Category: Children

As any experienced family lawyer will be able to attest, it is a common occurrence that a parent involved in a dispute regarding arrangements for their child will, consciously or not, put what they consider to be their ‘rights’ ahead of the welfare of the child. However, whether they consider that their rights are more important, or whether they simply believe that their rights coincide with what is best for the child, this attitude can be both wrong and very unhelpful, possibly causing serious damage to their case.

An example of this phenomenon is the case C (A young person). The judgment in the case was handed down last July, but was only published (to my knowledge) last week.

The facts in the case were extremely sad, though thankfully unusual. The case concerned a 16 year old girl who had lived exclusively with her mother until her mother unexpectedly died from cancer in January 2016. She had not had any contact at all with her father until she was ten or eleven years of age. After her mother’s death she went to live with her maternal aunt and her family, and the aunt applied for a child arrangements order to be made in her favour. The father became involved in the proceedings and in October 2017 a shared care order was made in favour of the father and the aunt. Both the father and the aunt were given parental responsibility.

In March 2018 the father applied for a child arrangements order to be made in his favour on the basis that the child was by then living with him, his objective being that he would be the only person who had parental responsibility for the child. Both the child and the aunt opposed the application, which fell to be determined by Mr Justice Keehan in the High Court.

In the course of the evidence it became clear that the child was very attached to her aunt, and that she wanted to continue to have a close relationship with her. On the other hand, the child felt very insecure in her relationship with her father, and feared that he would not support her relationship with the aunt or her maternal family after the case was concluded. It was also clear that the father had much work to do to establish a close relationship with the child.

Mr Justice Keehan found that the aunt was “an emotional and psychological parent” to the child. The father, however, did not accept this. It was also found that the father was not meeting the child’s emotional and psychological needs, in particular he would not promote, or see in a positive light, the child’s need for a close relationship with the aunt and with her maternal family. In short, he found that:

“The father is, in my view, obsessed with his rights as a parent and does not focus on his duties and responsibilities to nurture or to be sensitive to the needs of his grieving daughter.”

The father claimed that the child had made it impossible for him to exercise his parental responsibility by her support of the aunt, and found it “perplexing and bizarre” that the child wanted the aunt to have parental responsibility. These things, said Mr Justice Keehan, graphically illustrated his “assessment of the father as a man obsessed with his rights as a parent and not with the extremely important emotional and psychological needs of his daughter.”

In the circumstances Mr Justice Keehan made a child arrangements order that the child live with her father, which reflected what was happening on the ground, and made a child arrangements order that she spend time with her aunt, on no less than three occasions a week. He also granted parental responsibility to the aunt (I’m not quite sure why he did this, as my understanding is that the aunt already had parental responsibility). He concluded:

“I am satisfied that these combinations of orders will meet the welfare best interests of [the child]. They will enable her to live with her father and, as she wants, to build her relationship with him, but it will provide her with the very important emotional and psychological comfort that she requires from her relationship with the aunt and, through her, with the wider maternal family who are all so very, very important to [the child] and to her future welfare.”

The case is another demonstration that the ‘rights’ (if we can use that word at all) of the parent are not what is important in a dispute over arrangements for a child. What is important, indeed paramount, is the welfare of the child. The court will therefore always be guided by what is best for the welfare of the child, not by the rights of the parent (or, indeed, of any other person). Any parent involved in such a dispute must therefore put aside any thoughts of their ‘rights’, and focus on the welfare of the child.

You can read the full judgment here.

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I was interested to read the other day that the Nuffield Family Justice Observatory has published a report which explores what a ‘public health approach’ to family justice would look like. A new approach to family justice? That sounded interesting. Intrigued, I downloaded and eagerly read the report.

I’m not sure that I am that much wiser. Despite the report being entitled ‘What could a public health approach to family justice look like?’, I have struggled to find a clear answer (in defence of the report’s author I always struggle to read papers of an ‘academic’ nature, so perhaps it is just me!). Still, the following seems to be the gist of the idea.

