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Samantha Bangham’s Week in Cases 18 October 2013

Date:18 OCT 2013
Law Reporter

Samantha Bangham - Family Law Reporter

This week has been another varied and exciting week for me. Conference season rolls on, this week with the Evidence in Child Abuse Conference in Kensington, chaired by the Honourable Mr Justice Keehan, which was, as ever, a fascinating event.

For me, the most profound session of the conference was that given by Helen Whittle from the Child Exploitation and Online Protection Centre (CEOP). As well as sharing some truly shocking examples of child sex-offending behaviour, delegates were also reliably informed of the mechanics of the development of offenders and the enormous impact of the internet on offending behaviour. Despite the challenges posed by the internet to law enforcement in this area, it was reassuring to learn that it has also assisted greatly in the conviction of child sex offenders and enabled critical evidence to be gathered in the form of digital footprints of online activity. A fascinating insight into such a complex and emotive subject.

Back to the cases ... The judicial term is now in full swing and we have had a jam-packed week of family cases. And an interesting bunch they are too. First, Theis J dealt with the subject of vaccinations in relation to two young girls, aged 15 and 11, who resided with their mother and had regular contact with their father. The oldest child had received the first MMR vaccination but due to controversy surrounding the safety of the vaccination at the time the parents decided not to permit her to receive the booster. The younger child was not vaccinated at all. As the children got older the father claimed to be increasingly concerned about the effects of the children not being immunised, particularly, as the paper which sparked the controversy had since been discredited. He now sought a declaration and specific issue order, opposed by the mother, to enable the children to receive the vaccine. In taking into account the children's wishes and feelings and that their welfare was the court's paramount consideration orders were made for them to receive the MMR vaccination. Their views had inevitably been influenced by a number of factors which altered the weight to be attached to them. The medical evidence pointed in one way, in favour of having the vaccine despite the accepted side effects. The diseases being prevented were serious with long-term health consequences.

In the sternly expressed judgment issued by the President of Re C (Transcripts) [2013] EWCA Civ 1158, [2014] 1 FLR (forthcoming) the mother's application for permission to appeal out of time was refused. The main point of note was that despite prompts from the mother's solicitor transcripts of the first instance judgments were not made available for 3 months. The President expressed his dismay that proceedings had been delayed unnecessarily and wrongly by unacceptable delays in obtaining transcripts. He made it clear that something had to be done to improve practice and performance in court offices.

The judgment of Keehan J in O v O [2013] EWHC 2970 (Fam), [2014] 1 FLR (forthcoming) tackled the novel issue of whether a return order could be granted in respect of returning to a child to a country she had not yet become habitually resident in. The parents lived in the USA for a period as a family before moving to Australia where, shortly after their second child was born, the parents separated. They agreed to move back to the USA. The mother flew with the younger child directly to the USA while the father and 9-year-old child flew via Thailand and the UK. Following their arrival in the UK the father informed the mother that they would not be travelling on to the USA. The mother sought a return order either via the Hague Convention or pursuant to the inherent jurisdiction of the High Court. In applying a purposive interpretation of the Hague Convention rather than a narrow one, Keehan J found that it would be absurd to the return the child to Australia where she had no family members and no family home. The Convention, properly interpreted permitted the court to order the child's return to the USA for a welfare determination. Even if that interpretation was not permitted the court would order a return pursuant to the inherent jurisdiction. On the basis that the child was wrongfully removed from Australia, that she had never lived in the UK before, that both parents rightly and properly at an early stage believed it was important for the two girls to live close to each other so they might have regular contact with each other and have regular contact with both parents, it was overwhelmingly in the child's best interests to be returned to the USA.

This week two judgments on contempt have been released in the case of Button v Salama. The first, [2013] EWHC 2974 (Fam), [2014] 1 FLR (forthcoming) from Roderic Wood J given in July concerned the mother's application for committal when the Egyptian father failed to comply with orders to return the child who he had placed with family members in Egypt and to provide information as to the child's whereabouts and circumstances. He claimed he was unable to provide information as his family was withholding it from him. During evidence the father was found to be evasive, dishonest and to have been capable of complying with the orders but failed to do so. The father had so far been in custody for 18 months but these breaches were treated as fresh contempts. The judge held it would not be disproportionate to sentence the father further on that basis. The appropriate sentence, given the father's appalling and continuing behaviour was four 6-month sentences, in respect of separate breaches, to run concurrently.

In the second judgment, [2013] EWHC 2972 (Fam), [2014] 1 FLR (forthcoming) given by Holman J in September the judge found the father had continued to act in breach of the orders and had not provided any information on the child to the court. He was satisfied to the criminal standard that the father remained in breach of the orders. The authority of Re W (Abduction: Committal) [2011] EWCA Civ 1196, [2012] 2 FLR 133 made it clear that it was legally permissible for the court to make successive mandatory injunctions and that a failure to comply would result in fresh contempt proceedings with the possibility of a further term of imprisonment. It was an aggravating feature of the case that despite now already serving 21 months' actual imprisonment, and despite the court repeatedly ordering the husband to disclose information and cause the return of the child, he stubbornly and contumaciously refused to do so. However, at some point the time would come when further punishment would be excessive but that time had not yet come. The judge imposed concurrent 6-month sentences in respect of three breaches of the orders.

In two cases before the Court of Appeal, care orders were successfully overturned. In the first case, Re W (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 1227, [2014] 1 FLR (forthcoming) the local authority issued proceedings after the mother made allegations of sexual and physical abuse by family members and concern arose for her ability to protect her now 21-month-old child. During proceedings the mother withdrew the allegations but the local authority view was that they were probably true. A fact-finding hearing found the allegations to be unfounded and an independent psychologist reported that the mother had a propensity to lie and had violent and aggressive motives. A care order, which provided for the mother and the local authority sharing parental responsibility, was granted on the basis of a substantial and unpredictable risk of emotional harm to the child. Ongoing mental health support was recommended but the local authority care plan failed to identify services which could meet those needs. The Court of Appeal comprising Sir J Munby P, McCombe and Ryder LJJ allowed the appeal and found there had been a lack of evidence weighing up the impact of statutory intervention upon which the judge could sufficiently analyse the proportionality of a care order. The care order was set aside and an interim care order substituted.

In the other appeal case, Re S (Care Order: Appeal) [2013] EWCA Civ 1073, [2014] 1 FLR (forthcoming) the Court of Appeal considered the grant of a care order in relation to a one-year-old child whose mother had learning difficulties. Her previous two children had been removed from her care and an independent social worker found that the same concerns remained and that the mother would need a high level of support in order to parent her child. The judge questioned why, if the level of support required was so high, the child was being placed in the community. He considered the mother had not made sufficient progress for that to happen. In the Court of Appeal, Thorpe, Black and Kitchin LJJ, found that the judge had failed to afford sufficient recognition to the fact that the order he made was of huge consequence for the mother and child and should only be made as a last resort, as highlighted in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR (forthcoming). There was also no mention of s 52(1)(b) of the Adoption and Children Act 2002. The appeal was allowed, the orders overturned and the case remitted to the county court for rehearing.

That concludes another exciting week of family law. I hope it hasn't been too much for you all! I fear it has for me. Luckily, the weekend is just around the corner ...    

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.