Butterworths Family and Child Law Bulletin – May 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.
Care proceedings
Designation goes with residence when placement is with family
Re H (a child) (care proceedings: designation of local authority) [2003] EWCA Civ 1629, [2004] 1 FCR 282, [2004] 1 FLR 534
BFLS 3A[3023.1]; CHM 1[1015]
In Re H (a child) (care proceedings: designation of local authority) [2003] EWCA Civ 1629, [2004] 1 FCR 282, [2004] 1 FLR 534, the Court of Appeal held that the designated local authority for a care order was that in whose area the child was residing with his grandparents. The main family roots of the child in question were in Norfolk. His mother had taken him to Oxford for about a year of his life, where he suffered non-accidental injuries and was removed under police protection into foster care. Oxfordshire County Council were granted an interim care order and in subsequent proceedings Wall J ordered, against the opposition of Oxfordshire CC, that the child return to Norfolk to be cared for by his grandparents. The issue arose of which local authority should be designated under the care order. The Court of Appeal held that the boy was ordinarily resident in Norfolk and therefore Norfolk CC was designated (Children Act 1989, s 31(8)). They rejected the argument that residence in Norfolk should be discounted because it involved ‘accommodation by or on behalf of a local authority’ (Children Act 1989, s 105(6)). Accommodation with the child’s family was not to be construed as being on behalf of the local authority, so the disregard of residence under s 105 did not apply (see also Hackney LBC v C [1997] 1 FCR 509).
Comment: The Court of Appeal adopted this construction in order to preserve the simplicity of the test for designation. In the High Court, Hogg J had sought to relate the test to what was best for the boy rather than the fact of residence. In order to reconcile this with the case law, she had to characterise the case as ‘exceptional’ (see Northamptonshire CC v Islington LBC [1999] 3 FCR 385; C v Plymouth [2000] 2 FCR 289). Thorpe LJ found that to accept this on the facts would be to negate the intention of the courts in the earlier decisions. The adoption of a simple factual test is calculated to avoid expensive court disputes, particularly where they are largely concerned with the question of which local authority should bear the financial and administrative burden of supporting the child. The norm is intended to be that the local authority in whose area the child currently is should carry these responsibilities. Local knowledge and proximity to the child make it more likely to be effective. Only where the place of residence is artificial as a result of a placement would the disregard of current residence, and its replacement by the place in which the circumstances leading to intervention arose, come into play.
Human rights claims should normally be argued within family proceedings not as separate application
Re L (care proceedings: human rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR 289 (FD)
BFLS 3A[3113], 5A[4057]; CHM 1[73]
In Re L (care proceedings: human rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR 289 (FD) Munby J held that a free standing application based on s 7 of the Human Rights Act 1998 should not have been brought to challenge the care plan drawn up by the local authority in care proceedings. That care plan identified finding an adoption placement as the main priority and the mother sought to have long-term fostering made the first long-term option. Munby J considered four procedural options. The first was to raise the issue in the family proceedings pending under Part IV of the Children Act 1989. This could not in itself give the mother the remedy that she sought, as the court would have the power only to approve or refuse the care plan, not require it to be amended. The second was to use the inherent jurisdiction of the High Court, but this was barred in this case by s 100(2) of the Children Act 1989 because the child was in local authority care. In any event, the inherent jurisdiction could not be used to compel a local authority to exercise its discretion in a particular way (A v A Health Authority, re J [2002] EWHC 18 (Fam/Admin), [2002] 1 FCR 481). The third possible route, judicial review, could in principle be used to vindicate the mother’s Convention rights, but would normally be limited to quashing the care plan and requiring reconsideration rather than rewriting the plan itself. The fourth option was a remedy under section 8 of the Human Rights Act 1998. This could be based on a freestanding application under s 7, which would be the appropriate route if care proceedings had been ended. Where, however, care proceedings had not been concluded, the court could provide this remedy within the family proceedings and that should normally be the process adopted. To bring separate proceedings in this case had caused unnecessary delay.
