September 2006

Bulletin no 96 

Butterworths Family and Child Law Bulletin

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.

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.

Children
Whether conditions may be attached to an order made under the Children Act 1989, s 91(14) prohibiting further applications without the leave of the court
Re S (children) (restriction on applications); Re E (a child) (restriction on applications) [2006] EWCA Civ 1190, [2006] All ER (D) 92 (Aug)
BFLS 3A[5607]; CHM 1[746]; Rayden 1(2) 37.1

This case was a consideration by the Court of Appeal of orders prohibiting a party from making further applications under Children Act 1989 without leave and whether court could attach conditions to order under the Children Act 1989, s 91(14).

Section 91(14) of the Children Act 1989 provides:
‘On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court’.

In joined applications for permission to appeal made by two fathers, concerning their respective children S and C-W, who were the subjects of orders made under s 91(14), the issues for the court’s determination were, inter alia:

(1) whether it was permissible to attach conditions to a s 91(14) order;
(2) the correct approach, both for the court and for the person subject to the s 91(14) order, when an application for permission to apply was made; and
(3) in what circumstances was it appropriate to make a s 91(14) order, expressed to be without limit of time or to last until the relevant child became 16.

The court ruled:
(1) apart from dealing with the ambit and duration of the order, s 91(14) did not make provision for the attachment of any conditions;
(2) further, a s 91(14) order could properly be made without limit of time or for the period over which the court, absent exceptional circumstances, had jurisdiction to make orders in relation to children under s 8 of the Act;
(3) however, orders made without limit of time, and expressed to last until a child was 16, should be the exception rather than the rule, and where they were made, the reasons for making them should be fully and carefully set out;
(4) a party who was the subject of an order under s 91(14), which had been made because of particular conduct by that party, had to have addressed that conduct if his application for permission to apply was to warrant a renewed judicial investigation or to present an arguable case.

Re A [1999] 1 FCR 127 and Re P [1999] 2 FCR 289 were both considered.

Comment: Whilst this judgment is not unique in its consideration of orders restricting further applications under the Children Act 1989, it provides a useful opportunity to examine this often problematic area of the law.

In B v B (residence order: restricting applications) [1997] 2 FCR 518 at 525 Butler-Sloss LJ said:
‘It is a very useful weapon in the arsenal of judicial weapons. It must not be made unless there is a clear basis on evidence for doing it. It is a power which the court should exercise with great care and sparingly because it is inevitably denying to a party his inalienable right to bring proceedings in the court and to be heard in matters which affect his children’.

In Re P (a child) (residence order: child’s welfare) [1999] 2 FCR 289 Butler Sloss LJ set out the following guidelines which are echoed in the judgment in Re S above:

(i) s 91(14) of the 1989 Act should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration;

(ii) the power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances;

(iii) an important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child;

(iv) the power is therefore to be used with great care and sparingly, the exception and not the rule;

(v) it is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications;

(vi) in suitable circumstances (and on clear evidence) a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications;

(vii) in cases under point (vi) above, the court will need to be satisfied first, that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family, and second, that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain;

(viii) a court may impose the restriction on making applications in the absence of a request from any of the parties, subject of course to the rules of natural justice, such as an opportunity for the parties to be heard on the point;

(ix) a restriction may be imposed with or without limitation of time;

(x) the degree of restriction should be proportionate to the harm it is intended to avoid.

Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order;

(xi) it would be undesirable in other than the most exceptional cases to make the order ex parte.

Leave to remove application
Whether judge erred in refusing relocation application
Re M-K (a child) (relocation outside the jurisdiction) [2006] All ER (D) 223 (Jun)
BFLS 5A[2074]; CHM 1[128]; Rayden Noter up 43.57

In this Court of Appeal decision (Thorpe, Arden and Wilson LJJ) the mother was a Brazilian and after the break-down of her relationship with the father, she sought to return to Brazil with their baby daughter.

The father did not consent to that, and he accordingly applied for, inter alia, a residence order. In response, the mother applied for a relocation order. She proposed that she would return to her home town in Brazil, and live in her great-grandmother’s house, where she would have the support of her family.

She would work at her uncle’s law firm, which had a branch office nearby. The father would have contact, and the daughter would be raised to be bilingual, with the benefit of both her heritages.

At first instance issues arose regarding the mother’s legal qualifications. The CAFCASS officer, in her evidence at the hearing, said that the mother would suffer short-term emotional distress, maybe even depression, if the relocation application was refused.

