Wednesday, October 30, 2019

Re NY (A Child): Appeal allowed


Lord Wilson gives the judgment of the Supreme Court

BACKGROUND TO THE APPEAL

This appeal concerns a father’s application for an order for the immediate return of his daughter from England and Wales to Israel. The issue raised is whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children (‘the inherent jurisdiction’).

The child’s parents are Israeli nationals who married in 2013. She is their only child and is now aged almost three. Her parents lived at first in Israel but moved to London in November 2018. There the marriage broke down. The father returned to Israel, but the mother refused to do so, and remained in London with the child. The father applied under the Convention, which is set out in Schedule 1 to the Child Abduction and Custody Act 1985 (‘1985 Act’), for a summary order for the child’s immediate return to Israel. The allegation underpinning his application was that, on 10 January 2019, when the marriage broke down, the mother had wrongfully retained the child in England.

The High Court granted the father’s application. On appeal, the Court of Appeal ruled that it had not been open to the judge to make an order under the Convention and set his order aside. It held that there had been no grounds for concluding that the mother’s retention of the child in England had been wrongful, and so the Convention had not been engaged. However, it then referred to passing observations made by the High Court judge to the effect that, if he had found that the child had been habitually resident in England, he would have reached the same decision to order the child’s immediate return under the inherent jurisdiction as he had under the Convention. Relying on those observations, the Court of Appeal made a summary order for the child’s return under the inherent jurisdiction. The mother appealed to the Supreme Court.

JUDGMENT

On 14 August 2019, the Supreme Court unanimously allowed the appeal and set aside the Court of Appeal’s order. Owing to the urgency of the decision, a judgment giving reasons was not issued at that time. Lord Wilson now gives the unanimous judgment of the court setting out its reasons.

REASONS FOR THE JUDGMENT

The appeal raises two questions. First, was the inherent jurisdiction available to the Court of Appeal in principle? Second, if so, was the exercise of it flawed? The answer to both questions is “yes” [2-3].

Inherent Jurisdiction Available
The mother argued that the inherent jurisdiction had not been available to the Court of Appeal on the grounds that a summary order (i.e. an order made without a full, conventional, investigation) for the child’s return outside the Convention could only have been made as a ‘specific issue order’ under the Children Act 1989 (‘the 1989 Act’) [26]. A specific issue order is an order made to decide a question connected with any aspect of parental responsibility for a child: had it been appropriate on the facts to make such an order here, it would have been open to the Court of Appeal to do so [27-28].

Before the introduction by the 1989 Act of specific issue orders, summary orders for the return of a child abroad could be made under the inherent jurisdiction [29-30]. Such orders continued to exist alongside orders under the Convention after it was introduced into domestic law by the 1985 Act, since differences between the inherent jurisdiction and the Convention mean that an order for a child’s return may, in some circumstances, be required under the former, but not the latter, legal framework [31]. But did the 1989 Act do away with the inherent jurisdiction to order a child’s return [32]?

The mother argued that para 1.1 of Practice Direction 12D, supplementing the Family Procedure Rules 2010, showed that the 1989 Act did have that effect: for it instructs that the inherent jurisdiction should only be invoked where the issues ‘cannot be resolved under the 1989 Act’ [33-36]. However, practice directions have no legal authority to the extent that they state the law incorrectly [37-38]. There is no statutory basis for the instruction in para 1.1, and the case-law indicates that an order can be made under the inherent jurisdiction even where a specific issue order would also have been available [39-43]. Therefore the instruction in para 1.1 goes too far. However, if an order is available by both routes and a party chooses to invoke the inherent jurisdiction, the judge will need to be persuaded early in the proceedings that that choice was reasonable [44]. Nor does the court accept the mother’s argument that an application for a summary specific issue order requires a different inquiry from an analogous application under the inherent jurisdiction. The same approach is required under both frameworks, as both are based on the principle that the child’s welfare is paramount [45-50].

Exercise of Inherent Jurisdiction Flawed
The Court of Appeal did not inquire into whether the child’s welfare required a summary order for her return, as it considered that the High Court had made that determination and had not erred in doing so [51]. Yet the judge had not made a determination under the inherent jurisdiction [52]. Nor could his determination under the Convention stand as one under the inherent jurisdiction: for the Convention, unlike the inherent jurisdiction, is not based on the paramountcy of the child’s welfare [53].

The fact that the father had not invoked the inherent jurisdiction did not prevent the Court of Appeal from making an order under it. But it did place a duty on the Court of Appeal to ask whether the mother had had sufficient notice of its intention to use the inherent jurisdiction to allow her to seek to oppose it [54]. The Court of Appeal should also have considered eight further questions before making its order under the inherent jurisdiction, including whether the evidence before it was sufficiently up to date, and whether the High Court judge had made findings sufficient to justify the order [55-63]. Its failure to consider any of these questions is what led the Supreme Court to uphold the appeal [64].

