June 2014 Case Law Update
N (A Child) (Adoption Order)  EWFC 1491
Consideration of special guardianship orders against adoption orders particularly in light of Re B-S  EWCA Civ 813.
Concerning a child, N, aged 5. N was born prematurely and spent the first seven months of her life in hospital due to her severe disabilities. She was discharged from hospital in May 2009 and placed with the Applicants. She has therefore resided with them for almost exactly five years. N’s Mother, has serious mental health problems as well as difficulties with alcohol and drugs and played no part int he proceedings. N’s Father lives with his mother, the Paternal Grandmother. N has never lived with either of her parents although she has had regular supervised contact to her Father and Paternal Grandmother.
The applicants applied for an adoption order. They were supported by the Local Authority and the Guardian, both finding that after considering the advantages and disadvantages of all options (in line with Re BS), the only appropriate order was an adoption order. Father disagreed and suggested a SGO was more appropriate.
Moor J found that nothing but an adoption order was appropriate for this child. In light of the exceptional circumstances of this child, in particular her disabilities, he found that a special guardianship order would not provide her with the permanence that she required. He was clear that this was an exceptional case and if it were not, he doubts whether an adoption order would have been appropriate. He said it was exceptional for the following reasons:
(a) N’s serious disabilities which require a lifelong order rather than a special guardianship order that expires on her 18th birthday.
(b) The only home that she has ever known has been with the Applicants; she is embedded emotionally into their family but she needs to be embedded legally there as well. It is overwhelmingly in her interests that she is a full member of this family as a matter of law.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge.
(d) The litigation has been going on for over five years at an intense level. He expressed a ‘real concern’ that a special guardianship order would not be the end of the battle.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. They do however have contact; adoption in this particular case will not stop contact from continuing with the parental birth family.
R (A Child)  EWCA Civ 597
Appeal of care and placement orders due to insufficient analysis of risks and failure to consider all options. The mother appealed care orders in respect of her four children (aged four to 12), and placement orders in relation to the two younger children. Appeal allowed and case remitted. Guidance given on public law appeals where the appellant is a litigant in person.
M had her two eldest children by her first husband. In 2005, M met Mr J. In 2006, Mr J was convicted of a sexual offence against a young girl. M and Mr J married in 2007 and they subsequently had two children. In 2011, the LA became involved as a result of a suspected non-accidental injury. The investigation concluded that the injury was accidental but there were concerns about Mr J’s conviction. Mr J left the family home until assessments were completed but was later permitted to return to the home and the LA closed their case. The LA again became involved in 2012 when M’s 15 year-old niece (‘S’) alleged that she had a sexual relationship with Mr J and that M knew about and facilitated the relationship. Mr J initially admitted to the police that he had sexual relations with S but later retracted his admission after S retracted her allegations. M denied knowledge of the allegations.
Threshold related to the sexual risks that Mr J posed to children, M’s inability/unwillingness to protect the children from Mr J and wider concerns about M’s behaviour. At the final hearing, the LA did not call S to give evidence and Mr J was not present to give his version of events or be cross-examined. The judge found M to be an unsatisfactory witness who was “not simple to pin down”. He found that Mr J presented a risk to the children by virtue of the 2006 conviction and that they allegations by S “are particularly troubling”. However, no specific findings were made about the allegations. The judge concluded that M could not provide the children with consistent emotional care and was unable to protect them. He made care orders in respect of the four children and placement orders in respect of the two youngest. There was no explicit reference to less invasive options, nor was there an explanation as to whether other options were feasible or why care orders and adoption were necessary. The evidence from the LA and the guardian also failed to deal with these issues. The judgment came before the decision in Re B-S  EWCA Civ 1146, but after Re B (A Child)  UKSC 33.
Black LJ giving the leading judgment; the appeal was allowed and the case was remitted to be reheard. The Court of Appeal concluded that the judgment was deficient to the extent that the welfare decision was fatally undermined. Mr J only remained a risk to the children if he remained on the scene or was likely to return to it – there were no findings about whether M was still associating with Mr J, or likely to do so in the future. If Mr J did not pose a risk, M could not be considered to fail to protect the children from a risk that is not likely to exist. It was noted that the LA closed the case with no supervisory oversight after consideration of the 2006 conviction. Without a sufficient evaluation of the risks flowing from Mr J’s sexual activities, all that was left were concerns about M’s ability to provide the children with emotional care and her ability to protect – these issues alone did not warrant the orders made.