The judge, however, refused the relocation application. She found that the mother had tried to mislead the court concerning her qualifications, raising doubts as to the mother’s future employment and financial prospects. She also found that that had infected the mother’s credibility on other issues, such her willingness to facilitate contact with the father. The mother appealed.

She submitted, inter alia, that the judge (i) had been unfair in rejecting her credibility; and (ii) had misunderstood and ignored evidence in criticising the mother’s practical proposals and in concluding that she would readily adjust to the refusal of her relocation application.

The appeal was allowed and the court held:

(1) There was no doubt that the judge’s rejection of the mother’s credibility was unfair and unwarranted. Insufficient allowance had been given to the fact that she had told the CAFCASS officer that she would require further qualification in order to practise.

The finding did not reflect the fact that the details about the mother’s qualifications had emerged spontaneously in evidence. It had not been part of the father’s case that the early written statements had been misleading and wrong, and the mother had not been cross-examined on that basis.

The judge ought to have allowed the mother the opportunity to explain and justify herself. The finding of adverse credibility on one narrow point had infected the judge’s view of the mother’s credibility on the other issues.

Nowhere had the judge considered the fact that the mother had given evidence in a second language, and had probably had to compile her written statements with the aid of interpreters.

(2) The judge, in concluding that the mother would readily adjust to the refusal of her relocation application, had founded herself on the CAFCASS officer’s evidence, in a way that was not borne out by an analysis of the transcript of evidence.

The officer had in fact said that the mother could in the short-term suffer emotional distress, maybe even depression, if the relocation application was refused. Furthermore, the judge had been wrong in relying on the officer’s evidence in criticising the mother’s practical proposals and the evidence supporting them.

The CAFCASS officer had in fact made it plain at the hearing that her earlier reservations, which she had expressed in her written report, no longer persisted. The judge had also appeared to have forgotten the two letters sent by the family firm to the court.

It followed that the judge’s reasoning for refusing a strong relocation application was flawed in almost every area canvassed. The application to relocate would, in principle, be granted.

Strong orders would be required in this jurisdiction and in Brazil to ensure that the daughter’s relationship with the father and her English heritage were maintained.

Comment: It is perhaps unsurprising that the mother chose to appeal the original decision in this case.

Relocation applications are often fraught with difficulty as the impact upon both parties is considerable.

Payne v Payne [2001] All ER (D) 142 (Feb) remains the leading authority in which Thorpe LJ summarised the guidelines as follows:

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

The importance of this area of family law was underlined in September 2005 by the Resolution debate of the motion ‘This house believes that leave to remove is too easily granted’.

Contempt of court
Whether applicant as well as contemnor having appeal as of right against order
Wood v Collins [2006] All ER (D) 165 (May)
BFLS 1A[4034]; CHM 5[249]; Rayden Noter-up 30.3

Rule 52.3 of the Civil Procedure Rules 1998 provides:
‘(1) An appellant or respondent requires permission to appeal—(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against—(i) a committal order; (ii) a refusal to grant habeas corpus; or (iii) a secure accommodation order … ‘

The defendant was found by the judge to have been in breach of a non-molestation and occupation order and was committed to prison for 28 days suspended on the condition that the defendant did not enter a defined area where the claimant, his former partner, lived and worked.

The claimant appealed against that decision, proceeding on the basis that, pursuant to CPR 52.3(1)(a)(i), permission to appeal was not needed from either the judge or the Court of Appeal.

She contended that, in the circumstances, the suspended committal order had been unduly lenient and that nothing other than a term of immediate custody could be justified. The defendant contended that permission to appeal was needed. He submitted that as the wording used in CPR 52.3(1)(a)(ii) and (iii) was restrictive to a person or about a person whose liberty had been restricted, CPR 52.3(1)(a)(i) should be read in a similar way.

The court ruled:
(1) on the proper construction of CPR 52.3(1)(a)(i), no permission to appeal was required by either an applicant or a contemnor. The right of appeal without permission against a committal order was not to be considered as restricted to the contemnor. The claimant had, accordingly, been entitled to appeal against the judge’s decision as of right;

(2) in the circumstances, where the defendant had committed repeated breaches of the order, and threatened and intimidated the claimant, the sentence of 28 days’ imprisonment had been unduly lenient.

The claimant’s appeal was allowed to the extent that the sentence of 28 days would be substituted by one of three months, although that sentence remained suspended on the terms imposed by the judge.

Comment: Lomas v Parle [2004] 1 All ER 1173 was applied as to consideration of the issue of leniency. In that case it was held that a sentence for contempt of court in breaching injunctions granted under s 42 of the 1996 Act should not be increased unless the court were satisfied that it was not merely lenient, but was unduly lenient.

