Family Law Newsletter #3726.08.20
Issue #37 of Spire Barristers' Family Law Newsletter: edited by Connie Purdy and Taz Irshad; news and Case Reviews by Georgina Dalton. Georgina commences pupillage at Spire Barristers 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.
The Adoption and Children (Coronavirus) (Amendment) Regulations 2020
High Court finds Department for Education acted lawfullyRead More
Guidance / Updates
Updated Guidance for Small Marriages and Civil Partnerships
The Children’s Commissioner seeks clarity on Schedule 21 of the Coronavirus Act 2020
Re: D-S (Contact with Children in Care: Covid-19)  EWCA Civ 1031
Court of Appeal: Lord Justice Peter Jackson, Lord Justice Baker and Lady Justice Carr
– Confirmation that the ordinary principles governing applications for contact with children in care continue to apply during the Coronavirus pandemic.
The appeal arose from the mother’s application for contact with her three children, aged 7, 3 and 1½, who had been living with their maternal grandmother under interim care orders since September 2019.
Prior to the Government imposed lockdown in March this year, the children had contact with the mother three times per week for two hours, supervised by the local authority. Following closure of the local authority’s contact centres, the children only had indirect contact with the mother by way of telephone and video call.
The mother sought proposals from the local authority for re-establishment of face to face contact at a case management hearing on 28 May 2020. The local authority subsequently filed a position statement confirming it did not propose to reinstate face to face contact as the children were too young to be expected to observe social distancing in accordance with the Government guidance that allowed small groups from different households to meet in open spaces.
On 13 June 2020, Government guidance changed to allow “social bubbles” and, thereafter, the mother applied for a contact order. A position statement was filed on her behalf confirming she and her mother were willing to form a “bubble” and suggesting that meetings could take place in a local park, professionally supervised, but with the support of the maternal grandmother.
The application was dismissed on the basis that the interplay between s.34(1) and s.34(3) of the Children Act 1989 (“CA 1989”) meant that, in practice, the court did not dictate to the local authority what contact should take place providing the contact allowed was “reasonable”. The Judge concluded an order for indirect contact was reasonable in the circumstances.
The mother appealed the decision on the grounds that the Judge had approached s.34 CA 1989 incorrectly and that he fettered himself by deferring to the local authority. As a result, he did not make the individualised welfare decision that was required.
Prior to the appeal being heard, the local authority informed the mother that supervised face to face contact would be resumed at a contact centre once a week for 90 minutes. Nonetheless, the Court of Appeal heard the appeal as the issue was of wider importance.
The court referred to the Department of Education’s guidance, Coronavirus (Covid-19): Guidance For Children’s Social Care Services and noted the key point was that contact arrangement should be assessed on a case by case basis.
Further, the court identified that the statutory framework surrounding parental contact with a child in care was straightforward:
(1) The local authority is under a duty to allow the child reasonable contact with his parents: CA 1989 s.34(1). It must also endeavour to promote contact between the child and his parents unless it is not reasonably practicable or consistent with his welfare: CA 1989, Sch 2 para 15(1).
(2) Where an application is made to the court, it may make such an order for contact as it considers appropriate: s.34(3). When doing so, the child’s welfare is its paramount consideration. It must have regard to the welfare checklist and it must not make any order unless it would be better for the child than making no order at all: CA 1989, s.1(1), (3) and (5).
Peter Jackson LJ concluded that “the court must reach its own conclusion [of what contact is appropriate] and ensure that it has the information it needs to do that. It does not defer to the local authority, and the local authority is no more entitled than any other party to the benefit of any doubt.” He continued “the question for the court was not whether the local authority’s position was reasonable, but what contact was appropriate, giving consideration to the children’s best interests and taking account of all the circumstances, including the reality of the pressures on services at the present time”.
There was no doubt that face to face contact would be in the children’s interests if it could be achieved. The evidence before the court did not support the conclusion that no face to face contact at all was possible. If the judge did not feel able to approve the proposal made by the mother, he should have adjourned for a short time for the local authority to provide better evidence.
