December 2004

    Butterworths Family and Child Law Bulletin

    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.

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    • • Domestic violence

    Harassment incidents must be linked

    R v Patel (Nitin) (2004) Times, 29 November, CA

    BFLS 1A[4136]; CHM 7[303.1]

    In R v Patel (Nitin) (2004) Times, 29 November, CA Crim, a
    conviction for harassment under the Protection of Harassment Act
    1997, s 2(1) was quashed as unsafe. The jury had acquitted the
    accused on the charge of putting a person in fear of violence by
    harassment (under s 4 of the Act). There was a risk that the
    conviction under s 2 had been based on two or three incidents
    separated in time and to some extent context. The judge had failed
    to direct the jury sufficiently clearly on the need for a
    connection in type and in context between the incidents so that the
    conclusion that they amounted to a ‘course of conduct’
    could be justified.

    Comment: The defence denied the wife’s
    claims of six incidents over eight months. The judge had referred
    to the need to find a ‘course of conduct’ which
    involved conduct on at least two occasions. However, he did not
    appear to explain what was required to make isolated actions amount
    to a course of conduct.

    • • Family property

    Limits of estoppel interest

    Wormall v Wormall (2004) Times, 1 December, CA

    BFLS 4A[81]

    In Wormall v Wormall (2004) Times, 1 December, CA a father allowed
    his daughter to use his farm property for her business as long as
    the farm remained a family farm. This created an estoppel in her
    interest and protected her against eviction. However, it did not
    create any right to compensation when she was asked to give vacant
    possession so that the farm could be sold to satisfy a court order
    for financial relief in divorce proceedings. The court should
    approach estoppel cases so as to provide the minimum equity
    necessary to do justice (Crabb v Arun DC [1976] Ch 179, 198;
    Jennings v Rice [2003] 1 FCR 501). In this case, the father had led
    the daughter to believe that she could use the property only so
    long as it remained a family farm, and not beyond. The breakdown of
    the marriage meant that it could no longer be used in that capacity
    and had to be sold to meet the financial relief.

    Comment: Estoppel is a flexible, and sometimes
    unpredictable, doctrine, but interference with property rights
    should be kept to a minimum. This case identified the
    representation made by the father to the daughter and protected her
    rights within the scope of the promise, but declined to give it
    greater value than was commensurate with the duration envisaged
    when the promise was made.

    • • Child support

    Scope of ‘benefit’ to child under Childen Act
    1989, Sch 1

    Re S (a child) (financial provision) (2004) Times, 15
    November, CA

    BFLS 4A[488]; CHM 4[2]

    In Re S (a child) (financial provision) (2004) Times, 15 November
    the Court of Appeal held that ‘benefit’ for the child
    in the Children Act 1989, Sch 1, para 1 had to be given a wide
    meaning and could extend to making financial provision to enable a
    mother to travel to Sudan to see her child, who was being
    unlawfully retained by his father. In the High Court, Bracewell J
    had taken the view that this travel was for the benefit of the
    mother and that applications in respect of children living abroad
    were constrained by Sch 1, para 14. Paragraph 14 allowed orders
    only against the parent living in England and Wales. Thorpe LJ
    noted that the child had suffered the great disbenefit of
    separation from his mother. Part of the mother’s objective in
    making her application was to travel to see the child and pursue
    her rights in respect of his care, denied from an order in her
    favour in the Sudanese court. Paragraph 14 could not sensibly be
    construed to prevent an application under Sch 1 by a parent who had
    been left in the jurisdiction after the other parent left with the
    child.

    Comment: One interesting feature of this case is
    the prospect that it opens up of ordering financial support for the
    carers of children under Sch 1 to the 1989 Act. If it can be said
    to be in the child’s interests for the mother in this case to
    travel to see her son, could the costs of contact visits or even
    loss of earning potential, when parents give up work to look after
    children, also be included?

