Family Law Week August 2011 - 1 August 2011

News 1 mediation and representation. Analysis NEWS Cases which can have outcomes which the Government defines as Leave to Remove and the 20 Baroness Hale attacks serious, such as homelessness, Payne Discipline – Breaking the Impasse government's legal aid domestic violence, loss of liberty, proposals discrimination, human rights Leave to Remove – 25 issues and abuse of power by the Improving Due Process Baroness Hale of Richmond has criticised state, will remain in scope; while The End of Payne? 31 the government's proposals to cut legal other kinds of housing case, debts, 34 aid. Lady Hale was delivering the 2011 welfare benefits, employment, Finance & Divorce Update Summer 2011 Sir Henry Hodge Memorial Lecture at immigration, education, and most the Law Society entitled 'Equal Access to family breakdown will come out. Cost Orders in Public Law 39 Justice in the Big Society'. But mediation in family disputes Proceedings: A New stays in.' Approach? Referring to the Legal Aid, Sentencing Children: Public Law Update 42 and Punishment of Offenders Bill, which However, she commented: (July 2011) passed its second reading in the House of Commons on the 29th June, Lady Hale 'In real life, as we all know and Cases said that the government's own equality research has shown, clients come with a variety of interlocking A County Council v K & Ors 44 impact statement accepts that the cuts (By the Child's Guardian HT) will have a disproportionate impact problems. Family breakdown can [2011] EWHC 1672 (Fam) upon women, ethnic minorities and easily lead people into debt, if K (Children) [2011] EWCA people with disabilities. debts are not tackled early and in Civ 793 the right way, they can easily lead She continued: to homelessness. People need the A and A v P, P and B [2011] 45 right advice and they need it EWHC 1738 (Fam) '[The government says] that this is early, before things have escalated justifiable because [such people] into court. The idea that the law in R (R,E,J and K) v CAFCASS 46 [2011] EWHC 1774 are disproportionate users of the some of these areas is simple and easy to understand is laughable.' (Admin) service in these areas. This is an Brighton & Hove City interesting argument about which Council v PM and others I had better not say anything [2011] EWCA Civ 795 more, as it is bound to come FCO launches campaign to before us in one shape or form in tackle international parental SH v HH [2011] EWCA Civ 47 future.' 796 child abduction A (A Minor) [2011] EWHC 1764 (Fam) She then noted that the Legal Action New research released by the Foreign Group fears 'that this would lead to an and Commonwealth Office shows that R (A Child) EWHC 1715 48 underclass of people disenfranchised every other day a British child is (fam) from civil justice and indifferent to the abducted by a parent to a country which S (A Child) [2011] EWCA Civ 812 rule of law'. has not signed the 1980 Hague Convention on international parental Describing incremental cuts to legal aid child abduction. N v N (Costs) [2011] EWCA 49 over the last decade, she said: Civ 979 N v N [2011] EWCA Civ 940 The FCO believes that in practice this 'This is being done by providing figure is likely to be even higher as many 50 that certain sorts of case will WM v CMEC [2011] UKUT cases are simply not reported. 226 (AAC) remain within, and certain others Schalk and Kopf v Austria will be removed from, the scope The latest figures represent a 10% (App 301414-04) of legal aid, by which is meant all increase in new cases handled by the 'civil legal services', that is, all FCO in 2010/2011 and have been kinds of legal advice, assistance,

GENERAL EDITOR Family Law Week is published by Stephen Wildblood QC Law Week Limited Greengate House Deputy Editor 87 Pickwick Road Claire Wills-Goldingham Corsham Albion Chambers SN13 9BY

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www.familylawweek.co.uk Family Law Week August 2011 - 2 released to mark the launch of their She said: Government launches child abduction prevention campaign. consultation on allocation of "The most obvious warning Evidence shows that many cases occur sign is a break down in a ‘straightforward applications’ around school holidays when a parent relationship but other signs in the Court of Protection refuses to return a child following a may include a sudden interest visit to the parent's home country. in getting a passport or copy The government has published a FCO figures also reveal how birth certificate for the child; a consultation paper proposing that widespread the problem has become. parent expressing a wish to some decisions on what it describes as Last year the FCO handled cases in 97 holiday alone with the child; a 'straightforward applications' to the 'non Hague' countries ranging from change in circumstances such as Court of Protection are taken by Afghanistan to Zimbabwe. These are leaving employment or authorised court officers. countries which have not signed up to redundancy, selling a house or the 1980 Hague Convention on giving up tenancy. There may At present all applications to the Court international parental child abduction also be a sudden change in must be decided by a judge, even if the and with whom negotiating the return contact arrangements or issue involved is not contentious, such of children to the UK can be extremely constant difficulty in being able as an undisputed application for a complex as there are no international to see the child. person to become a 'property and agreements on returning children. affairs deputy' in order to make "For many people the issue of financial decisions on behalf of a Foreign and Commonwealth Office parental child abduction is relative or friend. Minister Jeremy Browne said the something with which they campaign will help people become may not have had direct The Ministry of Justice says that judges more aware of what they could do if personal contact. There's often a will continue to take all decisions they think their child may be at risk. perception – fuelled by a which relate to health and welfare number of high profile cases - issues, but the consultation proposes "We are very concerned that we that it's about fathers abducting that some types of application could be continue to see an increase in their children, however dealt with by authorised court officers. the number of cases of statistics show it is mainly international parental child mothers – either intentionally The Ministry expects this to reduce the abduction. The latest figures or unintentionally. time it takes to deal with routine suggest the problem affects matters and improve the service to people from all walks of life and "The latest figures show just users, often some of the most not just certain types of families how widespread this problem vulnerable members of society whose or particular countries. Finding has become. Our statistics for interests are best served by having their a solution can be especially January to May 2011 show a cases processed as quickly as possible. difficult if a child has been 21% increase in the number of The change would also free up judicial taken to a non-Hague country abductions to non-Hague States time to focus on the more difficult and as there are no international states compared to the same sensitive issues the Court has to deal systems in place to help you. period last year. We have also with. This is why prevention is so seen a 21% per cent increase in important. The FCO will do the number of parents The consultation runs until 20 whatever we can to provide requesting advice on September 2011. advice and support but our role prevention of abduction. This is limited, not least because we demonstrates there is a need for cannot interfere in the laws of information on preventative Munro fears government another country." steps that a parent can take and 'lacks courage' to make it is essential that we continue changes The FCO has teamed up with to raise awareness of parental parenting websites Mumsnet and the child abduction, after all it Professor Eileen Munro has expressed Fatherhood Institute to spread the could happen to anyone. concern that the government will not prevention message and make people have the courage to give local aware of the support it can provide. "The psychological impact on authorities more freedom from The campaign will be one of children can be traumatic and government-imposed bureaucracy, as Mumsnet's campaigns of the week in for the left-behind parent, the recommended in her review of child July. shock and loss are unbearable, protection. particularly if they don't know Sharon Cooke, Advice Line Manager where their child is. Even after In evidence to the House of Commons for Reunite International Child they have been found, the fear Select Committee on Education, which Abduction Centre, welcomed the latest and pain of not knowing if they is exploring the recommendations of advice and said while sometimes there will return home is Professor Munro's recently published were no warning signs, there are things unimaginable." review of child protection in England, people could look for which may she said: indicate their child was at risk. "My impression is that they're positive about [the review], but my concern is whether they

www.familylawweek.co.uk Family Law Week August 2011 - 3

have the courage to let go Law and Practice, to which he maintenance service and the because central government is continues to contribute. establishment of a "gateway" process the entity that created the which would require parents to access prescriptive system that's in advice and support services before place. Child maintenance should be they can apply to the statutory system. deducted from salaries or "I'm concerned whether they The Chair said: have the courage to do it bank accounts, says without putting in place so Commons Committee "Successive Governments have many safety nets that they trap tried to reform and improve the professionals. You have to have The House of Commons Select child maintenance system an element of trust that people Committee on Work and Pensions has without success, and the Child in the relevant professions recommended that non-resident Support Agency continues to won't go berserk." parents should be required to pay child offer poor value for taxpayers' maintenance through direct money. The Government's deductions from their salaries or bank proposal to introduce charges Sir Andrew McFarlane accounts. on parents is not cost-effective. appointed Lord Justice of We call on the Government to The Committee has been investigating explore ways to make the Appeal the reforms in child maintenance collection service more efficient. arrangements. Its report, 'The Mr Justice McFarlane has been Government's proposed child "The proposed charges which appointed to the Court of Appeal with maintenance reforms', calls on the parents will be required to pay effect from the 28th July 2011. Government to establish a more if they use the statutory service efficient way to administer the are excessive, complex and fall Sir Andrew was called to the Bar statutory child maintenance service, too heavily on parents with care (Gray's Inn) in 1977 and took Silk the Child Maintenance and of children. We believe that, in whilst practising at 1 King's Bench Enforcement Commission. It highlights cases where a parent with care Walk chambers in 1998. He was that in 2009-10 it cost £572 million to has taken all reasonable steps to appointed as an Assistant Recorder in administer its collection service but reach a voluntary agreement, 1995, as a Recorder in 1999, as a Deputy that only £1,141 million in maintenance the proposed charges should be High Court Judge in 2000 and was payments reached children; a cost of 50 paid by the non-resident made a Bencher in 2003. He was pence for every £1 collected. parent." appointed to the High Court (Family Division) in 2005 has been a Family The Chair of the Work and Pensions The report states: Division Liaison Judge for the Committee, Dame Anne Begg, said: Midlands since 2006. * Non-resident parents should be "The current system leaves required to pay child maintenance Sir Andrew has also been a member of many separated parents through direct deductions from their the government's Family Justice without adequate child salaries or bank accounts. This would Review Panel which published its maintenance arrangements, and ensure that parents with care receive interim report on 31 March 2011 many parents with care do not agreed child maintenance payments on outlining a number of reforms to public receive payments on a regular time and at the correct level. and private law and the family justice basis or receive no payments at * In 2009-10, the Child Maintenance system as a whole. all. Our report recommends a and Enforcement Commission (CMEC) requirement for all non-resident cost £572 million to run but only £1,141 Mr Justice McFarlane has the parents to pay child million in maintenance payments reputation of being a progressive judge maintenance through direct reached children; a cost of 50 pence for who supported the opening up of the deductions from salaries or every £1 collected. The Government family courts to the media. In a speech bank accounts. This would should find a more efficient way of to the Resolution annual conference in increase the number of families administering the service, drawing on 2009, the judge said that government who receive payments in full international experience and including plans to open family courts to the press and on time." exploring the possible use of the did not go far enough and were private sector. unlikely to enable journalists to report The report examines the Government's * Where a parent with care has taken fully and accurately on family cases. proposed reforms of the child all reasonable steps to reach a He argued that reporting will be maintenance system, as set out in the voluntary agreement, both the limited to covering the system rather Green Paper 'Strengthening families, proposed application and collection than the substance and journalists promoting parental responsibility'. The charge for the service should be borne would therefore be in no better Government's view is that parents by the non-resident parent. position. should be encouraged and supported * The proposals for collection charges to make their own arrangements for are excessive and unnecessarily Sir Andrew has written extensively the maintenance of their children, complex. Instead, there should be a about children law, most notably with before deciding to use the statutory single, modest administrative charge the late David Hershman QC maintenance scheme. The proposals for collecting the payment. Hershman and McFarlane: Children included introducing charges for * The Government must ensure that parents who use the statutory child its proposed network of improved

www.familylawweek.co.uk Family Law Week August 2011 - 4 advice and support services is Adoption Czar to be The President stressed the operating effectively in all areas before Appointed independence of Children's Guardians charges for the statutory system are and the personal nature of their introduced. appointment as enshrined in section 41 Martin Narey, whose official title when * The proposed gateway process is a of the Children Act 1989 and gave the he is officially appointed later this positive development, as mediation following guidance: week will be the Ministerial Adviser on and collaboration could resolve Adoption will be tasked with problems for separating parents at the Disputes between CAFCASS the responsibility for reviewing current earliest stage. However, it is not yet body and the CAFCASS guardian adoption processes and procedures clear how the Gateway will work or appointed by the court under section and making recommendations for who will deliver it across the country. 41 of the Act simplification and streamlining. A * The operation of the Child Support radical overhaul of adoption services is Agency (CSA) still has operational What should occur in care anticipated. weaknesses, including ongoing IT proceedings when there is an problems and a reported £3.8 billion in irrevocable disagreement between Mr Narey has had a long and uncollected payments. The CAFCASS the body and the distinguished career of public service. Government must ensure that the new individual guardian appointed by He was Director General of the Prison system achieves value for money, the court under section 41 of the Act? Service and served as Chief Executive delivers an improved service and of Barnardo's until he stood down in learns from the previous problems 1. In the event of disagreement, the January this year. Mr Neary has experienced by the CSA. ultimate decision is not for CAFCASS recently completed "The Narey Report nor for the guardian but for the court. on Adoption" commissioned by The Times which it describes as a "blueprint Domestic Violence 2. The issues should be placed for Britain's lost children." The Report transparently and fairly before the Protection Notices and was commissioned prior to Mr Narey's court, and the court's decision on them Orders to be piloted appointment. invited.

From 30 June 2011, Domestic Violence It is reported that one of Mr Narey's 3. There is nothing unhealthy or wrong Protection Orders (DVPOs) will be suggested reforms, is that abused about a disagreement between piloted for one year in three police children should be removed from their professionals in care proceedings. force areas – West Mercia, Wiltshire homes to live with prospective There is frequently no unequivocally and Greater Manchester Police. adoptive parents rather than spending right answer in such cases. years in the care system. Until now, there has been a gap in 4. The President does not accept that, in protection for victims of domestic Mr Narey suggests that consideration the event of disagreement, it is violence. Victims have always been should be given to setting up a national automatically the view of the manager able to apply for civil remedies which adoption agency which would take which will prevail (despite the provide them with longer-term over responsibility from local wording of the CAFCASS Reporting to protection against domestic violence, authorities, unless there is a significant Court Handbook" of May 2010). but these can often take several days or change in the numbers of children weeks to apply for. adopted and the speed at which those 5. CAFCASS as a body are entitled to adoptions take place. monitor the quality of the work which The government is seeking to guardians undertake but this has to be strengthen the protection available to The Times reports that the Prime balanced against the independence of victims by enabling the police to apply Minister is set to express publically his the guardian appointed by the court. for a DVPO which, if made by the commitment to greater numbers of magistrates' court, may prohibit the adoptions and to speeding up the 6. The proper course, in the event of an alleged perpetrator from contacting the process. irreconcilable difference of view, is for victim or returning to the victim's CAFCASS to apply to intervene, and address for a minimum of 14 days and for there to be placed transparently maximum of 28 days. Court backs independence of before the court the views of the children’s guardians guardian and the views of the The pilot is designed to protect victims manager, each explaining why the in the short term and give them the In a judgment in A County Council v K other is not to be preferred. The court breathing space to consider their next and Others [2011] EWHC 1672 given on will then decide. It may decide to steps, including pursuing longer term 4 July 2011, the President of the Family replace the guardian: it may not. But protection through a civil injunction Division has supported the the decision will be that of the court – application. independence of guardians appointed as it should always be. to act for children in family cases and said that in the event of disagreement Discussions between the local with Cafcass, the views of Cafcass authority and CAFCASS about "live" management would not prevail but cases rather the competing positions should 7. Family law is multi-disciplinary and be put before the court for their cooperative. It is inevitable and quite consideration. proper that officers of CAFCASS and members of the local authority will meet and discuss matters of mutual

www.familylawweek.co.uk Family Law Week August 2011 - 5 interest. The same applies to any In his judgment, the President, who Promoting and protecting professional body engaged in family described the issues as both Important children’s rights are at the proceedings. However, that where the and difficult said that it did not seem to topic under discussion is a "live" case – him that CAFCASS obeyed its own heart of the Children’s that is a case before the court - such rules: Commissioner's new work conversations should be (a) rare; (b) programme strictly necessary for the proper "It was not for CAFCASS to replace the progress of the case; (c) minuted; and guardian: it was not for CAFCASS to Dr Maggie Atkinson, the Children's (4) disclosed to all the other parties in substitute its views for those of the Commissioner for England, has the proceedings and available, if guardian. The guardian may have been announced her plans to promote and required, to the court. right – she may have been wrong. It protect children and young people's does not seem to me – although I have rights in England in line with the The "Transparency" of CAFCASS not, quite deliberately, made findings United Nations Convention on the Reporting of fact - that CAFCASS followed a Rights of the Child (UNCRC). 8. The President rejected the argument transparent procedure. Added to that there was an absence of which, of course, it was complicit in the During 2011-12, as well as launching transparency in the process by which failure to notify the parents of what two major Inquiries – one examining CAFCASS guardians place their was going on." patterns of school exclusions to be recommendations before the court. The launched in July, and one investigating reasoning of the CAFCASS guardian, Ann Haigh, Chair of Nagalro, the sexual exploitation and related whether given orally or in writing is responded to the judgment: abuse of children and young people to always open to challenge in cross- be launched in the autumn – the Office examination, which can always go to "We welcome this judgment of the Children's Commissioner (OCC) method. Added to which, of course, and its clear statement of the will continue to work alongside and on where the report is in writing, good boundaries between behalf of children and young people in practice requires the investigative and organisational and professional England, and in particular those who reasoning processes to be set out. accountability. It is much are most vulnerable. needed and we are delighted The case itself concerned care that it fully supports our view Speaking about the plans set out in the proceedings brought by A County that personal responsibility and OCC's 2011-12 Business Plan, with its Council [ACC] concerning TL. At the the professional judgment of new performance framework based on initial hearing ACC sought an ICO and skilled and independent the UN model to measure the the removal of the child. This was practitioners offers the best effectiveness of National Human opposed by the parents and the protection for children. Rights Institutions, Children's children's guardian. After discussion at Commissioner Dr Maggie Atkinson court ACC modified their position and "We expect CAFCASS to review said: agreed to TL staying at home under an its organisational policies to interim supervision order. The take account of this judgement "Following the guardian argued that there should be and to ensure that all managers recommendations in Dr John an interim care order. The court agreed and practitioners fully Dunford's review of the Office and the order was made. understand the importance of of the Children's Commissioner the professional independence (OCC) for a Children's Upon their return to their open plan of the Children's Guardian role Commissioner for England with office, the social workers were and their proper relationship greater independence, stronger overheard by an agency worker, X, with the court." powers and an enhanced focus talking about their concerns. X took it on the UNCRC, we have upon herself to email a senior manager This news item by Martin Downs, developed a comprehensive in CAFCASS urging her to look at the barrister, One Crown Office Row Business Plan to challenge us, case. our partners in the sector, central and local Government Senior managers in ACC and May and June care and policymakers to ensure CAFCASS spoke to each other and application numbers highest both the voices and the best CAFCASS management then wrote to ever for those months interests of children and young the court but not to the parents or their people are taken into account in lawyers informing them that the all the decisions which affect There were 843 care applications recommendations of the guardian their lives. maybe unsafe and that the guardian during June 2011. Between April and June 2011, Cafcass received 2,345 new had "agreed" to be de-appointed. The "We will continue to work with applications. This figure is 9.1% higher court appointed a new guardian and Amplify, our advisory group of when compared to the same period last the matter was then listed for a further children and young people, and year. The May and June application hearing at which the parents became establish an Interim Board to numbers were the highest ever aware for the first time what was afoot. provide scrutiny, challenge and recorded by Cafcass for these ACC subsequently decided not to advice. Children who are individual months. challenge the placement of TL with the caught up in the immigration parents. and youth justice systems and those who have suffered inequality, neglect, abuse and

www.familylawweek.co.uk Family Law Week August 2011 - 6 harm, will be supported by the based Children's Commissioner recommendation should not be Office of the Children's for England come to fruition. To influenced by financial reward. Commissioner with renewed support this process, the OCC energy, through our abiding will submit a response to the The BSB sees no evidence or commitment to promoting and Government consultation justification for altering its rules at this protecting the rights of launched today on the new time. England's 11.8 million children Office of the Children's so that they are fully realised." Commissioner for England." Independent social workers The 2011-12 Business Plan is published Consultation on changes to the role of attack Family Justice Review alongside the OCC's 2010-11 Annual the Children's Commissioner Report, which includes a foreword Meanwhile the Government has plans to oust them from from Lysette, the young person who launched a consultation on changes to courts chairs Amplify, and highlights the the role of the Children's Office of the Children's Commissioner following John Independent social workers (ISWs) Commissioner's impact and Dunford's review. have expressed their anger at contributions to achieving change for proposals to reduce the reliance on children. These include: Announcing the consultation, expert witness testimonies in family Children's Minister, Sarah Teather, courts. Speakers at a conference hosted * Challenging on necessary action, said: by the Confederation of Independent then contributing to the Government's Social Work Agencies (CISWA) response in its pledge to end the "Children should have a strong described the reform plans, set out in detention of children for immigration advocate to promote and an interim report from the Family purposes; defend their rights and speak Justice Review (FJR) published in * Challenging, and thereby ending, on their behalf. The March 2011, "as a victimization of routine strip searches of children in Government wants the views ISWs". custody, a practice which had negative and interests of children to be impacts on their mental health, championed at the highest Addressing the event, Dame Gillian particularly if they had previously level. That's why we accepted Pugh, a member of the FJR panel, suffered abuse, as many of them had; all of John Dunford's sensible defended the proposals as "necessary * Influencing the decision by the recommendations to give the in light of the shocking delays that Ministry of Justice to review plans to Children's Commissioner damage children". But ISW critics said allow media to report more widely on greater independence, influence proposals such as ISWs only being family court cases following children and impact. We are listening to employed to provide new information telling the Children's Commissioner of young people, and everyone to the court that cannot be provided by their grave concerns about their working with children, on how the local authority social worker or privacy; we change the law. We want to guardian suggests a lack of * Ensuring children's voices were change the role to best suit the understanding about the work heard in the Munro Review of Child needs of children, particularly independent social workers undertake. Protection and the coalition looked after children and those One ISW told Dame Pugh: "This reads Government's first child poverty who have just left the care as change for change's sake and shows strategy; system, as they do not have a a lack of awareness, understanding * Facilitating more than 43,000 parent or guardian to promote and evidence about the role of ISWs in children and young people across the their rights and views." court proceedings." country to enjoy their rights under Article 12 of the UNCRC and have a Other speakers at the CISWA event in say on matters affecting them, by Bar Standards Board clarifies Birmingham on 24 June lined up to add taking part in the Children's rules on referral fees their criticisms of the reform agenda. Commissioner's Takeover Day. BASW professional officer Nushra Mansuri told the event: In the light of the recent discussions Dr Atkinson added: about referral fees, the Bar Standards "ISWs have been singled out Board has clarified its position on the again in a discriminatory "Children and young people's use of them within the profession. manner which is disappointing views were at the heart of our Referral fees are payments or gifts – a broad-brush approach has achievements last year, and which are exchanged in return for the been taken that should not be their testimonies will continue allocation or referral of work. to inform everything that we applied across all cases in court." do. We met and listened to As the regulator of barristers in Ms Mansuri suggested that the current thousands of children of all ages England and Wales the BSB is fiscal climate was behind the FJR plans. in different settings across the responsible for ensuring the protection country to find out their worries of the public and that the Code of "Allowing budgetary issues to and aspirations and their views Conduct, by which all barristers must dictate what happens in cases on the systems, services and abide, is upheld. The Code currently involving vulnerable children is issues which affect them. Our prohibits barristers from making or risky and unacceptable." focus now for the immediate receiving payments in order to obtain future is to work with the work. Solicitors also have a duty to Dr Julia Brophy, senior research fellow Department for Education and ensure that the client is referred to the at the Centre for Family Law and the Children's Rights Director most appropriate barrister for their Policy at the University of Oxford to see Dr Dunford's case and we strongly believe that this recommendations for a rights- www.familylawweek.co.uk Family Law Week August 2011 - 7 questioned the basis for the reform The number of new civil partnerships discuss the views of their members on proposals: in the UK peaked in the first quarter of the planned approach. Any 2006 at 4,869. The high numbers for organisation wishing to feedback "There are issues with the 2006 reflected the fact that many same- comments is invited to do so through evidence submitted for the sex couples in long-standing its representative body by 2 August Family Justice Review, with relationships took advantage of the 2011. regard to claims of delay, opportunity to formalise their duplication and lack of added relationship as soon as the legislation If any providers wish to comment on value we would like to see a full was implemented. The number of civil the proposals in the paper, or have any evidence based evaluation as partnerships has since fallen to an questions about the paper, they should soon as possible." average of 1,596 per quarter in 2010. contact their representative body i.e.

