August 2005

Bulletin no 88

Butterworths Family and Child Law Bulletin

Fam LS 2005.88

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.

Appeals

Walley v Walley (2005) Times, 13 July, CA
BFLS 5A[2091]; CHM 2[60]
In Walley v Walley (2005) Times, 13 July the Court of Appeal held that the judge had erred in granting leave to appeal out of time rather than simply dealing with the matter herself. She could have done this either under the express provision of liberty to apply or under the inherent jurisdiction to review the implementation of her previous order.

The case concerned an order under the Child Abduction and Custody Act 1985 for the return of the child to South Africa made “subject to the terms of this order” including a number of stringent conditions. The father had failed to put the measures into place and the mother applied for discharge of the order to return the children. The hearing had wrongly proceeded on the basis that it had to go to the Court of Appeal (applying Re M [1995] 1 FLR 1021). However, the cases were distinguishable. Re M concerned undertakings. In this case the order provided for preconditions that had not been met and consequently the High Court remained seized of the matter.

Comment: Unlike the situation in Re M, in this case the order specifically indicated that the child was not to be returned unless and until the conditions were satisfied. In the absence of those conditions being met, the case had not been resolved. The essence of the return to court was not that the order was wrong and should be appealed, but that it had not been carried through and so an alternative resolution was now required. Thus, the original task before the court remained incomplete and the court retained jurisdiction.

Private law proceedings

Inadequate reasons for rejecting grandparental care

Re G (a child) (care proceedings: placement for adoption) (2005) Times, 1 August, CA
BFLS 3A[5654]; CHM 1[1510]
In Re G (a child) (care proceedings: placement for adoption) (2005) Times, 1 August the Court of Appeal allowed an appeal by grandparents against a care order made on the basis of a plan to place the child for adoption. The child’s mother was 22 years old and separated from the father. She was unable to cope and agreed with the care order. The grandparents had applied for a residence order. The judge rejected the grandparents’ application, saying that they were “probably confronting the impossible”.

Ward LJ found that this gave insufficient reasons to explain to the disappointed applicants why they had lost (applying the test from Re B [2003] 2 FLR 1035). There was scant recognition of the right of the child to grow up in her own family. The judge did not identify what protection could not be provided against whom or what.  The judge’s conclusion that the grandparents’ poor parenting made them an unacceptable risk as carers was in conflict with his finding that he could not determine the extent to which their care of their three children had fallen below an acceptable standard.

It was not surprising that the grandparents felt that they had been assessed unfairly. Their appeal was allowed and the case remitted for reconsideration by a High Court judge.

Comment: It is difficult to glean the full picture from this brief report. It seems that the Court of Appeal found that insufficient reasons were given for the rejection of the grandparents’ application for residence orders on the basis that the judge’s comments seemed internally inconsistent. It is not clear from this report what weight the Court of Appeal thought should be given to the right of the child to be brought up in her own family. This needs to be considered as an aspect of the welfare decision and if there are clear reasons for placement outside the family, then that is acceptable.

However, in the absence of clear reasons, the normal expectation is that children benefit from care from their own families. This decision should probably be seen as principally about the inadequacy of the reasons rather than the right of the child to grow up in her family (on which the sub-editor of the Times focuses in the headline). If the reasons had been adequate, they might well have justified outweighing the expectation of family care.

There is some suggestion in the report that the Court of Appeal was concerned that the lack of clear reasons came from pressure on the judge to deliver judgment quickly. Ward LJ indicated that he should have taken more time and adjourned judgment if that was the case.

Child support

CSA survives human rights challenge

R (Kehoe) v secretary of state for work & pensions [2005] UKHL 48, (2005) Times, 15 July
BFLS 4A[202]; CHM 4[56]
In R (Kehoe) v secretary of state for work & pensions [2005] UKHL 48, (2005) Times, 15 July the majority of the House of Lords held that a caring parent could not directly enforce child support. The child support acts provided the mechanism for collection of child support and did not create a civil right in the caring parent that attracted protection under art 6 of the European Convention on Human Rights. The non-judicial enforcement mechanism was a deliberate feature of the legislation.

Although Mrs Kehoe was understandably frustrated by the inadequacy of the Child Support Agency’s enforcement, her judicial remedy lay in proceedings against the agency not direct enforcement against the father.

Comment: The many failings of the Child Support Agency have been well aired, but it remains the fact that the creation of an administrative mechanism for collecting child support to replace the pre-existing court-based approach was one of the principal purposes of the legislation.

