December 2004

Butterworths Family and Child Law Bulletin

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.

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Butterworths Family and Child Law Bulletin 83 immediately after the
Bulletins guide card, and in front of Bulletin 82. The Bulletins,
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Child Law Bulletins 74–83.

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• • Domestic violence

Harassment incidents must be linked

R v Patel (Nitin) (2004) Times, 29 November, CA

BFLS 1A[4136]; CHM 7[303.1]

In R v Patel (Nitin) (2004) Times, 29 November, CA Crim, a
conviction for harassment under the Protection of Harassment Act
1997, s 2(1) was quashed as unsafe. The jury had acquitted the
accused on the charge of putting a person in fear of violence by
harassment (under s 4 of the Act). There was a risk that the
conviction under s 2 had been based on two or three incidents
separated in time and to some extent context. The judge had failed
to direct the jury sufficiently clearly on the need for a
connection in type and in context between the incidents so that the
conclusion that they amounted to a ‘course of conduct’
could be justified.

Comment: The defence denied the wife’s
claims of six incidents over eight months. The judge had referred
to the need to find a ‘course of conduct’ which
involved conduct on at least two occasions. However, he did not
appear to explain what was required to make isolated actions amount
to a course of conduct.

• • Family property

Limits of estoppel interest

Wormall v Wormall (2004) Times, 1 December, CA

BFLS 4A[81]

In Wormall v Wormall (2004) Times, 1 December, CA a father allowed
his daughter to use his farm property for her business as long as
the farm remained a family farm. This created an estoppel in her
interest and protected her against eviction. However, it did not
create any right to compensation when she was asked to give vacant
possession so that the farm could be sold to satisfy a court order
for financial relief in divorce proceedings. The court should
approach estoppel cases so as to provide the minimum equity
necessary to do justice (Crabb v Arun DC [1976] Ch 179, 198;
Jennings v Rice [2003] 1 FCR 501). In this case, the father had led
the daughter to believe that she could use the property only so
long as it remained a family farm, and not beyond. The breakdown of
the marriage meant that it could no longer be used in that capacity
and had to be sold to meet the financial relief.

Comment: Estoppel is a flexible, and sometimes
unpredictable, doctrine, but interference with property rights
should be kept to a minimum. This case identified the
representation made by the father to the daughter and protected her
rights within the scope of the promise, but declined to give it
greater value than was commensurate with the duration envisaged
when the promise was made.

• • Child support

Scope of ‘benefit’ to child under Childen Act
1989, Sch 1

Re S (a child) (financial provision) (2004) Times, 15
November, CA

BFLS 4A[488]; CHM 4[2]

In Re S (a child) (financial provision) (2004) Times, 15 November
the Court of Appeal held that ‘benefit’ for the child
in the Children Act 1989, Sch 1, para 1 had to be given a wide
meaning and could extend to making financial provision to enable a
mother to travel to Sudan to see her child, who was being
unlawfully retained by his father. In the High Court, Bracewell J
had taken the view that this travel was for the benefit of the
mother and that applications in respect of children living abroad
were constrained by Sch 1, para 14. Paragraph 14 allowed orders
only against the parent living in England and Wales. Thorpe LJ
noted that the child had suffered the great disbenefit of
separation from his mother. Part of the mother’s objective in
making her application was to travel to see the child and pursue
her rights in respect of his care, denied from an order in her
favour in the Sudanese court. Paragraph 14 could not sensibly be
construed to prevent an application under Sch 1 by a parent who had
been left in the jurisdiction after the other parent left with the
child.

Comment: One interesting feature of this case is
the prospect that it opens up of ordering financial support for the
carers of children under Sch 1 to the 1989 Act. If it can be said
to be in the child’s interests for the mother in this case to
travel to see her son, could the costs of contact visits or even
loss of earning potential, when parents give up work to look after
children, also be included?

