November 2003

Bulletin No 74
Butterworths Family and Child Law Bulletin – November 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.

Divorce

Mere fact of pending
ancillary relief proceedings does not justify withholding decree
absolute

1

Re M (Intractable contact
dispute: interim care order) [2003] EWHC 1024, [2003]
2 FLR 636, FD

BFLS 3A[1848], CHM
1[1471]

In Re M (Intractable contact
dispute: interim care order) [2003] EWHC 1024, [2003] 2 FLR
636, FD, Wall J made an order under s 37 of the Children Act 1989
inviting the local authority to consider the need for care
proceedings in relation to children subject to an intractable
contact dispute. The mother had caused the children to believe that
they had suffered abuse at the hands of the father and paternal
grandparents. Wall J concluded that an assessment was needed of the
situation when the children were not at home with the mother. The
local authority also reached the conclusion that the children were
suffering significant harm and that an assessment was needed. This
was secured away from the home under an interim care order. Free
from the mother’s influence, the children were rapidly able
to re-establish their relationship with the father. Subsequently an
order was made that they resided with him.

Comment: While this
approach will not provide a solution for all cases of recalcitrant
parents with care, it is a useful tool to have available. It is
necessary for the court to conclude that a care or supervision
order may be appropriate before the criteria for the use of s 37
are met, but in cases where the court is clear that contact is
desirable but one parent obstructs it, then the risk of significant
harm may often be present. Section 37 is available in private as
well as public law proceedings provided the criteria are met. Wall
J noted a number of features making his approach appropriate in
this case. There were specific allegations of abuse that could not
properly be assessed while the children lived with the mother but
which were dominating the case and needed to be resolved. The
consequences of the order and possible removal had to be thought
through in a coherent care plan. He also observed that it was
essential that the children were separately represented and that
there was judicial continuity if this approach was to succeed. A
judge making a s 37 order should set out his thinking clearly to
ensure that the benefits were realised.

•           Public law
proceedings

2

Re M & J (wardship:
supervision and residence orders) [2003] EWHC 1585
(Fam), [2003] 2 FLR 541

BFLS 3A[6620], CHM
1[852]

In Re M & J (wardship:
supervision and residence orders) [2003] EWHC 1585 (Fam),
[2003] 2 FLR 541 Charles J made residence orders that two child
live with the father and maternal grandmother respectively,
together with supervision orders and maintaining the continuing
oversight of the court in wardship. The residence and supervision
orders were made on the basis of the acceptance by the mother and
her new partner that the grounds for a supervision order were made
out. It was not necessary to go further and determine all the
issues on fact on which there remained disagreement. Charles J
accepted that as a matter of principle, the court should not use
the inherent jurisdiction when the statutory regime was applicable.
However, he was satisfied that there was a need to maintain the
supervision of the court in this case. Although the local authority
would do its best, it was predictable that there would continue to
be tension between the mother and maternal grandmother. Even with a
raft of conditions attached to the supervision order under Sch 3 of
the Children Act 1989 the local authority would not be able to
provide solutions when these difficulties manifested
themselves.

Comment: If the local
authority had pushed for a care order to be made, then it would
have had more power to influence the family. However, the local
authority did not believe that there was sufficient risk of harm to
justify the removal of the child from the family, although it
recognised that placement away from the direct care of the mother
was required. The family tensions arose from the mother’s
conversion to Islam and the difficulties faced by her sons in
trying to please her while also remaining in contact with their
wider family. The mother’s new partner preferred the boys to
keep way from un-Islamic influences. The emotional needs of the
children had been compromised by this situation, which had already
been the subject of litigation.

3

D v East Berkshire Community
NHS Trust [2003] EWCA Civ 1151, [2003] 3 FCR 1

BFLS 3A[3191], CHM
1[1602]

D v East Berkshire Community
NHS Trust [2003] EWCA Civ 1151, [2003] 3 FCR 1 held that a
common law duty of care was generally owed to children in child
protection cases. Although it might be established that it was
‘not just and reasonable’ to impose such a duty in
specific factual situations, each such argument would need to be
considered on its facts. However, no duty of care would exist in
relation to the parents in child protection cases, as their
interest would always be in the children being left with them.
There were cogent public policy reasons why the duty to the child
should prevail.

Comment: The blanket
immunity initially offered by X v Bedfordshire CC [1995]
2 AC 633 could not survive the ECHR jurisprudence. However, the
policy behind that decision, that child protection work should not
be compromised by fear of litigation remains powerful. This
decision ensures that the focus of child protection on children is
reinforced by limiting the common law duty of care in negligence to
those children and preventing the possibly conflicting pressures
that a duty to the parents would bring.

