Family Law Week October 2006 - 1 October 2006

with the aim of reducing potential for News 1 NEWS conflict nullity orders should be able to be Analysis made without hearing oral evidence Views sought on new Children: Private Law 4 sets out proposals for shortening the Update (Autumn 2006) Family Procedure statement of arrangements for children and make it a part of the original Re - changing the face 6 of parenthood? Rules application The DCA has issued a consultation paper proposes introduction of 'statements of Case Digests setting out some of the proposals for the truth' rather than sworn affidavits as new Family Procedure Rules which are seen in the Civil Procedure Rules A v M [2005] EWHC 8 due to come into effect sometime in 2007. 1721 (Fam) The new Rules are currently being Part 3 - Financial Proceedings B (A Child) [2006] EWCA 8 discussed by the Family Procedure Rules proposes that new rules should be Civ 716 Committee, established under the Courts widened to include Schedule 1 Act 2003, with the brief of harmonising Children Act claims, applications J & K [2006] EWCA Civ 9 754 family proceedings across all family under the Matrimonial and Family courts and moving them into line with the Proceedings Act 1984 and proceedings Kimber v Kimber [2006] 9 Civil Procedure Rules wherever possible. in the magistrate court. EWCA Civ 706 This consultation is not seeking views on the final content of the new Rules - that Part 4 - Children Re M (A Child) [2006] 10 EWCA Civ 630 will be subject to a later process - but the new rules will incorporate the seeks instead to get views on a range of current Private Law Programme and Matin-Dye v Martin-Dye 11 proposals and ideas that are currently the Judicial Case Management in [2006] EWCA Civ 681 under consideration. Public Law Children Act Cases and will apply to all Children Act 1989 Trust A and Another v H 12 (An Adult Patient) The proposals have been presented under proceedings EWHC 1230 (Fam) six major sections summarised as follows significant changes to all relevant forms are also envisaged Cases: Short 13 Part 1 - Modernisation of language and process Part 5 - Family Proceedings in Magistrates Practice Direction 14 · asks whether service of Courts Family Proceedings: documents by email should be all family proceedings are to be Court Bundles allowed and what safeguards brought into a single set of rules and should be put in place the paper sets out some specific Legislation 17 · sets out proposed changes to questions concerning how this can be CPD Questions terminology so that, among achieved others, Decree Nisi becomes a Finance 18 'Conditional Order'; Ancillary Part 6 - Appeals Children 19 Relief becomes 'Financial Order' proposes that a single notice of appeal and Maintenance Pending Suit form is introduced Court Bundles 20 becomes 'Maintenance Pending part 52 of the CPR will be amended Outcome of Proceedings' and applied to all family proceedings there will be a new route for appeals Part 2 - Matrimonial and Civil Partnerships from the magistrate court via the Proceedings County Court proposes that all applications made by a respondent would be treated as an The full document and questions are application in the original proceedings available on the DCA website by using but would now be subject to a 21 day this link - time limit for response http://www.dca.gov.uk/consult/family_ proposes changes to rules relating to proceed_code/cp1906.htm. The naming of alleged parties to adultery consultation runs until 1 December 2006

GENERAL EDITOR Commissioning Editor Family Law Week is Stephen Wildblood QC, Martin West published by [email protected] Law Week Limited Albion Chambers 27, Charmouth Road, Publisher Bath Deputy Editor David Chaplin BA1 3LJ Claire Wills-Goldingham [email protected] Tel & Fax: 0870 145 3935 Albion Chambers

www.familylawweek.co.uk Family Law Week October 2006 - 2

Divorce rates fall by 8% burden on the current High Court for an order under section 8 of the bench. Children Act 1989 in 2005 Children who are able and who The Office for National Statistics has One paper covers responses to the want to proceed without a guardian released its latest update on the state consultation on authorisation and or a next friend should be able to do of divorce and marriage in England training in the Family Proceedings so in other family proceedings and Wales revealing that divorces fell and Youth Courts while the other is a It is not necessary for both the by 8% in 2005. compilation of responses to 'Focusing guardian and solicitor to attend all judicial resources appropriately: The hearings in cases where there is Interestingly, given Lord Justice Wall's Right Judge for the Right Case' which set separate representation recent comments on 'no-fault' out to find the proper role to be Children will be provided with divorces, the ONS has also analysed played by the High Court bench reliable information during the the reasons for divorce. In 69 per cent within the wider justice system; how course of proceedings to help them of divorces last year, the wife was to ensure the High Court bench is cope with associated anxieties and granted the divorce, and in 53 per cent focused on the most appropriate work uncertainties. of these it was on the grounds of the consistent with that role; and, how to To promote a cultural change that husband's behaviour. Where divorces manage pressures effectively at High will achieve a more child centred were granted to the husband, the most Court level and beyond. family justice system common fact proven was two years' separation with consent (32 per cent). The full text of the responses are http://www.dca.gov.uk/consult/sep available on the DCA website by arate_representation/cp2006.htm Other facts revealed by the survey using the links below include: Online forum opened for Authorisations to sit in Family children's views on family the average age at divorce in Proceedings Courts and Youth England and Wales has risen from Courts - courts 39.6 to 43.1 years for men and from http://www.dca.gov.uk/consult/f The DCA has launched a new website 37.0 to 40.6 years for women in the amily_proceedings_courts/cp2705. aimed at getting young people to air last ten years, partly reflecting the htm#responses their views about how they are treated rise in age at marriage Focusing judicial resources in court. The site, www.ofcf.net, will 1 in 5 men and women divorcing in appropriately - The Right Judge for run alongside the adult version, 2005 had a previous marriage the Right Case www.familycourtsforum.net, and is ending in divorce. This proportion http://www.dca.gov.uk/consult/f live until 9 October 2006. The site has has been increasing each year and ocus/focus_cp2505.htm#responses been prepared with the help of The has nearly doubled since 1981 Hansard Society as part of the DCA's when 1 in 10 men and women 'Digital Dialogues' programme, which divorcing had a previous marriage they see as a key part of their future ending in divorce New consultation on consultation policy. The site is Between 2004 and 2005, the number separate moderated and users can hide behind of divorces granted in the UK an alias to ensure privacy. decreased by 7 per cent to 155,052, representation of from 167,138. This is the lowest children The DCA is seeking views on a range number of divorces since 2000, and of issues including The DCA has published a consultation the first annual decrease since paper designed to lead to new court 1999/2000. This is 14 per cent lower how judges speak to children rules providing for separate than the highest number of involved in their parents' representation for children in family divorces which peaked in 1993 separation cases or in care proceedings. The consultation is (180,018) proceedings to ask their views, and seeking views on the following tell them the court's decision proposals: Further information and historical what young people think of new records can be found on the ONS guidelines for giving them separate A child should be made a party to website by following this link - legal representation in their parents' proceedings only where there is a http://www.statistics.gov.uk/cci/nu separation case legal need to do so gget.asp?id=170 what information should be When a decision is made to make a available about the court's DCA publishes responses child a party to the proceedings judgment in cases where decisions CAFCASS should be the preferred about the child have been made to court business choice of the court to act as the consultations Children's Guardian Resolution responded to the launch The DCA has published two sets of All levels of court and judiciary with caution with their chairman, responses to consultations issued last should have the authority to decide Andrew Greensmith, highlighting year in the wake of the Courts Act if a child should be made a party in some concerns: 2003. The consultations and the all family proceedings responses are seen as part of the All levels of court should be able to 'Of course, the interests of children continuing drive to create unified hear applications by the child are paramount in the debate about family procedures and reduce the concerned for the court's how open family courts should be. permission to make an application But comment is most valuable if it

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is informed comment. Children greater say practitioners are likely He also claimed that the Government who have experienced the current to have in legal aid planning with could take credit for a drive to reduce system will have done so at a time greater 'voice' under the new domestic violence stating that 'for the of great emotional upheaval. They system and better information on first time, under this Labour may not recognise the long-term costs and performance possible government, domestic homicides are damage that can be caused by too with larger specialised firms, may going down.' Despite the new pledge, much openness about their family's be undermined by the no concrete proposals were put life. Once information is in the administrative costs, especially as forward regarding forced marriages. public domain, like information on 'value for money' must be part of the internet, it is there forever, the tendering review however damaging it is. Commenting on the report's findings, Resolution is stressing the difficulty Desmond Hudson, the Law Society Need CPD of achieving "anonymity", Chief Executive said especially in small close-knit communities. It has urged the "The report proves what an before 1 government to adopt a cautious, unattractive prospect it can be to stepped approach to change. run a legal aid firm. Lord Carter's own figures show that a firm of 47 November? Justice has to be seen to be done, fee earners with three equity but over-exposure of personal partners could only achieve a 5% details can actually work against profit. It is not clear how those Then subscribe now to justice rather than towards it.' figures enable development, investment and reward at sufficient the Family Law Week The site is live now and can be viewed levels to provide a sustainable basis online training annual by following this link - for a business." subscription http://www.ofcf.net A full copy of the Report can be downloaded using this link - 800 legal aid firms http://www.lawsociety.org.uk/docu ments/downloads/dynamic/lecglega Only £49 could go under Carter laidanalysis.pdf + VAT for unlimited claims Law Society access to our online The Law Society claims that up to 800 course assessments for legal aid firms could disappear under Reid pledges to look at the impact of the Carter reforms. The forced marriages again 12 months from date of claim arises from the results of an John Reid, the Home Secretary, purchase independent report by LECG, a pledged to rexamine the issue of strategic research consultancy, forced marriage again in his speech to published on 26 September. The the Labour Party conference on 28 Plus report states that the current supplier September 2006, despite a decision in base is 'fragile' and that the impact of June this year that the practice should the reforms could seriously disrupt not be outlawed. Speaking within the Free copy of the current the sector unless 'careful consideration context of a speech concerning the edition Essential Family is given to firms' diverse needs'. terrorist threat he stated that in the UK The report also identified other issues men and women should be treated as Law Cases (on and areas of risk including equals which is subscriptions before

proposals for transition support 'why we will return again to the 31/12/06) seem inadequate considering the question of forced marriages. They impact of the changes are a breach of children's rights, a limitations on own solicitor and breach of women's rights and a And out-of-area work may weaken an fundamental breach of human important source of client choice rights.' and of inter-firm competition and 10% of any bookings on these proposals should be revisited price competitive tendering may be Lime Legal courses threatened by the creation of market power amongst large suppliers who are able to resist price reductions, and the CALL US NOW ON temptation for the government to continue to administer prices if it 0870 1453935 does not like market outcomes the positive aspects of price competitive tendering, such as the Reid: forced marriage a 'fundamental breach of human rights'

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parental dispute was that the welfare of the children was ANALYSIS paramount. Moreover, that principle was equipped to encompass the wishes of the parents, J v C (1970) AC 668 followed. However, the fact of parentage was still Children: Private Law important. G's status as the natural mother of the children was a significant factor to take into account, yet it did not Update (Autumn 2006) feature in the Court of Appeal's judgment. (2) The evidence showed that the children were happy and doing very well in G's home and that should not have been changed without good reason. Although G had deliberately disobeyed the court's order, since she had been located contact arrangements between the children and W had been reinstated and G continued to abide by the order. Had the situation been the usual case of a similar dispute between mother and father, it was difficult to believe that the court would have contemplated changing the children's primary home while contact was continuing in accordance with the court's order. K (A Minor) (Ward: Care and Control), Re (1990) 1 WLR 431; H (A Minor) (Custody: Interim Care and Control), Re (1991) 2 FLR 109 and In Re W (A Minor) (Residence Order), Times April 16 1993 considered.

Notwithstanding the same-sex relationship that was at the centre of this case, it is suggested that the principles John Tughan, 9 Gough Square considered are of universal application to disputes involving children. The importance of the biological link is re-stated and in the context of the recent case law involving John Tughan, barrister at 9 Gough Square, a change of residence following a refusal of contact this reviews recent decisions in private law decision is important in terms of the guidance given to children proceedings. courts of first instance.

In Re G (Children) [2006] UKHL 43 the House of Lords Two recent cases involving sexual abuse allegations are of considered some fundamental principles of general importance. importance to all cases involving children. The first is a decision of Mr Justice Coleridge made in the In this case G and W had cohabited in a same-sex context of care proceedings. In B v A the Court was dealing relationship, during which G conceived two children with Care orders that had been made in respect of two following anonymous donor insemination. Following their children, on the basis of the stepson's allegations that the separation the children stayed with G but had regular father had abused him sexually. Under the order the contact with W and remained happy with both parents. In children were moved to foster care and contact with the breach of an order imposed by the court G relocated with father stopped. When the children had been in foster care the children from the Midlands to Cornwall. W issued for four years the stepson, now 17 years old, admitted to applications to locate the children and made an application his family and to the authorities that his allegations of for a shared residence order and to be the primary carer. abuse had been false. The father and mother, with the The judge granted the order and reversed the times children's support, applied for the discharge of the care allocated to each home. Her reasoning was that she had no orders, unopposed by either the guardian or the local confidence that if the children remained in Cornwall G authority. In addition, the father sought to have the would promote the children's essential close relationship original findings of sexual abuse set aside. with W. The Court of Appeal upheld that decision. In the House of Lords G submitted that the courts below were It was held that it was right to re-examine the findings of wrong to attach no significance to the fact that G was the sexual abuse in the light of the fresh evidence. The original natural mother of the children. Moreover, G argued that findings of abuse were wholly wrong and should be set the High Court judge had been so distracted by her aside. The case offered a salutary lesson to all courts disapproval of G's behaviour, that she failed to give full dealing with these kinds of very serious sexual allegation. consideration to the evidence relating to the children's However good the procedures for interviewing children, welfare. G contended that the reversal in the parties' interviews were not evidence tested by the court. Had such positions in response to G's removal of the children to testing taken place, obvious inconsistencies in the versions Cornwall did not refer to the important fact that G was of events produced by the stepson would have been both their biological and their psychological parent and identified. The use of experts to produce personality there was no good reason to change the children's primary profiles as tending to show that an individual might have home. certain tendencies was to be deprecated. There was no substitute for live tested evidence in court and serious Their Lordships held : (1) The courts below had allowed consideration should be given to children of the age of this the unusual context of the dispute to distract them from child, rising 13, giving evidence with the usual safeguards principles that were of universal application. The key and the procedural arrangements familiar in the criminal consideration, reinforced by statute, in relation to any jurisdiction. The stakes were just as high in care

www.familylawweek.co.uk Family Law Week October 2006 - 5 proceedings if wrong findings were made as they were in psychiatrist emphasised that the discord was liable to criminal proceedings. harm C, and that relocation was the only way to avoid hostility, and C's guardian agreed. Although given in the context of a care case, this guidance may impact on the conduct of private law disputes The Court held (1) In the circumstances, a sole residence involving serious allegations of sexual abuse. The balance order in favour of F was out of the question. M had always of competing rights involved will mean that there are been C's prime carer and there were no concerns about her different considerations in play in the private arena, as his day to day care. There was no proper basis in C's interest Lordship pointed out the care jurisdiction findings meant on which a change of residence from M to F could be the stakes were just as high as in the criminal arena. The considered. Further, the prospect of shared residence same conclusion may be more difficult to reach in a private working when the parties could not talk to each other was case but it is suggested that it is arguable that the impact to very low indeed. The conflict between F and M did not family life of such findings is so serious as to allow a permit of a shared residence order at this time, and the proper forensic examination of the allegations. unanimous opinion of the experts could not be ignored and was decisive. F's application would, accordingly, be The second is Re F (Contact : Lack of Reasons) [2006] EWCA refused. (2) The genuineness of M's application, which was Civ 792, a Court of Appeal decision in which the approach motivated by her employment prospects and her mother's of the Court at first instance was criticised. health more than by a desire to exclude F, and the serious impact on M were she not able to go, were strong reasons The Court was dealing with the reinstatement of contact to allow M to relocate. Further, there would be a seriously between two children and their father in circumstances negative effect on C were the present situation to continue. where the father had been accused of sexual assault. The The short term upset for C of seeing less of F was, in the issue was remitted for retrial where the judgment of the circumstances, heavily outweighed by the prospects for the trial judge was so lacking in reasoning and substance that future with M in employment and a substantial reduction it presented at least an appearance of not having engaged in acrimony. M would, therefore, be granted permission to fully with the important issues in the case and it was relocate, conditional upon her fulfilling a number of wholly deficient in explanations as to how or why he had conditions, Payne v Payne (2001) EWCA Civ 166 applied. arrived at the conclusions that he had. A particular concern Those conditions included facilitating contact by F in the was the absence of explanation as to why the judge US, and the greater part of the proceeds of sale of her flat disbelieved two of the witnesses in relation to the second in the UK would be held for an indeterminate time to allegation. secure that.

A number of decisions on the issue of relocation of In Re N (Children) (2006) the Court of Appeal heard an children have been handed down. appeal by the appellant mother (M) who appealed against a residence order and a trial relocation order made in In F v (1) M (2) C (A Child by his Guardian) [2006] EWHC favour of the respondent father (F). F, while in the process 1783 (Fam), Mr Justice Sumner was dealing with an of emigrating to Canada, had applied for a residence order application by a a mother to take her four-year-old son to and a relocation order in relation to his two children (C live permanently with her in the United States. and S), aged 12 and 9 respectively. A residence order was made in favour of M, and F was granted contact, which F was homosexual, and had met M through his sister with continued after his move to Canada. On his return there whom M had a long-term lesbian relationship. M and the was a turbulent relationship between C and M and C ran sister decided to parent a baby and F provided sperm with away from school. F returned to England and resumed which M impregnated herself. Although it had been staying contact. After such contact C refused to return to agreed initially that F would be an uncle to the child, he M. F issued an application for a residence order in relation declared his intent to play a parental role. Years of bitter to both C and S and for permission to relocate to Canada. acrimony between F and M followed, ending M's An interim residence order was made in favour of F in relationship with the sister and leading to over twenty relation to C, and F subsequently conceded that S should court appearances, and allegations by M of sexual abuse of stay with M. At the full hearing the judge granted a C by F, who twice faced criminal charges in that respect. residence order in favour of F and granted a trial relocation Supervised contact between F and C resumed, but very order to be reviewed in a years' time. The judge held that F serious tensions remained on both sides. F contended that manipulated C in order that C should support F, and that he feared that M was coaching C to say negative things he had put C in an impossible situation. She further held about him, and that unless M could positively endorse his that C and S would be emotionally harmed if they were relationship with C, the court should consider a shared living in different parts of the world, but that despite residence order or sole residence order to him. M anxieties it was practicably impossible to reverse the submitted that she wished to move to the US with C structure of the interim order. because she had a good job offer there with improved housing prospects, and faced bleak employment prospects The Court of Appeal found that the crucial question for the in the United Kingdom; further, M's mother in the US judge was not the residence order, but the very difficult suffered poor health and needed her. M argued that she question of relocation. When considering the residence would provide generous contact to F, and that not going to order the judge carried out a full balancing exercise and the US would be devastating to her because of her mother clearly established her rationalisation for the order, but and because of the continuing acrimonious relationship when considering the relocation application the judge with F. The guardian stated that she was concerned that carried out a very sparse balancing exercise. Whilst the the level of conflict between F and M would seriously decision might have had pragmatic justification, the impact C in the future. Expert evidence from a child decision was not supported by reasons and findings, and it

