October 2007

Butterworths Family and Child Law Bulletin


October 2007

Bulletin Editor

Geraldine Morris, BScSolicitor and mediator, technical editor




Legitimate exercise of residual discretion under Art 12


Re M (children) (abduction) [2007] All ER (D) 69 (Sep)
BFLS 5A[2115]; CHM 2[664]; Rayden 1(2) 45.39

The mother and father were married by a customary ceremony in 1993 in Zimbabwe. Two children were born to the marriage, aged 12 and 10 respectively by the time of the case. A civil law marriage was celebrated in 2000, very shortly before the parties’ separation. In 2001, the mother left the family home and the children remained in the care of their father. The mother submitted an application to the magistrates seeking custody of the children, but her application was subsequently dismissed when she failed to attend. In 2002, the mother left Zimbabwe to visit the UK, but was immediately deported. She assumed a new identity and two years later she returned to Zimbabwe where she had periodic contact with the children.

The mother entered into a bigamous marriage with M. Three days after the marriage she executed a planned abduction to leave Zimbabwe with the two children. The mother and the two children arrived in the UK and sought asylum. The father initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980, seeking the return of the children.

At the hearing, oral evidence was heard from the parents and also a CAFCASS officer. The judge examined the defences put forward by the parents; dealt at length with the immigration position; acquiescence; intolerability and grave risk of harm. The judge found that the mother had established settlement in the UK and that the children did not object to remaining in the UK. However, in the event, the judge exercised his residual discretion to order the return of the children to Zimbabwe. The mother appealed against that decision.

She submitted, inter alia, that the brevity of the judge’s balancing exercise had meant that he had not factored in a number of considerations; and that he had directed himself wrongly as to the purpose and policy of the Convention.

The appeal was dismissed by the Court of Appeal upon the basis that the judge had not in anyway misdirected himself. He had, in considering the law governing Art 12 of the Convention, referred to the relevant Court of Appeal authorities and had not been misled. There were no circumstances in the instant case which amounted to a defence under Art 13(b) of the Convention. The father’s submissions were well made and viewed in totality, he had sufficiently demonstrated that the judge had exercised his residual jurisdiction without misdirection; without attaching weight to immaterial matters; and without disregarding to any degree the material matters. The judge had legitimately exercised his residual discretion and the balance clearly tipped in favour of ordering the return of the children to Zimbabwe.

Comment: Article 12 of the Hague Convention provides, so far as material:


‘Where a child has been wrongfully removed or retained … and at the date of the commencement of the proceedings … a period of less than one year has elapsed from the date of the wrongful removal or detention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment’



In the instant case the mother sought to defend the father’s applicant under Art 13(b). The Court of Appeal considered, inter alia, the earlier Court of Appeal decision in Cannon v Cannon [2004] All ER (D) 252 (Oct) in which the issue of residual discretion was specifically dealt with by Thorpe LJ in his carefully considered judgment. He stated:

‘I would unhesitatingly uphold the well-recognised construction of the concept of settlement in Article 12(2): it is not enough to regard only the physical characteristics of settlement. Equal regard must be paid to the emotional and psychological elements. In cases of concealment and subterfuge the burden of demonstrating the necessary elements of emotional and psychological settlement is much increased. The judges in the Family Division should not apply a rigid rule of disregard but they should look critically at any alleged settlement that is built on concealment and deceit especially if the defendant is a fugitive from criminal justice. Even if settlement is established on the facts the court retains a residual discretion to order a return under the Convention. The discretion is specifically conferred by Article 18.’



Special educational needs and disability tribunal; failure to take into account cost savings to local social services authority


O v Lewisham London Borough Council [2007] EWHC 2092 (Admin), [2007] All ER (D) 51 (Sep)
BFLS 3A[2491]; CHM 6[511]; Rayden 1(2) 43.70

A decision of Andrew Nicol QC, sitting as a deputy High Court judge. The appellant was a child who was the subject of a statement of educational needs. His parents wanted him to attend a residential maintained school, but the local education authority had identified a maintained day school as being appropriate. The appellant’s mother appealed to the special educational needs and disability tribunal.

