eBulletin - Legal Update
Winter 2014

Welcome to the Winter 2014 edition of the College Chambers e-Bulletin, featuring articles on a variety of areas of legal practice. We hope you find this e-Bulletin interesting and topical. Please do not hesitate to contact us if we can advise further.

Article 1 - A Child’s State Of Mind - Patrick Goodings

An Overview of the Supreme Court’s Recent Decision In the Matter of LC (Children)

In the Matter of LC (Children);

In the Matter of LC (Children) (No2)[2014] UKSC 221

On 15 January 2014 the Supreme Court gave its judgment in the Matter of LC (Children), the appeal having being heard on 11/11/2013.

The principal question of the appeal was set out at paragraph 1 in the lead Judgment given by Lord Wilson, whereby he stated

Now that it is clear that the test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment there, may the court, in making that determination in relation to an adolescent child who has resided, particularly if only for a short time, in a place under the care of one of her parents, have regard to her own state of mind during her period of residence there in relation to the nature and quality of that residence?

Yes, said Lord Wilson at paragraph 38.

As a brief background the case involved four children (T (a girl aged 13), L (a boy aged 11), A (a boy aged 9) and N (a boy aged 5)) and followed the mother’s (a Spanish national) application under the Convention for summary return of the children to Spain following an alleged wrongful retention by father (a British national) on 5/1/12.

The High Court at first instance found that the children had been habitually resident in Spain and consequently ordered a summary return. The Children, especially T, had expressed a desire not to return and indeed the ‘wrongful retention’ was the result of L and A hiding the family’s passports to prevent a return to Spain.

T was the most militant in respect of any return and was subject to an application by father to join her to proceedings which the High Court refused. This aspect then formed the subsidiary part of the appeal before the Supreme Court.

The father appealed along with T who had consulted a solicitor and L and A who had in turn consulted their own solicitor. The Court of Appeal dismissed the appeals of T, L and A against the failure of Cobb J in the High Court to make them parties to proceedings. The Father’s appeal was based on three grounds;

    That Cobb J had been wrong to hold the children habitually resident in Spain
    That Cobb J had been wrong to characterise the wishes of L and A not to return to Spain as only preferences rather than as objections
    Cobb J, having found that T objected to being returned to Spain and had attained the requisite age and degree of maturity, erred in deciding to exercise his resultant discretion to decline to order her to return to Spain.

The Court of Appeal rejected grounds one and two but upheld ground three. That opened up the argument that by not returning T but returning L, A and N the action may place the younger children in an intolerable situation. The case was remitted to a Judge of Family Division for its determination.

The appeal to the Supreme Court was brought in part, on the basis of father and T’s aspirations to secure the reversal of the Judge’s ascription to them of habitual residence in Spain due to the effect of The Brussels II Revised (see paragraphs 20 -22 Judgment). The second limb of the appeal was whether T should have been joined as a party.

Through the course of proceedings the Children had been interviewed by CAFCASS and it is interesting to note the reports of Ms Vivian of CAFCASS and the salient points taken therefrom which guided the court as to the state of mind of the children (paragraph 26 Judgment).

When examining the test of habitual residence Lord Wilson stated

Where the child is older, in particular one who is an adolescent, and perhaps also where (to take the facts of this case) the older child’s residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there…. What can occasionally be relevant to whether an older child shares her parents habitual residence is her state of mind during the period of residence with that parent (paragraph 37 Judgment).

The Supreme Court set aside the finding of Habitual Residence for all four children and remitted the issue to the High Court for fresh consideration alongside the matter previously remitted by the Court of Appeal.

The Supreme Court also allowed the secondary limb of the appeal and found that the eldest child should have been joined as a party to proceedings.

Lady Hale and Lord Sumption agreed with the majority. However they proceeded to further find that the state of mind examination of a child should not be simply limited to adolescent children, but could in relation to the matter before the court apply to L and A who were aged 10 and 8.

When considering the primary aim of the convention as being to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. It is interesting to see the Supreme Court adopting a ‘child centric’ approach in this instance.

Careful examination of a child’s state of mind in relation to Habitual Residence may well widen avenues of challenge to return orders, whilst potential argument surrounding manipulation and influence in response is likely to increase litigation in this ever growing area.

Article 2 - Contact With New-Born Babies In Care - Daniel Nother

On 15 April 2003, Munby J (as he then was) delivered his judgment in the case of Re M [2003] 2 FLR 171. He said at paragraph 44(iv) ‘If a baby is to be removed from his mother one would normally expect arrangements to be made by the local authority to facilitate contact on a regular and generous basis. ... Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. … Contact two or three times a week for a couple of hours a time is simply not enough if parents reasonably want more.’

Re M was a judicial review application by the parents to restrain the local authority from issuing public law proceedings in respect of their as yet unborn child.

