September 2004

Tidy error!

Bulletin No 81

Butterworths Family and Child Law Bulletin – September 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.

Human rights

Social worker did not adequately represent children’s interests

CF v Sec State for the Home Department [2004] EWHC 111, [2004] 1 FCR 577, FD

BFLS 3A[5598.1], 5A[4058]; CHM 1[97]

In CF v Sec State for the Home Department [2004] EWHC 111, [2004] 1 FCR 577, FD Munby J quashed a decision to separate a female prisoner and her baby at the age of nine months. He found that the policy, which envisaged the separation of mother and baby at some point before the age of eighteen months if the mother’s sentence was longer, was lawful. He also rejected the suggestion that the application was governed by the best interests of the child. The matter was a public law one, and the court’s role was to consider whether the Secretary of State had acted lawfully. However, the process by which the decision had been made was flawed. The child’s interests had been insufficiently represented. The allocated social worker had become involved with the case only on the day of the meeting and was severely crippled in carrying out her role. The minutes of the meeting indicated that she did not defend the child’s interests in remaining with the mother. This failure of process meant that the baby’s rights to be involved with the decision making under Art 8 of the ECHR had not been met. The decision would therefore be quashed and the matter would need to be considered afresh.

Comment: The general policy had already been considered and upheld in Re P & Q [2001] 3 FCR 416. Munby J indicated that he would not have upheld a challenge on the merits alone. The importance of the case lies in its insistence on due process in respect of Art 8 rights to be involved in decision making, for the children as well as adults. While the individual social worker was not blamed, the allocation system that precluded her being able to give her duties appropriate time was flawed. Such difficulties also arise in child protection cases and local authorities may be vulnerable to challenge where staff are inadequately prepared to consider children’s interests.

Foetus does not have right to life within Art 2

Vo v France App No 53924/00 [2004] 2 FCR 577, ECtHR

BFLS 3A[514]

In Vo v France App No 53924/00 [2004] 2 FCR 577 the European Court of Human Rights held, by a majority of fourteen to three, that a foetus did not have the right to life under Art 2 of the European Convention on Human Rights. French law did not fail to respect the rights of a foetus when it declined to apply the crime of unintentional homicide to a case where the applicant had had her pregnancy terminated after a negligent error made by a doctor. She had been confused with another woman and the doctor had negligently ruptured her membranes, causing loss of amniotic fluid, which led to an abortion being necessary because the baby was compromised. French law declined to treat this as unintentional homicide and the applicant claimed that this did not give proper regard to the foetus’s right to life under Art 2 of the Convention. The court found that the question of when the right to life begins comes within the margin of appreciation that the court permitted states. The issue of the extent of that protection was not resolved. There was no consensus across Europe and in France itself there was continuing debate. While the potential of the foetus and its capacity to become a person required protection in the name of human dignity, it did not make it a person with the ‘right to life’ within Art 2. The court noted that the Oviedo Convention on Human Rights and Biomedicine left the definition of ‘everyone’, to whom the Convention applies, open in order to allow clarifications to be made by domestic law. French law did not deprive the foetus of all protection when it declined to extend the criminal offence of unintentional homicide to the circumstances of the case. It was legitimate to provide protection through the rights of the mother rather than independently. The court did not accept that only a criminal remedy was sufficient, particularly noting that the homicide was not intentional. The mother had a remedy in damages against the doctor. Even if Art 2 had applied, the court found that French law would have been compatible with it.

Comment: This case is significant in the context of the renewed debate over the scope of abortion law in the UK. First, it is the nearest we currently have from the ECtHR to a clear decision on the application of the Convention to abortion law. The majority of the court regarded it as inappropriate to resolve debates over the scope of abortion law at European level. It was noted that such laws varied across the signatory states and had done at the time the Convention was agreed, indicating that it should not be interpreted as incompatible with legal abortion. Consequently, the majority declined to rule on whether a foetus had a ‘right to life’ under Art 2 but indicated that if it did, then the French law must still be seen as compatible. However, the court did wish to show that the foetus had some recognised status, in the name of human dignity. It is not clear which article this is to be related to, but if it is true that the foetus has some rights under the Convention, then this leaves open the possibility of arguments based on the discrimination provisions in relation to abortions on the basis of disability. This is an issue currently before the UK courts in the Jepson litigation. Finally, the fact that three dissenting judges took the view that Art 2 applied raises the prospect of the ECtHR moving towards regulating abortion. In the transsexual marriage cases, the court began by resisting engagement on the basis that there was no European consensus, but subsequently intervened even though little had been shown to change. It seems likely that further litigation in the ECtHR is to be expected.

Practice Directions, Protocols etc

Communicating with the Home Office

Protocol from the President’s Office [2004] Fam Law 608

The protocol issued in December 2003 on communications with the Home Office was updated in June 2004.

(1) Where a request is made of, or an order made against, the Home Office, the court should draw it up in a separate document and immediately provide a copy to:

Family Division Lawyer

President’s Chambers

Royal Courts of Justice

Strand, London WC2A 2LL

Tel: 020 7947 7197

Fax 020 7947 7274

fdp@courtservice.gsi.gov.uk

The Court Service Form EX660 should be completed, to be used in the production of the order, and it should also be sent to the Family Division Lawyer.

