Family Law Newsletter #2922.10.19
Issue #29 of Spire Barristers' Family Law Newsletter: edited by Ashley Lord and Naomi Hartridge; news and Case Reviews by Georgina Dalton. Georgina was recently successful in her application for pupillage commencing in September 2020.
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.
Updates and Guidance
CAFCASS responds to judicial consultation on children cases in the family courts
Central Family Court well-being guidance [pdf]
Update on new digital service for family law proceedings
A County Council v Children and Family Court Advisory and Support Service (Cafcass)  EWHC 2369 (Fam)
High Court: Keehan J
X was a child subject to care proceedings brought by the local authority. The local authority wished to rely upon an allegation by another child (AB) regarding the father of X to support their contention that the threshold criteria was met for s.31(2) Children Act 1989. For this to take place, AB would have to be called to give evidence and therefore a Re W assessment was necessary. The issue in this case was that the child was not subject to the proceedings and therefore it was unclear who should undertake the enquiries and work with AB. The trial judge directed that this should be done by Cafcass. Cafcass opposed this and stated that their role was limited to the children subject to the proceedings pursuant to s.12 Criminal Justice and Court Services Act 2000. To avoid delay in the proceedings, the trial judge subsequently directed that an Independent Social Worker would take up this role. The trial judge referred the questions relating to the functions of Cafcass to the High Court as a matter of general importance.
Keehan J considered the construction of s.12 of the Criminal Justice and Court Services Act 2000. He found that it could not have been the intention of Parliament to create a statutory body to assist the court in family proceedings with no restrictions on the parameters of its functions. The judge felt that the section should be read conjunctively and therefore the role of Cafcass is limited to the subject child or children involved in the proceedings. It was therefore concluded that the court had no power to require Cafcass to appoint an officer to undertake any work with AB. This work was to be properly undertaken by a Local Authority Social Worker or an ISW. It was also noted that now is not the time to consider widening the scope of the functions of Cafcass in light of its current resources.
Re B & C  EWHC 2593
High Court: HHJ R Peel QC (sitting as a Deputy High Court Judge)
The parents of three children aged 8, 11 and 13 were German nationals and lived together in Germany until their divorce in 2012. After the divorce, the couple shared joint custody of the children. Several disputes arose regarding contact and in March 2018 the mother (M) removed the children from Germany without the consent of the father (F). M took the children to the United Kingdom to live permanently. F made an application pursuant to The Hague Convention for the return of the three children. M opposed this application and raised a defence under Article 13(b) of The Hague Convention that there would exist a grave risk of psychological or physical harm to the children if they were to return to Germany. M also stated that should the order be made; she would not return to Germany with the children.
Mr Robert Peel QC sitting as a deputy high court judge found that M had not established the Article 13(b) defence as F’s behaviour was not the factor which drove her to take the children to the United Kingdom. The court also noted that even if a s.13 defence had been made out it would have exercised its discretion to direct the children return to Germany in any event. The judge was confident that the mother would return to Germany with the children even if the order was made. Although the children expressed that they would rather stay with their mother in the United Kingdom, they were not of an age where their views were determinative. Subsequently, Mr Robert Peel QC made the order sought.