January 2005

    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.

    Filing instructions

    Butterworths Family Law Service Please file Butterworths Family and Child Law Bulletin 84 immediately after the Bulletins guide card, and in front of Bulletin 83. Binder 7 should now contain Butterworths Family and Child Law Bulletins 74–84.

    Clarke Hall and Morrison on Children Please file Butterworths Family and Child Law Bulletin 84 immediately after the Bulletins guide card, and in front of Bulletin 83. The Bulletins, Tables and Index Binder should now contain Butterworths Family and Child Law Bulletins 74–84.

    Correspondence about the contents of this Bulletin should be sent to Maria Skrzypiec, Laws Group, LexisNexis Butterworths, Halsbury House, 35 Chancery Lane, London WC2A 1EL (tel 01424 434483).

    Subscription and filing enquiries should be directed to LexisNexis Butterworths Customer Services Department, 2 Addiscombe Road, Croydon, Surrey, CR9 5AF (tel 020 8662 2000).

    © Reed Elsevier (UK) Ltd 2005
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    • • Judicial News
    Lord Justice Potter has been appointmented as the new President of the Family Division (following the retirement of Dame Elizabeth Butler Sloss GBE on 6 April this year) and Lord Justice Thorpe to the new post of Deputy Head of Family Justice and Head of International Family Law.

    • • Enforcement

    Restrictions on variation application by husband in contempt of court

    Mubarak v Mubarak [2004] EWHC 1158 (Fam), [2004] 2 FLR 932, FD

    BFLS 4A[1842]

    In Mubarak v Mubarak [2004] EWHC 1158 (Fam), [2004] 2 FLR 932, FD Ryder J confirmed that the principles of law derived from Lord Denning’s dictum in Hadkinson v Hadkinson [1952] P 285, concerning the discretion of the court to refuse to entertain an application from a party who is in contempt of court, remained good law following the implementation of the Human Rights Act 1998. In earlier proceedings in respect of the divorce, the Court of Appeal had found that the husband had applied a dishonest litigation strategy. When he failed to make the payments ordered, the wife brought enforcement proceedings. The husband made an application for variation of the payments and the wife asked the court to refuse to hear, or at least impose conditions upon, that application on the basis of his contempt. Having reviewed the authorities, including the use of the power in similar family proceedings in Baker v Baker (No 2) [1997] 1 FLR 148, Ryder J was satisfied that it was relevant to the case before him. He did not accept that there was a breach of Art 6 of the European Convention on Human Rights. There was no unfettered right of access to the courts. The restrictions proposed were for a legitimate aim and the court had a discretion to resatrict the husband’s applicaton. A series of questions had to be asked:

    (a) was the husband in contempt? He was by reason of his failure to pay the lump sum ordered;

    (b) was there an impeditment to the course of justice. Ryder J found that the continued non-payment was a serious impediment to justice;

    (c) was there any other effective means to ensure compliance with the earlier court order? The voluminous court enforcement papers indiated that other means had proved ineffective;

    (d) was the contempt wilful (ie contumacious and continuing)? Ryder J did not accept that the husband lacked the means to pay. Consequently, the contempt was wilful.

    The court was therefore able to exercise the discretion to refuse to hear the husband’s case. Ryder J imposed conditions on the husband’s application in order to ensure a fair trial of the current and future applications, including enforcement. 

    Comment: The conditions finally imposed are not reported, but the proposals were (a) that the husband notify the trustees of the funds in which his rights were disputed that he was bound by the findings in earlier liltigation that his adopted brother had no interest in the trust; (b) that the husband should not oppose an order of the court that any act excluding the wife from the trust should be set aside; (c) that the husband should not oppose any order lifting restrictions on the wife bringing enforcement proceedings in respect of the trust.

