May 2004

    Butterworths Family and Child Law Bulletin – May
    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.

    Care proceedings

    Designation goes
    with residence when placement is with family

    Re H (a child) (care
    proceedings: designation of local authority)
    [2003]
    EWCA Civ 1629, [2004] 1 FCR 282, [2004] 1 FLR 534

    BFLS 3A[3023.1]; CHM 1[1015]

    In Re H (a child) (care
    proceedings: designation of local authority)
    [2003] EWCA Civ
    1629, [2004] 1 FCR 282, [2004] 1 FLR 534, the Court of Appeal held
    that the designated local authority for a care order was that in
    whose area the child was residing with his grandparents. The main
    family roots of the child in question were in Norfolk. His mother
    had taken him to Oxford for about a year of his life, where he
    suffered non-accidental injuries and was removed under police
    protection into foster care. Oxfordshire County Council were
    granted an interim care order and in subsequent proceedings Wall J
    ordered, against the opposition of Oxfordshire CC, that the child
    return to Norfolk to be cared for by his grandparents. The issue
    arose of which local authority should be designated under the care
    order. The Court of Appeal held that the boy was ordinarily
    resident in Norfolk and therefore Norfolk CC was designated
    (Children Act 1989, s 31(8)). They rejected the argument that
    residence in Norfolk should be discounted because it involved
    ‘accommodation by or on behalf of a local authority’
    (Children Act 1989, s 105(6)). Accommodation with the child’s
    family was not to be construed as being on behalf of the local
    authority, so the disregard of residence under s 105 did not apply
    (see also Hackney LBC v
    C
    [1997] 1 FCR 509).

    Comment: The Court of
    Appeal adopted this construction in order to preserve the
    simplicity of the test for designation. In the High Court, Hogg J
    had sought to relate the test to what was best for the boy rather
    than the fact of residence. In order to reconcile this with the
    case law, she had to characterise the case as
    ‘exceptional’ (see Northamptonshire CC v Islington
    LBC
    [1999] 3 FCR 385; C v Plymouth [2000] 2 FCR
    289). Thorpe LJ found that to accept this on the facts would be to
    negate the intention of the courts in the earlier decisions. The
    adoption of a simple factual test is calculated to avoid expensive
    court disputes, particularly where they are largely concerned with
    the question of which local authority should bear the financial and
    administrative burden of supporting the child. The norm is intended
    to be that the local authority in whose area the child currently is
    should carry these responsibilities. Local knowledge and proximity
    to the child make it more likely to be effective. Only where the
    place of residence is artificial as a result of a placement would
    the disregard of current residence, and its replacement by the
    place in which the circumstances leading to intervention arose,
    come into play.

    Human rights claims should
    normally be argued within family proceedings not as separate
    application

    Re L (care proceedings: human
    rights claims)
    [
    2003] EWHC 665 (Fam), [2004] 1 FCR
    289 (FD)

    BFLS 3A[3113], 5A[4057]; CHM 1[73]

    In Re L (care proceedings: human
    rights claims)
    [2003] EWHC 665 (Fam), [2004] 1 FCR 289 (FD)
    Munby J held that a free standing application based on s 7 of the
    Human Rights Act 1998 should not have been brought to challenge the
    care plan drawn up by the local authority in care proceedings. That
    care plan identified finding an adoption placement as the main
    priority and the mother sought to have long-term fostering made the
    first long-term option. Munby J considered four procedural options.
    The first was to raise the issue in the family proceedings pending
    under Part IV of the Children Act 1989. This could not in itself
    give the mother the remedy that she sought, as the court would have
    the power only to approve or refuse the care plan, not require it
    to be amended. The second was to use the inherent jurisdiction of
    the High Court, but this was barred in this case by s 100(2) of the
    Children Act 1989 because the child was in local authority care. In
    any event, the inherent jurisdiction could not be used to compel a
    local authority to exercise its discretion in a particular way (A v A Health Authority, re
    J
    [2002] EWHC 18 (Fam/Admin), [2002] 1 FCR 481). The third
    possible route, judicial review, could in principle be used to
    vindicate the mother’s Convention rights, but would normally
    be limited to quashing the care plan and requiring reconsideration
    rather than rewriting the plan itself. The fourth option was a
    remedy under section 8 of the Human Rights Act 1998. This could be
    based on a freestanding application under s 7, which would be the
    appropriate route if care proceedings had been ended. Where,
    however, care proceedings had not been concluded, the court could
    provide this remedy within the family proceedings and that should
    normally be the process adopted. To bring separate proceedings in
    this case had caused unnecessary delay.

