Family Law

Family Law Newsletter #5927.04.22

Issue #59 of Spire Barristers' Family Law Newsletter: edited by Gemma Carr and Georgina Dalton; news and Case Reviews by Eleanor Suthern. Eleanor will commence pupillage at Spire Barristers in September 2022.

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.

Jump to: Guidance / Cases Update

Increased funding boost for new families as adoption rates increase

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Social Work England set to change rules on fitness to practice process to improve efficiency

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Financial boost for school social work projects

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Increased applications for Divorce within the first week of the new ‘no-fault’ changes

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Children and Families Act 2014 Select Committee

Joint Head of Chambers Sarah Blackmore alongside Lisa Harker, Director at Nuffield Family Justice Observatory and Hannah Markham QC, Head of the Family Team at 36 Family were invited on Monday 25th April 2022 to give evidence to the Lords Select Committee on the effectiveness and impact of The Children and Families Act 2014.

Watch the Parliament TV recording here.

Guidance / Updates

No-fault divorce enacted.

Marriage and Civil Partnership (Minimum Age) Bill reaches committee stage in House of Lords.

Guidance on the Equality Act sex and gender reassignment provisions published by the Equality and Human Rights Commission.

The Government announces a plan to support male victims of crimes that fall within the violence against women and girls’ space

Case Summaries

XX, YY and Child H (Rev1) [2022] EWFC 10

In the Family Court at Nottingham, heard before Mrs Justice Knowles

The case concerned an application for a care order and placement order for a boy, H, who is 17 months old. The local authority is the applicant. The first respondent is H’s mother, XX and the second respondent is H’s father, YY. The parents are of Romanian origin and live together as a married couple. When XX gave birth to H she appeared distressed and confused, with medical staff being concerned that she may have learning or cognitive difficulties [10]. The court sanctioned the removal of H from XX and he was placed in foster care and has remained there ever since [11].

In his initial statement, the father questioned the jurisdiction of the courts of England and Wales in relation to H because of H’s links with Romania. HHJ Rogers transferred the case to a High Court Judge. The Official Solicitor was also invited to act as the mother’s litigation friend. In February 2021, the Romanian consulate asked the parties to invite the court to consider transferring the case to Romania. The father indicated his wish to apply formally for a transfer pursuant to Art.15 of Council Regulation (EC) No. 2201/2003 (known as BIIA) but later decided that he wished to remain in the United Kingdom and sought permission to withdraw his application.

A cognitive assessment of XX was conducted [24], the results showed among other things, a low level of cognitive ability and a lack of capacity to conduct proceedings. Recommendations were made to have an interpreter, a PAMS assessment, and alterations to be made to the way in which XX gave evidence [25].

Throughout proceedings, YY has sought for H to be placed with either him and XX or with his family [30].  The children’s guardian recommended that returning H to his birth parents would not be safe for H because he may be neglected or even inadvertently physically harmed in their care [35].

The judge addressed the legal position [40]. The Judge referred specifically to cases which involved a parent with learning disabilities including, Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8 and Re D (A Child) (No 3) [2016] EWFC 1 and quoted as follows:

25. In a case such as this it is vitally important always to bear in mind two well-established principles. The first is encapsulated in what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33[2012] 2 FLR 332, para 134:

‘Family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.  However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained (emphasis added)”.

The Judge was also required to consider the provisions of Art.15 of BIIA due to the international element in this case and the fact these proceedings were issued before 31st December 2020. By Art.15, the court may, by way of exception, request that the courts of another member state assume jurisdiction for proceedings or part of proceedings concerning a child if it considers that:

“…the court of the other state would be better placed to hear the case or a specific part thereof and where this is in the best interests of the child.”

The judge outlined a three-stage process. Namely, does the child have a particular connection to another member state? If so, would the court of the other member state be better placed to hear the case or a component of it? If so, would transferring the case to the other member state be in the best interests of the child [45-46]? The judge noted that each stage depends on the other and the key focus is on any benefits of the transfer itself, as outlined in Re N (Children) [2016] UKSC [47]. She also touched on judicial guidance as outlined in Re E (A Child) [2014] EWHC 6 (Fam), which states that Article 15 is permissive not mandatory [48-49]. The judge noted that the conditions for an Article 15 transfer in this case had not been made out [101].

The judge then addressed the evidence in the proceedings [50-75] and

applied the extended welfare checklist set out in s1(4) of the Adoption and Children Act 2002 [76]. The judge noted that she had no doubt whatsoever of the deep love that H’s parents had for him. However, neither parent accepted that there were deficits in XX’s ability to care and adapt to H’s changing needs [81]. The judge stated that despite all the help available from adult services, this would not plug the gap and equip XX to resume H’s care [86].

The judge balanced the matters set out in the welfare checklist [97]. In doing so, she questioned the level of certainty as to H’s parents’ intentions of remaining in the UK or returning to Romania [97]. She also queried the level of support provided, questioning the benefits of a return to Romania whereby there are very significant concerns as to XX’s ability to care for H [98]. Looking at all the aforementioned factors, the judge made a care order and placement order.

