July 2006

Bulletin no 94 

Bulletin editor
Geraldine Morris, BSc

Solicitor and mediator, technical editor

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.
Butterworths Family Law Service.

Interpretation of s 33 of the Child Support Act 1991

Farley v Child Support Agency [2006] UKHL 31
BFLS 4A[201]; CHM 4[95]
Reversing the earlier decision of the Court of Appeal, the House of Lords considered the CSA 1991, s 33 which provides:
‘(1) This section applies where—
(a) a person who is liable to make payments of child support maintenance (“the liable person”) fails to make one or more of those payments …
(2) The secretary of state may apply to a magistrates’ court … for an order (“a liability order”) against the liable person.
(3) Where the secretary of state applies for a liability order, the magistrates’ court … shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.
(4) On an application under subsection (2), the court … shall not question the maintenance calculation under which the payments of child support maintenance fell to be made.’

The background of this matter was that the defendant had been required to show cause why a liability order should not be made under the CSA 1991, s 33. Before the magistrates the defendant accepted that the amounts of maintenance set out in three maintenance assessments, dated 28 November 2002, 29 November 2002 and 3 December 2002, were outstanding and unpaid. The defendant’s case before the magistrates was that the three maintenance assessments had not been lawfully made.

Section 4(10) of the act precluded an application for a maintenance assessment under s 4 if there was in existence a written maintenance agreement made before 5 April 1993. The defendant submitted that he was not a liable person and that the justices could not be satisfied that the payments alleged to be outstanding had become payable. The justices rejected that submission. The defendant’s appeal to the High Court was dismissed, and the defendant appealed to the Court of Appeal, which ruled that under s 33 the magistrates’ court had an adjudicative function on whether the non-resident parent was a liable person.

The matter returned to the Court of Appeal, which re-opened its original judgment. The court held that the decision of the judge below on the appeal by way of case stated was final and unusually the Court of Appeal set aside its earlier judgment. It granted the defendant leave to bring an application for judicial review of the magistrates’ decision, granted that application, and declared that the decisions of the judge below and of the magistrates’ court were wrong in law for the reasons set out in its earlier judgment.

The secretary of state appealed to the House of Lords. The appeal was allowed. The language of s 33(4), read in the context of the section as a whole, on its face admitted of only one interpretation: on an application for a liability order the magistrates’ court had to proceed on the basis that the maintenance assessment in question was lawfully and properly made. The court was precluded from questioning that assessment.

The magistrates’ court function was to check that the assessment related to the defendant brought before the court and that the payments in question had become payable and had not been paid. The provisions of ss 11, 18 and 20 of the act in its original form, when in force, provided an effective means by which an absent parent could challenge the secretary of state’s jurisdiction to make a maintenance assessment. There was thus no justification for reading s 33 as requiring or permitting the magistrates’ court to entertain such a challenge.

Comment: The House of Lords considered that given the existence of that statutory right of review and appeal, it would be surprising and undesirable if the magistrates’ court were to have a parallel jurisdiction to adjudicate upon the same question. Sometimes applications for liability orders are made and granted, and liability orders are enforced, even though at the time appeals against the validity of the relevant maintenance calculations are pending.

Clearly there are circumstances where this may be justified; for instance, where it is necessary to take steps to prevent assets from being put beyond reach. Equally clearly, there may be circumstances where it would be oppressive to follow this course.

When faced with an application for a liability order where an appeal is pending against the validity of the underlying maintenance calculation, the magistrates should consider whether it would be oppressive to make a liability order. If they consider it would be oppressive they should adjourn the hearing, pending the outcome of the appeal or for such shorter period and on such terms as may be just. The magistrates have this power under the Magistrates’ Courts Act 1980, s 54.

Expert witnesses

Expert witness immunity from suit in libel proceedings
Tufano v Vincenti [2006] EWHC 1496 (QB)
BFLS 3A[4702]; CHM 1[1335]

This was an application of Meadow v GMC [2006] 2 All ER 329 concerning the report of an expert prepared in course of family proceedings. The court was concerned with the issue of whether the report was protected by immunity from suit or defence of absolute privilege

In this case the county court had appointed a guardian for the claimant’s children and directed the guardian to commission, file and serve a report from a psychiatrist in respect of, inter alia, the claimant. The defendant psychiatrist was instructed and duly prepared a report. The claimant took issue with the contents of that report, and, having made complaints to professional bodies, brought proceedings in libel. The defendant applied for summary judgment dismissing the claim. He contended, inter alia, that his report was protected by immunity from suit or the defence of absolute privilege.