Comment: the President, Dame Elizabeth Butler-Sloss, has endorsed this procedural guidance and therefore it can be seen as having an authority tantamount to a practice note. It has also now been endorsed by the Court of Appeal (see Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1 FLR 944, [2004] 1 All ER 997, discussed below).
Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1 FLR 944, [2004] 1 All ER 997
BFLS 3A[3113], 5A[4057]; CHM 1[73]
In Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1 FLR 944, [2004] 1 All ER 997 the Court of Appeal endorsed the view taken by Munby J in Re L (care proceedings: human rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR 289 (see above) that it was open to a court hearing an application for a care order to make an order under the Human Rights Act 1998 that parents’ human rights had been breached by a local authority. It also upheld his view that it was not necessary for cases in which such claims were raised to be transferred to the High Court. The dispute in the case revolved around the question of whether the parents should receive therapy to help them overcome their difficult personal histories (both had been abused as children and the father was a Schedule 1 offender). The local authority declined to fund anything more than a core assessment, which had concluded that the parents were not yet ready to engage in therapy. The parents claimed that the failure to fund therapy was a breach of their human rights under Art 8 of the European Convention on Human Rights and that the fact that the court had no power to require the local authority to fund such therapy made the Children Act 1989 incompatible with the Convention. They based this claim on the decision of the European Court of Human Rights in K & T v Finland [2001] 2 FCR 673, arguing that it placed upon the local authority a positive obligation to seek to rehabilitate the child with her parents. However, this claim was misconceived in that it had explicitly been acknowledged in the case that this obligation had to be balanced against the duty to consider the interests of the child. The facts of the Finland case were also very different in that no consideration had been given to the possibility of rehabilitation, whereas it was clear here that the possibility had been considered. There was no incompatibility between the human rights of the parents in this case and the powers of the court under the Human Rights Act 1998.
Comment: The Court of Appeal endorsed the approach taken by Munby J in Re L (care proceedings: human rights claims) [2003] EWHC 665 (Fam), [2004] 1 FCR 289 that human rights issues should be taken within existing proceedings. It would be inappropriate to seek to separate out human rights points to be dealt with separately. That would cause inappropriate delay. It would also be inappropriate to transfer cases to the High Court merely because they raise human rights points. The only issue that is reserved to the High Court under the Practice Direction Human Rights Act 1998: citation of authorities [2000] 4 All ER 288 is the making of a declaration of incompatibility. The Court of Appeal indicated that it would not permit flimsy allegations that the Children Act 1989 was incompatible to lead to transfer to the High Court. It saw the decision in Re S (children: care plan); Re W (children: care plan) [2002] UKHL 10, [2002] 2 All ER 192 as establishing the main scheme of the Act was compliant. Cases where the issue was making sure that the terms of the Children Act were applied in a manner consistent with the Convention did not need to be transferred.
Practice Directions
Practice Direction: Children: Conciliation
Issued by Philip Waller, Senior District Judge with the approval of the President
12 March 2004, [2004] 1 FCR 781, [2004] 1 FLR 974
This Practice Direction supersedes Practice Direction: Conciliation: Children made on 18 October 1991 ([1992] 1 All ER 431), which ceased to apply on 22 March 2004 save to cases pending on that date.
The Direction extends the conciliation scheme in operation in the Principal Registry of the Family Division as from 22 March 2004. As from that date all applications for orders under sections 8 and 13 of the Children Act 1989 will be listed in the conciliation list. Cases where a district judge gives a direction under r 2.39(3)(c) of the FPR 1991 (compliance with the MCA 1973, s 41) will be listed in the conciliation list unless otherwise directed. A summons for wardship, where section 8 orders are sought, may be referred by the district judge to the conciliation list, usually at the first appointment. Cases may be excluded or removed from the conciliation list if a district judge so directs.
There will normally by five conciliation lists each week, two on Monday and Tuesday and one of Wednesday. The district judge will be attended by a CAFCASS officer. It is essential that both parties and any legal advisers attend. Te conciliation appointment will be conducted with a view to an agreement being reached and discussion away from the courtroom will be facilitated. All discussion will be privileged and will not be disclosed in any subsequent hearing or later application. The district judge and CAFCASS officer will not be involved in further hearings or applications between the parties.
