PRACTICE POINTS

Any application for restriction of disclosure from the Register must be made to the High Court; a local authority will need leave so to do pursuant to Section 100(3) of the Act.

These cases are noted as examples of why the JSB advises that any court faced with an inter-country adoption, unless the judge is convinced by reason of knowledge and experience that it is problem free, should transfer it at once to the High Court. The High Court can always remit it later.

This is a complicated case in which there was substantial professional disagreement on the merits of a step parent adoption, including disagreement between the GAL and her own expert. However, it is principally noted for the Court's observations on the weight to be attached to the views of a natural father without Parental Responsibility. At pp 403 D-E/486 a-b Thorpe LJ says -

This was a very difficult case on its own facts and it is noted here for one point. In assessing the reasonableness or otherwise of a natural parent withholding consent, the court should look at the position after it has determined prior issues (eg where the child should live) and judge reasonableness on the basis that the reasonable hypothetical parent knows how these issues have been determined.

A prospective adoptive father had an old relevant conviction. The LA wished to support his application but were prevented from doing so by the terms of the Regs. The President held that whilst the Regs bound the LA, they did not bind the Court but were a matter to be taken seriously into account when considering their terms of s.6 of the Adoption Act; order made.

LA wanted to approve grandparents as foster parents but could not do so because of the Regs, the grandfather having long ago been convicted of a specified offence. Hogg J held -

1. the court may under Reg. 2(3) waive the relevant provision by giving a contrary direction; and

2. the Regs do not apply to private law proceedings.

thus on the basis of (5) and (6) above the court may now ensure that 'welfare' takes precedence over the mandatory form of the Regs which will of course remain a relevant welfare consideration.

A -v- Liverpool City Council [1982] ACT 363 (HL) is alive and well. Here Wall J uses it to justify allowing Local Authority to obtain leave under s.100 to invoke the inherent jurisdiction to discharge a freeing order where no other person had competence under the Adoption Act to make such an application, the child in question having been freed but not able to be placed.

This case provides an interesting example of CA upholding a decision to order residence of a 2 year old with the father where there had been serious difficulties over his contact with the child: the case is, however,

The case is noted by way of illustration of the (still valid) principle that where there is a contest between a natural parent and a member of the extended family as to residence, there is a presumption in favour of the natural parent. The first question is: is the natural parent a potential carer for the child? If yes, the presumption applies until "... on the totality of the evidence there were good grounds to reject the supposition in his favour".

Here the CA further considers the scope of the court's powers to order assessments under s.38 (6) of the Act and makes clear -

1. the power is confined to assessment and does not extend to therapy; and

2. concerns assessments of parents with child but not parents alone.

The CA also urges caution in imposing large expenditure on a LA 'resolutely opposed' to it.

Here a 'GILLICK' competent child in care applied under S.33 (7) for leave to be known by a new surname. The CA points out that there is no authority governing such an application and at p.674 G-H sets out the principles to be applied -

1. welfare remains paramount; but

2. the wishes of such a child should be given particular weight;

3. as should the views of the GAL; and

4. any objection should be subjected to 'searching scrutiny' of the motives and stated objectives of any objector.

During the currency of a secure accommodation order under s.25, the local authority concluded that the criteria required were no longer met. Holman J expressed the provisional views (the orders being made by consent) -

1. that notwithstanding an order being in force, a child could not be detained under it once the local authority concluded that the criteria were no longer satisfied; and

2. the proper remedy for a child so detained was to apply to the High Court for Habeas Corpus.

The Official Solicitor in December 1998 issued a new practice note which supersedes those of 1993 and 1995; references in text books and the Children Act Advisory Committee's (CAAC) Best Practice Guide must be read accordingly.

Where judges had made findings against a man of sexual abuse of children in care proceedings, those findings would not be disclosed to other interested parties (eg a youth club or the local authority of an area to which he had moved) unless -

1. either such disclosure were required or permitted by statute; or

2. was justified accordingly to the criteria laid down in Re EC (leading case 96/6 in this series).

This case is noted for the order made where practising Muslims were planning to take a child to a country subject to Sharia Law. Its essential lies in the taking of formal oaths in place of the usual undertakings or 'mirror' orders.

Where the High Court allows an appeal from a F.P.C. and remits it for rehearing, there is power to direct that the remitted case be so heard in the County Court.

A father who had won £1.4m on the lottery was required to purchase for his child's use (and therefore necessarily for her mother and half siblings) a substantial residential property. However, in conformity with the purposes of s.15 and Sch 1 of the Act, the property would be held on trust for the child until age 21 or completion of full-time education (whichever was the latter) and would then revert to the father. A further lump sum of £23,000 was ordered absolutely.

In respect of a disabled child of unmarried parents, the combined effect of s.15 and Sch 1 of the Act and s.8 of the Child Support Act 1991 (as amended) was that financial provision could be ordered against a parent for such a child beyond his 19th birthday. However, such maintenance was restricted to those costs attributable to his disability although that was to be generously interpreted; Thorpe LJ doubted that any such restriction applied.