Family Law Week May 2010 - 1 May 2010

News 1 awards which celebrate the contribution Analysis NEWS of the work done by solicitors, barristers, The Value of Independent 10 legal executives, and other advisers Social Work Expert Witnesses working in the publicly-funded sector. in Contested Care Proceedings ord Justice Wall appointed The awards are organised by the Legal Ancillary Relief Update – March 12 President of the Family Aid Practitioners Group. As in past 2010 Division years, there is an award category specific to family lawyers. Children: Private Law Update 16 (April 2010) The Queen has approved the appoint- ment of Sir Nicholas Wall as President of Nomination forms can be downloaded Radmacher - Where Now? 20 the Family Division with effect from 13 from the LAPG website. Changing Residence – A 24 April 2010 following the retirement of Sir Judgment of Solomon Mark Potter on 5 April 2010. Mr Justice Bennett retires Cases from and Nicholas Mostyn Under the Constitutional Reform Act Vaughan v Vaughan [2010] 27 joins the High Court bench EWCA Civ 349 2005 a selection panel of the Judicial Ap- Miller Smith v Miller Smith (No pointments Commission submits a re- 2) [2009] EWHC 3623 (Fam) port to the Justice Secretary stating who On 20 April Mr Justice Bennett will retire Hewett v First Plus Financial Group [2010] EWCA Civ 312 has been selected for the position. The after 15 years service as a High Court Secretary may accept or reject the selec- judge of the Family Division. Nicholas G v E, A Local Authority & F 28 tion, or ask the panel to reconsider its Mostyn QC of 1 Hare Court has been [2010] EWHC 621 (Fam) appointed a judge of the High Court and Holliday v Musa [2010] EWCA choice. It had been reported that the Jus- Civ 335 tice Secretary, Jack Straw, had originally allocated to the Family Division. S (A Child) [2010] EWCA Civ 325 challenged the recommendation of Sir Nicholas by the selection panel of the Mr. Justice Bennett, 66, was called to the B (Children) [2010] EWCA Civ 29 Judicial Appointments Commission. On Bar by the Inner Temple in 1966 and took 324 Silk in 1988. He was appointed a Record- I (A Child) [2010] EWCA Civ 319 reconsideration, the selection panel con- R (Kang) v Cafcass [2010] firmed their recommendation of Sir Ni- er in 1987 and a judge of the Family Divi- EWCA Civ 317 cholas. sion of the High Court in 1995. W (A Child) [2010] EWCA Civ 30 321 Sir Nicholas, 65, was called to the Bar at Mr. Mostyn was called to the Bar by the Edwards v Edwards [2010] Middle Temple in 1980 and took Silk in EWHC 652 (Ch) Grays Inn in 1969, made a Bencher in A v Independent News & Media 1993 and took Silk in 1988. He was ap- 1997. He was appointed a Recorder in [2010] EWCA Civ 343 pointed as an Assistant Recorder in 1988 2000 and has sat as a deputy High Court B (Children) [2010] EWCA Civ 363 and as a Recorder in 1990. He was ap- Judge. He has been involved in most of pointed to the Family Division of the the landmark cases in the field of CMEC v Mitchell [2010] EWCA 31 High Court in 1993 and was a Judge of matrimonial finance in recent years Civ 333 including White v White, Miller v Miller EH v Greenwich [2010] EWCA the Employment Appeal Tribunal from Civ 344 2001 to 2003 and a Judge of the Adminis- and Radmacher v Granatino (in which the judgment of the Supreme Court is F (A Child) [2010] EWCA Civ 32 trative Court from 2003 to 2004. Sir Ni- 375 cholas was appointed to the Court of awaited) and is regarded as one of the R(O) v East Riding of Yorkshire Appeal in 2004. leading family lawyers of his generation. County Council [2010] EWHC 489 (Admin) Amin v Amin [2010] EWHC 827 Legal Aid Lawyer of the Year - President’s Interim Guidance (Ch) CJ v Flintshire CC [2010] EWCA nominations close 12 April renewed Civ 393 The deadline for nominations for the Le- gal Aid Lawyer of the Year is next Mon- As widely predicted, Sir Mark Potter, the M (Children) [2009] EWCA Civ 33 retiring President of the Family Division, 1573 day, 12 April 2010. The awards will be M (Children) [2010] EWCA Civ presented at a ceremony in London on has extended for another six months the 67 Wednesday 26 May 2010. Interim Guidance in respect of Cafcass's functions. ITW v Z and M [2009] EWHC 34 2525 (Fam) This is the eighth year of the LALY D v D [2010] EWHC 138 (Fam) H (A Child) [2010] EWCA Civ 448 GENERAL EDITOR Family Law Week is published by S (Children) [2010] EWCA Civ 35 Stephen Wildblood QC 447 Law Week Limited S (Minors) [2010] EWCA Civ Greengate House 421 Deputy Editor 87 Pickwick Road A, H, C and W (children) [2009] Claire Wills-Goldingham Corsham EWCA Civ 1577 Albion Chambers SN13 9BY Legislation 36 Tel & Fax: 0870 145 3935 CPD Questions 38

www.familylawweek.co.uk Family Law Week May 2010 - 2

The aim of the guidance, originally is- Mrs Vaughan wins in Court of appropriate forum in which to debate sued in July 2009, was to put in place Appeal matters of complex medical disagree- measures which would address the ment. Instead we publish the following backlog in the allocation and reporting letter by Dr Squier. Family Law Week As widely reported in the national of children's guardians while prevent- itself does not hold a view on matters of press, Philippa Vaughan has won her ing backlogs arising in respect of new medical expertise, and so the views ex- appeal against the High Court decision work in a planned and time limited pressed are those of Dr Squier. to terminate a periodical payments or- way. It was intended to be a temporary der, originally made in 1989. solution to help in an emergency situa- Department of Neuropathology tion. The guidance was to cease to have Level One West Wing The couple had married in 1967 and effect on the 31st March 2010 at which John Radcliffe Hospital separated in 1981, with no children. point it was expected that the backlog Oxford OX2 6QY They divorced in 1985 allowing the would have been substantially re- husband to remarry. He is now 71 and duced. April 9th 2010 she is 66. The husband had pursued a distinguished career at the Bar but ill In early February, the President wrote Dear Sir, health had meant that the practice had to organisations with an interest in the In February 2010 Family Law Week dwindled. The wife lived alone in a operation of the Interim Guidance, to published a review by Mr Tughan of home worth £1.1m while the husband advise them that it seemed likely that the judgment of Mrs Justice King in Re lived in a home with his second wife renewal of the Guidance would be nec- S [2009] EWHC 2115, (Family Law worth £4.3m. The wife had also inherit- essary for a minimum of six months Week: February 2010). I appreciate the ed wealth since the separation. In pro- and to ask for comments. Some, includ- opportunity to respond. ceedings in 1989, the husband was ing Cafcass, thought that if real ordered to pay £27,000 per annum in progress were to be seen in the face of The remarks of Dr Al-Sarraj cited in the periodical payments (he had been the level of cases brought, twelve article are both inaccurate and unrepre- making similar payments prior to months was appropriate. However, the sentative. those proceedings under a separation President was prepared to renew for deed). The wife had received some only six months. I do not believe that hypoxia alone valuable assets under that deed. These causes subdural bleeding as I have proceedings started when the husband The President has explained that he pointed out on many occasions, both in sought discharge of the periodical pay- and the judiciary generally have, reports for the Court and in my aca- ments order and the wife cross-applied through the medium of the interim demic publications; it's a bit more com- for a capitalised lump sum. In the High guidance and local agreements made plicated than that. This was put to me Court, the Deputy Judge had dis- under it, and by maintaining close con- in the course of the trial; my response charged the order on the grounds that tact and co-operation with local Caf- was that I have never stated this and do the wife could adjust without undue cass managers, done all that they can not believe this. hardship, given that her own capital consistently with the welfare provi- and possessions could be amortised to sions of the Children Act to assist Caf- These issues are far too serious to be produce income. cass with its problems. The matters of faith; medical opinion must performance of the non-judicial agen- be based not on belief, but on empirical In this judgment Wilson LJ noted that cies involved is now a matter for Gov- observation and peer-reviewed, objec- the case raises issues about the proper ernment which must assume tive, scientific evidence. treatment of hypothetical claims for the responsibility and take an inter-depart- second wife. He concluded that in the mental lead in urgently pursuing a so- It is a matter of objective evidence that High Court the judge had, in assessing lution to these problems. Sir Mark has the blood vessels of the infant dura are the husband's income, wrongly given written to the Ministry of Justice set- immature and far more extensive than priority to the claims of the second wife. ting out what he considers to be re- in later life. quired. He therefore allowed the appeal and It is a matter of objective evidence that ordered that a sum of £215,000 be paid Changes to the Interim Guidance have bleeding into the young infant dura is in lieu of periodical payments to pro- been kept to a minimum. They fall common. vide an income of £46,000 per annum. broadly into three categories: (i) neces- sary alterations to the dates consequent It is a matter of objective evidence that on renewal; (ii) changes consequent on ‘Shaken Baby Syndrome’ – a sick, hypoxic ventilated infants may recent developments, such as the issue response by Dr Waney Squier develop impaired blood clotting. This of the Revised Private Law Programme predisposes to, or exacerbates, bleed- Practice Direction and the introduction On 25 February 2010, Family Law ing. from 6th April 2010 of a new applica- Week published an article by John tion form for section 31 Children Act Tughan which referred to the judg- Only by considering the entirety of the 1989 applications and (iii) certain ment in Re S [2009] EWHC 2115. We evidence and the highly complex phys- changes in recognition of possible local have received a letter from Dr Waney iopathology specific to the young in- management difficulties resulting from Squier, who is mentioned in the article fant brain and its blood supply can a the wording of the original Guidance. and judgment. valid opinion be reached.

Dr Squier has offered to write an article Central to so many of these cases, and on this subject. The editors of Family so frequently trivialised, is a prolonged Law Week do not consider that it is an period of hypoxia with subsequent re-

www.familylawweek.co.uk Family Law Week May 2010 - 3 suscitation and brain swelling. It is graphic or pathological findings"(4). It these features which set babies with the is inconsistent with the anatomy of the (2) Moler FW, Meert K, Donaldson AE, "triad" (of retinal and subdural bleed- infant head and, despite an estimated Nadkarni V, Brilli RJ, Dalton HJ, et al. ing and encephalopathy) apart from 70,000 cases diagnosed in the UK and In-hospital versus out-of-hospital pedi- cot deaths. A study presented last USA, has never been independently atric cardiac arrest: a multicenter co- month to the American Academy of witnessed to cause the collapse of a hort study. Crit Care Med 2009 Forensic Science indicates that these previously well baby. The mainstay of Jul;37(7):2259-67. are the critical factors associated with the hypothesis is confession evidence retinal haemorrhage (1). The same (5). (3) Royal College of Pathologists. Re- study has not been undertaken with port of a Meeting on the Pathology of respect to subdural bleeding, although If not shaking, then impact must be Traumatic Head Injury in Children. multicentre studies, comparing in-hos- considered. If there is no evidence of 2009. pital with out-of-hospital cardiac ar- impact or violence (autopsy means see- rest, have confirmed the devastating ing for oneself), then this consideration (4) Duhaime AC, ennarelli TA, Sutton effects on the brain of prolonged col- must be ranked, pragmatically, with all LE, Schutt L. The "Shaken Baby Syn- lapse followed by resuscitation (2). the other potential causes of collapse drome" : a misnomer? J Paediatric Neu- and according to the facts of the specif- rosciences 1988;4(2):77-86. I also challenge the statement that I am ic case. the only one of 40-44 neuropathologists (5) Christian CW, Block R. Abusive in this country who holds this belief. Any attempt by the courts to simplify head trauma in infants and children. Not only, as noted above, do I not hold these issues will lead to misunder- Pediatrics 2009 May;123(5):1409-11. this belief, but the statistic is mislead- standing. The difficulties of presenting ing. To my knowledge, there are only 5 scientific evidence in the courts have (6) Tuerckheimer D. Criminal Justice at neuropathologists who regularly be- been discussed by Tuerckheimer (6), a Crossroads: Science-Dependent Pros- come involved with the study of infant who stresses "the tensions which thrive ecution and the Problem of Epistemic brains in the forensic setting; this is where science and criminal justice Contingency. Alabama Law Review 62. reflected in their attendance at a meet- meet" and specifically that ""Because it 2010. 1-8-2010. ing at the College of Pathologists in is fully constructed by and dependent December 2009 (3). Among these 5 only on medical expertise, Shaken Baby Ref Type: Journal (Full) two of us devote a significant part of Syndrome (SBS) raises in stark form the our daily diagnostic practice to the problems that arise when science out- NSPCC calls for reform of child abuse study of brains of infants dying from paces law..." inquiries the whole spectrum of natural diseases. This has been my majority practice for Progress has been made over the past Radio 4 programme analyses 30 years. The others have no such daily decade. Today, as Mr. Tughan correct- the conduct of serious case experience. It was clear from the meet- ly observes, the "triad" is no longer ing at the College that there is consider- accepted as diagnostic of non-acciden- reviews able divergence of opinion and that I tal injury but is instead viewed "as a am by no means alone in my views. mere hypothesis." Mrs. Justice King is In The Report, broadcast last week on The other 35 or so neuropathologists equally correct in recognising that we BBC Radio 4, Wes Cuell, director of have not to my knowledge been can- do not yet know the full range of natu- children and family services at the vassed, nor would they have sufficient ral and accidental causes for the triad. NSPCC, called for major reform of the experience of paediatric brain injury system for producing serious case re- and the rapidly evolving literature to Meanwhile, I will continue to strive to views. form an objective opinion. "[t]hrow light into corners that were . . . dark." Serious case reviews, carried out when- I am accused of clinging to a hypothe- ever there is a death or serious injury of sis; on the contrary my views, shared If lawyers are unwilling to question a child and abuse or neglect is known by hundreds around the world, contin- opinion that is validated only by repe- or suspected to be a factor, are conduct- ue to evolve. They are based on the tition, or to delve beneath the legal ed by Local Safeguarding Children incontrovertible evidence provided by issues and explore the science, there Boards in order that lessons can be the tissue I see daily on the microscope will be miscarriages of justice. And learned. The NSPCC has said that the slides and informed by research and slings and arrows will continue to be SCRs are too costly, too slow and may critical examination of the scientific lit- directed at the messengers. not work. erature. What is staggering is that "mainstream medical opinion" has re- Yours faithfully 'Too often,' the NSPCC says, 'these re- mained just that, opinion; supported views do not say simply and clearly not by evidence but by forty years of Dr Waney Squier what went wrong. The NSPCC believes repetition. they must focus on the key moments Consultant Neuropathologist where agencies could have done more Shaking as a cause of subdural bleed- to help the child, where they missed ing has not been supported by biome- Reference List opportunities, or made mistakes. In chanical research; as long ago as 1988 particular, they should reveal whether Duhaime wrote ""shaken baby syn- (1) Matshes E. Retinal and Optic Nerve professionals saw and spoke to chil- drome" is a misnomer, implying a Sheath Hemorrhages are not Pathog- dren alone and whether they waited mechanism of injury which does not nomonic of Abusive Head Injury. 10 too long before acting to protect a child.' account mechanically for the radio- A.D. Feb 24; 2010.

www.familylawweek.co.uk Family Law Week May 2010 - 4

'Boards are now required to report Black J decided to exercise her back on how agencies are acting on the Baroness Deech calls for pre- discretion not to order the return of the recommendations of serious case re- marital assets to be excluded older children and by association the views. This is the vital step. A serious from divorce settlements youngest child as well, who had not case review should be judged not on been of an age to voice her views but how well it is written but what it is who would be exposed to possible The Times today reports Baroness changing for children.' psychological harm if split from the Deech, the chairwoman of the Bar sibling group. The responsibility for evaluating seri- Standards Board, as saying that Eng- land and Wales should adopt Europe- ous case reviews was transferred to Mr Devereux told the court that the an-style divorce laws under which only Ofsted from the Commission for Social children, who are now living in those assets acquired during the course Care Inspection in April 2007. Since England, had been taken away in a of the marriage should be subject to then, Ofsted has published the out- "clandestine" and "well planned disposal as part of the divorce. comes of evaluations on a quarterly removal". basis. She is quoted as saying, "We have got However, the court heard that the to change to a system where people can New law extending media Cafcass officer who interviewed the work out without going to court what two older children had reported that, access to the family courts each side is going to get." receives Royal Assent when she told them they might be ordered back to Ireland, the boy Dominic Grieve, the shadow justice "became very fidgety" and his little Despite the removal of substantial secretary, said he would examine sister started to cry. parts of the Children Schools and Fam- Deech's proposals as part of a review of ilies Bill in the 'wash up' of legislative family law if the Conservatives win the The children were judged to have business prior to the dissolution of Par- general election. "attained an age and level of maturity" liament, those clauses opening up the to be consulted. family courts to the media have been Appeal of Hague Convention retained. case in which 5 year old Lord Justice Wilson and Lord Justice Sedley refused to grant the father The reduced bill has now received Roy- child’s views were canvassed permission to appeal. al Assent and Part 2, which contains is rejected the provisions relating to family pro- ceedings, will come into force on a date The appeal in W v W, a Hague More unqualified lawyers to be appointed. Convention case in which the father conducting care proceedings sought the return of his three children for local authorities Part 2 continues the process of opening to the Republic of Ireland and in which up the family courts by broadening the the views of the two older siblings, 8 The Law Society Gazette last week amount of information which can be and 5, were canvassed, has been reported that a shortage of child care reported by accredited media repre- rejected by Court of Appeal. A written solicitors has led to a rise in the use of sentatives who attend proceedings. judgment will be released in due unqualified paralegal staff to present This will be done through a staged course. cases on behalf of local authorities. process, and subject to an independent Since there are more vacancies within review following the introduction of Edward Devereux, representing the local authorities than candidates for the first stage. father, told the Court of Appeal that them, authorities, facing Mrs Justice Black's decision to consult unprecedented levels of casework in The Children's Commissioner for Eng- the girl, 5, had been "radical" and the wake of the Baby Peter case, are land has raised concerns about the leg- "unique". He said that five was "the exercising their powers under Part XI islation in response to research into the youngest age in the reported of the Local Government Act 1972 to views of children, conducted by Dr jurisprudence at which a child has been use paralegal staff instead of solicitors. Julia Brophy of Oxford University. found to have attained an age and degree of maturity at which it is More details, and comments upon this The overwhelming view of children appropriate to take account of her development, can be found on the who took part in the research was that views." Gazette's website. reporters should not be allowed into the family courts because the hearings In the High Court Black J had Child protection register in address matters that are intensely pri- considered the House of Lords' Northern Ireland rises by 20% vate, embarrassing and humiliating. judgment in Re D which indicated to According to the research, children and her that she could take the children's in 2009 young people are extremely worried views into account. She also reviewed about being identified in the media and their evidence and the methodology of The number of children on the fear being bullied as a result. They do the Cafcass officer who spoke to the protection register in Northern Ireland not trust the press to get the facts right children, who determined that their rose by 20% in the 12 months to the end and feel strongly that articles would be maturity was commensurate with their of March in 2009. At that date there sensationalised. The children said that ages. She concluded that they were not were 2,488 children on the register, of their deeply personal details were the simply expressing a preference to whom half were boys and half girls. business of neither newspapers, nor remain in England but were fearful and the general public. anxious of any return. Accordingly Sixty per cent had been registered for less than a year. Neglect was the most

www.familylawweek.co.uk Family Law Week May 2010 - 5 common category of risk. Half were practice in care proceedings; decision to dismiss her from that post, assessed to be at such a risk. and (c) unduly adversarial. has failed.