The House of Lords recognised this in its decision to uphold the scheme’s compatibility with the ECHR. The majority argued that Mrs Kehoe’s claim sought to use art 6 to create a substantive civil right that did not exist. In a strong dissent, Lady Hale took the view that the child support acts altered the mechanism for collecting child support, but did not create the obligation to maintain children. That obligation existed prior to the legislation and was assumed by it. It remained enforceable outside of the child support acts where the agency lacked jurisdiction. In her view, art 6 was engaged to protect this civil right and the Child Support Agency was obliged to act compatibly with art 6 rights to give speedy determination and effective enforcement to them.

Statutory instruments

The Children Act 2004 (children’s services) regulations 2005, SI 2005/1972
These regulations, which come into force on 1 September 2005, are made in relation to ss 20–23 of the Children Act 2004, which are concerned with the inspection of children’s services. Section 23(3) defines children’s services for the purposes of ss 20–22. Section 20 of the act provides for the review of children’s services in the area of a children’s services authority in England. A review under s 20(1) or (2) involves two or more of the persons and bodies listed at s 20(4); the purpose of a review is set out in s 20(3). Section 21 provides for there to be a framework for inspection of children’s services containing principles to be applied when a person or body conducts a review, or any other type of assessment of children’s services (“assessment” is defined in s 23(2)). Section 22 requires persons or bodies with a function of conducting an assessment of children’s services to co-operate with each other, and permits delegation of their assessment functions to another such body.

Regulation 2(1) specifies and prescribes as children’s services a list of services, etc, done for or in relation to children (persons under the age of eighteen) and relevant young persons (persons of eighteen or over in relation to whom arrangements may be made to promote co-operation with a view to improving their well-being, under s 10 of the Act).

Regulation 2(2) specifies and prescribes as children’s services a list of services, etc, done for or in relation to children and relevant young persons in so far as they relate to children. The assessment of the services, etc, listed in reg 2 (whether as part of a review under s 20 of the act or otherwise) will be governed by the framework referred to above.

The Children Act 2004 (joint area reviews) regulations 2005, SI 2005/1973
These regulations, which come into force on 1 September 2005, are made in relation to s 20 of the Children Act 2004, which provides for the review of children’s services in the area of a children’s services authority in England (joint area reviews). “Children’s services” are defined by s 23(3) of that act and regulations under that provision; “children’s services authority” is defined in s 63(1) of the act. A review involves two or more of the persons and bodies listed at s 20(4); they may be requested to conduct a review by the secretary of state, or may themselves decide to conduct a review. The purpose of a review is set out in s 20(3).

These regulations make provision for the purposes of such reviews. Regulation 2 and the schedule to the regulations ensure that the persons and bodies listed at s 20(4) have sufficient powers to conduct an inspection for the purposes of a review by applying, for the purposes of a review, relevant enactments relating to the powers of those persons and bodies to inspect services that are children’s services, rights of entry and rights to obtain information, etc.

Regulation 3 obliges the chief inspector of schools to make a report on a review (including a summary suitable for children) and send it to the children’s services authority for the area to which the review relates and to the secretary of state. Within 30 working days of receiving the report the children’s services authority must send a copy of it to the persons and bodies with whom the authority makes arrangements to promote co-operation with a view to improving the well-being of children in their area and to each of their partners on the local safeguarding children board for their area. The authority must send the report to a newspaper circulating in the area and a radio station serving the area, make a copy available for inspection free of charge at their offices and supply a copy to a member of the public, on demand, for a reasonable charge.

A children’s services authority receiving a report under reg 3 is obliged to make a written statement of proposed action in the light of the report, within 70 days of receiving the report (reg 4). The authority must consult the same persons and bodies as were sent the report on the review when compiling the written statement. The written statement must be sent to the chief inspector of schools and those same persons and bodies, and made publicly available in the same way as the report.

The family proceedings (amendment no 4) rules 2005, SI 2005/1976
These rules, which come into force on 31 October 2005, amend the family proceedings rules 1991 and deal with the communication of information relating to children cases. These rules follow on from the amendments made by s 62 of the Children Act 2004 and in particular the amendment made by s 62 to s 12(4) of the Administration of Justice Act 1960 (publication of information relating to proceedings in private). Section 12(4) provides that nothing in s 12 of the Administration of Justice Act 1960 shall imply that any publication is punishable as contempt of court where in particular the publication is not so punishable by reason of it being authorised by rules of court.

Paragraph (6) of these rules introduces a new rule (r 10.20A) into part X – procedure (general) – of the FPR entitled, Communication of information relating to proceedings.

