Summary of Recent Case Law (Family: Children) – July to September 2018

Added on 31st October 2018 by Becket Chambers

QUARTERLY DIGEST

PRIVATE LAW

Disclosure

Lancashire County Council v A, B, and Z (A Child Fact Finding Hearing Police Disclosure) [2018] EWHC 1819 (Fam)

25th July 2018

Knowles J

This was a fact-finding hearing following the death of a child whilst in both parents’ care. During the trial, it became clear that the police held material that they did not consider relevant, including a statement from the social worker about the mother’s handling of the child during contact and extracts from the parents’ social media accounts. On day 9, 900 pages of additional material was disclosed by the police and 2-3 days of court time were lost whilst this material was considered by the parties. It emerged that the Disclosure Team did not have access to the full list of material held by the police.

Mrs. Justice Knowles gave guidance on practical solutions to problems with police disclosure:

Firstly, all police forces in England and Wales should check their own data management systems. Local authority lawyers should check with their local police force which data management system is being used to record information and confirm that the Disclosure Team in that force has access to the relevant system;

Secondly, there was confusion from junior officers as to what may be relevant evidence in family proceedings and the difference between adherence to local or national Protocols and compliance with court orders. Such training issues need to be addressed.

Knowles J highlighted that these proceedings are quasi inquisitorial, and the local authority bear the lion’s share of assisting the court to determine its application and pertinent issues in the case, and it does so by ensuring the evidence is complete and in order [para 40]. The local authority must be fair, independent and objective and should always act in the interests of justice and not solely for the purpose of obtaining the order it may seek [para 41]. The Judge highlighted the jurisprudence on this matter [para 42-44].

Mrs Justice Knowles [para 48] quoted the judgment of Francis J in London Borough of Southwark v US and Others [2017] EWHC 3707 (Fam) where he suggested that:

The local authority will make a protocol request to police at least 14 days prior to issue of S31 proceedings, unless made on short notice when the request shall be made on issue.
Not later than seen days prior to the CMH, the local authority will issue an application (and serve it on the police) for disclosure against the relevant police authority. The local authority will invite the court to list the application for disclosure on the same day as the CMH. The senior investigating police officer should be invited to attend the CMH and be legally represented.
Applications to withhold disclosure should be made not less than two days prior to the CMH, setting out clear reasons why discourse is opposed.
Upon receipt of application for disclosure or protocol request, the police will provide a schedule of all relevant evidence and material, including a description, whether they agree to disclosure and if not, why disclosure is opposed.
At the CMH the police will provide the court with details of any offences, whether the suspect has been charged, custody status, any applicable bail conditions and criminal court timescales.
If the police oppose disclosure for irrelevance, they will provide a copy to the court for determination.
The local authority will continue to liaise with the police following the CMH and will update the parties and the court.
Prior to any fact-finding/final hearing the police will confirm any new evidence and provide a further list or schedule.
Any Pt II application should be made as soon as practicable and in any event within seven days of that objection.
Case management directions should be sufficiently clear to ensure the reader can understand the key decision-making timetable. The pro forma disclosure order within the protocol should be used.
It is the police and local authority’s responsibility to ensure police evidence is disclosed or the court has the time to determine any issues sufficiently in advance of any fixture to enable the fact-finding/main hearing to proceed effectively.

In relation to (iv) – Knowles J stated the schedule should be provided two clear working days before the CMH, and should contain all evidence and material in the possession of the police at that time, not just what is deemed relevant by the police [para 49]. There should be no obligation on the police to produce any of this evidence/material for inspection until either agreement is reached or the court has ruled on the matter [para 49].

Knowles J also suggested (at odds with the provisions of both the national and local Protocols) that consideration should be given to whether the court orders disclosure of all relevant evidence and/or material in the possession of the police [para 50].

In addition to (v), the police should provide a copy of each adult’s criminal record [para 51]

In relation to continued liaison, Knowles J stated the police should produce an updating schedule of evidence/material fourteen days before he IRH/directions hearing before any fact finding. This should be circulated to the parties and should identify; (a) what has been disclosed; (b) what have been deemed to be irrelevant; (c) anything which the court has ruled should not be disclosed; and (d) any new material or evidence and whether disclosure is opposed in relation to each piece of new evidence and. If so, on what basis. Having seen this schedule, the parties should let the local authority know what they consider to be relevant and, if agreed, the police should disclose the information to the local authority for onward transmission to the parties without delay. If disclosure is resisted, the police should make an application to the court [para 52].

Knowles J suggested that five days prior to any IRH/directions hearing before a fact finding, a recorded meeting should take place between the local authority solicitor (preferably with the advocate conducting the case) and the police disclosure team, to check disclosure is complete and provide the court updates on the criminal process. This is not designed to provide the police information about the family proceedings and prior to the meeting the parties should agree what the police should know (particularly as the publicly-funded advocates may not be in attendance [para 54]. Such a meeting should be authorised by the court at the CMH and may be cancelled if unnecessary. [para 53].

Finally, at the IRH/directions hearing before a fact finding the police should provide a signed declaration that the order for disclosure has been complied with [para 55].

Fact Finding: Litigants in Person

PS v BP [2018] EWHC 1987 (Fam)

6th August 2018

Hayden J

These were private law proceedings in which the father sought a child arrangement order in respect of the parties’ 3 year old daughter. The mother made an allegation of rape against him. At the fact finding hearing the father was a litigant in person. On the day of the hearing the father was told that he would not be permitted to question the mother directly. The judge put questions to the mother on the father’s behalf. Findings were made against the father. The father appealed.

Held Appeal allowed. With the observation that the system has failed both parents, a re-hearing was directed, and the case remitted to the High Court.