Bodey J considered Re M in Kirklees Metropolitan District Council v S [2006] 1 FLR 333, a case involving a one-month-old baby. He noted that Munby J’s views cited above were obiter dicta and said at paragraph 32 that an order for daily contact to a child in care ‘is on any view (to put it at its lowest) exceptionally unusual’; each case would have to be looked at one is own particular merits. He added at paragraph 41 that the local authority should supply evidence in support of any contention that resources are relevant. Remitting the matter back to the Family Proceedings Court, he concluded at paragraph 42: ‘Unless rehabilitation can be seen as being likely in the near future, I would respectfully suggest that an order involving all or most weekdays, but not weekends (or at least not every Saturday and every Sunday) might be regarded as the appropriate way forward.’

There has been no further reported word on the subject from the higher courts.

Re M and Kirklees became routinely relied-upon by advocates for parents contending for extensive contact.

Then in 2009 Jenny Kenrick, a psychotherapist, published her paper ‘Concurrent planning: A retrospective study of the continuities and discontinuities of care and their impact on the development of infant and young children placed for adoption by the Coram Concurrent Planning project’ (2009) 33(4) Adoption and Fostering 5-18. She argued that over-regular contact was highly disruptive to infants who have an overriding need to form positive attachments with their foster carers; such children may already be disadvantaged by parental substance misuse in utero and/or abusive parenting during their very early lives. Regular, perhaps lengthy, journeys to and from contact with no consistency of staff accompanying the child on the journey or supervising the contact was disruptive and foster carers reported the effects.

At a President’s Debate in December 2010, Munby LJ (as he then was), echoed these concerns and said that the emphasis should be on the word ‘reasonably’ in the phrase ‘if parents reasonably want more’.

It has become common practice for local authorities to quote the Kenrick research in support of more limited levels of contact.

An Australian paper echoed Kenrick’s views (C Humphreys and M Kiraly, ‘High-frequency family contact: a road to nowhere for infants' (2011) 16(1) Child and Family Social Work 1–11) and argued that there was no correlation between frequency of contact and likelihood of an ultimate return home to natural parents.

Both the Kenrick and the Australian paper were criticised by Peter Dale in his 2011 paper ‘Restriction on natural parent contact with infants during care proceedings – some cautions about recent research and developing practice.’ Dale questioned the independence of Kenrick, the small scale of her research, the below-average rates of return to natural parents of the children considered and Kenrick’s focus on accounts from adoptors.

In July 2012 Martin Narey, then Ministerial Advisor on Adoption, issued on behalf of the Department of Education a ‘Call for Views: Review of Contact Arrangements for Children in Care’ with a closing date for responses of 31.8.12. (Embarrassingly, only one lawyer and one member of the judiciary responded.)

The Government has published its summary of feedback and response and proposed amendments to Children Act 1989 s.34 which appear in the Children and Families Bill 2012/13, expected to be passed in April 2014. The Secretary of State will be granted the power by regulations to make provision ‘as to what a local authority in England must have regard to in considering whether contact between a child and a [parent etc.] is consistent with safeguarding and promoting the child’s welfare.’

The resulting picture is confusing for the courts, lawyers and social workers. My experience, which I suspect matches those of other practitioners, is that two or three times per week is a not untypical level of contact; rather below the Kirklees anticipated levels.

The time is ripe for guidance from the Court of Appeal to consider law, academic research and practice on the ground and to set out fresh guidance.

Article 3 - Re W (A child); Re H (Children) (2013) EWCA Civ 1177 - Anthony Hand

Parents’ successful appeal against the making of orders refusing them permission to oppose the granting of adoption orders in relation to their children – Re BS (children) was revisited and confirmed.

I had the somewhat daunting task of representing a respondent local authority in the Court of Appeal on an adoption case the week after the judgment in Re BS was delivered by the President.

The judgment in Re W (a child) and Re H (a child) deals with two separate appeals (I was counsel for the Local Authority in Re W) made by parents against refusals to grant them permission to oppose adoption of their children pursuant to s.47(5) of the Adoption and Children Act 2002. So in both cases, care and placement orders had already been granted, and the respective children had been placed with prospective adopters. What the parents were trying to do was to oppose the making of adoption orders.

The President, Sir James Munby, delivered the lead judgment dealing with both the case of Re W and the case of Re H. In any application for leave to oppose the making of an adoption order under s. 47(5) Adoption and Children Act 2002, the law is now to be found in Re B-S, the President said. Earlier case law must be read in that light. “The Court of Appeal will expect, and be entitled to expect, that from now on judgments will reflect and give effect to the approach which Re B-S requires. Judgments that do not clearly do so are likely to be subject to anxious scrutiny and critical comment”(paragraph 15).

