Update: family (children)

In 'Made to order' (Solicitors Journal 153/43, 17 November 2009) the case of Re B (A Child) [2009] EWCA Civ 545 was discussed. The Family Proceedings Court (FPC) granted the maternal grandmother (with whom the child had lived since birth, save for weekends) a residence order. The father appealed successfully: the circuit judge ordered a transfer of residence to the father. The grandmother appealed to the Court of Appeal, which was dismissed. A stay was placed on the original decision for transfer and the grandmother sought permission to appeal from the Supreme Court; permission having been refused by the Court of Appeal. Leading judgment was given by Lord Kerr in Re B (A Child) (2009) (FC) UKSC 5. Lord Kerr introduced matters by stating that one might have believed that the final word on the significance of parenthood in private law disputes to have been given by Hale LJ in Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43. He goes on to add that misunderstandings about the principles of that case have persisted.

The judgment reminds us that the child's welfare is the court's paramount consideration and that to talk of a child's rights as opposed to a child's best interests somewhat distracts from the concept that welfare is the important factor. This was effectively where the circuit judge, sitting as a judge of the High Court, fell into error in suggesting that what mattered was whether the father could provide good enough parenting, in which case it was not relevant that the standard of care which was being provided by the grandmother was better.

The Supreme Court disagreed with the Court of Appeal's identification of two 'important errors of law' with the decision of the justices in the FPC. The first was the FPC's consideration of Re G, which was not extensive and resulted in the justices not debating sufficiently the roles of the grandmother and the father; and so, the Court of Appeal held, the FPC had fallen into error in concluding that the grandmother was the child's psychological parent, in turn failing to acknowledge the father's role beyond recording that he was able to meet the child's needs. Lord Kerr stated that the pro forma document which recorded the justices' reasons was not an exhaustive record of all material considered and that it was clear from the note of evidence that the role the father could play in the child's life was indeed canvassed and debated. He concluded that it was 'difficult to accept that the justices did not have them in mind in making the decision about residence'.

The second error of law identified by the Court of Appeal was the justices' statement about compelling reasons. Wall LJ in the Court of Appeal criticised the justices for saying that they required compelling

reasons to remove the child from his grandmother's care. In fact, the justices had not said this but rather the comment derived from a similar reference in the section 7 report of the social worker. Lord Kerr explained that the justices had not said that they required compelling reasons; only that they had not found them. The Supreme Court concluded, therefore, that the justices had not regarded compelling reasons as a pre-condition for potential transfer of residence and therefore it did not agree with the Court of Appeal that there was an overemphasis on maintaining the status quo.

It can be gleaned from the judgment that relevant considerations or questions for the litigating parties and, of course, the courts in determining such applications are:

• There is no place for the question of whether a proposed placement is 'good enough'. Instead, the court is to determine what is in the child's best interests.
• The court should not seek to ascertain what might 'constitute a second best but supposedly adequate alternative'.
• The dominant position which should occupy the decision-making process in such proceedings is the child's welfare.
• In Re G, Lord Nicholls' statement that 'in reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests' should not be considered in isolation. Lord Kerr in the present case stated that 'although one should keep in mind the common experience to which Lord Nicholls was referring, one must not be slow to recognise those cases where that common experience does not provide a reliable guide'.
• The Supreme Court said that while the central messages of Re G did not require reaffirmation, the court would do so now. It clarified that: 'All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in In Re G, but the essential task for the court is always the same.'

Procedure and practice: section 91(14) orders

In C (A Child) [2009] EWCA Civ 674, the mother made an application for unsupervised contact. That application was dismissed by the trial judge and the Court of Appeal did not interfere with that. The issue of concern was that the trial judge in the county court went on to make a section 91(14) order preventing the mother from making any applications regarding the child for a period of five years without permission of the court. Thorpe LJ stated that the prohibitive order was made all too casually and disregarded clear authority from the Court of Appeal. What is instructive is the list of factors prepared by Wall LJ to which all practitioners should have regard. These are summarised briefly below, but Wall LJ emphasised that these do not address the merits of section 91(14) orders which are exceptional orders to make and courts will be guided by the jurisprudence.

1. Ideally, the application should be made in writing and on notice in the normal way.

2. However, the question of a proposed section 91(14) order may arise during or at the end of the hearing. It can be made on the application of one of the parties or the court of its own motion and one or more of the parties may be unrepresented.

3. Where the circumstances above (2) are present, the court may make the proposed order but it is crucial that parties or others affected by the order (particularly if unrepresented) understand that either an application for or consideration to the making of such an order is before the court. Those persons should understand the meaning and effect of the proposed order and have a proper opportunity to answer the application or make submissions on the issue.

4. Where parties (and particularly the person affected by the proposed order) are unrepresented, the court may be able to deal with the matter in argument without a formal application having been made. In those circumstances, if the representative for the party affected seeks a short adjournment to take instructions that should normally be granted. Where there is a substantive objection to the making of an order, the court should require the application to be made formally on notice in the normal way.

5. Where the party affected by the proposed order is unrepresented, it is essential that the factors above (3) are considered and present. In order to achieve this, an adjournment may be necessary for an application for the proposed order to be made in writing and on notice.

6. In a situation where both or all the parties are in person, there is a 'powerful obligation' on the court where considering making the proposed order to explain the course the court is minded to take. This involves explaining in ordinary language what a section 91(14) order is, its effect and what the duration will be. Most importantly, unrepresented parties must have the opportunity to make submissions and where a party seeks legal advise the court should either normally not make the order or make the order and grant permission to the person who it affects to set it aside within a specified time frame.

Interim removal: further clarification of the applicable test

The case of Re L (A Child) [2007] EWHC 3404 (Fam) has caused some uncertainty with many seeking to rely on it to illustrate that the test for interim removal was in fact higher than the previous authorities had suggested. The law has been clarified again in L-A (Children) [2009] EWCA Civ 822. In this case, the local authority sought to remove the children from the family home in favour of a placement in foster care while the proceedings continued to final disposal. The trial judge believed that the local authority should share parental responsibility of the children but not that the children should be removed, and that this could be achieved by an interim care order based on the local authority amending the care plan. Thorpe LJ giving judgment stated that he believed that the trial judge had based decision making on the basis that the law had changed and that there should be an imminent risk of really serious harm to justify removal. He goes on to state that 'plainly the judge was wrong to think that the words of Ryder J that there should be an imminent risk of really serious harm prevented him from doing what he instinctively felt the welfare of the children required'. The appeal was therefore allowed. Practitioners will be careful to note that the law is succintly stated by Thorpe LJ at paragraph 7. In summary, the key propositions from appeallete authorities on the issue are:

1. The decision taken by the court on an interim care order application must be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture.

2. Separation is only to be ordered if the child's safety demands immediate separation.

3. A local authority in seeking to justify the continuing removal of a child from home necessarily must meet a very high standard.

4. At an interim stage, the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection.