Family Law Week October 2015 - 1 October 2015

News 1 NEWS Articles Finance & Divorce Update September 2015 13 Controlling parents can damage Children Public Law Update (September 2015) 18 children’s mental wellbeing International Relocation: less ‘Payne’ – more 22 pain? People whose parents exerted greater psychological control during childhood had significantly lower mental wellbeing Court of Protection Update (September 2015) 24 during adulthood than those with less controlling parents, Legal Parenthood: Modern Problems, Old 28 with an effect size similar to the recent death of a close friend Solutions – A review of The HFEA (A and Others) or relative. [2015] EWHC 2602

A new life-long study of people in England, Scotland and Autism and Child Arrangement Disputes 31 Wales has found that those who perceived their parents as Cases more caring and less psychologically controlling during their childhood were likely to be happier and more satisfied RY v Southend Borough Council [2015] EWHC 34 throughout their lives. Re Z (A Child: Human Fertilisation and 35 The study, led by University College, London, suggests that Embryology Act: Parental Order) [2015] EWFC care from both mother and father were found to be equally 73 important predictors of participants' mental wellbeing Bagum v Hafiz and Another [2015] EWCA Civ 36 through to middle age, although paternal care had a greater association with wellbeing in later life (age 60-64). Capehorn v Harris and Another [2015] EWCA 37 The study monitored the mental wellbeing of participants in the Medical Research Council (MRC) National Survey of In the matter of HFEA 2008 (Cases A, B, C, D, E, 38 Health and Development between the ages of 13 and 64. The F, G and H Declaration of Parentage) [2015] survey tracked 5,362 people since their birth in 1946, of EWHC 2602 (Fam) whom 2,800 remain under active follow-up. 3,699 DL v SL [2015] EWHC 2621 (Fam) 39 participants had complete wellbeing data at ages 13-15, falling to approximately 2,000 by ages 60-64. B (A Child) [2015] EWCA Civ 974 40 Welch v Welch [2015] EWHC 2622 (Fam) 41 Published in The Journal of Positive Psychology, the research highlights how parenting can have long-term Nasim v Nasim [2015] EWHC 2620 (Fam) 42 positive impacts on wellbeing that continue through to older Re Dad application to commit [2015] EWHC age. The results were controlled for confounding variables 2655 (Fam) including parental separation, childhood social class, Seddon v Oldham MBC Adoption Human Rights 44 maternal mental health and participants' personality traits. [2015] EWHC 2609 (Fam) Appleton & Gallagher v News Group

T (A Child) (Early Permanence Placement) 2015 46 GENERAL EDITOR Family Law Week is published by EWCA Civ 983 Stephen Wildblood QC Law Week Limited Re C (A Child) (Application by Dr X and Y) [2015] Greengate House Deputy Editor 87 Pickwick Road Claire Wills-Goldingham QC Corsham Colleton Chambers Re Q (A Child) [2015] EWCA Civ 991 48 SN13 9BY Somerset County Council v MK and Others Tel & Fax: 0870 145 3935 [2015] EWCOP B1

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Lead author Dr Mai Stafford from the MRC Unit for The full report is here. Lifelong Health & Ageing at UCL said: 6/9/15 "We found that people whose parents showed warmth and responsiveness had higher life satisfaction and better mental wellbeing throughout early, middle and Judge names children believed to late adulthood. By contrast, psychological control was significantly associated with lower life satisfaction and have been removed to Cyprus mental wellbeing. Examples of psychological control include not allowing children to make their own A judge in family proceedings has ordered that two young decisions, invading their privacy and fostering children, who are believed to have been abducted to dependence." Cyprus, may be identified in the hope that the publicity will help to locate them. Psychological control was studied separately to behavioural control, which had no significant effect on mental wellbeing BBC News reports that HHJ Sir Gavyn Arthur said he had in later life. Behavioural control broadly refers to not letting "grave concern" for the welfare of Charlie Clift, five, and children have their own way, for example not letting them Kaiton Warnes, who is two years old. It is believed that the go out as often as they like. children, who have been missing since January 2014, are with their mother, Amelia Warnes. Dr Stafford explained: They have been missing since January 2014, but details of "We know from other studies that if a child shares a their disappearance have only just been revealed. secure emotional attachment with their parents, they are better able to form secure attachments in adult life. The children are wards of court. Parents also give us a stable base from which to explore the world, while warmth and responsiveness has been For the full report, see BBC News. shown to promote social and emotional development. By contrast, psychological control can limit a child's 6/9/15 independence and leave them less able to regulate their own behaviour. Woman sentenced for posting "Parents are vitally important to the mental wellbeing of future generations. Policies to reduce economic and person's intimate images on other pressures on parents could help them to foster Facebook better relationships with their children. Promoting a healthy work-life balance is important as parents need Paige Mitchell who pleaded guilty to disclosing private time to nurture relationships with their children." sexual photographs with intent to cause distress to another woman, as well as assault by beating, is believed to be the The researchers measured the three different concepts of first female to be prosecuted for revenge pornography care, psychological control and behavioural control using a under new legislation. 25-item questionnaire designed to assess parental bonding. Under the Criminal Justice and Courts Act 2015 it an 6/9/15 offence to disclose private sexual photographs and films without the consent of the individual who appears in them and with the intent to cause that individual distress. Grandparents jailed for assisting Ms Mitchell was sentenced to six weeks imprisonment abduction to Costa Rica suspended for 18 months, rehabilitation activity requirement for 50 days and ordered to pay costs at Two grandparents from West Midlands have been jailed in Stevenage Magistrates' Court after pleading. connection with the abduction of their two grandchildren by their mother, who had taken them to Costa Rica. At an earlier hearing Mitchell admitted attacking the victim during an argument. She then went on to post explicit According to the Express & Star, the mother had been photos of the victim on to her Facebook profile later that granted one session of supervised contact with the children day. Mitchell went on to caption the pictures with per month at a contact centre. In May 2015 she flew with the humiliating insults and even referenced the assault. children to Paris, then to Madrid and on to Costa Rica. Police in Costa Rica were subsequently alerted and the Joanna Coleman, Deputy Chief Crown Prosecutor for CPS children were taken into care. They have since been Thames and Chiltern said: returned to the UK although the mother is believed still to be in Costa Rica. "These vengeful crimes are predominantly thought of as being carried out by men. This sentencing will highlight The grandparents admitted child abduction and attempting that anyone can be guilty of this offence and regardless to pervert the course of justice. The grandmother was of the defendant's gender, once reported, it will be taken sentence to 14 months imprisonment and her partner to a seriously. year's imprisonment.

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"Crimes where an intimate image of an individual is Obituary of Denise Marshall, founder shared without their permission in such a public forum is invasive, humiliating and distressing for the victim of schemes to help trafficked women and leaves them feeling violated. and victims of DV

"It can have a huge impact on the victim and I am The Guardian has published an obituary of Denise Marshall, pleased that more people are having the confidence to the former chief executive of Eaves, who has sadly passed come forward and report these crimes." away at the age of 53 on 21st August.

The CPS guidance on Revenge Porn outlines: As Chief Executive of Eaves, which helps women facing Ÿ violence, she set up the Amina Scheme which provided a Revenge Porn is the sharing of private, sexual materials, support and befriending scheme for women who have been either photos or videos, of another person without their raped, sexually assaulted or abused at any time in their lives. consent and with the purpose of causing embarrassment or distress. The images are sometimes accompanied by Ms Marshall also founded the Poppy Project, which houses personal information about the subject, including their and supports the women trafficked into the UK, and a full name, address and links to their social media profiles. number of other initiarives that brought about real change Ÿ for those who had experienced sexual assault and The offence applies both online and offline and to exploitation. images which are shared electronically or in a more traditional way so includes the uploading of images on Ms Marshall was awarded an OBE for services to the internet, sharing by text and e-mail, or showing disadvantaged women, but later handed it back in protest at someone a physical or electronic image. government cuts to services for rape and domestic violence victims. Ÿ To fall within the offence, a photograph or film would have to be private and sexual. This could include an For the obituary in The Guardian, please click here. image that depicted an individual's exposed genitals, or a picture of someone who is engaged in sexual 7/9/15 behaviour or posing in a sexually provocative way, if what is shown is not of a kind ordinarily seen in public.

Ÿ Section 1 of the Malicious Communications Act 1988 Latest judgment in long-running deals with the sending of electronic communications financial remedy dispute over £54 which are indecent, grossly offensive, threatening or million assets false, provided there is an intention to cause distress or anxiety to the recipient. Sir Peter Singer, sitting in the High Court, has given a further judgment in long-running financial remedies Ÿ Section 127 of the Communications Act 2003 makes it proceedings concerning matrimonial assets claimed by the an offence to send or cause to be sent through a 'public wife to amount to £54 million. electronic communications network' a message that is 'grossly offensive' or of an 'indecent, obscene or In Joy v Joy-Morancho & Others [2015] EWHC 2507 (Fam), menacing character'. the court was concerned as to "whether or not the situation described by Mr Joy is accurate so that he is in truth and in Ÿ Where there is more than one incident, or the incident fact able for the foreseeable future to pay only modest forms part of a course of conduct directed towards an periodical payments to W and their three children, but individual, a charge of harassment should be considered. nothing whatever by way of capital award. That proposition and that outcome depend upon whether H really faces the Ÿ Where the images may have been taken when the victim financial ruin he maintains overwhelmed him as a result of was under 18, prosecutors will consider offences under what he describes as the day of reckoning imposed on him the Protection of Children Act 1978. by the trustees of the New Huerto Trust (NHT). Those trustees now pursue him and all those assets to which he Ÿ In the most serious cases, where intimate images are can lay claim (and more), so he will be left without used to coerce victims into further sexual activity, other substance. His debts therefore exceed by far any assets offences under the Sexual Offences Act 2003 will be available or likely to become available to him. His case is considered. moreover that he has been permanently and irrevocably excluded from any potential future benefits from NHT." For an article by Ariel Ricci, barrister at Coram Chambers, Julie Pinborough, Founder and Director of the Queen Mary Sir Peter Singer said that he had to determine whether "H's Legal Advice Centre and Frances Ridout, Deputy Director plight is genuine or a contrived facade". of the Queen Mary Legal Advice Centre, which considers the growing problem of "revenge pornography", please The wife sought a lump sum pitched at £27m for a clean click here. break, on the basis that the matrimonial acquest was at least £54m. 7/9/15 In a judgment running to 245 paragraphs Sir Peter Singer concluded:

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"[The wife] has certainly failed at this point to achieve a Professor Nicholas Hopkins appointed substantive capital award; but has for the time being achieved a periodical payments award of £120,000 more as Law Commissioner for property, than the nominal order for which H contended, plus an family and trust law adjournment of her outstanding capital claims. In my book the correct analysis is that neither party has won." Professor Nicholas Hopkins has been appointed as Law Commissioner for property, family and trust law. The The husband's solicitors, DWFM Beckman, commented: appointment is for an initial term of five years from 1 October 2015. "I believe this to be a unique decision in British family law. I do not know of any other case to date where a wife Since 2013, Professor Hopkins has been Professor of Law at who was claiming many millions of pounds was given the University of Reading. Before this, he spent 15 years at nothing because the husband has been able to show that the University of Southampton, most recently as Professor he does not have any assets available to him despite the of Law. Before joining the University of Southampton he tens of millions being attributed to him. was a lecturer in Law at Durham University (1993 to 1998) after beginning his career as a Research Assistant at the Law "I am extremely pleased with the main thrust of the Commission (1992 to 1993). judgment which demonstrates that it is possible to refute what now seems to have become the presumption in In addition, Professor Hopkins is the case-notes editor of the high-net-worth family cases that a husband who claims Conveyance and Property Lawyer and Chair of the editorial that certain assets do not belong to him and are not board for Modern Studies in Property Law. available to him and the court for division, must be making a false presentation." The Law Commission, amongst other projects, is currently reviewing the law governing the enforcement of family However, the court awarded to the wife, as a 'stern warning' financial orders. against aberrant conduct, 80% of her costs of £417,829 which amounted to £334,263. 10/9/15

The judgment is here.

7/9/15 Proposals for Bill of Rights to be published this autumn

The Parliamentary Under-Secretary of State for Justice, Dominic Raab, has advised the House of Commons that the 943 care applications received by Ministry of Justice plans to bring forward proposals for a Cafcass in August 2015 Bill of Rights this autumn.

In August 2015, Cafcass received a total of 943 care He said that the proposals would be subject to "full applications. This figure represents a 4% increase compared consultation. The preparation is going well." to those received in August 2014 when there were 903. This is the fifteenth consecutive month in which there has been He added: an increase in care applications compared with the corresponding month in the previous year. "We want to see greater authority for the Supreme Court—the Labour Government set up the Supreme The month-by-month figures are here. Court and we do not think that it should be subordinated—and a greater respect for the legislative 10/9/15 role of hon. Members in this place."

For the exchanges in the House of Commons, visit Hansard at column 205. Private law cases received by Cafcass up 18% on a year ago For a House of Commons Library research briefing considering the implications of a British Bill of Rights, please click here. In August 2015, Cafcass received a total of 2,954 new private law cases. This is an 18% increase on August 2014 levels. In 10/9/15 the last five months new cases have been running at about 17% (15,561) above the figure for the corresponding months last year (13,323). Pope reforms process of annulments The month-by-month figures are here. of marriages

10/9/15 Pope Francis has released two documents reforming the way that the Catholic Church deals with the handling of annulments of marriages. The documents were released in

www.familylawweek.co.uk Family Law Week October 2015 - 5 the form of a Motu Proprio, which is a Papal document James Munby, said that the important issue was that there issued on his own initiative and signed by him. was written and informed consent as required by the law.

The documents contain a set of canons that replace the Following an audit last year, affected families across the UK sections in the Code of Canon Law and the Code of Canons were advised, in some cases years after their child had been of the Eastern Churches. These changes will come into effect born, that they should adopt their own children,. The on 8 December 2015. regulator of UK fertility clinics, the Human Fertilisation and Embryology Authority (HFEA), found almost half of all The Catholic Church in England and Wales has published clinics in the UK reported administrative errors after a a summary of the documents by Father Andrew Cole of the change in the law in 2009. diocese of Nottingham. It says: Results revealed that some clinics had lost the forms which "The key changes are: had been signed by parents, some forms had mistakes on them and some clinics did not use the forms at all. It appears Ÿ Only one Tribunal needs to examine a case and judge this involved more than 80 families. that it is null; previously, two Church Tribunals had to find that a marriage is null for people to be free to marry. Six years ago, the law changed and unmarried parents and The first Tribunal still needs to be sure that the marriage parents not in a civil partnership undertaking fertility is null on the basis of the evidence before it, and an treatment using donor sperm or embryos, were legally aggrieved party, husband or wife, can still appeal to the obliged to confirm in writing to their clinic who the legal Metropolitan (the Archbishop of the local ecclesiastical parents of the child would be. province of which their dioceses is a part) or else the Holy See, and ask for the case to be examined again. Clinics were told by the HFEA (the Regulator) that they had Having to go through only one Tribunal should reduce to use a specific form for this information and provide the time it takes for a couple to know whether their guidance around the taking of consent to parenthood. marriage is null or not. Parents took their concerns to the High Court and sought a Ÿ Only one judge, a cleric, or else three judges, one cleric declaration that they were in fact the legal parents of their and two lay people, are needed to examine a case; the child, despite problems with the forms. involvement of fewer people should reduce the time it takes for a case to be examined. The President of the Family Division heard evidence that he described as Ÿ In certain circumstances, the Bishop himself can examine a case from within his own diocese. So, if both "some of the most powerful, the most moving and the parties, or one of them with the other's consent, present most emotionally challenging that I have ever heard as evidence which suggests quite emphatically that the a judge". marriage is null, the Bishop can conduct a brief examination of the evidence of and declare whether the He described the devastating emotions felt by the parents marriage is null or not. told that they were not a parent to their child. In some cases, it had taken many years of treatment for the child to be Ÿ The whole process should be free of charge so that conceived. The Judge has described the results of the audit couples do not have to pay a fee towards the Tribunal as "alarming and shocking" and "a matter of great public that is examining the validity of their marriage." concern".

For more information, please click here. Jemma Dally, a partner and specialist in fertility law at Goodman Ray solicitors, who represents six of the eight 10/9/15 families involved in the recent case, said:

"This judgment is about the essential question of who is Court rules in favour of parents who my parent? This is important for any child, but especially for donor conceived children who do not have were told they could not be the legal a biological connection to one of their parents. parents of their child "The change in the law in 2009 was intended to ensure In In the matter of HFEA 2008 (Cases A, B, C, D, E, F, G and certainty about who the parents of a donor conceived H Declaration of Parentage) [2015] EWHC 2602 (Fam) A child would be from the moment of the insemination or court has heard that a significant number of parents across embryo transfer These parents were entitled to and did the UK, who have had a child by way of donor rely on the professionals at the clinics to make sure that insemination, were told by the clinic that treated them that the administrative arrangements would be secure. It is they could not be a parent to their child because of an clear that in some clinics staff did not fully understand administrative error. the legal importance of taking consent to parenthood and the HFEA had not realised that the guidance that The High Court has now decided that that it would not be they had issued to clinics about this, was not always right to deprive a child and parents of a legal relationship being followed. because of an administrative error that had been made with their paperwork. The President of the Family Division, Sir "The decision will not only secure the legal relationship of the children and parents involved in this case but also

www.familylawweek.co.uk Family Law Week October 2015 - 6 has wider significance as it is likely to help many other the surrogate mother remained Z's mother and the father families that we know are in the same position." did not have parental responsibility for Z.

The judgment also confirms the imperative need for all From paragraphs 6 to 14 of his judgment, Munby P sets out clinics to comply with the HFEA's guidance at all times, s 54, which allows a parental order to be made on the including in respect of the use of the right forms. application of two people, and its legislative context. In doing so, he considered s 30 of the Human Fertilisation and Jemma Dally added: Embryology Act 1990 and the legislation concerning adoption. The President notes that in contrast to "It is essential that any parent in this situation seeks contemporary and long-established adoption law, s 30 specialist legal advice. There is a risk to children if contained no provision for a parental order to be made in proper steps are not taken to remedy the errors that have favour of one person. The legislative developments that been made. Legal parenthood is important for a child's followed made no changes to this position. identity and if left unresolved could have profound consequences for the child in the future." At paragraphs 15 to 17, the President considered the legislative debate culminating in the enactment of the HFEA 12/9/15 2008 as recorded in Hansard. In particular, the records demonstrate that an amendment was sought to the Bill with the purpose of achieving consistency with adoption law, but Baker J makes FGM protection order it was argued against and subsequently withdrawn. in respect of 13 year old taken to The fundamental argument of the father was that the Sudan requirement of s 54(1) constituted a discriminatory interference with a single person's rights to private and In the High Court Mr Justice Baker has ordered the return family life, and was therefore inconsistent with Articles 8 of a 13-year-old girl who has been taken to Sudan and is and 14 of the European Convention. Inter alia, it was also feared to be at risk of female genital mutilation (FGM). argued that the legislation was contrary to Article 12 of the Convention which protects the right to found a family. Kent County Council made the application when it learned Further, it was said that the law and the government policy that the mother had taken the girl to Sudan where it is was to enable single persons to be eligible to adopt; and that alleged that she has left her with relatives before returning it was artificial, disproportionate and discriminatory to to the UK. distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy. The father's case For the BBC News report, please click here. was supported by CAFCASS.