    • • Public law proceedings

    Re V (a child) (Care: Pre-birth actions) (2004) Times, 1
    December, CA

    BFLS 5A[4306]

    In Re V (a child) (Care: Pre-birth actions) (2004) Times, 1
    December, CA a pre-birth child protection case conference had been
    held, which the parents attended. The parents had been advised of
    their options and the local authority’s intentions had
    clearly been set out in a letter. After the birth, the local
    authority sought and was awarded a care order, but the judge made
    an award of £100 damages to each of the parents for breaches
    of their rights under Art 6 of the European Convention on Human
    Rights. The Court of Appeal found this award ‘truly
    startling’. Any criticisms that the judge might have had of
    the process could not be said to have made the proceedings unfair.
    Acts before the initiation of proceedings could not constitute a
    breach of the fair trial provisions of Art 6.

    Comment: The Court of Appeal expressed concern at
    the resources being used up by long trials of alleged breaches of
    Arts 8 and 6 in care proceedings. They had been told of the
    encumbrance of applications for care orders by hearing such
    actions, that ultimately proved wasted time and expense. In the
    specific circumstances of this case, it could be observed that
    there is sufficient opportunity for any unfairness in early
    processes to be corrected in the legal proceedings. Thus,
    procedural failures prior to the initiation of proceedings should
    rarely lead to compensation. The proper approach is to ensure that
    any failures are corrected, perhaps with a remedy in costs if an
    extended hearing is required to achieve this.

    Leave refused to make aunt a party

    Re W (a child) (Care Proceedings: Leave to Apply) (2004)
    Times, 22 November, FD

    BFLS 3A[3046]; CHM 1[957]

    In Re W (a child) (Care Proceedings: Leave to Apply) (2004) Times,
    22 November, FD, Sumner J considered the test to be applied when
    the court considered its discretion whether to join a person as a
    party to family proceedings. The test was the same for both private
    and public law proceedings. The application had been made by the
    child’s aunt who believed that her views would not be taken
    into account and she would become marginalised in the child’s
    life if she were not a party to the proceedings. The application
    was opposed by the local authority and the children’s
    guardian, although it was supported by the maternal grandmother
    (the aunt’s own mother). It was accepted that the aunt
    required leave if she was to be made a party to the proceedings. It
    was also accepted that the criteria set out in the Children Act
    1989, s 10(9) were applicable to applications for joinder in public
    law proceedings (see Re M (Care Proceedings: Contact:
    Grandmother’s application for leave) [1995] 2 FLR 86).  Under
    those principles the prospective party did not have to show a real
    prospect of success, but if the prospect of success was remote and
    obviously unsustainable, the application should be dismissed (after
    a full inquiry: Re J (Leave to issue application for residence
    order) [2003] 1 FLR 114, 118). Although not mentioned in s 10(9),
    one relevant factor was whether the applicant had any separate
    point to put forward. Where the applicant’s interests were
    identical to another party’s, then leave would be unlikely to
    be granted. Here there was no material difference between the cases
    of the applicant and the maternal grandmother, who was already a
    party. The aunt could be called as a witness in support of the
    maternal grandmother’s submissions. There was no need to make
    the aunt a party.

    Comment: Sumner J expressed the view that the test
    would not be different for cases where the applicant for party
    status sought a court order from where participation was wanted.
    Clearly the meaning of the test for probability of
    ‘success’ will be different in these two circumstances.
    However, the important issue is perhaps whether the court will be
    able to take full account of the relevant circumstances without
    granting party status. In this case, the ability of the aunt to
    give evidence as a witness within the grandmother’s case
    ensured that the court would not be prevented from hearing relevant
    material. Once that was secured, there was little value in
    increasing the number of parties.

    Apportioning costs of joint report

    Calderdale MB v S (2004) Times, 18 November, FD

    CHM 1[1447.2]

