Family Law

Family Newsletter Issue 15019.07.17

The 150th edition of the 37 Park Square Family Elerter.

From the 31st July, 37 Park Square Chambers will evolve to become ‘Spire Barristers’. We will become the only specialist Family & Public Law Chambers, both on Circuit and in the North of England. As Spire Barristers, we will continue to follow a dynamic and forward-thinking approach and offer a service that is both highly specialised and personal, to all of our clients, in an increasingly demanding environment.

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Case Updates – Children

M (Children) [2017] EWCA Civ 891

Court of Appeal: Black LJ (judgment); Treacy LJ; and Simon LJ

The father and mother had two children in England and in 2008, they moved to Estonia. In 2013, the mother returned to England with the children. The father applied for a return order pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980. In reliance upon article 13(b), the mother alleged the father had sexually assaulted her oldest child and physically assaulted her second child.

The judge that heard the Hauge application concluded that having regard to the protective measures available in Estonia and the undertakings offered by the father, grave risk/intolerability under article 13(b) was not established. However, the judge found that the children, aged 12 and 13, objected to being returned and declined to order their return to Estonia.

In Estonia, the father had obtained an interim contact order which required him to have contact ‘in the presence of … a competent child welfare authority’. He applied under Regulation 2201/2003 (Brussels IIA) to enforce the order in England. The court held that while the order was enforceable, it could not be enforced because, in the circumstances, no child welfare authority or child care professional was willing to supervise contact and the court could not compel such supervision. This position was supported by the Court of Appeal.

The issue was whether article 48, together with articles 41 and 47 of Brussels IIA, required the court to “make it happen” by compelling the local authority or CAFCASS to provide supervision or by assigning supervision to an organisation such as the Anna Freud Centre or an independent social worker.

The Children Act 1989 (“the Act”) section 16 empowers the courts to make a family assistance order under which it could require a local authority to advise, assist and befriend any person named in it. However, that did not empower the courts to require contact supervision by local authorities. “Advise, assist and befriend” did not translate to “supervise”, even when section 16(4A) was considered. The Court found that neither section 16 nor sections 11A-P of the Act provided the power to order a local authority to supervise contact. Further, it was determined that it would be inappropriate to use the inherent jurisdiction to require the provision of supervision.

Under the Act, it was for local authorities to determine how to fulfil their duties to children in need and in respect of child protection. If it had been intended to place the significant burden of carrying out contact supervision, it would have been spelled out expressly in the Act, which had been amended on several occasions.

The Court of Appeal judge’s unanimously agreed in dismissing the appeal as there was ‘no practical way to enforce the Estonian judgment’ because ‘there is no such power under the Children Act 1989 and that the inherent jurisdiction cannot be used to order an authority to supervise contact.’

Appeal dismissed.

Transcript

 

W v The Secretary of State for the Home Department [2017] EWHC 1733 (Fam)

Family Court: Pauffley J

The applicants, who were Nigerian citizens, were temporarily resident in the UK under a Tier 2 visa with a shared intention to return to Nigeria in 2019. They sought recognition of a Nigerian adoption order of their two year old son (V) who was abroad. The impact would be that they would be treated as his “parents” in immigration law. V had been refused entry to the UK as the child of a points based migrant.

The applicants could not apply for a declaration that V was their adopted child under the Family Law Act 1986 section 57 because he was not domiciled in the UK at the time of the application or habitually resident for one year, nor could they satisfy the requirements of the Adoption and Children Act 2002 section 83 and the Adoptions with a Foreign Element Regulations 2005 regulation 4. The only route available was to apply for recognition of the Nigerian adoption order at common law. It would be sufficient for immigration purposes that the court recognised the foreign adoption.

Applying the criteria in N (A Child), Re [2016] EWHC 3085 (Fam), the evidence showed that the applicants had not relinquished their shared domicile of origin and were therefore domiciled in Nigeria at the time of the adoption. The adoption was in accordance with the requirements of Nigerian law. The Nigerian court had been aware of the fact that the applicants were living in the UK but V was in their care.

“In the care of” was capable of a wide construction and could be interpreted as a requirement that the adopters should arrange all indirect and direct care of the child. There was nothing to suggest that the child had to be physically looked after by the applicants. It was accepted that a Nigerian adoption order, if validly made, represented a complete substitution of adopted family for natural family as would be the case with an adoption order conferred by an English court.

There were no public policy reasons for refusing recognition of the Nigerian adoption order. If the court was wrong in finding that the Nigerian adoption order complied with the requirements of Nigerian law, an alternative formulation was to recognise the adoption at common law because to do otherwise would be to breach V’s and the applicants’ rights under ECHR article 8.

Application granted.

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