December 2007

February 18, 2008 in Legal

December 2007

Bulletin Editor
Geraldine Morris, BScSolicitor and mediator, technical editor

PRIVATE CHILDREN

Whether contact in best interests of children following abusive behaviour towards mother

Re F (children) (contact) [2007] EWHC 2543 (Fam), [2007] All ER (D) 52 (Nov)
BFLS 3A[1830]; CHM 1[655.1]; Rayden Noter-up 37.8

The mother and father had two children, D and N. Subsequent to the breakdown of the parents’ relationship, the mother successfully applied for a residence order and the father was granted parental responsibility, as well as permission to take the children to Mexico for a holiday. Following the holiday, the father adopted a course of abusive behaviour towards the mother, including threatening phone calls.

An agreement was reached in respect of contact, but further difficulties arose, and orders were subsequently made, inter alia, suspending contact. The mother took the children to a refuge. The father attempted unsuccessfully to obtain duplicate passports for the children and continued to make threatening calls. He pleaded guilty to harassing the mother.

In January 2007, a residence order was granted in favour of the mother with supervised contact to the father, notwithstanding his contention that the children should spend half the year with the mother and half with him (see [2007] All ER (D) 165 (Jan)). Between January and September 2007, the father continued to send abusive messages to the mother including allegations that the children were being abused by her partner. On numerous occasions in March and April, he stated that he would collect the children from their home. On 1 May, he waited in his car outside the children’s home before they went to school. The mother returned to a refuge before finding a new home in another area and contact was suspended.

In June and August, the father applied for the immediate custody of the children and for a residence order, alleging neglect and physical abuse by the mother. He also made an application for the judge to recuse himself, which was dismissed. In the course of proceedings in August, he stated that he was going to find out where the children were and that he was going to get them. The mother applied for permission to change the children’s surnames to prevent the father from discovering where they were living and going to school, and for an order pursuant to the Children Act 1989, s 91(14), requiring the father to obtain the court’s permission to make any application for the next three years.

This is a carefully reasoned decision by Sumner J as to whether contact with the father was in the best interests of the children.

The court ruled:

(1) a change of surname should not be permitted without evidence that it would improve the children’s welfare. If a change of surname provided some extra protection against abduction, that added to the children’s welfare. Enormous upset to the boys would be caused if the father were to take them. The risk of that was significant. Accordingly, a change of surname to reduce that risk was justified and in the boys’ best interests. Dawson v Wearmouth [1999] 2 All ER 353 was applied;

(2) in the instant case, what the court was looking for was change in the father. The welfare of the children demanded that they be protected with their mother from hopeless applications for residence, unwarranted applications without notice, and relentless abuse and threats. Their need for stability and absence of stress had reached a very high point. Only an order under s 91(14) of the Act could further protect them as their welfare required. An order would be made for a term of two years. It would not stop the father making applications but it would provide the necessary filter of the court’s sanction;

(3) taking the children’s welfare as the paramount consideration, and having regard to the welfare checklist, it was necessary to conclude that continuing contact, even supervised, was not at the instant time in the children’s best interests.

Comment: Also of interest in the instant case is the consideration of the father’s application for the judge to recuse himself from the case. Sumner J set out a careful analysis of the relevant case law and with judicial diplomacy referred to the father’s allegations (which were wide ranging) as ‘in part wild and extravagant’. The relevant case law may be found in the judgment of the Court of Appeal in Howell v Millais (2007) EWCA Civ 720 in which the following guidelines were given:

(i) justice must be seen to be done but that does not mean that judges should too readily accept suggestions of appearance of bias thereby encouraging parties to believe that they might thereby obtain someone more likely to favour their case;

(ii) the fact that a judge had commented adversely on a party or witness or found them to be unreliable would not found an objection unless there were further grounds;

(iii) a real danger of bias might well be thought to arise:

(a) if there was personal friendship or animosity between a judge and any member of the public involved in the case,

(b) if the judge was too closely acquainted with such a person,

(c) if the judge had rejected the evidence of such a person or expressed views in such extreme or unbalanced terms such as to throw doubts on their ability to approach the person or the issue with an open mind,

(d) or for those or other reasons cause doubt in the ability of the judge to ignore extraneous matters or prejudices and bring an objective judgment to bear;

(iv) a judge should resist the temptation to recuse himself simply because it would be more comfortable to do so as for instance when the litigant appears to have lost confidence in the judge;

(v) the test remains, having considered all the circumstances bearing on the suggestion that the judge could be biased, whether those circumstances would lead a fair minded and informed observer adopting a balanced approach to conclude that there was a real possibility that the tribunal was biased.