References in square brackets are to paragraphs in the judgment, which can be found here.

Monday, October 28, 2019

News Essentials: 28th October 2019


A brief summary of the essential family law news and cases from the last week:

NEWS
District judge ‘sarcastic and shaking with rage’ in flawed family hearing
The Family Court has overturned a district judge’s care ruling after finding she ‘crossed the line’ during the hearing, creating a hostile atmosphere and alienating everyone appearing before her. Full story: Law Society Gazette. See C (A Child) (Judicial Conduct), below.

Children in care warning from justice commission in Wales
Children's interests are being neglected in court cases that decide who looks after them, a major report has warned. Full story: BBC News.

Assessing risk of harm to children and parents in private law children cases
Progress update on the public call for evidence on how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. Full story: Ministry of Justice.

Government confirms councils' duty to support domestic abuse victims
Councils will have a statutory duty to provide safe accommodation for victims of domestic abuse and their children from 2021, the government has confirmed. Full story: Children & Young People Now.

CASES
C (A Child) (Judicial Conduct) [2019] EWFC B53 (16 October 2019)
Appeal against care and placement orders. Appeal allowed. Conduct of district judge in court below criticised. Full report: Bailii.

G (Children) [2019] EWCA Civ 1779 (09 October 2019)
Appeal by local authority against an order discharging a care order in respect of six children. Appeal allowed. Full report: Bailii.

C (A Child) [2019] EWCA Civ 1777 (22 October 2019)
Care proceedings. Appeal by mother from an order reversing a decision to reopen a finding of fact. Appeal allowed. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Monday, October 21, 2019

News Essentials: 21st October 2019


A brief summary of the essential family law news and cases from the last week:

NEWS
The Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019
These Regulations are made in order to address failures of retained EU law to operate effectively and other deficiencies in retained EU law arising from the withdrawal of the UK from the European Union. Statutory Instrument.

Queen’s Speech: Johnson puts law and order issues at forefront
Crime and justice policies [including divorce reform] were placed at the centre of the government’s agenda today as the Queen’s Speech set out its legislative priorities. Full story: Law Society Gazette.

‘One lawyer is enough’: family judge issues court guidance
Solicitors with cases being heard at Central Family Court have been told they do not always have to turn up with their barristers. Full story: Law Society Gazette.

CASES
C (A Child) (Schedule 2, Paragraph 19, Children Act 1989) [2019] EWCA Civ 1714 (17 October 2019)
Appeal by Local Authority against refusal to give the court's "approval" to the Local Authority arranging for child to live in Scotland in a residential home in which he had been placed. Full report: Bailii.

O (Committal: Legal Representation) [2019] EWCA Civ 1721 (17 October 2019)
Appeal against committal, following breach of order made in family proceedings. Appeal allowed, on basis that appellant wished to be represented, but was not. Full report: Bailii.

RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)
Application by father to transfer care of 12 year old child to him. Application granted, following finding that mother had alienated child from his father. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Tuesday, October 15, 2019

Legal aid reforms trigger huge increase in parents seeking help from child contact centres


The number of parents self-referring directly to child contact centres has drastically risen in the last ten years, according to new figures released by the National Association of Child Contact Centres (NACCC).

Self-referrals from separating parents have risen astronomically from 3.7% of total referrals in 2009/10 to 35.8% in 2018/19, in the same period, referrals from solicitors have reduced from 67.8% to 21.9%. [1]

The stats released today are a clear indication of the consequences of legal aid reforms for families experiencing separation. 

The consultation process for legal aid reforms started in 2011 and came into force in 2013. Since then, legal aid for family law has only been available for a limited range of cases including domestic violence and international child abduction.[2]  

The NACCC accredits 350 centres nationwide run by around 4,000 volunteers and 1,000 staff. Over 17,000 children benefited from accredited services in the past year.

NACCC collected referral data from centres nationwide and found that in 2018/19, 3,879 self referrals were made out of a total referral number of 10,825 (35.8%) while solicitor referrals accounted for 2,375 (21.9%). This compares to 372 (3.7%) self referrals and 6,729 (67.8%) solicitor referrals in 2009/10 from a total of 9,925. [3]

Elizabeth Coe, Chief Executive, National Association of Child Contact Centres
said: 

“Parenting shouldn’t end when relationships do and we know many parents who separate feel the same way, which explains why the assistance from child contact centres is in such demand.