During 2008/09, there were 28,440 ".....Indeed, I find it difficult to Mr Justice Foskett, before whom the referrals to children's social services. believe that in 2010, more than application was made in the High These referrals related to 22,532 18 years after the Court, gave judgment on the 23rd children. By 31st March 2009, 80% of implementation of the Children April. children referred to social services had Act, a local authority can been allocated for further action. behave in such a manner. Here The background to the case was the was a mother who needed and death of Peter Connolly in 2007. In At the end of March 2009, there were was asking for help to break November 2008, following the verdicts 2,463 looked after children in Northern free from an abusive in the criminal trial the previous day, Ireland, representing an increase of 1% relationship. She was denied Ed Balls, the Secretary of State for from 2008 (2,433). Of these 53% were that help abruptly and without Children, Schools and Families asked boys and 47% were girls. 46% were explanation. That, in my Ofsted (together with the Healthcare subject of a care order. judgment is very poor social Commission and Her Majesty's Chief work practice." Inspector of Constabulary) to produce The full details are available from the an urgent report into the child ONS. Hilton Dawson, Chief Executive of safeguarding arrangements within BASW, has responded: Haringey. The inspection took place Social workers express and the Secretary of State saw a final astonishment at Lord Justice "Generalising comments about draft of the report during the evening 'authoritarian' social workers is of 30 November. Wall’s criticisms just plain wrong. At a time when the profession is under In consequence of the report the The British Association of Social huge media pressure to protect Secretary of State issued a direction on Workers (BASW) has expressed children from abuse, comments 1 December appointing two other astonishment at comments made by like these are inappropriate – named individuals to be DCS and Lord Justice Wall who became the new they have a direct and Deputy DCS with immediate effect. At President of the Family Division last significant impact on social an internal hearing within Haringey on week. work morale, recruitment, 8 December 2008 the decision was retention and therefore on the taken by a Panel of councillors that Ms Those comments were made in the case people that social work serves." Shoesmith should be dismissed of EH v London Borough of Greenwich summarily with no compensation. The [2010] EWCA Civ 344, which was an BASW has written to Lord Justice Wall decision was confirmed on appeal. appeal by a mother against an order seeking a meeting with him in order to made by HHJ Hayward Smith QC in build strong professional relations as Ms Shoesmith challenged the October 2009. The judge had made a he begins this critically important job. lawfulness of the Ofsted report, the full care order in favour of Greenwich, directions of the Secretary of State and the local authority, and a placement Anne-Marie Hutchinson the decisions made by Haringey. She order in respect of her two children. named IBA’s Outstanding alleged that each process was flawed by breaches of the principles of natural Allowing the appeal and returning the International Woman Lawyer justice and that the procedures adopted case for re-hearing, Lord Justice Wall in each process were unfair. commented: The International Bar Association has announced that this year's IBA The judge emphasised that the case "What social workers do not Outstanding International Woman was not appear to understand is that the Lawyer is Anne-Marie Hutchinson • an inquiry into child protection public perception of their role in OBE of Dawson Cornwell. arrangements across the country care proceedings is not a happy generally, one. They are perceived by The announcement of the award and • an inquiry into child protection many as the arrogant and its presentation were made at the IBA arrangements in Haringey at the time enthusiastic removers of 4th World Women Lawyers' of Peter's death or at any other time, children from their parents into Conference in London on 15th April. It • an inquiry into the reasons and an unsatisfactory care system, was awarded in recognition of Anne- responsibilities for Peter's death or and as trampling on the rights Marie's professional excellence in her • a claim for compensation by the of parents and children in the field and her influence in encouraging Claimant. process. This case will do little other women to pursue legal careers. to dispel that perception." In the course of a lengthy judgment Sharon Shoesmith’s Foskett J rejected the suggestion that He went on to make severe criticisms application for judicial review the Ofsted inspection was targeted at of the local authority's conduct which fails the Claimant personally. In the struck him as: judgment he repeats on several occasions that suggestions of 'beefing "(a) entirely inimical to the The application of Sharon Shoesmith, the former Director of Children's up' or unfairly strengthening the ethos of the Children Act 1989; conclusions are outside his remit on a (b) wholly contrary to good Services at the London Borough of Haringey, for judicial review of the judicial review application.

www.familylawweek.co.uk Family Law Week May 2010 - 6 competence" of the Claimant and her and various national Having considered the evidence, he Deputy and since neither "had a full newspapers called for the concluded that Ofsted complied and fair opportunity to refute it" it was Claimant's summary dismissal generally with its obligation to carry unfair to have said it. Since the Ofsted was no proper justification for out a bona fide and open-minded report was not designed to deal with taking such an approach and it inspection except in respect of the the situation of individuals, a comment created the appearance of an important and sensitive finding that such as this should have been avoided. unfair process." there was a failure on the part of Haringey "to ensure full compliance A similar observation was made by the The concept of "accountability" was with some requirements of the Climbié Judge about the suggestion made that considered in the circumstances of this Inquiry recommendations". the Claimant was "not fit to hold an case. Could the Claimant, as Head of office". That went to her personal the CYPD, have been dismissed However, the Judge described as professional ability and competence summarily because she was "inept" the handling of the obligation of which was not something that had "accountable" for the failings of the candour by Ofsted in the proceedings. been the focus of the Ofsted inspection Department even if not personally at He was also concerned by the issue or report. fault for the existence of those failings? arising from Ofsted's instruction to This was one reason given for her delete e-mails and proposes to raise The Judge expressed the view that the dismissal and reflects something said these matters with The Treasury Secretary of State would have been by the Secretary of State at the Press Solicitor personally. "better advised not to have been Conference on 1 December 2008. persuaded to express a view at the With regard to the effect upon the press conference about whether [the The Judge observed that this matter Secretary of State's decision of a Claimant] should receive will be of interest and concern to petition run by The Sun newspaper, the compensation from her employers anyone thinking of taking on the role of judge commented: [because it] could be seen as seeking to DCS – or who is in the role or an put pressure upon the authority which, equivalent role in local government – "… I think it … far too simplistic as a public body, was obliged to and ventured the view that, whilst it is to say that he took the decision consider properly, fairly and with due a familiar concept in political terms, it that he did on 1 December regard to its own legal powers what it has difficulties in the employment law because of being presented with should do in what was almost certainly context. a petition from a national a complex legal position". The Judge newspaper a few days earlier." added this observation: In relation to the dismissal of the applications against the decisions of Whilst overall the Judge accepted that "His statutory role in relation to the Secretary of State and the Ofsted the necessary standard according to the Claimant and her Deputy report, he indicated that he had law was achieved by Ofsted and by the ended when he made the "reached those conclusions with a Secretary of State, he concluded that directions he did on 1 lurking sense of unease" partly because certain things that potentially impacted December. If newspapers or of the way in which the legal on the Claimant were stated publicly in other commentators wished to relationship between central circumstances that gave her no proper suggest what the outcome government and local government opportunity to refute them and were should have been, they were operates in this kind of situation. He thus "unfair". On the evidence entitled to do so. But the did not "think that any party will truly available to him, the Judge concluded Secretary of State should not look back at how matters were handled that these matters did not affect the have been seen to give support in this case with complete satisfaction." validity of the Secretary of State's to those views …." decision, but he expressed concern that Foskett J extended the time for all they were stated at the Press The appropriate venue, said the Judge, parties for making any consequential Conference at which the Secretary of for determining the issue of the fairness applications to him. He encouraged all State's decision was announced. or otherwise of the Claimant's parties to take time for mature summary dismissal by Haringey is the reflection on the implications of the The Secretary of State said at the Press Employment Tribunal. judgment and not to make any hasty Conference: decisions about what to do next. The Judge gave reasons for saying that "In their summary judgement, process adopted by Haringey was Commenting on the judgment, Marion the inspectors say that there [is] flawed and liable to be declared unfair, Davis, President of the Association of … insufficient management but summarised his view in this way: Directors of Children's Services, said: oversight of the Assistant Director of Children's Services "The overall impression gained "Directors of Children's Services by the Director of Children's of Haringey's approach across the country have Services and Chief Executive." (perhaps understandable given witnessed the increasing all the external pressures) was attention paid by central The Judge pointed out that no such that the sooner the Claimant government to the internal opinion appeared in the 'Summary was dismissed with no workings of local authority judgement' of the Ofsted report and compensation, the better, and children's services departments, drew the conclusion that the Secretary that everyone could "move on" which has at times bordered on of State's observation was based on once that had happened. micro-management. As in all something said to him by the Chief However, simply because the relationships between national Inspector and the Lead Inspector. The Ofsted report was in the terms it and local government, where Judge observed that since the comment was, and the Secretary of State national intervention is "went to [the] respective abilities and acted as he did and he, others required, the process, including www.familylawweek.co.uk Family Law Week May 2010 - 7 checks and balances, should be * The number of referrals, those that councils have not been able clear. We accept the need for contacts that are deemed likely to to keep pace with the dramatic rigorous scrutiny, but we also require further investigation, have rise in demand. demand that that scrutiny increased 16.5%; should be transparent, fair and * Section 47 enquiries, where "It is important to be clear that proportionate, with an equal professionals investigate concerns that these rises appear to have emphasis on promoting the best a child is suffering from or is at risk of begun before the so-called 'Baby practice as on tackling the significant harm, have increased by Peter effect', and we cannot worst. Locally led and 20.3%; attribute the additional activity rigorously inspected services * 32.9% more children were subject to in this area solely to a knee jerk can and do serve children and a child protection plan, under which reaction to this case. " young people well and must children thought to be at risk of harm have the freedom to do so." are supported in their own homes by a Marriage has no bearing on multi agency team, led and children's outcomes, says IFS Christine Gilbert, Her Majesty's Chief coordinated by a social worker; Inspector, welcomed the judgment: * Emergency protection orders and research interim care orders, in which children "I am pleased that the Judge's thought to be at immediate risk of According to research, carried out by conclusion is clear: Ofsted's significant harm are put under the care Alissa Goodman and Ellen Greaves of inspection process has been of the local authority, increased by 32% the Institute of Fiscal Studies, there are vindicated. and 38% respectively; no statistically significant differences in * 17.2% more children started to be the child outcomes between children of "Ofsted takes its role in looked after and there were 8% more married and cohabiting parents. inspecting the protection children were looked after at the end of arrangements for vulnerable December 2009; The research, funded by the Nuffield children very seriously. I am * The only activity to fall in the period Foundation, was based on the data of pleased, therefore, that the was the issuing of full care orders, 10,000 children around the country. Judge has found in our favour which fell by 8%. Although the study found differences in this judicial review. We between the development of children carried out a robust inspection, The research also asked councils to of married and non-married parents, it came to a sound conclusion identify increases in staff numbers, found that these were attributable to based on the evidence and acted vacancies and the use of agency staff in the differences in the sorts of parents fairly. social work duty rooms. Despite who decide to get married rather than increases of over 10% across managers, cohabit, not the experience of marriage "The inspection team did a social workers and assistant/ itself. professional and rigorous job administrative staff, half of councils and we are pleased that they had at least one manager or social Co-author Alissa Goodman have been vindicated through worker vacancy in the teams commented: the intense scrutiny of the court responsible for dealing with initial process." child protection contacts and "Our findings do indicate that assessments, while one in three had children who have married Child protection activities in vacancies of social worker assistants or parents compared to co- administrators. habiting parents have local authorities increase significantly improved faster than resources A second stage of data collection and outcomes. Their cognitive analysis will now be undertaken to development is more advanced Research undertaken for the estimate the financial impact of the and there is an even bigger gap Association of Directors of Children's increased activity and to identify in social and emotional Services, published last week, reveals trends in the profile of children and development." that social work tasks relating to young people coming to the attention identifying and investigating possible of children's social care services. But these differences are due to harm to children have risen by over married parents being more educated, 20% in the two years to the end of 2009. Marion Davis, incoming president of having a higher household income, a In contrast, the increase in staffing ADCS, commented on the findings: better job and stronger relationship levels has not kept pace with the rising during the child's early life, according demand – with only 10% more staff "These initial findings to the findings. The study suggests that dealing with the rise in numbers of powerfully express the it is these factors that lead to better children needing services. pressures that local authority outcomes for their children, therefore children's services departments questioning the causal evidence that The initial findings, based on responses are facing. It is vital that local links marriage to the improved from 105 local authorities (69%), authorities have sound and outcomes of children. revealed that between October- timely data on which to make December 2007 and the same quarter in crucial decisions about future "These differences in socio- 2009: funding priorities. It is clear economic status and from the 10% increase in relationship quality between * The number of initial contacts, in staffing that councils are aware married parents and co- which a child is first brought to the of increasing pressures and are habiting parents seem to attention of social workers by members taking steps to increase the account for the differences in of the public or professionals, has number of staff dealing with their children's development. increased by 24.6%; child protection concerns, but www.familylawweek.co.uk Family Law Week May 2010 - 8 "Our findings indicate that even Court of Appeal approves guilty of serious professional if more couples decide to get extradition in long-running misconduct and directed that his name married because of a financial be erased from the register of medical incentive that would probably child abduction case practitioners. have very little difference on children's outcomes," she Elizabeth Prosser’s battle against The Court of Appeal proceedings added. extradition ends in failure centred upon the most serious adverse findings (there were other finding How effective are UK civil The Court of Appeal has rejected an which have not been contested by Dr appeal by Elizabeth Prosser in judicial partnerships in Spain? Southall). A mother (Mrs M) had review proceedings in which she alleged that, at an interview on 27th claimed that the Secretary of State was April 1998, Dr Southall had accused An increasing number of British same- wrong to order her extradition to the her of drugging and murdering her 10 sex couples are finding that their civil United States on charges including year old son, who had died by hanging partnership may be ineffective in Spain abduction of her daughter. The nearly two years earlier. Dr Southall for the purposes of inheritance tax and warrant of arrest was issued as long admitted that he had probed the welfare benefits. ago as 1998. circumstances of her son's death and accepted that Mrs M might have That is the message of an article written Mrs Prosser had argued that she perceived that he was accusing her of by Link Point Legal and Business suffers from such a combination of murder, but he maintained that he did Services for Round Town News, an physical and psychiatric illnesses that not, in fact, do so. He was supported by English language news service in extradition would compromise her the evidence of the social worker who Spain. It says that many British same rights under Articles 3 and 8 of the was in the case and present at the sex couples have been drawn to the European Convention on Human interview. Having heard evidence Spanish Costas after the Spanish Rights so that it would be unjust and from each of these witnesses (and Government appeared to recognise oppressive to extradite her. others to whom Mrs M spoke in the British civil partnerships in an Nota days that followed), recollecting with Verbale issued by the Spanish Ministry Her extradition is sought for offences the aid of notes conversations over 8 of Foreign Affairs in 2007. alleged to have been committed in USA years earlier, the panel accepted the Unfortunately such couples are now in 1997 and 1998. She is charged with evidence of Mrs M and, although not finding that their relationship status in the unlawful abduction of her explicitly stated, effectively rejected Spanish law is less certain than they daughter in contravention of a child that of Dr Southall and the social had been encouraged to believe. custody order in favour of the worker. daughter's father. She accepts that she The article states that whilst there is did unlawfully abduct her daughter in The Court of Appeal was asked to doubt as to the recognition of the civil 1998. She claims to have done this consider whether the panel partnership by the Spanish authorities, because she believed that she was approached the determination of this it is not possible for civil partners to about to be arrested for lack of question in the right way and whether enter an Union de Hecho (a common necessary immigration status enabling it was entitled to reach the conclusion law union available to same-sex her to work, and that she would then that it did based upon the reasons that couples)in Spain as they would need a be deported without her young it gave. certificate of no impediment to marry daughter. The daughter, Tamara, is from the British Consulate. The now aged 18 and lives in the United Dr Southall argued that lying beneath Consulate would have to refuse to States with her father; both are the surface of these issues was a far issue this certificate on the grounds reconciled with Mrs Prosser. Mrs more serious question which touches that they were already civil partners. Prosser is also wanted on fraud charges upon the approach which For the same reason, it is also not which she denies. paediatricians and other professionals possible to obtain a certificate of civil are required to or should adopt in status to the effect that they are single The Court decided that whilst there relation to investigations as to whether and free to marry. was a risk that Mrs Prosser might children are being or have been commit suicide, the risk fell abused. On the one hand, in this case, An example is given of the difficulties significantly short of the Article 3 what was found to be inappropriate, that might arise. A married couple, or threshold. With regard to Article 8, the accusatorial, intimidating questions couple in a Union de Hecho might have Court determined that the case did not which the panel concluded abused the a generous exemption from Spanish have such striking and unusual doctor's professional position and Inheritance Tax. This would not be features as to conclude that it would be added to the distress of a bereaved available to British civil partners, disproportionate to interfere with her person led to the erasure of the doctor. despite the reported terms of the Nota Article 8 rights. On the other, public criticism of the Verbale of 2007. In the event of the failure of professionals to identify death of one resident civil partner, the Dr David Southall wins in abusive relationships and then take survivor would be regarded as appropriate steps to protect children unmarried and treated as an unrelated appeal against GMC (evidenced contemporaneously in stranger and consequently subject to relation to Baby Peter whose parent the highest rates of Inheritance Tax. The paediatrician Dr David Southall has won an appeal from a High Court was convicted of permitting the harm judgment which had dismissed in its and death of her child) has led to the entirety an appeal brought by him concern that, in connection with child from a decision of the Fitness to protection issues, a paediatrician will Practice Panel of the General Medical be "damned if he does and damned if Council ("the panel"). The panel had in he doesn't"; that argument, he said, is December 2007 found Dr Southall www.familylawweek.co.uk Family Law Week May 2010 - 9 supported by statements from later arises: such a step would The scam works as follows. An enquiry prominent paediatricians. provide protection for the is received from a prospective client paediatrician and any other seeking to pursue a substantial sum The Court found that the GMC had professional involved and also owing under a collaborative law failed to give adequate reasons over protection for the person being agreement. The agreement may be claims that Dr Southall had made interviewed. Although it is not attached to the email. In the cases of unjustified allegations about Mrs M. a matter for me, as with taped which we are aware the emailers have police interviews, I perceive purported to be based in the Far East. Allowing the appeal, Lord Justice only advantage to all and no Each claimed that their spouse, who Leveson said: disadvantage to anyone." was said to be in England with English assets, had failed to pay the balance (a "... I must make it clear that this Husband in ‘£400m divorce’ sum running to hundreds of thousands conclusion is not a of dollars) of an agreed lump sum. condemnation of Mrs M or a is declared bankrupt Consequently the client wanted to vindication for Dr Southall and instruct UK lawyers to enforce the should not be seen as either. On Several newspapers have reported that agreement. The prospective client any showing, the panel will Scot Young, the husband in divorce requested an estimate of fees and the have to consider what penalties proceedings which have included terms of business letter. That was the should be imposed in relation to allegations by his wife that he has end of the matter in this instance. the other proved charges; as for hidden assets of £400m, has been the charges relating to Mrs M, I declared bankrupt by HM Customs However, research by Punam revealed would invite the parties to make and Excise. Mr Young was given a that such schemes have been operating submissions as to the suspended six month jail sentence last for some time in Australia and Canada. appropriate order." year for contempt of court for failing to If pursued by the recipient firm, the disclose his financial situation. scheme continues as a classic scam by Commenting on the methodology of which a cheque is sent for deposit in conducting sensitive interviews In December he was ordered to pay his the client account of the law firm. There between paediatricians and parents, wife £27,500 a month as maintenance is then a request for a refund before the Leveson LJ contrasted practice in this pending a full hearing in May. Mrs cheque has cleared. The deposited field with that now required in Young says that no maintenance has cheque inevitably bounces. If the criminal interviews under the Police been paid by him since 2008. In a refund has been made before there is and Criminal Evidence Act 1984: hearing before Mrs Justice Black last knowledge that the cheque has week, her solicitor applied for an order bounced - and since it comes from an ".... taped interviews have requiring that he should pay overseas account it takes some time to removed all challenge and have maintenance dating back to 2008 – a be cleared - the law firm is substantially assisted the administration of sum totalling £500,000 – together with out of pocket. justice enormously. When her legal costs. That application was asked why such steps were not denied. The lesson seems to be - know your taken in relation to those client. interviews in this field which Collaborative lawyers – are the most sensitive (in which beware scam emails category, the interview of Mrs M would most certainly Punam Denley of the International qualify), the court was told that Family Law Group has alerted Family it was a matter of expense. Law Week to a variation of a common Small digital tape recorders are email scam which seems to be targeted not expensive and interviews at collaborative lawyers. can be stored electronically and transcribed only if some issue

www.familylawweek.co.uk Family Law Week May 2010 - 10

particularly with regard to the additional costs that will arise in an increased proportion of cases that experience ANALYSIS significant delays, and the need for high cost contested final hearings in the absence of independent social work expert The Value of Independent Social witness input. Work Expert Witnesses in Independent social workers provide a wide range of services across health and social care, but this paper Contested Care Proceedings concentrates on the expert witness role in complex (and usually contentious) care proceedings concerning child protection and child welfare. In such cases the local authority will have intervened in a family because of concerns about child protection and/or neglect, and the children involved are likely to have been placed in foster care on the basis of emergency protection orders and interim care orders. Parents often dispute the validity of the concerns of the local authority, and are often highly defensive and/or hostile to the local authority social worker and the local authority as a whole. Many cases are complicated by the parents having complex psychosocial histories including combinations of: being abused as children, adverse experiences themselves of the 'care' system', learning difficulties, volatile interpersonal relationships, and drink/drug problems. (However, a significant minority of parents who become involved in contested care proceedings manifest few or none of such problems.)

