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.
Divorce
Mere fact of pending ancillary relief proceedings does not justify withholding decree absolute
1
Re M (Intractable contact dispute: interim care order) [2003] EWHC 1024, [2003] 2 FLR 636, FD
BFLS 3A[1848], CHM 1[1471]
In Re M (Intractable contact dispute: interim care order) [2003] EWHC 1024, [2003] 2 FLR 636, FD, Wall J made an order under s 37 of the Children Act 1989 inviting the local authority to consider the need for care proceedings in relation to children subject to an intractable contact dispute. The mother had caused the children to believe that they had suffered abuse at the hands of the father and paternal grandparents. Wall J concluded that an assessment was needed of the situation when the children were not at home with the mother. The local authority also reached the conclusion that the children were suffering significant harm and that an assessment was needed. This was secured away from the home under an interim care order. Free from the mother’s influence, the children were rapidly able to re-establish their relationship with the father. Subsequently an order was made that they resided with him.
Comment: While this approach will not provide a solution for all cases of recalcitrant parents with care, it is a useful tool to have available. It is necessary for the court to conclude that a care or supervision order may be appropriate before the criteria for the use of s 37 are met, but in cases where the court is clear that contact is desirable but one parent obstructs it, then the risk of significant harm may often be present. Section 37 is available in private as well as public law proceedings provided the criteria are met. Wall J noted a number of features making his approach appropriate in this case. There were specific allegations of abuse that could not properly be assessed while the children lived with the mother but which were dominating the case and needed to be resolved. The consequences of the order and possible removal had to be thought through in a coherent care plan. He also observed that it was essential that the children were separately represented and that there was judicial continuity if this approach was to succeed. A judge making a s 37 order should set out his thinking clearly to ensure that the benefits were realised.
• Public law proceedings
2
Re M & J (wardship: supervision and residence orders) [2003] EWHC 1585 (Fam), [2003] 2 FLR 541
BFLS 3A[6620], CHM 1[852]
In Re M & J (wardship: supervision and residence orders) [2003] EWHC 1585 (Fam), [2003] 2 FLR 541 Charles J made residence orders that two child live with the father and maternal grandmother respectively, together with supervision orders and maintaining the continuing oversight of the court in wardship. The residence and supervision orders were made on the basis of the acceptance by the mother and her new partner that the grounds for a supervision order were made out. It was not necessary to go further and determine all the issues on fact on which there remained disagreement. Charles J accepted that as a matter of principle, the court should not use the inherent jurisdiction when the statutory regime was applicable. However, he was satisfied that there was a need to maintain the supervision of the court in this case. Although the local authority would do its best, it was predictable that there would continue to be tension between the mother and maternal grandmother. Even with a raft of conditions attached to the supervision order under Sch 3 of the Children Act 1989 the local authority would not be able to provide solutions when these difficulties manifested themselves.
Comment: If the local authority had pushed for a care order to be made, then it would have had more power to influence the family. However, the local authority did not believe that there was sufficient risk of harm to justify the removal of the child from the family, although it recognised that placement away from the direct care of the mother was required. The family tensions arose from the mother’s conversion to Islam and the difficulties faced by her sons in trying to please her while also remaining in contact with their wider family. The mother’s new partner preferred the boys to keep way from un-Islamic influences. The emotional needs of the children had been compromised by this situation, which had already been the subject of litigation.
3
D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2003] 3 FCR 1
BFLS 3A[3191], CHM 1[1602]
D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2003] 3 FCR 1 held that a common law duty of care was generally owed to children in child protection cases. Although it might be established that it was ‘not just and reasonable’ to impose such a duty in specific factual situations, each such argument would need to be considered on its facts. However, no duty of care would exist in relation to the parents in child protection cases, as their interest would always be in the children being left with them. There were cogent public policy reasons why the duty to the child should prevail.
Comment: The blanket immunity initially offered by X v Bedfordshire CC [1995] 2 AC 633 could not survive the ECHR jurisprudence. However, the policy behind that decision, that child protection work should not be compromised by fear of litigation remains powerful. This decision ensures that the focus of child protection on children is reinforced by limiting the common law duty of care in negligence to those children and preventing the possibly conflicting pressures that a duty to the parents would bring.