    • • Property

    Quantification of ‘fair’ shares under common intention constructive trust

    Oxley v Hiscock [2004] EWCA Civ 546, [2004] 2 FCR 295, [2004] 3 All ER 703, [2004] 2 FLR 669

    BFLS 4A[38]

    In Oxley v Hiscock [2004] EWCA Civ 546, [2004] 2 FCR 295, [2004] 3 All ER 703, [2004] 2 FLR 669 the Court of Appeal reviewed the law on constructive trusts of family homes. It held that the court needed first to consider whether there was a common intention, communicated between the parties, that each should have a beneficial interest in the property. Such an intention was inferred from financial contributions made by Ms Oxley despite her decision not to take the legal advice she was given to make the agreement explicit. The second issue to be considered was the quantification of the respective shares. While this might be determined by specific agreement between the parties, in the absence of express discussion, the parties would be entitled to the share which the court considered fair having regard to the whole course of dealing between them. On the facts of the case, a fair division was 40% to the woman and 60% to the man. This was based on a rough calculation of their direct contributions to the purchase price, together with an equal contribution to the balance secured on a mortgage, para [72].

    Comment: This decision demonstrates the current dominance of the common intention constructive trust, and in particular the use of Grant v Edwards [1986] 2 All ER 426 as the key Court of Appeal authority interpreting the speeches of the House of Lords in Gissing v Gissing [1971] AC 886. The Court of Appeal argued that there were no significant differences between the rules of estoppel and constructive trusts in this context, although the estoppel cases that were analysed were limited. The principal reason for this view was the lack of realism in the idea that there would be an agreement about shares from the outset, as suggested in Midland Bank v Cooke [1995] 4 All ER 562. That approach makes sense when the reason for enforcing the constructive trust is that one party has taken an unconscionable advantage of the fact that the trust would ordinarily fail for want of the proper legal formalities. In such a case perfecting the trust by supplying its terms as to quantification seems preferable to allowing one party to take it all. However, where, as here, the claimant had chosen to ignore legal advice and leave the normal rules of property law to apply, it could be argued that it is consequently not unconscionable to apply those rules. Arguably, in this case there was clear evidence of an intention to do just that. Of perhaps greater significance for the future is the difficulties that will present the courts with determining what is a ‘fair’ share. It seems that in this case the thrust of the Court of Appeal’s approach was to reflect the implicit intentions of the parties, taking their relationship with each other as a whole. Following the initial direct contributions to the purchase, which the Court of Appeal attributed to the parties separately, they seemed to live their lives as a partnership, so the balance of the purchase price paid through a mortgage was seen as the product of an equal partnership and therefore attributed to each of the parties equally.

    • • Human Rights

    Positive human rights obligation to overcome non-cooperation

    Maire v Portugal (Application No 48206/99) [2004] 2 FLR 653 (ECHR)

    BFLS 5A[4343]; CHM 1[4002], 2[60.3]

    Maire v Portugal (Application No 48206/99) [2004] 2 FLR 653 is another case in which the European Court of Human Rights has held that a state was in breach of the European Convention on Human Rights by failing to enforce child law orders. Article 8 of the ECHR requires states to take positive steps to ensure that children are united with their parents. It took over four years for the Portuguese authorities to locate the mother and child after a request had been made to them. There were inadequate sanctions to deal with the mother’s non-cooperation.

    Comment: The Government’s proposals for improving enforcement procedures in contact cases were published on 18 January 2005 and draft legislation is expected to be published shortly for pre-legislative scrutiny.

     • Statutory Instruments

    The Family Proceedings Fees Order 2004, SI 2004/3114

    This Order replaces the Family Proceedings Fees Order 1999 (SI 1999/690) and specifies the fees payable for family proceedings in the High Court and in county courts. Some of the fees have increased with effect from 4 January 2005.

    The Courts Act 2003 (Commencement No 8, Savings and Consequential Provisions) Order 2004, SI 2004/3123

    This Order brings into force on the 4 January 2005 s 92 of the Courts Act 2003 (Fees) and with savings the following minor and consequential amendments and repeals:

    — in Sch 8, the amendments in paras 263, 276, 277 and 278(b);

    — in Sch 10, the repeals of s 130 of the Supreme Court Act 1981, s 128 of the County Courts Act 1984, s 41 of the Matrimonial and Family Proceedings Act 1984 and the repeal of the definition of ‘fees orders’ in s 147(1) of the County Courts Act 1984;

    and provides for a consequential amendment to the Parental Responsibility Agreement Regulations 1991.