14/9/15 Munby P found that the fact that the relevant provision was found in primary legislation represented a substantial obstacle as it was not enough to show that there is incompatibility. The father sought to argue that there was no incompatibility and the section could be 'read down' in Parental order under s 54 of HFEA accordance with s 3(1)of the Human Rights Act 1998. The 2008 cannot be made in favour of sole President considered the case of Ghaidan v Godin-Mendoza applicant [2004] UKHL 30 and sets out the relevant passages at paragraphs 28 to 34 of the judgment. The President has rejected an application by a father for a The father's case was rejected on the basis that "the principle parental order under s 54 of the Human Fertilisation and that only two people – a couple – can apply for a parental Embryology Act 2008 on the basis that "the principle that order has been a clear and prominent feature of the only two people – a couple – can apply for a parental order legislation throughout." has been a clear and prominent feature of the legislation throughout." Further, the President found that " the crucially important question, of who, for this purpose, can be a parent, this In Re Z (A Child: Human Fertilisation and Embryology Act: consistent statutory limitation on the ambit of the statutory Parental Order) [2015] EWFC 73 the court heard that the scheme always has been, and remains, ..., a "fundamental child, Z, had been conceived with the applicant father's feature", a "cardinal" or "essential" principle of the sperm and a third party egg using an unmarried surrogate legislation, ...". mother in Illinois. The issues that arose in the case were, firstly, whether it was open to the court to make a parental Finally, the President states that this judgment is not order under section 54 (1) of the Human Fertilisation and intended to throw any doubt on the correctness of other Embryology Act 2008 on the application of one person. decisions (referred to in the judgment) under s 54 of the Secondly, could section 54(1) be 'read down' in accordance HFEA 2008. with section 3(1) of the Human Rights Act 1998 so as to enable the court to make a parental order in favour of one For the judgment and summary by Katy Chokowry of 1 person. King's Bench Walk, from which this item is derived, please click here. Following Z's birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, 14/9/15 relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father's sole parentage of Z. However, for the purposes of English law www.familylawweek.co.uk Family Law Week October 2015 - 7

Court fee increases making ordinary should be taken, and social workers recorded the concern as people's legal rights 'meaningless' 'unsubstantiated'. Some months later, after the adoptive mother made the The Law Society is concerned that the government is council aware of further allegations, the council held a proposing further court fee increases when hikes Position of Trust meeting chaired by an independent introduced just six months ago have failed to deliver any reviewing officer to look at whether the council had tangible improvements in the court service or helped to investigated the allegations properly. That meeting decided protect access to justice. any investigation might be traumatic for the children and cast doubt over whether sufficient evidence would be Law Society President Jonathan Smithers said: available given the time that had passed.

'There has been no assessment of the impact of increases, The adoptive mother tried to take her complaint through the just six months ago, of more than 600%. Raising the fees statutory three-stage complaints process, but the council further may render ordinary people's legal rights refused to take it through to the second stage. However, meaningless because they simply would not be able to government guidance states that the council is obliged to afford to enforce them. ensure any complaint proceeds through the stages of the procedure if it is what the complainant wants. 'It is wrong in principle for the courts to make a profit for government. Our members have told us that the Additionally, the mother also complained that the foster government's fee increases will stop people being able to carer had not forwarded to her the children's savings, and bring legitimate cases, particularly people on lower memory boxes which should have included important incomes.' photographs and toys. Some items were eventually sent on to the children but many items, including birthday and The Law Society reiterated its concerns for higher fees for Christmas photographs, were missing. divorce claims. The estimated cost of such proceedings to the courts, according to the Ministry of Justice's own figures Dr Jane Martin, Local Government Ombudsman, said: is £270, but the government proposes to charge £550. "While I recognise that councils often have difficult Jonathan Smithers said: judgement calls to make, as I stated in my focus report earlier this year, the statutory children's complaints 'It is disappointing that the government is seeking to procedure is not optional and is there to make sure gain from the misfortune of people who are going vulnerable young people's voices are being heard. The through the difficult circumstances of divorce.' children themselves must be central to the complaint to ensure that their needs are met. 17/9/15 "I would now urge Dudley council to review its policies and procedures to ensure that it takes complaints from Children’s voices should be heard, children with the seriousness they deserve."

Local Government Ombudsman urges To remedy the complaint, Dudley council has been asked to apologise to the adoptive mother, and agree a clear plan for The statutory children's complaints process ensures young how it will interview the children as a matter of urgency. people's voices are heard and councils must ensure they follow it, the Local Government Ombudsman (LGO) has The council should also remind staff that it must adhere to said. its managing allegations procedures, and ensure it progresses complaints through the statutory procedures. The message comes following an investigation into a complaint against Dudley Metropolitan Borough Council, It should also review how it investigates allegations so that in which two adopted children made allegations about their it has a clear view of how it applies its policy and where it former foster carer. should improve.

The little girls, who were four and five years old at the time, The council should also pay the adoptive mother £200 in told their new mother that the foster carer had smacked recognition of the frustration and distress it has caused, and them, made one wear a nappy meant for a disabled child, a further £200 to each child in recognition of the distress it and had given them cold baths. caused them by not ensuring the carer passed on their belongings. Despite their adoptive mother contacting the council about these allegations, and the Local Authority Designated The report can be accessed from this page. Officer (LADO) deciding that the issue should be dealt with as a serious concern, the council did not convene a planning 17/9/15 meeting involving all the relevant officers.

Instead, the foster carer was told about the allegations before social workers had the chance to speak to the mother and children. The council decided that no further action

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Family law barristers nominated for exclusions. However, the strength of the relationship between being in care and educational outcomes is reduced Bar Pro Bono Award when other individual characteristics such as gender, ethnicity and special educational needs, known to be linked Several family law barristers have been nominated for the to attainment, are taken into consideration. Some studies Sydney Elland Goldsmith Bar Pro Bono Award. The award attempted to isolate the effect of care from these individual is a celebration of an individual barrister, group of characteristics of the child which pre-date entry into care barristers, or set of chambers in recognition of outstanding (e.g. maltreatment). These found that the attainment gap commitment to pro bono work. between children in care and their peers is further diminished once these factors are accounted for. However, Among fourteen nominees are the following family law several studies found that the gap persists. barristers: The studies reviewed suggest that the relationship between Ginnette Fitzharris of St Johns Buildings being in care and low educational outcomes is partly explained by pre-care experiences, such as maltreatment Barbara Mills of 4 Paper Buildings and neglect. The difficulties faced by these young people Ÿ may pre-date entry into care but even if reduced, in some Zoe Saunders of St John's Chambers and studies these persisted once in care. Taken together, these Ÿ findings highlight the difficulties children face prior to entry Mai-Ling Savage of Fourteen. into care, the persistence of them once in care and the effect on their educational outcomes. The winner will be presented with the Award by the Chairman of the Bar, Alistair MacDonald QC, during this The research paper is here. year's Bar and Young Bar Conference on Saturday 17th October 2015. 18/9/15

A full list of nominees is here.

18/9/15 Nagalro responds to government’s consultation on special guardianship

Being in care is not detrimental to Nagalro, the professional association for Family Court Advisers, Children's Guardians and Independent Social children’s educational outcomes Workers, has published its response to the Government's consultation on special guardianship. A literature review , entitled What is the relationship between being in care and the educational outcomes of Recently the DfE published research into local authority children?, carried out by the REES Centre at the University practice in respect of special guardianship orders. of Oxford, has found that there is little support for the claim that being in foster or kinship care per se is detrimental to Overall, Nagalro considers that where children cannot live the educational outcomes of children in care. Whilst the with their birth parents placement under special review found that there is a correlation between being in guardianship with relatives offers the best option if care and educational outcomes, this relationship is rigorously assessed as safe and the balance of risk and mediated by a number of individual, family and benefit is positive. environmental risk factors. The association believes that generally the legal framework The review, undertaken by Aoife O'Higgins, Judy Sebba works well. and Nikki Luke, explored the relationship between educational outcomes, children's care histories and It has concerns about delays in the process caused, for individual characteristics, and practice and policy in example, by parents refusing to agree to grandparents and different areas. It was undertaken in order to examine other potential carers being informed for various reasons existing research evidence that addresses the following and by social workers (for reasons of confidentiality) being three questions: reluctant to share information against the wishes of parents. Ÿ The result is that often potential carers come forward only Is there an association between being in care and quite late in the day. educational outcomes? Ÿ Nagalro also believes that at times the quality of SG What is the nature of the association between being in assessments is insufficiently rigorous and that many care and educational outcomes? prospective SGs lack advice at various stages of the process. Ÿ Is there any evidence to suggest that this association is The response concludes that since its inception almost ten causal? years ago the special guardianship provision has been a most positive and beneficial addition to the 'menu' of orders Findings from the studies in the review were unequivocal: available to the family courts to meet the needs of children as a group, children in care lag behind their peers on a and no substantial changes are needed in the legal number of measures of educational attainment, including framework or practice other than those proposed above. For grades, literacy and numeracy test scores, attendance and the most part it is from the lack of resources for the adequate

www.familylawweek.co.uk Family Law Week October 2015 - 9 provision of professional (legal and social work) advice and alone; support and assessment services that the difficulties have arisen and the variability between different areas and LA Ÿ Unbundling tended to be identified as an option during provision of services, which should be placed on a firmer the initial client interview rather than being actively statutory footing if the best practice is to be universal. marketed to consumers – this may limit the extent to which unbundling draws into the market those The response is here. completely excluded due to cost;

18/9/15 Ÿ No regulatory barriers to unbundling were identified, but some concerns were raised around assessing consumers' capability, giving advice based on limited ‘Unbundling’ family legal services 'can information and ensuring there is clarity on agreements make them more accessible' about the scope of work; and Ÿ Members of the judiciary felt that if full representation The Legal Services Board and Legal Services Consumer could not be obtained then – as a starting point, some Panel have welcomed moves by law firms to unbundle legal legal advice and assistance ought to be beneficial. They services to consumers. also echoed some potential difficulties with unbundling identified by providers and felt it important that advice Unbundling is where a package of legal services is and assistance is given by regulated advisers. separated into parts and the work shared between the consumer and lawyer. An example of unbundling is a Legal Services Consumer Panel Chair, Elisabeth Davies, consumer preparing the evidence and the court bundle said: themselves and then directly instructing the barrister who represents the consumer at the court hearing. "We've known that the unbundling of legal services has been going on for some time. This research supports the The Legal Services Board and Legal Services Consumer view that unbundling can be used to broaden access to Panel commissioned Ipsos MORI to undertake qualitative justice, and it's reassuring to see this method of service research with consumers, lawyers and judges. The resulting provision working hand in hand with DIY law. It's a research paints a picture of law firms beginning to respond natural response to the cuts in legal aid funding and to consumer demand and changes in their commercial wider financial struggles, and is indicative of the environment by developing affordable alternatives to full- profession adapting to meet the needs of today's service representation. consumers and helping to empower them.

Family, civil and immigration have been identified as areas "But what this report also says is that there is a group of of law where this type of service delivery is amongst the consumers who can't use these services, and whose most common. Family and civil enable a focus on support needs may not be being met. While legal service for litigants in person in a courtroom setting, whilst providers should not shy away from providing immigration was selected due to the large element of form- unbundled services where it is appropriate, it is crucial filling which makes this area potentially suitable for that the more vulnerable consumers, including those unbundling. who lack the confidence or knowledge to unbundle, are taken into account in other ways. Unbundling is an The research concentrated on those areas of practice and important part of a wider solution." comprised: Chairman of the Legal Services Board, Sir Michael Pitt, said: Ÿ 35 interviews with consumers in relation to civil, family and immigration matters "Unbundling is one example of new ways of obtaining legal services that are beginning to change the face of the Ÿ 15 interviews with legal services providers in relation to legal services market. This research provides civil, family and immigration matters encouraging evidence that unbundling can save people money and empower them to take greater control over Ÿ 6 interviews with judges in courts and tribunals; five their legal affairs. full-time District Judges who sat in the County Court and Family Court, and one full-time Immigration Judge "Whilst those lawyers interviewed agreed that of the First-tier Tribunal (Immigration and Asylum unbundling is here to stay and is potentially as Chamber). profitable as other work, the research suggests these services are rarely actively marketed to clients. The researchers found that: "In the right circumstances unbundling benefits Ÿ Reduced cost and the opportunity to exercise greater consumers and providers alike. I welcome the keen control over the case were the primary reasons why interest that the professional bodies have already shown those consumers interviewed chose to unbundle; in this emerging area. Ÿ There appears to be a process of self-selection with "This research provides valuable insight into the benefits unbundling used by consumers who were reasonably and risks of unbundling, but overall it should give confident and felt capable of taking on certain tasks providers confidence that, with appropriate safeguards,

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they can unbundle their services whilst meeting their professional obligations." There was a decrease in "timeliness" for private law cases overall in the last year. The average time for first disposal The report is here. in the quarter was 14.7 weeks (down 2.5 weeks from last year's equivalent period). 18/9/15 Domestic Violence Since 2012 there has been a general upward trend in the Latest MoJ statistics for Family Courts number of applications for non-molestation domestic in England & Wales bulletin published violence remedy orders but a drop since the end of 2014. There was a 5% decrease from the equivalent quarter in 2014. The Ministry of Justice has published the latest available Family Court statistics covering the quarter April to June Adoption Orders 2015 Whilst there was a general upward trend in the number of adoption orders issued since 2012 (an all time high was For the full statistics bulletin click here The bulletin reached in July-September 2014), the numbers of adoption provides an overview of the volume of cases with a orders for the most recent quarters has dropped. breakdown for the main types of cases. Applications during the quarter were as follows:

Snapshot of the Key Findings: • Placement orders: 1,164

Number of Cases in Family Courts • Adoption orders: 1,486 (England & Wales) 1,627 adoption orders were made in which 72% of the The total number of cases was 59,908 (a 4% increase on the adopters were a male/female couple and 13% were to sole previous quarter). Nearly half of new cases were divorce adopter applicants. In 7% of the orders made the adopter cases. was a step-parent and 8% were a same-sex couple. Financial Remedies There were 10,410 applications for financial remedies in the Forced Marriage Protection Orders Between April and June 2015 there were 71 applications and quarter (a 4% increase than the equivalent quarter last year. 67 orders were made. A total of 9,745 disposals of financial remedies cases were 27 September 2015 made (a 6% decrease on 2014's equivalent quarter).

Financial remedies Disposal Types House of Commons briefing paper • Lump sum orders (32%) published on transparency in the family court • Property Adjustment orders (29% The House of Commons Library has published a briefing • Periodical payments orders (13%) paper which considers transparency in the family court, including communication of information and media • Secure provision orders (6%) attendance, and background on recent changes in this area. • Maintenance Pending Suit (3%) This concise briefing paper considers the issue of confidentiality and openness in the family court, including: • 2% of applications were dismissed. Ÿ an explanation of the new family court; Surprisingly, Pension Sharing orders were only made in 11% of cases (Pension attachment orders in 4%). Ÿ the current rules on transparency, including communication of information, media attendance and the 65% of financial remedies disposals were uncontested, 26% publication of judgments, as well as the rules on contempt were initially contested and 9% were contested throughout. of court;

Care or Supervision cases Ÿ a history of recent changes to the transparency of the The average disposal time was 29 weeks with 56% of family courts,including the recent direction on the proceedings being disposed of within 26 weeks. publication of judgments, and consultation on further measures to improve transparency by the President of the Private Law Cases Family Division, Sir James Munby. 10,494 private law cases were commenced during the quarter (a 13% increase on the 2014 equivalent period. The briefing paper can be accessed here.

13,081 private law cases were disposed of (12,261 for the 27/9/15 same quarter last year).

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Vulnerable teenagers forced out of "We know from our work with these children that whilst many housing providers give excellent support, too local authority accommodation often older teens are being let down by the bodies that should be protecting them. All services involved in their A thousand vulnerable teenagers across the country are care need to be giving them the right support to allow being evicted from accommodation provided by their local them to flourish." authority or made to leave at short notice every year, according to research from The Children's Society. The report is here.

The charity's report, On Your Own Now: The risks of 27/9/15 unsuitable accommodation for older teenagers, surveyed 119 housing providers used by local authorities to house vulnerable 16 and 17-year-olds. It found that half had either ALC publishes response to SGO evicted or asked a child to move at short notice due to them getting behind on their rent and other bills, or factors like consultation unemployment, violence or drugs. The Association of Lawyers for Children (ALC) has Many of these young people face severe risks including published its response to the DfE's consultation on special drugs and legal highs, violence and deteriorating mental guardianship orders. health. The ALC has expressed concern about various issues in There are currently an estimated 8,400 16 and 17-year-olds relation to SGOs. It considers that special guardianship is across the country living independently in accommodation not being used for the purposes for which it was said to be such as hostels, and semi-supported accommodation. The intended. report revealed that 85% of children placed in such accommodation were on benefits rather than receiving The Association also notes that many SGOs are made at the support from children's services. end of care proceedings as an alternative to the making of a care order (or sometimes a care and placement order). As a result these children had to survive on their own with However, where a child cannot return home and is to only minimal - or no - support. The Children's Society says remain long-term with family members, many local that this lack of support for young people, who already have authorities ask the carers to make a private law application high levels of need, increases their vulnerability and leads for a special guardianship order as an alternative to starting them into more crisis situations. care proceedings. In some cases this is being done inappropriately, for example where the plan is in dispute Instead of offering them more support when their problems and/or there is significant conflict between family members. increase, they often face being evicted to another home, or placed in increasingly worse accommodation such as bed This raises concerns, such as: and breakfasts and even face street homelessness. Ÿ The child will not normally be represented, whereas in The report found that currently, along with minimal care proceedings they would automatically benefit legal regulation, staff are not required to have qualifications to and social work representation from a solicitor and support and safeguard young people. Nearly two-thirds of Children's Guardian; providers house adults up to the age of 25, which can leave these teenagers at risk of sexual exploitation or involvement Ÿ Legal aid is not available to respondents in private law in crime. proceedings. If, therefore the local authority decides to fund the applicant's legal costs, the parents will be The Children's Society is calling on the Government to unrepresented and thus at a serious disadvantage; introduce regulation which guarantees all children in this kind of accommodation are properly safeguarded. Housing Ÿ The court may decide to direct a section 7 welfare report providers should also receive the financial support they in relation to the application, in order to secure need to give these children the best standards of care. independent advice as to whether the order is in the child's best interests. The report is however usually The Secretary of State should also review guidance to make commissioned from the local authority that is sure that vulnerable 16 and17-year-olds can never be left supporting the arrangement rather than from Cafcass – without support after being evicted. the current SDCS/Cafcass Protocol has the effect of encouraging this. A report prepared by an agency that is Sam Royston, Director of Policy and Research at The supporting, and may well be funding, the application, is Children's Society, said: not an independent report and should not be relied on to safeguard the child's welfare. "It is unacceptable that children are being evicted from the very places intended to keep them safe and prepare Local authorities should be encouraged to use care them for adulthood, often simply as a result of getting proceedings rather than private law proceedings in this behind on bills or lacking the support they need to cope. case, notwithstanding the additional costs. The increasing Instead many are being denied the stability and safety restrictive financial situation creates a risk that local they need. authorities will use the cheaper option more often and therefore that more children and parents will be left in this position.