www.familylawweek.co.uk Family Law Week October 2006 - 6 would be an injustice to M to allow the flaws in the judge's the President's Direction (Family Proceedings: Court decision to stand. The relocation order would be set aside Bundles) [2000] 1 FLR 536 and will come into force on 2 and the matter remitted for retrial. October 2006. It will not remove or alter any obligation to comply with the requirements of the Public Law Protocol. And finally, a must read document for all practitioners. The Practice Direction is reproduced on the HMCS site. The President of the Family Division issued a practice direction FAMILY PROCEEDINGS: COURT BUNDLES John Tughan (UNIVERSAL PRACTICE TO BE APPLIED IN ALL 9 Gough Square, London COURTS OTHER THAN THE FAMILY PROCEEDINGS www.9goughsquare.co.uk COURT) on 27 July 2006. It aims to achieve consistency across the country in all family courts (other than the family proceedings court) in the preparation of court bundles and in respect of other related matters. It replaces

Following separation, CG and the girls moved into another ANALYSIS property, with CW remaining in the former family home. Proceedings began in 2003, when CW applied for contact and shared residence orders. Thereafter, CG took the first Re G - Changing the Face of a series of unilateral decisions regarding the girls. She re-located to her new partner's home, enrolling the of Parenthood? children in a new nursery. CW, in accordance with CAFCASS recommendations, continued to have alternate weekend staying contact from Friday after nursery, until Monday mornings. However, CG began to question CW's role in the children's lives, more particularly opposing the parental responsibility that shared residence would confer upon her.

At the final hearing, CG gave evidence that she wished to move to Cornwall with her partner and the children. The CAFCASS Officer was against this idea, feeling the children had a happy and settled situation based on the sharing of time between both homes. The Judge agreed, and made a finding that the decision to move was partly based on a wish to frustrate contact arrangements between Abigail Bennett, Barrister, 3, Dr Johnson's Buildings the children and CW. She took the unusual step of ordering CG to remain living in her current area until Abigail Bennett of 3 Dr Johnson's Buildings further order. The shared residence order was refused (in analyses the recent House of Lords decision part due to the hostility between the parties), but the Judge in Re G [2006] UKHL 43 and its impact on ordered good quality frequent staying contact. An order contact in same - sex relationships. was made requiring CW to be informed about the girls' medical treatment and education. Re G [2006] UKHL 43 was a decision awaited with a high CW appealed to the Court of Appeal against the refusal of level of interest, addressing as it did a key issue for the the shared residence order (Re G (Residence: Same-Sex concept of 'family' - how important is the biological Partner) [2005] 2 FLR 957). Thorpe LJ allowed the appeal, relationship between child and parent? More specifically, making the shared residence order on the basis that the how does the biological status of parenthood sit within trial Judge's findings that there had been attempts by CG more diverse family units? Can a biological parent ever be to marginalise CW, led logically to the conclusion that a displaced in favour of a parent who has no blood clear message needed to be sent to the biological mother relationship to the child in question? that she could not 'achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into The most familiar context in which these questions have some undefined family connection'. The order requiring been addressed most recently is within the same-sex CG to remain living in her current area was expressly family. Re G concerned two women who lived together in a affirmed. lesbian relationship for 7 years. Following their decision to have children together, the younger of the two, CG, was Only one month later, after her written request to CW's inseminated using sperm from an anonymous donor. solicitor's asking to move the children to Cornwall had There followed the birth of two girls, Child A in 1999, and been refused, and in clear contravention of the Court Child B in 2001. The non-biological parent, CW, already order, CG took the children to live in Cornwall without had a 17 year old son from a former relationship, also informing CW. CW issued an application pursuant to the conceived as a result of anonymous donor insemination, Family Law Act 1986 to locate the children, resulting in a and all three children were brought up as siblings. transfer to the High Court and the appointment of a The relationship between CG and CW broke down in 2002, Children's Guardian. CG belatedly applied for the living when CW formed a relationship with another partner. restriction to be lifted, and CW applied for a sole residence

www.familylawweek.co.uk Family Law Week October 2006 - 7 order in her favour. In the interim, contact arrangements every sense of the term, while raising no presumption in were agreed along the lines of the previous order. The her favour, is undoubtedly an important and significant hearing was before Bracewell J. It is at this point that CG's factor in determining what is best for them now and in non-compliance with orders could perhaps be considered the future." to have become a distraction from the broader and more fundamental issues that this article serves to explore. A In my view, the judgment also contains a helpful analysis large proportion of the Court's focus centred on CG's of how to define different types of parenthood. Such ability to comply with orders in the future, and this was a definitions can be extremely complex, a point perhaps particular concern of the guardian. However, he concluded most clearly demonstrated in Re D (Contact and Parental that the risk of emotional harm to the children if they were Responsibility: Lesbian Mothers and Known Father) [2006] 1 moved from CG's care, outweighed the potential risk of FCR 556, in which I was led by Lucy Theis QC on behalf of CG continuing in her efforts to erode CW's role in their the father. In that case the use of a 'known' donor by a lives. lesbian couple to conceive their daughter left the Court with three parents, each with very different expectations of It is worth noting that at every level of judical intervention how their role within the child's life should be defined. in this case, the Court gave its full endorsement to the Baroness Hale draws a useful distinction between what she crucial 'parental' role that a non-biological parent can play describes as 'psychological' parents, and what we in a child's life. The fundamental importance of CW to commonly think of as 'biological parenthood'. The concept these children was not in doubt (save perhaps in the mind of 'psychological parenthood' is derived from the work of of CG). What became the central question posed by Goldstein, Freud and Solnit in 'Beyond the Best Interests of Bracewell J was whether or not the emotional harm the Child' (1973), who defined it thus: consequent on moving these children from CG to CW was outweighed by the risk of their being deprived a "A psychological parent is one who, on a continuous, relationship with CW. The judge, rejecting the Guardian's day-to-day basis, through interaction, companionship, views, concluded that it was. It was her finding that she interplay, and mutuality, fulfils the child's psychological could have no confidence that if the children remained in needs for a parent, as well as the child's physical needs." Cornwall with CG the latter would promote the children's relationship with CW and her family. Accordingly, the Clearly CW was a 'psychological parent'. In Re D both the Judge continued the shared residence order, but reversed child's biological and non-biological mothers fitted that the times spent under it, so that the children spent the role, but less easy to define was the role of the biological majority of term-time with CW. father. However, one clear principle emerges from both these cases and the existing case law, and one that is not all CG appealed to the Court of Appeal, where her appeal was that surprising. The role of the biological parent is an dismissed (Re G [2006] EWCA Civ 372). Whilst accepting important and significant factor in determining a child's the proposition that ‘the identity of a child's natural best interests, and in the situation of a same-sex couple (biological) parents is always a matter of significance’, who decide to have a child together, not one that is easy to Thorpe LJ concluded that the judge was fully entitled to displace. conclude that she could not place reliance on CG's ability to obey with court orders, and make the order she did. Whilst the implications of the decision in Re G may seem to However, at this stage judicial discomfort with the be limited, given that it endorses to a great extent what has proposition of removing a child from its biological parent gone before, I think that within the ambit of same-sex can be detected in the comments of Hallet LJ: relationships (and other potential family configurations), the impact will be felt. In my view it makes the decision as "I am very concerned at the prospect of removing these to who biologically parents a child within a same sex children from the primary care of their only identifiable relationship a crucial and potentially difficult question. In biological parent……. Mindful as I am of the changing real terms, how secure can the non-biological parent of a social and legal climate, on the facts of this case, I would child after same-sex relationship breakdown feel? To some attach greater significance perhaps than some to the extent there is reassurance - we must remember that the biological link between the appellant and her children." resulting order in Re G was a shared residence order. Furthermore, in Re D the court took the unusual step of The House of Lords, led by Baroness Hale of Richmond, obtaining expert psychiatric evidence from Dr Sturge, found that the High Court and Court of Appeal had not dealing with the impact on the child of the relationships taken anywhere near sufficient account of the fact that the around her. This evidence highlighted particular concern appellant was the biological mother of the children. The for the position of vulnerability of the non-biological Court reversed the terms of the shared residence order parent and the potential impact of that vulnerability on the back once more to the original arrangements. The difficulty child. But in reality, one may feel as I do that the Courts of this case was to a large extent, its novel facts. Would the may have increasing challenges ahead as family Court have considered the possibility of changing relationships within society continue to evolve. residence to the non-biological parent if CG had fully appreciated and nurtured her daughter's relationship with CW? I think the answer to this is an emphatic 'no'. Take the comments of Baroness Hale in her judgment:

"I am driven to the conclusion that the courts below have allowed the unusual context of this case to distract them from principles of universal application. First, the fact that CG is the natural mother of these children in

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factor and a proper expense to which regard must be had. CASE DIGESTS Furthermore there had to be an acknowledgment of the Father's obligations to his other 3 children.

