BUTTERWORTHS FAMILY AND CHILD LAW BULLETIN
Bulletin No 57
Butterworths Family
and Child Law Bulletin
- April 2002
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.
Bond v Leicester CC [2002] 1 FCR 566, [2001] EWCA Civ 1544
In Bond v Leicester CC [2002] 1 FCR 566, [2001] EWCA Civ 1544, the Court of Appeal considered a decision by a local authority that a woman who left after alleged domestic violence was to be treated as being intentionally homeless. Under s 177 of the Housing Act 1996 it was not reasonable to expect someone to occupy property where it was probable that they would suffer domestic violence. The court had to consider whether the availability of legal remedies should be taken into account when considering whether violence was probable. The Court of Appeal held that the statutory test raised an issue of fact, it did not involve any assessment of what the woman should have done. If there were legal steps which had in fact been taken or would probably be taken and which would probably prove effective, then this might alter the assessment of the probability of violence. On the facts of the case, the local authority had not applied the correct test and would need to reconsider its decision.
Comment: This decision ensures that local authorities do not make judgements about whether those subject to domestic violence should do more to protect themselves. Instead they should consider what the victim has actually done or is going to do and consider the probable outcome of any proceedings. To take a different view is to expose the victim of violence to the risk that legal action will prove ineffective rather than providing them with protection.
Re M (a child) [2001] EWCA 1313, [2002] 1 FCR 88
In Re M (a child) [2001] EWCA 1313, [2002] 1 FCR 88 the Court of Appeal found that the judge had failed to explain why a care order had been discharged, against the united opinion of the medical experts involved. He also failed to give sufficient recognition to the significance of the fact that a decision had been taken at an earlier stage in the proceedings not to discharge the care order but to establish a placement with a view to adoption. This plan had been communicated to the boy and the foster parents and relied upon by them. In such circumstances, there was severely limited scope for judicial reconsideration and a reversal of the plans. The care order was restored and an order made freeing the child for adoption.
Comment: This decision does not go so far as to suggest that a judge could never reverse a decision that there was no prospect for rehabilitation with the family. However, it indicates that there must be strong reasons for such a radical change of direction. The fact that the mother had made good progress in dealing with her problems was not sufficient to justify turning the previous expectations on their head and moving from plans for adoption to return to the mother. The child, foster parents and the local authority had progressed the adoption plans in good faith and the judge would have needed to set out why it was appropriate to frustrate their expectations. The Court of Appeal also found that he had wrongly disregarded the view of the doctors involved that adoption would still be the best plan. This is probably best regarded as a finding that the judge had misinterpreted the views expressed by the doctors. However, if he was to depart from their advice, the reasons for this would need to be far more clearly explained than they had been.
Clibbery v Allan [2002] EWCA 46, [2002] 1 FCR 387
Clibbery v Allan [2002] EWCA 46, [2002] 1 FCR 387 concerned the disclosure by one party to proceedings under Part IV of the Family Law Act 1996 of statements made by her former partner. They were used by a journalist in an article in the Daily Mail. The man sought to restrain further such uses of the information, arguing that it was impermissible without prior approval from the court. In the High Court, Munby J rejected the argument that there was a general principle that evidence adduced in family proceedings was confidential. In his view, this was not supported by authority and was inconsistent with the existence of special provision for confidentiality in specific cases. Examples included that in relation to children under the Administration of Justice Act 1960, s 12 and that limiting disclosure in relation to divorce and nullity proceedings to specified information under the Judicial Proceedings (Regulation of Reports) Act 1926, s 1. The Court of Appeal agreed. Save where these specific provisions existed, family proceedings were not in a separate category to other civil proceedings. The Court of Appeal also agreed with Munby J that the fact that a case was heard in chambers was not significant. They found that the crucial question was whether there was an implied undertaking not to use information disclosed in proceedings for other purposes. This depended upon whether the disclosure was under compulsion. Thus, in ancillary relief cases, the duty of full and frank disclosure implied a limitation on further use of information. There was no equivalent requirement of disclosure in proceedings under Part IV of the Family Law Act 1996.
Comment: The Court of Appeal also confirmed that it was permissible for family proceedings to be heard in private. However, a measure of privacy was not the same as confidentiality and did not lead to the permission of the court being required for the use of information revealed in the proceedings. The practical issue in the case was whether the woman was entitled to tell her story to the press. Had there been no court proceedings, she would have been at liberty to do so (see A v B [2002] 1 FCR 369); the fact that there had been litigation did not preclude her doing so.
These Regulations, which came into force on 1 April 2001, make provision relating to the inspection of schools and colleges providing accommodation for children. Section 87(5) of the Children Act 1989 (as amended by the Care Standards Act 2000), confers power on a person authorised by the National Care Standards Commission to enter the premises of a school or college accommodating children, in order to determine whether the welfare of the children is being adequately safeguarded and promoted. A person so authorised may inspect the premises of the school or college, its records, and the children accommodated there, as provided for by these Regulations.