Children aged nine or over should attend to be seen by the CAFCASS officer (unless excused by direction of the district judge). Where such a child attends and there is a younger child to whom the application also relates, then that younger child may attend. Any application to adjourn a conciliation must be made to a district judge.
If agreement is reached, the district judge will make any appropriate orders. If no agreement disposing of the application can be reached, then the district judge will give directions with a view to its early hearing and disposal.
Practice Direction (Family
Proceedings:
Representation of children)
Dame Elizabeth Butler-Sloss P
5 April 2004, [2004] 2 FCR 124
This Practice Direction deals with the proper conduct and disposal of hearings where the child may need to be made a party to proceedings but where the proceedings are not specified proceedings within s 41 of the Children Act 1989. The President noted that this step would only be taken in a minority of cases where there are issues of significant difficulty. Before taking the decision, consideration should be given to whether and alternative route might be preferable, such asking a CAFCASS officer to carry out further work, a referral to social services, or by obtaining expert evidence.
The decision to make a child a party is exclusively that of the judge, made in the interests of the child, taking into account any consequent delay. Illustrations of the circumstances that might justify making such an order would include:
(1) where a CAFCASS officer has notified the court that in their opinion the child should be made a party (see the FPR 1991, r 4.11B(6));
(2) where a child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties;
(3) where there is an intractable dispute over residence and contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact, or the child may be suffering harm associated with the contact dispute;
(4) where the views and wishes of the child cannot adequately be met by a report to the court;
(5) where an older child is opposing a proposed course of action;
(6) where there are complex medical or mental health issues, or other unusually complex issues that necessitate separate representation of the child;
(7) where there are international complications over child abduction, in particular where it may be necessary to have discussions with overseas authorities or a foreign court;
(8) where there are serious allegations of physical, sexual or other abuse in relation to the child or allegations of domestic violence not capable of being resolved with the help of a CAFCASS officer;
(9) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;
(10) where there is a contested issue about blood testing.
When a child is made a party and a guardian is to be appointed first consideration should be given to appointing a CAFCASS officer and preliminary enquiries should be made of CAFCASS (see the Practice Note below for the procedure). If a CAFCASS officer cannot be appointed without delay or there is some other reason making such an appointment inappropriate, then r 9.5(1) makes further provision for the appointment of a guardian.
Practice Note (CAFCASS)
Issued by Charles Prest, Director of Legal Services, CAFCASS
5 April 2004
This Practice Note is issued in conjunction with the President’s Practice Direction of 5 April 2004 dealing with the making of children party to proceedings. It supersedes the earlier CAFCASS Practice Note of March 2001 ([2001] 2 FCR 562). It identifies that the decision of which officer is appointed is a matter for CAFCASS and gives the relevant contact details. A decision on appointment will be made within five days. For cases dealt with by a guardian based at CAFCASS Legal (as will be the norm in High Court proceedings) then there will not usually be a need for a separate solicitor to be appointed. Where a guardian based at a local CAFCASS office is appointed, then legal representation will be either through CAFCASS Legal or by the appointment of a local solicitor, normally appointed by the guardian and eligible to apply for legal aid in the normal way.
The Practice Note also identifies other cases that should be referred to CAFCASS Legal:
(1) where CAFCASS Legal or the Official Solicitor has previously acted for the child;
(2) exceptionally complex international cases where there may need to be enquiries made abroad or where there is a dispute over jurisdiction;
(3) exceptionally complex adoption cases;
(4) all medical treatment cases where the child is old enough to be taken into account, or where there a particularly difficult cases such as withdrawal of treatment (where such issues arise in existing proceedings, the matter will usually continue to be dealt with locally but with support from CAFCASS Legal);
(5) any free standing Human Rights Act applications in which it is thought appropriate for CAFCASS Legal to be involved.
On such referrals the same allocation procedure would be followed as for court referrals.
