Family Law Newsletter #0710.01.18
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. You can email us to receive the latest newsletter and give us any feedback.
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Court of Protection: New Practice Directions
New Practice Directions effective from 1 December 2017.Read More
Calls for better support for foster carers and children in care
The House of Commons Education Committee concludes in its latest reportRead More
Transgender Jewish woman wins ground-breaking appeal
Appeal court says ruling did not address issues of human rights and discrimination.Read More
In the matter of M (Children)  EWCA Civ 2164
Court of Appeal: Sir James Munby PFD (judgment), Arden LJ, and Singh LJ
The father is transgender and left the family home in June 2015 to live as a transgender person. She now lives as a woman. For that reason alone, the father is shunned by the North Manchester Charedi Jewish community (the community), and because she is transgender the children face ostracism by the community if they have direct contact with her.
The judge held that the harm to the children of ostracism meant there could be no direct contact, despite the harm that would be caused by the lack of a relationship with their father. She appealed against a decision refusing to order direct contact with her five children and instead ordering indirect contact on three grounds.
The three grounds of appeal were that: in his careful survey of the wide constellation of cultural and religious concerns, the judge ultimately lost sight of the paramountcy principle; secondly, the judge failed to evaluate why indirect contact and the giving of narratives to the children about their father’s transgender status was in the children’s best interests and direct contact was not; and finally, the judge failed to exhaust the court’s powers to attempt to make direct contact work. The Court of Appeal allowed the appeal with Sir James Munby PFD giving the judgment.
The function of the judge in such cases was to act as the “judicial reasonable parent”, judging the child’s welfare by the standards of reasonable men and women, having regard to the ever-changing nature of the world, including changes in social attitudes, and remembering that the reasonable man or woman was receptive to change, broad-minded, tolerant, easy-going and slow to condemn. Society’s law required people to be treated equally and their human rights to be respected. Judges had a positive duty to promote contact; they had to grapple with all the alternatives before abandoning hope of achieving contact. The judge’s decision could be read as implying that the more enmeshed a child was in a narrow way of life, and the more intransigent the adults were, the more hamstrung the court would be. The approach should not be any different merely because religious belief was in play.
The first instance judge had not stepped back and considered several pertinent questions including how his conclusion could be accommodated with his role as judicial reasonable parent, whether it was permissible given that it was dictated by community practices involving discrimination, and how it could meet the children’s medium or long-term interests. The judge had not addressed head-on the human rights and discrimination issues. He had not explained why indirect contact was nevertheless feasible. He had given up on direct contact too easily, deciding the question without directing a single attempt to try and make it work.
Under ECHR Article 9(2), the state could impose a restriction on the freedom to manifest one’s religion where the restriction was necessary in a democratic society. A democratic society was characterised by pluralism and tolerance. A court could direct contact with children, even if that did not fully respect the community’s religious beliefs and practices, if those beliefs were not consistent with the values of the democratic society.
L-S (A Child)  EWCA Civ 2177
Court of Appeal: McFarlane LJ (judgment), McCombe LJ, and Sharp LJ
The mother’s appeal related to proceedings brought under The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) with respect to a boy (M) who is 21 months old.
The mother had been habitually resident in the UK but moved to the US where she married M’s father. She returned to the UK whilst 28 weeks pregnant to access maternity care. When the child was four weeks old, she returned to the US and the father had yet again moved home to a different US state. The mother and M lived with the father for the next two months, until the mother removed M back to England on a one-way air ticket without telling the father of her intention.
The father commenced divorce proceedings. They entered into a custody agreement, with the US court’s approval: the mother had full custody, with the father having visitation “over summer break”. A few weeks later the father left voicemails for the child, explaining his intention “to bring you back to your family”. The final divorce was issued. The father issued an application under the Convention.
The three central issues in the appeal relate to the child’s habitual residence, whether or not his father had subsequently acquiesced if he had been wrongfully removed from the USA to England, and whether the circumstances are sufficient to engage Article 13(b) of the Convention by establishing that there is a grave risk that his return to the USA would “place the child in an intolerable situation.”
The Court of Appeal allowed the appeal with McFarlane LJ giving the leading judgment. In terms of habitual residence, it had been open to the judge to find that after the birth, the mother had planned to return to the US. The alternative finding had been that on her return to the USA, she reverted to being habitually resident there. Although the evidence that she had never unpacked her suitcase did not sit easily with the conclusion that her life in the US was not temporary, more cogent evidence would be needed to overturn the decision. The father had always been habitually resident there, which was relevant. As for the child’s residence, the mother’s submissions relied on her case that she had been habitually resident in England before returning to the US. The judge had rejected that case, so the appeal on habitual residence was an unsustainable attempt to appeal on the facts.
In considering acquiescence, the judge had referred to the exception regarding conduct which misled one parent into thinking that the other had acquiesced to removal. It could be established where the wronged parent had signed a formal agreement that the child would remain in the country to which he had been abducted. She had not referred to the custody agreement’s terms. The question was whether it sufficiently clearly established that the father had unequivocally and formally accepted that the child would remain in the UK. An agreement could amount to a formal agreement to that effect, even without saying it in terms. The agreement had been entered into when the child’s future was a live issue. The father did not seek return prior to signing it. It gave full custody to the mother when both parents knew she intended to stay in the UK, with only summer visitation rights for the father, strongly suggesting the child would not be in the US at other times. The agreement, which the father had had approved by a court, was a sufficiently clear and unequivocal statement of acquiescence. The subsequent voicemails did not withdraw or neutralise the agreement.
In terms of Article 13(b), the House of Lords had plainly held that settlement of a substantial time was a factor in assessing intolerability. If the first instance judge had held the contrary view, she was in error. However, she was correct to be cautious about the extent to which the passage of time could establish an intolerable situation. She had expressly taken into account each relevant factor. While she may have underestimated the weight due to the child having been in the UK for all but two months of his life, the overall evaluation was not wrong. Living in the US in straitened circumstances, with a precarious immigration status, would adversely impact the mother’s ability to care for the child, but it was not an intolerable situation.
Appeal allowed on the acquiescence issue.