May 2014 Case Law Update
R (A Child)  EWCA Civ 270
Appeal by a father against findings of fact. Observations by the Court of Appeal regarding the weight to be attached to flawed ABE interview and the threshold for dislodging findings of fact on appeal.
The father appealed against findings of fact which included a finding that he had inappropriately touched his 6 year old son R. The allegations had initially been made by the mother (his wife) who had reported to a teacher at the son’s school that the father had inappropriately touched R’s genitals on more than one occasion. The next day R was taken into police protection and was interviewed that day albeit this interview was not audio or video recorded. The next day the mother retracted the allegations. An emergency protection order and thereafter an interim care order was granted.
At the fact finding hearing findings were made that the father had twice inappropriately touched the child in the genital area and attempted to do so on one further occasion, that the mother had failed to protect the child from the father’s inappropriate behaviour, the father had been physically violent to the child on at least three separate occasions and that the mother had failed to protect the child from that physical violence. Finally, the judge found that both parents had failed to protect the child from exposure to their abusive relationship.
The father appealed against the findings and relied upon three grounds of appeal:
i) the interview of the child breached almost all of the guidance relating to ABE interviews and therefore the judge should have placed no reliance on the content of the same;
ii) the mother had a history of making false allegations linked to her mental health which the judge failed adequately to consider; and
iii) that the judge did not adequately direct himself in law.
Ryder LJ,giving the leading judgment
Appeal dismissed. In respect of grounds of appeal,
- The adequacy or otherwise of the ABE interview was an insufficient basis upon which to pursue this appeal since the allegations did not emanate solely or even principally from the child; in this regard the central issue was the reliability of the mother. Ryder LJ acknowledged the flaws in the initial interview of R and highlighted the 2007 guidance “Achieving Best Evidence in Criminal Proceedings” but noted that the guidance is not mandatory in the sense that a breach renders the evidence inadmissible or so fatally compromised that it is unreliable and should be given no weight. In some cases, the flaws will be such that the child’s interview has little or no evidential weight: see, for example, TW v A City Council  1 FLR 159 and in contrast, Re: H (A Child) Number 2  EWCA Civ 232.
- There was evidence which indicated that the mother had made false allegations in the past and questions had also been raised by professionals about her mental health. However, the evidence relied upon particularly in respect of the mother’s mental health was contained within documents before the court but their authors were not called to attend the fact finding hearing. Therefore, there was no material that was sufficient to enable the judge to make a finding of fact about the mother’s behaviour given her denials and the lack of any direct evidence. Ryder LJ was satisfied that the judge had considered in sufficient detail the history of allegations between the parties and had the precise measure of the parents. Ryder LJ observed that the judge was not required to comment on every document used in cross examination or contained in a bundle or to make findings on every satellite issue raised by a witness in evidence.
- Finally, Ryder LJ could not detect an error in the judge’s approach to the law or to the materials put before him, reiterating that for a finding of fact to be dislodged by an appellate court, an Appellant needs to establish that the finding is “unsupportable on any objective analysis (otherwise) it will be immune from review.” (See, for example, B (A Child)  UKSC 33 at paragraph 108). This case highlighted the danger in relying on hearsay materials, the contents of which are never formally admitted or proved. Parties should be astute to isolate out findings that it is said can be proved on the evidence and the witnesses who need to be made available for cross examination to ensure that a case can be properly put.
Re G (A Child)  EWCA Civ 432
Application by non-parent who had cared for child until his removal under care and placement orders for leave to oppose adoption. Consideration of the legal route for a person who is not a parent or guardian to seek to participate within adoption proceedings.
The child, G, who was 3 years old, had been made subject of a final care order and a placement order on 2nd November 2012. At the time of G’s birth, his mother had handed over the care of him to AR, the mother of the partner of G’s mother at the time of G’s birth (not G’s father). AR, who was therefore not related biologically to G, cared for G until the care and placement orders – for a total of about 18 months. G was placed with prospective adopters in May 2013 who issued an application to adopt G on 19th August 2013. AR made an application for leave to oppose the adoption order on the ground that there had been a significant change of circumstances.
