November 2002

Bulletin No 63
Butterworths Family and Child Law
Bulletin  – November
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.

Costs

No principle
against the award of summary costs in longer cases

BFLS
2[2067]

1

Q v Q (Costs: Summary
Assessment) [2002] 2 FLR 668, FD

In Q v Q (Costs: Summary
Assessment) [2002] 2 FLR 668, FD Wilson J rejected the
suggestion that the implication of section 13 of the Practice
Direction About Costs, issued supplementary to the Civil Procedure
Rules 1998, was that there was a presumption against making a
summary order for costs in longer cases. Section 13 provides for a
general rule that a summary order for costs should be made where a
hearing has lasted not more than one day. Wilson J held that it was
wrong to draw the inference that in longer cases there was a
presumption an order should be made for a detailed assessment of
costs by a costs officer. The matter was open for the court’s
discretion.

Comment: As Wilson J
pointed out, the contrary view would have created unnecessary
expense over the calculation of costs in cases where the judge is
able to make a reasonable assessment on a summary basis. An order
for detailed assessment of costs is only necessary where this is
not possible. He also noted that it was so rare in children’s
cases for costs to follow the event that this should not be
regarded as the staring point. In reality, the starting point is no
order for costs and any order that the court wishes to make needs
to be explained.

Public law
proceedings

Court should
not reject expert evidence without strong reasons—onus on
mother to establish innocence

BFLS
3[3080.1];
CHM
1[936],
1[1305]

2

Re B (non-accidental injury: compelling
medical evidence)
[2002] EWCA Civ 902, [2002] 2
FCR 654, [2002] 2 FLR 599

In Re B (non-accidental injury:
compelling medical evidence) [2002] EWCA Civ 902, [2002] 2 FCR
654 the Court of Appeal allowed an appeal by the local authority
against a finding that a mother had not failed to protect her son
from being killed by her partner. The finding had been made at a
split hearing that was a part of care proceedings in respect of the
mother’s other child. Thorpe LJ found that in a case where it
was clear that one partner was the perpetrator of serious injuries
to a child, but that it could not be established whether the other
was also a perpetrator, highly cogent evidence was required to
enable a judge to say that it could not possibly be that other
partner. In the present case, there was expert evidence that
indicated that the mother must have least have known of the
injuries. The judge had been plainly wrong to reject that evidence
when there was no expert evidence to counter it. In those
circumstances, and when it was also noted that the partner’s
evidence had been regarded by the judge as unreliable, it was
plainly wrong for the judge to exonerate the mother.

Comment: There are
two interesting strands to this decision. The first concerns how
the judge’s assessment of the credibility of lay witnesses
should be balanced against expert evidence. The Court of Appeal
criticised him for allowing his belief in the mother’s
testimony to lead him to reject the expert evidence, even though
there were no grounds on which that expert evidence had been shown
to be mistaken. The Court of Appeal’s approach privileges
expert evidence over lay evidence and requires the basis for
rejection of expert evidence to be made explicit in terms of the
flaws in its reasoning. This follows the approach taken in the
earlier Court of Appeal decision in Re B [2001] 1 FLR 334. The
second interesting element of the case is the fact that Thorpe LJ
seems to have approached it on the basis that there needed to be
cogent evidence to exonerate the mother. This would seem to reverse
the normal onus of proof, requiring the mother to demonstrate her
innocence. It also required her to do so to a high standard of
proof, commensurate to the harm suffered by the child. This
reversal of the onus of proof would only come into play when it had
been proved that there was harm to the child caused by one of the
partners, but when either it is not clear which of them was
primarily responsible or that the involvement the other was
unclear. This was the situation considered by the House of Lords in
Lancashire CC v A
[2000] 1 FCR 509 where the House of Lords strove to ensure that
that legalistic considerations of proof did not prevent children
being protected in cases where the detailed cause of harm remained
uncertain but that it was clear that the child was at risk of harm.
Their solution was to find that the threshold grounds for a care
order were satisfied and that the implications of the uncertainty
could be considered as part of the welfare consideration. The
approach taken by the Court of Appeal in the current case would
have a slightly different effect. By requiring the mother to
exonerate herself, the framework developed by the Court of Appeal
is likely to lead to parents being disadvantaged by uncertainty
rather than it being left open as part of the welfare assessment.
This is probably the product of seeking to resolve the causation
issues in a split hearing as it forces decisions to be taken step
by step rather than in the round.