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For more details of the appeal, please click here. For the full response from the ALC, please click here. 27/9/15 27/9/15 Children’s Commissioner calls for Mediation starts in the last quarter up renewed focus on reducing poverty of by a third young children

The Ministry of Justice has published legal aid statistics for Changing the odds in the early years: A discussion paper on April to June 2015. child poverty produced by the Office of the Children's Commissioner for England argues for a renewed focus on The number of mediation assessments fell sharply after the reducing poverty for pre-school children and their families introduction of LASPO in April 2013, but over the last year as a central priority for this Parliament. the number of mediation assessments has stabilised at around half of pre-LASPO levels, despite quarterly Drawing on research with ten local authorities in England, fluctuations. the report highlights the challenges local authorities are experiencing in helping families with very young children While the number of mediation starts fell by a similar against the backdrop of increasing need and reducing proportion to assessments following LASPO, starts have budgets. recovered more strongly than assessments over the last year and were up by 33% in the latest quarter compared to the It concludes that additional investment in targeted same period in the previous year. The MoJ says that this interventions is essential at this crucial stage of children's may suggest that a larger proportion of assessments are development if we are to break the cycle of disadvantage for leading to starts now than before LASPO. the poorest families. It advocates for urgent and co- ordinated action to improve young children's outcomes and Over the last year 64% of all mediation outcomes involved life chances in the most disadvantaged areas. successful agreements. Of these successful agreements, the children category had the highest proportion of its The Children's Commissioner has proposed: agreements being successful (67%). Ÿ A new national commitment from Government to The civil representation workload for family public law has significantly reduce poverty in the early years over the increased, being 11% higher in April to June 2015 than in the lifetime of the Parliament same period of the previous year, while in domestic violence civil representation workload has fallen by 8% over Ÿ Improving the outcomes of early years children as a this period. Legal help matters completed in family public local priority for increasingly devolved councils and law increased by 11% over this period and are now higher regions than before the LASPO Act was introduced. Ÿ Additional Government investment to drive a reduction The report is here. of early years poverty in the areas of greatest disadvantage 27/9/15 Ÿ A better understanding of what works in reducing poverty in the early years. A quarter of foster children move home twice or more in a year The full report is here. 27/9/15 One in four foster children in the UK (over 14,500) moves home two or more times a year (April 2014 to March 2015), a Freedom of Information request by charity Action for Children has revealed.

Children and young people who regularly move between foster care homes are more likely to have poor social skills, reduced education outcomes and limited future employment prospects – impacting on their mental health and exacerbating any existing behavioural and emotional issues.

The charity is warning that too many children in foster care are still being disrupted by repeated moves to new homes, and has launched an appeal to find thousands of new foster carers to help provide the best homes for vulnerable children at the earliest possible opportunity.

www.familylawweek.co.uk Family Law Week October 2015 - 13

ARTICLES

Finance & Divorce Update September 2015

Edward Heaton, Principal Associate and Jane Booth, Associate, both of Mills & Reeve LLP analyse the news and case law relating to financial remedies and divorce during August 2015

This update is divided into:

1. News in brief

2. Case law update

NEWS IN BRIEF

Updated Family Procedure Rules and Practice Directions The Family Procedure Rules 2010 ("FPR") have been updated to include practice and procedure to be followed in applications for female genital mutilation protection orders. Minor amendments have also, however, been made to Practice Directions 3A (Mediation Information and Assessment Meetings), 4A (striking out a statement of case) and 30A (appeals).

Amendments to the Practice Directions:

• 3A: The introduction of an additional form of evidence to prove a Mediation Information and Assessment Meeting exemption based on domestic violence.

• 4A: Following the Supreme Court judgment in Wyatt v Vince [2015] UKSC 14, paragraph 2.4 will be deleted. The paragraph provided for a strike out application on the basis that a case has no real prospects of success.

• 30A: Following the decision in CS v ACS and another [2015] EWHC 1005 (Fam), the final sentence of paragraph 14.1, providing that an appeal is the only way to challenge a consent order, will be deleted.

Mediation service sees calls to its helpline double in past year National Family Mediation ("NFM") have seen the number of calls to their telephone helpline more than double in the past year. The helpline has taken an average of 3,400 calls every month since the start of the year, up from 1,600 calls every month during the same period in 2014.

Jane Robey, CEO of National Family Mediation, referred to the fact that this might be a sign that "the government's policy, to divert people away from the legal process to mediate instead, is actually beginning to work. Couples are increasingly self-researching their options, and this is reflected in the huge increase in calls to dispute resolution specialists on our telephone helpline".

Rome III Regulation now applicable in Greece As of 29 July 2015, Greece will become the 16th member state to adopt the Rome III Regulation. This Regulation (officially 'Regulation 1259/2010' but also sometimes known as the EU Divorce Pact) implements enhanced cooperation in the area of the law applicable to divorce and legal separation, and provides a means to give effect to the parties' choice of the law which will govern their divorce and legal separation.

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The first 15 member states to adopt the Regulation were Austria, Bulgaria, Germany, Italy, Lithuania, Malta, Romania, Spain, Belgium, France, Hungary, Latvia, Luxembourg, Portugal and Slovenia. (The UK has not adopted the Regulation.)

Updated Form D190: guidance on applying for a financial order HMCTS has published an updated version of Form D190, the advice sheet for litigants in person wishing to apply for a financial order. The advice is five pages long and outlines the procedure for financial remedy applications including discussions about Family mediation and costs.

For the form click here

The FLBA responds to the Law Commission Consultation on Enforcement of Family Financial Orders The Family Law Bar Association, which has 1,800 full members and represents self-employed and employed barristers, has responded to the Law Commission Consultation on Enforcement of Family Financial Orders.

In a statement published in October 2010, the FLBA stated that then state of enforcement proceedings was "hopelessly complex and procedurally tortuous". It advocated the need for a more "modern, user-friendly and cost effective scheme, in which judges or lay magistrates are able to grant one or more orders selected from a uniform menu of options".

In its response to the Law Commission Consultation, the FLBA stated that whilst "we welcome the vast majority of the reforms proposed, we would still emphasize the need, in our view, to consider:

a) a single unifying piece of legislation dealing exclusively with enforcement as well as

b) a single cohesive set of rules on enforcement within the FPR."

The following "obvious points" are made:

"i. the more difficult and costly orders are to enforce, the less likely parties are to seek enforcement;

ii. difficulty in achieving enforcement itself encourages default, or the threat of default, to negotiate a more favourable settlement;

iii. it undermines the whole financial remedies jurisdiction if orders made are unlikely to be enforceable or disproportionate (too costly) to enforce;

iv. the current law is far too complex, with the need to cross refer between different statutes, the CPR and the FPR."

The response goes on to make suggestions which include the following:

• In order to discourage the practice of seeking a variation only once an enforcement application has been made, a warning notice on financial orders that the obligation to pay continues unless and until varied with any person finding it difficult to pay having to apply to the court for a variation unless they achieve an agreement, in writing, with the payee to vary payments;

• A relaxation of the embargo on second pension sharing orders in relation to the same pension in order to facilitate exercising enforcement mechanisms against pensions given the large proportion of financial remedy orders that involve pension sharing;

• A presumption that the debtor pays the costs where the court makes an enforcement order, unless there is a good reason not to do so;

• A presumption of no order as to costs, if a debtor successfully opposes an enforcement application, unless the creditor has behaved unreasonably;

• Each court centre having a specialist enforcement judge (of at least District Judge level) to hear cases and provide information and guidance to local judiciary on enforcement issues; and

• Judges, who approve a consent order at a Financial Dispute Resolution hearing, being able to hear any subsequent contentious issue arising on enforcement."

www.familylawweek.co.uk Family Law Week October 2015 - 15

Case law update

WA v Executors of the Estate of HA (deceased) and others [2015] EWHC 2233 (Fam) This was an appeal by a former wife ("the wife") against an order made by the by consent in November 2014 ("the consent order"). The parties had married in 1997 and separated in early 2014.

In short, the wife was, as Moor J indicated, "fabulously wealthy", with personal net assets of £27.2m and net assets held in trust with a value of £242m. The former husband ("the husband") had personal net assets of just over £2m.

Prior to the marriage, the parties had entered into a pre-marital agreement which the judge described as, essentially, a "separation of property agreement", although little attention was subsequently given to the agreement at the time that the husband and wife agreed the settlement that was reflected in the consent order.

During the course of the marriage, an estate was purchased as the family home. At the time of purchase, it had been in a dilapidated state, but was restored to make a "magnificent home and park" worth in the region of £30m, and the husband's mother lived in a property on the estate.

The consent order provided for the wife to make a payment to the husband of £17.34m which, combined with his personal assets, left him with around £19.5m. The payment was to be made in two equal tranches, the first within 14 days of the consent order and the second within 14 days of the husband's mother vacating the estate property, which she did in late January 2015.

The husband, however, committed suicide 22 days after the consent order was made. In his will, he left everything to his three adult brothers and nothing to his children. In a separate letter to his brothers, he made it clear that they were not to return any money to the wife, the money being "a reward for the pain of recent months".

The wife appealed the consent order, relying on Barder v Calouri [1988] AC 20, on the basis that "the fundamental assumption on which the order was made was that the Husband required the money to meet his own needs which [had] been totally invalidated by his death". She sought the setting aside of the entirety of the consent order and repayment of the majority of the first tranche that she had paid, the balance of £1.5m to be returned to her once the husband's mother no longer had the need of a property which had been purchased for her so that she could move out of the estate property.

The judge found that:

• The husband's death had only been a "theoretical possibility" and neither foreseen or foreseeable as, whilst there had been concerns over his mental health in the summer of 2014, reports had become "uniformly positive" by September 2014;

• The agreed award to the husband had been needs and not sharing based and was, therefore, "susceptible to being set aside", the husbands' needs claim having prevailed over any sharing claim;

• The award should be reduced to £5m which, whilst quantified on a sharing basis, was not significantly greater than the award would have been on a needs basis (given that approximately £3m would be needed to cover the housing costs of the husband's mother, responsibility for which the parties had taken on, and it would not have been unreasonable for the husband to have the capability to make "modest bequests"); and

• The payment to the husband was reduced from £17.34m to £5m, the requirement to pay the second tranche being set aside and the husband's estate being required to repay to the wife a sum of £3.67m.

CH v Secretary of State for Work and Pensions & Anor (Child support: maintenance assessments/calculations) [2015] UKUT 381 (AAC) This case concerned the payment of child support where the child was, at the time of the hearing before the Upper Tribunal, aged 16. The judgment sets out the relevant law about people employed and earning income abroad, and the effect of the double taxation arrangements.

The mother with care made an application for child support in December 2012. The non-resident father was habitually resident in the UK from 2012 but worked in Belgium and was subject to income tax in Belgium.

HMRC assessed the father's UK income tax as £Nil as the tax that he was paying in Belgium was higher. The UK has entered into a double taxation treaty with various countries, including Belgium (see Article 23(1)(a) of the Convention set out in the Schedule to the Double Taxation Relief (Taxes on Income) (Belgium) Order 1987 (SI 1987/2053). Therefore, the father was not to be taxed to an unfair extent on the same earnings in the UK as he was paying tax on in Belgium.

The Child Support Agency made a £Nil assessment on the basis that the father had no income as he was not paying UK tax. The mother appealed. The First Tier Tribunal dismissed the appeal on paper. The mother submitted a further appeal.

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The Upper Tribunal determined that the Child Support Agency and the First Tier Tribunal decision were incorrect as, but for the double taxation arrangements, the father would have been liable to tax in the UK and his earnings should, therefore, be taken into account in making an assessment. The application was referred back to the Child Support Agency for them to re-consider.

Birch v Birch [2015] EWCA Civ 833 This was an application by the wife under section 31 of the Matrimonial Causes Act 1973 ("MCA 1973") to vary undertakings in a consent order from 2010.

The consent order detailed the agreement between the parties as to the future ownership of certain personal belongings and debts. It also ordered that the husband was to transfer his share of the former matrimonial home to the wife subject to the mortgage.

In the consent order the wife provided undertakings to:

• discharge the mortgage payments on the former matrimonial home, use her best endeavours to release the husband from the mortgage and indemnify him in any event.

• sell the former matrimonial home if the Husband was not released from the mortgage by 30 September 2012.

In 2011 the wife gave notice of her intention to apply to vary the undertakings. She sought to defer the husband's release from the mortgage and for the former matrimonial home to be sold in default only upon the youngest child's 18th birthday or when he ceased full-time education. The youngest child was, at that time, aged 13.

In January 2014 the court at first instance held that there was no jurisdiction to vary an undertaking under section 31 of the MCA 1973. On appeal from the District Judge the wife argued her application was not an application for a variation of an order under section 31 of the MCA 1973 but was an application to vary an undertaking, to which a more general discretion applied. The wife's appeal was dismissed and Judge Waller held there was no power to vary the undertaking in the manner the wife sought.

On appeal the wife submitted that the undertakings given were in reality an order for sale under section 24A of the MCA 1973 to which the power of variation under section 31 applied without qualification. The court had a power to order a variation and, in doing so, would have to give "first consideration" to the welfare of the minor children.

The Court of Appeal held that property adjustment (section 24(1)(a) MCA 1973) and lump sum orders (section 23(1)(c) MCA 1973) are not subject to section 31 of the MCA 1973, save for a lump sum payable by instalments. The primary function of section 31 MCA 1973 is to permit variations of periodical payments and the like.

The Court of Appeal stated that it was clear that section 24A of the MCA 1973 is a purely procedural section limited to matters of enforcement, implementation and procedure in respect of any order to which a section 24A of the MCA 1973 order for sale is attached. The Court of Appeal was of the view that the undertakings in this case did not aid the enforcement, implementation or procedure of the primary order for the transfer of the property to the wife. The property transfer was independent of, and separate from, the undertaking for sale.

The undertakings were not to be regarded as merely incorporating by undertaking something that the court would or could have ordered under section 24A of the MCA 1973. Where the variation sought was an attempt to substitute and entirely different outcome the exercise of the jurisdiction should be limited.

In the alternative that the undertakings were the equivalent of an order under section 24A of the MCA 1973 the variation sought would have undermined the substratum of the order.

The appeal was dismissed

Re Young (A Bankrupt) [2014] EWHC 4315 (Ch) Judge Andrew Hochhauser QC decided that Ms Michelle Young, the ex-wife of Mr Scot Young ("the Bankrupt"), would have to pay the outstanding costs of her failed applications in divorce ancillary relief proceedings to the joint trustees of her ex-husband's estate before they were obliged to summon a creditors' meeting at her request for the purpose of their removal.

Background The Bankrupt and Ms Young married on 31 March 2005. Mr Young had been an entrepreneur primarily involved in the property market, developing and running technology companies and start-up businesses. The couple separated on 5 November 2006 and, on 8 June 2007, Ms Young presented a petition for divorce. The Bankrupt's business and marriage

www.familylawweek.co.uk Family Law Week October 2015 - 17 collapsed at about the same time, and Ms Young claimed that he had manufactured his business implosion and removed his assets to keep them out of her reach.

Meanwhile, the Revenue had presented a bankruptcy petition for unpaid tax. A bankruptcy order was made and the joint trustees were appointed. The trustees decided not to make any adjudication of debts claimed by the creditors until there were funds available to make a distribution.

The Family Division awarded to Ms Young half of what it found the bankrupt had hidden from the court, thus making her a creditor. The award remained unpaid.

Ms Young applied to the Family Division to have the bankruptcy annulled, but that application was later dismissed by a consent order, with costs awarded to the Revenue and the joint trustees.

The Family Division further decided that it lacked jurisdiction to hear Ms Young's application for an order that the trustees summon the creditors' meeting, and she was ordered to pay their costs of that hearing.

Now bringing that application as a cross-application before the Chancery Division, Ms Young sought to remove the trustees because in the four-and-a-half years since their appointment they had identified no assets and made no realisations. She further asserted that they lacked lacking neutrality and were biased against her. The trustees applied for a direction that they were not under an obligation to convene a creditors' meeting for the purpose of replacing themselves.

Judgment Under the Insolvency Act 1986 s.298(1) and the Insolvency Rules 1986 r.6.129, creditors have a democratic right to remove a trustee in bankruptcy at a creditors' meeting of which notice has been given and, under r.6.83, the trustee is obliged to summon such a meeting requisitioned by a creditor.

Under s.303 and s.363(1), the court has power to direct a trustee not to convene a meeting, a power which is only exercised where it is established that the removal of the trustee could have a dramatically inconvenient effect on the outcome of the bankruptcy.

In this case, the fairest resolution was to require Ms Young to pay the outstanding costs of her failed applications in the Family Division before the trustees were obliged to summon a meeting of creditors at her request. Given that Ms Young had not been a creditor when the trustees had been appointed and so had had no say in their appointment, but was now the largest creditor, it was wrong to deprive her entirely of the opportunity to put her case for new trustees to the other creditors at a meeting held for that purpose. Furthermore, it was surprising that, after four and a half years, there had been no adjudication of the creditors' claims. In view of that period of time, a further delay of up to six months caused by a replacement of the trustees would not have a dramatically inconvenient effect on the outcome of the bankruptcy and so there was no reason for the court to direct the trustees not to convene the meeting.