A v M [2005] EWHC 1721 (Fam) Sumner J had difficulty finding sufficient basis for the District Judge's finding that the Father should be regarded Family Division: Sumner J (29 July 2005) as in receipt of a good income. The CSA regime provided a check against the level of child maintenance orders and a Summary Father paying £115 per week would be appropriate if he Father's appeal against order to pay periodical payments was earning £50,000pa. There was no evidence to suggest under Schedule 1 of the Children Act 1989 is allowed in that the Father's income was near this level. Whilst there part. Relevance of expenses for contact and obligations to were unexplained sums moving in and out of his accounts other children. these were probably capital sums rather than income. Sumner J considered the Father's income may be more than Background £2,500 as he had accepted but it would not permit payment The Mother of W, at the time aged 2, sought a capital sum of £500 per month whilst allowing for his obligations to his to house herself and her son and periodical payments other 3 children in France and the cost of travel to see W. under Schedule 1 of the Children Act 1989. The Father, a Accordingly, the monthly payments would be reduced to French national, was living in France with his wife and 3 £375pcm and increased to £450pcm if the Father did not children of 10, 7 and 3. District Judge Bowman awarded a exercise regular contact. capital sum of £175,000 and periodical payments of £500 per month. The capital sum was to be held in trust until W However, the award of £175,000 did not exceed the is 18 and would then revert to the Father and his wife. The generous ambit within which a reasonable disagreement is Father appealed. possible nor was it plainly wrong; it represented less than 16% of the absolute minimum capital owned by the Father The appellant Father attacked the order on several and his wife. grounds; that he was not hiding his assets; the costs of access to the child had not been taken into account at c£400 Appeal allowed in part. per round trip; the Mother's budget was exaggerated and she was seeking disguised maintenance for herself. The Father argued his offer of £100,000 for housing was B (A Child) [2006] EWCA Civ 716 sufficient as the Mother could release £50,000 from her own property and £300 per month maintenance was Court of Appeal: Wall LJ, Maurice Kay LJ (26 appropriate given she was earning more than him. The April 2006) Father submitted there was a community of property regime with his wife in relation to all property acquired Summary during their marriage, yet he failed to produce more than Father's appeal against order refusing permission to an extract from this agreement. However he did on appeal disclose papers in contact case to NYAS is allowed. produce a contract showing an income of £2,000 gross per month from consultancy fees Background Wall LJ described this case, as heard by HHJ Barratt QC The issues in dispute were the true extent of the Father's sitting in the Chichester County Court, as a 'classic assets and the housing and living needs of the Mother and intractable contact case'. The proceedings concerned S, W. The Father had been guilty of substantial non- aged 12 who was one of 5 children born to the mother. disclosure in relation to his properties, bank accounts, tax There had been no real period of family life with S's father. returns and the whereabouts of €1.8m received from the The 2 eldest children had a clear unhappy recollection of sale of his interest in an Internet bank. However it was S's father which had been communicated to S. Whilst the clear that he owned with his wife, a number of properties father had not seen S since August 1997, an order for in London and France creating at the absolute minimum indirect contact had been made in the form of cards, total family assets of £1.12m. photographs and videos which had been complied with. However a section 91(14) order was made for a term of 2 The Mother's case was that the Father and his wife had years. The present round of litigation began following the minimised assets and hidden the true picture. He had expiration of the section 91(14) period. Cafcass reported given no disclosure about the full extent of his assets and that there had been a glimmer for a moment that S might or his true employment position and therefore the judge be interested in meeting her father. After further was entitled to draw inferences which were less fortunate consideration S communicated she did not want to see her than might have been if the Father had been more frank. father. S also reported that her elder siblings had reported The Mother doubted the disclosed income given his high that F had been horrid. Cafcass was not concerned that S qualifications and intelligence. would be unduly influenced by her sisters. Cafcass recommended there should be no order for contact as it Judgment would not be in the interests of the child to enforce contact. Held, allowing the appeal in part, to the extent that the Indirect contact should continue. A psychologist District Judge's award in relation to periodical payments recommended therapy for the family and referred to the was too high. The District Judge's conclusions as to the question of whether S should be separately represented. F Father's income were plainly wrong. It was not clear applied for papers to be disclosed to Cafcass legal or NYAS whether she had decided to consider the cost of contact and submitted the question of separate representation between the Father and W, which was plainly a significant should be canvassed with them to see it either perceived it

www.familylawweek.co.uk Family Law Week October 2006 - 9 as a way out of the deadlock. The Judge expressed concern there would be some destabilisation and some emotional Neither the local authority nor the guardian sought to stress to the child and potential harm in uphold the judge's finding of anal intercourse since they the process of NYAS becoming involved and refused to argued there would be sufficient in all other findings to allow disclosure. enable the to case to proceed to disposal. Both accepted there were deficiencies in the judge's judgment. However Judgment they asserted the remainder of the judge's findings were Held, allowing the appeal, that the Judge was wrong not to not so vulnerable given there was independent or allow the papers to be disclosed to NYAS for the purpose corroborative evidence. of advising as to whether or not this case was appropriate Therefore the issue before court was whether the judge's for separate legal representation. more general findings could be salvaged from a judgment which was by common consent defective. The fact the Judge had very detailed knowledge of the case and had in the past seen and heard the parties was a strong It was proposed that the parties agree a threshold factor against disturbing the exercise of his discretion. statement which would allow the case to proceed to However, Wall LJ questioned whether the exercise was disposal. Accordingly a threshold document was agreed. within or without the band of reasonable disagreement or whether the Judge had given undue weight to or ignored Judgment certain factors. The Judge had not given any real weight to Held, allowing the appeal, that the judgment lacked the real possibility that S, properly encouraged and reasoning and was deficient. advised, might well think it in her interest to have an interview with her father. The hiatus between her original Thorpe LJ considered that the Judge had to explain how he statement to Cafcass and the later conversation supported came to positive conclusions against the family members the proposition that S is strongly influenced by what is said where there had been a retraction of their evidence, in to her at home. Wall LJ noted that the final hearing was particular by founding himself on available corroboration imminent and on the evidence before the Judge he would or independent evidence. However he had not embarked be bound to say that the end of the road had been reached on that exercise. Whilst Thorpe LJ was sympathetic with and there would be no point in further attempts at contact. the burden carried by the Judge he stressed the obligation Wall LJ considered that the Judge was wrong to think that. to present a reasoned judgment which demonstrates why However given S's age and the Mother's hostility to contact findings have been made and the process of reasoning it was arguably the final opportunity which the Father had behind them. Thorpe LJ was critical of the practice of to see if contact could be achieved. Whilst there was an reading into a judgment the threshold findings and then element of destabilisation in the adjournment of the final adopting wholesale the written submissions of counsel, as hearing, which was inevitable if the appeal was allowed, it was a dangerous practice likely to attract criticism. the exercise was purely a paper one. The court had to balance the short-term harm and destabilisation to the Permission to appeal allowed. Appeal allowed. The Court family against the longer-term interests of the child. annexed to the order the agreed threshold statement.

Appeal allowed. Permission to disclose papers to NYAS granted Kimber v Kimber [2006] EWCA Civ 706 J & K [2006] EWCA Civ 754 Court of Appeal: Brooke LJ, Wilson LJ, Hallett Court of Appeal: Thorpe, Smith and Hedley LJ (11 April 2006) LLJ (9 May 2006) Summary The Husband appealed an order which he contended Summary refused his application to be released from an undertaking Appeal against findings of anal intercourse in care not to leave England and Wales. Permission to appeal proceedings allowed. against order is refused.

Background Background This was an application for permission to appeal following In ancillary relief proceedings the Husband had removed a fact finding hearing in care proceedings. The proceedings the parties' joint assets from the jurisdiction without the were brought following serious allegations made by the Wife's knowledge or consent. The Husband had gone to mother and the eldest child against the step-father and live in France and elected to take no part in the recorded in contemporaneous statements to the police and proceedings which resulted in an order for transfer of the others. However the family members then collectively FMH to the Wife, a lump sum of £333,000 bringing the retracted the statements. The fact finding hearing was held Wife's capital up to half of the perceived joint assets and over 4 days by His Honour Judge Gee and the findings fell periodical payments at £42,000 pa. The Husband did not into four separate categories: (1) domestic violence comply with any part of the order. between Mother and Father; (2) anal intercourse between step-father and eldest child; (3) inappropriate sexual When the Husband was temporarily in UK he was arrested boundaries between child and step-father; (4) a specific by chance and the Wife obtained orders for his detention. occasion on which the mother had caught eldest child and The Husband then gave undertakings not to leave until her then husband in bed together. An immediate further order, which had remained in force since December application for permission to appeal was refused. 2004. The Husband issued an application to be released

