Family Law Newsletter #4215.01.21
Issue #42 of Spire Barristers' Family Law Newsletter: edited by Connie Purdy and Taz Irshad; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
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.
Increased self harm and anxiety resulting from the isolation of children moving in to secure careRead More
Guidance / Updates
Cafcass annual report 2019-2020
Family justice system priorities released by Family Justice Board
AK v A London Borough Council, RS & Z (by his children’s guardian)  EWCA Civ 1755
In the Court of Appeal (Civil Division): Lord Justice Floyd, Lord Justice Baker & Lord Justice Arnold
-An appeal against an interim care order in a case of potential parental alienation.
Z, aged 15, was the youngest of 2 children of parents who separated in 2016. Both Z and his older brother, D, aged 19, were on the autistic spectrum. Throughout a long period of private law proceedings concerning the two boys, they have lived with their father and had only limited contact with their mother, who remained in the family home. A child arrangements order directing shared care was previously made, which involved the boys spending alternate months with each parent. However, the order never took effect and Z and D continued to live with their father, having limited contact with their mother. The mother applied for a renewal of the order and in the course of those proceedings, a report from a child psychologist was directed. This report concluded that Z was suffering significant harm due to the care provided by his parents and was alienated from his mother. The children’s guardian submitted that a supervision order was required and public law proceedings ought to be issued.
Another psychological report was obtained, which concluded that Z was ‘extensively alienated from his mother’ and whilst the father denied it, it was likely that he was trying to ‘obstruct the relationship.’ Parenting assessments were subsequently carried out by an independent social worker, who found that the father remained ‘fixated on historical issues about the marital relationship’ and could not separate this from the well-being of his child.
The local authority then made an application for an interim care order, which was granted by the court on the grounds that there were concerns about Z’s relationship with his father, which was affecting his education as a result. Z was subsequently removed from his father’s care and placed with foster carers.
The father appealed in the present hearing, asserting that the interim care order was wrong, procedurally irregular and caused injustice. The grounds on which he relied for this were: (i) the judge failed to conclude all live evidence before deciding whether to make an interim care order, (ii) the process infringed the father’s right to a fair trial, (iii) the judge failed to make findings of fact, (iv) the judge made no or no sufficient enquiries as to the capacity of Z to give instructions and be separately represented. Therefore, the father submitted that these irregularities rendered the decision unjust and breached Articles 6 and 8.
On behalf of the local authority, it was submitted that there was enough evidence before the court for the judge to properly consider proportionality and the balance of harm test in making her decision. Furthermore, the interim care order was not unfair because the interim threshold for making an order was applied and met. Regarding the capacity of Z, the local authority contended that the court was entitled to rely on the assessment made by Z’s solicitor. The mother adopted the local authority’s submissions.
On behalf of the guardian, it was considered that the judge clearly placed great weight on the proportionality of the proposed removal and concluded that it was proportionate. The balance of harm test was met because the guardian argued that there was more of an immediate risk of significant harm to Z if he stayed with his father than if he was removed. The guardian also submitted that the court had no obligations to make any findings of fact at that preliminary stage.
The court concluded that the appeal should be allowed because whilst the decision was not wrong, there were procedural irregularities. Firstly, it was decided that there were irregularities in the consideration of Z’s competence to give instructions. S.31 Children Act applied, which implicitly necessitates instructions be taken directly from the guardian unless the child has sufficient understanding give instructions themselves. The court referenced the case of Re W (A child)  EWCA Civ 1051 and concluded that Black LJ’s judgment in that case was relevant because it dictated that what ‘sufficient understanding’ means will be fact-sensitive. Applied to the present case, the court concluded that more steps should have been taken to facilitate Z’s participation in proceedings.
Secondly, fairness required the father to have been given the opportunity to give evidence prior to any decision to remove Z from his care. Thirdly, the interim care order was wrongly made on the basis of a care plan which involved Z’s placement with foster carers with a long-term view to placing him with his mother. At paragraph 50, the court noted that ‘there remain real doubts as to whether Z will ever be reconciled with his mother’ and therefore the care plan should not have been approved by the court.