These Regulations replace, with modifications, the Disqualification for Caring for Children Regulations 1991, for England only. They came into force on 1 April 2002. Regulation 2 makes provision for the circumstances in which a person is disqualified from fostering a child privately. By virtue of the Children Act 1989, s 68 such a person may only foster a child privately with the consent of the local authority.
A person will be disqualified if, in particular, a care or similar order has been made with respect to his child, or so as to remove a child from his care; he has been convicted of an offence specified in the Regulations; he has been refused registration, or had any such registration cancelled in respect of a children’s home, day care provision or for childminding; or a prohibition has been imposed upon him in respect of private fostering.
By virtue of the Children Act 1989, s 65 as amended by the Care Standards Act 2000, a person who is disqualified from fostering a child privately is also disqualified from carrying on or being concerned in the management of, or having any financial interest in, a children’s home, and may not be employed in a children’s home, without the consent of the National Care Standards Commission.
These Regulations, which came into force on 8 April 2002, amend the Social Security (Disability Living Allowance) Regulations 1991 in relation to the conditions of entitlement to the mobility component of a disability living allowance. They provide that a person does not meet the conditions of s 73(1)(d) of the Social Security Contributions and Benefits Act 1992 if the reason he does not take advantage of the faculty of walking out of doors unaccompanied is fear or anxiety. This provision does not apply where the fear or anxiety is a symptom of a mental disability and so severe as to prevent the person from taking advantage of the faculty of walking out of doors unaccompanied.
This Order is up-rates the amounts paid as social security benefits. It takes effect in April 2002.
These Regulations make amendments consequential on the Social Security Benefits Up-rating Order 2002 (see above). They took effect on 8 April 2002
These Regulations, which came into force on 8 April 2002, amend the Community Legal Service (Financial) Regulations 2000 so as to increase the income limits for the purposes of determining eligibility for services provided by the Legal Services Commission as part of the Community Legal Service. This is in line with the relevant uprating of social security benefits. In addition, they make various further minor changes with regard to financial eligibility.
These Regulations, which came into force on 8 April 2002, amend the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 in order to add the Law Society Family Law Panel Advanced to those panels whose members receive an uplift in relation to the sums payable for work carried out by them.
These Regulations, which came into force on 8 April 2002, amend the Civil Legal Aid (General) Regulations 1989 in order to provide for the imposition of an embargo against any further work being carried out under a legal aid certificate once notice has been served that it may be discharged or revoked. They also clarify the position regarding amendments of certificates. They apply to transitional cases to which the principal Regulations continue to apply by virtue of the provisions in the Access to Justice Act 1999 (Commencement No 3, Transitional Provisions and Savings) Order 2000.
Article 3 of this Order designates Brunei Darussalam and Newfoundland and Labrador as reciprocating countries for the purposes of Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972, with effect from 28 May 2002. Article 4 of this Order contains transitional provisions in respect of maintenance orders and proceedings to which the Maintenance Orders (Facilities for Enforcement) Act 1920 applied before the coming into operation of this Order.
This Order revokes the Maintenance Orders (Facilities for Enforcement) Order 1959 insofar as it extends the Maintenance Orders (Facilities for Enforcement) Act 1920 to Brunei and the territory of Newfoundland. This country and that territory now known as Newfoundland and Labrador are designated as reciprocating countries for the purposes of Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 by the Reciprocal Enforcement of Maintenance Orders (Designation of Reciprocating Countries) Order 2002, SI 2002/788, which comes into force on the same date as this Order. The Order takes effect on 28 May 2002.
These Regulations, which come into force on 8 April 2002, amend the Income Support (General) Regulations 1987, the Jobseeker’s Allowance Regulations 1996, the Housing Benefit (General) Regulations 1987 and the Council Tax Benefit (General) Regulations 1992. In particular, they provide for income disregards in respect of war widowers’ pensions and extend the 52 week linking provisions to claimants whose housing costs are met in part.
14 January 2002—Senior District Judge Gerald Angel
This Practice Direction sets out the procedure to be observed in using the video conferencing facilities in Court 38 of the Royal Courts of Justice in proceedings in the Principal Registry of Family Division. Directions for a video conference hearing should be given, without attendance provided all parties consent. They should specify in general terms the purpose of the hearing, its date time and place, and the place or country with which the link is to be effected. Availability of the facilities must be ascertained prior to the directions order (contact tel 0207 947 6581). Arrangements must be settled with the video managers well in advance of the appointed date. Where lack of availability of the facilities might cause delay, consideration should be given to the use of facilities at the Law Society or Bar Council.
Facing up to a child’s dilemma B Mahendra (2002) 151 NLJ 426
Child Law Update Richard White (2002) 152 NLJ 467
The Family Law Protocol—revolution or evolution? Charlotte Bradley (2002) 152 NLJ 495
Divorce Law Update Kerry Fretwell (2002) 152 NLJ 519
Graduated fees in family cases Jody Beveridge (2002)
152 NLJ 524