Conference chair Philip King, director In 2010, 49 per cent of civil partnerships * The Law Society of ISWA, broadened the debate to formed in the UK were male compared * Resolution encompass the separate decision to cap with 51 per cent in 2009. This is the first * Legal Aid Practitioners Group ISW court fees to £30 per hour, £33 in year that more females than males have * Association of Lawyers for Children London, a move that came into force in formed civil partnerships in the UK. * Institute of Legal Executives May. He told ISWs: This change had already taken place in * Family Law Bar Association Scotland and Wales in 2007, in * Advice Services Alliance. "Now is the time to stand up for Northern Ireland in 2009 and finally in ourselves and refuse to offer England in 2010. However, in the event that the LSC our expert services in exchange does receive comments directly from for so little." providers, it will log these and ensure LSC publishes consultation they are fed into the process. paper on family contracts Civil partnership dissolutions The LSC intends to publish its final approach and summary procurement rise by 44 per cent in 2010 Following meetings with plans in August, with the tender representative bodies, the Legal processes opening in September 2011. There were 509 civil partnership Services Commission has set out its dissolutions granted in the UK in 2010, approach to procuring interim family The intention is that the new contracts compared with 353 in 2009 (a 44 per contracts. will start in February 2012. cent increase). Of these, 472 were in England and Wales, 34 were in The LSC has published a Scotland and 3 were in Northern representative body consultation paper Ireland. However, the increase in the setting out its intended approach to Martin Narey appointed as number of dissolutions in the UK was procuring interim face-to-face family Ministerial Adviser on to be expected as the number of civil contracts later this year. Adoption partners living in the UK continues to increase. The paper is being made available to all Children's Minister Tim Loughton has organisations interested in applying announced that former Barnardo's Official figures released by the Office for a new family contract. It is available chief executive Martin Narey will be for National Statistics show that for the for download. appointed as the new Ministerial UK a greater proportion of male civil Adviser on Adoption. partnership dissolutions were in the Following the judicial review brought higher age group compared with by the Law Society it was not possible The Government says that adoption females. Fourteen per cent of male civil to introduce the Standard Civil should be a much bigger priority for all partners dissolving a partnership in Contract in the family category. Instead local authorities and that more needs to 2010 were aged 50 years and over the Unified Contract for Family was be done to reduce delays in the system, compared with only 10 per cent of extended. This extension expires on 30 speed up the time it takes to place females. This is likely to be because a November 2011. children with families and make the greater proportion of male civil system truly fit for purpose. partnerships take place at ages 50 and The LSC says that it is seeking to over compared with female implement a new interim contract for In a new report published by The partnerships. the delivery of family services Times last week, the new adviser commencing in February 2012 and described the adoption system as 'slow' The number of civil partnerships intends to further extend the current and 'failing' and in need of a complete formed in the UK by same-sex couples Unified Contract for family until then. overhaul. The report puts adoption as was 6,385 in 2010 compared with 6,281 the best option for finding children a in 2009. This represents a very small The consultation paper covers: stable permanent home and calls for a increase of 1.7 per cent between 2009 radical increase in the number of and 2010. The total number of civil * the services it will invite tenders for adoptions. partnerships formed in the UK since * the structure of the tender process the Civil Partnership Act came into * how work will be allocated and Mr Narey called for a cultural shift in force in December 2005, up to the end * the timetable for the tender process. social worker attitudes towards of 2010, is 46,622. adoption. He said social workers The LSC will be meeting with 'sometimes forget that they are the representative bodies during July to

www.familylawweek.co.uk Family Law Week August 2011 - 8 champion of what is best for the child, adoption processes to provide advice even though that may not be in the and support on improving services so Commenting on the appointment and parents' interests. Some social workers that adoption is available for all those Mr Narey's report, Robert Tapsfield, seem unable to get this balance right children for whom it is in their best chief executive of the Fostering and some may not have the interests Network, said: competences.' * undertake thematic studies on particular aspects of the adoption "While the adoption process Children's Minister Tim Loughton said system causing concern, such as why should be sped up so that new of Mr Narey's appointment: black and minority ethnic children face families can be found as quickly particular delays in being placed for as possible for those children "Barely a week has gone past in adoption. who need them, what we really the last year when I haven't need is quicker and improved spoken to parents who have Martin Narey said: decision making for all children adopted, potential adopters, in care. children in the care system, and "I am delighted to see Tim children who have benefited Loughton and Michael Gove "Adoption is only the best from adoption. make adoption the priority it option for a small minority of should have been for the last children in care. For the vast "I've been working to address few years. As my recent report majority, rehabilitating them problems in the adoption for The Times argues, adoption with their parents and system for several years, and can transform the lives of some providing them with the this has become a priority of the of the most neglected children support they need, finding Government. We now need to in the UK. I will judge my relatives who can meet their step up a gear to help success in this post if adoptions needs, or the right foster home vulnerable children. radically increase and if the or residential care placement, time taken to complete where they can have security "Our work in the last year is the adoptions is significantly and stability and keep in touch first stage in my ambition to reduced." with their birth family, has to be make the adoption system truly the priority. fit for purpose. I am delighted Tim Loughton has asked Martin Narey today to confirm that Martin to report on progress on a quarterly "We are concerned that an Narey is the Government's new basis for discussion at the Ministerial emphasis on increasing Adviser on Adoption. He will Advisory Group on Adoption. adoptions could lead to provide an extra push to make distorted decision making and sure the Government's agenda Over the last year, the Government has the needs of the vast majority of is being seized enthusiastically, been working to raise the profile of children in care who don't need visiting individual authorities adoption. New guidance published in a new adoptive family being that need help to increase February made clear that all local overlooked. Delays are adoptions and improve the authorities and voluntary adoption damaging for all children in quality and sustainability of agencies must make adoption more of care, and it is unhelpful for placements. a priority and do everything they can them for adoption to be given a to reduce delays, particularly for older special status. "I am determined to get this and black and ethnic minority children. right and see it through. There The guidance also made clear that "There is a danger adoption will is no doubt in my mind that potential adoptive parents should not be seen as the only possibility, with the help of Martin, and the be turned down purely on the grounds when it is one of a range of whole of the children's sector, that they don't share the same ethnic options for children who cannot we can create a world-class background as the child. live at home. Evidence shows adoption system. Vulnerable that outcomes improve when a children deserve nothing less." The Government is doing further work permanent home is found for with Ofsted to improve accountability children in care and that the Mr Narey will take up the post from of local authorities. Ofsted are younger they go to live with this month. He has been asked to: amending their inspection framework their new family the better the to place more weight on the number, outcome. * help raise awareness of the need to timeliness and quality of adoptions increase the number of adoptions in when they inspect children's services. "What is important is that the England, where this in the child's best right solution is found for each interests, and reduce delays in the Response to the Narey Report and individual child. We must focus system Martin Narey's appointment on improving life for all * promote the identification, The Fostering Network children in care and not just awareness and sharing of good practice The Fostering Network has welcomed those who need to be adopted." by the whole adoption sector the Government's appointment of a * promote stronger collaboration new ministerial adviser on adoption, British Association of Social Workers between local authorities, voluntary but is warning that placing a greater The British Association of Social adoption agencies and the courts emphasis on adoption rather than Workers too has criticised comments * visit individual local authorities other options for children in care could within the report by Martin Narey, in who may be struggling with their lead to skewed decision making. which the former head of Barnardo's

www.familylawweek.co.uk Family Law Week August 2011 - 9 urged the children's minister to refocus "Clearly, it is not about a 'one Court of Appeal's the role of social workers and "ensure size fits all' approach. The groundbreaking decision on that the role of the social worker as the primary objective of social unequivocal protector of the interests workers is to promote the best leave to remove applications of the child as opposed to that of friend interest of children and work in of the family". a child-centred way and that In Re K (Children) [2011] EWCA Civ 793 does not mean parents who on 7 July 2011 the Court of Appeal has Nushra Mansuri, BASW professional have made mistakes in all cases taken the opportunity to consider the officer, said: should immediately be written application of Payne v Payne [2001] off. EWCA Civ 166 in international "Those who suggest social relocation cases. The judgments in the workers are anti-adoption don't "In some situations, with the case – delivered by Thorpe, Moore- know very much about social right intervention and support, Bick and Black LJJ – follow continued work. The idea that the social parents can turn their lives criticism of the authority both at home work profession is anti- around and get back on track in and abroad. The decision of the adoption is ludicrous and order to be able to safely and Appeal Court constitutes the most insulting to highly skilled appropriately care for their groundbreaking decision in an external workers who work tirelessly, in children and this absolutely relocation case since Poel and Payne. the current climate of pay cuts must not be overlooked. Before and staff shortages, to ensure the 1989 Children Act, local As Andrea Watts of 1 King's Bench successful placements are authorities were seen as too Walk explains in a detailed analysis of achieved for children. Many of quick to remove children from the judgments: our most experienced social their families; it is critical that workers choose to work in we learn from this and do not 'Any applicant with a shared adoption teams as this is a allow the pendulum to swing care arrangement will now find highly valued specialism and back. We need to constantly it much more difficult to they undertake their work with assess current practice in order persuade a court to grant pride and dedication." to develop it in terms of its permission to relocate out of the quality and outcomes." jurisdiction. Critics of Payne Mr Narey's report also calls for may be disappointed that the adoption to be given "greater BASW also warned that 'naming and judgment did not go far prominence on social work training' shaming' local authorities and enough. The guidance remains and suggests consideration of 'how the publishing league tables indicates applicable where there is no contribution of unqualified staff can be more of the target driven, blame such shared care arrangement better utilised in child protection culture which the recent Munro report which is likely to be the vast work". He recommends that the into child protection identifies as majority of cases. Further, overwhelming evidence that care debilitating good practice. Black LJ argued that Payne improves life for neglected and abused should not be put completely to children be communicated to local British Association for Adoption and one side even in shared care authority and voluntary sector Fostering cases.' children's staff' and proposes league The British Association for Adoption tables to monitor council adoption and Fostering commented: In this case the mother was Canadian, rates. He says the children's minister the father Polish. They met in Toronto Tim Loughton should "make it plain to "We are reading the Narey in 1992 and later moved to England. local authorities that the option of a Report on Adoption published They married in 2004 and had two national adoption agency will be in the Times with great interest. daughters; I aged 4 years and A aged pursued unless there is an across-the- It is helpful that the report 18 months. They separated in July 2010. board increase in adoptions and the considers adoption in a broad speed of those adoptions". and positive context. It is careful Both parents worked in the banking to consider the crucial role of industry, although not full time. They BASW made clear its view that Mr the courts, the importance of shared the care of the children under a Narey was offering an unfair picture of adoption support and the shared residence order made in August adoption and fostering arrangements impact of special guardianship. 2010. The children spent five nights (six in many local authorities in England. We look forward to discussing days) with their father and nine nights Highlighting the positive work carried the report and its with their mother in every fourteen out over the past decade in successfully recommendations further with day period. The mother had the placing children with members of their its author and with all those assistance of a nanny whilst at work extended family when their parents are who are committed to making whereas the father cared for the unable to care for them, the Association adoption work for children." children unaided. In this respect the said there is significant evidence for the father's share of the care was not benefits of kinship care as a clear inferior to the mother's. alternative, in some instances, to adoption. The mother applied for permission to relocate to Canada with the children. Ms Mansuri said: She wanted to go home to enjoy the support of her parents following the breakdown of the relationship with the

www.familylawweek.co.uk Family Law Week August 2011 - 10 father. The father objected due to his within Payne v Payne harks She said that it was clear from the rules commitment to the girls and the back to a stereotypically 1970s and from Practice Direction 30A that significance of the shared care view of family life, and is not the first attempt to obtain permission to arrangement. CAFCASS had provided relevant to modern parenting or appeal (if not made orally at the end of a report on the issue recommending society (at paragraphs 68 to 70 the first-instance hearing) is by written that the mother's application be of the judgment). We application to be dealt with by the refused, although it was a "fine and particularly note and welcome court as a piece of box work i.e. an difficult balance". Her Honour Judge paragraphs 78 and 79 of the application to be disposed of on paper. Bevington granted the mother's judgment. Since starting this In the event that the court decides the application. campaign, we have held that appeal has prospects of success the the rigid application of the judge can grant permission on paper. If The father appealed on the basis that (i) guidance within Payne v Payne he or she reaches the conclusion that the Judge rejected the has gone counter to the permission is not warranted it is recommendations of the CAFCASS paramountcy principle within refused on paper. If the appeal court officer without proper analysis or the Children Act. refuses the application on paper, the explanation, (ii) she directed herself by appellant then has the right to ask for reference to guidance for applications "The test applied by judges an oral hearing. As an alternative, the by primary carers (Dame Elizabeth when considering matters judge dealing with the paper Butler-Sloss at paragraph 85 of Payne), which impact on child welfare application may list the permission rather than guidance in applications by was warped. The assumptions application for hearing. This will be for a parent with a shared care and weighting given to the a one-sided hearing unless the judge arrangement (Hedley J in Re Y [2004] 2 distress argument were and are indicates there should be an inter FLR 330) and (iii) she referred only to unscientific and partes hearing, for example with the the case raised by the mother and did unsubstantiated, yet until this appeal to follow if permission is given. not remedy this defect even when it judgment, have remained was raised by counsel on behalf of the fiercely defended by Lord In essence, she concluded, the new father. Justice Thorpe. We would rules are akin to the procedure in the further like the courts to Court of Appeal and applications for The Court allowed the father's appeal. properly consider the child's permission to appeal should be dealt Their Lordships agreed that the only Convention Rights to contact with and listed accordingly. principle to come from Payne was that and family life, and its repeated the welfare of the child is paramount. failures to put in place adequate The rest is guidance to be applied or safeguards to protect a child's Half of parents have a distinguished depending on the relationships. We note that the maintenance arrangement circumstances. The judge should apply child in Payne v Payne went on the statutory checklist in section 1(3) of to lose all contact with their within eight months of the Children Act 1989 in order to father. The guiding case was a contact with Child exercise his discretion. Thorpe LJ failure. It's continued Maintenance Options confirmed the approach set out in Re Y; application as binding that the guidance in Payne is only precedent has been a scandal." The Child Maintenance and applicable where the applicant is the Enforcement Commission has primary carer. Where parents share the published findings from a quantitative burden of caring for the children in High Court clarifies the research report based on an evaluation "more or less equal proportions" the procedure under the FPR of the Child Maintenance Options approach in Payne at paragraph 40 2010 when seeking telephone service. The report is should not be applied. The label available in full and in summary form. "shared residence" is not significant in permission to appeal from The main aim of the study was to itself. Black LJ reached the same district judge assess the effect of the service on conclusion as Thorpe LJ and Moore- parents who used it between February Bick LJ, but by a different route saying Baron J has clarified in O v O (Procedure and September 2009. The study also Re Y is not a different line of authority for listing applications for permission to collected information on the profile of from Payne but "a decision within the appeal to the High Court) the procedure users of the telephone service, their use framework of which Payne is also where a party seeks to appeal in family and views of the service and the part". Future cases should not become proceedings from the decision of a maintenance arrangements they made. embroiled in arguments as to whether district judge. the amount of time a child spends with Key findings from the research were: each parent makes it "a Payne case" or The new rules provide that, subject to "a Re Y" case. All the facts of the case the exceptions set out in FPR rule 30(2), * The majority of parents were must be considered. permission is required for appeals referred from Jobcentre Plus, were lone from any decision of a District Judge. mothers and from low income Michael Robinson, who has Despite that change, Baron J said, it households. The findings looked at campaigned for a reconsideration of appears that appeals are still being differences between those referred Payne v Payne, commented: listed for a 30 minutes inter partes from Jobcentre Plus and the 'General' hearing, even when permission has not group who reached the service via "The Relocation Campaign yet been given. other routes, such as calling the service welcomes the Court of Appeal's direct. acceptance that the guidance

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* Parents were positive about how helpful they found Dr Jane Martin, Ombudsman and Acting Chair of the their contact with the Child Maintenance Options service Commission for Local Administration, said: overall: 67% reported that it was either very helpful or quite helpful. "We anticipate that the pressures on public services * More than half of parents (56%) had a maintenance in the current financial climate will lead to additional arrangement eight or nine months after contact with Child demand for our service." Maintenance Options. Some of these will already have had arrangements in place before contacting the service. Around The total number of complaints where redress was obtained a quarter of parents made an arrangement following their or recommended for the complainant was 2,474 – 27.1 per contact with the Child Maintenance Options service (24%), cent of all complaints determined (excluding the complaints although not necessarily as a result of that contact. that were outside our jurisdiction). This is very similar to the previous year (when it was 27.7 per cent). Eight or nine months after contact with the Child Maintenance Options service: The report is published at the same time as the Ombudsmen's Annual Review Letters on every local * The General group were more likely to have an authority in England. The annual review letters provide a arrangement in place (72%) than the Jobcentre Plus group summary of the complaints that the LGO received about (51%). each council. All reviews will be on the LGO website in the * Parents who were more recently separated, and where Councils' performance section. there was regular contact between the non-resident parent and the child, and between ex-partners, were more likely to have a maintenance arrangement in place. Justice Committee urges family courts to aid * Family-based arrangements were the most common litigants in person with 56% of parents with arrangements reporting this type of arrangement, whereas 41% of parents reported having an The House of Commons Justice Committee has published arrangement made through the Child Support Agency its report on the operation of the family courts. It warns that (CSA). the family courts will need to be more prepared to cope with * 44% of parents did not have a maintenance arrangement. litigants representing themselves following Government The most commonly-given reasons for not having an reforms to legal aid. arrangement were the ex-partner being unwilling (29%) or unable (34%) to pay for maintenance, and not knowing The Chair of the Justice Select Committee, the Rt Hon Sir where the ex-partner was living (29%). Alan Beith MP said: The research sought to establish whether the parent had an "Many family disputes could be better dealt with by arrangement in place around nine months after their contact mediation than in a court. However, there will still with the Child Maintenance Options service. The research be cases which go to court and there will be estimated that 7% of parents referred to Child Maintenance significantly more litigants in person following Options from Jobcentre Plus had a maintenance changes to legal aid. Courts are going to have to arrangement in place, following their contact with Child make adjustments to cope with more people Maintenance Options that they otherwise would not have representing themselves in what are often had. The Child Maintenance Options service is most emotionally charged cases." effective for those parents who have the most in-depth and personalised contact with the service. The Committee is also calling on the Government to scrap the provisions in the Children, Schools and Families Act 2010 to allow media access to family courts following Complaints to the Local Government universal condemnation of the plans. The report Ombudsmen concerning Children’s Services recommends that ministers reformulate proposals to on the rise increase transparency in family courts putting the views of children centre stage. Complaints to the Local Government Ombudsmen, including those relating to children's services and Sir Alan Beith added: education, increased over the last year and the upward trend is expected to continue, reveals their Annual Report "Greater transparency in the administration of 2010/11 – Delivering public value. The report shows a 21 family justice is much needed, but it has to be per cent increase in complaints and enquiries dealt with at balanced against the equally important requirement the initial point of contact, raising the number received to of protecting the interests of children. Ministers must 21,840. This resulted in 7.5 per cent more complaints being go back to the drawing board when it comes to forwarded to the Ombudsmen's investigation teams, a total granting media access to family courts and properly of 11,249 complaints in 2010/11. consider the views of children who may be affected."

Education and children's services now forms the largest Maggie Atkinson, Children's Commissioner for England, category of complaint considered by the investigation has welcomed the Committee's findings in respect of access teams, increasing by 15 per cent from last year. Adult social to the courts by the media: care complaints concerning councils have increased by nearly 50 per cent from 667 in 2009/10 to 974 in 2010/11. "The Justice Committee is right, and given the wider backdrop of the national focus on journalism and the invasion of privacy, the Government should

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reconsider its proposals to grant media wider 'The commitment to access to justice and social reporting rights on family court cases. The justice runs as strongly in those who join the large Committee has taken account of children and young corporate law firms and eventually come to lead people's grave concerns about their privacy in these them, as in those lawyers who dedicate their circumstances, which was bought to their attention professional lives to advising the poorest and most in our research on media access to family courts." vulnerable members of society.

In its report, the committee rejects the Family Justice Panel's 'We will continue to reach out to all sections of our Interim Report recommendation that a statement be diverse profession and support the development of introduced into legislation to "reinforce" the importance of solicitors' practices in whatever form they select in a child having a meaningful relationship with both parents. England and Wales and internationally.' The MPs believe it ought to be obvious to the courts, and to parents, that a child deserves a meaningful relationship with both parents but that inclusion of a statement in the CAFCASS’ duty to allocate a guardian does law could create confusion and the mistaken impression the not confer upon children an enforceable law had changed. right The committee heard evidence from Australia that family law reforms there had obscured the overriding importance The High Court in R (R, E, J and K, minors by their litigation of the best interests of the child. friend the Official Solicitor) v CAFCASS [2011] EWHC 1774 (Admin) has dismissed a claim for judicial review and The committee also calls on judges to reduce the costs and found that Cafcass' actions in the wake of the recent increase delays in case management associated with expert reports. in care cases were lawful. Judges should be encouraged to, where possible, insist on joint reports and require clear explanations of why The court dismissed the claim that Cafcass had not allocated additional assessments are needed, ensuring the parties' four care cases quickly enough in 2009-10, citing the main solicitors work together to reduce the number of questions issue as resources. Instead it found that the duties imposed for the expert. on Cafcass under sections 12(1))(c) and 12(2) of the of the Criminal Justice and Court Service Act 2000 are,general Government plans to fold Cafcass into the proposed new duties and do not confer enforceable rights on individual Family Justice Service do not go far enough, according to the children. report. The committee calls for this to be the first step in a series of reforms designed to transform the body into a less The judgment by Lord Justice Munby and Mrs Justice process-driven, more child focused and integral part of Thirwall makes clear that the legislation set down by family justice. Parliament places a general, 'target' duty on Cafcass to provide guardians as soon as reasonably practicable, for all children whose cases are before the family courts (similar to New Law Society President commits to the target duty applicable to local authorities in relation to the provision of services to 'children in need'under section preserving access to justice in face of legal 17 Children Act 1989). The judges agreed with the by Mr aid cuts Justice Charles in R v CAFCASS [2003] EWHC 235 (Admin), [2003] 1 FLR 953 that Cafcass should provide a children's John Wotton, a consultant and former partner at the City guardian as soon as reasonably practicable, but this had to firm Allen & Overy, has been appointed President of the take into consideration Cafcass'staffing and budgetary Law Society. Mr Wotton comes to the role as the profession resources and other demands. In his judgment Munby LJ faces fresh challenges resulting from the Legal Services Act concluded: "The driver in all four cases was Cafcass' lack of and the government's proposed cuts to legal aid. resources. It's decisions were entirely rational."

The President said: The decision follows June 2011's care application figures which, at 843, are the highest ever June figures, following 'Our profession stands on the cusp of change. There is the highest ever May figures. The judgment found that, in greater competition in the legal market than ever before and trying to allocate cases as quickly as possible, Cafcass had significant new entry can be anticipated over the coming met its general 'target' duty to safeguard and promote the years, under the Alternative Business Structure regime. welfare of the children referred to it each year. The court also dismissed claims that Cafcass had breached Articles 6 'A new style of regulation will begin to operate in and 8 of the Human Rights Convention. October, which will place a greater onus of self- assessment on practitioners and firms. Changes to Anthony Douglas, Chief Executive, said: legal aid and the civil costs regime will also have a major impact on the business models of many firms. "We are pleased with this crucial judgment, which endorses the way in which we have sought, in the 'Under my leadership the Law Society will remain face of unprecedented demand, to provide a service committed to preserving access to justice in the face as quickly as possible to every single child referred of the government's proposed reductions in the to us, and to prioritise work and cases, as all scope of legal aid. demand-led frontline organisations have to do. We are now allocating care cases to Children's Guardians on average four days after receipt from

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the courts, which is a massive improvement in our service to children. Our unallocated care cases now Martin Narey responds to critics in Community Care stand at just two compared to the 12,466 children?s interview cases allocated to Children's Guardians. A further Meanwhile, in an interview with Community Care, Martin 281 care cases are being handled on a duty basis, and Narey has answered the criticisms of those who perceived we working to reduce this number further. in his recent report a "too aggressively pro-adoption stance" and criticism of social workers. "Longer term solutions are a matter for the Government, following the Family Justice Review's BAAF response to Martin Narey's report in The Times report in the autumn. However, with local The British Association for Adoption and Fostering has authorities identifying more children at risk of responded to Martin Narey's recent report, published in The significant harm, for which we applaud them, and Times. with cases lasting longer in the courts, the pressures on all of us look likely to remain high for the The Association says: foreseeable future. This means that we will all need to continue to take steps to ensure that we use our "The Narey Report on Adoption, published in The resources as effectively and efficiently as possible, to Times, is complex and detailed and makes 20 ensure that every child whose case is before the significant recommendations. The report needs family courts receives the best possible service." careful reading, but taken as a whole it is to be warmly welcomed for stimulating further discussion and debate about a crucial set of issues for some of Government sets out Adoption Adviser's the most vulnerable children in society. Remit • We particularly welcome the following aspects of the report: the recognition of the positive advantages The Government has published the appointment letter for of adoption for children who cannot be cared for by the new Ministerial Adviser on Adoption. Martin Narey their birth parents or wider birth family was appointed to the post on 12 July 2011. • the recognition that the system as a whole, including the courts, often works against its primary Comments of Children's Minister objective of placing children with minimal delay and Welcoming Martin Narey's appointment, Children's ensuring that all children that have adoption as their Minister, Tim Loughton, said: plan are placed for adoption • the recognition that there is a much larger number "I'm really excited Martin has agreed to take on this of children in need of a permanent placement than role. His recent report for The Times was a timely those who are currently adopted - for some of these reminder of just how adoption can transform the children, Special Guardianship or permanent foster lives of children in care. Martin has huge care may be the more appropriate placement • that understanding and passion for adoption and we the extended family and friends should always be have been working closely for some time to get a considered first when making placement decisions better deal for children in care. While there are some • that children who enter the care system generally points we differ on, I share the vision set out in do well and the image that it is a failure is unhelpful Martin's report. and incorrect • that the making of an adoption order is the "Currently, too few children in care who are suitable beginning and not the end of the process; a child's for adoption are being given the chance to benefit needs do not change just because they are adopted - from a loving and stable home. Over the past year I if they need support while in care they will continue have been working to raise the profile of adoption, to need support when adopted reduce delays in the system and tackle persistently • highlighting variation between local authorities in held myths that deter adoptive parents. New their use of adoption; we need to be much clearer guidance, issued earlier this year, makes very clear about why these variations persist that it is unacceptable for children to be left in the • that it takes considerable expertise, skill and care system when there are potentially suitable support to work effectively as a social worker and adoptive families waiting to adopt. that the profession must be respected for the contribution it makes to the general welfare of "But we need to do more. Martin is ideally placed to society and specifically to those children and families act as a strong advocate for adoption. He will be who receive direct help from social workers. visiting local authorities across the country to shine a light on good practice and question poor decision- "We look forward to continuing to work with Martin making which may be denying children the Narey in his role as the Ministerial Advisor for opportunity of adoption. Adoption and with all those who are committed to making adoption and other forms of family "I'm delighted Martin's appointment has been placement work for children." welcomed by many in the sector. I know some professionals have expressed doubts about the BASW lobbies Children's Minister and Martin Narey appointment, but I am convinced that we not only The British Association of Social Workers has followed up need to change guidance and practice, but also the its criticism of attacks on social work adoption practice by mindset of some professionals who haven't treated directly lobbying both the children's minister in England adoption with the priority it deserves."

www.familylawweek.co.uk Family Law Week August 2011 - 14 and the government's newly appointed adoption tsar skilled professionals and local leaders to bring about long- Martin Narey. term reform.

