December 2006

Bulletin no 99 

Butterworths Family and Child Law Bulletin

Bulletin editor
Geraldine Morris, BSc
Solicitor and mediator, technical editor

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. References are also included, where relevant, to Rayden & Jackson on Divorce.

Financial provision
Consideration of conduct and compensation post Miller/McFarlane
S v S [2006] EWHC 2793 (Fam), [2006] All ER (D) 137 (Nov)
BFLS 4A[893]; Rayden 1(1) 16.75

The marriage between the applicant (the wife) and the respondent (the husband) took place in August 1997, after they had lived together for some six months. The husband was then nearly 52 and it was his second marriage. It was the wife’s first marriage and she was nearly 20 years younger than the husband. They had two children, now aged 8 and 3.

The marriage effectively ended on 27 December 2004, when the husband was arrested for assaulting the wife, for which he was subsequently convicted, upon his plea of guilty to assault occasioning actual bodily harm.

The husband was a wealthy man when he married the wife, and was the breadwinner and the provider. He bought the successive matrimonial homes. The wife was not wealthy and had not worked since the marriage.

The application before the court concerned the disposal of the assets as between the wife and the husband. The assets in issue included the property portfolio, which was based upon properties acquired by the husband before the marriage for the purpose primarily of obtaining income from rentals and capital appreciation, and the pension portfolio; at the outset of the marriage the husband had a pension fund valued at £435,524, which had substantially increased in value, particularly after 2001.

The issue for the determination of the court concerned the split of the assets so as to effect a clean break, subject to the agreement that the husband would continue to pay annual maintenance for the children and their school fees.

The court ruled that in the circumstances there was to be no allowance in favour of the wife in respect of either conduct or compensation. No separate consideration arose out of the duration of the marriage, neither so as to decrease the wife’s entitlement nor by way of increasing her entitlement by reference to the £1,015,035 of pre-matrimonial property.

There should be an allowance for the substantial financial contribution of the husband to the marriage, over and above the norm, and after taking into account the wife’s contribution as carer and homemaker.

That contribution was at least sufficient to justify an entitlement of some 60% of the matrimonial property (while he retained the pre-matrimonial) which would itself make no allowance for the fact that the husband would be, as was agreed, paying off the entirety of the wife’s debts.

Having regard to both the wife’s needs and her entitlement the court would order the transfer, free of mortgage, of the matrimonial home plus a lump sum of £700,000. The award, including the transfer of the matrimonial home, was consequently not £2m for which the husband contended, nor £4m, alternatively £3.5m, for which the wife contended, but an approximate sum of £3m.

Comment: Continuing the line of post Miller/McFarlane cases, this was a Family Division decision of Burton J in which issues both as to conduct and the treatment of pre marriage assets and contributions arose. 

Upon considering the s 25 factors, there was reference to Baroness Hale’s judgment in Miller/McFarlane to the application of the ‘yardstick of equality’ (para 136) ‘the House [in White] was careful to point out … that the yardstick of equality did not inevitably mean equality of result.

It was a standard against which the outcome of the s 25 exercise was to be checked’.

The judgment contains an interesting analysis of whether the pre marriage assets remained ‘untouched’ or were they transformed or metamorphosed? Had there been more than a ‘passive economic growth’ (per Singer J in S v S [2006] EWHC 2339 (Fam) at para 111) or ‘natural capital growth’ (per Mr Mostyn QC at para 17 of Rossi v Rossi [2006] EWHC 1482 (Fam))?

In addition, following an analysis of the relatively rare cases where conduct has been taken into account upon a split of assets and a lengthy consideration of the allegations of misconduct, Burton J concluded that the incidents were not of a level whereby it would be inequitable to disregard them in making an orders as to financial provision. 

Finally it was agreed between the parties that, whatever the outcome of this application, there would be no order for costs, on the basis that (with one caveat) the liability to costs to date of both parties should, in accordance with the recent practice of the Family Division, be taken into account as present liabilities of the parties and, so far as the applicant’s legal costs were concerned, be treated as her liabilities to be paid by the respondent as part of the lump sum payment to be made by him.