Disputes arise at both stages of care proceedings: at the 'finding of fact' hearing there are often challenges from parents with regard to whether medical evidence demonstrates that 'significant harm' has occurred At the 'welfare' stage crucial evidence is heard regarding the Peter Dale, John Gumbleton & Colin Luger prospects for safe reunification of the child(ren); whether a specific kinship place is appropriate; or whether the Peter Dale, John Gumbleton & Colin Luger, all child(ren) is to be subject to compulsory adoption by independent social workers, explain the value that their strangers. This latter outcome has been noted to be profession brings when appearing as expert witnesses in draconian: "What other area of forensic activity, since the care proceedings abolition of the death penalty, empowers the state to intervene so drastically in the family life of the private The role of independent social workers in contested care individual?" [Coleridge, J. 2003 Comment: Another big proceedings is under threat from the joint proposal by the bang. Family Law ]. Ministry of Justice and the Legal Services Commission to restrict the fees charged by independent social work expert In this context it is vital that family courts are fully informed witnesses to the nominal Cafcass cost for children's through expert assessments by independent social workers guardians of £30 per hour [Consultation paper 19/09, regarding a) the viability of reunification and the published 20/8/09]. The hourly rates being proposed for management of risk, b)'potential for change' in the parents, independent social workers are less than one-third of those c) the opportunity for kinship placements, d) if the child is being mooted for some medical consultants, psychiatrists to be adopted, the prospects for positive direct post- and psychologists. However, the reports of expert witness adoption contact; and e) social work peer review of the independent social workers and their role in experts' overall 'reasonableness' of the local authority care plan and meetings have equivalent status and impact as such other its actions (and inactions) during the process (and prior to) experts. It is not unusual for courts to accept expert witness the care proceedings. Such a focus is crucial with regard to independent social work recommendations in preference to compliance with the European Convention on Human those of other such experts, given their specialised Rights (e.g. right to family life, and the right to a fair trial). knowledge and experience of child protection cases. It might be argued that this is the role of the children's This proposal on fee reductions has been made without any guardian. Indeed from the time of the establishment of the evaluation of the cost effectiveness of the expert witness guardian ad litem service in 1984, the first author served as independent social worker role in complex care a part-time guardian for several years, and the role at that proceedings. The disparity in rates between social work and time did include some of what is described above (although other experts is unjustified and runs contrary to the never intensive and extensive therapeutically-oriented Government's stated intention to raise the standing of the assessment). However, the role of children's guardians (as social work profession. If implemented, it will render they are now called) has changed dramatically since the unviable the work of many highly experienced social early days of the service, and is now one predominantly workers who work independently. This proposal does not focused on case management and commissioning appear to have been clearly thought out by the MOJ/LSC, assessments by other professionals. Most significantly

www.familylawweek.co.uk Family Law Week May 2010 - 11

Cafcass (established in 2001 to manage the guardian service) management to come to support reunification in this is now under extreme financial constraints, and Ofsted particular case. This was the outcome of the court hearing reports indicate that the quality of the guardian service has (all parties in agreement) and there was no need for a suffered significant decline. The reality now is that contested and costly final hearing. This would not have children's guardians often do not have the continuity of been achieved if the social work intervention and evidence involvement, the time or the family therapeutic expertise to in the case had been restricted to that of the local authority undertake the independent social work assessment (of and the children's guardian. Without the independent social families) or scrutiny (of local authority practice) that is work expert witness assessment it is likely that the baby required to ensure fair process for parents and children in would have been subject to compulsory adoption following the complex care proceedings arena. a very costly contested final hearing.

In recent years (at least over the past decade) experienced John Gumbleton / Colin Luger – Resolutions Child independent social work expert witnesses have undertaken Protection Consultancy: a range of assessments in complex care proceedings cases. We were asked to undertake a risk assessment in a matter These have been commissioned via solicitors (representing before the High Court. The case involved twins, one of parents or the guardian), by local authorities; and often whom had sustained serious shaking injuries at three jointly across all parties (the cost being divided months old, including significant haemorrhaging both to proportionately between the Legal Services Commission the front and the back of the brain and bilateral retinal and the local authority concerned). Such independent social haemorrhages. Blood tests were carried out to check workers are likely to have extensive experience in child whether the child had any rare metabolic disorder but the protection practice. For example, the authors of this paper results were all negative and the opinion of the medical have a specific special interest in child protection experts was that the injuries were non-accidental. assessments following serious injuries to infants and have provided a large number of assessments (with similar but The evidence strongly pointed to the father being different approaches) in such cases over the past 30 years in responsible for the injuries but he denied responsibility and a range of settings. The experience in providing these the finding of fact hearing was not scheduled to take place services developed initially as part of the NSPCC in the for several more months. The children were placed with 1980s (Peter Dale in Rochdale and East Sussex, and John maternal grandparents with the mother living there as well Gumbleton/Colin Luger in Bristol). Following the NSPCC's but under the constant supervision of the grandparents. The withdrawal from providing independent assessment father remained living in the parental home with his contact services, all of the authors continued and developed their also being supervised by the maternal grandparents. The services in complex cases before the courts in private High Court judge wanted matters to be progressed as soon practice. as possible in the children's interests and agreed to an assessment prior to the fact finding hearing. Our Two case examples conclusions were that despite the very real concerns Dr Peter Dale & Associates Ltd: rehabilitation could be considered providing an appropriate An independent social work assessment was jointly programme of work was undertaken with the parents and commissioned by all four parties in a case where a three- members of their support network. This involved the month old baby was found to have a number of rib and limb mother being the lead carer and the father not being left fractures at different stages of healing. The medical alone at all with the children but able still to play a evidence was unanimous that the injuries could only have significant role in the children's parenting with the support been inflicted by a parent/carer; however both parents were of the 'helpful adults' around the family who were involved adamant that neither of them at any time had harmed the in the work. Our recommendation for rehabilitation was child (and initially hoped for a 'Brittle Bone disease' opposed by the local authority although the guardian and diagnosis that was not forthcoming). The baby was placed judge were in agreement. in foster care during extended care proceedings during which time the parents separated (but without As well as risk assessments regarding the possibility of incriminating each other). The 'finding of fact' at the rehabilitation we also offer ongoing assessment / treatment causation hearing ruled that the baby had been subject to with families if requested. In this particular case the High significant harm by one of the parents, but the court was Court judge asked us to begin the rehabilitation programme unable to determine which. Both were left 'in the frame' as prior to the finding of fact hearing. Despite less than full potential perpetrators of very serious injuries. support from the local authority the children were successfully returned home and have stayed safe. Findings The independent social work risk and parenting assessment were eventually made that father had caused the injuries involved 14 hours (over a period of one month) in despite his ongoing denial. The children returned to their interviews with the mother, extended family members, and parents' care over four years ago and recent contact with the observations of mother-baby contact sessions. The risk family confirmed that the children have remained safe and analysis presented in the final report recommended that the well and are making good progress. baby be allowed to return to the care of the mother on the basis of a specific risk management and family support Conclusion programme. During the course of the assessment it had The role of independent social worker expert witness become apparent that senior management of the local assessments in cases such as these is under threat from the authority concerned had a policy not to support MOJ/LSC proposals. Without the input of independent reunification in any case where there was continued 'denial' social work expert witnesses in complex and contentious regarding responsibility for serious injuries to an infant. care proceedings, the quality of evidence available to the However, the risk assessment provided by the independent court in making profound decisions about the placement of social worker was sufficient for the local authority senior children (e.g. reunification vs. compulsory adoption) is

www.familylawweek.co.uk Family Law Week May 2010 - 12 likely to diminish in a drastic way. Local authority interventions and care plans will not be subject to a References sufficient level of peer review scrutiny and, particularly, the Dale, P., Green, R. & Fellows, R. (2005) Child Protection crucial 'potential for change' assessment issue will not be Assessment Following Serious Injuries to Infants: Fine explored in a professional way independent of the parties to Judgements. Chichester: John Wiley & Sons. the proceedings (the local authority and the Children's Guardian). This is likely to result in challenges to the Essex S., Gumbleton J. and Luger C., Resolutions: working fairness of the proceedings by parents' representatives, with families where responsibility for abuse is denied, Child increased delays, and applications to the European Court on Abuse Review, 1996, Vol. 5, p191-202. the basis of an unfair trial (inequality of arms). Gumbleton J, (2004) The re-unification of children in serious What the MOJ/LSC do not appear to have taken into child protection cases, Context, no. 74, pp 2-5. account (and they provide no data on the issue) is the impact of constructive independent social work expert Contact details: witness assessments on reaching agreements between all parties about court outcomes, thereby avoiding the high Dr Peter Dale & Associates Ltd: www.peterdale.co.uk costs of contested final hearings. Not only is this a great saving to the public purse, it is also psychologically and Resolutions Child Protection Consultancy: emotionally beneficial for the children and families John Gumbleton / Colin Luger: www.resolutions- involved in the proceedings. cpc.co.uk

the Family Division following the earlier decision of Eady J Ancillary Relief Update – March in the Queen Bench Division, about which more below. 2010 The husband shared office space and a computer server with the wife's brothers. Around the time that the wife issued divorce proceedings in December 2008, the brothers downloaded password protected files relating to the husband's personal dealings from the server. The downloaded documents were substantial, running to between 250,000 and 2.5 million pages, part of which were provided to the wife who in turn passed them to her solicitors. The material was initially held in 11 lever arch files. The wife's solicitors went through these and filleted out material and returned to the husband that which they considered to be privileged. This left 7 lever arch files in the Joanna Grandfield, Associate and Barrister, with Mills wife's solicitor's possession. The material had been read by & Reeve the wife, some of her solicitors and at least junior counsel but not the court. Joanna Grandfield analyses the latest key ancillary relief cases. The husband issued proceedings in the Queens Bench Division for injunctive relief against the wife's brothers and The spring update includes cases dealing with a variety of a summons in the Family Division seeking return of the 7 topics, including the approach that will be adopted by the files and orders restraining the use of that information. Mr courts to the obtaining and use of Hildebrand v Hildebrand Justice Eady heard the applications in the QBD (see Imerman [1992] 1 FLR 244 documents; an analysis of case law since v Tchenguiz & Anor [2009] EWHC 2902 (QB) - Eady J, 16 Miller v Miller: McFarlane v McFarlane [2006] UKHL 24 and November 2009) and made orders in which the brothers reasons for departure from equality of division of assets; the were prohibited from communicating or disclosing any quest for a clean break; the impact of cohabitation on confidential information they had obtained to any third periodical payments; application of the law relating to party including the wife and her solicitors and to deliver up constructive trusts for cohabitants; and an example of when all the documents that they had. The Judge considered that a pre-marital agreement can effectively be disregarded there was a powerful case for saying that password within ancillary relief proceedings. protected data held on a computer is probably confidential irrespective of its actual content, and that issues as to Imerman v Imerman [2009] EWHC 3486 (Fam) admissibility and the use that the wife should be permitted Moylan J , 11 December 2009 and Imerman v to make of the information was a matter for the Family Imerman (Supplemental Judgment) [2010] EWHC Division. Permission to appeal those proceedings has been 0064 (Fam) Moylan J, 13 January 2010 granted and consolidated with the wife's proposed appeal This case highlights the inherent tension between ensuring of the current decision. justice is done to parties to ancillary relief proceedings and discouraging engagement in tortious or illegal acts to obtain In March 2009, the husband made a without notice evidence to enable such justice to be done within those same application and obtained an order prohibiting the wife and proceedings. The decisions of Moylan J on 11 December her solicitors from making use of any of the confidential 2009 and 13 January 2010 are the first reported judgments of information that her brothers had obtained. The Judge

www.familylawweek.co.uk Family Law Week May 2010 - 13 before whom the application came, Coleridge J, declined either to join the wife's solicitors to the husband's Moylan J considered that the documents were admissible in application or to order exchange of Forms E prior to family proceedings regardless of how they were obtained determination of the husband's application. The Judge also and even in circumstances where, as here, this interfered ordered that the wife could not make any use of the with, the husband's rights under Article 8 of the European information in the 7 lever arch files for the purpose of Convention on Human Rights. The court has a discretion as defeating the husband's current application for return of the to whether to permit use of irregularly obtained files. information. In exercising that discretion, the court must carry out a balancing exercise with reference to the The matter then came before Moylan J, who was asked by following: the husband to order return of the 7 files and for associated orders to restrain use of that information, including in the * The public interest that the truth be revealed in litigation ancillary relief proceedings. The wife sought orders that the coupled with the statutory duty to determine applications parties file and serve Forms E and that the privileged for ancillary relief by reference to all the circumstances of information that had been filleted and returned to the the case. husband already be retained by the husband's solicitors * The public interest that courts should not acquiesce in or pending determination of her application for ancillary relief. encourage use of irregular means to obtain information. * The effect on litigation generally of the conduct of the In short, Moylan J considered whether, and if so in what parties. circumstances, one party can obtain/retain and/or make * The wife's right to a fair trial, and in particular to have use of confidential information belonging to the other which her application determined by reference to the true position. has been obtained other than through the court process and * The husband's right to respect for private life and possibly in a manner which amounts to a crime and/or a correspondence and not to have them excessively and civil wrong. In addition, the Judge considered what powers unfairly invaded. the court has to prevent such information from being used * The husband's right to a fair trial by ensuring, so far as in ancillary relief proceedings, and the extent to which practicable, that the parties are on an equal footing and that privileged material should be treated differently. the wife does not gain an unfair advantage through the use of irregularly obtained information. Moylan J considered the case law relating to Hildebrand , culminating in the summary of the effect of Hildebrand The more extreme the nature of the irregularity the greater provided by Ward LJ in White v Withers [2009] EWCA Civ the likely interference with Article 8 rights and therefore the 1122 at [37]: greater the need to justify any interference with those rights as proportionate. "The family courts will not penalise the taking, copying and immediate return of documents but do Since the documents had been read by the wife's solicitors not sanction the use of any force to obtain the and at least one junior counsel it was too late for the documents, or the interception of documents or the husband to try to quarantine it, nor was it right or retention of documents, nor I would add, though it proportionate to make the orders sought by the husband is not a feature of this case, the removal of any hard without permitting the wife to use the information in disk recording documents electronically. The seeking to justify what had taken place and her proposed evidence contained in the document, even though it use of it within ancillary relief proceedings. That said, the is wrongfully taken, will be admitted in evidence husband was entitled to the return of the privileged because there is an overarching duty on the parties information. The files were to be delivered to his solicitors to give full and frank disclosure. The wrongful for filleting of any privileged information before being taking of documents may lead to findings of handed back to the wife's. litigation misconduct or orders for costs". A supplemental judgment was handed down on 13 January Moylan J also noted Ward LJ's warning that this sort of 2010. In addition to ancillary matters, Moylan J considered self-help is risky since the Matrimonial Causes Act is no the question of costs, which by this time amounted to £1m defence to the torts of trespass or conversion. The Judge in total. The husband was awarded his costs on an also noted Wilson LJ's opposition to the present situation indemnity basis, following guidance found in Jones v whereby evidence is admissible in family proceedings University of Warwick [2003] 3 All ER 760, which makes it notwithstanding the tortious liability attached to it, and clear that the court should neither acquiesce in nor noted that Wilson LJ took issue with Ward LJ's statement encourage the sort of activity that had been engaged in and that wrongfully obtained evidence "will" be admissible. since the wife had not sought to argue that she did not know what her brothers had been doing. That said, the court at The Judge considered the competing public interest in final hearing was to retain the ability to take the wife's costs ensuring the reality of the position is before the court in liability into account when determining its award as part of litigation and ensuring that courts do not acquiesce in, or it assessment of the litigation conduct of the parties. encourage a party to use unlawful means to obtain evidence. If such information is to be admitted in evidence, Permission to appeal has been granted. the court can reflect its disapproval of the manner in which it was obtained in orders for costs. Moylan J also considered human rights implications and the balance that needed to be struck between the husband's Article 8 right to respect for his family and private life with the wife's right to a fair trial under Article 6.

www.familylawweek.co.uk Family Law Week May 2010 - 14

J v J [2009] EWHC 2654 (Fam), Charles J, 21 January The wife's income needs were assessed at £150,000 p.a. 2010 Taking into account the support received from her mother This careful decision of Charles J provides a thorough the husband's contribution was assessed at £40,000 to analysis of the reported cases since Miller; McFarlane and the £50,000 p.a. and capitalised at £4.2m plus a sum for the interplay of the principles to apply to ancillary relief cases wife's costs. so as to achieve a fair outcome. In doing so, and with particular reliance on Charman v Charman [2007] 1 FLR 1246 Insofar as sharing was concerned, the wife's house was (Charman (No. 4)), Charles J establishes that a departure ring-fenced as being pre-acquired and to omit funds from equality in application of the sharing principle is received from her family. The husband's business was also permissible on the basis of "good reason". Such "good pre-acquired and had increased substantially in value post- reason" could include pre-acquired or gifted assets; an separation. The Judge observed that the marriage had increase in value of an asset post separation; or the way that lasted for around one quarter of the husband's working life the parties chose to conduct themselves during the and considered that to attribute 60% of the value of the marriage. business at separation would reflect the pre-marriage period whilst acknowledging the importance of the years of The husband was a diving equipment entrepreneur who the marriage. This also took account of the fact that there had married the wife when she was 30 and he was 44. This had been no major change of direction in the business was a second marriage for them both. The marriage lasted during the marriage. That percentage was mirrored in for 9 ½ years, the parties separating in 2006. The wife relation to the increase in the value of the business post- received maintenance for her daughter from her first separation. This resulted in an 80/20 split in the husband's husband, and been supported financially in part by her own favour on the basis that 40% attributable to the years of the mother during the marriage. She continued to live in a marriage was shared equally. house in Buckinghamshire which she had owned prior to the marriage (bought with money loaned from her mother), The wife was therefore entitled to £5m, being 21% of the the husband joining her there at weekends. During the value of the husband's shares net of costs when sold, plus week the husband lived in a Scottish castle he had bought half the value of numerous cars bought during the marriage during the marriage and which was close to his business. and half the net value of the Scottish castle. Whilst bought in the husband's name, the castle was bought during the The wife's claim for ancillary relief included maintenance marriage as a home for the family and so should not be ring for her daughter, now 15, and who was 2 at the time of the fenced. The wife's claim for maintenance for her daughter marriage. failed, although the Judge noted that the award to the wife would enable her to spend freely on the daughter's Some eighteen months after separation and during the maintenance and education should she choose to do so. ancillary relief proceedings, the husband sold his business for £25m net of tax and costs. He had not previously The combined costs at trial totalled £1.7m. Charles J disclosed either the negotiations for the sale or the huge concludes with some "final general comments for the increase in the value of his shares since separation, which profession", advocating an exchange of documents were a result of the interest of a foreign company and other identifying the building blocks of cases to be advanced by market-related matters. The husband conceded that there the parties following a failed FDR so as to aid preparation should be an add back of £3.8M to reflect his spending levels for a final hearing, reduce reliance on irrelevant or since benefitting from the increased value of the business. information and minimise the taking of tactical decisions that simply increase costs. Charles J held that, whilst the parties lived separately much of the time, this was because the wife's daughter was settled Lyons v Lyons [2010] EWCA (Civ) 177 (Thorpe, Waller, at school in England. The husband's submissions that he Rimer LJJ), 21 January 2010 had provided minimal financial support to the wife (who This decision of the Court of Appeal illustrates the benefited from maintenance from her first husband for their difficulties encountered in achieving a fair settlement in the daughter as well as from her mother) was rejected. Both the current economic climate whilst seeking to achieve a clean husband and his mother-in-law had provided the wife with break wherever possible. significant financial support. The loan from the wife's mother to enable the purchase of her Buckinghamshire At first instance capital was divided broadly equally. A property was a soft one. charge of £1.34m given to the bank by the husband over commercial property owned by the wife was ordered to The Judge held that, whilst the date at which the assets are remain in place. This was since it was unlikely that the bank to be taken into account and valued for the purpose of the would agree to the release of the charge, and the husband s25 exercise is that of the trial, the existence of pre-acquired had no other means of raising the funds needed to replace or gifted assets supply "an established trigger, or a good that charge from other resources. The order included reason, for a departure from equality within the application provision for the husband to use his best endeavours to of the sharing principle". procure the release of the wife's property from the charge.

