Children Act Case Notes
2000 - Part 2
Issue 26
The Children Act Case Notes are compiled by His Honour
Judge Hedley on behalf of
the Children Act Sub-committee of the Lord Chancellor's Advisory Board on
Family Law.
Practice Points
(25) Re AGN (ADOPTION: FOREIGN ADOPTION) [2000] 2 FLR 431 (Cazalet J)
Any court considering dealing with a foreign adoption should
consult this case for guidance on the question of the consents required for
the making of an order. Generally it will be wise to refer overseas cases
to the High Court if only for a decision as to whether they should remain
there.
(26) Re F (ADOPTION: FREEING ORDER) [2000] 2 FLR 505; 3 FCR 337 (CA)
In considering whether to dispense with parental consent
to an adoption or freeing application, the Court of Appeal draw attention
to the earlier case of -
Re C (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260; [1992]
2 FCR 485.
And commend the way in which the issue is there formulated. It is quoted
on pp 509/342 of the judgment -
".... whether, having regard to the evidence and
applying the current values of our society, the advantages of adoption for
the welfare of the child appear sufficiently strong to justify overriding
the views and interests of the objecting parent or parents".
The case does not, of course, impugn the classical authorities on this
point but it may signal that welfare becomes an ever weightier factor in
the balance.
(27) Re S (A CHILD) (EX-PARTE ORDERS) [2000] 3 FCR 706 (Munby J)
This case provides a reminder of the duties laid (and if
necessary to be imposed) on those who obtain ex-parte orders in terms of formalising
procedures and providing information to anyone made subject to such an order.
(28) Re H (ABDUCTION: HABITUAL RESIDENCE: CONSENT) [2000] 2 FLR 294; 3 FCR
412 (Holman J)
This case reminds courts of the need to be alert to cases
which may have Hague Convention implications ie cases involving children who
have been living abroad. Any such case should immediately be transferred to
the High Court. A court faced with such a case can always telephone the Official
Solicitor to obtain advice.
(29) Re G (SECURE ACCOMMODATION) [2000] 2 FLR 259 (CA)
Although an Order cannot be made after a child's 16th birthday,
an order made before then, even if its expiry date falls after that birthday,
is lawful.
(30) Re R (CARE PROCEEDINGS: DISCLOSURE) [2000] 2 FLR 751; 3 FCR 721 (CA)
In care proceedings the Guardian ad Litem asked to see
the "Part 8 Review" conducted by the Area Child Protection Committee
into the death of the child's half-brother. The Court of Appeal held that
he was entitled to do so under the "Working Together" guidance.
A detailed analysis of the statutory regime is to be found in the judgment
of Wilson J, expressly approved by the court.
(31) Re P (CARE ORDERS: INJUNCTIVE RELIEF) [2000] 2 FLR 385; 3 FCR 426
(Charles J)
The court has power under Section 37 Supreme Court Act
1981 to grant injunctions in support of a care order and recourse to the inherent
jurisdiction is not required. In this case injunctions were required to prevent
parents impeding a child's education. If that is the case, should not the
County Court have power to make a like order under Section 38 County Courts
Act 1984?
(32) Re P (CHILDREN ACT 1989 SECTIONS 22 AND 26: LOCAL AUTHORITY COMPLIANCE)
[2000] 2 FLR 910 (Charles J)
The court accepted that the father presented an unusual
and continuing level of danger to the children. It was further held that,
reading Sections 22 and 26 (which impose duties to consult and inform parents)
in the context of the Act as a whole, the provisions were directory rather
than mandatory, in that non-compliance did not of itself vitiate an act or
decision. Moreover, there is a discretion pursuant to Section 33 of the Act
as to compliance but this should only be used as far as welfare makes it necessary.
Any decision in this regard under a care order is, of course, for the local
authority and not for the court.
(33) CLARKSON -V- GILBERT [2000] 2 FLR 839; 3 FCR 10 (CA)
The strict rules about allowing unqualified advocates to
represent litigants in family proceedings should not apply to a close relative
of the litigant. The only question (to be determined on notice) was whether
there was good reason on the facts to grant such rights. Here a husband was
allowed to represent a sick and anxious wife.
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