Private Family Law: Children Summary of Recent Case Law – October to December 2019

CAFCASS

A County Council v Children and Family Court Advisory and Support Service (Cafcass)                                                                                                [2019] EWHC 2369 (Fam)

Keehan J

Judgment: 20th September 2019

This was a public law case which may have relevance in private law proceedings.

As part of the threshold grounds, the LA sought a finding that the father had sexually abused a young person AB who was not a party to the care proceedings. The father denied the allegation and wanted AB called to give evidence. There was an issue as to who should undertake work with AB to assist the court in determining whether a non-subject child should be directly involved in the proceedings, and to undertake a Re W assessment of her. Initially the judge directed that this work be undertaken by CAFCASS. CAFCASS objected on the grounds that since this was a non-party/ non-subject child, this fell outside the scope of CAFCASS’ powers. In order to avoid delay, the judge discharged the direction and directed that the work be undertaken by an independent social worker. The judge considered the issue a matter of general importance and so the case was referred to Keehan J.

Held:   Undertaking work with and assessing the child AB fell outside the statutory scope of CAFCASS.

Section 12 of the Criminal Justice and Court Services Act 2000 details the principal functions of Cafcass. Subsection 1 provides:

(1)       In respect of family proceedings in which the welfare of children [other than children ordinarily resident in Wales] is or may be in question, it is a function of the Service to

(a)       safeguard and promote the welfare of the children,

(b)       give advice to any court about any application made to it in such proceedings,

(c)       make provision for the children to be represented in such proceedings,

(d)       provide information, advice and other support for the children and their families.

The LA argued that the scope of S12 was wide enough to encompass the assessment of a non-party/ non-subject child. Keehan J considered that the LA’s interpretation of section 12 and the relevant rules would effectively place no limit on the work or the role a court could direct Cafcass or an officer of the Service to undertake. He could not accept that Parliament intended to create a statutory national body to advise and assist the court in family proceedings, and to represent the children who are the subject of those proceedings, without any restriction or limit on its function and roles.

According to the best of the parties’ respective researches there was no reported authority on the interpretation of section 12 in respect of the scope of the function of Cafcass.

The use of the word ‘function’ in the singular in section 12(1) led Keehan J to conclude that the subsections of section 12(1) were not to be read disjunctively, but were instead to be read conjunctively. Since one part of that function is to ‘make provision for the children to be represented in the proceedings’ he was persuaded that the function and role of Cafcass is limited to the subject child or children of the proceedings. He also agreed that the opening words of section 12(1) ‘in respect of family proceedings in which the welfare of children… is or may be in question’ should be interpreted to mean the role of Cafcass is limited to the subject child or children of those proceedings.

Keehan J was in no doubt that a children’s guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child’s relationship with a non-subject child (e.g. a step-sibling). The guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people, which could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence. What was key, however, was that the objective and focus of those enquiries and of the advice was, and must be, establishing the welfare best interests of the subject child.

 

COMMITTAL

In the matter of Nasrullah Mursalin                      [2019] EWCA Civ 1559

Baker Henderson and Coulson LJJ

Judgment: 22nd September 2019

The appellant was a member of Lincoln’s Inn, and hoped to train and practice as a barrister. He was working as a paralegal under a principal for a firm of solicitors in Hounslow, which specialised in immigration and family law. The appellant assisted in the preparation of a case in the Immigration and Asylum Tribunal and he prepared and filed a bundle. The bundle included a number of papers from family proceedings. The family court had not given permission for this disclosure and so this was a breach of Section 12 Administration of Justice Act 1960 and rule 12.73 FPR 2010 and a contempt of court.
The Tribunal found that the behaviour of the legal representatives fell a long way below that expected of solicitors, and requested a copy of this decision be forwarded to the Family Court for the attention of the relevant family judge.

The appellant provided a statement for the family court. At a further hearing in the family court the appellant attended but had not been served with notice of the hearing. The family judge required the appellant to take the oath and give evidence. He was warned that this was potentially a very serious breach which may lead to committal and can carry a term of imprisonment of up to 2 years. The appellant was offered the opportunity to seek legal representation and advice. He elected to proceed. He admitted to a breach of court rules, under his principal’s instructions. The Judge’s ruling was that the breach was so serious it could only attract a custodial sentence, and he sentenced the appellant to imprisonment for 6 months, suspended for 6 months. The Judge directed the principal to report himself to the Law Society (meaning presumably the SRA).