www.familylawweek.co.uk Family Law Week October 2006 - 10 from this undertaking, which was heard by Coleridge J on Direction supplementary to Part 52 of CPR which provides two separate occasions. In the meantime the Husband that an application for permission should be made orally at applied for leave to appeal the final ancillary relief order. the hearing at which the decision is made. This was further In addition to the Wife's non-disclosure of her remarriage, stressed in Re T (Contact: Alienation: Permission to Appeal) the Husband also alleged he had removed the parties' joint [2003] 1 FLR 53. However he gave the Husband the benefit money into an entity in Liechtenstein with a view to of the doubt. obstructing the Wife's claims. Allegedly the foundation was constructed on terms that the Husband was to receive The Husband must remain in jurisdiction pending the £40,000 pa but the capital was to be held irrevocably for his Wife's application for committal but as soon as that is two adult children from a previous marriage. Therefore he resolved the wider issue as to his detention must be submitted he had no right to the capital or for it to be determined. Wilson LJ advised Coleridge J to determine restored to him. He did not have any documentation whether the order for the Husband's payment to Wife of a regarding the transfer and creation of the foundation. At lump sum should stand before future efforts for the hearing of his application to be released, the subject of enforcement are made. dialogue between the Husband and Coleridge J focused on one short trip to Liechtenstein and Zurich in order to Permission to appeal refused. obtain the necessary paperwork to prove his assertions. Coleridge J adjourned the matter, ordered the Husband to file an affidavit setting out his specific proposals for this Re M (A Child) [2006] EWCA Civ 630 trip including what security he could provide for his return and refused his application. Court of Appeal: Thorpe and Wall LJJ (18 May 2006) The Husband appealed. He believed his application had been entirely refused and argued that the court had no Summary continuing jurisdiction to cause him to be detained. Mother's appeal against judge's refusal to order return of abducted child to France allowed. Subsequently the Wife issued an application for committal for breach of various orders made against the Husband. Background The child was born in August 1991. His parents (who were On appeal the Husband relied upon the right of European French) were not married but, following their separation in citizens to free movement around the states and stressed 2001, proceedings were initiated in France, and an order the jurisdiction to detain a person can be exercised only in was made for joint parental responsibility, with residence the short term and as ancillary to a free-standing process to the mother and contact to the father. which his absence would otherwise frustrate. In August 2005, during an agreed period of staying contact Judgment in France, the father removed the child to England, in Held, dismissing the appeal, that the Husband had not breach of the mother's custody rights and of the orders of raised his arguments in relation to the wider issue, namely the French court. The mother applied at once to the French whether there was any justification for his continued Central Authority and, in September, proceedings in detention, before Coleridge J and therefore the Appeal England were issued under the Child Abduction and court could not say one way or another whether the Judge Custody Act 1985 (the 1985 Act) and the inherent was wrong in relation to a decision he never made and to jurisdiction. Following various listing delays, the trial took which he heard no argument. place in February 2006.

At the hearing before Coleridge J the Husband expressly At the trial, the judge reviewed the relevant legislative assented to the Judge's treatment of the issue as a narrow provisions, namely the 1985 Act incorporating the 1980 question of one short trip. He did not invite the Judge to Hague Convention on International Child Abduction (the peruse his skeleton argument which contended for a wider Convention) and Council Regulation (EC) 2201/2003 order. The Husband's revised arguments before the Court (Brussels II Revised), and considered that the child's were proper arguments but had not been properly raised objection to return was made out. He then proceeded to before the court below and thus had not been addressed. the exercise of discretion, balancing the strength of the Coleridge J was expressly adjourning the matter to a date child's objections, together with certain welfare when evidence would be available on basis that the only considerations, against the policy of the Hague part of Husband's application, which was sought to be Convention, and concluded that the discretionary balance pressed, was for permission to make one short trip. The was weighted against the return order. refusal of the application on the face of the order was inconsistent with the fact the Judge was expressly On this appeal, the mother contended that the judge had adjourning the matter. The court noted it had power to failed to give sufficient weight to the French court process, restrain a party from leaving the jurisdiction in certain since the French court was fully seised of the welfare case circumstances. However the question was inappropriate to settle the child's future; further, the judge should not and entirely academic given the Wife's application for have relied on the child's belief (instilled in him by the committal. father) that justice would not be achieved in the proceedings in France and that he would not be involved Wilson LJ was surprised the Husband had not applied for in those proceedings. permission to appeal before Coleridge J. Had he done so Coleridge J would have detected his aspiration for a higher For the father, it was argued that the judge had correctly order. Wilson LJ highlighted the importance of the Practice applied Z v Z [2005] EWCA Civ 1012 and had carefully

www.familylawweek.co.uk Family Law Week October 2006 - 11 balanced all relevant considerations in arriving at his Martin-Dye v Martin-Dye [2006] EWCA discretionary conclusion. Civ 681 Judgment Court of Appeal: Thorpe and Dyson LJJ and Held, allowing the appeal, that the judge had erred in the Lord Phillips CJ (25 May 2006) exercise of his discretion. Peripheral welfare considerations had wrongly been included in the discretionary Summary conclusion, and the judge should simply have weighed the Husband's second appeal concerning the treatment of nature and strength of the child's objection against the pensions in payment in ancillary relief proceedings policy of Brussels II Revised and the fact that the essential allowed. welfare investigations and decisions had to be taken in France. Background The parties married in December 1987; at that time, they For a child's objection to return to prevail over the policy of had assets of approximately £1.67 million, of which the the Convention and Brussels II Revised, there had to be wife had contributed four-fifths and the husband one-fifth. something in the facts of the case that took it out of the The parties divorced in August 2003 and, by the time of the ordinary into the exceptional; this case contained nothing ancillary relief hearing in September 2004, they had in the facts relating to welfare that warranted the judge amassed by their joint efforts an estate worth about £6.3 exercising his discretion as he did. million, comprising a number of properties and the husband's and wife's pensions in payment valued at The court drew particular attention to the delays that had £940,000 and £100,000 respectively. occurred in the proceedings, and stated that the judge had not referred to the requirement for maximum expedition, In the ancillary relief proceedings before the district judge, or to the extent of the breach of Regulation 11(3) of both parties sought a clean break. The husband contended Brussels II Revised (which requires proceedings for the that the assets should be split equally, with all the return of a child to be completed within six weeks 'except properties being sold and each party retaining their where exceptional circumstances make this impossible'). At pension. The wife's case was for a 62.5:37.5 division of paras 44 to 46 of the judgment, the court made comments, assets in her favour; she particularly sought the transfer of approved by the President, concerning procedural factors the husband's share of the family home, which was also the governing future cases, such as the heading to be used for site of her successful business, and accepted that each Brussels II Revised applications and the marking of court party should keep their own pension. Neither party's files with the 'hear-by' date, to assist in the expeditious primary contention was for a pension-sharing order, and hearing of such cases. both presented the two pensions as assets together worth over a million pounds. Finally, the court expressed the opinion that, in sensitive international cases relating to children, where the foreign The district judge concluded that a fair split of the assets court was plainly the right forum in which to decide the totalling £6.3 million would be 57:43 in favour of the wife, children's future, it was incumbent on English judges, if with each party's share including their pension as valued they were not going to return the child, not only to ensure above. The husband appealed against the judgment, that they were not trespassing on the foreign court's challenging the treatment of the pensions in payment, but jurisdiction, but also to explain clearly both why they the appeal was rejected by the judge. Permission for a decided on that course of action, and why they took the second appeal was granted, as the appellant's notice raised view that it was not inconsistent with comity and a sufficient point of principle to justify it. international judicial co-operation. The court reviewed the decision of the district judge and the judge's reasoning on appeal.

Judgment Held, allowing the husband's appeal, that the judgment of the district judge was flawed and the judge had been wrong to reject the appeal.

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www.familylawweek.co.uk Family Law Week October 2006 - 12

In dividing the available assets between the parties, the intense abdominal pain; at that stage, she received in- district judge had ignored the essential differences between patient treatment, and a CT scan confirmed a large ovarian saleable property and an income stream derived from an tumour with strong indications that the tumour might be inalienable pension in payment; when she said that she malignant and that she was suffering from ovarian cancer. had 'weighed all the other section 25 factors in the balance', it was not at all clear that she had factored in the different The patient was advised that she needed surgery to nature of the pensions; indeed, the husband was entitled to remove the tumour, but she adamantly refused. receive a reasoned response to his submission that the Accordingly, the Primary Care Trust and the Hospital NHS pensions were different in kind from the other assets and Trust applied to the court for a declaration: (1) that the should be left out of account, but he did not receive any patient lacked capacity to make decisions about her such response. Further, the district judge's rejection of the medical treatment for the ovarian cyst and her general husband's alternative application for a pension-sharing gynaecological condition; (2) that it was in the patient's order was insufficiently reasoned. best interests to receive the recommended medical treatment; and (3) that it was lawful for those delivering As to the judge's decision on appeal, the court considered such medical treatment to provide sedation and, if that (1) he had wrongly construed the district judge's necessary, reasonable physical restraint, in order to assessment of the nature of the parties' assets; and (2) he administer pre- and post-operative treatment. failed to deal with the submission that the district judge's reasons for rejecting the claim for a pension-sharing order A gynaecological report was prepared jointly by the could not be sustained, since the husband's criticisms consultant responsible for the patient's care and by a appeared to be well founded and constituted an consultant in the independent sector who was instructed as independent ground of appeal. an independent expert by the Official Solicitor (representing the patient as her litigation friend). A joint The court offered some useful guidance on the treatment of agreed report on the patient's mental condition was also pensions in payment in clean-break cases, by reference to prepared, and there were reports from a consultant clinical the wording of section 25(2)(a) of the Matrimonial Causes oncologist and a consultant anaesthetist. Act 1973: while 'property' consists of houses and investments, and 'income' is the receipts anticipated from There was essentially a unanimous view between the the parties' continuing endeavours, 'other financial medical experts concerned with the patient's care that the resources' is the appropriate categorisation of pensions in surgery proposed was in her best interests and should be payment. performed without delay. Similarly, all were agreed that she lacked capacity to make decisions about her medical In this case, the district judge had the option of leaving the treatment for her ovarian cyst and gynaecological pensions undisturbed, compensating the wife for the condition. Further, the Official Solicitor accepted these disparity in income ('offsetting'), or making a pension- opinions, and believed it to be in the patient's best interest sharing order, adjusting the apportionment of the capital that if, as expected, she continued to withhold consent to property to reflect its effect. The district judge adopted the operative treatment, she should be sedated for that former approach, but should have favoured the pension- purpose and, if necessary, there should be use of sharing order. Accordingly, the court ordered the 57:43 reasonable physical restraint in order to administer pre- division in favour of the wife to be applied to the pensions, and post-operative treatment. with an increased balancing payment to be made by the wife to the husband. Findings In view of the medical evidence, the President was Finally, the court observed that the difficulties encountered satisfied that the patient lacked capacity to make decisions in this case should not recur, as the Family Proceedings about her medical treatment, as it was clear that she did (Amendment) (No 5) Rules 2005, SI 2005/2922 (in force not appreciate the seriousness of her condition and the from 5 December 2005), introduce Form P, which should sense of threat to life which it presented if not alleviated by be used in every case where a pension is significant and the recommended surgery. where a pension-sharing order might be made. The President was also satisfied that it was in the patient's best interests to undergo the surgery, bearing in mind the positive (though not absolute) obligation imposed by Trust A and Another v H (An Adult Article 2 of the European Convention on Human Rights to give life-sustaining treatment where responsible medical Patient) [2006] EWHC 1230 (Fam) opinion was of the view that such treatment was in the Family Division: Sir Mark Potter P (25 May patient's best interests. At law, 'best interests' were not 2006) confined to best medical interests, and needed to take into account a broad spectrum of medical, social, emotional and Summary welfare issues. The President reached his conclusion after Declaration that schizophrenic patient lacked capacity to weighing the advantages and disadvantages that emerged make decisions about medical treatment granted. from the evidence before him.