The local education authority calculated that it would cost approximately £20,000 more to place the appellant at his parents’ choice of school. However, the appellant’s mother argued that if he was placed at a residential school, respite care provided by the authority’s social services department would not be necessary, and, taking that into account, the additional cost of her preferred school was about £3,500. The tribunal rejected that submission, and, by reference to the Education Act 1996, Sch 27, para 3(3), refused to amend the statement to reflect the parental preference. The appellant applied for judicial review.

An issue arose as to whether cost savings to a local social services department could be taken into account as ‘public expenditure’ for the purposes of s 9 of the 1996 Act, or whether such was limited to the cost to the local education authority by reference to the interpretation placed on ‘resources’ in para 3(3) of Sch 27 to the Act.

The local education authority also argued, inter alia, that since, having regard to previous authorities, the test in para 3(3) of Sch 27 to the Act ‘superseded’ or was ‘substituted for’ s 9, s 9 did not apply to the instant case. As to the proper construction of ‘public expenditure’, it relied, inter alia, on the fact that the tribunal would not be able to discover the costs of services provided by other agencies, on the distinction that Parliament had maintained between the functions of a local education authority and a local social services authority, and on the fact that the cost of providing such other services would fluctuate with changes in circumstances.

The appeal was allowed on the basis that s 9 of the 1996 Act continued to apply, even where the parents’ preference was for a school in the maintained sector. ‘Public expenditure’ in s 9 was concerned with the impact of a parent’s choice on the public purse generally, and not exclusively with the cost to the local education authority. Andrew Nichol QC considered in particular that:


                   (i)     the previous authorities relied on were concerned with cases in which the parental preference was a school in the independent sector, and para 3(3) of Sch 27 did not apply for that reason. However, s 9 would continue to apply even if para 3(3) did not apply for some other reason. The fact that there was no obligation to comply with the parents’ wishes was not a sound reason for displacing the duty to have regard to them under s 9;


                   (ii)     by s 322 of the 1996 Act, a local education authority could call for assistance from a local health board, primary care trust or local authority when the former needed ‘help in the exercise of any of their functions under [Pt IV of the 1996 Act]’. There was no reason why ‘help’ should not take the form of information as to the costs of services which the other authority would incur or would save if the parents’ choice of school was adopted. Further, although there was a division in a statement of special educational needs between educational and non-educational requirements, the question whether the parents’ choice of preferred school would involve unreasonable public expenditure was quite different. It followed that the tribunal should have taken into account the savings that would be made by the local social services authority if the appellant was placed at that school, and the impact of s 9.


Comment: The latest of a line of judgments dealing with the balancing act between parental preference and local authority education expenditure. Andrew Nichol QC sitting as a deputy High Court judge referred to the introduction of ‘children’s services authorities’ by the Children Act 2004 as a reflection of the good sense of looking at the totality of the child’s position under the alternatives being canvassed. Further that there was guidance in previous authority that the tribunal should inform itself of the ‘full picture’ and adopt a ‘holistic approach’ subject to the constraints of the relevant statutory framework.

To take account of savings to the local authority’s social services budget did not require the tribunal or the local education authority to go beyond that framework. Moreover, the interpretation of the word ‘resources’ in para 3(3) did not require an interpretation of s 9 that confined ‘expenditure’ to expenditure by the local education authority.

The possibility that the calculations of expenditure and savings might change was not a good reason for the tribunal not doing the best it could to assess the position at the date of the hearing.

The decision is in direct contrast to that in S v Somerset County Council [2002] All ER (D) 387 (Jul) which was cited and not followed. In that case Sir Richard Tucker in the Administrative Court considered that only costs which accrued to the education budget were to be taken into account, and a claimant could not refer to other savings which could accrue to other departments.


Whether local authority complied with duty to provide suitable education under the Education Act 1996, s 19(1)

R (on the application of R) v Kent County Council [2007] All ER (D) 31 (Sep)
CHM 6[2125]; Rayden 1(2) 43.70

In September 2004, the claimant enrolled into a local non-selective secondary school for boys, ‘W school’. About eight months later, his parents decided to withdraw him on the basis that he had been bullied. From May 2005, the claimant attended a private school. He was again bullied and, in May 2006, his parents removed him. From then onwards, the claimant was educated at home.

