June 2003

Bulletin No 69
Butterworths Family and Child Law Bulletin – June 2003

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.

Divorce

Counter-allegations
confirmed breakdown of marriage

1

Hadjimilitis
(Tsavliris) v Tsavliris [2003] 1 FLR 81, FD

BFLS 1A[2043]

In Hadjimilitis (Tsavliris) v
Tsavliris [2003] 1 FLR 81, FD Alison Ball QC (sitting as a
recorder) found that the husband’s allegation that the wife
had married him as a charade to obtain his money was an allegation
that so undermined the marriage as to make it unreasonable to
expect her to continue to live with him. The allegation was made in
a case where the husband claimed that the marriage was not
irretrievably broken down. In fact on the evidence found by the
court, the husband had undermined the wife and destroyed her
self-esteem. His counter-allegations on her petition for divorce
effectively corroborated this evidence.

Comment: This case,
whose facts were considerably more complicated than can be recorded
here, illustrates the difficulties that arise in constructing a
case against claims that a marriage has irretrievably broken down
due to ‘unreasonable behaviour’. Once behaviour issues
are raised, there is a considerable temptation to respond by making
similar counter-allegations. However, if parties succumb to such
temptation, then they may well actually supply further evidence of
the irretrievable breakdown that they are seeking to deny. If the
ground for divorce is to be denied, a more successful strategy is
likely to be either to challenge the evidence adduced as to
behaviour or to seek to show that despite behaviour the marriage
can in fact be retrieved. Courts are increasingly unsympathetic to
claims that marriages can be repaired when one party asserts that
they are at an end.

International child
abduction

Unmarried father does
not get rights of ‘custody’ though giving care unless
mother has abandoned child—degree of engagement required to
give court custody rights

2

Re C (Child Abduction)
(Unmarried Father: Rights of Custody) [2002] EWHC
2219, [2003] 1 FLR 252, FD

BFLS 5A[2136], see also [2133];
CHM [51.1], [51.2]

In Re C (Child Abduction)
(Unmarried Father: Rights of Custody) [2002] EWHC 2219, [2003]
1 FLR 252, FD, Munby J considered a case in which the mother of the
child had take him to Ireland. The father sought his return under
the Hague Convention. As the parents were not married, the court
had to consider whether he had rights of custody within the meaning
of the convention despite not having parental responsibility under
English law. Munby J held that the case was indistinguishable from
the decision of the House of Lords in Re J, also reported as C v S [1990] 2 All ER 961.
Consequently, the father was not to be regarded as having custody
rights within the Convention.   The cases that had granted
unmarried fathers such status on the basis of de facto child care
responsibilities were to be reconciled with that decision by virtue
of the fact that they all dealt with circumstances in which the
mother with parental responsibility had abandoned the child to
another person or delegated responsibilities to them (see Re B [1998] 2 FLR 146, Re O [1997] 2 FLR 702, Re G [2002] 2 FLR 703).
This was not such a case. At best, the father could argue that he
was caring for the child jointly with the mother, a situation
considered in Re J; C v
S. Even these responsibilities had ceased by the time the
mother took the child to Ireland because the couple had by then
separated. The father then raised an alternative argument, that the
court was seized with the issue of custody because his application
for a residence order had been made by the time the mother left the
country, although it had not been served. Munby J noted that the
issuing of proceedings in wardship was sufficient to give rise to
custody in the court, eg Re
J [1990] 1 FLR 276, Re
B-M [1993] 1 FLR 979. Similarly, the court was seized of the
case for Convention purposes where a judge had exercised a judicial
discretion over the conduct of proceedings (even if in fact there
was no substantive order, only directions); see Re J [1999] 2 FLR 653.
However, a mere administrative step without judicial involvement is
insufficient (Re H
[2000] 2 All ER 1). In the current case, the father’s claim
failed. The court was not sufficiently seized of the case as to
have rights of custody vested in it.

Comment: As Munby J
pointed out, the consequence of the current state of the law is
that unmarried fathers who fear the immediate removal of their
children should issue proceedings and apply immediately to the
judge for relief in order to ensure that there will be a remedy
under the Hague Convention should the child be taken from the
jurisdiction. Otherwise, there is a gap in the protection offered
between the issuing of proceedings and service.