• • Public law proceedings

Re V (a child) (Care: Pre-birth actions) (2004) Times, 1
December, CA

BFLS 5A[4306]

In Re V (a child) (Care: Pre-birth actions) (2004) Times, 1
December, CA a pre-birth child protection case conference had been
held, which the parents attended. The parents had been advised of
their options and the local authority’s intentions had
clearly been set out in a letter. After the birth, the local
authority sought and was awarded a care order, but the judge made
an award of £100 damages to each of the parents for breaches
of their rights under Art 6 of the European Convention on Human
Rights. The Court of Appeal found this award ‘truly
startling’. Any criticisms that the judge might have had of
the process could not be said to have made the proceedings unfair.
Acts before the initiation of proceedings could not constitute a
breach of the fair trial provisions of Art 6.

Comment: The Court of Appeal expressed concern at
the resources being used up by long trials of alleged breaches of
Arts 8 and 6 in care proceedings. They had been told of the
encumbrance of applications for care orders by hearing such
actions, that ultimately proved wasted time and expense. In the
specific circumstances of this case, it could be observed that
there is sufficient opportunity for any unfairness in early
processes to be corrected in the legal proceedings. Thus,
procedural failures prior to the initiation of proceedings should
rarely lead to compensation. The proper approach is to ensure that
any failures are corrected, perhaps with a remedy in costs if an
extended hearing is required to achieve this.

Leave refused to make aunt a party

Re W (a child) (Care Proceedings: Leave to Apply) (2004)
Times, 22 November, FD

BFLS 3A[3046]; CHM 1[957]

In Re W (a child) (Care Proceedings: Leave to Apply) (2004) Times,
22 November, FD, Sumner J considered the test to be applied when
the court considered its discretion whether to join a person as a
party to family proceedings. The test was the same for both private
and public law proceedings. The application had been made by the
child’s aunt who believed that her views would not be taken
into account and she would become marginalised in the child’s
life if she were not a party to the proceedings. The application
was opposed by the local authority and the children’s
guardian, although it was supported by the maternal grandmother
(the aunt’s own mother). It was accepted that the aunt
required leave if she was to be made a party to the proceedings. It
was also accepted that the criteria set out in the Children Act
1989, s 10(9) were applicable to applications for joinder in public
law proceedings (see Re M (Care Proceedings: Contact:
Grandmother’s application for leave) [1995] 2 FLR 86).  Under
those principles the prospective party did not have to show a real
prospect of success, but if the prospect of success was remote and
obviously unsustainable, the application should be dismissed (after
a full inquiry: Re J (Leave to issue application for residence
order) [2003] 1 FLR 114, 118). Although not mentioned in s 10(9),
one relevant factor was whether the applicant had any separate
point to put forward. Where the applicant’s interests were
identical to another party’s, then leave would be unlikely to
be granted. Here there was no material difference between the cases
of the applicant and the maternal grandmother, who was already a
party. The aunt could be called as a witness in support of the
maternal grandmother’s submissions. There was no need to make
the aunt a party.

Comment: Sumner J expressed the view that the test
would not be different for cases where the applicant for party
status sought a court order from where participation was wanted.
Clearly the meaning of the test for probability of
‘success’ will be different in these two circumstances.
However, the important issue is perhaps whether the court will be
able to take full account of the relevant circumstances without
granting party status. In this case, the ability of the aunt to
give evidence as a witness within the grandmother’s case
ensured that the court would not be prevented from hearing relevant
material. Once that was secured, there was little value in
increasing the number of parties.

