Bloomsbury Family Law Briefing: June Teaser

Case Summaries 

R (W a child by litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) (21 May 2020) the QB Div Ct – A mother (J) agreed to ‘no recourse to public funds’ (NRPF) for W (her child, ten) as a route to migration. Following their periods of destitution including ‘street homeless’: Home Office guidance was not compatible with ECHR, Art 3 (right not to be subject to inhuman or degrading treatment) where it told case workers to raise NRPF only if a person is actually, not imminently,  destitute.

Re D (A Child) (Appeal out of time) [2020] EWHC 1167 (Fam) (14 May 2020), Francis J – Appeal of father (F) three years late in a contact application for daughter (D, ten). Permission granted and appeal allowed: the district judge had wrongly eg (1) dealt with the evidence of a child psychiatrist and (2) required M’s counsel to cross-examine for the F the psychiatrist. DJ’s findings of sexual abuse (based only on what D had said to the mother and her family) were set aside and F’s application referred to a High Court judge (see article).

AS v CPW [2020] EWHC 1238 (Fam) (18 May 2020), Mostyn J – views of 14½  year old should be ‘given effect to’ on the subject of – as here – his wish to remain in Sierra Leone where his mother had taken him to be with his extended family and to be in school there. Father’s application for summary return refused.

PA Media Group v London Borough of Haringey & ors [2020] EWHC 1282 (Fam) (20 May 2020), Hayden J (following earlier decisions in A Local Authority v The Mother & ors [2020] EWFC 38 (11 May 2020); A Local Authority v The Mother & ors [2020] EWHC 1162 (Fam) (11 May 2020); – In care proceedings involving boys aged 14 and 12, a local authority were severely criticised for their failure to take proper account in relation to her children of the mother’s involvement with a convicted a Sch 1 sex offender.  Their father supported naming of the local authority. The public interest in naming the local authority prevailed against any remote possibility of identification of the children.

MEF v St George's Healthcare NHS Trust [2020] EWHC 1300 (QB) (22 May 2020), Morris J with Master Haworth (assessor) – A Calderbank offer [and any other offer], without express time limit, can be accepted once the relevant substantive hearing has commenced. Ordinary contract principles apply: any such offer must be expressly withdrawn.

Appeal out long out of time where allegations wrongly considered by the district judge

Remarkable by most standards, in Re D (A Child) (Appeal out of time) [2020] EWHC 1167 (Fam) (14 May 2020), Francis J allowed a father’s appeal four years after the decision appealled against. It showed a number of those involved in the case – a district judge, a child psychiatrist and the father’s first solicitor – going badly wrong in different ways. The case concerned a ten year old girl Sara who has not now seen her father since 2013; and the final order made by the district judge was dated May 2015. Notice of appeal was finally filed in November 2018.

District Judge Greensmith went wrong in law (as Francis J explained), mostly in the way he treated the evidence – or lack of evidence – especially what was said to him by the child psychiatrist; and in how he dealt with the burden of proof on the father. He insisted that a dyslexic father (‘Ken’) take on his two day contact case (two days for a contact case?) when Ken’s solicitor pulled out on the first day for lack of funds.  Ken had not till then seen the court bundle.

The case proceeded throughout, against a background of Sara having been seen by social workers and the police; and yet she had said nothing to any of these of any abuse, by Ken or anyone else.

The district judge expected the mother’s advocate to cross examine the child psychiatrist for Ken despite the fact that Francis J found this ‘to be a remarkable prospect’. So what could the district judge have done? As Francis J explained:

'[31] … It was open to the District Judge to adjourn so that a special advocate, or an amicus to the court, could have been instructed. The District Judge could have put questions himself [see reference to Matrimonial and Family Proceedings Act 1984, s 31G(6), as explained in the article]. He could have discussed the questions in advance. I do not think that it could ever be right in such circumstances to expect counsel for the opposing party to cross-examine in the way that was suggested….'

Francis J explained the way the district judge approached the evidence in the context of two cases not referred to him. First, London Borough Council v K & ors [2009] EWHC 850 (Fam) where Baker J (at [162]) explained why ‘veracity or validity assessments [as undertaken by Dr G] have a limited role to play in family proceedings’.

Secondly, Francis J referred to Re M (a child) (fact finding hearing: burden of proof) [2012] EWCA Civ 1580, [2013] 2 FLR 874. He had criticised the district judge for failing to pick up that over eighteen months Sara had said to no-one that she had been abused by Ken. Ward LJ in Re M commented on the similar situation (at [16]): that where there is no ‘benign explanation’, a court must make the ‘leap’ to assume there to be ‘a malevolent explanation’; and that this was wrong.

So the hearing had proceeded before the district judge and findings were made against Ken. Permission to appeal was granted out of time; the appeal was allowed and District Judge Greensmith’s order and his findings set aside. The case was remitted to a High Court for further hearing.

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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