May 2004

Butterworths Family and Child Law Bulletin – May
2004

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.

Care proceedings

Designation goes
with residence when placement is with family

Re H (a child) (care
proceedings: designation of local authority) [2003]
EWCA Civ 1629, [2004] 1 FCR 282, [2004] 1 FLR 534

BFLS 3A[3023.1]; CHM 1[1015]

In Re H (a child) (care
proceedings: designation of local authority) [2003] EWCA Civ
1629, [2004] 1 FCR 282, [2004] 1 FLR 534, the Court of Appeal held
that the designated local authority for a care order was that in
whose area the child was residing with his grandparents. The main
family roots of the child in question were in Norfolk. His mother
had taken him to Oxford for about a year of his life, where he
suffered non-accidental injuries and was removed under police
protection into foster care. Oxfordshire County Council were
granted an interim care order and in subsequent proceedings Wall J
ordered, against the opposition of Oxfordshire CC, that the child
return to Norfolk to be cared for by his grandparents. The issue
arose of which local authority should be designated under the care
order. The Court of Appeal held that the boy was ordinarily
resident in Norfolk and therefore Norfolk CC was designated
(Children Act 1989, s 31(8)). They rejected the argument that
residence in Norfolk should be discounted because it involved
‘accommodation by or on behalf of a local authority’
(Children Act 1989, s 105(6)). Accommodation with the child’s
family was not to be construed as being on behalf of the local
authority, so the disregard of residence under s 105 did not apply
(see also Hackney LBC v
C [1997] 1 FCR 509).

Comment: The Court of
Appeal adopted this construction in order to preserve the
simplicity of the test for designation. In the High Court, Hogg J
had sought to relate the test to what was best for the boy rather
than the fact of residence. In order to reconcile this with the
case law, she had to characterise the case as
‘exceptional’ (see Northamptonshire CC v Islington
LBC [1999] 3 FCR 385; C v Plymouth [2000] 2 FCR
289). Thorpe LJ found that to accept this on the facts would be to
negate the intention of the courts in the earlier decisions. The
adoption of a simple factual test is calculated to avoid expensive
court disputes, particularly where they are largely concerned with
the question of which local authority should bear the financial and
administrative burden of supporting the child. The norm is intended
to be that the local authority in whose area the child currently is
should carry these responsibilities. Local knowledge and proximity
to the child make it more likely to be effective. Only where the
place of residence is artificial as a result of a placement would
the disregard of current residence, and its replacement by the
place in which the circumstances leading to intervention arose,
come into play.

Human rights claims should
normally be argued within family proceedings not as separate
application

Re L (care proceedings: human
rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR
289 (FD)

BFLS 3A[3113], 5A[4057]; CHM 1[73]

In Re L (care proceedings: human
rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR 289 (FD)
Munby J held that a free standing application based on s 7 of the
Human Rights Act 1998 should not have been brought to challenge the
care plan drawn up by the local authority in care proceedings. That
care plan identified finding an adoption placement as the main
priority and the mother sought to have long-term fostering made the
first long-term option. Munby J considered four procedural options.
The first was to raise the issue in the family proceedings pending
under Part IV of the Children Act 1989. This could not in itself
give the mother the remedy that she sought, as the court would have
the power only to approve or refuse the care plan, not require it
to be amended. The second was to use the inherent jurisdiction of
the High Court, but this was barred in this case by s 100(2) of the
Children Act 1989 because the child was in local authority care. In
any event, the inherent jurisdiction could not be used to compel a
local authority to exercise its discretion in a particular way (A v A Health Authority, re
J [2002] EWHC 18 (Fam/Admin), [2002] 1 FCR 481). The third
possible route, judicial review, could in principle be used to
vindicate the mother’s Convention rights, but would normally
be limited to quashing the care plan and requiring reconsideration
rather than rewriting the plan itself. The fourth option was a
remedy under section 8 of the Human Rights Act 1998. This could be
based on a freestanding application under s 7, which would be the
appropriate route if care proceedings had been ended. Where,
however, care proceedings had not been concluded, the court could
provide this remedy within the family proceedings and that should
normally be the process adopted. To bring separate proceedings in
this case had caused unnecessary delay.