White v White [2001] 1 All ER 1 and Miller v Miller; McFarlane v McFarlane [2006] 3 All ER 1 applied

Private children
Whether court of its own motion should order true identity of father to be revealed to child
J v C [2006] EWHC 2837 (Fam), [2006] All ER (D) 147 (Nov)
BFLS 3A[4903]; CHM 1[4001]

In 2003, the father brought proceedings for contact with his child, which were opposed by the mother because of circumstances surrounding the child’s conception.

In October 2004, a hearing took place to determine the circumstances of conception. The hearing was adjourned part-heard, and not listed again until October 2005, at which point neither the mother nor the father attended. The case was adjourned until December, by which time the whereabouts of the father was unknown. By that time it had become apparent that the child believed that the mother’s long-term partner was his father.

A hearing took place in October 2006, in order to determine whether the court of its own motion should endeavour to persuade or direct that the child, at the age of 10, should be informed about the identity of his true father.

A psychiatric report, carried out in respect of the mother in May 2006, questioned her ability to handle the emotional impact on the family of telling the child. It suggested she was a vulnerable person and that it would be detrimental to her mental state for her to deal with such an issue at that time.

A CAFCASS report carried out in August 2006 stated that the proceedings were driving a wedge between the mother and her partner which could split up the family, that the mother had health problems, and that the mother and her partner believed the information would make the child feel less loved.

It concluded that it would not be in the child’s best interests for the mother to be directed to tell him. The mother submitted that it would be better for the child to be told about his father’s identity when he reached the age of 16.

An issue arose as to whether the instant case was an instance where the court should intervene if it was clearly in the best interests of the child to be told sooner about his paternity.

The court ruled that presuming the necessary jurisdiction to make an order was possessed, it ought not to be exercised in the instant case. The instant case was not one of a mother refusing to inform her child that his belief in the identity of his father was wrong. She was saying that she would do so but not until the child had reached the age of 16.

Her case was that the potential impact on her and the family of doing so now would be too great. The undoubted advantage to the child of learning the truth was outweighed by the impact that it would likely have on his mother and family upon whom he was so dependent.

Comment: Recent decisions in the European Court of Human Rights, from a slightly different perspective of establishing actual paternity (which did not appear to be in issue in this case) have emphasised the importance of both a father’s and a child’s right to know of their relationship.

In Mikulic v Croatia [2002] 1 FCR 720 it was held that in the case of an applicant seeking determination of her paternity (via her mother, the child at the time of the proceedings being age six) ‘respect for private life required that everyone should be able to establish details of their identity as individual human beings and an individual’s entitlement to such information was of importance because of its formative implications for her personality’.

More recently in Tavli v Turkey (App No 11449/02) [2006] ECHR 11449/02 the applicant was awarded €5,000 in respect of non-pecuniary damage, following a finding that the Turkish courts had failed to respect his right to family life under Art 8 of the European Convention on Human Rights, by refusing to take into account DNA tests concerning paternity of a child, such tests not having been available at the time of the original paternity suit.

In this case the impact upon of the mother and the family generally was an important factor.

Consideration of order for indirect contact where mother and child given new identities
Re F (a child) (indirect contact through third party) [2006] EWCA Civ 1426, [2006] All ER (D) 14 (Nov)
BFLS 3A[1718]; CHM 1[647.2]; Rayden 1(2) 39.69

The child was born in 1997. The course of her parents’ relationship between 1988 and 2004 was turbulent. The father had a personality disorder that resulted in his giving way to serious and uncontrollable violence.

In the periods when they were together, that violence was inflicted on the mother. The last occasion when they had lived together was in September 2001, but there had been intermittent contact after that until May 2004.

On at least five occasions the mother had sought and obtained injunctions against the father on the grounds of domestic violence. The father had at all times loved and shown affection for the child, as had his parents.