(2) The request or order, or accompanying letter, should state the following details in respect of all parties about whom information is sought:

•           full names including middle names;

•           nationality;

•           full date of birth;

•           any known Home Office reference number.

Where the query relates to the proposed adoption of a foreign national minor, the Family Division Lawyer can advise as to additional information requirements.

(3) The request or order should state the time by which information is required, allowing a reasonable period for investigation and preparation—four weeks in the absence of urgent circumstances.

(4) The questions to be answered by the Home Office should be identified.

(5) The request or order should be forwarded to the Family Division Lawyer with sufficient information to enable the President’s Office and the Home Office to understand the nature of the case, to identify whether it involves adoption, and whether immigration issues raised might relate to an asylum or non-asylum application.

(6) The Family Division Lawyer will then send the enquiry to the appropriate officer in the Home Office together with a copy of the papers. The Home Office official will be personally responsible for preparing the statement for the court.

(7) The Family Division Lawyer will follow up as required to ensure that the information is received by the court in time.

Implementation of the UK-Pakistan Judicial Protocol on Child Contact and Abduction

Guidance from the President’s Office 21 May 2004 [2004] Fam Law 609

This guidance relates to the Protocol agreed in January 2003 between the judges of the UK and Pakistan. It was supplemented by further guidelines agreed at a second judicial conference in September 2003.

Liaison judges have been appointed. In the UK the liaison judge is Lord Justice Thorpe. In Pakistan it is Justice Mian Muhammad Ajmal, judge of the Supreme Court.

The use of the Protocol may arise where:

•           the ‘left behind’ parent has a residence order and has not consented to the child being removed to Pakistan;

•           removal/retention is in breach of s 13 of the Children Act 1989;

•           removal is in breach of a prohibited steps order/injunction;

•           there is a care order and removal/retention is in breach of s 33(7) of the Children Act 1989.

The level of court that is appropriate to deal with cases depends on the precise nature of the application. Applications for temporary removal of a child from the jurisdiction (whether or not contested) may be heard by a High Court judge, or with the leave of a High Court judge by a deputy High Court judge or a circuit judge (superseding the decision in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084). Applications concerning abduction are likely to involve the inherent jurisdiction or wardship and should only be listed in the High Court before a judge of the division, or with the leave of a High Court judge by a deputy High Court judge.

In analogous cases that do not fall within the strict terms of the Protocol, it would be consistent with the predominant approach of the Court of Appeal to apply the presumption of return, in the spirit of the protocol, provided that it is not contrary to the best interests of the child. An example would be where there is no court order (and thus no breach of ss 13 or 33) but where the child is habitually resident in England and Wales and the removal/retention was unilateral and appears to be in breach of the Child Abduction Act 1984.

The guidance contains specimen orders (with notes), for illustrative purposes and adaptation to the precise circumstances. They cover the following situation:

•           orders granting leave for temporary removal to Pakistan where the Protocol will apply strictly if the order is breached;

•           private law cases between parents where the Protocol applies strictly;

•           public law cases where the Protocol apples strictly;

•           cases where the Protocol may be applied in spirit.

Where an order is made to which the Protocol relates or in the spirit of the Protocol, copies must be sent to both:

Lord Justice Thorpe (liaison judge)

Royal Courts of Justice

DX 44450 Strand RCJ

Tel: 020 7947 7432

Fax: 020 7947 6408

and

Head of Consular Division

Foreign and Commonwealth Office

Spring Gardens

London SW1A 2PA

Tel: 020 7008 0212

Fax 020 7008 0152

The order will then be transmitted to the liaison judge in Pakistan.

It is important to note that unlike Hague Convention proceedings, there is no system of enforcement through a central authority and no automatic procedure for a mirror order to be made in Pakistan. It will, therefore, ordinarily be the responsibility of the aggrieved party to institute proceedings in Pakistan to ensure compliance. It would be helpful for solicitors for the left behind parent to supply a brief note concerning the effect of the Protocol on the case, once the outcome is known, so that its operation can be monitored.

Statutory Instruments

The Courts Act 2003 (Consequential Amendments) Order 2004, SI 2004/2035

This Order makes a number of amendments to primary legislation which are consequential to ss 68 to 70 (concerning Criminal Procedure Rules) and ss 75 to 77 (concerning Family Procedure Rules) of the Courts Act 2003. This Order came into force on 1 September 2004, but shall not affect the general operation of the enactments amended:

(a)        in so far as they relate to Criminal Procedure Rules, until the first Criminal Procedure Rules come into force, and

(b)        in so far as they relate to Family Procedure Rules, until the first Family Procedure Rules come into force.

Section 69 of the Courts Act 2003 confers power on the Criminal Procedure Rule Committee to make rules of court (to be known as ‘Criminal Procedure Rules’) governing the practice and procedure to be followed in the criminal courts. The criminal courts are defined in s 68 of that Act as the criminal division of the Court of Appeal and (when dealing with any criminal cause or matter) the Crown Court and magistrates’ courts.