Background The President therefore granted the declaration in the This case concerned a 45-year-old female patient who terms sought; however, he made it clear that, if post- suffered from schizophrenia and, as a result, was operative chemotherapy were required and the patient delusional. In early 2005, she complained of a distended resisted it, forcible administration of such treatment was abdomen, but refused any blood tests or further not covered by the declaration, and a return to court to investigations. By December 2005, she was suffered from resolve the issue might be appropriate.

www.familylawweek.co.uk Family Law Week October 2006 - 13 Full text judgments published this month The full text, with a short summary, of the cases listed below were published in full on the Family Law Week site in September. Full digests are currently in preparation and will be published in due course.

D (A Child) [2006] EWCA Civ 1204 Stephen Wildblood QC concludes that a concluded that the judge was right to This is an application for permission to kyogi rikon is a recognisable divorce for consider the facts in the round using his appeal orders placing D in care and these purposes and refused to grant the discretion under s25 of the MCA 1973. freeing him for adoption. The application decree of nullity. was refused. LTF v LMF [2006] EWCA Civ 1179 H (A Child) [2006] EWCA Civ 1247 This is an application by a father for The mother had three children, two older Appeal relating to refusal to allow a child permission to appeal a circuit judge's boys with one father who were all now to be joined as a party to Hague refusal to allow an application for living in Australia, and another boy, D, by Convention proceedings. Appeal indirect contact while he was subject to a different father. In the original dismissed. a s91(14) Children Act 1989 order. The hearings the mother had said that if the application was refused. two older children went to Australia she The key interest in the judgment lie in would not seek to stop the care order of counsel's attempt to argue that following The judgment is deliberately lengthy as D. Once this had occurred she sought Mabon v Mabon & Ors [2005] EWCA Civ Wall LJ intends that it should act as a permission to appeal that order. 634, the exceptional circumstances in steer for any future proceedings. Despite Wall LJ reviews these events but, which a child can participate in Hague refusing this application he adds that although sympathetic to the change of Convention proceedings should be there should be contact between father mind by the mother, agreed that the relaxed in line with private law and children and outlines the need for judges involved had no option but to proceedings in England and Wales. Both professional help in future. grant the care and freeing orders. Thorpe LJ and Wall LJ rejected this proposition. R v Levey [2006] EWCA Crim 1902 Devjee v Patel [2006] EWCA Civ Appeal against conviction for 1211 H (Children) [2006] EWCA Civ 1206 manslaughter in a criminal case This is an appeal against prison This is an application by a father for principally on the grounds that the judge sentences imposed for breach of a non- permission to appeal findings of fact, a in care proceedings, held before the molestation order under the Family Law contact order and an order under criminal trial, had not been able to find Act 1996. The appeal was dismissed. s91(14) of the Children Act 1989. that the appellant had committed the Permission was refused on all three crime so to continue with the criminal The appellant's case was that he had counts. indictment was an abuse of process. not had a fair trial; evidence had been Appeal dismissed. presented which was inadmissable; the The principle interest in the judgment is correct procedure had not been applied Wall LJ's review of the trial judge's In his judgment, Sir Igor Judge, and the sentence was excessive. In the imposition of the s91(14) order, which President of the Queen's Bench Division, lead judgment Wall LJ reviewed the facts he found to be well reasoned, balancing reviews the relevant case law and of the case and concluded that the the interests of justice with the emphasises that the care proceedings judge at the hearing had been within his appellant's human rights. were primarily concerned with the discretion in the procedure and the welfare of another child of the family sentencing imposed. He added that the K (Children) [2006] EWCA Civ 1205 and not in determining whether the CPR enshrines the idea that an absence This is an application for permission to victim had been killed unlawfully and by of the correct procedure does not mean appeal against the refusal to grant an whom. that the hearing is unfair. order for contact sought by the half brother of three younger sisters. The S (Children) & E (A Child) [2006] Gamboa-Garzon v Langer [2006] application was refused. EWCA Civ 1190 EWCA Civ 1246 These were two applications for Appeal against a refusal to award a The application centred on the claim permission to appeal concerning costs order in proceedings combining that the hearing had been unfair as the applications for relief under the Children ancillary relief and a civil claim by the applicant, who was then in prison, had Act 1989 when the applicants are the husband's girlfriend against the wife. not been produced to attend in time. subject of s91(14) orders under that Appeal allowed. Wall LJ rejects this as the hearing was Act. One application succeeded, the on paper and was not to include oral other failed. In this judgment Wilson LJ fund the trial evidence: therefore the applicant's case judge's decision not to award a costs had been satisfactorily put, even in Wall LJ's judgment tackles several order was severely flawed, particularly these unusual circumstances. questions relating to s91(14) orders, his finding that the girlfriend's solicitors namely: 1) can conditions be attached; had not reacted promptly to Lake v Lake [2006] EWCA Civ 1250 2) the correct approach for permission developments in the proceedings. Application for permission to appeal, to appeal; 3) the circumstances in which with appeal to follow, an order for a a s91(14) order should be made without H v H (Queen’s Proctor Intervening) transfer of tenancy. Permission to a restriction of time or until a relevant (Validity of Japanese divorce) appeal granted but appeal dismissed. child reaches 16; 4) notice to the other This judgment concerns whether a form party. of divorce in Japan, a kyogi rikon, is a The case is of interest because counsel divorce 'obtained by means of for the husband argued that when a proceedings' for the purposes of s46(1) tenancy is transferred under para 5, of the Family Law Act 1986. schedule 7 of the Family Law Act 1996 conduct should not be a factor in In this case the husband was claiming contrast to an occupancy order under for a decree of nullity on the basis that s33 of the same Act. Thrope LJ, in the wife was still married, as the form of granting permission to appeal, found divorce was not recognised here. that the proposition was arguable but

www.familylawweek.co.uk Family Law Week October 2006 - 14

3.2 The party preparing the bundle shall paginate it. If PRACTICE DIRECTION possible the contents of the bundle shall be agreed by all parties.

FAMILY PROCEEDINGS : COURT Contents of the bundle BUNDLES 4.1 The bundle shall contain copies of all documents (UNIVERSAL PRACTICE TO BE APPLIED IN relevant to the hearing, in chronological order from the front of the bundle, paginated and indexed, and divided ALL COURTS OTHER THAN THE FAMILY into separate sections (each section being separately PROCEEDINGS COURT) paginated) as follows:

President’s Direction - 27th July 2006 (a) preliminary documents (see paragraph 4.2) and any other case management documents required by any other 1 The President of the Family Division has issued this practice direction; practice direction to achieve consistency across the country (b) applications and orders; in all family courts (other than the Family Proceedings (c) statements and affidavits (which must be dated in the Court) in the preparation of court bundles and in respect of top right corner of the front page); other related matters. (d) care plans (where appropriate); (e) experts’ reports and other reports (including those of a Application of the practice direction guardian, children’s guardian or litigation friend); and 2.1 Except as specified in paragraph 2.4, and subject to (f) other documents, divided into further sections as may specific directions given in any particular case, the be appropriate. following practice applies to: Copies of notes of contact visits should normally not be (a) all hearings of whatever nature (including but not included in the bundle unless directed by a judge. limited to hearings in family proceedings, CPR Part 7 and Part 8 claims and appeals) before a judge of the Family 4.2 At the commencement of the bundle there shall be Division of the High Court wherever the court may be inserted the following documents (“the preliminary sitting; documents”): (b) all hearings in family proceedings in the Royal Courts of Justice (“RCJ”); (i) an up to date summary of the background to the (c) all hearings in the Principal Registry of the Family hearing confined to those matters which are relevant to Division (“PRFD”) at First Avenue House; and the hearing and the management of the case and limited, (d) all hearings in family proceedings in all other courts if practicable, to one A4 page; except for Family Proceedings Courts. (ii) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing; 2.2 “Hearings” includes all appearances before a judge or (iii) a position statement by each party including a district judge, whether with or without notice to other summary of the order or directions sought by that party parties and whether for directions or for substantive relief. (1) at that hearing and (2) at the final hearing; (iv) an up to date chronology, if it is a final hearing or if 2.3 This practice direction applies whether a bundle is the summary under (i) is insufficient; being lodged for the first time or is being re-lodged for a (v) skeleton arguments, if appropriate, with copies of all further hearing (see paragraph 9.2). authorities relied on; and (vi) a list of essential reading for that hearing. 2.4 This practice direction does not apply to: 4.3 Each of the preliminary documents shall state on the (a) cases listed for one hour or less at a court referred to in front page immediately below the heading the date when it paragraph 2.1(c) or 2.1(d); or was prepared and the date of the hearing for which it was (b) the hearing of any urgent application if and to the prepared. extent that it is impossible to comply with it. 4.4 The summary of the background, statement of issues, 2.5 The Designated Family Judge responsible for any court chronology, position statement and any skeleton referred to in paragraph 2.1(c) or 2.1(d) may, after such arguments shall be cross-referenced to the relevant pages consultation as is appropriate (but in the case of hearings of the bundle. in the PRFD at First Avenue House only with the agreement of the Senior District Judge), direct that in that 4.5 The summary of the background, statement of issues, court this practice direction shall apply to all family chronology and reading list shall in the case of a final proceedings irrespective of the length of hearing. hearing, and shall so far as practicable in the case of any other hearing, each consist of a single document in a form Responsibility for the preparation of the bundle agreed by all parties. Where the parties disagree as to the 3.1 A bundle for the use of the court at the hearing shall be content the fact of their disagreement and their differing provided by the party in the position of applicant at the contentions shall be set out at the appropriate places in the hearing (or, if there are cross-applications, by the party document. whose application was first in time) or, if that person is a litigant in person, by the first listed respondent who is not 4.6 Where the nature of the hearing is such that a complete a litigant in person. bundle of all documents is unnecessary, the bundle (which

www.familylawweek.co.uk Family Law Week October 2006 - 15 need not be repaginated) may comprise only those 7.2 Unless the judge has given some other direction as to documents necessary for the hearing, but where the bundle in any particular case is to be lodged (for example a direction that the bundle is to be lodged with (i) the summary (paragraph 4.2(i)) must commence with a the judge’s clerk) the bundle shall be lodged: statement that the bundle is limited or incomplete; and (ii) the bundle shall if reasonably practicable be in a form (a) for hearings in the RCJ, in the office of the Clerk of the agreed by all parties. Rules, Room TM 9.09, Royal Courts of Justice, Strand, London WC2A 2LL (DX 44450 Strand); 4.7 Where the bundle is re-lodged in accordance with (b) for hearings in the PRFD at First Avenue House, at the paragraph 9.2, before it is re-lodged: List Office counter, 3rd floor, First Avenue House, 42/49 High Holborn, London, WC1V 6NP (DX 396 Chancery (a) the bundle shall be updated as appropriate; and Lane); and (b) all superseded documents (and in particular all (c) for hearings at any other court, at such place as may outdated summaries, statements of issues, chronologies, be designated by the Designated Family Judge or other skeleton arguments and similar documents) judge at that court and in default of any such designation shall be removed from the bundle. at the court office of the court where the hearing is to take place. Format of the bundle 5.1 The bundle shall be contained in one or more A4 size 7.3 Any bundle sent to the court by post, DX or courier ring binders or lever arch files (each lever arch file being shall be clearly addressed to the appropriate office and limited to 350 pages). shall show the date and place of the hearing on the outside of any packaging as well as on the bundle itself. 5.2 All ring binders and lever arch files shall have clearly marked on the front and the spine: Lodging the bundle – additional requirements for cases being heard at First Avenue House or at the (a) the title and number of the case; RCJ (b) the court where the case has been listed; 8.1 In the case of hearings at the RCJ or First Avenue (c) the hearing date and time; House, parties shall: (d) if known, the name of the judge hearing the case; and (e) where there is more than one ring binder or lever arch (a) if the bundle or preliminary documents are delivered file, a distinguishing letter (A, B, C etc). personally, ensure that they obtain a receipt from the clerk accepting it or them; and Timetable for preparing and lodging the bundle (b) if the bundle or preliminary documents are sent by 6.1 The party preparing the bundle shall, whether or not post or DX, ensure that they obtain proof of posting or the bundle has been agreed, provide a paginated index to despatch. all other parties not less than 4 working days before the hearing (in relation to a case management conference to The receipt (or proof of posting or despatch, as the case which the provisions of the Public Law Protocol [2003] 2 may be) shall be brought to court on the day of the hearing FLR 719 apply, not less than 5 working days before the and must be produced to the court if requested. If the case management conference). receipt (or proof of posting or despatch) cannot be produced to the court the judge may (i) treat the bundle as 6.2 Where counsel is to be instructed at any hearing, a having not been lodged and (ii) take the steps referred to in paginated bundle shall (if not already in counsel’s paragraph 12. possession) be delivered to counsel by the person instructing that counsel not less than 3 working days 8.2 For hearings at the RCJ: before the hearing. (a) bundles or preliminary documents delivered after 11 6.3 The bundle (with the exception of the preliminary am on the day before the hearing will not be accepted by documents if and insofar as they are not then available) the Clerk of the Rules and shall be delivered: shall be lodged with the court not less than 2 working days before the hearing, or at such other time as may be (i) in a case where the hearing is before a judge of the specified by the judge. High Court, directly to the clerk of the judge hearing the case; 6.4 The preliminary documents shall be lodged with the (ii) in a case where the hearing is before a Circuit Judge, court no later than 11 am on the day before the hearing Deputy High Court Judge or Recorder, directly to the and, where the hearing is before a judge of the High Court messenger at the Judge’s entrance to the Queen’s and the name of the judge is known, shall at the same time Building (with telephone notification to the personal be sent by e-mail to the judge’s clerk. assistant to the Designated Family Judge, 020 7947 7155, that this has been done). Lodging the bundle 7.1 The bundle shall be lodged at the appropriate office. If (b) upon learning before which judge a hearing is to take the bundle is lodged in the wrong place the judge may: place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall (a) treat the bundle as having not been lodged; and no later than 3pm the day before the hearing: (b) take the steps referred to in paragraph 12.

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(i) in a case where the hearing is before a judge of the Penalties for failure to comply with the practice High Court, telephone the clerk of the judge hearing the direction case; 12 Failure to comply with any part of this practice direction (ii) in a case where the hearing is before a Circuit Judge, may result in the judge removing the case from the list or Deputy High Court Judge or Recorder, telephone the putting the case further back in the list and may also result personal assistant to the Designated Family Judge; in a “wasted costs” order in accordance with CPR Part 48.7 or some other adverse costs order. to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall Commencement of the practice direction and organise prompt delivery by the applicant’s solicitor. application of other practice directions 13 This practice direction replaces President’s Direction Removing and re-lodging the bundle (Family Proceedings: Court Bundles) [2000] 1 FLR 536 and 9.1 Following completion of the hearing the party shall have effect from 2 October 2006. responsible for the bundle shall retrieve it from the court immediately or, if that is not practicable, shall collect it 14 Any reference in any other practice direction to from the court within five working days. Bundles which President’s Direction (Family Proceedings: Court Bundles) are not collected in due time may be destroyed. [2000] 1 FLR 536 shall be read as if substituted by a reference to this practice direction. 9.2 The bundle shall be re-lodged for the next and any further hearings in accordance with the provisions of this 15 This practice direction should where appropriate be practice direction and in a form which complies with read in conjunction with President’s Direction (Human paragraph 4.7. Rights Act 1998) [2000] 2 FLR 429 and with Practice Direction (Care Cases: Judicial Continuity and Judicial Time estimates Case Management) appended to the Public Law Protocol 10.1 In every case a time estimate (which shall be inserted [2003] 2 FLR 719. In particular, nothing in this practice at the front of the bundle) shall be prepared which shall so direction is to be read as removing or altering any far as practicable be agreed by all parties and shall: obligation to comply with the requirements of the Public Law Protocol. (a) specify separately (i) the time estimated to be required for judicial prereading and (ii) the time required for This Practice Direction is issued: hearing all evidence and submissions and (iii) the time estimated to be required for preparing and delivering (i) in relation to family proceedings, by the President of judgment; and the Family Division, as the nominee of the Lord Chief (b) be prepared on the basis that before they give Justice, with the agreement of the Lord Chancellor; and evidence all witnesses will have read all relevant filed (ii) to the extent that it applies to proceedings to which statements and reports. section 5 of the Civil Procedure Act 1997 applies, by the Master of the Rolls as the nominee of the Lord Chief 10.2 Once a case has been listed, any change in time Justice, with the agreement of the Lord Chancellor. estimates shall be notified immediately by telephone (and then immediately confirmed in writing): The Right Honourable Sir Mark Potter, President of the Family Division & Head of Family Justice (a) in the case of hearings in the RCJ, to the Clerk of the Rules; The Right Honourable Sir Anthony Clarke, Master of the (b) in the case of hearings in the PRFD at First Avenue Rolls & Head of Civil Justice House, to the List Officer at First Avenue House; and (c) in the case of hearings elsewhere, to the relevant listing officer.

Taking cases out of the list 11 As soon as it becomes known that a hearing will no longer be effective, whether as a result of the parties reaching agreement or for any other reason, the parties and their representatives shall immediately notify the court by telephone and by letter. The letter, which shall wherever possible be a joint letter sent on behalf of all parties with their signatures applied or appended, shall include:

(a) a short background summary of the case ; (b) the written consent of each party who consents and, where a party does not consent, details of the steps which have been taken to obtain that party’s consent and, where known, an explanation of why that consent has not been given; (c) a draft of the order being sought; and (d) enough information to enable the court to decide (i) whether to take the case out of the list and (ii) whether to make the proposed order.

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LEGISLATION Community Legal Service the Community Legal Service, (Funding) (Counsel in Family including by limiting the powers of the Legal Services Commission to Community Legal Service Proceedings) (Amendment) pay remuneration under contract for (Financial) (Amendment Order 2006 the provision of funded services. No.2) Regulations 2006 Statutory Instrument 2006 No. Statutory Instrument 2006 No. 2364 This Order adds an exception to the 2363 limitation, by including contracts for This Order amends the Community Community Legal Advice Centres These Regulations amend the Legal Service (Funding) (Counsel in and Community Legal Advice Community Legal Service (Financial) Family Proceedings) Order 2001 Networks, which provide advice and Regulations 2000 which govern the ("the 2001 Order"). representation to the most deprived financial aspects of the provision of communities in debt, employment, services funded by the Legal The 2001 Order governs the community care, family, housing and Services Commission in civil systems for the payment of welfare benefit matters. matters. graduated fees for counsel for work These Regulations amend the in family proceedings. The 2001 Made 28th August 2006 definition of 'family proceedings' to Order also covers how and when Laid before Parliament 1st include proceedings under the Civil claims for payment are to be made, September 2006 Partnership Act 2004. and appeals and review of Coming into force 2nd October 2006 payments. These Regulations increase the range of Legal Help available to This Order changes the references those in receipt of certain benefits to those within the Legal Services provided under the Immigration and Commission who are responsible for Asylum Act 1999. considering certain claims, applications and appeals under the They also transfer the power to 2001 Order. The change is to reflect disapply certain eligibility limits in recent amendments to the Legal relation to applications for funding Services Commission Funding Code. of services at inquests to the Legal Services Commission in limited Made 28th August 2006 circumstances. Also, the power to Laid before Parliament 1st waive part or all of contributions that September 2006 may be payable is transferred to the Coming into force 2nd October Lord Chancellor in limited 2006 circumstances.

A full regulatory impact assessment Community Legal Service has not been made for this (Funding) (Amendment) instrument, as it has no significant Order 2006 impact on the costs of businesses, Statutory Instrument 2006 No. charities or voluntary bodies. 2366

Made 28th August 2006 This Order amends the Community Laid before Parliament 1st Legal Service (Funding) Order 2000 September 2006 ("the 2000 Order"). Coming into force 2nd October 2006 The 2000 Order imposes conditions on the funding of services as part of

www.familylawweek.co.uk Family Law Week October 2006 - 18 Revised Family Law Week online CPD assignments With the introduction of our new online training subscription we have revised the format for our monthly assignments. We now publish two assignments each month: one on finance and one on children. You can choose to do both or simply concentrate on the topic that relates to your practice. Each assignment concentrates on the very latest cases in each area so they will help you to be fully up to date on the latest judicial thinking. There are 6 questions: you must answer at least 5 of them correctly to claim 1 hour of CPD. This month, we have also published an assignment on Court Bundles: President’s Direction 27 July 2006. This consists of 10 questions and you must answer at least 7 questions correctly to claim 1 hour of CPD. OCTOBER CPD QUESTIONS: FINANCE & DIVORCE

1. In H v H (Queen’s Proctor Intervening) (Validity of Japanese 5. In Kimber v Kimber [2006] EWCA Civ 706 which of the Divorce) Stephen Wildblood QC, sitting as a High Court judge, following statements are accurate: found that registration of a divorce of kyogi rikon under Japanese law was: The Court of Appeal dismissed the husband's appeal because the husband had not raised his arguments Formative of the divorce in relation to the issue subject of the appeal before the judge at first instance Merely probative of the fact of divorce The husband was appealing against a refusal to lift 2. In reviewing the case law in H v H (Queen’s Proctor an undertaking not to leave England and Wales Intervening) (Validity of Japanese Divorce) as to whether Lord Justice Brooke agreed that counsel had raised recognition of a foreign divorce by the English courts would be important points concerning restriction of movement manifestly contrary to public policy under s 51(3) of the Family of citizens within the EU Law Act 1986, Mr Wildblood QC concluded that: 6. It was held in Lake v Lake [2006] EWCA Civ 1250 that in the power to refuse recognition should be exercised considering an application for a transfer of tenancy under sparingly Sch7 to the Family Law Act 1996, the court is entitled, when exercising its discretionary judgment, to consider the conduct the principle of comity is a relevant consideration of the parties: the subsection confers a residual discretion the conduct of the parties leading up to the divorce In no circumstances because the Schedule makes may be a relevant factor no reference to conduct motivation may also be relevant Only when such conduct is so significant that it would be inequitable for the court to disregard it the consequences to the parties of a refusal of recognition may also be considered In any case if it is relevant all of the above

3. In Williams-Wynne v Williams-Wynne [2006] EWCA Civ 1254 which of the following statements are accurate: The Court of Appeal decided that the wife’s capital should be amortised Counsel for the husband argued that the order was unfair as the husband's income would be less than the wife's and this was unprecedented The appeals on both the substantive issue and the costs were successful

4. In A v M [2006] EWHC 1721 (Fam) the Court allowed the father’s appeal in part on the grounds that:

the mother had exaggerated her budget and was seeking disguised maintenance for herself the father’s income had been assessed at too high a level

www.familylawweek.co.uk Family Law Week October 2006 - 19 OCTOBER CPD QUESTIONS: CHILDREN

1. In S (children) & E (A Child) [2006] EWCA Civ 1190 Wall LJ 4. In B (Children) [2006] EWCA Civ 1245 which of the concluded that:: following statements are accurate

it is permissable to attach conditions requiring the mother was seeking leave to remove the medical treatment to both s.8 and s.91(14) orders children to France Re P made it clear that s.91(14) orders can be leave to remove was granted properly made for the time that the court can make counsel for the mother argued that the judge had s8 orders in relation to a child not sufficiently considered the evidence of the the judge can impose a s.91(14) order without CAFCASS officer hearing any oral evidence 5. In H (A Child) [2006] EWCA Civ 1247 counsel for the applicant argued for separate representation on the grounds 2. In LTF & LMF [2006] EWCA Civ 1179 which of the following that statements are accurate the trial judge had been wrong not to conclude that the applicant was the subject of a s.91(14) Children the case was exceptional Act order the applicants rights under the ECHR had been Wall LJ declined to appoint NYAS as the children's infringed guardian but requested that a judge in future the exceptional circumstances test for separate proceedings should consider the option representation in Hague cases should be relaxed in the application was refused line with Rule 9.2(a) of the FPR

3. In K (Children) [2006] EWCA Civ 1205 the applicant's 6. In R v Levey [2006] EWCA Crim 1902, the Presidents of the appeal failed because: Queen's Bench Division concluded that

when viewed in the round the applicant's Article 6 the Crown had been right to pursue criminal rights had not been infringed porceedings even though the civil proceedings had although the judge had a closed mind on the issue been inconclusive as to whether there was homicide of allowing oral evidence other factors meant the the care proceedings should have been delayed until procedure was fair the outcome of the criminal proceedings was known it was unlikely that oral evidence would be taken at the criminal proceedings were an abuse of process the hearing anyway

www.familylawweek.co.uk Family Law Week October 2006 - 20 COURT BUNDLES PRACTICE DIRECTION QUESTIONS

1. The Practice Direction applies to: 6. Failure to lodge the bundle at the appropriate office could, all family proceedings including the FPC in certain circumstances, result in a wasted costs order High Court proceedings only True all family proceedings excluding the FPC False 2. Preparation of the bundle is the responsibility of 7. In hearings at the RCJ or the Principal Registry,

the respondent proof of posting must be obtained the applicant bundles will be accepted by the Clerk of the Rules the litigant in person where one is involved up to 11am on the day of the hearing the bundle may be treated as not lodged if proof of 3. Which of the following statements apply to the contents of posting cannot be produced when requested the bundle 8. After the hearing the bundle must be retrieved from the Copies of contact visits notes should always be in- court by the responsible party cluded The summary in the preliminary documents should within 5 working days be limited to two A4 pages if practicable within 7 working days In a final hearing the summary, statement of issues, within 28 working days chronology and reading list shall consist of a single document agreed by the parties 9. With regard to time estimates 4. Each A4 binder should be limited to they must be prepared and inserted at the front of 300 pages the bundle estimates must be prepared on the basis that wit- 350 pages nesses will read relevant documents 400 pages change in time estimates must be first notified in writing 5. In any proceedings under the Public Law Protocol the party preparing the bundle shall provide a paginated index to the 10. If a hearing is no longer required, only the party responsi- other parties ble for preparing the bundle need notify the court to that ef- fect. not less than 7 working days before the case man- agement conference True not less than 4 working days before the case man- False agement conference not less than 5 working days before the case man- agement conference

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