Summary of Recent Case Law (Family: Children) – April to June 2018

Committal

CH and CT [2018] EWHC 1310 (Fam)

Baker J

The paternal grandmother (PGM) and her partner applied for a child arrangements order (CAO). A CAO was granted but M did not comply with the order. The PGM applied for enforcement of the order and argued that only a suspended sentence of imprisonment would make M comply. M applied to have the original CAO set aside. The applications came before a Recorder. M’s application was dismissed. M left court. The Recorder made a suspended committal order against M. M appealed.

Held: Appeal allowed

1. There was no application to commit the mother. That meant that she did not have proper notice of the committal application, the only application having been filed being one for an enforcement order under section 11I. The recorder erroneously assumed that gave her power to make a committal order.
2. Neither of the requirements of Rule 37.10(3) were satisfied. The mother had not received an application that identified separately and numerically each alleged act of contempt including, if known, the date of each alleged act. Equally, PGM had not filed an Affidavit in support. Furthermore, there was a failure to comply with several requirements of PD 37A, namely:(a) There was no Warning Notice, contrary to paragraph 10.2(4) and the Annexe thereto.
   (b) Having not been properly served with an application, the mother had not time to prepare a defence or to respond in another way, contrary to paragraph 12.5(1).
   (c) There was no notice to make the mother aware of the possibility that criminal legal aid might be available or how to contact the LAA or to give her any other opportunity to obtain legal advice, contrary to paragraphs 12.5(2) and (3).
3. Although the Recorder had caused an order in form N79 to be drawn up that set out the contempts which she purported to have found proved, her judgment did not set out the breaches adequately, nor the rationale for the making of a committal order as opposed to an alternative means of enforcement. The Recorder had not given sufficient consideration to the making of an enforcement order, which is what PGM had actually applied for. Committal was a remedy of last resort in such sensitive cases and the recorder had failed to give enough consideration to the alternatives.

Although the court could waive procedural defects in a committal application pursuant to paragraph 13.2 of PD 37A, it could only do so if satisfied that no injustice had been caused to the respondent. Baker J was sure that, had the Recorder considered that point, she would not have concluded that no injustice had been caused to the mother by the procedural defects that he had identified.

Without endorsing the mother’s behaviour, Baker J concluded that the recorder’s order was wrong. The fact that a party had not complied with an order did not empower the court to make a committal order without complying with the procedural requirements of such an application.

Baker J then considered whether the original CAO was capable of being enforced by committal at all. He concluded that the Warning Notice included automatically in a child arrangements order was not the same as a penal notice under FPR Part 37.9 and PD 37A. Furthermore, a penal notice must not be included in a CAO unless the court has specifically directed that it should be included and, if it is to be included and to be enforceable, then it must comply with the relevant procedural requirements imposed by the Rules. Consequently, Baker J found that the CAO as drawn was not one that could be enforced by committal.

Egeneonu and Egeneonu and Anor [2018] EWHC 1392 (Fam)

Williams J

M brought committal proceedings against the father of her children after he failed to comply with court orders requiring him to return the children to the jurisdiction. This hearing addressed M’s application to rely on the evidence of improperly obtained telephone recordings of Fr. M applied for permission to pursue grounds that the father had (i) interfered with the due administration of justice and (ii) had made false statements of truth.
[For a fuller account of the facts and of the outcome of the committal proceedings please see Engeonu and Engeneonu [2018] EWHC 1714 below]

The transcripts of the telephone conversations were the only evidence relied upon by M. Williams J found that the transcripts had been obtained in a manner that was ‘regrettable‘ but not ‘malign‘. He went on to grant the mother’s application for permission.

Admissibility of Evidence

The transcripts upon which the mother sought to rely were of conversations between the father and a third party, recorded by the prison service. Williams J found that the transcripts had been released as a result of a mistake on both the part of the prison service and M’s solicitors. A High Court order had been made at the time of the release “which plainly envisaged a further application would be made to this court to seek an order that the transcripts or recordings be provided“.