Fair
procedures in managing child protection

BFLS
3[4633], 5[4304.2],
5[4307];
CHM
1[1412]

3

Re C (care proceedings: disclosure of
local authority’s decision making process)
[2002] EWHC 1379, [2002] 2 FCR 673, sub nom Re L (Care:
Assessment: Fair Trial) [2002] 2 FLR 730

In Re C (care proceedings:
disclosure of local authority’s decision making process)
[2002] EWHC 1379, [2002] 2 FCR 673 Munby J considered whether the
human rights of a mother whose child was the subject of care
proceedings had been breached by the way in which decisions had
been taken about the appropriate course of action. The case was
proceeding on the basis that it was admitted by the mother that the
threshold criteria had been satisfied. However, although she
accepted that the court would find that she had harmed a younger
child who had died, she was reluctant to accept responsibility for
harming her. The advice of the medical expert had been for a two
week residential assessment to be carried out. In between
directions hearings, this expert revised his view and concluded
that there was insufficient prospect of successful rehabilitation
to justify starting on such an assessment. The mother and her
advisers became aware of the change in his advice only one working
day before the hearing. The mother claimed that she had been denied
adequate involvement in the decision-making process, in breach of
her rights under Arts 6 and 8 of the European Convention on Human
Rights. Munby J noted that rights under Art 8 were not restricted
to the trial process, but extended also to fairness in all stages
of the child protection process. Counsel for the mother pointed to
a number of aspects of the handling of the case that had either
failed to give the mother a full account of concerns about her
behaviour or unfairly excluded her from discussions about the case.
The most important failure was probably her exclusion, despite a
request to be present, from a key discussion between the medical
expert, the social worker and the guardian. This was compounded by
the absence of an agenda for the meeting or any minutes, so that
the mother was not alerted to the importance of the matters
considered. This amounted to a clear failure to meet the
requirements of fairness mandated by Arts 6 and 8 of the
Convention. Munby J then considered whether these defects could be
cured through the mother’s involvement in and representation
at the final hearing. At this hearing the mother obtained discovery
of all the relevant documents and was able to cross-examine the
professionals involved. Munby J held that this gave her sufficient
involvement to satisfy the requirements of the Convention. The care
order was made.

Comment: This is an
important decision exploring the impact of the Human Rights Act
1998 on the conduct of child protection work. While it will
sometimes, as here, be possible to correct unfairness at the full
hearing of the case, it should be noted that failure to have proper
regard for the human rights of those involved can give rise to free
standing litigation against local authorities under the HRA 1998, s
7. Munby J offered the following advice on achieving fairness in
child protection proceedings. (1) Social workers should inform
parents of material criticisms of their parenting and advise them
on how they might improve their behaviour. (2) All professionals
involved should keep clear, accurate, full and balanced notes of
all relevant conversations and meetings. (3) The local authority
should make full and frank disclosure of all key relevant
documents, including minutes of case conferences and contact
recordings. (4) Social workers and guardians should routinely
exhibit to their reports notes of relevant meetings and
conversations. (5) Meetings of an ‘expert’ with the
professionals involved should (a) have a clear written agenda,
circulated in advance; (b) take place with advance notice to the
parents and their representatives (who should have the opportunity
to make representations to the expert prior to the meeting), (c)
give parents and other parties the right to attend or be
represented at such meetings, (d) have full and balanced minutes
that should be agreed as being an accurate record as soon as
possible and then disclosed.

Evidence
need not support ‘confident medical diagnosis’ to
satisfy burden of proof

BFLS
3[3064.1];
CHM
1[1305]

4

Re B (a child: non-accidental
injury) [2002] EWCA Civ 752, [2002] 3 FCR 85

In Re B (a child: non-accidental
injury) [2002] EWCA Civ 752, [2002] 3 FCR 85 the Court of
Appeal held that the fact that the medical experts were not
prepared to say that they could make a ‘confident’
diagnosis of non-accidental injury did not preclude a finding that
a child was at risk of significant harm. The doctors were able to
say that non-accidental injury was the ‘front runner possible
cause’ of the injuries and that no other possible cause had
been identified. Thus there was no other more probable explanation
and the Court of Appeal was satisfied that the judge was entitled
to find that there had been non-accidental injury.

Comment: While this
decision is entirely understandable in the context of determining
on the balance of probabilities which is the most plausible of the
explanations offered, it is harder to understand how it is
consistent with the approach taken by the House of Lords in Re H & R [1996] 1 FCR
509. That case requires a degree of cogency to the evidence
commensurate with the gravity of the allegations against the
parents. There is no analysis in Thorpe LJ’s judgment of why
this threshold was crossed, although he does allude to the
particular circumstances of the case making unrealistic the claim
that the parents’ presumption of innocence had been
compromised.