The court ruled: Having regard to previous authority, the immunity from suit of a witness in respect of evidence given in a court of law applied as much to an expert as to any other witness, and extended to any statement the witness had made for the purpose of giving evidence. There was no reason to explore the theoretical difference between immunity from suit and absolute privilege for present purposes. The report containing the words complained of clearly fell within that principle. Accordingly, summary judgment would be granted in favour of the defendant.

Comment: Clearly the impact of GMC v Meadows [2006] has been significant in this case. As reported in last month’s bulletin, the General Medical Council has been granted leave to appeal with the Attorney General intervening.


Consideration of parental consent to adoption plan
A City Council v O [2006] EWHC 1467 (Fam), [2006] All ER (D) 232 (Jun)
BFLS 3A[4197]; CHM 3[103]
In this case the local authority’s care plan, which recommended the adoption or long-term fostering of the children away from the mother, was approved by the court given the risks to the children of any repetition of the violence that the mother had shown should they be returned to her care.

The mother arrived in the UK from Nigeria in September 2004 and claimed asylum. She was seven months pregnant with the third respondent, K. In October the second respondent, M, then nearly four years old, arrived in the UK. The mother initially claimed that M was her daughter; however it transpired that she was the daughter of her husband’s first wife.

K was born in November. Following a brief period at nursery school, the school referred M to social services. After a visit to the mother’s home, a police protection order was made in relation to the children and they were placed with foster carers. The local authority issued care proceedings, pursuant to the Children Act 1989, recommending adoption or long-term fostering away from the mother. The father and M’s actual mother were informed of the proceedings. The court determined that certain injuries to M, including burns leaving permanent scarring, were deliberately caused by the mother. The mother was subsequently sentenced to 12 months’ imprisonment after pleading guilty to neglect and being convicted of cruelty. The mother refused to consent to K being freed for adoption, and sought for the return of both children to her care. M’s parents also refused to consent to adoption. The authority contended that consent was being unreasonably withheld and invited the court to dispense with their consent pursuant to s 16 of the Adoption Act 1976.

The application would be allowed. Looking at the matter objectively, the mother had unreasonably withheld her consent to freeing K for adoption. On a similar basis, the parents’ consent in respect of M would be dispensed with. The authority had proven its case that M and K were likely to suffer significant harm if returned to the care of the mother.

Comment: Of particular interest as an example of the application of s 16 of the Adoption Act 1976. Contrast with s 52 of the Adoption and Children Act 2002 regarding parental consent, which specifies three bases upon which parental consent may be dispensed with: the parent cannot be found; the parent is incapable of giving consent; or that ‘the welfare of the child requires it’. It may be that this last ground could be subjected to the scrutiny of the courts before too long as to its interpretation.

Child abduction

Recognition of foreign order within child abduction proceedings
Re T (children) (abduction: recognition of foreign judgment) [2006] EWHC 1472 (Fam), [2006] All ER (D) 203 (Jun)
BFLS 5A[2137]; CHM 1[1462]

Concerned consideration of a wrongful removal. The court held that the judgment and order of the Spanish court, vesting interim custody in the father, should be recognised and given force by the English court in accordance with council regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) (Brussels IIb), which by art 60(e) provided that, in relation to member states, the provisions of Brussels IIb ‘take precedence over the [Hague Convention 1980] in so far as they concern matters governed by Brussels IIb’.

In those circumstances the court refused the mother’s application for summary return of her two children to Spain pursuant to the Child Abduction and Custody Act 1985.
In this case the parties were married in 1998. The mother was Estonian and the father was British. They had two children, a girl who was almost eight, and a boy who was six. They were British citizens. In late 2000 they moved to Spain with the children and became resident there. The parties decided to separate. On 24 September 2005, in the absence of the mother and without her consent, the father flew to England with the children, a fact of which the mother became aware only when he telephoned from England so to inform her.

On 9 November the mother began matrimonial proceedings in Spain asking for orders for separation, custody and return of the children. On 2 February 2006, the father commenced county court proceedings in England both for divorce and for a residence order in respect of the children.

On 6 February, the Spanish court heard the mother’s provisional measures application for separation, grant to her of parental authority over the children and their care and custody, removal of their father’s parental authority over the children, an order forbidding the children leaving Spain, and confiscation of the father’s and children’s passports.

The father brought a counter application for care and custody of the children with visiting and communication rights to the mother. By its judgment of 9 February 2006, the Spanish court decided that care and custody of the children should be granted to the father.

