Family Law

BUTTERWORTHS FAMILY AND CHILD LAW BULLETIN

Bulletin No 59
Butterworths Family and Child Law Bulletin - June 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.

Public law proceedings
Importance of giving clear instructions to experts

BFLS 3[4627]
Re R (care: disclosure: nature of proceedings) [2002] 1 FLR 755, FD

In Re R (care: disclosure: nature of proceedings) [2002] 1 FLR 755, FD Charles J considered a case in which, with hindsight, a series of mistakes had been made in preparation. The local authority came to realise that it could not prove that sexual abuse had occurred and withdrew that aspect of its case to concentrate on issues of neglect. Charles J held that once the local authority had withdrawn the allegations of sexual abuse, any disposition of the case, any care plan, and any management of the children’s care had to proceed on the basis of a new mindset in which no concerns of sexual abuse existed. If the local authority wished to manage the case on the basis that it suspected that there had been such abuse, then it would need to come to court and offer proof of those suspicions.

Comment: The judgment contains a detailed analysis of points at which the collation of evidence could have been improved. It particularly draws attention to the importance of properly instructing experts and being precise about what is expected of them. Charles J offered a helpful explanation of the sense in which Children Act proceedings were only partly adversarial. He noted that in respect of the initial stages where the existence of the threshold criteria had to be proved, then proceedings were substantially adversarial in nature. This explains the approach to evidence of abuse taken in Re H & R [1996] 1 All ER 1 where the House of Lords affirmed the application of the burden of proof. At the second stage of the proceedings, once the threshold is crossed, when the task of the court is to ascertain which outcome would most benefit the child, proceedings are essentially non-adversarial or inquisitorial in nature. He suggested that it would be helpful for instructions to experts to indicate on which issues the non-adversarial approach would be appropriate. It would also be helpful for local authorities to identify as early as possible the allegations that they are seeking to prove in order to establish the threshold criteria, and to separate them from their general statements as to the welfare of the child.

Confidentiality and privacy

BFLS 3[4662]
Re M (disclosure: police investigation) [2002] 1 FCR 655, FD

In Re M (disclosure: police investigation) [2002] 1 FCR 655, FD the Metropolitan Police Commissioner sought disclosure of a letter from a child’s mother, produced in the course of child protection investigations, in which she admitted harming her son. Such information was protected from disclosure without permission from the court. Elizabeth Lawson QC, sitting as a High Court Judge, found that the child would suffer harm from the release of the letter. There was a time-limited opportunity for the child to be rehabilitated with his family and intensive psychiatric, parenting and social assessment was underway. In those circumstances, it was not in the boy’s interests for the parents to be distracted by the stress of worry about potential criminal proceedings. Criminal proceedings were not necessary to protect him because this had already been achieved under the Children Act 1989. There was no suggestion that any other children were at risk, reducing the need for a prosecution. In these circumstances, the balance was tipped against disclosure.

Comment: This decision demonstrates that a careful working through of the factors considered relevant in Re EC [1996] 3 FCR 521 will not inexorably lead to protected information being disclosed to the police. Elizabeth Lawson QC noted that her approach to the case was coloured by her experience that the trend towards disclosure has in practice discouraged parents from being frank in child protection cases, contrary to the intention of Parliament in enacting s 98 of the 1989 Act. Thus, parents who make admissions find themselves being prosecuted and those who deny responsibility do not. This encourages parents to keep silent, leading to delays in the child’s position being resolved. She also commented on a possible misunderstanding of Re L; Re V [1999] 1 FCR 308. The observation in that case that disclosure was likely to be made to the police unless there were powerful reasons to the contrary did not imply that it was for the person resisting disclosure to justify their position (thus placing the onus of proof on them). Instead it was merely a statement about the most likely outcome of the balancing of the various relevant factors in the exercise of judicial discretion.

