Letter from America: a busy week for family law back in Britain

So here I am: sitting in 30 degree heat, lounging on a white sandy beach and looking out onto the Atlantic Ocean in West Palm Beach, Florida.

Alas, all is not quite what it seems. Tucked under my panama hat, my hair has been ravaged by the heat and the humidity. It reminds me of the hair Spitting Image gave Douglas Hurd’s puppet. For younger readers who won’t understand that reference, just think of it resembling a walnut whip!

But it’s worth it for a week’s blissful holiday, booked only a few weeks ago when British Airways suddenly announced a fantastic online seat sale that was so irresistibly cheap I impulsively booked two seats to Miami.
At the time my dad said: “No one goes to Miami in July, it’s too hot and humid”. My husband was also doubtful. He said he couldn’t make it because he had several court appearances. He is always too busy to take a break, but when I told him the seats were non-refundable and couldn’t be altered, he smiled and crossed out the week in his diary with a huge sigh of relief. He needs the break too.

In the USA the big story in the news, aside from the terrible Denver shooting and the widespread and generally positive comments about Britain and the Olympics, is the decision to send in the Federal government to overhaul the New Orleans Police Department. It seems it has at long last been acknowledged as completely corrupt.

What chance did anyone previously stand if a corrupt police officer decided to target them? Not much according to the statistics coming out of New Orleans. Because the scandal has now become a national embarrassment, the ‘Feds’ have stepped in to make comprehensive changes. Fair enough, but it is all too late for those who have been persecuted or faced miscarriages of justice due to corruption. I’m also left wondering how widespread the problem is elsewhere?

So I was interested to read today the judgment of the Supreme Court in the case of Re T. It concerned the correct approach to be taken when ordering costs against public authorities in fact-finding hearings in care proceedings. In particular this was an appeal to consider the liability of a local authority to pay the costs of a party to care proceedings. The decision of the Supreme Court to hear a case purely on costs is rare but as the court explained, it raised an important point of principle.

The proceedings related to two children, whose parents were separated. The local authority applied for a care order in response to allegations by the children that they had suffered sexual abuse by their father and six other men, in which the father’s parents had colluded. The six men and the grandparents were joined to the care proceedings as interveners. The judge conducted a lengthy fact-finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse.

The six men qualified for legal aid but the grandparents did not. They incurred costs of £52,000, which they met by taking out a mortgage on their house. At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them.

The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct had been unreasonable or reprehensible. The Court of Appeal allowed the grandparents’ appeal, holding that costs could be awarded in respect of discrete fact-finding hearings. The case was then sent to the Supreme Court, but on the basis that in this particular case the outcome would not affect the result in the Court of Appeal. In any event their appeal was upheld.

An obvious order would be similar to those in criminal court cases: payment should come from central funds, i.e. the government pays. But unfortunately there is no such provision in these cases. So should the Local authority, effectively acting as prosecutor, pay instead?

The outcome indicates that third parties who are innocently dragged into care proceedings where there is a hearing as to their own involvement, will still have to pay their own costs even if they are proven completely innocent of the allegations against them. The court so ruled, expressing concern for the resources of the local authorities and the use to which they would be put.

The judgment stated that:

“It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the
allegations are made.”

The Supreme Court made it clear that a local authority could not be held responsible for the deficiencies of public funding, and in the clear absence of reprehensible behaviour or an unreasonable stance, the local authority has a duty to investigate and pursue the allegations and is not liable for the costs, even if it turns out that such accused parties are wholly innocent irrespective of the cost to them.

There is clearly a balance between the need of the local authority to investigate on behalf of a child, and not to be off put by a potential costs pay out if the decision turns out to have been unnecessary. The Supreme Court obviously  thinks it has found the way out by making clear the exception to the costs order. The behaviour has to have been reprehensible or unreasonable.  But how high will the bar be set, before costs pay outs can occur?