    The Child Minding and Day Care (Disclosure Functions) (England) Regulations 2004, SI 2004/3136

    Under the Children Act 1989 (c 41), Her Majesty’s Chief Inspector of Schools (‘the Chief Inspector’) has the function of regulating the provision of day care and child minding for children under the age of eight in England. These Regulations, made under s 79N(5) of the Children Act 1989, give the Chief Inspector the additional function, in prescribed circumstances, of disclosing to parents, the police and various organisations concerned with the provision of care for, or with protecting, children certain information gathered while regulating such childcare.

    Regulation 5 sets out the circumstances in which the Chief Inspector must disclose information to the parents of children who are being, or have been, provided with child care. Regulation 5(3) describes the information that is to be disclosed. Regulation 5(4) protects from disclosure without consent the identity of other children and their parents and lifts the requirement to disclose in the case of any information that the Chief Inspector considers unreliable because of its age or the source of it or because it is not adequately substantiated.

    Regulation 6 sets out the circumstances in which the Chief Inspector must disclose information to childcare organisations listed in the Schedule to the Regulations (and which include early years development and childcare partnerships, fostering agencies and voluntary adoption agencies as well as local authorities carrying out certain of their functions in relation to children) and the information that is to be provided in those circumstances. There is protection from disclosure without consent of the identity of other children and their parents and the Chief Inspector is not required to disclose information that he considers unreliable because of its age or the source of it or because it is not adequately substantiated.

    Regulation 7 sets out the circumstances in which the Chief Inspector must disclose information to child protection agencies (bodies or organisations within the United Kingdom that have statutory functions relating to the protection of children) and to the police and the information the Chief Inspector must disclose to them.

    Regulation 8 provides for disclosure of information to other government departments and to local authorities carrying out statutory functions other than as ‘childcare organisations’ (to which reg 6 applies).

    Regulation 4 affects the extent of the duty to disclose in each of these cases. It lifts the duty: in any case where the Chief Inspector is not satisfied that the interests of a child, or of children in general, will be served by the disclosure; where the Chief Inspector has already made the disclosure to the person or organisation to whom it would otherwise have to be disclosed; and where the information is already reasonably available to the person or organisation or where the disclosure would involve disproportionate effort or expense. The regulation also lifts the duty to disclose where the Chief Inspector judges that the information is sought for the purpose of commencing, or considering commencing, a civil action, whether against the Chief Inspector or another person or body, so that the law relating to the extent of any duty to disclose in such circumstances is undisturbed. The regulation also lifts the duty to disclose in any case where the law other than the Data Protection Act 1998 or an order of a court requires the Chief Inspector not to do so.

    The Regulations came into force on 30 December 2004.

    The Adoption and Children Act 2002 (Commencement No 7) Order 2004, SI 2004/3203

    This Order is the seventh Commencement Order made under the Adoption and Children Act 2002. Article 2(1) brought into force on 7 December 2004 the following provisions of the Act:

    as respects England and Wales:

    — s 2(1)–(5), (7) and (8) (basic definitions);

    — s 45 which enables regulations to be made in respect of the suitability of adopters;

    — s 108 which enables regulations to make various provisions to give effect to orders made in the Isle of Man or the Channel Islands;

    — s 122(1)(b) and (2) (interests of children in proceedings); and

    for the purposes only of making regulations:

    — s 44 (prescribed references and cases to the appropriate local authority to which notice of intention to adopt is to be given in non- agency cases);

    — ss 77(3), 78(3), 79(5) and (7)–(9), 80(2), (4) and (6) and 81(4) and paras 1 and 3 of Sch 1 and para 1 of Sch 2 (the registration of adoptions and the various registers);

    — ss 83(1)–(7) and (9), 84, 86 and 87(1)(a), (2), (5) and (6) (regulating adoptions with a foreign element);

    — s 92 (restrictions on arranging adoptions);

    — s 94 (restriction on reports);

    — s 115 and para 60 of Sch 3 and s 139 in so far as it relates to that paragraph (special guardianship);

    — s 117 (inquiries by local authorities into representations);

