Category: Children

As I have explained here many times previously, the rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be made. The ‘defences’ to a Hague application open to the ‘abducting’ parent are therefore very limited. One of those defences is that there is a grave risk that the child’s return would expose them to physical or psychological harm, or otherwise place the child in an intolerable situation.

It is comparatively rare for such a defence to be successful. Sometimes, however, the court, perhaps in its ‘eagerness’ to follow the rationale and order a return, gets it wrong, by not accepting the defence when perhaps it really should. Such was the situation in the recent European Court of Human Rights (‘ECHR’) case OCI and others v Romania.

The facts in the case were that the mother was a Romanian national and the father was an Italian national. They had two children, who held joint nationality. The family resided in Italy.

In June 2015 the family went to Romania for the summer holidays. A few days later the father returned to Italy, expecting to go back to collect the mother and the children at the end of the summer. On the 25^th of June 2015 the mother informed the father that she and the children would not be returning to Italy. The father made an application under the Hague Convention for the summary return of the children to Italy.

The mother opposed the application, raising the ‘grave harm’ defence. She alleged that the father had used serious violence towards the children, including beating them with hard objects, bruising their faces and giving them nose bleeds, calling them names and humiliating them. The Romanian court found that the evidence proved “without doubt that the father used physical force and a raised voice to discipline his children”, and the father confirmed this in his statement. Notwithstanding this finding, the court found that there was nothing to oppose the children’s return to Italy, and therefore made a return order. The mother appealed, but the appeal court upheld the return order. However, the order was never enforced, due to the children’s refusal to go back to Italy.

The mother, on her behalf and on behalf of the children, issued proceedings in the ECHR, alleging that the Romanian courts had breached their right to respect for their family life, protected by Article 8 of the European Convention on Human Rights, in so far as the courts had failed to take into account the grave risk that the children would be subject to physical or psychological harm at the hands of their father.

The ECHR found that there had been a violation of Article 8. The Romanian courts, while condemning in general terms abuse against children, were nevertheless satisfied that what the children had suffered at the hands of their father had only been occasional acts of violence and would not reoccur “often enough to pose a grave risk”. However, that assessment ran counter to the prohibition of abuse against children under domestic law, and cast doubt on the decision-making process. The ECHR said:

“Corporal punishment against children cannot be tolerated and States should strive to expressly and comprehensively prohibit it in law and practice … In this context, the risk of domestic violence against children cannot pass as a mere inconvenience necessarily linked to the experience of return, but concerns a situation which goes beyond what a child might reasonably bear.”

Furthermore, there was nothing in the Romanian courts’ decisions that led the ECHR to believe that they considered that the children were no longer at risk of being violently disciplined by their father if returned to his care.

The ECHR considered that the Romanian courts should have given more consideration to the potential risk of ill-treatment of the children if they were returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children. In short, the Romanian courts had failed to examine the allegations of “grave risk” in a manner consistent with the children’s best interests within the scope of the procedural framework of the Hague Convention, and there had accordingly been a violation of Article 8.

You can read the full report of the case here.

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I wrote here last week explaining why we don’t need another code of conduct for solicitors dealing with children disputes (we already have one). Remarkably, despite my post there are still some who are not convinced, and who continue to call for a new code. Yes, I know that it is difficult to understand that some people disagree with me, but clearly I need to explain in more detail.

Seriously, I’m sure that most of those who make these calls are well meaning, but what bothers me is the implied idea that any further code must by definition be a good thing. But you can’t solve everything just by making more rules. It needs to be understood that ‘more is not necessarily better’. In fact, more can actually be a bad thing.

For a start, another code would impose a further burden on family law solicitors, who are already have enough law, rules, guidance and codes to weigh them down. Yes, I realise that few lay people are going to be concerned about how much solicitors are required to know, but every new thing further impinges upon their freedom of action. I’ve often thought that I’m glad I stopped practising ten years ago, as there now so many sets of rules, guidance and codes that I would be afraid to advise a client upon a particular course of action, for fear that I might be in breach of the latest edict setting out the ‘correct’ way to proceed.

