Butterworths Family and Child Law Bulletin – June 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.
• Costs
Importance of avoiding appearance of conditional fee arrangement
Denton v Denton (2004) Times, 14 April, FD
In Denton v Denton (2004) Times, 14 April, FD Baron J drew attention to the importance of careful drafting in client care letters in family proceedings in order to avoid the possibility that an unenforceable conditional fee arrangement was being created. Were such an arrangement created, then the solicitor would be liable for counsel’s fees with no redress from the client. The letter from the solicitor to the client had contained the words ‘we have agreed that a claim for costs would not be made until money is received at the end of the case. Applying a purposive construction, her ladyship was satisfied that, taken as a whole, the letter showed that the wife was to be liable for her own costs, but that the solicitor agreed not to claim his costs until the conclusion of the case. That was wholly in line with common practice in family proceedings. The agreement was not therefore a conditional fee arrangement, under which costs would only be claimed if the case was successful, against the requirements for such arrangements in s 58A(1)(b) of the Courts and Legal Services Act 1990 (as amended by the Access to Justice Act 1998).
• Contact
Case of persistent non-cooperation with contact should be transferred to High Court
Re S (children: uncooperative mothers) (2004) Times, 28 May, CA
BFLS [1846]; CHM 1[659]
In Re S (children: uncooperative mothers) (2004) Times, 28 May the Court of Appeal upheld a father’s application to have a contact case transferred to a judge of the Family Division from the county court. It was case where the mother had persistently opposed and withheld contact, so that the father had had very little contact with his children during the seven years of the proceedings. Thorpe LJ noted that this should not have happened without considerable judicial input as a means of rescuing the relationship between the father and the children. In the circumstances the case should have been transferred to the Family Division.
Comment: Such cases are notoriously difficult to resolve, partly because the courts’ powers to provide incentives for the recalcitrant parent to work towards restoring the contact relationship are in practice quite limited. Thorpe LJ noted that, while the court had not power to order the mother to engage in family therapy, a refusal could give rise to adverse inferences being drawn.
Courts’ powers to deal with hostility to contact
V v V (children) (contact: implacable hostility) (2004) Times, 28 May, FD
BFLS 3A[1846]; CHM 1[659]
In V v V (children) (contact: implacable hostility) (2004) Times, 28 May, FD Bracewell J transferred the children’s residence from the mother to the father. The mother had consistently undermined and thwarted the father’s contact with the children, making serious unsubstantiated allegations against him and his family, resulting in 17 court orders before 16 different judges. Bracewell J found the allegations to be unsubstantiated and to have been made in order to frustrate contact. She further found that the children had been subjected to emotional abuse in the process and that the mother had demonstrated a lack of capacity to change. The father was well able to meet all the children’s needs. She was satisfied that the need for the children to have a relationship with their father could only be achieved by transferring residence to him.
Comment: This case illustrates judicial frustration with the limited powers to deal effectively with parents who obstruct contact. Bracewell J pointed out that there were only limited remedies available to counteract the perception that the courts rubber-stamped cases, marginalised fathers and allowed parents (typically mothers) with residence to flout contact orders and where the other parent down by years of litigation. Procedural improvements such as judicial continuity, case management, timetabling, pro-active orders, and effective early intervention by CAFCASS officers could only partly remedy this situation. In relation to CAFCASS officers, their role needed to change to include monitoring contact, helping with handover arrangements, bringing the case back to the same judge if necessary. There was also a need for well resourced contact centres. There was a need for legislation to give the judiciary powers to enforce orders by referral to mediation or a psychiatrist, to place parents on probation with a condition of treatment, impose community service orders, and to order financial compensation (for example where the cost of a holiday had been lost).
• International child abduction
Re J (a child) (child returned abroad: Convention rights) (2004) Times, 14 April, CA
BFLS 5A[2277]; CHM 2[35]
In Re J (a child) (child returned abroad: Convention rights) (2004) Times, 14 April the Court of Appeal allowed a father’s appeal against the refusal by Hughes J to order the return of his son to Saudi Arabia. The child had come to England, with the father’s consent, with his mother who was studying in London. On appeal, the mother’s arguments included a claim that her human rights to a fair trial (Art 6); respect for family life (Art 8) and against discrimination (Art 14) would be breached. Although the Times report is not clear, this seemed to be on the basis that Saudi Arabian law did not treat both parents equally. The Court of Appeal found that such an argument was misconceived. The English courts had to recognise that there were many alternative legitimate systems of law and that these might approach the question of the custody of children differently to English law. It was not for the English courts to refuse to return children to any jurisdiction unless some powerful factor in the welfare equation made it contrary to their best interests to do so. It was noted that this was predominantly a Saudi Arabian case for all three family members. There would be different considerations if the mother’s only connections with Saudi Arabia had been consequent upon marriage to a Saudi Arabian and residence there only during marital cohabitation.
