September 2014 Case Law Update
Re D (A Child)  EWCA Civ 1057
Appeal from a decision to refuse to order direct contact between a father and his son at the final hearing after four years of court proceedings.
The parties separated in February 2003 when their son, B, was just a few months old. They built up a schedule of contact between them so that by 2007 the father was having weekly overnight contact which continued until Spring 2010 when the mother reported that B was returning from contact with various injuries. In June 2010 she issued an application to suspend contact (and suspended contact) and the father issued an application for contact.
At the fact finding hearing into the allegations of physical abuse HHJ Hornby dismissed all the allegations against the father (save for once failing to return B after contact). HHJ Hornby found the mother to be untruthful in her evidence and he exonerated the father from being responsible for the termination of contact. HHJ Hornby directed a psychological report in respect of B, a s.7 report by the London Borough of Hackney and that B be joined as a party; he subsequently allowed the Guardian to instruct a further expert, and in 2013 a s.37 report was ordered by HHJ Mitchell. During this time various attempts at re-establishing contact failed, including family therapy sessions and enlisting the assistance of B’s older sister.
The final hearing was adjourned due to unavailability of a judge on that day and finally came before HHJ Cryan in October 2013. HHJ Cryan found that the father lacked empathy and insight into B’s needs and wishes and his part in the ongoing situation was no longer ‘unimpeachable’. The judge found the mother to be inconsistent in her evidence and to have continued to have relied on the allegations against the father (that were dismissed) to professionals and to the extent that B had internalised them as having happened, thus entrenching his opposition to contact. Reluctantly the judge concluded that, whilst B’s wishes and feelings were not paramount to his consideration, to order contact contrary to them would cause B yet more distress and, all other options being exhausted, there was no alternative but to order indirect contact but not direct contact.
Permission to appeal was granted on the basis that there was a reasonable prospect of success on appeal as to
1) the proportionality of the outcome and
2) persuading the court that there had been an infringement of the father’s procedural rights under Article 8 ECHR (referring to the delays, change in judicial personnel and what was said to be the unsatisfactory nature of the LA reports).
McFarlaneLJ giving the leading judgment; appeal dismissed.
The Court considered the detail in which HHJ Cryan had considered the evidence of the parents and the conclusions he drew as to their positions, namely that the father’s lack of insight into the impact of the situation on B and the obvious challenges to reestablishing any form of contact, and the mother’s entrenched and hostile position [28 – 32]. The court considered the wealth of evidence that HHJ Cryan had before him, the rigour with which he explored whether there were any strategies that had not yet been tried and the gravity with which he approached his decision, and concluded that he had not erred in reaching the decision that he did .
The Court stressed that the judge was correct, not because of the nature allegations (that had been dismissed) but because:
“it is not possible to hold that Judge Cryan was ‘wrong’, in terms of proportionality, in endorsing the outcome that he endorsed (…) It is hard to contemplate any court ordering direct contact then and there, even with a short introductory period as the father suggests, as being justified with respect to the welfare of this troubled boy.” 
Their decision was not affected by a bundle of documents provided by the father that had not been before HHJ Cryan, which should have been before the judge but did not in their opinion add anything such that the judge had been incorrectly informed .
The father argued that the Cafcass reports had been inadequate in failing to record a crucial conversation between himself and B. The Court noted that this had not been raised previously and given all the other evidence did not justify the re-opening of the case. The Court acknowledged the length and delay in proceedings but observed that much of the time, rather than being ’empty’ was filled with reports and attempts at re-establishing contact. The change in judicial personnel was regrettable but did not render the process unfair in breach of the father’s (or B’s) procedural rights under Article 8.
Finally the Court found that the reports of the LA, whilst held to be less than adequate by HHJ Cryan, were not so deficient as to leave the court insufficiently appraised, particularly given the supporting evidence before the court.
Q v Q; Re B (A Child); Re C (A Child)  EWFC 31
Judgment by the President in three cases concerning applications for contact in each of which the mother was legally aided but the father was not.
In this judgment the President reviews three recent cases involving the issue of recourse to public funding where one party appears as a litigant in person. The judgment goes through the relevant provisions of LASPO and discusses the “exceptional cases” criteria set out at Section 10(3) of LASPO whilst also considering the accompanying guidance from the Lord Chancellor.
The cases are:
Q v Q – a well-publicised recent case involving a father who appeared unrepresented. He was a convicted sex offender who spoke no English and who wished to challenge the recommendations of an expert assessment completed within those proceedings. The President heard the case and invited the Secretary of State for Justice to intervene for the purposes of making submissions in respect of the funding difficulties of the father; the response that was received, unsurprisingly, refused to consider forcing the hand of the LAA.
