Update: family law

Disclosure of information

The leading court of appeal authority on disclosure of documents in children's cases is Re R (Care: Disclosure: Nature of Proceedings) [2002] 1FLR 755. The principles include that general discovery of documents is an inappropriate procedure for children's cases but the court retains the power to order specific discovery. It is for the person seeking disclosure to establish the need for the documents to be produced, and unless the documents are likely to be of real importance to the party seeking disclosure, they should not be disclosed.

In the case of Re: S (Expert Evidence) [2008] EWCA Civ 365, the issue was the disclosure of information from the family history to experts instructed in the course of care proceedings. The local authority argued that all the reports and records relating to possible sexual misconduct by the father should be disclosed to the experts, because whether or not the accounts were true they represented significant events in the family's life. The parents opposed this on the basis that the records contained allegations that had never been the subject of family or criminal proceedings.

The parents' appeal was allowed, the court applying the principles in Re: R. It was held that if allegations were not pursued or proved by the local authority at the disposal stage, then logically that material should not be considered by the jointly instructed expert as it would be irrelevant for the expert to consider material that had been deemed to be irrelevant to the judge's task. It was held that the local authority should abstain from introducing into proceedings, and sending to experts, materials that would inevitably be perceived as unfair in the sense of being purely prejudicial. This may hamper the co-operation between the parents and the local authority and was not in the interests of the children.

Judicial review of local authority's decision not to issue care proceedings

In two recent reported cases, the issue arose as to whether a parent has a remedy against the local authority where the threshold criteria would be made out but rather than issuing care proceedings, the local authority supported one parent's application for a residence order. This may be an approach adopted by some local authorities as a way of avoiding the new increased fees.

In both cases the children were living with their mothers. In the first case, the child was removed from the mother's care by police and taken into police protection. Discussion between the police and social services resulted in the child being placed with the father, on the basis that he would issue an application for a residence order. The local authority fully supported his application and agreed to fund his legal costs as an alternative to issuing proceedings. During the course of the proceedings the children were made parties. The local authority was directed to carry out an investigation under s.37 and all professionals supported the making of a residence order to the father. In the second case, the children had been made subject to a child protection plan before the mother was admitted to hospital and agreed for the father to look after the children. The local authority contacted the father and effectively gave him an ultimatum either to apply for a residence order or they would issue s.31 proceedings. The local authority prepared a s.7 report, but refused to assist in supervising contact due to the mother's violent behaviour.

In Nottinghamshire CC v P [1993] 2FLR 134 the president said that the LA's decision not to issue care proceedings in respect of a child at risk of significant harm may be judicially reviewable.

The other challenge to the local authority's failure to issue care proceedings would be under the Human Rights Act 1998. Under s.6(3)(b) the local authority has a duty not to act in a way that is incompatible with the parents' rights under the ECHR.

There is clearly scope to challenge the local authority's actions in cases where there is a failure to issue care proceedings and this failure has the potential for any justice to the respondent parent.

Committal orders/contempt of court and the burden of proof

Contempt of court '“ which involves deliberate disobedience of a court order '“ has to be proved to a criminal standard and the onus of proof is on the applicant.

In Re: A (a child) [2008] CA Civ Div, the father's (F) appeal against a suspended committal order for contempt of court was upheld. He had abducted his son to Syria and left the child with his family, returning to the UK the next day.

The mother (M) applied for orders to secure the child's return on the basis that the father could make an arrangement with his siblings to return the child.

She applied for F's committal for disobeying the orders. F appealed on the grounds that M adduced no evidence that he was able to arrange for the child's return. If F was not able to arrange the child's return then he could not be said to have deliberately disobeyed the court order. The Court of Appeal found that there was no evidence and no findings that F was able to achieve the child's return and set aside the committal order.

Placement orders

Several cases concerning placement orders have been considered in the Court of Appeal recently. Re: P (Placement Orders: parental consent) [2008] EWCA Civ 535 is an important case dealing in particular with two questions.

Firstly, the test for dispensing with parental agreement to the making of a placement order (s.52(1)(b) Adoption and Children Act 2002) and, secondly, the proper exercise of the power to dispense with consent when the adoption agency is searching for both fostering and adoptive placements.

The 2002 Act was trying to move away from the sequential planning approach, which inevitably results in delays for the child. It was held to be clearly in the child's best interests to seek a placement order, even if the child is considered to be hard to place as a placement order increases the chances of successfully finding an adoptive placement. The court took a pragmatic approach to dual planning for the child's future.