Mr Narey's report for The Times suggested social workers The Children's Minister, Tim Loughton, has outlined the often put the interests of families before child protection changes in a letter to all schools, Directors of Children's concerns. The report stated: Services and early years' providers. He has also written a joint letter with Anne Milton, Minister for Public Health, to "Social workers sometimes forget that they are the all local health services, and with Lynne Featherstone, champion of what is best for the child, even though Minister for Equalities and Criminal Information, to police that may not be in the parents' interests. Some social forces. Ministers see these professionals as central to leading workers seem unable to get this balance right and the reforms. some may not have the competences." The Government's stated ambition is for a child protection BASW chief executive, Hilton Dawson, responded by system that truly values and acts on the feedback of urging the former head of Barnardo's to recognise the children, young people and their families. Ministers agree increasing difficulties social workers experience in being with Professor Munro that the current system is overly able to practice effectively. focused on complying with procedures and targets as a measure of success. The new approach is based on Questioning Mr Narey directly in a question and answer developing professional expertise and providing a range of session hosted by The Times in London Mr Dawson said help and services to children and families that meet all their Narey's report, and the government's immediate support needs. for its recommendations, failed to take account of "the importance of other equally important aspects of the care Children's Minister, Tim Loughton, said: system". He told the event: "Today's response is the first stage of a journey "This hardly seems to be the comprehensive which will fundamentally change the child approach that children in care need." protection system – we're not just tinkering at the edges and fixing short term problems. We are freeing Mr Dawson raised similar concerns in a letter to Children's hardworking social workers and other professionals Minister, Tim Loughton. Emphasising his support for from structures, procedures and rulebooks so they efforts to improve the adoption system, Mr Dawson can do their best for vulnerable children and their nonetheless criticised the move to appoint Mr Narey families. without an open recruitment process. "This is a new mindset and a new relationship The letter stated: between central Government and local services. I am determined that we build on the excellent work of "I do not question your own and indeed your Professor Munro and I trust the workforce to deliver government's desire to improve the lives of some of the reforms without working to prescription. the most needy children in our society but your actions over adoption raise concerns about whether "We have worked openly and collaboratively with the paramount attention to the best interests of professionals and children's leaders to create reforms children required by the Children Act 1989 has that are sustainable in the long term. The become somewhat skewed. Government is not in the business of telling local services how to implement the reforms - as has "I have made the point to you now on a number of happened in the past - because this has been shown occasions that BASW is keen to work with you to by Professor Munro to result in unintended address the most serious issues which face you. We consequences. would do this well. Unfortunately, our experience under this government, as with the previous one, is "The changes will take time to fully implement. We of 13,600 social workers being sidelined and ignored. have outlined some key milestones so that we keep You are not serving children well if you do not listen up momentum and ensure that the process is to and engage with their social workers." advanced by next year. I am confident that working together we will give more of our children a safe and happy childhood." Government responds to the Munro Review of Child Protection Professor Munro will continue to advise the Government and will undertake an interim assessment of progress next year. The Government has published its response to Professor Eileen Munro's recommendations to reform the child Professor Eileen Munro, Professor of Social Policy at the protection system, set out earlier this year. London School of Economics, said: The response outlines the Government's intention, working "This is the start of a reform process to move the with professionals, to build a system focused on the needs, focus of help and protection firmly onto children and views and experiences of vulnerable children. The young people and away from compliance with Government says that it will reduce central regulation and excessive bureaucratic demands. It is time to give prescription and place greater trust and responsibility in professionals more freedom and responsibility for

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improving their skills in helping children and young Corinne May-Chahal, interim chair of The College of Social people. The presence and influence of professionals Work, said: working with the Government is crucial in delivering the reforms in the longer term." "The Munro Review concentrated on the importance of focussing on the experience of children as they An Implementation Working Group, drawing on expertise come into contact with the child protection system. from local authority children's services, social workers, Social workers have wanted to do this for many education, police and the health service, advised the years but unnecessary bureaucracy, unhelpful Government on its response to Professor Munro's report. timescales and poor ICT systems have made that difficult." The response includes the following actions by the Government: The review proposes developing a learning culture in child protection, rather than a blame culture, valuing the * A radical reduction in the amount of central regulation knowledge and capabilities of social workers and of their and locally designed rules and procedures. health and education partners. The government's response * Slimmed down statutory guidance in the interim by demonstrates a new understanding of the realities of child December 2011 including removing timescales for protection and the need for improvement to be led by social assessments and removing the distinction between initial workers and those that employ them. and core assessment. * A Chief Social Worker to provide a permanent The College of Social Work welcomes this and knows that professional presence for social work in Government, to change of this magnitude takes time. We are ready to cover children and adults, in place by the end of 2012. support social workers and their employers to meet the * The Department for Education to establish a joint challenges involved in taking the reforms forward. programme of work with the Department of Health by September 2011 to make sure children's safeguarding is a Matt Dunkley, Director of Children's Services in East central consideration of the health reforms. Sussex, said: * Undertake further work with the sector to consider the evidence and opportunities for using systems review "My personal reflection is to strongly welcome the methodology for Serious Case Reviews (SCRs) to help all collaborative and transparent way in which the local services properly learn the lessons from SCRs. Minister has worked with the sector to formulate the Government's response to Professor Munro's Actions for local services to implement include: Review. There will be significant challenges in the transition to the locally determined and * Local authorities to appoint a practising senior social professionally-led approach to child protection it worker as a Principal Child and Family Social Worker. promises, but with the same collaboration, trust and * Local services to increase the range and number of transparency, I believe we have a good chance of preventative services and to provide families with an 'early making it a reality." help offer'. * Local authorities to assess and redesign child and family social services, based on feedback from children and Lords meeting raises concerns about human families. rights implications of sharia law The Government is clear that with greater freedoms come Lord Carlile QC has expressed concern over the lack of greater accountability. Therefore there are several actions in awareness of lawyers and judges of the major human rights the plan to improve inspection. These include: implications of sharia law. He was speaking at a presentation to peers about the Arbitration and Mediation * All local services – health, education, police, probation Services (Equality) Bill being tabled by Baroness Cox and and the justice system – to be inspected on how well they launched last month jointly with the National Secular protect children. Society. * The experiences of children and families to be at the heart of Ofsted's inspection system, looking at how effective Lord Carlile said a major obstacle to progress was the the help has been rather than whether certain processes growing enthusiasm for alternative dispute resolution, have been met. partly driven by the massive cuts in legal aid. He saw this leading to a loss of rights and that this was a major concern Ministers have agreed to extend ongoing trials to give social in the area of family law, particularly in cases of violence. workers greater autonomy so they can better exercise their professional judgment. Current trials in Westminster, He also shared concerns about the potential encroachment Knowsley, Cumbria and Hackney have seen social workers of sharia courts into areas under this jurisdiction of the completing assessments within timescales that they think criminal and family law courts. would meet children's needs better.

The current trials will now run to December 2011, and be extended to five Community Budget areas - Hull, Kensington and Chelsea, Hammersmith and Fulham, Wandsworth and Swindon. Evidence will be used to inform changes to the statutory guidance on assessment.

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Government to consider ‘Clare’s Law’ Advocacy blueprint needed to protect vulnerable children's right to be heard, says Hazel Blears, the former Home Office minister, is leading a Children's Commissioner campaign for a change in the law which would enable the police to warn women if a new partner had a history of Dr Maggie Atkinson, the Children's Commissioner for domestic violence. England, is championing the development of a blueprint for advocacy services to help vulnerable children to have ready Clare Wood was murdered in 2009. She met George access to professionals and services that can support them Appleton, her killer, through Facebook but did not know in having a real say in decisions affecting their lives, under that he had a record of domestic violence against previous the United Nation's Convention on the Rights of the partners. Children. Ms Blears said: The Office of the Children's Commissioner has published 'Where is my advocate?', the first national scoping study, ''Women in Clare's situation are often unaware of undertaken with Voice and supported by the National their partner's previous relationships and this can Children's Advocacy Consortium. mean they start a relationship with someone with no idea if they have a violent past. The work was carried out to establish an accurate picture of the advocacy provision available in England. A literature ''Clare's tragic death shows how vulnerable women review was undertaken together with analysis of the aren't always protected under the current law, and information contained in relevant reports, publicity until women are given the right to know if their information and records available from local authorities and partner has a history of serial domestic abuse, they advocacy providers. can't be sure of the risk that they face. The findings suggests: ''By changing the law we can empower women so that they can take informed action about their * there is a postcode lottery system for children attempting relationship and give them the chance to protect to access advocacy, and themselves and prevent domestic abuse from * no national strategy exists to ensure the entitlements happening before it begins.'' children have are consistently met across England.

Maggie Atkinson, Children's Commissioner, said: Reunite sees a large increase in the use of its prevention service "The advocacy world is complex and difficult to understand for the children and young people who The advice line statistics of reunite, the charity specialising need this support – for those in the care of local in international child abduction advice, for the first half of authorities, for children in need in the community, this year show a 36% increase in the number of enquiries young people in the youth justice estate – and for relating to prevention measures. adults who want help in referring a child to an advocacy service. Sharon Cooke, Advice Line Manager, said: "Advocacy is essential for many vulnerable children "Over the last few months we have focused on and it makes a vital contribution to safeguarding and raising awareness of parental child abduction and promoting their welfare and rights. Children and prevention of abduction. Our outreach work has young people have often told us how helpful been crucial in reaching parents in the regions and independent advocacy services are to them. We need ensuring they are supported and informed about the to ensure support is available to all those who need steps they can take to reduce the risk of abduction. it. We will be further developing our outreach work programme over the coming months." "We will provide ongoing advice and guidance to the NCAC as they develop the blueprint and to the Alison Shalaby, Acting Director, added: Government and other relevant bodies. This work is part of fulfilling our duty to ensure that children's "Parental child abduction causes real harm to rights are better protected, their views and opinions children and so it is encouraging to see an increasing are being heard and taken seriously and that they number of parents contacting us for information to have the right support to make this happen." help safeguard their children."

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Cafcass 2010-11 annual report and the close of consultation. If the Commission and accounts published Government agree at that point that further work is appropriate, it will aim to produce a final report, with draft bill, within a further 18 months. If, at the review, either Cafcass has published its annual report and accounts for party decides that the project should not continue, the 2010-11. Commission will produce a narrative report of its conclusions. The report highlights that the Service worked with 146,999 children. It received 11,986 new public law cases, 9,147 of Commissioners considered a review of ancillary relief on which were care cases (a 3.3% increase on 2009-10's divorce, but reached the same decision as they had done unprecedented figures). when formulating the Tenth Programme. A reform project in this area would be a substantial undertaking and they do In every month in 2010-11, apart from June and December, not consider the project suitable for the Law Commission the Service received the highest ever number of care without strong Government support. applications for that individual month. March 2011 was the higher figure ever recorded with 887 applications.

By the end of March 2011 there were three unallocated care FLBA and Bar Council call a national cases compared to 474 in March 2010 and reliance on duty meeting on the Legal Aid Bill allocations had fallen by 77% from 991 in March 2010 to 223 at the end of the year. The FLBA and the Bar Council have called a national meeting on "The Legal Aid Bill - What is the future for By March 2011, the average period between receipt of the Family Justice". case by Cafcass and first full allocation to a children's guardian was four working days. The meeting will take place on Saturday 17th September 2011 at the Royal Society of Medicine, 1 Wimpole Street, Private law applications fell by 1.6% from 44,471 in 2009-10 London W1G OAE commencing at 10.00 a.m. Refreshments to 43,759 this year. will be served from 09.15 a.m.

The timeliness of filing section 7 reports to the court Booking is essential and your place may be reserved by improved – with 98.9% filed on time with courts in March emailing Carol Harris at [email protected]. 2011.

Parents' attendance at Parenting Information Programmes Government decides against legalising increased to 13,178 compared to fewer than 1,000 last year. multiple Islamic marriages

The Daily Telegraph reports that ministers have ruled out Law Commission to review enforcement of legalising polygamy after a leaked Whitehall paper family finance orders suggested multiple Islamic marriages could be officially recorded by the state. The Law Commission has published its 11th Programme of Law Reform. Included within the Programme is a review of the enforcement of family finance orders. Berezovskys agree Britain's biggest ever divorce settlement The project will consider the various means by which court orders for financial provision on divorce or the dissolution Galina Besharova has agreed a settlement of her ancillary of a civil partnership and orders concerning financial relief claim against her former husband, Boris Berezovsky, arrangements for children are enforced. It will not touch reported to be between £165m and £220m. upon the basis for claims, but will consider the legal tools available to force a party to comply with the financial orders Richard Todd QC, representing Miss Besharova, told Mrs made under the Matrimonial Causes Act 1973, the Civil Justice Eleanor King in the High Court that the couple "had Partnership Act 2004 and the Children Act 1989. worked very hard to reach an amicable settlement" of their dispute. Mr Berezovsky's fortune has been estimated at The current law has been described as "hopelessly complex £550m. and procedurally tortuous".

The aim of the project would be to offer a clear set of rules and the opportunity to access the full range of enforcement options in the same court and without the need for multiple hearings.

The Commission will commence this project on completion of its work on Marital Property Agreements. It aims to publish a consultation paper 12 months after commencement. It will review, in discussion with the Ministry of Justice, how to take the project forward in the light of consultation responses around three months after

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Children need a louder voice in the family children in care. Through inspection, Ofsted intends that the justice system, says Children’s changes will improve the services children receive and how Commissioner these impact on their lives. It is proposed that inspection will look at all stages of a The Office of the Children's Commissioner (OCC) has today child's experience from early intervention right through to submitted its response to the Family Justice Review when a child is referred to the children's social care services drawing on its consultation, Do more than listen. Act. This and on to their exit from the child protection system. Direct consultation with 35 children and young people between observation of services in action, including interactions with the ages of three and 17 was undertaken on behalf of the children and families, will be a key part of the new system. Family Justice Council. Inspection will also consider whether the quality of early help could have prevented the child from entering the child The children who took part in the OCC consultation want protection system in the first place and the impact of the the following improvements to take place: failure to provide such help might have had on the child.

* Adults should understand all the pressures children face The new inspection arrangements will come into effect from at every stage of the family justice process; May 2012. Ofsted seeks the widest possible range of views * Information should be in child-friendly language and from those who have an interest in, or expertise relating to, formats; and services for vulnerable children and young people in order * Every child and young person should have their own to ensure that the inspection arrangements take proper plan detailing how they would like to be supported and account of the needs and circumstances of all interested have their voice heard. parties.

Sue Berelowitz, the Deputy Children's Commissioner, said: The closing date for the consultation is 30 September 2011.

"This report captures the experiences shared by many children who live through family breakdown £1 billion child maintenance arranged or as a result of separation, divorce or having to come into care because of abuse or neglect. collected by the CSA in the last year

"The children and young people told us their stories The Child Support Agency collected or arranged a total of because they want real improvements in the family £1,159.6m in the 12 months to the end of June 2011. That justice system. We feel a strong sense of figure includes £123m in recovered arrears as the Agency responsibility to them to ensure that they are indeed continues to its enforcement powers. heard and the changes they request are made. The courts imposed suspended prison sentences on more "We thank the children and young people who than 1,000 parents who refused to pay child maintenance courageously shared their deeply personal during 2010-11. A further 165 received suspended driving experiences with us." bans.

District Judge Nicholas Crichton, who chairs the Family More than £2m has been forcibly deducted from the bank Justice Council's Voice of the Child sub-group, in the accounts of indebted parents under powers commenced in foreword of the report said: 2009. 950 parents have been told they are at risk of losing their homes if they do not pay. "The Family Justice Council asked the Office of the Children's Commissioner to undertake this 868,700 children are now benefiting from CSA payments. consultation with children and young people so that The Agency says that this is a record. their voices could be heard by the Family Justice Review team as they consider proposed Work and Pensions Minister Maria Miller said: improvements to the family justice system. "Most separated parents want to support their "Some very young children were involved in this children without interference from the state. But work and the report demonstrates that their there is still an irresponsible hardcore trying to avoid experiences can be gained and can contribute to their legal duty. improvements in the way professionals and courts hear the voices of all children and young people." "Our reforms will provide greater support to help more parents make their own collaborative, family- based arrangements which will in turn free-up the Ofsted proposes ‘no notice’ inspections of state service to chase those who do not meet their children’s services financial responsibility to their children."

Ofsted has launched a consultation on changes to the inspection of local authority children's services. Under the proposed arrangements inspections of local authorities' children's services will be carried out without prior notice. The proposals focus on the child's experience as a key element in the inspection of child protection and for

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Number of adoptions declined in 2010 Adoptions by marital status of biological parents Of the children adopted in 2010, 80 per cent were born Latest figures released by the Office for National Statistics in outside marriage compared with 69 per cent in 2000. The a Statistical Bulletin reveal that the number of adoptions in proportion of adopted children born outside marriage has England and Wales in 2010 was 4,472. This was lower than increased steadily over the last decade and is much higher in 2009 (a 4.1 per cent decrease) but compared with longer- than the proportion of live births outside marriage term trends represents a period of relative stability. The suggesting that children born outside marriage are more largest drop in adoptions over the last decade occurred likely to be adopted than those born within marriage. between 2005 and 2006. Special guardianship orders were introduced on 30 December 2005 when the Adoption and The Adopted Children Register does not hold any Children Act 2002 was fully implemented, and this may information on the marital status of the adopting parents, so have had an impact. it is not possible to measure the impact of the implementation of the Adoption and Children Act 2002 on Adoptions by age 30 December 2005 which allowed civil partners, same-sex The proportion of children adopted aged one to four has couples and unmarried couples to adopt for the first time. steadily increased over the past decade. Fifty-eight per cent of children adopted in 2010 were aged one to four compared with 41 per cent in 2000. Families Need Fathers’ telephone helpline logs a record number of calls in 2010/11 In 2010, the proportion of children adopted who were aged five to nine was 26 per cent, an increase of 2 percentage The Families Need Fathers evening telephone helpline points since 2009. However, the number and proportion of answered 4,125 calls in the year from June 2010 to May 2011. children adopted aged five to nine has declined significantly The May total was the highest ever, with 627 calls being over the last decade, from 1,596 children (31 per cent) in logged. 2000 to 1,141 children (26 per cent) in 2010. The proportion of children adopted who were aged 10 to 14 remained at 10 Analysis of the call data suggests that increasingly the calls per cent in 2010, although this has decreased from 18 per relate to breakdowns occurring earlier in relationships, cent in 2000. often after 2 or 3 years. The children involved are therefore typically much younger, sometimes only months or a year or two old.

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feelings of the relocating parent and ignores or relegates the ANALYSIS harm done to children by a permanent breach of the relationship which children have with the left behind Leave to Remove and the Payne Discipline – parent" [6] (albeit in W (Children) he accepted the criticism Breaking the Impasse of Lord Justice Wilson in Re H (A Child) [2010] [7] of the use of the word "ignores"). In this two-part article Richard Gregorian and Gavin Emerson of Gregorian Emerson Family Law Solicitors In refusing the father permission to appeal in Re D explain the difficulties they perceive with the arguments (Children) and, therefore, ultimately a possible review of relied on by critics of Payne v Payne and why the focus in the Payne discipline by the Supreme Court, it was doubtless defending these critically important proceedings should be a factor (albeit not expressed), that it would not help the on ensuring due process. The second part of the article will debate for any review to be conducted in a case where the appear next week. father would, in all likelihood, be unsuccessful in his opposition as the mother's application was considered This article was originally published before the Court of "powerful", even leaving to one side the distress argument Appeal gave judgment in K (Children) [2011] EWCA Civ 793. [8]. Further, the fact that the father conceded that if consent was given he would follow the children to Slovakia (even if This article has been revised to take account of the judgment subject to pre-conditions), the question as to whether he had in K (Children). told the children they were relocating and the fact that CAFCASS's recommended psychological assessment of the Payne v Payne: here to stay? mother was not considered until the final hearing would Over recent months, a great many column inches have have attracted judicial focus in any future retrial. In K considered the extent to which reported precedent (Children) [2011] EWCA Civ 793, Thorpe LJ believed that the represents a change in the judicial approach to leave to increased opportunities for mobility by fathers was a remove cases involving the international relocation of relevant factor in determining these cases - and, whilst not children. made explicit, a factor in favour of granting permission.