Ms Young's application was therefore refused and her cross-application granted in part.

Dated: 9 September 2015

www.familylawweek.co.uk Family Law Week October 2015 - 18 Children Public Law Update (September 2015)

John Tughan QC of 4 Paper Buildings reviews recent judgments of significance to child care lawyers.

In this update I will consider the following:

• recent authorities on the issue of whether to make adoption orders when there is a natural family member available and the child is placed for adoption;

• the President's recent guidance on the adoption of children who are foreign nationals but habitually resident in the UK;

• the President's recent decision on the provision of legal aid where the care proceedings had been re-opened;

• guidance on the revocation of adoption orders; and

• a case on who should pay for the translation of documents.

Adoption and natural family members There has been a series of cases in which the courts have had to deal with the difficult balance between the natural family caring for a child who has already been placed for adoption. The series started with the decision of Holman J in A&B v Rotherham [2014] EWFC 47 (5th December 2014) in which an aunt succeeded in opposing an adoption order for a child aged 20 months. The child had been placed with the adopters since the age of 7 months. Holman J described the decision as the most harrowing in his time on the bench. Permission to appeal that decision was refused by the Court of Appeal.

Then came the case of M'P-P (Children) [2015] EWCA Civ 584 (June 2015) which was an appeal on similar issues. The judge at first instance had found in favour of the aunt over the adopter. One of the two children had been placed with the adopter since one day of age. The Court of Appeal overturned the decision on narrow, judgment specific, grounds without giving guidance beyond what is already known. That case is awaiting re-hearing.

More recently Russell J had to grapple with similar issues in Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039. In this case the Court of Appeal had allowed the father's appeal out of time against the making of the care and placement orders (Re H [2015] EWCA Civ 583). The child was 2 ½ and had been placed with adopters since the age of 16 months. The three older siblings remained with the father. The child was settled and happy with the adopters.

Set out in the factual background to the decision is the conclusion of the court that the care and placement proceedings were finely balanced and the inference that if the legal principles (Re B [2013] UKSC 33 etc) been properly applied then W would have been placed at home with support. The evidence was that the father provided "very good care" to the older siblings. The judge was very critical of the social work evidence and described the efforts at case-building as "reprehensible". There was also strident criticism of the approach of the Guardian and the absence of a child-centred analysis until mid-way through the hearing. Importantly, the Guardian failed to put before the court the views and position of the older siblings, whose rights were clearly engaged.

The Article 8 convention rights of the father, mother, siblings and adopters were engaged.

The fact that the threshold facts within the original proceedings were at the lower end of the scale weighed with the court in deciding the issue before it.

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Russell J described the legal test in this way:

"The result of the Supreme Court and subsequent decisions of the Court of Appeal is that that this court can only make an adoption order if it is necessary to do so and it is not enough that it would be better for this child to be adopted than to live with her original or birth family as Lord Wilson said in Re B:

34. …Yet, while in every such case the trial judge should … consider the proportionality of adoption to the identified risks, he is likely to find that domestic law runs broadly in parallel with the demands of Art 8. Thus domestic law makes clear that:

a) it is not enough that it would be better for the child to be adopted than to live with his natural family (Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161, para [7]); and

b) a parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (s 52(1)(b) of the Adoption and Children Act 2002)

The same thread, therefore, runs through both domestic law and European Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word 'requires' in s 52(1)(b) 'was plainly chosen as best conveying ... the essence of the Strasbourg jurisprudence' (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para [125])."

It may not be possible to draw conclusions from these three cases. The correct legal conclusion may only be that each case is fact-specific and that the legal principles to be applied are now settled. However, on the two decided cases the natural family successfully retrieved the child from an adoptive placement and issues such as the fact that the child had settled in that placement or the difficulty in moving the child were overcome without too much difficulty. However often we are told that the law has only been re-stated recently, those outcomes constitute a sea change in approach.

Adoption of children who are foreign nationals but habitually resident in the UK CB (A Child) [2015] EWCA Civ 888 was an appeal from a decision of Moylan J. The child was the subject of care and placement orders and had been placed for adoption. The litigation history was extensive with the mother making a number of different applications and appeals in order to attempt to overturn the original orders. Moylan J dealt with her further application for contact together with an application under Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, commonly known in this country as BIIR or BIIA, for jurisdiction to be transferred to Latvia; and an application under section 47(5) of the 2002 Act for permission to oppose the making of an adoption order.

The Ambassador of Latvia and the consul attended the hearing. The Latvian central authority was present. CB and her mother are citizens of the Republic of Latvia, though it was common ground that CB, who was born in this country, has at all material times been habitually resident here. CB's father had no involvement in her life.

Moylan J dismissed the applications of the mother. The suggestion of an Article 15 transfer to Latvia (raised by the Latvian central authority) could not stand as the article did not apply to decisions on adoption or matters preparatory to adoption. In deciding whether to grant leave to oppose the adoption Moylan J decided that there had not been a change of circumstances. The mother had sought to argue that the involvement of the Latvian authorities (and their willingness to accept case responsibility) was part of the change of circumstances.

In giving judgment in the Court of Appeal (and dismissing the appeal) Munby P described one aspect of what is being said by the Latvian authorities as particularly significant. That related to their submission that CB's needs could be assessed and her future determined, in the light of such assessment, by the appropriate Latvian authorities. The President agreed with Moylan J's analysis and concluded that an application under section 47(5) of the 2002 Act is a "measure preparatory to adoption" within the meaning of Article 1(3)(b) of BIIA.

The President then went on to refer to the Vienna convention and his decision in Re E (A Child) (Care Proceedings) [2014] EWHC 6, [2014] 1 WLR 2670

"46. In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.

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47 Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case: (1) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state … (2) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for (a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or (b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents. (3) Whenever a party, whether an adult or the child, who is a foreign national … is represented in the proceedings by a guardian, guardian ad litem or litigation friend … the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay."

The President accepted the local authority's apology and explanation for their failure to notify the Latvian authorities of the care proceedings prior to the decision in Re E on the basis that such duties were not widely known at the time.

The President then went on to re-visit issues of the inter-relationship of the UK's approach to adoption with that of other countries. He affirmed Re E and went on to say:

"But there are two important points to be borne in mind. There is, first, the point I made in Re R (A Child) [2014] EWCA Civ 1625, para 45:

'The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there … The Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less.'

83. The second point is that, whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the United Kingdom's international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is nothing in the Strasbourg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there is nothing in the various non-consensual adoption cases in which a challenge has been mounted, to suggest that our system is, as such, Convention non-compliant.

84. The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:

i) local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;

ii) the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA: see generally In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, paras 31, 35-36;

iii) if there is no transfer in accordance with Article 15, the court, if the local authority's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625;

iv) in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family."

Availability of legal aid where care proceedings have been re-opened In M (A Child) [2015] EWFC 71 the mother had applied for the discharge of a special guardianship order (a private law application) in order to argue that the factual aspect of the care proceedings should be re-opened. The factual issues were re-opened on the basis that the process had been unfair because the mother suffered from a learning difficulty that significantly impacted her ability to engage in that process. The original allegations related to non-accidental injury

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(including fracture) to a child. The Legal Aid Agency took the view that the automatic legal aid (non-means or merits tested) could not be granted as the application (for SGO discharge) did not fall within the relevant categories within the terms of the regulations. The President held that the effect of the application was to re-open fully the care proceedings and that this was, therefore, a case in which automatic legal aid should be granted. He so declared.

The Legal Aid Agency has accepted that decision and a legal aid certificate has now been granted to the mother.

Revocation of adoption orders In PK v Mr & Mrs K [2015] EWHC 2316 (Fam) Pauffley J was dealing with an application for the revocation of an adoption order. The applicant was the (now) 14 year old adopted child. The applicant sought the revocation as she had been re-united with her natural family and abused within the extended adoptive family. The application was granted and Pauffley J set out the legal framework for such (rare) applications. That framework is to be found in Re Webster v. Norfolk County Council and the Children (by their children's guardian) [2009] EWCA Civ 59 and Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.

The court followed the reasoning of Bodey J in Re W:

"He observed it was common ground that "the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances." Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – "To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order."

5. Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – "Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside."

Payment for translation of documents In R (Translation of Documents in Proceedings) [2015] EWFC B112 HHJ Lynn Roberts was dealing with the issue of which party should pay for the translation of documents within the context of publicly funded parties. The decision of the court was that the costs should not be equally shared and that the party who sought translation should meet the costs.

2/9/15

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International Relocation: less ‘Payne’ – more pain?

Anita Mehta, barrister at Crown Office Row, Brighton , considers the implications of Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 to the jurisprudence in respect of international relocation cases and private law generally.

International relocation applications have, for some time, rightly or wrongly, been synonymous with Thorpe LJ’s much debated paragraph 40 of his judgment in Payne v Payne [2001] EWCA Civ 166.

‘(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life. Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.’

Thorpe LJ called this a ‘discipline’. Although, the writer would hazard a guess (from the number of these applications that have been heard in the Court of Appeal) that the distinction between a legal test and a discipline has not always been clear to courts and practitioners.

The most recent authority dealing with this jurisprudence is Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 in which Ryder LJ gives the lead judgment of the Court of Appeal. This case is now requisite reading when dealing with an application for international relocation. However, it is of wider interest, as it sets out the correct approach to private law applications generally.

Permission to appeal was granted on three grounds, in essence questioning the correct approach and how the court should conduct the welfare analysis in these applications. The Court of Appeal has been trying to reduce the importance of the judgment in Payne v Payne in these applications for some time. What Re F (2015) makes absolutely clear is that any judgment which focuses or only relies on the Payne v Payne ‘discipline’ is at risk of being appealed. Ryder LJ notes the earlier Court of Appeal authorities that the Payne v Payne guidance should not to be elevated to ‘principle’. He notes in Re K (Children) [2011] EWCA Civ 793 (a judgment from May 2011) that Thorpe LJ himself observes that the only principle to be extracted from Payne v Payne is the paramountcy principle and all the rest is ‘guidance’. Then, in October 2012, Munby LJ in Re F (A Child) [2012] EWCA Civ 1364 also made it clear that there are no presumptions in cases governed by s.1 of the Children Act 1989; from beginning to end the child’s welfare is paramount.

To that extent, Re F (2015) adds nothing new to the jurisprudence of the last few years in international relocation cases. Payne v Payne does not set out a legal principle; it is guidance to assist in the welfare analysis which may or may not be of aid according to the facts of the particular case. Whilst there has been a lack of clarity as to whether the applicability of the guidance depended on whether the case involved a ‘primary carer’ or ‘shared care’ (frankly, practitioners have not been helped by conflicting judgments in the authorities), Re F (2015) makes clear that the nature of the current care arrangement does not dictate the relevance of the Payne v Payne guidance.

Ryder LJ’s judgment states, in terms, that in setting out the correct approach to international relocation cases he is not ‘re-crafting’ the law; he is merely describing the approach that underpins the existing jurisprudence. Therefore, the writer

www.familylawweek.co.uk Family Law Week October 2015 - 23 will endeavour to walk the line to identify what is significant for future practice without suggesting that the Court of Appeal has re-crafted its own dicta. There are two points of interest in the ‘not re-crafted law, merely descriptions’.

Firstly, Ryder LJ describes that in determining these applications the correct approach is a holistic approach to the welfare analysis, although the statute does not require that the welfare checklist is utilised. Re F (2015) reiterates that it should be used. The Payne v Payne discipline not only appeared to create a presumption in favour of the primary carer but also seemed to endorse an old-fashioned linear analysis whereby the court considered the proposal of the primary carer first; and if that was genuine and realistic, the discipline did not seem to suggest that the court needed to bring the same level of scrutiny to the other parent’s proposal. Re F (2015) makes clear that the court is to consider the two options side-by-side. The court then undertakes a multi-faceted welfare evaluation taking account of the pros and cons of each option.

This is the same approach the Court of Appeal has endorsed in care proceedings. What this case makes clear, is that this approach is good practice in any decision about a child’s upbringing. Therefore, practitioners should ensure that the court performs this evaluation in all private law applications whether they relate to international relocation or, as McFarlane LJ puts it in Re F (2015), whether handover takes place at ‘Starbucks’ or ‘McDonald’s’, albeit the extent of evaluation would reflect the importance of the decision. This is really significant for practitioners in private law applications. How often, for example, do the Justices (Tier 1 Judges) perform such an analysis in reaching a decision in private law proceedings?

Practitioners in all areas should note McFarlane LJ’s caution that courts are not to elevate ‘global, holistic evaluations’ to a new test; this is just a form of wording to encapsulate the welfare balancing exercise. No doubt, he is worried that after 14 years of courts and lawyers apparently paying too much attention to the wording in Payne v Payne rather than the overall meaning that we are all about to do the same with the words ‘global, holistic evaluation’.

The second ‘not re-crafted law, merely description’ of significance in respect of applications for international relocation is confirmation that the court must consider whether the parties’ plans are proportionate. Ryder LJ points out that there has long since been clarification that the ECHR applies to these cases and no doubt the ECHR and the right to family life have been mentioned in final submissions in every case in recent years where such an application has been before the court. The writer is less clear how often courts have considered whether the application for international relocation is proportionate.

In terms of wider practice, Ryder LJ clarifies that although the convention applies to all private law cases, the court is not specifically required to carry out a proportionality argument in every private law case. Indeed, it would be quite difficult to apply a proportionality evaluation to McFarlane LJ’s example of whether handovers take place at Starbucks or McDonald’s. The reason proportionality must be considered in international relocation cases is because of the potential to sever the relationship between one parent and child: the same risk that exists in care proceedings.

For what it is worth, the writer’s view is that this case is a welcome clarification of the law in international relocation cases; they have always seemed weighted in favour of the applicant and that has not seemed necessarily right or fair. However, as lawyers, our primary attraction to the Payne discipline was that we were able to advise our clients as to the likely outcome with some certainty – and that will be missed.

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Court of Protection Update (September 2015)

Sally Bradley and Julia Townend, barristers of 4 Paper Buildings, focus on the applicable law and procedure pertaining to reporting restriction orders in the Court of Protection generally and further to the recent judgment in A Healthcare NHS Trust v P & Q.

In this update we propose to focus on the applicable law and procedure pertaining to reporting restriction orders in the Court of Protection generally and further to the judgment of Newton J in A Healthcare NHS Trust v P & Q [2015] EWCOP15.

Facts in A Healthcare NHS Trust v P & Q The subject of the proceedings was P. In November 2014 P had suffered a serious cardiac arrest which resulted in a severe hypoxic brain injury considered by medics to be severe and irreversible such that P would not regain consciousness. P was from then totally dependent on intensive care. P's family strongly disagreed with the medical opinion and recommendations.

The NHS Trust applied to the Court of Protection for:

Ÿ A declaration that it was in P's best interests not to escalate his care and to discontinue some of P's treatment (which would inevitably lead to his demise); and

Ÿ A reporting restriction order.

The law and procedure: reporting restriction orders in the Court of Protection At paragraphs 8 to 41 inclusive of his judgment in A Healthcare NHS Trust v P & Q, Newton J summarises the law and procedure pertaining to reporting restriction order applications in the Court of Protection.

The general principles might be summarised as follows:

Ÿ The general rule is that hearings in the Court of Protection should usually be held in private 1. Publication of any information in relation to the proceedings will generally be contempt of court 2.

Ÿ There are exceptions 3 to this general rule which provide that the court may make an order for a hearing to be held in public, for a part of a hearing to be held in public or excluding any person or class of persons from attending a public hearing or part of it. The court must be satisfied that there is "good reason" for making such an order 4. Good reason appears to include applications concerning serious medical treatment (including decisions about the withholding of nutrition and hydration from persons in a permanent vegetative or minimally conscious state) where Practice Direction 9E states "the court will ordinarily make an order pursuant to rule 92 that any hearing shall be held in public..."5.

Ÿ Where the court makes an order pursuant to Rule 90(1) of the Court of Protection Rules 2007 the court also has jurisdiction to impose restrictions on the publication of the identity of any party, P, any witness or any other person 6, prohibit the publication of any information that may lead to any such person being identified 7, prohibit the further publication of any information relating to the proceedings from such date as the court may specify 8 or impose such other restrictions on the publication of information relating to he proceedings as the court may specify 9. Practice Direction 9E (mentioned above and relating to serious medical treatment) makes it clear that

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if any hearing shall be held in public "restrictions [will generally] be imposed in relation to publication of information about the proceedings" 10.

The procedure for reporting restriction applications in the Court of Protection is set out in Practice Direction 13A of the Court of Protection Rules 2007. The authors' summary is as follows:

Ÿ An application for an order under Rule 90, 91 or 92 of the Court of Protection Rules 2007 is to be commenced by filing an application in Form COP9 (in accordance with Part 10). A statement of truth in an application notice may be made by a person who is not a party. The court should consider whether the application should be dealt with as a discrete issue.

Ÿ Where an application for a reporting restriction is made the following notification requirements apply:

o The order must not be made where the person against whom the application is made is neither present nor represented unless the court is satisfied that the applicant has taken all practicable steps to notify the respondent or there are compelling reasons why the respondent should not be notified 11.

o National newspapers and broadcasters should normally be informed of the application – orders without notice will be exceptional 12. Notice can be effected by the Press Association's CopyDirect service (known as the Injunctions Alert Service) which will be responsible for notifying the individual media organisations 13. The details can be found at paragraph 15 of Practice Direction 13A.

o The Press Association should generally be served with the application form/application notice seeking the restriction order, the supporting witness statement, any legal submissions in support and an explanatory note setting out the nature of the proceedings in the prescribed form 14. Practitioners should ensure that the contents of the explanatory note do not breach any rule or order of the court in relation to the use or publication of information. If these documents are not served on the Press Association the applicant should ensure enough detail is provided to enable the media to make an informed decision as to whether it seeks to attend a hearing or be legally represented 15. The court may dispense with any of these requirements. Equally the court may give notice of its own initiative to the national media, and send such information as it considers necessary.

Ÿ A notified media organisation or any other person may decide they wish to participate in a hearing to determine whether a reporting restriction should be imposed. To take part the person must file an acknowledgement of service in Form COP5 within 21 days 16 (beginning on the date on which notice of the reporting restriction application was given to him by CopyDirect/the Injunctions Alert Service) and comply with the filing obligations of Rule 75 of the Court of Protection Rules 2007. This will not confer party status on the respondent to the substantive proceedings save as the court may direct 17.

Ÿ The aim of any reporting restriction order should be to protect P rather than to confer anonymity on other individuals or organisations. Notably the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations or other persons as the court directs where the same may be prejudicial to the care for P or where it may lead to the identification of P and defeat the purpose of the order. The identity of experts is infrequently the subject of restriction without evidence in support of the same 18.

