Family Law

Family Law Newsletter #3612.08.20

Guidance / Updates

Family Justice Council 7th open meeting

Practice Guidance on Service of Part 4 Family Law Act 1996 applications, orders and notification to the police: Pilot Practice Direction 36U

Remote Family Court hearings: Guidance for litigants in person

Government Consultation: Changes to the Adoption and Children (Coronavirus) (Amendment) Regulations 2020

Lord Chancellor announces 10 ‘Nightingale Courts’

https://www.gov.uk/government/news/10-nightingale-courts-unveiled

The Law Society recommends review of the Divorce, Dissolution and Separation Bill to afford respondents sufficient note to seek legal advice

Cafcass: Protocols for returning to in-person work with children and families

Case Summaries

Re Z (A Child) (DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam)

High Court: The Honourable Mrs Justice Judd DBE

–  A case which echoes the concerns over the lack of regulated placements as voiced by Cobb J in Re S (Child in Care: Unregistered Placement) [2020] [EWHC] 1012.

Z, who was 13 years old at the date of the hearing (29th June 2020), was living at home with their mother and father when Z came to the attention of the Local Authority as a result of absconding from school and failing to return home. Matters quickly escalated and Z needed to be accommodated by the Local Authority.

Three placements broke down because it was impossible to meet Z’s needs or manage his behaviour, which included serious actual and threatened physical harm to others, self-harm and damage to property.

The Local Authority commenced care proceedings, in November 2019, and an interim care order and a secure accommodation order were made and, following renewal of the latter in December 2019, Z was placed at a Secure Unit (“the Unit”) and remained there at the date of the hearing.

Sadly, despite being in a secure environment, Z’s behaviour had escalated further and managing Z’s needs became more difficult to the extent he was unable to spend time with peers at the Unit. In May 2020, the Unit gave notice to the Local Authority that they wished to terminate the placement as they did not consider they were able to meet Z’s needs or keep Z safe.

The Local Authority undertook very extensive searches of both regulated secure accommodation and unregulated homes to find a suitable secure placement for Z, but nothing was available. Consequently, the Local Authority applied for a Deprivation of Liberty order as they concluded the only possible contingency plan was to place Z in a council home rented by them, together with four members of staff and draconian restrictions upon Z’s liberty.

Z’s parents were extremely concerned about Z and how nothing on offer from the Local Authority had seemed to improve Z’s presentation over seven months. Through their counsel, they applied to discharge the interim care order and for Z to come back home.

The Children’s Guardian supported the Local Authority’s “sufficiently safe and secure” plan and was firmly of the view Z’s needs were far beyond the parents’ ability at that time and they would not be able to keep Z safe or ensure the safety of others.

Z expressed a view directly to Mrs Justice Judd that he wished for life to return to being as normal as possible as soon as possible. He did not really wish to move but understood there was little option.

The legal principles derived from Re T (Secure Accommodation Order) [2018] EWCA Civ 2136 and Re B [2020] 2 WLR 568 were considered and there was no question that a deprivation of liberty existed and that the s.25 criteria were made out.

At paragraph 21, Mrs Justice Judd concluded that “to make an order that permitted a return home would be reckless with Z’s safety and welfare”. There were no creative or other solutions which would not place Z at an unacceptable risk of harm.

The more difficult question, however, was whether or not the proposed order safeguarded and promoted Z’s welfare. Mrs Justice Judd stated, at paragraph 22, it would be much better for Z to be placed in a properly registered, regulated secure accommodation with specialised staff but this was not a choice she had.

Due to the dire circumstances of this case, the Secretary of State for Education was invited to attend the hearing. The response was quite clear. There was nothing that could be done and the Local Authority would have to keep searching.

The Court concluded the proposed order safeguarded and promoted Z’s welfare better than any of the other available options, namely, a return to the care of Z’s parents. Permission was granted to the Local Authority to make the application and the declaration sought was made although Mrs Justice Judd considered that the case should be brought before her or another High Court judge within 14 days.

Mrs Justice Judd wished to add her voice to the concerns raised by Mr Justice Cobb in Re S (Child in Care: Unregistered Placement) [2020] [EWHC] 1012 less than three months prior surrounding the lack of regulated accommodation for a 15-year-old.

