September 2007

February 18, 2008 in Legal

Butterworths Family and Child Law Bulletin

September 2007

Bulletin Editor
Geraldine Morris, BScSolicitor and mediator, technical editor

COMMITTAL PROCEEDINGS

Correct standard of proof in committal proceedings where there are on-going care proceedings

JC (a child) (committal proceedings) [2007] All ER (D) 93 (Aug)
BFLS 5A[4384]; CHM 1[650.2]; Rayden 1(1) 30.12

The parties had lived together, but had since separated. They had one baby, who was the subject of on-going care proceedings. An interim care order had been made in favour of the local authority. The mother obtained a non-molestation and occupation order against the father under the Family Law Act 1996, Pt 4. The order prevented, inter alia, the father from coming within 100 metres of the mother’s home. On the same day, a district judge attached a power of arrest to the order, finding that the father had used or threatened violence against the mother.

Committal proceedings were subsequently brought against the father, on the basis of various allegations of breaches of the order. The matter fell to be determined by a circuit judge. He directed himself that the criminal standard of proof applied. He found that the mother’s fear of the father was on account of ‘some violence’ on the father’s part. In that regard, he took account of the district judge’s findings in attaching the power of arrest. However, he only found that two of the allegations had been established: an allegation that the father had come within 100 metres of the mother’s home and had verbally abused her; and an allegation that he had threatened to kill her. In relation to the first allegation, the judge did not specify the date when the incident had occurred, except that it had occurred a few days after the order had been made. The judge imposed a custodial sentence of 28 days, suspended for a period of 12 months. The father appealed against the committal.

He submitted, inter alia, that there was insufficient evidence for the judge’s finding that there was ‘some violence’ on his part. In particular, the judge had erred in relying on the district judge’s findings which only went so far as the threat of violence. He also criticised, inter alia, the judge’s failure to specify the exact date on which the first alleged breach had occurred, and claimed that there was insufficient evidence to justify the finding on the second alleged breach. He sought to rely to some extent on the fact that the same findings might be used in the care proceedings.

The appeal was dismissed as the fact remained that the district judge had made an injunction with a power of arrest under Pt 4 of the 1996 Act on the basis of the use or threat of violence. The judge was entitled to bear that in mind. The judge also had the advantage of seeing and hearing the witnesses and was plainly entitled to form an impression of them and their evidence. He had been fully entitled to make the judgment he had made. It was a matter of essential justice and essential common sense. The judge had gone out of his way to be extremely careful in relation to all the issues. In relation to the two allegations, he had plainly been within his discretion. Clearly, he had applied the proper standard of proof, and he had made appropriate findings of credibility. The fact that the same findings might be used in the care proceedings was neither here nor there.

Comment: The Court of Appeal distinguished Hammerton v Hammerton [2007] All ER (D) 393 (Mar) in the instant case. In Hammerton the Court of Appeal took the view that in that case it had been inappropriate for the father’s contact application and the mother’s committal application to be heard at the same time. Of significance also was that the father in Hammerton was unrepresented and the human rights implications of that were considered at length. Wall LJ commented however that in terms of combining proceedings:

‘I do not say that a judge can never take that course. There may well be cases in which the factual matrix for the committal proceedings is so intertwined…that there is no sensible alternative but to hear them together. However, if a judge does take that course, he or she must be astute to differentiate between the two sets of proceedings when it comes to findings of fact and disposal.’

CHILD ABDUCTION

Guidance for procedural steps under Art 11 pending revision of Family Proceedings Rules 1991

Re A (a child) (custody) HA v MB [2007] EWHC 2016 (Fam), [2007] All ER (D) 156 (Aug)
BFLS 3A[5301]; CHM 1[49]; Rayden 1(2) 45.86

Upon an application under Art 11 of Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility), pending the entry into force of the revised Family Proceedings Rules 1991, SI 1991/1247, Singer J issued the following guidance pending revision of the Family Proceedings Rules 1991:

1 The scope of the application of Council Regulation (EC) 2201/2203 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) ‘in civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility’ draws a distinction between ‘rights of custody’ and ‘rights of access’, which are, by Arts 2(9) and 10 of the Regulation (see para 81 of the judgment), defined, respectively, so as to include ‘rights and duties relating to the care of the person of the child, and in particular the right to determine the child’s place of residence’ and ‘in particular the right to take a child to a place other than his or her habitual residence for a limited period of time’. The Regulation supplements or compliments the Hague Convention in a number of aspects in relation to applications under Art 12 of the Convention for return orders when the requesting and receiving states are both Regulation member states. The objectives, and nature of the changes, are signaled by recitals 17 and 18 to the Regulation (see para 67 of the judgment).