    Comment: the
    President, Dame Elizabeth Butler-Sloss, has endorsed this
    procedural guidance and therefore it can be seen as having an
    authority tantamount to a practice note. It has also now been
    endorsed by the Court of Appeal (see Re V (Care Proceedings: Human
    Rights Claims)
    [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1
    FLR 944, [2004] 1 All ER 997, discussed below).

    Re V (Care Proceedings: Human
    Rights Claims)
    [2004] EWCA Civ 54, [2004] 1 FCR 338,
    [2004] 1 FLR 944, [2004] 1 All ER 997

    BFLS 3A[3113], 5A[4057]; CHM 1[73]

    In Re V (Care Proceedings: Human
    Rights Claims)
    [2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1
    FLR 944, [2004] 1 All ER 997 the Court of Appeal endorsed the view
    taken by Munby J in Re L
    (care proceedings: human rights claims)
    [2003] EWHC 665 (Fam),
    [2004] 1 FCR 289 (see above) that it was open to a court hearing an
    application for a care order to make an order under the Human
    Rights Act 1998 that parents’ human rights had been breached
    by a local authority. It also upheld his view that it was not
    necessary for cases in which such claims were raised to be
    transferred to the High Court. The dispute in the case revolved
    around the question of whether the parents should receive therapy
    to help them overcome their difficult personal histories (both had
    been abused as children and the father was a Schedule 1 offender).
    The local authority declined to fund anything more than a core
    assessment, which had concluded that the parents were not yet ready
    to engage in therapy. The parents claimed that the failure to fund
    therapy was a breach of their human rights under Art 8 of the
    European Convention on Human Rights and that the fact that the
    court had no power to require the local authority to fund such
    therapy made the Children Act 1989 incompatible with the
    Convention. They based this claim on the decision of the European
    Court of Human Rights in K
    & T v Finland
    [2001] 2 FCR 673, arguing that it placed
    upon the local authority a positive obligation to seek to
    rehabilitate the child with her parents. However, this claim was
    misconceived in that it had explicitly been acknowledged in the
    case that this obligation had to be balanced against the duty to
    consider the interests of the child. The facts of the Finland case
    were also very different in that no consideration had been given to
    the possibility of rehabilitation, whereas it was clear here that
    the possibility had been considered. There was no incompatibility
    between the human rights of the parents in this case and the powers
    of the court under the Human Rights Act 1998.

    Comment: The Court of
    Appeal endorsed the approach taken by Munby J in Re L (care proceedings: human
    rights claims)
    [2003] EWHC 665 (Fam), [2004] 1 FCR 289 that
    human rights issues should be taken within existing proceedings. It
    would be inappropriate to seek to separate out human rights points
    to be dealt with separately. That would cause inappropriate delay.
    It would also be inappropriate to transfer cases to the High Court
    merely because they raise human rights points. The only issue that
    is reserved to the High Court under the Practice Direction Human Rights Act 1998: citation
    of authorities
    [2000] 4 All ER 288 is the making of a
    declaration of incompatibility. The Court of Appeal indicated that
    it would not permit flimsy allegations that the Children Act 1989
    was incompatible to lead to transfer to the High Court. It saw the
    decision in Re S (children:
    care plan); Re W (children: care plan)
    [2002] UKHL 10, [2002]
    2 All ER 192 as establishing the main scheme of the Act was
    compliant. Cases where the issue was making sure that the terms of
    the Children Act were applied in a manner consistent with the
    Convention did not need to be transferred.

    Practice
    Directions

    Practice Direction: Children:
    Conciliation

    Issued by Philip Waller,
    Senior District Judge with the approval of the
    President

    12 March 2004,
    [2004] 1 FCR 781, [2004] 1 FLR 974

    This Practice
    Direction supersedes Practice Direction:
    Conciliation: Children
    made on 18 October 1991 ([1992] 1 All
    ER 431), which ceased to apply on 22 March 2004 save to cases
    pending on that date.

    The Direction
    extends the conciliation scheme in operation in the Principal
    Registry of the Family Division as from 22 March 2004. As from that
    date all applications for orders under sections 8 and 13 of the
    Children Act 1989 will be listed in the conciliation list. Cases
    where a district judge gives a direction under r 2.39(3)(c) of the FPR 1991
    (compliance with the MCA 1973, s 41) will be listed in the
    conciliation list unless otherwise directed. A summons for
    wardship, where section 8 orders are sought, may be referred by the
    district judge to the conciliation list, usually at the first
    appointment. Cases may be excluded or removed from the conciliation
    list if a district judge so directs.

