v G judgment) to
relevant TCGA 1992 s 165 claims made on or after that date, and
relevant s 165 claims previously made but unsettled at that
date.

Disclosure

Balancing freedom of
expression and children’s welfare in reporting of criminal
trials

Re S (a child) (identification:
restriction on publication) [2003] 2 FCR 577, CA

BFLS 3A[6047]; CHM
1[100]

Re S (a child) (identification:
restriction on publication) [2003] 2 FCR 577 concerned the use
of the inherent jurisdiction of the court to restrict publication
of details about the trial of the mother of the child seeking the
restriction, C. The child’s older brother, DS, had died from
acute salt poisoning and the mother was awaiting trial for his
murder. An order had originally been made under s 39 of the
Children and Young Persons Act 1933 prohibiting publication of
particulars that might lead to identification of C. However, this
was subsequently discharged on the basis that C was not ‘a
child concerned in the proceedings.’ An application was then
made to the Family Division under the inherent jurisdiction of the
High Court and an order was made prohibiting publication of
information that might lead to C’s identification. This was
subsequently varied to permit publication of information relating
to the proceedings heard in public, but not any private sittings.
The child, with the mother’s support, appealed against this
variation, contending that it would lead to damage to C’s
psychiatric health (although not that it would affect the way in
which he was being brought up). It was accepted before the Court of
Appeal that s 39 did not apply. Turning to the inherent
jurisdiction, the Court of Appeal held that there was jurisdiction
to restrain publication of the identity of a defendant or victim in
a murder trial in order to protect the privacy of a
defendant’s child who was the subject of care proceedings.
However, when considering whether to exercise that
jurisdiction, the child’s right to respect for private life
under Art 8 of the ECHR had to be balanced against the right of the
press to freedom of expression under Art 10. Neither article was
necessarily more important than the other (following Sedley LJ in
Douglas v Hello [2002]
1 FCR 289). It was necessary to consider the specific features in
each individual case, not merely the general justifications of
principle. Thus, in this case, it was to be noted that the public
interest in the reporting of criminal trials strengthened the more
general freedom of expression arguments. So too did the fact that
the alleged murder of the child had taken place in a world famous
children’s hospital (Great Ormond Street), raising important
issues about the conduct of that hospital. The impact of the
publication sought to be restricted should also be examined. Where,
as here, the child’s life had already been interfered with,
the extent to which the interference would be increased by
publication had to be considered (including the impact on his
mental health, on his father’s ability to bring him up, and
on the ability of his school to educate him). Where there was
already considerable intrusion, a comparatively small additional
intrusion might not justify limiting the reporting of an important
trial. It was therefore relevant that it was already well known in
the local area that C’s mother was accused of murdering his
brother. Equally, a minor limitation on reporting that still
permitted the substantial issues to be discussed by the media might
be acceptable. All three members of the Court of Appeal agreed with
this legal analysis, which is principally set out in the judgment
of Hale LJ. However, they drew different conclusions in relation to
the application of this law to the substance of the appeal. In Hale
LJ’s view, the appeal should have been allowed because the
judge had not considered each relevant article of the ECHR
independently. However, the majority found that he had all the
relevant points in mind even though it would have been better to
approach the analysis in the way proposed by Hale LJ. The majority
of the Court of Appeal therefore dismissed the appeal.

Comment: This area of
law remains difficult to interpret due to a mass of sometimes
apparently inconsistent decisions handed down over a significant
period, most of which predate the implementation of the Human
Rights Act 1998. The speech of Hale LJ includes a detailed analysis
of the long line of case law concerning the scope of the
courts’ powers to restrain publicity in relation to children.
It reinforces the threefold distinction set out by Munby J in Kelly v BBC [2000] 3 FCR
509. First, those cases where the child’s involvement is
merely incidental to proceedings and the child comes to the court
only in order to prevent publication, without any further
substantive interest. Here the court has no jurisdiction to
restrain publicity. Second, cases where the child would be affected
by publication, but their upbringing and day-to-day care are not in
issue. Here the ‘protective’ jurisdiction of the court
is available, but whether it should actually be exercised depends
on balancing the interests of the child against the public interest
in freedom of expression. The child’s welfare is not
paramount in this second category of case, but it is in the third.
The third category is described as the ‘custodial’
jurisdiction of the court, where the court is charged with
determining the child’s upbringing. Hale LJ carefully
examined the earlier decisions, noting relevant factors and
acknowledging that they cannot all necessarily be reconciled, given
that the judges’ enthusiasm for intervention has waxed and
waned. One particularly helpful observation was the importance of
the closeness between child’s upbringing and the role of the
parent about whom information was sought to be shielded from the
public. Both Re X
[1975] 1 All ER 697 and R v
Central ITV [1995] 1 FCR 521, where publication was permitted,
concerned parents who had not played a significant role in the
child’s upbringing for some time. In the latest case, the boy
had been directly involved with the issues subject to the court
proceedings and they had already had, and would continue to have, a
serious impact on his upbringing. Thus, some restriction on
publication was permissible. However, complete secrecy was not.
This case is likely to provide the starting point for analysis of
the law in the future.