Comment: the
President, Dame Elizabeth Butler-Sloss, has endorsed this
procedural guidance and therefore it can be seen as having an
authority tantamount to a practice note. It has also now been
endorsed by the Court of Appeal (see Re V (Care Proceedings: Human
Rights Claims) [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1
FLR 944, [2004] 1 All ER 997, discussed below).

Re V (Care Proceedings: Human
Rights Claims) [2004] EWCA Civ 54, [2004] 1 FCR 338,
[2004] 1 FLR 944, [2004] 1 All ER 997

BFLS 3A[3113], 5A[4057]; CHM 1[73]

In Re V (Care Proceedings: Human
Rights Claims) [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1
FLR 944, [2004] 1 All ER 997 the Court of Appeal endorsed the view
taken by Munby J in Re L
(care proceedings: human rights claims) [2003] EWHC 665 (Fam),
[2004] 1 FCR 289 (see above) that it was open to a court hearing an
application for a care order to make an order under the Human
Rights Act 1998 that parents’ human rights had been breached
by a local authority. It also upheld his view that it was not
necessary for cases in which such claims were raised to be
transferred to the High Court. The dispute in the case revolved
around the question of whether the parents should receive therapy
to help them overcome their difficult personal histories (both had
been abused as children and the father was a Schedule 1 offender).
The local authority declined to fund anything more than a core
assessment, which had concluded that the parents were not yet ready
to engage in therapy. The parents claimed that the failure to fund
therapy was a breach of their human rights under Art 8 of the
European Convention on Human Rights and that the fact that the
court had no power to require the local authority to fund such
therapy made the Children Act 1989 incompatible with the
Convention. They based this claim on the decision of the European
Court of Human Rights in K
& T v Finland [2001] 2 FCR 673, arguing that it placed
upon the local authority a positive obligation to seek to
rehabilitate the child with her parents. However, this claim was
misconceived in that it had explicitly been acknowledged in the
case that this obligation had to be balanced against the duty to
consider the interests of the child. The facts of the Finland case
were also very different in that no consideration had been given to
the possibility of rehabilitation, whereas it was clear here that
the possibility had been considered. There was no incompatibility
between the human rights of the parents in this case and the powers
of the court under the Human Rights Act 1998.

Comment: The Court of
Appeal endorsed the approach taken by Munby J in Re L (care proceedings: human
rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR 289 that
human rights issues should be taken within existing proceedings. It
would be inappropriate to seek to separate out human rights points
to be dealt with separately. That would cause inappropriate delay.
It would also be inappropriate to transfer cases to the High Court
merely because they raise human rights points. The only issue that
is reserved to the High Court under the Practice Direction Human Rights Act 1998: citation
of authorities [2000] 4 All ER 288 is the making of a
declaration of incompatibility. The Court of Appeal indicated that
it would not permit flimsy allegations that the Children Act 1989
was incompatible to lead to transfer to the High Court. It saw the
decision in Re S (children:
care plan); Re W (children: care plan) [2002] UKHL 10, [2002]
2 All ER 192 as establishing the main scheme of the Act was
compliant. Cases where the issue was making sure that the terms of
the Children Act were applied in a manner consistent with the
Convention did not need to be transferred.

Practice
Directions

Practice Direction: Children:
Conciliation

Issued by Philip Waller,
Senior District Judge with the approval of the
President

12 March 2004,
[2004] 1 FCR 781, [2004] 1 FLR 974

This Practice
Direction supersedes Practice Direction:
Conciliation: Children made on 18 October 1991 ([1992] 1 All
ER 431), which ceased to apply on 22 March 2004 save to cases
pending on that date.

The Direction
extends the conciliation scheme in operation in the Principal
Registry of the Family Division as from 22 March 2004. As from that
date all applications for orders under sections 8 and 13 of the
Children Act 1989 will be listed in the conciliation list. Cases
where a district judge gives a direction under r 2.39(3)(c) of the FPR 1991
(compliance with the MCA 1973, s 41) will be listed in the
conciliation list unless otherwise directed. A summons for
wardship, where section 8 orders are sought, may be referred by the
district judge to the conciliation list, usually at the first
appointment. Cases may be excluded or removed from the conciliation
list if a district judge so directs.

