Costs Allowances in Abduction and Relocation Cases

Legal Services Orders and Costs Allowances. In England the possibility of securing funds from the other party to pay for litigation against that party have expanded significantly in recent years as a result of statutory and judge-led developments. In part this has been to fill the void created by the reduction in availability of legal aid but also has been a natural evolution from the ‘sharing’ principles and from a greater judicial willingness to be more flexible in interpreting the provisions of Schedule 1. A return perhaps to unlocking the principles of equity which lie captive in the judicial breast. Legal services orders are available under the MCA 1973 and costs allowances can be applied for under Schedule 1 Children Act 1989. Recent examples include Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014) - this contains a very helpful analysis of the criteria and explores the possibility that such orders might be available in Hague Convention cases. Re PG AND TW (No 1) (Child: Financial Provision: Legal Funding) [2012] EWHC 1892 (Fam)(Theis J; 4 May 2012) For a useful overview of both, see the articles by David Burrows in Family Law: ‘Costs allowances and legal services orders: MCA 1973, s 22ZAQ and 22ZB' [2013] Fam Law 318 and ‘Costs allowances in family proceedings' [2013] Fam Law 457).

Lament to Legal Aid in Hague Convention cases AND a solution?

In Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013)Holman J highlights the inequality in provision of legal aid to Applicants and Respondents in Hague Convention Cases. Three months later Mostyn J considered the possibility that costs allowances might be available to plug that gap: Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014). Although he did not make an order in that case he rejected the submission that such orders were inimical to the Hague summary process. Watch this space.

Transition to Child Arrangement orders

A question on everyone's lips (well that is a slight exaggeration) for the 22nd April 2014 is what happens to old residence and contact orders? The relevant statutory instrument on the transitional provisions is: The Children and Families Act 2014 (Transitional Provisions) Order 2014 which can be found here: http://www.legislation.gov.uk/uksi/2014/1042/contents/made. Essentially Article 6 provides that any old residence order or contact order is deemed to become a child arrangements order. The holder of a residence order will then be the person ‘with whom the child is to live’ under the CAO, and the holder of a contact order will then be the person ‘with whom the child is to spend time/otherwise have contact’ under the CAO. The full provision can be found at Article 6 and in the rest of the instrument. Many thanks to Julia Townend at 4PB for clarifying this.

Prorogation and Transfer of Jurisdiction: Preliminary Reference to CJEU C-436/13

The CJEU has set a hearing date of 15th May 2014 for this Preliminary Reference. The Court is being asked to consider whether a prorogation under Article 12 endures for the child's minority or whether it lasts only for the applicaiton/proceedings in connection with which the prorogation was made. It is also considering whether there need to be proceedings in place for an Article 15 transfer of jurisdiction to be effected. The reference was made by the Court of Appeal in connection with the father's appeal from the decision of Cobb J in Re S (Jurisdiction: Prorogation) [2013] EWHC 647 (Fam) [2013] 2 FLR 1584 [2013] 2 FLR 1584. I am appearing with Michael Gration on behalf of the father. Henry Setright QC and Edward Devereux are appearing for the Respondent.

Legal Aid for committal proceedings

Munby P granted criminal legal aid to the alleged contemnor in respect of committal proceedings within Hague Convention proceedings on 6th March 2014. In doing so he referred back to his earlier judgment in Chelmsford County Court-v-Ramet [2014] EWHC 56 (Fam) delivered on 22 January 2014 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/56.html&query=Ramet&method=boolean In that case he said "I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says: "The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) – … (v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights." The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings." It is therefore possible to obtain criminal legal aid for an alleged contemnor even if they are not eligible on means or merits or scope for the main family proceedings in connection with which the alleged contempt occurred. Anyone representing an Applicant on committal should draw this to the attention of the alleged contemnor and of the court to ensure that the committal process is Article 6 compliant. If that is not done there must be a risk that any contempt finding will be susceptible to appeal on the basis of serious procedural irregularity within CPR 52.11(3).

Radical Islam and Care Cases

The issue of whether the personal politics or religion of a parent might form the basis for the removal of a child from, their care has ben considered by the courts in recent times. It seems to me that it is only where those religious or other views translate into views or behaviour in the child which manifest themselves in the child’s daily life such that the child’s functioning in her school/community is seriously impaired so as amount to a significant impairment of development that the threshold would be met. Or perhaps where a real and identifiable risk of the child being radicalised to the extent that they will expose themselves or be exposed to the risks of involvement in acts of violence that the threshold could be crossed. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, Hedley J said “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”; and that “significant harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it” but that “it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy”. The Supreme Court agreed with Frank Feehan QC that “many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.” A child can only be removed if the court is satisfied that the child is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. (in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649) By section 31(9), “harm” means “ill-treatment or the impairment of health or development...” and “development” includes “emotional...development”. The word “significant” is not defined but section 31(10) Children Act 1989 provides that “Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.” So whereas the concept of “ill-treatment” is absolute, the concept of “impairment of health or development” is relative to the health or development which could reasonably be expected of a similar child. In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Hale LJ said, at para 28, that “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not”. It is difficult to see how radicalisation per se could be ill-treatment. It could be that a sufficient degree of radicalisation would impair the child’s ability to function in his or her society and one could see how specific risks or harm could arise if the radicalisation progressed to involvement in acts which involved the use of or exposure to a risk of violence. Unless it reaches that level of risk or of harm though it would seem that removal of children would simply be a form of religious discrimination and societal conditioning. I don’t subscribe to the view that our society is so fragile that we cannot cope with radical religious or other views nor that a healthy democracy should contemplate interference in families whose views we disagree with.