Legislation
Divorce etc (Pension Protection Fund) Regulations 2006, SI 2006/1932
Commencement 8 August 2006. Modifies the MCA 1973, s 25(E)(5), (8) and (9) so as to allow for cases where a pension attachment order has been made and the Board of the Pension Protection Fund becomes involved with the pension arrangement in question.

Further modifies Matrimonial Causes Act 1973 so as to provide for notices of change of circumstances in relation to pension attachment orders to be given to the Board where appropriate and for the Board to be discharged from liability in circumstances where payments cannot be made to the correct party or are made in error due to lack of or incorrect information.

Children Act 1989 Representations Procedure (England) Regulations 2006, SI 2006/1738
Commencement 1 September 2006. Revokes and replaces SI 1991/894 so as to regulate the procedure which local authorities are to follow in the consideration of representations made to them about the discharge of certain functions under the Children Act 1989 and under the Adoption and Children Act 2002. Amends SI 2001/2874, SI 2002/546, SI 2004/719, SI 2005/3482, SI 2001/3967 and SI 2002/57.

Adoption and Children Act 2002 (Consequential Amendment to Statutory Adoption Pay) Order 2006, SI 2006/2012
Commencement 1 October 2006. Amends the Social Security Contributions and Benefits Act 1992 to provide that in England and Wales a person may not elect to receive statutory adoption pay where a child is placed or about to be placed with him as a member of a couple and his partner satisfies the entitlement conditions for statutory adoption pay and has elected to receive it.

A couple is defined as a married couple, two people who are civil partners of each other or two people (whether of different sexes or of the same sex) living as partners in an enduring family relationship.

News

Evans v UK
The date has been set for the final hearing in Natallie Evans’ battle to be allowed to use frozen embryos she created four and a half years ago. The European Court of Human Rights has granted her a hearing before the Grand Chamber, where 17 European Judges will finally determine whether the Human Fertilisation and Embryology Act 1990 breaches her human rights. The hearing will take place on the 22 November 2006 in this last stage of proceedings which began in September 2002.

European Commission—Rome III
The European Commission published its proposal for a Regulation on applicable law and jurisdiction in divorce matters on 17 July 2006, called Rome III. This is a key step towards the European Commission’s aim of establishing a common judicial area based on the principle of the mutual recognition of judgments and follows publication of the Green Paper in March 2005.

The draft Regulation is presented as an amendment to the Brussels II bis Regulation (2001/2003) and introduces new jurisdictional rules in relation to party autonomy and, for the first time, includes conflict of laws rules. The overall objective is to provide a clear and comprehensive framework of matrimonial matters in the European Union.

The draft regulation will now be debated and the UK government must make a decision within three months as to whether it will be bound by the new Regulation.

Commission research shows that 2.5 million items of real property were owned by spouses located in states different from their residence and that there are 170,000 international divorces each year within the community.

Department for Education and Skills Consultations
The DfES launched a consultation on 14 August 2006 seeking views on the local authority duty set out in s 11 of the Childcare Act 2006 to conduct an assessment of the sufficiency of childcare in their area.

The Act places duties on English local authorities to improve outcomes for young children and reduce inequalities between them; to secure sufficient childcare to enable parents to work; and to provide information to parents about childcare and a wide range of other services that may be of benefit to them.

The consultation closes on 6 November 2006.

In addition, on 4 August the DfES launched a consultation as to a review of the regulatory framework for children’s social services.

Modernisation of this framework is needed to allow the Commission for Social Care Inspection (CSCI) to target and improve its activity so that it has maximum impact in protecting and safeguarding the children and young people using these services. The consultation closes on 10 November 2006.

Domestic Violence protocols
The protocols introduced in April 2006 for disclosure of police information in family proceedings have been updated. The aim of the protocols is to provide the courts with information required to make any necessary directions relating to documents, records or other evidential material held by the police.

DCA cnsultation
Section 122 of the Children and Adoption Act 2002 amended the Children Act 1989 to allow court rules to be made to provide for children to be separately represented in all s 8 private law proceedings by making such cases ‘specified proceedings’ in line with public law proceedings.

However the government has always been clear that such provision is only relevant for a small proportion of children involved in private law proceedings arising from parental conflict.

The need to make new court rules was acknowledged in a written ministerial statement on 11 January 2006. The Department for Constitutional Affairs has issued a consultation paper on how to improve the outcomes for children involved in family proceedings.

The consultation ends on 8 December 2006.