Family law

By David Burrows, David Burrows, Bristol

Domestic violenceRe L (a child) (contact: domestic violence) and three other cases (2000) The Times, 21 June

The Court of Appeal considered the effect of domestic violence on contact with children.

(In all four cases they dismissed appeals by fathers against refusal of contact.)Dame Elizabeth Butler Sloss stressed the need for a heightened awareness of the effects of exposure to domestic violence on children.

She suggested that there must be no automatic assumption that contact with a violent parent was in a child's interests.

Indeed, it might be necessary for the violent parent positively to show why he or she could offer something to the child.

Sitting with the president, Thorpe and Waller LJJ both stressed the need to take account of the extent to which a violent parent may have shown a recognition of previous violence and of steps being taken to deal with the risk of further violence.

Legal aid: discharge or revocationIn R v Legal Aid Board exp McCormick [2000] NLJ 868, (2000) The Times, 13 June

Elias J considered the failure by an assisted person to disclose a 'material fact' in relation to his financial circumstances and whether, if found, failure to disclose should lead to revocation or to discharge of the certificate.Mr McCormick raised loans to help fund earlier proceedings, and told his solicitor.

A LAB investigation unit looked into his affairs.

He admitted the loans.

His certificate was subsequently revoked, meaning that he became liable for the totality of legal aid and indemnity rule costs.

After an unsuccessful appeal to the area committee he applied for judicial review of the board's decision.

What gave rise to the duty to disclose? This was an objective test depending on what might reasonably make a difference to eligibility or level of contributions.

Whether the board should have revoked or discharged his certificate depended on a consideration of the circumstances of, and reasons for, any non-disclosure.

If the committee believed non-disclosure was deliberate it should have said so.

Its decision was quashed and remitted for consideration.The old regulations (considered in McCormick) are restated in similar terms in the Funding Code, Part 2.

Section C42.1 imposes on the funded client the duty to report to the regional director 'any change in...

financial circumstances'.

Section 53.2 enables the regional director to discharge or revoke a certificate where 'the client has made an untrue or misleading statement or failed to disclose a material fact'.

Termination of contact and human rightsIn Re F (Minors) (Care proceedings; Contact) (2000) The Times, 22 June

Wall J considered a mother's appeal from the family proceedings court.

Her local authority sought to end contact with three children in care (Children Act 1989 s.34(4)).

An argument addressed to the judge was that s.34(4) would infringe her rights under Convention for the Protection of Human Rights and Fundamental Freedoms arts 6 (right to a fair trial) and 8 (right to family life).The judge rejected any submission on that ground that, though Children Act 1989 must be looked at in a way which was compatible with the convention, it was for English courts applying their own standards of justice and fairness to decide whether rights had been breached.

The respective rights of the mother and those of the children must be balanced.

The decision to place for adoption was correct and proportionate.Routinely to parade Convention cases to bolster an appeal was disappointing, concluded Wall J (see similar comments in Daniels v Walker (2000) The Times, 17 May, CA).