Post -separation gains or enhancement in the value of assets The Court of Appeal held that such an arrangement was also provide a good reason to depart from equality within inconsistent with a clean break, since the husband's the application of the sharing principle. However, the undertaking was unlimited in time and required him extent of any departure will be informed and/or dictated by simply to use his best endeavours. At the end of a marriage, needs. it is undesirable for one spouse to be able to use property owned by the other to secure borrowing. The Court substituted an order that limited the husband's undertaking

www.familylawweek.co.uk Family Law Week May 2010 - 15 to a two year period. If the husband had not procured the That said, the arguments first advanced in K v K (2006) to the removal of the charge by then, an order would be made that effect that post-marital cohabitation should be taken into he should pay a lump sum to the wife of £1.34M, which she account as a natural extension of the fact that pre-marital would undertake to receive purely for the purposes of cohabitation is now generally included in the length of the passing on to the bank. The husband was granted liberty to marriage were rejected. Since there is no legal entitlement apply should there be a change of circumstances. to financial contribution as between cohabitants on relationship breakdown, "The argument is superficially Grey v Grey [2009] EWCA Civ 1424 – CA (Thorpe, Wall attractive but in my judgement does not run unless and and Patten LJJ) 31 December 2009 until the applicant has acquired a statutory claim against a This decision deals with the impact of cohabitation on new partner" (at [41]). orders for periodical payments. The case was remitted to the High Court for consideration The parties met in Ireland whilst they were teenagers, of the cohabitant's capacity to contribute to the wife's became a couple in 1996 and underwent an invalid marriage outgoings and the extent to which this should discount the ceremony in 1998. Following the birth of their daughter in husband's liability to pay periodical payments. 2001, the parties had a valid wedding in 2003, before separating in 2005. The assets at the date of the marriage Walsh v Singh & ors [2009] EWHC 3219 (Ch) Judge were £3M and were divided equally. The husband was a Purle QC, 15 December 2009 banker. The wife failed to disclose the fact that she was 17 Whilst this decision doesn't change the law, it is briefly weeks pregnant by her new partner as at the date of trial. included in this update as a further example of the She denied living with her new partner and the judge at first application of the law relating to cohabitants and instance declined to find that she was, notwithstanding the constructive trusts. substantial evidence placed before it by the husband, including that from an enquiry agent. No evidence was The claimant gave up a career as a barrister to run an equine placed before the court as to the extent to which the new business from property owned by her former fiancé, the partner was contributing to the wife's household nor the defendant, which had been purchased by him during the means that he had to do so. All the court knew was that the parties' relationship. Whilst the claimant loaned monies to partner was married but separated and therefore not in a the defendant to enable some surrounding fields and a position to marry the wife; that he owned a house in a paddock to be bought, the property and business was fashionable part of Dublin and had a good job. At first owned by the defendant, who was responsible for losses it instance, the husband was ordered to pay the wife had made, throughout. periodical payments of £135,000 p.a. backdated to the date of the application in November 2006 and at £125,000 p.a. When the relationship broke down, the claimant asserted going forward with child maintenance set at £15,000 p.a. in that she had been promised a half share in the equity in the addition. property on at least two occasions and claimed an interest in the property, either as a result of an express or implied On the husband's appeal, the court held that the first trust. She argued that she had given the defendant instance judge had made inadequate findings as to significant assistance in searching for an appropriate cohabitation. The wife and her new partner were indeed property; researching its planning potential; and carrying living together and the financial consequences of their out and supervising renovation works. The claimant cohabitation had to be investigated and assessed. further argued that she would never have given up her career at the Bar without an assurance that half the property Once a finding of cohabitation has been made, the next step would be hers. In the alternative, the claimant argued that is to consider its relevance to the husband's liability to the she was entitled to a quantum meruit based on unjust wife. The Court observed that there is an obvious enrichment to reflect the value of her contribution to the motivation to avoid any pooling of income to meet project. expenditure to protect a claim for maintenance. As such (emphasis added) (at 28): Judge Purle QC held that, whilst the claimant had contributed to the business in all the ways she suggested, "The real question will generally not be what he is she had overstated the extent of her efforts. Whilst her contributing but what he ought to contribute" contributions were sufficient to give rise to a constructive trust or estoppel, they did not do so since she had not been And at [30] able to show the necessary common intention and detrimental reliance which must flow from the same. The "A judge could not be fair to the husband as the defendant had seen the purchase of the property as an payer without investigating whether Mr Thompson investment opportunity and had not promised the claimant was making any financial contribution to the an interest in it. The claimant had given up her career at the household; if not, what was his capacity to make a Bar as she preferred to work with horses, and had done so contribution. Mr Pointer said that Mr Thompson, in the context of her relationship with the defendant rather resident within the Irish Republic, was not a than on the basis of a belief that she had or would acquire a compellable witness. That circumstance did not beneficial interest. Further, any claim for unjust enrichment prevent investigation. The judge had only to require faced insurmountable difficulties in evaluating its extent, the wife as applicant to produce evidence of Mr since this would require the court to enter an analytical Thompson's means or risk the drawing of adverse process which it would not be able to do satisfactorily in the inferences." context of a domestic relationship. Finally, the Judge noted that permitting the claim to succeed would open the

www.familylawweek.co.uk Family Law Week May 2010 - 16 floodgates to those with dashed expectations of a pay a lump sum of just over £400,000 and make periodical relationship seeking to make claims for unjust enrichment. payments to the wife. The husband appealed on the basis that the district judge had failed to give decisive weight to F v S [2009] EWHC 2485 (Fam) King J, 17 July 2009, the pre marital agreement and sought a variation of the [2010] Fam Law 128 periodical payments. This case is included briefly as an example of a pre-marital agreement being given little or no weight by the court. On appeal to the High Court, King J allowed the husband's appeal in relation to the duration of the periodical payments The parties married in Switzerland having signed a alone. The principles of the case and circumstances separation of property contract in France. During the final surrounding the contract were very different from those in hearing neither party called evidence on the contract nor Radmacher v Granatino [2009] EWCA Civ 649. In Radmacher, was a translation of it before the court. The district judge the agreement had been imposed by the wife's family. In held that the couple had only entered into the pre marital the instant case, the agreement was simply an agreement because they understood it to be required by administrative necessity imposed by the State and was French law. They did not know the lawyer and had no therefore within the court's jurisdiction to give it no weight knowledge of the legal provisions upon which it was based. in carrying out the s25 exercise. 15 years later they divorced. The husband was ordered to

The child had lived with the mother after the parents Children: Private Law Update separated. Until the age of eight years old he had been (April 2010) having supervised contact with the father. At this point it was decided by the court that he needed to be told why contact was taking place in this manner. Thereafter he refused to attend contact. He had trouble sleeping, telling his GP that he was stressed 'because of the dad thing'. He also frequently failed to attend school and stopped engaging with his peer group. The reporting psychiatrist became concerned for his well-being.

Meanwhile the paternal grandparents, in whose favour a contact order had previously been made, were pushing for contact to take place. They threatened committal proceedings against the mother (who, as it turned out, had not failed to promote contact) and sought a transfer to the High Court.

A transfer upwards was certainly merited. There was a Alex Verdan QC, 4 Paper Buildings serious concern that the child, who had been suffering depression, might see an attempt at suicide as a way out of Alex Verdan QC, reviews the latest key decisions in the court's order. He told the psychiatrist that he wished he private children law was dead, and that he wanted nothing to do with the paternal family. All five professionals involved in the case, Introduction including the guardian and the psychiatrist, were of the view that contact should not be forced on the child for the In this review I will focus on recent cases covering the time being. following topics: At the same hearing where he granted the transfer, the * Children's wishes and feelings; circuit judge decided to bring forward the grandparents' * Interim contact; contact to commence later that same day. A stay of * Shared residence; execution was obtained until the matter could become * Transfer of residence; before the Court of Appeal. Wilson LJ said of the circuit * Disclosure; judge's approach: * Costs orders following domestic violence fact finding; * S.91(14); "a decision by a circuit judge, however respected, to transfer * Committal arising out of contact proceedings; a case to a higher level is hardly to be expected to be * Judicial review (in relation to Cafcass complaints accompanied by taking the bull by the horns, rejecting the procedure). views of the five relevant professionals (there was no professional support of what the judge had decided to do) Children's wishes and feelings and making an order for contact, there and then, to take In C (A Child) [2010] EWCA Civ 89 a mother successfully effect three hours later. I regard the order for contact as appealed an order for staying contact with the paternal entirely inconsistent with the thinking behind the order for grandparents where the father had been found to have been transfer to the High Court." guilty of sexual misconduct with his son.

www.familylawweek.co.uk Family Law Week May 2010 - 17

The Court of Appeal stated that the circuit judge should The parents separated when the child was 2 ½ years old. have explained his reasoning for departing from the views Thereafter she was cared for by the mother, although the of the professionals. Although not expressly part of the father was heavily involved. However, the father's role appellate court's reasoning, it may be worth noting that the increased in 2009 when the mother went through a father had not accepted the findings made against him, even turbulent phase in her life after beginning a new after a failed appeal. relationship. The father became a support when the mother had to travel to America to visit her fiancé, and also when Wilson LJ did comment that this was not a case in which she contracted swine flu. It was noted that the father may there was a pre-existing relationship between the child and have taken advantage of the situation by applying for paternal grandparents which was at risk of being broken. prohibited steps orders to prevent the mother removing the child from the jurisdiction or from his care. However, the Interim contact court does not appear to have counted this against him. In SS v KS [2009] EWHC 1575 (Fam) Hedley J heard an appeal against a district judge's order for supervised interim Arden LJ said that, under the CPR (52.3.2), the mother contact where a domestic violence fact finding hearing had should have informed the Court of Appeal of her been adjourned for four months. subsequent application to vary the previous order, following her move nearer the child's school. As it His Lordship concluded that: happened, this change of circumstances only made the case even more suitable for shared residence as the parties were "To say [the district judge] was plainly wrong would now living much closer to each other. Arden LJ suggested in reality be to say that it could really never be right that, after a variation application had been issued, in reality to order interim contact in a Re L context where the the appeal was now only addressing a period which had principle of contact was in issue. It may only rarely already passed and this was a wholly disproportionate be justified, perhaps, but in the context described in approach (although, by way of comment, it may be argued this judgment I am unable to say that this decision that the court hearing the variation application would be fell outside the generous breadth of discretion more likely to accede if the shared residence order had been afforded to a trial judge in this case." discharged on appeal).

The following observations were made in the judgment: Transfer of residence In S (A Child) [2010] EWCA Civ 325 a mother's application * The case would take over a year since the application for permission to appeal against a transfer of residence to was made; the father was refused. * Due to overrunning time estimates there will often be delay in these cases while allegations are properly The residence order was made following a decade of investigated; litigation over contact, during which contact continually * The longer the delays, if contact is subsequently broke down. ordered, the more inimical to the best interests of the child; * The district judge was dealing with serious and (at the The circuit judge had originally taken the view that it would time) unusual delays and took the view that an exceptional be hard to persuade him to order a transfer of residence. course was merited; Part of the mother's attack on his subsequent order was that * The district judge had made it clear that this was to be there had been relatively little evidence since he had supervised rather than supported contact, and the father expressed that indication. understood that he would have to pay for proper supervision. The other line of attack was that there had been almost no oral evidence at the final hearing. There had been a case It is clear that Hedley J was not saying that this was management direction that the hearing was to take place on necessarily the decision that he would have come to; submissions only. This direction was not appealed, nor even however, he did not feel entitled to interfere given that this challenged at the time it was made. The circuit judge order was within the broad ambit of the first instance allowed some limited evidence on practicalities when the judge's discretion. mother's counsel requested it on the day of the hearing. Also, the parties had been given the opportunity to test the Shared residence expert evidence of Dr Weir by putting questions to him on In R (A Child) [2010] EWCA Civ 303 a mother appealed his report. Furthermore, this was a judge with a deep against a shared residence order on the grounds of knowledge of the case. procedural unfairness. Both the NYAS guardian and, to a lesser extent, the child The mother had been told by the circuit judge that residence psychiatrist Dr Weir were against transferring residence. and parental responsibility were 'the same sort of thing'. Furthermore, the child (now 12 years old) also opposed the Thorpe LJ held that, although judicial error normally leads move. to the grant of an appeal, this should not be the case here because this was a paradigm case for shared residence. Thorpe LJ said that "a clear procedural case had been established that required convincing rebuttal". The Court of Appeal said that not merely was shared residence within the circuit judge's discretion, but it was It was the fact that the case management order was not plainly the right order. challenged or appealed which resonated with Thorpe LJ. Furthermore, as regards departure from the professionals' opinions, the NYAS guardian had previously stated her

www.familylawweek.co.uk Family Law Week May 2010 - 18 passion for fighting for the child – it was considered that she had lost objectivity. In fact, Dr Weir's position was not one The Local Authority, which had become involved, argued of clear opposition to the transfer, rather he quoted certain that the circuit judge's preference for Dr Weir's suggestion authorities which suggested a need for significant harm of direct transfer, over the interim foster placement before transfer could be justified. The judge reminded advocated by the guardian and social worker, was wrong himself in his judgment that there was no professional in because the former's conclusion was arrived at by favour of the order he was making. generalisations whereas the latter had a particularly strong understanding of this family. The circuit judge dealt with the significance of the child's wishes and feelings in his judgment, concluding that they Thorpe LJ, paying particular regard to the arguments raised could not be taken at face value given the impact of by the Local Authority, concluded that a direct transfer alienation (which was Dr Weir's evidence). would be the wrong choice:

Thorpe LJ held that the circuit judge's conclusion was "I think it is so important in the present case to hold "plainly open to him on the material he had". He continued: on to anything that is less than confrontational in the immediate." "this is the third occasion on which in recent months, in my experience, this court had to consider His lordship ordered that the foster placement would be for applications for changes of residence, and our 21 days, during which the father would have prolonged approach has been consistent: namely, if the court contact. The mother was to have telephone contact which below has exercised its discretion appropriately on would cease if she expressed any negativity about the all the material, has taken into account all the transfer. relevant factors and has not taken into account material which is immaterial or irrelevant, then this Disclosure court will not interfere." In C (Children) [2010] EWCA Civ 239 the father appealed against an order requiring him to disclose information Although the decision in this case to some extent flew in the relating to communications and meetings with his local MP face of professional opinion, it was upheld because the which he had instigated for the purpose of supporting his judge carefully reasoned his conclusion and made it clear residence case. He was given leave to appeal, but the appeal that he was balancing the evidence against making such an itself was refused. order. This should be contrasted with C (A Child), above, where the circuit judge did not demonstrate why he had There were three children who had been living with their departed from professional opinion. father. He took them to see his MP (presumably at his constituency surgery). The children told the MP that they This case came back before the Court of Appeal as Re S (A were happy with their father and their mother excessively Child) [2010] EWCA Civ 219 on an appeal by the guardian chastised them. The MP contacted the borough's director of and mother against enforcement by the tipstaff of a direct children's services in an attempt to place the content of his transfer of residence to the father. meeting before the court.

The circuit judge had rejected the idea of an interim foster The guardian did not seek the disclosure of the care placement to smooth the transition from mother to communications from the MP to the father. Rather she father. He decided that the transfer would be effected by the sought only the father's communications to the MP. tipstaff if the mother would not comply. Moreover, she was only seeking disclosure to herself, in the first instance, in the event that the distribution of material Under the order, the child was prohibited from knowing the might be prejudicial to the father. date of the transfer. This was challenged by the guardian as being unfair, as the child should have the right and ability Arguments surrounding the confidentiality of an to instruct his own lawyers. In fact, the order had allowed individual's communications with his elected the child to be told that he would not be going to a foster representative were rejected. Thorpe LJ explained that the placement and the transfer would be direct to the father. In court has a duty under the Children Act to investigate reality he could have challenged the decision without relevant matters. knowing the date. Moreover, his interests were extremely effectively represented by his rule 9.5 guardian. Thorpe LJ held that the balancing exercise had been properly conducted, and the order for disclosure was well A further argument was suggested: need to safeguard the within the judge's discretion. Furthermore, in cases where child from life-threatening self-harm. There was no there are allegations and the communications may be evidence of this at the time the residence order was made. relevant, the guardian is entitled, and in fact bound, to see What had emerged since was insufficient to engage article 2 whether they shed any light on the matter. The possibility of of the Convention (right to life) as the guardian suggested. alienation needed to be investigated fully. The child had said that he might stop eating at his father's, that he might run away and might jump out of his father's Thorpe LJ also queried the proprietary of the MP's car. involvement, and whether he was "invading territory that has rightly been assigned by parliament to other The challenge under article 5 (right to liberty) to the professionals". Arden LJ explained that article 8 is a intervention by the tipstaff was rejected because of the qualified right. She said that any interference must be specialist skills and experience of that office, and the need proportionate and justified, and that requirement is met in for such being covered by the qualification to that article. this case. The application for permission was granted only

www.familylawweek.co.uk Family Law Week May 2010 - 19 so that the Court of Appeal could express the above-stated implication is that he was lying and therefore he should pay guidance. the costs of a hearing which he caused.

Costs orders following domestic violence fact finding Wilson J stated that this was not a run of the mill fact In J (Children) [2009] EWCA 1350 the Court of Appeal finding. By way of comment, it is not expected that hereafter allowed an appeal by a mother who had unsuccessfully costs will follow the event in domestic violence fact finding sought her costs at the end of a fact finding hearing where hearings. However, in an appropriate case costs should be the majority of her allegations were made out. The Court of awarded. Appeal ordered the father to pay two thirds of her costs. The Court of Appeal held that the district judge should have The parties had married and subsequently moved to taken into account: Germany where the father was a serving as a soldier in the British Army. Unknown to the father, before they left for * The nature of the enquiry; Germany the mother had made disclosures to her GP that * The seriousness and relevance of the allegations; the father was violent to her. After a time, she took the * The extent to which the father admitted them; children and left him in Germany to return to London. * The extent to which they had been found proved; * The extent to which they had not been found proved. Upon the father's return to barracks in England, the mother would only let him have supervised contact, because of the S.91(14) father's alleged violence. His solicitors responded to the In A (A Child) [2009] EWCA Civ 1548 the father's appeal mother's allegations by making an unnecessarily aggressive against a s.91(14) order made without hearing any evidence threat that he would be seeking his costs if the allegations on the issue was allowed. were not proved at a fact finding. Wilson LJ stated: In the event, the mother raised 20 allegations. The district judge failed to deal with one. However, he found against the "the judge's view represented no more than her father on 14 and made no finding on five (ie. he did not find instinct and, although it is possible that her instinct that the mother had fabricated these). Many of the was well-directed, such is not the basis upon which allegations involved violence in front of the children and judicial decisions may be cast." some involved a degree of violence directed at the children themselves. "I might add that this court spends a surprising and unfortunate amount of its time in reversing orders At the end of the hearing the mother asked for her costs. The under s.91(14) made on the inappropriate summary district judge rejected this application, saying only: basis here exemplified."

"I am not going to make an order in this case. I think During the contact proceedings the parties reached broad the parties had a right to come to court and in those agreement, however, complaining of two minor matters in circumstances I am not going to make an order for relation to holiday contact which were missed out. The costs." father brought the matter back to court, requesting a variation. The mother offered alternative additional contact The mother's appeal to a circuit judge was refused. dates but he was still not satisfied. Furthermore, he However, the Court of Appeal was persuaded that, in this withdrew his consent to the mother having residence on the case, costs should have been awarded. Wilson LJ day of the hearing, arguing that the no order principle commented: "Of course they had a right to come to court. applied (a submission which he had not made before). But at whose expense?" It was seen as relevant that the mother's solicitors' draft The father's argument had been that the usual order in order had not requested a s.91(14) order. As it happened, Children Act proceedings is no order as to costs, and a fact not only did the judge not hear submissions or evidence on finding should not be 'compartmentalized'. The judgment the s.91(14) point, the judge had no bundle at the hearing. discusses the case of LB Sutton v Davis (Costs) (No.2) [1994] 2 Moreover, the drafting of the order was suspect: contrary to FLR 569 in which costs were awarded where a mother made the requirement of the section itself, it did not specify what a second wave of allegations after being unsuccessful on the kinds of applications it applied to, or even which parent it first. Wilson J (as he then was) had said in Davis: was directed against (though the latter was apparent from the context). "The court does not wish the spectre of an order for costs to discourage those with a proper interest in the Wilson LJ said that, at the very least, the circuit judge should child from participating in the debate… But the have invited submissions about the propriety of the order proposition is not applied where, for example, the (referring to Re C (Litigant in Person: Section 91(14) order) conduct of a party has been reprehensible or the [2009] 2 FLR 1461 per Wall LJ at 13). party's stance has been beyond the band of what is reasonable." His lordship re-stated the guidance of Butler-Sloss LJ in Re P [1999] 2 FLR 573 that these orders are to be made Wilson J accepted that the father's stance at the fact finding sparingly and with great care as a weapon of last resort in was not irrational. However, he suggested that the sheer cases of repeated and unreasonable applications. number of allegations found against him cannot have been as a result of mistake or lapse of memory on his part. The

www.familylawweek.co.uk Family Law Week May 2010 - 20

His lordship explained that breach of formalities, such as a penal notice, could be overlooked where it does not affect Committal the justice of a case (see Nicholls v Nicholls [1997] 1 FLR 649). In S-C (Children) [2010] EWCA Civ 21 a mother successfully appealed a committal application by the father arising from He went on to say that it should have been open to the her disclosure of a report prepared for the purpose of their mother to make a submission of no case to answer (Re B contact proceedings in England. (contempt of court: affidavit: evidence) [1996] 1 WLR 626).