4

R (Ellis) v Chief Constable of
Essex Police [2003] EWHC 1321 (Admin) [2003] 2 FLR
566

R (Ellis) v Chief Constable of
Essex Police [2003] EWHC 1321 (Admin) [2003] 2 FLR 566 held
that a scheme of naming and shaming offenders through public poster
campaigns could be operated without automatically breaching the
human rights of the offender’s family. The court refused to
grant a declaration that the scheme was not capable of being
operated lawfully. However, it was doubtful whether it would be
appropriate to identify the father of young children as this could
be damaging to the children and the man’s former partner
(even if they had changed their names). No order was made on the
application, but the way was left open for further investigation
into particular cases to see whether the intrusion into the privacy
of the wider family was proportionate to the legitimate public
purpose the police were seeking to pursue.

Comment: The court
recognised that naming and shaming one person impacted on the
privacy of those connected with them. Were a particular case to be
considered, there would need to be a balance struck between the
public interest in reducing crime and the privacy interests of the
family. There are few clues as to how the court envisaged such a
balance would be drawn, but it is hard to see how it could be
achieved without developing a legal right of privacy. The
information in question was in the public domain (the identity and
crimes of convicted offenders) and so could not be said to be
confidential. As yet the courts have still resisted the creation of
a free standing right of privacy, seeing the privacy rights set out
in Art 8 of the ECHR as being protected through other legal
doctrines, most importantly confidentiality. Fuller exploration of
this area can be expected.

5

R (Kehoe) v Secretary of State
for Work and Pensions [2003] EWHC 1021 (Admin),
[2003] 2 FLR 57

BFLS 4A[391], CHM
4[94]

R (Kehoe) v Secretary of State
for Work and Pensions [2003] EWHC 1021 (Admin), [2003] 2 FLR
578 held that the Child Support Act 1991 was not incompatible with
the European Convention on Human Rights. The claimant argued that
the administrative system set up under the Act failed to provide
access to the court to enforce maintenance claims and so breached
Art 6 of the Convention. The court agreed that there was a civil
right to maintenance with enforcement through the Child Support
Agency. Taken together, the availability of judicial review to
challenge decisions by the CSA and the possibility of damages under
s 7 of the Human Rights Act 1998 made the system compliant with the
complainant’s rights.

Comment: The
significance of this decision lies principally in its
identification of the possible actions under s 7 of the HRA where
the Child Support Agency acts unreasonably, including unreasonable
delays. The basic scheme of the Act had already been held to be
compatible with the ECHR in R (Denson) v Child Support
Agency [2002] 1 FLR 938.

6

Hansen v Turkey (App No
36141/97) [2003] 3 FCR 97 (ECHR)

BFLS 5A[4182], CHM
1[1470.1]

In Hansen v Turkey (App No
36141/97) [2003] 3 FCR 97 the European Court of Human Rights held
that the Turkish Government had failed to take sufficient steps to
maintain contact between a mother and her daughters. The mother was
from Iceland. The father was Turkish and had retained the children
in Turkey following a holiday there. The mother had issued
proceedings for divorce and custody in the Turkish courts. The
father had been awarded custody and the mother’s access to
the children was obstructed by him. On a number of occasions the
mother visited with enforcement officers to see the children but
found that they were not there. The Court found that the state had
positive obligations under Art 8 of the European Convention on
Human Rights to take reasonable steps to facilitate the contact
between parents and children. It found that Turkey had failed to
take such steps. While proceedings were pending, they had failed to
seek the advice of social services or the assistance of
psychologists or child psychiatrists to facilitate the
mother’s reunion with her daughters and create a more
co-operative atmosphere between the parents. They had failed to
take active steps to seek to locate the children. They should have
taken realistic coercive measures against the father that were
likely to lead to compliance. The fines imposed were neither
effective nor adequate. Consequently, there had been a breach of
the mother’s rights to access to her children under Art 8 of
the ECHR.

Comment: This is an
important development under the ECHR and likely to be significant
in the continuing debate over the enforcement of contact orders. If
the attendance of enforcement officers and the imposition of fines
are inadequate steps in support of contact, then it seems likely
that parents who find themselves unable to achieve the contact
ordered by the courts are entitled to considerable support from the
state in the face of recalcitrant parents with care. The ECHR
rejected the suggestion that the mother could have asked the
enforcement officers to enter the father’s home by pointing
out that enforcement was the responsibility of the public
authorities (see also Ignaccolo-Zenide v Romania
[2000] ECHR 31679/96).