2 General jurisdiction lies with the courts of the member state where the child is habitually resident at the time the court is seised. That general jurisdiction is expressly subject to inter alia, the rule in child abduction cases whereby jurisdiction is reserved to the home country (save in relation to Hague applications for the child’s return). The home country continues to have jurisdiction if the court there becomes seised. Jurisdiction endures until the child both acquires habitual residence in another member state and one of the conditions in Art 10(a), or (b), of the Regulation is satisfied. If, at that point, no court in the child’s home country is seised, the jurisdiction to determine matters of parental responsibility passes to the courts of the country of the child’s acquired habitual residence.

3 The concomitant of the Regulation’s Art 10 jurisdiction rules is that if the country where the child is removed to or retained is also a member state, then that country’s courts have no jurisdiction at all in matters of parental responsibility. Scope does exist under Art 20 (see para 92 of the judgment) of the Regulation for a court, in an urgent case, to take provisional, including protective, measures, however that is clearly intended to be a stopgap measure to have effect only until the home court can exercise its jurisdiction as to the substance of the matter. The position is therefore distinct from the duty automatically to stay certain domestic applications upon the filing of an application under the Hague Convention. Leon v Leon [1966] 3 All ER 820, Re A [2007] All ER (D) 149 (Feb) were considered.

4 The term ‘parental responsibility’, for the purposes of the Regulation, is defined in terms that reflect the distinction between ‘rights of custody’ and ‘rights of access’. The distinction is also reflected in Art 1(2)(a) of the Regulation, where its scope in relation to parental responsibility is further clarified. Definitions in identical terms apply to ‘rights of custody’ and ‘rights of access’ in Art 5 of the Hague Convention. It was clear that the jurisdictional framework of the Regulation, in matters of parental responsibility, envisages that a child can be habitually resident in only one country at a time. For jurisdictional purposes under the Regulation, the child should be treated as being habitually resident in the country in which he lives at the time when a court becomes seised with a parental responsibility dispute.

5 The ‘judgment’ for the purposes of the Regulation, is the written order issued by the court. Such an interpretation would resolve all doubts and ambiguities, and is consistent with the reality in cases of divorce, legal separation and marriage annulment. McMinn v McMinn [2002] EWHC 1194 (Fam) was considered.

6 An order for contact does not amount to a judgment requiring the return of the child for the purposes of Art 10(8) of the Regulation. To cloak a conventional visiting and staying contact order with the apparent solemnity of a shared residence order does not amount to a judgment requiring the child’s return and the automatically enforceable provisions which that entails. Article 10(8) has to be read with Art 10(7), and the return of the child will be ordered where the examination of the question of custody results in a decision that the child should live with the parent who is in the UK, not just an order to make the child available in the UK for the purposes of contact. To elevate an order for contact to a judgment under Art 11(8) of the Regulation (see para 26 of the judgment) requiring the child’s return would render the scheme of the Regulation unworkable.

Comment: Per curiam, Singer J indicated that pending the entry into force of the revised Family Proceedings Rules 1991, the starting point should be to consider at what level in the judicial hierarchy such an application should be conducted.

The application can arise in two distinct situations: where it falls within the terms of Art 11(7), or where the application for return falls outside Art 11(7) because ‘the courts in [England and Wales] where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties’.

If the English court subsequently renders a ‘judgment which requires a return of the child’ then Art 11(8) provides that that judgment is enforceable to secure the return of the child, and Arts 40(1)(b) and 42 should lead to the English judge certifying by use of the standard form in Annex IV that ‘the court has taken into account in issuing its judgment the reasons for and the evidence underlying the order issued pursuant to Art 13 of the 1980 Hague Convention’. It is desirable that cases where a parent seeks an order for return here after an earlier Art 13 Hague non-return order made abroad should be transferred to the Family Division in London for hearing before a judge of the Division.

Where Art 11(7) does apply, the parties have three months after they have been notified of the information received by the court or central authority here pursuant to Art 11(6) ‘to make submissions to the court, in accordance with national law, … so that the court can examine the question of the custody of the child’.

Singer J also usefully suggested that if the parties and their advisers apply using the Children Act forms and procedures then they should mark all forms and other documents lodged in connection with the application ‘In the Matter of the Children Act 1989 and/or in the matter of an application pursuant to Art 11(7) of the Brussels II Revised Regulation for the return of the child[ren] from [the member state in question]’. Judges and Court Service Staff will therefore immediately be alerted to the nature of the case and its international dimension.