Section 75 of the Courts Act 2003 confers power on the Family Procedure Rule Committee to make rules of court (to be known as ‘Family Procedure Rules’) governing the practice and procedure to be followed in family proceedings in the High Court, county courts and magistrates’ courts.

This Order makes consequential amendments and repeals to the rule-making powers in:

Administration of Justice (Miscellaneous Provisions) Act 1933, s 2(6)

This section provides for the indictment of offenders. Subsection (6) allows the Lord Chancellor to make rules to carry this section into effect. Following the commencement of s 69 of the Courts Act 2003, part of that power to make rules will come within the scope of Criminal Procedure Rules. This Order makes amendments transferring that part of that power to the Criminal Procedure Rule Committee.

Adoption Act 1976, s 66

This section provides for the Lord Chancellor to make procedural and incidental rules. Following the commencement of s 75 of the Courts Act 2003, part of that power to make rules will come within the scope of Family Procedure Rules. This Order makes amendments transferring that part of that power to the Family Procedure Rule Committee.

Supreme Court Act 1981, s 84

Sections 84(1) and 86(1) of the Supreme Court Act 1981 confer power on the Crown Court Rule Committee to make rules for the purpose of regulating and prescribing the practice and procedure to be followed in the Crown Court and the criminal division of the Court of Appeal.

In order to give full effect to s 69 of the Courts Act 2003, s 84(1) of the 1981 Act is amended so as to exclude, from the scope of that power, proceedings in the Crown Court relating to any criminal cause or matter.

This Order makes further minor consequential amendments and repeals.

The Civil Procedure (Amendment No 2) Rules 2004, SI 2004/2072

These Rules add the following new provisions to the Civil Procedure Rules 1998:

—        a new r 3.11, which enables a practice direction to make provision about the power of the court to make a civil restraint order against a litigant in the exercise of the jurisdiction explained by the Court of Appeal in Bhamjee v Forsdick [2003] EWCA Civ 1113, and other provisions relating to civil restraint orders;

—        a new r 5.4, in substitution for the existing r 5.4, which makes new provision about the supply of documents from court records. It is provided that a court or court office may keep a register of claims issued out of that court or office which is available for any person to search. A practice direction supplementing the rule will specify the courts or court offices which maintain such registers. The rule also specifies the documents of which copies may be obtained from court records by a party to proceedings, and by any other person, and the cases in which permission of the court is required to obtain a copy of a document. It also permits a party to proceedings, or other person identified in a claim form, to apply for an order restricting persons from obtaining a copy of the claim form;

—        a new Section IV of Part 45, which makes provision in personal injury claims against an employer (other than claims relating to a disease or arising from a road traffic accident) for fixed percentage increases to apply to legal representatives’ fees in respect of success fees, where the claimant has entered into a conditional fee agreement or collective conditional fee agreement which provides for a success fee.

In addition:

—        r 65.3 (anti-social behaviour—applications for Housing Act 1996 injunctions) is amended to require an application for an injunction under Chapter III of Part V of the Housing Act 1996 to be supported by a witness statement rather than an affidavit;

—        CCR Ord 49, r 17, which contains provisions about proceedings under enactments relating to discrimination, is amended in consequence of amendments made to the Disability Discrimination Act 1995 by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, and to correct a minor error;

—        other minor amendments have also been made to existing rules.

Most of the provision come into effect on 1 October 2004, with rr 2 and 14 coming into effect earlier, on 1 September 2004.

The Protection of Children and Vulnerable Adults and Care Standards Tribunal (Amendment) Regulations 2004, SI 2004/2073

These Regulations, which came into force on 31 August 2004, amend the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (‘the Tribunal Regulations’) and make provision in relation to the proceedings of the Tribunal established by s 9 of the Protection of Children Act 1999 to hear appeals against determinations in relation to the disqualification of a person for registration for childminding or providing day care under the Children Act 1989, Sch 9A, para 4.

Further, an amendment is made to make general provision for the striking out of misconceived appeals and applications for leave, and to enable the President or the nominated chairman to set aside a determination to strike out an appeal or application, and also to enable the President or the nominated chairman to make an award of costs consequent upon a decision to strike out in certain circumstances (reg 3). Regulations 9 to 17 contain provisions which are consequential upon this amendment.

An amendment is also made to reg 10 of the Tribunal Regulations (unless orders) enabling the President or the nominated chairman to set aside such an order, and to make an award of costs in certain circumstances (reg 6).

Additional amendments are made as follows:

—        to reg 6 (directions) to enable the President or the nominated chairman to direct that an oral hearing shall be held in order to determine an appeal (reg 4). The amendment to reg 7 (fixing and notification of hearing) is consequential on this amendment (reg 5);

—        to reg 33 (withdrawal of proceedings or opposition to proceedings) to ensure that any costs order made under the regulation is subject to reg 24 (costs) as a whole (reg 7);

—        to reg 35 (time) to enable the President or the nominated chairman to reduce certain time limits mentioned in the Tribunal Regulations where the parties to an appeal or application have been consulted and agree, and to provide that the parties in a case are consulted before the extension of any time limit pursuant to reg 35(1) (reg 8).