Williams J considered both the criminal and civil rules of evidence in respect of improperly obtained evidence. The fact that contempt taking the form of an interference with the administration of justice is criminal contempt – Egeneonu-v-Egeneonu [2017] EWHC 43 (Fam), gave rise to the question as to whether the criminal rules of evidence applied or not.
The statutory provision governing the exclusion of evidence in criminal proceedings is section 78 of the Police and Criminal Evidence Act 1984. The admissibility of improperly obtained criminal evidence had been considered in Regina-v-Khan (Sultan) [1997] AC 558, Regina-v-P [2002] 1 AC 146, and Regina-v-SL and Others[2001] EWCA Crim 1829.

In civil proceedings, CPR 32.1 provides that the court may exclude evidence which would otherwise be admissible. Improperly obtained evidence in the civil context was considered in Jones-v-University of Warwick [2003] 1 WLR 954.

Williams J concluded at [15] that whether he applied the criminal or civil approach the result was broadly the same:

“…There is no automatic exclusion unless the circumstances reach such a high level of impropriety as to offend the courts conscience or sense of justice. The court must consider all the circumstances and decide whether relevant evidence should be excluded so as to ensure a fair hearing.”

The transcript evidence of the telephone conversations was admitted for reasons which included that:

1. The transcripts were strong evidence in support of the mother’s grounds of committal and without it the grounds could not be pursued;
   ii)         The transcripts were not obtained illegally or dishonestly or as a result of behaviour that might qualify as a gross misuse of process or abuse;
   iii)        As the father would have the opportunity to challenge the contents of the conversations in his own evidence there was no ambush;
   iv)        To exclude the evidence would be to ignore reality.

Permission to pursue committal

Where the ground for committal is that a party is alleged to have made false statements, the test for permission was considered in KJM Superbikes Limited-v-Hinton[2009] 1 WLR 2406 by Moore-Bick LJ.

Williams J extracted the propositions from that judgment at [21]. In determining permission, the court must have regard to the public interest alone. Usually it is for public authorities to determine whether to bring legal proceedings in respect of acts which interfere with the course of justice. When deciding whether it is in the public interest to grant permission to a private individual, the court will consider many factors, which include:

1. i) The strength of the evidence showing not only that the statement was false but that it was known to be so
   ii) The circumstances in which it was made,
   iii) Its significance having regard to the proceedings in which it was made,
   iv) Such evidence as there is as to the maker’s state of mind including his understanding of the use to which it would be put and the likely effect, and
   v) The use to which it was actually put
   vi) The over-riding objective, proportionality, and the question of whether the matter justifies the use of court resources

At [21] (vi), Williams J also derived from Moore-Bick LJ’s judgment the proposition that:
“…probably only where there is a strong case that both the statement is untrue and that the maker knew it was untrue when he made it should permission be granted.”

The mother was granted permission in respect of her grounds for reasons which Williams J gives at [24]. They included the strength of the evidence against the father and the seriousness of the contempts if proved.

Egeneonu and Egeneonu [2018] EWCA Civ 1714

LJJ Sharp, Henderson and Peter Jackson

The parents married in Nigeria and subsequently moved to the UK. They had three children. In 2013 they returned to Nigeria for a holiday. M was forcefully separated from the children and had not seen them since. Both parents returned to the UK. On M’s application, Russell J made the children wards of court and ordered the Fr to arrange for the children’s return to the UK. Instead, the Fr went to Nigeria and disengaged from the proceedings.

Committal proceedings were instigated. Fr was legally represented at the hearing and he attended by telephone. Newton J found him to be in contempt of court and after giving a further opportunity to arrange for the children’s return, sentenced him to 12 months imprisonment.