Financial
provision

Financial provision
30 years after divorce

M v L (Financial Relief after
Overseas Divorce) [2003] EWHC 328, [2003] 2 FLR 425,
FD

BFLS 4A[783]

M v L (Financial Relief after
Overseas Divorce) [2003] EWHC 328, [2003] 2 FLR 425, FD was an
unusual case in which the application for financial provision was
brought some 30 years after the South African divorce. Although the
divorce was granted in South Africa, the wife had never been there.
The parties had married in Scotland (after an elopement) and lived
in England throughout their married life. At the time of the
divorce, the relevant law required the husband to divorce in South
Africa instead of England as he was domiciled there. It was in
essence, however, an English relationship. Coleridge J held that he
had jurisdiction to order financial provision under Part III of the
Matrimonial and Family Proceedings Act 1984. He further found that
the basis on which the substance of his order should be made was
essentially the same as under the Matrimonial Causes Act 1973 and
that consequently the touchstone was fairness. The husband had
continued to support the wife over the years since the divorce,
despite the fact that the only court order (for £130 per month
child maintenance) had been made in the original divorce
proceedings. His financial position was sufficiently secure that he
would be able to make reasonable financial provision for the wife
without prejudicing his own wealth. Coleridge J found that fairness
pointed to there being some provision for the wife for four
reasons. First, even though the marriage had been relatively short,
she had made a full contribution as a mother. Second, she had a
real financial need, having extremely limited pension provision.
This arose partly out of her contribution to the family as a mother
and would lead to serious hardship if not supplemented. Third, the
wife had become financially dependant on the husband’s
payments. Even though these were voluntary, they created a moral
obligation that would make it unfair for him to walk away (noting
by analogy that this was also the position under the Inheritance
Act 1975). Finally, there was some liability out of the former
marital relationship, even 30 years after the marriage ended. This
pointed to limited provision based on need, which would easily be
within his ability to pay. In relation to capital, Coleridge J
ordered a lump sum of approximately £50,000, which would
enable her to meet her housing needs when added to the value of the
property that she had already acquired due to the husband’s
earlier support. He also found that the husband should pay directly
to builders the costs of bringing the property up to a condition to
enable a sale, estimated at £30,000. In relation to income, he
found that the correct level was £12,000 per annum, computing
to a lump sum of £143,000 then rounded up to
£150,000.

Comment: This is a
case whose precise facts are unlikely to repeat themselves.
Nevertheless, the approach may be indicative of how the courts
would be expected to approach cases where voluntary payments have
been made over and above those required by court orders.

Circulars

The Duties and Powers of the
Police under The Children Act 1989

HO 44/2003, 8
September 2003

This circular is
intended to give greater clarity about when and how to use police
protection powers under the Children Act 1989. It replaces Home
Office Circular 54/1991. It can be downloaded from
http://www.doh.gov.uk/cebulletin/policecircular.htm.

Practice
Directions

Family Proceedings (Allocation
to Judiciary) (Amendment) Directions 2003 [2003] 2 FLR
373

Issued by Lord
Irvine of Lairg, Lord Chancellor, and Dame Elizabeth Butler-Sloss,
President of the Family Division on 8 May 2003

This Direction came
into effect on 23 May 2003. It makes amendments to the Family
Proceedings (Allocation to Judiciary) Directions 1999, as already
amended by the Proceedings (Allocation to Judiciary) (Amendment)
Directions 2002. The new Direction substitutes a new para (e) in
the Schedule. The amendment enables a circuit judge nominated for
public law family proceedings, but not for adoption proceedings, to
make an order freeing a child for adoption where the freeing
proceedings are heard in conjunction with care proceedings and
relate to the same child. They also enable a judge in this position
to make interlocutory orders within such freeing proceedings.

Statutory
Instruments

The Child Minding and Day Care
(Applications for Registration) (England) (Amendment) Regulations
2003, SI 2003/1995

These Regulations,
which came into force on 1 September 2003, amend the Child Minding
and Day Care (Application for Registration) (England) Regulations
2001. They clarify the information that must be provided about the
persons responsible for the provision of day care by unincorporated
associations, registered charities and registered companies. In
addition, the Regulations remove the requirement to provide details
of the facilities to be used for the provision of day care and the
requirement that the applicant provide details of their general
practitioner and of the general practitioner of any associate.

The Day Care and Child Minding
(National Standards) (England) Regulations 2003, SI
2003/1996

These Regulations,
which came into force on 1 September 2003, revoke and re-enact with
modifications the Day Care and Child Minding (National Standards)
Regulations 2001, which are repealed. They require that a person
who is registered under Part XA of the Children Act 1989 (as
inserted by the Care Standards Act 2000) to act as a child minder
or provide day care meets the requirements of the national
standards and has regard to the supporting criteria, as set out in
the documents listed in Sch 1. He must also ensure that corporal
punishment is not used by anyone who looks after children (reg 5).
Regulations 4 and 8 also place certain duties and confer certain
powers on Her Majesty’s Chief Inspector of Schools in England
in respect of the national standards and supporting criteria,
including the power to take criminal proceedings against a person
so registered in the circumstances set out in regs 5, 6, 8 and 10.
These Regulations also require that a person so registered notifies
Her Majesty’s Chief Inspector of Schools of the matters
specified in Sch 2, and keeps the records specified in Sch 3.