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/1827.html

AG v VD [2020] EWHC 1847 (Fam)

High Court: The Honourable Mr Justice Cohen

–  A case which considers issues of legal professional privilege in financial remedy proceedings.

VD, the husband (“H”), and AG, the wife (“W”), married on 7th August 2010 in Russia.

In March 2017, W filed a divorce petition in England within which stated that she and H had been separated for two years. Unaware of the English divorce petition, H petitioned for divorce in December 2017 in Russia based on a pleaded separation date of April 2014. A decree of divorce was pronounced in Russia in March 2018 and W withdrew her petition in England.

W applied for financial remedy orders under Part III Matrimonial and Family Proceedings Act 1984 in July 2019 and permission was granted. At this stage, H realised that W was asserting the marriage only broke down in late 2017 contrary, to her petition.

W’s case was that her previously instructed lawyers were incompetent, and possibly negligent, as the issued divorce petition was riddled with errors and inaccuracies, including an assertion that the couple had separated two years previously.

H sought an order that W produce the files of her previous legal advisors. He contended that W had waived legal professional privilege on three separate occasions:

  1. As set out in W’s Part III statement;
  2. Within W’s questionnaire, where she stated in response to a question that she did not receive detailed advice at the time her divorce petition was issued; and
  3. Within W’s second statement, where she stated that the petition was full of errors due to the way it was prepared, she did not meet the solicitor who prepared the petition nor did she speak to her over the telephone, and the divorce petition was not prepared in parallel translation in Russian and English [despite W not being a confident English speaker or reader].

At paragraph 15, Mr Justice Cohen asked himself whether W was simply making a passing reference to an erroneous document or whether she was opening the door of the notional consulting room in which she and her advisors were meeting and explaining and relying upon what would otherwise be a privileged process?

It was agreed between the parties that the Court should take as its starting point the summary provided by Mr Justice Elias (as he then was) sitting in the Employment Appeals Tribunal in Brennan and others v Sunderland City Council and others [2000] ICR 479. It was stated that the “fundamental question” was “whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?”

H’s legal team argued W was not simply relying on the effect of what has transpired but on the very content of what she told her advisors and it would be unfair to H if he was left unable to challenge W’s statement without having sight of communications between W and her previously instructed lawyers.

Mr Justice Cohen was referred to three cases from different jurisdictions: Re D (Care Proceedings: Legal Privilege) [2011] 2 FLR 1183, Stamp v Stamp [2007] Fam CA 420 and Wing Fai Construction v Benefit Holdings, unreported from 16th September 2004, but cited in Daimler AG v Leiduck [2011] HKCFI 498.

W’s legal team contended that:

  1. Legal professional privilege is to be jealously guarded; it will not be lightly lifted and the mere reference to a document or piece of information does not lift the cloak of privilege;
  2. W had been very careful about what she had said about the contents of the petition. She did not refer to individual occasions or any specific meeting nor had she mentioned what she said to those responsible for the drafting of the petition. She had simply said they had made an incorrect assertion;
  3. Whilst fairness was a consideration in the exercise, it was not the paramount consideration that trumps all others; and
  4. Nowhere in her statements had W made reference to the advice she was given or to any written document.

Mr Justice Cohen concluded W had invited H into the consultation room by opening up the question of what she told her advisors. She expressly challenged what her lawyers had quoted her instructions to be and it would not be fair for H to be put in the position where he could not challenge her statement by reference to communications.

Mr Justice Cohen saw no inconsistency between the overseas authorities and Brennan v Sunderland.

The Court found that H’s request to see the whole of the files went too far and that any material relating to financial affairs or the child of the family should not be the subject of waiver of privilege.

Full judgment available at:https://www.bailii.org/ew/cases/EWHC/Fam/2020/1847.html

Re: M (A Child) [2020] EWHC 451

Court of Appeal: Lord Justice Henderson, Lord Justice Moylan and Lord Justice Baker

– A clarification of the test to be applied by the court when deciding whether it is appropriate to exercise inherent jurisdiction in cases where the child is not habitually resident in England.

