SUMMARY OF RECENT CASE PRIVATE LAW (FAMILY: CHILDREN)

QUARTERLY DIGEST

October to December 2018


PRIVATE LAW

Civil Restraint Orders

AEY v AL (Family Proceedings Civil Restraint Order) [2018] EWHC 3253 (Fam)

18th November 2018

Knowles J

The father had engaged in long running family proceedings regarding his three children. In the current proceedings the father made a further application for a child arrangements order, in respect of one of the children. The judge at first instance refused his application. The father sought permission to appeal and he raised seven grounds of appeal which included serious allegations against the mother and against the judge.

Held: Permission to appeal refused. An extended civil restraint order was made against the father.

Knowles J cited from the judgment of Leggat J (as he then was) in Nowak v The Nursing and Midwifery Council [2013] EWHC 1932 (QB):

“58. As explained by the Court of Appeal in the leading case of Bhamjee v Fosdick [2004] 1 WLR 88, the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or no cost to themselves. Typically, such litigants have time on their hands and no means of paying any of the costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court’s resources.

59. It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court’s process from abuse, and not to shut out claims or applications which are properly arguable.”

Knowles J then went on to outline the three types of civil restraint order that are available to the court:

  1. A limited civil restraint order may be made where a party has made two or more applications which are totally without merit. Such an order has the effect of restraining a party from making any further applications in the proceedings in which the order is made without first obtaining the permission of the judge named in the order;
  2. An extended civil restraint order may be made where a party has persistently issued claims or made applications which are totally without merit. Unless the court otherwise orders, the party against whom such an order is made is restrained from making applications in any court “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order was made without first obtaining the permission of the judge identified in the order” [Practice Direction 4B, paragraph 3.2(a)]. Three unmeritorious claims or applications have been described as the bare minimum needed to constitute persistence [In the matter of Ludlum (a bankrupt) [2009] EWHC 2067 (Ch)];
  3. A general civil restraint order where a party persists in making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate [Practice Direction 4B, paragraph 4.1]. A party subject to a general civil restraint order will be prohibited from making any application in any court without first obtaining the permission of a judge identified in the order.

Committal

Egeneonu v Egeneonu (Rev 3) [2018] EWHC 3029 (Fam)

5th October 2018

Cobb J

The mother sought the father’s committal to prison for contempt in respect of his collaboration with the children’s maternal uncle and grandfather for attempting to prevent the return of the children to this jurisdiction. The father admitted some of the allegations and refused to give evidence on the outstanding allegations.

Held: The father could not be compelled to give evidence in the contempt proceedings: S35(4) Criminal Justice and Public Order Act 1994.

Having found various allegations proven Cobb J stated that: “Those who abduct children in this way must expect lengthy sentences if they are found to be in contempt of court” and “Those who assist, materially assist, those who abduct children in this way, must also expect lengthy sentences from this court if they are found to be in contempt.  I say so because the abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child.” Cobb J went on to observe that any reference in mitigation to the father’s family life and the impact on them of the sentence has little place alongside the effect on this mother of being deprived of contact and of any relationship with her three sons for now very nearly five years.

Cobb J imposed immediate custodial sentences for the various breaches, which totalled 7 months. He took into account the seriousness of the contempts, their repeated nature and the fact that the father had faced the same contempt proceedings before.

The father appealed against the length of sentence (7 months) imposed by Cobb J [see below]

Egeneonu v Egeneonu [2018] EWCA Civ 2565

15th November 2018

Floyd and Peter Jackson LJJ

The father appealed the sentence that was imposed by Cobb J above. The father accepted the aggravating features identified by Cobb J. He accepted that an immediate custodial sentence was appropriate. However, he appealed the length of the sentence.

Held: Appeal refused, sentence upheld.

The father did not challenge the judge’s identification of aggravating features or his imposition of an immediate custodial sentence. He appealed the length of sentence on three grounds, one of which was the impact that his imprisonment would have on his own family. He argued that the judge did not sufficiently take account of mitigating factors and that the sentence was as a result, excessive. In dismissing the appeal, the court confirmed that child abduction is so deeply harmful for children and their families that those who assist abductors and place themselves in contempt of court should normally expect nothing less than an immediate custodial sentence.

The court noted that with regard to the submission of how his imprisonment would affect the father’s family, Cobb J was entitled to see the irony of such a plea from a man who had for so long been so careless of the family life of others; particularly where the same plea had been made and accepted in 2015, meaning that he could have had no doubt about the risk that he was running in lying to the court and disobeying its orders.


