October 2006

Bulletin no 97 

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.

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. References are also included, where relevant, to Rayden & Jackson on Divorce.

Special educational needs
Whether tribunal erred in finding school specified by local authority adequate

F v London Borough of Croydon [2006] All ER (D) 137 (Aug)
BFLS 3B[10438]; CHM 6[1102]; Rayden Noter up 1(1) 2.95

This was a decision of Sullivan J in the Queens Bench Division of the High Court (Administrative Court).

The claimants were the mother and father of J, who suffered from autism and Asperger’s syndrome with significant sensory difficulties.

He had difficulties in mainstream school and had been permanently excluded from two schools. On 20 September 2005, a statement of his special educational needs was made by the first defendant, naming B school in relation to J.

The claimants appealed to a special educational needs and disability tribunal, seeking to have C school, which was more costly, named in place of B school. They contended that B school was a school for children with emotional and behavioural disorders and did not provide the specialist care which J needed.

They contended that J should be sent to an independent school for children with autism and Asperger’s syndrome. The first defendant objected to the cost of C school.

At the hearing the headmaster of B school, W, gave inaccurate information that B school was registered with the National Autistic Society and had provisions to meet J’s needs. The tribunal relied heavily on W’s evidence and ruled against the claimants and they appealed.

They submitted that the tribunal had been misled by the evidence of W and that in fact B school was registered with the Department for Educational as a school for persons with behavioural and emotional disorders, and was not registered with the National Autistic Society.

Rather it was registered on a public internet site. They further submitted that the tribunal had erred in that, inter alia, its reasoning had been inadequate, and it had failed to ascertain whether provision was available at B school to meet J’s needs.

The issue was whether the tribunal could have come to a different decision if it had known that B school was not registered with the National Autistic Society and was registered with the Department for Education as a school for persons with emotional and behavioural problems.

The appeal was allowed. From the authorities, it was clear that the question of registration of B with the National Autistic Society and with the Department for Education was relevant to the issue of whether B school would be able to adequately provide for the needs of J.

In the instant case a material fact had been omitted at the hearing of the tribunal.

The question was not whether the correct information would have led to the tribunal reaching a different conclusion, but was whether it could have led to it reaching a different conclusion. There was a realistic possibility that that had the tribunal known of the true position it could have come to a different decision.

A v Kirklees MBC and Dorsey [2001] EWCA Civ 582; R v Chief Constable of Thames Valley Police ex p Cotton; Ellison v Hampshire County Council [2000] All ER (D) 236 were considered.

Comment: The relevant statutory provisions are contained in Part IV of the Education Act 1996.

Section 312 provides:

(1) A child has “special educational needs” for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him, subject to the definition of a learning difficulty which for the purposes of this Act applies if:

(a) he/she has a significantly greater difficulty in learning than the majority of children of his/her age;

(b) he/she has a disability which either prevents or hinders him/her from making use of educational facilities of a kind generally provided for children of his/her age in schools within the area of the local educational authority.

In this Act “special educational provision” means educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his/her age in schools maintained by the local education authority.

Sections 321–326 make provision for the identification and assessment of children with special educational needs. By s 324 if, in the light of an assessment, it is necessary for the local education authority to determine the special educational provision needed for a learning difficulty, the authority must make and maintain a statement of the child’s special educational needs.

By sub-s (2) the statement is to be in a prescribed form and in particular s 324(3) provides:

In particular, the statement shall:

(a) give details of the authority’s assessment of the child’s special educational needs; and

(b) specify the special education provision to be made for the purpose of meeting those needs.
Further that the statement shall:

(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child;

(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution … which they consider would be appropriate for the child and should be specified in the statement; and

(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.’

Section 325 gives a right of appeal to the Special Educational Needs Tribunal.

The relevant regulations are the Education (Special Schools) Regulations 1994.

In this case the area of disagreement was the allocation of a particular school by the local education authority under s 324(4), with ultimately the issue turning upon the evidence erroneously relied upon by the tribunal, highlighting the steps parents of special needs children may have to undertake personally.

Child abduction
Recognition of foreign judgment in Hague Convention proceedings
Re T (children) (abduction: recognition of foreign judgment) [2006] EWHC 1472 (Fam), [2006] All ER (D) 203 (Jun)
BFLS 5A[2197.1]; CHM 2[42]; Rayden 1(2) 45.86

This was a decision of Sir Mark Potter P as to whether the judgment of the Spanish court should be recognised by English court with consideration of the Hague Convention on the Civil Aspects of Child Abduction, Council Regulation (EC) 2201/2003.

The parties were married in 1998. The mother was Estonian and the father was British. They had two children, a girl who was almost 8, and a boy who was 6. 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. The father commenced county court proceedings in England both for divorce and for a residence order in respect of the children.

The Spanish court heard the mother’s provisional measures application for separation and made an order in the following terms:

(a) the mother was granted parental authority over the children and their care and custody;

(b) the father’s parental authority over the children was removed;

(c) 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, indicating that she had previously been unaware of the Hague Convention.

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.

In those circumstances, the order of the Spanish court 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’.