The first thing to note is that the idea relates to private law children disputes, rather than to the entire family justice system, although the report indicates that it could also relate to public law matters (i.e. cases where the state intervenes in the upbringing of a child).

The central point of the idea seems to be early intervention. In other words, identify those cases where children are at risk of harm as a result of family breakdown. As I understand it this would be done by health professionals and schools flagging up cases (I’m not sure that schools would appreciate such an extra burden being placed upon them), and by Cafcass getting involved in cases earlier.

Once a child at risk of harm is identified, then the appropriate help would be made available, including if appropriate relationship help to prevent family breakdown at all, and help with parenting issues. Other types of help might be to address domestic abuse issues, or to address other problems within the family, such as mental health issues and substance abuse.

In this way, cases could be ‘caught’ before they reach the court system. But where court intervention is appropriate, the idea is that high-risk cases be ‘fast-tracked’, for example by having a time limit placed upon them.

To give just a little bit more detail, the report says that:

“Effective mechanisms for assessment and referral need to be complemented by the availability of a range of services and interventions that have been shown to be effective.  These can range from primary prevention interventions that seek to: prevent problems identified early from escalating; ‘universal’ information and education programmes to promote wellbeing, or tackle underlying causes at source; and restorative or therapeutic interventions that seek to reduce harm once it is experienced.”

The report mentions a couple of programmes that already exist (the Separated Parents Information Programme and the Domestic Abuse Perpetrator Programme), and other programmes in development: a pilot of a more intensive co-parenting programme for parents with more entrenched issues, and a Co-Parent Hub in partnership with the OnePlusOne relationship charity offering online resources to help couples improve their ability to co-parent effectively following separation.

The report concludes that “the family justice system already has, or is starting to build, the essential building blocks that would be needed for a public health approach”. However:

“…even in the health arena we are still learning what an effective approach to developing evidence-based public health interventions in complex systems (which surely include the family justice) needs to look like given the difficulties of randomising trials in whole populations.  The emerging thinking is that we need to be better at asking how an intervention contributes to improving a system, rather than just asking whether it works to fix a specific problem, to make better use of ‘natural experiments’, and to focus on longer term outcomes to which a system contributes.  The answers to these questions require investment in data, and better dialogue to understand how the different parts of the wider system can better connect, suggesting the Nuffield Family Justice Observatory has started down the right track.”

OK, that lost me in the first sentence, but the author seems to be saying that more work needs to be done to determine exactly how a public health approach to family justice should operate.

So what do I think? Well, I’m all for anything that may help to avoid or reduce the adverse effect of family breakdown upon children, and I don’t want to put a damper on this, but I have to say that that I am a little sceptical, in two ways. Firstly, that such a system could actually identify many children at risk in advance of cases going to court, and secondly because the system would require the input of substantial public funds which (as I think the author acknowledges) are likely to be difficult to prise out of government, particularly in these times of austerity.

You can read the full report here.

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When parents need to consult about decisions

The other day on Twitter a well-known family lawyer asked for assistance in identifying a case she could not remember. It was on the subject of parental responsibility. Thinking that the case rang a bell in the depths of my memory, I did a search for it. Unfortunately, after half an hour looking I had not found it, so I gave up. Shortly thereafter, someone far more knowledgeable than myself came up with the answer. I thought it might be instructive to share it with you.

Parental responsibility can be a confusing concept for parents to grapple with (it can also trip up lawyers). Part of the reason for this is that there is no definitive list of all the things that come under the umbrella of ‘parental responsibility’. The statutory definition is not particularly helpful, merely informing us that parental responsibility “means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

So it is very useful when one comes across guidance on the subject, particularly when it is from a senior member of the judiciary. The judge in the case was none other than the late and much lamented Mr Justice Wall (as he then was), subsequently to become the President of the Family Division.