Declaration of Parentage

P (Declaration of Parentage- PP Form Mistake) [2018] EWFC 742

5th October 2018

Theis J

The parties were an unmarried same-sex couple. The respondent gave birth to a child after IVF treatment. The couple completed the required parenthood forms at the IVF clinic before the treatment. On the form, the non-birth mother agreed to be the legal parent of the intended child. In two places on the form, she accidentally wrote her own birth-year, instead of the year that the form was signed. The errors were not identified at the time.

After the birth of the child, the IVF clinic noticed the errors and warned the couple of a possible issue with legal parentage. The couple applied for a declaration of parentage and the clinic paid all their legal costs.

Theis J considered whether the application could be determined on the papers. She reviewed the case law in Re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) and Re D and others (Practice: Declaration of Parentage) [2017] EWHC 1782 (Fam):

In Re A, the court concluded that in cases where a parentage form contains obvious and plain mistakes, the court can correct the mistakes either by rectification (where the requirements for that remedy are satisfied) or, in cases where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.

In Re D, Munby J set out the circumstances in which a declaration may be made without the need for an oral hearing, specifying that it might be appropriate to proceed without an oral final hearing in the following types of case:

(a) the application turns entirely on written documents from the clinic’s file;
(b) the factual circumstances are the subject of a previous judgment which is precisely in point;
(c) there is no dispute between the parties;
(d) there has been no intervention by the Human Fertilisation and Embryology Authority (HFEA), the Attorney General or the Secretary of State for Health; and
(e) the applicant and respondent both wish to proceed without an oral hearing.

In order to address (d) above, Theis J had made directions that gave the HFEA, the Attorney General, or the Secretary of State for Health leave to intervene. These all confirmed that they did not wish to intervene. Theis J also directed that the IVF clinic provide written evidence. The clinic’s statement accepted that the error in the date on the form was not spotted on receipt.

Having addressed each of Munby J’s criteria in Re D, Theis J concluded that this matter could be determined on the papers and made a declaration of parentage accordingly.


Fact Finding

Re A and R (Children) [2018] EWHC 2771 (Fam)

13th September 2018

Baker J

These were bitterly fought Children Act proceedings relating to the parents’ two children. The mother made allegations against the father and he in turn, made cross allegations. These were the subject of a fact finding hearing. The judge found some of the allegations and cross allegations proven and she dismissed others. The mother appealed.

Held: Appeal dismissed.

Baker J re-iterated the test to be applied when appealing findings of fact in particular, that the hearing is a review rather than a rehearing. A court can only allow an appeal where the decision of the judge in the first instance was wrong, or unjust because of some procedural or other irregularity. The appellate courts have repeatedly stressed the need for caution and restraint when considering appeals based on challenges to findings of fact made.

Baker J went on to cite other case law:

Fage UK Ltd & Anor v. Chobani UK LTD & Anor [2014] EWCA Civ 5:
‘Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them… It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case.’

per Lewison LJ

Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33
‘…but where findings depend upon the reliability and credibility of the witness, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnesses give their evidence.’

per Baroness Hale

RR v MM [2018] EWHC 3252 (Fam)

18th October 2018

Moor J

There was a history of previous proceedings which culminated in findings of domestic abuse against the father. The court decided that there should be a two year gap before revisiting the issue of contact. This was based on the child’s negative reaction to contact and an expert’s assessment of the mother’s entrenched opposition to it.

In 2014, the father renewed his application for contact. A Cafcass report concluded that direct contact was not in the child’s interests. The Court of Appeal heard and dismissed the father’s appeal but noted concern as to the ‘two year gap’ strategy and the mother’s attitude, and mooted that a change of residence may prove necessary in due course.

In 2015, the father applied unsuccessfully for psychological assessment of the mother. The judge concluded that resuming contact was now unfeasible and that continued proceedings were not in the child’s interests. The CA dismissed the father’s appeal.

The father made a further application for contact. The father wrote a ‘private’ letter to the court requesting that the case be heard by a different judge. The father then applied for the judge to recuse herself. This application was refused and a s.91(14) order was made for a period of three years. The father appealed.

Held: Permission to appeal refused

In addressing each of the father’s grounds of appeal Moor J ruled as follows:

  • There was no reasonable prospect of demonstrating apparent bias on the part of the judge, merely because she had made repeated rulings against the father;
  • The father’s assertion that applications for recusal should come before a judge other than the one in respect of whom recusal was sought, was incorrect;
  • The assertion that the father’s right to privacy had been breached because the first instance judge had read the letter by the father addressed to the court as ‘private and confidential’ was deemed ‘hopeless’;
  • The judge had not prejudged the matter and in fact had given a careful judgment;
  • The s.91(14) order was made properly in the circumstances;
  • The Court of Appeal and the first instance judge had both been entitled to direct that no further expert evidence was to be permitted; and
  • The hearing had in no way been unfair under Article 6.