    There will normally
    by five conciliation lists each week, two on Monday and Tuesday and
    one of Wednesday. The district judge will be attended by a CAFCASS
    officer. It is essential that both parties and any legal advisers
    attend. Te conciliation appointment will be conducted with a view
    to an agreement being reached and discussion away from the
    courtroom will be facilitated. All discussion will be privileged
    and will not be disclosed in any subsequent hearing or later
    application. The district judge and CAFCASS officer will not be
    involved in further hearings or applications between the
    parties.

    Children aged nine
    or over should attend to be seen by the CAFCASS officer (unless
    excused by direction of the district judge). Where such a child
    attends and there is a younger child to whom the application also
    relates, then that younger child may attend. Any application to
    adjourn a conciliation must be made to a district judge.

    If agreement is
    reached, the district judge will make any appropriate orders. If no
    agreement disposing of the application can be reached, then the
    district judge will give directions with a view to its early
    hearing and disposal.

    Practice Direction (Family
    Proceedings:
    Representation of children)

    Dame Elizabeth Butler-Sloss
    P

    5 April 2004, [2004]
    2 FCR 124

    This Practice
    Direction deals with the proper conduct and disposal of hearings
    where the child may need to be made a party to proceedings but
    where the proceedings are not specified proceedings within s 41 of
    the Children Act 1989. The President noted that this step would
    only be taken in a minority of cases where there are issues of
    significant difficulty. Before taking the decision, consideration
    should be given to whether and alternative route might be
    preferable, such asking a CAFCASS officer to carry out further
    work, a referral to social services, or by obtaining expert
    evidence.

    The decision to make
    a child a party is exclusively that of the judge, made in the
    interests of the child, taking into account any consequent delay.
    Illustrations of the circumstances that might justify making such
    an order would include:

    (1)      where a CAFCASS officer has
    notified the court that in their opinion the child should be made a
    party (see the FPR 1991, r 4.11B(6));

    (2)      where a child has a
    standpoint or interests which are inconsistent with or incapable of
    being represented by any of the adult parties;

    (3)      where there is an intractable
    dispute over residence and contact, including where all contact has
    ceased, or where there is irrational but implacable hostility to
    contact, or the child may be suffering harm associated with the
    contact dispute;

    (4)      where the views and wishes of
    the child cannot adequately be met by a report to the court;

    (5)      where an older child is
    opposing a proposed course of action;

    (6)      where there are complex
    medical or mental health issues, or other unusually complex issues
    that necessitate separate representation of the child;

    (7)      where there are international
    complications over child abduction, in particular where it may be
    necessary to have discussions with overseas authorities or a
    foreign court;

    (8)      where there are serious
    allegations of physical, sexual or other abuse in relation to the
    child or allegations of domestic violence not capable of being
    resolved with the help of a CAFCASS officer;

    (9)      where the proceedings concern
    more than one child and the welfare of the children is in conflict
    or one child is in a particularly disadvantaged position;

    (10)    where there is a contested
    issue about blood testing.

    When a child is made
    a party and a guardian is to be appointed first consideration
    should be given to appointing a CAFCASS officer and preliminary
    enquiries should be made of CAFCASS (see the Practice Note below
    for the procedure). If a CAFCASS officer cannot be appointed
    without delay or there is some other reason making such an
    appointment inappropriate, then r 9.5(1) makes further provision
    for the appointment of a guardian.

    Practice Note
    (CAFCASS)

    Issued by Charles Prest,
    Director of Legal Services, CAFCASS

    5 April 2004

    This Practice Note
    is issued in conjunction with the President’s Practice
    Direction of 5 April 2004 dealing with the making of children party
    to proceedings. It supersedes the earlier CAFCASS Practice Note of
    March 2001 ([2001] 2 FCR 562). It identifies that the decision of
    which officer is appointed is a matter for CAFCASS and gives the
    relevant contact details. A decision on appointment will be made
    within five days. For cases dealt with by a guardian based at
    CAFCASS Legal (as will be the norm in High Court proceedings) then
    there will not usually be a need for a separate solicitor to be
    appointed. Where a guardian based at a local CAFCASS office is
    appointed, then legal representation will be either through CAFCASS
    Legal or by the appointment of a local solicitor, normally
    appointed by the guardian and eligible to apply for legal aid in
    the normal way.

