Newsletter Summer 2017

Deciding the existence of a family life - Ian Wheaton, John Franklin

In Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34, the court had to decide an application by the local authority to prevent Form C6A from being sent to a father, CD, who did not have parental responsibility.

CD was the father of the eldest of the mother’s three children, X. CD had a history of domestic violence against the mother. The mother had moved several times to escape harassment and threats from the father and was now in a relationship with H, the father of her 2 youngest children. CD had not seen his child for more than 5 years.

In June 2016, the local authority undertook a parenting assessment of the mother and H before making an application for an order under section 31 of the Children Act 1989. In such circumstances, FPR 2010 PD 12C paragraph 3.1 provides that ‘every person whom the applicant believes to be a parent without parental responsibility is entitled to receive a copy of Form C6A.’ However, all parties did not feel this would be appropriate due to the threat CD posed to the mother and her family.

The court recognised that there were circumstances when it would not be appropriate for a father to be sent Form C6A, and having examined relevant authorities, considered that if the father’s Article 8 was engaged in relation to the child, then the threshold for determining that it would not be appropriate for to be sent Form C6A would be higher. The first consideration therefore was to determine whether there was a family life between CD and X.

The court undertook an extensive review of the authorities in deciding the matter and the following points emerged:

  • The determination of whether a family life exists is essentially a question of fact;
  • Family life is not confined solely to marriage-based relationships;
  • Mere biological kinship is not of itself sufficient to constitute family life;
  • Cohabitation, though not a pre-requisite, is an important factor to be taken into account when considering the existence or otherwise of family life; however,
  • Other factors may also serve to demonstrate that a relationship has sufficient constancy to create a de facto family life;
  • There must be evidence of a close personal relationship, a demonstrable interest in and commitment to the child.

The court adopted a balance sheet approach, and on the facts found that there was no family life between CD and X. As a result, there was a lower threshold in determining that it would not be appropriate for CD to be sent Form C6A, and the risk he posed was sufficient to pass that threshold.

Undertakings, Agreements and recitals of fact in financial remedy orders - Gary Fawcett

A District Judge recently told me that there is some judicial disagreement between the use of undertakings and agreements, but did not articulate any further.

Many financial remedy orders contain undertakings and/or recited agreements and/or recited facts between the parties.

In Livesey v Jenkins [1985] AC 424 at 444 Lord Brandon made the distinction between obligations that could be made the subject of an order and those which could not - ‘such undertakings are enforceable as effectively as direct orders’.   McCombe LJ in Birch & Birch [2015] EWCA Civ 833 embraced this, saying that ‘undertakings are an essential part of the bricks and mortar with which the edifice of such financial orders are constructed’.

(NB at para 44 McCombe LJ said ‘On the basis that I have sought to explain, it seems to me that there does exist a formal jurisdiction in the court to vary this undertaking … the scope for the exercise of the jurisdiction must be extremely limited indeed.’ - note this variation power is doubted by the authors (inc Mostyn J, Sir Peter Singer) of Financial Remedies Practice 5th Ed at p 79)

PD 33 A reads:-

Enforcement of undertaking for the payment of money

2.1 Any undertaking for the payment of money that has effect as if it was an order made under Part 2 of the Matrimonial Causes Act 1973 may be enforced as if it was an order and Part 33 and Part 37 apply accordingly.

Such an undertaking is a promise to the court which can be enforced via PD 33 A, noting its limitations.

(NB note 2.1 seems to apply to Part 2 MCA undertakings only, for the payment of money, and not, say, Children Act proceedings. Also, see Part 37, otherwise for the committal powers of the Family Court for breach of an order, judgement or other undertakings.)

An agreement, although contained within a recital is between the parties, and it is submitted enforcement primarily would be by way of proceedings for breach of contract.

An agreement would be recited if it is an integral part of the settlement e.g. say, conduct of a sale of family home, and which, otherwise cannot satisfactorily be worded as an undertaking.