    In Calderdale MB v S (2004) Times, 18 November, FD the court had
    agreed to a joint instruction for a psychological assessment. The
    issue arose as to how the costs of that report should be
    apportioned. It was accepted that the court’s agreement did
    not constitute an order under s 38(6) of the Children Act 1989,
    which would have led to the report being made at the sole expense
    of the local authority. The Legal Services Commission, which funded
    the mother, the father and children’s guardian in the case,
    argued that the local authority should be solely responsible for
    the costs of the report as it should reasonably have covered the
    ground as part of its core assessment and preparation. Bodey J
    found that a number of considerations were relevant. First, the
    court should exercise its discretion to apportion the costs fairly
    and reasonably, having regard to the reasonableness of how and with
    what degree of competence and thoroughness the local authority had
    conducted the information gathering process. Where the work would
    normally be expected to be undertaken as part of the local
    authority’s core preparation then it would almost certainly
    be required to pay the whole of the costs. Second, the extent to
    which the report went merely to satisfying the threshold for state
    intervention as distinct from helping the court decide on the
    ultimate disposal in the child’s best interests. Third,
    whether the report was from a treating expert as opposed to a
    forensic expert brought in to give an overview to the court. In the
    former case, it would be more likely that the report would be paid
    for by the local authority, in the latter costs would be more
    likely to be shared. Fourth, the fact that parties were publicly
    funded should not change the decision about costs that would
    otherwise have been made (Access to Justice Act 1999, s 22). The
    Family Proceedings Court had ordered the Legal Services Commission
    to pay half of the costs of the report and the local authority to
    pay the other half. That was out of step with the conventional
    approach to costs and inappropriate. If costs were to be shared it
    was on the basis of the parties not the funders. The appropriate
    apportionment was therefore one quarter to each of the four
    parties, in effect one quarter to the local authority and three
    quarters to the Legal Services Commission.

    Comment: Bodey J was careful to point out that the
    issue was one of discretion and that the considerations that he had
    identified were not exhaustive. He also suggested that wherever
    possible questions of apportionment should be resolved by agreement
    in a collaborative way, before rather than after the expert was
    jointly instructed.

    • • Private law proceedings

    Judge failed to explain alteration of status quo against
    welfare recommendation

    Re M (Children) (Residence) (2004) Times, 5 November,
    CA

    BFLS 3A[5624]; CHM 1[1268]

    In Re M (Children) (Residence) (2004) Times, 5 November the Court
    of Appeal upheld a mother’s appeal against the decision of
    the county court to grant a residence order to the father, contrary
    to the recommendation of the CAFCASS officer. The judge had not
    explained why he had departed from the recommendation and had not
    even inferentially dealt with the fact that his order shifted the
    established pattern of care.
    Comment: Both the points noted by Thorpe LJ are significant.
    Departing from the recommendation of the CAFCASS officer, who will
    have had a more extensive opportunity to investigate the issues, is
    entirely within the prerogative of the court, but reasons need to
    be set out to explain why the judge saw the case differently.
    Without this, the reasons for the judge’s view, usually
    inferred from concurrence with the welfare recommendation, will not
    be apparent. Similarly, maintaining the current child care
    arrangements can be readily seen as implying an assessment that the
    children’s interests are currently adequately served. Parties
    could reasonably expect an explanation of why that is not thought
    to be the case, or why the new arrangements would better serve the
    children’s interests, if a change is proposed by the court.
    Without such reasons being apparent, it would not be possible to
    challenge a decision through appeal.

    Relevance of residence order to housing decisions

    R (Bibi) v Camden LBC (2004) Times, 25 October, QBD

    BFLS 3A[2262]; CHM 1[1541]

    In R (Bibi) v Camden LBC (2004) Times, 25 October, QBD, Davis J
    quashed the decision on the Borough Council to offer the applicant
    only one bedroom accommodation even though her several children
    were subject to a family court order dividing residence between her
    and their father. He did not accept that the authority was obliged
    to offer three-bedroom accommodation merely because of the
    residence order. However it was a factor that was material to
    housing considerations. The decision could not stand as it took
    into account matters that were wrong or irrelevant.
    Comment: Davis J suggested that where joint
    residence was proposed the court should be provided with details of
    the precise housing expected. Where this raised doubts, the family
    court might invite representations from the relevant local
    authority. This enables the courts to avoid the criticism that they
    are forcing housing authorities to make inappropriate allocations
    while still ensuring that full information is before them.