Private law
proceedings

Permission to appeal
should be sought from trial judge—need to consider ECHR
pressures for separate representation for children

3

Re T (a child:
contact) [2002] EWCA Civ 1736, [2003] 1 FCR 303, also
reported as Re T (Contact:
Alienation: Permission to Appeal) [2003] 1 FLR 531

BFLS 2A[1066]; CHM
1[1503]

In Re T (a child: contact)
[2002] EWCA Civ 1736, [2003] 1 FCR 303, also reported as Re T (Contact: Alienation:
Permission to Appeal) [2003] 1 FLR 531, the Court of Appeal
granted a father’s appeal against an order that he should
have only indirect contact with his child. The child had become
adamantly opposed to contact, but the judge had failed to consider
fully the cause of that alienation. This was an issue that needed
to be resolved and directions were made for instructions to be
settled for a child psychiatrist to be appointed jointly by the
parties, with the approval of the court.

Comment: This case
principally concerns the proper handling of a messy case in which
the father’s brother was found to be malignly feeding
information to the mother that was likely to turn the child against
his father. The Court of Appeal made two significant comments on
process that will be important for the subsequent development of
the law. The first was that where a judgment is to be handed down
by a judge of the Family Division sitting in the Royal Courts of
Justice, permission to appeal should usually be sought from that
judge at the time when the judgment is handed down. The provisions
of the CPR 52.3(2) and the CPR Practice Direction 52, paras 4 to 6,
established the procedure and prevailed over the practice of
applying to the Court of Appeal identified in Re O (Family Appeals)
[1998] 3 FCR 226. However, although this was good practice, there
was no absolute rule and no sanction would be applied for the
failure to apply to the trial judge at the time of judgment. The
second observation concerned the possible need for a change of
practice in relation to the hearing of the child’s views.
This was prompted by the jurisprudence of the European Court of
Human Rights. That court has found that failing to hear evidence
from a child was a breach of the parents’ rights to full
involvement in litigation under Article 8 (Sahin v Germany; Sommerfield v
German; Hoffmann v Germany [2002] 1 FLR 119). Thorpe LJ noted
that this raised some important policy questions. Should judges
normally see children personally in order to determine their
wishes? If so, what training would be needed? Was separate
representation for children required? What services should CAFCASS
be expected to provide?

Incapacitated
persons

Protective use of
inherent jurisdiction in relation to adults—court can
delegate details of contact arrangements to local authority

4

Re S (Adult Patient)
(Inherent Jurisdiction: Family Life) [2002] EWHC
2278, [2003] 1 FLR 292

BFLS 3A[905.2]; CHM
1[901.3]

In Re S (Adult Patient) (Inherent
Jurisdiction: Family Life) [2002] EWHC 2278, [2003] 1 FLR 292,
FD, Munby J held that the High Court had jurisdiction to declare
that it was in the interests of a mentally incapacitated adult
(aged 19) to live in accommodation provided by a local authority
rather than continue to live with his father. The authority was
concerned that there was a current risk of physical and emotional
abuse by the father of his son and that the father was using his
son as a lever in disputes over accommodation and other matters
(although it also acknowledged the care that he had provided his
son over many years). The Official Solicitor was also of the view
that the son should no longer live with his father. Munby J
accepted this assessment of the situation. After caring admirably
for his son over many years, the father had now found the care too
much. The judge further held that he had jurisdiction to order that
contact should occur only under supervision and at the discretion
of the local authority. In effect, the court could appoint a
surrogate decision maker for an incapacitated person, provided that
was in their best interests.