Re B – a case involving a father appearing in person who had been accused of rape. The father threatened to judicially review the decision of the LAA not to grant funding and the LAA agreed to reconsider; they did so and again refused the application for funding.
Re C – another case involving a father appearing in person who was the subject of allegations that he had raped the child’s mother.
The President discusses the relevant statutory provisions further as well as the principles set down by the Family Procedure Rules 2010, and Article 47 of the European Charter of Fundamental Rights. He reaches the following conclusions:
If all other avenues of funding are explored and no funding can be obtained by any other means, then Her Majesty’s Courts and Tribunals Service will bear the burden of the funding of interpreters and of the translation of documents, if it is deemed to be necessary.
Attendance of experts
If the funding for the attendance of an expert for the purposes of giving evidence at a hearing cannot properly be obtained via any other means, HMCTS has a duty to bear such costs in accordance with Rule 1.1 of the FPR 2010 and also in order to ensure compliance with both Articles 6 and 8 of the ECHR.
The President was of the view that he could not properly come to a conclusion on the funding of legal advice, a point of real complexity, without having had the benefit of full adversarial argument on the issue.
Legal representation at court
s.31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013 (which came into effect on 22 April 2014);
“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to
a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”
The President posed the question, ‘[w]hat then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?’ [para 78]. He concluded,
“79. In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.”
AB (A Child – Temporary Leave to Remove from Jurisdiction – Expert Evidence)  EWHC 2758 (Fam)
Judgment concerning mother’s application to take child on holiday to India, summarising the guiding principles for applications of this type. Judgment also contains a lengthy history of the mother’s refused application to the Legal Aid Agency for prior authority to instruct a dual qualified lawyer to report in this case.
The parents of AB (6) had been involved in lengthy private law proceedings following the breakdown of their marriage. The father was of Indian parentage but had lived all his life in the UK. The mother had lived in India throughout her life until the parents’ arranged marriage and had no other family in the UK. This application arose out of the mother’s wish to take AB on a three-week holiday to India to visit family.
The mother gave evidence about her ties in the UK, the fact that she did not wish to reside in India, and various assurances about her proposed return to the UK at the end of the holiday.
The court had considered an expert report used in another similar case, from a lawyer with a dual qualification in Indian and English law. This had concerned what safeguards could be put in place in India to alleviate the father’s concerns and what the legal position would be in the event that the mother decided not to return. His report made it clear that the father would have to take court proceedings in India, that these would be lengthy proceedings, and that orders made by the High Court in this country would be only one factor to take into account; the Indian courts would make their own independent decision based on the child’s welfare.
The judgment summarises the guiding principles for applications of this type found in the cases of Re R (A child)  EWCA Civ 1115 and Re K (Removal from jurisdiction: Practice)  1 FLR 1084. Re R, approving what had been said in Re K, sets out the three factors that need to be balanced:
a) the magnitude of the risk of breach of the order if permission is given;
b) the magnitude of the consequence of breach if it occurs; and
c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.
Having considered the magnitude of the risk that the mother might not return, the judge held that there was such a risk and it was low to medium, taking into account in particular her ties to this country. The consequences of a breach would be detrimental to AB’s welfare based on the Cafcass Officer’s view that the limited access he had to his paternal family was not in his interests. As for the safeguards offered by the mother, the judge found that these would not offer any realistic safeguards in India.
Taking all of these matters into account, the mother’s application to temporarily remove AB from the jurisdiction was refused.
The judgment also contains a lengthy description of the history of the mother’s application to the Legal Aid Agency for prior authority to instruct the dual qualified lawyer to report in this case. That application was ultimately refused. The LAA had queried whether the lawyer, Mr Kumar, was an ‘expert’ for whom prior authority for funding could be given. The judge concludes that he is ‘in no doubt’ that Mr Kumar is such an expert although the LAA had concluded that he was not. The judgment is critical of this decision and also of the LAA’s approach in light of the decision in JG v The Lord Chancellor & Ors  EWCA Civ 656. The LAA had refused prior authority, using arguments based on the Access to Justice Act that had been roundly rejected in that case.
The judge queries the adequacy of training of LAA staff in determining applications for prior authority. He also comments on the fact that the mother’s solicitors had had to submit their application three times before the LAA acknowledged that they had received it and the number of letters and emails that it took to get an ‘in principle’ agreement to fund a non-solicitor expert in Indian law. The judge is also critical of the resistance of the LAA to approving funding for an expert in foreign law when the application is to remove a child in the jurisdiction to a non-Hague Convention country.
