Category: Family Law

VB v JD & Others is the latest in a never-ending sad litany of cases I have read over the years involving almost ceaseless litigation between parents over arrangements for their children. Of course, that is not to say that the parents are always the sole cause of that continued litigation – there may also be other factors, not least failures of the system to bring it to an earlier conclusion. But that does not make the cases any less sad.

VB v JD & Others concerned a mother’s appeal against an order stopping all direct contact with her 7½ year old daughter, ‘A’. The background to the case was that the parents separated in 2013, since when we are told that litigation between the parties has continued “almost without cease”. “The chronology of court hearings makes desperate reading.” Said Mr Justice Cohen, who heard the appeal. He went on: “The parents’ relationship with each other is non-existent.”

Initially the parents shared the care of A. The critical moment in the case, however, occurred in 2015 when the mother and A’s half-sister, ‘B’, alleged that the father had sexually abused B. B is the daughter of the mother and her former partner, and is now aged 17. The allegations were considered by the court in April 2015, when the district judge concluded:

“In the light of the clear view I have formed about B’s evidence, it must follow that I dismiss the allegations against the father. I am not able to say that nothing untoward happened. It is simply that the mother has wholly failed to discharge the burden of proving what she alleges.”

He also made this important observation:

“It seems to me to be a reasonable inference to draw that this mother appears determined, at any cost, to ensure that A has no contact or relationship with the father.”

At a further hearing in December 2015 the court directed that A should live with her father and stepmother. Since then, A has neither lived with her mother nor had staying contact, and all contact has been supervised.

For the sake of brevity I will now skip ahead to May 2017. In that month the father issued an application seeking a prohibited steps order against the mother and B, and for variation of the most recent child arrangements order. The application was prompted by the actions of the mother and, in particular, B, who had contacted Children’s Services, the police and A’s school, expressing concerns about A living with her father, who B alleged had sexually and physically abused her. These incidents continued until June 2017. Meanwhile, the mother continued to have contact with A without incident, until the father’s application was determined in February 2018.

The determination of the court was that the mother should have no direct contact with A. The essential reason for this was that the judge considered that it was the best way to protect A from the effects of the actions of her mother and B. The court also made an order prohibiting any further applications in relation to A for a period of three years. The mother appealed.

Mr Justice Cohen allowed the appeal. His reasons included:

1. That the judge had not considered the possibility of there being very limited, as opposed to no, direct contact, for example two or three times a year.
2. That whilst the events that led up to the father’s application were “disgraceful”, they were all outside contact and stopping contact would not, in itself, mean that those events do not recur.
3. That to remove the mother from the child’s physical presence for three years, a child then aged 6, so half the child’s lifetime, is a very long time (and therefore not a step to be taken without very good reason).

In addition to the above, Mr Justice Cohen felt that in circumstances where contact itself was going well and enjoyed by the child, greater thought needed to be given to the instruction of a child psychiatrist, before coming to a decision. In short, he said: “To terminate a child’s relationship with the mother and sister is very draconian and it seems to me that this was a case where all available alternatives had not been fully explored.”

Accordingly, the appeal was allowed and the case was remitted back to the court below for further consideration, although Mr Justice Cohen did have this warning for the mother and B:

“I do not know what the outcome of this case will be, but I make it clear that I find it hard to envisage contact for the foreseeable future occurring, if it does at all, with anything like the frequency that it has in the past. The mother and B have to prove themselves. Further complaints to the Social Services or police, whether done personally or through the agency of others, are, if unjustified, likely to lead to a longer cessation of any contact at all.”

You can read the full judgment here.

The post Mother wins appeal in desperate no direct contact case appeared first on Stowe Family Law.

Most months I briefly mention here the latest monthly statistics from Cafcass for care applications and private law demand. I did so last Friday. As regular readers may have noticed, the figures for private law demand have been heading inexorably upwards. I thought it might be time to have a closer look at those figures, and speculate as to what may be behind the rise.