Lobbyists for a change seize upon any expression of judicial In fact, in Re D it is our opinion that the President was discontent with the present law (often referred to as the simply acknowledging the recent increased focus on the two "Payne discipline" [1]) as vindication of their prolonged calls competing, but mutually exclusive, truisms in leave to for change and chastise the judiciary and the family justice remove cases: that it is in a child's best interests to have an system for having got the law "wrong", thereby causing emotionally and psychologically functioning primary carer decades of irreversible emotional and psychological and that, typically, two parents (even if separated) are better damage to the children and families who are the subjects of than one in providing for a child's emotional, educational, these cases. practical, financial and other needs. Notably, the President did not answer the question he posed in that case "has the Judicial reminders of the applicability of the Payne time come to reconsider Payne v Payne" [9] and still less discipline are met with accusations by many that the law is offered any opinion on whether the Supreme Court would based on an antiquated belief system regarding paternal or should effect a change in law on any case which came involvement in their children's lives and adopts a before it. patriarchal view of mothers through the "distress argument" (that is, the negative emotional and psychological effect on Those critics who accuse the President of performing a the mother of being refused her emigration wishes and the "U-turn" in W (Children) [2011] fail to acknowledge that in likelihood of this affecting her future parenting). In the vast that case (which, as with all cases, was decided upon its majority of cases, the mother is the applicant parent wishing facts) the "purity" of the contest between the two mutually to emigrate with the child(ren) of the marriage/relationship exclusive truisms was somewhat contaminated because the and the father is the respondent opposing the relocation. children, aged 12 years and 8 years, were excited about This is reflected in the terminology adopted in this article relocating to Australia where the maternal immediate and though the points apply equally to whichever parent makes extended family lived, the father's relationship with the the application or defends. children was "embryonic" and in its "honeymoon period", the father had very little visiting contact prior to the In certain quarters, there is (unjustified) talk of a judicial commencement of the litigation, and in the context of conspiracy and closing of ranks. contact disputes, historically, had not made any court applications. Furthermore, he did not have parental Indeed, in W (Children) [2011] [2] Sir Nicholas Wall, the responsibility, had very significant housing issues and there President of the Family Division, felt it necessary to include were maternal allegations that the children had suffered a postscript to his judgment clarifying a simple truism he harm due to the father's alcoholism and lifestyle. stated as a Lord Justice in Re D (Children) [2010] [3], which he believed was being misinterpreted and overplayed by Consequently, the Court of Appeal's decision in W critics of the Payne discipline [4]. In Re D, the President (Children) confirms that, without intervention by the acknowledged that there may be a case where a respondent Supreme Court or Parliament, the most heavily criticised father who had been unsuccessful at first instance in aspect of the Payne discipline, ie. the maternal distress defending leave to remove, could obtain permission to argument, still remains a "very important consideration" in appeal on the basis of there being a "compelling reason why these cases but, for the reasons discussed in the second part the appeal should be heard",[5] because "there is a perfectly of this article, by no means the conclusive one [10]. respectable argument for the proposition that [Payne v Payne] places too great an emphasis on the wishes and

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[Indeed, K (Children) confirms that the Payne discipline best of cases they are flexible and responsive to the needs of remains good law so far as primary carer cases are the children over time. When a relocation application falls concerned and, indeed, because of Payne's recognition of to be determined, all of the facts need to be considered." the overriding importance of the paramountcy principle, good and binding law in all leave to remove cases. K Problems in the critics' argument (Children) simply considers the application of Payne v Payne The critics demand that in contrast to the "top-down" or and, in particular, the Payne discipline summarised in "adult-centric" approach they argue is inherent within the paragraph 85 of that judgment, in cases of shared parenting, maternal distress argument, leave to remove applications, if where some or all of the Payne discipline may, depending granted at all, should be determined by a "bottom up" or upon the extent of shared parenting, carry less weight. That "child-centric" approach, which gives more weight to the distinction had already been made, albeit expressed in "two parents are better than one" argument. They argue terms of "residence", by Dame Elizabeth Butler-Sloss' in that whilst there is an abundance of governmental and other paragraph 86 of Payne and by Hedley J in Re Y [2004] 2 FLR, research material on the educational, psychological, 330. It should also be remembered that the father in Payne economic and social impact of depriving the child of had 40% of the overnights, which is at the higher end of paternal involvement, there is no corresponding evidence to shared parenting (a term which is not legally defined). support the distress argument. Such an argument not only overstates the importance of such research evidence but In our view, the decision in K (Children) does not turn upon makes such critics' argument a hostage to fortune for the the niceties of legal terminology to effect a separation of following reasons: cases into "Payne (sole residence order-primary carer)" and "non-Payne (shared residence order-nonprimary carer)" (a) Whatever legal approach is adopted, the distress and thus into two distinct lines of judicial authority, argument would and should feature as an important particularly where the distinguishing point is exact 50-50 consideration in determining the child's best interests and, parental care as Thorpe LJ seems to imply. Rather, whilst indeed, it does in both the Washington Declaration on not made explicit, in our view, what unifies these cases is International Family Relocation and the Conclusions and the amount and quality of the shared parenting in the Resolutions of the conference organised by the Centre for context of its potential for directly and/or indirectly Family Law and Practice of the London Metropolitan undermining the maternal distress argument in any given University both of which occurred in 2010 and are case (as well, of course, as the other facts of the case viewed frequently cited in support by critics of leave to remove law. through the principle of the paramountcy of the child's best K (Children) is not authority for the proposition that the interests). Accordingly, we prefer Lady Justice Black's distress argument no longer applies either to the situation of analysis in K (Children) that Re Y (a leave to remove case a primary carer applicant or where the mother and father involving an informal shared care arrangement in which the share care of the children (even on the basis of 50-50 care), a father had nearly 43% of the overnights) does not represent state of affairs which Thorpe LJ acknowledged had become a different line of authority from Payne (a leave to remove increasingly common. Indeed, paradoxically it may be that case typically referred to as a "primary carer" case where the mothers, seeking to fully and thoroughly present their case mother has a residence order but the unsuccessful father in the aftermath of K (Children) (a case which reminds also enjoyed shared parenting with 40% of the overnights) practitioners the only legal principle in Payne is the as did Thorpe LJ. Rather, in her view Re Y is a decision paramountcy principle) are encouraged to obtain expert within the framework of which Payne is part. After all, psychological advice to ensure that their "theoretical" exactly what percentage of shared care has to exist to negate maternal distress is made "actual" in the court room. the status of primary carer, making reliance upon Payne a misdirection as to the law particularly where a "sole" (b) If, as we suggest, courts adopt the practice of requiring residence label is not inconsistent with the concept of shared expert psychological evidence in support of the distress parenting. By way of illustration, there will still be cases argument, the vacuum of psychological evidence (which the where maternal distress is considered of great relevance critics are currently filling with necessarily generalised where parenting is shared exactly equally, albeit in all research evidence) will be met and, in our view, fatally likelihood it will carry less weight in the context of the other degraded by sworn expert evidence relating to the specific factors than where the mother is a clear primary carer. maternal distress in individual cases. Even Mr Justice Mostyn, the current doyen of the critics of the distress It is worth reciting verbatim paragraph 145 of the judgment argument following his decision in Re AR (A Child: in K (Children) in which Lady Justice Black sounds a note of Relocation) [11], justifiably conceded that the effect of caution against any further parodying of the Payne maternal refusal, if not invariably, then frequently, would discipline and Re Y in light of K (Children) and the greater cause considerable trauma [12]. Further, since the court's incidence of shared residence orders and shared parenting approach to assessing the extent of maternal distress is in arrangements: significant part a process of making inferences from the surrounding circumstances, the distress argument connects "Accordingly, I would not expect to find cases bogged with the merits and presentation of the case [13] to a far down with arguments as to whether the time spent with greater extent than is accepted by the critics who simply each of the parents or other aspects of the care arrangements argue that the distress argument is a one directional (and are such as to make the case "a Payne case" or "a Re Y case", inexpert) intrusion by the legal profession into the realms of nor would I expect preliminary skirmishes over the label to psychology. be applied to the child's arrangements with a view to a parent having a shared residence order in his or her (c) The judiciary are already aware of the potentially armoury for deployment in the event of a relocation uncorroborated and self-serving nature of evidence application. The ways in which parents provide the care of adduced by mothers in support of the distress argument their children are, and should be, infinitely varied. In the and, frequently, in direct questioning of the mother, they

www.familylawweek.co.uk Family Law Week August 2011 - 22 seek to penetrate the sincerity of the inevitable expressions involvement and psychological, educational, social and of "utter devastation" at the prospect of their application for economic impairment of children. However, such research leave to remove being refused. in the context of leave to remove makes no distinction between a total absence of contact, different (d) Adducing research evidence inevitably devalues the amounts/frequency of contact, the degree to which these judicial function and diverts attention from presenting the outcomes would have occurred in any event in the parental best case on the facts before the court, in some of the ways separation without any international element, and the which are explored in the second part of this article. For emotional, psychological and socio-economic circumstances example, in W (Children) [2011], the President clearly of the families the subject of such research, which may be indicated that the devaluation of the legal system by the very different from those families involved in leave to father, which led to him failing to make any applications for remove. Such research, therefore, simply supports the contact over many years of difficulties (even though on the truism often quoted by the media, academics and the occasions he did he was fully supported by the court and the judiciary alike, that many of society's ills are caused by mother respected the contact order) on the ostensible 'Breakdown' or rather 'Breakup Britain'. grounds that he felt wholly disempowered by the family justice system, had ultimately become a self-fulfilling (h) Judges do not require any research based persuasion prophecy [14]. It is clear that this father, in common with that two parents are better than one. However, daily they many in his situation, experienced significant amounts of are faced with the emotional, financial, educational and learned helplessness as a result of the litigation process – developmental issues which affect children following something which in our experience can be overcome separation. Further, the critics' accusation that there is, through a combination of a strategic legal representation through the distress argument, a gender bias in leave to with a clear psychological understanding of the client and remove in favour of the mother has, in reality, more to do his case. with society's continued preference for maternal child- rearing than any illogicality in the proposition that the (e) Very significantly, there is an abundance of empirical primary carer should be emotionally and psychologically research which would support the child centricity of the functional. Such preference continues to reflect a society Payne discipline in that the existence of mental health where, notwithstanding, as its critics claim, gender related difficulties in the primary carer which underpins the patterns of parenting have shifted over the last 40 years, the distress argument, are predisposing factors for negative fact that exact shared parenting and therefore a diminution outcomes for the children of such parents. in the importance of the distress argument will be a rarity until flexible, technologically based work patterns become (f) The "Holy Grail" of research evidence desired by critics the norm and financially affordable for families. Indeed, it to the effect that leave to remove leads to negative outcomes should be noted by those critics who may seek to rely upon for the children involved (even if a matter of "common K (Children) as authority for undermining the importance sense") will, in all likelihood, not be forthcoming. The of the maternal primary carer label in leave to remove cases existence of such research was clearly seen as fundamental through the distress argument, that although the father in to the President in W (Children) [2011] in justifying any that case only had contact with the children for 5 nights in change in approach to relocation law [15]. Quite apart from every 14 day cycle, due to flexible working arrangements he the usual statistical and methodological criticisms directed did in fact spend 6 consecutive days with his children, at research evidence, a positive result for the critics would meaning that in addition to benefiting from a shared involve the children affected, upon attaining maturity, to residence order his parental care was not inferior to the acknowledge that they had been emotionally and mother's. psychologically impaired by their experience. Such an acknowledgement would challenge the very heart of the Problems in the critics' solution individual's belief and coping systems (essentially that they Critics attack the Payne discipline as judge-made law which are functioning human beings) and, therefore, would be conflicts with the paramountcy principle and welfare avoided as it could possibly cause massive destabilisation in checklist in Section 1 of the Children Act. However, as the the individual's life. President acknowledged in W (Children), Payne v Payne merely emphasises the importance of certain factors in Accordingly, it is no surprise that in W (Children) [16], the determining where that welfare lies. According to the President referred to an article written by Professor Marilyn President, for there to be any change in relocation law, there Freeman based on her extensive research into relocation would first have to be an answer to Professor Marilyn which concluded with the words: "So we have much work Freeman's questions (see above) and a different test to the to do. We need to know, firstly, what impact relocation has paramountcy principle set out in section 1 (1) of the on the relocated child and, in particular, about children's Children Act 1989. In the same case, Lord Justice Elias resiliency in these circumstances. From here, we will need remarked that since the overriding principle in a leave to to have the basis for international law to do what it says on remove case is whether or not relocation is in the best the tin: to work in the best interests of the children the law interests of the children – a principle which Payne v Payne seeks to serve." The Washington Declaration and the "does not and could not undermine" [17] unless there is London Conference organised by the Centre for Family Law cogent evidence that Payne v Payne is inconsistent with the and Practice, London Metropolitan University both paramountcy principle – then the matter would have to be recognised that additional research in the area of relocation left to Parliament or the Supreme Court. In K (Childen), all was "necessary to analyse trends and outcomes in relocation of the Court of Appeal judges emphasised that the only cases". legal principle to be extracted from Payne is the paramountcy principle. The much quoted paragraphs of (g) The research which is relied upon by critics of leave to Thorpe LJ (paragraphs 40 and 41) and Dame Butler-Sloss remove focuses on the links between an absence of paternal (paragraphs 85 and 86) are simply guidance as to the factors

www.familylawweek.co.uk Family Law Week August 2011 - 23 to be weighed in search of that principle. Whether that application or defence will have life changing consequences guidance is equivalent to a statutory checklist, as Thorpe LJ for both the child in question and him or herself. It is a states, will doubtless attract further debate. In K (Children), mistake to believe that provided the boxes have been ticked Lady Justice Black acknowledged that the paramountcy in relation to challenges to the applicant's plans for principle in leave to remove cases was reflected in the pre- accommodation, schooling, contact and parental Children Act 1989 era, in section 1 of that Act and in Thorpe involvement, that this represents the father's best case. LJ's judgement in Payne v Payne. As Dame Elizabeth Butler-Sloss held in Payne v Payne, "[The Lord Justice Wilson emphasised in H (A Child) [18] that the Payne considerations] are not and could not be exclusive of Court of Appeal is well aware of the domestic and the other important matters which arise in the individual international criticisms of the Payne discipline but urged case to be decided. All the relevant factors need to be caution of "endorsing a parody of the decision", stressing considered, including [the Payne considerations], so far as that the paramountcy principle was always the primary they are relevant, and weighed in the balance." The consideration. In K (Children), Moore-Bick LJ also President in W (Children) acknowledged that all relocation cautioned against interpretations of Payne v Payne which cases are "highly fact specific and very difficult" [19] and were based upon a parody of that decision. "[the Payne discipline] is not, of course, a numerical question. Each case turns on its own facts, and the weight The critics frequently refer to the Washington Declaration to be given to various factors will change from case to case." on International Family Relocation (March 2010). However, [20] The uniqueness of each case and, therefore, the infinite the paramountcy principle and the non-exclusive, non- degrees of weight to be attributed to any particular factor in presumptive guidelines to judicial discretion not listed in the Payne discipline to a given case, was also emphasised by any order of priority which, the Declaration states, should Lady Justice Black and Moore-Bick LJ in K (Children). The be taken into account in determining such cases, are already court in Payne v Payne had not intended to suggest familiar to practitioners in this area. The most significant otherwise. factor relied upon by critics in that Declaration – "the impact of grant or refusal on the child, in the context of his or her Indeed, in the authors' collectively extensive direct extended family, education and social life and on the professional and anecdotal experience, in determining leave parties" (italics added) – simply leads to the current impasse to remove applications, in the absence of special factors such of whether (in its crudest sense) two parents or a as the (sufficiently mature) wishes of the children involved psychologically functioning primary carer are in the child's or serious concerns over the applicant's parenting capacity, best interests, so far as securing his or her needs. judges are as concerned about the applicant's capacity for competent parental decision-making and resourcefulness as Of course, it is welcome that in this factor, the Declaration whether their emigration plans are flawless. Parental acknowledges the effect on fathers – equally crushing of planning is not a science and, indeed, the courts recognise leave to applications – but that simply encourages another particularly in "going home" cases, [21], that the applicant debate about whether any law based on the Declaration is parent will, to a degree, be permitted the latitude to "work too adult centric (this time in relation to the parent left things out" when they arrive back in their country of origin behind, which would be met with the obvious as they did, albeit perhaps without the responsibilities of counterargument that the impact on the child of any parenthood, before they left that country to live in the UK. paternal distress following leave to remove would be Likewise, where the reason for emigration is to further a ameliorated through the geographical distance caused by new relationship, the presence of a second mature decision the emigration ). maker is, in all likelihood, not going to result in the outcome of the case turning on a faultlessly presented emigration The difficulties of formulating any new law in this area plan. which would address the critics' dissatisfaction is also evident in the Conclusions and Resolutions of last year's Neither, in our experience, are the courts as constrained by London conference, organised by the Centre of Family Law the distress argument as perhaps the vociferousness of the and Practice, of 150 leading family law specialists, critics of the Payne discipline may indicate. Each case has psychologists, academics, researchers, mediators and the potential to be taken on its merits, provided that those support groups and government representatives from 18 merits are not clouded by the presentation of immaterial jurisdictions. Notwithstanding the immense intellectual and stereotypically bitter allegations and counter- resource and experience brought to bear on the question, allegations, which may simply encourage the judge to seek those Conclusions and Resolutions merely endorsed the refuge in the certainty of Payne and maximise the inevitably Washington Declaration, emphasised that the paramountcy unique characteristics of each case. It follows from our view principle should be the primary consideration, that there that rather than representing different lines of legal should be no presumption for or against relocation, and that authority, Payne, Re Y and K (Children) can all be explained the children's views should be canvassed – all of which are in the context of the potential dilution of the mother's already part of English leave to remove law. distress argument by the supportive function of the father's substantive shared care/equal parenting, that the quality of Every case is different such paternal support is also important. This is another It has always been a mistake to approach leave to remove reminder to fathers to avoid approaching their defence on cases, as they often are, as a contest between the distress the basis of allegations and counter-allegations. argument and the 'two parents are better than one' argument. There are certainly cases where the mother's distress The creeping commoditisation represented by litigation argument, albeit genuine and convincing, has been checklists and evidential templates produced in certain minimised to support a refusal (an observation which, since quarters is the bare minimum required by a parent whose it is based largely on oral testimony, is very difficult to

www.familylawweek.co.uk Family Law Week August 2011 - 24 appeal). Likewise, there will be cases where a mother who 4 - paragraph 128 of the judgment of the President of the fails to express the much voiced "utter devastation" at the Family Division in W (Children) prospect of refusal is given consent where the "life plan" for 5 - under rule 52.3 (6) of the Civil Procedure Rules which emigration outweighs the effect of the status quo for the applied at the time, permission to appeal could only be child. Time and again, where respectable emigration plans given where either the court considered that the appeal have been presented by the mother and there is no question would have a real prospect of success or there was some of malice towards the father but there is the existence of other compelling reason why the appeal should be heard. questionable parental decision-making, falling very short of The corresponding provision can be found in rule [ ] FPR a formal psychiatric disorder, judges have possessed the 2010. discretion to refuse such applications. Whilst, an interesting 6 - paragraph 33 of the judgment in Re D (Children). dynamic to observe in court, it is only a manifestation of the 7 - EWCA Civ 915 paramountcy principle. As K (Children) has highlighted, 8 - paragraph 35 of Lord Justice Wall's judgment in Re D maternal distress is not the trump card perceived by the (Children) critics, unless its perceived importance (through a 9 paragraph 34 of Lord Justice Wall's judgment in Re D parodying of the Payne discipline) has the effect of (Children) distracting away from the best presentation of the father's 10 - paragraph 103 of the judgment of the President in W other points. (Children) [2011] 11 - [2010] EWHC 1346 Room for improvement 12 paragraph 4 of the judgment in Re AR (A Child: Relocation) Undoubtedly, however, there are areas where the process of 13 - paragraph 23 of Lord Justice Wilson's judgment in R (A deciding leave to remove applications can be improved. Child) [2010] EWCA Civ 1137 Three years on from those suggestions in another article 14 paragraph 107 of the judgment of the President in W published in Family Law Week: "Leave to Remove: a (Children) Lawyers (all too personal) view" 15 - paragraph 129 of the judgment 16 - paragraph 108 of the judgment of the President in W • in the absence of any specific psychiatric or psychological (Children) reason for such an assessment, the applicant's distress 17 - paragraph 160 of the judgment of Lord Justice Elias in argument is typically still not the subject of any W (Children) independent professionally qualified mental health 18 - paragraphs 21 to 23 of the judgment in H (A Child) assessment. As previously stated, such an assessment may [2010] EWCA Civ 915 harm, rather than support a father's defence; 19 - paragraph 5 of his judgment 20 - paragraph 117 of the judgment of the President in W • even where there are high levels of acrimony and historic (Children) contact obstruction, beyond the reporting of the 21 - Re F and H (Children) [2007] EWCA Civ 692 overworked and under resourced CAFCASS, and even where private funding would be available, it is not usual for there to be appointed an independent social worker to conduct a full parenting assessment. This is particularly important where such reporting may offer a more tangible understanding of the applicant's motives and parenting than an understanding of their distress argument;

• in the absence of any specific psychiatric, psychological or developmental need, beyond the CAFCASS involvement there is typically no independent representation or assessment (in the latter case for example by a child psychologist) to focus on the child's needs so far as the effect of leave to remove on them. This is perhaps unsurprising due to the current inclination towards the "top down" approach but such a development would at least acknowledge the critics' argument of "unhappy child, unhappy loving (emigrating) parent" – the reverse of the "happy mummy, happy child" label which Payne attracts.

We discuss in the second part of this article, a range of procedural and evidential matters which emphasise the importance of due process in leave to remove cases (and other areas of disputes involving children).

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Footnotes 1 - Payne v Payne [2001] EWCA Civ 166 is regarded as the seminal case. 2 - EWCA Civ 345 3 - EWCA Civ 50

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Leave to Remove – Improving Due Process provide the court with early information to determine whether expert evidence or assistance will help the court Richard Gregorian and Gavin Emerson of Gregorian generally and the court and the parties to identify and Emerson Family Law Solicitors argue that the focus in narrow the issues in the case, (ii) enable the court to obtain defending leave to remove proceedings should be on an expert opinion about a question that is not within the ensuring due process. skill and experience of the court and (iii) encourage the early identification of questions that need to be answered by an In the first part of this article, we considered the difficulties expert [1]. It is our view that the simple appointment of an arising from the arguments relied on by critics of Payne v SJE is insufficient to properly discharge such responsibilities. Payne and why, in our view, the focus in defending these critically important proceedings should be on ensuring due As Mr Anthony Hayden QC, sitting as a Deputy High Court process. In this part we explain how due process might be Judge remarked in F (Children) (DNA Evidence) [2007] improved. EWHC [2]:

Practical issues "In some cases, family lawyers have found As much frustration can be caused to parents from feeling themselves in recent years working in the vanguard that their concerns are not taken seriously as with the of changes in medical science. Identifying and perceived unfairness of leave to remove law. Whilst such formulating the correct questions to, for example frustrations are understandable in the context of their ophthalmologists, neurologists, paediatricians, can necessarily subjective beliefs about their case, how the be a considerable challenge to lawyers who are litigation is conducted is vitally important in maximising laypeople in these areas of specialism." acceptance of the eventual outcome. One solution is for the parents to be free to instruct their The following are examples where due process could be own expert advisers whether or not a court appointed improved, not only in leave to remove cases but in all expert is also appointed for the following reasons: private children law disputes. * Subject to a contrary court order, a SJE must be jointly 1. Maximising the use of court appointed experts instructed in agreed terms between the parties 5 business Paragraph 1.3 of the Revised Private Law Program at days after the relevant hearing, with any dispute between Practice Direction 12 B of the new FPR 2010 acknowledges solicitors encouraged to be determined by the court in that: response to an e-mail request, usually without a hearing [3]. The effect of that short time scale and the wish to avoid "There has been growing recognition of the impact of confrontation at such an early stage in the instruction, will domestic violence and abuse, drug and alcohol misuse and inevitably lead to the SJE being instructed with a level of mental illness, on the proper consideration of the issues in complexity acceptable and comprehensible to the legal private family law; this includes the acceptance that Court representatives with the least expertise in the area or in a orders, even those made by consent, must be scrutinised to formulaic way. Indeed, Annex 2 of the Practice Direction ensure that they are safe and take account of any risk factors." 25A ("Experts and Assessors in Family Proceedings"), suggests separate questions for inclusion in a joint letter of Such expressions of recognition may do little to assuage the instruction to a child mental health professional or anxieties of former litigants who felt frustrated that their paediatrician and for adult psychiatrists and applied psychiatric and psychological concerns of the other parent psychologists in Children Act 1989 proceedings, which, in were viewed negatively or treated with insufficient all likelihood, will be argued as having more significance importance. In the context of the distress argument, a than mere guidance by those without an understanding of mother's case history of anxiety and depression may be the relevant area of expertise. It should not be for the SJE to superficially viewed as a reason to grant consent to prevent re-formulate the instructions and questions before a re-occurrence or worsening of that condition rather than answering them as a way of compensating for the lack of the investigating the underlying reasons for those conditions, instructing solicitors' technical ability. what they reveal about the individual's coping strategies in the context of very significant future life changes and as * It is no answer to this problem that each legal predisposing factors for the child. The fact that the mother representative may unilaterally pose written questions on has received counselling and therapy may be superficially any expert report under rule 25.6 of the FPR 2010 [4] or that viewed as not making her "mad or bad" without the time for specificity is at cross-examination. Experts, like investigating whether the therapy related to abandonment any professional advisers, can be expected to defend their or adjustment disorders which may be the real driver for her original opinions. decision to relocate. * Legal representatives who approach the drafting of In a previous article in Family Law Week, we suggested that instructions with more expertise in the area, frequently face in much the same way as commercial lawyers are required accusations of increasing delay and cost or seeking to steer to advise clients in the context of a full understanding of the expert. It does seem illogical, however, that in their client's business, so should a family lawyer be aware of determining any dispute between instructing solicitors as to those psychiatric and psychological issues which affect the which questions to a SJE are relevant, the matter is subject matter of their practice. discussed and determined by individuals, all of whom lack the necessary expertise. This contrasts with the duty on Inevitably, family lawyers lack the knowledge to do so and experts themselves who are obliged to declare at the earliest are forced to elicit the assistance of single joint experts opportunity any questions in the letter of instruction which ("SJE") in order to discharge their responsibilities to (i)

www.familylawweek.co.uk Family Law Week August 2011 - 26 fall outside their expertise, and to volunteer an opinion as to psychiatrically or psychologically based. This is a particular whether another expert is required [5]. risk in leave to remove applications, where the expert reports against the background of legal principles which are * It remains too easy for a parent with an interest in closing more prescriptive and publicised than in almost any other down the other parent's concerns about their medical area of private children law. history to stonewall the process by arguing that the latter's - In challenging their opinions, the SJE will always hold legal team lack the necessary professional qualifications to the trump cards of being the only person professionally insist upon the inclusion of questions to the expert, or that qualified in the area of expertise, having formally assessed they are disproportionate to the nature, importance and the parties and in possession of their medical records (see complexity of the issues [6]. To resolve these disputes and to below). Legal representatives are therefore at a great improve the quality of court-appointed expert evidence, disadvantage in challenging the opinions of a SJE. litigants should be able to instruct their own expert adviser - any quality control sought to be introduced into the (if necessary, initially funding the cost to do so) in order that process by the expert's regulators or professional bodies, expert support is available to advise on (i) the suitability of will, in all probability not be available in time to be used in any proposed expert who may otherwise be chosen from a the court process. Indeed, it is likely that such entities will combination of the "Yellow Pages", expert directories (see postpone any investigation until after final judgment in the below) and the uninformed choice of one or both instructing misguided belief that the court will spend its precious solicitors (ii) the terms of the instructions and, in particular, resources and limited expertise in conducting the necessary which questions are within the ambit of the court-appointed investigation into the expert's conduct rather than expert's area of expertise, do not contain unnecessary or determining the core issue of the child's welfare. irrelevant detail, are proportionate and reflect the function of that expert [7] (iii) any application to court necessary to In any event, a litigant wishing to actively participate in settle those instructions (iv) the interpretation of any setting the agenda for the court appointed expert should be technical aspects of the expert's report which are not clearly conscientious in filing the required expert proposal and be understandable to a layperson (a feature of the expert prepared to explain at the hearing the relevance of the reporting in the hair strand testing case ofLondon Borough expert evidence sought be adduced to the issues in the of Richmond v B and others [2010] EWHC 2903 (Fam)) (v) proceedings, the specific questions upon which it is the content and proportionality of any written questions (vi) proposed that the expert should give an opinion and a the preparation of cross examination questions and the statement of whether or not the expert evidence can instruction of the advocate to ensure they are not at a properly be obtained by a SJE [9]. disadvantage in asking the first question let alone any follow-up questions (vii) any application to remove an 2. The obtaining of mental health assistance for a child expert for misconduct or breach of their duty to the court – during leave to remove litigation frequently heavily resisted by experts and opposition alike, In the high-stakes environment of leave to remove where typically the presumption is that the application is a proceedings, it is easy for the child's interests to be response to an unfavourable opinion rather than justifiable subordinated to the attempts of one or both parents to build concerns about the methodology used to reach such opinion. a case using expert evidence – this being the justification for the various prohibitions and restrictions relating to the use * As the child would not be assessed by the expert adviser, of experts in Parts 12 and 25 FPR and Practice Directions there would be no risk of breaching the prohibition on 12G and 25A. assessing the child without the court's permission under Rule 12.20 (1) FPR 2010. However, the tightly controlled environment for experts has the potential for creating a paradox because of the * It is suggested that the FPR 2010 do not prevent the use of understandable parental reluctance, particularly in the face such expert advisers. The FPR 2010 focus on "controlling" of opposition, to obtain genuine psychiatric, psychological the instruction of experts, who may then be called to give or therapeutic assistance for the child the subject of the evidence at a hearing on the basis of the expert reports they proceedings which may be caused by the stress of the produce per se and through the principle of court litigation on the family. confidentiality [8]. However, such restrictions must be viewed in the context that such professionals' expertise is The resistant parent may argue that: never intended to form a report to the court and their use is clearly permitted by rule 12.75 (1)(a) of the FPR 2010 which * Rule 12.20 (1) FPR 2010 prohibits a child from being allows a party or their legal representative to communicate medically or psychiatrically examined or otherwise any information relating to the proceedings to any person assessed without the court's permission. However, that where necessary to enable that party "by confidential prohibition only relates to an assessment "for the purpose of discussion to obtain support, advice or assistance in the preparation of expert evidence for use in the proceedings" – conduct of the proceedings". not for genuine medical or therapeutic reasons. The purpose of such an assessment is not to obtain evidence and * Such expert advisers are also important since: consequently any report would not require the court's - just as there are extremely competent, objective, permission under Rule 12.20 (2) FPR 2010 if, indeed, professional experts who acknowledge their evidential disclosures or other important information came to light boundaries, experts also exist who bring the "doctor's which it was in the best interest of the child to adduce to the orders" approach to their role, overstepping their mark by court. attempting to mediate between the parties, making recommendations as to the outcome, blurring the boundaries between adult and child expertise and making comments about one or both parties which are not