Upon the application of the above guidelines to the instant case, the father’s application for the judge to recuse himself was dismissed.

PUBLIC CHILDREN

Whether judge erred in determination of frequency of post-adoption contact

Re C (children) (contact) [2007] All ER (D) 463 (Oct)
BFLS 5A[101]; CHM 1[1056]; Rayden 1(2) 47.58

D and C were born, in 2000 and 2004 respectively, into a family affected by alcoholism and domestic violence. During the course of family proceedings, in the face of the mother’s opposition to placement orders being made with a view to the children being adopted, the district judge dispensed with the requirement of parental consent thereto. Notwithstanding agreement between the parties that contact with the mother should continue post-placement, a dispute arose as to the frequency of direct contact and as to the need to make a contact order.

The local authority took the view that direct contact should take place once annually, in addition to indirect contact by letters and photos twice annually. R gave evidence on behalf of the local authority’s placement officer that contact would prejudice the likelihood of placement. The guardian recommended that direct contact should take place twice annually, stating that the need for contact was so great that the need for adoption ought not to take priority. The district judge held that direct contact should take place once annually and that it was not in the interests of the children to make a contact order pursuant to the Children and Adoption Act 2002, s 26 as the local authority was committed to post-placement contact. The mother and guardian appealed.

The mother submitted, inter alia, that the district judge had failed to provide full and cogent reasons for departing from the recommendations of the guardian. In the alternative, she submitted that, if such reasons had been given, the district judge had failed to give adequate weight to the recommendations. She further submitted that, in the event that contact should be ordered twice annually, an order should be made under s 26 of the Act as such an outcome was very different to what the local authority had proposed. The guardian invited the court to make such an order even if the decision as to frequency of contact was upheld, as otherwise there would be no need to police the contact arrangements.

The mother’s appeal was dismissed on the following basis:

(1) the district judge had been compelled to make a choice between two witnesses as to who she was to rely upon regarding the critical matter of contact. On a fair reading of her judgment, it was entirely implicit that she had accepted R’s evidence in preference to that of the guardian. She had quite clearly expressed why it had been that she accepted her evidence. In the light of that, it was unarguable that the district judge had failed to give adequate weight to the guardian’s recommendations. She had plainly given consideration to them, but had felt compelled to prefer the evidence of R;

(2) whether or not an order under s 26 of the Act should have been made had been a matter for the court’s discretion. The district judge had come to a conclusion, a factual conclusion which was not susceptible to appeal unless plainly wrong, that the local authority was committed to post-placement contact. It was impossible to say that that was a perverse conclusion.

Comment Section 26 of the Adoption and Children Act 2002 (amendments pursuant the Adoption and Children Act 2006 italicised) provides:

(1) On an adoption agency being authorised to place a child for adoption, or placing a child for adoption who is less than six weeks old, any provision for contact under the 1989 Act ceases to have effect [and any contact activity direction relating to contact with the child is discharged].

(2) While an adoption agency is so authorised or a child is placed for adoption–

(a) no application may be made for any provision for contact under that Act, but

(b) the court may make an order under this section requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other.

(3) An application for an order under this section may be made by–

(a) the child or the agency,

(b) any parent, guardian or relative,

(c) any person in whose favour there was provision for contact under the 1989 Act which ceased to have effect by virtue of subsection (1),

(d) if a residence order was in force immediately before the adoption agency was authorised to place the child for adoption or (as the case may be) placed the child for adoption at a time when he was less than six weeks old, the person in whose favour the order was made,

(e) if a person had care of the child immediately before that time by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person,

(f) any person who has obtained the court’s leave to make the application.

(4) When making a placement order, the court may on its own initiative make an order under this section.

(5) This section does not prevent an application for a contact order under section 8 of the 1989 Act being made where the application is to be heard together with an application for an adoption order in respect of the child.

(6) In this section, [‘contact activity direction’ has the meaning given by section 11A of the 1989 Act and] ‘provision for contact under the 1989 Act’ means a contact order under section 8 of that Act or an order under section 34 of that Act (parental contact with children in care).

In the instant case the court took the view that the judge at first instance had been correct in her consideration of the evidence and the making on an order under the section.

