Costs in Children Cases: Further Guidance from the Supreme Court

The Supreme Court has confirmed that the usual 'no order' rule in Children cases applies on appeal as much as first instance decisions. The exceptions to that rule are
(a) where a party's conduct has been reprehensible or
(b) where a party's conduct is beyond the band of what is reasonable
The Supreme Court quashed a costs order against a local authority following their unsuccessful opposition to an appeal by a parent in care proceedings.

Baroness Hale said the distinction between first instance and appeal is simply that after a first instance judgment a party will be better able to see what the court considered relevant and thus be better able to judge whether further pursuit of their case is 'reasonable'.



http://www.familylaw.co.uk/system/redactor_assets/documents/2801/In_the_matter_of_S__A_Child__2015_UKSC_20.pdf

Child's Objections and the Hague Convention

Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal)[2015] EWCA Civ 26.

The Court of Appeal has given definitive guidance on the child's objections defence in an effort to bring clarity to an area which has been dogged by controversy in recent years. 

In particular the Court of Appeal confirms that considerations of the rationality of any objection or the extent of influence is only to be considered at the discretion and not the 'gateway' stage. 
69 ‘In the light of all of this, the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach to the gateway stage should be abandoned.’ 

 71 ‘.......It would be unwise of me to attempt to expand or improve upon the list in §46 of Re M of the sort of factors that are relevant at that stage, although I would emphasise that I would not view that list as exhaustive because it is difficult to predict what will weigh in the balance in a particular case. The factors do not revolve only around the child's objections, as is apparent. The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them on the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the Hague Convention considerations. It must at all times be borne in mind that the Hague Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said at §42 of Re M, "[t]he message must go out to potential abductors that there are no safe havens among contracting states".

Article 12 BIIR - Prorogation - Court of Justice of the European Union hand down decision in E-v-B

E-v-B; Case C-436/13
On 1st October 2014 the Court of Justice of the European Union handed down their decision on this Preliminary Reference from the Court of Appeal of England and Wales. The questions posed by the Court of Appeal were

(1)   Where there has been a prorogation of the jurisdiction of a court of a Member State in relation to matters of parental responsibility pursuant to Article 12(3) of [Regulation No 2201/2003], does that prorogation of jurisdiction only continue until there has been a final judgment in those proceedings or does it continue even after the making of a final judgment?

(2)    Does Article 15 of [Regulation No 2201/2003] allow the courts of a Member State to transfer a jurisdiction in circumstances where there are no current proceedings concerning the child?’

The CJEU did not answer the second question.

The answer to the first question is

Jurisdiction in matters of parental responsibility which has been prorogued, under Article 12(3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, in favour of a court of a Member State before which proceedings have been brought by mutual agreement by the holders of parental responsibility ceases following a final judgment in those proceedings.

So prorogation can only occur in relation to a particular application and ends when those proceedings conclude.  In reaching this conclusion the CJEU made the following points
(a) in considering issues of jurisdiction we must look at the situation at the time the court is 'seised'; which means when the document institutin the proceedings is lodged. [#38]
(b) the parties consent under Article 12(3) must be assessed at the time the court is seised. [#39] {the inference in the paragraph is that the consent is given contemporaneous with seising and in relation that application; rather than an advance and general consent. There is a potential tension with the approach of the Supreme Court in Re I [2010] 1 FLR 361 which considered advance consent.}
(c) that under Articles 8 and  12(3) jurisdiction must be established in relation to each specific case  which implies it does not continue after the proceedings end [#40]
(d) Jurisdiction must be determined in the light of the best interests of the child, which is usually linked to habitual residence/proximity [#44/5] but under Article 12(3) may be different.
(e) It could not be assumed that prorogation would be in the child's best interests after proceedings conclude and the best interests of the child must be reviewed in each specific case of whether the prorogation sought is consistent with those best interests.
(f) Thus prorogation can only take place for a specific case and ends with the conclusion of that case.


As will be readily apparent this creates a significant difficulty in seeking to retain jurisdiction. Most obviously this might be sought in temporary leave to remove cases (not holidays but sabbaticals/extended work placements etc).
The practise of asserting that habitual residence will be retained during such sabbaticals is not consistent with the Supreme Court Trilogy of cases on habitual residence [See 'The Supreme Court trilogy: a new habitual residence rises! David Williams QC  International Family Law June 2014 83]

The approach of the CJEU would also seem to prevent the parties stating that they provide their unequivocal consent to the English jurisdiction determining any future application concerning the child because the consent has to be at the time the court is seised of a specific case. Whilst it could be argued that an advance and general consent incorporates (unless withdrawn prior to the issue of specific procedings) consent to anything at any time this does not sit easily with the CJEU 'specific case' approach.

Furthermore the parties could not determine that it would be in the child's best interests to prorogue. That also has to be looked at on a specific case basis.


Within the EU this may not seem to be a problem - although not all courts operate to the same procedural, legal or cultural expectations - it will still act as a brake on temporary relocations.