Comment: The most important thing about this case is its rejection of arguments based on the claimed incompatibility of foreign law with the European Convention on Human Rights. The Court of Appeal rejected the contention that it would be a breach of the mother’s human rights to return the child to an allegedly unfavourable legal system. The Human Rights Act 1998 only applied to those within the jurisdiction. Whether this argument will prove convincing remains to be seen. The risk of inhuman and degrading treatment after exportation has been found to be relevant to decisions taken in the UK (D v UK). This seems directly analogous to the argument that the courts should take into account breaches of human rights that would flow from their decisions even if they would in fact occur outside the jurisdiction. That is different from the courts providing a remedy for such breaches, where it would seem proper to limit the scope of the Human Rights Act 1998. In a case governed by the Hague Convention on the Civil Aspects of International Child Abduction, then it could readily be argued that the specific agreements based on the presumption of return remove the need for separate considerations of human rights issues. However, in a case such as this under the Children Act it would seem more plausible for the courts to incorporate human rights issues into their deliberations.
• Statutory Instruments
The Civil Procedure (Amendment) Rules 2004, SI 2004/1306
The primary purpose of these Rules, which come into force partly on 1 June 2004 and partly on 30 June 2004, is to add to the Civil Procedure Rules 1998 a new Part 65, which will govern proceedings under various enactments relating to anti-social behaviour and harassment, including:
— injunctions under Chapter III of Part V of the Housing Act 1996, as amended by the Anti-social Behaviour Act 2003;
— demotion of tenancies under s 82A of the Housing Act 1985 or s 6A of the Housing Act 1988, as inserted by the 2003 Act;
— anti-social behaviour orders under the Crime and Disorder Act 1998, as amended by the 2003 Act; and
— proceedings under s 3 of the Protection from Harassment Act 1997.
The Adoption and Children Act 2002 (Commencement No 6) Order 2004, SI 2004/1403
Article 2 brings into force on 21 May 2004 s 118 of the Act. That section amends s 26 of the Children Act 1989 (review of cases of looked after children) to provide that regulations may be made to require a local authority to review the care plan of a looked after child.
The Review of Children’s Cases (Amendment) (England) Regulations 2004, SI 2004/1419
These Regulations impose new obligations on the ‘responsible authority’ in England (a local authority, voluntary organisation or a person carrying on a private children’s home) to appoint an independent reviewing officer (‘IRO’) in connection with the review of each case of a child who is looked after or for whom accommodation is being provided.
Provision for requiring local authorities to appoint IROs was inserted in s 26 of the Children Act 1989 (review of cases) by s 118 of the Adoption and Children Act 2002. The requirements are applied to voluntary organisations by virtue of s 59(4) and (5) of the Children Act 1989. They are applied to persons providing private children’s homes (but only in cases where the child is not placed by a local authority or voluntary organisation) by virtue of para 10 of Sch 6 to the Children Act 1989.
Regulation 2 amends the Review of Children’s Cases Regulations 1991 by
(a) inserting a new reg 2A requiring IROs to be appointed in each child’s case and providing for the description of persons that may be appointed as IROs and the manner in which the IROs should carry out their functions;
(b) substituting a new reg 3, providing for timing of reviews (including provision for reviews to be held when the IRO so directs);
(c) inserting a new reg 8A requiring the responsible authority to inform the IRO about a failure to implement decisions of a review or a significant change of circumstances following a review.
The Regulations come into effect on 27 September 2004.
• Recent articles on family and child law
‘Love split’ parents: failed by the system? District Judge John Mitchell (2004) 154 NLJ 678
Homosexual rights Brenda Hale (2004) 16 CFLQ 125
The employment of children Caroline Hamilton & Bob Watt (2004) 16 CFLQ 135
Judicial discretion and methods of ascertaining the views of a child Fiona E Raitt (2004) 16 CFLQ 151
Relationship breakdown, women and tenants’ rights—choice or paternalism Caroline Hunter & Sarah Blandy (2004) 16 CFLQ 165
‘Working together?’—admissions of abuse in child protection proceedings and criminal prosecutions Cathy Cobley (2004) 16 CFLQ 175
Turn down the volume?—Not hearing children in family proceedings Adrian L James, Allison James & Sally McNamee (2004) 16 CFLQ 189
P v P (Ancillary Relief: Proceeds of Crime)—Disclosure under the Proceeds of Crime Act 2002 of suspicions of tax evasion gained during ancillary relief negotiations Philip Wylie (2004) 16 CFLQ 203
Re C (Welfare of Child: Immunisation)—room to refuse? Immunisation, welfare and the role of parental decision making Kath O’Donnell (2004) 16 CFLQ 213
R (Williamson) v Secretary of State for Education and Employment—Accommodation of religion in Education Holly Cullen (2004) 16 CFLQ 231
Making sure the child is heard: Part I—Human Rights Hon Mr Justice Munby [2004] Fam Law 338
Financial provision on divorce: clarity and fairness—Part 2 Peter Watson-Lee [2004] Fam Law 348
Parental responsibility—what changes? Penny Booth [2004] Fam Law 353
Bankruptcy and divorce orders Simon Edwards [2004] Fam Law 356
The UK-Pakistan Protocol David Binns [2004] Fam Law 359
Inheritance or estoppel—how the cohabitant succeeded District Judge Martin Cardinal [2004] Fam Law 362
SFLA News: Keeping up to speed [2004] Fam Law 366
ADR Professional: Mediators playing POCA—FAQs Robin ap Cynam [2004] Fam Law 368