Apportioning costs of joint report

Calderdale MB v S (2004) Times, 18 November, FD

CHM 1[1447.2]

In Calderdale MB v S (2004) Times, 18 November, FD the court had
agreed to a joint instruction for a psychological assessment. The
issue arose as to how the costs of that report should be
apportioned. It was accepted that the court’s agreement did
not constitute an order under s 38(6) of the Children Act 1989,
which would have led to the report being made at the sole expense
of the local authority. The Legal Services Commission, which funded
the mother, the father and children’s guardian in the case,
argued that the local authority should be solely responsible for
the costs of the report as it should reasonably have covered the
ground as part of its core assessment and preparation. Bodey J
found that a number of considerations were relevant. First, the
court should exercise its discretion to apportion the costs fairly
and reasonably, having regard to the reasonableness of how and with
what degree of competence and thoroughness the local authority had
conducted the information gathering process. Where the work would
normally be expected to be undertaken as part of the local
authority’s core preparation then it would almost certainly
be required to pay the whole of the costs. Second, the extent to
which the report went merely to satisfying the threshold for state
intervention as distinct from helping the court decide on the
ultimate disposal in the child’s best interests. Third,
whether the report was from a treating expert as opposed to a
forensic expert brought in to give an overview to the court. In the
former case, it would be more likely that the report would be paid
for by the local authority, in the latter costs would be more
likely to be shared. Fourth, the fact that parties were publicly
funded should not change the decision about costs that would
otherwise have been made (Access to Justice Act 1999, s 22). The
Family Proceedings Court had ordered the Legal Services Commission
to pay half of the costs of the report and the local authority to
pay the other half. That was out of step with the conventional
approach to costs and inappropriate. If costs were to be shared it
was on the basis of the parties not the funders. The appropriate
apportionment was therefore one quarter to each of the four
parties, in effect one quarter to the local authority and three
quarters to the Legal Services Commission.

Comment: Bodey J was careful to point out that the
issue was one of discretion and that the considerations that he had
identified were not exhaustive. He also suggested that wherever
possible questions of apportionment should be resolved by agreement
in a collaborative way, before rather than after the expert was
jointly instructed.

• • Private law proceedings

Judge failed to explain alteration of status quo against
welfare recommendation

Re M (Children) (Residence) (2004) Times, 5 November,
CA

BFLS 3A[5624]; CHM 1[1268]

In Re M (Children) (Residence) (2004) Times, 5 November the Court
of Appeal upheld a mother’s appeal against the decision of
the county court to grant a residence order to the father, contrary
to the recommendation of the CAFCASS officer. The judge had not
explained why he had departed from the recommendation and had not
even inferentially dealt with the fact that his order shifted the
established pattern of care.
Comment: Both the points noted by Thorpe LJ are significant.
Departing from the recommendation of the CAFCASS officer, who will
have had a more extensive opportunity to investigate the issues, is
entirely within the prerogative of the court, but reasons need to
be set out to explain why the judge saw the case differently.
Without this, the reasons for the judge’s view, usually
inferred from concurrence with the welfare recommendation, will not
be apparent. Similarly, maintaining the current child care
arrangements can be readily seen as implying an assessment that the
children’s interests are currently adequately served. Parties
could reasonably expect an explanation of why that is not thought
to be the case, or why the new arrangements would better serve the
children’s interests, if a change is proposed by the court.
Without such reasons being apparent, it would not be possible to
challenge a decision through appeal.

Relevance of residence order to housing decisions

R (Bibi) v Camden LBC (2004) Times, 25 October, QBD

BFLS 3A[2262]; CHM 1[1541]

In R (Bibi) v Camden LBC (2004) Times, 25 October, QBD, Davis J
quashed the decision on the Borough Council to offer the applicant
only one bedroom accommodation even though her several children
were subject to a family court order dividing residence between her
and their father. He did not accept that the authority was obliged
to offer three-bedroom accommodation merely because of the
residence order. However it was a factor that was material to
housing considerations. The decision could not stand as it took
into account matters that were wrong or irrelevant.
Comment: Davis J suggested that where joint
residence was proposed the court should be provided with details of
the precise housing expected. Where this raised doubts, the family
court might invite representations from the relevant local
authority. This enables the courts to avoid the criticism that they
are forcing housing authorities to make inappropriate allocations
while still ensuring that full information is before them.

