Update: children

Contact disputes

L-W (Children) [2010] EWCA Civ 1253 is recent authority from the Court of Appeal concerning orders made in intractable contact disputes.

The parents were locked into an intractable dispute as to the mother's contact with her son M, who resided with his father. The parents' other child, E, lived with the mother but her contact with the father was not in dispute.

A contact order was made in May 2009 directing contact between M (then ten) and the mother every four weeks. The mother alleged that M was not brought to contact and made applications at various stages for compensation and enforcement orders. The trial judge made financial compensation orders and orders for unpaid work. A suspended committal order was also made.

The father appealed. Munby LJ gave lead judgment. In the judgment, 'reasonable excuse' is used to describe situations where it was within the alleged defaulter's power to comply but there is a good reason for not doing so (such as taking the child to the doctor rather than contact because the child becomes ill). Where, however, it was not within the defaulter's power to comply (issues of force majeure) the question will not be whether there is a defence of reasonable excuse but rather whether breach occurred at all. The judge gives an example of the latter as unforeseen and insuperable transport or weather problems '“ then there will be no breach.

Munby LJ held that the judge had erred because the father's obligations under the orders were to 'allow' and 'make M available' for contact. Save for the sessions when the father removed M from contact part-way through, the father in a (literal) sense had complied (ironically, when contact did not take place at all). Munby LJ said: 'The father may have been under a parental or moral obligation to do these things, but on the wording of these orders he was not, in my judgment, under any legal obligation such as to render him in breach of the orders for failing to do them.'

This case is extremely difficult as the father was able to rely on M's firm views that he did not wish to have contact, which in such cases makes committal and enforcement provisions limp. For there to be literal breach, the contact order would have to be framed in terms that the parent 'must ensure that contact takes place'. Unlikely as it may be for a court to make an order using such language, if it did and there was found to be breach in circumstances where the child refused to attend contact, presumably a defence of reasonable excuse could be made out. These intractable cases continue to trouble the courts with differing approaches being offered.

Hair today'¦

The use of hair testing for establishing alcohol consumption is a relatively new technique. Such testing for illicit substances has long been used and relied upon by the courts. Significant issues with hair testing for alcohol were identified in LB Richmond v B & W & B & CB & CB [2010] EWHC 2903 (Fam). Here, contradictory results from TrichoTech and Trimega Laboratories were before the court.

Both companies were given permission to intervene on the specific issue. The science is admirably explored by Moylan J and is encouraging reading, although the main headlines for practitioners involved in child care cases where there are allegations of alcohol abuse are as follows.

The practice direction 'Experts in Family Proceedings Relating to Children' applies to all expert evidence and is not advisory, it is mandatory. It is the solicitor's duty to ensure that the expert's attention is drawn to the guidance. Usually this is achieved within the letter of instruction.

Paragraph 3.3(8)(b) states that in giving an opinion to the court, the expert should 'describe their own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from factual assumptions, and any unusual, contradictory or inconsistent features of the case'. Solicitors should scrutinise reports to ensure this feature has been addressed and 'enforce' as necessary.

Although there are limitations with urine and blood testing, they provide a 'more secure factual foundation'.

The features tested for in hair samples reflect only the consumption of alcohol as an average over the period. The tests do inform as to the number of occasions of consumption or the amount consumed on each occasion. Hair tests should only be used as part of the evidential picture and not to reach evidential conclusions in isolation of other evidence.

Research has shown that the various tests can produce conflicting results and the tests should only be used to determine whether they are or are not consistent with 'excessive alcohol consumption'. Any evidence based on testing of a one centimetre sample is unlikely to be of sufficient cogency to support a conclusion as to levels of consumption. Samples of three centimetres are expected.

Proposed adoptions

Black LJ gave leading judgment of the Court of Appeal in Plymouth City Council v G (Children) [2010] EWCA Civ 1271 in a matter concerning applications for care and placement orders.

The appeal related to the two younger children. The recorder made the full care orders sought but dismissed the applications for placement orders. The local authority appealed against this and orders relating to contact. This was not a case about return to the parents but rather the appropriate care plan (adoption or long-term fostering). The points which assist practitioners are those that remind us of how witness evidence is provided, used by the court and considered by the appellate court.

The council argued that the recorder was not permitted to reject the evidence of the psychologist on issues of assessment of the children's personality and needs but only on issues such as future placement, management and perhaps attachments. It sought to rely on Re M (Residence) [2002] EWCA 1052. Black LJ states that Re M was very much fact-specific and she would hesitate to draw from it a general proposition in terms sought by the council.

What is essential is that, if the judge does differ from any view of an expert, reasons for doing so must be fully and clearly set out. The recorder's faith in the psychologist had been shaken and examples were given in his judgment. Black LJ holds that the recorder was entitled to take this factor into account when deciding what weight he could ascribe to her evidence. The CoA reminds us that it is not always practical for the judge to identify in writing every consideration that has entered into their assessment. Appellate courts also need to have in mind Lord Hoffman's observations from Piglowska v Piglowski [1999] UKHL 27, that the first instance tribunal had an advantage in seeing the parties and other witnesses.

As for the options of adoption and fostering, the recorder had concerns about the lack of analysis by both the council and the children's guardian to justify their recommendations for adoption. Usefully, Black LJ notes: 'In many cases involving young children, the general benefits of adoption as opposed to long-term fostering will be sufficient, without much, if any, further analysis, to persuade the court that adoption is what they need.' However, the recorder's view that in this case such proposition did not apply (given particular factors he considered might indicate alternative placements) could not be disturbed.

Black LJ continues that, in fact, review of the documents provided by the council and the guardian bore out a failure to analyse the case for long-term fostering as well as for adoption before concluding that adoption was the ideal form of placement. Those advising councils should note particularly that the court needs a list of relevant factors central to the decision at hand, a narrative account of those fit together, including an analysis of the pros and cons of the various orders that might realistically fall for consideration given the circumstances of the children, and fully reasoned recommendations.

The appeal was allowed (in part) only because of the way in which the recorder had disposed of matters. Rather than refuse the placement order applications, he should have adjourned those applications, made interim care orders and directed the filling of expert evidence to fill in the gaps which he had rightly identified. Although there was nothing preventing the council from issuing a placement application in future, the recorder failed to take into account the many practical difficulties his approach posed to the council but also the fact that this also brought an end to the court's control of proceedings, evidence and timetable for the children as well as legal representation of the mother and involvement of the solicitor and guardian for the children.