The mother’s application for the summary return of the children to Spain was dismissed. The Spanish judgment was recognised for the purpose of the present proceedings.

Comment: The original application by the mother to the Spanish courts was under domestic Spanish law, the mother indicating, perhaps surprisingly as she had instructed Spanish lawyers, that she was unaware of her possible course of action under the Hague Convention.

Sir Mark Potter P took the view that if the court 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.

Further, that the primary rationale underlying the Hague Convention was to ensure that decisions as to the welfare of children, and questions as to where and with which parent they should reside, were taken in the country of the child’s habitual residence.

 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 child should be granted under the terms of the Hague Convention, those purposes would have been achieved.

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.

The Spanish court had specifically vested interim custody in the father on the basis that the children should continue to reside in England with the father as their main carer, and with appropriate and beneficial educational arrangements, pending a full and final hearing.

By virtue of the relevant Spanish law, the interim custody order was not capable of appeal and would remain in place till the resolution of the divorce and/or separation proceedings. In those circumstances, if the court was obliged to return the children, it would defeat rather than assist the overall purpose of the Hague Convention.

However, by application of the provisions of Brussels IIb, such a result was avoided.

Breach of non-molestation order
Appeal against committal order upon basis of procedural defects
Devjee v Patel [2006] EWCA Civ 1211
BFLS 1A[4032]; CHM 5[248]; Rayden 1(1) 30.3

On 4 July 2006, after a contested hearing at Northampton County Court, it was found that the appellant had on two occasions breached a non-molestation order made under Part IV of the Family Law Act 1996 in the same court in favour of the respondent.

The two breaches found by the judge were first, that on 2 June the appellant had assaulted the respondent outside the employment offices at Wellingborough and knocked her to the ground.
The second was that on 18 June just after midnight he had gone to her home and smashed a window with a hammer. For each of those two breaches the judge imposed a sentence of three months’ immediate imprisonment, which he made consecutive: a total of six months.

The appellant applied to set aside the judge’s order on the ground that it was obtained by means which were procedurally defective, those procedural defects having caused him serious injustice.

Further that the judge relied on evidence which should not have been admitted and which was prejudicial as opposed to probative and that the judge did not afford him a proper opportunity to put his case and did not afford him a fair trial. He was unrepresented throughout.

Finally, that the sentence passed was in any event manifestly excessive in all the circumstances and breached guidelines.

In his judgment, Wall LJ set out in careful detail the history of the matter and the orders made by the lower court to address in particular the point raised as to procedural irregularities.

He indicated that whilst in relation to matters relating to the liberty of the subject procedure is important, the importance of procedure is to ensure that a person who is charged with contempt has a full knowledge of the allegations made against him or her and the opportunity to address them.

The fact that there may not be the relevant piece of paper or that the precise procedure had not been followed does not mean that the procedure is unfair to the contender. The process was properly fulfilled, albeit there may have been minor irregularity.

In relation to the allegation of non-representation the allegations against the appellant were of a very simple kind and he was plainly able to deal with receiving the judge’s assistance in so doing.

The allegations of improper evidence, excessive sentence and lack of a fair trial were also not upheld and the appeal was dismissed.

Comment: The appellant in this case relied upon the guidelines as to sentencing set out by the Court of Appeal in Hale v Tanner [2000] 3 FCR 62 in which Hale LJ (as she then was) made it clear that whilst the court has to consider the question of imprisonment very carefully, there is no principle which requires a contender in the first instance either to give them a suspended sentence or not to imprison.

The guidelines are worth reconsidering in detail:

(i) imprisonment is not the automatic consequence of a breach of an order, and there is no principle that it should be imposed on the first occasion;

(ii) in an appropriate case, particularly if no actual violence had been proved, there are a range of options to consider: the court could make no order, adjourn the case, impose a fine, requisition assets, or make a mental health order;

(iii) if imprisonment is appropriate, the length of the committal should be decided without reference to whether or not it was to be suspended;

(iv) the length of the committal reflects the court’s disapproval of the disobedience to its order and is to secure compliance in the future: the seriousness of what had taken place had to be viewed in that light;

(v) the length of the committal must bear some reasonable relationship to the maximum sentence of two years’ imprisonment;

(vi) the sentence can be suspended in a wider range of circumstances than in criminal cases, and it did not have to be an exceptional case;

(vii) the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal;

(viii) the context of the case, which could be aggravating or mitigating, must be borne in mind;

(ix) that any concurrent proceedings, based on either the same facts or some of the same facts, in another court should be borne in mind and the outcome might have to be taken into account in considering what the practical effect was upon the contempt proceedings;

(x) it would usually be desirable to explain very briefly the reasons for the choices made in the particular case.

In most cases it would be appropriate for the contemnor to know why he/she was being sentenced to a period of imprisonment; why it was the length it was; and if it was suspended, why the suspension was as it was, so that he/she understood the importance of keeping court orders, of not breaking them and the likely consequences if they were broken.