The case was A v A, decided in the High Court back in 2004 (hence the difficulty in recalling it). It related to a private law dispute between the parents concerning their two children, then aged 11 and 9. The parents had separated in 1997, and the mother obtained a residence order in relation to both children in the following year.

In 2002 the father issued an application for a joint residence order and a defined contact order (this, of course, was before the age of the child arrangements order). His complaint was that the mother had been making unilateral decisions about the children’s health and education, and marginalising him from those decisions.

OK, I’m not going to go into the detail of the case itself. Suffice to say that Mr Justice Wall concluded as follows:

“This case has been about control throughout. [The mother] sought to control the children, with seriously adverse consequence for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence.”

And then we come to the footnote to Mr Justice Wall’s judgment, which was the specific thing that the well-known lawyer was looking for. In it, Mr Justice Wall set out a list (not, of course, comprehensive) of the decisions that a parent might take when exercising parental responsibility, with an explanation of whether those decisions should be taken unilaterally, or jointly with the other parent. Here it is in full:

1. Decisions that could be taken independently and without any consultation or notification to the other parent:

• How the children are to spend their time during contact
• Personal care for the children
• Activities undertaken
• Religious and spiritual pursuits
• Continuance of medicine treatment prescribed by GP

2. Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account:

• Medical treatment in an emergency
• Booking holidays or to take the children abroad in contact time
• Planned visits to the GP and the reasons for this

3. Decisions that you would need to both inform and consult the other parent prior to making the decision:

• Schools the children are to attend, including admissions applications
• Contact rotas in school holidays
• Planned medical and dental treatment
• Stopping medication prescribed for the children
• Attendance at school functions so they can be planned to avoid meetings wherever possible
• Age that children should be able to watch videos (i.e. videos recommended for children over 12 and 18)

As I say, this is not a comprehensive list, but I think it does still provide useful guidance for separated parents having difficulties in making decisions relating to their children, despite the years that have passed since the judgment was handed down.

You can read the full judgment here.

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It was with interest that I noted a piece in The Times today about a High Court judge ordering that a wealthy mother is identified after she refused to return her daughters from the Ukraine to their home in London.

This latest High Court case is interesting as it evidences the court’s increasing frustration in cases where parties disobey court orders

There has been talk of the court now relaxing the strict rules on children cases preventing the publication of the names of the parties in cases where it is clear that a party in the proceedings has deliberately disobeyed or frustrated a court order.

The court does have powers to enforce an order where it is breached but these are limited to financial penalties, unpaid work in the community or in very serious cases the imposition of a prison sentence.

This latest decision clearly shows that the courts are prepared to flex their muscles more robustly in cases where orders are breached.

I am interested in how this one plays out.

Mark Christie
Senior Partner at the Stowe Family Law, Harrogate office.

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Back in July 2017 the Ministry of Justice (‘MoJ’) issued guidance in relation to the piloting of ‘settlement conferences’ in children cases. Settlement conferences are/were another idea to help resolve children disputes. As the guidance explained:

“In a settlement conference, a family judge adopts an inquisitorial approach in order to encourage cooperation between parties with a view to helping them identify solutions and reaching an agreement that is in their children’s best interests.”

It went on:

“Settlement conferences take place with the consent of all the parties. The judge hearing a settlement conference will be different to that of the judge that may hear the final hearing. They will be specially trained in facilitating settlement conferences.

“The judge will not impose any duress or pressure on any parties. Settlement implies that all parties will be in agreement to fully resolve some or all issues.”

A protocol in relation to the conferences explained that:

“The role of the Settlement Conference is to facilitate discussion of the issues, clarify information, analyse issues and promote understanding between the parties with a view to helping to identify solutions (including solutions which may be addressed by the consent of the parties and not necessarily within the Court process).

“It is the parties and not the Judge who determines whether there is agreement on any of the issues and whether an order will flow following such agreement.”

Settlement Conferences have been tried in both public law and private law disputes (as I understand it, far more in the former), but for the purpose of this post I will concentrate on the latter, i.e. child arrangements cases, as that is what most readers of this blog are likely to be interested in.