Further, the judgment did not sufficiently deal with whether there were any less draconian outcomes that might be possible for the children, such as whether the children could be protected whilst living at home with supervision by the LA and family members. There was also an insufficient examination of the implications for the children of being removed from the home permanently and the siblings separated, particularly bearing in mind that there was evidence that the children were loyal to M and the oldest two expressed a desire to go home. In conclusion, there was no global, holistic consideration of all the factors and each of the options as required by Re G  EWCA Civ 965, which was handed down during the course of the final hearing.
Litigant in person: M appeared in the Court of Appeal as a litigant in person. The court noted that there are increasing problems with more and more litigants in person, which requires those involved in the appeal process to take on additional burdens. A litigant in person will not necessarily appreciate who should be served with documents or what documents should be included in a bundle. Therefore LAs should be expected to assist by ensuring that the court is provided with the necessary number of properly prepared appeal bundles to assist the court to make a timely decision. If an appellant provides a deficient bundle, it “should be standard practice for the local authority to take steps itself, well in advance of the hearing” to consider the bundle and, if it is deficient or non-existent, to contact the court to enquire whether it is necessary to supply alternative or supplementary bundles.
Re B (A Child)  EWCA Civ 565
Appeal to the Court of Appeal in public law proceedings on an important point of principle or practice, considering the power and extent of an appellate court’s ability to ‘fill the gaps’ in the reasoning of a first instance decision and when such a discretion should be exercised, as opposed to directing a full re-hearing.
The FPC (as it then was!) had made care and placement orders in respect of B, aged 23 months. That decision was appealed by B’s parents and HHJ Clark found that the magistrates’ reasoning had been wrong in law for three primary reasons: it was linear; there was a lack of long-term welfare analysis; and there was no evaluation of the proportionality under Article 8 ECHR. Despite this, HHJ Clark undertook her own “holistic” welfare and proportionality evaluation and dismissed the appeal.
Ryder LJ, giving the leading judgment; appeal allowed and the case remitted for re-hearing.
The Court of Appeal, summarised the principles underpinning a court’s decision to make placement orders and briefly reviewed recent case law. He identified a “continuum” between the court’s analysis of welfare and proportionality: an error in the former inevitably affected the latter. In light of this, the appellate court’s power to review the first instance decision came in two stages: the appellate judge had to (i) identify an error of fact, value judgment or law; and (ii) exercise her discretion as to whether that error permitted her to re-make the decision or necessitated a full re-hearing.
The discretion in (ii) was inevitably fact-specific; if the error was sufficiently discrete to be corrected or the decision could be re-made without procedural irregularity then the appellate court had the power essentially to “fill the gaps” of the defective first-instance reasoning. However, in this specific case the evidence before the magistrates and, therefore, HHJ Clark was deficient so as to have required a re-hearing.
Black LJ declined to describe a “proper case” in which it would be appropriate for an appeal judge to substitute his or her own decision on the basis of his or her own welfare evaluation but helpfully discussed examples of the Court of Appeal’s approach to the exercise of this discretion, from paras 61 onwards.
Re S (Children, W & T)  EWCA Civ 638
Application by parents for permission to appeal against findings of fact in care proceedings. Consideration given to the local authority’s ‘neutral stance’ in respect of the appeal.
The allegations on which the judge made findings were allegations of sexual abuse made by P, the fourteen-year old sister of the mother, against both parents. The parents sought to challenge both what they asserted were procedural irregularities in the proceedings that led the judge to make a number of significant findings against them, and the judge’s assessment of the evidence before her. The challenge to the findings of fact was focused on the assertion that the judge had failed to meet the inherent improbabilities of the allegations in P’s accounts.
The alleged procedural irregularities concerned the limited time to prepare for the finding of fact hearing, the fact that a DVD containing some of the witnesses’ police interviews did not arrive until the first day of the fact-finding hearing, and that the transcripts of these interviews were not made available until the third day of the five-day hearing. The parents also complained that the judge had interrupted the flow of cross-examination too frequently and so had disrupted the flow of the evidence.
McCombe LJ giving the leading judgment; application for permission to appeal dismissed.
The unanimous view of the Court of Appeal was that the parents were not prejudiced by the late arrival of evidence and pointed out that there had been no application for an adjournment on behalf of the parents. Further, that the cross-examination of witnesses had been conducted appropriately and with tenacity.