PUBLIC CHILDREN

Whether judge erred in dismissing allegations of sexual abuse

Re F (a child) (care proceedings) [2007] EWCA Civ 810, [2007] All ER (D) 503 (Jul)
BFLS 3A[3063.1]; CHM 1[917]; Rayden 1(2) 40.1

The mother and father had a daughter, F, aged five. The father was a Schedule 1 offender, and in 1998, he pleaded guilty to two counts of indecent assault on a nine-year-old girl, for which he received a sentence of 18 months’ imprisonment. The policy of the local authority had been to maintain F’s placement with her parents, whilst offering them a package of support. An assessment of the father was carried out by M, a risk assessment and treatment specialist, which put the father in the medium risk bracket in relation to F. M’s recommendation was that it would only be safe for the father to remain in the family unit if the parents were given ongoing support. The local authority proceeded on that basis although, at times, F’s name was on the child protection register under the category of likely sexual abuse and neglect. During a meeting with a student social worker, F disclosed that her father had touched her genital area. The local authority instituted care proceedings seeking an interim care order.

A conference was held where it emerged that the father had not been abiding by an agreement to leave the personal care of F solely to the mother. The mother and father asked for F to be accommodated whilst they made changes to ensure her safety. Directions were given, namely that the parties were to agree to F’s continued accommodation under the Children Act 1989, s 20, and that contact for each of the parents would be supervised. A split hearing was ordered and a fact-finding hearing went ahead. The judge referred to a threshold criteria document and made reference to M’s report although he decided not to hear evidence from him. In the event, the judge dismissed the allegations of sexual abuse as not reaching the requisite standard of proof, and stated that the parents had no case to answer.

The local authority appealed against that decision. It submitted, inter alia, that the judge had plainly been wrong to conclude that the parents did not have to give evidence in response to its threshold criteria under s 31 of the 1989 Act; that the judge had been wrong to conclude that the alleged failure to protect by the parents and the degree of risk presented by the father had been insufficient to justify the making of an order under the 1989 Act; and that the judge had been wrong to exclude in evidence the risk assessments undertaken in respect of the father.

The local authority’s appeal was allowed. The Court of Appeal held that in the instant case, although the judge’s decision to reject the allegations of sexual abuse by the father had been open to him, the outcome achieved by him had been wrong. There was force in the local authority’s submission that the concentration on the allegations of sexual abuse had led the judge into an inappropriate dismissal of the real anxiety in the instant case, namely the risk which the father posed to F as a Schedule 1 offender.

Comment: The Court of Appeal took the view that the judge’s concentration on the s 31 threshold criteria had closed his mind to the real risks posed to F; and his focus on the fact of sexual abuse had led him inappropriately to discount the expert evidence of M whose opinions on the risk posed by the father could not be sidelined. Moreover, it was unfortunate that the judge had introduced the concept of no case to answer as it had little or no place in care proceedings under the 1989 Act. The judge’s order was plainly wrong and had to be set aside, and the proceedings re-instated.

In Re K (care: threshold criteria) [2005] EWCA Civ 1226 at [40]-[41] the point was made that the ‘court needs to consider the whole family dynamic’ and avoid the dangers of compartmentalisation.

LEGISLATION

Children and Adoption Act 2006 (Commencement No 1) Order 2007, SI 2007/2287
SI 2007/2287 brings into force:

From 2 August 2007

— Children and Adoption Act 2006, ss 11, 12(1), (7) for the purpose of making regulations relating to special restrictions on adoptions from abroad and to the imposition of extra conditions in certain cases. These sections of the Act extend to England and Wales and to Northern Ireland.

— Children and Adoption Act 2006, s 14(3). Section 14(3) amending the Children Act 1989, Sch 8 so that a child brought into the United Kingdom is not a privately fostered child if a local authority has been given notice of an intention to apply for an adoption order in respect of the child in accordance with the Adoption and Children Act 2002, s 44(2). The effect of this provision is to exclude a child in respect of whom a notice of intention to adopt has been served from the definition of a privately fostered child, so preventing the local authority being subject to two different sets of duties in respect of the same child. Section 14(3) of the Act extends to England and Wales.

From 1 October 2007:

— Children and Adoption Act 2006, ss 6, 7, 14(1), (2), extending to England and Wales. Section 6 amends s 16 of the Children Act 1989 so as to enable family assistance orders (FAOs) to be used more often and for a longer duration. The requirement that FAOs be made only in exceptional circumstances is removed, and the maximum duration of such orders is extended from six to twelve months. Section 7 adds a new s 16A to the 1989 Act, which requires CAFCASS officers to carry out a risk assessment and provide it to the court if, in the course of carrying out any function in private law family proceedings under the 1989 Act, the officer is given cause to suspect that the child concerned is at risk of harm.