P (A Child)  EWCA Civ 1174
Appeal by step-father against refusal of application for adoption by him of his two step-children.
Appeal against the refusal by a circuit judge to grant an adoption order to a step-parent. The children’s mother had relocated to England with both children from Poland in 2007. She had formed a relationship with the appellant shortly afterwards but she was not married to him. The children were D (14) whose father had never been married to his mother, and his half-sister, A (12). Her father had been married to the children’s mother but they had divorced in 2005 and she had not had any contact with her father since this date. D’s father’s whereabouts were unknown. For the purposes of service, the application had been sent to A’s father’s last-known address but this had not elicited a response so it was unclear whether he was aware of the application.
In the absence of evidence about Polish family law, the first instance judge had proceeded on the basis that the law on parental responsibility mirrored that in this country, in which case, A’s father would have parental responsibility for her but D’s father would not have parental responsibility for him.
An application by one person who is the partner of a child’s parent is made under s.51(2), Adoption and Children Act 2002. Section 47(2)(c) also applied in this case. That is, the court needed to be satisfied that, in the absence of consent, the consent to adoption of a parent with parental responsibility should be dispensed with. As the children’s mother was consenting to her partner adopting the children, this provision only applied to A’s father, because D’s father was deemed not to have parental responsibility for him.
Having considered the meaning of ‘required’ in s.47(2)(c) and the welfare checklist in s.1 of the 2002 Act, the judge had concluded that A’s welfare did not require that her father’s consent to adoption was dispensed with. He regarded it as too draconian a step to strip her birth father of his parental responsibility, particularly as there were other ways for the stepfather to acquire parental responsibility, and the refusal of the order would make little or no difference to A’s day to day life. He therefore refused the application to adopt A.
As the appellant and the children’s mother had stipulated that they did not wish the children to make different decisions in respect of the two children, the consequence of refusing the application in relation to A was that the application in relation to D was also refused.
McFarlane LJ, giving the leading judgment; appeal allowed and adoption orders made.
The Court of Appeal set out that proportionality is the key factor to consider when deciding whether a child’s welfare requires their parent’s consent to adoption to be dispensed with. The approach of the ECtHR in Soderback v Sweden should be applied. The central points from that judgment that are likely to be important are:
a) there is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;
b) factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent [‘Parent B’], and thereby make it more likely that adoption is a proportionate measure are:
i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;
ii) Where Parent B has had only infrequent or no contact with the child;
iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which ‘de facto’ family ties have existed for a significant period.
The facts of this case were extremely similar to Soderback v Sweden. In applying the legal test, the factors that the Court of Appeal deemed to be particularly relevant were that A had had no contact with her father for approximately nine years; he had made no attempts in that time to exercise his parental responsibility and in another six years she would be an adult and the ability of any father to exercise parental responsibility over her would diminish over that period. The separation of A from her father had been consolidated by the decision of the Polish Court to give the mother permission to relocate with both children to the UK. A’s mother was in a committed family relationship with the appellant and had been for a number of years. The detriment, in Article 8 terms, to either of the children and their fathers of extinguishing the fathers’ parental responsibility was negligible. Having considered the earlier decision of Re P (Placement Order: Parental Consent), it was clear that the judge had attached too high a threshold to the interpretation of the word ‘requires’ in s.47(2)(c).
London Borough of Bexley & Another v CW and Others  EWFC 25
Findings made against family members following a fact finding within public law proceedings
Three applications for care orders were made as follows:
By the Royal Borough of Greenwich:
- in respect of SA (15) and JA (13) born to EA (father) and CW (mother) and
By the London Borough of Bexley:
- in respect of SB (16) and PB (8) born to VB (father) and NC (mother) and TB (5) born to VB and CW.
- by the London Borough of Bexley in respect of BW (2) born to VB (father) and ZB (mother). ZB is VB’s stepdaughter and was brought up as a child of his family. ZB’s mother is NC (mother to SB and PB).
The LAs sought the following findings of fact:
– Sexual abuse of SA, SB and ZB by VB;
– ZB’s failure to protect SA and SB from sexual abuse;
– ZB’s failure to protect BW from exposure to ZB’s sexual abuse in the family home and from physical abuse by CW;
– CW’s physical abuse of SB, PB and TB;
– CW’s failure to protect the children from exposure of domestic violence; and
– CW’s failure to protect SA, SB and ZB from sexual abuse by VB.