At first instance, the judge held that an application for leave to oppose adoption under the Adotion and Children Act 2002 (“ACA 2002”) may only be made by a parent or guardian within the meaning of the act and that AR did not come within the terms of that provision. She considered whether, as an alternative, AR should be joined as a respondent to the adoption application under FPR 2010 r 14.3. The judge held that such a course would be wholly unjustified and lacking merit, and therefore refused AR’s application. AR appealed to the Court of Appeal. Permission to appeal was granted by McFarlane LJ on 14th February 2014.
McFarlane LJ, giving the leading judgment
1. Once an adoption application has been issued with respect to a child who is the subject of a placement order, no parent or guardian may oppose the making of an adoption order without the court’s leave and the court cannot grant leave unless there has been a change in circumstances. AR fell outside of the statutory definitions of a “parent” or a “guardian”.
2. A person who is not a parent or guardian could, however, once the adoption application had been made, make an application for leave to apply for a residence order as a result of the application of the provisions of ACA 2002, s29(3) and (4). Such an application would follow the FPR 2010 Part 18 procedure.
3. An application under section 29(4)(b) for a residence order was an application relating to the initiation of proceedings, rather than a decision relating to the adoption of the child. ACA 2002, s 1 did not therefore apply and the child’s welfare was not therefore the paramount consideration.
4. There was no discrete requirement for an applicant under section 29(4)(b) to show a change of circumstances, but any change in the underlying circumstances would be of great relevance to the assessment of the prospects of success for the proposed residence application and when considering the welfare of the child. The application would fall for adjudication in accordance with the approach for applications for leave to apply to revoke placement orders as described by Wilson LJ (as he then was) in M v Warwickshire County Council  1 FLR 1093.
5. It was also technically correct that AR was able to apply to be joined as a party to the adoption proceedings whether or not she was at the same time given leave to apply for a substantive order, as per the operation of FPR 2010 r 14.3. However when considering such an application, in common with the approach taken in Re B (Paternal Grandmother: Joinder as Party)  2 FLR 1358, the court should have an eye to what may follow joinder.
6. The circuit judge had therefore not conducted an exercise compatible with the different considerations which would apply under ACA 2002, s29(4). On the facts of the case, however, applying the correct test as identified by the Court of Appeal, AR should not be granted permission to apply for a residence order. She also did not have sufficient interest to be joined as a party to the adoption application.
A & B v P Council  EWHC 1128 (Fam)
Judgment concerning a preliminary issue in adoption proceedings brought by child’s stepfather as to whether the child’s natural father should be notified of the adoption application. The case concerned a nine year old boy (M) and an application by the boy’s step-father (B) to adopt him.
M was born in Thailand. His mother married the step-father and in December 2008; both M and his mother were granted indefinite leave to remain in the UK. M’s natural father is a third-country national. The task of the court was first to determine whether the natural father held responsibility for M and if so, under what provision. In view of the outcome of the first stage, the court has to consider whether the father should as a matter of law and with regards to M’s welfare be notified of the adoption application.
Theis J found (with the parties’ agreement) that although parental responsibility granted under Thai law is capable of being recognised in England and Wales, it was not capable of being so recognised for the purposes of English adoption law. Even if the father did hold parental responsibility under Thai law he would not be treated as a parent within the context of s. 52(6) ACA 2002; his consent to adoption under s.47(2) would not be necessary nor dispensed with under s.52 ACA 2002. Having not obtained parental responsibility by any other recognisable means (s.2 or s.4 Children Act 1989), the father was therefore not entitled to be notified of the adoption application by virtue of being an automatic party to the proceedings under r14.1 FPR 2010.
The court then considered the father’s entitlement to be notified on account of holding ‘foreign parental responsibility’ (r.14.4 FPR 2010). The applicants submitted that they did not believe the father did hold parental responsibility and relied on the Thai Civil and Commercial Code, the conduct of the Thai Local Authorities, Ministry of Foreign Affairs, Thai and British Embassies and the English courts, as well as the father’s own behaviour. The court found the applicants’ belief to be genuine, honest and well-substantiated and concluded that the mandatory requirement to serve notice on the father did not apply (r.14.4(1) FPR 2010).
Finally, the court acknowledged that it retained a power under its inherent jurisdiction to grant exception from the FPR 2010 requirements where it was necessary to achieve justice in a case; it could therefore give notice of an adoption application to a father who did not hold parental responsibility and equally decide not to give such notice to a father who did hold parental responsibility.