The appellant sought to appeal. He stated that he did not understand what was going on at the hearing.

Held: Committal order set aside

The court has repeatedly stressed that committal proceedings are of the utmost seriousness and it is imperative that the strict procedural rules governing such cases must be complied with. In this case the consequences of the disclosure may not have been as serious as in other cases. Nothing in this judgment should be interpreted as excusing the unlawful, unauthorised disclosure of confidential Family Court documents. However, it was plain there were a number of procedural errors which inevitably led to the conclusion that the appeal must succeed:

  1. It was unclear whether or not the hearing was conducted in open court.
    2. It was clear the appellant was given no proper notice that he was being accused of contempt of court or of the specific allegations against him. The warnings by the Judge about the consequences of a finding of contempt or the exchanges about legal representation were not anything like adequate to protect the appellant’s rights. The proper course which should have been adopted at that stage was either (a) to have issued a reprimand to the principal who seemed to have been principally responsible for any unauthorised disclosure, or (b) if the Judge considered it merited committal proceedings, to have particularised the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice.
    3. The failure to particularise the allegations led to the further defect that it appeared the Judge was never shown the specific documents from the family proceedings which had been disclosed to the Tribunal, so it was impossible for the Judge to gauge the seriousness of the alleged breach.
    4. There was little sign the Judge considered the extent of the appellant’s culpability. It did not seem to have occurred to the Judge that the principal may have been the real culprit.
    5. The errors were compounded by the Judge’s direction to the appellant to go in the witness box. He overlooked the fact that a defendant to an application for committal is not obliged to give evidence.

The Court had no doubt that the appeal must be allowed and the suspended committal order be set aside.

DECLARATION OF PARENTAGE

PQ v RS and others (Legal Parenthood: Written consent) [2019] EWFC 65

Mrs Justice Theis

Judgment 15th October 2019

These were Children Act proceedings in which PQ sought a declaration of parentage and RS sought a declaration of non-parentage pursuant to S55A Family Law Act 1986. PQ was the non-biological parent of two children who were conceived following fertility treatment involving a sperm donor. RS was the mother.

PQ and RS agree that prior to any treatment, they both believed they were consenting to PQ becoming a parent of any child born as a result of the treatment, and they both believed they had signed whatever was legally required to ensure they were both became parents. They continued to believe this after the children were born, after they had jointly registered the children’s birth naming PQ as the children’s father.

In 2014, following an audit pursuant to the Human Fertilisation and Embryology Act 2008 PQ and RS were informed that the consent to being a legal parent form had been filled in incorrectly in that they had inserted their respective names in the wrong boxes. They both met with the clinic but decided to take no further action. In 2017 they separated. In the same year, PQ applied for a child arrangements order and the proceedings were adjourned for the issue of parentage to be determined. The children were joined as parties and a guardian was appointed.

The HFEA 2008 provides a framework for the acquisition of parenthood by a non-biological father whose partner undergoes fertility treatment at a licenced UK clinic.
Provided the conditions are fulfilled, legal parentage is crystallised at the point at which the fertility treatment takes place. This was confirmed by Sir James Munby in Re HFEA 2008 (Cases A, B, C, D, E, F, G and H) [2017] 1 FLR 366.

PQ and RS agreed that: Both PQ and RS believed they were consenting to PQ becoming the parent of any child born as a result of the treatment at the Clinic; Both PQ and RS believed they had signed whatever was legally required, to ensure they both became parents; Both PQ and RS continued to believe the above, after the children’s birth and after they jointly registered the children’s births naming PQ as the children’s father on their birth certificates; and, PQ wrote to the CMS in late November 2017 stating that he had obtained written confirmation from the clinic that he was not the legal parent of the children.

RS argued that rectification of the ‘consent to being a legal parent’ form, is a discretionary equitable remedy and that the court should not order rectification in favour of PQ because of his conduct post separation. RS relied in part upon the delay in bringing the application and upon the fact that PQ had denied being the parent and this had been relied upon by third parties.

