Summary of Case Law (Private Family Law: Children)

Added on by Becket Chambers

Cumulative Edition 2018

by Kevin Jackson

Contents

Civil Restraint Orders

  • AEY v AL (Family Proceedings Civil Restraint Order) 18th November 2018 [2018] EWHC 3253 (Fam)

Committal

  • CH and CT 25th May 2018 [2018] EWHC 1310 (Fam)
  • Egeneonu and Egeneonu and Anor 6th June 2018 [2018] EWHC 1392 (Fam)
  • Egeneonu and Egeneonu 18th July 2018 [2018] EWCA Civ 1714
  • Egeneonu v Egeneonu (Rev 3) 5th October 2018 [2018] EWHC 3029 (Fam)
  • Egeneonu v Egeneonu 15th November 2018 [2018] EWCA Civ 2565

Declaration of Parentage

  • P (Declaration of Parentage – PP Form Mistake) 5th October 2018 [2018] EWFC 742
  • G (Declaration of Parentage- Removal of Person Identified as Mother from Birth Certificate)(No2) 16th October 2018 [2018] EWHC 3361 (Fam)

Disclosure

  • Lancashire County Council v A, B, and Z (A Child Fact Finding Hearing Police Disclosure) 25th July 2018 [2018] EWHC 1819 (Fam)

Experts

  • Buerhlen and Buerhlen 24th November 2017 [2017] EWHC 3643 (Fam)

Fact Finding

  • J (Children) 6th February 2018 [2018] EWCA Civ 115
  • RR v MM 18th October 2018 [2018] EWHC 3252 (Fam)
  • J (Children) [2018] 6th February 2018 [2018] EWCA Civ 115

Litigants in Person

  • PS v BP 6th August 2018 [2018] EWHC 1987 (Fam)

Guardian’s Flawed Analysis

  • F v H and Anor 19th December 2017 [2017] EWHC 3358

Relocation Abroad

  • Re M (A Child) 13th December 2017 [2017] EWCA Civ 2356A v B 6th February 2018 [2018] EWHC 328 (Fam)
  • Re M-A (A Child) 25th April 2018 [2018] EWCA Civ 896
  • S and V (Children-Leave to Remove) 27th April 2018 [2018] EWFC 26
  • M and F 1st August 2018 [2018] EWHC 1949 (Fam)
  • D (A Child) (Temporary Relocation) 25th July 2018 [2018] EWHC 1571 (Fam)

Specific Issue: Immunisation

  • B (A Child: Immunisation) 23rd August 2018 [2018] EWFC 56

Transfer/ Change of Residence

  • Re C (A Child) 16th March 2018 [2018] EWHC 557 (Fam)

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

CH and CT [2018] EWHC 1310 (Fam)

25th May 2018

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. This 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, the PGM had not filed an affidavit in support. Furthermore, there was a failure to comply with several requirements of PD 37A, namely:

  • There was no Warning Notice, contrary to paragraph 10.2(4) and the Annexe thereto.
  • Having not been properly served with an application, the mother had not had time to prepare a defence or to respond in another way, contrary to paragraph 12.5(1).
  • 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)

6th June 2018

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:

  • The transcripts were strong evidence in support of the mother’s grounds of committal and without it the grounds could not be pursued;
  • 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;
  • As the father would have the opportunity to challenge the contents of the conversations in his own evidence there was no ambush;
  • 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:

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

18th July 2018

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, i.e. 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.

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:

  • the application turns entirely on written documents from the clinic’s file;
  • the factual circumstances are the subject of a previous judgment which is precisely in point;
  • there is no dispute between the parties;
  • there has been no intervention by the Human Fertilisation and Embryology Authority (HFEA), the Attorney General or the Secretary of State for Health; and
  • 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.

G (Declaration of Parentage- Removal of Person Identified as Mother from Birth Certificate)(No2) [2018] EWHC 3361 (Fam)

16th October 2018

Williams J

At an earlier hearing the judge found that NG was the biological and psychological father of the child N. RB was the gestational mother from a donated egg and AV was the donor and psychological mother. AV was named on the Birth Certificate as the child’s mother. N was in the care of AV, who had moved to Bulgaria and then to Greece. AV was not engaging in the court proceedings in the UK. Before she left Bulgaria, AV made an application there, for an adoption order in respect of N. If granted, this would extinguish the father’s status as N’s father. The final hearing in the adoption proceedings in Bulgaria was believed to be imminent. Bulgaria has its own jurisdiction and is not subject to the reciprocal arrangements under Brussels IIA. The father and the guardian invited the court to declare that AV is not the mother of N and that RB is the natural birth mother. This would lead to AV’s removal from N’s Birth Certificate which, whilst not trespassing on the jurisdiction of the Bulgarian courts, would undermine the basis of AV’s application to adopt N.

Accordingly, the court made a declaration of parentage that RB is the birth mother of N and that AV is not. The court made an order that N be returned to the UK.

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 seven 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 the application for disclosure or the 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 the IRH/directions hearing before any fact finding. This should be circulated to the parties and should identify; (a) what has been disclosed; (b) what has 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].

Experts

Buerhlen and Buerhlen [2017] EWHC 3643 (Fam)

24th November 2017

Moor J

Moor J dismissed the father’s appeal against the decision of HHJ Scarratt that it was not necessary to instruct an expert as to earning capacity. The judge had correctly applied the test of necessity as described in Re HL [2013] EWCA (Civ) 655, that evidence that is indispensable would fall into the category of necessity whereas evidence that is merely useful, reasonable or desirable would not.

Although they arise from different statutes, the necessity test in financial remedy cases is the same as the necessity test in children cases.

Fact Finding

J (Children) [2018] EWCA Civ 115

6th February 2018

Lord Justice McFarlane and Lady Justice King

M made serious allegations against Fr including marital rape. The judge at first instance declined to conduct a fact finding hearing into the allegations, which were denied by Fr. The judge affirmed non-molestation orders that had been made at an earlier hearing and made an order for very limited contact. Fr’s appeal was allowed against both the non-molestation orders and the contact order because the judge had failed to make any findings of fact. However, the appeal court declined to make any child arrangements orders because of the children’s ages, their negativity towards Fr and because of the restrictions on the court’s ability to make chid arrangements orders.

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.

Guardian’s Flawed Analysis

F v H and Anor [2017] EWHC 3358

19th December 2017

Russell J

Russell J overturned the decision of the circuit judge at first instance to grant M a child arrangements order. There had been a long and protracted history and the judge had erred in relying upon the opinion of the newly appointed r16.4 guardian who had read only limited papers, had met the parents and the child only briefly and who had not challenged M’s account of events.

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 inevitably 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 the accused and the 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 Abroad

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

13th December 2017

Moylan and Peter Jackson LJJ

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.

A v B [2018] EWHC 328 (Fam)

6th February 2018

Theis J

Leave granted to appeal a first instance decision not to allow the mother to remove the child from the jurisdiction

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

25th April 2018

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

27th April 2018

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:

  • 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;
  • 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;
  • If the applicant’s case is not well thought out and is not supported by evidence it will likely fail;
    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;
  • 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;
  • The court must undertake a “global” or “holistic” or “360 degree” exercise;
  • 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);
  • 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.”);
  • 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;
  • 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
  • Arguments in relation to the devastation and impact of refusal of the relocating parent should be treated very circumspectly.

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.

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)

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.

Transfer/ Change of Residence

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

16th March 2018

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.