On 13 February the mother issued proceedings applying for the return of the children to Spain pursuant to the Child Abduction and Custody Act 1985. The father relied upon the judgment and order of the Spanish court dated 9 February 2006. He contended that, despite the concession that his original removal of the children was wrongful for the purposes of art 3 of the Hague Convention, the unlawfulness of that removal had been overtaken by events, namely a full consideration by the Spanish court on welfare grounds of the appropriate place for the children to reside (ie England) pending the final hearing of the mother’s separation and the father’s divorce proceedings.

Comment: A difficult balancing act between the Hague Convention and Brussels IIb, in which the court considered that if it made an order for the return of the children to Spain, it would be failing to give effect to its recognition of the Spanish judgment and thus failing to accord precedence to Brussels IIb over the Hague Convention in that respect.

In the instant case, as a result of proceedings initiated by the mother in Spain, by the time the matter came before the English court for decision as to whether an order for the return of the children should be granted under the terms of the Hague Convention, those purposes would have been achieved, in the sense that there had been a full and careful hearing of the issue by a Spanish court in possession of all the relevant facts going to its welfare decisions, as well as the full circumstances of the father’s removal of the children.


Application for the discharge of an injunction prohibiting publicity allowed by the Court of Appeal
Clayton v Clayton [2006] EWCA Civ 878
BFLS 3A[4924]; CHM 1[1213]

An application for the discharge of a prohibitive injunction in this long-running case. The leading judgment by Sir Mark Potter included consideration of the Children Act 1989, s 97(2) and the Administration of Justice Act 1960, s 1(2).

The parties were married in 1997. They separated in spring 2000 and thereafter shared the care of their daughter. In September 2002 the mother commenced proceedings for contact and residence orders in respect of the child.

During those proceedings, and before they could be resolved at a hearing, the father abducted the child, removing her from the jurisdiction to Portugal without the knowledge or consent of the mother. The case attracted considerable publicity, including regional and national television coverage. After an absence of five-and-a-half-weeks, the father was arrested and imprisoned in Portugal where he remained for two months. On his return to England he was remanded in custody and sentenced to nine months’ imprisonment on a plea of guilty to child abduction.

On the application of the mother, the judge made an order restraining the father until the child’s 18th birthday or until further notice: ‘… from discussing or otherwise communicating (otherwise than for ordinary domestic and social purposes) any matter relating to the education, maintenance, financial circumstances or family circumstances (including any proceedings before any court) of …. (“the child”) other than with:
(a) any legal adviser whom he may consult or instruct;
(b) the other parties;
(c) the medical and educational advisers of the child;
(d) any person to whom information is communicated for the purpose of enabling the person to exercise any function in relation to the child which is authorised by Statute or by a court of competent jurisdiction; and
(e) any other person the court may permit…’

Agreement was subsequently reached in relation to the Children Act proceedings. The father applied for the injunction to be lifted in its totality. At first instance the judge declined to discharge the injunction. The father appealed and the appeal was allowed with a comprehensive analysis by Sir Mark Potter of the law.

Comment: The Court of Appeal concluded that when restricting the reporting and publication of proceedings involving children, the court was obliged in the face of challenge to conduct a balancing exercise between the art 8 rights of the child and the art 10 rights of the parent asserting such right, and/or, where press or media interest was involved, the art 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest.

The language of s 97(2) which prohibited publication of any material ‘intended or likely to identify …. any child as being involved in any proceedings before the High Court’ was, on the face of it, language which related to proceedings which were current. Its form was explicable as a provision designed to prevent harassment of children while the proceedings continued.

Moreover, s 97(2) was a penal provision and as such fell to be construed restrictively. Furthermore, the prohibition in s 97(2) constituted a specific restriction on the media’s right of free expression under art 10 of the convention. In that respect, s 3(1) of the Human Rights Act 1998 required that it should be read and given effect in a way that is compatible with the convention rights.

The injunction was discharged. In its place a prohibited steps order was made pursuant to s 8 and s 10(1)(b) of the 1989 act, restraining the father until further order from revisiting Portugal with the child and further restraining him from involving her in any way with the publication of any information relating to his abduction of her.

In the midst of current considerations of openness in the family courts, the practical consequences of this judgment are that henceforth it will be appropriate for every tribunal, when making what it believes to be a final order in proceedings under the 1989 act, to consider whether or not there is an outstanding welfare issue which needs to be addressed by a continuing order for anonymity.


Financial conduct a factor in s 25 consideration
M v M [2006] All ER (D) 58 (Jun)
BFLS 4A[712]

On an application for ancillary relief following a petition for divorce, the court took into account the conduct of the husband in the proceedings, in accordance with the Matrimonial Causes Act 1973, s 25 and awarded the wife a 62.5% share of the assets whilst the husband was awarded a 37.5% share.

