May 2005

Butterworths Family and Child Law Bulletin

Fam LS 2005.86

April/May 2005

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.

Private law

Case should be heard despite mother’s
illness

Blunkett v Quinn [2005] 1 FCR 103

Blunkett v Quinn [2005] 1 FCR 103 concerned an
appeal by the mother of the child against the refusal of the
district judge to adjourn proceedings. Her application for the
adjournment was based on the fact that she was unwell and pregnant.
Ryder J found that it would not breach her rights to a fair trial
to proceed with the case. She seemed to be able to give
instructions. Delay would have damaged the relationship between
David Blunkett and the child. There was no guarantee that the
health issues would soon be resolved (they may have been induced by
the stress of the litigation and could recur when it was resumed).
It would be an abrogation of the court’s responsibility for
the rights of the child to fail to advance the resolution of the
issues for four months. There should be active case management to
resolve the paternity issues in the case.

Comment: This much-discussed case did not, as journalists seem to
have suggested, concern an application for DNA testing or for
residence by the former Home Secretary, David Blunkett. Ryder J
gave the judgment in public so that false impressions could be
corrected. He found that this was the most proportionate option
available, and reduced the interference into the private lives of
the parties by hearing the appeal in private and excluding
unnecessary personal material from the judgment. He was careful to
stress that the case had not in any way been fast tracked because
the protagonists were in the public eye.

Wife’s move supported

Re S (children: application for removal from jurisdiction)
[2004] EWCA Civ 1724, [2005] 1 FCR 471

In Re S (children: application for removal from
jurisdiction) [2004] EWCA Civ 1724, [2005] 1 FCR 471 a mother
sought permission to relocate with the children from Halifax, where
she had no ties, to Spain, where her mother and brother were
already well established. She planned to invest in property there
and had arranged private education for the two girls, funded partly
by herself and partly by her mother. She offered the father contact
over long weekends and the school holidays. The father currently
worked as a consultant for a German bank, commuting weekly to
Germany at the firm’s expense and also travelling extensively
abroad. He attacked the mother’s plans as unrealistic and
impugned her motive, saying that contact would suffer. He did not
appear to the recorder as having researched the possibilities of
contact. The recorder refused the mother permission to relocate. He
noted that the move to Spain was a matter of choice not necessity,
contrasting this with earlier cases. The Court of Appeal held that
this was a misdirection. The mother had a perfectly natural desire
after the breakdown of a short marriage to rejoin her own family.
The unusual factor of the case was that her own family had
themselves relocated to Spain. Even if it had been merely a matter
of lifestyle choice, the principles set out in Payne v
Payne [2001] EWCA Civ 166 would still apply. There were some
aspects of the case requiring further comment. The wife’s
case did not set out the impact upon her of a refusal to permit her
to go abroad, which would normally be expected. It could be
inferred that the isolation she experienced in Halifax would be
damaging to her and her relationship with the children. The
father’s commitment to contact was less than in some cases.
He had already established a pattern of contact on alternate
weekends and had only sought holiday contact once the case was
started. He seemed not to have contemplated altering the pattern of
his work life so as to facilitate contact despite emphasising its
importance to his case. The recorder had misdirected himself as to
the proper legal test. The Court of Appeal granted the mother
permission to relocate, her departure to be deferred until
arrangements for contact had been defined either by agreement or by
further order of the court.

Comment: The Court of Appeal reiterated the principle, set out in
Payne v Payne, that the courts should not obstruct reasonable plans
for parents with resident to move their lives forward. There was an
understandable rationale behind the mother’s relocation plans
and they had been thought through and planned. The father’s
objections were not based on a similar degree of planning and the
Court of Appeal clearly felt some concern that he was raising the
difficulties of contact as much to disrupt the mother’s plans
as to further the interests of the children. It drew attention to
the relative lack of interest that he had previously shown. The
recorder’s suggestion that the mother’s decision to
move abroad was essentially a lifestyle choice – a preference
rather than a practical necessity – was seen as overplayed.
The legal questions to be asked remained the same. However, it is
possibly still the case that were the move to have been no more
than convenience, that the courts would have been more reluctant to
sanction it. The Court of Appeal noted that the relocation to Spain
was not arbitrary and that staying in Halifax would have had an
adverse effect on the mother. That these were relevant factors
suggests that the courts would be reluctant to permit contact
between children and their non-residential parents to be disrupted
on mere whim.

Public authorities’ liability

Liability for failing to diagnose special needs
accurately

Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 FCR
554

In Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 FCR
554 the Court of Appeal considered the law on liability in tort of
education authorities for failure to secure the welfare of children
with special educational needs. The claimant contended that the
authority had failed to reassess and amend his statement of needs
when a school placement broke down in 1988 and in leaving him at
the school to which he was sent on the basis of the unamended
statement when it became apparent that it was not going well
(1991–1993). It was noted that there was no action for
compensation for breach of statutory duty under the Education Act
1981 (now the Education Act 1993) because that had not been the
intention of Parliament (see Phelps v London Borough of
Hillingdon, Anderton v Clwyd CC, Jarvis v Hampshire CC [2000]
3 FCR 102). It was possible for an independent action to lie at
common law for negligence. The court had to consider first whether
the issue was justiciable. This matter was not determined simply by
asking whether the decisions in question involved the exercise of
discretion. Decisions would not normally be justiciable where
competing public interests had to be weighed against each other by
a public body to whom the responsibility for that balance had been
entrusted by Parliament (Barrett v Enfield London Borough
Council [1999] 2 FCR 434) but such cases would be relatively
rare and this case was not in that category. Nor would mere failure
to perform a statutory duty give rise to a common law negligence
claim (Gorringe v Calderdale Metropolitan Borough Council
[2004] UKHL 15). If decisions were justiciable then the court would
need to consider whether damage was reasonably foreseeable,
proximity between the claimant and the authority, and whether it
was just and reasonable to impose a duty of care. Most cases
involving the management of education or care responsibilities
would turn on potential vicarious liability (see Barrett and
Phelps). Where a discretion was exercised that was heavily
influenced by policy then it would be unlikely to be negligent
unless it was a decision that no reasonable authority could have
made. Where, however, it involved the exercise of professional
skill in relation to an individual child, then the court would
judge negligence against the practices accepted as proper by a
responsible body of professional opinion (the test set out in
Bolam v Friern Hospital Management Committee [1957] 2 All
ER 118). If a member of the authority’s staff was negligent,
then the authority could be vicariously liable. There was no
blanket immunity for teachers on policy grounds. For the purposes
of the liability rules, education officers were professionals for
whom on the authority could be vicariously liable. The court had,
therefore, to consider the substance of the decisions made.