November 2006

Bulletin no 98 

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.

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

Public children
Whether judge erred in excluding possibility of child residing with paternal family in Turkey
Re A (a child) (care order) [2006] All ER (D) 247 (Oct)
BFLS 3A[4263]; CHM 3[500.198]; Rayden 1(2) 47.78

Re A (a child) (care order) [2006] All ER (D) 247 (Oct) is a Court of Appeal decision in relation to care proceedings brought by the local authority in respect of three children.

The father of the youngest of the three children was a Turkish national and had had a short-lived relationship with the mother. The mother had withdrawn from the youngest child’s life, and the local authority sought a care order in respect of the child, with a view to placing him for adoption.

The local authority was supported by the guardian, but the father opposed the application. He raised, inter alia, the following possibilities:

(i) he could reside in Wales and care for the child; and

(ii) he could care for the child in Turkey, but not, however, residing with his family in his home village, but in a tourist resort, where there would be more favourable employment opportunities for him.

There was also a possibility of the child being cared for by the father’s paternal family in his home village, in particular by the father’s sister. The guardian was open-minded about the latter possibility.

No one, however, considered a referral to international social services, for an assessment of the family in Turkey. Instead, the guardian volunteered to travel to Turkey, accompanied by a social worker and an interpreter, to make the assessments.

Accordingly, the judge adjourned the hearing to allow the assessments to take place.

On the strength of a six-hour visit with the family, and a taxi ride through the village, in which she had not actually exited the taxi, the guardian concluded that the child could not be put in the care of the family.

Her report was only delivered to the father and his legal team on the eve of the further hearing. The judge rejected the options put forward by the father, and the option of the child being cared for by the paternal family, and made the care order sought by the local authority. The father appealed.

He submitted, inter alia, that the judge had erred in dismissing the possibility of the child being cared for within the paternal family, without a more profound investigation. He stated that he would be willing to return to his home village, to be the child’s primary carer, living with his family.

The appeal was allowed on the basis that the father had advanced a case which had never been considered before. He would sacrifice his work ambitions and would return with his child to his village, where he would be the child’s primary carer. The father’s mother and his sister would play major parts in the child’s life.

No doubt the child was highly adoptable, but that was a poor substitute for being brought up in his own family, not only with the father, but with uncles, aunts and the grandmother.

The judge had been beyond the bounds of the wide ambit of his discretion in closing down the possibility of the child residing with his Turkish family, on the basis of the guardian’s report, which had only been available to the father and his legal representatives on the eve of the trial, and with which the father’s legal team had had no opportunity to deal. The judge’s order was set aside.

Comment: This is a decision which highlights the increasingly international aspect of many family circumstances and the importance of taking appropriate steps to take this into account in an appropriate manner in the course of investigations.

The care order in this case was replaced with an interim care order with a guidance from the Court of Appeal that the fresh case had to be very carefully prepared and considered, with the co-operation of international social services to be obtained to deliver a report on the paternal family, in the context of the father’s proposal to be a part of that family.

There was no criticism of the judge at first instance, whose management of the case had been exemplary, but the matter would be heard by a different judge, so as to avoid any perception of preconceptions formed on the basis of past hearings.

Financial provision
Entitlement to assets accrued post separation of the parties
S v S [2006] EWHC 2339 (Fam), [2006] All ER (D) 118 (Oct)
BFLS 4A[805]; Rayden 1(1) 16.53

This was a decision of Singer J in the Family Division. The parties were married in September 1977, but separated in March 1996 when the husband moved out of the matrimonial home. Following the separation, the husband developed his business without any form of support or contribution from the wife.

In March 2003, the husband presented his petition for divorce relying on five years’ separation. The decree absolute was pronounced in September. In November 2003, the wife applied for ancillary relief. It was the intention of both parties that the wife should retain the ownership and occupation of the matrimonial home. The husband ran a company, T Ltd, which he submitted had no historical base in any pre-separation dealings. The wife claimed a share in T Ltd’s assets, as the company had its roots in another company the husband had been involved in while the parties were together.