4
R (Ellis) v Chief Constable of Essex Police [2003] EWHC 1321 (Admin) [2003] 2 FLR 566
R (Ellis) v Chief Constable of Essex Police [2003] EWHC 1321 (Admin) [2003] 2 FLR 566 held that a scheme of naming and shaming offenders through public poster campaigns could be operated without automatically breaching the human rights of the offender’s family. The court refused to grant a declaration that the scheme was not capable of being operated lawfully. However, it was doubtful whether it would be appropriate to identify the father of young children as this could be damaging to the children and the man’s former partner (even if they had changed their names). No order was made on the application, but the way was left open for further investigation into particular cases to see whether the intrusion into the privacy of the wider family was proportionate to the legitimate public purpose the police were seeking to pursue.
Comment: The court recognised that naming and shaming one person impacted on the privacy of those connected with them. Were a particular case to be considered, there would need to be a balance struck between the public interest in reducing crime and the privacy interests of the family. There are few clues as to how the court envisaged such a balance would be drawn, but it is hard to see how it could be achieved without developing a legal right of privacy. The information in question was in the public domain (the identity and crimes of convicted offenders) and so could not be said to be confidential. As yet the courts have still resisted the creation of a free standing right of privacy, seeing the privacy rights set out in Art 8 of the ECHR as being protected through other legal doctrines, most importantly confidentiality. Fuller exploration of this area can be expected.
5
R (Kehoe) v Secretary of State for Work and Pensions [2003] EWHC 1021 (Admin), [2003] 2 FLR 57
BFLS 4A[391], CHM 4[94]
R (Kehoe) v Secretary of State for Work and Pensions [2003] EWHC 1021 (Admin), [2003] 2 FLR 578 held that the Child Support Act 1991 was not incompatible with the European Convention on Human Rights. The claimant argued that the administrative system set up under the Act failed to provide access to the court to enforce maintenance claims and so breached Art 6 of the Convention. The court agreed that there was a civil right to maintenance with enforcement through the Child Support Agency. Taken together, the availability of judicial review to challenge decisions by the CSA and the possibility of damages under s 7 of the Human Rights Act 1998 made the system compliant with the complainant’s rights.
Comment: The significance of this decision lies principally in its identification of the possible actions under s 7 of the HRA where the Child Support Agency acts unreasonably, including unreasonable delays. The basic scheme of the Act had already been held to be compatible with the ECHR in R (Denson) v Child Support Agency [2002] 1 FLR 938.
6
Hansen v Turkey (App No 36141/97) [2003] 3 FCR 97 (ECHR)
BFLS 5A[4182], CHM 1[1470.1]
In Hansen v Turkey (App No 36141/97) [2003] 3 FCR 97 the European Court of Human Rights held that the Turkish Government had failed to take sufficient steps to maintain contact between a mother and her daughters. The mother was from Iceland. The father was Turkish and had retained the children in Turkey following a holiday there. The mother had issued proceedings for divorce and custody in the Turkish courts. The father had been awarded custody and the mother’s access to the children was obstructed by him. On a number of occasions the mother visited with enforcement officers to see the children but found that they were not there. The Court found that the state had positive obligations under Art 8 of the European Convention on Human Rights to take reasonable steps to facilitate the contact between parents and children. It found that Turkey had failed to take such steps. While proceedings were pending, they had failed to seek the advice of social services or the assistance of psychologists or child psychiatrists to facilitate the mother’s reunion with her daughters and create a more co-operative atmosphere between the parents. They had failed to take active steps to seek to locate the children. They should have taken realistic coercive measures against the father that were likely to lead to compliance. The fines imposed were neither effective nor adequate. Consequently, there had been a breach of the mother’s rights to access to her children under Art 8 of the ECHR.
Comment: This is an important development under the ECHR and likely to be significant in the continuing debate over the enforcement of contact orders. If the attendance of enforcement officers and the imposition of fines are inadequate steps in support of contact, then it seems likely that parents who find themselves unable to achieve the contact ordered by the courts are entitled to considerable support from the state in the face of recalcitrant parents with care. The ECHR rejected the suggestion that the mother could have asked the enforcement officers to enter the father’s home by pointing out that enforcement was the responsibility of the public authorities (see also Ignaccolo-Zenide v Romania [2000] ECHR 31679/96).