Paragraph (1) of r 10.20A sets out the types of family proceedings held in private to which the new rule will apply. Broadly, these are proceedings concerning the welfare and upbringing of children.

Paragraph (2) of r 10.20A sets out three circumstances in which it is permissible, for the purposes of the law of contempt, to communicate information. These are (1) when the court gives permission; (2) in the circumstances provided for in the table in para (3) and the onward disclosure rule in paragraph (4); and (3) when the communication is made to specified and listed people. Disclosure in accordance with the table and para (4) may be modified or restricted in any way by a direction of the court under para (2)(b).

Paragraph (4) of r 10.20A provides that a recipient of information pursuant to the table in para (3) may only communicate that information for the purpose or purposes for which he received that information (set out in the table) or for the purpose of professional development or training. In the latter case, however, it is a requirement that the communication should not identify, or be likely to identify, any person involved in the proceedings unless that person has consented.

Paragraph (4) of these rules omits r 4.23 (confidentiality of documents) from the FPR.

Rule 10.20A applies to information and includes documents held by the court. In doing this it replaces r 4.23.

Paragraphs (5) and (7) of these rules make consequential amendments to the existing rules following the introduction of r 10.20A and omission of r 4.23.

The family proceedings courts (miscellaneous amendments) rules 2005, SI 2005/1977
These rules, which come into force on 31 October 2005,  amend the family proceedings courts (Children Act 1989) rules 1991 (‘FPC (CA89)’) and the family proceedings courts (Child Support Act 1991) rules 1993 (‘FPC (CSA)’). These rules deal with the communication of information relating to children cases.

These rules follow on from the amendments made by s 62 of the Children Act 2004 (2004 c 31) and in particular the amendment made by s 62 to s 12(4) of the Administration of Justice Act 1960 (1960 c 65) (publication of information relating to proceedings in private). Section 12(4) provides that nothing in s 12 of the Administration of Justice Act 1960 shall imply that any publication is punishable as contempt of court where in particular the publication is not so punishable by reason of it being authorised by rules of court.

Paragraph (5) of these rules introduces a new rule (r 23A) entitled, Communication of information relating to proceedings. This rule will apply when the court elects to sit in private under r 16(7) of the FPC (CA89). In all other cases r 23 (confidentiality of documents) will continue to apply.

Paragraph (1) of r 23A sets out three circumstances in which it is permissible, for the purposes of the law of contempt, to communicate information. These are (1) when the justices’ clerk or the court gives permission; (2) in the circumstances provided for in the table in para (2) and the onward disclosure rule in para (3); and (3) when the communication is made to specified and listed people.

Disclosure in accordance with the table and para (4) may be modified or restricted in any way by a direction of the court under para (1)(b).

Paragraph (3) of r 23A provides that a recipient of information pursuant to the table in para (2) may only communicate that information for the purpose or purposes for which he received that information (set out in the table) or for the purpose of professional development or training. In the latter case, however, it is a requirement that the communication should not identify, or be likely to identify, any person involved in the proceedings unless that person has consented.

Paragraph (7) of these rules makes a consequential amendment to the FPC (CSA) following the introduction of new r 23A.

The registration of civil partnerships (fees) order 2005, 2005/1996
In relation to the registration of civil partnerships, this order specifies what fees are to be paid, the amount of them and who they are to be paid to. It comes into effect on 5 December 2005. The fees are as follows: attestation by an authorised person of the necessary declaration (£30.00). Attendance of an authorised person at a place other than one provided by the registration authority, for the purpose of attesting the necessary declaration in accordance with the procedures for house-bound and detained persons (£47).

Attestation by an authorised person of the necessary declaration under the special procedure (£3). 

Application to shorten the waiting period (£28).

Issue of registrar general’s licence (£15).

Signing by the civil partnership registrar of the civil partnership schedule (£40).

Attendance of the civil partnership registrar for the purpose of signing the civil partnership schedule in accordance with the procedures for house-bound and detained persons (£47).

Attendance of the civil partnership registrar in whose presence the registrar general’s licence is signed (£2).

The registration of births, deaths and marriages (fees) (amendment) order 2005, SI
2005/1997
This order amends the registration of births, deaths and marriages (fees) order 2002 by increasing some of the fees payable in respect of a civil marriage with effect from 5 December 2005. The fees increased are those for the attendance of a superintendent registrar away from his office, to take a notice marriage from a housebound or detained person (from £40 to £47),  for the attendance of a registrar of marriages at a marriage in a register office (from £34 to £40), and  for the attendance of a superintendent registrar and a registrar of marriages at a marriage at the residence of a house-bound or detained person (from £40 to £47 each).