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report by claiming that he is the only individual in the court * Rule 12.74 (1) FPR 2010 prohibits an expert from being room who has seen the medical records. instructed "for any purpose relating to proceedings" without the court's permission. However, consulting such 4. General Practitioner opinion a mental health care professional is for the purpose of It is a feature of leave to remove applications that both seeking treatment, not case building. parents frequently adduce a multitude of formal witness statements and more informal letters from supporters of * A mental health care professional is not permitted to be their position. Frequently, because such support is no more informed of information relating to the proceedings, than would be expected, its evidential value is limited. thereby denying them a full case history because rule 12.73(1)(a)(vii) prohibits for purposes relating to the law of However, frequently letters from applicants' GPs are contempt of court information relating to the proceedings produced not only confirming case histories (probably being disclosed except (where relevant) to "an expert whose inadequate in themselves) but also making instruction by a party has been authorised by the court for recommendations based on perceived welfare concerns that the purposes of the proceedings". However, provided the the GP possesses. This was the case in W (Children) [2011] assistance is for medical or therapeutic, rather than EWCA Civ 345, where in allowing an appeal by the evidential, purposes a full case history may be given by applicant mother against refusal to relocate out of the virtue of paragraph 1.2 and 2.1 of Practice Direction 12 G jurisdiction, the President regarded a letter from the (Communication of Information). Those provisions state mother's general practitioner as highly relevant [10]. In that, subject to any contrary court direction, a party to the addition to setting out an extremely vague case history proceedings may disclose any information relating to the relating to depression and/or counselling, the general proceedings to a health care professional or a person or practitioner made a ringing endorsement for relocation body providing counselling services for children or families combined with a plea for her opinion to be taken into to enable the party or any child of the party to obtain account in permitting it [11]. healthcare or counselling. Whilst for these purposes a "health care professional" is defined as a registered medical Consistent with their status in society, it is tempting to practitioner, clinical psychologist or child psychotherapist, attribute great significance to such opinions. However, it "a person or body providing counselling services" would should be remembered that frequently the GP, who has at include any individual or institution providing psychiatric that time a continuing professional and caring relationship or psychological advice to the child or parent. with the litigant, is only reporting on what they have been told by the litigant and may have no useful insight beyond 3. Availability of medical records that the patient has had the good sense to carefully craft The difficulties in instructing and challenging experts may what they say to the GP and/or has not visited the surgery be exacerbated by the practice of denying the parties sight intoxicated or otherwise displaying behaviours alleged by of the other's medical records. The universal practice the other parent. Invariably GPs neither have the time, prefers the more palatable system of having the expert facts, nor adult centric or child centric qualifications to be obtain them directly from the respective parents' care making any such recommendations. Indeed, and providers and leaving it to the expert to determine which unsurprisingly it would seem that the GP in W (Children) medical records are relevant for their report. The use of did not recommend a permanent relocation to Australia as such a "black box" approach is consistent with an a treatment plan for depression prior to the commencement overreliance on court appointed experts to "plug the gaps" of the leave to remove proceedings in the case. in the parties' technical expertise. It denies the legal representatives the opportunity of properly articulating the 5. Mediation in cases of leave to remove concerns they wish the expert to address, and may present The effect of Practice Direction 3A FPR 2010 (Pre- an almost insurmountable obstacle where the thoroughness Application Protocol for Mediation Information and or integrity of the expert's work product is in question. Assessment) is that, except in limited circumstances, before applicants for leave to remove commence proceedings, they Requesting the expert to produce a summary of each party's are expected to attend mediation. medical record in his possession, whether relevant or not, in order to give the parties a degree of comfort, is an Mediation has always suffered a problematic relationship so unnecessary compromise. If there is any concern about far as leave to remove cases are concerned. The conditioned irrelevant, perhaps very personal, information being abused helplessness that certain advisers create for fathers through by the other party, the most appropriate compromise is to giving the usual 10% chance of success based on Payne v permit the legal representatives, alone, to review the Payne even before they have fully understood the case medical records for the purposes of preparing the before them is typically replicated by mediators whose instructions, written questions and other aspects of their purpose is to seek agreement outside the court process but client's case. based on what they perceive from to be the likely litigation outcome from an application of Payne v Payne. In the absence of having sight of the other party's medical records, the drafting of instructions and written questions It is, therefore, little wonder that the summary application can easily be accompanied by allegations that they are being of the Payne discipline in the course of mediation invariably used as an opportunity to include uncorroborated and results in the dispute being approached as a discussion disputed evidence of what one or both of the parties about international contact. believes is "wrong" with the other party or an exercise in steering the expert. After an expensive and lengthy court Respondents must also be aware of the prejudice that process where expert evidence is challenged, it cannot be mediation can cause to their defence. Any concerns raised right that the expert can seek to rebuff any challenge to his by the mediator or respondent about an ill-thought out,

www.familylawweek.co.uk Family Law Week August 2011 - 28 chaotic or otherwise defective emigration plan in the permission for the younger boy (aged 12) to relocate confidential mediation sessions, undoubtedly, will be should be revisited as he no longer constituted an "cured" by the time the applicant files their evidence. Any inseparable sibling unit with his brother. In light of these negative inferences about the parent's decision making will changed circumstances the Court of Appeal performed be offset by claims that the respondent's inclusion in the many of the tasks of a trial court including adjourning the planning process is symptomatic of the applicant's appeal hearing to facilitate a further report from CAFCASS willingness to be a cooperative parent. In such important and making provision for the parents to file updating cases, where the applicant parent's resourcefulness should witness statements. be under scrutiny, the court should be sympathetic to any respondent who does not wish to mediate their caseas a 7. Local knowledge matter of principle. Typically, a father will spend a great deal of time researching publicly available information in order to Respondents appear less able to prevent the unfair practice challenge the mother's emigration plan, itself typically a of permitting the applicant two or three attempts at summary of publicly available information which would perfecting their plan, frequently with an element of judicial not disgrace a travel agent's brochure in its levels of gushing assistance and the granting of temporary leave to remove overstatement. for the purpose of extended fact-finding trips (under the guise of holidays) near to the final hearing at which the Given the opportunity, a father would wish to put before respondent parent may have his contact with the child the court information concerning the mother's plan which significantly or totally impaired. could only really be in the direct knowledge of a person with an intimate knowledge of the location of emigration As with all family disputes, discussion and agreement but which could have a crucial impact upon the outcome of should occur so far as possible between the parents the application. Anecdotal examples include properties themselves, with formal mediation being the last resort clearly not lived in by the mother's support system, barbed prior to litigation, and only after the parties have failed to wire or metal detectors in proposed schools which are not agree between themselves. evident from the prospectus or the local chapter of Hell's Angels in the next block, the five-minute walk to school (as 6. The relationship between leave to remove and the crow flies) which actually turns into a much longer bus immigration approval ride unless crossing the equivalent of the M25 appeals. In response to the global economic meltdown, many Private investigators are expensive and frowned upon by countries, particularly those English speaking countries the courts. CAFCASS lack the manpower and resources to which are the most common leave to remove destinations, be investigating the suitability of the intended locality. [13] have reduced their immigration quotas and/or delayed A direction by the court for CAFCASS to investigate matters processing times. Frequently, without the right type of in the country of relocation as happened in H (A Child) [14], sponsorship, there can be a delay of one or two years, where the final hearing was adjourned in order to facilitate possibly longer, between the court giving permission and a CAFCASS officer's investigations in the Czech Republic, eventual departure. will be as rare as a hen's tooth [15].

It is difficult to convince a father in such cases that he is not In this day and age of global mobility, fathers fortunate involved in artificial litigation based on out of date facts and enough to have contacts in the proposed locality of reports or that the application will not simply be waived emigration who can speak from practical experience should through on the basis that without the court's permission the be free to adduce that evidence without it constituting mother would be unable to commence the visa application expert evidence – a nonsensical concept where relevant process or begin looking for employment in order for their opinions would include the economy, work prospects, emigration hopes to get off the stocks. quality-of-life, transport, housing, the immediate environment, and schools amongst others. Even if it were possible for the father to consent to the issuing of a visa to get the ball rolling, whilst objecting to the If levels of transparency and objectivity are required, then leave to remove application, as a response to this inevitable one solution is to instruct local social work or court lowering of the evidential threshold, few fathers would be reporting agencies to provide the court with this willing to do so. information.

One solution is for a review hearing to be set down closer to 8. The importance of a solution for the father the time of departure so that at the very least (and Fathers tend to spend a very significant amount of time acknowledging the emotional and financial disadvantage of challenging the mother's motives and plans but without scrutinising the entire case again) the case can be revisited devoting the same resource to setting out in their evidence by the court on the material facts as they are likely to be at what specific funded proposals they have for the child if the departure, including potentially the changed wishes of the application were to be unsuccessful and their child were to now older children. live in this country either with or without the primary carer. In doing so, not only do they run the risk of their challenges Support for such a solution can be drawn from the Court of losing currency on the basis that it may be viewed that their Appeal in S (Children) [12], an appeal against the court's only option is to attack the mother's plans but they also permission for the applicant father to relocate with his two forego the opportunity to demonstrate their own parental sons to Canada (even though he was not the primary carer). decision-making and ability to put the child's needs before Between the granting of permission and the appeal, the their own or any acrimony with the mother. eldest son, aged 16 ½, left to Canada and it fell to the Court of Appeal to decide whether, in these new circumstances,

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9. Inadequate court time Accordingly it is comforting that the President in W Typically, the length of the final hearing is set down by a (Children) took the view that the trial judge's failure to district judge many months in advance to ensure a diary make essential findings of fact from the written and oral date can be secured, and is commonly in the 1 to 3 day evidence in preference to taking the view that it did not range. Frequently, such time estimates prove to be wholly matter who is to blame for past failures was the incorrect inadequate once the case has been fully developed and approach. The President acknowledged that whilst the judicial reading in and judgment time become the subject of balance has to be struck so as to avoid a long and expensive increased focus. enquiry into past facts, because leave to remove cases are fact specific essential findings must be made [16]. Lord Once locked into a time estimate, the tendency on the part Justice Elias' conflicting view in that case that a post of the applicant and interim judges is to seek to retain the commencement- of - litigation parental peace treaty and dates, even in the face of a mushrooming of witness and court ordered contact arrangements should be the starting expert evidence. Whilst judicial time is not unlimited and point in assessing such cases [17] risks one or both parents delaying the conclusion of these proceedings to not feeling listened to and is in contrast to mental health accommodate a longer final hearing is not without its professionals who specialise in understanding the reasons problems, a combination of judicial continuity and for decision making taking detailed case histories even introducing a practice of reserving a longer period of time though a patient may appear to be normal when assessed. with any portion of it being vacated at the earliest opportunity seems far better than seeking a longer hearing 12. The importance of establishing a specific contact at the last minute when a delayed hearing may result in regime prior to departure greater cost and disappointment or for the hearing to be It is not intended to consider the various international adjourned partway through. conventions and principles of judicial comity that would result in an English court order granting leave to remove 10. Witness support and specifying direct and indirect contact being recognised One aspect of case preparation family lawyers need to and enforced in the country of emigration. As any banker understand is the psychological make- up of their own will tell you, the best form of security is over the asset in the client in order to ensure the client can be the best possible jurisdiction in which it is located. Accordingly, an advocate for their children at the final hearing. I am not unsuccessful parent would be well advised to use as a referring to witness coaching but the fact that very starting point Lord Justice Wilson's analysis of English frequently even the most child-centric and professionally contact orders attached to leave to remove orders in R (A competent clients have difficulty in expressing themselves Child) [18]. In his judgment, he said that such contact in the witness box in what may be their most important orders are contrary to principle, as they are orders taking speaking engagement. Whilst, unbeknown to the client, effect until further orders of the English court. That is judges, doubtless, make allowances for the idiosyncrasies of inconsistent with the fact that if the English Court grants parents under pressure and for parents who, through their leave to remove, at least for practical reasons, it surrenders work or profession, trained their minds to interpret and its control over the child in question to the foreign court express information in a particular way, the impact on (Australian in this case). The father in that case would, parents' evidence and behaviour of such feelings as therefore, have to turn to the Australian court as any further depression, anxiety, helplessness and the inability to deal order of the English court would not have effect in with hostility may not be so clear to a judge. It is a normal Australia. human reaction to seek to avoid confrontation but when such coping mechanisms result in a parent stepping back Practically speaking, therefore any father involved in from their opposition or giving the impression of not caring defending a leave to remove should research, in case it is through an inability to communicate effectively in an required, the ability to obtain a local order or agreement environment of high conflict and stress, a lawyer must be mirroring and incorporating the English contact order into aware of the potential burden of responsibility that parent the local laws of the country of emigration. In particular, he may carry around with them particularly if unsuccessful in should research the ability to do so without the child being the litigation. present in that jurisdiction so that a contact regime can be put into place prior to the child's arrival in the country of 11. The tendency to minimise the parties' previous emigration. This is particularly important since it is a matter conduct of principle the English court is not bound to delay There is a tendency in what are typically long and complex emigration until a mirror order is in place. cases, passionately fought, for judges to seek to reduce cost and delay by minimising the importance of the parties' ______historic conduct on the basis that the parties have separated Footnotes and that whatever happened in the past were simply 1 Practice Direction 25A, paragraph 1.3 (a) to (d) of FPR 2010. symptoms of a failing relationship. 2 At paragraph 30 of the judgment of Mr Anthony Hayden QC, sitting as a Deputy High Court Judge in F (Children) This can be particularly frustrating for a litigant who (DNA Evidence) [2007] EWHC. believes that what happened during the relationship is key 3 rule 25.8 of FPR 2010 and paragraph 4.5 and 4.6 of Practice to understanding motivations and future conduct and who Direction 25A. already does not feel listened to by the system. That being 4 Paragraph 6.1 (b) of Practice Direction 25A. said, the context in which such historic events is raised is 5 Paragraph 3.2 (e) of the Practice Direction 25A. vital to avoid the kind of stereotypical allegations and 6 Paragraph 1.1 (2) (b) and (d) of the FPR 2010; rule 25.6 (1) counter allegations which would have judges seeking of the FPR 2010. certainty in the Payne precedent. See our previous article. 7 As required by paragraph 4.5 of Practice Direction 25A.

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8 For example see paragraph 1.7 of and the heading to paragraph 6 of Practice Direction 25A, rule 12.74 FPR, rule 12.73 (a) (vii) FPR 2010 and rule 25.2 FPR 2010). 9 Paragraph 1.11 of practice direction 25A FPR 2010 paragraph 4.3 of practice direction 25A paragraph 4.3 (c) and (f) of practice direction 25A. 10 Paragraph 29 of the judgment. 11 Paragraph 31 of the judgment. 12 [2011] EWCA Civ 454. 13 In R (A Child) [2010] EWCA Civ 1137 Lord Justice Wilson acknowledged that CAFCASS are usually in no position to assess the merits of the applicant's proposals for life abroad. 14 [2010] EWCA Civ 915. 15 Paragraph 5 of Lord Justice Wilson's judgment in H (A Child) [2010] EWCA Civ 915. 16 Paragraph 120 and 121 of the judgment of the President of the Family Division in W (Children). 17 Paragraph 160 of the judgment. 18 R (A Child) [2010] EWCA Civ 1137 at paragraph 22.

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The End of Payne? longer enjoy the shared care of their parents. In this sense it was an unremarkable case.

The decision below The case was heard by Her Honour Judge Bevington, sitting as a Deputy in retirement. She heard evidence over four days from the parents, the reporting CAFCASS officer, the maternal grandmother, the paternal aunt and the mother's general practitioner. The CAFCASS officer reported that it was a "fine and difficult balance" but ultimately recommended that the mother's application be refused. She went on to note that the mother needed to feel supported as an adult and a parent in England and that if she still wished to return to Canada in 3-4 years then a move would be likely to be in the children's best interests. Her Honour Judge Bevington granted the mother's application. She followed the guidance in Payne v Payne and found that the mother's proposals were reasonable and her application was driven by a genuine motivation and there was no intention to bring Andrea Watts, barrister, at 1 King’s Bench Walk, considers about an end to contact between the children and their the Court of Appeal’s judgment in Re K (Children) [2011] father. She considered that the effect of a refusal on the EWCA Civ 793 and its impact on pre-existing case law and, mother would be a feeling of increasing isolation and in particular, Payne v Payne depression.

The Court of Appeal handed down judgment in Re K Counsel for the father politely pointed out that the (Children) [2011] EWCA Civ 793 on 7 July 2011. It was a judgment made no reference to the father's case and invited welcome opportunity to consider the application of Payne v the judge to deal with that. The judge responded that she Payne [2001] EWCA Civ 166 in international relocation cases had taken everything into account, including the impact of following criticism of the authority both at home and the decision on the father and the reduction in physical abroad. What followed was the most groundbreaking contact between him and the children. Counsel for the decision in an external relocation case since Poel and Payne. father asked the judge to consider the question of Any applicant with a shared care arrangement will now permission to appeal, which was refused. find it much more difficult to persuade a court to grant permission to relocate out of the jurisdiction. Critics of The Appeal Payne may be disappointed that the judgment did not go far The father appealed and an oral hearing was held on 18 May enough. The guidance remains applicable where there is no 2011 before Thorpe LJ, Moore-Bick LJ and Black LJ. The such shared care arrangement which is likely to be the vast father, represented by Deborah Eaton QC and Madeleine majority of cases. Further, Black LJ argued that Payne Reardon, submitted that the decision was flawed for the should not be put completely to one side even in shared care following reasons: cases. (i) The judge rejected the recommendations of the The facts CAFCASS officer without proper analysis or explanation; The case concerned a Canadian mother and a Polish father. (ii) The judge directed herself by reference to the guidance They met at university in Toronto in 1992. The father for applications by primary carers given by Dame Elizabeth moved to England in 1993 and the mother moved there 10 Butler-Sloss P. at paragraph 85 of Payne, rather than the years later. They were married in 2004 and went on to have guidance given for applications by a parent with a shared two children; I aged 4 years and A aged 18 months. The care arrangement by Hedley J in Re Y; and marriage sadly broke down and they separated in July 2010 (iii) The judge only referred to the mother's case in her but arrangements for the children remained amicable. Both judgment and did not remedy this defect even after it was parents worked in the banking industry, although neither of raised by counsel for the father. them held a full time position so that they were available to meet the needs of the children. They obtained a shared The mother, represented by Timothy Scott QC and Indira residence order in August 2010 which provided for the Ramsahoye, accepted the imperfections in the judgment but father to care for the children for five nights per fortnight submitted that the findings in favour of the mother were so with the mother caring for them the remaining nine nights, strong that the Court of Appeal could not set aside the although the reality was that the father spent six consecutive permission as an exercise of discretion. days with the children and the mother had the assistance of a nanny during her time at work. In this respect the time the Thorpe LJ and Moore-Bick LJ concluded that the father children spent with each parent was broadly equal. should succeed on each of the three points raised. Black LJ disagreed in relation to point (ii). Points (i) and (iii) were The mother applied for permission to relocate to Canada clear on the face of the judgment and their Lordships did not with the children. Her family was in Canada and she felt need to dwell on those issues. Point (ii) however required isolated and stressed here. She intended to return to live consideration of the evolution of the case law in external with her parents and enjoy the emotional and material relocation applications. support they could provide for her and the children. The father opposed the application on the basis that he would Payne v Re Y? lose his relationship with the children and they would no

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The exploration of the case law began with Poel v Poel [1971] the child's welfare shall be the court's paramount WLR 1460, a case where the mother of a 2 year old consideration, and in considering these issues I have successfully sought to relocate to New Zealand with the to take a number of matters into account as required child and her new husband. Sachs LJ noted that when a by s 1(3)." marriage breaks down a child will find itself in the custody of a single parent and, if that arrangement is working, the Thorpe LJ and Moore-Bick LJ went further than Hedley J in court should not "lightly interfere with such reasonable way Re Y. They agreed that the only principle to be extracted of life as is selected by that parent to whom custody has from Payne is that the welfare of the child is paramount and been rightly given." An interference was thought to put the court should consider the statutory checklist in strain on the parent and any new marriage which might exercising the discretion but went on to say that the rest was ultimately impact on the welfare of the child. Thorpe LJ guidance and only applicable where the applicant is the commented at paragraph 44 of Re K that: primary carer. In this way Payne is no longer the leading authority in cases involving a shared care arrangement. "Of course that all now seems archaic given our shift from parental power to parental responsibility What was meant by primary care and shared care? Even introduced by the Children Act 1989 and given the though the Court of Appeal in T v T [2010] EWCA Civ 1366 more recent emphasis on the value to children of considered that Mostyn J went too far in Re AR (A Child: shared parenting where the parental relationship Relocation) [2010] EWHC 1346, [2010] 2 FLR 1577 by saying and the circumstances are favourable." that the shared residence order is 'nowadays the rule rather than the exception' the reality is that an increasing number He went on to say at paragraph 46: of shared residence orders are being made where the division of time between the parents is far from equal. "… the survival of the authority of Poel into this Thorpe LJ addressed this at paragraph 57 of Re K: century, in my judgment depends crucially upon the primacy of the applicant's care. As Ms Eaton put it, "....What is significant is not the label "shared if she is supplying so much she must be supported in residence" because we see cases in which for a her task precisely because the children are so particular reason the label is attached to what is no dependant on her stability and wellbeing. Once the more than a conventional contact order. What is care is shared there is not the same dependency and significant is the practical arrangements for sharing the role of each parent may be equally important. the burden of care between two equally committed The judgments in Poel consider only the position of carers. Where each is providing a more or less equal the primary carer and an earlier position where there proportion and one seeks to relocate externally then is a pending contest as to who should be the primary I am clear that the approach which I suggested in carer." paragraph 40 in Payne v. Payne should not be utilised. The judge should rather exercise his discretion to Similarly he notes that Payne does not consider anywhere grant or refuse by applying the statutory checklist in what the court's approach should be where there is no section 1(3) of the Children Act 1989." primary carer. In that case the mother had a residence order that was not in dispute. Dame Elizabeth Butler-Sloss P. Black LJ disagreed with this approach. She considered the gave her guidance at paragraph 85 on the basis that relevant case law over 40 years both leading up to and residence was not a live issue. She went on to say at following the Children Act 1989. She agreed that the only paragraph 86 that where there is a dispute as to which principle is that the child's welfare is the paramount parent should be granted a residence order the future plans consideration but went on to say that the guidance could not that each parent has for the child would be relevant. There be ignored as a result. She considered the summary of was no mention of a situation in which both parents share guidance in paragraph 85 of Payne and concluded that there the care of the child. was no weighting in favour of any particular factor noting that whilst the reasonable proposals of the applicant carry Thorpe LJ and Moore-Bick LJ were prepared to lay Payne to "great weight", the effect on the child on the denial of rest in cases involving shared care. They referred to the contact with the other parent is "very important." She decision of Hedley J in Re Y [2004] 2 FLR 330 (cited in considered that Payne identifies various factors which could support of point (ii) of the father's appeal but not at the be relevant to any relocation case and provides guidance to original hearing) in which he sought to distinguish between ensure those matters are properly considered. She says at relocation cases where the child clearly lives with one paragraph 144: parent and where there is a live dispute over residence or a shared care arrangement. He concluded at paragraph [14] "… I do not see Hedley J's decision in Re Y as that in the latter set of circumstances representative of a different line of authority from Payne, applicable where the child's care is shared "…many of the factors to which the court drew between the parents as opposed to undertaken by attention in Payne v Payne… whilst relevant may one primary carer; I see it as a decision within the carry less weight than otherwise they commonly do." framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters He went on to say at paragraph [16]: depending upon the facts of the case."

