June 2004

    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
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    [2004] Fam Law 368

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