The appeal was allowed and the judge’s order dismissing the mother’s application was set aside and replaced by an order that there be no order on the application. The court confirmed the ordinary principles governing applications for contact with children in care continued to apply during the Covid-19 pandemic, even though outcomes may well be affected by the practical difficulties that were being faced.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1031.html
Re: Y (Children in Care: Change of Nationality)  EWCA Civ 1038
Court of Appeal: Lord Justice McCombe, Lady Justice King and Lord Justice Peter Jackson
– Consideration of whether a local authority has the statutory power to take steps to change the nationality of a child in its care against the wishes of the child’s parents.
This case concerned two children, aged 9 and 11, who were Indian nationals born in the United Kingdom. Their parents were unsuccessful in obtaining leave to remain. The children were removed from their parents’ care in 2015 and placed in a foster home where they have lived ever since. The children’s contact with their parents ceased upon removal.
There were subsequent proceedings in relation to cross applications for discharge of the placement orders and discharge of the care orders by the local authority and the parents respectively. The final care plans made no reference to the children’s immigration status nor the issue of citizenship. Despite this, the local authority stated in its written closing submissions that it would make an application for the children to obtain British citizenship.
By an order made on 19 December 2019, HHJ Tucker discharged the placement orders but refused to discharge the care orders. There was, however, no reference within her judgment as to the children’s immigration status or their nationality.
The parents applied on a wide range of grounds for permission to appeal. Peter Jackson LJ refused permission except in relation to the single issue of the local authority’s powers in relation to a change of nationality.
The Court of Appeal considered Article 15 of the United Nations Universal Declaration of Human Rights (1948), s.31A of the Children Act 1989 (“CA 1989”) and the Care Planning, Placement and Case Review (England) Regulations 2010.
The court considered that, on a literal reading, s.33 CA 1989 would “allow a local authority to make profound and irreversible decisions about a child, up to and including consenting to the withdrawal of life-sustaining medical treatment”.
The Court of Appeal had, however, held that, “for the protection of the rights of children and of other holders of parental responsibility, certain decisions are of such magnitude that they should not be determined by a local authority without all those with parental responsibility having an opportunity to express their view to the court if necessary as part of the decision-making process”. It held that the use of statutory powers in such cases would be a disproportionate interference with the rights of family members.
Peter Jackson LJ concluded that cases where the child is gaining a benefit and losing nothing, such as in cases of dual citizenship, are to be contrasted with cases where a child may lose his or her original nationality. In those cases, the issue is of a magnitude that cannot be resolved by a local authority acting in reliance upon its general statutory powers. In the absence of parental consent, it requires a decision of the High Court under its inherent jurisdiction.
The judge identified that, although the children had been in the care of the local authority for several years, no steps had been taken to regularise their immigration position; something which the children would clearly benefit from. The children’s immigration status, as opposed to the question of nationality, could and should have been addressed within the existing proceedings.
As to citizenship, there was no evidence about the options for securing the children’s position in the UK through applications short of an application for citizenship. There was a general understanding that the granting of British citizenship would lead to the loss of the children’s Indian citizenship, but there was no formal evidence to this effect. There was no acknowledgment of the intrinsic gravity of a change of nationality, to the extent that the issue did not feature in the care plans or in the judgment. In those circumstances, the judge should have made clear that the question of a change of citizenship could not be decided within the proceedings that were before her.
The appeals were dismissed but Peter Jackson LJ declared that s.33 CA 1989 did not entitle the local authority to apply for British citizenship for the children, in the face of parental opposition and where that may lead to a loss of their existing citizenship, without first obtaining approval from the High Court.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1038.html
Re: N (Children: Interim Order / Stay)  EWCA Civ 1070
Court of Appeal: Lord Justice David Richards, Lord Justice Hickinbottom, Lord Justice Peter Jackson
– A recent decision reinstating the practice in relation to the granting of short-term stays
On 6 May 2020, removal of three children from their mother and their placement in local authority foster care under pre-existing interim care orders was approved by the Family Court. The removal was opposed by the parents and it was not supported by the Children’s Guardian. At the end of the hearing, the judge was asked to grant a short stay to allow for an urgent application to be made to the Court of Appeal. This was refused and the children were taken into foster care that evening.
By way of background, the parents come from Afghanistan. There are three children: two boys aged 12 and 5, and S, a girl aged 7. S has global learning difficulties. The family came to the attention of the local authority in November 2019 when, amongst other issues, the older boy came to school with a mark on his face saying he had been slapped by his father. The children were taken into police protection on 8 November 2019 and placed together in foster care, where they remained for a week. An application for interim care orders was made but at a hearing on 15 November 2019 it was agreed the children should be returned to their mother on the basis of a working agreement. The parents accepted that the interim threshold under s.38 of the Children Act 1989 was crossed and an order was made under s.38A of the Act excluding the father from the home.