Disclosure to parties question of balance of interests under ECHR

BFLS 3[4642]
Re B (disclosure to other parties) [2002] 2 FCR 32, FD

In Re B (disclosure to other parties) [2002] 2 FCR 32, FD Munby J considered the impact of the Human Rights Act 1998 on disclosure of documents to parties in child protection cases. He noted that while the right to a fair trial under Article 6 of the European Convention on Human Rights was absolute, the component principles of what was meant by a fair trial needed to reflect the circumstances. Consequently, there was no absolute right of the father of the children in question to see the documents. Where non-disclosure was necessary to protect the rights of the children and the mother under Article 8 of the Convention then it did not constitute a breach of Article 6. Thus, the father had a prima facie right to see the documents in question but it could be limited in the interests of the other parties where the balance of interests showed that it was strictly necessary to do so. The court should be rigorous in its assessment of the gravity of feared harm to others. Counsel for the mother then sought to limit the material to which disclosure should be permitted by reference to the particular application (for contact to only one of the children of the family) that the father was making. Munby J was not persuaded that this approach led to the conclusion suggested. Participation in the proceedings, which were dealing with a range of issues beyond those of the contact application, would not be possible without access to the documents being used by the other parties. In his view, the only materials that should be withheld were police evidence building on interviews with two other children (not of the applicant), psychiatric and therapeutic evidence on medical work with the mother and her husband, and the parts of a psychologist’s report relating to the other children in the case. In relation to these materials, the privacy interests of those concerned outweighed the father’s need to know.

Comment: While this case concerns a helpful and detailed consideration of the relevant authorities, the main observation that Munby J had to make about the impact of the Human Rights Act 1998 was that the decision of the House of Lords in Re D [1996] 1 FCR 205 remained a reliable guide. Although it predated the implementation of the Act, it had been taken with regard to the relevant Convention rights.

Evidence
Improper to rely on untested allegations of past abuse

BFLS 3[4685]
Re D (sexual abuse allegations: evidence of adult victim) [2002] 1 FLR 723, FD

In Re D (sexual abuse allegations: evidence of adult victim) [2002] 1 FLR 723, FD magistrates were criticised for concluding that a grandparent was unsuitable as a carer because of allegations of sexual abuse made by a former foster child some 16 years previously and reiterated shortly before the later civil case (in which the former foster child had no involvement). The court had not received direct evidence from the young woman. It had failed to have regard to the need to establish the facts with appropriate certainty in relation to serious allegations (Re H& R [1996] 1 All ER 1). It should not have accepted the allegations as based on fact without them being tested in evidence.

Comment: In addition to criticising the failure of the court, and in particular the justices’ clerk, to properly address the principles of evidence, the President, Elizabeth Butler-Sloss, considered whether there were circumstances in which allegations could be taken into account other than through direct evidence to the court. She noted that the protection given to children from giving evidence in care proceedings (and instead using video or audio interviews) did not usually extend to adults. Even in the rare occasions where such a vulnerable adult might not be expected to give evidence personally, it was wholly inappropriate to accept a social worker’s account of an interview without the benefit of a careful transcript of the conversation.

Medical treatment

BFLS 3[877.1]
Re B (adult: refusal of treatment) [2002] 2 FCR 1, [2002] 2 All ER 449, FD

In Re B (adult: refusal of treatment) [2002] 2 FCR 1, [2002] 2 All ER 449, FD the President upheld a woman’s right to refuse life sustaining treatment. She found that the only legal issue was her understanding of the decision. She was satisfied that the woman appreciated the decision that she was making. She rejected the suggestion that until the woman had tried rehabilitation she would not be competent to assess whether the quality of life that it secured for her was acceptable. She reiterated the fundamental principles to be used in such cases, building on the guidance from St George’s Healthcare Trust v S [1998] 2 FCR 685. (i) There is a presumption that the patient has competence. (ii) Where mental capacity is not in issue and the patient refuses treatment, questions of best interests are irrelevant. (iii) Any doubts about capacity should be resolved as soon as possible. (iv) While these doubts are being resolved the care must be given in accordance with the doctors’ views as to the patient’s best interests. (v) Those considering capacity should not confuse the question with that of the nature of the decision actually made, which may reflect a difference in values rather than an absence of competence. Doctors’ emotional reaction to or disagreement with a decision should not cloud their judgement on capacity. (vi) Where disagreements about competence remain, the patient should be kept informed about steps being taken and be part of the process, including the assistance of expertise external to the hospital. (vii) Where the hospital is faced with a dilemma that the doctors do not know how to resolve, this must be recognised and further steps taken as a matter of priority. (viii) If there is no disagreement about capacity, but the doctors are for any reason unable to carry out the wishes of the patient, then their duty is to find other doctors who will do so. (ix) If steps to seek independent assistance from outside the hospital failed, the NHS Trust should not hesitate to make an application to the High Court or seek the advice of the Official Solicitor. (x) Clinicians and hospitals should bear in mind that a competent but seriously disabled patient has the same rights to personal autonomy as any other patient.