In relation to the suggesting that the judge had inappropriately interrupted the flow of cross-examination, having considered the case law on this point, in particular the observations of Denning LJ in Jones v National Coal Board  QB 1955, the court concluded that at no time did the judge overstep the line and ‘assume the robe of an advocate’. The fact that she was hearing from young witnesses in particular at times required a more interventionist approach from the judge.
As far as the parents’ criticisms of the judge’s findings of fact were concerned, in her judgment, the judge had considered the apparent inconsistencies in P’s evidence and had carefully weighed up the evidence of all the witnesses who gave evidence at the hearing. She had given consideration to the relative credibility of the different witnesses. She had given full reasons for reaching the conclusion that P was being truthful about the allegations and she had therefore made findings that were entirely open to her to make.
The local authority was criticised for adopting a ‘neutral’ stance in relation to the appeal and for not attending after an inter-partes hearing had been directed.
Munby P went made some more general remarks, in particular he queried whether, as the law now stands, a separate fact-finding would have been necessary in this case. Current practice is to discourage their use and attention was drawn to the comments of Ryder LJ in Re S, Cambridgeshire County Council v PS and others  EWCA Civ 25.
A case from earlier this year which is relevant to the more recent decision in Leicester City Council v S  (below)
Re E (A Child)  EWHC 6 (Fam)
Judgment of the President of the Family Division dealing with the court’s approach to care proceedings concerning children from other European countries, and to reporting restriction orders in such cases.
This judgment is made ancillary to care and wardship proceedings concerning E, a 12 year old Slovakian boy, which concluded in the court approving a care plan for him to be placed in the care of the local authority but living with his maternal aunt. The proceedings attracted significant media attention in Slovakia.
The court gave permission to the Head of the Consular Section of the Embassy of the Slovak Republic in London to be present at the hearings as an observer in a non-participatory capacity. In response to a request from the Slovakian Central Authority for information pursuant to Article 55 of Brussels II revised [‘BIIR’] (cooperation between Central Authorities, acting directly or through public authorities), the court permitted the local authority to disclose to the Slovakian Central Authority various orders made during the proceedings, certain documents filed as well as a transcript of a particular hearing and permission to the Head of the Consular Section to provide an account of the hearing to the Slovakian Central Authority. During the proceedings the Slovakian Central Authority submitted a formal statement confirming that it accepted the jurisdiction of the court in England and Wales to deal with the proceedings.
In the judgment, Munby P notes the sharp rise in care proceedings involving children from other European countries and “the frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction” in such cases. The judgment goes on to set out guidance to practitioners and the courts in respect of the application of Brussels II revised [BIIR], Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963 [the Vienna Convention]; and reporting restriction orders (see full judgment).
In the case of a child from another European country, jurisdiction will be determined by BIIR, Articles 8(1), 12, 13(1), 14, 17 and 20. Leaving aside cases in which either Article 12 or Article 14 applies, the courts of England and Wales have jurisdiction in a care case involving a child only if either (i) the child is habitually resident in England and Wales (Article 8(1)), or (ii) the habitual residence of a child “present” in England and Wales “cannot be established” (Article 13(1)).
In determining habitual residence the court will apply the principles set out in A v A and Another (Children: Habitual Residence)  UKSC 60.
Article 12 provides that if the court of a Member State is exercising jurisdiction on an application for divorce, legal separation or marriage annulment, it shall have jurisdiction in “any matter relating to parental responsibility connected with that application”. Article 14 provides for a residual jurisdiction where no court of a Member State has jurisdiction pursuant to Articles 8 – 13.
Article 20 provides for a court “in an urgent case” to take “provisional, including protective, measures” until the courts of the Member State with jurisdiction has taken the measures it considers appropriate. Article 20 contemplates “short-term holding arrangements”: Re B (A Child)  EWCA Civ 1434, para 85.
Where the court does have jurisdiction under BIIR it may exercise the power in Article 15 to request the court of another Member State to assume jurisdiction where (a) the child has a particular connection (as defined in Article 15(3)) with that other State, (b) the other court would be better placed to hear the case, and (c) it is in the best interests of the child. The courts of a Member State without jurisdiction could make a request to the courts of the Member State with jurisdiction, through its Central Authority, to exercise its power under Article 15.
In circumstances where the court does not have jurisdiction under BIIR, Article 17 requires the court to declare that of its own motion, whether or not there are extant proceedings in the court of the other Member State: Re B (A child)  EWCA Civ 1434.
