July 2005

    Bulletin No 87

    Butterworths Family and Child Law

    Fam LS 2005.87

    June/July 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

    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.


    Domicile and habitual residence can be established without
    permission to remain

    Mark v Mark [2005] UKHL 42, (2005) Times, 5 July

    BFLS 2A[103], [107]

    In Mark v Mark [2005] UKHL 42, (2005) Times, 5 July, the House of
    Lords held that habitual residence and domicile in the UK could be
    established by a person whose presence in the jurisdiction was
    illegal. The case concerned the jurisdiction of the English courts
    to hear a divorce petition. The husband had initially accepted that
    the wife was habitually resident in the UK, but later denied that
    this was the case because her leave to remain in the UK had
    expired. In relation to habitual residence, the word
    ‘lawful’ was not to be read into the provisions of s 5
    of the Domicile and Family Proceedings Act 1973. The question
    whether residence was habitual was a question of fact and was
    governed by the test from R v Barnet LBC, ex p Shah [1983] 2 AC
    309. A person whose illegal presence in the UK meant that they led
    a life on the run to evade deportation might find it difficult to
    establish habitual residence. However, those who led perfectly
    ordinary lives despite having no permission to remain in the
    jurisdiction would not find it difficult to do so. In relation to
    domicile, the law aimed to identify a single jurisdiction with
    which the person was connected. There could be habitual residence
    in more than one place simultaneously, but there was only one
    jurisdiction of domicile. A domicile of choice was established by
    the coincidence of residence and the intention of remaining
    indefinitely. Domicile determined such matters as capacity to
    marry, make a will and the applicable rules of succession. It would
    seem absurd if the wife in this case did not have any issues
    relating to inheritance governed by the law of this country. Unless
    there were reasons of public policy to deny the acquisition of
    domicile then it would seem that the usual principles would
    indicate that she was domiciled in the UK. Public policy had been
    considered in Puttick v AG [1980] Fam 1. It could not be said that
    recognising the connection of a person to the country through the
    concept of domicile offended against the general principle that a
    person should not be permitted to benefit from their criminal
    conduct. Sometimes domicile would bring benefits to people, other
    times it would not. It determined the applicable laws, which would
    not be consistently advantageous or disadvantageous to the person
    in question. Thus, it could not be said that acquiring domicile was
    a benefit. The foundations of domicile of choice—residence
    and intention to reside indefinitely—were both issues of
    fact. English law only required that the intention to reside be
    bona fide, in the sense of being genuine and not pretended for some
    other purpose (such as getting a divorce when it would not be
    available under the true law of domicile). There was no reason in
    principle why a person whose presence here was unlawful could not
    acquire a domicile of choice in the UK. Liability to deportation
    might be relevant to whether the person had formed an intention to
    remain indefinitely, but that was a question of fact not law. Nor
    was there an element of discretion in the court. If a domicile of
    choice had been acquired, it was not for the court to deny it
    because it considered the case unmeritorious or tainted with moral
    or legal turpitude. Nor could domicile be granted simply because
    the court considered the wife virtuous. By the time the wife
    presented her petition, she had acquired a domicile of choice in
    the UK.

    Comment: It should be noted that the ruling on
    domicile went against the expectation of the authors of Dicey and
    Morris: Conflicts of Laws (9th edn (1973) 96–97) and Rayden
    (17th edn, para 2.16). Lady Hale noted that there might be contexts
    in which it was appropriate to imply a requirement of lawful
    residence into the legislation. In particular, she identified
    provisions that gave entitlement to some state benefit. In relation
    to the divorce jurisdiction, the purpose of the test was to
    determine whether the parties had a sufficiently close connection
    with the country to make it desirable that the courts should be
    able to dissolve the marriage (Law Commission Report on
    Jurisdiction in Matrimonial Causes (1972) Law Com No 48, at para
    5). That did not raise the same sort of policy issues.

    Reluctant children’s long-term interest in

    Re M (children) (contact: long-term best interests) (2005)
    Times, 27 June, CA

    BFLS 3A[1829]; CHM 1[659]

    In Re M (children) (contact: long-term best interests) (2005)
    Times, 27 June the Court of Appeal overturned a judge’s
    decision that perpetuated a long-running dispute and refused a
    loving and caring mother an order for her to have contact with
    reluctant teenagers. This was plainly wrong in law, as it was
    contrary to the children’s best interests. The parents had
    separated in 1994 with the children remaining with the father and
    stepmother. They had not seen their mother for some eight years and
    did not wish to have contact with her. Ordinarily the
    children’s views would have weight with the court, but in
    this case, the judge had found that their ‘thoroughly
    unhealthy mind set’ was caused by the father, who had
    corrupted their understanding by his ‘force feeding’,
    making it impossible for them to see the good qualities of their
    mother. The judge had failed to make any provision for restoring
    contact and this was not in the children’s long-term
    interests. Unusually, the Court of Appeal was justified in
    interfering with the judge’s discretion. It ordered that
    experts be appointed to assist the children and that the case be
    transferred to the High Court.