The defendant local education authority was of the view that despite his experiences, the claimant should attend W school, as that would be for his long-term benefit. It further stated that W school was both suitable and appropriate, and that there was no evidence to indicate the contrary. As an alternative, the authority offered the claimant a school which had a journey time of approximately 1 hour and 17 minutes, that being two minutes outwith its general policy.

The claimant’s educational psychologist, who assessed him, was of the opinion that a return to W school would promote a downward spiral, and depression. She further opined, however, that a return to mainstream education was crucial. The authority reassured that it would have in place the necessary reintegration plan for S to return to W school. The claimant was of the opposite view and, by his father, acting as his litigation friend, applied for judicial review of the authority’s decisions.

An issue arose as to whether the authority had breached its duty under the Education Act 1996, s 19(1) to provide suitable education.

The application was dismissed on the basis that it was settled law that the focus of the duty under s 19 of the 1996 Act was that any educational provision offered by a local education authority had to be available, possible and accessible. In relation to a case involving educational provision where the contention was that a child was not receiving suitable education by reason ‘otherwise’ than illness or exclusion, the test was one of reasonable practicability and not impossibility. Reasonable practicability depended, not on what the parents of a child subject to educational provision, or the child, might think of an authority’s decisions, but depended upon whether by objective considerations, the education offered by the authority was suitable and accessible to the child in question.

In the instant case, the authority had been entitled to conclude that W school was available and reasonably practicable for the claimant to attend. It had further been entitled to maintain that decision, notwithstanding the report by the claimant’s educational psychologist. Lastly, in respect of the alternative school which was proposed, that had not been a wholly irrational decision, given the state of the evidence.

Accordingly, the authority had not breached its duty under s 19 of the 1996 Act and its decisions would stand.

Comment: Section 19 of the Education Act 1996, so far as material, provides: ‘(1) Each local education authority shall make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.’

In the instant case the court applied the decisions in R (on the application of G) v Westminster City Council [2004] 4 All ER 572 and R (on the application of C) v Brent London Borough Council [2006] All ER (D) 189 (Apr).




Practice Direction (Family Proceedings) (Risk Assessments under s 16A of the Children Act 1989) [2007] All ER (D) 58 (Sep)


(1) The President of the Family Division has issued this practice direction which applies to any family proceedings in the High Court, a county court or a magistrates’ court in which a risk assessment is made under s 16A of the Children Act 1989. It has effect from 1 October 2007.

(2) Section 16A(2) of the 1989 Act provides that, if in carrying out any function to which the section applies (as set out in s 16A(1)), an officer of the Service or a Welsh family proceedings officer is given cause to suspect that the child concerned is at risk of harm, the officer must make a risk assessment in relation to the child and provide the risk assessment to the court.

(3) The duty to provide the risk assessment to the court arises irrespective of the outcome of the assessment. Where an officer is given cause to suspect that the child concerned is at risk of harm and makes a risk assessment in accordance with s 16A(2), the officer must provide the assessment to the court, even if he or she reaches the conclusion that there is no risk of harm to the child.

(4) The fact that a risk assessment has been carried out is a material fact that should be placed before the court, whatever the outcome of the assessment. In reporting the outcome to the court, the officer should make clear the factor or factors that triggered the decision to carry out the assessment.


Practice Direction (Family Proceedings) (Family Assistance Orders) [2007] All ER (D) 59 (Sep)


(1) The President of the Family Division has issued this practice direction which applies to any family proceedings in the High Court, a county court or a magistrates’ court in which the court is considering whether to make a family assistance order under s 16 of the Children Act 1989. It has effect from 1 October 2007.

(2) Before making a family assistance order the court must have obtained the opinion of the appropriate officer about whether it would be in the best interests of the child in question for a family assistance order to be made and, if so, how the family assistance order could operate and for what period.

(3) The appropriate officer will be an officer of the Service, a Welsh family proceedings officer or an officer of a local authority, depending on the category of officer the court proposes to require to be made available under the family assistance order.

(4) The opinion of the appropriate officer may be given orally or in writing (for example, it may form part of a report under s 7 of the 1989 Act).

(5) Before making a family assistance order the court must give any person whom it proposes be named in the order an opportunity to comment upon any opinion given by the appropriate officer.


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