Comment: This case reiterates the rights of people who understand the choices they are being asked to make about their health care to refuse treatment, even where the health professionals believe that they should accept it. Butler-Sloss P indicated a degree of frustration with the doctors’ reluctance to respect the fact that the woman in their care had reached a decision. They suggested that she was not truly competent because she had not experienced all the rehabilitation options that they could offer her, despite the fact that it was clear that there was little or no prospect of her physical capabilities increasing. One of the interesting things about the case is that the court did not seek to force the individual doctors to comply with the woman’s wishes personally, but required the Trust to make alternative arrangements for the transfer of her care to doctors who were prepared to respect her wishes. This retains a degree of respect for clinical freedom, but not at the expense of the rights of patients.

Procedure
Judge wrong to depart from terms agreed for directions

BFLS 3[5596]
Re M (judge’s discretion) [2002] 1 FLR 730, CA

In Re M (judge’s discretion) [2002] 1 FLR 730 the Court of Appeal overturned an interim residence order made at a directions hearing. The couple in whose favour the residence order was made had not requested it. The application had been for directions in agreed terms, including for a psychological assessment, but only one of those terms had been included in the order made. The Court of Appeal held that the judge had erred in rejecting the guardian’s views without explanation, dismissing issues that were clearly triable (such as the mother’s possible explanation of the impact of her heroin problems). The residence order had wrongly been made subject to conditions, but it was not permissible to impose such conditions on a person who did not come within the Children Act, s 11(7)(b).

Comment: Where the parties are not expecting matters to be contested because the request for directions is in agreed terms, then they may well not attend the hearing or pay for legal representation. This was the situation in this case and it exacerbated the difficulties of reaching a defensible conclusion given the unexpected turn of events.

Financial provision
Clear evidence needed to justify reopening consent order for non-disclosure

BFLS 4[1077]
P v P (consent order: appeal out of time) [2002] 1 FLR 743, FD

In P v P (consent order: appeal out of time) [2002] 1 FLR 743, FD Bennett J refused to allow a wife to reopen a consent order. On the facts, the balance fell firmly on the side of finality of litigation. The wife’s evidence of undisclosed assets was entirely circumstantial, based on the rapidity of the husband’s success in his new business. There was also insufficient explanation of her delay in seeking to reopen the order for five years.

Comment: Bennett J noted that Lord Brandon had suggested in Barder v Barder [1987] 2 All ER 440 that conclusive proof that the basis of a consent order was erroneous would be needed to justify reopening it. Here the case was based on the wife’s inferences from the husband’s prosperity, not on hard evidence. Her position was further weakened by the fact that she had never required the husband to submit an affidavit of means. Together, this meant that her claim was speculative and did not meet the hurdle established by the House of Lords in Barder.

Taxation
Working families tax credit

From 4 June 2002 the basic working families’ tax credit is increased by £2.50 from £60.00 to £62.50.

Human rights
Human right to establish identity through DNA tests

BFLS 7[4206]
Mikulic v Croatia [2002] 1 FCR 720, ECtHR

In Mikulic v Croatia [2002] 1 FCR 720 the European Court of Human Rights held that the right to respect for private life under Article 8 of the European Convention on Human Rights included a right to establish identity through paternity testing (building on Gaskin v UK (1989) 12 EHRR 36). The Croatian system had failed to respect this aspect of the applicant’s human rights because it failed to include any procedural measure to compel the supposed father to undergo DNA testing. This failed to strike a fair balance between his right not to undergo tests and the applicant’s right to establish her identity.