In March 2017 Fr returned to the UK and was arrested. M brought further committal proceedings against Fr. M’s further allegations were proven and Fr was sentenced to a further period of 15 months. Subsequently, further orders were made for the Fr to arrange for the children to be returned to the UK. The Fr failed to comply and so M brought further committal proceedings. In these proceedings, M was granted permission to include three counts of ‘interference with justice’. M was given permission to rely on transcripts of telephone calls made whilst the Fr was in prison. In these calls, the Fr said words to the effect that he did not want the children to be returned to the UK or for their whereabouts to be known. [See Egeneonu and Egeneonu and Anor [2018] EWHC 1392 (Fam) above]. The court made various contempt findings against the Fr including causing one of the children to write a letter with the intention of misleading the court as to the children’s feelings and wishes; sending a false statement of a witness to the court; and making false written statements about the whereabouts of the children. The Fr was sentenced to a further term of 18 months. The Fr appealed. Although he had been granted legal aid, he represented himself.

Held: Appeal refused

The Fr relied upon several grounds of appeal such as judicial bias, his reliance upon an order in the Nigerian courts and misinterpretation of the prison telephone conversations. These were all rejected.

The Fr argued that he was at double jeopardy because he was being repeatedly punished for the same contempt ie; failing to arrange the children’s return to the UK. The court can make successive mandatory injunctions requiring positive action. A failure to comply with a fresh order would properly expose the defaulter to fresh contempt proceedings and the possibility of a further term of imprisonment. While such a course is legally permissible, the question of whether it is justified in a particular case will turn on the facts that are in play: see Re W (Abduction: Committal) [2011] EWCA Civ 1196

This was a calculated separation of three children from their mother and a contemptuous disregard for court orders. Those who abduct children in this way must expect lengthy sentences if they are found to be in contempt of court.

Fact Finding

M (A Child) [2017] EWCA Civ 2445

LJJ McFarlane, Beatson and Peter Jackson

The child aged 9 alleged to her mother and to a friend that she had been sexually abused (non-penetrative) on two occasions by her grandmother’s (MGM) partner (Mr. H). The allegations were investigated and during her ABE interview she went further and alleged penetrative sexual abuse.

Criminal proceedings were instigated. Mr. H was acquitted of the sexual assaults. However, he was convicted of possession of extreme pornography for which he received a custodial sentence. Upon his release he returned to live with the MGM. The LA instigated care proceedings.

Following a 10 day fact finding hearing the judge made findings against Mr. H in respect of the allegations of non-penetrative sexual abuse only. Mr. H appealed.

Held: Appeal refused

The judge had appropriately considered whether there was a discrepancy between the initial allegations and what was said during the ABE interview and was in the best position to determine this. The judge was entitled to conclude that the child was describing an

unfamiliar event in a childlike way and that her description was consistent and contained telling detail. The judge had exercised appropriate caution. Whilst it was not for Mr H to disprove the allegations he had chosen not to challenge the child’s evidence in cross examination in either the criminal or the family proceedings. There was no wider assessment of the child by the judge because the evidence showed her to be a normal child.

Relocation Abroad

Re M-A (A Child) [2018] EWCA Civ 896

Hamblen and Peter Jackson LJJ

These were acrimonious proceedings between the parents in relation to their 3 year old son. The child was diagnosed with autistic spectrum disorder. The child lived with M in the UK. Fr lived in Canada. There was a psychological assessment of M that highlighted her negativity towards Fr and recommended therapeutic support. M began therapeutic work and claimed that she had made changes. The Deputy High Court judge at first instance ordered that the child should live with Fr in Canada and spend the holidays with M in England. Whilst he found that both parents were responsible for the parental conflict, M’s evidence did not demonstrate the greater insight that would have been expected given the therapy she had undertaken. Given the child’s particular need for clarity and certainty he should not have to live in a conflicted household as he had done throughout his life, primarily as a result of M’s behaviour. Fr was better able to meet the child’s welfare needs and the change of circumstances would be limited because he had already been spending time there. M appealed

Held: Appeal refused

Having heard the evidence of the parties, the judge was uniquely placed to know where the

truth lay. Although the judge had not weighed up all the balancing factors, this did not undermine the overall determination. The judge had ample evidence before him that Fr was able to offer the child a more stable future than M could.

