December 2002

Bulletin No 64
Butterworths Family and Child Law Bulletin  – December 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.

Private law
proceedings

Appeal where
reasons insufficient

BFLS
3[1830]; CHM 1[658]

Re G (children: contact)
[2002] EWCA Civ 761, [2002] 3 FCR 377

In Re G (children: contact)
[2002] EWCA Civ 761, [2002] 3 FCR 377 the Court of Appeal allowed a
father’s appeal against an order precluding him from contact
with his children who were the subject of an application for
adoption. The judge had made an order for contact with the mother
and with the paternal uncle. The reason given for denying contact
with the father was that it would be confusing for the children.
However, lack of contact would be equally confusing when there was
to be contact with the mother and uncle. The judge had not
sufficiently explained his reasons for the decision, so the appeal
should be allowed.

Comment: This was
mainly a procedural issue, but the discussion of the benefits of
limited contact with the birth family is illustrative of the issues
that are raised where a family is split up through adoption. It was
envisaged that the two sets of twins who were being adopted would
retain contact with their older half-sister who would live with the
maternal grandmother.  This
would mean that the twins would hear indirectly about their mother
and that this would be less confusing if they too saw her. The
Court of Appeal indicated that there may have been legitimate
reasons for denying contact to the father—it seemed possible,
although unproven, that he was responsible for harming some of the
children. However, no adequate explanation had in fact been offered
so the appeal had to succeed.

No
presumption of parental care to displace
grandmother as ‘psychological parent’

BFLS
3[1827]; CHM 1[633.1]

Re H (a child: residence)
[2002] 3 FCR 277, CA

In Re H (a child: residence)
[2002] 3 FCR 277 the Court of Appeal considered a case in which a
child had been living with the maternal grandmother for some five
years. The mother then sought an order that her daughter live with
her. In those circumstances, there was little weight to be given to
the normal supposition that children’s interests will be
furthered by living with their natural parents. The grandmother had
become the child’s psychological parent, and would seem to
her to be her ‘natural’ carer.

Comment: The
importance of this decision is its reiteration of the point that
the statutory principle was the best interests of the child and
that this is not displaced by any supposed presumption in favour of
the blood tie. The Court of Appeal similarly rejected any
suggestion that a change of residence required the applicant to
establish a change of circumstances since the previous residence
order was made. The issue was what was in the best interests of the
child and there were no weighted factors to displace that
fundamental principle. The Court of Appeal also criticised that
fact that the lower court had accepted the mother’s request
to consider her application without resolving allegations of abuse
(of herself as a child) that she had made against the grandmother
and her husband. That request had been made to ensure speedy
resolution of the case, but to accept it was an abnegation of the
quasi-inquisitorial role of the court. Such allegations must either
be adjudicated upon or withdrawn.

No
entitlement to disregard expert evidence—need for reasons
before departing from guardian ad litem’s
recommendations

BFLS
3[4621]; CHM 1[1337]

Re N-B (children) (residence:
expert evidence) [2002] EWCA Civ 1052 [2002] 3 FCR 259 sub nom
Re M (residence)
[2002] 2 FLR 1059

In Re N-B (children) (residence:
expert evidence) [2002] EWCA Civ 1052, [2002] 3 FCR 259 the
Court of Appeal allowed an appeal against a refusal to make a
residence order in favour of the child’s uncle. His mother
was dead and his father had a personality disorder and had
previously been sentenced to life imprisonment. The judge had
rejected expert psychiatric evidence that the father suffered from
a personality disorder that made him unable to relate properly as a
parent. He was not entitled to reject unanimous professional
evidence to this effect. He had also rejected the guardian’s
view that the father was not suitable to take on the primary
parenting role. The judge was entitled to reject the
guardian’s assessment provided that he gave reasons for doing
so. However, he had failed to give a sufficient explanation for
doing so.