Please note at the outset that I use the word ‘speculate’. I do so on purpose. I fully acknowledge that any thoughts I may have as to what is behind the figures are formulated on the basis of my own limited knowledge, but I simply do not have the time or resources to make a detailed investigation. Still, I have been following closely what has been happening in the family justice system for quite a few years now, and so hopefully I have something useful to add to the debate.

Before I proceed I should set out what is meant by ‘private law demand’. This is explained by Cafcass as follows:

“Private law demand is generally used to refer to applications made following a divorce or separation about the arrangements for children, such as where a child will live or with whom a child will spend time.”

Cafcass goes on to explain exactly what the figures mean:

“In private law the unit of measurement is a case (note a case can involve multiple children and multiple application types). These are counted upon receipt of the application from the court and entry into the [Cafcass] database.”

To go into just a little more detail for the benefit of those who don’t know, this does not mean that every private law (i.e. not made by a local authority) court application relating to arrangements for children (including for prohibited steps and specific issue orders) is included as soon as the application is made. Only when the court has considered the case and decided that a court welfare officer’s report is required is the application referred to Cafcass. Admittedly, this does include most applications, but some, particularly simple cases, or cases where the parents are agreed, or are close to agreement, will not be referred to Cafcass. For example, in the third quarter of 2018 (the last full quarter for which family court statistics have been published by the Ministry of Justice) the family courts received 13,444 private law children applications, whereas during that period only 11,411 applications were received by Cafcass (yes, I know that some of the applications may have been issued before that quarter, but you take my point – hopefully!). In short, a Cafcass case is likely to be a case that is contested by the parents, at least at the outset.

OK, so what do the statistics from Cafcass say? Well, I won’t go into all of the details (which you can find at the link below), but essentially private law demand has been increasing each year since 2013, the year that legal aid was abolished for most private law matters (more of which in just a moment). Thus between April 2014 and March 2015 Cafcass received a total of 34,119 new private law cases, increasing to 37,415 the next year, 40,536 the year after that and 41,844 in the year to March 2018. These figures represented year-on-year increases of 10%, 8% and 3.3%.

And the increases have continued since then. For example, the latest figure, for last month, was 20.2% higher than February 2018. Cafcass say that they consider this figure to be an ‘outlier’ compared to recent years (they don’t explain why they think this), but other recent monthly figures have also been higher, albeit not usually by quite so much.

I should say at this point that the increased demand reported by Cafcass is reflected by the Ministry of Justice’s statistics, although the latter are not as recent.

Alright, so what is behind the continued rise?

I will assume in what follows that the increase is not due to any population changes, whether in numbers or demographics. Certainly, I am not aware of any such changes, and in any event they surely wouldn’t have occurred over such a short period.

I also think we can dismiss the idea that there have been more relationship breakdowns since 2013. We don’t of course have figures for breakdowns of cohabiting relationships, but the number of couples divorcing has actually decreased over recent years. Whatever, there is nothing to suggest that relationship breakdown is in the rise.

Obviously, a big factor in the rise is what I will call the ‘bounce-back’ from the downtown following the abolition of legal aid. To explain, just before legal aid was abolished there was a surge in applications, with parents trying to get their cases in while they could still get legal aid. After legal aid was abolished, there was a corresponding drop in the number of applications. Clearly, that could not continue, hence the rise in applications since.

But the duration of the increase in private law demand seems to have been far longer than could be explained simply by ‘bounce-back’. Surely, that would have run its course after a couple of years (by, say, 2016)? There seems to be another factor, or other factors, at work.

Lack of lawyers to ‘weed out’ applications, either because they are without merit or, more commonly, because the lawyers help parents settle matters without going to court, must surely be one of those factors. We know, for example, that the number of cases being referred to mediation has dropped dramatically since the abolition of legal aid, as lawyers are no longer there to refer cases to mediation (or, more accurately, to advise parties as to the existence and benefits of mediation). Without lawyers, parents are rushing off to court when perhaps they don’t need to.