— Section 14 makes further provision regarding inter-country adoption. Subsection (1) amends the Adoptioni and Children Act 2002, s 83. Section 83, among other things, makes it an offence for a British resident to bring or cause someone else to bring into the United Kingdom a child who was habitually resident outside the British Islands who has been adopted within the period of six months before he was brought in, unless the adopter meets certain requirements and conditions. These conditions include that the adopter has been assessed and approved in accordance with regulations. This section extends that time limit to twelve months. Subsection (2) provides that this amendment will only apply in relation to a child adopted under an external adoption order made after the change from six to twelve months is brought into force.

Civil Procedure (Amendment) Rules 2007 SI 2007/2204

SI 2007/2204 amends the CPR from 1 October 2007 in relation to costs, third party interventions in statutory appeals, parenting contracts and orders, anti-social behaviour injunctions, the Mental Capacity Act 2005 and the Companies Act 2006:

— making provision to increase the amount of costs which the court may award as the costs of an advocate for preparing for and appearing at the trial of a claim in the fast track for fast track trials commencing on, or after 1 October 2007;

— increasing the time within which an appeal decision of an authorised court officer relating to detailed assessment of costs may be filed from 14 to 21 days;

— introducing a standard procedure for third parties to apply to intervene in statutory appeals;

— revoking a number of rules to allow for modernisation;

— amending the provisions on parenting contracts and parenting orders in the Anti-social Behaviour Act 2003 to provide that local authorities and registered social landlords can enter into parenting contracts and apply for parenting orders as a consequence of the Police and Justice Act 2006, s 24 and the provisions relating to anti-social behaviour injunctions as a consequence of the Police and Justice Act 2006, ss 26 and 27;

— amending procedure to reflect new concepts created by the Mental Capacity Act 2005, particularly the new test for capacity (which is decision and time specific) is reflected in the procedures set out for civil courts;

— amending procedure to incorporate a new two-stage procedure for permission to proceed in derivative actions as a consequence of the Companies Act 2006.

Commencement: 1 October 2007.

NEWS

Guidance: Information for Providers on High Cost Family Work Issuing Department Legal Services Commission (LSC, 20 August 2007)

LSC sets out Do’s and Don’ts for Very High Cost Family Cases

The LSC have provided lists (as detailed below) with the aim of minimising further information requests and to ensure that the LSC can deal with case plans first time.

Do’s:
— Provide a list of all hearings to date, including the type of court where heard.

— Include a full breakdown of all work in the costs to date section. Full figures for preparation, attendances, advocacy, travel and waiting times, the prescribed rate and any enhancement applied.

— Detail how counsel fees have been calculated.

— Provide Claim 5 forms or fee notes where applicable showing the breakdown of the work for future costs.

— If the case escapes the FGF scheme, list the main hearing dates that mean it escapes.

— Breakdown all future staged work to show dates, work undertaken, prescribed rate, enhancement applied and sub-total for each item.

— Date the Case Plan.

— Explain as fully as possible the reasons for enhancement being applied and the factors attributing to the uplift.

— Breakdown all disbursements, providing apportionment where applicable.

— Provide any court orders/directions for disbursements and any work that you are currently undertaking.

— Name the court future work is being undertaken in and detail how any prescribed rates are being applied.

— When submitting an amended case plan, include the original case plan detail and include the amended work highlighted within the future staged costs.

— Space out your future work into stages with relevant dates for the work being claimed.

Don’ts:
— Include global figures for future staged costs.

— Include VAT within your Case Plan at any Stage.

— Request the cost of drawing up a Claim 1 or drafting a bill (scale item only).

— Exceed the cost limitation under the certificate for costs to date (up to date of submission of the case plan or App 8, whichever is earlier) without adequate reasons for doing so [guidance page 607 volume one LSC Manual].

— Claim correspondence and attendances combined as a global figure.

See www.legalservices.gov.uk/civil/VHCC_Flyer_Layout_1.pdf for further information

Notice: Unified Contract Civil and Family Mediation Specifications Published. Issuing Department Legal Services Commission (LSC, 13 August 2007)

LSC: Final documents for 1 October 2007 now available

The LSC have published the final version of the Unified Contract Civil and Family Mediation Specifications. Also published are the Not for Profit (NfP) transitional provisions and the LSC’s Equality and Diversity Guidance.

The main change to the Unified Contract is the replacement of the Unified Contract Specifications