Munby P stated that, from now on in any public law case with a European dimension, good practice would require the court to set out explicitly in its judgment and order:
(a) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;
(b) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.
Where Article 17 applies it will be the responsibility of the judge to decline jurisdiction. Judges will also wish to make appropriate use of Article 55 to obtain information from the other Member State where necessary.
The Vienna Convention
Munby P remarked that:
“[I]n cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state…If anyone thinks this is an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.” 
He went on to set out the following steps in all public law cases ,
- The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.
- Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state for
a. permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or
b. permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.
- Whenever a party, whether an adult or the child, who is a foreign national
a. is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
b. is detained
the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so without delay.
Leicester City Council v S  EWHC 1575 (Fam)
Consideration within public law proceedings of the making of a request under Article 15, Brussels II Revised, for the relevant authority in Hungary to accept jurisdiction. Guidance given on the role of Embassies/Central Authorities, international communications and Article 55.
The child had been accommodated by the local authority since 12 April 2013 after having been abandoned by the mother, who was Hungarian, for reasons which were unclear. It was not until 10 October 2013 that the local authority issued proceedings. The mother had returned to Hungary by this time. During the course of the care and placement proceedings the court, of its own motion, considered whether it should request the relevant authority in Hungary to accept jurisdiction pursuant to Article 15 of Council Regulation 2201/2003, namely Brussels II Revised (“BIIR”). The mother supported such a request, whilst the LA and Guardian opposed it.
Moylan J commented that had the case been commenced since the decision of Sir James Munby P in Re E (A Child)  EWHC 6 (Fam), the court would have considered at a much earlier stage whether to make a request under Article 15. He added:
“…the longer the determination of any jurisdictional issue, including under Article 15, is delayed, the more established the child’s situation becomes. The more established the child becomes in one jurisdiction, the more that fact in itself will gain in weight and significance. At one extreme, it might, of itself, become determinative” [para 8].
He emphasised the need for Article 15 to be considered at “the earliest opportunity”, in accordance with earlier decisions in the cases of Nottingham City Council v LM and Others  EWCA (Civ) 152, Kent County Council v C and Others  EWHC 604 (Fam) and Bristol City Council v AA and HA  EWHC 1022 (Fam).
Moylan J expressed concern that enquiries to obtain evidence from other Member States were often not pursued in a structured way. In this case, there had been an assessment undertaken by an English social worker in Hungary without consideration of whether this was legal (it being unlawful in some foreign jurisdictions, as highlighted on the Children and Families Across Borders website). The LA had also made a request by email to the Hungarian Central Authority for, among other things, the mother’s medical and social work records, without knowing whether, or how, such evidence could properly be obtained under Hungarian law.
Moylan J pointed to the need to have regard to the relevant regulations, the provisions of BIIR, the Evidence Regulation (namely Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters) and the Service Regulation (namely Council Regulation (EC) No 1393/2007 on the service in Member States of judicial and extrajudicial documents in civil or commercial matters).
Moylan J drew attention to the following procedural issues which can arise in care proceedings involving a child who is and/or whose parents/family members are nationals of or resident in another EU Member State [paragraph 14]:
“(a) The need to consider, before they commence such work, whether English social workers are permitted to undertake work directly in another EU Member State;
(b) The agency given primary responsibility for cooperation and communication under Chapter 4 of BIIR is the Central Authority [albeit Central Authorities should not be treated as evidence gatherers or enquiry agents – see paragraph 52];
(c) Central Authorities (or other foreign State Agencies, including Embassies) are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England. This includes “courts” of another Member State, as defined by BIIR, which are under no obligation to make a request under Article 15, the obligation being on the courts of England and Wales as set out in Re E (A Child) and Nottingham City Council v LM and Others;
(d) Embassies and consular officials are given no role in BIIR (or the 1996 Hague Child Protection Convention) and should not be used as proxies for Central Authorities;
(e) Requests under BIIR for information (under Article 55) must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation.”
Moylan J noted that the LA, and possibly also the court at previous hearings, had
“acted as though, in the absence of the relevant Hungarian authorities either raising any issue about this court exercising its jurisdiction or raising any concerns about the nature of the local authority’s application, they could be assumed to have accepted that England is the appropriate forum and that determination here is in the best interests of the child. This, with respect, is not the right approach” [paragraph 35].