    Comment: This brief report does not give any
    details of the facts of the case. However, it may fuel accusations
    of sexism in the law. It seems to turn on the mother’s good
    character and the expectation that, in the long term, contact with
    both parents is in the best interests of children. Both are
    arguments that are equally applicable to fathers but there is a
    perception in some quarters that fathers are treated less
    favourably in such cases of long estrangement between children and
    non-residential parents.


    Request for McKenzie friend should usually be

    Re O (children); Re W-R (a child); Re W (children) (2005)
    Times, 27 June, CA

    BFLS 3A[4719]

    In Re O (children); Re W-R (a child); Re W (children) (2005) Times,
    27 June the Court of Appeal held that litigants conducting their
    own cases should usually be permitted to use the services of a
    McKenzie friend unless there were compelling reasons to refuse. The
    purpose of allowing a litigant to have such unpaid advice was to
    ensure a fair hearing and achieve a level playing field. Where
    there were reasons against permitting a litigant to have such
    support, the judge should explain them fully to both the litigant
    in person and the would-be McKenzie friend. It was not good
    practice to exclude that person while the litigant’s
    application for their support was being made, as their assistance
    was likely to be necessary in making the application in the first
    place. The other party might be wary of permitting a stranger who
    was not legally qualified into a private hearing. However, this
    reluctance was outweighed by the requirements of a fair hearing
    (Art 6 ECHR), and the fact that the hearing would remain
    confidential. The McKenzie friend would be in contempt of court if
    the confidentiality was breached. While a formal undertaking was
    not required, the court should require an assurance that any
    documents would be used only for the purpose of the

    Practice Directions and Notes

    President’s Direction: Applications for Reporting
    Restriction Orders [2005] Fam Law 397

    Dame Elizabeth Butler-Sloss P, with the concurrence and
    approval of the Lord Chancellor, 18 March 2005

    This Direction applies to applications in the Family Division
    founded on Convention rights for an order restricting publication
    of information about children or incapacitated adults. Orders can
    only be made in the High Court and are normally dealt with by a
    Family Division judge. If the need for an order arises in existing
    county court proceedings, the matter should either be transferred
    to the High Court or the Family Division Liaison Judge should be
    consulted. Urgent matters should be heard by the Urgent Application
    Judge of the Family Division (out of hours contact 020 7947 6000).
    Service on national news media (usually required by s 12(2) of the
    Human Rights Act 1998) should normally be effected via the Press
    Association’s CopyDirect service. Without notice orders will
    be exceptional. Further guidance can be found in the Practice Note:
    Applications for Reporting Restriction Orders [2005] Fam Law 398
    issued by the Official Solicitor and Deputy Director of Legal
    Services, CAFCASS (see below).

    Practice Note: Applications for Reporting Restriction
    Orders [2005] Fam Law 398

    Official Solicitor; Deputy Director of Legal Services,
    CAFCASS, 18 March 2005

    This Note sets out the recommended practice on applications in the
    Family Division founded on Convention rights for an order
    restricting freedom of expression. It is issued in conjunction with
    the President’s Direction: Applications for Reporting
    Restriction Orders [2005] Fam Law 397. It applies directly to any
    proceedings in which CAFCASS or the Official Solicitor represent a
    child or incapacitated adult. It explains how to effect service
    through CopyDirect (tel/fax 0870 837 6429). Model forms of order
    and an example of an explanatory note such as should accompany the
    application are appended to the Practice Note and can be downloaded
    from www.offsol.demon.co.uk or
    from www.cafcass.gov.uk.
    Advice is also given on the scope of orders, including who should
    be protected and their identification, and their duration.

    President’s Direction: Gender Recognition
    Act—Procedure: (1) title of the cause (2) evidence at trial
    of the cause [2005] Fam Law 498

    Issued by Elizabeth Butler-Sloss P, 5 April 2005

    This Direction supersedes the Practice Note of 2 May 1940 (Title of
    Cause). It indicates that a party’s current name should be
    used on the petition and other documents, followed by
    ‘formerly known as…’ where appropriate. Party
    titles (ie Mr, Mrs Miss etc) should be omitted. A form of affidavit
    for the purposes on evidence in proceedings under the Act is
    appended to the Practice Direction.

    Statutory Instruments

    The Children (Private Arrangements for Fostering)
    Regulations 2005, SI 2005/1533

    These Regulations revoke and replace the Children (Private
    Arrangements for Fostering) Regulations 1991 in relation to
    England, following amendments to the private fostering notification
    scheme made by s 44 of the Children Act 2004. They came into force
    on 1 July 2005.