And any new code will obviously be more complicated than what we have now, dealing with specific situations that its proponents believe are required to be covered (more of which in a moment), rather than generalisations. But surely, a more complicated code is less likely to be remembered and complied with than a simple code. The beauty of the Resolution Code is its simplicity. It essentially comprises seven short and easy to remember sentences (excluding the Guides to Good Practice). And most of it is common sense anyway (again, more of which in a moment). In the realm of children disputes, if one just follows the first two points of the Code (‘Reduce or manage any conflict and confrontation; for example, by not using inflammatory language’, and ‘Support and encourage families to put the best interests of any children first’) then you are not going to go far wrong. You can simply apply those general principles to whatever situation you are faced with.

Which brings me to my next point. A more complicated code is, by definition, going to be more rigid. It will prescribe what to do in a given situation. But you simply cannot cover all possible situations that a family lawyer will face, and very often the situation is not as ‘black and white’ as any code maker may envisage. In fact, a rigid code may even point towards the wrong outcome.

And that brings me to my last point. A rigid code encourages solicitors to disregard the one thing that they require above all else: common sense (yes, I accept that some family law solicitors may be lacking in this commodity, but I’m sure the vast majority are not.) Common sense is what is really required to guide family law solicitors, just as it is anyone else. Yes, use a basic code as an outline, but apply common sense to it. Don’t let yourself be blindly guided by a code, just because you have been told that you must follow it.

Let us finish by briefly looking at some practical examples. After she read my last post, that well-known and very highly regarded family lawyer to whom I referred, and who suggests a further code may be required, sent me the following tweet (I have expanded the abbreviations, for the sake of clarity):

“Agree that respecting/enforcing existing codes vital. But clear that more needed. Are we, for example, under a duty to follow instructions if they are obviously in conflict with the child’s best interests? What should be our role getting clients to sign a parenting pledge? What about litigants in person?”

OK, I think I can deal with those three examples very quickly, using what we have already: follow the ‘put the best interests of the child first’ point in the Resolution Code, and apply common sense. Sorted.

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If a non-resident parent (‘NRP’) enjoys shared care of a child (i.e. an average of at least one overnight stay a week) then the amount of child support maintenance that they are required to pay will be reduced, with the amount of the reduction depending upon the number of nights per year that the child spends with the NRP. Accordingly, for example, if the child stays with the NRP for between 52 and 103 nights per year then the maintenance is reduced by one-seventh, if the child stays with the NRP for between 104 and 155 nights per year then the maintenance is reduced by two-sevenths, and so on.

But what if a court has ordered that the child should spend a sufficient number of nights with the NRP to warrant a reduction in the child maintenance, but the order is not being complied with – what is the effect of this upon the amount of child maintenance that the NRP is required to pay? This was the question facing the Upper Tribunal in the recent case EA v Secretary of State for Work and Pensions and SA.

The relevant facts of the case may be stated quite simply (in fact, I am going to simplify them even further, for the sake of clarity). The mother and the NRP (I shall call him that, rather than ‘the father’, for the sake of consistency) had two children, one of whom is grown up, and the younger of whom is now aged 13. The parents divorced in 2013, and on the 31^st of May 2013 the court made an order providing for the father to have overnight contact with the younger child, including alternate weekends from Thursday to Mondays, and additional holiday dates. However, by at least October 2015 the contact arrangements had broken down, as a result of which the NRP was not enjoying the overnight contact set out in the order. This was against the NRP’s wishes, the mother claiming that contact stopped because the child didn’t want it, and had run away one weekend to avoid contact.

Meanwhile, in August 2016 the Child Maintenance Service (‘CMS’) made a decision about the level of child support maintenance that the NRP was liable to pay with effect from the 24^th of July 2016. The amount included a reduction for shared care, based upon the terms of the contact order. The mother requested that the decision be reconsidered, and as a result the decision was revised on the 1^st of November 2017. The effect of the revision was to increase the payments by the NRP, because the deduction for shared care was removed, in the light of the fact that the overnight contact was not actually taking place.