Comment: Munby J also
took the opportunity to consider the position of carers in some
detail. He examined the nature of claims that they might make under
Article 8 of the ECHR, noting that they had to be balanced against
the claims of the incapacitated person under the same article. He
noted criticism of the inclusion of a condition of consensus
between carers and professionals into the declaration made in re R [1996] 2 FLR 99 (see
Kennedy [1997] Medical Law
Review 104). However, he regarded the criticism as
misconceived. It was based on the fact that there was no legal
power in the parents of an adult patient to consent to treatment on
behalf of the patient. The erroneous acceptance of such a power was
not, however, the basis for the terms of the declaration. The
court’s task was to ensure that the best interests of the
patient were met. If those best interests would be best protected
by requiring a decision making procedure that involved the parents,
then in Munby J’s view, there was jurisdiction to make an
order to that effect. It did not depend on there being any legal
power or entitlement to consent, but on the court’s power to
protect the patient. This is very important step in the development
of the inherent jurisdiction of the court. It goes far beyond the
current orthodox view that the court has the power merely to issue
a declaration as to the legality (with or without court
intervention) of treatment, and a significant way to restoring the
supervisory parens patriae jurisdiction that was superseded by
mental health legislation (as confirmed by the House of Lords in
F v W Berkshire [1989]
2 All ER 545). If supported by the higher courts, Munby J’s
approach will have the effect of going some way to deal with the
problems left by the failure to legislate to deal with incapacity
issues, despite Law Commission proposals and the Government’s
statements of intent.

Enforcement

No committal without
representation

5

Re K (Contact:
Committal Order) [2002] EWCA Civ 1559, [2003] 1 FLR
277

BFLS 1A[3988]

In Re K (Contact: Committal
Order) [2002] EWCA Civ 1559, [2003] 1 FLR 277 the Court of
Appeal set aside a warrant of committal against a mother who had
failed to comply with an order for contact between her children and
their father. The mother had not been represented because public
funding had earlier been removed on the basis that she was acting
unreasonably in her conduct of the litigation. The Court of Appeal
held that committal proceedings invoked special protections under
Article 6 of the European Convention on Human Rights. Public
assistance should have been provided as a matter of urgency.
Further, Article 8 was also relevant and under s 6(1) of the Human
Rights Act 1998, where a custodial sentence would involve the
separation of a young child and mother, there should be
consideration of the competing interests (see R (P & Q & QB) v
Secretary of State for the Home Department [2001] EWCA Civ
1151, [2001] 2 FLR 1122, para [79]). Lack of representation had
meant that this balancing exercise had not been undertaken.

Comment: At an
earlier stage in the committal process, counsel arranged through
the Bar Pro Bono Unit had represented the mother. It was thought
inappropriate to provide such representation at the final hearing
as it would give the semblance of representation when in fact there
was no possibility to gather the additional evidence needed to put
the mother’s case properly.

Overseas divorce

Jurisdiction accepted
despite financial proceedings in Texan court

6

A v S (Financial Relief
After Overseas US Divorce and Financial Proceedings)
[2002] EWHC 1157, [2003] 1 FLR 431, FD

BFLS 4A[3104]

In A v S (Financial Relief After
Overseas US Divorce and Financial Proceedings) [2002] EWHC
1157, [2003] 1 FLR 431, FD, Bodey J considered a wife’s
application under Part III of the Matrimonial and Family
Proceedings Act 1984 for financial relief after an overseas divorce
with associated financial proceedings. He considered whether it was
appropriate to accept jurisdiction under the 1984 Act in a case
where an overseas court had already considered financial matters.
The Act was not designed to enable the English courts to reopen
disputes resolved in other jurisdictions simply because they
reached a different conclusion than might have resulted in England.
The case law indicated that there needed to be exceptional
circumstances (Holmes v
Holmes [1989] 3 All ER 786) in which there was a small
residuum of cases in which the outcome achieved in the foreign
jurisdiction was simply not a just one (Hewitson v Hewitson [1995]
1 FLR 241). In the present case there were a number of factors
indicating that the court could consider the case. (a) The husband
promised to the wife that she would become the joint owner of the
matrimonial home in England, and she had relied on that promise
when they married. (b) This issue had not been determined in the
Texan proceedings, despite the statement of that court that there
was no basis for finding a constructive trust. He found that there
was no issue estoppel on this point. (c) The Texan jurisdiction
applied a strict community of property rule, with no discretion,
under which all property acquired before the marriage stayed with
the legal owner. As the English matrimonial home had been bought
before the wedding in the husband’s sole name, this affected
the wife particularly harshly. (d) This harshness could be remedied
without injustice to the husband (who was considerably more wealthy
than the wife). (e) The wife had shown a real need for some
financial help as regards a home. Bodey J made a lump sum order for
£60,000. He also considered that aspects of the wife’s
conduct in misrepresenting some facts during the proceedings
brought her close to a finding that it would be
‘inappropriate’ under s 16(1) of the 1984 Act to accept
jurisdiction, but that on balance it would be appropriate to hear
the substantive issues.