Comment: The Court of
Appeal drew an important distinction between the expert medical
evidence and the recommendations of the guardian. The judge was not
entitled to depart from the medical evidence because it had not
been challenged by any of the experts. No discretion existed for
the judge to make his own assessment of the evidence because it was
a matter for the experts. The position of the guardian was
different. The judge was entitled to depart from the
guardian’s recommendations. In this case, the constraint was
a procedural one—reasons had to be given. Here, the error was
in failing to explain why the guardian was wrong, not the fact of
disagreement in itself.

Court should
determine disputed issues not delegate to parent with
care

BFLS
3[1735]; CHM 1[666]

Re P (a child) (parental dispute:
judicial determination)
(2002) Times, 5
November, CA

In Re P (a child) (parental
dispute: judicial determination) (2002) Times, 5 November the
Court of Appeal held that the court had abrogated its
responsibility in ordering that the mother should determine all
future questions concerning the child’s schooling. The
parents shared parental responsibility and had asked the court to
resolve a dispute between them as to which school their child
should attend.  They were
entitled to expect the court to accept its primary responsibility
to decide the fundamental dispute between the parents. They had
reached convinced positions which were unlikely to shift through
further discussion and mediation. The Court of Appeal upheld the
father’s appeal against what was essentially the delegation
of the decision to the mother.

Comment: From this
brief report it is difficult to appreciate the court’s
thinking in ordering that the mother should determine the decision.
It is possible to conceive of cases where a determination that a
child should live with one parent could properly be coupled with an
order that decisions such as schooling should be taken by the
parent with residence. This would be wholly appropriate where the
substance of the disagreement was in which of the parents’
daily lives the child’s future lay. Possibly, it would be
appropriate to make an order that the mother should be able to make
future educational decisions once the court had concluded that her
view on which school was appropriate was in fact in the
child’s best interests. It may be that this was what the
Court of Appeal did—the report indicates that the
father’s appeal was allowed but that the decision was made in
favour of the mother. In any event, any order that future decisions
could be taken by the mother would be subject to being superseded
on a further application by the father to the court.

Public law
proceedings

Court should
not allow social worker anonymity as witness

BFLS
3[4608]; CHM 1[1350]

Re W (children) (care proceedings:
witness anonymity)
(2002) Times, 1 November,
CA

In Re W (children) (care
proceedings: witness anonymity) (2002) Times, 1 November, the
Court of Appeal held that a judge had been plainly wrong to permit
a social worker formerly engaged in the case to give evidence
anonymously behind a screen. Such anonymity should only be afforded
in highly exceptional cases. Thorpe LJ said that guidance on
witness anonymity in the criminal jurisdiction offered a relevant
parallel, citing Doorson v
The Netherlands (1996) 22 EHRR 330.

Comment: Thorpe LJ
regarded threats of violence, and sometimes actual violence, as a
professional hazard that would not ordinarily give rise to the
granting of anonymity.

Disclosure

Judicial
review wrong route to challenge referral as person inappropriate to
work with children

BFLS
5[4209]; CHM 1[1420]

R (on the application of M) v
London Borough of Bromley [2002] EWCA Civ 1113, [2002] 3 FCR
193, [2002] 2 FLR 802

In R (on the application of M) v
London Borough of Bromley [2002] EWCA Civ 1113, [2002] 3 FCR
193, [2002] 2 FLR 802, the Court of Appeal held that it was not
appropriate to grant judicial review of a decision to refer the
applicant’s name for inclusion on a list of individuals
considered unsuitable to work with children. The court noted that
the Protection of Children Act 1999 provided a more appropriate
route for challenging the entry of the applicant’s name on
this register. The tribunal set up under the Act was not limited to
procedural concerns, as was the court in judicial review
proceedings. As an expert tribunal, it would be better placed to
balance the interests of vulnerable children against the right of
the applicant to be treated fairly. The application for judicial
review was dismissed so as to enable the pending application before
the tribunal to be reactivated.