The NRP appealed. The First-tier Tribunal rejected the appeal, and the NRP appealed again, to the Upper Tribunal.

The Upper Tribunal also refused the appeal. Whilst the regulations state that, when considering the issue of shared care, the CMS must consider the terms of any court order providing for contact between the NRP and the child, there is no obligation to determine shared care solely on the basis of the provisions in that court order. The weight to be attached to the court order is for the CMS to decide. They are also entitled to take into account evidence that the provisions of the order do not accurately reflect the number of nights for which the NRP is expected to have overnight care of the child during the relevant 12 month period. It is not the intention of the child support legislation that the contact arrangements set out in the court order must take precedence over the actual overnight contact, no matter how old the court order was or how long it had been ineffective. The deduction for shared care is to reflect the respective costs of caring for the qualifying child borne by the parent with care and the NRP, and to do otherwise would not be in the interests of the child, or in accordance with the policy intention of the deduction for shared care.

Here, the First-tier Tribunal had concluded that “there was likely to be no or limited overnight care in the 12 months from the effective date”, and that determined the matter. The Upper Tribunal judge concluded with the following:

“I can understand [the NRP’s] frustration. He wishes to see his son, and would like [the mother] to facilitate that. He considers it is in the best interests of his son to have contact with him, and feels it is unfair that he pays additional child maintenance, having lost credit for shared care because contact ordered by a court is not happening. However, if [the NRP] is not content with the present level of contact, he has avenues of recourse in the courts available to him.”

You can read the full report of the case here.

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The other day I came across a tweet from a well-known and very highly regarded family lawyer. She said that she had just attended a meeting of various groups regarding how resolving child arrangements on separation could be more child-focused, and that one strand of the discussion was the role solicitors can or do play in inflaming conflict. She asked how we could change that, and said: “If there were a Code, what would it include?”

But do we need a code for solicitors dealing with children disputes?

The answer, I think, is that we already have one. Or two, to be precise (not including various other available guides).

The first code in time was created by Resolution, the association of family lawyers. Their Code of Practice specifically tells members of the association that they should “Reduce or manage any conflict and confrontation; for example, by not using inflammatory language”, and “Support and encourage families to put the best interests of any children first.” Those two brief statements seem to say all that is really needed, both to deal with the issue of inflaming conflict, and to make sure that discussions regarding arrangements for children are child-focused. You can read the current version of the Code here.

Of course, the Code only applies to members of the association, and not all family law solicitors are members. However, all are members of the Law Society, which also has a code, albeit that it goes under a different name: the Family Law Protocol.

The Family Law Protocol specifically states that it endorses the Resolution Code of Practice, and says that the Protocol should be read in conjunction with the Code. The main protocol, which you can read here, says that solicitors dealing with children matters should:

• emphasise the need for parents to accept parental responsibility for their children;
• aim to promote the child’s welfare as the paramount consideration;
• encourage separation of addressing the children’s needs from those of the parents;
• encourage the use of mediation and other dispute resolution options;
• provide information about local support/guidance services;
• provide information about parenting apart.

And elsewhere in the Protocol (which comprises a book some 200 pages long) there are two whole chapters, setting out guidelines for solicitors dealing with private and public law children matters. The guidelines enlarge upon the above, and set out the duties of solicitors dealing with such cases.

So it will be seen that we already have two codes dealing with the concern regarding the role solicitors can or do play in inflaming conflict in children disputes, and it is difficult to see what more could be added by another code. All family law solicitors will be bound by one or both of the codes, and it could be argued that the endorsement of the Resolution Code by the Law Society Protocol effectively means that all family law solicitors are bound by both codes. Whatever, if they follow the codes then surely they will not be guilty of inflaming conflict in children disputes?

And therein lies the rub, to misquote Shakespeare. These are just codes, with no real sanction if they are not followed. Now, I haven’t been practising myself for some ten years, but when I was I was aware of many solicitors who did not follow the codes, and I would be very surprised if they have all disappeared in that decade, although I would hope that their numbers have reduced. Yes, I’m sure that there are still some solicitors out there who conduct their cases in an inflammatory way, and no doubt also encourage their clients to pursue cases in an aggressive fashion.