Comment: In some ways
this was an unusual case. The marriage had broken down very
quickly. There was considerable disparity of wealth between the
parties. These factors made the wife’s position under the
Texan system particularly weak as she could not be granted any
share in the husband’s property acquired before the marriage
and there was little property acquired during it, over which some
discretion could have been exercised, because of its short
duration. It would be wrong to infer from this decision that the
English courts are commonly likely to regard community property
regimes as leading to injustice. The finding that the Texan court
had not adjudicated on the effect of the husband’s promise to
the wife may also be dependant on the fact that there was perceived
to be little injustice to the husband in the settlement ordered. It
could be argued that the rejection of an argument based on
constructive trust was by implication an adjudication on the true
effect of the promise to put the matrimonial homes into joint
names. The willingness of the court to reject such an implication
may be connected with its desire to do substantive justice.

Jurisdiction

No maintenance
pending suit in relation to cases to be heard overseas under
Brussels II

7

Wermuth v
Wermuth [2002] EWCA Civ 50, [2003] 1 FCR 289, [2003]
1 FLR 1029

BFLS 5A[30]

In Wermuth v Wermuth [2002]
EWCA Civ 50, [2003] 1 FCR 289, [2003] 1 FLR 1029, the Court of
Appeal held that maintenance pending suit could not be ordered
under Art 12 of Brussels II (EC 1347/2000) because it could not be
categorised as a provisional measure within the meaning of that
article. The parties’ divorce was being heard in Germany, the
German court being the first seized of the case. The Brussels II
Regulation therefore precluded any orders being made in England
unless they were ‘provisional, including protective,
measures’. The wife was awarded maintenance pending suit of
£150,000 per annum in the English High Court. The Court of
Appeal held that there was no jurisdiction to make such an order.
It was not a ‘provisional measure’. An application for
interim maintenance should have been made in the German
proceedings.

Comment: The Court of
Appeal noted that two thirds of the award was made up of money to
enable the wife to litigate, but that these expenses arose in
connection with the attempt to establish English jurisdiction
rather than in the German litigation on the substantive issues. The
wife could have raised a claim for interim maintenance at an
earlier German hearing at which she was present. The inference
drawn from her failure to do so was that she believed she would be
treated more generously in the English courts. This type of forum
shopping to achieve advantage was precisely what the Brussels II
regulation sought to restrict.

Human rights

France entitled to
maintain confidentiality of parents after anonymous birth

8

Odièvre v
France [2003] 1 FCR 621, ECtHR

BFLS 5A[4389]; CHM
1A[1372.1]

In Odièvre v France
[2003] 1 FCR 621 the European Court of Human Rights held that it
was within the margin of appreciation accorded to France to deny
the applicant access to identifying information about her natural
mother. The applicant had been adopted and sought access to her
birth certificate. The court accepted that the applicant’s
rights under Article 8 of the European Convention on Human Rights
were engaged. Article 8 protected a right to discover the truth as
to personal identity (Mikulic v Croatia [2002] 1
FCR 720). The circumstances of birth were relevant to this right to
identity and personal development. However, this right had to be
balanced against the natural mother’s rights. French law
entitled women to give birth anonymously and the mother had
exercised her right to do so in this case. The French legislature
was entitled to seek to protect the health of mother and baby
during pregnancy and to reduce the need for abortions through
providing secrecy to the mother. This respect for life was a
legitimate limiting interest within Article 8. The applicant had
been provided with non-identifying information and it was within
the margin of appreciation to refuse her access to further
details.