In respect of moves to non-EU states it presents a considerably greater problem. The UKSC Trilogy cases confirm that the jurisdictional provisions of BIIR apply in relation to the establishment of jurisdiciton in England even if the competing jurisdiction is non-EU. So the English court always has to apply BIIR to assessing it's own jurisdiction. That means that even in a 3 year relocation to Dubai the court could not - acting consistently with E-v-B - accept an order which purported to prorogue generally and indefinitely to England.

The only way around such problems would seem to be by not making a final order on the application and thus retaining jurisdiction as a result of the proceedings not being finally concluded. There is a problem with this on temporary relocation cases though because the decision in Re G (A Child) [2014] EWCA Civ 680 (see Blogpost on 29.7.14) confirms that an order granting temporary leave to remove is a final order so as to conclude those proceedings.

One could circumvent this by issuing a CAO application, making an interim CAO order with a review on return or earlier application but this is  in many cases will just be artifice for the purposes of retaining jurisdiciton rather than a real reflection of the need for an interim order in the child's welfare interests.

At present there seems no obvious solution. All ideas welcome.

David Williams QC

[NB I appeared on behalf of the Appellant Father together with Michael Gration of 4PB]

Boosting Judicial Diversity: Lord Neuberger

The Constitutional Affairs Group of the Society of Labour Lawyers advocated for a career judiciary way back in their response to the DCA Consultation on Judicial Diversity in 2005. It is good to see that 9 years on Lord Neuberger is promoting the issue. It is not about quota's or being PC it is about the community having faith in the justice system and justice being dispensed by a group of people who reflect the community they serve.
If you would like a copy of that response let me know.

Declarations and Human Rights in Abduction Cases

L v C

[2014] EWFC 1; [2014] WLR (D) 188

Fam Ct: Peter Jackson J: 2 May 2014

There was nothing explicit in the Human Rights Act 1998 to state that declarations could not be granted in the absence of proceedings brought under section 7 and there was no good reason to infer such a restriction. The terms of the 1998 Act did not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and such an application could be approached in the same manner as any other application for a declaration.

(1) granting an application by Ms L for a declaration that she shared family life within the meaning of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms with G, the child, at the point at which G departed from England in January 2014,
(2) refusing to make a declaration that Ms L was acting as G’s “psychological parent” at that time, and
(3) dismissing Ms L’s applications for a residence order and a contact order under section 8 of the Children Act 1989 on the grounds that at the time Ms L’s proceedings were issued G was not habitually resident in England and Wales. The respondent, Ms C, G’s biological mother, opposed the applications on the grounds that the English court lacked jurisdiction.

Although the court did not have jurisdiction to make substantive orders over the child the court did have jurisdiction to make Declarations which might assist in the progress of applications made elsewhere.

Without Prejudice

BE-v-DE [2014] EWHC 2318 (Fam)

Bodey J summarises the law on without prejudice as follows:

THE LAW

20. I have been provided with a lever arch file of 17 authorities. I have not however gleaned that there is any, or any significant, disagreement between counsel about the principles to be applied. I can therefore refer essentially to Phipson on Evidence 18^th edition. The starting-point is that written or oral communications made in a genuine attempt to settle a dispute between the parties will not generally be admitted into evidence: Phipson paras.24-09 and 24-13. The policy is that parties should be encouraged to settle their disputes without resort to litigation and such that they can speak freely: Cutts v. Head [1984] Ch 290 at 306 per Oliver LJ. A first unsolicited letter offering settlement or negotiations marked 'without prejudice' will as a matter of policy therefore be protected; and so it is that the without prejudice principle is said to rest partly (a) on that public policy just mentioned and partly (b) on an express or implied agreement between the parties that they will not later rely in an open context on the contents of settlement negotiations. There has to be a bona fide attempt to resolve a dispute, in the absence of which the without prejudice principle is not engaged: Phipson 24-11. As Mr. Bishop QC says, the words "without prejudice" are not essential, although clearly persuasive. When they are not used, the occasion or document may still be found to be without prejudice "...if it is clear from the surrounding circumstances that the parties were seeking to compromise the action": Rush & Tompkins v. GLC [1989] 1 AC 1280 at 1299 per Lord Griffiths. At para.24-13(d) Phipson puts it in this way:
    
    

    "Even if the words 'without prejudice' were not used, the without prejudice principle will still apply if the circumstances, judged objectively, were such that it can be assumed to have been intended that the communications in question, being made with a view to settlement, be not admitted in evidence."

    
    
21. There is a modest and, in my judgment, obiter suggestion in South Shropshire DC v. Amos [1986] 1 WLR 1271 at 1277 by Parker LJ that the applicable test might be subjective, i.e. that the subjective intent of the person making the proposal - here the husband – is critical as to whether the circumstances of an alleged negotiation showed it to be without prejudice. I read the relevant sentence in South Shropshire as being said in the context of the particular facts of that case. Further, in Pearson Education Ltd. v. Prentice Hall India Private Ltd. [2005] EWHC 636, Crane J declined to follow any such suggestion as may be read in South Shropshire, noting that it would be contrary to the tenets of contractual construction and would lead to the undesirable need for oral evidence and cross-examination on interlocutory applications (such as this one before me). He cited from a decision of Laddie J in Schering Corporation v. CIPLA Ltd. and Neolab Ltd. [2004] EWHC 2587 where Laddie J said at para.17 of his Judgment:
    
    

    "... Can the document be regarded as a negotiating document? If so, and if it is clear that it is intended by the author to be treated as without prejudice, it must be covered by the privilege."

