- How will a court treat a unilateral internal relocation by one parent if it is impacting on the other parent’s relationship with the child/children?
Unfortunately, the unilateral internal relocation of children is not uncommon to a Family Practitioner. What is meant by this phrase, is one parent re-locating with a child within the jurisdiction of England and Wales.
Cases of this nature will be fact-specific, and the age of the children will be important to establish the harm caused by any move, including whether this also meant a removal from their educational establishment and as such a removal from any formed friendship group or social life.
If the parents have a positive co-parenting relationship and an established method of communication, the impact on the children might not be as drastic, particularly if the relationship with the other parent can be properly maintained.
The real issue, as outlined in the below case, is that internal relocation can have a negative impact on the children’s relationship with their other parent, and the move can be done with the positive intention of stopping a positive relationship with the other parent.
W v N-F [2023] EWFC 302
Background
This was the father’s application for a Child Arrangements Order following the mother’s unilateral decision to re-locate with the children from Surrey to Buckinghamshire.
At the time of the father’s original application, he had also sought for the children to be returned to their previous school, by virtue of a Specific Issue Order. This was not pursued given the time that had since passed.
There was a pre-existing Child Arrangements Order, dated 23 May 2019, which determined that the children would live with the mother but spend alternate weekends from Friday to Monday with their father. The school holidays were to be shared by the parents.
In November 2019, a final order was made for financial provision, such that the father was to have a housing fund for the mother in the sum of £410,000.00, but the order stated:
“Any property chosen must be in the jurisdiction and within a reasonable distance of the children’s school”.
On 2 September 2021 the parents attended a remote injunction hearing. The following day the attended the children’s school to be told they had left, and the school considered the mother had consent from the father to allow that.
It transpired that the mother had entered into a tenancy agreement for a property in Buckinghamshire and subsequently removed the children from school the day before the injunction hearing, which she did not mention at the hearing as she did not think the father would have agreed to it.
Recorder Hellens made clear in their judgment that “the father should have been told what had happened, but even had he been it would have been too late. He should have been involved. The Mother’s unilateral decision to move away and remove the Children from the school should not have happened.”
The mother said her move was to enable her to be closer to her partner. The court struggled to see how a move to the new area was in the best interests of the children.
There followed multiple hearings, where the mother sought for the father to have indirect contact with the children and Deputy District Judge Hayes commented:
“I get the strong impression that she has sought to deprive a relationship between father and children… There is a history of mother’s reluctance to for contact, exacerbated or made worse by the distance between the parties.”
Conclusion
The Judge consider the welfare of the children, specifically referring to the welfare checklist.
The Judge made it plain that:
“The parents have an equal responsibility for their Children. The history of the mother making decisions about contact has to cease. There should be no imbalance between the parents, they both have parental responsibility, and their voices are equally loud and should be equally heard. But the father having parental responsibility is not enough for this mother: she has not recognised that his involvement in significant decisions is as important as hers. The Mother appears to consider she has the ability to make decisions of some import for the Children without the need for his involvement.”
The Judge made a shared lives with order to reflect and reinforce the importance of both parents’ relationship with their children.
The Judge concluded that he was satisfied that this is an appropriate case of a shared lives with order. It will send a message to the parents that they share the arrangements of the Children. Whilst there will be disparity in the time the Children spend with the parents, that is not a bar to making a shared lives with order. It will reflect on the ground that the Children’s homes are with their mother during the weeks, and they will not just spend time with, but live with, their father on alternate weekends. It defines that the parents are equally important in their Children’s lives and that the other parent’s role is equally important to the other.
The Judge further ordered that the travel should be shared between the parents, which again reinforces to the children that both of their parents have an active role in their contact and lives.
This judgment reinforces the need for open dialogue and transparency in terms of any planned or proposed moves, even when the move would be an internal one.
- Does Information sharing to third parties automatically lead to a successful contempt application?
It is not uncommon for parties within fractious and protracted family proceedings to disclose information, despite the clear warnings given both by the court and as confirmed in bold in all orders.
For the avoidance of doubt, the orders should contain the following confidentiality warnings:
Until the conclusion of the proceedings no person shall publish to the public at large or any section of the public without the court’s permission any material which is intended or likely to identify the child[ren] as being involved in these proceedings or an address or school as being that of the child[ren]. Any person who does so is guilty of an offence.
Further, during the proceedings or after they have concluded no person shall publish information related to the proceedings including accounts of what has gone on in front of the judge, documents filed in the proceedings, transcripts or notes of evidence and submissions, and transcripts and notes of judgments (including extracts, quotations, or summaries of such documents). Any person who does so may be in contempt of court.
Information related to the proceedings must not be communicated to any person other than as allowed by Rules 12.73 or 12.75 or Practice Direction 12G of the Family Procedure Rules 2010.
EBK v DLO (Permission for Further Contempt Application) [2024] EWHC 984 (Fam)
Background
This case came before Mr Justice Poole in the High Court and it concerns an application seeking permission for the claimant to bring contempt proceedings against the defendant under Section 12 of the Administration of Justice Act 1960, on the basis that the defendant shared confidential information relating to child arrangement proceedings.