Hence there needs to be caution when considering what should properly be an undertaking, and what is contained in an agreement.

In addition, recitals of fact may be included, e.g. if reliance is placed on that fact as forming a basis of the order, in case the fact relied on turns out to be untrue.

The conclusion is that when drafting a financial remedy order careful consideration should be given to what is recited as a fact, what is recited as an agreement, and what should be recited as an undertaking, keeping an eye on how the recital can be enforced or how it can be later used if need be.

World Congress on Family Law and Children's Rights, Dublin, Ireland - Katherine Henry

June 2017 saw the arrival of family law practitioners from across the globe for the 7th World Congress on Family Law and Children’s Rights in Dublin. Over 600 delegates from 53 countries attended from Australia, Canada, USA and beyond for four days of discussion and insight into good practice in family law and the protection of children.

This was an international event of clear importance, with previous events held in Sydney, Cape Town and San Francisco. With a history of esteemed locations, Dublin held its own, providing a fantastic setting both for work and social events. Delegates were treated to a tour of the famous Guinness factory along with the opportunity to partake in Dublin’s literary pub crawl! The Congress was held in the Convention Centre in Dublin, with topics of interest including justice and equality, exploitation of children, social media and child participation in proceedings.

The conference began with an address from Baroness Hale as to the continual failure to see children as human beings and in particular the reference to a child in case law, as “it” or using initials in children cases (described as “soulless initials”). Baroness Hale described her own practice of using made up names for children in judgments and encouraged such practice from others, enabling children to be viewed as “real human beings”.

The protection of children was echoed in numerous talks offered by speakers, including the practice of interviewing children in child abuse cases. Mr Justice Ryan (President of the Court of Appeal in Ireland) provided a haunting talk on the child abuse enquiry in Ireland. There was discussion from Brett Gosper (chief executive of World Rugby) as to the tackling of gender-based discrimination and domestic violence, with a scheme currently being piloted in Victoria, Australia.

Given the variety of different nationalities, the Congress provided a great opportunity to not only mix with individuals from other jurisdictions, but also the chance to compare the other legal systems. One plenary session involved a discussion between Children Commissioners from Northern Ireland, Australia and Jamaica, as to their differing roles (and powers!) in the rights of children around the world. Other sessions were in relation to the different approaches to the system. For example, parents in Northampton Massachusetts are trialling the Family Resolutions Speciality Court, based on the Australian system. The idea is to a reduce the numbers of families involved in repeated litigation, with every family that opts in receiving a court probation officer, mental health professional, child attorney and mediator. Similarly in Alberta, Canada, there is current reform of the family justice system to develop a less adversarial approach and focus on collaboration.

A talk of particular interest for me was from David Hodson OBE as to technology and innovation in the courts, with the movement to a digital system (paperless bundles, skype hearings, online resolution hearings and use of more non-lawyers). Mr Hodson described a system that will change dramatically in the long and medium term, with the emergence of artificial intelligence. However, the impact on those poorest must be borne in mind, with questions as to accessibility to such a new age system.

Access to justice was a hot topic. For my own part, I was delighted to be invited as a guest speaker, providing a contribution to the justice and equality section of the programme. My address focused on the impact to access to justice as a result of the legal aid changes following the implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Family lawyers across England and Wales have participated in considerable debate on this issue. In Dublin discussion continued, with other practitioners also commenting on the pressure on their own respective systems, the lack of funding and the considerable time taken by family lawyers to provide their clients with a high level of service. Despite the faults of the systems, it was evident that the commitment of family lawyers remains resolute. As described by Mr Hodson “family law practice will change….and the need for very good family lawyers will remain”.

The Congress meets again in Singapore in 2020. I would highly recommend this as a date in the diary!

Expert Witness Wins Apology and Payment From The Legal Aid Agency - Gary Fawcett

In a report by the Law Society Gazette, the LAA has been told to directly apologise and pay £10,000 to the expert witness Dr Alan George in immigration cases for causing him distress, inconvenience and financial loss by excessively auditing his bills.