Comment: This
decision indicates that in most circumstances judicial review is
not an appropriate route to challenge a decision to refer an
individual’s name to the Secretary of State for consideration
for inclusion in the statutory list (which supersedes the old
Consultancy Index). The tribunal process enables individuals to
challenge evidence against them, both in respect of proof of past
misconduct and also suitability to work with children. Judge LJ
indicated that judicial review might be appropriate where the
authority had acted in bad faith, been motivated by spite, where
there was no evidence to support its decision, or where the inquiry
had been conducted negligently or incompetently. Where, however,
the dispute turned on the reliability of the evidence (as here),
the tribunal will be the more appropriate forum.

CFR does not
need judicial permission to refer concerns to social services
department

BFLS
3[4646]; CHM 1[1240]

Re M (a child) (children and
family reporter: disclosure) [2002] EWCA Civ 1199, [2002] 3
FCR 208, [2002] 2 FLR 893

In Re M (a child) (children and
family reporter: disclosure) [2002] EWCA Civ 1199, [2002] 3
FCR 208, [2002] 2 FLR 893, the Court of Appeal held that a children
and family reporter (CFR) did not need permission from the judge to
disclose to social services information that raised concerns about
the welfare of a child. Thorpe LJ rejected the suggestion that
reference to social services was precluded by the Family
Proceedings Rules 1991, r 4.23. This limited disclosure of
documents relating to proceedings but did not extend to preparatory
material (see Re G
[1996] 3 FCR 77). Nor was the contact with the social services
department precluded by the Administration of Justice Act 1960, s
12 or the Children Act 1989, s 97. Those sections prevented
‘publication’ of information relating to Children Act
proceedings. Sharing concerns with professionals with child
protection responsibilities did not constitute a publication
breaching the privacy of contemporaneous Children Act proceedings.
Wall J also noted that the CFRs were officers of CAFCASS rather
than the court, so that authorities on the responsibilities of GALS
and reporting officers would not automatically be followed. CFRs
were not under judicial control. However, they should work
collaboratively and if a CFR did decide to refer concerns to social
services, then the judge should be informed promptly and directions
sought on whether the CFR’s own investigations should
continue.

Comment: This is an
important decision on a common problem. The evidence indicated that
practice has differed across the country and was often coloured by
local experience, sometimes (as in this case) experience of
inappropriately intrusive responses from local authorities. The
Court of Appeal has not only clarified the legal position, that
leave is not required from the court, but also offered guidance on
good practice on how CFRs should approach private law cases where
they become aware of information that may have child protection
implications. Thorpe LJ advised that one factor would be the
probability that sharing information with other agencies concerned
with the matter might fit with other, probably more extensive,
knowledge of the case and enable the pieces of the jigsaw to be put
together. It was also important to remember that at an early stage
of the proceedings there is unlikely to be an accumulated judicial
understanding of the situation. This would tend to lead to the
sharing of information with other agencies rather than seeking
judicial directions. In the later stages of a case the converse
will often apply, and referral to the judge would bring the
advantage of an informed independent assessment of the best way to
proceed. Thirdly, CFRs should bear in mind that parties might seek
to involve them manipulatively (as the present case seemed to
illustrate). Where allegations were made in a regular meeting they
would have to be placed before the court and it was ultimately for
the judge to assess their weight. Such allegations were unlikely to
require an urgent response. If the party making them felt strongly
that they were urgent, then they could go directly to social
services with their concerns. The situation would be different
where it was comments from a child which gave rise to the
CFR’s concerns. Here she or he should consider whether the
information was fresh or had previously been ventilated. The
gravity of possible harm and the probability of it occurring were
also relevant. The directness of the disclosure was also important.
Second hand reports would rarely need to be passed on to social
services, although it might be relevant whether the police or
social services were already aware of them. Finally, the
plausibility of the information should be considered, including any
pattern of past complaints.

Child
care

Appeal
against cancellation of registration should hear all
evidence—effect of unqualified panel

BFLS
3[5509]; CHM 1[1869]

Tameside MBC v Grant
[2002] 3 FCR 238, FD

In Tameside MBC v Grant
[2002] 3 FCR 238, FD Wall J held that a family proceedings court
hearing an appeal against a decision to cancel the registration of
a day care nursery under Part X of the Children Act 1989 should
hear all the evidence de novo. This was supported both by precedent
(Sutton LBC v Davis
[1994] 2 FCR 1129) and the requirements of Art 6 of the European
Convention on Human Rights. The latter required there to be scope
for control by an independent judicial tribunal of the
administrative decision to cancel the registration. That control
would not exist if the family proceedings court merely adopted the
authority’s findings of fact.