Adoption

Consent of
Jordanian authorities not required for adoption

BFLS
3[4186.1],
5[3121];
CHM
3[185]

5

Re J (adoption: consent of foreign
public authority)
[2002] EWHC 766 (Fam), [2002]
2 FLR 618

In Re J (adoption: consent of
foreign public authority) [2002] EWHC 766 (Fam), [2002] 2 FLR
618 Charles J held that the Jordanian authorities did not have the
power under the relevant Shariah law to consent to adoption.
Consequently, there was no need for them to consent to the adoption
of an orphan brought to England for adoption by an English couple.
The need for the consent of the natural parents was dispensed with
on the basis that they were unknown and could not be found.

Comment: This
decision will be relevant to the adoption of orphans from other
Muslim countries as it was based on the fact that Shariah law does
not recognise the concept of adoption, ie a permanent transfer of
parental responsibility, but only fostering, ie a temporary
transfer of responsibility for child care. This distinguishes the
situation from that considered in respect of Romania in Re AGN [2000] 2 FLR 431
where the orphanage had become the child’s guardian and
therefore was found to have the power to consent or withhold
consent to adoption. The status of the Jordanian authorities was
different. They had custodial responsibilities to ensure the
welfare of the child but would have to return the child to the
natural parents if they came forward.

Freeing
order can be made with a view to adoption abroad

BFLS
3[4211];
CHM
3[251]

6

Re S (a child) (adoption
procedure)
[2002] EWCA 798, [2002] 3 FCR 171,
sub nom Re S (Freeing for Adoption) [2002] 2 FLR 681

In Re S (a child) (adoption
procedure) [2002] EWCA 798, [2002] 3 FCR 171, the Court of
Appeal held that an order freeing a child for adoption could be
made even where the subsequent adoption was intended to take place
abroad. The counter argument was based on the fact that adoption in
the Adoption Act 1976 was defined in terms of UK adoptions only (s
72(1)). However, that definition applied ‘unless the context
otherwise requires’. In the view of the court, in the context
of overseas adoption, the context required a broader definition in
order to make sense both of the 1976 Act and the overall scheme of
child law. This was reinforced by noting that a similar approach
had been taken to defining ‘guardian’ in Re N [2000] 2 FCR 512.

Financial
provision

Property
adjustment order creates equitable interest before
execution

BFLS
4[1306]

7

Mountney v Treharne [2002]
EWCA Civ 1174, [2002] 3 FCR 97

In Mountney v Treharne [2002]
EWCA Civ 1174, [2002] 3 FCR 97 the Court of Appeal held that a
property adjustment order under s 24 of the Matrimonial Causes Act
1973 conferred an equitable interest in property even before it was
executed. Consequently, the husband’s trustee in bankruptcy
was bound by the wife’s interest even though the husband had
been declared bankrupt after the order was made but before the
property was transferred.

Comment: This
decision reverses the decision of the High Court, reported at
[2002] 2 FLR 406 and overrules Beer v Higham [1997] BPIR
349. It should be noted that the argument was based on the
principle that equity regards as already done that which ought to
be done. It would not therefore assist a spouse who is awarded a
sum of money to be raised out of sale, only one who is awarded
ownership of a specific property.

International child abduction

Risks of
terrorism in Israel did not justify refusal to return abducted
child

BFLS
5[2177];
CHM
2[67]

8

Re S (a child) (abduction: rave risk of
harm)
[2002] EWCA Civ 908, [2002] 3 FCR 43, sub
nom
Re S (Abduction: Custody
Rights)
[2002] 2 FLR 815

In Re S (a child) (abduction:
grave risk of harm) [2002] EWCA Civ 908, [2002] 3 FCR 43 the
Court of Appeal considered a claim that to return a child to Israel
would place her at grave risk of an intolerable situation. The
mother raised two issues. One was the risk of terrorism, given the
difficult political situation in Israel and the West Bank. The
second arose from the mother’s agoraphobia and panic attacks,
which had been brought on as a reaction to the threat of terrorism.
The Court of Appeal held that, as a matter of law these could
satisfy the requirements of Art 13(b) if the evidence showed that
the situation in which the child would be placed would be
intolerable. It had to be shown that the grave risk of harm
produced an intolerable situation. This was not demonstrated merely
because Israel saw itself as at war. Although the mother would find
it intolerable herself to return, due to her psychological
problems, this did not make in an intolerable situation into which
to return the child. The Court of Appeal upheld the order to return
the child to Israel.