    The Practice Note
    also identifies other cases that should be referred to CAFCASS
    Legal:

    (1)      where CAFCASS Legal or the
    Official Solicitor has previously acted for the child;

    (2)   exceptionally complex
    international cases where there may need to be enquiries made
    abroad or where there is a dispute over jurisdiction;

    (3)   exceptionally complex adoption
    cases;

    (4)      all medical treatment cases
    where the child is old enough to be taken into account, or where
    there a particularly difficult cases such as withdrawal of
    treatment (where such issues arise in existing proceedings, the
    matter will usually continue to be dealt with locally but with
    support from CAFCASS Legal);

    (5)      any free standing Human
    Rights Act applications in which it is thought appropriate for
    CAFCASS Legal to be involved.

    On such referrals
    the same allocation procedure would be followed as for court
    referrals.

    Statutory
    Instruments

    The Tax Credits Up-rating
    Regulations 2004, SI 2004/941

    These Regulations,
    which came into force on 6 April 2004, amend reg 7(4) of the Child
    Tax Credit Regulations 2002, increasing the maximum rate of the
    individual element of a child tax credit. Regulation 3 and the
    Schedule amend Sch 2 to the Working Tax Credit (Entitlement and
    Maximum Rate) Regulations 2002 by substituting a new Table
    prescribing the maximum rates for the elements of working tax
    credit other than the child care element. Regulation 4 increases
    the first income threshold for those entitled to child tax credit
    in reg 3(3) of the Tax Credits (Income Thresholds and Determination
    of Rates) Regulations 2002.

    The Child Benefit and
    Guardian’s Allowance Up-rating Order 2004, SI
    2004/942

    These Regulations,
    which came into force on 12 April 2004, increase the weekly rate of
    guardian’s allowance prescribed in para 5 of Part III of Sch
    4 to the Social Security Contributions and Benefits Act 1992 from
    £11.55 to £11.85. Article 3 increases the weekly rates of
    child benefit prescribed in reg 2(1)(a)(I) and (b) of the Child
    Benefit and Social Security (Fixing and Adjustment of Rates)
    Regulations 1976. The effect is to increase the amount for the
    eldest or only child from £16.05 to £16.50 and for any
    other child from £10.75 to £11.05. Article 3 also
    confirms that the rate prescribed in 2(1)(a)(ii) (payable in
    respect of the eldest or only child living with a lone parent)
    remains £17.55. This is only payable in transitional cases
    where the rate was applicable in the case of a child who was living
    with a lone parent in 1998 and has continued to do so.

    The Civil Procedure
    (Modification of Supreme Court Act 1981) Order 2004, SI
    2004/1033

    This Order, which
    come into force on 1 May 2004, amends the Supreme Court Act 1981,
    and in particular ss 29 and 31, to provide that the orders of
    mandamus, prohibition and certiorari are to be known instead as
    mandatory, prohibiting and quashing orders, not just in that Act
    but in any primary or secondary legislation extending to England
    and Wales. Section 31(4) is amended to give the High Court, on an
    application for judicial review, the power to award restitution or
    the recovery of a sum due, in addition to the existing power to
    award damages.

    The Social Security
    (Miscellaneous Amendments) (No. 2) Regulations 2004, SI 2004/
    1141

    These Regulations,
    which came into force on 12 May 2004, amend the various benefit
    regulations to take into account the ‘Skipton Fund’, an
    ex-gratia payment scheme administered by the Skipton Fund Limited
    on behalf of the Department of Health for the benefit of persons
    who have contracted hepatitis C from NHS blood, blood products or
    tissue. In general, payments from the Fund will not reduce
    benefits. They will be disregarded when calculating a
    person’s capital or their income from capital. Amendments to
    the Recovery of Benefit Regulations include an exemption for
    payments made from the Skipton Fund from the compensation recovery
    scheme. Amendments to the Social Fund Maternity and Funeral
    Expenses Regulations provide that payments received from the
    Skipton Fund will not be deducted from an award of a funeral
    payment

    The Social Security (Habitual
    Residence) Amendment Regulations 2004, SI 200/1232

