Private Family Case Law Update by Blaise Morris & Katy Welford

 

Re. HTD and HTE (Children) (Temporary Removal from jurisdiction) (Malaysiaand Hong Kong) [2023] EWFC 227

Removal to a non-Hague Convention Country and Go Fund Me page to fund legal proceedings.

 

Background

This case concerns the child arrangements made for two young children following the breakdown of their parents’ relationship. The father sought child arrangements order under s 8 Children Act 1989 (CA 1989) for a shared care (50/50) live with order and a prohibited steps order (PSO) to prevent the mother from removing the children from the UK. The mother opposed the father’s application and sought a live with order in favour of her and a shared care order in favour of the father, in addition to a specific issue order (SIO) permitting her to remove the children temporarily from the UK to visit maternal family in Honk Kong and Malaysia.

The question of travel to the two countries, in particular Malaysia which is not a party to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention 1980), was of sufficient complexity to warrant a judge authorised to sit in the High Court.

The children are British nationals, born and habitually resident in the UK. The father is from South Africa. The mother is a dual British-Honk Kong national with family in Honk Kong and Malaysia.

The mother was permitted to remove the children to Spain for a two-week holiday in April 2023 upon giving a number of undertakings, all of which were complied with. The Court requested the local authority to provide a report under s 7 of the CA 1989 setting out its views as to the appropriate child arrangements for the children.  The mother sought a further SIO, this time allowing her to take the children to Honk Kong and Malaysia. The Court directed a final hearing, with the instruction of experts to give evidence as to the law of Hong Kong and Malaysia for the travel applications.

The father’s principal objection for removal was that the mother may abduct the children once they are beyond the reach of the courts of England and Wales, particularly in relation to Malaysia or Hong Kong given the mother’s family ties to those jurisdictions.

 

Travel Applications: Legal Framework

Section 13(1) (when read with s 13(4)) provides that ‘where a child arrangements order [which regulates when and with whom the child concerned is to live] is in force in respect of a child … no person may … (b) remove him from the United Kingdom … without either the written consent of every person with parental responsibility for the child or leave of the court’. Section 13(2) provides that s 13(1)(b) ‘does not prevent the removal of a child, for a period of less than one month, by a person named in the child arrangements order as a person with whom the child is to live’.

 

In Re A (Prohibited Steps Order) [2014] 1 FLR, the Court held:

1. The overarching consideration for the Court when deciding whether to allow a child to be taken to a non-Hague Convention country is whether the making of the order is in the best interests of the child.
2. The Court has to be positively satisfied that the advantages to the child of them visiting that country outweighs the risks to their welfare which the visit will entail.
3. If in doubt the court should err on the side of caution and refuse to make the order.
4. Consideration should also be given to:

• The degree of risk of abduction;
• The degree of harm to the children and the father due to the abduction; and
• Safeguards that reduce the risk of abduction and increase the likelihood of securing the children’s return.

Whilst acknowledging that it is in the best interests of the children to meet all members of their family and to learn about their background, language, heritage and culture, the need for the parents to develop a degree of trust and co-operation to manage the emotional stability of the children was more pressing. Until recently, the children were on the ‘at risk’ register because of the emotional harm they suffered due to their parents’ toxic relationship and continue to remain ‘children in need’. For the mother to travel to Honk Kong or Malaysia at this stage will further undermine that process and will lead to additional conflict, compounded with the moderate risk that the mother would not return the children if permitted to travel notwithdrtanding that the safeguards submitted on behalf of the mother would reduce the risk to some extent.

The minimal benefit to the children of travelling given their very young ages is outweighed by the risk of further emotional harm from parental conflict that travel would or might cause. The judge was not positively satisfied that it was in the children’s best interests to travel and the mother’s application for a SIO was unsuccessful, allowing the father’s application for a PSO.

