Update: family

Extension of the role of Family Assistance Orders

Family Assistance Orders (FAOs) (Children Act 1989, s16) are seen as toothless and as a result are not frequently made. The order may be made in any family proceedings and may only be made with the agreement of the people who are named in the order other than the child. The children and family court advisory and support service (CAFCASS) officer, Welsh family proceedings officer or local authority officer is required to advise, assist and (where appropriate) befriend any person named in the order. The purpose is to provide expert assistance and advice to a family for a short-term period.

From 1 October 2007 the scope of FAOs and the basis on which they can be made has been extended. The amendments to the Children Act 1989 s16 are introduced by the Children and Adoption Act 2006 (Commence- ment No 1) Order 2007 (SI no 2287) and include:

• extending the maximum duration of a FAO from six months to twelve months (s16 (5));
• removing the requirement that the circumstances have to be 'exceptional' in order for a FAO to be made;
• where there is an order for contact or residence under the s8 of the Children Act in force at the same time as the FAO the court may direct the officer to give advice and assistance to establishing, improving and maintaining contact to such persons named in the order; and
• to report to the court if required on such matters including as to whether the s8 order should be varied or discharged. As before, the officer can be a CAFCASS officer, a Welsh family proceedings officer or an officer of the local authority.

There is a duty on the officer to carry out a risk assessment if he suspects that the child concerned is at risk of harm. The powers and duties of officers who are preparing a FAO report or a risk assessment are set out in the amended rules. These include notifying the child of the contents of the report or assessment as he considers appropriate to the child's age and understanding and to notify the court if it is in the child's interests to be made a party to the proceedings.

These changes strengthen the potential role of FAOs in, for example, long standing disputes about contact following separation of the parents. It brings them in line with Supervision Orders without the requirement that the threshold criteria of significant harm is made out. However in order to avoid the orders being made in what may be inappropriate cases the president of the Family Division of the Court of Appeal has issued a practice direction which applies to all FAOs made after 1 October. Before making a FAO the court must have obtained the opinion of the appropriate officer about whether it would be in the best interests of the child for a FAO to be made and, if so, how the family assistance order could operate and for what period; the court must also give the person it proposes to name in the order an opportunity to comment on the officer's opinion.

Interim change of residence

In Re H (Children) (Residence Order) [2007] EWCA Civ 529 the mother appealed against an interim residence order made to the father. The court had made a residence order to the mother some years previously having found that she provided adequate care. During contact the child was unwell and the father relied on this as evidence that the mother was neglecting her.

The Court of Appeal ordered that the children be returned to the mother finding that the judge at first instance had applied the wrong principles and a change of residence should not be made unless there existed a compelling reason to do so on welfare grounds. The judge also failed to give weight to the fact that the child had been settled with mother since birth.

The principle that an interim change of residence is only justified where it is in the child's interests was also held in Re K (Procedure: Family Proceedings Rules), 10.10. 2007, unreported. In this case the role of the rule 9.5 guardian was considered and it was emphasised that in doing what is best for the child the guardian has an obligation to be as impartial as possible as between the parents and in particular in the interlocutory stages of the case.

Committal proceedings

Re P (Committal for Breach of Contact Order) [2007] 1 FLR 1820 was the mother's appeal against an order committing her to prison which was made in her absence. She did not turn up to the hearing at which she was to show good cause as to why she should not be committed to prison having failed to comply with a contact order to the child's father. The judge refused to adjourn the case '“ this was the sixth time the hearing had been listed as she had failed to turn up the previous five times. The mother's appeal was dismissed, the court finding that the appropriateness of a decision to proceed in the absence of the party must be viewed in the factual context of the case as a whole and in this case the judge had detailed knowledge of the case having dealt with it previously.

In Hammerton v Hammerton [2007] EWCA Civ 248 the Court of Appeal set out the principles established by case law relating to committal proceedings and the need to ensure that all committal proceedings comply with Art 6 of the European Convention on Human Rights. In this case the application to commit the defendant to prison was for breach of an undertaking and an order made in contact proceedings. He was unrepresented as his public funding had been withdrawn. His appeal was allowed (although by the time it was heard he had already completed his sentence) and it was held that the judge should enquire at the outset as to why he is unrepresented and to consider whether there should be an adjourn- ment to enable him to be represented. There also should be the opportunity of giving the contemnor the opportunity to address the court on mitigation before a custodial sentence is imposed.

Contact with the child

The principle that 'the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child would not benefit from continuing the attempt' (Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18) was emphasised in the recent case of Re W (Contact) [2007] EWCA Civ 753.

The father had been aggressive towards the mother and a suspended committal order had been made. When the father sought to enforce a contact order the CAFCASS officer reported that the children were opposed to seeing him but did not evaluate whether contact should be restored in some other way. The judge refused to make an order for direct contact. The father's appeal was upheld, the CAFCASS report was held to be arguably too superficial and the judge had not explored all the options. The father came forward with proposals for supervised contact and details of an organisation which was willing to offer a number of sessions to assist the children with contact and the father with anger management. The importance of making sure all the options were explored was emphasised; as the Court of Appeal noted it was regrettable that CAFCASS had not at first instance given the father's position and his relationship with the children the attention it deserved.

Care proceedings: threshold criteria for parents with severe learning disabilities

This is an interesting decision made at first instance following the Court of Appeal ordering a retrial of an application for a care order in respect of two children born to parents with severe learning difficulties. The children were removed under police protection following allegations of physical chastisement. The local authority accepted that the allegations were untrue but relied on the conclusions of an expert assessment that the father was violent and manipulative. The judge at first instance found that the threshold was made on the grounds of likelihood of harm. The Court of Appeal disagreed finding that the expert assessment was profoundly flawed and that the reasons for removing the children suggested social engineering. At the retrial Hedley J dismissed the local authority's application finding no evidence of significant harm. He commented on the difficulties in cases where parents have learning difficulties and are in many ways inadequate but not malicious and in which the children are adversely affected by the experiences which flowed from this. He also commented that it would be unwise to attempt an all embracing definition of significant harm and it must be something unusual and more than the commonplace human failure or inadequacy.

The instruction of experts in care proceedings has been considered in detail by the courts in recent decisions. One aspect of the role of medical experts was considered in Re M (Care Proceedings: Best Evidence) [2007] EWCA Civ 589. The child had suffered bone factures and the parents could give no explanation. At the fact finding hearing a medical expert recommended that, although it was extremely unlikely that the child suffered from a rare bone condition, that this genetic testing should be undertaken. The judge refused to grant the mother's application for this testing and the mother appealed arguing that the test was required in the interests of obtaining the best evidence. The Court of Appeal dismissed her appeal emphasising the role of the medical expert is to express a medical opinion on clinical grounds. It is up to the judge to make a forensic decision as to what was necessary to ensure the proper determination of an issue in the case and in this case the judge had exercised his discretion wisely. The value of submitting this child to an invasive investigation was too small to justify the cost in both cash and time.