While the child had frequently witnessed the violence, it had never been directed towards her.

Care proceedings were instituted in respect of the child in July 2002. The judge granted a parental responsibility order to the father; made a defined contact order, designed to ensure that the contact arrangements would not require the father and mother to meet; and a non-molestation order, to protect the mother.

The father disregarded the terms of both those orders. The mother obtained a prohibited steps order preventing the father from removing the child from the mother except at times agreed between solicitors.

Committal proceedings were then brought against the father and he was sentenced to four months’ imprisonment. With the help of the police domestic violence unit the mother and child moved to new accommodation, unknown to the father, and assumed fresh identities.

The father left no stone unturned in efforts to track down the mother and child, who had moved no less than ten times in recent years in order to escape him.

Cross-applications in private law proceedings subsequently came before the President. The father applied for contact, and the mother applied for an order terminating the father’s parental responsibility and for an order under the Children Act 1989, s 91(14).

The President heard evidence from, inter alia, the child’s guardian. In the care proceedings she had initially advised that direct contact was in the child’s best interests, but had later changed her recommendation, because of the hostility between the parents, to indirect contact, as long as it could managed in a safe way and did not compromise the child’s situation.

She had subsequently changed her view again because she did not think that the child’s location could be safeguarded if indirect contact were permitted.

The President provided his judgment in draft to the parties more than a week before handing it down, inviting them to draw to his attention any issues they might wish to raise. He made the orders sought by the mother. He rejected the father’s application for direct contact, but made an order for indirect contact allowing certain specified communications between the father and the child which should be sent through Cafcass Legal in London, who would vet the contents in order to ensure that they were appropriate.

The mother appealed against the contact order. The appeal was dismissed. The Court of Appeal held that the President’s judgment showed that he was crucially aware of the paramount necessity of preventing the father from tracing the whereabouts of the mother. He stated that he had been able to make “suitable arrangements” with Cafcass Legal in London to ensure that that did not occur.

The President was amply justified, on the evidence before him and the submissions made in relation to that evidence, in finding that the guardian favoured indirect contact in principle and had only changed her view because she did not think that the child’s location could be safeguarded if such contact were permitted.

It had been suggested that the President had misunderstood the guardian’s views. There was, however, no evidence to support that submission. The paramount concern of the court had to be for the child’s welfare.

Comment: This was a case in which there was clearly a difficult balancing act between contact and the impact of the difficult circumstances of the case upon the family.

In his original judgment the President, Sir Mark Potter, stated:
‘In my view, subject to satisfactory arrangements, and in this case that means arrangements designed to protect the anonymity and whereabouts of the mother and F, that [the order for indirect contact] appears to be an appropriate proposal which achieves a proper balance between the father’s Article 8 rights and the paramount consideration of F’s welfare.’

The Court of Appeal agreed with him that in the circumstances of the instant case the correct balancing act had been achieved.

Public children
Whether pathway plan for child leaving care met needs

R (on the application of Deeming) v Birmingham City Council [2006] All ER (D) 33 (Nov)
BFLS 3A[2641.3]; CHM 1[1681]; Rayden Noter up 50.13

This was a decision of Elias J in the Queen’s Bench Division (Administrative Court). The claimant lived in Bromley. He had been brought up in care. As he was aged between 18 and 21, the defendant local care authority had responsibilities for him pursuant to the Children (Leaving Care) (England) Regulations 2001, SI 2001/2874.

Those responsibilities included, inter alia, the provision of a personal advisor and the creation of a pathway plan. The claimant also received some assistance from a local organisation. The claimant sought judicial review of the authority’s care provision for him.

His challenge was in two parts. First, it was contended that the person who had been appointed as the claimant’s personal advisor, who was based in Birmingham some 150 miles from Bromley, was not an appropriate person to be a personal advisor.

Second, the claimant made a number of criticisms of the pathway plan, and argued that the plan was fundamentally deficient and ought to be quashed.