Following two previous applications for removal due to alleged breaches of the working agreement and/or the exclusion order, the local authority applied again on the same basis at a hearing on 27 April 2020. The evidence relied upon was: the social worker having seen a pair of adult sandals in the garden of the family home and S asking what time her father was coming over; the mother saying through an interpreter during an assessment that the father had removed a games console from the oldest child as he was using it too much; S saying during a social work visit on 20 April that she had been to the park on Sunday and daddy took them in his taxi.
The hearing was adjourned to a one-day remote hearing on 6 May 2020. The parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses. However, when adjourning the matter, the judge directed that the only witness to give evidence would be the social worker. The parents were directed to file sworn statements which the judge stated that she would take “at face value”.
The parents filed detailed statements in which they denied every alleged breach of the working agreement or the exclusion order.
At the hearing, the social worker gave evidence, not limited to the latest allegations, but ranging over alleged breaches going back to December 2019. The mother’s advocate was at a disadvantage in that the remote hearing was being interpreted to the mother by an interpreter connected via the judge’s laptop and there was no ready means of taking instructions during the hearing. The father’s solicitor applied for him to be allowed to give evidence but the judge refused, confirming she had read the father’s statement and understood he disputed what the social worker stated. During closing submissions, the request was repeated for the parents to be allowed to give evidence.
The judge concluded she could not be satisfied that if the children were to remain in the family home, the exclusion order would protect them in the way that was intended when it was made. After the judge delivered her decision, Counsel for the mother sought permission to appeal and a stay of removal; both were refused.
The mother appealed on the following grounds:
(1) The judge’s decision to hear evidence only from the social worker and not from the parents rendered the hearing unfair. She did not take the parents’ evidence “at face value” as she had said she would, but instead gave no weight to it and made adverse findings of fact without hearing from them.
(2) In consequence, findings were made without disputed matters being tested. That was particularly inappropriate where the language barrier gave rise to a potential for misunderstanding between the family and the social worker and where such reliance was being placed upon comments made by a child with global developmental delay.
(3) The judge should have heard evidence from the Guardian about the level of risk and the proportionality of removal, particularly as the Guardian did not support removal, and where face to face contact during the pandemic was not at the time practicable.
(4) In adopting a “reasonable grounds to believe” test, the judge applied the wrong standard of proof. That test applies to the establishment of the threshold, not to fact-finding at the welfare stage.
The court concluded that the issue for the judge was the balance of risks and benefits for the children of remaining in their mother’s care. She had correctly directed herself as to the test for removal at an interim stage and it was understandable that she did not feel able to deal with the issue on submissions only. However, once she decided to hear some evidence, fairness required that in this situation the judge should have heard from both the accuser and the accused. The investigation that was carried out was not fair and effective.
Further, there was insufficient consideration of all aspects of the children’s welfare. The judge was entitled to regard compliance with the working agreement and the exclusion order to be a matter of real significance, but it did not minimise the harm that had been and may be caused to the children. Peter Jackson LJ considered that the test for interim removal could not reasonably have been met on the evidence that the judge received.
The appeal was allowed and the court considered the proper order was one that allowed for the immediate return of the children to their mother.
Peter Jackson LJ distinguished a short term stay to enable an application to be considered by an appeal court before an order is put into effect from a stay pending a decision on permission to appeal or a stay pending appeal. The correct approach for the court to take to the former was described in Re: A  EWCA 899 where Wilson LJ confirmed that the judge should always give serious consideration to allowing an applicant “a narrow opportunity” to approach the Court of Appeal so that the opportunity for a successful appeal was not unfairly eroded.
The court considered the request for a short term stay in this case should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers. The nature of the risks involved in the children remaining at home for a further very short period could be measured by the fact that the court itself had sanctioned them remaining there between 27 April and 6 May 2020 for procedural reasons. Further, as the judge acknowledged, there was no real risk to the children being taken out of the country and, bearing in mind that the family had not disappeared in the previous six months when it could have done, the prospect of internal flight was hardly likely either.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1070.html