The mother was Iranian and the father Turkish. They Judicial review against Cafcass married in Turkey in 1999. After separating in 2006 there In R (Kang) v Cafcass [2010] EWCA Civ 317 a father who had were contact proceedings in 2008 in England. Within these been unsuccessful in contact proceedings sought judicial proceedings a psychologist's report was prepared which review against Cafcass for their refusal to progress his described the father as 'by nature, narcissistic'. At the complaint to the next (third) stage. His application to the conclusion of the proceedings there was a clause preventing High Court was unsuccessful, as was his appeal. disclosure of any documents from the case. However, the mother did subsequently disclose the report's contents to Wilson LJ made the following comments: her lawyers in Turkey. * Complaints against Cafcass are usually dealt with by Wall LJ set aside the committal order on the grounds that: way of cross-examination and submissions; * The recommendation of Cafcass to the court is not a * The 2008 order did not include a penal notice, which 'decision' which is capable of being judicially reviewed; was very important where the parties were not English; * It was unarguable that the decision not to proceed to the * It was possible to breach an order by disclosing the next stage of the complaints process was irrational. content of prohibited information, but the clause needed to state that this would amount to breach; Arguments relating to articles 6 and 8 failed on the basis that: * A party must be entitled to discuss any legal issue with her legal advisors. * They had been raised at the last moment (contrary to CPR 52.8.2); Wall LJ went so far as to say that this information should * The refusal of Cafcass to proceed to stage three cannot have been communicated to the Turkish court, in the amount to a determination of rights and obligations within interests of comity and so as that court had as much relevant article 6; information as possible before it in order to reach its decision. * Article 8 is not engaged because the duty to respect private and family life cannot translate into a right to have a stage three investigation set up.

Radmacher - Where Now? If a man, familiar with commercial agreements such as the husband 3 in Radmacher, can sign up to a completely one sided pre-nup, then what chance have less adept or worldly individuals of resisting the same temptation.

Clearly, the issue over the validity or effect of pre-nuptial agreements is not just a 'women's rights' issue, as some would observe, but more an issue for wider concern. Should agreements of such significance reached before the individuals concerned have entered a marital commitment and the awareness of the responsibilities that go with such a state, be fully bound several years later. The aspirations of men and women appear as different as Mars and Venus in Ashley Murray, Barrister, Oriel Chambers, Liverpool many areas of life, not least in matrimony. To many women issues related to future divorce claims remain, at least, In advance of the much anticipated judgment of the secondary to the preparations for the wedding itself and the Supreme Court in the Radmacher appeal, Ashley Murray prospect of married and family life thereafter. Is this really examines the issues that will fall for consideration by the the environment for fairly negotiating pre-nuptial court and offers his view on the use of pre-nuptial agreements that may be so decisive later on. agreements and the need for definitive guidance. Baron J observed in NG v KR [2008] EWHC 1532 (Fam): (the Introduction – Some Opening Thoughts: first instance reference for Radmacher v Granatino): There is a certain irony that the very case 1 on pre-nuptial agreements, which reaches the Supreme Court in advance '[29] It is understandable that English society in general of the Law Commission's review 2 and report on this subject, (therefore the state) regards Court supervision as a is an appeal by a man and not a woman, against a Court of necessary safeguard. To my mind, independent scrutiny of Appeal decision to apply the terms of a pre-nuptial these agreements remains as necessary in modern times as agreement to the detriment of his claims for ancillary relief. it was in the last century because of the vulnerability of

www.familylawweek.co.uk Family Law Week May 2010 - 21 parties involved at times of high emotion where inequality predict what the fair result will be long before the event. If of bargaining power may exist between them. Although such calls are motivated by a fear that people who feel civilization has made much progress over the centuries and threatened by what might happen in the event of divorce the roles of men and women have altered so that, in some will not get married at all, there is a need for serious cultures, equality has been achieved that does not mean that research and consideration of the extent of and reasons for fundamental human nature has changed. Whilst the Court the reduction in marriage rates over recent decades. It must permit of current mores and will take full account of certainly cannot be demonstrated that the lack of contemporary morality it should not be blind to human enforceable ante-nuptial agreements in this country is frailty and susceptibility when love and separation are depressing the marriage rate here as compared with other involved. The need for careful safeguards to protect the countries where such agreements can be made.' weaker party and ensure fairness remains'. 4 Should not the same 'health' warning be given to High Is the much lauded foreign experience of such agreements, Street solicitors whose practices, would, undoubtedly, which in many countries is much more part of the marriage welcome the inevitable increase in business in these leaner legal process, an improvement or just an example of the times. Since many may find in years to come, when some of drawbacks of a system which may be about to be forced these very clients are much wealthier and perhaps more through by the current judicial appeal system 5, instead of litigious, that the pre-nup advice given was not quite as awaiting the more reflective approach of the Law comprehensive as it should have been so that this new business may become decidedly toxic with damages claims Commission? 5. far in excess of their lawyers' professional indemnity Indeed, should our Supreme Court continue to be insurance cover!. conservative in its approach in this area and be prepared only to determine the case before it on the basis of the usual Issues in Need of Attention: cautious precedent based approach until the Law (a) Different Types of Agreement: Commission has fully reported? Is the exceptional assembly The clear message since the case of Hyman v Hyman [1929] of nine Law Lords (ten required for 'a leaping') simply a AC 601 has been that any agreement, which purports to reflection of media and political pressure, which ought to oust the jurisdiction of the court will be void on the grounds have been resisted, albeit, some believe, encouraged by the of public policy. Therefore, the new President of the Family Division as long ago as 1999 again re-stated the matrimonial Court of Appeal's decision in the same case 6? court's position as being that pre-nuptial agreements remained unenforceable on the basis that they undermined Should our law lamely follow society's attitudes or should 'the concept of marriage as a lifelong union' in purporting to there be, at least, an element of directive and even corrective oust the court's jurisdiction on an application for ancillary purpose to the judicial pronouncements from our higher 8 courts? relief.

Has the average man and woman really been deprived in This position has been the cause of a disparate development having had limited freedom of contract in this area to date of 'marital agreements' generally in our family law, starting or is there, actually, something about the married state with the seminal case of Edgar v Edgar [1980] 2 FLR 19. in which should not be regarded as reducible to a quasi- 1980 to the innovative development signalled by the Board's commercial agreement. Will their experiences of having to decision in the Privy Council's case of Macleod v Macleod pay pre-marriage for a standard form pre-nup to be drawn [2008] UKPC 64 up at a time when the couple may actually have modest finances and little prospect of the same, really improve their The result has been that, until Macleod's case, we had lot as a married couple or for that matter their future marital distinctions between the court's approach to pre-nuptial harmony? agreements, post nuptial agreements, separation (Edgar type) agreements and agreements which effected a If our Supreme Court encourages the pre-nuptial process, compromise of ancillary relief applications (see Xydhias v will not most of these agreements 'wither on the vine' as Xydhias [1999] 1 FLR 683 CA. most spouses fail to review them at regular intervals. Does not the prospect of regular review and the repeated Now that the Macleod case has indicated, persuasively, that associated costs of such reviews constitute an unrealistic ss 34 and 35 of the Matrimonial Causes Act 1973 should be aspect of this type of agreement and one which should for the starting point for any post-nuptial, separation or most couples carry the money equivalent of a Government compromise agreement on the basis that all three forms of health warning! In reality, is the call for greater recognition agreement fall within the statutory definition of a of the pre-nup merely the tip of a more reactionary iceberg 'maintenance agreement', the position appeared to be relatively more straightforward. This was despite the fact to equality of rights in divorce for women?7. that even the Court of Appeal in Edgar appeared to have missed the relevance of those sections to the issues which '33. It is said that calls for the legislative recognition of had arisen before them on the impact of a separation ante-nuptial agreements appear to have increased with the agreement within the section 25 exercise. development of more egalitarian principles of financial and property adjustment on divorce, following the decisions of Unfortunately, of course, the Court of Appeal in Radmacher, the House of Lords in White v White ...and Miller v Miller, in what I respectfully submit, was a thinly veiled political McFarlane v McFarlane... If such calls are motivated by a attempt to push the issue of pre-nuptials, has in the process, perception that equality within marriage is wrong in by some, relatively, loose attention to the issues before principle, the more logical solution would be to examine the them, effectively, created , a double confusion post the principles applicable to ascertaining the fair result of a claim Macleod decision, first as to whether the Privy Council for ancillary relief, rather than the pre-marital attempt to

www.familylawweek.co.uk Family Law Week May 2010 - 22 decision is to be seen as binding on the Court of Appeal (see * Was the Board's approach correct as to the application of para 124 below) and secondly (per Wilson LJ in Radmacher v the 'maintenance agreement' legislation to marital Granatino at para 134 below) whether the 'maintenance agreements? agreement' route is the correct approach when dealing with * If there is not to be uniformity of approach, will it be marital agreements generally. permissible to adopt a pre-nuptial in content within a post- nuptial agreement in form? '[124] Insofar, however, as our views in this court about * What are the factors, generally, which will determine pre-nuptial contracts do not entirely coincide with those of parties' agreements as binding within the section 25 the Board in MacLeod, I consider, as do my Lords, that it is statutory exercise? open to us to express them; and that, in the light of the forthcoming project of enquiry on the part of the Law (b) When will a Pre-nuptial Agreement Count? Commission into the optimum rules for recognition of all This question was already being posed, at least, 12 years ago types of nuptial contract, it will be helpful for us to in the Government's consultation paper 'Supporting contribute to the generation of debate by so doing…' Families' (1998) 10 when there was a list of some six safeguards which should they not exist then it was …[[134] The suggested introduction into the consideration suggested that a pre-nuptial agreement should not be of post-nuptial contracts in proceedings for ancillary relief binding upon the parties who had signed it. This same list following divorce of an analogy with the power to alter a was, helpfully, used by Baron J in NG's case in determining maintenance agreement under s 35 is, if I may speak for what weight she should, in fairness, attribute to the pre- myself, entirely unexpected; and it will need careful, albeit nuptial agreement signed by the husband. Again, in K v K genuinely respectful, scrutiny in the cases in which it arises. [2003] 1FLR 120; Roger Hayward-Smith QC sitting as a Sections 34 and 35 have been dead letters for more than Deputy High Court judge had set out a list of similar thirty years. To the best of my recollection, neither at the bar questions to ask of any pre-nuptial arrangement when nor on the bench have I been party to a case in which they embarking upon the section 25 statutory exercise. These have even fallen to be considered; but I hasten to add that I each involved the now familiar territory as to whether, prior have discovered a brief, parenthetical reference to them, as to the agreement there had been: being the foundation of a novel argument, in Morgan v Hill [2006] EWCA Civ 1602, [2006] 3 FCR 620, [2007] 1 FLR 1480 * disclosure of wealth; at 21. As the Board in MacLeod itself in effect pointed out, at * undue pressure; 23, the progenitor of the sections was s 1 of the Maintenance * separate legal advice; Agreements Act 1957, enacted in an era when, if after * whether since the agreement there had been periodic separation one spouse wished to be divorced but the other review of the agreement; spouse, innocent of a "matrimonial offence", declined to * whether there were children before or after the petition, the consequence was that they remained married agreement. indefinitely. In such circumstances it was important to create a facility, outside the context of divorce, for spouses The Court of Appeal in Radmacher's case has now, to have access to a court, in particular to a Magistrates' apparently, ventured an approach in which the Court must Court, for a maintenance agreement between them to be assess the impact of the failure to adhere to these familiar altered and, subject thereto, for it to be binding and safeguards instead of regarding non-compliance with the enforceable. Furthermore in 1957 the court had no same as an insuperable flaw to applying the pre-nuptial jurisdiction, even in the context of divorce, to order capital agreement to the statutory exercise. Of course, in this provision to be made outright (ie by payment or transfer) by context, Baron J in NG's case had already adopted a similar, one spouse to the other. The word "maintenance" then in albeit less strident, approach in that, whilst being unwilling effect meant periodical payments, secured or unsecured: to apply the terms of the pre-nuptial agreement strictly due see, for example, s 16 Maintenance Orders Act 1950. to lack of separate legal advice and wealth disclosure and to Although in theory the parties could then agree that one some extent duress, she had under 'all the circumstances' of should make a capital payment to the other, it is unrealistic section 25 been prepared to factor in to some degree the to consider that the Act of 1957 was in any way devised in approach that the nature of the agreement actually signed order to address the paradigm examples of the modern should impact upon the eventual outcome against the post-nuptial contract, namely agreements that, upon husband. divorce, the financial claims of one spouse should either be nonexistent or be satisfied by provisions which almost The Court of Appeal, however, used this methodology as an always include, and usually comprise, a capital payment. To opening to a much wider arena of uniformity between the chart changes, foreseen or unforeseen, pursuant to s 35 of approach to such agreements in our jurisdiction and that of the Act of 1973 seems to me to be a very different exercise our EU counterparts (see Thorpe LJ). Such has been the from that of weighing all the circumstances ab initio under approach of this highly respected judge for a number of s 25 of it; and, pending statutory reform or further interim years 11, but, it is suggested, it is a hobby horse without guidance in a suitable case by the Supreme Court, it may be much popular support. Indeed, his enthusiasm for the helpful for courts at any rate to remember that the weighing claimed better certainty of a system, which recognises the exercise under s 25 is mandatory.' 9 ability of adults to contract freely and where the pre-nup is regarded as being the route to less dispute and cost between Hence, these are now areas which require further and divorcing parties fails, it is suggested, to give appropriate definitive guidance; particularly:- weight to the probable response to the impact that such judicial recognition would actually have, where the parties * Is there any uniform approach which can marry the would litigate even more about both the application and court's application of both pre-nuptial and marital relevance of such agreements than they do under the agreements generally? present regime.

www.familylawweek.co.uk Family Law Week May 2010 - 23

'In G v G (Minors: Custody Appeal) [1985] 2 All ER 225, this Indeed, even in the 'brave new world' envisaged by the House, … approved the following statement of principle by Court of Appeal, it is still accepted as essential that:- Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, 345, which concerned an order for i) there must be compliance with the general contractual maintenance for a divorced wife: and Edgar principles; ii) ultimately, the court has a final sanction under the section "It is, of course, not enough for the wife to establish 25 review of the pre-nup to rectify any 'manifestly unfair' that this court might, or would, have made a provision. different order. We are here concerned with a iii) attempts to oust the court's jurisdiction will continue to judicial discretion, and it is of the essence of such a be void; discretion that on the same evidence two different minds might reach widely different decisions In consequence, it is suggested that the outcome would be a without either being appealable. It is only where the veritable seed bed of potential issues to any litigious party decision exceeds the generous ambit within which and not the predicted landscape which avoids increased reasonable disagreement is possible, and is, in fact, legal costs. plainly wrong, that an appellate body is entitled to interfere." Accordingly, it is submitted, the following further issues need clarification:- This passage has been cited and approved many times but some of its implications need to be explained. First, the * What are to be the 'essentials' of the model pre-nuptial appellate court must bear in mind the advantage which the agreement? first instance judge had in seeing the parties and the other * Within such 'essentials' are principles such as witnesses. This is well understood on questions of independent legal advice, full disclosure, a time for credibility and findings of primary fact. But it goes further reflection and periodic review to be retained? than that. It applies also to the judge's evaluation of those * Do these 'essentials' need their own definition to lay facts. If I may quote what I said in Biogen Inc v Medeva Ltd down the minimum standard required? (1996) 38 BMLR 149, [1997] RPC 1: * Will there be any exceptions when the 'essentials' need not be complied with? "The need for appellate caution in reversing the trial * Does 'manifest unfairness', itself, require parameters to judge's evaluation of the facts is based upon much avoid the test changing from judge to judge? more solid grounds than professional courtesy. It is because specific findings of fact, even by the most Some Final Thoughts meticulous judge, are inherently an incomplete The decision of Baron J, at first instance, in Radmacher's case statement of the impression which was made upon (i.e. NG v KR) was considered by many to be yet another him by the primary evidence. His expressed findings fine example of the shrewdness and practical common sense are always surrounded by a penumbra of of a much respected former specialist practitioner in this imprecision as to emphasis, relative weight, minor area of ancillary relief law. Accordingly, the criticism of the qualification and nuance . . . of which time and Court of Appeal judges of her judgment appeared to this language do not permit exact expression, but which same audience both strained and contrived to enable may play an important part in the judge's overall another, possibly more political, agenda to be addressed. evaluation."

Wilson LJ in the Radmacher appeal, it may be thought by The second point follows from the first. The exigencies of some, somewhat unconvincingly, stated: daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is '[135] Baron J has been a judge of the Division for six particularly true of an unreserved judgment such as the years. I have studied hundreds of her judgments, in judge gave in this case but also of a reserved judgment particular in the field of substantial ancillary relief, based upon notes, such as was given by the District Judge. and, with admiration, have agreed with all of them. These reasons should be read on the assumption that, unless Now for the first time, following protracted thought, he has demonstrated the contrary, the judge knew how he I disagree with her, indeed to the necessary extent of should perform his functions and which matters he should considering her application of the existing law to the take into account. This is particularly true when the matters facts of the present case to be plainly wrong'. in question are so well known as those specified in s.25(2). An appellate court should resist the temptation to subvert Of course, if the position is ever reached where a judge is the principle that they should not substitute their own above criticism then even a review such as this may be a discretion for that of the judge by a narrow textual analysis dangerous journey to embark upon and, plainly, we must which enables them to claim that he misdirected himself. all trust that our system remains free from political The reason why I have taken some time to deal with the influence of such a kind. However, the cautionary words of Court of Appeal's assertion that the judge did not realise Lord Hoffmann in Piglowska v Piglowski [1999] AER 668, that she was entitled to exercise her own discretion is that I which bear repetition below, should, it is suggested, have think it illustrates the dangers of this approach. The same is been sufficient protection for Baron J's exercise of judicial true of the claim that the District Judge "wholly failed" to discretion, especially in the area of the application of the carry out the statutory exercise of ascertaining the terms of a pre-nuptial agreement under 'all the husband's needs. circumstances' of the section 25 exercise:- Thirdly, the exercise of the discretion under s.24 in accordance with s.25 requires the court to weigh up a large

www.familylawweek.co.uk Family Law Week May 2010 - 24 number of different considerations. The Act does not, as I Ultimately, the present problems posed by pre-nuptial have said, lay down any hierarchy. It is one of the functions agreements may be thought to affect quite a small minority of the Court of Appeal, in appropriate cases, to lay down of wealthy or potentially wealthy married couples. The general guidelines on the relative weights to be given to width of the section 25 exercise ought, it is submitted, to be various factors in different circumstances. M v B (Ancillary sufficient to cater for these matters without adopting some Proceedings: Lump Sum) [1998] 1 FLR 53, [1998] 1 FCR 213 artificial route such as 'magnetic factors' or the emphasising the importance of providing the father of small 'presumptively dispositive', or a wholesale change of the children in the care of his divorced wife with law, any of which will result in a far wider application of the accommodation in which he can receive them, is a good pre-nup to most marriages at an even greater cost to the example of such a case. These guidelines, not expressly hapless parties. stated by Parliament, are derived by the courts from values about family life which it considers would be widely ______accepted in the community. But there are many cases which involve value judgments on which there are no such 1 Radmacher v Granatino [2009] EWCA Civ 649; sub nom NG generally held views. The present case is a good example. v KR [2008] EWHC 1532 (Fam); Which should be given priority? The wife's desire to 2 Consultation paper due to be published in mid 2010 continue to live in the matrimonial home where she can examining status and enforceability of such agreements; conveniently carry on her business and accommodate her 3 At the time of signing, an investment banker earning c sons, or the husband's desire to return to England and £120k pa; establish himself here securely with his new family? In 4 Thorpe LJ in Radmacher's case, see paras 2 to 11 of the answering that question, what weight should be given to judgment; the history of the marriage and the respective contributions 5 '35 In the Board's view the difficult issue of the validity of the parties to the family assets? These are value and effect of ante-nuptial agreements is more appropriate to judgments on which reasonable people may differ. Since legislative rather than judicial development … (see judges are also people, this means that some degree of Baroness Hale in Macleod v Macleod [2008] UKPC 64); diversity in their application of values is inevitable and, 6 see e.g Wilson LJ in Radmacher's case; within limits, an acceptable price to pay for the flexibility of 7 see Baroness Hale in Macleod's case. the discretion conferred by the Act of 1973. The appellate 8 N v N (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 FLR court must be willing to permit a degree of pluralism in 745 at 752. these matters…'. 9 per Wilson LJ in Radmacher v Granatino 10 Supporting Families (Stationery Office, October 1998). 11 see Crossley v Crossley [2007] EWCA 1491

lesser of two evils. Much more often though, both parents Changing Residence – A can offer a high standard of care, and it is then a delicately Judgment of Solomon weighed exercise; an almost impossible decision for a judge - a true Judgment of Solomon. In S, the Court of Appeal dismissed an appeal by the mother against an order that the child, who was almost 12, should go and live with his estranged father, despite never having lived with him, and having had no contact with him for four years. There was no criticism of the care given to the child by his mother, only that she had failed to facilitate contact and had been obstructive. The child, significantly, was vehemently opposed to a transfer of residence, as was the child's NYAS guardian.