At the conclusion of the evidence, but before oral submissions, counsel for PB, TB and BW Children’s Guardian sought additional findings against ZB and CW.
Prior to the fact finding hearing VB was convicted of 1 count of raping SA, 1 count of raping SB and 5 counts of child cruelty in relation to SB, PB and TB. Sentencing was adjourned to allow the CPS to decide whether to seek retrial in respect of a number of counts of rape in relation to SA and SB which the jury were discharged from reaching verdicts.
During the fact finding VB did not give evidence, notwithstanding that it was accepted that it was open to the court to make the findings sought on the totality of the evidence before the court. The judge read the ABE interviews given by SA, PB and TB and watched the recordings of PB and TB’s interviews. He found that at no stage did he consider that the children had been coached to give their accounts or that they were otherwise lying.
The judge did not consider that CW was a satisfactory witness and placed no reliance on her evidence due to primarily the inconsistencies of her evidence.
The Judge made all the findings of fact sought by both LAs and the majority of the findings sought by one of the Children’s Guardians.
London Borough of Barking & Dagenham v C & Others  EWHC 2472
Care proceedings involving Article 15 BIIR and a Romanian child. Court concluded a request should be made of the Romanian authorities to accept the case.
The child (A) was a Romanian child born in this jurisdiction in September 2013 of unmarried Romanian parents. Care proceedings commenced very shortly after his birth and he was removed into foster care. The prognosis in respect of Mother as a carer was not particularly good. Father was in prison in the early months of A’s life and put himself forward late but not fatally late, as a carer for A. An ISW assessment of Father was to commence.
The LA put forward only ‘pros’ in respect of a transfer and could not identify any ‘cons’. Mother supported transfer of the case to Romania. Father said he was a man of some substance in Romania. He was not entitled to state support here, and supported a transfer of the case to Romania not only as A was a Romanian child but also because he could not afford to remain in this jurisdiction for very much longer and needed to return. He argued it was for the Romanian authorities to assess the sufficiency of his potential care for A. The Guardian put forward a conscientious, well-considered and thoughtful contrary view.
The Romanian authorities had been less than clear as to whether they would wish to assume jurisdiction in response to a request for transfer but had made it quite clear that if the court were to reach the position whereby it was actively considering adoption of A through the English system they would be highly likely to request repatriation of their citizen.
It was self-evident that A had a particular connection with Romania. Parker J approached the examination of the two contentious elements in Article 15(1) with the assistance of a ‘pros and cons’ list.
Father’s proposal to live in Romania with support from Romanian family members could more easily be assessed – arguably could only properly be assessed in this context – by the Romanian authorities, applying Romanian standards. The question of whether such support could be underpinned by any form of order or state charitable or voluntary sector intervention could only be answered by the Romanian authorities. Only they could decide how this fundamentally Romanian child would be served by the placement options and (a) whether any negatives in Father’s assessment (if they take it into account) would rule Father out in Romanian terms and (b) to assess the efficacy of support in Romanian terms. Father could best litigate in Romania and was likely not to be able to do so effectively here. The judge in the lower court had not considered the merits in any respect and the case had not been subject to any judicial continuity at its earlier stages. Various other considerations were thought by the judge to be either neutral or tipped over into the “pros” column (para 18). There were many uncertainties about timescale and the outcome of the assessment – none of those would tip the balance. It was difficult to foresee whether more delay would be caused in this jurisdiction or in Romania but the judge was quite certain that to put off the decision as to whether a request for a transfer ought to be made ran a serious risk of delay and the best possible outcome for A was for Father’s assessment to run alongside that request.
The judge concluded that the balance lay overwhelmingly in favour of this being a Romanian case, both in respect of Romania being better placed and A’s best interests. The worst prospect for A would be to get to the stage whereby if Father failed his assessment adoption was put forward and the Romanian authorities then made a request for repatriation. The judge concluded a request must be made of the Romanian authorities to accept the case.
Re R  EWCA Civ 1110
Application by father for permission to appeal, with appeal to follow, against the refusal of his application for discharge of care orders in respect of two children and the making of a placement order in respect of one child and the refusal of contact with both children.
This appeal arose following public law proceedings in respect of two half-siblings, E (a girl, aged 12) and N (a boy, aged 6). The LA and the family courts had been involved for some time. There had been previous care proceedings which had led to care and placement orders in respect of both children with a plan that they should be placed in an adoptive placement together.