The court ruled that on the facts, the wife should not share proportionately in the liquidity that might be released from T Ltd shares. That arrangement struck a fair balance between the obligations and entitlements flowing from the marriage and its aftermath and the achievement of the parties’ shared objective of securing the wife’s retention of the matrimonial home.

Comment: Any consideration of assets accrued post separation is in effect a consideration of the factors set out in the Matrimonial Causes Act 1973, s 25. Previously this issue was considered by Baron J in M v M (ancillary relief: division of assets accrued post-separation) [2004] All ER (D) 83 (Apr).

A ‘big money’ case, the total pot of assets was £12,405,550, of which the pre-separation assets totalled £6.971 million and the post-separation assets totalled £5.434 million.

In relation to the assets accrued post-separation, Baron J said:
‘The assets that have been built up since the parties have separated fall to be considered in this case because the litigation has not been unduly delayed and the parties have been financially linked throughout. In addition, the husband failed to make adequate interim provision’.

In terms of future bonuses (in effect capital sums), however, he held:
‘The husband may receive substantial bonuses in the future but to do so he will have to work a very punishing schedule.

I do not consider his future earnings to be a marital asset which falls for division in this case. There may be cases when needs will dictate that future income must be shared because the parties’ capital is insufficient.

This wife’s claim for “inchoate lump sums” is effectively a claim for maintenance by another name. It is not justified’.

Whilst most cases will not involve such sums of money, the principle has general applicability.

Variation of provision within periodical payments order to fund litigation
Currey v Currey [2006] EWCA Civ 1338, [2006] All ER (D) 218 (Oct)
BFLS 4A[934]; Rayden Noter-up 55.17A

A rich wife applied for a clean break order. Her husband, who was relatively poor in comparison to the wife, applied for a variation to the periodic payments order that had been made in his favour, seeking an additional amount to cover his costs in procuring the legal advice and representation which he needed in order to make an adequate response to his wife’s application.

The judge decided that the husband could not reasonably have procured legal advice and representation otherwise than by a costs allowance, and having considered all the other features of the case, including the fact that the husband already owed £46,000 to the wife in respect of costs, ordered the wife to increase the periodical payments by £10,000 per month for four months so as to provide the husband with £40,000 with which to procure continued legal advice and representation until the end of the financial dispute resolution.

The wife appealed. The wife contended that the judge had misunderstood the law referable to the inclusion of a costs allowance within an order for periodical payments and that it was not open to the judge to make a costs allowance where the husband, inter alia, owed the wife for costs.

The appeal was dismissed by the Court of Appeal upon the basis of now established authority that the initial overarching inquiry was into whether the applicant for a costs allowance could demonstrate that he or she could not reasonably procure legal advice and representation by any other means.

Thus, to the extent that he or she had assets, the applicant had to demonstrate that they could not reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services.

Furthermore, he or she had also to demonstrate that he or she could not reasonably procure legal services by the offer of a charge upon ultimate capital recovery. The court also would need to be satisfied that there was no public funding available to the applicant as would furnish her with legal advice and representation at a level of expertise apt to the proceedings.

Comment: This is a useful review of the often contentious provision for legal costs within periodical payments orders following the line of decisions in A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FCR 226, TL v ML (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FCR 465 and Moses-Taiga v Taiga [2006] 1 FLR 1074.

The Court of Appeal indicated that when exercising the discretion other factors might also come into play which would on occasions lead the court to decline to make it notwithstanding the demonstration.

The subject-matter of the proceedings would always be relevant and, insofar as it could safely be assessed at so early a juncture, the reasonableness of the applicant’s stance in the proceedings. So would a variety of other features, such as whether the applicant already owed money to the spouse in respect of costs.

In the instant case the judge’s approach to the application was essentially correct and the exercise of his discretion could not be faulted. An unusual feature of the proceedings was that the poor husband was seeking funds with which not primarily to pursue the wife but to defend himself against an application of profound importance to him which she brought against him, which it was prima facie reasonable for him to do.

By virtue of that feature, the significance of his liability for costs to her receded to some extent. The judge had also been correct in crafting his order to carry the husband’s representation only until the end of the FDR appointment.