    
    But he, Crane J, further noted that Laddie J had earlier said at para.14 of his judgment:
    
    

    "The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient." [Emphasis added].

    
    
22. Accordingly, in para.22 of his judgment in Pearson, Crane J said that in his view the test is an objective one. I respectfully agree. So too do the editors of Phipson, when they say that the question "... must surely be determined objectively": para.24-14. That is therefore the test which I propose to apply in determining this case. This hearing has in any event not been set up for any examination of the parties' respective subjective views of what was happening or intended to happen on 22^nd April 2013 (ie according to the husband, a start of negotiations by way of his giving the wife 'the document', as his offer; and, according to the wife, a cynical ambush to bully and coerce her into conceding the country X property regime and giving up many of her rights). I therefore have to and shall determine the issue on the paper evidence of the parties, which will almost always be the appropriate approach in any event, if the proper test is an objective one.

Inchoate Rights of Custody: Supreme Court considers the rights of carers

RE K [2014] UKSC 29 The key issue in the case was whether at the time Karl was removed from Lithuania and taken to Northern Ireland his grand mother had ‘rights of custody’ over him so as to make the kidnapping (for that is what it was) of him wrongful (i.e. a breach of the grandmother’s legal rights of custody over him). It is clear that underpinning the analysis was both a moral and philosophical rationale that ‘real world effects’ should take priority over strict legal rights. The decision is, unsurprisingly given that Baronness Hale wrote the judgment, firmly rooted in child welfare and pragmatism. The decision is a majority of 4-1. The majority concluded that where the care of a child is wholly delegated to a third party another by the holder/s of parental responsibility that the third party will acquire rights of custody over the child. They identified 5 criteria which would be required to confer such rights. (a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. (b) They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up. They would not then have the rights normally associated with looking after the child. (c) That person or persons must have either abandoned the child or delegated his primary care to them. (d) There must be some form of legal or official recognition of their position in the country of habitual residence. This is to distinguish those whose care of the child is lawful from those whose care is not lawful. Examples might be the payment of state child-related benefits or parental maintenance for the child. (e) there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long term future of the child could be determined in those courts in accordance with his best interests, and not by the pre-emptive strike of abduction. The justices reached this conclusion by asserting that a distinction is to be drawn between the ‘domestic’ question (namely what rights did the Applicant have under the laws of the country of habitual residence at the time of removal) and the ‘Convention’ question of whether the factual situation resulted in inchoate rights which amounted to ‘right of custody’ for the purposes of the Hague Convention. The 1980 Hague Convention covers rights of custody acquired by operation of law, by court order or by agreement having legal effect under the laws of the country where the child was habitually resident immediately before removal. The justices concluded that ‘inchoate’ rights might fall into the category of an agreement having legal effect. The answer is both yes and no. It has long been a feature of English law (both domestic and Convention) that ‘rights of custody’ can be acquired by a person to whom exclusive care of a child has been delegated by the holder/s of PR. It has long been clear that those sharing the care of a child with the holder/s of PR do NOT acquire inchoate rights. So in that sense this decision does not add much , save to set out some criteria by which the court can evaluate whether inchoate rights have been acquired. The answer is also no because the decision was reached in the face of evidence from Lithuania which made it clear that the Lithuanian authorities did not regard the grandmother as having any rights of custody under Lithuanian law. The decision does place England is head-on conflict with many other jurisdictions who delineate far more clearly between legal and moral rights. The civil law jurisdictions in the EU will find it hard to understand, still less accept the sort of approach the Supreme Court took. Lord Wilson took an approach and delivered a judgment which lawyers will find far easier to understand and accept; based as it was, so firmly in black letter law. The decision of the majority is consistent with the approach the English courts have taken over many years but is difficult to square with the previous appellate decisions in Hunter-v-Murrow (CA) and Re D (HL). The critical difficulty and where the Supreme Court decision may have a dangerous side effect is that it may lull lawyers and others into a false sense of security in thinking that a client has ‘rights of custody’ when for the majority of Hague countries, in particular the EU, they won’t be so viewed. EU countries struggle to accept that a prohibited steps order amounts to a right of custody and still less are they likely to accept that ‘inchoate’ rights of custody are acquired by caring for a child. If this decision results in lawyers or carers delaying an application to court for PR or a CAP it could have lasting consequences for the child. A local authority to whom a parent has delegated care under section 20 CA 1989 will almost certainly not have rights of custody for most other countries, ditto grand-parents with sole and exclusive care. The advice MUST be to apply to court as soon as possible to secure an order which actually gives PR under the Children Act 1989. If there is a threat of sudden removal the MIAM’s exemption should be applied and an immediate application made.