After it had proved impossible to find such a placement, the relationship between the children had deteriorated and the LA, supported by the Children’s Guardian, had concluded that E needed to remain in a specialist long-term foster placement but that adoption was still the preferred option for N.
The father (who was the father of E but not of N) wished to care for both children. He had made various improvements in his life since the original proceedings and he applied for the care orders to be discharged. The judge had refused that application, granted the placement order in respect of N and refused to make an order for contact between Father and the children. The father appealed against these decisions.
The application for permission to appeal had previously been adjourned with a direction that the full appeal would follow if permission were granted. At the same time, Ryder LJ had directed that the father obtain an addendum report from Dr Franzen, the psychologist who had reported in the original proceedings and reserved the question of whether that evidence could be adduced as additional evidence in the appeal.
Black LJ giving the leading judgment; permission granted but appeal dismissed.
The Court of Appeal emphasises that this is to be regarded as a wholly exceptional step and that litigants should not expect the CA to take this step in future appeals, particularly as, following the order, Dr Franzen had been instructed to report on far more than Ryder LJ had envisaged. There is considerable criticism of the way in which this instruction came about in the judgment.
Dr Franzen had declined to see the children again and so her assessment of their needs was based on what she had read. She remained of the view that separation was a last resort and queried whether a long-term foster placement would greatly benefit E. She had assessed Father and concluded that there was some basis to be positive about his parenting capacity if what he had shown in the assessment could be sustained, albeit that this assessment was conducted, as the judgment describes, ‘in a vacuum’.
Having taken account of the evidence before the judge at the hearing, the judgment then goes on to consider the father’s grounds of appeal. The first ground was the judge’s earlier refusal to authorise a further instruction of Dr Franzen. This ground was rejected as the judge had correctly analysed the issues and explained his decision and the Court of Appeal would not readily interfere with a case management decision.
The Court of Appeal also rejected the other grounds of appeal. These included complaints about unfairness in the court procedure, including that insufficient time was given for the father’s submissions, and that the father was ambushed by evidence arriving at the last minute. These assertions were found to be incorrect.
The complaint that the judge had had insufficient evidence to weigh up the competing needs of the children was also rejected. It had been open to the judge to adjourn for more evidence but he had clearly felt that he had sufficient evidence before him to determine the issue and there were no grounds for criticism of that conclusion. The judge had also properly considered the competing arguments for and against the separation of the siblings. The assertion that the judge had not conducted a proper analysis of the options for the children was also rejected as a proper reading of the evidence and the judgment showed that this was clearly not the case.
In relation to contact, because a placement order had been made in respect of N, the only ‘live’ application for contact was in respect of E. Even taking into account E’s apparently conflicting statements about whether or not she wanted to see her father, the order refusing contact was well within the range of orders open to the judge given E’s troubled presentation and the therapeutic presentation that was about to begin.
F (Habitual Residence)  EWFC 26
Judgment in care proceedings as to whether a child was habitually resident in England and Wales when proceedings began; and, if not, whether she was habitually resident in any other country.
This case was remitted for hearing to consider the issue of jurisdiction in care proceedings following the successful appeal brought by the father: see Re F (A Child)  EWCA Civ 789. The questions for the court at this hearing were whether the child was habitually resident in England and Wales when proceedings began; if not, whether she was habitually resident in any other country.
The family lived in Zimbabwe. The father, an American citizen, left Zimbabwe with the child and travelled to America with her via several other countries. The mother moved to South Africa with the child’s two elder siblings at the time when she was pregnant with the parties’ fourth child. The father remained in the United States with the child from September 2010 to April 2012. He then travelled the world extensively with the child, returning to the United States for a matter of a few weeks. The mother lost contact with the child. In November 2012, American Child Protective Services wrote to the father to inform him of an investigation into the circumstances of the child. The father left for England the day after the letter was written to him.
Whilst in England the father lived in a tent with the child. On 21 December 2012, Derbyshire County Council applied for, and was granted, an emergency protection order. The child had been in foster care from that date.
The father contended that the child was habitually resident in the United States at the time care proceedings were begun in England. This hearing was held 19 months after proceedings were instigated, and the four parties before the court were unanimous in not wanting the child’s future to be decided by the courts of any other country. The father’s position was that he wanted to be awarded the care of the child, and to be left to “figure out what to do next”.
Peter Jackson J
Held that at the relevant time she was not habitually resident anywhere and the English court had jurisdiction pursuant to Article 13 of Brussels II Revised.