Latest Migration Statistics

The latest provisional data from the Office for National Statistics show Net migration to the UK rose to 212,000 in the year to September 2013. Some 532,000 people immigrated to the UK in the year ending September, up from the 497,000 people who arrived during the previous year, while 320,000 emigrants left the country, down from the 343,000 the previous year. The Office for National Statistics said the net flow - the numbers moving here minus the numbers leaving the UK - rose from 154,000 in the previous year. The increase has been driven by a big increase in the number of European Union citizens coming to Britain. There was an increase in new arrivals from Poland, Spain, Italy and Portugal. The number of EU citizens arriving in the UK rose to 209,000 from 149,000 the previous year, the ONS said. But immigration of non-EU citizens decreased to 244,000 in the period, down from 269,000 the previous year. In 2012 there was a net flow of 176,000 Long-Term migrants to the UK in the year ending December 2012. 497,000 people immigrated to the UK and 321,000 emigrants left the UK and the previous falls seen since June 2011 have gone into reverse. Immigration of New Commonwealth citizens decreased significantly from 151,000 in the year ending December 2011 to 97,000. Of the 497,000 arrivals, 179,000 immigrants came to the UK for work related reasons and 181,000 people migrated away from the UK for work related reasons The number of visas issued, excluding visitor and transit visas, was 501,840 in the year ending June 2013. 562,000 National Insurance numbers (NINos) were allocated to non-UK nationals in the year to March 2013, a decrease of 6% on the year to March 2012. In 2011 Long-Term migration statistics show that 566,000 people immigrated to the UK in 2011 with 351,000 people emigrating and net migration was 215,000. In 2012 nearly half of all babies were born outside marriage/civil partnership (47.5%), compared with 47.2% in 2011 and 40.6% in 2002. The percentage of live births in England and Wales to mothers born outside the UK continued to rise in 2012, reaching 25.9% compared with 25.5% in 2011 and 17.7% in 2002. The proportion of births to mothers born outside the UK has increased every year since 1990 when it was 11.6%. Not surprisingly these figures are mirrored in the available statistics for court cases with an international element. The Annual Report of the Office of the Head of International Family Justice provides a real insight into the activities of the Office of the International Liaison Judge together with an evaluation of developments and a statistical analysis of the cases it has dealt with. The central message is the continually growing need for international judicial liaison as global families increase and the undoubted benefits that this can bring in resolving litigation. The 2012 report shows that, a. In 2012 there was a 40.5% rise in applications for assistance to 253. The requests for assistance involved 71 separate jurisdictions. This included liaison with Sudan. Of the 71 jurisdictions involved tangible assistance was given in 46. Given only 2 countries (England and Netherlands) have a permanent office as opposed to a judge alone this is very positive. b. 50% of all the cases were intra-European, 14% the Americas and Carribean, 10% Africa, 15% Middle East and Asia and 6% Australia/NZ. Within the EU the largest number of applications was in respect of Poland (14) but as Poland has not appointed a sitting judge as the IHLJ or EJN judge (same for Italy) this has impeded liaison. France, Germany, Spain and Ireland also generated significant numbers of requests. Liaison with the USA has proved easy to facilitate as they are accustomed to inter-State liaison. Good links have been made with Kenya, Nigeria and with a number of South American countries. c. The office has dealt with queries relating to public and private law children cases, relocation, inter-country adoptions, surrogacy, forced marriage and financial remedy cases as well as abductions. d. Of the requests most were 'outgoing' where the English courts were seeking assistance from another jurisdiction. Only 11% were incoming requests from other countries seeking information about our systems. e. The Pakistan Protocol has been used in a nearly 200 cases since 2003, some to achieve returns many as a protective measure in temporary leave to remove 'holiday' cases. The Cairo Declaration has not borne the fruit that the Pakistan Protocol has. The figures from the International Child Abduction and Contact Unit also show a long term upward trend of applications made in respect of in-coming and out-going applications in respect of ‘abducted children’. Applications under the 1980 Hague increased by 100% in the decade to 2008 and increased further in 2011 to 249 applications, compared with 200 applications in 2008, and 142 in 2003.