Which brings me to my last point. Are parents increasingly being encouraged to go to court by non-lawyer ‘advisers’? Without the availability of lawyers parents are often having to turn to unqualified people for assistance. Could it be that those people are advising them to argue matters when they shouldn’t (either because they don’t have a good case, or simply because the matter should be capable of being agreed), and then to go to court when either they shouldn’t, or it shouldn’t be necessary?

I’m sure there are factors that I’ve missed, and that others will disagree with some or all of my points (one matter I haven’t looked at is whether there are differences in the situation in different parts of the country, something covered by the data published by Cafcass). Still, this is clearly a discussion that we need to have, as it obviously impacts upon the ability of the court to deal with cases in a timely fashion, particularly at a time when resources are scarce.

You can see the latest statistics for private law demand here (click on ‘Monthly statistics’ and/or ‘Annual summaries’ – note that this page updates every month).

The post Why the continued rise in private law children cases? appeared first on Stowe Family Law.

It is quite a common scenario that parents will agree that one of them may temporarily remove their children to another country. Obviously, the ‘removing’ parent may then decide not to return the children to the country from which they were removed. A critical question may then be: when did the removing parent make that decision? Did they have the intention not to return the children all along, or did they only form that intention late on? The ‘retention’ only occurs when the decision is made.

The reason why this can be critical is that it relates to the issue of the children’s habitual residence. If both countries are signatories to the Hague Convention on Child Abduction then obviously the ‘left behind’ parent may make an application for their summary return under the Convention. However, the Convention only applies where the removal or retention of the child is ‘wrongful’. It is only wrongful if “it is in breach of rights of custody attributed to a person, an institution or any other body either jointly or alone under the law of the state in which the child was habitually resident immediately before the removal or retention”. Accordingly, if the child stays in the ‘new’ country for long enough, they will gain habitual residence there, and any ‘retention’ thereafter will not therefore be wrongful, so the court cannot order the return of the child.

When the mother retained the children was the essential question for the court in the recent Court of Appeal case G-E (Children : Hague Convention 1980: Repudiatory Retention and Habitual Residence).

The facts of the case were that the father was Australian and the mother British. They were not married but they had two children, born in 2012 and 2014. The family lived in Australia, but the mother and children came to England for holidays. Lord Justice Moylan then takes up the story:

“In January 2017 the mother applied online for, and in April 2017 obtained, a school place for the elder child in England from September 2017. In April she obtained a quotation both for the storage of her possessions in Australia and for their being shipped to England. The mother accepted that she did not inform the father about these matters but said that this reflected the manner in which they conducted their lives and were not “clandestine” acts as suggested by [the father’s counsel].”

In or about June 2017 the parents agreed that the mother and the children would travel to England, because the mother’s father was terminally ill. The mother and the children arrived in England on the 21^st of July 2017, on tickets which provided for a return to Australia within 6 months. The mother’s father died on the 2^nd of September 2017. The father agreed that the mother could extend her stay with the children in England, apparently putting no time limit upon when she should return. On the 27^th of March 2018 the mother sent the father an email making clear that she did not intend to return to Australia.

The father commenced his application under the Convention on the 10^th of August 2018. The application was dealt with by Her Honour Judge Hillier in the High Court in October. She found that the mother had not formed the intention to retain the children in this country until March 2018, and that by that date the children were habitually resident in England and Wales. Accordingly, the father’s application was dismissed. The father appealed.

Giving the leading judgment of the Court of Appeal Lord Justice Moylan found that Judge Hillier had properly considered the evidence and was entitled to come to the conclusion that the mother had not formed the intention to retain the children in this country until March 2018. As to the issue of habitual residence, he found that Judge Hillier’s determination was one which was reasonably open to her. He said:

“She has undertaken a sufficiently broad assessment and explained why, in the context in particular of the children’s existing “real ties” with England, she concluded that their stability and integration “grew closer and faster as a result” and that the “centre” of their lives … had become England by late December 2017/January 2018.”