Held The application to rectify the consent to being a legal parent form was granted. PQ was granted the declaration of parentage.

The court summarised the circumstances in which mistakes on the face of the documents can be corrected:

1) This is permissible if the mistake is ‘obvious on the face of the document and it is plain what was meant: In the matter of HFEA 2008 (cases A-H, Declaration of Parentage) [2015] EWHC 2602 (Fam))
2) The court can do this by way of construction or rectification Re Y, Z, AA, AB and AC [2017] EWHC 784 (Fam) [11]).
3) In either case (correction or rectification) the fact of the parties’ separation is ‘legally irrelevant…for…the legal status of all parties finally and irrevocably crystallised at the moment when the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, and this treatment resulted in the birth of the child’: Re Y, Z, AA, AB and AC [2017] EWHC 784 (Fam) [65])

The Children’s Guardian and PQ argued that the court should be concerned with what the parties’ intentions were at the time the consents were signed. Whilst ‘conduct’ may be relevant to the Children Act Proceedings, it is not relevant for the declaration of parentage.
In this case the Form PP had been filled in incorrectly so that PQ and RS’s names were in the wrong part. There is no evidence to suggest this was anything other than a mistake, and the clinic did not pick up on this at the time. It was only as a result of the audit that the error was identified. The judge decided that the errors in the form are clear and obvious mistakes, and the court has jurisdiction to correct these mistakes by transposing the parties’ names into the correct sections on the PP form. The purpose of rectification is to permit equity to rectify the terms in the written instrument, namely the PP form, so as to make it accord with the true agreement of the parties at the time. The judge agreed that the focus of the court’s concern is the parties’ common intention at the time, as this is when the status crystallises.

FACT FINDING

F v M (Appeal)                                                                              [2019] EWHC 3177 (Fam)

Cobb J

Judgment: 21st November 2019

This was an unsuccessful appeal by the father against a finding of fact that he had raped the mother, resulting in the subject child’s conception. The mother alleged that at first, intercourse between them was consensual. She did not want him to ejaculate inside her because they were not using contraception. She told him to stop but he carried on. The circuit judge found that knowing that the mother wanted him to stop, he knowingly carried on and ejaculated inside her. This was rape.

The father was granted permission to appeal the finding he had ‘raped’ the mother. He acted in person at the appeal. He said the judge had not properly considered all the evidence and the inconsistencies in the mother’s evidence. Further, he said the judge had not considered that the sexual intercourse had always been consensual, and the ejaculation was an accident on his part. The mother relied upon the definition of rape as the intentional penetration of the vagina without consent or where the person does not reasonably believe the other consents.

Held: Appeal dismissed. The appeal judge noted that the circuit judge had found that both parties had not been entirely honest in their evidence and had given herself an appropriate direction under R v Lucas; R v Middleton [1981] QB 720. The judge had properly considered the burden and standard of proof, carefully evaluated the evidence and she had written a detailed, thorough judgment. The appeal judge had found a rape had occurred not because of the ejaculation but rather, as the mother had withdrawn consent to the sexual act when she asked the father to stop part-way through the act. The continued penetration became a serious sexual assault which, in criminal law, under the Sexual Offences Act 2003 was classed as rape. The appeal was dismissed.

LITIGATION FRIEND

Raqeeb v Barts Health NHS Trust (Litigation Friend)                        [2019] EWHC 2976 (Admin)

At the age of 4, the child suffered extensive and irreversible brain damage. The child required constant life-sustaining treatment.  She was minimally aware, if at all, but did not appear to be suffering pain.  Medical consensus was that continued medical intervention would only sustain her life at or very near her current condition but if maintained, she would live for a substantial period of time.

The child’s parents wanted the child’s treatment to continue. The parents wanted to take the child to Italy to continue her treatment. The doctors wanted the treatment to be withdrawn, resulting in her death.

There were two applications:

1) an application for judicial review brought on behalf of the child by her litigation friend XX (a relative) seeking a review of the NHS Trust decision not to permit the child’s transfer to Italy to continue life sustaining treatment. In the case of this decision, the court would be functus as to the wider ‘best interests’ decision

2) an application by the NHS under the Children Act 1989 and the inherent jurisdiction for a declaration that it was in the child’s best interests, for life sustaining treatment to be withdrawn

XX was appointed by the court as litigation friend at an earlier hearing. The NHS opposed that appointment but did not appeal the decision.  The NHS subsequently made an application to terminate XX’s appointment on the grounds of a change of circumstances and invited the court to substitute the OS or the child’s parents.  The NHS contended that XX lacked the ability to take a balanced and even-handed approach to the merits of judicial review and would only ever hold a settled view to pursue a course in line with the tenets of Islamic Law, which did not support the withdrawal of the life-sustaining treatment because:

  • XX lodged a position statement in the CA1989 proceedings opposing the withdrawal of treatment• A fatwa had been obtained from the Islamic Council of Europe and served by TR’s parents indicating that it would be a grave sin for any Muslim to consent to the withdrawal of life-sustaining treatment for TR. This placed XX in an untenable position

    • The NHS was uncomfortable that TR was being “caused” to argue that there was no need for, and she was not entitled to, a fully argued ‘best interests’ decision

Held:   The NHS application was refused.

The court gave a detailed review of the statute and case law pertaining to litigation friends.  The application was refused for the following reasons:

  • XX was litigation friend in the judicial review proceedings only.  The issue in those proceedings was whether the NHS decision was unlawful by reference to the child’s rights under directly effective EU law (Specifically Art 56 of The Treaty on the Functioning of the European Union which concerns free movement in relation to the provision of medical treatment).• There was no suggestion that XX had been incompetent, had failed to acquaint herself with the issues or had, with the assistance of a highly experienced legal team, failed to take all steps necessary to further the interests of the child in that litigation

    • In response to the assertion that XX was unable to act impartially, the court found:

– That assertion concerned the potential consequences of the judicial review application being successful, not the merits of the application.  XX’s views about the religious probity of withdrawing treatment were not relevant to the administrative law issue

– XX had a highly experienced and specialist legal team.  There was no suggestion that she sought to pursue a course for improper motive.  A solicitor acting for a child or protected party was likely to be under an obligation to inform the court of any such concern.  In any event, the NHS had conceded, and the court granted permission for judicial review

– Even if XX’s love for the child and her religious belief, rather than legal advice, was the driving motivation for XX to pursue judicial review, it was not inevitable that a successful outcome would result in no ‘best interests’ evaluation being conducted.  That decision was also a question of law, and XX’s familial affection and religious belief were not relevant to it

  • The delay that would be caused by granting the NHS’s application, particularly in circumstances where there was no indication from the OS on her willingness to act or timescales and the inevitable derailment of the final hearing was not in TR’s best interests• In any event, the court was not persuaded that there had been a material change in circumstances since XX’s appointment

The court ordered the NHS to pay the costs on the application but declined to order them to be paid on an indemnity basis as sought by the parents, because although the application was ‘not successful and indeed might be characterised as misconceived’, it did not amount to unreasonable conduct of proceedings.

 

PARENTAL ALIENATION

Re A (Children) (Parental Alienation)                               [2019] EWFC

HHJ  WildbloodQC
Judgment:      24thSeptember2019

This was the father’s application for child arrangements orders in respect of his children, against a background of parental alienation. The proceedings went on for 8 years and involved over 36 court hearings and the involvement of more than 10 experts. A children’s guardian was appointed. Public law proceedings were initiated. Eventually, and on the recommendation of 3 experts, the judge who since 2017 had heard the proceedings throughout, ordered that the children live with their father. There was a transfer plan, which involved the children being collected after school to go and live with their father. The move did not go well. The children were extremely hostile and ran away more than once. Within a month they had returned to their mother. By the date of the final hearing, the children had not seen their father for 3 months.

At an earlier hearing, the father was granted permission to withdraw his private law applications. At the final hearing, the court granted leave for the public law applications to be withdrawn. With regret, the court accepted that there was nothing more that it could do to try to promote a relationship with the father.