"…What it seems to me I must do is to remind myself She goes on to say at paragraph 145: of the opening provisions of the Children Act 1989. Section 1(1) says that when a court determines any "… Accordingly, I would not expect to find cases question with respect to the upbringing of a child, bogged down with arguments as to whether the time

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spent with each of the parents or other aspects of the the guidance in Payne should still be considered in all care arrangements are such as to make the case "a relocation cases and the court must be clear as to what Payne case" or "a Re Y case", nor would I expect weight should be attached to the relevant factors identified preliminary skirmishes over the label to be applied in each case. It has however, brought the focus back on to to the child's arrangements with a view to a parent the court's primary role: determining what is in the best having a shared residence order in his or her interests of each child in each individual case. The court armoury for deployment in the event of a relocation makes clear that the guidance in Payne is merely that: application." guidance.

Conclusions Black LJ warned against pitching Payne and Re Y against The judgment in Re K is clearly incredibly significant in the each other. However, considering Thorpe LJ's judgment, its area of international relocation cases. In cases concerning a seems inevitable that parents will try to argue that their case shared care arrangement between parents the guidance in fits into the category of one or other of those cases. Black LJ Payne should now give way to a consideration of the also warned against arguments over a shared residence welfare of the child and an application of the welfare order in attempt to build a case for any relocation checklist. This case does not however result in the end of application. Given the clear guidance of Thorpe LJ on this Payne. The guidance remains applicable in cases where the point, this seems less likely but parties may still seek to applicant is quite clearly the primary carer but Re K makes build their case in advance by arguing over the division of a it clear that it is only guidance, not a binding checklist akin child's time between parents where an application to to s.1(3) of the Children Act. relocate is a possibility. Clearly practitioners will consider advising a parent considering a move abroad not to agree to Thorpe LJ referred to the work of the Institute for Social and a shared care arrangement and conversely a non-resident Economic Research which reported in the survey parent to consider whether a shared care arrangement "Understanding Society" that the proportion of equal shared might be manageable. care arrangements was 3.1% of the total. This was a study of 100,000 people in 40,000 households and it is not clear Black LJ further made it clear that this case, and the whether "equal shared care" referred to arrangements principles involved, applies only to international relocation; where the division of time between parents was completely the approach of the courts to 'internal' relocation cases is equal or "more or less equal." In any event a complete unaffected. departure from Payne will not be applicable in the majority of cases. If the approach set out by Black LJ is to be followed

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Finance & Divorce Update Summer 2011 lump sum of £2.485m, periodical payments for the child of £60,000 p.a. and her costs totalling £350,000.

The husband appealed both the refusal to adjourn the final hearing of the wife's application under Part III MFPA and the judgement of Moylan J in those proceedings. The appeal was dismissed, the court holding:

• Any appeal against a grant of permission is extremely hard to make good and progress in the Court of Appeal unless the judge had been misled or fallen into an error of fact or law. If his decision was within the exercise of his discretion, then that entitled the Court of Appeal to support Joanna Grandfield, barrister with Mills & Reeve, analyses it. the latest key matrimonial finance cases. • The failure to adjourn the proceedings was a pragmatic, sensible decision in circumstances where the case had The summer update deals with cases involving disputes as already been postponed from May to July. to forum, impact of the failure to give full and frank disclosure, security for costs as a condition for appealing an • In terms of the application under Part III MFPA 1984, as a order, Hadkinson orders; applications to set aside, trusts general principle, if a court in state A pronounced divorce, and non-matrimonial assets and the impact of cohabitation it was not for a court in state B to deal exclusively with the on periodical payments. financial issues. However in the present case, whilst the Judge might have more explicitly spelt out the source from Forum races, full and frank disclosure, security for costs which he anticipated judgment would be satisfied, it was Golubovich v Golubovich [2011] EWCA Civ 479, [2011] All ER implicit in that judgment and plainly within his discretion. (D) 72 (April) (Thorpe LJ, Etherton LJ, Baron LJ) The latest instalment of the divorce of a fabulously wealthy • If a litigant deliberately played games with the court the Russian couple, in brief, the parties married in 2007 when judge was obliged to found the award partially on the wife was 24 and the husband 23. Whilst the wife, a speculation which would ensure that he did no injustice to fashion student, came from a wealthy family herself, the the litigant that had cooperated. If a defaulter ended up with husband, a financier, came from an extraordinarily wealthy an unpalatable order then he had brought that upon himself. family who were the Russian equivalent of Tescos. Following the marriage, the parties lived in a property in Practitioners are also referred to Golubovich v Golubovich Kensington owned by the husband's mother, and spent at [2011] EWCA Civ 528, in which Wilson LJ ordered these an extraordinary rate, allegedly spending over £2m between proceedings be stayed until the husband paid £30,000 into them during the 18 month marriage during which one child court in respect of the wife's costs of the husband's was born. application for permission to appeal the financial order under Rule 3.1(3)(a) CPR 1998. A forum race took place which culminated in the husband's successful appeal of the decision of the English court not to Matrimonial & Family Proceedings Act 1984, interim recognise the Russian decree of divorce (Golubovich v maintenance, Hadkinson orders Golubovich[2010] EWCA Civ 810). That judgment was M v M [2011] EWHC 3574 (Fam) and [2010] EWHC 2817 handed down on 13 July and led to the wife's application for (Fam) financial remedy being transferred from MCA 1973 to Part This case considered the jurisdiction for making an order for III MFPA 1984 the following day, which was to have been interim periodical payments under MFPA 1984 and the the first day of the final hearing of her application under the circumstances in which it was appropriate to make a MCA 1973. The husband unsuccessfully applied for an Hadkinson order against a Respondent. adjournment of those proceedings. The parties married in Moscow in 1991 and moved The day before the Court of Appeal judgment on the permanently to the UK in August 2005. The family home divorce proceedings, on 12 July the court held that the was worth an estimated £4m and Forbes estimated the beneficial interest in the matrimonial home was owned by husband's wealth at £150m. In 2008 the parties separated, the husband's parents, which had the effect or reducing the the wife moving out of the family home with the two assets in the UK which could be identified as being those of children. The husband's financial support was essentially the husband from £4m to £1m (being the investor deposit limited to payment of school fees and providing allowances that had been required to enable the parties to live in the and gifts for the children. The wife was reliant on (very UK). generous) friends to support her financially.

The husband failed to give full and frank disclosure, as a The husband then moved out of the matrimonial home, result of which the Judge hearing the main application for a changed the locks and refused to allow the wife and financial order (now under Part III MFPA) was left with children to move back in, leaving them to rent a property for only perfunctory disclosure and oral evidence which he had £12,000 pcm (paid for by her friend). In the meantime, the rejected. Notwithstanding this, Moylan J concluded that, husband moved into another property in north London and although he could not pinpoint the source of the husband's bought a boutique hotel in the West country for £2.5M. present and future funds, he could comfortably meet the wife's needs. The husband was ordered to pay to the wife a

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The wife applied for interim maintenance under Part III Applications to set aside MFPA 1984. The case came before King J, who found that Gordon (formerly Stefanou) v Stefanou [2010] EWCA 1601 Civ, the husband had "engaged with the litigation on only the This case is the wife's appeal against Singer J's decision to most superficial level" [at 13]. His disclosure (consequent to refuse her application to reopen ancillary relief proceedings. an earlier freezing order) was limited, he had failed to For the first instance decision, see S v S (Ancillary Relief after provide an affidavit of means in the instant proceedings and Lengthy Separation) [2006] EWHC 2339. had failed to explain its absence or even appear before the court. The court had no idea of the extent of the husband's The parties separated in 1996 after a 20 year marriage. wealth other than the fact that he had spent £15.5m on Three years after separation, the husband set up a company, property in London since 2005 and over £1m on Accord Plc, of which he was the major shareholder. Decree refurbishment. None of the properties were either income nisi and absolute were granted on the basis of 5 years' producing or let and the children were at an expensive separation in 2003 and the wife commenced ancillary relief boarding school. proceedings. A major issue between the parties concerned the value of the husband's shares in Accord plc, which the King J made a Hadkinson order (Hadkinson v. Hadkinson wife's expert valued at £30m by the time of the final hearing [1952] FLR 287) preventing the husband from making any in April 2006 and which the husband's expert said had no further representations in the proceedings for interim appreciable value. At the conclusion of the hearing in early periodical payments, and went on to consider the May 2006, Singer J adjourned the matter to await the House jurisdiction for making an order for interim periodical of Lords decision in Miller; MacFarlane. Judgment was payments in proceedings under Part III MFPA 1984. Section eventually handed down in September 2006. 14 of that Act provides for the following (emphasis added): 14 Interim orders for maintenance In his judgment, Singer J considered the long delay between separation and initiation of legal proceedings and the fact (1) Where leave is granted under section 13 above for the that the creation of Accord Plc had been achieved post making of an application for an order for financial relief and separation without support or contribution from the wife to it appears to the court that the applicant or any child of the be magnetic factors. The husband was ordered to transfer family is in immediate need of financial assistance, the court the matrimonial home to the wife and awarded her a lump may make an interim order for maintenance, that is to say, sum of £1.1m payable in two tranches due 20 December an order requiring the other party to the marriage to make 2006 and 20 December 2007. to the applicant or to the child such periodical payments, and for such term, being a term beginning not earlier than During the period between the conclusion of the hearing the date of the grant of leave and ending with the date of the and the handing down of judgment, a re-financing deal for determination of the application for an order for financial Accord Plc was agreed as a result of which the husband relief, as the court thinks reasonable received large sums as belated dividends for his preferential shares which was not disclosed to the court. A combination The Judge considered the meaning of "immediate need" and of that deal and borrowings from his brother enabled the found it to mean "current" as opposed to "urgent". King J husband to have met his financial obligations under the then considered Agbaje v Agbaje [2010] 1 AC 628, noting that order by the end of 2006. the Supreme Court made it clear that neither hardship nor injustice is a precondition for the exercise of the jurisdiction The following summer, July 2007, Accord Plc was in fact [72] nor is it only appropriate for the English court to sold for £130m. intervene with financial relief to the minimum extent necessary [63] in applications under MFPA 1984. The wife applied to set aside the order made in October 2006. Singer J refused the application on the basis that he Holding that the hurdle for successful applications for did not regard himself as having been misled by the interim maintenance under MFPA is no higher than that for husband since, even if he had known about the re-financing applications under s22 MCA 1973, the Judge held that the of Accord Plc it would not have altered his original decision. limitations imposed by s14 are as follows: The wife's appeal was dismissed, the Court of Appeal finding that, although the judgment might have been (i) no order for interim maintenance will be made until leave written differently had the husband disclosed the re- to make a Part III order has been given; financing that occurred in July 2006 the result would not (ii) under s14(2), the jurisdiction must be founded on have been materially different. It had plainly been open to domicile or habitual residence (as opposed to an interest in the judge to have regarded the 10 year period before a former matrimonial home in this jurisdiction); ancillary relief proceedings had been issued and the fact (iii) The applicant must be in 'immediate need' and the that the activities had occurred entirely from the husband's provision is to be reasonable. own efforts as being the central feature of his decision.

The Judge considered the wife to have overcome the hurdle Treatment of non-matrimonial assets and to be entitled to interim provision. Criticising the K v L [2011] EWCA Civ 550 (Laws LJ, Jacob LJ, Wilson LJ) husband for the "flagrant waste of family money" being 13 May 2011 spent on the wife's rent when the matrimonial home was This case, involving the husband's appeal against an order available, interim periodical payments were set at £460,000 that the wife pay him a lump sum of £5m on a clean break p.a., of which £150,000 was for rent and £10,000 pcm basis (see K v L [2010] EWHC 1234 (Fam) involves towards legal fees. consideration of the treatment of non-matrimonial assets. The wife, who was 52, had assets which were entirely non- matrimonial, consisting of shares inherited when she was aged about 15. When the parties began cohabiting in 1986,

www.familylawweek.co.uk Family Law Week August 2011 - 36 her shares were worth about £300,000; had increased in stress that, as neither party went out to work, their work in value to £700,000 on marriage in 1991, were worth about the home, although different, should be taken to be a £28m by separation in 2007 and were valued at £57.4m by contribution of equal value for the purposes of the award. the time of the final hearing. There were 3 school age The finding that the wife had made a very important children. financial contribution did not discriminate between the parties in any unacceptable way but correctly recognised a During the marriage, neither party had worked and, despite substantive difference (at 15). the wife's wealth, the family lived modestly in a semi- detached house valued at £225,000 in the suburbs of • The true proposition was that the importance of the source London. On separation, the wife transferred the of assets might, not would, diminish over time. There were matrimonial home into the husband's sole name and bought no facts to justify concluding that, as long as the marriage another similar property nearby. The children proceeded, there was a diminution in the importance of the predominantly attended state schools. The family's average source of the parties' entire wealth. annual expenditure during the later years of the marriage was £79,000, with the family running the same modest car • The phrase "special contribution" was used to describe a for a number of years. contribution entirely different from that of non-matrimonial property. A special contribution arose in circumstances in Although the husband's claims for interim maintenance which a spouse's contribution, direct or indirect, to the were similarly modest (£30,000 – £48,000 for himself and creation of matrimonial property had been so extraordinary £12,000 for the children when they were with him), his as to dictate a departure within the sharing principle from substantive claim was for £2m for housing, £450,000 for a the ordinary consequence of its equal division. By contrast, second home in Israel, £60,000 for a new car and periodical although non-matrimonial property also fell within the payments of £105,000 p.a. (exclusive of the costs of the sharing principle, equal division was not the ordinary children when with him). consequence of its application; rather, extensive departure from equal division was the ordinary consequence. The Bodey J awarded the husband £5m, which reflected the wife's contribution of non-matrimonial property was quite wife's open offer. He noted that, with resources of his own different from the special contribution addressed in of £300,000 (the former matrimonial home), the husband Charman. would be able to buy a property in central London and, according to the Duxbury tables, benefit from net annual • None of the decisions cited by the husband involved income of £130,000, inflation linked, for himself. Given the assets that were entirely non-matrimonial and an award by family's lifestyle during the marriage, the award went reference to the sharing principle in excess of the applicant's further than very generously meeting the husband's needs. needs (at 22).

On appeal, the husband argued that the first instance judge Finally, at the outset of the hearing, a joint application was had erred in principle in limiting his award to a generous made to prevent the publication of the names or assessment of needs, and contended that the judge had photographs of the parties and the children or of any failed to make an assessment by reference to the sharing information that would lead to the children being identified. principle which would have yielded him a total of £18 Acknowledging how rare it was for the Court of Appeal to million. H submitted that the Judge had: make such an order, Wilson LJ said that the application had been granted to protect the rights of the parties' children • discriminated against him by attaching great importance under the European Convention on Human Rights 1950 to the wife's provision of the family's income; art.8 since despite the wife's financial position, the parties had over many years carefully made a normal life for the • failed to recognise the importance of the fact that the children in which even their friends were unaware of their source of assets would diminish over time; and wealth. Public knowledge of the details of the family finances would substantially, perhaps even grossly, affect • effectively found that the wife had made a special that normality. contribution to the family's welfare. Therefore he should Trusts have followed the guidance in Charman v Charman [2007] EWCA Civ 503 to the effect that allowance for special Whaley v Whaley [2011] EWCA Civ 617 (Mummery LJ, Black contribution within the sharing principle would be most LJ, Lewison J) 24 May 2011 unlikely to cause a departure from equality further than The husband and wife, who were 60 and 47 respectively, two-thirds/one-third. As such, his claim for £18m from a were married for over 20 years and had four children aged pot of £57m was appropriate. between 12 and 20. Family life was split between England and Spain. In 1997 the wife and the children moved back to • In light of the awards in several other reported decisions England so that the children could attend English schools involving non-matrimonial property, to award only 9.3% of whilst the husband maintained his long term residence and the parties' assets was disproportionate. domicile in Spain, primarily for tax reasons.

The appeal was dismissed, the Court holding: At first instance, the husband asserted that the assets amounted to £3.173m after legal costs. The wife submitted • The complaint of discrimination was founded upon a they were £11.873m. The difference between the two misunderstanding. What was unacceptable was contentions was the treatment of two dynastic trusts (the discrimination in the division of labour within the family Farah Trust and the Yearling Trust) in which the husband and, in particular, between the breadwinner and the had an interest. Perhaps unsurprisingly, the husband homemaker (as per White). Bodey J had been careful to

www.familylawweek.co.uk Family Law Week August 2011 - 37 argued that these trusts should be regarded as non- • overvalued a Spanish property and failed to recognise matrimonial property, the wife the opposite. that the golf course would have to be sold, thereby rendering the management company valueless; The husband's father had created the Farah Trust of which the husband (together with his two brothers and remoter • been over-generous to the wife by failing to give weight to issue plus charities) was a beneficiary. The Judge held that the liquidity issues, the effect on the husband's financial the husband was entitled to assets in the Farah Trust (worth position and the inherited nature of the trust assets and had about £4.6m). treated the case as a "sharing the fruits of the marriage case" rather than a needs case; and The Yearling Trust had been set up in 2008 by the trustees of the Farah Trust to move assets for tax reasons. It owned the • erred in an assessment of income needs. freehold of a golf course subject to a lease to a management company. This asset had been transferred from the Farah The appeal was dismissed, the Court finding: Trust because the husband had concerns about his tax position, which were under investigation by HMRC. • The judge had asked the proper question of whether the Although the terms of the trust were identical to the Farah trustees were likely to advance capital to the husband and Trust, the beneficiaries were not. The only beneficiaries of had arrived at the unassailable answer that the trustees of the Yearling Trust being the parties' four children and the both trusts were likely to do whatever the husband asked, four children of one of the husband's brothers. including making capital available to him (Charman v Nonetheless., the Judge found that the trust's value should Charman [2005] EWCA Civ 1606). In those circumstances be taken into account since the husband could be added as she had no choice but to treat the trust assets as part of the a beneficiary at any time ("as and when it was considered husband's resources for the purposes of s.25(2)(a) that that the tax challenge had ended"), and he had sought Matrimonial Causes Act 1973 and there were no grounds to to alienate his assets by allowing assets from the Farah Trust complain of improper pressure. (the golf course land) to be transferred to the Yearling Trust ("I expect that H also appreciated that the creation of the sub • In the absence of an evaluation of the risk that the Spanish trust had the added advantage that it might also be seen to property might have to be demolished, the judge had been distance the golf course from him in the event of divorce"). entitled to form her own view, which was well within the The judge also found that there had never been any real range of conclusions open to her and supported by the intention of benefiting the named beneficiaries. evidence.

Insofar as the trusts were concerned, Baron J held that the • The judge had considered the liquidity of the assets, and husband had tried to conceal the truth behind the trust had been conscious of the difficulty of predicting the holdings. In particular, the trustees and protectors of the husband's income, depending on which assets he chose to trusts had given false information designed to defeat the sell. She had treated the case as one in which the award wife's claim and, as trustees, had effectively carried out the should not be determined by needs alone, but as one to husband's bidding. Her view was only bolstered when one which the sharing principle applied. The precise weight to of the trustees failed to attend the hearing to be cross- be given to non-matrimonial property brought into the examined despite a clear expectation that he was to do so. marriage or inherited was a matter for the judge's discretion. The judge's division of assets had not failed to give due At first instance, Baron J accepted the wife's case that the regard to their source. trusts should be seen as resources likely to be available to the husband and included £7m from the two trusts in • The orders for payment of school fees and periodical arriving at the figure of £10.4m as being the resources payments for the wife and the children could not be available to the parties. criticised. The Judge had been entitled to assess as she had the contribution that W's new partner ought to have made; The Judge's order required the husband to pay a lump sum any error in her approach had been overtaken by her of £3m by 27 May 2011 and meanwhile make spousal conclusion that it was not a needs-only case. periodical payments of £40,000 p.a. as well as child maintenance, school and college fees. On payment of the Periodical payments – impact of cohabitation lump sum, the spousal maintenance would cease and the Grey v Grey [2010] EWHC 1055 (Fam) (Singer J) 10 May 2010 wife was to transfer her shareholding in a golf club This case is included as illustrative of the approach to be management company to the husband. The wife would taken in applications to vary periodical payments following receive 35% of the assets, the departure from equality being the cohabitation of the recipient. Following a successful appropriate given the pre-marital wealth of the husband appeal by the husband against the original award (see Grey and the provenance of the assets in trust being from his v Grey [2010] EWCA Civ 1424 the matter was remitted to parents. Singer J to revisit the level of periodical payments to be paid by the husband following the wife's cohabitation. The husband appealed, arguing that the award: The parties separated in 2005, after being together for a total • put improper pressure on the trustees to provide him with of nine years. During the proceedings the wife denied the funds from the trusts in order to comply with the order and husband's allegations that she was cohabiting. When the meet his own needs and should have left the Yearling Trust husband discovered the wife was pregnant the wife out of the equation as he was not a beneficiary; admitted to her new, but permanent, relationship with L. At first instance, the Judge held that, "the presence of L on W's scene, and indeed the presence of their child, do not in my opinion affect at all the quantum of capital provision

www.familylawweek.co.uk Family Law Week August 2011 - 38 with which W should exit this marriage". The wife was The proper course of action was then to adjust H's payments awarded a house and periodical payments of £135,000 p.a. by reference to a fair assessment of L's contribution so as to from November 2006 to March 2009 and £125,000 p.a. maintain the standard of living that the court had deemed thereafter. On appeal, the Court of Appeal held that, appropriate in 2009 rather than simply reduce the husband's although there had been no evidence of financial maintenance obligation to a nominal amount. Having contribution by L, the question was not "what is he conducted that assessment (which will inevitably turn on contributing?" but "what should he be contributing?" and the facts in each case), the Judge concluded that the remitted the case to Singer J to assess whether or not the appropriate amount of contributions from L from level of periodical payments should be reduced. November 2007 to the end of 2009 would have been Euros 55,000 (the wife was by then living in Dublin). The The judge concluded that the wife and L had been in a stable Husband's obligations were reduced by that amount for that and committed relationship since November 2007 (albeit period and maintenance was set at Euros 16,000 p.a. moving not a full cohabiting relationship as L maintained his own forwards. separate property) and that relationship was continuing at the date of the hearing, January 2010. Accordingly, L ought to have contributing to the wife's household from November 2007.

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Cost Orders in Public Law Proceedings: A is a party. Thus, even when a local authority's application New Approach? for a care order is dismissed, it is unusual to order them to pay the costs of the other parties. But the proposition is not applied where, for example, the conduct of a party has been Harry Nosworthy, Pupil Barrister, 4 Paper Buildings reprehensible or the party's stance has been beyond the band of what is reasonable. As a general rule in Children Act 1989 proceedings no order is made as to costs save where a party has behaved The approach of Cazalet J in Re M (Local Authority's Costs) 1 unreasonably or reprehensibly in relation to the litigation FLR [1995] 533 has also provided the courts in the past with conduct. The courts have historically not wanted the threat some limited guidance as to how the courts can exercise its of costs to discourage parties from making appropriate discretion in making costs orders: applications in relation to children, especially so in care proceedings. The guidance on the court's approach to cost Although it was not a proposition, in child cases it was orders in public law Children Act proceedings is limited. unusual to make an order for costs where the conduct of a However, recent decisions have perhaps indicated that the party had not been reprehensible or the party's stance had courts are now more willing to exercise their broad not been beyond the band of what was reasonable. It was a discretion to make orders. matter for the discretion of the court in the light of those criteria as to what order for costs should be made. This article will seek to examine: Conduct which is reprehensible or beyond the band of (a) The law relating to costs in care proceedings under the what is reasonable new Family Procedure Rules 2010; This was the test applied by HHJ Bellamy sitting as a judge of the High Court in Coventry City Council v X, Y and Z (care (b) Whether recent authorities have set down guidelines proceedings: costs) [2011] 1 FLR 1045 when he awarded which are to be applied by the courts or whether each case parents £50,000 each towards settlement of their costs, will turn on its facts; funded by the Legal Services Commission under high costs contracts, in failed care proceedings. The local authority (c) Whether costs in care proceedings could become a more issued applications for care orders in respect of three common occurrence. children due to concerns of neglect and fabricated or induced illness (FII). A fact finding hearing was listed but The law relating to costs in care proceedings the local authority made an application for leave to The rules governing costs in family proceedings are found withdraw the proceedings with respect to two of the in Part 28 of the Family Procedure Rules 2010. These children and to continue with respect to the remaining replicate the old provisions in rule 10.27 of the Family child, despite making applications for interim care orders Proceedings Rules 1991, with two small additions: within the last 6 months. The parents' and the children's costs were estimated at just short of £400,000. The local (a) All rules are applied having regard to the overriding authority had failed to satisfy the court that this was a true objective at Part 1 of the FPR 2010; and FII case, because it simply had not investigated the issue in depth, despite having the benefit of an assessment by an (b) Rule 28.1 contains an express provision that 'the court independent social worker, the children's guardian and a may at any time make such order as to costs as it thinks just.' consultant paediatrician. HHJ Bellamy found that the local authority's conduct had fallen outside the band of what is However, this has not brought about a significant change reasonable and ordered it to pay £100,000 towards the and the principal purpose of rule 28 is to apply the cost parent's costs. provisions in Parts 43, 44, 47 and 48 of the Civil Procedure Rules 1998, subject to the exclusion of rule 44.3(2) which Whether such orders will be enforced by the Legal Services provides that 'if the court decides to make an order about Commission is a separate matter and one that may be costs, (a) the general rule is that the unsuccessful party will thrashed out between publicly funded bodies, as HHJ pay, but (b) the court may make a different order.' Bellamy made clear in his judgment, echoing the sentiments of Charles J in Re R (Care: Disclosure: Nature of In most cases under the Children Act 1989 the court will Proceedings) [2002] 1 FLR 755 where having made an order make no order as to costs. The basis for this has long been for costs against the local authority he said that: recognised in the family courts and is appropriately summarised by Wilson J as he then was in Sutton London I would also express the view, which can be conveyed, for Borough Council v Davis [1994] 2 FLR 569: what it is worth, to the Legal Services Commission that this is an issue between publicly funded bodies. They may, as a Where the debate surrounds the future of a child, the matter of discretion, wish to take that into account in proceedings are partly inquisitorial and the aspiration is deciding whether or not they enforce this order having that in their outcome the child is the winner and indeed the regard to the circumstances of the case and the way in which only winner. The court does not wish the spectre of an order legal aid is granted in family proceedings. for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to Costs in fact finding hearings and the 'clean sheet' reduce the chance of their co-operation around the future principle life of the child by casting one as the successful party Despite the principles set out in these authorities, there have entitled to his costs and another as the unsuccessful party been a number of recent decisions which would indicate obliged to pay them. The proposition applies in its fullest that the courts are adopting a new approach to the issue of form to proceedings between parents and other relations; but is also applies to proceedings to which a local authority

www.familylawweek.co.uk Family Law Week August 2011 - 40 litigation conduct and costs in fact finding hearings, and proceedings relating to children. In truth the Judge should dispensing with established propositions. have started with a clean sheet [19].

In Re J (Costs of Fact Finding Hearing) [2009] EWCA Civ 1350, Wilson LJ helpfully provided further guidance as to the [2010] 1 FLR 1893, the Court of Appeal (Ward and Wilson proper determination of such applications by referring to LJJ) suggested that the principle in Sutton did not apply to his decision in Baker v Rowe [2009] EWCA Civ 1162, [2010] the costs of a fact finding hearing. In private law 1 FCR 413 and said: proceedings the mother alleged domestic violence against the father. The district judge found 11 of the 17 allegations Even where the Judge starts with a clean sheet, the fact that proved. The mother applied for her costs of the hearing but one party has been unsuccessful and must therefore usually her application was dismissed by the district judge and be regarded as responsible for the generation of the circuit judge on appeal. The Court of Appeal in allowing the successful party's costs, will often properly count as the mother's appeal, said at [17]: decisive factor in the exercise of the Judge's discretion [25].

The effect of the direction for a separate fact finding hearing Accordingly, with this dictum in mind it was ordered that was that the costs incurred by the mother in relation to that the local authority should pay the costs of the grandparents hearing can confidently be seen to be wholly referable to her of and incidental to their intervention on the standard basis. allegations against the father. There was, in that sense, a ring fence around that hearing, and thus around the costs It is understood that the local authority has obtained referable to it. Those costs did not relate to the paradigm permission to appeal the decision in Re T in the Supreme situation in which the general proposition in favour of no Court but this is not likely to be heard until next year. order as to costs applies. How do the courts apply the 'clean sheet' principle? This would suggest that where there is a discrete issue to be In the case of Kent County Council v A Mother [2011] EWHC determined the courts will ring fence it when dealing with 402 (Fam) the court was concerned with allegations of costs. However, Wilson LJ went on to explain that such sexual abuse which the mother had allowed to happen by situations were limited: permitting the children to stay overnight with a family friend who was a sex offender. The court found that the I would be concerned if our exercise of discretion in relation children had suffered significant harm by virtue of the to the mother's costs in this case today were to be taken as unreasonable parental care she gave them. However, the an indication that it was appropriate in the vast run of those mother, the father, the children through their guardian, and cases to make an order for costs in whole or in part by the intervenor (mother's current partner) all made reference to the court's determination of issues of historical applications for costs against the local authority on the basis fact [18] of a failure to carry out duties as to disclosure, which Baker J described as being conducted in 'a wholly unsatisfactory, In Re T (A child) [2010] EWCA Civ 1585 the Court of Appeal piecemeal and haphazard' way. The local authority's went a step further. The court was concerned with lengthy unorthodox approach to disclosure led to the other parties care proceedings involving allegations of cross-generational incurring extra costs in managing the information. sexual abuse to which the paternal grandparents of the subject children were joined as alleged perpetrators. The Baker J found that the local authority's failure to disclose grandparents did not qualify for public funding and had to was manifestly unreasonable, and in applying the test in borrow over £50,000 to pay for legal representation. At the Sutton, he found it right for the local authority to bear the conclusion of the fact finding hearing, in which they were costs thereby incurred by the respondents under their completely exonerated, their application for an order for public funding certificates. However, the judge also made costs against the local authority was refused and they clear that the court must be careful that the costs penalty appealed to the Court of Appeal. In determining the appeal, imposed on the local authority is fair. Accordingly, Baker J Wilson LJ said: took a simplistic approach and worked out roughly how many extra days to the hearing were incurred as a result of It was common ground that it was appropriate for the local the local authority's failings. He did not think it authority to invite the court to determine the allegations proportionate to embark upon a more detailed assessment against the grandparents and that the way in which the local process given that all costs were being borne by the public authority conducted themselves during that hearing cannot purse. be criticised [8]. The intervenor's application for costs was a different matter. The trial judge had applied the general proposition in The intervenor was exonerated in the fact finding hearing favour of no order as to costs. The Court of Appeal found and sought to apply the Court of Appeal Re T 'clean sheet' that the judge had erred in relying on this principle and that principle and, as the successful party, sought costs from the where allegations have not been established in a fact- local authority. However, it was not the local authority but finding hearing the general rule 'no order as to costs' is not rather the father who sought findings against the intervenor in play. Wilson LJ said that: after the late disclosure of the material. When the court then decided that these matters should be investigated, the local It does not, however, follow that the Judge should authority took the lead. Baker J, therefore, decided that it automatically have ordered the local authority to pay the would not be right to order the local authority to pay the costs of the grandparents. The general rule that costs should costs of the intervenor, and he adopted the words of Wilson follow the event did not apply. Nor however did the general LJ from Sutton that the local authority was participating in proposition that there should be no order for costs in the court process as one would expect of a local authority with a proper interest in the children who were the subject

www.familylawweek.co.uk Family Law Week August 2011 - 41 of the proceedings and there should be no order as to costs. The guidance makes clear that it is the responsibility of the Furthermore, Baker J suggested that where the court takes parties to ensure compliance with case management the lead in identifying the issues to be litigated at a fact directions. All too often this is overlooked and the local finding hearing, it will generally be inappropriate to depart authority is held accountable for failing to comply with the from the general proposition of no order as to costs in family directions, for example as to police disclosure, when the cases. responsibility in ensuring compliance rests with all the parties. The other parties have a responsibility to alert the Baker J considered whether such an order was in local authority of any failings if they are apparent and accordance with the overriding objectives set out in Part 11 actively seek to remedy the difficulties, and if they are of the Family Procedure Rules 2010, and the express unable to do so then alert the court that the timetable for the requirement at rule 28.1 that a 'just order' as to costs should child may be jeopardised. However, far too often the issue be made. He further acknowledged that such an order is ignored and the local authority left to bear the burden and would pose a significant burden upon the local authority take sole responsibility. especially in time of economic strife and accordingly the order was not as great as it could have been. Conclusion These recent decisions seem to indicate that the general rule Compliance with active case management directions 'no order as to costs' no longer applies to fact finding cases, It is worthy of note that in care proceedings when local and the courts will start with a 'clean sheet' where the local authorities are making applications they are often held authority has sought findings and the court does not make responsible for case management, and it is not an unknown them. It is also clear that where one party has been occurrence for the courts to put local authorities on notice to unsuccessful and consequently generated the costs of the show cause why they should not paid any costs wasted as a successful party this will be a pivotal factor for the court in result of care management failings. making a cost order.

It is important to highlight that the 'Basic guidance to good However, it would appear from Baker J's judgment that the practice in care proceedings across London' by DJ Harper dicta of Wilson J in Sutton remain good law. Where a local and approved by HHJ Altman October 2010 provides very authority is participating in the court process with a proper clear assistance as to the responsibility of the parties to interest in the children who are the subject of the ensure proper case management. proceedings it would be inappropriate to depart from the general rule no order as to costs, in contrast to views Paragraphs 26-29: expressed by the Court of Appeal on the facts in Re T. This demonstrates that the courts have a broad discretion in how 26. It is the responsibility of the parties to adhere to the they deal with costs in the public law sphere and each case timetable the court has set for the child. This enables the will turn on its facts. court to ensure the case is dealt with justly under the overriding objective. A failure by the parties to enable the Outside the parameters of the fact finding hearing the active case management of the case may jeopardise the courts, whilst adopting a robust approach, remain guided timetable for the child and cause unnecessary delay in the by the principles in Sutton and the general rule remains that proceedings. there should be no order as to costs save where a party has behaved unreasonably or reprehensibly. However, what is 27. It is the responsibility of the parties to bring to the clear is that the courts are prepared to take a hardy view in attention of the court any material departure from case finding that a party's behaviour has been unreasonable or management directions jeopardising the timetable for the reprehensible. The decisions in Re X, Y, Z and Kent CC child set by the court. provide a stark reminder to local authorities that ill thought case management and poor preparation will be penalised 28. Active case management includes encouraging the with cost orders. parties to cooperate with each other in the conduct of the proceedings.

29. It is the responsibility of the parties to speedily address and seek to remedy by agreement between themselves any difficulties that arise in compliance with case management directions, in such a way that the timetable for the child set by the court can be maintained and not jeopardised.

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Children: Public Law Update (July 2011) In A County Council v K, C and T [2011] EWHC 1672 the President was considering the role of Cafcass management when in disagreement with the view of the guardian.

The local authority had proposed that T be placed in foster care pending assessment of his parents' capacity to care for him. The parents and T's guardian opposed removal. The family proceedings court accepted that T should remain at home and an interim care order was made. When the social work team returned to their office after the hearing, their conversations about the case were overheard by an agency employee who was not involved in the case and who had formerly worked for Cafcass. She sent an anonymous email to Cafcass to the effect that G had "blocked" T's removal from the family home and that the interim care order was insufficient to protect him. After contacting G the next day, Cafcass informed the local authority that it had concerns about the case and G's conduct of it. It also notified the court John Tughan, Barrister, of 4 Paper Buildings reviews that G's recommendation was unsafe and that T should be recent developments in Public Law Children . removed from home. It requested that G be de-appointed. A court clerk terminated G's appointment without notice. In this update I will consider the recent decisions relating to The local authority requested the court to reconsider its decision to allow T to remain at home. • costs, • the role of Cafcass, In a review of whether T should remain at home, the • the naming of experts, President held that there was nothing unhealthy or wrong • the attendance of the child at hearings and about a disagreement between professionals in care • the issue of s91(14) orders. proceedings, but the crucial thing was that the process should be both transparent and fair. Cafcass as a body had Costs to monitor the quality of work undertaken by guardians. All care practitioners should be aware of the decision of the That was an important function and part of its general Court of Appeal in Re T [2010] EWCA Civ 1585. In that case structure, but it had to be balanced against a guardian's the Court of Appeal was considering the issue of the costs of independence and it did not mean that the guardian's views the intervening grandparents. They had been joined to the should be subservient. Where there was an irrevocable proceedings to defend themselves against allegations of disagreement between them, neither had the final say; it sexual, physical and emotional harm to the children. was for the court to determine. Following a five and a half week fact finding hearing and a re-mortgage of their home to pay for their representation, The proper course in that situation was for Cafcass to apply the grandparents were exonerated of all allegations. Wilson to intervene and for its views, together with those of the LJ, who has been involved in most of the costs cases over the guardian, to be placed before the court, each providing an years, gave the lead judgment of the Court and ordered that explanation why the other should not be preferred. In the the local authority should pay the costs of the intervenors. instant case, Cafcass had been complicit in the shocking The case of Re J (Costs of Fact-Finding) [2009] EWCA Civ 1350 failure to notify the parents of events and it had adopted a was relied upon by the Court of Appeal and is required decision-making role that was reserved for the court. reading for all practitioners. The President went on to conclude that where discussions There are a number of noteworthy issues thrown up by this about a live case took place outside of the court room, they decision. The first is that the Court of Appeal agreed that should be (a) rare; (b) strictly necessary for the proper the local authority had acted reasonably throughout the progress of the case; (c) minuted; and (d) disclosed to all proceedings. They had properly brought the case and the parties and be made available to the court if required. grandparents had properly been joined. Nevertheless they were held to be liable for costs. Note the apparent departure Naming of criticised expert from earlier authority such as Re T (Order for Costs) [2005] In a further recent decision which emphasises the need for 2 FLR 681. The second is that this decision is potentially transparency of procedure in care proceedings, in X, Y and very difficult for budget-holders within local authorities Z v A Local Authority [2011] EWHC 1157 the issue before who now appear to be liable for the costs of intervening the court related to the naming of an expert who had been parties. There is a potential for serious impact on other local criticised by the court. The local authority had originally authority services if costs are now in play in such relied upon the expert in a case of alleged induced illness circumstances. That said, the financial impact on the but had sought to withdraw the proceedings. The judge grandparents of the defence of the allegations was serious anonymised the expert. also. The President held that in this case the judge should not For more information concerning costs awards in Public have made the criticisms of the expert (M) that he had made. Law Children Act proceedings, see Cost Orders in Public It was not necessary for the judge to make specific findings Law Proceedings: A New Approach? By Harry Nosworthy. about M's report before giving the local authority permission to withdraw or on making an order for costs. Role of Guardian v Cafcass Secondly, it was elementary justice that M should be given

www.familylawweek.co.uk Family Law Week August 2011 - 43 the opportunity to debate his report and defend his work. The starting point for reaching the decision on such an issue It was also of the utmost importance that the family justice had to be an open evaluation of the consequences of his system should be as transparent as possible, consistent attendance or non-attendance in terms of his welfare and always with the need to protect the identities of the children the court's ability to manage the proceedings fairly. Each who were involved in it. Conducting the intense balancing case would depend on its own circumstances, but the exercise required, the President found that the balance came following factors would be relevant: down in favour of allowing the application to name the expert. However, simple identification of M's name did not (a) the child's age and level of understanding; meet the needs of the case. The nature of M's advice and the (b) the nature and strength of the child's wishes; terms in which it was given were still private. A proper (c) the child's emotional and psychological state; debate of the issues required disclosure of M's report, (d) the effect of influence from others; properly redacted so as to preserve the anonymity of the (e) the matters to be discussed; children and their parents was required. (f) the evidence to be given; (g) the child's behaviour; Attendance of child (h) practical and logistical considerations; and In giving guidance about the attendance of a child at a (i) the integrity of the proceedings. secure accommodation application, it could no longer be presumed that a child's attendance at court proceedings Section 91 (14) Orders about him was likely to be harmful, and nor should a child In a case involving the interplay between final decisions for have to prove that his attendance was in his interests. So children, special guardianship orders and the jurisdiction to held Mr Justice Peter Jackson in A City Council v T, J and K make orders pursuant to s91(14) Children Act 1989, the [2011] EWHC 1082. Court of Appeal in K v Sheffield City Council [2011] EWCA Civ 635 held that the case was not one of multiple The court was required to determine as a preliminary issue applications by the parents. However it was a case of whether a child (K) should attend the hearing of an protracted litigation which had been made considerably application by the local authority to keep her in secure more troubled by the way in which M and F had chosen to accommodation for three months. K was 13 years old and treat the case and the hearings that had taken place during was in the care of the local authority, a court having found the course of the proceedings so as to evade responsibility her to be at risk of physical, sexual and emotional harm for their actions and by what the judge found to be their from her parents. She did not accept the findings, had no lying and manipulation. A period of calm was an entirely wish to be in care and exhibited violent and volatile justifiable objective as D's welfare required that she should behaviour. She wanted to attend the court hearing and was be able to settle into her placement with G in the context of supported by her guardian. The local authority opposed the special guardianship order. The case was not a run of her attendance on the basis that it would create a risk of her the mill case but an unusual one and it was open to the absconding, refusing to return to the secure unit, or seeing judge to conclude that D's welfare required the imposition her parents outside arranged contact times. of a s.91(14) order.

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4. The President does not accept that, in the event of CASES disagreement, it is automatically the view of the manager which will prevail (despite the wording of the CAFCASS A County Council v K & Ors (By the Child's Reporting to Court Handbook" of May 2010). Guardian HT) [2011] EWHC 1672 (Fam) 5. CAFCASS as a body are entitled to monitor the quality of the work which guardians undertake but this has to be This was a case concerning care proceedings brought by A balanced against the independence of the guardian County Council (ACC) concerning TL. At the initial hearing appointed by the court. ACC sought an interim care order and the removal of the child. This was opposed by the parents and the children's 6. The proper course, in the event of an irreconcilable guardian. After discussion at court ACC modified their difference of view, is for CAFCASS to apply to intervene, position and agreed to TL staying at home under an interim and for there to be placed transparently before the court the supervision order. The guardian argued that there should views of the guardian and the views of the manager, each be an interim care order. The court agreed and the order was explaining why the other is not to be preferred. The court made. will then decide. It may decide to replace the guardian: it may not. But the decision will be that of the court – as it Upon their return to their open plan office, the social should always be. workers were overheard by an agency worker, X, talking about their concerns. X took it upon herself to email a senior Discussions between the local authority and CAFCASS manager in Cafcass urging her to look at the case. about "live" cases 7. Family law is multi-disciplinary and cooperative. It is Senior managers in ACC and CAFCASS spoke to each other inevitable and quite proper that officers of CAFCASS and and CAFCASS management then wrote to the court, but not members of the local authority will meet and discuss to the parents or their lawyers, informing them that the matters of mutual interest. The same applies to any recommendations of the guardian might be unsafe and that professional body engaged in family proceedings. the guardian had "agreed" to be de-appointed. The court However, that where the topic under discussion is a "live" appointed a new guardian and the matter was then listed case – that is a case before the court - such conversations for a further hearing at which the parents became aware for should be (a) rare; (b) strictly necessary for the proper the first time what was afoot. ACC subsequently decided progress of the case; (c) minuted; and (4) disclosed to all the not to challenge the placement of TL with the parents. other parties in the proceedings and available, if required, to the court. In his judgment, the President, who described the issues as both Important and difficult, said that it did not seem to him The "Transparency" of CAFCASS Reporting that CAFCASS obeyed its own rules, "It was not for 8. The President rejected the argument that there was an CAFCASS to replace the guardian: it was not for CAFCASS absence of transparency in the process by which CAFCASS to substitute its views for those of the guardian. The guardians place their recommendations before the court. guardian may have been right – she may have been wrong. The reasoning of the CAFCASS guardian, whether given It does not seem to me – although I have not, quite orally or in writing is always open to challenge in cross- deliberately, made findings of fact – that CAFCASS examination, which can always go to method. Added to followed a transparent procedure. Added to which, of which, of course, where the report is in writing, good course, it was complicit in the failure to notify the parents of practice requires the investigative and reasoning processes what was going on." to be set out.

The President stressed the independence of Children's Summary by Martin Downs, barrister, One Crown Office Guardians and the personal nature of their appointment as Row enshrined in section 41 of the Children Act 1989 and gave the following guidance: K (Children) [2011] EWCA Civ 793 Disputes between CAFCASS the body and the CAFCASS guardian appointed by the court under section 41 of the Act This is a decision of the Court of Appeal in an external What should occur in care proceedings when there is an relocation case where a father successfully overturned on irrevocable disagreement between CAFCASS the body and appeal an order permitting his former wife to relocate to the individual guardian appointed by the court under Canada with their two children. section 41 of the Act? The mother was Canadian, the father Polish. They met in 1. In the event of disagreement, the ultimate decision is not Toronto in 1992 and later moved to England. They married for CAFCASS nor for the guardian but for the court. in 2004 and had two daughters; I aged 4 years and A aged 18 months. They separated in July 2010. 2. The issues should be placed transparently and fairly before the court, and the court's decision on them invited. Both parents worked in the banking industry, although not full time. They shared the care of the children under a 3. There is nothing unhealthy or wrong about a shared residence order made in August 2010. The children disagreement between professionals in care proceedings. spent five nights (six days) with their father and nine nights There is frequently no unequivocally right answer in such with their mother in every fourteen day period. The mother cases. had the assistance of a nanny whilst at work whereas the

www.familylawweek.co.uk Family Law Week August 2011 - 45 father cared for the children unaided. In this respect the applicant husband was the biological father. The child was father's share of the care was not inferior to the mother's. placed with the applicant couple following his birth, firstly in India and subsequently in the United Kingdom. The The mother applied for permission to relocate to Canada couple issued their application on the 8th July 2010, with the children. She wanted to go home to enjoy the however the applicant husband died on the 19th December support of her parents following the breakdown of the 2010, prior to the making of the order. The matter came relationship with the father. The father objected due to his before Theis J, who was required to consider the issue of the commitment to the girls and the significance of the shared payments made to the surrogate mother pursuant to the care arrangement. CAFCASS had provided a report on the agreement and the effect of the death of one of the joint issue recommending that the mother's application be applicants. refused, although it was a "fine and difficult balance". Her Honour Judge Bevington granted the mother's application. Theis J held that the court had jurisdiction to deal with the application following the death of the applicant husband The father appealed on the basis that (i) the Judge rejected and then considered whether the requirements of s 54 the recommendations of the CAFCASS officer without HFEA 2008 were met. Section 54(4)(a), (5) and (8) required proper analysis or explanation, (ii) she directed herself by further scrutiny. reference to guidance for applications by primary carers (Dame Elizabeth Butler-Sloss at paragraph 85 of Payne), In relation to s 54 (4) (a) and (5), the crucial issue was rather than guidance in applications by a parent with a whether the word 'applicants' required both applicants to be shared care arrangement (Hedley J in Re Y [2004] 2 FLR 330) alive when the order was made. Counsel for the applicant and (iii) she referred only to the case raised by the mother wife and the applicant husband's estate submitted that the and did not remedy this defect even when it was raised by court should adopt a purposive approach so that s 54 (4) and counsel on behalf of the father. (5) were construed in a way that enabled the common intention of the applicants to be met and an order made The Court allowed the father's appeal. Their Lordships which was obviously in the best interests of the child, the agreed that the only principle to come from Payne was that child's welfare being the court's paramount consideration. the welfare of the child is paramount. The rest is guidance The court considered whether some guidance could be to be applied or distinguished depending on the obtained from cases decided under other legislation; it was circumstances. The judge should apply the statutory noted that an adoption order might be made in favour of checklist in section 1(3) of the Children Act 1989 in order to both applicants, despite separation and counsel for the child exercise his discretion. Thorpe LJ confirmed the approach suggested that the analysis used was applicable in cases set out in Re Y; that the guidance in Payne is only applicable such as the instant case. Both counsel submitted that the where the applicant is the primary carer. Where parents provisions of the Human Rights Act 1998 ("HRA 1998") share the burden of caring for the children in "more or less were relevant. Theis J specifically noted counsel for the equal proportions" the approach in Payne at paragraph 40 child's submissions that the court should read all primary should not be applied. The label "shared residence" is not and secondary legislation so as to give effect to the significant in itself. Black LJ reached the same conclusion as provisions of the HRA 1998 and that in seeking to interpret Thorpe LJ and Moore-Bick LJ, but by a different route legislation, the court should read down Article 3 of the HRA saying Re Y is not a different line of authority from Payne 1998 and adopt a construction that is compatible with and but "a decision within the framework of which Payne is also upholds convention rights. Further, that Article 8 of the part". Future cases should not become embroiled in United Nations Convention of the Rights of the Child arguments as to whether the amount of time a child spends ("UNCRC") required the State to protect a child's right to with each parent makes it "a Payne case" or "a Re Y" case. identity, which included legal recognition of the All the facts of the case must be considered. relationship between a child and his parents. Both counsel were of the same conclusion; no other order, or combination Summary by Andrea Watts, barrister, 1 King's Bench Walk of orders, would have the same transformative legal effect as a parental order.

