Passports and other orders against third parties: coercion and legitimate use.

In the matter of B (A Child) [2014] EWCA Civ 814 Many of the Family Division judges have expressed reservations over recent years about the way in which the powers of the court, in particular those under the inherent jurisdiction, have been deployed without sufficient consideration to the often draconian impact they have on the rights of individuals who have not been heard and who may be entirely innocent of any role in the abduction: KY v DD (injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200 and B v A [2012] EWHC 3127 (Fam), [2012] All ER (D) 87 (Dec), per Charles J.. Im this case the President identifies the question of general public importance, namely to what extent can a court compel third parties without parental responsibility to take steps to assist in the return of an abducted child, but only gives a partial answer. On the facts of the case he did not need to give the issue a complete review and restatement of the principles; indeed he specifically refrained from doing so and expressed himself in terms which did not seek to place strict parameters around the courts powers. That being said Munby P did make some very clear statements about certain aspects of the use of the supposedly unlimited powers of the inherent jurisdiction. In particular he made very clear that the court cannot deploy its powers as a means of placing pressure on relatives or friends in order to coerce them to assist or to coerce the abducting parent into taking action. He made clear that this was simply unacceptable. Orders can only be made against third parties if they are lawful, have a legitimate purpose and are necessary and proportionate. What the case does not tell us, and deliberately so, are the extent to which the court can make orders preventing a third party from assisting an abductor (by sending money for instance) or requiring them to take steps which might have an effect on the mind of the abductor. Great care needs to be taken in regard to these sorts of orders as in respect of any close family member of the abductor, they will impact on the ability of that person to exercise ordinary rights to family life with the abductor. Care also needs to be taken in respect of the ambit of disclosure orders. The Court of Appeal made clear that a passport order is a form of deprivation of liberty. It restricts the right to freedom of movement which is guaranteed by domestic and EU law. The removal or restriction of that right is a serious matter which can only be applied if it is in support of some other legitimate obligation which the ‘target’ is under. Thus a passport order can be made to prevent an anticipated abduction. A passport could be removed (probably) if there was evidence the ‘target’ had assisted in the abduction and might be guilty of contempt (but only to ensure they remain subject to the court’s jurisdiction). A passport can be removed pending compliance by the target with a disclosure order. A passport could be removed to ensure the target remains within the jurisdiction pending compliance with another legitimate order or until any court process to which the ‘target’ was subject was completed. A passport cannot be removed to restrict the ‘target’s movement in order to induce the abductor to return. When applying for such orders great care should be taken to ensure that it is not applied for or granted on the basis that restricting international movement might induce the abductor to return because they cant see their family or it might result in the target putting pressure on the abductor. The particular issue in the case was that the non-subject child might have been able to provide information about the whereabouts of his mother and sister. The judge required him to give evidence. The Court of Appeal were clear that if a child was to give evidence the court had to carry out a balancing exercise considering the welfare of the child and any harm that giving evidence might result in against the benefit to the court process of such evidence being given. In particular with a child who has Article 8 rights in respect of his family life with the abductor great care needs to be taken to ensure that the child is not put in the invidious position of ‘snitching’ on his parent/sibling with the possible result that all remaining communications are cut. The President was careful to ensure that the decision was not interpreted as a sea-change in the way the powers of the court are deployed in abduction situations. It is unlikely that we will see a dramatic change in the approach of judges or practitioners. What the case should result in is a more measured assessment of the ambit of the orders sought and their potential impact on the target and the reason why they are being sought. In the heat of an abduction situation with the focus on the harm to the child and the left behind parent it is very easy to lose sight of the fact that others, in particular family members also are effected and have rights that are engaged. When considering what orders should be sought the practitioner should be applying (in the background at least) a mental cross check of (a) is the order I am contemplating lawful, (b) is there a legitimate purpose in seeking this order against this individual (c) What rights of that party are engaged? (d) What is the extent to which it is necessary to over-ride those rights in order to protect the child. (e) Where the ‘target’ is a child there must be very careful consideration given to the welfare of the child and the interference with his own Article 8 rights. (f) Is the order proportionate? Bearing in mind applications for these orders will often be done ex parte where the target has no say the duty on practitioners to ensure that only those orders are made which are lawful, have a legitimate purpose, are necessary and proportionate is enhanced.

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.