What is clear from recent case law is that transfers of residence are being considered more regularly by judges, who are frequently at the end of their tether in intractable contact disputes. Whilst it may seem extreme, and a somewhat draconian measure to take, to many it is the only Claire Brissenden, Amicus Chambers option left once everything else has been exhausted. Simplistically put - reports are read, evidence and Claire Brissenden considers the balancing act exercised by submissions heard, judgment given and off the child goes to the court when it considers the change of residence from their new home. What is rarely known is what happens after one parent to the other. the case ends and it leaves the court arena. For most of us we simply endorse our brief and never hear about the client The recent case of S (A Child) [2010] EWCA Civ 219 has again. The case of A (A Child) [2007] EWCA Civ 899, which brought to public attention that which those in the legal bears striking similarities to S (A Child), gives us a rare profession have known for a while, that a decision to change opportunity to examine a case after the doors closed in the residence from one parent to another can be an extremely Court of Appeal and see what happened next. difficult balancing act. The factors involved are myriad and the eventual outcome uncertain. Sometimes it is a case of the

www.familylawweek.co.uk Family Law Week May 2010 - 25

The case had started in the Canterbury County Court, after assessed by a psychologist to establish the extent of his the parents separated when their son was about a year old. feelings, and examine where his attachment lay. Historically the mother had difficulties in managing her feelings as regards the boy having contact with his father. The father was unsupportive of an assessment of the child, This resulted in extensive court proceedings. The Court of as in his opinion the boy was just being difficult. Criticism Appeal estimated there to have been 14 hearings in relation was levelled at the father for failing to take the boy's mental to the matter of contact. The same judge had presided over health seriously or to involve CAMHS, despite the court's the last six hearings, and eventually ordered the boy, who previous recommendations. The judge ordered a was eight, to move to live with his father, who lived some psychological report to be prepared and listed the case for 300 miles away. Not only was this against the child's wishes final hearing. After assessment of the child and whilst the and feelings, it was heavily based on the findings of a psychological report was being prepared, events overtook psychological report, which found that the mother suffered the court process. The boy, whilst on a staying contact with from a personality disorder, which prevented her from his mother in Kent, threatened to take his own life if he was having any insight into her behaviour or reforming it. This forced to return to father, which rather increased the was felt to pose a risk of emotional harm to the child, urgency of the situation. He was seen by a GP who although all the professionals involved in the case determined that he certainly had a suicidal intention, and commented on how remarkably well-adjusted he seemed to had given serious thought about the means. An emergency be. The mother had continually challenged this report, hearing was listed, and upon the recommendations of the asserting that she had no insight into her condition because guardian, and after hearing the tenor of the almost there was in fact no condition. completed psychologist's report, the child was allowed to remain with mother pending the outcome of the final The judge and the Court of Appeal were acutely aware that hearing. At this point a Section 37 report was ordered from the change of residence might involve some short-term Kent Social Services. trauma to the child, but that the benefits were felt to outweigh these "transitory" problems. The recorder said: The boy thrived back home in Kent with his mother and was described by the guardian as "a different boy. He is outside "In my judgment, [he] will initially find the move all the time doing things, and he has colour in his cheeks". difficult. He will no longer be living with his mother, The psychologist's report recommended a variation of the nor near his friends and maternal grandparents and order and a residence order in favour of mother, as the child he will be changing school. There will be some home was suffering severe emotional harm due to the move and sickness. This emotionally stable boy will, in my had not settled in Darlington. The guardian went further, judgment, within a few weeks find that he is and in her report was critical of the original decision to otherwise easily able to overcome the initial home remove the boy from his mother, stating that the decision to sickness or unhappiness. The long-term benefits to change his residence had had a "profound and negative him of a move are a good deal more significant and effect on his developmental and psychological wellbeing" they outweigh the initial homesickness." and that this had "irreparably harmed him". Following these reports, on the first day of the final hearing (over 2 years The mother refused to accept the court's decision and a few after the Court of Appeal ruling), the father consented to a months after the move issued proceedings to vary the residence order in favour of mother. residence order. The case was transferred to Middlesbrough County Court, and had judicial continuity from the transfer. Now, A (A Child) may not be indicative of all the cases The district judge initially took the view that as the Court of where a change of residence has been ordered. It is more Appeal had confirmed the judgment of the recorder in Kent, than likely that some of them work well and the child goes it would be an uphill battle to achieve a different outcome. on to have quality interaction with both parents. However, The boy however, continued to be unhappy in his new where there are clear indications, such as in S (A Child) home, and by this time was making threats to self-harm. A [2010] EWCA Civ 219, that the child is resolutely opposed to Section 7 report was ordered and it too treated the judgment a change of residence, and is indicating a desire to self- of the Court of Appeal as a virtual bar to a change of harm, then the need to listen to the child becomes greater, residence back to mother, reliant as it had been on the and decisions should be made much more carefully. diagnosis of personality disorder. Mention was made of the boy's unhappiness, but more significantly, it was apparent There are clear guidelines that must be followed when from the report that he felt that no one was listening to him, determining the weight that should be given to a child's and he was starting to feel worthless and as if his opinion wishes and feelings. Age is obviously a factor, but not the counted for nothing. only one. Understanding is the other, and this is where difficulties arise. One ten year old child may differ greatly It was on this basis that the district judge reluctantly from another in their understanding of a situation, and this appointed a Rule 9.5 guardian, so that the boy could feel affects the weight that should be placed on those views. It that his voice would be heard, even if it was not acted upon. appears that it is this aspect that is being over-emphasised Fortunately for the child, the guardian did listen to him, and in court proceedings. In S (A Child), the psychologist was of realised that far from the short-term trauma that had been the opinion that despite being nearly 12, the boy's views predicted, this child was suffering immensely from the should be disregarded. He advised that "it is important for move, and was desperate to live with his mother again. The the parents and for all of the professionals working with S guardian's report describes a lonely, friendless boy who to recognise that his expressed wishes and feelings are took solace in electronic gadgets, compared to the popular irrational and should form no part in the court's decision and well-adjusted little boy he had been in Kent. The making." Despite this, the judge accepted that due to guardian was less concerned with the mother's alleged legislation he must pay some regard to the boy's views. personality disorder, than with the wishes and feelings of However, he ultimately rejected them as not being his true the child. The guardian recommended that the child be feelings due to alienation from his father.

www.familylawweek.co.uk Family Law Week May 2010 - 26

In A (A Child), when the case was before the recorder in Children are fragile creatures, still developing their Kent, prior to the change of residence to father, it was said personalities and beliefs about the world. To remove a child of the boy (who was 8 at the time) that that he was "not of an forcibly against his wishes cannot fail to affect him, and alter age to know what is best for him" and that it is "adults who his perception of himself. Not only might he feel that his must determine that".This begs the question, when is a child opinions are not listened to, he may start to doubt the "of an age" to know what is best for them? The Court of validity of those opinions, or seriously question the motives Appeal's recent approval of Black J's decision to take of those in authority. If the adults in his life pay little regard account of the views of a 5 year old girl and her 8 year old to his views, then what are those views worth? This could, brother in W v W [2010] EWHC 332 (Fam) may well help and did in the case of A (A Child), lead to threats of self matters. However, the general principles were propounded harm. The barrister representing the guardian in S (A Child) by Butler Sloss LJ in Re S (Minors)(Access: Religious was clear that the boy in that case had also threatened upbringing) [1992] 313 at page 321, a case involving two suicide if his residence was changed: children aged 13 and 11: "The child has already expressed an intention to "Nobody should dictate to children of this age, harm himself, potentially life threatening; in because one is dealing with their emotions, their particular his refusal to eat and to throw himself out lives and they are not packages to be moved around. of the car. He has shown he has a real intention to They are people entitled to be treated with respect." carry out his threats. He is a rather intense individual, very calm and not hysterical." Yet, packages are what they seem to be. Children who have strongly-held wishes which are clearly and persistently If a child's views are so deeply held, and so ignored, then the articulated to those professionals involved in the case, are potential for harm is obvious. There is unfortunately, no not being heard. This is of enormous concern. The decisions straightforward answer to any of this, every case is fact- that judges are making about a change of residence are of specific, and every judge will do just that, judge the case on the utmost importance to these children. We are not talking the facts. However, A (A Child) provides an insight into about how much contact a child has with an absent parent, some of the problems that can result, and hopefully a this is about uprooting a child from possibly the only home moment to pause and consider the magnitude of the they have ever known, from a school, friends and social decision judges are making when they contemplate a infrastructure they are familiar with, never mind from a change of residence. parent to whom they have their primary attachment. The possible consequences of getting it wrong are unthinkable.

www.familylawweek.co.uk Family Law Week May 2010 - 27

proceedings progressed after the decree absolute had been CASES made. In a previous hearing, the matter was adjourned to Vaughan v Vaughan [2010] EWCA Civ 349 allow the wife's advisers to conduct further enquiries but the husband also reiterated undertakings concerning the Appeal by wife against order terminating periodical pay- health insurance and pensions. ments from the husband and refusal of her cross-application for a capitalised lump sum of £560,000. The wife was award- In this application, counsel for the wife contended that that ed a lump sum of £215,000. the court had a discretionary power to delay the making of a decree absolute and that the facts of this case justified The couple had married in 1967 and separated in 1981, with using such a power, since the wife faced a significant loss of no children. They divorced in 1985 allowing the husband to pensions rights, in order to permit a full investigation into remarry. He is now 71 and she is 66. The husband had the husband's undertakings. Baker J reviews the MCA and pursued a distinguished career at the Bar but ill health had case law, including Dart v Dart, and finds that the court meant that the practice had dwindled. The wife lived alone does have a discretionary power under its inherent in a home worth £1.1m while the husband lived in a home jurisdiction to delay or stay an application to make a decree worth £4.3m. The wife had also inherited wealth since the absolute but that can only be exercised if special or separation. In proceedings in 1989, the husband was or- exceptional circumstances are established. He then dered to pay £27,000 per annum in periodical payments (he dismisses the application as no advantage could be had been making similar payments prior to those proceed- demonstrated from delaying the application. There is also ings under a separation deed). The wife had received some discussion concerning costs given that the proceedings valuable assets under that deed, including a valuable desk. derived from a TOLATA application under the CPR; it was These proceedings started when the husband sought dis- determined that costs should follow the event. charge of the periodical payments order and the wife cross- applied for a capitalised lump sum. In the High Court, the Hewett v First Plus Financial Group [2010] Deputy Judge had discharged the order on the grounds that EWCA Civ 312 the wife could adjust without undue hardship, given that her own capital and possessions could be amortised to Appeal by wife against order for possession of the produce income. He had also made certain attributions in matrimonial home by a mortgage company on the grounds favour of the second wife, such as a half-share of the hus- that the mortgage being enforced had been agreed by her as band's pension, and this had decreased his assessment of a result of undue influence and abuse of trust. Appeal the income available to continue with the payments. allowed. In this judgment Wilson LJ notes in his introduction that the The appellant and her former husband had taken out a case raises issues about the proper treatment of hypothetical mortgage on the family home, to which the appellant claims for the second wife and whether it is appropriate to agreed, in order to secure credit card debts run up by the amortise the capital inherited by the wife. Counsel for the husband. At the time that the mortgage was granted the wife submitted that the judge's order was vitiated by legal appellant still considered that she was in a stable and happy error. Wilson LJ agrees primarily because the judge had, in relationship with her husband. However, the husband at assessing the husband's income, wrongly given priority to that time was having an affair which he did not disclose to the claims of the second wife with the result that his income his wife. He also forged the signature of his mother-in-law, should have been assessed at no less that £69,000 per annum who lived with them, so as to get approval for the mortgage. rather than the £46,000 arrived at by the judge. He also At first instance, the judge had found that the wife had been concludes, on the academic question of amortising the exercising her own will, although it was acknowledged that wife's capital, that the judge had been wrong as "it is the mortgage company had constructive notice of any invidious for the court to try to analyse a person's misrepresentation or undue influence by the husband and relationships in order to seek to measure the extent of that the company had failed to comply with guidelines in reasonable expectations of benefit under her or his estate." Royal Bank of Scotland v Etridge. He therefore allows the appeal and orders that a sum of £215,000 be paid in lieu of periodical payments to provide In this appeal, counsel for the wife submitted that, from the an income of £46,000 per annum. Any shortfall from the facts available, the court could infer that the husband had wife's needs would be made up from her capital. decided to leave the wife and that the husband therefore made three fraudulent misrepresentations, any one of Miller Smith v Miller Smith (No 2) [2009] which could justify setting aside the order. Briggs J swiftly EWHC 3623 (Fam) rejects two of those, as the judge's conclusion that the husband was not planning to leave the wife at the time of Application by wife for delay in pronouncing decree the re-mortgage could not be interfered with. However, he absolute pending conclusion of the ancillary relief accepts the third: that "his deliberate concealment of his proceedings. Application refused. affair, a highly material fact which his wife needed to know, if she were to make an informed decision whether or not to The background to the case can be found in a previous accede to his request". In his reasons he reviews, among Court of Appeal judgment available on Family Law Week others, the cases of Allcard v Skinner and Royal Bank of here. In this application, the wife was seeking the delay, Scotland v Etridge concluding from them that broadly, on the grounds that, on the husband's suggestion, she had cancelled her BUPA insurance and not paid into a "It would in my opinion be wrong to confine a private pension on the assurances that she could benefit husband's obligation of candour and fairness when from the husband's company schemes and that she would proposing a risky financial transaction to his wife as suffer prejudice and detriment if the ancillary relief

www.familylawweek.co.uk Family Law Week May 2010 - 28

confined to cases where the wife meekly follows her husband's directions without question. The purpose He then conducts the best interests analysis and makes an of an obligation of candour is that the wife should be interim order that E should remain at the unit pending a able to make an informed decision (with or without final hearing but states that it is "in my judgment a good the benefit of independent advice) properly and prospect that at the final hearing the court will be able to fairly appraised of the relevant circumstances." order E's return home to F".

He also concludes that the husband's affair was a material Holliday v Musa [2010] EWCA Civ 335 fact that should be disclosed as the test was an objective one and had nothing to do with how it may have affected the Appeal against decision that a deceased man was domiciled wife's decision-making. in England and Wales, so allowing a claim under the Inheritance (Provision for Family and Dependants) Act 1975 G v E, A Local Authority & F [2010] EWHC to proceed. Appeal dismissed. 621 (Fam) The claimant under the Inheritance Act was the mother of Application under Mental Capacity Act 2005 brought by a the deceased's youngest child. The couple had met in 1998 sister of an adult (E) with severe learning disabilities asking and the child had been born in 1999. The deceased man was the court to decide, among other things, on whether: i) E has a Turkish Cypriot who had left the country in 1958, capacity, ii) he has been unlawfully detained and iii) if the following sectarian violence, but made regular, lengthy latter, damages should be paid. visits to the country since 1974 and had even attempted to stand for President. At all times his family home and E suffers from a genetic condition known as tuberous businesses, with his first wife and then the claimant, were in sclerosis and as a consequence has a severe learning England, though he sought to establish non-domiciled disability. He had been placed with a foster carer (F) since status for tax purposes. In the High Court on this point, the 1999, but with contact with his sister (G). E started to attend deceased man had been found to be domiciled in England, a residential home in 2004 but difficulties arose over the allowing the claimant's Inheritance Act application to apparent differences in his behaviour at the home and with proceed. The adult children of the first wife appealed. F. In July 2009, following a trip abroad where E hit F and comments made by F concerning her management of E, E In this judgment Waller LJ first identifies, as there was no was housed in a small residential unit, placed on medication election of change of domicile of origin, that this is a case and F was told that he would not be returning home. F and where the only issue was whether G then initiated these proceedings and before Ryder J, without any consideration of whether E had been deprived "it was right at any stage of his residence in England of his liberty, an order was made that E should remain at the prior to his death to infer that [the deceased] had unit pending further determination and that G and F should formed the intention to settle in England indefinitely have contact. and abandon his domicile of origin."

In this judgment, Baker J provides a thorough review of the He makes criticisms of the judge in the way the issue had statutory framework, including the deprivation of liberty been considered in the court below and so decides to safeguards ("DOLS"), and the relevant UK and European examine the facts again. He concludes that the Court could case law. He then considers several points of law and infer that the deceased had intended to settle in England, concludes, among other things, that: because of, among other matters, his dealings with the family home in England where there was an agreement to 1. E lacks capacity, though his wishes and feelings must be buy a larger property for the family at the time of his death, taken into account and because of evidence from his diary that talked of living in England and visiting Cyprus. 2. E had been deprived of his liberty as a result of his housing, and that by not following or considering DOLS at S (A Child) [2010] EWCA Civ 325 any planning or strategy meetings, the local authority has infringed E's Article 5 rights Appeal against an order requiring a mother to hand over her son to the father's residence, or if she failed to do so, that 3. failure by the professionals involved to consider properly the Tipstaff would effect the transfer. Appeal allowed. E's home life with F meant that the interim removal of E also breached his Article 8 rights to E's detriment and made the The background to the heavily contested contact and Court's decisions more finely balanced residence proceedings can be found in a previous report of the case. Following the order transferring residence there 4. E's subsequent deprivation of liberty was made lawful by were further hearings to implement the transfer during the interim order of Ryder J which a CAFCASS guardian was reappointed and an application issued for an interim care order so as to achieve 5. there is no threshold condition such that the court may a short-term foster placement as a "stepping stone" between not entertain an application under s16 of the MCA and any the mother's and father's houses. The judge rejected that proposed deprivation of liberty must be part of a best option and ordered that the mother effect the transfer interests analysis. herself by a specified date or the Tipstaff would do so.

6. any ruling on whether a placement with F would deprive Counsel for the mother and the guardian both made E of his liberty would have no bearing on the best interests submissions arguing against the order. Thorpe LJ rejects the analysis. guardian's submissions and the mother's submission that

www.familylawweek.co.uk Family Law Week May 2010 - 29 the use of the Tipstaff infringed Article 5 rights. However, those proceedings medical opinion differing from that in the the further submission that the stepping stone route was care proceedings caused the charges to be dropped and a preferable was supported by counsel for the local authority, renewed possibility that the babysitter could be a who argued that the judge had placed too much weight on perpetrator. The mother therefore sought to reopen the the expert witness who only provided generalised advice. factual findings. That application was refused and, at a Thorpe LJ accepts this submission for that reason and also subsequent hearing, care and placement orders were because "it is so important in the present case to hold on to granted in respect of the younger child. anything that is less confrontational than the immediate" and then sets out arrangements for contact and the short- In this application, counsel for the mother submitted that: i) term placement. the judge had trespassed on matters for the judge to consider if a re-hearing was ordered and ii) following Re K, B (Children) [2010] EWCA Civ 324 the judge had not sufficiently considered the principle that children removed from their biological family should have Application by mother for permission to appeal, with the best knowledge available of what happened to them in appeal to follow, interim care orders made to allow for earlier life. Thorpe LJ rejects the first submission as the best assessment away from the mother's home. Application the mother could have hoped for was that either she or the dismissed. babysitter would be considered possible perpetrators. He also rejects the second submission as the discretionary Two children, aged 11 and 10, were the subject of the decision was not open to criticism and the judge had proceedings. Two older children of the family had been the recognised that the issue of the contradictory medical subject of care proceedings but since they expressed a clear evidence would need to be explained to the children in the wish to live with the mother, the application for a care order future. Thorpe LJ also notes counsel for the guardian's in respect of one was dropped and a residence and suggestion that supervision order with the mother was made for the other. In the county court, the circuit judge was satisfied that the "a revision of the fact-finding conclusion that is not threshold criteria had been reached in relation to the sufficiently significant as to merit a retrial but which younger children because the father was violent and the is sufficiently significant to demand some revision of mother could not disengage herself from him. He then the detailed conclusion of the fact-finding trial identified that the issue was not whether interim care order should be flagged up to avoid the possibility that it should be made but "whether within the terms of that order will simply get lost in the mists with the passage of the younger two children should be kept from the family years." home while assessments are carried out". Such fresh evidence could be appended to the judgment Wall LJ, in this judgment, further develops the issue to refusing any such application. question "the concept of an interim care order sufficiently flexible to enable a judge to remove children temporarily R (Kang) v Cafcass [2010] EWCA Civ 317 from their mother's care in order for the assessment to be made". Counsel for the mother submitted that the judge did Renewed application for permission to appeal against not apply the correct legal test for approving a care plan for refusal to grant a father permission to apply for judicial removing children from parental care under an interim care review against Cafcass arising out of his dissatisfaction with order and that that the judge had approached his decision the service’s performance in private law proceedings. on the basis that the onus was upon the appellant to show Application refused. cause why the children should not be placed in foster care. Wall LJ rejects those submissions, citing the judgment below In the application for judicial review the claimant was extensively in support to show that the judge was rightly complaining of the way in which Cafcass operated its considering a welfare question and concluding that the Re complaints procedure and what the claimant thought was LA test was plainly met. He also makes observations on the an irrational determination. He had complained about the need to put local authority plans in writing and the guardian's "cultural ignorance and insensitivity". Under the important contribution of the guardian in court. Cafcass complaints procedure the complaint had reached stage 2 at which a service manager met the claimant and I (A Child) [2010] EWCA Civ 319 then wrote to him, upholding some of his complaints but rejecting others. However the claimant discovered that his Application by parents for permission to appeal, with brother had recorded the meetings with the guardian and appeal to follow, against refusal to set aside a judgment that the recordings proved other of the allegations, and so concerning findings that the mother of a child by a previous sought to escalate the complaint to a stage 3 investigation. father had injured her first eldest daughter. Application This was refused both by a regional manager and on review. granted but appeal dismissed. In the High Court it was argued that these decisions were irrational but that was rejected by Silber J. The original judgment had arisen from care proceedings in which there was a finding that the child had suffered In this application, a new counsel for the father argued serious, non-accidental brain injuries, which was not instead that the decisions infringed the claimant's Article 6 challenged, and that the mother was the only possible and 8 rights and, in oral submissions, that the complaint perpetrator, ruling out a babysitter. The mother had scheme itself may not be compliant. Wilson LJ rejects those subsequently given birth, by a new partner, to another child, submissions partly because "it is to my mind inconceivable who was removed at two days old. She had also been that, in these proceedings, at this stage, this court would subject to criminal proceedings of occasioning grievous allow argument to be raised, for the first time, about the bodily harm in relation to the injuries to the eldest child; in wholesale compliance of the Cafcass scheme with articles 6

www.familylawweek.co.uk Family Law Week May 2010 - 30 and/or 8" (the judicial review proceedings had been issued damages following the fraud; ii) there are no children to in September 2008) but also because he did not consider it consider; iii) although the husband was 77, there was no arguable that the scheme was not compliant. evidence of ill-health; iv) the husband would be able to buy a property with the equity from the sale of the home and the W (A Child) [2010] EWCA Civ 321 night-club. He therefore makes an order for possession and sale but delays the order for possession for four months to Application by mother for permission to appeal, with allow for a sale and purchase by the husband of a new appeal to follow, an interim care order. Application refused. property.