Numerous reported cases have subsequently considered the issue of sentencing and it may be that further guidance is required by the Court of Appeal. It should be noted that once the relevant section of the Domestic Violence Crime and Victims Act 2004 is in force it is expected that breach of any of the terms of a non-molestation order will be dealt with in the criminal courts, as such breaches are made a criminal offence under the new Family Law Act 1996, s 42A.

Committal will remain available, however, for any cases in which such breaches are not treated by the authorities as a criminal offence.

It is also worth noting that there is a wider range of powers available to the courts under the Protection from Harassment Act 1997: five years’ imprisonment as opposed to two years’ imprisonment under the Family Law Act 1996.

Public children
Whether failure to disclose evidence in care proceedings was procedurally unfair
Re L (children) [2006] All ER (D) 121 (Aug)
BFLS 3A[4719.1]; CHM 1[1340.1]; Rayden 1(2) 37.16

The proceedings concerned two children: G, a female born November 1995, and B, a male born in February 1999. The parents were married. Both parents suffered from significant learning difficulties, with the mother in the lowest percentile of IQ.

The father was effectively illiterate, although with a higher performance IQ, of 100. He was the dominant figure in the household. The children lived with their parents from birth.

Considerable assistance was given to the household by the local authority. No significant problems occurred until 2003, when the father permitted an offender to stay in the house, who committed a sexual assault on G.

As a result, for a year thereafter the authority provided ‘keep safe’ workers for the family. A prosecution of the offender resulted in a conviction and a ten-year sentence.

In late 2004, the authority withdrew the extra workers and effectively closed the file, on the basis that G was not at risk of significant emotional or physical harm.

In September 2005, a pupil at school with one of the children reported that the father was whipping both of them with belts. The authority began an investigation, and removed the children into temporary foster care.

It took the view that the children were both suffering significant harm, and were likely to continue suffering it.

By May 2006, the authority was of the view that there was no substance to the allegation that the father had hit the children. However, it reformulated the case so as to contend that, due to the disabilities of the parents, the children had been exposed to harm and neglect, referring inter alia to G’s abuse.

It relied on a report by a psychiatrist, W, who had interviewed the children and others associated with them. The judge held that the threshold had been crossed and concluded that the children should remain in foster accommodation. The parents appealed.

Counsel for the parents contended that the authority’s stance was inconsistent, and that the procedure had been unfair, since they had never seen the notes of W’s interviews or other material on which she had relied. The appeal was allowed.

The Court of Appeal held that it was wrong to refer to the sexual abuse of G by the convicted paedophile, since the authority had ‘closed the file’ in respect of the incident and its consequences for the ongoing care of the children.

W’s evidence did not support her conclusions, on the facts. It was procedurally unfair for the material on which she relied not to have been shown to the parents’ lawyers. Further, until the removal of the children, the authority had never taken the view, despite being involved with them throughout their lives, that they would be better off elsewhere than with their parents.

Since their removal, the children had consistently wished to be returned to the parents. The matter was remitted to the High Court for fresh determination by a different judge.

Comment: A Court of Appeal decision highlighting the importance of expert evidence. In this case the non-disclosure of the psychiatrists’ notes and materials was fatal to the local authority’s case.

In contrast, in the recent case of W v Oldham MBC [2005] All ER (D) 370 (Oct) Wall LJ considered the importance of the instruction of a second expert in appropriate public childcare cases and commented:

‘Cases in the family justice system involving the deaths of, or serious injuries to, children are heard by experienced, specially selected and qualified judges.

One of the reasons, in my judgment, why the family justice system has not been the subject of the criticism to which the criminal justice system has recently been exposed, is that family judges rarely decide cases on the evidence of a single expert.’

Legislation
Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2006, SI 2006/2364

Summary
Changes the references to those within the Legal Services Commission who are responsible for considering certain claims, applications and appeals in family proceedings. Amends the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001, SI 2001/1077, so as to change the references to those within the Legal Services Commission who are responsible for considering certain claims, applications and appeals.

The change is to reflect recent amendments to the Legal Services Commission Funding Code. Commencement date: 2 October 2006

News
The DCA has issued a consultation paper seeking views on the policy behind the proposed new Family Proceedings Rules.

The new Rules will be made by the Family Procedure Rules Committee with the brief of harmonising family proceedings across all family courts and moving them into line with the Civil Procedure Rules wherever possible.

The consultation paper is not seeking views on the final content of the new Rules, but instead seeks views on a range of proposals currently under consideration.

The proposals have been presented under six major sections:
Part 1 Modernisation of language and process
Part 2 Matrimonial and Civil Partnerships Proceedings
Part 3 Financial Proceedings
Part 4 Children
Part 5 Family Proceedings in Magistrates Courts
Part 6 Appeals

The consultation ends on 1 December 2006.

Recent articles on family and child law
‘Work and Families Act—A Guide’ Michael Rubenstein [2006] 156 EOR 22

‘Opening up the Family Courts—a Personal View’ Lord Justice Wall [2006] Fam Law 707

‘Doing the Right Thing: Cohabiting Parents, Separation and Child Contact’ Karen Laing [2006] (20) IJLPF 169

‘Adoptions and Placements: Evidence in Practice’ Robert Stevens [2006] 170 JPN 510