Family Law News 23rd March – 5th April 2011

Child Maintenance

25.03.2011: The Child Maintenance and Enforcement Commission have published a review of the performance of the first operational year of deduction orders, from 3rd August 2009 to 31st July 2010. Deduction orders allow CMEC to deduct money directly from the bank or building society accounts of parents with child maintenance arrears, the first administrative body in the UK to have these powers. Key findings included:
• £760,000 was collected through deduction, and of this, £113,000 was paid by non-resident parents following a warning that the money would be deducted from their account.
• £610,000 was received through lump sum deduction orders, with the remainder collected through regular deduction orders.
• Information was requested of deposit takers in 2,550 cases. 500 orders were made, collecting on average £2,200 per case.
• The process was quicker than equivalent court-based methods.
Source: http://www.familylawweek.co.uk/site.aspx?i=ed81513

Cafcass

28.03.2011: Martha Cover, representing the Interdisciplinary Alliance for Children, has told the Justice Select Committee of the House of Commons that Cafcass is beyond reform, and that “we simply have to start again” by abolishing the body. Anthony Douglas, Chief Executive of Cafcass, refuted the claims, but said that the volume of cases that Cafcass handles invariably places a strain on the system. Source: http://www.familylawweek.co.uk/site.aspx?i=ed81640

Family Justice Review

31.03.2011: The Family Justice Review panel has reported its interim findings to the Ministry of Justice. They have found that the existing system is too complicated, with replicated services and a confusion of goals between agencies that produces significant delays and causes harm for children and adults alike. Key recommendations for reform include:
• The creation of a new Family Justice Service led by a National Family Justice Board, bringing the key functions of agencies together that will guide families throughout the family justice process, creating a simpler and more efficient organisation;
• The creation of a unified family court system;
• Greater consistency, with cases heard from start to finish by a single judge;
• Court social work services to be a part of the Family Justice Service, subsuming the role of Cafcass (in England);
• A statement in law reinforcing the importance of a child maintaining a relationship with both parents following separation and divorce, alongside the need to protect children from harm;
• The use of Parenting Agreements, focused on where children spend time rather than ‘contact’ or ‘residence’;
• Enhanced support through a single internet/telephone hub;
• Assessment for mediation followed by Separated Parents Information Programmes and dispute resolution services to try and avoid the necessity to enter formal legal proceedings. Source: http://www.familylawweek.co.uk/site.aspx?i=ed81756

Parliament

23.03.2011: The MP for Yardley, John Hemming, revealed in a House of Commons debate that one of his constituents had been prevented from contacting him about his care proceedings case by a court order. The constituent had been wrongly imprisoned for rape. He had won his appeal but complained about a social worker in the process, which he believed caused his local authority to initiate care proceedings for his 4 year old daughter. The proceedings were resolved, but included the condition that the constituent discuss his case with neither Mr. Hemming nor the media. Mr. Hemming believes that this order is contempt of Parliament, and has requested an investigation. Source: http://www.familylaw.co.uk/articles/JohnHemming23032011-987

Judiciary

29.03.2011: Research from the University of Bristol has found that family judges do not feel sufficiently prepared to make decisions in their cases. They discovered that court proceedings rely heavily on the parties’ lawyers, and that though they control proceedings in theory, judges are often sidelined in practice. Lack of legal and judicial continuity in cases was described as a significant problem in the system by the researchers. Source: http://www.familylaw.co.uk/articles/UniversityofBristol29032011-632

Court cases of interest:

24.03.2011: Contact: RE L (Contact Order) Two children, aged 13 and 17, had decided they did not want to see their father again. The father made a DVD for the 13 year old to watch, which he refused. The Cafcass officer considered it inappropriate to attempt to coerce contact, given the child’s age and maturity. The judge dismissed the father’s application for indirect contact and made an s 91 (14) order, declining the father’s application for an adjournment to obtain evidence as to alternative forms of direct contact. Source: http://www.familylaw.co.uk/articles/2011ReLContact