The interim care order had been made two days after the A v Independent News & Media [2010] birth of the child while she was still in hospital with the EWCA Civ 343 mother. The mother had three other children who were already subject to interim care orders after the eldest Appeal by the Official Solicitor against order allowing the daughter alleged that her step-father, the father of the child press limited access to hearings under the Mental Capacity subject to this appeal, had sexually and physically abused Act 2005 involving a gifted, well known but severely her. Both the mother and father had become the subject of disabled adult. Appeal dismissed. criminal proceedings arising out of these allegations and their bail conditions prevented them from associating with The subject of the MCA proceedings is blind, autistic and each other. The family history also included a suspicious dependent on others for his care. However he is also a gifted fracture suffered by the eldest daughter, post-natal pianist and this had come to the attention of the media. The depression and dirty living conditions. Before the circuit MCA proceedings were initiated so that his parents and judge, the mother had argued that she should be allowed to sister could be appointed as his deputies to ensure that his care for her new-born child at home under intense care, financial interests and career were better managed. supervision, or even under the supervision of foster parents. Those proceedings would include the presentation of evidence about his disabilities as well as the development of In the Court of Appeal counsel for the mother argued that his career. In the High Court, Hedley J, considering an the case of the new-born child was different as this was a application from the press to attend the hearings, decided to crucial stage in the development of the mother and child allow a limited number of press representatives to do so. relationship and that the circuit judge had not sufficiently considered this factor. However Wilson LJ states that the In this judgment, the Lord Chief Justice sets out the question is not what order would best enable a relationship legislative background regulating reporting of the Court of between mother and baby but whether the safety of the Protection, making a clear statement that under section 90 of baby demanded her immediate removal. He reviews the the MCA 2005, hearings will normally be held in private. reasoning of the circuit judge and concludes that she was However, the court is vested with a permissive power to right to take into account the hygiene issue in rejecting the enable anyone, and not just the press, to attend a hearing, supervision route and to find that no foster parents could but that such orders have to be made with good reason. The provide adequate protection to the baby, given the mother's Official Solicitor argued that in this case the judge had been history of post-natal depression. He therefore refused wrong to conclude that there was a good reason and that permission to appeal. nothing would be gained by permitting the press to attend. The Lord Chief Justice rejects those submissions as the Edwards v Edwards [2010] EWHC 652 (Ch) presence of

Judgment arising from enforcement of a charging order "a small number of media representatives would against the matrimonial home where the wife had forged somewhat reduce the privacy of the proceedings, it the husband's signature on a mortgage. An order for would enable those representatives to be fully aware possession and sale under section 14 of TLATA was made of the issues which may be of legitimate interest to in favour of the bank. the public and to make better informed submissions to the judge about the matters for which publication It was common ground that the wife had forged the should be authorised." husband's signature when arranging a mortgage of the home in 2003. In 2007 a Part 20 judgment was made against Although this finding disposed of the appeal the Lord Chief the wife for the sum outstanding under that mortgage. The Justice also comments on the judge's observations on the bank sought to enforce the judgment by charging orders impact of Article 10 on such proceedings. Hedley J had held against other properties owned by the husband, and a that the Article 10 rights of the media were not engaged nightclub was possessed by them. In this application, the until good reason had been established. However this bank was seeking relief on the grounds that it was an conclusion is rejected by the Court of Appeal, partly because equitable chargee of the property. of strengthening European jurisprudence on the issue.

William Trower QC, sitting as a Deputy High Court Judge, B (Children) [2010] EWCA Civ 363 first concludes that the bank has an equitable charge over the wife's 50% share of the property and that it has locus Appeal against refusal to allow the Official Solicitor to standi to make an application under s14 of TLATA. He then appoint an expert child and family psychiatrist when acting considers how he should exercise his discretion to make an as guardian for parents in care proceedings. Appeal allowed. order in the circumstances of the case. He finds, among other things, that: i) little weight should be given to the fact The Official Solicitor had started to act as guardian for the the order for sale concerns the matrimonial home as the parents after their 5 children were taken into foster care: the couple were estranged and he was still pursuing her for

www.familylawweek.co.uk Family Law Week May 2010 - 31 parents both had limited intellectual capacity. For the The two children had been removed from the parents' care purpose of the care proceedings several assessments were in 2008 after the youngest suffered a fractured arm. At a fact undertaken: i) the parents were assessed by a consultant finding hearing the judge had concluded that the father, psychiatrist; ii) a preliminary assessment to consider a full who had a history of violence, probably caused the injury, residential assessment was completed and ; iii) without that the mother must have been aware of the injury, that she judicial permission, the local authority in-house team had failed to protect the child by delaying taking her to assessed the family. The preliminary assessment had hospital and that she had lied to the court to protect the suggested that a child and family psychiatrist be appointed father. However, the judge had also praised the parents and so the OS sought permission from the judge. This was saying that "It would be very unfortunate if the children had refused by the judge. to be removed from their parents". He also referred to what seemed to be the local authority's closed mind on the case. In this appeal, counsel for the OS argued that the duty of the Following the fact-finding the mother tried to leave the Official Solicitor "in circumstances such as this is to garner father and moved to a refuge while continuing to have all relevant evidence to enable him to make a balanced contact with the children at a contact centre. At the judgment of the merits of the case of the incapacitated subsequent disposal hearing, the local authority argued that litigant and the likely outcome" and that in the light of this the mother was still seeing the father, using evidence both heavy duty "an application by the Official Solicitor for of sightings together at or near the contact centre and social permission to instruct an expert to report is one that, save in services offices and of the fact that the father had obtained the most exceptional cases, will be approved by the judge." the mother's mobile phone number. Accordingly, the local Thorpe LJ agreed and found that the judge had not authority alleged, the mother could not be trusted to care for explained why this case might be exceptional enough to the children as she was deliberately deceiving the social override the rule. He therefore allowed the appeal. He also workers and the court. The mother denied these allegations, makes further comments that the judge had also fallen into even calling for expert evidence on the CCTV footage. The specific error concerning the delay that would be caused judge however found that there was an ongoing and on his finding that the appointment of a further expert relationship and that because of this the children should be would merely repeat the views of the other experts. made subject to a care plan and placement orders.

CMEC v Mitchell [2010] EWCA Civ 333 In this appeal, counsel for the mother argued i) that the judge had erred in finding that there was a continuing Appeal by CMEC against ruling that an order made in the relationship; ii) that he had failed to carry out the necessary magistrates' court banning a driver for 12 months, balancing exercise or apply relevant provisions and iii) had suspended if he paid £5 a week in child maintenance, was not considered whether to make a contact order under the out of time under the Limitation Act 1980. Appeal allowed. Adoption Act. Baron J, giving the lead judgment, reviews the handling of the evidence and the requirements of the The respondent's wife had first claimed for child Children Act and the ECHR. She concludes that, although maintenance in 1993. Efforts to obtain payment were the judge's finding of fact should stand, his failure to unsuccessful. The Commission obtained a liability order in mention or deal with the Children Act undermined his 2002 for £15,339. Both Deductions from Earnings warnings orders and he had not considered whether there were any were issued and bailiffs instructed, but these measures were other options in place of adoption, especially where all the similarly unsuccessful. A summons was served in February experts agreed that the mother had good parenting skills. 2009 and after an adjourned hearing, the magistrates Wall LJ in a supplementary judgment agrees with and ordered that the respondent be disqualified from driving for reinforces the lead judgment. He then goes on to make 12 months but that was suspended on the ground that he severe criticisms of the local authority's conduct which pay £5 a week in maintenance. On appeal to the county struck him as court the judge decided that the application was barred under ss24 and 9 of the Limitation Act. "(a) entirely inimical to the ethos of the Children Act 1989; (b) wholly contrary to good practice in care In this appeal, counsel for CMEC argued that i) s9 of the proceedings; and (c) unduly adversarial." Limitation Act does not apply to s39A of the Child Support Act 1991 (that s24 did not apply in this case was conceded He then goes on: during proceedings) as neither is an "action to recover any sum recoverable by virtue of any enactment" ; ii) if that fails, "Indeed, I find it difficult to believe that in 2010, more then there should be consideration of the date of when the than 18 years after the implementation of the limitation period commences. Thorpe LJ agrees with the Children Act, a local authority can behave in such a first submission primarily because neither of the two manner. Here was a mother who needed and was possible orders that can be obtained under section 39A will asking for help to break free from an abusive result directly in the recovery of the sums due by way of relationship. She was denied that help abruptly and child maintenance, and therefore fall outside the precise without explanation. That, in my judgment is very wording of s9. Aikens LJ, in a supplementary judgment, poor social work practice. agrees. If we have learned anything in the past few years it EH v Greenwich [2010] EWCA Civ 344 is quite how difficult some women find it to break away from abusive relationships, however rational such a breach would appear to a disinterested Appeal by mother against care and placement orders. outsider. Here, in my judgment, was a mother Appeal allowed and proceedings returned for re-hearing by demonstrating that this is what she wanted to do. the same judge. She went to a refuge. She both needed and sought

www.familylawweek.co.uk Family Law Week May 2010 - 32

help, and was quite improperly rebuffed by a local function as the accommodation was provided under the authority which had plainly pre-judged the issue." Education Act 1996. Further, any suggestion that the local authority was "side-stepping" its obligation were F (A Child) [2010] EWCA Civ 375 contradictory as the placement was

Application by father for permission to appeal, with appeal "exactly what the family wanted, and the evidence to follow, care order. Application granted and appeal before me is that they are pleased with it and that it allowed. meets the claimant's needs."

The child, who is nearly 15 and had led a "chequered life", He also rejects the submission that the local authority acted had gone into foster care where she was said to be thriving. unlawfully in terminating the looked after child status as At an issues resolution hearing, which her guardian did not they had approached the matter with the "anxious scrutiny" attend, the judge made a full care order. In this application required and there was no reason to assume that the counsel for the guardian accepted that if the guardian had parental support would diminish once the placement attended the IRH it is likely that the judge would have made started. only a further interim care order to allow consideration of contact with the family. However, she argued that as public Amin v Amin [2010] EWHC 827 (Ch) funding had now been made available for fresh proceedings on contact, the full care order should remain in place. Costs judgment arising out of complex litigation over family businesses which had involved issues of quantum meruit, Wall LJ rejects that submission as the order at that stage was determination of beneficial interests in the family home and procedurally inappropriate and should be set aside. related occupation rent.

R(O) v East Riding of Yorkshire County The background and details of the litigation are set out in Council [2010] EWHC 489 (Admin) two judgments already published on Family Law Week. Amin & Amin v Amin & Others [2009] EWHC 3356 (Ch) concentrated on the beneficial interest and occupation rent Application for judicial review of a decision by a local litigation, in which the mother was at first seeking a 75% authority to cease to consider that a child was looked after share in the family home, later reduced to a 1/3 claim and once he had been accommodated in a special needs eventually resulting in a right to occupy for life. A residential school. Application refused. supplementary judgment Amin v Amin (supplemental) [2010] EWHC 528 (Ch) concerned the related quantum meruit The claimant was diagnosed with severe autism in 2007 claim where the wife of one of the principal litigants after he had been taken in for respite care: at that point he successfully sought an award for unpaid work provided to became a looked after child and subject to regular reviews. the family retail business. A SEN statement was also prepared and a school named though the parents were not happy with that choice. They In this judgment, Warren J adopts an issue-by-issue did not, however, appeal the decision. Judicial review approach running through each of the separate sets of proceedings, on different grounds from this hearing, were proceedings (there were other unfair prejudice actions issued but in October 2008 the consultant psychiatrist at the concerning the various companies and partnerships within respite care centre suggested that the claimant should have the family), assessing whether any costs should be awarded a 52 week residential placement, a view supported by other and, if so, which party should pay. He concludes that: i) the child professionals asked to report on the claimant. A new brother who had succeeded in defending the mother's claim SEN statement was prepared and the accompanying plan for a beneficial interest should be awarded 20% of the costs stated that once the claimant moved into the residential as, although he was unsuccessful on the related occupation school he would cease to be looked after under the Children rent point, he had had "the greater measure of success", and Act, instead the placement would be under the Education ii) although the quantum meruit claim succeeded, the Act 1996. The claimant began attending the new school, brother's wife would not be able to claim costs against the successfully, but the grounds for the judicial review were defendant partly as she had abandoned her primary case, amended to challenge the decision that he was no longer a which was for a share in the business, and also because she looked after child. had waited so long to assert her claim. In this judgment, the central question was CJ v Flintshire CC [2010] EWCA Civ 393 "whether the obligation to a 'looked after' child under sections 22 and 23 of the Children Act 1989 can Appeal by father, who was imprisoned for breaches of an continue, notwithstanding the claimant's 52 week a injunction in care proceedings not to contact any of his year residential placement". daughters who were still minors, against refusal to order immediate discharge from prison . Appeal dismissed. Cranston J provides a thorough review of the local authority's duties under the relevant sections of the The appellant, a father of seven daughters, now aged from Children Act 1989 and the Education Act 1996, as refined by 24 to 2 , had pleaded guilty to one act of incest with the recent case law. He also highlights the importance of the eldest when she was 18. In subsequent care proceedings, in parents' needs and wishes. He concludes that there was no 2005, the judge found that he had abused the eldest doubt the claimant was looked after under s22 of the daughter since she was seven and placed an injunction on Children Act when receiving respite care but that the the father having contact with the three children who placement in the residential school was not a social service remained minors, unless arranged by the local authority. In 2008 a suspended committal order was made after it was

www.familylawweek.co.uk Family Law Week May 2010 - 33 found that he had breached the order and on 17 November "not lightly grant permission to appeal findings of 2009, it was further found that he had regularly breached fact which had been made by an experienced judge the order including trips by the fourth daughter to stay with after five days of hearing when a great deal of his him in his caravan. The judge committed the appellant to 21 finding depended upon the credibility assessments months for contempt of court. The father did not attend that he made of various witnesses." hearing, but was arrested and imprisoned on the same day. Two days later he signed a notice seeking to purge his However he then reviews the submissions and the evidence contempt, undertaking to comply with the injunction in the within them, which revealed "obvious discrepancies" which future and seeking early discharge. That was refused and were "worrying enough" to consider that there may be a real the appellant made this application. risk of injustice. In particular, there was new evidence to suggest that the father's admissions of guilt relied on at the Wilson LJ, giving the lead judgment, reviews the relevant hearing could not have been made as described. He case law and then identifies eight questions that should "go therefore granted permission to appeal two refusals to allow into the melting pot" when considering an early discharge, permission to appeal, the fact finding itself and the the answers to which should form the basis of the residence order as it was possible that the judge had not conclusion "once they have melted together". These include: sufficiently considered the mother's possible personality disorder. Waller LJ adds comments agreeing with Ward LJ "Can the court conclude, in all the circumstances as and emphasising the unusual nature of the permission. they now are, that the contemnor has suffered punishment proportionate to his contempt? M (Children) [2010] EWCA Civ 67

Would the interest of the State in upholding the rule Appeals against finding of fact that a father had stabbed a of law be significantly prejudiced by early discharge? mother, refusals to to allow permission to appeal, a residence order in favour of the mother and a finding that How genuine is the contemnor's expression of the threshold criteria under the Children Act 1989 section 31 contrition?" had not been met. Appeals dismissed.

He then goes on to find that there was no evidence that The background and facts to this appeal are published would entitle the court to displace the judge's conclusion alongside the judgment giving permission to appeal available on Family Law Week. In this appeal, counsel for "that the application was not made bona fide; that the father submitted, among other arguments, that i) the the appellant lacked any firm resolve not to commit judge had reached a speculative conclusion on the finding a further breach of the injunction; that therefore the of fact; ii) he had disregarded the inconsistencies in the risk of a further breach and thus of sexual abuse of mother's account because of her stress, unsupported by the the minor children remained; and that accordingly evidence; iii) the father's alleged admissions of guilt were early discharge would accelerate their exposure to it." contradicted by telephone logs and transcripts now available to the court; and iv) he had been wrong to grant In a short supplementary judgment Sedley LJ considers the residence to the mother. The local authority argued that the appellant's submission that the sentence could be section 31 threshold had been met. suspended. The Court of Appeal in Harris had already ruled that this is not an option but he suggests a rule-change Thorpe LJ, after reviewing the judgment, the findings and allowing partial suspensions which he considers might be the fresh evidence, rejects all these submissions. On the useful in the future. accuracy of the father's admissions, he notes that the judge was not relying solely on them to reach his conclusion, as M (Children) [2009] EWCA Civ 1573 the father had also been an implausible witness. He further notes that "the judgment read as a whole demonstrates how Renewed application by father for permission to appeal careful and thorough was the Judge in his approach to an finding that he had stabbed his children's mother. extremely complex and finely balanced enquiry". On the Application allowed. residence order, he observes that the judge was following the guardian's recommendation that the "mother's Care proceedings had been initiated after an incident at the shortcomings were balanced by developing insight, a crisis family home, attended by emergency services, where the management programme and a willingness to seek mother had suffered a knife wound to her wrist. The father treatment". Finally he considers the local authority's appeal claimed that the wound was self-inflicted and the mother on the section 31 point. He finds that the judge was justified contended that he had attempted to wound her while she in concluding that there was no prospect of future harm and was asleep. The father was acquitted of attempted murder, that he was entitled to disagree with the guardian without within 25 minutes of the jury sitting, primarily as a result of giving reasons because the point was outside the guardian's the judge's direction in the criminal proceedings that the area of expertise. Wall LJ, in a short note, comments that he wife's evidence was unreliable: she had a history of had thought about writing a supplementary judgment but depression and dishonesty. In a subsequent hearing in the had changed his mind as the appeal did not raise any care proceedings the family judge found that the s31 general or important points of law or practice. threshold had not been crossed but that the wife's account of events was accurate. The case reverted to private law and he gave the mother residence but with contact.