It was argued that the court must consider whether the father had any rights to family life under Article 8 ECHR that would engage his Article 6 rights; if he did there would need to be strong countervailing factors to outweigh such rights in favour of the mother’s right to family life. Countervailing factors could include domestic violence. M’s father had lived with his mother prior to M’s birth and for a brief period thereafter and that he was recorded as M’s father on the birth certificate (not determinate of parental responsibility under Thai law). The court held however that the countervailing evidence, including the evidence that that the father has not sought to maintain a relationship with M, was more compelling, and concluded that on the facts there was nothing to show the father had a right to respect for his family life with M pursuant to Article 8, and accordingly, Article 6 was not engaged either.
Finally the applicants submitted that the court should not exercise its discretion to notify the father of the proceedings on welfare grounds. The mother’s evidence was that the father had in the past subjected her and her family to violent and threatening behaviour over a period of several years in Thailand. This evidence was in part supported by independent sources and was not challenged by any party. The court accepted the mother’s fear that should the father be given notice of these proceedings there would be a real risk that he would be violent and threatening towards her and her family.
The court concluded that this was an exceptional case, which, on the facts justified the court exercising its power to grant exception from the rules requiring the father to be given notice. Further and at the local authority’s request, the court declared itself satisfied that notwithstanding the duties imposed by s.44(6) ACA 2002 the local authority did not need to take any further steps to investigate the father in response to the adoption application.
Re S (A Child)  EWCC B44 (Fam)
Judgment by the President in care proceedings in which the mother applied for an assessment under s 38(6) of the Children Act 1989. Consideration of the Children and Families Act 2014 s 38(7A) and (7B) useful guidance from the President concerning expert evidence and scope for extending the 26 week time limit in care proceedings in the light of the introduction of the Act.
S was the mother’s fourth child, born in October 2013. The mother’s elder three siblings had been removed from her care a number of years ago. The mother is a vulnerable woman who struggles to care for herself, she has mental health problems, an anxiety disorder and low IQ.
By the time of the final hearing care proceedings had been running for approximately five months. The court had the benefit of a local authority parenting assessment in respect of the mother and also a psychiatric assessment from an independently instructed expert. The local authority plan, supported by the Guardian, was to place the child with an extended family member with a view to a Special Guardianship Order being made following a trial placement. The mother was opposed to such a placement and she made an application for residential assessment under s.38(6) CA 1989.
Sir James Munby P reviewed the case law with regards to section 38(6), and went on to consider the amendments made by the Children and Families Act 2014:
“19.Later this month, the amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 will be brought into force. Sections 38(7A) and (7B), inserted by section 13(11) of the 2014 Act, provide as follows:
“(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.”
The factors that the court should have regards to are set out in the new s.38(7B). The President continued:
“21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence)  EWCA Civ 5,  1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence)  EWCA Civ 655,  1 WLR 1160,  2 FLR 1434, para 3.”
The President also considered the wider context of the case. The timescale of proceedings had already taken five months. The President considered the new provisions of the 2014 Act amending s.32 of the 1989 Act.
Regarding the new statutory framework he made a number of points:
• The 26 week time limit is a mandatory limit which must be complied with, subject to the statutory exception set out in the new s.32(5). He reiterated his message that deadlines can and must be met.
• However, he approved of Pauffley J’s judgment in Re NL (A child) that “justice must never be sacrificed upon the altar of speed”.
• The President in Re B-S had dealt with the possibility of extension beyond 26 weeks in a potential adoption case if the court was not properly equipped to make decisions. In this judgment he said at paragraph 27: “That approach, which is entirely compatible with the requirements of section 32, applies not just in the particular context under consideration in Re B-S but more generally”.
• Whether a case would warrant a s.32(5) extension must be determined on a case by case basis. But by way of illustration, it may be appropriate in drug abuse/alcohol abuse cases or cases involving parental mental ill-health to consider an extension beyond 26 weeks to see if a parent can make changes within the child’s timescales. However, extensions should not be granted in the hope that something may turn up. But rather: “Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale?” 
J, A, M and X (Children)  EWHC 4648 (Fam)
Application by local authority to withdraw its application for care orders at the start of a fact-finding hearing in respect of four children. Consideration of the factors which should be included in the court’s evaluation. Application granted.