“We have noticed a huge change in source of referrals since legal aid reforms led to a reduction in provision for most family cases. Families who are going through a separation now often need to negotiate the family law system without the support of a legal professional. 

“Our centre staff and volunteers are trained to support families through this process but the potential of increased stress and anxiety for parents is significant and the implications of reduced support is having an impact beyond child arrangements.”

Sarah Avery, Cheltenham Child Contact Centre Manager added: 

Child contact centres enable parenting to continue after a relationship ends, ensuring children feel supported and are safe. Our role is to work with families to help them build trust and resolve issues so that children can continue to have contact with both their parents.

“We know that family separation is stressful for everyone involved and many parents now have the additional challenge of managing legal processes without support from a solicitor. The emotional strain this puts on individuals can be huge.” 

As well as providing safe spaces where children can meet the parents they don't live with, NACCC centres support families by promoting the use of mediation and other services so that separating parents don’t need to go to court to arrange contact with their children.

Monday, October 14, 2019

News Essentials: 14th October 2019


A brief summary of the essential family law news and cases from the last week:

NEWS
Cafcass backs renewed focus on pre-proceedings work in public law children cases - but rejects direct role
Cafcass has said it supports a renewed focus on pre-proceedings work and managing risk in public law children cases, with more emphasis on gaining and recording the wishes and feelings of children at that stage. Full story: Local Government Lawyer.

Welsh council criticised after couples became embroiled in ‘nightmare’ adoption case
Social services bosses at a Welsh council have come under fire from a High Court judge after two couples became embroiled in “nightmare” litigation when a woman changed her mind about giving up a baby daughter for adoption. Full story: Care Appointments. See report, below.

CASES
Dorset Council v A (Residential Placement: Lack of Resources) [2019] EWFC B53 (10 October 2019)
Judgment in care proceedings concerning 15 year old girl, highlighting the resource issues that local authorities face looking after young vulnerable people at risk of harm. Full report: Bailii.

B v A [2019] EWHC 2613 (Fam) (07 October 2019)
Appeal by father against dismissal of application for a prohibited steps order prohibiting child's removal from this jurisdiction, in case where mother had sought permission to temporarily remove the child to Iraq. Appeal dismissed. Full report: Bailii.

Foster carers v A, B & A Welsh Local Authority [2019] EWFC B52 (27 June 2019)
Applications by foster carers for wardship and permission to make an adoption application. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Monday, October 07, 2019

News Essentials: 7th October 2019


A brief summary of the essential family law news and cases from the last week:

NEWS
Tafida Raqeeb: Brain-damaged girl can go abroad for treatment
The parents of a brain-damaged girl will be allowed to take her abroad to continue her treatment, the High Court has ruled. Full story: BBC News. See report, below.

Court has no power to require Cafcass to undertake work with non-subject child, judge rules
A court has no power to require Cafcass to appoint one of its officers, whether a children's guardian or otherwise, to undertake any work with or play any role with a non-subject child, a High Court judge has concluded. Full story: Local Government Lawyer. See report, below.

Survey finds hundreds of children in care being forced to see abusive parents
Hundreds of children in care are being “marched back” to visit their abusive parents and a majority of foster families want to see the practice made illegal, research suggests. Full story: Care Appointments.

CASES
Tafida Raqeeb -v- Barts NHS Foundation Trust and others [2019] EWHC 2531 (Admin) and [2019] EWHC 2530 (Fam) (3 October 2019)
Judgment upon applications by parents for judicial review of decision of NHS Trust not to agree to child being transferred to a hospital in Italy for continued medical treatment and by Trust regarding the withdrawal of life-sustaining treatment. Full report: Bailii.

A County Council v Children and Family Court Advisory and Support Service (Cafcass) [2019] EWHC 2369 (Fam) (20 September 2019)
Care proceedings. Judgment considering issue of whether court has power to to request Cafcass to undertake an assessment of a child not the subject of the proceedings. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Tuesday, October 01, 2019

Internet Newsletter for Lawyers September/October 2019

The latest issue of the Internet Newsletter for Lawyers is now published.
In this issue:
  • Surveillance – Chrysilla de Vere of Clarkslegal explains the issues surrounding use of facial recognition in public spaces
  • Regulation – Alex Heshmaty of Legal Words looks at the debates around the regulation of big data companies
  • Cryptocurrencies – Alex Haffner of Fladgate explains Facebook's Libra and considers the legal issues arising
  • Legal practice – Andrew Thornton of Erskine Chambers introduces Juriosity, the new online platform for lawyers
  • Websites – David Kerr and Chris Davidson of Moore Legal Technology provide the ultimate checklist for websites
  • Regulation – Updates from Alex Heshmaty on digital services tax, Privacy Shield and GDPR fines