Test for temporary removal of child

Re Auld (Child: Temporary Removal from Jurisdiction) (2004)
Times, 10 November, CA

BFLS 3A[1219]; CHM 1[169]

In Re Auld (Child: Temporary Removal from Jurisdiction) (2004)
Times, 10 November the Court of Appeal held that the considerations
relevant to permission to remove the child temporarily from the
jurisdiction were not necessarily the same as those applicable to
permanent relocation. The judge had been misled by relying only on
Payne v Payne [2003] Fam 471 and other cases on permanent
relocation. The Court of Appeal allowed the mother’s appeal
against the refusal of the court to permit her to take her daughter
with her to South Africa for a period not exceeding two years to
undertake research for her PhD. The court needed to balance the
significant impact of refusing the mother’s application
against the impact of moving the child for two of her early years.
A practical view should be taken, taking into account all the
possibilities for direct and indirect contact, including telephone
and email.
Comment: This brief report does not make it clear
what arrangements could be established for direct contact with the
father, who was not married to the mother but held parental
responsibility under an order made by consent. Nor was it clear how
familiar the methods of indirect contact would be to the girl in
question, who was four years old. Once the full judgment is
reported it may become clearer what the actual test was, and
whether it drew on the approach set out in Payne, but with the
balance more easily tipped in favour of the residential
parent.

• • International child abduction

Application for return after 12 months

Cannon v Cannon (2004) Times, 28 October, CA

BFLS 5A[2154]; CHM 2[62]

In Cannon v Cannon (2004) Times, 28 October the Court of Appeal
considered Hague Convention proceedings where it was more than one
year since the wrongful removal of the child. Under Art 12 of the
Hague Convention where proceedings are commenced more than twelve
months after the removal the court ‘shall order the return of
the child, unless it is demonstrated that the child is now settled
in its new environment’. The mother had wrongfully removed
the child from the USA to England in July 1999 and deliberately
concealed their whereabouts from the father until October 2003 by
assuming new identities. Two questions arose. First, whether on the
facts the girl was settled in her new environment. In the High
Court, Singer J had held that this was to be determined by
reference only to the physical characteristics of settlement. The
Court of Appeal allowed the father’s appeal. Thorpe LJ held
that equal regard had to be given to emotional and psychological
elements as well as the physical and temporal elements of the stay
in England. In cases of concealment and subterfuge, the burden of
establishing that the child was settled was much increased. He drew
a parallel with the establishment of habitual residence. It had
been established that a fugitive from foreign justice could not
obtain such residence by reliance on the time period during which
she had outwitted the authorities (Puttick v AG [1980] Fam 1). Such
a fugitive would be in a state of mental readiness to move on
before approaching arrest and would often not be settled in a
psychological sense. The second point concerned whether the court
had a residual discretion whether to return the child even where
settlement was established. Singer J had found that it did not.
However, the Court of Appeal held that there was such a
discretion.
Comment: It would have been possible to argue this
case slightly differently, building on the aspect of the Puttick
case that concerned the policy of ensuring that litigants cannot
use the terms of a statute to benefit from their own wrongdoing. In
this case, the delay in bringing proceedings was due to the
mother’s subterfuge. It could be said to be contrary to
public policy to allow her to plead the consequences of that deceit
as the basis for her resistance to the child’s return (see
Tinsley v Milligan [1993] 3 All ER 65).

• Statutes

Domestic Violence, Crime and Victims Act 2004 (c
28)

The Domestic Violence, Crime and Victims Act 2004 makes significant
reforms to the protect the victims of domestic violence. It
includes the insertion of a new Family Law Act 1996, s 42A creating
an offence of breaching a non-molestation order and also creates an
offence of causing or allowing the death of a child or vulnerable
adult (s 5). The protection of Part IV of the 1996 Act is extended
in a number of respects, to include same-sex couples and also
couples with an intimate relationship of significant duration even
when they have not cohabited.