Per curiam: Whenever a court decides to make a costs allowance, it ought to proceed with a judicious mixture of realism and caution as to both its amount and its duration. A financial dispute resolution appointment is a watershed and all reasonable inducements to both parties there to negotiate positively in the light of informal judicial indications should be in place.

The knowledge of a spouse in receipt of a costs allowance that, absent settlement at or in the immediate aftermath of the financial dispute resolution, she will have to apply for a further allowance, which may or may not be granted, amounts to a reasonable inducement, as opposed to improper pressure, to reach settlement.

Adoption
Transitional provisions: whether natural parent entitled to notice under the Adoption Act 1976 in relation to proceedings brought under the Adoption and Children Act 2002

Re F (children) (adoption: notice of hearing) [2006] EWCA 1345, [2006] All ER (D) 205 (Oct)
BFLS 3A[4184]; CHM 3[103]; Rayden Noter-up 47.104

The applicants sought to adopt two brothers, aged five and seven respectively, pursuant to the Adoption and Children Act 2002. The two children had been subject to care orders under the Children Act 1989, Pt IV, but they had been freed for adoption pursuant to the Adoption Act 1976, s 18 and placed for adoption with the applicants by the adoption agency.

It was clear that under the 1976 Act the birth parents would not be given notice of the adoption application hearing. However, an issue arose as to whether the position was different for birth parents whose children were freed for adoption under the Adoption Act 1976, but who were the subject of adoption proceedings under the Adoption and Children Act 2002.

The judge at first instance concluded that it was. He found, inter alia, that the changes introduced by the 2002 Act reflected a more enlightened approach to birth parents, and that in the circumstances it would be wrong for the birth parents to be kept wholly ignorant of the applications that their children should be adopted.

The judge ordered that the birth parents should be given notice of the adoption hearing, and the opportunity to file and any serve a written statement. He ordered that the birth parents could attend or be represented if they so wished. The applicants appealed.

They submitted, inter alia, that there was no legal requirement that the birth parents be notified of the final hearing, pursuant to the 1976 Act or the Family Procedure (Adoption) Rules 2005.

The appeal (Court of Appeal, Ward and Wall LJJ) was allowed upon the basis that where proceedings for adoption were brought under the 2002 Act in respect of a child who had been freed for adoption under the 1976 Act, the court would follow the procedure laid down in the 1976 Act, pursuant to Sch 4, para 7(1) to the 2002 Act, unless any provision of the 2002 Act or the 2005 Rules required the court to do otherwise.

Nothing in either the 2002 Act or the 2005 Rules required the court to give notice of the proceedings to the children’s birth parents. Section 19 of the 1976 Act, which limited the duties of the adoption agency to notifying the birth parents that the children had been placed for adoption and/or adopted, expressly continued to apply.

It followed that in the instant case the judge had been plainly wrong to hold that the children’s birth parents had a right to be notified of the final hearing of the adoption proceedings. The matter would proceed to a final hearing as soon as possible without notice of that hearing being given to the children’s birth parents.

Comment: The relevant provision, found in the Adoption and Children Act 2002, Sch 4, para 7, provides in relation to freeing orders, as follows:

‘(1) Nothing in this Act affects any order made under section 18 of the Adoption Act 1976 (c 36) and—

(a) sections 19 to 21 of that Act are to continue to have effect in relation to such an order, and

(b) Part 1 of Schedule 6 to the Magistrates’ Courts Act 1980 (c 43) is to continue to have effect for the purposes of an application under section 21 of the Adoption Act 1976 in relation to such an order.’

And in sub-para (3) of the same paragraph:
‘(3) Where a child is free for adoption by virtue of an order made under section 18 of that Act, the third condition in section 47(6) is to be treated as satisfied.’

Duty of care
Duty of care was not owed to parents in respect of any aspect of an investigation into the abuse of children
L v Reading Borough Council [2006] EWHC 2449 (QB)
BFLS 3A[3191.2]; CHM 6[103]

The claimants were, respectively, daughter and father. The father was suspected of sexually abusing the daughter when she was very young. He was not allowed to see her for many years. The allegation was later held to be unfounded.