Moylan J set out, in relation to this case, that in order to determine a request under Article 15, the court had to consider three questions:
1. Does the child have a particular connection with Hungary, as defined by Article 15(3)?
2. Are the courts of Hungary better placed to hear the case?
3. Is a transfer to the courts of Hungary in the best interests of DS?
He held that the child clearly had a particular connection with Hungary as he was a Hungarian national and because Hungary was the state in which the mother was habitually resident. He held that a number of important features pointed to Hungary being better placed to hear the case [paragraph 77]; the mother and father and all other extended family members lived in Hungary, spoke Hungarian and not English and indeed the parents had always lived in Hungary, save for a short period of months in England. There was a substantial body of historic evidence in Hungary held by public authorities which would be more readily available to, and more easily understood by, the courts in Hungary. Any further assessments of the mother or any other family members (and the judge’s initial view was that a further assessment of the mother was likely to be necessary) would have to take place in Hungary. The Hungarian court was better placed to obtain evidence of, and was better placed to evaluate, the assistance and support which the authorities or others might be able to provide.
Moylan J concluded that it would be in the child’s best interests for the case to be heard in Hungary. He noted that this question was intimately connected with the second question (above). He also considered that the delay involved in a transfer may not be substantial, since in any event, were the proceedings to continue in England, it would be necessary for further evidence to be obtained in England. The court therefore directed a request to be sent to the Hungarian Central Authority for that court to assume jurisdiction; Moylan J added in a postscript that this was accepted within 2/3 weeks with immediate steps being taken for the child to be placed in foster care in Hungary.
JG v The Lord Chancellor & Others  EWCA Civ 656
Successful appeal concerning funding of an expert report in private children law proceedings.
The LSC (as it then was) refused to fund the whole costs of an expert’s report notwithstanding that the judge at first instance had ordered that the costs be funded by the child (who was publicly funded) and had certified that it was a reasonable and necessary disbursement under the terms of her public funding certificate.
The child had been the subject of a s.8 residence dispute between her parents, brought by her father. Both parents were in person. The child was eventually joined in the proceedings in her own right and granted a public funding certificate. The district judge gave permission for the child’s solicitor to instruct an expert psychotherapist to assess family relations and the impact of the ongoing dispute on the child and ordered that the cost should be funded by the child, it being a reasonable and necessary disbursement. The court made further directions with respect to the report at subsequent hearings. The wording of the order was couched in single joint ex pert terms.
The psychotherapist was duly instructed, produced a report, gave oral evidence at an interim hearing, and sent the invoice of £12,000 to the child’s solicitors. The psychotherapist refused to do any further written work until this was paid (including preparing an addendum report which the court had directed). The invoice was then submitted to the LSC as a claim in relation to costs and disbursements, in accordance with the order of the court. The LSC was unwilling to pay the whole of the costs and stated that the costs should be shared equally by all the parties. Initially, the LSC wrote that this was as it was the father’s application and therefore the report is to assist him, and then on the basis that the report would benefit all parties and was a joint enterprise, and accordingly, the costs should be apportioned equally.
The LSC relied on section 22(4) of the Access to Justice Act 1999 (“AJA 1999”) and argued that the order that they pay the entirety of the costs of the report was a breach of that provision. For ease:
22(4) Except as expressly provided by regulations, any rights conferred by or by virtue of this Part on an individual for whom services are funded by the Commission as part of the Community Legal Service or Criminal Defence Service in relation to any proceedings shall not affect—
(a) the rights or liabilities of other parties to the proceedings, or
(b) the principles on which the discretion of any court or tribunal is normally exercised.
The LSC thus argued that the district judge made the decision he/she did that the child should fund the entirety of the report simply because she was publicly funded and similarly, that he/she exercised his/her discretion on that basis. Despite an exchange of correspondence, the LSC maintained their position.
At a later hearing, the district judge amended the original order in relation to the costs of the expert report, adding that it has carried out a means assessment as to the parties’ means and it has been found that they are unable to pay any of the costs associated with the report. The LSC maintained their position. This eventually led to the final hearing being adjourned, as the court deemed that there could not be a final hearing without the addendum report, with the judge recording that this was causing harmful delay prejudicial to the welfare of the child.
The child brought an application for judicial review against the LSC’s decision on the basis that the LSC had
i) acted unlawfully in refusing to pay for the report in full and
ii) the child’s solicitor had a reasonable expectation that the LSC would pay for the report in full.
The child’s challenge failed and Ryder J found for the LSC. She appealed, through her guardian, to the Court of Appeal.