There will normally
by five conciliation lists each week, two on Monday and Tuesday and
one of Wednesday. The district judge will be attended by a CAFCASS
officer. It is essential that both parties and any legal advisers
attend. Te conciliation appointment will be conducted with a view
to an agreement being reached and discussion away from the
courtroom will be facilitated. All discussion will be privileged
and will not be disclosed in any subsequent hearing or later
application. The district judge and CAFCASS officer will not be
involved in further hearings or applications between the
parties.

Children aged nine
or over should attend to be seen by the CAFCASS officer (unless
excused by direction of the district judge). Where such a child
attends and there is a younger child to whom the application also
relates, then that younger child may attend. Any application to
adjourn a conciliation must be made to a district judge.

If agreement is
reached, the district judge will make any appropriate orders. If no
agreement disposing of the application can be reached, then the
district judge will give directions with a view to its early
hearing and disposal.

Practice Direction (Family
Proceedings:
Representation of children)

Dame Elizabeth Butler-Sloss
P

5 April 2004, [2004]
2 FCR 124

This Practice
Direction deals with the proper conduct and disposal of hearings
where the child may need to be made a party to proceedings but
where the proceedings are not specified proceedings within s 41 of
the Children Act 1989. The President noted that this step would
only be taken in a minority of cases where there are issues of
significant difficulty. Before taking the decision, consideration
should be given to whether and alternative route might be
preferable, such asking a CAFCASS officer to carry out further
work, a referral to social services, or by obtaining expert
evidence.

The decision to make
a child a party is exclusively that of the judge, made in the
interests of the child, taking into account any consequent delay.
Illustrations of the circumstances that might justify making such
an order would include:

(1)      where a CAFCASS officer has
notified the court that in their opinion the child should be made a
party (see the FPR 1991, r 4.11B(6));

(2)      where a child has a
standpoint or interests which are inconsistent with or incapable of
being represented by any of the adult parties;

(3)      where there is an intractable
dispute over residence and contact, including where all contact has
ceased, or where there is irrational but implacable hostility to
contact, or the child may be suffering harm associated with the
contact dispute;

(4)      where the views and wishes of
the child cannot adequately be met by a report to the court;

(5)      where an older child is
opposing a proposed course of action;

(6)      where there are complex
medical or mental health issues, or other unusually complex issues
that necessitate separate representation of the child;

(7)      where there are international
complications over child abduction, in particular where it may be
necessary to have discussions with overseas authorities or a
foreign court;

(8)      where there are serious
allegations of physical, sexual or other abuse in relation to the
child or allegations of domestic violence not capable of being
resolved with the help of a CAFCASS officer;

(9)      where the proceedings concern
more than one child and the welfare of the children is in conflict
or one child is in a particularly disadvantaged position;

(10)    where there is a contested
issue about blood testing.

When a child is made
a party and a guardian is to be appointed first consideration
should be given to appointing a CAFCASS officer and preliminary
enquiries should be made of CAFCASS (see the Practice Note below
for the procedure). If a CAFCASS officer cannot be appointed
without delay or there is some other reason making such an
appointment inappropriate, then r 9.5(1) makes further provision
for the appointment of a guardian.

Practice Note
(CAFCASS)

Issued by Charles Prest,
Director of Legal Services, CAFCASS

5 April 2004

This Practice Note
is issued in conjunction with the President’s Practice
Direction of 5 April 2004 dealing with the making of children party
to proceedings. It supersedes the earlier CAFCASS Practice Note of
March 2001 ([2001] 2 FCR 562). It identifies that the decision of
which officer is appointed is a matter for CAFCASS and gives the
relevant contact details. A decision on appointment will be made
within five days. For cases dealt with by a guardian based at
CAFCASS Legal (as will be the norm in High Court proceedings) then
there will not usually be a need for a separate solicitor to be
appointed. Where a guardian based at a local CAFCASS office is
appointed, then legal representation will be either through CAFCASS
Legal or by the appointment of a local solicitor, normally
appointed by the guardian and eligible to apply for legal aid in
the normal way.