24.03.2011: M v F [2011] EWCA Civ 273 Mother and father were married with two adult daughters and one adult son. The father had mental health issues which had manifested in violent behaviour towards the mother and one of the daughters in the past. The mother had unintentionally conceived a child with the father, but the pregnancy was not identified until a very late stage. The mother informed the daughters, but not the father or the adult son. The mother and daughters were concerned for the welfare of the child were the couple to raise it, that the family would be ostracized by the local community if the pregnancy became public knowledge, and that the fabric of the family unit would be seriously damaged were the truth revealed. The child had been in foster care from birth, and the mother wanted the child to be adopted without the knowledge of the father. Expert medical evidence was sought from an adult psychiatrist to assess the impact on the father’s mental health were he to be informed. However, he could only do this from assessing his medical records, and concluded that he was unable to determine his likely reaction. The judge found that the facts of the case did not satisfy the very high threshold of exceptionality to justify not informing the father and allowing him to exercise his parental responsibility, and being involved in any legal proceedings related to his child.
On appeal, it was held that the test simply holds that a very high degree of exceptionality is required. All three justices agreed that any attempts at defining what this constitutes would be unhelpful, as harm and risk can take many forms in family cases. They also considered whether the case judge had appropriately assessed the possibility of serious harm occurring to anyone as a result of the information being disclosed, concluding that his approach of deciding that it was not established that harm was ‘more likely than not’ was not an appropriate approach to risk analysis in this type of circumstance. However, the justices did not believe the mother had presented a compelling enough case to warrant keeping the son’s existence from the father, and supported the case judge’s conclusion that most of the perceived risk was based on supposition. The appeal was therefore rejected. Source: http://www.familylawweek.co.uk/site.aspx?i=ed81462

25.03.2011: Mercredi v Chaffe [2011] EWCA Civ 272 C was born on 11th August 2009, to a French mother and English father living together in England. The relationship broke down in the run up to C’s birth. Against F’s wishes, he was not named on the birth certificate and M refused to consent to a parental responsibility agreement. Shortly after the birth, M returned to La Reunion in France without informing F. F obtained an order that C be returned to the jurisdiction, invoking the Hague Convention. Meanwhile, M applied in La Reunion for a ruling as to habitual residence, parental responsibility, residence and contact. F issued an originating summons in London for an order that C be made a ward and for declerations as to C’s habitual residence, jurisdiction, rights of custody and wrongful retention, rather than await the outcome of the pending Convention application. Prior to the final hearing on this, the court in La Reunion dismissed F’s application for C’s return,  as they were not satisfied that he had been exercising his rights of custody immediately prior to C’s removal. The French court listed a hearing to consider residence and contact.
In the High Court, McFarlane J ruled that C had been habitually resident in England at the time the court had first been seised, and that the court had jurisdiction under Brussels II. He ordered C’s return and made declarations as to habitual residence, rights of custody and wrongful retention.
At the Court of Appeal, M argued that the removal was unlawful, that even if the court did have jurisdiction the judge should not have ordered the return or made the declarations he did, and that the case should have been transferred to France under Article 15 Brussels II. Thorpe LJ concluded that C had been habitually resident in the UK at the relevant time, but that the lower court had been mistaken to consider the case as child abduction when, legally, there was no residence order, the father did not have PR, and the mother was exercising her right of freedom of movement. On jurisdiction, the judge ruled that McFarlane J had erred on the basis that he should have considered C’s habitual residence in relation to the issue of F’s originating application rather than the earlier application, which was not live by that time. This would have led him to conclude that jurisdiction lay in France, rather than England. As the French court had already started a welfare investigation, which was easier for them to conduct with C in their jurisdiction, it was considered that continuing proceedings in England would undermine the French court. The judge set aside the order, but allowed F to keep parental responsibility.

30.03.2011: Contact: RE W (Family proceedings: Applications) [2011] EWHC 76 (FAM) Two girls, aged 10 and 12, had no direct contact with their father, who was also banned from the county they lived, save for specific purposes. The paternal grandparents were seeking direct contact with the girls. The mother had also applied to commit the father for contempt, who was absent from the hearing, but also applying against a variety of orders. The judge believed that where grandparents have a partisan attitude and are a part of the ongoing dispute rather than above it, it is best to proceed with caution. A supervised contact visit would take place if the guardian still thought it to be in the children’s best interest, which the court would then review. The absence of a committal summons was a serious procedural defect but was not fatal where the father had been fully notified of the allegations and had ample opportunity to meet them. Source: http://www.familylaw.co.uk/articles/2011EWHC76.