The application was allowed in part:

(1) In the circumstances of the case, the authority had not acted irrationally or improperly in considering the person nominated as the claimant’s personal advisor as an appropriate person for that role. There plainly could, however, be circumstances in which there could be difficulties in having a personal advisor based some 150 miles away; a lot would depend on the available local support. Moreover, it was incumbent on the authority to keep the appropriateness of the personal advisor under review if and when circumstances changed.

(2) There was force in a number of the criticisms which the claimant had made of the pathway plan. There were certain key areas in which it fell short of what the law required.

Overall, however, it could not be said that the plan was fundamentally deficient or that it was a significant breach of the authority’s obligations, such that it ought to be quashed. Declaratory relief would be granted accordingly.

Comment: R (on the application of J) v Caerphilly County Borough Council [2005] 2 FCR 153 was considered in the instant case and is of particular interest for its consideration of the role of a personal advisor for a child leaving care.

In that case the claimant argued that it was wrong in principle to appoint a member of the authority’s own staff to act as the claimant’s personal advisor, and that the authority and the personal advisor himself had misunderstood the latter’s role.

It was held that there was nothing either in general law or in the relevant legislation which made it either unlawful or necessarily undesirable to appoint as the personal advisor of a child in care an officer or employee of a local authority which was the child’s statutory parent.

If such a person was appointed, however, it was important that both he and the local authority should recognise that the personal advisor was indeed acting in that role and not in some other, let alone conflicting, role.

Compliance with the requirements of Adoption Agencies Regulations 2005

Re P-B (a child) (adoption: application for placement order) [2006] EWCA Civ 1016, [2006] All ER (D) 64 (Nov)
BFLS 3A[2469.2]; CHM 3[102]; Rayden Noter up 42

Section 22 of the Adoption and Children Act 2002 provides, so far as is material:

‘(1) A local authority must apply to the court for a placement order in respect of a child if:

(a) the child is placed for adoption by them or is being provided with accommodation by them

(b) no adoption agency is authorised to place the child for adoption

(c) the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and

(d) the authority are satisfied that the child ought to be placed for adoption.

And (2) If:

(a) an application has been made (and has not been disposed of) on which a care order might be made in respect of a child, or

(b) a child is subject to a care order and the appropriate local authority are not authorised to place the child for adoption, the appropriate local authority must apply to the court for a placement order if they are satisfied that the child ought to be placed for adoption … ’

The child was born in July 2002. His parents, who were not married, had cohabited in the course of their relationship, but now lived separately.

His mother suffered from Asperger’s syndrome or an Asperger’s-type presentation, which had impeded her capacity to care for the child immediately after his birth. Her problems were compounded by post-natal depression after the child’s birth.

In April 2004 it was discovered that the child was suffering from an acute form of leukaemia.

The local authority continued to try and support the mother, but in July 2004 they decided that a continuation of the process would put the child at unacceptable risk. Care proceedings were commenced. Seven care plans had been submitted, all of which provided for ultimate rehabilitation.

However, on 1 February 2006, the local authority filed an eighth care plan in which it abandoned the goal of rehabilitation and substituted the route to adoption. The case was timetabled for a final hearing to commence on 6 March. At a pre-trial review the authority indicated to the other parties that, pursuant to their eighth care plan, they were placing the child’s case before the adoption panel, which was due to meet on 6 March.

It was plainly indicated that if the panel favoured the adoption proposal, the authority would immediately issue an application for a placement order under the Adoption and Children Act 2002 and the Adoption Agencies Regulations 2005, SI 2005/389.

The trial commenced on 6 March and on the same day the panel approved the adoption proposal. The application for a placement order was issued on 8 March and the following day the authority sought a direction that it be immediately listed to be disposed of as part and parcel of the continuing trial of the care application, and that all the evidence in the care proceedings should stand as evidence in the adoption proceedings.

The judge granted the authority’s applications for the care order and the placement order. The parents appealed.

It was submitted for the mother, inter alia, that there had been procedural unfairness, in that the parents had been forced to respond to and adjust to the application for a placement order at the very latest stage in the trial, with no opportunity for reflection and no opportunity to advance a carefully considered case in relation to the placement order application, or in relation to consequential issues of contact.

It was argued that the authority, as a statutory authority in pursuit of a care order, and in pursuit of a care plan that provided for adoption, had to have been satisfied that the child ought to be placed for adoption from the date of the submission of the eighth care plan, and accordingly could and should have issued the application for a placement order on that date; and that, had that been done, all the resultant unfairness would have been avoided.

An issue arose as to the meaning of the requirement in s 22 of the 2002 Act that a local authority was to apply for a placement order if they were satisfied that the child ought to be placed for adoption, namely whether the local authority was acting under the provisions of Pt III and Pt IV of the Children Act 1989, or as an adoption agency under the terms of the 2002 Act. The appeal was dismissed.

Comment: The Court of Appeal took the view that it was in its role as an adoption agency that the authority had to be satisfied that the child ought to be placed for adoption, and that process could not be achieved until there had been complete compliance with the requirements of the 2005 Regulations, namely that the appointed officer of the authority had taken the positive decision to endorse the recommendation of the adoption panel.

The authority might, in pursuance of its responsibilities and duties under the 1989 Act, reach a decision that adoption was the right future for the child and so declare in the care plan.

The case then had to be presented to the panel, which had to reach its recommendation under the terms of the Regulations. If the decision of the panel supported the provisional decision of the authority acting under Pt IV of the 1989 Act, then the decision of the panel had to be considered independently by the authority as an adoption agency under the provisions of the Regulations.

Once that was done, the way was clear for the issue of an application for a placement order. Prior thereto, an application would be premature. Accordingly, on the facts of the instant case, it had not been open to the authority to issue the placement order application any earlier than it had. The question for the judge then was whether to permit the consolidation and contemporaneous conclusion of the two applications, and he had not erred in the exercise of his discretion in doing so.

Application to allow media to attend care proceedings hearings

Re W (identification: restriction on publication) [2006] EWHC 2733 (Fam), [2006] All ER (D) 32 (Nov)
BFLS 3A[6032.1]; CHM 1[1215.2]; Rayden Noter up 4.17

The Children Act 1989, s 97 (2) provides:
‘No person shall publish [to the public at large or any section of the public] any material which is intended, or likely, to identify—

(a) any child as being involved in any proceedings before [the High Court, a county court or] a magistrates’ court in which any power under this Act [or the Adoption and Children Act 2002] may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in any such proceedings.’
And at s 97 (4):
‘The court or the [Lord Chancellor] may, if satisfied that the welfare of the child requires it [and, in the case of the Lord Chancellor, if the Lord Chief Justice agrees], by order dispense with the requirements of subsection (2) to such extent as may be specified in the order.’

The parents in the instant case had three children, in respect of whom full care orders had been made by the relevant local authority in 2004, on the basis of an allegation that one or more of the children had been physically abused by the parents. Those children were subsequently adopted. The case received publicity from both the print and broadcast media, as the parents alleged that they had been the victims of a miscarriage of justice.

In 2005 the mother became pregnant again, following which the local authority started child protection procedures. The child was born in May 2006, in Ireland, where the parents had fled in fear that care proceedings would be commenced. The parents returned to England and care proceedings followed.

Media coverage of the case had started in November 2005, with the flight to and return from Ireland attracting considerable attention. The parents and child were photographed and shown on television. Their first names were reported but the media chose to use the mother’s maiden name rather than the family’s true surname.

In June 2006, an interim care order was made and the parents and the child were placed in a residential unit for detailed assessment. The High Court made an order, imposing drastic reporting restrictions, prohibiting the publication of any information relating to the child, and the soliciting from his parents of any information relating to the child or the parents.

The parents, the BBC and the publishers of the Mail on Sunday (the applicants) applied to vary the order in the week before care proceedings had been listed for hearing, in order to determine the interim placement arrangements for the child following the conclusion of the residential assessment.