Lords Justices Flaux and Longmore gave consenting judgments. Accordingly, the father’s appeal was dismissed.

You can read the Court of Appeal judgment here, and the original judgment of Judge Hillier here.

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Incredible how time flies. I remember as if it were yesterday when the Children Act was passed, attending various seminars to familiarise myself with its provisions (the main provisions of the Act did not come into force until 1991). In the following thirty years the Act has gained a familiarity, amongst not just family lawyers but also many non-lawyers, in a way that I don’t think many other statutes have. It has even spawned its own novel and film, the latter being reviewed here by Naheed Taj, Managing Partner of Stowe Family Law’s reading office, last September.

What was so special about the Act?

The Act might now be remembered, at least amongst those private law practitioners who are old enough, primarily for doing away with the outdated terminology of ‘custody’ and ‘access’, replacing them with ‘residence’ and ‘contact’ (and, later, with ‘child arrangements orders’). But the Act was about much more than that. As Professor Jo Delahunty QC (see below) explains:

“The Children Act 1989 embodied a change in philosophy by making the child’s welfare the courts ‘paramount’ concern, moving away from the concept of parental rights towards the right of the child. It embraced the idea of shared parental rights and responsibilities and that children are best cared for within their families but not at the expense of suffering avoidable significant harm.”

As that quote suggests, the Act brought together both private and public children law ‘under the same roof’ (the child must have been found to have suffered, or be likely to suffer, ‘significant harm’ before a care order can be made). Thus, whether the court is considering how to resolve a dispute between parents over arrangements for their child, or whether a child should be removed from the parents by the state, the same basic principles apply. By section 1 of the Act the welfare of the child is the court’s ‘paramount consideration’, to be determined by reference to the ‘welfare checklist’ set out in section 1(3).

Accordingly, the law is now ‘child centric’: when considering a question in relation to a child’s upbringing we no longer talk of a parent’s rights in relation to the child, but rather about what is best for the child. This is a lesson that, sadly, many parents have still not learned, despite the length of time that the Children Act has been with us – we still regularly come across parents seeking to enforce their ‘parental rights’.

Perhaps somewhat confusingly, as the above quote also suggests, the Act brought in the new concept of “parental responsibility”, which it defines as “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.” But in this context “rights” really mean something else. They are not to do with what may benefit the parent (if I may put it that way), but rather about the parent looking after the interests of the child, for example by choosing which school the child should attend. In other words, hold on to the concept of “responsibility”, rather than “rights”.

So the Act really changed the landscape when it came to dealing with children issues, and that new landscape has now been with us for nearly thirty years. But what of the future?

Recently Professor Jo Delahunty QC, who is one of the UK’s leading barristers specialising in cases concerned with families and children, and who was appointed Gresham Professor of Law in the summer of 2016, asked the important question: is the Act still fit for purpose?

The question was asked at a lecture given by Professor Delahunty for Gresham College on the 31^st of January. You can watch a recording of the lecture here, and if you have an interest in the subject then I strongly recommend that you do (a more detailed PDF transcript is also available). I won’t give the game away by telling you the Professor’s answer to the question, but I will say that the journey she takes us on is both enlightening (including going into a lot more detail about the provisions of the Act, and the rationale behind them) and thought-provoking.

Of course, the Act does not stand alone, as Professor Delahunty makes clear. In particular, there is the issue of the destruction of legal aid for private law cases, which has changed things so dramatically in recent years. No matter how good the legislation may be, if parents do not have access to proper legal advice (and, if necessary, representation), then the law is never likely to operate optimally and, for some parents who decide it is too much for them to go to court without a lawyer, it may not even operate at all.

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