The Practice Note
also identifies other cases that should be referred to CAFCASS
Legal:

(1)      where CAFCASS Legal or the
Official Solicitor has previously acted for the child;

(2)   exceptionally complex
international cases where there may need to be enquiries made
abroad or where there is a dispute over jurisdiction;

(3)   exceptionally complex adoption
cases;

(4)      all medical treatment cases
where the child is old enough to be taken into account, or where
there a particularly difficult cases such as withdrawal of
treatment (where such issues arise in existing proceedings, the
matter will usually continue to be dealt with locally but with
support from CAFCASS Legal);

(5)      any free standing Human
Rights Act applications in which it is thought appropriate for
CAFCASS Legal to be involved.

On such referrals
the same allocation procedure would be followed as for court
referrals.

Statutory
Instruments

The Tax Credits Up-rating
Regulations 2004, SI 2004/941

These Regulations,
which came into force on 6 April 2004, amend reg 7(4) of the Child
Tax Credit Regulations 2002, increasing the maximum rate of the
individual element of a child tax credit. Regulation 3 and the
Schedule amend Sch 2 to the Working Tax Credit (Entitlement and
Maximum Rate) Regulations 2002 by substituting a new Table
prescribing the maximum rates for the elements of working tax
credit other than the child care element. Regulation 4 increases
the first income threshold for those entitled to child tax credit
in reg 3(3) of the Tax Credits (Income Thresholds and Determination
of Rates) Regulations 2002.

The Child Benefit and
Guardian’s Allowance Up-rating Order 2004, SI
2004/942

These Regulations,
which came into force on 12 April 2004, increase the weekly rate of
guardian’s allowance prescribed in para 5 of Part III of Sch
4 to the Social Security Contributions and Benefits Act 1992 from
£11.55 to £11.85. Article 3 increases the weekly rates of
child benefit prescribed in reg 2(1)(a)(I) and (b) of the Child
Benefit and Social Security (Fixing and Adjustment of Rates)
Regulations 1976. The effect is to increase the amount for the
eldest or only child from £16.05 to £16.50 and for any
other child from £10.75 to £11.05. Article 3 also
confirms that the rate prescribed in 2(1)(a)(ii) (payable in
respect of the eldest or only child living with a lone parent)
remains £17.55. This is only payable in transitional cases
where the rate was applicable in the case of a child who was living
with a lone parent in 1998 and has continued to do so.

The Civil Procedure
(Modification of Supreme Court Act 1981) Order 2004, SI
2004/1033

This Order, which
come into force on 1 May 2004, amends the Supreme Court Act 1981,
and in particular ss 29 and 31, to provide that the orders of
mandamus, prohibition and certiorari are to be known instead as
mandatory, prohibiting and quashing orders, not just in that Act
but in any primary or secondary legislation extending to England
and Wales. Section 31(4) is amended to give the High Court, on an
application for judicial review, the power to award restitution or
the recovery of a sum due, in addition to the existing power to
award damages.

The Social Security
(Miscellaneous Amendments) (No. 2) Regulations 2004, SI 2004/
1141

These Regulations,
which came into force on 12 May 2004, amend the various benefit
regulations to take into account the ‘Skipton Fund’, an
ex-gratia payment scheme administered by the Skipton Fund Limited
on behalf of the Department of Health for the benefit of persons
who have contracted hepatitis C from NHS blood, blood products or
tissue. In general, payments from the Fund will not reduce
benefits. They will be disregarded when calculating a
person’s capital or their income from capital. Amendments to
the Recovery of Benefit Regulations include an exemption for
payments made from the Skipton Fund from the compensation recovery
scheme. Amendments to the Social Fund Maternity and Funeral
Expenses Regulations provide that payments received from the
Skipton Fund will not be deducted from an award of a funeral
payment

The Social Security (Habitual
Residence) Amendment Regulations 2004, SI 200/1232

These Regulations,
which came into force on 1 May 2004, amend the Income Support
(General) Regulations 1987, the Jobseeker’s Allowance
Regulations 1996, the Housing Benefit (General) Regulations 1987,
the Council Tax Benefit (General) Regulations 1992 and the State
Pension Credit Regulations 2002 In particular, they amend the
income-related benefit regulations with effect that no person shall
be treated as habitually resident for the purposes of entitlement
to income support, jobseeker’s allowance, housing benefit,
council tax benefit and state pension credit unless they have a
right to reside in the United Kingdom, the Channel Islands, the
Isle of Man or the Republic of Ireland. They also extend the
exception to the habitual residence test to include certain persons
treated as workers from countries acceding to the European Union
from 1 May 2004 in accordance with the Accession (Immigration and
Worker Registration) Regulations 2004.