    Test for temporary removal of child

    Re Auld (Child: Temporary Removal from Jurisdiction) (2004)
    Times, 10 November, CA

    BFLS 3A[1219]; CHM 1[169]

    In Re Auld (Child: Temporary Removal from Jurisdiction) (2004)
    Times, 10 November the Court of Appeal held that the considerations
    relevant to permission to remove the child temporarily from the
    jurisdiction were not necessarily the same as those applicable to
    permanent relocation. The judge had been misled by relying only on
    Payne v Payne [2003] Fam 471 and other cases on permanent
    relocation. The Court of Appeal allowed the mother’s appeal
    against the refusal of the court to permit her to take her daughter
    with her to South Africa for a period not exceeding two years to
    undertake research for her PhD. The court needed to balance the
    significant impact of refusing the mother’s application
    against the impact of moving the child for two of her early years.
    A practical view should be taken, taking into account all the
    possibilities for direct and indirect contact, including telephone
    and email.
    Comment: This brief report does not make it clear
    what arrangements could be established for direct contact with the
    father, who was not married to the mother but held parental
    responsibility under an order made by consent. Nor was it clear how
    familiar the methods of indirect contact would be to the girl in
    question, who was four years old. Once the full judgment is
    reported it may become clearer what the actual test was, and
    whether it drew on the approach set out in Payne, but with the
    balance more easily tipped in favour of the residential
    parent.

    • • International child abduction

    Application for return after 12 months

    Cannon v Cannon (2004) Times, 28 October, CA

    BFLS 5A[2154]; CHM 2[62]

    In Cannon v Cannon (2004) Times, 28 October the Court of Appeal
    considered Hague Convention proceedings where it was more than one
    year since the wrongful removal of the child. Under Art 12 of the
    Hague Convention where proceedings are commenced more than twelve
    months after the removal the court ‘shall order the return of
    the child, unless it is demonstrated that the child is now settled
    in its new environment’. The mother had wrongfully removed
    the child from the USA to England in July 1999 and deliberately
    concealed their whereabouts from the father until October 2003 by
    assuming new identities. Two questions arose. First, whether on the
    facts the girl was settled in her new environment. In the High
    Court, Singer J had held that this was to be determined by
    reference only to the physical characteristics of settlement. The
    Court of Appeal allowed the father’s appeal. Thorpe LJ held
    that equal regard had to be given to emotional and psychological
    elements as well as the physical and temporal elements of the stay
    in England. In cases of concealment and subterfuge, the burden of
    establishing that the child was settled was much increased. He drew
    a parallel with the establishment of habitual residence. It had
    been established that a fugitive from foreign justice could not
    obtain such residence by reliance on the time period during which
    she had outwitted the authorities (Puttick v AG [1980] Fam 1). Such
    a fugitive would be in a state of mental readiness to move on
    before approaching arrest and would often not be settled in a
    psychological sense. The second point concerned whether the court
    had a residual discretion whether to return the child even where
    settlement was established. Singer J had found that it did not.
    However, the Court of Appeal held that there was such a
    discretion.
    Comment: It would have been possible to argue this
    case slightly differently, building on the aspect of the Puttick
    case that concerned the policy of ensuring that litigants cannot
    use the terms of a statute to benefit from their own wrongdoing. In
    this case, the delay in bringing proceedings was due to the
    mother’s subterfuge. It could be said to be contrary to
    public policy to allow her to plead the consequences of that deceit
    as the basis for her resistance to the child’s return (see
    Tinsley v Milligan [1993] 3 All ER 65).

    • Statutes

    Domestic Violence, Crime and Victims Act 2004 (c
    28)

    The Domestic Violence, Crime and Victims Act 2004 makes significant
    reforms to the protect the victims of domestic violence. It
    includes the insertion of a new Family Law Act 1996, s 42A creating
    an offence of breaching a non-molestation order and also creates an
    offence of causing or allowing the death of a child or vulnerable
    adult (s 5). The protection of Part IV of the 1996 Act is extended
    in a number of respects, to include same-sex couples and also
    couples with an intimate relationship of significant duration even
    when they have not cohabited.

    Children Act 2004 (c 31)

    The Children Act 2004 introduces a number of changes to the way in
    which children’s services are organised. It establishes a
    Children’s Commissioner for England, requires the creation of
    Local Safeguarding Children Boards in all areas of England,
    provides for information databases to reduce the risk that children
    are lost within the system or agencies fail to identify multiple
    contacts with the same child. Amendments are also made to the
    notification scheme for private fostering and the rights of parents
    to administer reasonable punishment are redefined.