The trial judge found himself in a difficult position. However, when he put the father’s questions to the mother, he rendered them superficial, overly simplified and repeatedly phrased in a way as to minimise their impact. The approach hindered the effectiveness of the cross examination put on behalf of the father.

Cross examination of a complainant alleging rape requires particularly careful preparation, great sensitivity and rigorous forensic discipline. Ultimately, the complainant’s evidence must be challenged effectively, and the alleged perpetrator’s case put fairly.

The conclusions in the short ex tempore judgment were not rooted in the substance of the factual allegations but on the judge’s observations of the father’s demeanour. Impressions are not a substitute for a detailed analysis of the evidence. A true assessment of a witness’ demeanour can only properly be undertaken when the witness is ‘put to the assay by challenge’. The process was so fundamentally flawed that it inevitable corroded the reasoning of the judgment.

Observations were offered to provide a “forensic lifebelt until a rescue craft” – by way of parliamentary action – arrives:

Once it becomes clear to the court that a case including serious and intimate allegations must be put where the witnesses are accused and accuser, a Ground Rules Hearing (‘GRH’) will always be necessary;
The GRH should usually be conducted before the hearing of the factual dispute;
Judicial continuity between the GRH and the substantive hearing is essential;
The accuser bears the burden of establishing the truth of the allegations. This burden may not be compromised in response to a witness’ distress, and fairness to both sides must be ensured;
There is no presumption that the accused may not cross-examine the accuser in every case. The Judge must consider whether the evidence would be likely to be diminished if conducted by the accused or improved if a prohibition on direct cross-examination was directed. In a Family Court fact-finding hearing, these two factors may be divisible;
If cross-examination of the alleged victim runs a ‘real risk’ of being abusive (if allegations are established, it should bear in mind that the impact of the court process is likely to adversely affect the welfare of the subject children);
Where the factual conclusions are likely to have an impact on the arrangements for, and welfare of, a child, the court should consider joining the child as a party and securing representation. In that instance, the child’s advocate may be best placed to undertake the cross-examination;
If cross-examination is not permitted by the accused in person and there is no advocate available, questions should be reduced to writing under specific headings. The Judge is not constrained to put every question sought but will have to evaluate relevance and proportionality. Cross-examination is dynamic, and the process cannot become formulaic;
Although fact-finding hearings have a ‘highly adversarial complexion’, the central philosophy of Children Act proceedings is investigative. A judge may therefore conduct questioning in an open and less adversarial style without compromising fairness to either side.

Hayden J noted that a complainant in family proceedings not being offered the same protection as a complainant in a criminal trial is ‘manifestly irrational and unfair’. Hayden J reiterated the need for a regime which replicates that operating in the Criminal Courts and expressed his hope for urgent legislation to address this ‘lamentable situation’.

Relocation

D (A Child) (Temporary Relocation) [2018] EWHC 1571 (Fam)

25th July 2018

Baker J

The mother applied to permanently remove the child from the jurisdiction to live in Japan. The judge refused the application but lifted the pre-existing PSO which had prohibited her from removing the child from the jurisdiction. This had the effect of allowing the mother to remove the child temporarily in accordance with the principles in S13 CA 1989. The father appealed primarily, on the ground that the judge had not considered the availability of measures to secure the return of the child.

Held: Appeal allowed.

The father had proposed a PSO for a period to two years to allow trust to be rebuilt. The appeal court regarded this as a proportionate and balanced proposal.

NB For a useful review of the limitations on enforcing orders in Japan see Family Law [2017] 547 (May 2017 edition)

M and F [2018] EWHC 1949 (Fam)

1st August 2018

Williams J

The parents were both Eritrean. The mother applied to move with the children permanently, to Uganda. The father consented to the relocation but wanted to take the children on holiday to Eritrea. There were other ancillary issues that required the court’s determination.

Held:

-Although the parents were in agreement about the relocation, the court was seized of the issue and was not absolved of the task of considering whether such a move was in the best interests of the children. Having regard to the totality of the evidence, the court was satisfied that the relocation to Uganda was in the children’s best interests.

-the mother was permitted to relocate with the children prior to her lodging a mirror order in Uganda, so that the children could be there before the start of the new school term.

-the father was paying no child maintenance and so he should pay all of the costs associated with the children’s travel when visiting the father.

-With regard to the father’s wish to be permitted to take the children to Eritrea where he and his family used to live, the judge weighed up the risk of the children not being returned to the mother combined with the magnitude of the consequences in terms of emotional harm to the children and ruled that the welfare benefit fell against granting the father permission.

-The judge ruled against the father having the children’s passports for identification purposes because this would open a window to possible action that was not child-centred.

Specific Issue: Immunisation

B (A Child: Immunisation) [2018] EWFC 56

23rd August 2018

HHJ Clifford Bellamy sitting as a Deputy Judge of the High Court

The child was aged 5. She had had her recommended immunisations up to the age of 5 and was now due or overdue 3 further vaccinations. The father opposed further vaccinations because of what he regarded as the risks. He provided over 300 pages of research to support his concerns. The court heard from Dr. Elliman who was a jointly instructed expert.

Held:

The judge rejected the father’s argument that where parents cannot agree vaccinations, then the status quo should be preserved. The father’s proposition was wrong in law. The judge noted the principles of paramountcy and delay. He determined that as the parents’ views were polarised, he should rule on the matter rather than apply the ‘no order’ principle. With regard to Article 8, the judge stated that any order made by the court must be proportionate, and in the child’s best welfare interests.

The judge found that the expert’s opinions were mainstream, whilst the father’s opinions were biased and unreliable. He made a specific issue order and a declaration that it was in the child’s best interests to have the vaccinations.