The Tax Credits (Miscellaneous
Amendments No 2) Regulations 2004, SI 2004/1241

These Regulations,
which came into force on 1 May 2004, amend the Tax Credits (Claims
and Notifications) Regulations 2002 and the Tax Credits (Payments
by the Board) Regulations 2002. Regulation 3 amends reg 21 of the
Claims and Notifications Regulations, adding additional
circumstances in which a claimant is required to notify the Board
about a change in his entitlement to a tax credit. Regulation 4
inserts a new reg 29A into Part 4 of the Claims and Notifications
Regulations specifying the form of a certificate of birth or
adoption to be provided to the Board in response to a notice under
s 14(2)(a), 15(2)(a) or 16(3)(a) of the Tax Credits Act 2002.
Regulation 5 amends reg 3 of the Payments by the Board Regulations.
As amended this provides that, where the members of a married or
unmarried couple are for the time being resident at the same
address, the tax credit shall be paid to the member of the couple
whom they jointly identify. In default of such a member being
identified, the tax credit is payable to the member appearing to
the Board to be the main carer. It further provides that in a case
where the members of a couple are living at different addresses,
the member to whom the tax credit is payable is the member
appearing to the Board to be the main carer.

The Tax Credits (Residence)
(Amendment) Regulations 2004, SI 2004/1243

These Regulations,
which came into force on 1 May 2004, amend the Tax Credits
(Residence) Regulations 2003. Section 3(3) of the Tax Credits Act
2002 requires a claim for a tax credit to be made jointly by a
married couple or unmarried couple, both of who are aged at least
16 and are in the United Kingdom, or by a single person who is aged
at least 16 and is in the United Kingdom. Section 3(7) gives the
Treasury power to prescribe circumstances in which a person is
treated as being, or not being, in the United Kingdom. The
principal Regulations introduce an ordinary residence test.
Regulation 3 adds a new reg 3(5) to the principal Regulations. The
main effect of the amendment is that, where a person claims child
tax credit (as opposed to being treated as making a claim) on or
after 1 May 2004, he or she must have a legal right to reside in
the United Kingdom. The legal right to reside may arise under
either domestic or EC law.

The Child Benefit (General)
(Amendment) Regulations 2004, SI 2004/1244

These Regulations,
which came into force on 1 May 2004, amend the Child Benefit
(General) Regulations 2003. Section 146(2) of the Social Security
Contributions and Benefits Act 1992 provides that no person shall
be entitled to child benefit unless he or she is in Great Britain
in that week. Subsection (3) of each section gives power (now
vested in the Treasury) to prescribe circumstances in which a
person is treated as being, or not being, in the relevant country.
Regulations 21 and 25 of the principal Regulations introduce an
ordinary residence test. Regulations 3 and 4 of these Regulations
add new regs 21(4) and 25(3) to the principal Regulations. The main
effect of the amendments is that, where a person claims child
benefit on or after 1 May 2004, he or she must have a legal right
to reside in the United Kingdom. The legal right to reside may
arise under either domestic or EC law.

Recent articles on family and
child law

Contact enforcement and
parenting programmes – policy aims in confusion? Helen
Rhoades (2004) 16 CFLQ 1

Risks and responsibilitie4s
– the role of the local authority lawyer in child care
cases Jonathan Dickens (2004) 16 CFLQ 17

Equity’s children –
constructive trusts for the new generation Carline Sawyer
(2004) 16 CFLQ 31

Re O & N; Re B –
Uncertain evidence and risk taking in child protection cases
Mary Hayes (2004) 16 CFLQ 63

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