Before I go any further I should point out that the procedure for dealing with child arrangement cases already contains two steps that could be confused with settlement conferences. The first step is the First Hearing Dispute Resolution Appointment (‘FHDRA’), which “provides an opportunity for the parties to be helped to an understanding of the issues which divide them, and to reach agreement.” The second step is the Dispute Resolution Appointment (‘DRA’), which is essentially a last effort to see if the case can be resolved without the need for a final hearing. I will come back to these, or at least to the DRA, in a moment.

The Association of Lawyers for Children has just published a report looking at the views and experiences of advocates on practices in 61 settlement conferences in the initial five pilot areas identified by the MoJ. The report was by Dr Julia Brophy, an independent senior researcher in family justice issues. The report’s findings do not support a roll out of the settlement conference procedure in its current form. The reasons for this are complex, but included variations in approach by judges and courts, concerns as to whether the procedure was fair, pressure on lay parties to agree to a suggested order, and the power imbalance between lay parties and the judge, by virtue of the latter’s status and position.

Many of the advocates felt that a similar result could have been obtained by a properly conducted Issues Resolution Hearing (‘IRH’ – the public law equivalent of the DRA), but restrictions on the time allocated to the IRH mean it is now largely ‘administrative’ with little/no time for judicially led discussion, negotiation and party reflection. I suspect that something similar can be said for the DRA.

The report concludes by suggesting ways forward, for example to identify appropriate cases (e.g. private law disputes), and develop a procedure with safeguards suited to those cases. Another suggestion (if I read it correctly) is to enhance the IRH, to make it more like a settlement conference. Again, I suspect that the same idea could be applied to the DRA.

All in all, the report may not be a glowing endorsement for settlement conferences, but the pilot was clearly a useful exercise in the continuing search for new and better ways of resolving children disputes, and no doubt we will be seeing more of some of the ideas behind the conferences in the future.

You can read the full report here.

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I recently read an article in the Telegraph & Argus about a Bradford man who found out he was adopted at the age of 49.  He is now calling for a change in the law so that every adopted child is told the truth when they turn 18 years old.

Reading his experience made me consider my own situation. I always knew I was adopted however it would have been very difficult for my parents to hide that given they are Caucasian and I am Sri Lankan. I knew the truth from a very young age and I was always reassured that I could ask as many (or as few) questions as I wanted to. This meant I was able to digest information at a pace that was right for me rather than being overwhelmed.

Should there be an age that children are told that they are adopted, or should the decision be left to the adoptive parents?

Having thought about this for some time, I do not think there is a right or simple answer!

To go 18 years believing the people in your life are your biological family and then be told that everything you thought was true isn’t, is likely to have a very serious impact on someone’s mental health. Someone in that situation could experience trust issues in the future, feelings of loss and confusion. In family law it is recognised that children are different: one 8-year-old may be much more mature than a 13-year-old and the way to deliver news to people should be varied depending on their personality. Shouldn’t this common-sense approach be applied to telling someone they are adopted?

What should a child/adult be told?

Should an adopted person be told everything in one go or should they be told at a pace appropriate for them? This follows on from the above point that everyone processes information differently. As an adult, I prefer having all the information I possibly can as that helps me process things but as a child that would have been overwhelming.

What if the circumstances surrounding a child’s adoption are upsetting?

My story was straightforward: my biological mother wanted a better life for me. Not everyone can say that. I have family friends who adopted a child who was taken away from his birth mother because she abused drugs, another adopted because her biological mother was raped. In those circumstances, I am not so sure I would want to know my background.

Not all family relationships are straightforward

As a family solicitor, I understand relationships are complicated. As the saying goes you cannot choose your family. We regularly see clients who are estranged from members of their family for various reasons or parents that are no longer involved in the lives of their children because of separation. Practically speaking, how would that be dealt with if there was a set age that a person must be told they are adopted?