The court therefore concluded that the interim care order be set aside and the application for such an order be reheard by a different judge in the interests of fairness. A short-term interim care order was made to last only until the next hearing and to be on the basis of a revised interim care plan filed by the local authority. It was asserted that it was not in Z’s interests to return to his father because there was a ‘real possibility that he may be removed again following the rehearing.’
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1755.html
W (Children: Reopening/Recusal)  EWCA Civ 1685
In the Court of Appeal (Civil Division): Lady Justice King, Lord Justice Peter Jackson & Lord Justice Phillips
-An application to reopen findings of fact and judicial recusal for apparent bias.
The appeal came about within private family law proceedings concerning two children. The parents had lived together for 12 years before separating. Previously, proceedings had been dealt with through mediation and then by way of an order for the children to live with the mother and see their father according to a timetable. The mother made serious allegations concerning domestic violence apparently perpetrated by the father towards her and his subsequent girlfriend (LM).
In June 2018, the father committed a serious assault on another girlfriend (HH) and received a suspended sentence and restraining order from the criminal courts. He then made another application to the family court to enforce the previous order made. The mother made allegations in response about abusive, violent and aggressive behaviour. This resulted in a fact-finding hearing in relation to 9 alleged incidents. Both parents gave evidence.
A number of findings were made by the District Judge hearing the case including; following the late return of the children to the mother, the father shut the mother’s head in between the front door and the frame during a heated argument; the father assaulted LM whilst the children were in the house; the father carried out a ‘prolonged assault’ on LM; during an argument between the father and HH, the father head-butted HH; the father forcefully entered HH’s home against her wishes and verbally and physically abused her in the presence of her daughter, aged 7. The father’s criminal conviction arose out of the final incident. These findings have not been subject to any previous appeals. Following this hearing, the judge gave directions for further evidence for a final welfare hearing to take place in front of her.
When the final hearing came about, it was in front of a Recorder, not the previous District Judge. The District Judge, when contacted, said she had recused herself from the case because she considered there to be a family connection between herself and one of the parties. This connection was later disclosed to be that the District Judge’s son and the mother were members of the same hockey club and were connected via social media. The District Judge was not aware of the connection until recently. Whilst there was no suggestion of actual bias, on appeal by the father, it was held that the test of fairness had been infringed and therefore for justice to be seen to be done, the findings had to be set aside to be revisited.
On appeal of that decision, on behalf of the mother, it was submitted that the judge was wrong to conclude any apparent bias, there had been no proper reasons given for the decision, the procedure adopted by the previous judge was flawed and unfair, the judge misdirected themselves as to the legal test for apparent bias, and the judge failed to consider or apply the legal test for reopening of findings.
The father responded that his reasons for wanting to reopen the application were because he may not have presented his case correctly at the fact-finding hearing, rather than any concerns held over the District Judge’s conduct.
The court in the present case referenced the case of Ladd v Marshall  1 WLR 1489, in which it was held that any application to reopen on the basis of new information should be considered in light of the need to balance public policy with welfare decisions; all relevant matters should be considered; and the court must explore whether there is a reason to think a rehearing will result in a different conclusion. At paragraph 28, the court held that ‘it should be emphasised that the process of reopening is only to be embarked upon where the application presents genuine new information. It is not a vehicle for litigants to cast doubt on findings that they do not like or a substitute for an appeal.’
The court then made clear the need for a fair hearing by an impartial tribunal must always take place. The definition of apparent bias was given as being ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.’
It was concluded that the decision to set aside all of the findings on the basis of apparent bias on the part of the District Judge was both wrong and unfair because; the judge was not in a position to take a decision about apparent bias because the reasons for the recusal were not considered properly; the judge was mistaken in stating that the test is whether an observer would be concerned that justice had not been seen to be done, instead the test is whether there was a real possibility that the judge was biased; and there was no sound reasoning given by the judge to conclude that the District Judge’s findings were affected by apparent bias.
Therefore, the decision to set aside all of the original findings was considered not to stand and the findings were restored. On the issue of the recusal, because the reason for the recusal was known at that stage and neither party wished for the District Judge to be involved again, that matter was considered closed. Regarding the father’s application for the reopening of the findings against LM only, the court held that there was no reason to believe that a rehearing would produce any different outcome. Therefore, the father’s application was dismissed.
Finally, the court directed that the proceedings be remitted for a welfare decision to be taken on the basis of the original findings of fact.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1685.html