EBK (father) and DLO (mother) are the parents of a child, N, who at the date of judgment was nearly 7 years old.
The parties separated in or around November 2017 after which there were protracted proceedings concerning child arrangements. During these proceedings DLO made allegations including domestic abuse by EBK.
The above proceedings concluded on 9 March 2022, whereby an order was made for N to live with her mother and her father, but with more time spent with her mother. A section 91(14) order was also made preventing both parties issuing further applications in respect of N without the court’s permission until March 2026.
On 11 August 2020, whilst these CAO proceedings were ongoing, DLO wrote a letter to a Member of Parliament in which she repeated allegations of domestic abuse against EBK. She also referred to there having been proceedings in the Family Court and she told the MP that within those proceedings a non-molestation order had been made, that EBK had been ordered to undertake a Domestic Abuse Perpetrators Programme (“DAPP”), that following interventions by EBK the judge had then “dismissed CAFCASS without replacement and has since been making decisions entirely on his own”, that EBK had made various claims about his employment (with the military) which she claimed were untrue, and that the Family Court had not had contact with the Ministry of Defence. The Claimant was a serviceman, and the MOD was his employer. The Defendant ended the letter:
“It has taken a great deal of strength to write this letter and ask for your help. I would be grateful of your assistance in escalating this to the police, the military (as he is bringing them into disrepute) and the Family Court, and finally get the much-needed protection and justice we desperately need.”
The letter was forwarded by the MP to West Yorkshire Police and a few days thereafter, the police visited DLO and she sowed them documents from the proceedings and repeated her allegations.
On 25 August 2022, a police officer wrote to a Warrant Officer at the Ministry of Defence referring to the allegations and that officer informed them that the police would be seeking a charge of controlling and coercive behaviour/harassment.
EBK was arrested the following day, remained on bail for over a year, but there were no subsequent criminal proceedings and bail was later discharged.
EBK had previously brought contempt of court proceedings against DLO in December 2022 for breach of the Administration of Justice Act 1960, section 12 by showing documents from the CAO proceedings to officers of the West Yorkshire Police. Those proceedings came before Mr Justice Mostyn who gave his judgement on 5th May 2023, case reference EBK v DLO [2023] EWHC 1074. Mr Justice Mostyn refused EBK permission to make the committal application.
EBK became aware of DLO’s letter to the MP at the end of 2023, over a year following the conclusion of the children arrangement proceedings. EBK, therefore, sought permission to make a contempt application against the defendant on the basis that she breached section 12 of the Administration of Justice Act 1960. This provides:
“Publication of information relating to proceedings in private.
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—
(a) where the proceedings—
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-Tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;
(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;
(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.
(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section and in particular where the publication is not so punishable by reason of being authorised by rules of court).”
EBK relied on the contents of DLO’s letter to the MP as constituting contempt of court. He submitted DLO disclosed ‘materially false’ information to the MP and that the letter constituted an interference with the administration of justice. Specifically, EBK claimed that DLO requested that the MP intervened in the CAO proceedings, and this was likely as there was a change of District Judge hearing the proceedings.
The court noted, the letter to the MP dated 11th August 2020 did not mention N by name, nor her school, but it did identify EBK and contained DLO’s address. It referred to Family Court proceedings without specifying the court’s location or case number.
Conclusion
Despite EBK’s assertions, the court concluded that permission is to be refused for the following reasons:
- i) There is not a strong prima facie case against the Defendant. Indeed, it is not clear to me that the letter to the MP on 11 August 2020 can arguably be said to constitute a breach of AJA 1960 s12 or that it was intended to or was liable to interfere with the administration of justice.
- ii) The time and costs to the court and to the Defendant of allowing the Claimant to make this application would be disproportionate to the seriousness of the alleged contempt and its consequences, in particular given that over three and a half years have passed since the alleged contempt was committed.
iii) The events of which the alleged contempt was a part have been repeatedly litigated and considered by the courts.
- iv) The making of this contempt application would bring no benefit to the Claimant, no benefit to the child, nor any benefit to the court. The need to protect the integrity of the court is important but the alleged contempt does not come close to undermining that integrity. Litigants must not publish what goes on in front of a judge in private family proceedings, but if the Defendant did that – which is not obvious to me – then she gave the MP very little information about what had happened before the judge, as opposed to giving a great deal of information about EBK’s conduct more generally, as she alleged it to have been. The parts of the letter alleged to have breached AJA 1960 s12 did not have any adverse effect on the ability of the court to conduct the CAO proceedings and no adverse effect on the child. I stress that the Claimant’s arrest, which did very arguably have an effect on the proceedings and the child, was not caused by the letter, certainly not those parts that arguably provided information about what had gone on in front of the judge. I can see no public interest served by permitting this application to be made.
- v) It would be unfair on the Defendant to permit the application for committal to be made. Not only has a long time passed since the events she would have to address, but she has already faced the prospect of committal proceedings arising out of very similar and closely related matters. She had to secure representation and go to court. She has been through this already and it would be unfair to allow the Claimant to make her go through it again so long after the events in question. The court should not allow applications to commit to be used oppressively or unfairly to browbeat a party to family proceedings.