The practical side

I am well versed when it comes to explaining why I have no idea if there is a history of heart disease in my family. I was diagnosed with a genetic condition at the age of 19 yet this is something I probably would have been aware of sooner had I had knowledge of my family medical history. On the other hand, many people don’t necessarily want to know, if given the choice, what the future might hold for them, in this regard.

The chance to have a larger family

The article I read referred to the person who found out he was adopted, feeling as though he had lost out on having two families and sad for the time that he had missed with them. Having a law compelling parents to tell their child they are adopted would give people the opportunity to search for their biological family if they wished to and to find out the truth about where they came from.

Changing the law

When thinking about whether it would be appropriate to introduce a change in the law, it struck me how complicated it would be to do so. There are many charities out there who support families through the adoption journey because it is so complicated emotionally. Therefore, any change in the law would need to be considered with the implications and complexities in mind.

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Well this is an unusual one. I don’t recall ever previously hearing of a Hague Convention child abduction case in which the court ordered the return of the child to a different country to the one from where they were removed. But that is exactly what happened in the recent High Court case S v D (Hague Convention: Domestic Abuse: Undertakings: Return to Third State).

The facts of the case were that the parents were both Hungarian nationals. They were married, and had one child, a boy aged 4 years 3 months. In early 2017 the family moved from Hungary to Germany. Thereafter, the marriage broke down and the parents separated in March 2018, when they travelled from Germany to Hungary for a short holiday, and after a few days the father returned to Germany. Shortly thereafter the mother and the child travelled to England. The mother did not return the child, and the father made an application under the Hague Convention for him to be summarily returned to Hungary.

The mother opposed the application, on the grounds that there was a grave risk that the return of the child would expose him to physical or psychological harm.

The application went before Mr Justice Cobb.

He was satisfied that the removal of the child from Germany in March 2018 was wrongful and in breach of the father’s rights of custody (this was not in issue). He said that the evidence was inconsistent with the mother’s case that the father knew that she was intending to travel to England, certainly on a permanent basis, but even if he was wrong about wrongful removal, he was absolutely satisfied that the retention was wrongful – there was no evidence that the father agreed to a permanent relocation, and it was not said that he acquiesced in the same.

Turning to the mother’s ‘harm’ defence, Mr Justice Cobb was satisfied that the father had displayed violence to her, both historically and recently. However, he was also satisfied by the various undertakings offered by the father, including to pay for the mother to return to Hungary with the child, not to assault, harass, threaten, or molest the mother or the child, not to remove the child from the care and control of the mother save for the purposes of any agreed contact, and to provide as soon as possible for the mother a two-bedroomed apartment in the city in Hungary where the father lives. These undertakings were sufficient to protect the mother and child from harm.

Accordingly, Mr Justice Cobb was prepared to order the return of the child, and he did so, after receiving the undertakings in written form, signed by the father.

As to the ‘different country’ point, he said:

“…this case has been … rendered the more unusual by the fact that the applicant seeks the return of [the child] to a ‘third state’. I dispose of this aspect now. [Counsel for the mother] submits that it would be “exceptional” for a court to order a ‘return’ to a third state. I am loath to use the word ‘exceptional’ because to do so would be to overstate the position; further, ‘exceptional’ is one of those words which once used tends to acquire quasi-statutory authority in a wholly unintended way. For my part, I would be prepared to accept that it will be an unusual case where the court will order a return to a third state, but it is in principle unobjectionable, and each case will be fact-sensitive. As it is, the mother would, it seems to me be more greatly disadvantaged in the return order being made to Germany – a country where, she says, she never wanted to live. At least in Hungary she has family and some support.”

All of which seems to me to be eminently sensible. Apart from any disadvantage to the mother in being made to return to Germany, it seems quite clear on the facts of the case that Hungary is the child’s true ‘home’ country, and that it is the courts of that country that should make any necessary decisions as to his long-term future.

You can read the full judgment here.

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