Wall J also
considered the consequences of a procedural irregularity in the
composition of the panel of justices. Only two of the three members
of the panel were qualified to hear family proceedings. In the
particular circumstances, this did not vitiate the whole
proceedings. The rules would have permitted the two qualified
judges to have sat without a third panel member. As the panel was
unanimous, the fact that a sufficient number of qualified justices
had supported the conclusion was a relevant factor (although the
influence of the unqualified member could never be known). There
was suggestion of bias or unfairness and the nature of the
proceedings did not require specialist knowledge so that it was
unlikely that the unqualified justice would have led the panel into
error.

Comment: This
decision is a helpful reminder of the responsibilities of family
proceedings courts in relation to registration appeals. The
discussion of the effect of the lack of qualifications of the third
justice is of wider significance. However, it is not clear which of
the factors considered was dominant in supporting the conclusion
that the procedural irregularities did not themselves lead to a
breach of Art 6.

Human
rights

Homosexual
partner to be treated as spouse

BFLS
5[4202]

Mendoza v Ghaidan (2002)
152 NLJ 1718, CA

Mendoza v Ghaidan (2002)
152 NLJ 1718 is an important case on the position of homosexual
partners. In it, the Court of Appeal departed from the exclusion of
such partners from the extension of the definition of
‘spouse’ in the Rent Act 1977 as laid down by the House
of Lords in Fitzpatrick v
Sterling [1999] 4 All ER 705. The court held that the Human
Rights Act 1998 required the words ‘as his or her wife or
husband’ in the Rent Act 1977, Sch 1, para 2(2) to be read to
mean ‘as if they were his or her wife or husband.’
Previously, the House of Lords had accepted that homosexual
partners fell within the definition of ‘family’ but
were not included as ‘spouses’ despite the extension of
that concept to embrace couples living together as husband and
wife. The provision of tenancy protection for families after the
death of one member engaged Art 8 of the European Convention on
Human Rights because the government had a positive obligation to
bring legislation that affected family life or the home within the
ambit of the article (see Wandsworth LBC v Michalak
[2002] All ER (D) 56 (Mar)). The Court of Appeal rejected the
suggestion that there was an objective and reasonable justification
for treating heterosexual and homosexual partnerships differently.
First, it was unclear how heterosexual family life was promoted by
handicapping those unable or strongly unwilling to enter into such
relationships. Second, if deterrence was the objective, the means
were singularly unimpressive. The more the court was told that
assured tenants were little worse off than statutory tenants, the
less could be achieved by denying statutory tenancies.

Comment: This
decision is of wide-reaching significance. Not only did the Court
of Appeal hold that the discrimination against homosexuals was in
breach of the Convention, but it found itself able to remedy that
fault immediately by a creative interpretation of the statute. This
was despite the fact that the opposite view had relatively recently
been taken by the House of Lords. On the basis of the approach
adopted here, few statutes affecting family life can now fall
outside the scope of Art 8. Further, from the robust approach taken
by the court, it seems unlikely that the courts will find different
treatment of heterosexual and homosexual families is objectively
justified.

No positive
obligation to protect without knowledge of risk

BFLS
5[4123]; CHM 1[4001], 1[4002]

DP v UK [2002] 3 FCR 385,
ECtHR

In DP v UK [2002] 3 FCR 385
the European Court of Human Rights held that there had been no
breach of the positive right to protection from inhuman and
degrading treatment (under Art 3 of the Convention) in the form of
sexual abuse. Unlike in Z v
UK [2001] 2 FCR 246, the local authority was not aware of the
abuse. Nor had it been shown that it should have been aware of it.
Nor was there breach of the applicants’ rights under Art 8.
Considerable support had been offered to the family but the sexual
abuse had neither been disclosed nor discovered. In the absence of
knowledge of the sexual abuse it had not been shown that there had
been a failure to meet the positive obligations under Art 8. The
ECtHR rejected the applicants’ claim that their rights under
Art 6 had been breached by the striking out of their claims
following X v Bedfordshire
CC [1995] 2 AC 633. It was bound to so in the light of its
earlier decision in Z v
UK [2001] 2 FCR 246.