    — s 121 (the preparation of and information to be included in care plans);

    as respects England:

    — s 2(6) (basic definitions), 4(6) and (7) (provision in respect of carrying out of assessments);

    — ss 9–11 (general powers to regulate adoption and adoption agencies);

    — s 27(3) (circumstances in which the terms of a contact order may be departed from);

    — s 53(1)–(3) (modification of the 1989 Act in relation to adoption);

    — s 54 (amplification of the power in s 9 to enable the disclosure of information during the adoption process);

    — ss 63 (1), (3) and (4) and 65(1), (4) and (5) and 98 (enabling regulations to be made in respect of disclosure of information in relation to a person’s adoption); and

    for the purposes of making regulations-

    — ss 3(3) and (4) and 4(1)(b) and (5) (making provisions in relation to who may provide facilities on behalf of a local authority and the assessments for adoption support services);

    — s 8 which makes amendments to the Care Standards Act 2000 to enable provision for the registration of adoption support agencies under that Act;

    — s 12(1)–(3) which makes provision for the establishment of a review procedure in respect of qualifying determinations made by adoption agencies.

    Article 2(1) also brings into force as respects England, Scotland and Northern Ireland, s 63(2)–(5); as respects Scotland s 65(2)(a) and (3); and as respects Northern Ireland s 65(2)(b) and (3) (enables regulations to be made to require adoption agencies to make arrangements to secure the provision of counselling to those seeking information in prescribed circumstances).

    Article 2(2) brought into force on 31 January 2005 s 120 of the Act which clarifies the meaning of harm in the Children Act 1989.

    The Family Proceedings (Amendment) Rules 2004, SI 2004/3375

    These Rules amend the Family Proceedings Rules 1991, with effect from 31 January 2005, to make changes linked to the amendments to the Children Act 1989 in respect of the definition of harm.

    Where a s 8 order or an order for parental responsibility is sought, the applicant will give the court information where a child has suffered or is at risk of suffering harm.

    Rules 3, 4 and 5 make an amendment to provide for the service of new Form C1(A) as part of the application filed under r 4.4(1)(a) of the 1991 Rules. Rule 4 provides that the applicant’s Form C1A is to be filed with an application for a s 8 order or an order under s 4(1)(c) if question 7 on Form C1, or question 4 on Form C2, is completed in the affirmative. Rule 5 provides that a blank Form C1A should be given to the applicant with the copies of the application when the documents are filed, in order that it may be served on the respondent(s). Rule 3 provides that the applicant shall serve the blank copy of Form C1A on each respondent.

    Rule 6 amends r 4.9(1) of the 1991 Rules to provide that in applications for an order for parental responsibility or for a s 8 order, the respondent shall file and serve Form C1A in addition to the acknowledgement of application Form C7 if both parts of question 6 or question 7 (or both), on Form C7 are answered in the affirmative. Rule 7 makes a consequential amendment to r 4.9(3) of the 1991 Rules.

    Rule 8 amends the list of forms at the beginning of App 1 to the 1991 Rules to provide for new Form C1A, substitutes Forms C1, C2, C7 and inserts new Form C1A into Appendix 1. Rule 8 also makes amendments to Forms C11, C12, C19, C25 and C28 which are consequential to the amendments made to the Children Act 1989 by para 10 of Sch 5 to the Nursing and Midwifery Order 2001 (SI 2002/253).

    The Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2004, SI 2004/3376

    These Rules amend the Family Proceedings Courts (Children Act 1989) Rules 1991, with effect from 31 January 2005, to make changes linked to the amendments to the Children Act 1989 in respect of the definition of harm.

    Where a s 8 order or an order for parental responsibility is sought, the applicant will give the court information where a child has suffered or is at risk of suffering harm.

    Rules 3, 4 and 5 make an amendment to provide for the service of new Form C1A as part of the application filed under r 4(1)(a) of the 1991 Rules. Rule 4 provides that the applicant’s Form C1A is to be filed with an application for a s 8 order or an order under s 4(1)(c) if question 7 on Form C1, or question 4 on Form C2, is completed in the affirmative. Rule 5 provides that a blank Form C1A should be given to the applicant with the copies of the application when the documents are filed, in order that it may be served on the respondent(s). Rule 3 provides that the applicant shall serve the blank copy of Form C1A on each respondent.