But the same would surely be said about any new, additional, code, assuming it could say anything not already covered by the existing codes. Why would a new code stand any better chance of compliance than what we have already?

In short, we don’t need another code. What we have should cover everything we need. What is required is for solicitors to follow the codes that we’ve already got. I’m not necessarily saying that the codes should be strictly enforced (that raises all sorts of complex issues, such as client confidentiality), but there are steps that can be taken, such as courts registering their disapproval of inflammatory tactics by solicitors, and educating solicitors (and the public generally) as to the damaging effects of such tactics.

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Access to the court is a basic right enjoyed by all including, of course, parents who require the court to resolve disputes over arrangements for their children. Accordingly, restricting that right is a very serious step, which should only be taken in exceptional circumstances.

Regular readers of this blog may be aware of a provision tucked away in a sub-section towards the end of the Children Act 1989. Section 91(14) provides that:

“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

Section 91(14) orders are often referred to as ‘barring orders’, although technically they do not actually bar a parent from making further applications – they merely provide a further hurdle or ‘filter’ that must be passed by the parent before they can proceed with their application. The orders are usually made in cases that have a long history of litigation, and their rationale is that the case has reached the point where it would be best for all concerned, particularly the child, if there were to be a break in the litigation. Accordingly, any new application will generally only be allowed to proceed if it is considered to be absolutely necessary, in the interests of the child.

Barring orders are usually made for a set period of time. As one might imagine, once a barring order has been made it can be very difficult for a parent to persuade the court to entertain a further application before that period has expired. Barring orders are therefore a serious restriction upon the right of the parent to have access to the court, and they should therefore only be made sparingly, and after full and proper consideration.

Sometimes, however, the court can get it wrong, perhaps being too eager to protect the child from the harmful effect of further litigation. The recent case N (Children) was an example of the court getting it wrong.

The case concerned two children, now aged eight and seven. By the time the case reached the Court of Appeal this month, their parents had been involved in litigation concerning them for nearly five years. That litigation had begun in September 2014, when the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. In January 2015, the father pleaded guilty to an offence of harassment by sending abusive text messages to the mother, and was subsequently sentenced to a six-month community order. In March 2016, at what was intended to be a final hearing, the court made a child arrangements order, providing that the children lived the mother but had overnight and holiday contact with the father.

But that was far from the final hearing. The mother applied to vary the contact, and since July 2016 the father has had supervised visiting contact only. Another ‘final’ hearing took place in March 2017, at the conclusion of which the judge made an order confirming the child arrangements, including the order for supervised contact. The father appealed. His appeal was dismissed, but the judge also gave directions for the case to proceed, after the parents agreed to undergo a psychological assessment.

The assessment was carried out by a clinical psychologist, who had no concerns about the mother, but found that the father suffered from serious anger management problems.

The matter went back to the court for a directions hearing in March 2018. The father did not attend, and the hearing proceeded in his absence. The judge, Mr Justice Hayden, decided of his own volition that it was appropriate to make a barring order for two years, although he gave the father a month in which he could apply to vary the order. The father did apply, and a further hearing took place in July 2018. The father, representing himself, did not properly prepare for this hearing, although he produced a report from a chartered consultant counselling psychologist, who found no evidence that the father suffered from emotional distress outside the context of missing his children and frustration with the legal system. The judge found the report inadequate in various respects, and summarily refused the application.

The father then appealed against both the barring order and the order made in July 2018. The appeal was heard by the Court of Appeal this month, Lord Justice Baker giving the leading judgment.

Lord Justice Baker said that he understood the judge’s anxiety that the ongoing proceedings were not serving any benefit, and were risking further harm to the children’s welfare. However, the barring order should not have been made without giving the father an opportunity to make representations as to it. If the order had been properly made then it might have been appropriate to have dealt with the father’s subsequent variation application in a summary fashion. However, in the light of the irregularities in the way in which the barring order was made, the summary dismissal of the father’s application was “plainly wrong”.