Comment: This
decision clarifies the limit of positive obligations under Arts 3
and 8 of the European Convention on Human Rights in the context of
child protection. They will only exist where there is actual or
constructive knowledge of children being at risk. Where, as here,
the authority knew that the children were at risk but were not
fully aware of the nature and extent of that risk, the positive
requirements imposed by the Convention will be determined by the
extent of the knowledge at the time rather than the extent of the
actual harm as subsequently fully revealed.

Article 6
right that child should be heard in proceedings

BFLS
5[4165]; CHM 1[4002]

Sahin v Germany [2002] 3
FCR 321 (ECHR)

In Sahin v Germany [2002] 3
FCR 321 the European Court of Human Rights held that
applicant’s rights under Art 8 of the European Convention on
Human Rights had been breached because the court had not heard the
child in access proceedings. It should not have been satisfied with
vague statements from the experts about the risks inherent in
questioning the child. In addition, his rights under Art 14 had
also been breached. The court was not persuaded by the German
government’s arguments for denying unmarried fathers equal
status with those who were married, which were based on general
considerations that unmarried fathers lack interest in contact with
their children and might leave a non-marital relationship at any
time. Such considerations did not apply in the applicant’s
case.

Comment: This is a
surprising decision, and the view taken by the two dissenting
judges has much to commend it. They were of the view that the court
was entitled to accept the expert’s view on the
inappropriateness of taking direct evidence from the child. The
father had been able to challenge the basis of the expert’s
opinion in the domestic proceedings but had been unable to convince
the court that his view was correct. To criticise the German
assessment of the evidence in this way seems to go beyond the
established role of the ECtHR by considering the substantive
evidence rather than reviewing the law. It is also perplexing that
the failure to hear directly from the child was seen as a breach
of the father’s
right to be involved in the proceedings.

Entitlement
to information about upbringing under Art 8

BFLS
5[4206]; CHM 1[4002]

MG v UK [2002] 3 FCR 289,
ECtHR

In MG v UK [2002] 3 FCR 289
the European Court of Human Rights held that the UK was in breach
of its positive obligations to respect the applicant’s family
life under Art 8 of the European Convention on Human Rights when he
was unable to get full access to the social services records
relating to his childhood. Those records constituted his only
reliable source for information about a crucial period in his life.
He believed that he had been abused by his father and needed the
information to come to terms with his memories of the period. His
father could not have been regarded as a satisfactory source of
information in those circumstances, and in any event he had died in
1980. His mother had psychiatric problems during the relevant
period and so was also not able to assist MG. The court noted that
although the applicant had been given access to parts of his
records, this could now be seen to be limited and there was no
appeal against refusal of access to an independent body.

Comment: This
decision builds on that in Gaskin v UK (1989) 12 EHRR
36 which indicated that access to information might be so important
to an individual’s identity that it became an entitlement
under Art 8 of the Convention. Some of the defects identified by
the ECtHR have been remedied by the appeal mechanisms introduced by
the Data Protection Act 1998. However, it is arguable that this
decision calls into question whether the exemptions to client
access on the basis of protecting third party confidences are
compliant with the Convention. The Lord Chancellor’s
Department is currently conducting a consultation on the future of
the exemptions.

Statutory
Instruments

Social
Security (Paternity and Adoption) Amendment Regulations 2002, SI
2002/2689

These Regulations
amend the Income Support (General) Regulations 1987, the
Jobseeker’s Allowance Regulations 1996, the Housing Benefit
(General) Regulations 1987 and the Council Tax Benefit (General)
Regulations 1992. They extend entitlement to income support, where
a woman is or has been pregnant and has an expected week of
confinement beginning on or after 6 April 200