Comment: Accepting
the fact that a country is experiencing terrorism or civil unrest
as automatically being a reason to decline to return an abducted
child under Art 13(b) would have had far reaching effects. The
Israeli Central Authority had provided the court with numerous
decisions from different jurisdictions demonstrating that the
situation in Israel had not previously been judged to present an
intolerable risk to children. If the test in the Convention is to
be applied strictly, as the Court of Appeal found (rejecting an
Australian decision to the contrary) then this seems the normal
case. Exceptional individual circumstances might enable return to
be refused, but not general conditions of political
instability.

Welfare
benefits

BFLS
5[4244]

Different
positions of widows and widowers is unjustified

9

Willis v UK [2002] 2 FCR
743, [2002] 2 FLR 582, ECtHR

In Willis v UK [2002] 2 FCR
743, [2002] 2 FLR 582 the European Court of Human Rights held that
a widower denied ‘widow’s payment and ‘widowed
mother’s allowance’ had been unjustifiably
discriminated against in breach of Art 14 of the European
Convention on Human Rights, taken in conjunction with Art 1 of the
First Protocol to the Convention (which protected pecuniary
rights). On the facts, the man had not been treated differently to
a woman in respect of ‘widow’s pension’ as there
was no guarantee that the eligibility criteria, other than sex,
would be met. No separate consideration needed to be given to
issues raised under Art 8.

Practice
Directions

Lord
Chancellor’s Direction: Family Proceedings (Allocation to
Judiciary) Amendment Directions 2002

[2002] 2 FLR
692,  [2002] Fam Law
769

These Directions,
issued by Lord Irvine of Lairg and Dame Elizabeth Butler-Sloss P on
13 August 2002, amend the Family Proceedings (Allocation to
Judiciary) Directions 1999. A new para 2 is substituted together
with a new allocations schedule. The old order continues to apply
to proceedings pending immediately before 30 August 2002.

Statutory
Instruments

Social Fund
Cold Weather Payments (General) Amendment Regulations 2002, SI
2002/2524

These Regulations,
which take effect on 1 November 2002, further amend the Social Fund
Cold Weather Payments (General) Regulations 1988 in relation to the
list of weather stations and applicable postcode districts in Sch 1
to those Regulations, to take account of changes to postcodes and
to weather station linkages.

Social
Security (Claims and Payments and Miscellaneous Amendments) (No 3)
Regulations 2002 SI 2002/2660

These Regulations
make further amendments to the Social Security (Claims and
Payments) Regulations 1987. Regulation 2(2) extends the period for
claiming a bereavement payment from 3 to 12 months and reg 4
provides for the extended period to apply in respect of deaths
occurring on or after 1 April 2003. Regulation 2(3) provides for a
winter fuel payment to be paid, alternatively, to the partner of
the person entitled despite the partner being aged under 60 if the
partner receives income support or an income-based
jobseeker’s allowance with effect from 2 November 2002.

Recent
articles on family and child law

The pitfalls of
pension sharing—Part II David Salter [2002] Fam Law 666

Brussels I and
II —The impact of family law Mark Everall & Michael
Nicholls [2002] Fam Law 674

Contact under
the microscope Caroline Willbourne & Gillian Stanley [2002] Fam
Law 687

Family law
arbitration David Hodson [2002] Fam Law 694

Electronic case
filing—friend or foe Christopher Frazer [2002] Fam Law
699

FDAs—Further darn adjournments District Judge Stephen Gerlis
[2002] Fam Law 702

SFLA News:
Mediation—your place in the market Natalie O’Shea
[2002] Fam Law 704

The property
rights of cohabitees—where do we go from here? Stuart Bridge
[2002] Fam Law 743

Beyond the
hype—a year in the life of the Children’s Commissioner
for Wales Osian Rees [2002] Fam Law 748

Genetic testing
and the impact on the family Ann Northover & Grainne Dennison
[2002] Fam Law 752

Effective
participation and the European Court Dermot Casey, Barbara Hewson
& Nuala Mole [2002] Fam Law 755

Family mediators
in the UK—a survey of practice Sherrill Hayes [2002] Fam Law
760

Web resources
for the family lawyer and client David Hodson [2002] Fam Law
765

Guidance on
investigating complex child abuse cases Lee Arnot (2002) 152 NLJ
1569