Lord Justice Baker concluded:

“I regret to say … that the two hearings together represent an unwarranted infringement of the father’s rights to a fair hearing. His automatic right of access to the court was removed without notice and without giving him a proper opportunity to make representations. When he attempted to exercise the liberty to apply to vary that order, his application was misunderstood by the court and dismissed. I reach this conclusion with considerable reluctance, given Hayden J’s great experience and the strong sense of his concern for the children which emerges from the transcripts. His assessment that the ongoing proceedings were serving no purpose and not benefitting the children may well have been right. But before imposing an order under s.91(14), there are certain procedural steps which should have been followed but which were unfortunately overlooked in this case.”

Accordingly, the father’s appeal was allowed, and the barring order was set aside. The case was remitted back to the court below, for a further hearing before a different judge.

You can read the full judgment here.

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I wrote here back in March about the thirtieth anniversary of the Children Act. My modest celebration of that event has now been joined by another, emanating from a rather more illustrious source: the President of the Family Division, Sir Andrew McFarlane.

The President chose the anniversary as the subject for The Nicholas Wall Memorial Lecture 2019, given on the 9^th of May. For those who don’t know, Sir Nicholas was the President himself between April 2010 and December 2012, when he retired for health reasons. Sadly, Sir Nicholas suffered from dementia, and he took his own life in 2017.

In my earlier post I gave a brief outline of what the Act did, and I refer readers who don’t know to that post. Here, I just wanted to give a flavour of Sir Andrew’s speech.

Sir Andrew used the speech to point up three areas within the Act’s provisions which he said “justify comment or consideration as we mark its 30^th anniversary.” The three areas came under the headings “Making Contact Work”, Child Protection and Secure accommodation. As the second and third of those are unlikely to be of particular interest to readers of this blog, I will concentrate upon the first.

Sir Andrew set out the efforts since the passing of the Act to “make contact work”, including in particular enhancing the court’s enforcement powers and changing the terminology from ‘residence’ and ‘contact’ orders to ‘child arrangements’ orders. He then asked whether these changes made a positive difference, and concluded that: “in terms of the numbers of separated parents who still turn to a magistrate or judge to sort out the arrangements for their children after parental separation, the answer, depressingly, would seem to be ‘no’.”

However, Sir Andrew did not consider this to be the fault of the Children Act, or the law that has developed under it. He said:

“The law is plain that each parent has full and equal parental responsibility and all that the court is doing when determining an application is fixing the practical arrangements for a child’s care … The courts have been plain that it is the responsibility of parents, and not judges, to determine issues that may arise between them and that this ‘responsibility’, difficult and burdensome though it may well be, is just as much part of their responsibility to do what is best for their child as some of the happier parental tasks may be.”

In other words, the law is clear that the responsibility to sort out post-separation arrangements for children lies with the parents, and the courts will only intervene if it can be shown that without a court order the child’s welfare would suffer. Or as Baroness Hale said: “To emphasise the practical reality that bringing up children is a serious responsibility, rather than a matter of legal rights, the conceptual building block used throughout the [Act] is ‘parental responsibility.’”

The Children Act, said Sir Andrew, was “essentially sound”, even if “the manner in which the delivery of dispute resolution following parental separation often falls short, or, worse, compounds the potential for harm.” That this is so, he said, demonstrates the fact that the law can only go so far in resolving what are essentially relationship difficulties within families.

Sir Andrew concluded his look at the Act with the following glowing endorsement:

“On any view, and in the view I am sure of every Family lawyer, the Children Act 1989 was ground breaking to a very high level on the seismic scale. It changed the world of children’s law and it has more than stood the test of time. Such amendments that there have been, and there have been many, have built upon, rather than removed the core structure of the Act. There is no clamour, yea not even a whisper, that the basic concepts of child law now need further reform. The architects of the legislation, and its draftsmen, simply got it right. That that is so has been, and continues to be, to the great benefit of the children and young people whose needs it was aimed to meet.”

Like Sir Andrew, I’m sure most of us can agree with that.

I recommend that you read the full speech, which you can find here.

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