Black LJ giving the lead judgment, allowed the child’s appeal finding in respect of i) that the LSC’s decision was unlawful but declined to give judgment on ii) on the basis that it was unnecessary to do so considering its findings under i).
As the crux of the Lord Chancellor’s argument was based on 22(4)(b), the Court of Appeal considered the principles governing the exercise of the discretion of the court in deciding how to apportion the costs of obtaining an expert’s report.
The Court of Appeal rejected the Lord Chancellor’s argument that there is a general rule that the costs of an expert report should be borne equally between the parties if they are all seeking to use it and found that the apportionment of the costs of an expert’s report was always a matter for the discretion of the court in light of all circumstances of the case in light of a line of cases commencing with Calderdale MBC v S and the LSC . Accordingly, s.22(4) did not prevent the court from making an order that a publicly funded party should meet the costs of a report if it was right on the particular facts and was in no way affected by the mere fact of public funding being available to one of the parties.
Secondly, the court considered whether a court was entitled to depart from the order it would have otherwise made with respect to the costs of an expert report when conducting the discretionary exercise described above and if so, in what circumstances. The Lord Chancellor accepted that there might be some circumstances in which a departure is justified and sought to argue that there should only be three circumstances in which that be the case namely: a) breach of convention rights (e.g. Articles 6 and 8, b) exceptionality pursuant to s.10 of LASPO 2012 c) impecuniosity. It was common ground that a departure from the normal order would not be considered unless the other parties were impecunious.
The Court of Appeal found that a party’s eligibility for legal aid is a useful starting point for determining impecuniosity but this was simply a factor the court had to have regard to (if the determination was available). The court had to make a decision based on the available information before it and the evidence it deems it needs. In this matter, the district judge had dealt with the parties’ financial remedy proceedings and was therefore au fait with their finances.
The Court of Appeal found that it was right that if there would be a breach of Convention rights were the expert report not available then that would allow a departure from the order the court would have made but for impecuniosity. Moreover, it was found that exceptionality was not a separate test but rather, a description of the test and that a breach of Convention rights would constitute an exceptional case.
In the circumstances of this case, the Court of Appeal did not need to consider whether a departure from the order the court would have made were the parties not impecunious was justified, as that order would have been that the child should pay for the costs of the report in any event.
The Court of Appeal found that the report was entirely instigated by the child’s guardian on behalf of the child and that the psychotherapist was the child’s expert rather than a single joint expert in the sense of all parties wishing to put expert evidence before the court. In those circumstances, it was right that the child, through the LSC, should pay for the entirety of the costs of the report and the district judge had not made an order which breached 22(4) AJA 1999.
This is an older one but cropping up more recently and had featured on Family Law Week again –
Re H (Children)  EWCA Civ 1797
Appeal by father in private law children proceedings against the decision to discharge his McKenzie friend. Appeal dismissed. Consideration given to the guidance concerning the involvement of McKenzie friends.
The case involved proceedings in which father alleged the mother had alienated the children from him. He was unrepresented but assisted by a McKenzie Friend. At the hearing before what was due to be a final hearing, the father applied for a named individual, his McKenzie friend in the proceedings at that time, to be granted rights of audience and allowed to conduct the proceedings on his behalf. The application was refused by the judge, who also excluded him from acting as McKenzie friend at future hearings. Per HHJ Carr QC,
“5. I am concerned about the fact that there is a crossing over it seems to me here of a McKenzie Friend into the realms of conducting litigation. So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much. I do not accept the explanation for Joshua [that is the name that was included in the father’s application]. I am not going to permit [the McKenzie friend] to be a McKenzie friend, as I am invited to do so, not only by the mother but also by Mr Philips on behalf of the children. I also think it is highly likely that she was intimidated in the manner she has described and of course given that the hearing is in January 2012, Mr [H] has plenty of time to appoint another McKenzie friend. If required to do so, I am happy to give further reasons, but this case is only allocated 30 minutes in what is a very busy list.”
There was evidence that the father’s McKenzie friend had overstepped the mark and prepared a document in the case template which referred to the name of a child who was nothing to do with the proceedings, even though the father asserted that 80 percent of the work had been done by him. Father appealed that case management decision. It was the first time the guidance in McKenzie Friends (Civil and Family Courts) Practice Guidance  2 FLR 962 had come before the Court of Appeal and included the then President, Wall LJ, who was reluctant to give any views on the guidance generally.
Wall LJ giving the leading judgement
Appeal dismissed. This was a case management decision which the judge was entitled to make.