In the instant proceedings, the claimants sought damages for the actions of the social workers and the police officers involved.

An application was made to strike out some of the causes of action pleaded against some of the defendants. The application related to part of the particulars of claim in which it was pleaded that the first and second local authorities, which were successors to the relevant local authority involved at the material time, were vicariously liable for the actions of four social workers who were alleged to have been in breach of a duty of care which they had owed to the father.

One of the social workers, S, was alleged to have failed to question the daughter properly at two interviews, or to have recorded the daughter’s responses and demeanour during the first interview or to represent accurately what the daughter had said at both interviews, or to provide appropriate information about the daughter.

In addition, S and three other social workers were alleged to have failed to support contact between father and daughter if that had been possible, or to follow and apply the authority’s policies and guidelines relating to the assessment of allegations of sexual abuse and the making of recommendations to the child protection committee.

The first and second defendants contended, relying on recent authority of the House of Lords in D v East Berkshire Community Health NHS Trust; K v Dewsbury Healthcare NHS Trust; K v Oldham NHS Trust [2005] UKHL 23 [2005] 2 All ER 443, that it was not fair, just or reasonable for a duty of care to be owed by the social workers to the father, as a parent being investigated in a case of alleged child abuse.

The claimants sought to distinguish the instant case on the basis that the allegations against the social workers related to their operational competence, and not to any decisions which called for evaluation or judgment.

The court ruled that having regard to authority, it was to be inferred that a duty of care was not owed to parents in respect of any aspect of an investigation into the abuse of children.

Comment: The effect of the distinction which the claimants sought to draw would be to impose a duty of care on social workers to the parents of children who were the subjects of investigations into abuse in respect of some aspects of the investigation and not others.

The interviewing of the child, and the relaying of the contents of that interview, were just as much part of the investigation as the evaluation of that and other material in deciding whether intervention was necessary.

A duty of care could not be said to exist for some purposes in the course of an investigation into child abuse and to cease to exist for other purposes because of a shift in the factual matrix. It either existed for all purposes or for none.

To hold otherwise would be to put social workers in an impossible position. It followed that it would not be fair, just or reasonable to treat the social workers employed by the authority who had handled the investigation of the daughter’s alleged abuse as owing a duty of care to the father in respect of the conduct of the investigation.

The cause of action alleging a breach of duty in that regard was not a claim recognised by law and would be struck out.

Education
Whether an order that child attend a particular school imposed condition on residence order for residence in particular locality

Re G (a child) (education) [2006] All ER (D) 67 (Oct)
BFLS 3A[1746]; CHM 1[681]

The mother and father married in England, and were English, although they lived in Australia. They had one child, a son.

When their marriage broke down, the Australian court ordered that the child should reside with the mother, with the father having extensive contact. Later, the mother decided to re-locate to England.

After some time, the father agreed, on the basis that he would also re-locate to England. He had obtained a job as a PE teacher at a school in Bedfordshire. The mother would live temporarily with her brother (the uncle) in Buckinghamshire, which was about 40 miles away from the school.

The Australian judge ordered that the child should attend the father’s school, and reside with the mother, on the basis, inter alia, that the travelling time between the uncle’s house and the school was about one hour. The Australian judge did not consider the mother’s financial means.

The same extensive contact provisions were made in respect of the father. Subsequently, however, the mother relocated to Dorset.

The father applied to a district judge of the county court, seeking an order that the child attend his school, and that he be given contact on the same terms as that ordered by the Australian court. The district judge found for the mother, but the father’s appeal to High Court against that decision was allowed by the deputy judge, on the basis that, in the spirit of comity, the English court ought to respect the order of the Australian court, and that the English court ought to make orders on the same basis, unless anything significant had changed since the making of the Australian order.

The mother appealed.

She submitted, inter alia, that the order of the deputy judge essentially amounted to imposing a condition on the residence order in her favour, limiting where she could live. She submitted that the orders of the deputy judge and the Australian judge were unworkable.