 

Go Fund Me Page

The case raised a novel ancillary issue, as the mother established a Go Fund Me page to fund the legal proceedings. The nature of proceedings, the names of parties and the children, including their photographs, were uploaded onto the site. Details of the alleged coercive and controlling behaviour against the father were also uploaded.

It was noted that the mother appeared to be in contempt of court and in breach of Section 97 (2) of the Children Act 1989, which makes it an offence for any material which is intended or is likely able to identify the children involved in proceedings before the Family Court. Mother’s counsel submitted that she was unaware that such publication was prohibited. The judge was satisfied that the post had been deleted and it was a relevant factor in relation to the index travel applications. In relation to contempt, the judge outlined the three possible methods of disposing of the issue:

1. Father could bring contempt proceedings under FPR r. 37 (3) (he did not want to do this, and the father was applauded by the judge);
2. Referral to the AG for contempt proceedings (a protracted process which may not be proportionate);
3. The Court could, of its own motion, bring proceedings by issuing a summons under FPR r. 37.6 (3).

The judge held that no further sanction would be appropriate even if contempt was proved. Referral to the AG could take on a life of their own, causing further conflict between the parents which could cause additional harm to the children. Despite acknowledging that it is highly inappropriate for parents to publicise details of the parties and children involved in proceedings, it would not be proportionate or consistent with the Overriding Objective to sanction the mother in light of her apology and removal of the publication from Go Fund Me.

 

P v F [2023] EWHC 2730 (Fam):

Judgement handed down by The Honourable Mr Justice MacDonald

The Court considered the appellant Father’s appeal of the decision of His Honour Judge Tolson KC dated 21 March 2023, by which the Judge made a Child Arrangements Order (‘CAO’) at a Dispute Resolution Hearing (‘DRA’) allowing the Father only indirect contact with the children and a section 91(14) Children Act 1989 order prohibiting the Father from making further applications in respect of the children for a period of 2 years.

 

Grounds for appeal:

For indirect contact only:

1. The applicant Father did not consent to a final order for no direct contact being made; and thus, the Judge made an error in law making a final order for a CAO at the DRA.
2. The DRA was conducted in breach of Article 6 ‘the right to a fair trial’ due to the applicant Father not agreeing to no direct contact and actively challenging the CAFCASS report.

For making a section 91(14) order:

3. The granting of the order was wrong, because the procedural requirements necessary for a fair process involving litigants in person (‘LIP’) were not followed (Re C [2009] 2 FLR 1461) and no judgment for the decision was provided.

 

Background:

The children subject to these proceedings lived with their Mother. These proceedings were already the third set of proceedings between the parties in respect of the children. Prior to these proceedings, in May 2021 a CAO was made in favour of the Father, in which he was to spend time with the children one night on alternative weekends and contact during the summer holidays. However, in October 2022 the Father made an enforcement application to Court. He had not seen the children since May 2022. In those proceedings, the Court directed a section 7 report. The report was not favourable to the Father. CAFCASS referred to the Father’s threatening and abusive nature when discussing matters with him, and they disclosed his previous convictions and further allegations by the Mother

CAFCASS obtained the children’s wishes and feelings, in which they indicated they did not want to see their father and when asked about direct contact, they believed it should be their decision and no contact should be made. The views obtained from the children were explained by the Father as “brainwashing” by the Mother, of which there was no evidence.

The Father  reported that there were no issues when he had contact with the children, and expressed his desire to return to the previous CAO.

CAFCASS observed the Father to have a lack of insight into the impact of his behaviour on the children, and sought to blame the Mother for the children’s views.

With the above information, the CAFCASS recommended that the children were to continue to live with the Mother and only have indirect contact with the Father in the form of cards, presents, and updates from the Mother. This indirect contact would be every 3 months. CAFCASS also recommended making a Prohibited Steps Order (‘PSO’) preventing the Father removing the children during their visits to their grandparents, and a section 91(14) order.