    Regulation 3 requires any person proposing to foster a child
    privately, any person involved (whether directly or not) in
    arranging for the child to be fostered privately, and a parent of
    the child or other person with parental responsibility for the
    child who knows that it is proposed to foster the children
    privately, to notify the appropriate local authority in advance of
    the arrangement starting. Notification by the proposed private
    foster carer has to be given at least six weeks before the private
    fostering arrangement is to begin, or where the arrangement is to
    begin within six weeks then immediately. Others required to give
    notification under reg 3 must do so as soon as possible after the
    arrangement has been made, or as soon as possible after they become
    aware of the arrangement.

    The notification should contain such of the information set out in
    Sch 1 as the person giving the notification is able to

    Having received a notification the local authority then have to
    arrange for an officer of the authority to visit the place where
    the child will live and speak to the proposed private foster carer,
    members of his household, the child and others (reg 4) and
    establish such matters as are listed in Sch 2 as appear relevant to
    the officer. The officer then has to make a written report to the

    Regulation 5 sets out the requirement to notify the local authority
    of the arrangement where notification under reg 3 has not been
    given. Regulation 6 sets out the requirement to notify the local
    authority when a private fostering arrangement of which they have
    been notified under reg 3 actually starts. Having received
    notification under either reg 5 or 6, the local authority must
    arrange for an officer to carry out visits and establish such
    matters listed in Sch 3 as appear to him to be relevant (reg

    Regulation 8 is concerned with local authority visits to the child
    once the private fostering arrangement has started. It provides for
    when the visits should take place and what the officer of the
    authority should do when carrying out a visit. After each visit he
    is required to make a written report to the local authority.

    Private foster carers are required to notify the local authority of
    certain changes in circumstances, such as a change of address or
    when someone leaves or joins their household. If the private foster
    carer moves to the area of another local authority then certain
    information is required to be passed to the local authority for the
    new area by the local authority for the old. The parent of a
    privately fostered child, or other person with parental
    responsibility for the child, who knows that the child is being
    fostered privately must notify the local authority of a change of
    their address (reg 9).

    Regulation 10 is concerned with notification of the end of the
    arrangement. A person who has been fostering privately a child must
    notify the local authority within 48 hours of him ceasing to foster
    the child privately, and if the reason for the ending of the
    arrangement is that the child has died then he must tell the local
    authority that that is the reason.

    All notifications given under these Regulations must be in writing
    (reg 11).

    Regulation 12 requires local authorities to monitor the way in
    which they discharge their functions in respect of privately
    fostered children and to appoint an officer of the local authority
    for that purpose.

    The Domestic Violence, Crime and Victims Act 2004
    (Commencement No 2) Order 2005, SI 2005/1705

    This order brought the following provisions of the Domestic
    Violence, Crime and Victims Act 2004 into force on 1 July 2005: s
    10(2) (common assault to be an arrestable offence in Northern
    Ireland); ss 35 to 45 (victims etc – representations and
    information); s 58(1) (amendments and repeals) in so far as it
    relates to para 55 of Sch 10 (minor and consequential amendments);
    s 58(2) (amendments and repeals) in so far as it relates to the
    entries relating to the Criminal Justice and Court Services Act
    2000 in Sch 11; s 59 (transitional and transitory provisions) in so
    far as it relates to the para 4of Sch 12 in so far as it relates to
    s 10(2).

    The Restriction on the Preparation of Adoption Reports
    Regulations 2005, SI 2005/1711

    These Regulations provide for restrictions on the preparation of
    adoption reports for the purposes of s 94(1) of the Adoption and
    Children Act 2002. They will come into effect on 1 December

    Regulation 3 provides that a person is within a prescribed
    description for the purposes of s 94(1) of the Act if he is a
    social worker employed by or acting on behalf of an adoption agency
    and satisfies the appropriate conditions in para (2) or he is a
    person who is participating in a social work course and is employed
    by or placed with an adoption agency as part of that course and
    satisfies the condition in para 2(b).

    Regulation 4 provides that the prescribed circumstances for the
    purposes of s 94(1) of the Act are the preparation of reports for
    specified purposes of, as the case may be, the Adoption Agencies
    Regulations 2005, any corresponding provision made by the National
    Assembly for Wales under s 9 of the Act, or the Adoptions with a
    Foreign Element Regulations 2005, the preparation of pre-adoption
    and post-adoption reports in intercountry adoption cases and
    reports in accordance with s 43 or 44(5), or for the purposes of s
    84(1), of the Act.

    The Suitability of Adopters Regulations 2005, SI

    These Regulations are made under the Adoption and Children Act
    2002. They apply in respect of adoption agencies in England only.
    They will come into effect on 1 December 2005.