Whether authority under duty to make enquiries about long-term care for child with family

Re C (a child) (adoption: duty of local authority) [2007] EWCA Civ 1206, [2007] All ER (D) 368 (Nov)
BFLS 1A[3004]; CHM 1[75]-[80]; Rayden 1(2) 49.71

The 19-year-old unmarried mother of a child, now four months old, had not realised that she was pregnant until a late stage. The pregnancy was the result of a one-night stand. The mother had kept her pregnancy a secret from her family, and only sought medical help when she went into labour. Immediately after the child was born, she made it clear that she wanted her placed for adoption. She also said that she did not think that her family could give the child a home, giving reasons. She declined to identify the child’s father.

The local authority applied for a care order under the Children Act 1989. The judge held that under the Adoption and Children Act 2002 the authority was under a duty to inform itself of as much information about the background of the extended family as it was able to do. He directed the authority to disclose the existence and identity of the child to the extended maternal family and, if he could be identified, the putative father and any extended paternal family. He overruled the mother’s objections, in the interests of the child.

After the judge had made his order, there was a misunderstanding as a result of which the children’s social care section of the authority wrote to the mother’s parents seeking an interview but not giving the reason. The parents discovered that the mother had given birth to the child and contacted the authority offering to assist in resolving the situation. The parents had not taken part in the instant proceedings and had not been made a party to them. The mother appealed against the judge’s order.

The following issues arose on the appeal:

(i) whether s 1 of the 2002 Act imposed a duty on the local authority to make enquiries about long-term care for the child with her mother’s family and, if those enquiries did not yield a long-term carer for her, with the child’s father, if identified, and his family; and

(ii) how the court’s discretion to give directions about contacting the extended family or father of a child in a case such as the instant case should be exercised.

The appeal was allowed by the Court of Appeal on the following basis:

(1) When a decision was required to be made about the long-term care of a child, whom a mother wished to be adopted, there was no duty to make enquiries which it was not in the interests of the child to make, and enquiries were not in the interests of the child simply because they would provide more information about the child’s background: they had genuinely to further the prospect of finding a long-term carer for the child without delay. That interpretation did not violate the right to family life. The objective of finding long-term care had to be the focus of making any further enquiries and that meant the court had to evaluate evidence about those prospects.

In the instant case, the judge had directed himself according to the wrong principle and his exercise of discretion had to be set aside. The court therefore had to exercise the discretion afresh.

(2) The court should not require a preference to be given as a matter of policy to the natural family of a child. Section 1 did not impose any such policy. Rather, it required the interests of the child to be considered. Where a child had never lived with her birth family, and was too young to understand what was going on, that argument had to be weaker. In a case such as the instant case, it was (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that could be done.

A strict view had to be taken of the situation, because the child was already four months old, and starting to form relationships. Moreover, in view of the conclusion that the authority should not have informed the mother’s parents about the child, it would be unfair to the mother if they were placed in a better position than they would have been in if the authority had not told them about the child, simply because of the mistake that had occurred. The mother had no part in that. Furthermore, the mother’s parents were not shut out from making their own application to have long-term care of the child, if they wished to do so. They could take out an application under the 1989 Act. The father was only a one-night stand, and had no family life with the child or the mother, entitling him to the guarantee of respect for that family life under Art 8 of the European Convention on Human Rights. There was no basis for supposing that he could provide a home for the child. Steps would have to be taken to identify who he was. The prospects of his being a long-term carer were too intangible to justify a delay in making a placement for the child.

The judge’s order was set aside. The authority and the child’s guardian would be directed to take no steps to identify the father or to inform him of the birth of the child; or to introduce the child to her grandparents or to assess them as potential carers for her. The authority would be further directed to meet the maternal grandparents to explain to them the outcome of the appeal.

Comment On the issue of human rights, Arden LJ commented:

‘The Strasbourg jurisprudence appears to establish that near relatives, particularly grandparents, automatically have a family life with a child even if the child has never lived with them: see Marckx v Belgium (1979-1980) 2 EHRR 330 at [45]. But, in other situations at least, it all depends on the facts. It includes a potential relationship, that is, a relationship which may develop. However, family life as between a father and a child born out of wedlock is not automatic. The father must have had some relationship with the mother and expressed his commitment to the child in some way, even if there was no cohabitation: Nylund v Finland Application No 27110/95, 29.12.99; cf JRM v Netherlands [Application No 16944/90] and see Re H; Re G, above. Moreover, intended family life may, in some circumstances, be enough to establish a right to respect for one’s family life: Pini v Romania (2005) 40 EHRR 13.’