Statutory Instruments
The Tax Credits Up-rating Regulations 2004, SI 2004/941
These Regulations, which came into force on 6 April 2004, amend reg 7(4) of the Child Tax Credit Regulations 2002, increasing the maximum rate of the individual element of a child tax credit. Regulation 3 and the Schedule amend Sch 2 to the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 by substituting a new Table prescribing the maximum rates for the elements of working tax credit other than the child care element. Regulation 4 increases the first income threshold for those entitled to child tax credit in reg 3(3) of the Tax Credits (Income Thresholds and Determination of Rates) Regulations 2002.
The Child Benefit and Guardian’s Allowance Up-rating Order 2004, SI 2004/942
These Regulations, which came into force on 12 April 2004, increase the weekly rate of guardian’s allowance prescribed in para 5 of Part III of Sch 4 to the Social Security Contributions and Benefits Act 1992 from £11.55 to £11.85. Article 3 increases the weekly rates of child benefit prescribed in reg 2(1)(a)(I) and (b) of the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations 1976. The effect is to increase the amount for the eldest or only child from £16.05 to £16.50 and for any other child from £10.75 to £11.05. Article 3 also confirms that the rate prescribed in 2(1)(a)(ii) (payable in respect of the eldest or only child living with a lone parent) remains £17.55. This is only payable in transitional cases where the rate was applicable in the case of a child who was living with a lone parent in 1998 and has continued to do so.
The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004, SI 2004/1033
This Order, which come into force on 1 May 2004, amends the Supreme Court Act 1981, and in particular ss 29 and 31, to provide that the orders of mandamus, prohibition and certiorari are to be known instead as mandatory, prohibiting and quashing orders, not just in that Act but in any primary or secondary legislation extending to England and Wales. Section 31(4) is amended to give the High Court, on an application for judicial review, the power to award restitution or the recovery of a sum due, in addition to the existing power to award damages.
The Social Security (Miscellaneous Amendments) (No. 2) Regulations 2004, SI 2004/ 1141
These Regulations, which came into force on 12 May 2004, amend the various benefit regulations to take into account the ‘Skipton Fund’, an ex-gratia payment scheme administered by the Skipton Fund Limited on behalf of the Department of Health for the benefit of persons who have contracted hepatitis C from NHS blood, blood products or tissue. In general, payments from the Fund will not reduce benefits. They will be disregarded when calculating a person’s capital or their income from capital. Amendments to the Recovery of Benefit Regulations include an exemption for payments made from the Skipton Fund from the compensation recovery scheme. Amendments to the Social Fund Maternity and Funeral Expenses Regulations provide that payments received from the Skipton Fund will not be deducted from an award of a funeral payment
The Social Security (Habitual Residence) Amendment Regulations 2004, SI 200/1232
These Regulations, which came into force on 1 May 2004, amend the Income Support (General) Regulations 1987, the Jobseeker’s Allowance Regulations 1996, the Housing Benefit (General) Regulations 1987, the Council Tax Benefit (General) Regulations 1992 and the State Pension Credit Regulations 2002 In particular, they amend the income-related benefit regulations with effect that no person shall be treated as habitually resident for the purposes of entitlement to income support, jobseeker’s allowance, housing benefit, council tax benefit and state pension credit unless they have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. They also extend the exception to the habitual residence test to include certain persons treated as workers from countries acceding to the European Union from 1 May 2004 in accordance with the Accession (Immigration and Worker Registration) Regulations 2004.