    Regulations 3 and 4 make provision as to the matters to be taken
    into account by an adoption agency in determining, or making any
    report in respect of, the suitability of any person to adopt a
    child. Regulation 4(2) requires the adoption agency in determining
    the suitability of a couple to have proper regard to the need for
    stability and permanence in their relationship.

    Regulation 5 provides for the matters to be taken into account in
    determining, or making a report on, suitability in a case where the
    adoption agency receives information and is of the opinion that the
    prospective adopter is unlikely to be considered suitable to adopt
    a child notwithstanding that the agency may not have obtained all
    the information required under reg 25 of the Adoption Agencies
    Regulations 2005.

    The Community Legal Service (Financial) (Amendment No 3)
    Regulations 2005, SI 2005/1793

    These Regulations amend the Community Legal Service (Financial)
    Regulations 2000, which govern financial aspects of the provisions
    of services funded by the Legal Services Commission in civil
    matters as part of the Community Legal Service. They will come into
    force on 25 July 2005.

    Regulations 2, 5, 6 and 8(1), 9 and 10 make minor amendments to the
    principal Regulations and are consequential on amendments to the
    Funding Code which abolish Support Funding.

    Regulations 3 and 4 provide for amendments to reg 3 of the
    principal Regulations, which sets out the areas in which funded
    services are available irrespective of the financial resources of
    the client. Regulation 3 makes a minor amendment to reg 3(1)(d) to
    make it clear, in relation to proceedings under the Children Act
    1989, which parties are entitled to non-means tested services where
    there are linked proceedings. Regulation 4 provides for an
    amendment to reg 3(1)(g)(iv) substituting reference to Council
    Regulation (EC) No 2201/2003 of 27 November 2003, which now governs
    the jurisdiction and recognition and enforcement of judgments in
    matrimonial matters and the matters of parental responsibility.
    This Council Regulation repeals and replaces Council Regulation
    (EC) No 1347/2000 of 29 May 2000.

    Regulations 7 and 8(2) amend the principal Regulations in relation
    to the funding of legal services at certain inquests. They permit
    waiver of the eligibility limit where any legal services, and not
    only advocacy, are provided and permit waiver of contributions
    where the client is ineligible financially for legal aid as well as
    where he is eligible.

    Regulations 11 and 12 amend the provisions of the principal
    Regulations about postponement of enforcement of the charge created
    by s 10(7) of the Access to Justice Act 1999. In particular, it
    provides for the circumstances in which:

    — enforcement of the charge will not be postponed

    — decisions to postpone enforcement of the charge will be

    The regulations also contain transitional provisions.

    The Civil Legal Aid (General)(Amendment No 2) Regulations
    2005, SI 2005/1802

    These Regulations amend the Civil Legal Aid (General) Regulations
    1989. They will come into force on 25 July 2005.

    Regulation 1 provides for citation, commencement and
    interpretation. Regulations 2–6 amend the provisions of the
    principal Regulations about deferment of enforcement of the charge
    created by s16(6) of the Legal Aid Act 1988. In particular, they
    provide for the circumstances in which:

    — enforcement of the charge will not be deferred

    — decisions to defer enforcement of the charge will be

    These Regulations apply to transitional cases to which the
    principal Regulations continue to apply by virtue of the provisions
    in the Access to Justice Act 1999 (Commencement No 3, Transitional
    Provisions and Savings) Order 2000.

    Recent articles on family and child law

    POCA and NCIS: Bowman v Fels Alexander Chandler [2005] Fam Law

    Protection from Harassment Robert N Hill [2005] Fam Law 364

    Civil Partnership Act 2004 Robin Spon-Smith [2005] Fam Law

    Representing parents with mental health problems David Fish [2005]
    Fam Law 375

    How would Corbett v Corbett be decided today? Rebecca Probert
    [2005] Fam Law 382

    Bowman v Fels: Privilege Revived David Burrows [2005] Fam Law

    ADR Professionals: equal opportunities: who decides? Christopher
    Richards [2005] Fam Law 389

    Resolution News: Training Committee update Kerry Fretwell [2005]
    Fam Law 395

    Extending the extendable term Eleanor Hamilton QC [2005] Fam Law

    Child maintenance: cui bono revisited Roger Bird [2005] Fam Law

    Abolition of the Power of Arrest Robert Hill [2005] Fam Law

    Divorce with dignity Elissa J Da Costa [2005] Fam Law 478

    The ‘traditional family’ and the law Penny Booth &
    Cathy Kennedy [2005] Fam Law 482

    IROS: starred milestones by any other name? Gabrielle Jan Posner
    [2005] Fam Law 488

    Legal advice: privilege revisited David Burrows [2005] Fam Law

    Resolution News: the Family Resolutions Pilot Project [2005] Fam
    Law 496


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