Comment: This
decision is of some importance in relation to the continuing
questions over access to confidential adoption records and over the
rights of those born after assisted conceptions to information
about their genetic parents. The majority of the court regarded the
basis of the French legislation as being the provision of
confidentiality in order to reduce the numbers of clandestine
births and abortions. This was seen as a limitation on the
claimant’s rights in order to protect life, a fundamental
value. This is a rather different, and stronger, argument from a
clash between the privacy of the mother and the privacy of the
applicant, where it could be said that the claimant’s claim
to knowledge of her birth parents involved a more important value
than the avoidance of embarrassment to those parents. This might
suggest that this line of cases in the European Court of Human
Rights is more likely to lead to the lifting of anonymity for
gamete donors than for natural parents who place their children for
adoption. Anonymity in adoption is given partly to remove the
pressure on women to terminate their pregnancies—preserving
the life of the child. Anonymity for gamete donors is aimed to
encourage donations by removing the risk of embarrassment through
being faced with an unknown child in years to come. The case law
begins with the requirement to disclose records in Gaskin v UK (1989) 12 EHRR
36,where the issue was access to records made by professionals
during a period in care. There was no life-preserving basis for
confidentiality.

Statutory
Instruments

The Conditional Fee
Agreements (Miscellaneous Amendments) Regulations 2003, SI
2003/1240

Section 58(1) of the
Courts and Legal Services Act 1990 provides that a conditional fee
agreement is not unenforceable if it satisfies the conditions
applicable by and under that section, which include conditions
specified in Regulations made by the Lord Chancellor under s
58(3)(c). These Regulations make amendments, with effect from 2
June 2003, to the Conditional Fee Agreements Regulations 2000 and
the Collective Conditional Fee Agreements Regulations 2000 to
provide that a conditional fee agreement will be enforceable even
though the client is liable to pay his legal representative’s
fees and expenses only if and to the extent that he recovers
damages or costs in the proceedings. Amendments made to the Civil
Procedure Rules 1998 provide that costs payable under such a
conditional fee agreement are recoverable under Parts 44 to 48 of
those Rules.

This in effect
abrogates in relation to this type of conditional fee agreement the
so-called indemnity principle—the principle that the amount
which can be awarded to a party in respect of costs to be paid by
him to his legal representatives is limited to what would have been
payable by him to them if he had not been awarded costs. Solicitors
will to this extent be able to agree lawfully with their clients
not to seek to recover by way of costs anything in excess of what
the court awards, or what it is agreed will be paid, and will no
longer be prevented from openly contracting with their clients on
such terms.

The Access to Justice
Act 1999 (Commencement No 10) Order 2003, SI 2003/1241

This Order brings
into force on June 2003 s 31 of the Access to Justice Act 1999.
This section amends s 51(2) of the Supreme Court Act 1981, allowing
rules of court to be made ‘for securing that the amount
awarded to a party in respect of the costs to be paid by him to
[legal or other] representatives is not limited to what would have
been payable by him to them if he had not been awarded
costs’—in other words, rules which limit or regulate
the so-called indemnity principle. Amendments to this effect have
been made to the Civil Procedure Rules 1998

The Civil Procedure
(Amendment No 2) Rules 2003, SI 2003/1242

The amendment of s
51(2) of the Supreme Court Act 1981 on the entry into force of s 31
of the Access to Justice Act 1999 allows rules of court to be made
‘for securing that the amount awarded to a party in respect
of the costs to be paid by him to [legal or other] representatives
is not limited to what would have been payable by him to them if he
had not been awarded costs’—in other words, rules which
limit or regulate the so-called indemnity principle.

The Lord Chancellor
has made amendments to the Conditional Fee Agreements Regulations
2000 and the Collective Conditional Fee Agreements Regulations 2000
which, when combined with the amendment to rule 43.2 of the Civil
Procedure Rules made by rule 5(b) of these Rules, will abrogate the
indemnity principle in relation to the type of conditional fee
agreement governed by the amended Regulations. Solicitors will to
this extent be able to agree lawfully with their clients not to
seek to recover by way of costs anything in excess of what the
court awards, or what it is agreed will be paid, and will no longer
be prevented from openly contracting with their clients on such
terms. The new CPR rule 43.2(3) and (4) provides that costs whose
recovery is lim