Children Act 2004 (c 31)

The Children Act 2004 introduces a number of changes to the way in
which children’s services are organised. It establishes a
Children’s Commissioner for England, requires the creation of
Local Safeguarding Children Boards in all areas of England,
provides for information databases to reduce the risk that children
are lost within the system or agencies fail to identify multiple
contacts with the same child. Amendments are also made to the
notification scheme for private fostering and the rights of parents
to administer reasonable punishment are redefined.

Civil Partnership Act 2004 (c 33)

This Act provides for civil partnerships for same-sex couples in a
form that is based on the legal consequences of marriage. A
‘civil partnership’ is a relationship between two
people of the same sex, formed by registration and ending only on
death, dissolution or annulment. Couples may not be registered if
either of them is already a civil partner or lawfully married,
under 16 or within the prohibited degrees of relationship (see Sch
1, Pt 1). Formalities for the registration process are prescribed,
which approximately equate with the civil preliminaries for
marriage. Provision is made for dissolution of registered
partnerships on a basis that approximates the ground for divorce,
being irretrievable breakdown proved by one of a prescribed list of
‘facts’, including ‘that the respondent has
behaved in such a way that the applicant cannot reasonably be
expected to live with the respondent.’ There is provision for
nullity proceedings on a range of grounds, some of which make the
partnership void and some of which may make it voidable. Provision
is made in relation to the property rights of civil partners which
approximately equate with those relating to married couples,
including the discretionary distribution of financial resources on
the dissolution of a partnership.

• • Statutory Instruments

The Social Fund Cold Weather Payments (General) Amendment
Regulations 2004, SI 2004/2600

These Regulations, which came into force 1 November 2004, amend the
Social Fund Cold Weather Payments (General) Regulations 1988 to
extend the prescribed description of persons who may receive cold
weather payments. They also amend the 1988 Regulations in relation
to the lists of weather stations and applicable postcode districts
in Sch 1 to those Regulations.
Regulation 2 adds to the persons to whom payment may be made under
the 1988 Regulations, persons awarded income support, state pension
credit or income-based jobseeker’s allowance who are also
entitled under the Child Tax Credit Regulations 2002 to an
individual amount of child tax credit for a child or qualifying
young person who is disabled or severely disabled.
Regulation 3 replaces Sch 1 to the principal Regulations with the
Schedule to these Regulations. The new Schedule largely re-enacts
the list contained in the former Sch 1,but provides for certain
changes to the postcode and weather station linkages.

The Community Legal Service (Financial) (Amendment)

Regulations 2004 SI 2004/2899

These Regulations, which came into force on 30 November 2004, amend
the Community Legal Service (Financial) Regulations 2000 which
govern the financial aspects of the provision of services funded by
the Legal Services Commission. A new reg 5D is inserted in the 2000
Regulations in order to implement Arts 3(4) and 5(4) of Council
Directive 2002/8//EC of 27 January 2003 about the provision of
legal aid for cross-border disputes. New reg 5D requires the Legal
Services Commission to waive the normal financial eligibility
criteria and requirement to pay contributions, where a client who
is domiciled or habitually resident in another Member State applies
for funded services in connection with a cross-border dispute and
proves that he is unable to pay the cost of proceedings in England
and Wales, or contributions, as a result of differences in the cost
of living between his Member State and England and Wales. These
amendments apply in relation to applications for services made to
the Commission on or after 30 November 2004. An amendment is also
made to reg 19 of the 2000 Regulations, which specifies payments to
be disregarded in calculating a person’s income, to
substitute ‘carer’s allowance’ for ‘invalid
care allowance’.

The Child Abduction and Custody (Parties to
Conventions)

(Amendment) Order 2004,SI 2004/3040

This Order, which was made on 17 November 2004, amends the Child
Abduction and Custody (Parties to Convention) Order 1986 to add
Brazil and Lithuania to the list of Contracting States to the
Convention on the Civil Aspects of International Child Abduction
1980 (The Hague Convention)  and to add Lithuania to the list of
Contracting States to the European Convention on Recognition and
Enforcement of Decisions concerning Custody of Children and on
Restoration of Custody of Children, signed at Luxembourg on 20 May
1980.