Ÿ The court will not generally make an order prohibiting the publication of information already in the public domain other than exceptionally 19.

Ÿ Orders are to last no longer than is necessary to achieve their purpose. The order may need to last until P's death or a later date (if necessary to preserve the anonymity of doctors or carers after P's death) 20.

The general question for the court in A Healthcare NHS Trust v P & Q The general question was whether in applications for reporting restriction orders the applicant Trust, when notifying the Press Association of the application, is required to identify P and/or the parties (including P's family). The NHS Trust, the Official Solicitor and the Press Association argued that there is such a requirement. P's family objected to the disclosure of the identity of P and/or P's family.

The court noted that nowhere in any of the requirements for media notification of applications is there provision for notification in which the parties are anonymised. Newton J balanced Article 10 and Article 8 and considered numerous points extracted from earlier decided case law at paragraph 39 of his judgment. Newton J set out the arguments in favour of revealing the parties' identities to the Press Association at the notification stage in paragraph 48 of his judgment and the arguments in support of anonymisation at paragraph 49.

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Newton J's conclusions can be found at paragraphs 50 to 68 inclusive of his judgment. He concluded that a number of factors come together preventing the media from revealing the parties' names at the notification stage and prior to the making of any reporting restriction order because it would be a statutory contempt, it would be a contempt of common law, it would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect) and it would be a breach of confidence. Therefore it was held to be in the interests of transparency "the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names". Newton J ordered the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if desired.

Comparing jurisdictions: reporting restriction orders in the Family Division Whilst this article focuses on the procedure pertaining to reporting restriction order applications within the Court of Protection, it is worth noting that Practice Direction 12I to the Family Procedure Rules 2010 regulates the procedure pertaining to such applications in the Family Division. As readers may be aware:

Ÿ Applications should be made in the High Court and dealt with by a judge of the Family Division 21. If an order is required in existing proceedings the relevant application should generally be transferred to the High Court.

Ÿ An order must not be granted where the person against whom the application is made is neither present nor represented unless the court is satisfied that the applicant has taken all practicable steps to notify the respondent or that there are compelling reasons why the respondent should not be notified 22. As in the Court of Protection, the Press Association should be served. The Family Practice Direction adds that legal advisers to the media are used to participating in hearings at very short notice and are able to differentiate between information provided for legal purposes and information for editorial use 23. The court retains the power to make without notice orders but such cases are exceptional and liberty must be included for the respondent to apply or vary the order at short notice 24.

Further guidance can be found in the Practice Note 'Applications for Reporting Restriction Orders' dated 18 March 2005.

Interestingly in A Healthcare NHS Trust v P & Q when the Court of Protection was considering the issue as to whether or not P and/or P's family should be granted anonymity at the stage of the applicant for a reporting restriction order notifying the Press Association, reference was made to the Family Court. Children have the added protection of section 97(2) of the Children Act 1989 which provides that

"no person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify any child as being involved in any proceedings... in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child or an address or school as being that of a child involved in any such proceedings".

Counsel on behalf of P's family in A Healthcare NHS Trust v P & Q argued by analogy with it being a criminal offence to identify a child or their address pursuant to this section (including to the Press Association) it should also be expressly forbidden to identify a vulnerable adult to the Press Association upon an application being made for a reporting restriction order. Newton J did not accede to this argument for the reasons set out at paragraph 67 of his judgment. ______

Footnotes:

[1] Rule 90(1) Court of Protection Rules 2007; Independent News Media v A [2010] EWCA Civ 343 at [19] [2] Section 12(1) Administration of Justice Act 1960; Paragraph 7 Practice Direction 13A [3] Rule 92(1) Court of Protection Rules 2007; Paragraph 1 Practice Direction 13A [4] Independent News Media v A [2010] EWCA Civ 343 [5] Paragraph 16 Practice Direction 9E [6] Rule 92(2)(a) Court of Protection Rules 2007 [7] Rule 92(2)(b) Court of Protection Rules 2007 [8] Rule 92(2)(c) Court of Protection Rules 2007 [9] Rule 92(2)(d) Court of Protection Rules 2007 [10] Paragraph 16 Practice Direction 9E [11] Paragraph 10 Practice Direction 13A [12] Paragraph 13 Practice Direction 13A [13] Paragraph 14 Practice Direction 13A [14] Paragraph 15 Practice Direction 13A [15] Paragraph 17 Practice Direction 13A [16] Paragraph 21 Practice Direction 13A [17] Paragraph 23 Practice Direction 13A [18] Paragraph 27 Practice Direction 13A [19] Paragraph 28 Practice Direction 13A [20] Paragraph 29 Practice Direction 13A

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[21] Paragraph 2.1 Practice Direction 12I [22] Paragraph 3.1 Practice Direction 12I [23] Paragraph 3.3 Practice Direction 12I [24] Paragraph 3.4 Practice Direction 12I

16/9/15

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Legal Parenthood: Modern Problems, Old Solutions – A review of The HFEA (A and Others) [2015] EWHC 2602

Deirdre Fottrell QC, 1 Garden Court Chambers, and Jemma Dally, Partner, Goodman Ray LLP, explain the factual background and legal issues involved in the President’s recent judgment in The Matter of the HFEA (A and Others)

This article reviews the decision of the President in the case of The Matter of the HFEA (A and Others) [2015] EWHC 2602 The central issue in the case concerned the acquisition of legal parenthood and, in particular, the interpretation of the provisions of the Act governing consent to parenthood in respect of children conceived using donor sperm.

Factual background The applications before the court were for declarations of parentage under s.55 A of the Family Law Act 1986. The seven applicants were parents of children conceived following IVF treatment using donor sperm. Five of the applicants were male and two were female. Each applicant had, at the time of the birth of their child, understood that they were the legal parents of their children, having thought they had complied with the relevant legal requirements to acquire parenthood. All of the families had been treated at licensed fertility clinics in England.

However, in each case the clinics had made administrative errors in the taking of the parents' consent as to who the legal parents of the child would be. It was not for months and, in some cases, years after the child had been born that the families were notified by the clinics that, due to an anomaly in the completion of consent to parenthood forms prior to treatment, they were not in fact the legal parents of their children. In most cases the clinics had advised the parents that the only legal remedy available to them was to adopt their own child.

The law The cases occurred against the legislative backdrop of the amendments to the HFEA 2008. On 6th April 2009 the Human Fertilisation and Embryology Act 2008 came into force. It created a mechanism whereby the partner (male or female) of the birth mother of a child conceived by way of assisted reproduction using donor sperm or embryos can acquire legal parenthood from birth, provided certain conditions are met.

The Act has to be read with the accompanying guidance which included the following:

a. A Code of Practice which sets out in greater detail the conditions to be met in respect of treatment, parenthood and the role of licensed clinics (including the conditions of licence).

b. The Guidance produced by the Authority.

c. Directions.

d. Letters from the Chair and from the Chief Executive of the Authority. Sections 36 and 37 HFEA set out the conditions which are to be satisfied before a male partner can be considered the parent of a child conceived as a result of fertility treatment. Sections 43 and 44 set out in similar terms the conditions for a female parent.

There are six conditions set out in ss.36, 37, 43 and 44. These are:

a. The father/parent has given notice that they consent to being treated as the father/parent of a child resulting from treatment (s.37(1)(a) and s.44(1)(a)).

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b. The mother has given notice to the person responsible that she consents to the father/parent being so treated (s.37(1)(b) and s.44(1)(b)).

c. Neither the mother nor the father/parent has withdrawn that notice (s.37(1)(c) and s.44(1)(c)).

d. Neither has given notice in the same terms in respect of another father/parent being treated as the father/parent of the child (s.37(1)(d) and s.44(1)(d)).

e. They are not within prohibited degrees of relationship to each other (s.37(1)(e) and s.44(1)(e)).

f. The notices are in writing and are signed (s.37(2) and s.44(2)).

Treatment under licence requires that the licence conditions set out in s.12-15 of the 2008 Act are met. Offering counselling is a condition of the licence. Section 23 of the Act provides that the Authority may from time to time give directions for any purpose. Section 23(2) confirms that

"A person to whom any requirement contained in directions is applicable shall comply with the requirement"

It is these parenthood/fatherhood conditions in ss37 and 44 that were introduced for the first time when the HFEA 2008 came into force on 6th April 2009. In 2009, the HFEA issued a direction making it mandatory for the clinics to use particular forms (WP and PP) when taking consent from parents, to ensure that the conditions were met.

On 10th February 2014, the Chief Executive of the HFEA required clinics to carry out an audit of their records of patients who were not married or in a civil partnership and who had received treatment. The catalyst for that request was the decision of Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418, [2013] 2 FLR 1357 in which a biological mother had obtained a declaration that the other parent was not a legal parent due to the parties not having signed the relevant consent to parenthood forms in advance of treatment. It was this case that brought to the attention of the HFEA the shortcomings in clinic Z in respect of the taking of consent to legal parenthood.

The HFEA requested all clinics to report the results of their audit by May 2014. The audit disclosed anomalies in 51 out of 107 clinics, almost half of all clinics in the UK.

At paragraph 8 of his judgment, the President referred to the picture which emerged from the audits as 'alarming and shocking'. In particular, he queried whether the Authority had adequately discharged its regulatory functions or whether the issue was that the regulatory powers under the Act were not sufficiently robust.

In the applications before the court, there were three different categories of anomalies that were considered by the President. The first were cases in which the forms may have been signed but appeared to have been lost. The second category were cases in which the parents had given signed and written consent on 'internal' forms used by clinics but not on the HFEA mandated WP and PP forms. The third category were cases in which the WP and/or PP forms contained obvious errors such as the wrong date being inserted as to when it was signed.

The legal issue The consequence of the anomalies in all cases is that the consent to legal parenthood was not properly obtained and the non biological parent had no legal relationship with their child. The central issue in the case was whether that position could be remedied by the making of declarations of parentage orders.

In AB v CD, Cobb J had made a declaration that the non biological parent was not the legal parent but in circumstances which were markedly different from the current cases. In that case, the biological mother did not accept that valid consent had been given by either party. The factual evidence in the case also led the court to conclude that any consent to the grant of parenthood was not (in the circumstances of this case), informed consent because the clinic did not provide the parties with an opportunity to receive counselling in advance of treatment. In addition, in this case, the consent was not given before the insemination/embryo transfer as required.

In X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine (CRM) intervening) [2015] EWFC 13 the necessary consent on the PP form signed by the father relating to parenthood prior to treatment as required by s.37 HFEA 2008 was not on the clinic's file. Theis J found on the facts that that it was more likely than not that the father had signed the necessary consent form but that it had subsequently been mislaid by the clinic. Theis J further concluded that the breach of record keeping did not invalidate the clinic's licence in the circumstances of the case, so that the treatment was 'provided under a licence' as required s.37 (1) HFEA 2008.

The President considered that the cases raised three general issues of principle, which he set out in paragraphs 44-63 of his judgment.

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The first was whether it was possible to prove by parol evidence that a WP or PP form which cannot be found had been executed in a manner consistent with the statutory requirements. Following the approach taken by Theis J in X and Y, he concluded that the question in such cases was a factual one and could be resolved by making findings on factual evidence. In such circumstances, the court had to be satisfied the form (which was lost) had been signed before treatment. This was the approach the Court took in cases A, B, E, F and H.

The second issue arose where there were errors on the forms, whether those errors could be 'corrected'. The President considered this to be a novel point which could be decided using long established principles of construction. He concluded that a mistake could be corrected if the mistake was obvious on the face of the document, and it was plain as to what was meant.

The third issue was whether internal consent forms which contained some but not all of the language of the WP/PP forms were sufficient to meet the statutory requirements. The President looked back at the statutory scheme as set out in both the 1990 Act and the 2008 Act. He concluded that a failure to comply with the HFEA's direction that a Form WP and Form PP "must" be used cannot invalidate consent that has been given in accordance with what set out in sections 37 or 44 of the 2008 Act. The Act does not prescribe a form to be used. What is required under these sections is a "notice" in writing and signed. The President concluded that what is required is compliance with the substance and not "slavish adherence to a form". In accordance with these principles, the President granted the declarations sought in each of the cases.

It is clear from the HFEA audit that there are many other parents whose legal parenthood was not properly acquired. The decision in these cases is clear that each future case will turn on its facts but it appears that most cases can be resolved by the application of the principles set out in this judgment.

At the conclusion of the judgment, the President made three observations regarding the regulation of the HFEA and the practices within clinics. The wider implications of this case relate to the HFEA and whether the Authority has failed in its regulatory duties or, in the alternative, whether the Authority's regulatory powers are sufficiently robust to supervise clinics.

25/9/15

Deirdre Fottrell QC and Jemma Dally represented applicants A-E in the case of A and others.

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Autism and Child Arrangement Disputes

Louise Desrosiers, Barrister, of Lamb Building describes the issues which need to be considered in child arrangement disputes involving children who are on the autism spectrum.

Estimates suggest there are 700,000 people with Autism Spectrum Disorder (ASD) living in the UK. Anecdotal reports have placed the divorce rates of couples with autistic children as high as 80%. Therefore it is no surprise that family law professionals are increasingly involved in child arrangement disputes between parents of autistic children. In this article I shall focus on the issues which need to be considered in such cases. Since I hope that it will be useful not only to practitioners but also to parents, I have explained some legal processes and principles with which practitioners, of course, will already be familiar.

Since guidance can be found for criminal practitioners dealing with ASD, it is perhaps surprising that there has been no published guidance for court professionals managing family cases. Further, due to legal aid reforms, many parents now find themselves with no legal representation in court and are reliant on the judge alone to understand their situation.

ASDs vary widely; whilst children on one end of the spectrum can have more obvious cognitive and physical difficulties, higher functioning individuals' socio-emotional functions can be subtly impaired and often go undiagnosed. Children may instead present as 'difficult'. Further, such 'difficult' behaviour can be incorrectly blamed on an inability to parent. In child arrangement disputes this can become magnified, with the resident parent being accused of obstructive behaviour and the non-resident parent of failing to look after, connect or bond with the child.

Parents or spouses of individuals with ASD may appear neurotic, depressed, or exhausted simply due to the effort they extend to cope with the emotional, physical and financial strain of a child with ASD. Moreover, parents rarely receive validation or support from professionals or the public.

So, if a parent who has a child on the autism spectrum or suspects that their child may have an ASD, finds him or herself in court with an ex-partner, what can they do to prepare for court proceedings? And what advice can a legal representative offer?

Diagnosis and reports If the parent suspects that their child has an ASD, the child is currently undergoing an assessment and/or has a diagnosis, it is important to highlight this to the legal representative or the judge at the start of proceedings. Orders can be made which delay proceedings until an assessment has been undertaken and assist in obtaining the same.

Psychological, medical and/or educational reports identifying the level of impairment and strengths of the child should be considered. These may include psychological or medical reports, individual education plans, a child's educational statement and updates from treating clinicians or teachers and therapists within the child's school.

Reports from the Children and Family Court Advisory and Support Service (Cafcass) are often ordered in family proceedings. Cafcass operates within the law set by Parliament and under the rules and directions of the family courts. Its role is to: safeguard and promote the welfare of children; give advice to the family courts; make provision for children to be represented; and provide information, advice and support to children and their families.

Where there is a dispute between the parties Cafcass can be ordered to prepare an independent report. The main problem with these reports is that many of the practitioners who compile them may not have sufficient training and expertise in ASD. Many parents discover this too late, after a report has been compiled, when it can be obvious that the child's presentation is misunderstood. It is helpful at the early stage in proceedings, if such a report is ordered, to (a) (if available)

www.familylawweek.co.uk Family Law Week October 2015 - 32 ask for a Cafcass officer with experience of ASD to undertake the report and (b) set out very clearly some of the questions you would like the Cafcass officer to address, such as routine, food allergies, over stimulation, etc.

Non-parental advocate Children with an ASD may also benefit from a non-parental advocate such as a guardian. This can be beneficial in cases where it may be difficult for the professionals to recognise which parent is advocating for the best interest of the child. If appointed, the child(ren)'s guardian is not a "neutral" party or participant. When appointed under the Family Procedure Rules ("FPR") the guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. Depending on the severity of the disagreement between the parties, the allegations made by them of the other parent and the extent of the difficulties faced by the child, it may be helpful to suggest appointing a guardian. The appointment of a guardian is not guaranteed and each case will be based on its own individual characteristics.

Child's developmental age In any dispute about the arrangements made for a child post-separation, a child's age can be a good indicator, taken along with other factors, as to a child's ability to cope with arrangements imposed by a court. Children with an ASD can function at a lower developmental age than actual age. Arrangements regarding the child may therefore need to be based on the child's developmental age. Time should be allowed for revision of arrangements as they progress. It is not enough to set the developmental age at the outset of proceedings and then assume it will increase from that point on chronologically. There may be leaps in development as well as stagnation and this requires flexibility and regular updates from professionals. It may be unwise for legal professionals to make assumptions about an autistic child's capabilities or competence based on age alone.

Parent education Orders for parental education such as attending the Separated Parents Information Programme and Domestic Violence Perpetrator Programme are not uncommon in family law cases. However, when dealing with a child with an ASD, any parent who has not already been heavily involved in the day to day care at the time of separation may need input to assist with the child's parenting. Having solo primary responsibility for one or more autistic children who may require constant supervision may present new challenges and stresses for the parent. Courses to help parents when looking after an autistic child can be found through the National Autistic Society (www.autism.org.uk) and it may be prudent to attend a hearing with dates, times and costs of upcoming courses which may assist, for instance, a parent seeking contact with an autistic child. Examples of courses are the Early Bird or Early Bird Plus Programme(s) associated with NAS and the Cygnet Programme associated with Barnardos. Alternatively these courses could help both parents avoid potential misunderstandings and/or court hearings if a diagnosis of ASD has just been made in respect of a child.

Clauses to include in court orders Specific clauses are impossible to suggest without knowing more about the circumstances of any one case, but generally clauses may be included to address potential autistic behaviour that could prevent the parent with charge of the child from otherwise fulfilling an agreement reached between the parties or imposed by the court. For example, whilst the child may not be flexible in terms of routine, the order can allow flexibility for the parents to accommodate unplanned circumstances such as a meltdown due to stress.

Children with an ASD might need more time to adjust after transitions between the parents and timescales can reflect this, not just for the child but also for the parent receiving the child.

The need for routine in children with ASD may vary, but will require a level of extensive cooperation between parents. If not there may be, even with the best of intentions, strikingly different routines which could confuse an autistic child with a severe need for consistent structure.