    These Regulations,
    which came into force on 1 May 2004, amend the Income Support
    (General) Regulations 1987, the Jobseeker’s Allowance
    Regulations 1996, the Housing Benefit (General) Regulations 1987,
    the Council Tax Benefit (General) Regulations 1992 and the State
    Pension Credit Regulations 2002 In particular, they amend the
    income-related benefit regulations with effect that no person shall
    be treated as habitually resident for the purposes of entitlement
    to income support, jobseeker’s allowance, housing benefit,
    council tax benefit and state pension credit unless they have a
    right to reside in the United Kingdom, the Channel Islands, the
    Isle of Man or the Republic of Ireland. They also extend the
    exception to the habitual residence test to include certain persons
    treated as workers from countries acceding to the European Union
    from 1 May 2004 in accordance with the Accession (Immigration and
    Worker Registration) Regulations 2004.

    The Tax Credits (Miscellaneous
    Amendments No 2) Regulations 2004, SI 2004/1241

    These Regulations,
    which came into force on 1 May 2004, amend the Tax Credits (Claims
    and Notifications) Regulations 2002 and the Tax Credits (Payments
    by the Board) Regulations 2002. Regulation 3 amends reg 21 of the
    Claims and Notifications Regulations, adding additional
    circumstances in which a claimant is required to notify the Board
    about a change in his entitlement to a tax credit. Regulation 4
    inserts a new reg 29A into Part 4 of the Claims and Notifications
    Regulations specifying the form of a certificate of birth or
    adoption to be provided to the Board in response to a notice under
    s 14(2)(a), 15(2)(a) or 16(3)(a) of the Tax Credits Act 2002.
    Regulation 5 amends reg 3 of the Payments by the Board Regulations.
    As amended this provides that, where the members of a married or
    unmarried couple are for the time being resident at the same
    address, the tax credit shall be paid to the member of the couple
    whom they jointly identify. In default of such a member being
    identified, the tax credit is payable to the member appearing to
    the Board to be the main carer. It further provides that in a case
    where the members of a couple are living at different addresses,
    the member to whom the tax credit is payable is the member
    appearing to the Board to be the main carer.

    The Tax Credits (Residence)
    (Amendment) Regulations 2004, SI 2004/1243

    These Regulations,
    which came into force on 1 May 2004, amend the Tax Credits
    (Residence) Regulations 2003. Section 3(3) of the Tax Credits Act
    2002 requires a claim for a tax credit to be made jointly by a
    married couple or unmarried couple, both of who are aged at least
    16 and are in the United Kingdom, or by a single person who is aged
    at least 16 and is in the United Kingdom. Section 3(7) gives the
    Treasury power to prescribe circumstances in which a person is
    treated as being, or not being, in the United Kingdom. The
    principal Regulations introduce an ordinary residence test.
    Regulation 3 adds a new reg 3(5) to the principal Regulations. The
    main effect of the amendment is that, where a person claims child
    tax credit (as opposed to being treated as making a claim) on or
    after 1 May 2004, he or she must have a legal right to reside in
    the United Kingdom. The legal right to reside may arise under
    either domestic or EC law.

    The Child Benefit (General)
    (Amendment) Regulations 2004, SI 2004/1244

    These Regulations,
    which came into force on 1 May 2004, amend the Child Benefit
    (General) Regulations 2003. Section 146(2) of the Social Security
    Contributions and Benefits Act 1992 provides that no person shall
    be entitled to child benefit unless he or she is in Great Britain
    in that week. Subsection (3) of each section gives power (now
    vested in the Treasury) to prescribe circumstances in which a
    person is treated as being, or not being, in the relevant country.
    Regulations 21 and 25 of the principal Regulations introduce an
    ordinary residence test. Regulations 3 and 4 of these Regulations
    add new regs 21(4) and 25(3) to the principal Regulations. The main
    effect of the amendments is that, where a person claims child
    benefit on or after 1 May 2004, he or she must have a legal right
    to reside in the United Kingdom. The legal right to reside may
    arise under either domestic or EC law.

    Recent articles on family and
    child law

    Contact enforcement and
    parenting programmes – policy aims in confusion?
    Helen
    Rhoades (2004) 16 CFLQ 1

    Risks and responsibilitie4s
    – the role of the local authority lawyer in child care
    cases
    Jonathan Dickens (2004) 16 CFLQ 17

    Equity’s children –
    constructive trusts for the new generation
    Carline Sawyer
    (2004) 16 CFLQ 31

    Re O & N; Re B –
    Uncertain evidence and risk taking in child protection cases

    Mary Hayes (2004) 16 CFLQ 63

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