 

Summary of the Transcripts obtained from the DRA:

1. The Father was a LIP. While he wanted to resolve the matter at the DRA due to the impact the proceedings were having on the children and himself, he had not seen the children since May 2022, and he wanted to revert to the original CAO. Furthermore, he stated that there were flaws and false reports in the section 7 report.
2. The Judge informed the Father that he would not be able to make an order in his favour due to the recommendations by CAFCASS, and he would either make a final order under their recommendations, or set a final hearing date. The Judge stated that a final hearing would likely result in the same outcome as CAFCASS’s recommendations.
3. The Father asked the Judge to speak to the Mother to see if a resolution could be obtained. The Mother agreed with the recommendations of CAFCASS based on the children’s wishes and feelings.
4. During the hearing, the Judge discussed listing the case for a final hearing, allowing the Father to provide another statement and call witnesses. Neither which the Father was eager to provide nor believed there was point in doing so. The Judge agreed.
5. The Father questioned whether the views of the children had been influenced by the Mother, which the Judge stated there was no evidence of manipulation.
6. The Father continued to ask the court to stress to the Mother his wish of having contact with the children in line with the previous arrangements. The Judge expressed this was unrealistic due to the recommendations of CAFCASS. The Father was pressed for a decision on whether to list for a final hearing or conclude the matter by way of a final order at the DRA.
7. The Father remained conflicted whether to list for a final hearing or make a final order. The Judge was invited to express his views, which he erred toward a final order, and noted that if the Father was to return for a final hearing he was unlikely to have a case.
8. The Father expressed concern, and stated his desire to obtain legal representation, but conceded he could not afford this.
9. Until the very end of the hearing, the Father continued to express uncertainty about whether to list for a final hearing or order, and continued to question the meaning of both outcomes, adamantly stating that he wanted to see his children.
10. A final order was made with the Father only having indirect contact.

Throughout the hearing, the Father expressed uncertainty and confusion, which was heightened at the conclusion of the proceedings when the Judge stated, ‘That is it if I make a final order, yes, which I think is what you are asking me to do’, and the Father responding, ‘I think that’s the next thing, isn’t it? To do a final, make a final order so I can see my kids’, which the Judge followed up with, ‘Yes’, and the Father concluding, ‘Yeah. I want to see them, yeah’. The hearing was completed. The final remarks made by the Father expressed his difficulty with his hearing.

An order was drafted in which the recitals expressed that the Father ultimately did not choose to proceed to a final hearing, understanding that a final order would be made on the recommendations of CAFCASS, and the terms of the order including, that the children would live with their Mother, not spend time with their Father and only have indirect contact with the children. Furthermore, a section 91(14) order was made. However, the Father believed that the matter was listed for a final hearing, as he did not consent to a final order for no direct contact, and he did not agree the section 91(14) order.

 

Law:

Overriding Objective:

Part 1 of the Family Procedure Rules (FPR) 2010, includes cases to be dealt with expeditiously and fairly, and to ensure all parties are on an equal footing.

Article 6: Right to a Fair Trial:

The Judge considered the case of Mantovanelli v France (1997) EHRR 370 firstly, to explore whether there had been a breach of the right to a fair hearing. In this case, it was determined that the proceedings of a matter must be viewed as a whole including observing the way in which evidence was obtained and possible deficiencies of individuals in the process. Secondly, to understand Article 6 more broadly, that being, allowing an individual the right to comment on the evidence adduced or observations provided, for the purpose of influencing the Court.

Article 8: Right to respect for Private and Family Life

In his consideration of Article 8, the Judge looked at the case of McMichael v United Kingdom (1995) 20 EHRR 205, which recognised that whilst there were no strict procedural requirements under Article 8, the route to interfere in family life must be fair.

Section 91(14) Orders

This order prohibits an individual in the family court making further applications under the Children Act 1989 without the Courts permission.