Visual diaries, calendars and timetables could be used to ease transition and improve predictability for the child. Widgit is a company that is commonly used by schools and a number of apps are available to produce easy to understand timetables and visual stories for autistic children. Being prepared with printed timetables for suggested contact can be a way to assist legal professionals and demonstrate to a judge that, for instance, a resident parent, does not wish to obstruct contact, but that is actively thinking of solutions to assist the transition of contact for the child.

Other siblings

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There may be other autistic or neuro-typical children to consider. When developing a schedule of contact, one may wish to take account of the fact that these children may need time with both parents alone, as an autistic child can be demanding and take much of the lone parent's attention.

Other issues Other factors such as hygiene and safety should not be ignored. For example, autistic girls may find puberty and menstruation overwhelming and contact schedules may need to be scheduled to reflect the monthly cycle. Individuals with an ADS may pose a greater danger to themselves and others due to a tendency to become self absorbed. It may not be sufficient for a child to make their own way home from school due to a lack of road safety awareness. A non-resident parent may not accept the severity of a diagnosis in a high-functioning child and in situations like this it might be useful to stipulate precisely what is expected of that parent to ensure the safety of that child.

The key to a successful outcome in court proceedings for a child on the autism spectrum is to remember that being well prepared at the hearing can have a significant impact on how the case progresses. It is also useful to appreciate that separated parents may have different hopes, parenting styles and experiences of the child's autism. This does not mean that both should not be able to have a good relationship with the autistic child, but both parties may have to work hard to find solutions to overcome difficulties which are not present in other family law cases.

A list of legal practitioners with experience of autism can also be found on the NAS website.

29/9/15

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CASES

RY v Southend Borough Council [2015] EWHC 2509 (Fam)

The case concerned a young child SL, who had multiple physical and developmental impairments arising from her birth. She had been placed for adoption with RY, a single female prospective adopter who also suffered from mobility and other disabilities (about some of which a degree of scepticism had been previously expressed by her own mother and latterly by medical professionals).

The competing applications (the adoption application was first in time) arose as a result of a growing body of concerns emerging about RY's care of SL which prompted the local authority to seek SL's return to its care. By the time of the hearing, she had been returned to foster care on an interim basis, by agreement.

In considering the basis on which the placement had been founded, Mr Justice Hayden quoted from the positive social work assessment and set out, in its entirety, RY's own account, written for that assessment, of the her day to day life and ability to 'cope'. Although he found her to be confident, eloquent and articulate, neither document addressed her capacity to parent a child with a physical disability as the child became older and heavier. His Lordship concluded (and the local authority accepted) that there had been a failure to obtain and review RY's medical records and, as such, a failure to have sufficient regard to the relevant regulations and guidance.

The explanation proffered for the default (broadly, political pressure to avoid delay and financial sanctions against adoption agencies that did not perform, had been a major factor) was not something the court could evaluate. As a statement of the obvious though, matching criteria for any child, let alone those with SL's level of vulnerability should never be compromised. The matching of RY and SL had been 'ambitious'.

The local authority did not however (rightly) put its case on the basis of the impact of RY's disabilities, relying instead on a series of factual "premises", the factual elements of which were largely accepted by RY, who, instead, took issue with the interpretation thereof.

The findings sought centred on the manner in which RY dealt with SL's medical issues. It was said that she repeatedly refused nursing observations, rejected dietetic advice, refused medication and treatment, was unable to consistently accept medical advice, requested or insisted on her own treatment methods and focussed on unnecessary medical procedures. In addition, she 'suctioned' SL inappropriately, made repeated requests for her to have sedation despite being warned it could impede her respiration and administered oxygen inappropriately and without having the proper training.

Before considering the facts of the case, Hayden J set out the legal framework, including the provisions of s.1 and s.35 of the ACA 2002. He cited the analysis of Charles J in DL and ML and the Newham LBC [2011] EWHC 1127(Admin) that, as the application of s.35 required the application of s.1 of the Act, s.35(2) was not incompatible with Articles 6 and 8 ECHR. Accordingly, the s.1 criteria were equally applicable to both the adoption and the s.35 applications.

He also considered the issue of RY's parental responsibility. There was agreement that RY and SL had a family life sufficient to engage ArtIcle 8 with RY relying on the grant of parental responsibility contingent on the child being placed pursuant to s.25 as a factor of importance when evaluating the Article 8 rights. The statutory guidance, however, was clear that the exercise of that parental responsibility was intended to be limited and could be circumscribed by the adoption agency.

In this case, matters had not been helped by the pro forma document used to delineate the extent of RY's parental responsibility, which was criticised by Hayden J as "not...a model of pellucid clarity."

In any event, the court did not need to determine whether RY had deliberately overstepped her authority as the substantive issue was whether or not her behaviour had caused or risked harm to SL.

Lastly, on the legal framework, RY contended that 'harm' in s.1 ACA 2002 should equate to the definition of 'significant harm' in s.31(2) CA 1989 so that there would be no unfair differential between the bar to removing a birth child and a child placed for adoption.

Hayden J observed that Article 8 was a 'broad spectrum'; justification for interference which was fact specific and might result in a higher bar for a birth child than for one whose prospective adopters had not yet been fully evaluated or obtained full parental responsibility. The correct analogy was with s.1 not s.31(2) of the CA 1989 and there was a qualitative distinction between the two situations. Noting that in his opinion the distinction between 'harm' and 'significant harm' was largely illusory, the court would, nonetheless, approach the matter as if "significant harm" applied.

Turning to the evidence, the facts themselves were largely undisputed, with RY's case being predicated on her being unfairly castigated for not accepting a "doctor knows best" approach and with the local authority (supported by the

www.familylawweek.co.uk Family Law Week October 2015 - 35 guardian) relying on a number of medical professionals, asserting that she had a "distorted perception" and a pattern of failure to work with professionals.

The report of the Consultant Paediatrician which was quoted from at length in the judgment, was identified as a model of good practice to be followed by others; it identified all the key issues, enumerating both the behaviours of RY and the harmful effects of these upon SL, leading Hayden J to conclude that, for whatever complex reasons, RY had become 'invested' in SL being viewed as more ill than she was.

There was no need to go through the Scott Schedule. RY's case involved there having been 'misunderstanding' and confusion across the board with diverse professionals rather than, as pointed out by the guardian and accepted by the court, an inescapable pattern of failure to work with professionals.

The court, considered and then rejected all RY's alternative accounts of the undisputed facts, some of which the learned judge highlighted in the judgment by way of example of RY's 'bizarre' behaviour which had, he concluded, 'spiralled out of control'.

Having taken into account the positive elements he had identified in RY, Hayden J nevertheless considered the balancing exercise was not even "remotely" delicate; RY presented a real and serious risk to SL. Accordingly, he would grant the local authority application and dismiss her application to adopt.

RY had serious issues to address and whilst it was to be hoped that she would do so, it would not be safe to place a child or vulnerable adult in her care.

Having dealt with the main application, the court then went on to consider issues of anonymity and the balancing of Article 8 and Article10 rights. Having conducted a survey of the relevant case law, the learned judge considered the President's view set out in The Process of Reform [2013] Fam Law 548. In this case, there would be no identifying link between the prospective adopter and the child that might risk causing disruption to her care so argument based on that assertion was not "well rooted". RY was, nevertheless, intensely vulnerable and any publicity might undermine the therapeutic help she needed; this weighed more heavily than the competing arguments and thus (although this might need revisiting if circumstances changed) the balance currently fell in favour of anonymity.

Summary by Katy Rensten, barrister, Coram Chambers

Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73

The President heard an application by a father for a parental order solely in his favour. The child, Z, had been conceived with the applicant father's sperm and a third party egg using an unmarried surrogate mother in Illinois. The issues that arose in the case were, firstly, whether it was open to the court to make a parental order under section 54 (1) of the Human Fertilisation and Embryology Act 2008 on the application of one person. Secondly, could section 54(1) be 'read down' in accordance with section 3(1) of the Human Rights Act 1998 so as to enable the court to make a parental order in favour of one person?

Following Z's birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father's sole parentage of Z. However, for the purposes of English law the surrogate mother remained Z's mother and the father did not have parental responsibility for Z.

From paragraphs 6 to 14 of his judgment, Munby P sets out section 54, which allows a parental order to be made on the application of two people, and its legislative context. In doing so, he considered section 30 of the Human Fertilisation and Embryology Act 1990 and the legislation concerning adoption. The President notes that in contrast to contemporary and long-established adoption law, s 30 contained no provision for a parental order to be made in favour of one person. The legislative developments that followed made no changes to this position.

At paragraphs 15 to 17, the President considered the legislative debate culminating in the enactment of the HFEA 2008 as recorded in Hansard. In particular, the records demonstrate that an amendment was sought to the Bill with the purpose of achieving consistency with adoption law, but it was argued against and subsequently withdrawn.

The fundamental argument of the father was that the requirement of s 54(1) constituted a discriminatory interference with a single person's rights to private and family life, and was therefore inconsistent with Articles 8 and 14 of the European Convention. Inter alia, it was also argued that the legislation was contrary to Article 12 of the Convention which protects the right to found a family. Further, it was said that the law and the government policy was to enable single persons to be eligible to adopt; and that it was artificial, disproportionate and discriminatory to distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy. The father's case was supported by CAFCASS.

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Munby P determined that the fact that the relevant provision was found in primary legislation represented a substantial obstacle as it was not enough to show that there is incompatibility. The father sought to argue that there was no incompatibility and the section could be 'read down' in accordance with 3s (1)of the Human Rights Act 1998. The President considered the case of Ghaidan v Godin-Mendoza [2004] UKHL 30 and sets out the relevant passages at paragraphs 28 to 34 of the judgment.

The father's case was rejected on the basis that "the principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout."

Further, the President found that " the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, ..., a "fundamental feature", a "cardinal" or "essential" principle of the legislation, ...".

Finally, the President states that this judgment is not intended to throw any doubt on the correctness of other decisions (referred to in the judgment) under section 54 of the HFEA 2008.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

Bagum v Hafiz and Another [2015] EWCA Civ 801

Facts The property in question was a four-bedroomed house in London, owned as tenants in common in three equal shares by the claimant, Mrs Bagum, and her two sons, the defendants Mr Hafiz and Mr Hai. A dispute arose between the parties as to the use, enjoyment and disposal of the property. Mrs Bagum sought an order for the purchase by Mr Hafiz of Mr Hai's one-third beneficial interest in the property.

At first instance, the Judge concluded that she had no jurisdiction to make such an order, but that she both could and should make an order directing the trustees to sell the property, upon terms that Mr Hafiz should have first opportunity to buy it for a price determined upon valuation evidence by the court. Should Mr Hafiz not exercise that option within six weeks of the court's determination) the property should be sold on the open market, with liberty for all beneficial owners to bid.

Mr Hai appealed.

Held The order made by the Judge at first instance fell squarely within her jurisdiction under section 14(2)(a) of TOLATA.

Does the court have power to direct one beneficiary to transfer his interest to another?

No. Briggs LJ stated that the direct disposal of a beneficiary's interest, whether upon sale to another beneficiary or otherwise is, quite simply, not a function of the trustees of land.

Does the court have power to direct trustees of land to sell the trust property to particular beneficiaries, without the consent of the beneficiary to whom the land is not being sold?

Yes. Briggs LJ held that a sale of the trust property to particular beneficiaries is merely one example of the trustees' undoubted power of sale. The fact that it has broadly the same economic effect as a compulsory transfer does not mean that it lies outside the scope of the trustees' powers.

It was submitted on behalf of Mr Hai that section 6(6) of TOLATA acted to prevent a court from ordering a sale from one beneficiary to another as it would violate various rules of equity. However, Briggs LJ stated that:

"…the clear object and effect of sections 14 and 15 is to confer upon the court a substantially wider discretion, exercised upon the basis of wider considerations than might be enjoyed by the trustees themselves…"

By way of example Briggs LJ cited the fact that section 15(1)(c) requires the court to consider the effect of any order on a minor in occupation, whether or not hat minor is a beneficiary under the trust. Such a consideration is a departure from the general rule of equity which requires the trustees single-mindedly to advance the interests of the beneficiaries a class, without preferring some of them over others. The court is not constrained by those rules of equity which may constrain the trustees themselves.

Discretion Briggs LJ stated that the form of order was unusual and that, in many similar cases, the court has ordered a sale of the trust property, with liberty to all beneficiaries to bid. However, he found that the order was a proper exercise of the Judge's

www.familylawweek.co.uk Family Law Week October 2015 - 37 discretion; the Judge had provided clear and cogent reasons for her conclusion that the Order which she made was best calculated to serve the differing interests of all the beneficiaries.

Summary by Tom Harvey, barrister, 1 Hare Court

Capehorn v Harris and Another [2015] EWCA Civ 955

Facts The parties, Mrs Capehorn (C) and Mr Harris (D), cross-appealed the judgment of District Judge Langley in the Central London County Court as to ownership of two properties and two businesses.

The parties' relationship commenced in 1982, and they began to cohabit in 1983. D ran a frozen-food business ("the Business") in which C worked. When D was declared bankrupt in the early 1990s, C continued the Business as a sole trader, and began to employ D in what was now her business. C invested in the Business, although D remained the dominant force.

C purchased Sunnyside Farm ("the Farm") in 1993 in her sole name with a deposit funded from the Business and a mortgage in her sole name. There was neither an agreement to share the beneficial interest at the time of purchase, nor any subsequent agreement following discussions after the parties' separation.

A second property, 19 Beaumont Road was purchased by C in 2002 in her sole name using a mortgage arranged by C secured against the Farm. There was no agreement between C and D that he would have an interest in either 19 Beaumont Road or, once again, in the Farm.

In 2004, D set up a limited company (the Company), in which he owned shares. On appeal it was common ground (contrary to the findings of the District Judge) that both in law and in equity the shares in the Company were owned entirely by D.

In 2007 C and D had further discussions as to their finances and the Business.

C maintained that there was never any agreement that D would have a beneficial interest in either the Farm or in 19 Beaumont Road. C asserted that in 2007 they had agreed that she would transfer the Business to the Company in return for a payment of £750 per week funded by the transferred Business in order to secure the fair division of assets which had been sought by C.

The lower court accepted all of C's evidence at trial.

The lower court found that there was no agreement, as alleged by D, that part of the £750 would be used to fund the mortgage for the Farm.

Legal Framework The Court of Appeal set out the legal framework arising from the decisions in Oxley v Hiscock [2005] Fam 211, Stack v Dowden [2007] AC 432 and Jones v Kernott [2011] UKSC 53:

1) "the person claiming the beneficial interest must show that there was an agreement that he should have a beneficial interest in the property owned by his partner even if there was no agreement as to the precise extent of that interest"; ...

2) "if such an agreement can be shown to have been made, then absent agreement on the extent of the interest, the court may impute an intention that the person was to have a fair beneficial share in the asset and may assess the quantum of the fair share in the light of all the circumstances" (§ 16).

The Farm D had argued on appeal that the use of the word "impute" by the District Judge "incorporat[ed] an implied finding that at some unspecified time before 2007 [the parties] had made an agreement to be inferred from their conduct that [D] should have a beneficial interest in [the] Farm" (§ 22).

DJ Langley had concluded that "looked at in the round" she "should impute to the parties...an acceptance of the fact that [D], by reason of his contribution of the Business ... ha[d] acquired a beneficial interest in [the] Farm" of 25% (§ 20).

The appellate court disagreed: the DJ had erred by imputing an intention to the parties in the first-stage of the two-stage analysis (§ 21, 23): "it is impossible in the circumstances of this case to infer that nonetheless (unbeknown to themselves) the parties did in fact make an agreement by their conduct" (§ 23).

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The Business and the Company The lower court had failed to identify an actual agreement, express or inferred, to justify imputing an intention to the parties that D should have a 65% interest in the Business, and that he therefore held the two issued shares in the Company on trust for the parties in the proportion 65:35, D:C (§ 24).

Following an "elaborate computation" (§ 25), the lower court had ordered C to repay "a very substantial sum" to D and to the Company from the weekly payments made since 2007.

The Court of Appeal found this to be erroneous, both because of "the errors regarding the constructive trusts which the judge thought arose and by reason of the absence of any claim for a money payment" (§ 25).

Implied term as to market rent? On appeal C asserted that there was an implied term in the 2007 weekly payments agreement that "after some (unspecified) period of time the payment of £750 per week should be increased to the market rental sum" (§ 27). In light of the express agreement, the appellate court found "no basis whatever for implication of a term that the sum to be paid should ever increase" (§ 27).

On that basis, it was common ground that the "£750 per week was agreed to last while D (including for these purposes the Company) was in occupation of [the] Farm or until the interest only mortgage in respect of the property expires in 2019, whichever is the sooner." (§ 28). This was because of the "very strong probability that [the] Farm will have to be sold in 2019 in order to repay the mortgage, as the parties contemplated" (§ 28).

Conclusion C was the sole legal and beneficial owner of the Farm and of 19 Beaumont Road. D was the sole legal and beneficial owner of the shares in the Company. As the Business has been sold by C to D in 2007 in return for weekly payments from D, C had neither a beneficial interest in the Business nor in the Company.

Summary by Gwyn Evans, barrister, Tanfield Chambers

In the matter of HFEA 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) [2015] EWHC 2602 (Fam)

Munby P considered seven cases (case G having been adjourned) in which the applicant couples had undergone successful fertility treatment, but where the consents to treatment, required by Part 2 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), had either since gone missing or were not in accordance with the consent forms mandated for use by the Human Fertilisation and Embryology Authority (HFEA), namely Forms WP and PP.

There fell to be considered three general issues of principle:

i. Whether it is permissible to prove by parol evidence that the forms mandated by use by the HFEA namely, Form WP or Form PP (but which could not be found) had in fact been executed in a manner complying with Part 2 of HFEA 2008, and whether, if that is permissible, and the finding is made, the fact that the form cannot be found prevents it being a valid consent.

ii. The extent to which errors in completed consent forms can be "corrected", ether as a matter of construction or by way of rectification.

iii. Whether a consent form that is in a form other than Form WP or PP is capable as operating as consent for the purposes of sections 37 and 44 of the 2008 Act.

In respect of the first issue, Munby P, agreeing with the reasoning set out by Theis J in X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine Intervening ) [2015] EWFC 13, concluded that whether or not a consent form was signed prior to treatment (it being uncontroversial that a consent form signed after treatment had commenced would be invalid) is a matter of fact that may be established by parol evidence. If that fact is established, the fact that the form could not be found would not operate so as to invalidate that previously given consent [paragraphs 45, 63]. Munby P [at paragraph 42] cited paragraph 61 of X v Y:

"(1) It is agreed that the notice required under s 37(1)(a) in PP form needs to be completed prior to treatment provided to Y.