    Rule 6 amends r 9 of the 1991 Rules to provide that in applications for an order for parental responsibility or for a s 8 order, the respondent shall file and serve Form C1A in addition to the acknowledgement of application Form C7 if both parts of question 6, or question 7, on Form C7 are answered in the affirmative.

    Rule 7 amends the list of forms at the beginning of Sch 1 to the 1991 Rules to provide for new Form C1A, substitutes Forms C1, C2, C7 and inserts new Form C1A into Sch 1. Rule 7 makes amendments to Forms C11, C12, C19, C25 and C28 which are consequential to the amendments made to the Children Act 1989 by para 10 of Sch 5 to the Nursing and Midwifery Order 2001 (SI 2002/253).

    The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No 3) Order 2004, SI 2004/3398

    This Order brings into force fully on 1 January and 1 February 2005 certain provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. They include ss 19–24 which provide for additional procedures where a marriage is to be solemnised in the United Kingdom and a party to the marriage is subject to immigration control. These provisions are brought into force on 1 February 2005.

    The High Court (Distribution of Business) Order 2004, SI 2004/3418

    This Order, which came into force on 21 January 2005, assigns to the Family Division of the High Court all proceedings under ss 6 and 8 of the Gender Recognition Act 2004. Paragraph 3 of Sch 1 to the Supreme Court Act 1981 is amended accordingly.

    The 2004 Act provides for transsexual persons legal recognition in their acquired gender on the issue of a full gender recognition certificate. In order to obtain a full gender recognition certificate a party must apply first to a Gender Recognition Panel. In certain circumstances the courts may also issue gender recognition certificates. Section 6 of the 2004 Act provides for applications to a court for the issue of a corrected gender recognition certificate where the court has issued a gender recognition certificate which contains an error. Section 8(1) of the 2004 Act provides a statutory appeal to the High Court on a point of law against a decision of a Gender Recognition Panel to reject an application made to it. Section 8(5) provides for the Secretary of State to refer cases to the High Court where he considers an application for a gender recognition certificate to have been secured by fraud.

    The Immigration (Procedure for Marriage) Regulations 2005, SI 2005/15

    These Regulations, which come into force on 1 February 2005, make provision in relation to the additional procedures introduced under ss 19–25 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. These sections provide for additional procedures where a marriage is to be solemnised in the United Kingdom and a party to the marriage is subject to immigration control.
    Section 19(2)(a) provides that where a marriage is to be solemnised in England and Wales, the notices under s 27 of the Marriage Act 1949 must be given to the superintendent registrar of a registration district which is specified for this purpose in regulations made by the Secretary of State. Similar provision is made in respect of a marriage to be solemnised in Scotland (by s 21(2), notice under s 3 of the Marriage (Scotland) Act 1977 must be submitted to the district registrar of a prescribed registration district) or Northern Ireland (by s 23(2), the marriage notices must be given to a prescribed registrar).

    In addition, by ss 19(3), 21(3) and 23(3), the registrar to whom notice is given may not enter notice of the marriage into the marriage book unless satisfied that the party subject to immigration control either (a) has an entry clearance granted for the purpose of enabling him to marry in the United Kingdom, (b) has the written permission of the Secretary of State to marry in the United Kingdom, or (c) falls within a class specified in regulations made by the Secretary of State. Section 25 enables the Secretary of State by regulations to make provision in relation to applications for permission to marry in the United Kingdom.

    By reg 3, the registration districts in England and Wales listed in Sch 1 are specified for the purposes of s 19(2)(a). By reg 4, every registration district in Scotland is prescribed for the purposes of s 21(2), and by reg 5, the registrar of every register office in Northern Ireland is prescribed for the purposes of s 23(2).

    By reg 6, a person who is settled in the United Kingdom (as defined in para 6 of the Immigration Rules) is specified for the purposes of ss 19(3)(c), 21(3)(c) and 23(3)(c).