The Tax Credits (Miscellaneous Amendments No 2) Regulations 2004, SI 2004/1241
These Regulations, which came into force on 1 May 2004, amend the Tax Credits (Claims and Notifications) Regulations 2002 and the Tax Credits (Payments by the Board) Regulations 2002. Regulation 3 amends reg 21 of the Claims and Notifications Regulations, adding additional circumstances in which a claimant is required to notify the Board about a change in his entitlement to a tax credit. Regulation 4 inserts a new reg 29A into Part 4 of the Claims and Notifications Regulations specifying the form of a certificate of birth or adoption to be provided to the Board in response to a notice under s 14(2)(a), 15(2)(a) or 16(3)(a) of the Tax Credits Act 2002. Regulation 5 amends reg 3 of the Payments by the Board Regulations. As amended this provides that, where the members of a married or unmarried couple are for the time being resident at the same address, the tax credit shall be paid to the member of the couple whom they jointly identify. In default of such a member being identified, the tax credit is payable to the member appearing to the Board to be the main carer. It further provides that in a case where the members of a couple are living at different addresses, the member to whom the tax credit is payable is the member appearing to the Board to be the main carer.
The Tax Credits (Residence) (Amendment) Regulations 2004, SI 2004/1243
These Regulations, which came into force on 1 May 2004, amend the Tax Credits (Residence) Regulations 2003. Section 3(3) of the Tax Credits Act 2002 requires a claim for a tax credit to be made jointly by a married couple or unmarried couple, both of who are aged at least 16 and are in the United Kingdom, or by a single person who is aged at least 16 and is in the United Kingdom. Section 3(7) gives the Treasury power to prescribe circumstances in which a person is treated as being, or not being, in the United Kingdom. The principal Regulations introduce an ordinary residence test. Regulation 3 adds a new reg 3(5) to the principal Regulations. The main effect of the amendment is that, where a person claims child tax credit (as opposed to being treated as making a claim) on or after 1 May 2004, he or she must have a legal right to reside in the United Kingdom. The legal right to reside may arise under either domestic or EC law.
The Child Benefit (General) (Amendment) Regulations 2004, SI 2004/1244
These Regulations, which came into force on 1 May 2004, amend the Child Benefit (General) Regulations 2003. Section 146(2) of the Social Security Contributions and Benefits Act 1992 provides that no person shall be entitled to child benefit unless he or she is in Great Britain in that week. Subsection (3) of each section gives power (now vested in the Treasury) to prescribe circumstances in which a person is treated as being, or not being, in the relevant country. Regulations 21 and 25 of the principal Regulations introduce an ordinary residence test. Regulations 3 and 4 of these Regulations add new regs 21(4) and 25(3) to the principal Regulations. The main effect of the amendments is that, where a person claims child benefit on or after 1 May 2004, he or she must have a legal right to reside in the United Kingdom. The legal right to reside may arise under either domestic or EC law.
Recent articles on family and child law
Contact enforcement and parenting programmes – policy aims in confusion? Helen Rhoades (2004) 16 CFLQ 1
Risks and responsibilitie4s – the role of the local authority lawyer in child care cases Jonathan Dickens (2004) 16 CFLQ 17
Equity’s children – constructive trusts for the new generation Carline Sawyer (2004) 16 CFLQ 31
Re O & N; Re B – Uncertain evidence and risk taking in child protection cases Mary Hayes (2004) 16 CFLQ 63
Re L (A minor by his father and litigation friend) - Undermining authority? Challenging school exclusions and the problems of ‘reinstatement’ Daniel Monk (2004) 16 CFLQ 87
Re P (Child) (Financial Provision) – Shoeboxes and comical shopping trips – child support from the affluent to fabulously rich Stephen Gilmore (2004) 16 CFLQ 103
The judge, the lawyer and CAFCASS Jonathan Wybrow [2004] Fam Law 251
The education of children in care Karen May [2004] Fam Law 259
Family law in the classroom Chris Barton [2004] Fam Law 264
The right to know one’s father Penny Booth [2004] Fam Law 270
Special guardianship orders – family assessment Cath Talbot & Philip Kidd [2004] Fam Law 273
Express trusts and ancillary relief Simon Calhaem [2004] Fam Law 281
CAFCASS and private law cases Brian Cantwell [2004] Fam Law 283
ADR professional: mediators playing POCA [2004] Fam Law 290
Child law update Aileen Downey (2004) 154 NLJ 579
Meeting the challenges of Climbié and Soham Stewart Room (2004) 154 NLJ 490, 526, 590