Coming back to New Orleans, I can only wonder how many hundreds of innocent people were affected before an investigation even began. So how many over-zealous, officious and completely wrong social workers or medical experts, involved in taking information from young children, can now start the ball rolling against wholly innocent individuals without resources? Safe in the knowledge that it is highly unlikely they will ever be found to have breached the requisite standard before a costs order can be made. How many innocent families might then get torn apart because they just can’t afford to fight, knowing for sure that there is no guarantee of success and that they will certainly lose their home?

Did the Court of Appeal get it wrong? From the perspective of this particular couple, they got their home back. Justice was done. Or the Supreme Court? Again I don’t think so, because the prosecutor shouldn’t have to pay up. The answer surely lies in having a central fund to pay out. Until then, there is a serious problem.

But let me throw this out for discussion: re ‘no order’ for costs principles in family law, whether applying to private or public cases, in need of a radical rethink?

The case of Re W has also been widely reported back in England this week. It concerns a father who finally got justice from the Court of Appeal after four years. The mother of his two children had denied him contact for that period in a case of implacable hostility (something we recently looked at). She made a number of allegations against him, including that he was abusive, all of which had to be investigated by the court. That the case could run for so long seems to me to be due to two main reasons.

The first is the lack of risk via the current costs rules in family proceedings, which is set out in the Family Procedure Rules 2010 and was coincidentally explained by Lord Phillips in Re T in paragraphs 7-13 of that judgment.

Take them in please – they’re important.

The second is the law. Lord Justice Macfarlane’s observations as to the duties and obligations of the parents who hold parental responsibility from the Re W judgment, is set out in full at Family Lore. To a trained lawyer it makes a lot of sense, and it indicates just how much emphasis the courts place on parents to resolve such issues between themselves.

So does the quote of Lord Justice Munby’s judgment in Re C [2011] EWCA Civ 521  who summarised the relevant European Court of Human Rights (ECHR) case law as follows:

“a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

e) The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

f) All that said, at the end of the day the welfare of the child is paramount; the child’s interest must have precedence over any other consideration.”

Yes it all reads very well indeed, except of course for all the thousands of parents who need to know and understand their legal position and are highly unlikely to read any of these cases.

If the welfare checklist was to be amended as per the government’s recent announcements –which I am strongly backing – it would represent a significant step in the right direction.

By contrast, in another case heard in the Court of Appeal, Sir Mark Potter handed down a judgment in the case of Re S  in which he finally upheld a decision to allow a mother to move to Norwich with her two-year-old, away from an apparently controlling father.

I’m sure there are many who will disagree with the court’s decision. But relocation within the UK is almost always permitted and this case is no exception. That these cases often drag on through several appeals, leading to significant legal costs and indescribable stress for the family, is surely only because the no costs principle is so fervently applied.

These cases demonstrate the powerful impact the court’s ruling can have on family life. It is so powerful that a home can be lost, and/or a family can be destroyed for ever. That’s why I have my doubts about the removal of costs constraints in family law, as I believe the risk of costs can act to curb the abuse of power by the wealthier party or where there is currently no costs risk at all. All that is required is the payment of a court fee to ensure access to a top judge and never ending litigation.

I’ve written before about my objection to the ‘no order’ principle in financial cases on marital breakdown, where there is no doubt at all in my mind that the current costs regime acts against the weaker party. And it is now clear that the current costs regime could even potentially lead to abuse as above in care proceedings, and almost certainly does in private children cases. There are many who strongly argue in favour of the no costs principle enshrined in law as it is, but perhaps it is now time to consider the arguments against.

And that’s all from me for this week. I will see you back in Blighty and hope everyone enjoys the start of the London Olympics. As I mentioned at the beginning of this post, we Brits are going down a storm over here. I’m going out exercising every day, proudly wearing my Union Flag t-shirt and shorts!with the exception of Piers Morgan, who is deeply unpopular. I have caught him once or twice on CNN and wholeheartedly agree that in a country where effusive good manners are the norm, he comes over as plain rude!