He set out some general points concerning the court’s approach when conducting an inquiry into a child’s habitual residence, stated that:
“[t]he court must be satisfied by evidence … approach matters on the basis that the evaluation of the evidence is a matter for the court with the assistance of the parties’ submissions. No party bears a burden of proof. Moreover, the evaluation is a neutral one.” [para 35]
Further, in determining the relevant date at which the court is seised pursuant to Article 16 of Brussels II Revised, the learned Judge held that:
“the better proper approach is that taken in somewhat analogous circumstances when determining the relevant date for adjudication upon the threshold conditions under s.31 Children Act 1989, namely the date of the application or the date when any earlier continuous protective measures began: Re M (A Minor) (Care Order: Threshold Conditions)  2 FLR 577.” [para 37]
In this case therefore, the court was seised on the date that the EPO was sought and made.
Having heard oral evidence on the issue of habitual residence, the court found the mother to be a truthful witness and preferred her account over the father’s on whether there was a plan for the entire family to go to the United States. On the evidence, it was clear that the child was habitually resident in Zimbabwe until September 2010, and the “realistic possibilities in December 2012” were that: she was habitually resident in (1) the United States; (2) England and Wales; and (3) she had no habitual residence.
On a narrow balance, upon considering the extremely specific and anomalous situation that the child was in (summarised at paragraphs 50 to 51), the judge found that the child was not habitually resident in the United States. In any event, she was not habitually resident there from April 2012 at which point the father and child led a peripatetic lifestyle, travelling round the world for extensive periods.
The child was not habitually resident in England in the 37 days she was present here before the commencement of proceedings. Throughout that time she had lived in a tent with the father, not knowing anyone but her father. There was no indication of any degree of integration in a social and family environment in England and Wales at the relevant time.
Thus on the basis that the child’s habitual residence could not be determined at the relevant date, that is she was not habitually resident anywhere, the English court had jurisdiction pursuant to Article 13 of Brussels II Revised on 21 December 2012.
G (A Child)  EWCA Civ 1173
Contact in care order made authorising local authority not to facilitate contact between 10 year old child with parents and eldest sibling on the basis that to do so would prevent her having contact with younger siblings in adoptive placement – eldest sibling and parents appealing to Court of Appeal
The mother and father had four children: L (15), E (10½), A (6) and C (3¾). At the conclusion of care proceedings in May 2012 the three younger children were made the subject of care and placement orders. L was to remain living with the father and his wife. It proved impossible to find an adoptive placement for all three of the younger children but a placement was found for A and C together, which was to be outside of the UK. A and C were placed with the adopters in July 2013 and an adoption application was pending. The LA’s care plan in relation to E changed to being one of long term fostering.
The issue at the centre of the appeal was the issue of contact between E and the rest of her family. The prospective adopters of A and C had indicated their willingness to facilitate inter-sibling contact between A and C and E, but only on the basis that E did not have continuing contact with her parents or L, because if she did, it was inevitable that the confidentiality of the adoptive placement as regards the parents would not be maintained. The LA’s and the Guardian’s positions were to invite the court to make an order under s.34(4) authorising the refusal of contact between E and the parents and L on the basis that it was planned that she would have contact with A and C. At first instance the judge had indeed made such an order.
The father, the mother and L appealed to the Court of Appeal.
McFarlane LJ giving the leading judgment; appeal allowed and matter remitted for re-hearing before a different judge (with up to date evidence of E’s wishes and feelings) whilst expressing no view as to what the eventual outcome should be.
The Court of Appeal found that the judge deserved respect for the manner in which she had approached the very difficult decision, she had not taken into consideration a number of significant matters, the omission of which rendered the judicial analysis unsafe.
The judge had failed to look into the future and to consider whether, in two or three years time (rather than now), the importance to E of maintaining contact with A and C justified having no direct contact with her relatives in this country. She had also insufficiently assessed the potential for unstructured contact between E and her parents via social media, given its potential to cut across the embargo on contact.
The judge had proceeded on the basis that, if face to face contact with A and C failed, it would be likely that contact with the father and L would be re-established, whereas, in reality, that situation would be complicated by the knowledge that E may have gained through contact with A and C and there would be a need for a root and branch reappraisal of the options at that stage [paragraph 34].
The “conventional starting point” for children in long term foster care was to have “fairly regular direct contact unless there are specific child forces reasons for taking an alternative course”. The Court was:
“struck by the apparent absence of consideration of the impact on E, once she reaches the end of her time in care, if she has not maintained any relationship with members of her family in this country during the intervening 7 or 8 years” [paragraph 35].