A and A v P, P and B [2011] EWHC 1738 (Fam) Granting the order, Theis J held that the requirements were met for the following reasons: This case raises interesting issues about statutory interpretation and the use of the Human Rights Act 1998 to (1) For the reasons outlined above no other order or expand the concept of family life. Granting the order, Mrs combination of orders will recognise B's status with both Mr Justice Theis DBE relied on the United Nations Convention and Mrs A equally. of the Rights of the Child and concluded that in certain circumstances a child's right to identity could justify an (2) Article 8 is engaged and any interference with those interpretation which ensured a child's legal as well as rights must be proportionate and justified. factual relationship with both parents, living and deceased. (3) In the particular circumstances of this case the An application was made by a married couple for a parental interference cannot be justified as no other order can give order pursuant to section 54 of the Human Fertilisation and recognition to B's status with both Mr and Mrs A in the same Embryology Act 2008 ("HFEA 2008") in relation to a child, transformative way as a parental order. then just 3 months old. The child was born in India. The applicant couple had entered into a surrogacy agreement (4) To interpret s 54(4) (a) and 54(5) in the way submitted with a clinic in India. Whilst there was a degree of will not offend against the clear purpose or policy behind uncertainty as to whether the applicant wife was the requirements listed in s 54. It will not pave the way for biologically related to the child, it was accepted that the single commissioning parents to apply for a parental order

www.familylawweek.co.uk Family Law Week August 2011 - 46 or orders being made in favour of those under the age of 18 The claims for judicial review were dismissed. The court years. was in full agreement with the reasoning, analysis and conclusions of the decision of Charles J in R v CAFCASS and (5) Mr and Mrs A were lawfully entitled to apply for a further held that:- parental order when they made their application. I. Section 23 of the 2000 Act imposes on Cafcass various (6) Such an interpretation will protect the identity of B and obligations and duties as well as functions and powers; the family unit in accordance with Article 8 UNCRC. II. Section 12(1)(c) and 12(2) of the 2000 Act must be read (7) It is clearly in B's interests that a parental order is made and construed together; to secure his legal status with both Mr and Mrs A. III. The obligations and duties which arise under section (8) B's home was with Mr and Mrs A from the time of his 12(1)(c) and 12(2) are general duties and do not impose an birth up until the time of Mr A's death, thereafter he has individual or specific duty owed to individual children to remained in the care of Mrs A. But for Mr A's death B would allocate a guardian let alone a duty to do so within any have remained in the care of them both. particular timescale;

(9) Mrs A is now 36 years and Mr A would have been 34 IV. There is a general duty imposed on CAFCASS to ensure years. that children are represented, but that is not to say there is a specific duty to ensure that a particular child is represented; (paragraph 31) In relation to s 54 (8), Theis J was content to give V. There is an obligation to appoint a guardian 'as soon as retrospective approval to the payments made to the reasonably practicable' having regards to CAFCASS's surrogate, stating that the applicant couple had acted with general functions and duties under section 12, to its the utmost good faith and that the level of payment was not resources and to various competing demands upon it; such that could be said to have overborne the will of the surrogate mother and ultimately, that the child's welfare VI. The relevant parts of the CA 1989 and the 2000 Act are needs were met by the granting of the parental order. not incompatible with Art 6 or Art 8 of the ECHR.

On a general note, Theis J emphasised the importance for In conclusion, the court commented on the inadequacy of skilled legal advice in cases concerning overseas surrogacy resources available to CAFCASS to enable it to perform its agreements so that applicants are aware of the difficulties vitally important functions. that can arise in such cases and the need to ensure that the legal status of the child is secure. Summary by Matthew Stott, barrister, Field Court Chambers Summary by Georgina Rushworth, Pupil Barrister, Coram Chambers Brighton & Hove City Council v PM and others [2011] EWCA Civ 795 R (R,E,J and K) v CAFCASS [2011] EWHC 1774 (Admin) Appeal against a paragraph recorded in the preamble to an order made within care proceedings to the effect that based This case involved test actions by way of judicial review upon certain established facts a finding of fact hearing was proceedings relating to the duty of CAFCASS to provide not necessary. children's guardians within care proceedings under the Children Act 1989 ("CA 1989"). Claims were brought on The case concerned three children, S (aged 15), A (aged 12) behalf of the children in four test cases where very long and T (aged 3). An issue existed in the case as to the delays occurred before CAFCASS allocated the child a maternity of S. S had joined the family from Zimbabwe in guardian. June 2009 and at that point had told the local authority social worker, and subsequently also the Guardian, that the The Official Solicitor sought a declaration that CAFCASS mother of A and T, PM, was in fact her aunt. A direction had acted unlawfully and in breach of statutory duty by 'failing earlier been made for PM and S to give bodily samples for a to allocate a guardian until such time as s/he was not able DNA test, however, S subsequently withdrew her consent effectively to discharge his duties and responsibilities as to such a test. There had also been immigration proceedings guardian'. in which it had been determined that PM was S's mother, although it was common ground on appeal that the decision The matter came before Munby LJ and Thirlwall J who gave of the Immigration Judge was not binding on the Family a carefully considered judgment, containing an analysis of Judge. the relevant sections of the CA 1989, Family Proceedings Rules 1991, Family Procedure Rules 2010, Criminal Justice At first instance, PM had argued that the court should and Court Services Act 2000 ("the 2000 Act") and detailed decline to order a fact-finding into S's maternity on the basis examination of the decision of Charles J in R v Children and that the court was unlikely to reach a different conclusion Family Court Advisory and Support Service [2003] EWHC 235 from the Immigration Judge and that such an enquiry was (Admin), [2003] 1 FLR 953, a case which had considered not in S's interests. The family judge directed that a finding many of the issues raised in this judicial review. of fact was not necessary, but in doing so recorded S's comments as to her maternity and her refusal to participate in DNA testing.

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A (A Minor) [2011] EWHC 1764 (Fam) The Court of Appeal considered the law, particularly s21(3) of the FLRA 1969 which gives the court the power to order Application for reporting restrictions preventing the press the taking of samples from minors without their consent, or from publishing details of a family involved in care allows the court to draw inferences on the basis of refusal to proceedings in respect of a child, whose mother had been provide samples. Although the Court was not willing to arrested on suspicion of the murder of her two other draw an inference, which was a matter for the trial judge, children. the appeal was allowed on the basis that the existing preamble left the matter unresolved and was made on the A mother applied for a reporting restriction order mistaken basis that a finding would not be possible without precluding, amongst other things, the naming of various a the DNA test. Accordingly, the issue was remitted to the members of the family of A, her daughter, who was the trial court for determination, although a fact-finding subject of care proceedings. The representatives of the hearing per se would not be necessary or proportionate. media who opposed the application largely accepted that A's name should not be revealed but did not agree to a Summary by Stephen Jarmain, barrister, 1 Garden Court restriction on the naming of A's two brothers who had Family Law Chambers recently died or the mother, who had been arrested on suspicion of murdering them, or the maternal grandmother, at whose home one of the children had collapsed prior to his SH v HH [2011] EWCA Civ 796 death.

SH had resided with an uncle since the age of 20 days, when Following the death of the second brother, four months after the mother came to join the father in England, and had not the death of the first, A's mother was arrested, having been seen either parent since that time. in care of both children at the time of their deaths. The family had been previously known to social services and In August 2010 the mother left the father, moving to a refuge were on the child protection register. The mother was and alleging domestic violence. In January 2011 SH interviewed and released on police bail, and subsequently disappeared in mysterious circumstances, although the detained in a psychiatric unit because of concern that she mother suspected that the father had abducted him. The would harm herself. Despite being discharged from the mother therefore issued wardship proceedings and the unit, a psychological report disclosed that she was suffering child was warded; an order being made for the father to from a significant depressive disorder and was in a state of return the child to this jurisdiction. extreme grief. It expressed concerns that prolonged pressure from the media might put her at risk of self harm. At the return date the father took issue with jurisdiction on Prior to the final hearing of the application, the team the basis that SH had never been to England, and a hearing manager of a local learning disability team filed a report was listed to deal with the matter. The trial judge claimed giving details of recent events of self harm committed by the jurisdiction based on habitual residence, despite the fact that mother, said to have been precipitated by distress around SH had never been to England, on the basis that when SH media intrusion. was born, the father was a British national and the mother had a settled intention to live and become habitually Baker J considered the jurisdiction he had to grant a contra resident in England, and was now so habitually resident. A mundum injunction and noted that, since the finding was also made that the father had been responsible implementation of the Human Rights Act, the power to do for, and complicit in, SH's removal and the judge ordered so was no longer restricted to cases in respect of children but the father to return SH to the jurisdiction, which order was also available to protect the Convention rights of adults, backed by a penal notice. including on the basis of evidence of risk to mental health to protect an adult's rights under article 8 – respect for private On appeal, the father contended that the trial judge had not and family life. He noted the need also to protect the rights had jurisdiction, and that the hearing had been procedurally of the media to report information, and the need to conduct flawed. The mother conceded that there was no jurisdiction a balancing exercise. based on habitual residence, but argued that the court had jurisdiction based on prorogation and Article 12(3) of The judge considered the arguments on behalf of the Brussels II Revised. mother, grandmother and father of two of the children, that publication of such information might have the effect of The Court of Appeal dismissed the father's complaint as to narrowing the options for A's future care. He also procedural fairness, but allowed the appeal on the basis that considered the press' s representations including that i) the the court had no jurisdiction: SH was not, and never had relief sought would prevent the media from reporting the been habitually resident in England, nor had the father fact that an identified individual was being investigated in accepted prorogued jurisdiction or acquiesced or agreed to connection with a suspected crime, ii) that to be prevented the English court taking jurisdiction. from reporting anything about the mother or other family members would give a level of protection to the family Summary by Stephen Jarmain, barrister, 1 Garden Court rarely afforded, and iii) that reporting of police Family Law Chambers investigation into criminal matters not only informs the public, but assists the process of encouraging witnesses to come forward.

The judge concluded that the article 8 rights of all of the family members were engaged. He also concluded that it was in the public interest for there to be publicity about

www.familylawweek.co.uk Family Law Week August 2011 - 48 cases when children who are known to social services non-accidental injury merely from the absence of any other sustain significant harm since the performance of public understood mechanism. services was of fundamental public interest. In this case, Hedley J was able, on the evidence, to make a In respect of A, the judge determined that orders should be finding that the cause of the subdural haematomas was one made preventing her identification as being connected in of unknown etiology. any way to the facts of this case. In respect of A's mother and other family members, the judge considered that the public Regarding the leg fracture, the judge found that its cause interest in the investigation of the deaths of children and the was traumatic in origin and that it had occurred whilst he reporting of police investigations justified the media was in the care of his parents. Two possible accidental reporting such details, provided that they did not risk mechanisms were identified: firstly that the accident had identifying A. occurred whilst the child was in his baby-walker, and alternatively that it occurred as the child was taken out of Summary by Gillon Cameron, barrister, 14 Gray's Inn his baby-walker, apparently already in some distress. The Square alternative was that it had been inflicted by one of the parents deliberately following a momentary loss of control.

R (A Child) EWHC 1715 (fam) The expert evidence was that the 'accidental' explanations would be inherently improbable, such accidents being This judgment follows a fact-finding in which the court extremely rare. This may lead a court to conclude, on the sought to identify the cause of a number of subdural balance of probabilities, that the cause of the injury was haemorrhages and a femoral fracture that had been non-accidental. However, Hedley J identified further sustained by a young baby on separate occasions. features of the case that were relevant to his eventual conclusion. Firstly, the fact that no fracture showed up on Early in his judgment, Hedley J refers to a passage of Lord the X-ray raised the possibility that a number of minor Justice Moses in a recent criminal case, Henderson and fractures are missed. This raised the question as to whether Others [2010] EWCA Civ 1269 which also concerned the such fractures can be caused by appreciable forces, but those cause of injuries to a child: which are not outside what might happen without carers realising it is dangerous. Secondly, when no cause of the leg "There are few types of case which arouse greater anxiety injury had been identified, the parents had insisted on the and controversy than those in which it is alleged that a baby child being transferred to hospital in Newcastle, believing has died as a result of being shaken. It is of note that, when that the loss of leg function was caused by a blockage to the the Attorney General undertook a review of the 297 cases child's shunt which related to the earlier subdural over a 10-year period following the case of Cannings, 97 haemorrhages which would have been 'an extraordinary were cases of what is known as 'shaken baby syndrome' stance' for the parents to take if they knew the cause of the The controversy to which such cases give rise should come leg problem. Thirdly, the judge in this case formed an as no surprise. A young baby dies whilst under the sole care extremely favourable view of the evidence given by the of a parent or child-minder. That child can give no clue to father. clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct, as best they can, Hedley J rejected 'unknown cause' as an explanation for this what has happened. There remains a temptation to believe injury as much more is known about these types of injuries that it is always possible to identify the cause of injury to a than the type of subdural haematomas that the child had child. Where the prosecution is able, by advancing an array suffered earlier. However, taking all the evidence into of experts, to identify a non-accidental injury and the account, he concluded that the local authority had not defence can identify no alternative cause, it is tempting to proved that this injury had come about as a result of conclude that the prosecution has proved its case. Such a culpable conduct on the part of the parents. temptation must be resisted. In this, as in so many fields of Notwithstanding the inherent improbability, he concluded medicine, the evidence may be insufficient to exclude that the fracture had been caused accidentally. beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, Summary by Sally Gore, barrister, 14 Gray's Inn Square every possible known cause has been excluded, the cause may still remain unknown". S (A Child) [2011] EWCA Civ 812 Hedley J comments that the same temptation is ever present in family proceedings and that it should be as firmly Her Honour Judge Hughes had refused an application resisted as it must be resisted by the criminal courts. under s.38(6), Children Act 1989 for a viability assessment with a view to a residential assessment, on the basis of The evidence In this case showed three possible causes of evidence from a psychiatrist and psychologist that the the subdural haematomas: firstly, a perinatal event, mother had not sufficiently addressed her difficulties although there was nothing of note in this case to through psychotherapy to give her a realistic prospect of specifically point to this; secondly, a non-accidental, being able to provide good enough parenting to her child. inflicted head-injury; and thirdly a cause that is not known The mother appealed. The thrust of the appeal relied on or understood. Hedley J comments that a conclusion of observations of the Court of Appeal in Re L and H unknown etiology represents neither professional nor (Residential Assessment) [2007] EWCA Civ. 213 in which forensic failure; it simply recognises that there is much we the court had held that without a residential assessment, the do not know and that it is dangerous and wrong to infer outcome of the final hearing would be a foregone conclusion and that such an assessment was an important

www.familylawweek.co.uk Family Law Week August 2011 - 49 piece of evidence and an opportunity for the parents to demonstrate their parenting capacity, and on the case law During the costs judgment, Thorpe LJ highlighted the Part following Re L and H which the appellant mother argued 36 letter that had included a rider to the offer that were the showed an overriding principle that parents must be given offer to be accepted then the Wife would be liable for all of the opportunity to put forward a positive case to the judge the Husband's costs and stated that it therefore invalidated determining the issue of whether a final care order ought to the proposal to settle. In addition, Stanley Burnton LJ stated be made. that the lack of a schedule of costs disabled the court from properly considering quantum in any event and was a It was argued on behalf of the mother that, without an further reason why no order for costs should be made. opportunity of undertaking a residential assessment, the appellant would be in a position of contesting a final Summary by Richard Tambling, barrister, 1 Garden Court hearing in the application for a care order without an important piece of evidence, namely without having had the opportunity to demonstrate that, in spite of her history, N v N [2011] EWCA Civ 940 she had the capacity to parent her child. She therefore argued that the judge's refusal of the s.38(6) application Ancillary relief proceedings were compromised in early frustrated her right to a fair hearing. 2005 with, inter alia, an order that the husband was to pay to the wife, £1,000 per month for five years. The order left In dismissing the appeal, the President referred specifically the wife free to make an application for an extension or to paragraphs 3.1 to 3.9 of the Public Law Outline, reading increase to the order because there was no provision under these paragraphs into his judgment. In a judgment with section 28(1)(a) MCA1973 to preclude such an application. which Moore-Bick LJ and Black LJ agreed, he found that the judge had been alive to the principles and practice of The wife duly made an application and the District Judge effective and proper case management under the PLO. The made findings that the wife, inter alia, had made no serious judge had been right to accept the evidence of the attempts to update her skills and was unwilling to work. psychiatrist and psychologist that a residential assessment The District Judge found that while the husband's reasons would demonstrate how the mother functioned in a for absence from work were not contrived, she was critical residential placement but not how she would function in the of his disclosure and this had ratcheted up the costs of the community and that consequently, in this case, a residential proceedings and the level of the wife's mistrust. The judge assessment was pointless. She had applied her discretion ordered an extension to April 2012 but imposed a restriction correctly and in accordance with the PLO. under section 28(1)(a).

Having reviewed the relevant authorities, Black LJ On appeal to the Circuit Judge, the wife was successful and commented that in Re L and H, the court had not intended the term was extended further to 2015 and a joint lives to lay down general guidelines for the cases in which the nominal order imposed thereafter. The section 28(1)(a) court should and should not order a residential assessment. restriction was also set aside. The courts must apply the principles in Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489 The husband appealed, citing fundamental procedural and Re G (Interim Care Order: Residential Assessment) flaws by the Circuit Judge allowing the wife (representing [2005] UKHL 68 to the facts of the cases before them. The herself again) to testify as much as to make submissions and court in Re L and H had recognised that there would be then accepted her words as justifying findings inconsistent cases in which a further assessment would be a waste of with those that had been made by the District Judge and public funds. Black LJ rejected the submission that the thereby, on the basis of independent findings, proceeded to subsequent cases had focused on ensuring that parents conclude that he was entitled to exercise an independent should be given every reasonable opportunity of presenting discretion. The husband argued that the Circuit Judge a positive case; each of these cases had been decided on their should have had regard to the narrow margin that he specific facts. There is no right for a parent facing exercised in sitting in appellate judgment on the findings permanent removal of a child to have the assessment of and discretionary conclusions of another judge in the same their choice; rather, the relevant question is always whether court. the assessment in question would assist the judge in reaching the right conclusion at a final hearing. The Court of Appeal granted permission and allowed the appeal, with the order of the Circuit Judge being set aside Summary by Sally Gore, Barrister, 14 Gray's Inn Square and the District Judge's order being restored. Thorpe LJ held that the husband made good his criticism of the Circuit Judge because the judge had not sufficiently directed N v N (Costs) [2011] EWCA Civ 979 himself as to the limited nature of his function and had been swayed by the presentation of the appellant to accept her Following on from the Husband's successful appeal in N v view of her financial predicament and of her financial N, the Husband sought an order for costs. The Court of prospects which was plainly at variance with the very clear Appeal made no order. findings of the District Judge.

Thorpe LJ stated that while the Husband had been Summary by Richard Tambling, barrister, 1 Garden Court successful on appeal, looking at the order in the court below where he had failed and there was no order as to costs, taking into account their respective financial circumstances and the interests of the children, then the order would be no order as to costs.

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WM v CMEC [2011] UKUT 226 (AAC) required to support Mr M's overall lifestyle, and that it was just and equitable to direct a variation. Mr M, a non-resident parent to four children, appealed against decisions of the First-tier Tribunal as to the • There were no reasons in the present case why it would calculation of his child maintenance. not be fair to make a variation by reference to the whole cost of the higher lifestyle enjoyed by Mr M by reason of tax Mr M disclosed very low earnings (the highest being £58 per evasion (though no variation was permissible in respect of week). The FTT found that throughout the periods under periods when Mr M or his partner were in receipt of appeal, he ran and controlled businesses making a profit of working tax credit). £56,000 per annum, which was paid to him. For some of the periods, all or part of the businesses were carried on Income received from a company through the medium of companies. For parts, he disclosed • The position with regards to deductions for tax and NI payments to himself of a small amount of salary. from income received from a company differs from deductions from self-employed earnings. The FTT found that save in relation to some of those payments, Mr M did not pay tax or NI in respect of the • The Variation Regulations require effect to be given to the profits of businesses because they were not disclosed to variation in the maintenance calculation by increasing the HMRC. "net weekly income" of the non-resident parent.

The FTT decided that: • This must mean that where the non-resident parent pays no tax or NI in respect of the income received from the 1 In respect of periods when all or part of the businesses company, the whole of the income actually received by the were carried on by Mr M on a self-employed basis, his non-resident parent from or via the company (without earnings were to be calculated without deduction of tax or deduction of tax or NI) is taken into account for the NI because he did not pay any tax or NI on those earnings. purposes of the variation.

2 In respect of periods when all or part of the businesses • If the company deducts tax at source, only the net amount were carried on through the medium of a company: received will be included for the purposes of the variation. If the income is paid gross but the non-resident parent does a. His earnings as an employed earner were to be assessed in fact pay tax, the decision-maker can give the non-resident on the amount disclosed by way of earnings; parent credit for the tax under the variation by deciding that it is only just and equitable to direct a variation in respect of b. He was to be treated as having received by way of the net amount. additional income from the relevant company sums of £56,000 per annum less the disclosed earnings as an Summary by Victoria Flowers, Barrister, Field Court employed earner and the sums found to have been earned Chambers as a self-employed earner above; c. There should be a variation under reg 19(1A) of the Schalk and Kopf v Austria (App 301414-04) Variation Regulations in respect of the amount of additional income under (b) (ie again without deduction of tax and NI), On 3rd June 2010 the European Court considered for the save in respect of periods when he was in receipt of working first time the issue of whether two people of the same sex tax credit. can claim to have a right to marry. The facts of the case were that two men applied in 2002 to the Austrian authorities to Mr M obtained permission to appeal on the ground that the be permitted to marry. According to Austrian law a FTT had erred in law in not deducting the amount of tax and marriage concluded between two people of the same sex NI which would have been due on the profit of the business, was null and void. At that time there was no provision in had he disclosed that profit to the HMRC. Austrian law for registering a civil partnership. The Austrian Constitutional Court rejected the applicants' Upper Tribunal Judge Charles Turnbull held that: complaint that the legal impossibility of two persons marrying under Austrian law violated their right to respect Self-employed earnings for private and family life and the principle of non- • There is no escape from the conclusion that the MCSC discrimination. An application was then made to the Regulations require self-employed earnings to be calculated European Court against the Republic of Austria, into which after deduction of income tax and NI, regardless of whether the United Kingdom government and the European Region they were (or were ever intended to be) paid by the non- of the International Lesbian and Gay Association, amongst resident parent. others, intervened. During the course of the proceedings the Austrian Registered Partnerships Act came into force. • However, where income tax and NI have not in fact been paid, the result directed by the FTT could be achieved by The European Court held: way of a variation. (i) Whilst Article 12 of the European convention gives men • The FTT would have found (had it considered it) that a and women a right to marry, the court no longer considered calculation of self-employed earnings which involved that the right to marry enshrined in Article 12 must in all deducting income tax and NI leads to a maintenance circumstances be limited to marriage between two people of calculation substantially lower than the level of income different sex.

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(ii) There is no European consensus regarding same-sex (iv) Whilst historically the court had left open the question marriage. Only 6 out of the 47 Council of Europe Member of whether a right to family life (as opposed to simply States granted same sex marriages at that time. This is an private life) existed between same-sex couples, the court area of evolving rights and the decision whether to offer now considered it artificial to maintain the view that a marriage to same-sex couples remains a matter for the same-sex couples cannot enjoy 'family life' for the purposes national laws of contracting member states within the of Article 8. 'margin of appreciation'. There is no breach of Article 12 where marriage is available to two people of the opposite Summary by Marisa Allman, Barrister, Zenith Chambers sex but not two people of the same sex.

(iii) Where a Member State chooses to provide same-sex couples with an alternative to marriage such as a registered partnership, the Member State is not obliged to confer a status on same-sex couples which corresponds to marriage in each and every respect. There is a certain margin of appreciation as to the exact status conferred by the alternative means of recognition.

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