Family Proceedings Rules 1991, SI 1991/1247, r 4.16(7) provides:

‘Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers.’

An issue arose as to the construction of the Children Act 1989, s 97(4), since the power to dispense with s 97(2) was, on the face of it, confined by s 97(4) to those situations where ‘the welfare of the child requires it’.

The application was allowed by Munby J on the following bases:

(1) On its true construction, s 97 of the Act had to be read in a Convention-compliant way, as s 97 constituted a specific restriction on the media’s rights under Art 10 of the European Convention on Human Rights.

In a similar way, s 97(4) had to be construed in a Convention-compliant way, not limiting the occasions on which s 97(2) was dispensed with to those where the welfare of the child required it, but extending to every occasion where proper compliance with the Convention so required.

In other words, the statutory phrase ‘if … the welfare of the child requires it’ had to be read as a non-exhaustive expression of the terms on which the discretion could be exercised, so that the power was exercisable not merely if the welfare of the child required it but whenever it was required to give effect, as required by the Convention, to the rights of others.

Section 97(4) had to be read as permitting the court to dispense with the prohibition on publication where the right to free expression under Art 10 or other Convention rights required it.

(2) The effect of the FPR 1991, r 4.16(7) was to secure privacy for care proceedings unless the court ordered that the matter be heard in open court. When deciding whether to accede to an application to disapply the rule, the judge had to apply the Convention, ensuring that his decision was Convention-compliant.

The rule fell to be justified in accordance with the Art 6(1) test of what was ‘required’ or what was ‘strictly necessary’. Such a blanket rule could only be justified if it remained ‘subject to the court’s control’ and only if the court exercised a proper discretion in the circumstances of the particular case.

In applying r 4.16(7) the judge had to adopt the same ‘parallel analysis’ leading to the same ‘ultimate balancing test’ as that which was applicable in deciding whether to relax or enhance reporting restrictions pursuant to s 97.

The rule was properly to be regarded simply as a ‘default provision’ but not as a provision indicating some heavy presumption in favour of privacy. The rule had to be read, construed and applied compatibly with the Convention, ‘balancing’ all the various interests and not giving any special pre-eminence to the claim to privacy.

Comment: This is an important decision in the context of the current debate as to openness in family proceedings.

Munby J indicated that a judge had to be alert to the dangers inherent in the strong inherited convention of privacy and careful not to be prejudiced by the tradition or an unconscious preference for the atmosphere created by a hearing in chambers.

He considered that the original restriction order was clearly too wide.

Four factors in particular weighed heavily in favour of the view that any greater degree of restraint than that which was proposed by the applicants would constitute a significant and heavily disproportionate interference with their rights:
— the claim that the case involved a miscarriage of justice;
— the parents’ own wish for publicity;
— the very extensive publicity there had already been;
— the need, in the circumstances, for the full facts and the ‘truth’ to emerge in a way which would command public confidence.

Two conclusions had been determinative of the ultimate balancing test, namely that the risks to the child were in significant measure speculative, and that restraints sought by the child’s guardian went much further than required to protect the child’s rights, whilst involving a disproportionate interference with the applicants’ rights.

An order was made, inter alia, allowing the media to attend the hearing and the reporting of the names of the parents and child.

Re S (a child) (identification: restriction on publication) [2004] 3 FCR 407, [2004] All ER (D) 402 (Oct) and Re W (children) (identification: restriction on publication) [2005] All ER (D) 206 (Jul) were applied.

See also the analysis of Clayton v Clayton [2006] EWCA Civ 878 in bulletin 94.

Expert witnesses
Whether immunity from suit provides immunity from disciplinary proceedings

Meadow v General Medical Council [2006] EWCA Civ 1390, [2006] All ER (D) 315 (Oct)
BFLS 3A[4738.1]

The appellant, a paediatrician, gave evidence in the prosecution of C for the murder of her two sons. The crown relied in part upon the appellant’s evidence to refute the proposition that C’s childre

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