S and V (Children-Leave to Remove) [2018] EWFC 26

Mostyn J

This case sets out a useful summary of the principles to be applied when determining an application for leave to permanently remove a child from the jurisdiction Noting that the legal test in permanent removal from the jurisdiction cases is ‘now very straight-forward’, Mostyn J set out the relevant principles and case law as follows:

1. The principle of the paramountcy of the children’s best interests, as taxonomised by the checklist in section 1(3) of the 1989 Act, which is not to be glossed, augmented or steered by any presumption in favour of the putative relocator;(b) Lord Justice Thorpe’s famous “discipline” in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, which can be drawn on, or not, as the individual case demands;(c) If the applicant’s case is not well thought out and is not supported by evidence it will likely fail;

(d) If the applicant’s case, or the respondent’s defence, is not advanced in good faith but rather is driven by an unworthy ulterior motive, then that case, or defence, will fail;

(e) The court must consider the impact on the mother if the application is refused as well as the impact on the father if it is granted;

(f) The court must undertake a “global” or “holistic” or “360 degree” exercise;

(g) The court’s function in a relocation case is one of evaluation rather than a pure exercise of discretion (see Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884);

(h) The court will have to resolve disputed facts and there is a burden of proof on the party alleging the facts in issue, but once the facts are established there is no formal legal burden of proof on the applicant (see Payne v Payne at para 25 per Thorpe LJ: “I do not think that such concepts of presumption and burden of proof have any place in Children Act litigation where the judge exercises a function that is partly inquisitorial.”);

(i) Common sense dictates that where one parent seeks that a well-functioning status quo should be changed he/she has to make the running in terms of the evidence and argument to show that change would be more in the children’s interests than no change. Notwithstanding the partly inquisitorial function of the court the maxim affirmati non neganti incumbit probatio [the burden of proof is upon him who affirms- not on him who denies] should loosely apply to the case for change;

(j) There is no principle in Children Act litigation that a new spouse takes subject to the claims of the old one (see, for money cases, Vaughan v Vaughan [2010] EWCA Civ 349, [2011] Fam 46). However, if someone forms a relationship with a woman who has children from a prior relationship where the father of those children is enjoying a stable regime of contact, then the new partner must surely be taken to enter the relationship, with all its incumbrances, with his eyes wide open.  On the other hand, the father of those children must surely recognise the prospect of his former wife re-partnering and in that event a case for change being advanced. The weight to be attributed to these two general propositions will depend on the facts of the case in hand; and

(k) Arguments in relation to the devastation and impact of refusal of the relocating parent should be treated very circumspectly.

Re M (A Child) [2017] EWCA Civ 2356

LJJ McFarlane, Beatson and Peter Jackson

The CA granted Fr’s appeal against a decision at first instance granting M leave to remove the child from the jurisdiction. The judgment was not sufficiently reasoned and the judge did not give sufficient reasons for departing from the recommendations of the CAFCASS officer.

Transfer of Residence

Re C (A Child) [2018] EWHC 557 (Fam)

Knowles J

The child was aged 6 and lived with M. There had been litigation between the parents over contact, for 5 years. A Circuit Judge heard evidence from the parents and concluded that the mother had a deeply ingrained hostility to Fr and his family. She wanted contact to be on her terms and strictly and precisely controlled. She was wholly opposed to overnight or holiday contact. Contact had proven impossible to progress despite the involvement of three CAFCASS officers, a Guardian and a family assistance order.

The judge weighed up the options open to him being to either give M another chance or to move the child to Fr’s home. The judge concluded that the balance fell in favour of moving the child to live with Fr. M appealed.

Held: Appeal refused

M raised in her appeal a number of grounds that had not been argued at first instance. M argued that the judge at first instance should have directed a psychological assessment of the child, but there was no evidence that there was anything wrong with the child.

Whilst it was correct that the judge had not expressly addressed the child’s feelings and wishes, this was a child of 6 who had a good relationship with both parents and so the child’s feelings and wishes were unlikely to be decisive in the circumstances of the case.