The judge decided to publish a heavily anonymised Judgment
because this was such an exceptional case that it is “in the public interest for the wider community to see an example of how badly wrong things can go and how complex cases are, where one parent (here the mother) alienates children from the other parent. It is also an example of how sensitive the issues are when an attempt is made to transfer the living arrangements of children from one residential parent to the other parent. The judge acknowledged that there was no doubt that
in the long-term, what has occurred within this family will cause the children significant and long-term emotional harm and that the cause of this harm lies squarely with the mother.

The judge identified 10 factors that with hindsight, had contributed to difficulties in the case:

  1. There was a failure to identify, at an early stage, the key issue in this case – the alienation of the children from their father by the mother. By the time that it was identified, the damage had been done.ii)        Overall there was significant delay within the proceedings.

    iii)       At the early stage of the private law proceedings the case was adjourned repeatedly for further short reviews. There were eight orders for review hearings in the first two years of the private law proceedings alone. Under the current Children Arrangements Programme (PD 12B of The Family Procedure Rules 2010) which came into force on 22nd April 2014 this would no longer be allowed to happen1.

    iv)       At no point prior to the judge’s involvement in 2017 was there a full hearing on evidence to determine what was going on in this family. There were underlying and important allegations of fact that needed to be resolved but also, there needed to be a definitive judgment explaining the difficulties within the family so that future work with the family members could be based upon that judgment.

    v)         The use of indirect contact in a case where there is parental alienation has obvious limitations, as this case demonstrated. The father’s letters, cards and presents were being sent by him into a home environment where he was ‘demonised’. They served no purpose in maintaining any form of relationship between the father and the children. It was regrettable that there was not more perseverance in the earlier private proceedings to resolve the obstructions to contact.

    vi)       The proceedings saw a vast number of professionals. Each new person brings a new, personal and different insight into a case of this nature. Family members (especially children) are embarrassed about speaking of personal issues with strangers, develop litigation fatigue and learn to resent the intrusions into their lives by a succession of professional people. The children reached a stage where they said: ‘no more.’

    vii)      A particular difficulty in this case was the absence at times, of collaborative working by professionals. A particular example of that occurred when an attempt was made to move the children to the father’s care. The professionals involved with the court process and the schools had not had sufficient dialogue before that move was attempted. If professional people show their disagreements, as happened in this case on the day of transfer, it undermines the process and allows cherry-picking by family members of what they want to hear.

    viii)     Early intervention is essential in a case such as this. It took years (probably five) to identify the extent of the emotional and psychological issues of the mother. By that stage it was too late for there to be any effective psychotherapeutic or other intervention in relation to her, the children’s views having already become so entrenched.

    ix)       There is an obvious difficulty about how to approach the expressed wishes and feelings of children who are living in an alienating environment. If children who have been alienated are asked whether they wish to have a relationship with the non-resident parent there is a likelihood that the alienation they have experienced will lead them to say ‘no.’ Therefore, in this type of case, the approach to the wishes and feelings of children has to be approached with considerable care and professionalism. To respond simply on the basis of what children say in this type of situation is manifestly superficial and naive. The children’s expressed wishes that they should not see their father had gone on for many years. The lack of an effective and early enquiry into what was happening within the family meant that there was no effective intervention. That, in turn, led to the children’s expressed wishes being reinforced in their minds. It has also resulted in the mother being able to say ‘we should listen to the children’, rather than addressing the underlying difficulties.

    x)         It was unfortunate that the joinder of the children to the second set of proceedings was so delayed. Any attempt to conduct these proceedings without the joinder of the children would have been even more complex and unsatisfactory.1 Paragraph 15.3: ‘While it is acknowledged that an interim order may be appropriate at an early stage of court proceedings, cases should not be adjourned for a review (or reviews) of contact or other orders / arrangements and/or for addendum section 7 reports, unless such a hearing is necessary and for a clear purpose that is consistent with the timetable for the child and in the child’s best interests.’

1 Paragraph 15.3: ‘While it is acknowledged that an interim order may be appropriate at an early stage of court proceedings, cases should not be adjourned for a review (or reviews) of contact or other orders / arrangements and/or for addendum section 7 reports, unless such a hearing is necessary and for a clear purpose that is consistent with the timetable for the child and in the child’s best interests.’