    Civil Partnership Act 2004 (c 33)

    This Act provides for civil partnerships for same-sex couples in a
    form that is based on the legal consequences of marriage. A
    ‘civil partnership’ is a relationship between two
    people of the same sex, formed by registration and ending only on
    death, dissolution or annulment. Couples may not be registered if
    either of them is already a civil partner or lawfully married,
    under 16 or within the prohibited degrees of relationship (see Sch
    1, Pt 1). Formalities for the registration process are prescribed,
    which approximately equate with the civil preliminaries for
    marriage. Provision is made for dissolution of registered
    partnerships on a basis that approximates the ground for divorce,
    being irretrievable breakdown proved by one of a prescribed list of
    ‘facts’, including ‘that the respondent has
    behaved in such a way that the applicant cannot reasonably be
    expected to live with the respondent.’ There is provision for
    nullity proceedings on a range of grounds, some of which make the
    partnership void and some of which may make it voidable. Provision
    is made in relation to the property rights of civil partners which
    approximately equate with those relating to married couples,
    including the discretionary distribution of financial resources on
    the dissolution of a partnership.

    • • Statutory Instruments

    The Social Fund Cold Weather Payments (General) Amendment
    Regulations 2004, SI 2004/2600

    These Regulations, which came into force 1 November 2004, amend the
    Social Fund Cold Weather Payments (General) Regulations 1988 to
    extend the prescribed description of persons who may receive cold
    weather payments. They also amend the 1988 Regulations in relation
    to the lists of weather stations and applicable postcode districts
    in Sch 1 to those Regulations.
    Regulation 2 adds to the persons to whom payment may be made under
    the 1988 Regulations, persons awarded income support, state pension
    credit or income-based jobseeker’s allowance who are also
    entitled under the Child Tax Credit Regulations 2002 to an
    individual amount of child tax credit for a child or qualifying
    young person who is disabled or severely disabled.
    Regulation 3 replaces Sch 1 to the principal Regulations with the
    Schedule to these Regulations. The new Schedule largely re-enacts
    the list contained in the former Sch 1,but provides for certain
    changes to the postcode and weather station linkages.

    The Community Legal Service (Financial) (Amendment)

    Regulations 2004 SI 2004/2899

    These Regulations, which came into force on 30 November 2004, amend
    the Community Legal Service (Financial) Regulations 2000 which
    govern the financial aspects of the provision of services funded by
    the Legal Services Commission. A new reg 5D is inserted in the 2000
    Regulations in order to implement Arts 3(4) and 5(4) of Council
    Directive 2002/8//EC of 27 January 2003 about the provision of
    legal aid for cross-border disputes. New reg 5D requires the Legal
    Services Commission to waive the normal financial eligibility
    criteria and requirement to pay contributions, where a client who
    is domiciled or habitually resident in another Member State applies
    for funded services in connection with a cross-border dispute and
    proves that he is unable to pay the cost of proceedings in England
    and Wales, or contributions, as a result of differences in the cost
    of living between his Member State and England and Wales. These
    amendments apply in relation to applications for services made to
    the Commission on or after 30 November 2004. An amendment is also
    made to reg 19 of the 2000 Regulations, which specifies payments to
    be disregarded in calculating a person’s income, to
    substitute ‘carer’s allowance’ for ‘invalid
    care allowance’.

    The Child Abduction and Custody (Parties to
    Conventions)

    (Amendment) Order 2004,SI 2004/3040

    This Order, which was made on 17 November 2004, amends the Child
    Abduction and Custody (Parties to Convention) Order 1986 to add
    Brazil and Lithuania to the list of Contracting States to the
    Convention on the Civil Aspects of International Child Abduction
    1980 (The Hague Convention)  and to add Lithuania to the list of
    Contracting States to the European Convention on Recognition and
    Enforcement of Decisions concerning Custody of Children and on
    Restoration of Custody of Children, signed at Luxembourg on 20 May
    1980.

     

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