Family Law

Family Law Newsletter #0621.12.17

Case Updates

In the Matter of: W – C (Children) [2017] EWCA Civ 250

Court of Appeal: McFarlane LJ (judgment), McCombe LJ and David Richards LJ.

The appellant children’s guardian appealed against a decision to dispense with parental consent and order the placement of a two-year-old girl (D) for adoption. D’s mother had an emotionally unstable personality disorder, was a cannabis user, and had a history of relationships featuring domestic violence. Her eight-year-old son (C) and D were in her care, although the respondent local authority (LA), concerned that they would suffer significant harm from neglect, had issued care proceedings in respect of them both.

The LA had recommended that C and D be placed for adoption, while the guardian sought their placement in long-term foster care with their maternal aunt under a special guardianship order. The judge found that leaving the children with their mother was not a realistic option and that C should be placed with his maternal aunt. He then considered whether D should be placed for adoption, and concluded that she should, with reference to the welfare checklists in the Children Act 1989 (the 1989 Act) section 1(3) and the Adoption and Children Act 2002 section 1 (the 2002 Act). He held that dispensing with parental consent was in D’s best interests and ordered her placement for adoption.

The guardian argued that the judge had failed to conduct an adequate analysis of the issues in D’s case and the she should be place in long-term foster case with her maternal aunt.

Lord Justice McFarlane gave the judgment and the order that D be placed for adoption was set aside.  The court ruled that the first instance judge had erred by considering whether leaving the children with their mother was a realistic option. Identifying a “realistic option” should take place at an early stage in proceedings, based on an ordinary evaluation of children’s welfare, before the hearing stage.

In considering the choice for D, the judge had erred in failing to refer to the relevant authority, and in failing to identify the factors for and against fostering or adoption. Unless a judge had a proper grasp of the precise details of the welfare factors in play for a particular child, it would be difficult to make a proper decision.

The judge had erred in considering the welfare checklist in the 1989 Act where the issue was a choice between long-term fostering and adoption; section 1(3) of the checklist was not relevant. The first instance judge had simply considered D’s welfare in the context of adoption failing to evaluate the option of long-term fostering.

Further, the judge had announced his decision that D should be adopted before considering the checklist in section 1 of the 2002 Act. It was not possible for the court to decide on adoption unless and until section 1 of the checklist had been considered.

The judge had erred in dispensing with parental consent to adoption on the basis that it was in D’s best interests: that was the wrong test. The correct test is found under section 52(1)(b) of the 2002 Act which states that the court had to be satisfied that the child’s welfare required consent to be dispensed with. “Required” in that context meant that adoption was necessary for the child’s welfare following an evaluation of its proportionality in accordance with ECHR article 8.

Appeal allowed.

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AB v CD (Jurisdiction: Global Maintenance Orders) [2017] EWHC 3164

High Court: Roberts J.

This is an appeal by the husband against an order made by HHJ Everall QC after a four day financial remedies final hearing. The judge had made an award of a global, annual, index-linked sum of £39,000 for the wife and children, to be paid by way of periodical payments. A further set of periodical payments was to be made to pay the children’s school fees.

The issues on appeal were: whether the judge had jurisdiction to make an order in these terms in respect of the children; whether the quantum of the periodical payments made in respect of the wife’s income claims was fair; and whether the judge’s departure from equality in terms of the capital division was fair.

To determine the appeal Roberts J had regard to FPR 2010 r 30.12(3) in deciding if the decision of the lower court was “wrong”. No reliance was placed on FPR 2010 r 30.12(3)(b).

The first ground of appeal was dismissed. HHJ Everall QC had stated that he lacked the jurisdiction to make an order benefitting exclusively one or more of the children. The order did not contest nor seek to replace the jurisdiction of the statutory agency (Child Maintenance Service). As the order provided for significant spousal support, the jurisdiction of section 23 of the Matrimonial Causes Act 1973 was engaged.  The appeal court found that HHJ Everall QC had dealt in clear terms with his assessment of the wife’s own needs. There was no error on the part of the court.

In considering the second ground of appeal, Roberts J found the judge in the lower court was greatly experienced and had exercised his broad discretion, having considered extensive evidence of the family’s circumstances. He had found that the wife’s employment position was weaker and more vulnerable than that of the husband, and this opinion was adopted by the appeal court.

Finally in terms of the third ground of appeal, Roberts J noted that it was not without significance that the husband’s appeal was being dealt with more than 12 months after the conclusion of the final hearing. The wife had reorganised her domestic and family living arrangements relying on the decisions which HHJ Everall QC made. The decision of the lower court to depart from equality was described as ‘unimpeachable’ and well within the discretion afforded under section 25 of the Matrimonial Causes Act 1973.

Appeal dismissed.

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