The local authority had investigated a suspected non-accidental injury to X, the youngest of four children which was sustained whilst X and two other young siblings were with J, the oldest child and the parents were in an adjacent room. The parents’ account was that X had sustained the injury after being pushed over by a sibling but on arrival at hospital there had been a suspicion that in fact X was the victim of non-accidental shaking injuries.
At the start of a fact-finding hearing, the local authority sought to withdraw its application for care orders in respect of four children, having taken the view that the medical evidence was such that they were unlikely to argue successfully that the threshold for s.31 orders was satisfied in this case. The local authority argued that it was this issue alone that should determine the application, without the court needing to engage in any consideration of welfare (relying on Hedley J in Redbridge London Borough Council v B C & A  2 FLR 117). The parents and children’s guardian all supported the application.
Cobb J however, was of the view that the circumstances envisaged by Hedley J in that case were circumstances in which the inability of the local authority to cross threshold was obvious. This was not such a case, as it was clearly possible that threshold might be crossed, depending on the court’s construction of the evidence. In a case where it is arguable that threshold could be crossed, the court must remind itself that the factors pertaining to threshold may also be relevant to the welfare of the children. Therefore, in considering whether or not to proceed with the fact-finding exercise, the court was required to look at the whole application. The case of A County Council v DP, RS, BS (By The Children’s Guardian)  EWHC 1593 (Fam);  2 FLR 1031 was helpful as McFarlane J (as he then was) set out, albeit in different factual circumstances, the factors that should form part of this evaluation. These were:
(a) the interests of the child (relevant not paramount);
(b) the time the investigation would take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity of the investigation;
(f) the relevance of the potential result to the future care plans for the child;
(g) the impact of any fact finding process upon the other parties;
(h) the prospects of a fair trial on the issue;
(i) the justice of the case.
Having considered the medical evidence, Cobb J accepted the local authority’s submission that the evidence was so evenly balanced that it was necessary to consider what the family members said about the incident. There was nothing obvious to suggest that the forensic process would be able to significantly damage their account to the degree required for the court to conclude that this was a non-accidental injury. Therefore, the alleged non-accidental injury must be treated as something that did not happen and the lives of the family must proceed on this basis. Accordingly the judge approved the proposed plans to return all four children to the care of their parents immediately.
J-M (Child)  EWCA Civ 434
Appeal by father against an order refusing his application for direct contact with his 14 year old son. Appeal dismissed.
Protracted contact dispute which commenced when the child, MX, was only a baby. In 2005, MX was joined as a party and a psychologist was instructed to report on the outstanding issues. In 2009 a consent order provided for regular overnight contact between MX and his father. A further order in September 2010 provided for significant staying contact. The contact ordered in 2010 did not take place and no contact took place thereafter. Father applied to enforce the September 2010 order in November 2012. On 7 December 2012, DJ Regan refused Father’s application for direct contact, set aside the existing contact order and ordered indirect contact only. Father appealed to HHJ John who dismissed the appeal on 7 June 2013; Father appealed that decision.
Black LJ, giving the leading judgment
The Court confirmed that following the Supreme Court decision of Re B  UKSC 33, the proper approach to an appeal against an order that there should be no direct contact between a parent and child is for the appeal court to consider whether the decision of the lower court was “wrong” and the epithet “plainly” which had featured in the traditional formulation was inappropriate or otiose. Although HHJ John had considered the appeal before the Judgment in Re B, and had used the traditional formulation to describe his approach, that in itself did not invalidate his decision and had covered the ground contemplated in Re B. The district judge’s decision not to permit the instruction of an expert was a case management decision and as such would be particularly difficult to dislodge on appeal. There was nothing on the facts of the case which would merit interference with that decision.
The Court considered the balance of harm and Father’s arguments that the judge had failed to admit relevant evidence, that MX’s attitude was attributable to his mother and her family, and that further attempts should be made to reintroduce contact. The Court was satisfied that the district judge was aware that it is likely to be detrimental to a child not to have some sort of direct contact with the parent with whom they do not live and that the court should not cease from striving to achieve this except when the end of the road has been reached. The Court found that the judge did not ignore the previous positive contact between MX and Father, nor Father’s commitment. Nor did the judge overlook the part played by the mother’s negative attitude, but was faced with a 14 year boy who was very clear that he did not wish to have any relationship with Father. Neither of the judgments below revealed errors which warranted interference from the Appeal Court.