The Children Act 1989, Section
17(12) Regulations 2003, SI 2003/2077

Section 17(9)
Children Act 1989 (as amended by para 16 of Sch 3 to the Tax
Credits Act 2002) provides that, where a local authority provides
services for children in need and their families, no person shall
be liable to repay the cost of those services if he or she is in
receipt of working tax credit, or of any element of child tax
credit other than the family element. Sections 17A and 17B of the
Children Act contain similar provisions relating to direct payments
and vouchers. Section 17(12) (as added by para 16(3) of Sch 3 to
the Tax Credits Act) allows the Treasury to make regulations
deeming a person to be in receipt of the credit or element.

These Regulations,
which came into force on 1 September 2003, are made to remove the
possibility of circularity in a small number of cases, due to the
interaction between the tax credit and Children Act rules. A family
may be in receipt of working tax credit, or child tax credit in
excess of the family element, due only to the fact that it is
incurring child care costs. If the local authority then provide for
free child care, that may reduce the family’s tax credit
entitlement, to a level where (under the Children Act) they have to
repay the cost to the authority. That will in turn increase their
tax credit entitlement (and so on). These Regulations provide that
where local authorities provide free day child care, they can
ignore the effect of that free provision of child care on the
family’s actual tax credit award.

The Child Benefit and
Guardian’s Allowance (Administration) (Amendment No 2)
Regulations 2003, SI 2003/2106

These Regulations
were made in consequence of a procedural error in the making of SI
2003/1945 (which were revoked before they came into force, and
replaced with Regulations which are identical to them save the
dates of making, laying and coming into force). They came into
force on 18 August 2003.

The Child Benefit and
Guardian’s Allowance (Administration) (Amendment No 3)
Regulations 2003, SI 2003/2107

These Regulations,
which came into force on 3 September 2003, amend the Child Benefit
and Guardian’s Allowance (Administration) Regulations 2003.
Under Part 6 of the Child Benefit (General) Regulations 2003 a
person who is receiving child benefit in Great Britain or in
Northern Ireland will cease to be entitled to that benefit if he or
she permanently leaves that country or leaves on a temporary basis
for more than 8 weeks. Entitlement to guardian’s allowance is
dependent on entitlement to child benefit.

Under reg 18 of the
Child Benefit and Guardian’s Allowance (Decisions and
Appeals) Regulations 2003 a person who is receiving child benefit
or guardian’s allowance is required to notify the Child
Benefit Office of any change of address. Not providing a change of
address can lead to suspension of payment under reg 18, and may
result in termination of benefit under reg 20, of those
Regulations. Where a person moves from Great Britain to Northern
Ireland, or vice versa, he or she must claim child benefit or
guardian’s allowance in the new country in which he or she is
residing.

These Regulations
remove the usual three month time limit for making a claim where a
person has moved country as mentioned above, and may have
inadvertently omitted to inform the Child Benefit Office, but apart
from their move, would have remained entitled to child benefit or
guardian’s allowance. This aligns treatment of those persons
with persons who move within other parts of Great Britain. These
Regulations replace SI 2003/1945 (which have been withdrawn due to
a procedural error).

The Civil Procedure (Amendment
No 4) Rules 2003, SI 2003/ 2113

These Rules insert
new rules into the Civil Procedure Rules 1998. They include a new
Section III of Part 52, which prescribes the procedure for
applications to the Court of Appeal or the High Court to reopen the
final determination of an appeal or application for permission to
appeal. These new provisions take effect on the 6 October 2003. The
opportunity has also been taken to make a number of minor and
consequential amendments to the rules currently in force, and to
revoke certain provisions of the RSC and CCR rules in Schs 1 and
2.

The Social Fund Winter Fuel
Payment (Amendment) (No 2) Regulations 2003, SI
2003/2192

These Regulations,
which came into force on 3 September 2003, amend the Social Fund
Winter Fuel Payment Regulations 2000 so as to provide for the
payment of an additional £50 by way of winter fuel payment for
a person who is in residential care who is not in receipt of income
support or an income-based jobseeker’s allowance and who has
attained the age of 80 by the end of the qualifying week. They
correct an error in the Social Fund Winter Fuel Payment (Amendment)
Regulations 2003 (SI 2003/1737).

The Social Security
(Attendance Allowance and Disability Living Allowance) (Amendment)
Regulations 2003, SI 2003/2259

These Regulations,
which will come into force on 6 October 2003, amend the Social
Security (Attendance Allowance) Regulations 1991 and the Social
Security (Disability Living Allowance) Regulations 1991.
Regulations 2 and 3 respectively remove the restriction on payment
of attendance allowance or disability living allowance for a