Following the authorities, the father of E would have no right to respect for his family life with E because he had no family life with her. He had never lived with her mother or expressed any commitment to E. In reality he could not have done so because he did not know of her existence. The Court of Appeal took the view that it is not a violation of a Convention right to deprive a father of the possibility of obtaining a right to respect family life with a child and if there is no Convention right under Art 8(1), accordingly it is unnecessary to ask whether Art 8(2) would apply.

INHERITANCE ACT

Cohabitant’s entitlement to a reasonable financial provision under Inheritance (Provisions for Family and Dependants) Act 1975

Negus v Bahouse [2007] All ER (D) 353 (Oct)
BFLS 4A[3513]; Rayden noter up 23.9

The deceased hanged himself in March 2005. He had two former wives, a son and daughter from his first marriage, and had been cohabiting with N at the property he owned since 1997. Pursuant to a 1996 will, the deceased’s son was the majority beneficiary of his £2.2m estate. No provision was made for N in the 1996 will. Probate was granted to the defendant’s son and first wife. They issued possession proceedings in respect of the property. Subsequently, N cross-applied for a declaration that she had a beneficial interest in the property and/or sought reasonable financial provision for her future pursuant to the Inheritance (Provisions for Family and Dependants) Act 1975, s 2, having come within s 1(1B) of the Act. Section 1(1B) of the 1975 Act applied to a person if for the whole of the period of two years ending immediately before the date when the deceased died was a person who lived in the same household as the deceased as the deceased’s partner. In her evidence, N stated that she had given up work to become a housewife for the deceased and they had plans to marry. She also stated that the deceased repeatedly commented that she would have a roof over her head and that she would be taken care of.

The court ruled that even allowing for the equivocal statements made by the deceased in relation to the property, the court could not, on the evidence, spell out a specific agreement that would grant N a beneficial interest in the property. On the facts, however, N fell within the provisions of s 1(1B) of the 1975 Act, and was entitled to reasonable financial provision to be made for her.

In the circumstances of the instant case, a reasonable financial provision for N’s lifetime would be the transfer of the property to her, without the encumbrance of mortgage, and the payment of £240,000. The possession claim was dismissed.

Comment A decision of Judge Roger Kaye QC sitting as a judge of the Chancery Division of the High Court. The primary application of the deceased cohabitant was based essentially on the Trusts of Land and Appointment of Trustees Act 1996, s 14. This part of her claim failed on the basis set out in para 48 of the judgment:

‘It is important to remember that the court cannot adjust the shares under this Act; it can only declare them unlike the court’s power, for example, under s 24 of the Matrimonial Causes Act 1973. It is also important to remember that s 53(1) of the Law of Property Act 1925 provides that, no interest in land can be created orally and no declaration of trust in respect of land can have effect if made orally. However, excluded from this ambit by s 53(2) are resulting, implied or constructive trusts. Thus, the usual way the interests are established are by one or other of these methods or, as Ms Negus seeks here, by the doctrine of proprietary estoppel. Since she is the one who is seeking to depart from the legal title in the name of Henry and show that there was a joint beneficial entitlement, the burden is on her: see Stack v Dowden [2007] 2 AER 929 HL at p 953, paragraph 68 per Baroness Hale of Richmond.’

He went on to instead award the claimant, after a careful analysis of expenditure and consideration of other assets including a Spanish property, a sum to provide for reasonable financial provision under the 1975 Act.

PRIVACY

Whether appropriate to continue court restricting publication in relation to children

Re R (children) (identification: restriction on publication) [2007] EWHC 2742 (Fam), [2007] All ER (D) 361 (Nov)
BFLS 3A[6025]; CHM 1[1215.2]; Rayden Noter-up 4.19

The parents had four children, A, S, Z and K, who were aged five, four, two and one respectively. In November 2005, the local authority issued care proceedings in relation to all four children, due to the admission of S to hospital with non-accidental injuries. Care orders were made in October 2006 and placements orders were subsequently made as a preliminary to adoption. In 2007, the children were removed from foster care and placed with prospective adopters.

The local authority obtained an injunction against the father on account of his threatening and intimidating behaviour. Following a breach of