The civil partnership (amendments to registration provisions) order 2005, SI 2005/2000
This order amends the Civil Partnership Act 2004 for the purpose of assimilating provisions relating to the formation of civil partnerships to provisions relating to civil marriage in England and Wales.

The amendments relate to—
(a) the process for giving notice of an intended civil partnership, the evidence that may be called for at that time and the public display of information from that notice;
(b) the provisions that apply as regards giving notice where one of the parties is resident in Scotland or Northern Ireland, is a member of the armed forces serving outside the UK or is subject to immigration control (in particular, the provisions are repealed in respect of Northern Ireland and narrowed in respect of the armed forces);
(c) where, and the hours during which, the civil partnership registration may take place and the effects (civil and criminal) of failure to comply with certain of those provisions: powers to create a process for the approval of premises for civil partnership registrations are established;
(d) matters relating to the formation of the civil partnership which will not need to be proved once the civil partnership is registered;
(e) the registrar general’s obligation to make publicly available a list of all civil partnership registrars, which is repealed.
The substantive provisions come into effect on 5 December 2005 with the rest of the act, but articles relating to the powers to make preparation for the new act are effected from 21 July 2005.

The community legal service (cost protection) (amendment) regulations 2005, SI 2005/2006
These regulations amend the community legal service (cost protection) regulations 2000  with effect from 25 July 2005.
Section 11 of the Access to Justice Act 1999 provides for the extent to which a person receiving funded services may be liable personally to pay the costs of legal proceedings where a costs order is made against him or her.

Regulation 3 of the principal regulations sets out the circumstances in which the limit under s 11(1) does not apply.

Regulations 2(1), 3(1)(d), 3(2) and 3(4) provide that the limit will not now apply in relation to certain funded family proceedings as defined in these regulations.

Regulations 2(2), 2(3), 3(1) (a) and (b), 3(3) and 5 make other minor amendments consequential upon changes to the funding code criteria which abolish support funding.

Regulation 4 amends reg 4 of the principal regulations, which provides for enforcement of a costs order so that its provisions only apply where cost protection applies. These regulations also contain transitional provisions.

The Community Legal Service (scope) regulations 2005, SI 2005/2008
These regulations, which came into force on 25 July 2005, amend sch 2 to the Access to Justice Act 1999 so as to exclude from the scope of the Community Legal Service, subject to any directions made under s 6(8) of that act, help in relation to any allegations of personal injury or death (before this amendment, only help in relation to allegations of negligently caused injury or death was excluded) in relation to applications for funded services made on or after 25 July 2005; and to include within the scope of the Community Legal Service advocacy in the crown court in an application for a restraint order under pt 2 of the Proceeds of Crime Act 2002.

The civil partnership (contracted-out occupational and appropriate personal pension schemes) (surviving civil partners) order 2005, SI 2005/2050
This order amends the Pension Schemes Act 1993 and subordinate legislation, making provision for surviving civil partners to receive pensions under contracted-out occupational and appropriate personal pension schemes. The substantive provisions come into effect on 5 December 2005 with the rest of the act, but articles relating to the powers to make orders in preparation for the new act are effected from 26 July 2005.

The civil partnership (pensions and benefit payments) (consequential, etc provisions) order 2005, SI 2005/2053
This order makes amendments to provisions of acts relating to pensions and benefit payments, extending those provisions to civil partners and surviving civil partners. The substantive provisions come into effect on 5 December 2005 with the rest of the act, but articles relating to the powers to make orders in preparation for the new act are effected from 26 July 2005

Recent articles on family and child law
Facilitating and enforcing contact: the Bill and the ten per cent by Judith Masson and Cathy Humphreys [2005] Fam Law 548

Family provision: the adult child and moral obligation by John Wilson and Rebecca Bailey-Harris
 [2005] Fam Law 555

Appeals from family proceedings courts: a plea for simplicity by district judge Glenn Brasse
[2005] Fam Law 559

Reform of the Human Fertilisation and Embryology Act 1990 by Dewinder Birk
[2005] Fam Law 563

Ménage a trios—relationships and the tax man by Susie Barter and Richard Hogwood
[2005] Fam Law 568

Special guardianship orders—an introduction byJulia Nelson
[2005] Fam Law 573

Web resources for the family lawyer and client by David Hodson
 [2005] Fam Law 576

Divorce law update James Brown (2005)
145 NLJ 1119