In a report seen by the Law Society Gazette, the Parliamentary and Health Service Ombudsman says it has decided to ‘partly uphold’ Dr Alan George’s complaint. Middle East expert George had alleged that the agency unfairly denigrated his character, unfairly reduced, capped and refused his fees and unfairly subjected his work and fees to excessive assessment, review and audit from spring 2011 until autumn 2013.

The Ombudsman says: ‘We found that LAA did not act transparently when investigating their concerns about Dr George and they failed to keep useable records. Further, that they treated Dr George unfairly when failing to properly consider and respond to his complaints and were not free from bias. We agreed with Dr George that LAA’s actions caused him inconvenience, distress and had a financial impact on him. However, we did not find that LAA denigrated Dr George’s character’.

To read the full article, click the link: https://www.lawgazette.co.uk/practice/expert-witness-wins-apology-and-payment-from-legal-aid-agency/5062066.article

Light relief on Legal Personality- Making a monkey of the law in the United States - Ashley Ailes

The Guardian newspaper of 12th July 2017 reported that PETA, the animal rights group was bringing a claim against David Slater, a UK resident, in the United States for a declaration that he did not have copyright in one of his photographs that went viral worldwide, when to obtain the photograph, Mr Slater had, after much effort, persuaded a wild crested macaque monkey in Sulawesi to take a “selfie”. PETA’s claim basically was that since the monkey had pressed the shutter, the copyright belonged to the monkey, or at the very least did not belong to the photographer.

In English law, the idea that a monkey could hold a copyright is a nonsense. Neither wild or tame animals have the status of persons. A tame animal is a chattel, and the property of its owner, and wild animals, until killed or brought into captivity are nobody’s property, and may wander from one person’s land to another, without hindrance.

The only parties recognised by English law are natural persons (individual human beings “as themselves” or, perhaps, as trustees or executors) or corporate persons (limited companies, companies limited by guarantee, or other corporations, such as ecclesiastical corporations, or other bodies established by charter). While there may be procedural rules to allow representative actions on behalf of a class of persons, and to group the individuals in unincorporated associations conveniently under one title, that is the general rule- companies and people have legal personality, but ants and lettuces do not. Animals, such as monkeys, whales, cockroaches and ladybirds are not legal persons, and cannot bring claims, whatever the arguments as to the extent that they might be “sentient beings”.

Quite understandably, Judge N Randy Smith, the US judge of first instance, dismissed the claim on the basis that the monkey (nicknamed “Naruto”, but who may not even be the right monkey) could not hold a copyright, because he was a monkey.

There is an appeal pending, and one holds one’s breath in case the appeal judges have a rush of blood to the head and grant “monkey rights”. It would open claims on behalf of the whales, great apes and dogs, maybe chickens and ultimately slugs. You may wish to think twice before scattering those slug pellets, to avoid a slug-related fatal accident claim.

Family practitioners occasionally come up against similar problems of divorce clients with a well-loved cat (interestingly, much more commonly than a dog).  The clients do not quite believe that their cat is not a person. Invariably one client wants custody of the cat (they always say “custody” and never ask for a residence order). The other side wants custody as well, or at least access (again, they never ask for a contact order). Both clients are usually offended when advice is given that the only solution (in the absence of agreement) is a transfer of property order, because (despite their emotional commitment), the bl**dy cat is merely a chattel and not a child. Both parties are sometimes upset because they cannot have a Cafcass report and a three-day trial over their pet.

There is a rather more interesting legal argument imbedded in the monkey saga. Generally, in the absence of agreement otherwise, the person who presses the camera shutter holds the copyright, because he “made the photograph”. In the U.S. case, the monkey pressed the button. It might just be feasibly open to the Appeal judges to find that there is no copyright at all in the photograph, because no legal person pressed the button. This would be unlikely, because the photographer went to considerable efforts to persuade the monkey to take the “selfie”, but if such a finding were made, it could have immense consequences.