Further, the court held that the approach to applications for disclosure by third parties to ancillary relief proceedings had not materially altered since the incorporation of the European Convention on Human Rights into UK domestic law.

Article 8 reinforced the principle that an order for disclosure was an intrusion into an individual’s privacy that was oppressive and unwarranted unless it could be shown to be both necessary and proportionate to the issues in the case. The court set out the considerations to be taken into account in such applications.

The parties were married in 1975 and had two fully grown children. At the material time, the husband was aged 56 and the wife aged 52. They jointly owned a company; the husband owning 85% of the share capital and the wife 15%. The husband borrowed substantial sums from the company and began to gamble heavily. The marriage broke down and the husband formed a relationship with a colleague at work, Ms P, with whom he lived.
The wife subsequently issued a petition for divorce and instigated ancillary relief proceedings, in the course of which the husband gave undertakings, including a promise not to gamble and to provide financial details and records. The husband continued to gamble and following his failures to provide proper answers to questions and incomplete disclosure, the wife sought and obtained permission to serve a subpoena duces tecum against Ms P, to require her to provide financial information that the husband had failed to supply.

The wife submitted that she should receive a larger share (65%) than her husband because of his financial irresponsibility, which she alleged had dissipated the assets, and his conduct in the instant proceedings. The husband submitted that the residual assets should be equally divided between him and his wife. As regards the subponea, Ms P submitted that some of the information sought from her was oppressive and infringed her right to respect for her private and family life under art 8 of the European Convention on Human Rights.

The wife submitted that the documents were relevant because of the husband’s failure to make full and frank disclosure and the suspected transfer of funds to Ms P.

The court ruled:
(1) The husband had not been frank and open either in his approach to the proceedings or with the court. He had chosen to ignore or disregard court orders where it had suited him to do so. It was conduct which it would be inequitable to disregard in deciding how the available assets should be divided.
(2) It was well established that there was no power to require a third party to file an affidavit or sworn statement in ancillary relief proceedings. In determining an application for disclosure against a third party, there were a number of relevant considerations, namely: (a) how important was the information to the issues in the proceedings; (b) had the applicant taken appropriate steps to obtain the information within the proceedings and to enforce orders for disclosure, without success before applying for third party disclosure; (c) would it be sufficient for the court to draw inferences adverse to the respondent from the refusal to supply the information and comply with court orders; (d) what was the relationship between the respondent and the third party and; (e) if disclosure was necessary and proportionate, did the documents contain private information that could be protected by editing.

Comment: The House of Lords judgment in Miller may have sounded the death knell for the superfluous introduction of conduct into ancillary relief proceedings but the overall principle survives in s 25 of the Matrimonial Causes Act 1973 as illustrated by this case where the husband’s financial conduct was considered to be a factor which the court could not disregard.

The judgment also contains a useful summary of the principles to be applied when considering an application for disclosure from third parties.

The Children and Adoption Act 2006 (2006 Asp 20) received royal assent on the 21 June 2006 with the commencement date to be appointed. The act makes provision as regards contact with children, family assistance orders, risk assessments, and as regards adoptions with a foreign element.

Recent articles on family and child law

Collaborative law – James Pirrie – (2006) 156 NLJ 898

First hearing dispute resolutions and privilege – Graham Green – [2006] Fam Law 366

The EU’s draft regulation on maintenance obligations – Gavin Smith – [2006] Fam Law 466

Making contact – John Mitchell – (2006) 156 NLJ 621

Child support – looking to the future – Nick Wikeley – [2006] Fam Law 360

The Best Interests of Children in the South African Constitution – Elsje Bonthuys – (2006) 20 IJLPF 23

Family Home: Doing Justice to the Parties – Mark Pawlowski – [2006] Fam Law 462

Farewell Calderbanks, Hello Open Offers: The New Costs Rules – David Hodson – [2006] Fam Law 276

Adoption and Children Act 2002 – Special Guardianship – Richard Powell – (2006) 10 Mags CP 3, 13

The judgment of the president of the family division is expected in July in a landmark case relating to the validity of a lesbian Canadian marriage. The couple are British and were legally married in Vancouver in 2003. They are asking the court to recognise their marriage under the Family Law Act 1986, s 55.

For an overseas marriage to be recognised in the UK it must be shown that the marriage was legal and recognised in the country in which it was executed. Further that nothing in the country’s law restricted their freedom to marry. The couple argued that the failure to recognise their marriage, as a marriage as opposed to a civil partnership, was a breach of the Human Rights Act 1998.

The Department for Constitutional Affairs published a post-consultation report for the consultation paper Civil and Family Court Fee Increases on 30 June 2006. The paper was published on 23 September 2005 and closed on 18 November 2005.

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