W (Children) (Contact Dispute) (No 2)  EWCA Civ 401
Appeal by father against order dismissing his application for a residence order and refusal to order direct contact between the father and his children. Appeal dismissed.
The father sought to appeal the order of HHJ Barclay dismissing the father’s application for a residence order and the refusal of the court to order direct contact between the father and the children. The father had appealed on the issues for the first time in 2012: Re W (Children)  EWCA Civ 999 and was successful to the extent that the Court of Appeal substituted the lower court’s order with its own and provided for contact between the father and the children to be organised by the NYAS Guardian and paternal family.
The dispute between the parties may properly be characterised as an intractable contact dispute. Prior to the first appeal in 2012, despite significant input from experts and the assistance of a NYAS Guardian, contact had still not taken place between the father and the children since one contact session in 2009.
After the father’s successful appeal there was chequered progress to restart contact but by 2013 matters had progressed little and at the final hearing HHJ Barclay ordered indirect contact only. The judge noted the difficulties the NYAS Guardians had experienced in trying to find out why the children were opposed to contact (despite significant involvement with the children and their parents). The judge also noted the significant effort put in by the paternal family to assist with the process. However, the judge held that despite all of the efforts made, it had still not been possible to overcome the children’s objections to seeing their father. The father’s appeal centred upon the failings of NYAS and the approach of the court as to its failure to follow the Court of Appeal’s judgment.
The Court of Appeal agreed with the approach of HHJ Barclay that further attempts to pursue contact were contrary to the welfare of the children. The court had to proceed on the basis of the facts as they were and not on the basis of how a party wished the facts might rather be.
FAMILY LAW ACT INJUNCTIONS
JM v CZ  EWHC 1125 (Fam)
Judgment on costs arising out of proceedings under Part IV of the Family Law Act 1996. Mostyn J gives guidance to section 45(3) of the Family Law Act 1996 and the general principles that should apply on an ex parte application.
A non-molestation order was made ex parte in December 2013. The order was made for the period of a year “unless before then it is varied or revoked by the court”. The respondent was given permission to apply on 48 hours’ notice to the applicant. A further hearing was listed on 16 May 2014, just under six months from the date of the original order, for reconsideration.
The opinion of Mostyn J was that the order made was the wrong order, as it did not conform with the statutory provisions of s45(3) Family Law Act 1996, where it is provided:
“If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.”
Further, he noted that the editors of Family Court Practice are of the opinion that a full hearing is required as soon as just and convenient. Further the order does not reflect the views of Ward LJ in the case of Horgan v Horgan  EWCA Civ 1371 (where he thought the matter should come back for reconsideration within 14 days).
The order was made at the Principal Registry of the Family Division , the practice there was not to list a full inter partes hearing, as the respondent more often than not does not attend and this is a waste of judicial resources as well as an inconvenience to the applicant. Mostyn J says that there is a danger that a practice has arisen which sacrifices principle on the altar of expediency.
The court goes on to consider what practice might meet the concerns raised. It was suggested that the return date should be listed 14 days after the initial ex parte order had been made but that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to write to the court within that period, it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work. Mostyn J’s opinion is that this proposal seems to meet and fairly balance the competing considerations.
Mostyn J then considers the general principles that should apply to ex parte orders. The relevant decisions have recently been summarised in a previous decision of Mostyn J in UL v BK (Freezing Orders: Safeguards: Standard Examples)  EWHC 1735 (Fam) and have been approved as being applicable in Children Act 1989 proceedings by the Court of Appeal in the decision of Re C (A Child)  EWCA Civ 1412, at para 20.
He makes it clear in UL v BK that orders for ex parte relief could only be justified where the matter was one of “exceptional urgency” and that, at the very least, “short informal notice must be given to the respondent unless it is essential that he [or she] is not made aware of the application.” Mostyn J says at paragraph 15 that the principles as expressed in UL v BK apply fully to applications made under Part IV of the 1996 Act.
In this case, the order that was produced by the court did not say on its face why the court was satisfied that the application was made ex parte and the attendance note of the hearing gives no reasoning by the judge as to why she was so satisfied. Mostyn J found that this was a case where the lack of any notice at all was unjustifiable.