- vi) The Claimant has a grossly inflated view of the impact of the letter to the MP. What really counted at the time was the information DLO gave to the police about the Claimant’s alleged conduct and the documents she gave them. The fact that she may have told her MP something about what had gone on before the judge was not material to the decision to arrest EBK. He was not arrested for what had, or had not, been said in court.
vii) Mostyn J noted that EBK himself had been said by a judge in the CAO proceedings to have committed a contempt of court (recorded in the order following the hearing on 26 August 2020). This related to information and documents from the CAO proceedings provided by EBK to his mother who had made an application to the court. It is relevant to take into account this conduct although I do not give it as much weight as the other factors.
- Will a mistake in paperwork lead to the court refusing an application for a declaration of parentage under s55A of the Family Law Act 1986?
A declaration of parentage is an extremely important part of becoming parents for same-sex parties.
The idea that a simple mistake in the paperwork can prevent this is a concerning one and something Mrs Justice Theis considered in the below case.
Y and Z [2024] EWHC 649 (Fam)
Background
Mrs Justice Theis considered this application on the papers, as there was no factual dispute and no interveners.
The application before the court was made by Y and Z for a declaration of parentage under s55A of the Family Law Act 1986, relating to their child V who was conceived at a licenced fertility clinic with donor sperm.
The parties had been trying to start a family with the clinic since 2021 and it was always their known intention that they would both be joint legal parents.
In August 2021, 5 embryos were created using Z’s eggs and donor sperm. The first four embryos were transferred to Y and were unsuccessful. The fifth embryo was transferred to Z and was successful. This led to the birth of V.
Following V’s birth, Z and Y were notified by the Clinic that an audit had revealed that their file did not contain the required Human Fertilisation and Embryology Authority (“HFEA”) WP and PP Forms to nominate Y as V’s second legal parent. They had, however, completed the relevant forms to set out that Z would be the legal parent of any child carried by Y. This has been the original plan, which changed after the first four embryos were unsuccessful. It was this error that led the applicants to issue their application for a declaration of parentage.
The applicants relied on the WP and PP Forms that they did sign and their other consent forms which expressly refer to their intention to be the joint legal parents of any child born as a result of their treatment by the Clinic. Mrs Justice Theis set out at paragraphs 10 and 11 of the judgment, the specific documents relied on by the applicants. It was clear that the applicants and the Clinic were all in agreement that their intention was to create a family together and for both Y and Z to be joint legal parents.
Legal framework
The relevant law is set out under Section 43-44 Human Fertilisation and Embryology Act 2008 ‘HFEA 2008’. This sets out that each parent must give a notice in writing to the licensed clinic, prior to the embryo transfer which leads to the conception of the child, of their mutual intention that the non-birth parent be treated as the child’s other legal parent. The HFEA Forms which are normally required to be completed, according to the HFEA Code of Practice and licensing requirements, are HFEA Form WP and HFEA Form PP.
The court may rectify issues arising from missing or incorrect HFEA WP and PP Forms where a doubt has been raised about whether legal parenthood has been properly established. The relevant principles are set out in Re A and others (2015) EWHC 2602 (Fam). Several of the cases in Re A (2015) concerned situations in which the correct HFEA Form was missing but an alternative non-HFEA internal clinic consent form was
In the more recent case of A, B and Bourn Hall Clinic [2021] EWHC 1750 (Fam) the court made clear that documents signed by the applicants, when taken in the context of their broad understanding of legal parenthood could constitute valid consent.
Conclusion
Mrs Justice Theis confirmed that the authorities demonstrate that the court can look at the evidence as a whole to determine consent to legal parenthood.
In this case Mrs Justice Theis explicitly accepted the WP and PP Forms which were signed in relation to the initial planned embryo transfers to Y, notwithstanding the lapse of time or change of the treatment plan. Mrs Justice Theis referred to her own judgment in the case of Re C (Declaration of Parentage Written Consent) [2019] EWCA 648 (Fam), specifically paragraphs [69-70] where she set out that there is no reference to timing within s.43 or 44 HFEA 2008. The only conditions of consent in the legislation are that it is given in writing and signed before treatment took place.
The judge also noted that the court can corrects errors in documentation, quoting Munby P in Re A at paragraph [63]:
“I conclude, therefore, that, in principle the court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.”
In Re G [2016] EWHC 729 (Fam), Munby P also allowed WP and PP Forms to be held valid even though they were signed the wrong way round. Mrs Justice Theis held that this in effect meant the court can, where appropriate, read WP and PP Forms in a way that corrects the error made. Ultimately, she agreed that in this case, the WP and PP Forms signed by the applicants previously could be read as conferring legal parenthood on Y.
Mrs Justice Theis made a point of highlighting that the ramifications of non-compliance on behalf of clinics, even in a limited number of cases, are far reaching. She noted the importance of clinics who undertake this type of treatment ensuring that they have reliable systems in place to avoid what had happened in this case from occurring.
This case reinforces that the court can remedy mistakes, whereby the desired outcome and the intention of the applicants is obvious from the beginning.
Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.
3 May 2024