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
Cynam
[2004] Fam Law 368