    Regulations 7 and 8 make provision in relation to applications for the written permission of the Secretary of State to marry in the United Kingdom. An application must be made in writing and contain the information set out in Sch 2, and must be accompanied by a fee of £135.

    • • Law Reform

    Parental Separation: Children’s Needs and Parents’ Responsibilities, Next Steps

    ISBN: 0-101-162732-7, available for downloading from www.dfes.gov.uk/childrensneeds.

    On 18 January 2005, the Government published Parental Separation: Children’s Needs and Parents’ Responsibilities, Next Steps. This document responds to the consultation on the Green Paper on the same topic which was launched on 21 July 2004 and outlines the agenda for action which the Government plans to implement over coming months. While there will be a number of changes in processes and the use of CAFCASS resources, few substantive legal changes are proposed. In particular, the Government is not persuaded that any fundamental legislative change to the principles of the Children Act 1989 would benefit children. There are no plans to introduce a presumption of equal contact, nor was such a presumption thought to make any significant difference in practice. However, new legislation will be introduced in the areas of facilitation of contact and enforcement of contact orders.

    • • Recent articles on family and child law

    Shared residence: panacea or problem? District Judge John Mitchell (2004) 154 NLJ 1642

    The child support’ muddle’ David Burrows (2004) 154 NLJ 1680

    Engendering change B Mahendra (2004) 154 NLJ 1714

    Publicity in children proceedings David Wheeler (2004) 154 NLJ 1886

    The nature, scope and use of the specific issue order Stephen Gilmore [2004] CFLQ 367

    Reconstructing the HFEA 1990: is blood really thicker than water? Julie Wallbank [2004] CFLQ 387

    Should greater prominence be given to pre-nuptial contracts in the law of ancillary relief? Brigitte Clark [2004] CFLQ 399

    Parents with learning difficulties, care proceedings and the family courts: threshold decisions and the moral matrix Tim Booth, Wendy Booth & David McConnell [2004] CFLQ 409

    The plight of neglected children – social work and judicial decision-making, and management of neglect cases Dorata Iwaniec, Theresa Donaldson & His Honour Judge Martin Allweis [2004] CFLQ 4223

    Evans v Amicus Healthcare; Hadley v Midland Fertility Services – Revealing cracks in the ‘twin pillars’ Sally Sheldon [2004] CFLQ 437

    Sutton v Mishcon de Reya and Gawor & Co – Cohabitation contracts and Swedish sex slaves Rebecca Probert [2004] CFLQ 453

    Pensions law simplification and the family lawyer David Salter [2004] Fam Law 795

    The Proceeds of Crime Act 2002 – Recent Developments Philip Way [2004] Fam Law 805

    Division of Assets and Fairness – ‘Brick Lane’ – Gender, Culture and Ancillary Relief on Divorce Susan S.M. Edwards [2004] Fam Law 809

    Intractable contact disputes Mark Piercy [2004] Fam Law 815

    Cohabitants and the Inheritance Act – Extending the Boundaries James Piggott & Margaret Windram [2004] Fam Law 820

    Child Support Agency Update James Pirrie [2004] Fam Law 824

    Secure Accommodation – Care Lawyers’ Number 22 Bus Damian Stuart [2004] Fam Law 830

    What drives the cost of family cases? Vicky Kemp, Pascoe Pleasance & Nigel J Balmer [2004] Fam Law 872

    Families in contact disputes: a profile Liz Trinder, Jo Connolly, Joanne Kellet & Caitlin Thoday [2004] Fam Law 877

    Emergency protection, good practice and human rights Judith Masson [2004] Fam Law 882

    Civil Partnerships Bill 2004: the illusion of Equality Lucy Crompton [2004] Fam Law 888

    Whose divorce is it anyway – the human rights aspect Roger Kay [2004] Fam Law 892

    ‘Family Law’ – a modern concept? Rebecca Probert [2004] Fam Law 901

    Playing Parlour games: income provision after divorce Elizabeth Cooke [2004] Fam Law 906

    Second generation, second class: the less British child Caroline Sawyer [2004] Fam Law 909

    SFLA specialist accreditation scheme [2004] Fam Law 913

    Advanced qualification in mediation [2004] Fam Law 915

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