When the Domestic Abuse Act 2021 came into force, further provisions under section 91(14) were issued, which provided guidance on making section 91(14) orders. This includes what to consider in situations where an application would put another individual or child at risk of harm. It also considered how the Court deals with permission to make an application from the individual who has the order against them.

In his judgment, the Judge discussed the importance of the procedure in PD12Q paragraph 2.8 for a section 91(14) order. He noted that whilst it is within the Courts discretion to made a section 91(14) order, the court should be looking at relevant principles such that of the 2021 Act above, and case law for guidance. Such case law includes Re P (Section 91(14) Guidelines) (Resident and Religious Heritage) [1992] 2 FLR 573. In summary, the Court had to be satisfied of the following:

1. that the parties were aware that the application had been made;
2. the court was considering making the order;
3. the parties understood the order;
4. the parties understood the evidence before the Court for making such an order; and
5. the parties had an opportunity to comment on making such an order (Re T (A Child) (Suspension of Contact) (s91(14) ChA 1989) [2016] 1 FLR 916)).

More importantly for this appeal, was the case of Re C (Litigant in Person: s 91(14) Order) [2009] 2 FLR 1461, which specifically provided guidance for LIPs/ unrepresented parties when a decision to make a section 91(14) Order was live. In summary it stated that LIPs must be given the opportunity to make submissions, and if it was apparent that the LIPs strongly objected to the granting of the order and wished for legal advice, the Court had two options; either to not grant the order, or make the order with a caveat of allowing the LIP permission to apply to set it aside. However, this must be completed within a specific time frame.

 

Conclusions:

The Judge allowed the appeal. The reasons for this were the following:

CAO:

The Judge who made the CAO was wrong to make a final CAO at a DRA when the Father did not consent to the order for no direct contact. He actively challenged the CAFCASS report, and thus the hearing was in breach of the Father’s Article 6 and 8 rights.

The Judge understood the challenges in communication faced by the previous Judge, especially when in court having to explain matters to a LIP in a busy court listing, which at times became confusing. The Judge did state however that the Father never agreed to a final order with no direct contact, and continued to challenge the CAFCASS report.

The Judge made it clear that a DRA is for narrowing down the remaining issues between the parties. It was not for making a final order where parties are not in agreement and want different outcomes. This being the case, PD12B provides guidance as to progression to a final hearing. The correct course was to make strict case management directions for a final hearing. Thus, there were further breaches to Articles 6 and 8 when not allowing the Father to dispute the CAFCASS report and not allowing him to provide submissions for why he should have direct contact.

Section 91(14) Order:

In respect of the section 91(14) Order being granted, the Judge was satisfied that it was incorrect to order in the circumstances where none of the procedural requirements, especially with reference to those for LIPs were followed. Furthermore, the Judge did not provide any judgment as to making the order.

The full judgement can be found at: https://www.bailii.org/ew/cases/EWHC/Fam/2023/2730.html

 

Observations:

After the subsequent cut backs after the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in 2013, the number of LIPs has soared, and thus Courts have found themselves in a position where LIPs are frequently requiring guidance from the Court due the inability to obtain legal representation. This case shows the difficulties that can arise when a party is not represented. A Judge’s role in a case where there is LIPs if far more than just judicial, it is heavily focused on ensuring the understanding of the LIPs.

In October 2013 due to the increase of LIPs, the Courts and Tribunals Judiciary drafted guidance for LIPs. It was clear even in June 2022 the increase of LIPs was still very prominent and increasing further. Thus further guidance was provided by the Courts and Tribunal Judiciary, which can be found at https://www.judiciary.uk/guidance-and-resources/advice-for-litigants-in-person/. Due to the impact of Covid-19 and more recently the cost-of-living crisis, unsurprisingly there has yet again been an increase in LIPs, especially in civil matters.

Taking the case above, and our knowledge and experience of the increasing number of cases involving LIPs, does this rise cause for a review of LASPO? If not, should there be more guidance for LIPs, or avenues of support, especially in private family law and Family Law Act 1996 matters?