(2) It follows that if that requirement is complied with (along with other requirements such as completion WP form, counselling etc) then at the time of the birth of the child X is treated as the legal father of the child (by operation of s.36 HFEA 2008).

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(3) If that is the case it would be wholly inconsistent with that provision, and the underlying intention to provide certainty, if that status could then be removed from the father and the child in the event of the clinic mislaying the consent in PP form, possibly many years later."

In respect of the second issue, Munby P found "no reason at all why a Form WP or Form PP should not be said to be, of its nature, a document which cannot be rectified", applying the equitable doctrine of rectification [paragraph 47]. Alternatively, "the court can, as a matter of construction, 'correct' a mistake if…the mistake is obvious on the face of the document and it is plain what was meant" [paragraph 48].

It was the third issue that required the greatest analysis. In several of the cases the couples had signed their clinic's own internal consent form (referred to in the judgment as Form IC), rather than forms WP or PP. Munby P reasoned that the first question to ask was "whether, as a matter of its content and construction, a Form IC is apt to operate (a) as a Form WP and/or (b) as a Form PP" [paragraph 50]. Munby P then carried out a comparative exercise, considering on the one hand the words contained in the two Form ICs in question, and the requirements of the statute. He concluded that, having regard to the particular words used, that "both the Barts Form IC and the MFS Form IC – is, as a matter of content and construction, apt to operate both as a Form PP and a Form WP and complies with the requirements of" the relevant sections of the 2008 Act [paragraph 53].

However, the issue did not end there. Munby P then went on to consider a second question. Is a properly completed Form IC, which as a matter of content and construction complies with the requirements of the 2008 Act, precluded from operating as a valid consent because of the requirements in HFEA's directions that consent "must" be recorded in their specified form? Does non-compliance with that direction effectively meant that the clinic was not operating "under a licence" and therefore outside the scope of Part 2 altogether?

Munby P concluded that failure to comply with HFEA's direction would not invalidate a consent that would otherwise be valid for the purposes of sections 37 or 44 [paragraph 57]. Taking a different view from Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), Munby P reasoned that failing to comply with a HFEA direction did not meant that a clinic was not operating "under a licence" - that licence remaining in force and not having been revoked by HFEA. He reasoned that consent would only be invalid if outside the scope of any licence, and not for any breach of compliance with that licence [paragraph 58].

In light of these decisions of principle, Munby P considered the facts of each case and accordingly made declarations of parentage in all seven cases. However, in doing so he robustly criticised the "widespread incompetence across the [fertility] sector on a scale which must raise questions as to the adequacy if not of the HFEA's regulation then of the extent of its regulatory powers" [paragraph 8]. He also made it clear that nothing he had said in his judgment "should be treated as any encouragement to anyone not to use Form WP and Form PP" [paragraph 63].

Summary by Eirwen Pierrot, barrister, Field Court Chambers

DL v SL [2015] EWHC 2621 (Fam)

At paragraphs 5 to 7, Mostyn J sets out in brief the historical background to the principle of open justice. Mostyn J explains that "there are some categories of court business, which are so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression. These cases are those where the subject matter of the proceedings can rightly be categorised as "private business"." Ancillary relief being a quintessentially private business, Mostyn J states that they are protected by the anonymity principle. According to His Lordship the following sources confirm that they are so protected:

(a) Through FPR 27.10, Parliament has specifically provided that the proceedings shall be heard in private;

(b) The process involves the extraction of highly personal and private information under compulsion which the recipient may not use save for the purposes of the proceedings;

c) Article 14 of the 1966 International Covenant on Civil and Political Rights creates a presumption against public judgments in matrimonial proceedings;

(d) The Judicial Proceedings (Regulation of Reports) Act 1926 applies to the proceedings for ancillary relief. This Act has been reviewed by Parliament on numerous occasions without any change made to this policy. Mostyn J disagrees with the President that there is doubt whether the 1926 Act applies to financial remedy proceedings and that the Act ought to be repealed.

Mr Justice Mostyn states that the above considerations "point powerfully to the categorisation of ancillary relief proceedings as private business entitling to the parties to anonymity as well as to preservation of the confidentiality of their financial affairs (sic)." Even if the rules provided for ancillary relief proceedings to be heard in public the parties would, in his Lordship's judgment, be entitled to anonymity and preservation of the confidentiality of their financial affairs.

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Mostyn J goes on to set out his reasons for deferentially disagreeing with Holman J's practice to hear ancillary relief cases in open court. In particular, in Mostyn J's view rule 27.10 incorporates a strong starting point or presumption that financial remedy proceedings should be heard in private which should not be derogated from unless there is a compelling reason to do so. Further, Mostyn J points out that while appeals in ancillary relief proceedings are heard in open court in the Court of Appeal and the Supreme Court, applications to preserve the parties' anonymities have at times been granted by these courts.

Whilst not disputing the need for privacy, His Lordship states that Parliament has decided that the Press should act as the "eyes and ears" of the public in ancillary relief cases. The reform which resulted in rule 27.11 was not designed to cast the essential privacy of ancillary relief proceedings aside.

Mostyn J concludes that "the present divergence of approach in the Family Division is very unhelpful and makes the task of advising litigants very difficult. A party may well have a very good case but is simply unprepared to have it litigated in open court. The risk of having it heard in open court may force him or her to settle on unfair terms. In my opinion the matter needs to be considered by the Court of Appeal and a common approach devised and promulgated. Obviously if the view of Holman J is upheld and adopted then the rest of us will have to follow suit."

Finally, His Lordship draws attention to the fact that the Press' potential ability to access the court file in cases which are heard in open court has been overlooked so far, and is further reason for the Court of Appeal to consider this issue.

An order to preserve the anonymity of the parties and the privacy of the proceedings was made, as appears at Annex A to the judgment.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

B (A Child) [2015] EWCA Civ 974

The court was concerned with the father's appeal against an interim child arrangements order in the context of the child making allegations of physical abuse against the mother. The child, R, was aged 6 and R's parents were separated. The arrangements for the child were set out an order made in 2012 for R to have regular staying contact with his father.

The arrangement was in place until May 2015. During a visit with the father and paternal grandparents, R made allegations of physical abuse by his mother, half-sibling, and cousin. The allegation was reported and R was seen by police and a social worker, when R repeated the allegations. The local authority undertook a s.47 investigation and a medical examination and R remained consistent in his account.

The local authority advised the father not to allow R to return to or have contact with the mother. The mother applied for contact and the father applied for the current status quo to remain pending a full hearing. The applications came before a Circuit Judge at a first hearing in June 2015. The judge had available the s.47 report and a letter from the head teacher of the school R attended whilst living with his mother. Having heard submissions (but no evidence), the judge determined that it was in R's best interests to return to live with his mother pending a full investigation and that the default position in the 2012 order should be re-established. The father sought and was granted permission to appeal.

The father contended that the Circuit Judge was premature in making this decision. The Court of Appeal concluded that it was a matter of discretion for the Circuit Judge. Whilst the view of the local authority was important and influential, it remained a professional opinion. The letter from R's school recorded that R was happy in school and he was regularly brought to school by his siblings and they appeared to have a positive and nurturing relationship. The view of the school was a valuable source of insight and the judge was entitled to place substantial weight upon it.

The Circuit Judge had properly balanced R's interests of not being put at risk of physical harm and of the impact on him of being separated from his mother in the interim. The judge concluded that the child being "uprooted" from his home and whole life experience pending investigation was not in R's best interests and the Court of Appeal concluded that it was "impossible to suggest that the judge was wrong in that view".

The Circuit Judge was required to make a judgment call based on the evidence available on the day. Whilst what R alleged was worrying, the judge took a view as to the level of harm that R might be exposed to if he were to return to the mother's care. The judge was entitled to make the decision he did on the material available and his approach was impeccable. Whilst the judgment was short, it was clear as to the factors the judge considered and the weight given to them. The father's appeal was dismissed.

The Court of Appeal reiterated previous guidance on the willingness of the court to entertain appeals against short-term interim decisions in private law cases as set out in Re J (A Minor) (Interim Custody: Appeal) [1989] 2 FLR 304, which noted that such appeals are very difficult to establish successfully because it is a matter of discretion for the judge who has a "feel" of the case to make interim decisions. Unless it is "extremely plain" that an appeal against an interim order should be made, it is rarely likely to succeed.

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Summary by Ariel Ricci, barrister, Coram Chambers

Welch v Welch [2015] EWHC 2622 (Fam)

The wife was 59 and the husband 66. This was a second marriage for both of them. They commenced cohabitation in early 2007 and separated in 2013. They both had children from previous marriages but none jointly.

A final hearing of the wife's application for financial remedy was heard before DJ Hess (as he then was) which resulted in his final order of 9 September 2014. The Judge made a finding that "…in this litigation, and in the previous litigation [against her first husband], the wife has…been obstinate, unrealistic and obsessive."

In brief, DJ Hess ordered that the husband must purchase a property for the wife of her choice with a value not exceeding £250,000 in which she must be permitted to live for the rest of her life and provide her with spousal maintenance for six years at a rate of £1,000 per month (on the basis of the wife having an earning capacity of £1,000 per month to supplement her needs).

The rationale behind the structure of the capital order was that the wife owed £414,000 to her former solicitors and it was thought that they would enforce the debt against the wife's capital award which she needed for housing.

The wife then sought permission to appeal on the grounds of the husband's alleged material non-disclosure which was refused by Roberts J in February 2015.

The wife subsequently made an application for variation of DJ Hess's order (9 months after the original order) which was heard on 2 and 5 June 2015. At the hearing on 2 June 2015, she made an application for DJ Hess to recuse himself on the grounds that he was familiar with the husband's counsel as they had both spoken at a seminar a few months earlier. That application, together with the substantive application, failed.

As part of his final order, DJ Hess made a costs order against the wife and provided that the spousal maintenance order be suspended until the outcome of the detailed assessment of the costs order was available on the basis that the wife's liability in costs might exceed the husband's total liability in spousal maintenance.

The wife applied for permission to appeal DJ Hess's decisions above, to set-aside the original order of 9 September 2014 on the basis of four alleged Barder events and alleged material non-disclosure and to rely on the material disclosed in the financial remedy proceedings in future criminal or civil proceedings against the husband.

The husband made a cross-application for a civil restraint order against the wife.

The matter came before Holman J. At the hearing, the wife argued that following four factual matters constituted Barder events justifying the setting-aside of the 9 September 2014 order:

1. Her former solicitors had agreed to write off some of the debt she owed them from £414,000 to £150,000 (if this was paid immediately) thus undermining the 'structure' of the capital order;

2. Her husband had not retired and was still working in some capacity thus undermining the findings in relation to the husband's means;

3. She had obtained evidence to show that the husband had not contributed £500,000 (as found) to the wife's litigation against her first husband as some of those costs had in fact been paid prior to the wife meeting him thus undermining the judge's finding on 'contributions';

4. That the Benefits Office had on 20 July 2015 issued a letter stating that there was 'a recent change' and 'a decision on your capability for work' thus undermining the judge's finding on the wife's 'earning capacity';

Holman J found that there were no grounds whatsoever for setting aside the original 9 September 2014 order be it on material non-disclosure or subsequent Barder events. In summary, none of the above constituted Barder events and it was found that in any event, the above facts were either already in DJ Hess's contemplation (e.g. the fact that the husband may or may not be in work) or would not have changed the underlying rationale behind any of his orders (e.g. there was still a significant debt to the husband's former solicitors which would undermine any outright award of capital to the wife unless the Judge made an order that the husband paid the £150,000 which was an unlikely outcome based on his other findings).

Further, Holman J refused permission to appeal DJ Hess's decision not to recuse himself and rejected any challenge of the orders of 2 and 5 June 2015.

In relation to the permission to appeal DJ Hess's decision not to recuse himself, permission was refused. The Judge endorsed DJ Hess's judgment on the issue:

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"…..These social events have many hundreds of people at them at any one time. To suggest that a judge should recuse himself, or herself, on the basis of having attended an FLBA event at the same time as a barrister appearing before him/her is a completely inappropriate suggestion and totally without merit."

As to the challenge to the 2 and 5 June 2015 orders, Holman J found that there were no grounds on which a successful variation application could have been mounted at that point but that the letter from the Benefits Office may constitute a ground for a future variation of maintenance application. Holman J also indicated that when the matter is next before DJ Hess, he may choose to discharge the suspension of the spousal maintenance order on account of the wife's basic needs.

The wife had also applied to transfer the matter to the High Court for all future applications. The application was refused and any future applications will be heard by HHJ Hess (as he now is) in Portsmouth to allow for judicial continuity and in view of the modest income and assets involved.

As to the husband's application for a civil restraint order under rule 4.8 and PD 4B of the FPR 2010, the Judge made the order in view of the wife having made a number of applications which are "totally without merit". The order prevented the wife from bringing civil proceedings against the husband without first obtaining the permission of HHJ Hess, save for any application for the variation of spousal maintenance and/or the discharge of the suspension of spousal maintenance imposed by HHJ Hess based on the grounds that in July 2015 Job Centre Plus determined that the applicant is not capable of working, and awarded her "extra money.".

Likewise, whilst the wife was not permitted to use any of the documents disclosed in the financial remedy proceedings in future civil proceedings against the husband (e.g. at the QBD), Holman J provided that "nothing in this paragraph of this order shall prevent either party, if he or she so wishes, from disclosing any document prepared of filed in these proceedings to the police and/or the CPS, and/or the Attorney General in support of any information he or she may wish to supply to them that a criminal offence has been committed by any person, or in defence thereof."

Finally, Holman J refused to make a costs order against wife in view of her precarious financial situation and her needs.

Summary by Lily Mottahedan, barrister, 1 Hare Court

Nasim v Nasim [2015] EWHC 2620 (Fam)

The parties had been married for fifteen years and had two children. At first instance, the Deputy District Judge found that sale of the former matrimonial home was inescapable and ordered that the net proceeds of sale be divided 70% to the Wife and 30% to the Husband.

Two reasons justified such a departure from equality: first, the Husband's higher income and borrowing capacity, and second, the Wife's greater need given that the division of the children's time between their two parents would be about 70% staying with their mother and 30% staying with their father.

However, six weeks after the judgment, there was an incident between the Wife and the children which resulted in the Wife being convicted of a criminal offence and the children moving to live with the Husband for the majority of their time.

The Husband sought permission to appeal arguing that this incident fell within the limited circumstances of Barder v Barder. Mr Justice Holman agreed, stating the appeal had a real prospect of success, and held that the Husband had acted with sufficient promptitude, that there was no prejudice to third parties, the incident had happened soon after the original order, and arguably falsified the assumptions upon which the original order was made.

Finally, Mr Justice Holman compared the value of the issues at stake with the combined costs likely to be incurred by the parties pursuing the appeal. Given the negligible difference between those two values, Mr Justice Holman urged the parties to settle.

Summary by Patrick Paisley, barrister, 1 Garden Court Family Law Chambers

Re Dad application to commit [2015] EWHC 2655 (Fam)

This application arose following the wrongful retention of a six year old child (who habitually resided in Poland with his Polish mother) after an agreed visit with his father (who was British of Pakistani heritage). There was no reliable information about the child's whereabouts but, following some evidence that the father and son may have come to England the mother had started High Court proceedings.

A Collection Order was made. It was from this that the application for committal of the Father's brother, who was resident in the UK and who was suspected of having knowledge of the whereabouts of the child, arose.

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In his judgment, which centred on procedural matters, Mr Justice Holman set out the two part nature of Collection Orders, comprising Form 2A (the order to be served on the Respondent and named persons) and Form 2 B (the order directed to the Tipstaffs giving them authority to arrest any person served with Form 2A and suspected of being in breach of its terms).

The father's location was unknown but the Form 2A order was served on his brother, in respect of whom, the relevant provisions (2 & 3) required him to either "deliver the child" or to provide information about his whereabouts and any information that might "reasonably assist" in locating him.

The father's brother (the child's uncle) was served with the order by police. Although he denied having any relevant knowledge, the Tipstaff considered there was reasonable cause to believe he was disobeying paragraph 3 of the order. Accordingly, he was arrested and placed in custody, where he remained (after being remanded on two occasions by a judge at the RCJ) for thirteen nights, until bailed on conditions which remained in place until the substantive hearing before Holman J.

Holman J makes it clear that it was specifically for disobeying paragraphs 3 (a) and (b) of the Collection Order and not for (as alleged) lying to the court in the oral evidence given during the course of the proceedings, that the uncle's committal was sought. On the issue of the uncle's veracity in his sworn evidence, the learned Judge took no position save to note that the mother could refer the matter to the Attorney General or DPP alleging perjury, if she so wished.

The uncle's representatives had provided a skeleton argument (crafted by both counsel and solicitor) which raised preliminary issues as to the lawfulness of the form of the Collection Order itself. The court confined itself to the "knockout point" but, so perspicacious was the skeleton that it was to be forwarded to those who were, coincidentally, currently conducting a review into precisely these matters.

The decisive point was that Rule 37.4 FPR 2010, which provides authority for the enforcement of orders, judgments or undertakings, is qualified by Rule 37.9, which prohibits enforcement unless there is:

"prominently displayed on the front of the copy of the judgment or order...... a warning to the person required to do or not do the act in question that disobedience .....would be a contempt of court punishable by imprisonment, a fine or sequestration of assets."

Having observed that the order used was in the standard form and had been in regular use by the High Court judiciary, Holman J indicated that he had not hitherto appreciated that the form did not comply with the rules in that there was no formal notice on the front page. The penal notice was to be found (not in bold and in the same font used throughout the order) on page five of six. Accordingly, its inclusion did not comply with the requirement for prominent display on the front of the order.

Although the rule was mandatory and gave no discretion to the court, there was some "latitude" in paragraph 13.2 of Rule 37A, which permitted the court to waive any procedural defect if "satisfied that no injustice has been caused by the defect."

Those representing the mother sought to rely on this provision, arguing that no injustice had been caused and that the application should not, therefore, be struck out.

Holman J's analysis of the factual circumstances of the service of the order (based not only on oral evidence but on a video from a police lapel camera) revealed that the police had behaved with impeccable courtesy but that, although he had been handed the order and invited to "have a big old read of that" the uncle had not read it properly nor been appropriately directed to the warning notice. The police had referred to the uncle undergoing a "quick interview" and His Lordship concluded that no one present would have imagined that his arrest would then be followed by a period of thirteen days in custody.

The uncle, who described himself as 'slow at school', was a man of limited education, with little ability to comprehend complex documentation.

Far from concluding (as asserted on behalf of the mother) that there had been no injustice caused, Holman J expressed himself to be "personally clear that a great deal of injustice was caused to him."

