Monday, 9 June 2008

Children: Private Law Update (June 2008)

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New Practice Directions New guidance has been published relating to the rule 9.5 appointment of a Guardian in private proceedings. The guidance issued on the 25th February 2005 has been revoked. An order in the county court joining a child to private law proceedings and appointing a Guardian may now be made by any nominated Judge or District Judge. Practitioners are reminded of the Practice Direction on the Representation of Children in family proceedings of the 5th April 2004 which remains valid. Further guidance is to be found in the form of a new practice direction entitled Residence And Contact Orders: Domestic Violence And Harm, was published by the President of the Family Division on the 9th May 2008. It applies to High Court, County Court or FPC proceedings in which an application is made for a residence order or a contact order in respect of a child under the Children Act 1989 or the Adoption and Children Act 2002 or in which any question arises about residence or about contact between a child and a parent or other family member. The guidance is to be followed in any such case in which it is alleged or there is otherwise reason to suppose, that the subject child or a party has experienced domestic violence perpetrated by another party or that there is a risk of such violence. Leave To Remove There have been two recent cases on leave to remove from the jurisdiction. In Re G (Leave to Remove) [2008] EWHC 324 (Fam) the Court of Appeal dealt with a submission from the Appellant that Payne v Payne was being misapplied by the lower Courts. The Court confirmed the approach as stated in Payne. The second case has potentially far-reaching consequences in relation to the Court's hearing directly from the children involved in proceedings. In Re W (Children) (2008), [2008] EWCA Civ 538 the Court of Appeal (on the 20th May 2008) allowed an appeal by a Mother who was seeking permission to return to Sweden with the children. The Mother (M) and her former husband (F), who divorced in 2006, were both Swedish nationals. The family lived in a spacious home in London. The children were aged 15, 13 and 11, and were particularly intelligent and mature. M wished to return to Sweden, where housing and private education for the children would be much cheaper. The children supported the move to Sweden. Their wishes and feelings were advanced in the report of a CAFCASS officer. The CAFCASS officer applied her own analysis to the children's statement, with the result that she ended up advising the judge to exercise a degree of caution in evaluating the children's stated wishes. The judge had raised the possibility of meeting with the children, but the matter was not pursued and M's counsel did not press the point. M submitted that the judge had erred in weighing up the financial factors, in particular the effect that refusal of her application would have upon the London home that she and her children would be sharing.

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