Family Law

Family Law Newsletter #1718.12.18

‘With great sadness the FDAC National Unit announces the death of Judge Nicholas Crichton’

https://www.lawgazette.co.uk/news/problem-solving-pioneer-judge-nicholas-crichton-dies/5068704.article

Guidance issued by Sir Andrew McFarlane, President of the Family Division

Amended Forced Marriage Orders – https://www.judiciary.uk/publications/practice-guidance-standard-children-and-other-orders/

Anonymisation Guidance – https://www.judiciary.uk/wp-content/uploads/2018/12/anonymisation-guidance-1.pdf

Addition to Compendium of Standard Family Orders – https://www.judiciary.uk/publications/presidents-guidance-addition-to-compendium-of-standard-family-orders-2/

Other News

Flexible hours in Courts

‘Courts in Manchester and Brentford to pilot more flexible hours in family and civil cases’

Download the Prospectus for the Pilot [PDF]

President of the Family Division, Sir Andrew McFarlane speech at the Association of Lawyers for Children Conference 2018

When describing the pressures of dealing with the unprecedented number of children cases in the system, Sir Andrew McFarlane has said it is not helpful for those working in the family justice system for the word ‘crisis’ to continue to be used.

Article [Law Gazette]

Full speech [PDF]

Case Updates

J (A Child: application for a care order) [2018] EWHC 2840 (Fam) (19 October 2018) 

Application for care and placement orders in respect of child whose half-brother had been made subject to a care order following a finding that he had suffered serious inflicted injuries at the hands of either his mother or his father.

Case concerning 3-year-old boy, referred to as J. J’s mother lives in Ireland, she was not present at the hearing as she was in a mother and baby unit in Ireland. J’s father lives in North-East Wales. Not named on the birth certificate and does not have parental responsibility and did not participate in the proceedings. The Local authority applied for a care order and an application for a placement order.

In February 2015, His Honour Judge Gareth Jones gave judgment on an application by the local authority for a care order in respect of J’s older half brother, R. R had serious inflicted injuries by either his mother or father. The Judge was unable to determine which of them inflicted the injuries and made a care and placement order. R has subsequently been adopted. At the time the mother was four months pregnant with J. No one involved in the proceedings were aware of this except the mother.

J was born in July 2015 and after 3 days in hospital he was removed into foster care. The Child and Family Agency (CFA) made an application for an interim care order, which was refused because the mother agreed to him being placed in voluntary care. On 29th July the CFA made a further application for a care order and on the 9th August 2016 it was made.

The issue in this case is that the Local Authority state the threshold criteria are met and that J’s best interests require a care order be made with a placement order which will allow J to be placed for adoption. The mother accepts the threshold was met as at July 2015 which is the relevant date, but only on the basis of failing to protect R. She issued an application for J to be placed with her at the mother and baby unit she is currently residing at. The Guardian supports the making of a care and placement order. She did not accept the mother had made any real or significant changes.

The Judge said that when approaching the question of whether to adopt a solution of permanent separation from his parents, it must be on the basis that “nothing else will do”. No other relative is available to care for J and the Irish Foster carers cannot do so, the only options for the Judge was to return J to the mother or place him in the care of the local authority. The Judge said that adjourning the matter to a further assessment so J would be able to live with his mother in the future would be preferable to adoption but it was not a realistic option. The Judge agreed with the assessment of Dr Kelly-Keogh that the mother had not made any real progress in addressing her issues. It would be a 6 to 12 month delay to allow the mother the opportunity to make progress in therapy. The Judge decided that J’s welfare requires a decision being taken on the day and no further delay be permitted.

The Judge agreed with the submissions of the Local Authority and the Guardian and refused the mother’s application for an adjournment of the decision making in relation to J. The Judge said not only was a care order on the basis of a plan for adoption the only realistic option, it is far and away the best option for J.

Transcript: https://www.bailii.org/ew/cases/EWHC/Fam/2018/2840.html

Human Fertilisation and Embryology Act 2008 (Case AM), Re [2018] EWHC 3178 (Fam)

Further case in which partner of mother of child born as a result of IVF treatment seeks a declaration that they are the child’s legal parent, following administrative failure by clinic providing treatment.

Sir James Munby delivered the judgment in the case. The applicant, X, is a woman who was not married or in a civil partnership with the respondent mother, Y. X was seeking a declaration pursuant to section 55 of the Family Law Act 1986 that she is the legal parent of their twin children, C1 and C2. In accordance with the relevant sections of the Human Fertilisation and Embryology Act 2008.

The case relates to treatment by South East Fertility Clinic, a clinic regulated by the HFEA. Y is wholly supportive of X’s application. The Form WP was completed correctly. In the Form PP, the declaration in section 5 was not signed. The error in relation to section 5 is irrelevant; X’s signature at the foot of the second page was sufficient to satisfy the statutory requirement. When the parents registered their children’s births, the Registrar advised them only Y, as the biological and gestational mother could be registered. X was not put on the birth certificates. Therefore, although X does not have parental responsibility. X seeks a parental responsibility order under section 4 of the Children Act 1989. Y agrees for such order to be made.

Sir James Munby held it was right to give the order to remedy the consequence of the clinic’s and Registrar’s error. Declarations and parental responsibility orders were made in the terms sought by X.

Transcript: https://www.bailii.org/ew/cases/EWHC/Fam/2018/3178.html

RR v MM [2018] EWHC 3252 (Fam) (18 October 2018) 

Application by father for permission to appeal against orders made in private law proceedings, including refusal of judge to recuse herself on the grounds of bias. Application refused.

This was an application for permission to appeal from an order made by HHJ Newton sitting at the Family Court in Manchester in February 2018. The appellant is RR, the father. The respondent is MM, the mother. The child with whom is concerned, is TT, 11 years old. In May 2008 there was an order for interim contract for two hours weekly at a Contact Centre. In March 2010, DJ Fairclough heard a fact-finding hearing, he found domestic abuse by the father against the mother and, to an extent against her two elder children by a previous relationship. In July 2010, HHJ Newton dismissed his appeal from that fact-finding outcome. An appeal to the court of appeal was refused.

The last period of supervised contact was in September 2011. It is clear the contact itself did not present any difficulties. The problems surrounded TT’s reaction to the contact both before and after. The matter was then heard again by DJ Fairclough. He granted the father parental responsibility, but he brought the existing supervised contact to an end. He said there should be a two-year gap to relieve the pressure on TT and enable the mother to reduce her anxiety. The father appealed the order and HHJ Newton dismissed the appeal in February 2012. The matter went to the Court of Appeal in July 2012 when the single judge, McFarlane LJ did not grant permission to appeal.

The father applied again in March 2013 for direct contact, HHJ Newton adjourned the application. In July 2014, HHJ Newton heard the application substantively and dismissed it. The father appealed to the Court of Appeal and was given permission by McFarlane LJ. the court dismissed the appeal. In august 2015, the father applied for a psychological assessment of the mother. In May 2016 HHJ Newton heard the application. The father’s application for further steps to be taken was refused, including his application for an expert psychologist. McFarlane LJ refused the application for permission to appeal on paper but allowed it an an oral hearing in November 2016. The matter came before the Court of Appeal in March 2017 and was dismissed. The Court came to the conclusion that further intervention in this case was futile. The father applied back almost instantly to HHJ Newton in August 2017. He sent a private and confidential letter to the court requesting the application was not allocated to HHJ Newton. The case was allocated to HHJ Newton and she read the letter. The matter therefore proceeded before HHJ Newton.

In October 2017, the father indicated he intended to make an application for the judge to recuse herself on the grounds of bias. He contented she should not have read his correspondence. The mother made a section 91(14) application to prevent applications to the court by the father without leave, to last for the rest of TT’s minority. The matter came before HHJ Newton in November 2017. The father failed to file response or comply with the time limits. She made the order for three years.

The father’s Notice of Appeal is dated April 2018. He argues that the judge should have recused herself. He says:

  • there was the appearance of bias;
  • his right to privacy was not respected;
  • the judge had come to her conclusions in advance of the hearing;
  • the 91(14) order was disproportionate;
  • the application for recusal should have been heard by another judge.

It was held at his hearing there is no evidence HHJ Newton was either biased or that there was the appearance of bias in this case. The judge has heard the matter for many years. There have been numerous appeals against her decisions. Although permission to appeal has been given twice, no substantive appeal has been successful. The fact that a judge determines a case against a litigant does not make her biased. It was held there is no reasonable prospect of success on this ground.

The second ground for appeal is that the father’s respect for his right to privacy was invaded. This was held to be completely hopeless. It is not for a civil servant to decide who is to hear a case. It is a judicial function. It is absolutely not appropriate for any litigant to write to a court on a private and confidential basis. The gatekeeping judges were bound to allocate this application back to HHJ Newton given her long involvement with the case, and she was bound to consider the letter. There cannot be secrets with the court and the Judge asked rhetorically, “How would this father react if the mother was sending letters to the court on a private and confidential basis, not to be disclosed to him or to the judge hearing his application?” The answer is absolutely obvious.

The next ground is nepotism. The Judge simply did understand this argument at all. There is no nepotism in this case and held the ground is hopeless.

Section 91(14) is the next ground. It was clear to the Mr Justice Moor that the learned HHJ Newton set out the law and applied it entirely properly. It was open to her to say, as she did, that this was an exceptional case, that it was an order of last resort, but in this particular case it had to be made. It was held she was absolutely right that this point had been reached, but even if I had any doubt about it, it was certainly within the range of possible orders that she could make.

The final point raised is Article 6. It was held there was nothing unfair about this trial whatsoever. Mr Justice Moor was clear that, although it is sad that there is no relationship between the father and TT, the orders that he seeks to appeal cannot be susceptible to any hope of successful challenge.

The application for permission to appeal was refused in all respects, such that the order of HHJ Newton stands and there is to be no further application without leave for three years.

Transcript: https://www.bailii.org/ew/cases/EWHC/Fam/2018/3252.html