Accordingly, the procedural defect could not be waived and however egregious the breach might be, the uncle could not be committed to prison. As a threshold decision, the application must (and therefore would be) struck out.

Summary by Katy Rensten, barrister, Coram Chambers

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Seddon v Oldham MBC Adoption Human Rights [2015] EWHC 2609 (Fam)

Ms Seddon brought proceedings against Oldham Metropolitan Borough Council ('the LA') arising out of the adoption in 2010 of her daughter, A, who was born in 2008. Various litigation had taken place between Ms Seddon and the LA for over six years. The current litigation was a Human Rights Act claim in which Ms Seddon sought declarations, and an application for leave to apply for contact pursuant to section 51A ACA 2002.

Peter Jackson J dismissed Ms Seddon's claims for the declarations she sought, and made various declarations including that all pre-existing Article 8 rights between Ms Seddon and A were extinguished by A's adoption.

Peter Jackson J considered that the making of an adoption order always brings pre-existing Article 8 rights between a birth parent and an adopted child to an end. Those rights arose from and co-existed with the parent-child relationship, which was extinguished by adoption. There is no right to re-establish family life that has ended in this way. He accepted the submission that the making of an order for contact at the same time as an adoption order would create a new right to contact, though not necessarily an Article 8 right. It was difficult but not impossible to imagine a rare case (entirely different from this one) where the post-adoption ties between a former parent and an adopted child might be close enough to found family life; however any family life that arose in this way would owe nothing to the extinct parent-child relationship but be a new and distinct creation based on the altered relationships. Section 51A ACA 2002 (which allows the Court to make a post-adoption contact order) does not create or maintain an Article 8 right between a birth parent and adopted child.

As to other issues raised, Peter Jackson J considered that section 51A(4) ACA 2002 (requiring a former parent to obtain the permission of the court before applying for contact with an adopted child) was not incompatible with the ECHR. Further, a public body running a post-adoption letterbox service is obliged under Article 8 to respect correspondence between a birth child and an adopted child and adopters. The obligation arises from the nature of the correspondence and not from the former parent-child relationship. In running its post-adoption contact service, the LA (as it conceded) was performing a public function, and in redacting or not forwarding correspondence sent via its letterbox service on one occasion the LA's actions were lawful (in the circumstances of this case). Ms Seddon's application for permission to apply for contact was dismissed as being totally without merit.

Summary by Victoria Flowers , barrister, Field Court Chambers

Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam)

On 28 September 2015 Mostyn J handed down judgment following his earlier holding order made on 15 September 2015.

On Monday 14 September 2015 Nicole Appleton and Liam Gallagher had presented His Honour Judge O'Dwyer with a joint application, pursuant to FPR 27.11(3), to exclude the press from the ancillary relief hearing upon which they were about to embark at the Central Family Court.

By the time Mostyn J came to hear the matter, the case had been heard by HHJ O'Dwyer, who had reserved judgment. It was heard in private in the presence of members of the press.

Although HHJ O'Dwyer had wondered whether only the High Court could make a reporting restriction, the "clear opinion" of Mostyn J was that the court of trial had that power, because the proceedings were not children proceedings within the terms of FPR 25.2(1) (§ 4).

It was a "serious understatement" .. "to say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess" (§6).

The implied undertaking Mostyn J expressed approval of the decision of the Court of Appeal, in Clibbery v Allan (No 2) [2002] EWCA Civ 45 which provided the rationale for the "long-accepted prohibition on publication of private ancillary relief proceedings held in chambers". Ancillary relief proceedings are subject to a "far wider" scope of disclosure than in a civil dispute: "you basically have to disclose everything about your economic life" (§ 8). But "information compulsorily extracted by one party from the other is subject to an implied undertaking that it will not be used for any purpose other than the proceedings" (§ 14). A party telling the press what the other party had said in the witness box would be in contempt of court, as would a third party who subsequently published what had been said.

Section 12 of the Administration of Justice Act 1960 did not prohibit the reporting of ancillary relief proceedings held in private per se, but the existence of the implied undertaking had the same collateral effect (§ 9 – 10).

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27 April 2009: impact of the new Rules (FPR 2010) The current rules were implemented on 27 April 2009 when the FPR 2010 came into force. FPR 27.11 permits the admission of the press, but not the public, as the proceedings are held in private. Parliament had specifically maintained these proceedings as private (§ 14). However, "the press are not allowed any access to documents whatsoever" (§ 13). The continuation of reporting restrictions which existed prior to the FPR 2010 was confirmed by PD27B § 2.4 and 5.2 (b).

"It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog" (§ 15).

The balancing exercise Mostyn J considered the balancing exercise in Re S [2004] UKHL 47, between the right to privacy and the right to unfettered freedom of expression: "the press have to justify why the core privacy maintained and endorsed by Parliament should be breached". In ancillary relief proceedings "the privacy side of the scales starts with heavy weights on it" (§ 16). But a judgment would be made public in at least two situations: firstly where there has been "proof of iniquity" as in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, and secondly "the McCartney situation" (§ 16). The latter was best explained by Ryder J in Blunkett v Quinn [2004] EWHC 2816, as "the ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court's silence" (citing Ryder J, at § 22).

Cases where the balancing exercise would lead to the proceedings being allowed to be published might be either where "the parties have both played out their matrimonial collapse through the press", or "where there had already been hearings in open court giving much financial information" as "in the tragic case of Young v Young" [2013] EWHC 3637.

The resulting legal framework Mostyn J stated "I may be wrong about the collateral effect of the implied undertaking on third party journalists in the new era" (§ 18). However, he expressed his view that comments of Munby J (as he then was) in Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam), where journalists were permitted to enter court and observe, could not survive the opening words of FPR 27.11 because "a hearing cannot be in private and not in private at the same time" (§ 18).

If the court were to be wrong, then it "ha[d] to conduct a pure, fact-specific Re S balancing exercise. In such a situation the implied undertaking will still be fully operative as between the parties" (§ 19). Restrictions on reporting divorce in the Judicial Proceedings (Regulation of Reports) Act 1926, and the exception of matrimonial cases from the requirement of public judgment in the 1966 International Covenant on Civil and Political Rights, added weight to the "privacy" side of the scales. The relevance of the 1926 Act was that "the privacy factor has, up to a point, already been strongly recognised by Parliament even for those cases heard in public" (§ 22).

Application to the facts With respect to the current restriction on identification of anyone but the parties and their lawyers, Mostyn could "see no reason why the press should not be able to name not only those parties but also their partners, past and present. After all, those names are to be found all over the internet" (§ 26). An order preventing only the naming of the children would remain.

As regard the parties' financial information, neither had "manipulatively invoked the press to fight their causes", and nor had the financial information been aired in previous open court proceedings (§ 27). Most of the financial information was subject to the implied undertaking –"the bedrock of the right to privacy" – with the collateral bind on observing journalists (§ 27), and consequently the reporting restriction, to continue.

If the court were wrong about the continuing applicability of Clibbery v Allan, then the court reached the same conclusion as a result of conducting the Re S balancing exercise: "neither party has sought to yoke the press to his or her cause. Neither has spoken about this divorce. Press comments thus far have been limited. It is not a case where there has been extensive inaccurate speculation. [But on] the freedom of expression side of the scales is the fact that some of the comments have been factually and legally incorrect" (§ 28).

It would be for HHJ O'Dwyer to decide whether a full judgment should be published (§ 5, 28).

NGN Ltd was granted permission to appeal on both limbs of CPR 52.3 (6) so that "the Court of Appeal will resolve the unhappy divergence of judicial approach to which I referred at § 13 – 16 of DL v SL" [2015] EWHC 2621 (Fam) (i.e. "ordering pursuant to FPR 27.10 that every ancillary relief case … should be heard in open court" (DL v SL, supra, § 13).

Summary by Gwyn Evans, Barrister, Tanfield Chambers

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T (A Child) (Early Permanence Placement) 2015 EWCA Civ 983

T was born in November 2014 and placed, with his parents' consent, in a s 20 placement with prospective adopters shortly therafter, these carers having been invited by the local authority to care for the child as foster carers with a view to adopting him if adoption was required - an early permanence placement.

Care proceedings commenced in December 2014, in the course of which F put the paternal grandparents forward as potential carers and they were positively assessed. The local authority advised the prospective adopters / carers that the care plan had now changed to one with placement with paternal grandparents under an SGO. The prospective adopters therefore applied for leave to apply for an adoption order, and by orders on 22 May 2015, were granted that leave and joined as parties in the proceedings. These orders were appealed by the father and the local authority.

Restating the court's long established view that joinder of prospective adopters was inappropriate, Munby P held that nothing in Article 8 ECHR or in the status or the function of the early permanence process justified a change to that approach. Judges in care proceedings were at most concerned with the question of adoption in principle, not with evaluating the merits of prospective adopters. There was no need to add them as parties as their views could be made known to the court via the Guardian, whose role it was to subject the care plan to rigorous scrutiny. If added, there would be a very real risk that the care proceedings would become, in effect, a dispute between the prospective adopters and birth family and the court would be diverted into an illegitimate enquiry as to which was best.

Similarly, leave to apply for the adoption orders should not have been granted. It was an application which should be been considered after the conclusion of the care proceedings, if and once the court had concluded that the child's welfare required adoption. The appeals were therefore allowed.

Summary by Anita Rao, barrister, Field Court Chambers

Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79

Background The applicants in this case were Dr X and Y. Dr X is a psychiatrist. Together with his colleague, Y, he runs a private clinic. In care proceedings, instituted in 2007, the court directed that the child ("C") and C's mother should be assessed at this clinic. Dr X acted as both an expert witness but also as the mother's treating physician during this time, prescribing her drugs from time to time. The court also obtained an expert report from another psychiatrist.

C's mother was very critical of the care she had received from Dr X and reported him to the GMC. The case was heard by a Fitness to Practise Panel. Two of the seven allegations were withdrawn and the other five were found not proved.

The application The basis of the application, as stated in Dr X's statement, was that "misinformed press reporting [had] severely damaged [his] reputation and [his] ability to work in child protection or within the court arena." It was argued that his unblemished reputation had been cataclysmically damaged through inaccurate reporting. Disclosure was sought of 46 documents from the care proceedings (in addition to some additional documents from the GMC proceedings). Those documents included a number of psychological and psychiatric reports on the mother. The purpose of the disclosure was "to enable [Dr X and Y] to have the original source material upon the basis of which they [could] discuss openly, orally and in written material, their experiences and Dr [X] in particular as a single joint expert in family court proceedings." It was further clarified that if disclosure was granted, the documents would not be given nor shown to any third party but might, in the event of challenge be quoted from the original source material.

Munby P. agreed with counsel for the local authority that the nature and extent of the disclosure sought by Dr X and Y were unprecedented and beyond anything contemplated by any previous authority.

The law Munby P. set out the following principles, inter alia, from the relevant authorities:

Ÿ There must be some appropriate balance between the competing claims of the patient and the doctor. The invasion of the patient's confidentiality must be proportionate to the legitimate demands of the doctor;

Ÿ Disclosure is likely to be confined to what is necessary for enabling the proceedings to be disposed of justly and fairly;

Ÿ The court, in an appropriate case, may impose safeguards and limitations on the wider use or more general dissemination of what has been disclosed for the purpose of the proceedings;

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Ÿ The protection of medical data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (Z v Finland (1998) 25 EHRR 371);

Ÿ Where the medical data relates to the patient's mental health (as it did in this case) it will demand a relatively high degree of protection;

Ÿ If there is to be disclosure without the consent of the patient there must be adequate and effective safeguards against abuse (Z v Finland, above); and

Ÿ Three principles derived from A v Ward [2010] EWHC 16 (Fam):

i. The documents from the care proceedings of which disclosure was sought are all subject to the restrictions arising under section 12 of the Administration of Justice Act 1960;

ii. The court was being invited to exercise what was convenient to call the "disclosure jurisdiction"; and

iii. The disclosure jurisdiction has to be exercised by a "parallel analyses" of the various rights protected by Convention which are engaged, leading to an "ultimate balancing test" reflecting the usual Convention criteria of 'necessity' and 'proportionality'.

Decision In relation to the documents from the care proceedings, Munby P. held that there were eight factors of magnetic importance in this case:

(1) What was being proposed was disclosure into the public domain.

(2) The application related essentially to medical records of the most intimate and personal nature, relating in particular to the mother's mental health.

(3) Disclosure was sought by someone who was not merely a court appointed expert but also at one time the mother's treating clinician.

(4) Despite public interest arguments being made, the application was driven in significant measure by Dr X's desire to vindicate his reputation.

(5) The extent of the disclosure sought extended far beyond anything previously permitted or even contemplated.

(6) What was proposed was disclosure without any of the safeguards or protections required by the Strasbourg jurisprudence and by domestic practice.

(7) The mother adamantly opposed the disclosure sought.

(8) There was good reason to fear that the disclosure sought would be inimical to C's welfare.

Munby P. held that on any view of an appropriate balancing test the balance came down, clearly and decisively, against the disclosure sought. Disclosure would, he held, constitute a massive and wholly unjustifiable breach of the confidentiality attached to the materials, impossible to justify by any asserted public interest, let alone by reference to any legitimate interests of Dr X and would be a breach of the mother's Article 8 rights. Even if it was correct that Dr X had been traduced and defamed by the mother that did not, of itself, liberate him from his continuing duties of confidentiality. The invasion of the patient's confidentiality as sought by Dr X would be wholly disproportionate to anything which he could legitimately or reasonably demand.

In relation to the GMC documents, Munby P. held that the Family Court lacked jurisdiction to grant relief against the GMC in relation to documents that were never deployed in care proceedings.

Both parts of the application therefore failed and were dismissed.

Summary by Oliver Woolley, barrister, 1 Garden Court Family Law Chambers

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Re Q (A Child) [2015] EWCA Civ 991

The matter before the Court of Appeal was a decision of HHJ Glen Brasse. At a review hearing in an long-running contact dispute, the judge had departed from a previous strategy of seeking to order contact, and instead only required the child, Q, to attend therapy.

Q was a seven-year-old boy, who had lived with his mother since his parents separated, six months after he was born. Since then, the case had received at least 11 hearings in front of circuit judges, including eight judgments delivered by HHJ Brasse.

Over the course of the proceedings, it had been found that the allegations against F were manifestly false, that F was well disposed towards his son but that Q had been influenced by M's hostility to F.

The Guardian's position was that the idea of contact emotionally traumatised Q, and a final hearing was needed as soon as possible. Q required therapy, which would assist with contact, but the centre identified had performed an assessment and determined that they could not assist while proceedings were ongoing.

HHJ Brasse dismissed the options of making no further order, ordering contact and ordering section 37 report. Instead, a specific issue order was made that Q should attend therapy.

The father appealed on two chief grounds: firstly, on the procedural basis that the application should not have been disposed of at a review hearing without evidence; secondly on the substantive basis that the judge should not have failed to make a child arrangements order in the face of findings that were so critical of the mother, and while accepting that contact presented no risk to Q and would be damaging if terminated. Together, F submitted this breached his Article 6 and 8 rights.

Munby P gave the unanimous decision of the Court, upholding HHJ Brasse's judgment. The President reviewed his decision Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489 on the power of judges, in their inquisitorial role, to decide not to hear certain issues, or to take live evidence. This was considered alongside his decision in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521 on the obligations of the court to attempt to promote contact.

Munby P concluded that HHJ Brasse's decision was not only open to him to take but was also probably the only path that would increase the prospect of contact in the future. Ordering contact had not worked in the past, and without some change there was no reason to believe it would in the future. Far from abdicating his responsibility to promote contact, the judge was engaging non-court methods in order to facilitate future contact.

Given his extensive knowledge of the case from previous hearings, it was held that HHJ Brasse was well within the scope laid out in Re C (Family Proceedings: Case Management) in dealing with the matter at a review hearing. A future role for the court was envisaged after Q had received therapy.

The judgment ended with a resounding warning to M that Q would one day discover the truth about his father, and why contact had not been possible. The President urged M to reflect on the impact that this might have on her son's relationship with her.

Summary by Samuel Littlejohns, barrister, 1 Hare Court

Somerset County Council v MK and Others [2015] EWCOP B1

At the conclusion of a contested court of protection hearing, the judge found that the local authority had reprehensibly breached the Mental Capacity Act 2005 (MCA) and the Code of Practice in many material respects, that it had breached the family's Article 6 and Article 8 rights and that there had been a deprivation of liberty continuing up to the time of judgment.

An application was then made against the applicant local authority for full costs on an indemnity basis by all respondent parties save one, who had been involved only tangentially. The respondents argued that the local authority had acted with a significant degree of unreasonable conduct both before and during the hearing. The local authority opposed the application, stating that it had acted properly in accordance with expert opinion and had made timely concessions and an apology. The judge referred to a senior manager of the local authority's comment that his presence at the hearing was "to fall on his sword on behalf of the local authority".

The judge reminded himself that costs are at the court's discretion (section 55 MCA) and that the "general rule is that there is no order as to costs of the proceedings or that part of the proceedings that concern P's personal welfare". Rule 159 allows for a departure from this general rule if the circumstances so justify, having regard to all the circumstances including the conduct of the parties, the outcome of the case and the role of the public body in the proceedings.

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He made it clear that the issue of possible recovery of damages by the respondents against the local authority at some later date and the fact that this would attract a repayment to the legal aid agency if no order for costs was made, had no relevance to the decision to be made. Nor did the fact that the application was for a "cash strapped local authority" to pay another public body (publicly funded respondents having been involved in the case).

The judge examined the local authority's pre-litigation conduct and its conduct during the proceedings. He found that a recent costs decision (Milton Keynes Council v RR, SS and TT [2014] EWCOP 34) in which the judge awarded costs on the basis that the local authority's practices were sub-standard and the respondent and her family were detrimentally affected by the local authority's acts and omissions, was applicable in this case. The judge found in this case that there had been a "manifestly bungled investigation" and on that basis alone the local authority's pre-litigation conduct was sufficient to make an order for costs up until the time concessions were made on its behalf. The judge then found that the case put on the local authority's behalf after the concessions, was also grounds for a cost order. He considered that the increasing costs burden was as a result of attempting to obtain findings of facts contained in the local authority's schedule. However the local authority lost on practically every finding sought.

He concluded that as a result of his judgment having raised every issue set out in rule 159(1) and (2), this was a case where the usual order for costs should be departed from. He found that the local authority's conduct amounted to a significant degree of unreasonableness both in its approach to the substantive and procedural issues and in those circumstances, the argument for full costs on an indemnity basis was overwhelming.

Summary by Laura McMullan, barrister, Coram Chambers

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