Many extremely valuable photos have similarly been taken with animal-activated camera traps- for instance of snow leopards in the Himalayas, or rare tigers in Siberia. In each case, the animal unconsciously triggered the photograph. A finding that there was “no copyright” is very unlikely, but, if such a “no copyright” finding were made, such a finding would set the cat, (or perhaps the snow leopard) among the pigeons. We await the U.S. appeal court’s decision.

The High Court’s Life or Death Decisions - John Franklin, Tracey Hennessey

Charlie Gard

Few people will have not heard something of heart breaking tragedy of Charlie Gard. The plight of this poor baby and his family leaves many seeking answers to fundamental questions about human existence, such as how hard should we fight to hang on to somebody that we love when their life may have become burdensome to them. There can surely be few people who would doubt the love Charlie’s parents have for him, and many will understand that the medical staff showed a different kind of love for him in wishing to end his suffering when it was apparent to them that he had no hope of recovery. As Charlie’s father stood on the steps of the Royal Courts of Justice and announced bravely that he and his wife had decided to give up the fight, large crowds chanted “Justice for Charlie”, the implication being that the High Court had denied the family justice by making the earlier decision that his life support should be switched off. What many do not understand is how and why the courts take the decisions that they do.

 

The Legal Framework

Interested persons, which can include institutions such as Great Ormond Street Hospital, can seek to the use the inherent jurisdiction of the High Court in a situation such as Charlie’s i.e. where the child’s interests seem contrary to continuing the life of the child, to end the child’s treatment. Applications to the court in relation to minors should be made within wardship proceedings and applicants can seek a declaration that treatment should be stopped. All applications under the High Court's inherent jurisdiction are governed by FPR 2010, PD 12D and FPR 2010, Part 5.

The principles the court will have used in deciding Charlie Gard’s case were examined by Mrs Justice Parker in the case of Re OT [2009] EWHC 633 (Fam). The case that was eerily similar to that of Charlie in that the 9-month-old child involved was suffering from a similar genetic mitochondrial disease. Three weeks before the application the child had been admitted to hospital and had suffered brain damage, a stroke, and atrophy of his brain and brainstem. He could neither suck nor swallow. The medical opinion was that the child was experiencing distress and long-term pediatric care was not in his best interests, and therefore the hospital applied to the court to end his treatment, which was dealt with at an emergency hearing. The parents opposed an order permitting the hospital to discontinue ventilation and argued that the child's and their rights under Art 8 of the European Convention of Human Rights (ECHR) would be breached if treatment were continued. They also opposed the court making orders in an emergency application.

Parker J first held that the emergency application did not in itself breach the respondent's human rights, applying Glass v United Kingdom [2004] 1 FLR 1019. The court noted the parents had been given time to seek contrary medical opinions, and they had been given the opportunity to be heard. Parker J then examined the principles that give to the court power, in appropriate cases, to override a parent's right to consent to medical treatment on behalf of that parent's child. Parker J held that the role of the court is to exercise an independent and objective judgment on the basis of all the evidence. The fundamental principle of the sanctity of life was not absolute. Art 2 of the European Convention imposes a positive obligation to give life sustaining treatment, but it did not impose an absolute obligation to treat if medical opinion was such that the treatment would be futile. Withdrawal of life sustaining treatment which was no longer in the patient's best interest was not a breach of Art 2 or Art 7 of ECHR.

The Court of Appeal have subsequently affirmed the principles elaborated by Parker J (e.g. AVS v NHS Foundation Trust and PCT [2011] EWCA Civ 7) and it is on the basis of these principles that the High Court will have reached the tragic decision on Charlie Gard. Sadly, the evidence in Charlie’s case, confirmed by the American specialist flown in to examine him, was that the catastrophic brain damage he had suffered made further treatment futile. Few will forget the sight of Charlie’s parent’s coming to terms with that reality, and surely nobody would have blamed them for trying everything in their power to keep him alive.

Charlie died at 3.12 pm on 28 July 2017 in the company of his parents.