Before concluding her judgment, the judge gave guidance which will be helpful in cases where a parent has a learning disability [105]. She suggested the following:

(1) The Good Practice Guidance on Working with Parents with a Learning Disability should be an essential part of the continuation training for social workers and manager [106];

(2) There should be timely referrals to adult social care for a parent with learning difficulties, without a very lengthy gap after a referral [107];

(3) Parents with learning difficulties involved with children’s social care where a child is on a child protection plan should have their own advocate as a priority. A referral for that service should be made as soon as is practicable [108]; and

(4) The support available to a parent with learning difficulties should be distilled into a simple document identifying what is available, how often it is available, timescales for its availability and who is responsible for its delivery. Such a document should be shared with children’s social care (if involved) and discussed with a parent in the presence of their advocate [108].

Full judgment available here: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/10.html

HM Attorney General v Dowie [2022] EWFC 25

In the Family Court, heard before Mr Justice Macdonald

This case concerned an application brought under Part 19 of the FPR 2010 pursuant to FPR r.37.3(3). The Attorney General asserts that Mr Dowie, serving at HMP Preston is in contempt of court for interfering with the administration of justice otherwise than in existing family proceedings. The specific grounds are as follows:

(1) Mr Dowie published information on YouTube by way of videos uploaded on 2 June 2020, 17 June 2020 and 1 July 2020 relating to proceedings which were brought under the Children Act 1989 and heard in private before the Family Court at Preston concluding in 2017, contrary to s.12 of the Administration of Justice Act 1960; and

(2) Mr Dowie published on YouTube by way of videos uploaded by Mr Dowie on 2 June 2020, 17 June 2020 and 1 July 2020 the recording of proceedings heard at the Family Court in Preston concluding in 2017, contrary to s.9(1) of the Contempt of Court Act 1981.

Mr Dowie denies that he is in contempt of court and asserts the following:

(1) At the time he uploaded the videos he was not aware that the family proceedings were heard in private, it being only later that he realised his actions were unlawful;

(2) That his mental state at the time meant that he lacked the requisite intention to act illegally or be reckless in that regard and lacked the requisite intention to impede or prejudice the administration of justice; and

(3) The publication of the videos had no impact on the Children Act proceedings long since concluded and that there is no evidence that the publication in fact undermined the administration of justice more widely.

Addressing the legal position, the judge noted that the process of committal for contempt is a highly technical one and that certain requirements are necessary. He outlined the requirements at [8] and noted that each was satisfied [9].

The judge addressed the factual background of the case. To summarise, Mr Dowie Mr Dowie was involved in private law proceedings under the Children Act 1989 in which Mr Dowie sought child arrangements orders in respect of his two children. At the conclusion of the proceedings, an order pursuant to s91(14) of the Children Act 1989 prohibited Mr Dowie from making an application in respect of the children without the permission of the court for a period of 18 months. A non-molestation order in favour of the mother was made which was later breached multiple times, resulting in a restraining order being imposed [11-12].

Following Mr Dowie’s dissatisfaction that his application had not been given a hearing date, he emailed the Family Court at Preston with a link to a video posted on YouTube [13]. HHJ Bancroft considered the video, prima facie, in breach of the Administration of Justice Act 1960, the Contempt of Court Act 1981 and the Children Act 1989 s.97(2) [14].

Addressing the legal position, the judge referred to the following: Section 9(1) of the Contempt of Court Act 1981, Attorney General v Scarth [2013] EWHC 194 (Admin) and section 12 of the Administration of Justice Act 1960 [23-27]. He noted that not all dissemination of information from proceedings under the Children Act 1989 will contravene the provisions of the 1960 Act, as outlined in P v Liverpool Daily Post and Echo Newspapers PLC [1991] 2 AC 370 and X v Dempster [1999] 1 FLR 894 [28].

The judge then addressed the ground of contempt as established by s.9(1) of the Contempt of Court Act 1981, the ‘strict liability rule’, also referring to section 2 and 3 of the Contempt of Court Act 1981 [34-37]. He referred to Re Hooker [1994] CLY 766 and v Liverpool Daily Post and Echo Newspapers PLC [1991] 2 AC 370 [40]. The judge stated that the following are not defences [37-45]:

(1) Ignorance of the operative legal;

(2) A delay in publication (Attorney General v Pelling [2005] EWHC 414 (Admin)); and

(3)The submission that the relevant actions were carried out in order to expose alleged wrongdoing (HM Attorney General v Patterson [2019] EWHC 1914 (QB)).

Turning to the discussion of the law, the judge stated that he was satisfied of the following [48-61]:

(1) That the Attorney General has proved beyond reasonable doubt that Mr Dowie published information relating to proceedings under the Children Act 1989 before a court sitting in private;

(2) That Mr Dowie knew that the proceedings he recorded were proceedings that were being heard in private;

(3) Mr Dowie’s actions did not fall within the strict liability rule under s.1 of the Contempt of Court Act 1981; and

(4) That Mr Dowie intended to interfere with the due administration of justice.

To conclude his judgment, the judge stated that the Attorney General has proved both charges of contempt and listed the matter for sentencing [62-64].

Full judgment available here: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/25.html

Publications

Jacqueline Thomas QC’s latest practitioner text a ‘Practical Guide to Transitions From Child to Adult Social Care’ is available to purchase via Law Brief Publishing

Order your copy online