In this application Ward LJ notes that the court will

www.familylawweek.co.uk Family Law Week May 2010 - 34

compulsory purchase. In 1985 the turnover was £350k and ITW v Z and M [2009] EWHC 2525 (Fam) by 2009 that had increased to £6.84m. In 2005 when the prospect of separation was known, the husband and his father invested £3m in a new processing plant and farm. Application by deputy for order authorising him to execute This had so far been a loss-making venture and had a statutory will. Order granted. significantly reduced the company's liquidity. The subject of the proceedings, M, was born in 1922, lacked Against this background, Charles J considers the husband's testamentary capacity, had no children and only had stance that since the land was inherited this was a farming infrequent contact with a distant cousin. She was being case, that he should retain 100% of the assets and that there looked after by a carer, Z, from 2004 until M was removed should be a clean break, limited by what could be raised to a care home under court order in 2008. The court had from the company through further borrowing. The judge ordered her removal after the local authority had rejects the notion that the case should be treated differently commenced proceedings for M's protection as a vulnerable simply because it involves a farm as this was not supported adult, since it considered that it was not in M's best interest by authority. He also rejects the clean break as the funds to continue to live with Z. At the same time Z had applied within the company could not sustain a payment that for an enduring power of attorney, but that was would be fair to the wife who, he decided, should have an subsequently withdrawn and a deputy, ITW, appointed to income of £80-90k per annum to match the standard of look after M's property and affairs. It emerged that Z had living at the time of separation. A significant part of the withdrawn significant sums from M's account, the use for judgment concerns the fair means of extracting funds from which could not be determined, including over £100,00 as a within the company. He concludes that the husband should gift with which he bought a house in Cyprus. He had also retain day to day control of the business, and that the recent been made the sole beneficiary of a will made in 2004, one investment is likely to be successful in the longer term and of five testamentary instruments M had made since 1996. It the award should reflect that position. He then makes an was against this background that the deputy made this award that the wife should retain the matrimonial home, the application to authorise drafting a statutory will. husband should pay a lump sum of £1.5m (this was to be funded by a dividend), a further cushion of £500k (£250k of In this judgment, Munby J (as he then was) reviews the which was the ability to downsize) and periodical payments powers of the court under the Mental Capacity Act 2005 and of £44k per annum. the authorities now derived from it. He comments that the framework is familiar to Family Division judges operating under the Children Act 1989, Adoption and Children Act H (A Child) [2010] EWCA Civ 448 2002 and Matrimonial Causes Act 1973. In assessing M's best interests he notes that there is no hierarchy of factors to Appeal against a contact order in favour of father consider, that the weight attached to individual concerning a 4 1/2 month old child. Appeal allowed. circumstances will vary from case to case and that, following Thorpe LJ in Crossley, there may be factors of The mother and the father are both English of Pakistani magnetic importance in determining the outcome. He also origin. The mother is 33 and the father is 43. The mother is agrees with Lewison J in Re P that those best interests do not the full time carer of their son, Z, who is four and a half cease at death. He then goes on to assess the factors in this months old. Z was born with a "clubfoot" and has to wear case finding that i) it was plainly not in M's best interest for orthopaedic appliances. When the mother returned home Z to be a beneficiary in any will, partly as he had already after Z's birth the relationship between the mother and the received significant sums from her which if legitimate (the father deteriorated. Matters came to a head and the mother Deputy was seeking recovery separately) recompensed him left in mid-November and has, since that time, lived with Z for time caring for M; ii) there should be provision for in Manchester which is her home city. The father is a general charities and a friend who had been beneficiaries under practitioner and lives in Ilford. previous instruments (when M still had capacity); and iii) the cousin J should not be a beneficiary as she had not been At first instance, an order was made which included given any provision in previous wills and so it would not be provisions that there should be an interim shared residence in M's best interests to go counter to those views. order in favour of the mother and the father, and that there should be interim staying contact with the father for one D v D [2010] EWHC 138 (Fam) week (seven nights in each and every four week period). The thrust of the contact order was that the father was to have Z with him at his home in Ilford during the contact Judgment in high value ancillary relief case involving period. The order was subsequently stayed in respect of, consideration of whether a clean break can be achieved amongst other parts, the interim shared residence and the where that outcome would be funded through the family interim staying contact. company. A clean break was rejected and a lump sum and periodical payments awarded. Scott Baker LJ, giving judgment of the Court of Appeal, concludes that the judge at first instance had paid The husband was a farmer and had inherited part of the insufficient heed to several important factors that ought to business which he ran with his brother and father (the have been considered under the welfare checklist: there was brother was subsequently bought out). The husband and no consideration of the father's parenting skills; that the wife began cohabiting in 1985 and married a year later. mother was at that time the sole carer of Z; that Z was very There were two children, now both at university. During young and had specific health needs; that the mother was the marriage the farming business had grown and still breastfeeding him; and that the order would be bound diversified into processing and packaging with help of a to cause the mother anxiety which would be likely to affect significant windfall from the sale of land under a Z adversely.

www.familylawweek.co.uk Family Law Week May 2010 - 35

as, among other reasons, i) no adequate notice of the However Scott Baker LJ determines that it is important that proposed removal was given; ii) the grounds for the change the father has 'proper contact' with Z. Accordingly, he of care plans did not indicate that the safety of the children allowed the appeal and, taking account of the father's work demanded immediate separation from the mother; iii) the schedule (working fully for one week and not at all the judge had been party to the misrepresentation that if the next), he substitutes for the interim order an order granting mother dropped her attempts to relax the injunctions her interim contact at a contact centre in Manchester when the children would not be removed; iv) the care plans did not father is working, and overnight contact in Manchester consider the issue of contact. He also comments, in the twice per fortnight when he is not. introduction, that because of the confusion over which order was under appeal, he could hear an appeal against the S (Children) [2010] EWCA Civ 447 judgment of 23 December, under the court's powers set out in CPD52.10(2)(a). Intractable contact dispute. Appeal against the conditions included in a contact order. Appeal allowed. A, H, C and W (children) [2009] EWCA Civ 1577 An order for contact with the father of two children, O and T, who were 12 and 13 years old, included a provision in the Appeal by father against finding that he had injured his following terms: baby son the day after his birth. Appeal dismissed.

"it is a condition of the contact … that the children The child had been born on Friday and spent the next two have to decide for each contact whether to take it up evenings with the parents. He was taken back to hospital on or not." the Monday as they had concerns about a swelling on the right thigh and the way in which the child was holding the The father argued that this amounted to no order. The leg. Examination revealed a fracture: described as "a classic condition conformed with the wishes and feelings of the metaphyseal lesion". In the subsequent fact-finding children, as expressed to their guardian. However, Thorpe hearing, the judge found that the injury was non-accidental, LJ concluded that their wishes and feelings were secondary a conclusion supported by all the medical evidence, and that to their welfare which, on the fact of the case, required the it had occurred on the Saturday night when the removal of the condition. inexperienced father was up most of the night looking after the child. The judge had considered the likelihood that the Accordingly the appeal was allowed and the condition set injury had been caused in utero or during post-natal aside, subject to a stay pending a remitted hearing. examination but had rejected that possibility.

S (Minors) [2010] EWCA Civ 421 In this judgment, Wall LJ comments to the father that, although he had rejected the application to appeal on paper Application by mother for permission to appeal, with and permission had since been granted by another judge, appeal to follow, order allowing removal of children to this was not unusual and stressed that he would look at the short term foster care. Application granted and appeal case "afresh and critically as possible". However he then allowed. states that the injury is a "classic yanking injury", requiring a degree of force, and that all the evidence points to a The removal arose from complex care proceedings in which non-accidental injury. He then reviews the judgment from there were allegations that the father subjected the mother the fact-finding hearing and concludes that it seemed to be and the children, along with another mother of his other "an immaculate fact-finding exercise. The case turns children, to a "chaotic, abusive and dysfunctional lifestyle", exclusively on its facts and the facts were all open to the and that there was sexual abuse arising from a previous judge to find". marriage. At the fact finding, in November 2009, the judge had made mild criticisms of the mother, saying that she was partly responsible for the lifestyle but was in principle able to care for her children. At the end of the hearing, she agreed to move from the matrimonial home to a refuge from which the father was prohibited from approaching. However when the local authority arrived to help her move they found a note from the father that had been left there during the hearing. The mother did not settle in the refuge, which she thought unsuitable, so, with local authority help, she moved back home on 17 December. On 23 December a hearing was listed seeking the father's committal for breach of the various injunctions. In the court corridor before that hearing, the mother was heard to express a wish to relax the injunctions so that she could communicate with the father, though in court this attempt was dropped. In the light of these developments, the local authority sought amendment of the interim care orders and immediate removal of the children to which the judge agreed.

In this judgment Wilson LJ reviews the events and concludes that the removal of the children was unacceptable

www.familylawweek.co.uk Family Law Week May 2010 - 36

adopted child or an adoptive relationship to be read as LEGISLATION including a reference to parental orders made under section 54 of the 2008 Act and for the purposes of paragraphs 1, 17 Human Fertilisation and Embryology Act and 18 of Schedule 4, it also includes a reference to parental 2008 (Commencement No.3) Order 2010 orders made under section 30 of the 1990 Act.

2010 No. 987 Made: 24th March 2010 Coming into force: 6th April 2010 This Order brings into force on 6th April 2010 the remaining provisions of the Human Fertilisation and Embryology Act Human Fertilisation and Embryology 2008 ("the 2008 Act") so far as they are not already in force (Parental Orders) (Consequential, by virtue of the Human Fertilisation and Embryology Act Transitional and Saving Provisions) Order 2008 (Commencement No.1 and Transitional Provisions) Order 2009(2) and the Human Fertilisation and Embryology 2010 Act 2008 (Commencement No.2 and Transitional Provision) and (Commencement No.1 Amendment) Order 2009(3). 2010 No. 986

This Order brings into force section 54 of the 2008 Act, Article 2 and the Schedule to the Order make consequential which makes new provision to enable parental orders to be amendments to take account of the repeal of section 30 of granted not only to married couples but also to civil the Human Fertilisation and Embryology Act 1990 ("the partners and two persons living as partners in an enduring 1990 Act") and the bringing into force of section 54 of the family relationship, provided certain conditions are met. Human Fertilisation and Embryology Act 2008 and the The current provision for parental orders in section 30 of the revocation of the Parental Orders (Human Fertilisation and Human Fertilisation and Embryology Act 1990 ("the 1990 Embryology) Regulations 1994 ("the 1994 Regulations") and Act") is repealed by this Order, although Orders made the Parental Orders (Human Fertilisation and Embryology) before 6th April 2010 under section 30 will remain valid. (Scotland) Regulations 1994 ("the 1994 (Scotland) This Order also brings into force provisions which update Regulations") at article 5. The areas amended relate to the the information provisions and powers relating to Parental Order Register, definitions of "surrogate child", the mitochondrial donation in the 1990 Act to reflect the new allocation of court proceedings and social security claims forms of parental orders. and payments.

Provision is also made to commence the remaining Article 3 of the Order makes transitional provision in consequential amendments in Schedule 6 to amend other relation to applications made under section 30 of the 1990 legislation affected by the new parental orders including, Act which have not been disposed of before 6th April 2010. for example, legislation relating to child maintenance. Article 4 of this Order makes saving provisions to ensure There are no other provisions under the 2008 Act to bring that, notwithstanding the repeal of section 30 of the 1990 into force. Act, that part of the 1994 Regulations that relates to Part 4 of the Adoption Act 1976 (status of adopted children) or Part 5 Made: 24th March 2010 of the Adoption (Northern Ireland) Order 1987 (status of Coming into force: 6th April 2010 adopted children) and that part of the 1994 (Scotland) Regulations that relates to Part 4 of the Adoption (Scotland) Human Fertilisation and Embryology Act 1978 (status of adopted children) are saved for the purposes of orders under section 30 of the 1990 Act. (Parental Orders) Regulations 2010 Made: 24th March 2010 2010 No. 985 Coming into force: 6th April 2010

These Regulations which apply to England and Wales, Family Proceedings Courts (Children Act Northern Ireland and Scotland are made under the Human Fertilisation and Embryology Act 2008. 1989) (Amendment) (No.2) Rules 2010 These Regulations apply, with modifications, certain sections of the Adoption and Children Act 2002 ("the 2002 2010 No. 1065 Act") (in regulation 2 and Schedule 1), Articles of the Adoption (Northern Ireland) Order 1987 ("the 1987 Order") These Rules amend the Family Proceedings Court (Children (in regulation 3 and Schedule 2) and sections of the Act 1989) Rules 1991. Adoption and Children (Scotland) Act 2007 ("the 2007 Act") (in regulation 3 and Schedule 3) to give effect to the They substitute a new Part IIA into the 1991 Rules. This Part arrangements by which a parental order may be obtained deals with an application for a parental order under section under section 54 of the Human Fertilisation and 54 of the Human Fertilisation and Embryology Act 2008 Embryology Act 2008 in England and Wales, Scotland and (c.22). Section 54 replaces section 30 of the Human Northern Ireland. Such an order may be granted by a court Fertilisation and Embryology Act 1990 (c.37) which has been in respect of a child who is born as a result of a surrogacy repealed. The rules for the application for a parental order arrangement and who is the genetic child of at least one of are modelled on the rules for the application for an adoption the applicants for the parental order. order contained in the Family Procedure (Adoption) Rules 2005 (S.I.2005/2795). Provision is made at Schedule 4 to these Regulations for references, in enactments listed in column 1, to adoption, Made: 25th March 2010

www.familylawweek.co.uk Family Law Week May 2010 - 37

Laid before Parliament: 29th March 2010 Regulation 7 amends Schedule 1 of the ContactPoint Coming into force: 6th April 2010 Regulations to allow the database to hold information on all parents of a child, and not only those with parental Parental Orders (Prescribed Particulars and responsibility or care of the child. Regulation 7 (and Forms of Entry) Regulations 2010 regulation 3) also replace references to "specialist and targeted services" in the ContactPoint Regulations with the term "additional services" as this is more commonly used. 2010 No. 1205 Regulation 8 substitutes "Action for Children" for "NCH" These Regulations prescribe in regulation 2 the particulars following the charity changing its name. which must accompany an application for a certified copy of an entry in the Parental Order Register relating to a Regulation 9 removes the Child Exploitation and Online person who has not attained the age of 18 years, and Protection Centre ("CEOP") from the list of bodies in prescribe in regulation 3, and Schedules 1 and 2, the form of Schedule 3 as this is no longer considered necessary, given entry to be made in the Parental Order Register pursuant to that they are already listed in Schedule 2 as a national a direction made by a court granting a parental order under partner and can therefore grant access to the database, section 54 of the Human Fertilisation and Embryology Act where appropriate, to their employees under regulation 9 of 2008. Such an order may be granted in respect of a child who the ContactPoint Regulations. is born as a result of a surrogacy arrangement and who is the genetic child of at least one of the applicants for that Made: 7th April 2010 order. The applicants for such an order must be: (a) husband Coming into force in accordance with regulation 1 and wife; (b) civil partners of each other; or (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other (as defined in section 58(2) of the Human Fertilisation and Embryology Act 2008).

Made: 6th April 2010 Laid before Parliament: 8th April 2010 Coming into force: 30th April 2010

Children Act 2004 Information Database (England) (Amendment) Regulations 2010

2010 No. 1213

These Regulations are made under section 12 of the Children Act 2004 ("the Act") and amend the Children Act 2004 Information Database (England) Regulations 2007 ("the ContactPoint Regulations"), which make provision in relation to the establishment and operation of the database known as "ContactPoint". These Regulations come into force on the day after the day on which they are made.

Regulation 4 amends regulation 4 of the ContactPoint Regulations to allow the database to hold information on all children "in the area of a local authority" in England, rather than only those who are "ordinarily resident in England".

Regulation 5 amends regulation 6 of the ContactPoint Regulations so that the Secretary of State for Children, Schools and Families (in addition to local authorities) can determine that those given access to the database can only see specific limited information ("shielding") on a particular record. Regulation 5 also amends regulation 6 of the ContactPoint Regulations so that the details of the child's or participating young person's parents or carers are not visible on a "shielded" record.

Regulation 6 amends regulation 8 of the ContactPoint Regulations to provide for records of children who are no longer in the area of a local authority in England to be archived after a certain date. This amendment follows on from the amendment in regulation 4 allowing the database to hold information on children who are not ordinarily resident in England, but are in the area of a local authority.

www.familylawweek.co.uk Family Law Week May 2010 - 38 APRIL CPD QUESTIONS: CHILDREN CXL/LAWE/0410/CH)

1. In W ( children) the Supreme Court considered the of the Adoption and Children Act to “a change” and issue of when a child should give evidence in person in the reference in s14D(5) of the Children Act to “a family proceedings. Which of the following statements significant change” in circumstances about the facts of the case are accurate? (see W (Children) [2010] UKSC 12) c) the guidance in M V Warwickshire for the correct approach to applications for leave to apply for a) the child who had made the allegations of sexual revocation of a placement order should similarly abuse was 14 years old apply to leave to apply for a discharge of special guardianship orders b) following a case management hearing the local authority agreed that the girl should give evidence 5. C ( Children) concerned disclosure of information in via video link private law proceedings. Which of the following statements about the judgment are accurate? (see C c) the Court of Appeal had sent copies of their (Children) [2010] EWCA Civ 239) judgement to the President for further consideration a) Thorpe LJ concluded that the guardian was 2. In W (Children) Baroness Hale came to which of the entitled to see the communication between the following conclusions? (see W (Children) [2010] UKSC father and his MP 12) b) the MP had met with the children to ascertain a) the existing presumption, which has to be their wishes rebutted, against a child giving evidence cannot be reconciled with the approach of the European Court c) Arden LJ concluded that the interference with the of Human Rights Article 8 rights of the father was proportionate as disclosure was provided only to the guardian at first b) the court will always need to have expert evidence instance before it can properly take into account the harm the child may suffer should they be required to give 6. In A (A Child) Wilson LJ comments that, following Re evidence P, s91(14) orders should be used as a sensible means to manage litigious parties and should not be seen c) in considering whether a child should be called as purely as a weapon of last resort (see A (A Child) [2009] a witness, the welfare of the child is relevant but not EWCA Civ 1548) paramount a) True 3. In W (Children) the Supreme Court found it appropriate to exercise its discretion afresh and b) False ordered that the child should give evidence (see W (Children) [2010] UKSC 12)

a) True

b) False

4. In G (A Child) Wilson LJ considered an appeal against refusal for leave to apply for discharge of a special guardianship order. Which of the following statements about the correct test to be applied in such applications are accurate? (see G (A Child) [2010] EWCA Civ 300)

a) the judge must be severely criticised for considering the matters specified in s 10(9) and the threshold criteria set out in s14D(5)

b) Wilson LJ proceeded on the basis that there is no relevant difference between the reference in s24(3)

www.familylawweek.co.uk Family Law Week May 2010 - 39 April CPD QUESTIONS: FINANCE & DIVORCE CXL/LAWE/0410/FP)

1. In Agbaje, The Supreme Court considered the 4. In Marano, the Court of Applea considered an appeal appropriate forum in an application for financial by the wife against a lump sum payable to the husband provision under Part III of the MFPA. Which of the where his property investments had slumped in value. following statements about the facts and the Which of the following statements about counsel for the background to the case are accurate? (see Agbaje v wife's arguments are accurate? (see Marano v Marano Akinnoye-Agbaje [2010] UKSC 13) [2010] EWCA Civ 119)

a) the couple were married in Nigeria before moving a) it was agreed that the husband was committed to to England to work trading out of the downturn

b) the wife issued divorce proceedings in England b) the judge had been wrong to use a snapshot before the husband issued divorce proceedings in valuation for an asset with a dramatically fluctuating Nigeria value

c) in June 2005, a judge refused the wife's c) the tax liability arising from the possible application that the ancillary relief claims should be liquidation of the husband's assets would not occur determined in England in the forseeable future

2. In the Court of Appeal, the wife's application to have 5. In Marano, Thorpe LJ dismissed the appeal partly the ancillary relief claims heard in England was because the judge was not bound by authority to have overturned for which of the following reasons? imposed a contingent liability (see Marano v Marano (seeAgbaje v Akinnoye-Agbaje [2010] UKSC 13) [2010] EWCA Civ 119)

a) disparity in potential awards is not a factor that a) True the courts should consider b) False b) the judge had not adequately referred to the parties connection to Nigeria 6. Francis v Francis was an application to appeal an order in ancillary relief proceedings involving Barder c) it was not sufficient to find that a serious injustice events. Which of the following statements are accurate? had been done to the wife simply because there was (see Francis v Francis [2010] EWCA Civ 182) no power to make a transfer of property order in the Nigerian court a) the French property, that the husband was set to own as part of the settlement, had dropped 3. Which of the following statements about the proper significantly in value since the district judge's order approach to Part III applications and the conclusion of the Supreme Court are accurate? (see Agbaje v b) in the High Court appeal, counsel for the husband Akinnoye-Agbaje [2010] UKSC 13) had submitted that there should be a rehearing

a) the legislative purpose of the statute is to c) Wilson LJ allowed permission for the second alleviate adverse consequences of no, or no appeal as it was arguable whether the principles in adequate, financial provision being made by a Barder apply to a timely appeal from a district to a foreign court in a situation where there was a High Court substantial connection with England

b) under s18(6) whether an order of a foreign court has been complied with would clearly be irrelevant in assessing whether England is the appropriate venue

c) the Court of Appeal erred in principle in applying the traditional forum non conveniens principles

www.familylawweek.co.uk