The appeal was allowed by the Court of Appeal upon the basis that the deputy judge had erred in not sufficiently examining the basis of the order relating to schooling made by the Australian court, and not sufficiently examining the insufficient evidence adduced before the Australian judge.

Comment: In the instant case, even if the mother and the child had lived with the uncle for an indefinite period, the distance between the uncle’s home and the school was 40 miles, with the result that the child would have to travel 80 miles a day. There had been no practical consideration at the previous hearings of the mother’s financial circumstances, the fact that she did not own a car, and the further difficulties in a child travelling that distance each day.

The Court of Appeal considered that an alternative course of action, that the mother could move closer to the school, faced two difficulties. First, if the mother moved to Dorset, and the child went to school there, the father could change jobs and also move there.

Although the difficulties should not be underestimated, there were good opportunities for him, since, as the father admitted, there were lots of vacancies for PE teachers. Second, the order as to schooling effectively imposed a condition on the residence order that the mother reside within a particular locality.

The geographical distance between the uncle’s house and the school would be so deleterious to the welfare of the child that it could not be countenanced. It would be wrong to require the mother to relocate closer to the school. Moreover, it was unrealistic to expect the child to travel from Dorset to Bedford to attend school.

The Court of Appeal decision in Re E (minors) (residence: conditions) [1997] 3 FCR 245 was applied, in which Butler Sloss LJJ commented:

‘A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the United Kingdom or with whom’.

Human rights
Infringement of right to family life under Art 8
HK v Finland (App No 36065/97) [2006] ECHR 36065/97, ECtHR
BFLS 5A[4209]; CHM 1[4001.2]; Rayden Noter-up 49.8

The applicant was the father of two children, K born in 1988 and H born in October 1990. He and the mother of the children divorced in January 1992, having lived apart since November 1990. The applicant assumed the care of H some ten days after her birth.

According to an agreement reached in connection with the separation and confirmed by the social welfare board, K was to reside with the mother and H with the applicant. The parents had joint custody of the children.

Following their separation, the mother contacted the social welfare authorities, alleging that H had been sexually abused by the applicant. She also reported her suspicions to the family day care nurse. The applicant was not informed of the reports.

A lengthy and complex involvement by with the social welfare department ensued including proceedings.

The court found that Art 8 had been violated in that the Finnish authorities failed to issue an emergency care order before the effective removal of the applicant’s daughter from his care and as to the imposition of restrictions on access.

However, it found no sufficient causal link between those violations and the pecuniary damage allegedly suffered. These claims were therefore rejected.

However, the court considered that the violations of the applicant’s right to respect for his family life must have caused him suffering and distress. Making an evaluation on an equitable basis, the court therefore awarded him EUR 5,000 for non-pecuniary damage (plus costs and expenses).

Comment: The ECtHR considered the earlier ECtHR (Grand Chamber) decision in K and T v Finland (app no 25702/94) [2001] 2 FCR 673, a case similarly involving care proceedings and restrictions upon access in which it was held that that the existence or otherwise of a family life, for the purposes of Art 8 of the Convention, was a question of fact.

Further that when considering in such cases whether interference with family life had been necessary: ‘the court had to take into account varying perceptions as to appropriateness of intervention in different states, depending on such factors as traditions as to the role of the family and state… the task of the court was not to substitute its own view as to the appropriate care of children, but simply to review the decisions actually taken’.

It is clear that the discretion is wide and the ECtHR is generally reluctant to interfere with member state decisions save in fairly extreme circumstances.

For an example of the domestic approach to action and decisions made by social services, see L v Reading Borough Council [2006] EWHC 2449 (QB) above.

News

Listening to children: open and accountable family courts
Read the speech made by Harriet Harman MP, Minister of State for Constitutional Affairs on ‘Opening up the family courts: an open or closed case?’ at the recent CAFCASS conference.

Report: Separating from Cohabitation: Making Arrangements for Finances and Parenting
DCA report on arrangements for separation after cohabitation, presenting findings from an in-depth study of 29 former cohabitants exploring how couples make arrangements for parenting and financial division following separation from a cohabiting relationship.

The report provides suggestions for how advice, information and assistance might be improved for this highly diverse group.