Comment: Under Croatian law there was no other mechanism to establish paternity than the DNA test and the failure to enable the applicant to pursue that mechanism, because an order for such a test was ignored by the supposed father, was in breach of the Convention. This was found by the ECtHR to be the case, despite the fact that Croatian law permitted the court to draw the inference from the man’s avoidance of the test that he was indeed the father. Given this last feature, this decision may have considerable implications for the UK law, as it implies that there must be provision for compulsory testing except where the balance is tipped against the child’s right to know their identity by the particular facts of the case. There are also implications for the claims of those who are born after assisted conception to know the identity of the sperm or egg donors. This is currently prevented by the Human Fertilisation and Embryology Act 1990, but is under reconsideration and may need to be changed to reflect Article 8 rights.

Statutory Instruments
National Care Standards Commission (Children’s Rights Director) Regulations 2002, SI 2002/1250

These Regulations are made under the Care Standards Act 2000, Sch 1, para 10(2) and prescribe the functions of the children’s rights director who is to be appointed by, and to be a member of the staff of, the National Care Standards Commission. The children’s rights director will have functions in relation to the interests of children within institutions regulated under the Care Standards Act 2000. The regulations came into force on 24 May 2002 and apply to England only.

Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) (No 2) Regulations 2002, SI 2002/1406

These Regulations, which came into force on 1 July 2002, amend the Social Security (Attendance Allowance) Regulations 1991 and the Social Security (Disability Living Allowance) Regulations 1991.They provide that the cost of the accommodation for the purposes of regs 7 and 8(6) of the Attendance Allowance Regulations and regs 9 and 10(8) of the Disability Living Allowance Regulations does not include the cost of nursing care provided by (or the provision of which is secured by) a local authority for which the local authority are not to charge by virtue of s 1 of the Community Care and Health (Scotland) Act 2002.

Income Support (General) and Jobseeker’s Allowance Amendment Regulations 2002, SI 2002/1411

These Regulations, which came into force on 17 June 2002, amend the Income Support (General) Regulations 1987 and the Jobseeker’s Allowance Regulations 1996 so as to amend the definition of ‘self-employment route’ to include assistance in pursuing self-employed earner’s employment whilst participating in the New Deal for Lone Parents. This brings the calculation of income of such participants within the scope of the special rules contained in Chapter IVA of Part V of the 1987 Regulations and in Chapter IVA of Part VIII of the 1996 Regulations.

Tax Credit (New Category of Child Care Provider) Regulations 2002, SI 2002/1417

These Regulations, which came into force on 20 June 2002, make a scheme for establishing a new category of persons whose charges for providing child care outside the United Kingdom are to be taken into account for the purposes of determining working families’ tax credit or disabled person’s tax credit. The persons whose charges can be taken into account for these purposes must be approved by an organisation that has been accredited by the Secretary of State. The Regulations set out the requirements for such accreditation.

Protection of Children Act 1999 (Commencement No 3) Order 2002, SI 2002/1436

This Order is the third commencement order made under the Protection of Children Act 1999. It brought into force on 12 March 2002 s 8 of the Act. Section 8 amends ss 113 and 115 of the Police Act 1997, which relate to criminal record certificates that may be issued under that Act.

Recent articles on family and child law

Local authorities and child protection—the mosaic of accountability Rebecca Bailey Harris & Michael Harris (2002) 14 CFLQ 117
Special educational needs—the role of the courts Neville Harris (2002) 14 CFLQ 137
Do divorced women catch up in pension building? Jay Ginn & Deborah Price (2002) 14 CFLQ 157
The 1996 Hague Convention on the protection of children—a fresh appraisal Nigel Lowe (2002) 14 CFLQ 191
D v D: equality, fairness, risk and the distribution of share options on divorce David S Rosettenstein (2002) 14 CFLQ 207
R (on the application of Mellor) v Secretary of State for the Home Department: prisoners and artificial insemination—have the courts got it right? John Williams (2002) 14 CFLQ 217
Care orders, local authorities and the courts Sarah Forster, Nicholas Khan & Ian Peddie QC 614
Child law update Richard White (2002) 152 NLJ 705
Divorce law update Kerry Fretwell & Christine Gentry (2002) 152 NLJ 790
Pension sharing on divorce Bernard Brindley (2002) 152 NLJ