July 2005

September 19, 2005 in Community Care

Bulletin No 87

Butterworths Family and Child Law
Bulletin

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
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.

Jurisdiction

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
contact

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.

Procedure

Request for McKenzie friend should usually be
allowed

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
proceedings.

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
provide.

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
authority.

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
7).

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
2005.

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
2005/1712

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
reviewed.

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
reviewed.

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.