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Samantha Bangham’s Week in Cases 19 July 2013

Date:19 JUL 2013
Law Reporter

Samantha Bangham - Family Law Reporter Wowee it is hot isn’t it?! The very best thing to do seems to be to take all of your annual leave right now and soak up the heatwave. After all it is far too hot to work, commute, do anything really, other than sit in a park eating and drinking! Of course, that is what we would do in an ideal world but, (un?)fortunately, us Brits soldier on, so for those of you still sweating away at work here is my roundup of this week’s family law cases.

Firstly, we have a decision following hot on the heels of the Supreme Court decision in Re B [2013] UKSC 33: Re B-S (Permission to Oppose Adoption Order) [2013] EWCA Civ 813, [2013] FLR forthcoming. Permission to appeal was granted to the mother by McFarlane LJ who, concerned that the Re B decision had altered the Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153 test, thought the case merited reconsideration by the Court of Appeal. The mother’s first two children were removed from her care due to her lifestyle which made her vulnerable and unable to provide safe or good enough parenting. However, the mother’s circumstances had changed dramatically: she was married and had a child for whom the local authority had no concerns. She applied for permission pursuant to s 47(5) of the Adoption and Children Act 2002 to oppose the adoption of the two children. The judge, after reciting the adverse findings made against the mother concluded that it was entirely improbable that the children would be returned to the mother and, therefore, refused her permission and granted a final adoption order but the celebration event was postponed pending the mother’s appeal. McFarlane LJ found that there was potential for a fundamental review of the procedure for applications of this sort. The test established in Re W needed to be examined in light of the comments in Re B relating to the high level of evidence required before a court could make an adoption order where a parent was withholding consent. That approach was in contrast with Thorpe LJ’s comment in Re W that cases where a parent would be permitted to oppose an adoption order would be ‘exceptionally rare’.

In a judgment crossing the boundaries of both public and private children proceedings, specifically, in relation to costs, HB v PB, OB and London Borough of Croydon [2013] EWHC 1956 (Fam), [2013] FLR forthcoming, concerned a father’s application against the local authority, which was not a party to the proceedings, for a wasted costs order for £10,311 in respect of a fact-finding hearing which had to be vacated at the request of the local authority. Both parents cross applied for s 8 orders and the father made allegations that the mother had fabricated illnesses in relation to the child. The local authority was directed to conduct a s 37 investigation but when the social worker came to give evidence she admitted she had not paid regard to the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced (supplementary to Working Together to Safeguard Children (DCSF, 2006)). The local authority took the opportunity to reconsider its position overnight. Following the evidence the parents entered into discussions which prompted the local authority to decide that the hearing could not proceed as there was need for an urgent legal planning meeting and the case was transferred to the High Court. Cobb J found that the s 37 report produced by the local authority was a superficial read, of a poor standard. Only limited enquiries had been made and there were significant gaps in the report. It did not begin to address in a meaningful way the serious issues involved. A further s 37 report had been produced which concluded that the child was not at significant risk of harm in the mother’s care. Neither report assisted the judge at the fact-finding hearing. In awarding the father his costs as claimed, Cobb J found that the failures in the case were not minor. They were extensive and had a profound effect on the proceedings. The local authority had failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father’s allegations. There had been systemic failure by the local authority to offer training of social workers in cases of this kind. In light of the decision in Re T (Children: Care Proceedings: Serious Allegations Not Proved) [2012] UKSC 36) [2013] 1 FLR 133, the local authority’s hard-pressed resources could not release it from its clear statutory duty. A local authority in a private law case in which a s 37 direction had been given was sufficiently ‘closely connected’ with the litigation to justify a costs order. When a s 37 order was made, the court also had the power (if the relevant ‘threshold’ was established under s 38(2)) to make an interim care order. Although this did not happen here, this power illustrated the extent to which the court can, if it considered it appropriate, draw a local authority directly into private law process of this kind and underlined its ‘close connection’ with the subject matter of the proceedings.

In the financial remedy case of Tattersall v Tattersall [2013] EWCA Civ 774, [2013] FLR forthcoming, the husband appealed the order awarding the wife 70% of the matrimonial capital and periodical payments of £1,070 per month for herself and the child. The husband and wife were married for 10 years and had a 3-year-old child together. The Court of Appeal comprising of Hallett, Black LJJ and Sir Stephen Sedley dismissed the appeal. The court found that the judge had not been wrong in determining that the husband had the capacity to, and had done so in the past, work longer hours in order to increase his earnings and provide for the family while the wife was restricted in terms of income by her responsibility for caring for the child, at least until she started school. She had been entitled to start with the needs of the wife and child which could not be satisfied unless the wife had access to more than half of the family resources. This was in accordance with her duty under s 25(1) of the Matrimonial Causes Act 1973 which required that first consideration must be given to the welfare of any minor child of the family. The husband’s needs had not been ignored and she satisfied herself that he could continue to live in his current accommodation and afford to pay his mortgage and other expenses from the income he would have after making periodical payments if he reverted to his former working pattern.

Thankfully, it is Friday so one final hot and sticky trek home before we can enjoy the sunshine. Have a fabulous weekend, but don’t forget the factor 50!

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.