A is a 13-year-old British national who had been living with her father in Algeria for 12 years. A’s mother applied for a wardship order in England, stating that A was being wrongfully retained in Algeria and she was concerned about her wellbeing. A was subsequently made a ward of the court and the judge exercised parens patriae jurisdiction by ordering her return to England. The purpose of the order was so that “an assessment could be made in a place of safety as to her [A’s] best interests and living arrangements”.

The father appealed this decision on the basis that the judge failed to exercise great circumspection when ordering A to return to England and such an order conflicted with s.2(3) of the Family Law Act 1986 because it was dealing with A’s care or “living arrangements” under the inherent jurisdiction.

The question for the court was whether the Deputy High Court judge was right to order that A should be brought to England. This would be addressed by determining what the test or guide is for the court when deciding whether it is appropriate to exercise inherent jurisdiction.

Moylan LJ conducted a detailed analysis of the law on inherent jurisdiction, considering the case of Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 in which the rarity of cases where inherent jurisdiction was utilised in such circumstances was noted by Black LJ.

The judge in the present case found that the jurisdiction for making orders for a child not habitually resident in England does still exist, though it is subject to the very significant limitations of the 1986 act. Moylan LJ respected the position in Re B that exercise of the jurisdiction should not be confined to the “extreme end” but did not consider that this resulted in there being no test other than the use of the jurisdiction being approached with great caution.

At paragraph 105 of the judgment Moylan LJ, set out his position on the threshold for the exercise of inherent jurisdiction in these circumstances as follows: “there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction”.

Based on this threshold test, Moylan J concluded that the judge was wrong to exercise inherent jurisdiction and make an order requiring A to be brought to England. There were several identifiable failures which led to this conclusion including, a lack of consideration as to why it was necessary for the English court to exercise its jurisdiction, a failure to consider material evidence and no analysis of how the provisions of the 1986 act impacted on the decision.

The substantive threshold required to justify the exercise of inherent nationality jurisdiction was not crossed in this case, in that the circumstances did not require the court to act to protect A. The judge’s order conflicted with the limitations on the court’s powers imposed by 1986 act. The appeal was allowed and the judge’s order set aside. Proceedings were also dismissed.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/922.html

C (A child) [2020] EWCA Civ 987

Court of Appeal: Lady Justice King

– A case which involved a hybrid hearing mishap is dealt with by the Court of Appeal

This case concerned an appeal from an order made by Mrs Justice Judd whereby she refused to accede to an application that she recuse herself from continuing to hear care proceedings.

The hearing before Mrs Justice Judd was a fact-finding hearing to determine whether the death of A, a child of the Appellant, was caused by inflicted injuries and if so to identify who had caused those injuries.

The trial was to be conducted by way of a hybrid hearing which would involve the majority of the case being conducted remotely by Zoom.  There were however provisions for the Appellant to be physically present in the court room to give her evidence before the judge, together with her legal representatives.

During the Appellants evidence, she told the court she felt ill and was subsequently sent home by the judge. It was agreed the rest of her evidence could be conducted remotely.

The court rose and an associate took the judges closed laptop to her room, however the remote link remained open. During this time, the judge could be heard having a private conversation about the Appellant. Several comments were made about the Appellant including that she was attempting to avoid difficult questions. At no point did the judge express a view surrounding the circumstances of A’s death.

The Appellant later made an application that the judge recuse herself, which was refused and an appeal on that decision was denied. The judge openly described her comments as ‘robust’ and ‘critical’ however contended that they did not cross the line. Further her reasoning involved consideration of the fact that the comments were made privately to a person not directly involved in the case and that the comments did not make reference to substantive issues in the case. A further appeal came before the Court of Appeal the following day.

The Court of Appeal set out the test for perceived bias “whether the fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the judge was biased. If so the judge must recuse him or herself” (Porter v Magill [2002] 2 AC 375).

The question for the court in this case was whether the judge was wrong to conclude that her comments did not constitute bias. Lady Justice King described what had happened as a consequence of the pressure under which family judges find themselves at present. Based on the objective test from Porter v Magill, the judge concluded that the comments did fall on the wrong side of the line. That the comments were intended to be private had no bearing on this determination. The nature of the case was serious and the judge had made highly critical remarks about the Appellant’s honesty, therefore demonstrating a real possibility of bias.

The appeal was allowed and the case was remitted to the Family Division for directions on the future conduct of the proceedings before a fresh judge.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/987.html