However, how was the Court to deal with appeals that arose from first instance decisions given in the weeks or perhaps months before the judgment in Re B-S in light of the new principles therein and the requirement for a B-S analysis? Well, the President said that appropriate allowance must be given for the fact that the first instance decision pre-dated Re B-S. In any appeal, “the focus must be on substance rather than form. Does the judge’s approach as it appears from the judgment engage with the essence? Can it be said, on a fair reading of the judgment taken as a whole – a fair and sensible reading, not a pedantic or nit-picking reading – that the judge has directed his mind to and provided answers to the key questions?” For example the mere fact that in dismissing the application for permission to oppose, the first instance judge used phrases such as permission is only granted “exceptionally rare” cases, or that the test is a “stringent” one, does not mean in itself that an appeal is likely to succeed (both phrases were disapproved of by the President in Re B-S).

The President also made it clear that in dealing with s.47(5) applications it is a two stage process. “There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?” Para. 19 of Re W(a child); Re H (children).

At this second stage, the judge has to evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue is whether the parent’s prospects of success are “more than just fanciful, whether they have solidity”. If the answer to this point is no, then once again the application goes no further. However, if the parent is able to establish that he or she does have “solid prospects of success, the focus of the second stage of the process narrows very significantly.” The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused” – para. 22. COMMENT - please note that one is considering here the potential detrimental effect on the child of a contested adoption hearing. In many cases where the child is a baby or very young they will be blissfully ignorant that his or her carers are going through a contested hearing, and therefore the child will arguably be unharmed by it.

Turning to a different issue, the President went on to indicate in his judgment that henceforth even if the application for permission under s.47(5) is refused then the judge should not proceed to make a formal adoption order that same day or proceed immediately to a celebration hearing. Rather, it would be prudent to wait until the time for permission to appeal has expired, before proceeding to make final orders.

In both appeals the parents were successful and each case was remitted to the respective first instance circuit judges for rehearing in the light of the Court of Appeal’s decision in this case and Re B-S.

Article 4 - Cycle Helmets, Contributory Negligence And Diffuse Axonal Injury - Derek Marshall

Although the wearing of helmets on bicycles is not compulsory as it is with motorbikes, the law nevertheless says that a failure to wear a helmet may amount to contributory negligence if the rider is injured in a collision: Smith v Finch . In fact, the Defendant failed to achieve a reduction in damages for contributory negligence in that case because the evidence showed that the wearing of a helmet would have made no difference to the Claimant’s injuries given the speed of the collision and the mechanism of the accident, but the principle is well-established.

The point was revisited in Reynolds v Strutt and Parker in which the Claimant’s damages were reduced by as much as two thirds, although this was only partly due to his failure to wear a helmet. The Claimant had forced the collision by trying to ease a competitor in a scratch race off the course. The most recently decided case on the subject, Pethean-Huble v Coles concluded that the lack of a helmet had not contributed to the injuries suffered by the rider, although the trial Judge reviewed the literature and concluded that it was generally a wise thing to wear one. The British Cycling Federation certainly recommends it.

The type of head injury suffered in these cases may be critical to the outcome of whether contributory negligence is a factor. Diffuse axonal injury (DAI) is one of the most common and devastating types of traumatic brain injury, and arises where damage occurs over a more widespread area than in a focal brain injury. DAI, which refers to extensive lesions in white matter tracts, is one of the major causes of unconsciousness and persistent vegetative state after head trauma. It occurs in about half of all cases of severe head trauma and also occurs in moderate and mild brain injury.

Unlike brain trauma that occurs due to direct impact and deformation of the brain, DAI is the result of the traumatic shearing forces that occur when the head is rapidly accelerated or decelerated, as may happen in car accidents, falls, and assaults. It usually results from rotational forces or severe deceleration. Vehicle accidents are the most frequent cause of DAI but it is sometimes seen in serious cycle accidents where the Claimant is thrown up into the air by the impact and lands obliquely on the road surface. Even a properly fitted helmet will not prevent the rider from a DAI or rotational brain injury. A cycle helmet is only protective of linear impact injury. Unfortunately, in many of these cases the Claimant has no memory of the accident and cannot describe what happened.

Where a Claimant cyclist was not wearing a helmet therefore and the issue of contributory negligence is indicated therefore, practitioners need to give careful thought to the following factors:

  • The period of unconsciousness
  • The period of loss of memory
  • Eye witness evidence as to the movement or flight of the cyclist after impact
  • The trauma team’s report as to the mechanism of injury and the immediate view as to the type of injury suffered

Expert evidence will normally be required in the form of

  • A consultant neurologist’s report on the nature of the injury
  • An engineering report which calculates the first probable point of impact between bicycle/cyclist and vehicle, the movement of the cyclist immediately after impact and the height from which the cyclist fell onto the road surface
  • A psychology report and usually, psychometric testing
  • It may be necessary to call for an MRI scan specifically to check for DAI

Claimant's advisors should not accept too readily a defence of contributory negligence without thorough investigation but Defendant’s advisors should remember that where DAI is indicated, it is not necessarily an “all or nothing” condition. There may still be a significant element of direct impact brain injury which is unaffected by the DAI issue. The injuries might still have been reduced had a helmet been worn.

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