Family lawBy David Burrows, David Burrows, BristolCare or supervision order?Re O (a Child) (Supervision Order) (2001) The Times, 20 FebruaryA short report in The Times makes the important point...Care or supervision order?Re O (a Child) (Supervision Order) (2001) The Times, 20 FebruaryA short report in The Times makes the important point that the Court of Appeal has held that pre-Human Rights Act 1998 case law may not be appropriately relied upon when deciding whether a child should be made subject to a care or supervision order.

In Re O (A Child) (Supervision Order) (2001) The Times, 20 February, Lord Justice Hale who has been so influential in development of a wider understanding of the Act drew attention to the need to look at the form of order under the Children Act 1989 section 31 (care or supervision) in the light of article 8 (right to respect for private and family life) of the European Convention on Human Rights.

A care order (not justified in this case) gave the local authority parental responsibility and the power to remove a child without further reference to the court.

Any intervention in a familys life must be balanced, and be proportionate, with the protection of family life guaranteed under the convention.When to call an expertCosgrove and anor v Pattinson and anor (2001) The Times, 13 February, Neuberger JCivil Procedure Rules 1998 (CPR) rule 35.7 enables the court to order that parties to an application jointly instruct one expert.

Rule 35.4 prevents the appointment of an expert without permission from the court.

CPR part 35 (including these two rules) applies to all ancillary relief proceedings (Family Proceedings Rules 1991); but not yet to other proceedings covered by Family Proceedings Rules 1991.In Daniels v Walker [2000] 1 WLR 1382 at 1387E-H, CA the Master of the Rolls, Lord Woolf, proposed the steps to be taken to instruct an expert where the court has ordered a joint approach.

First the parties should instruct on the basis of an agreed letter.

Failing that, the parties can write separately.

If one party is unhappy with the report, he or she can put questions to the expert (CPR rule 35.6).

If that does not resolve the position, then, said Lord Woolf, one or both parties may seek a court direction to call further evidence.

Such a direction would be considered proportionately with the issues and money involved.In Cosgrove and anor v Pattinson and anor (2001) The Times, 13 February, Mr Justice Neuberger set out further factors which might be considered when the court had to decide whether to appoint an additional single expert.

These might include: the nature of the dispute and the number of disputes to which the evidence might be relevant; the reasons for needing another expert (in Daniels the expert looked at the question from a different standpoint to the original joint expert); the amount of money at stake; the delay that calling a further expert might cause; any other special features; and the overall justice to the parties in the context of the litigation.

And in very special circumstances the court may prefer the evidence of a lay witness to an expert (Fuller v Strum (2001) The Times, 14 February: handwriting and a deceaseds will).

Mr Justice Neuberger concludes his list with a reminder that overall justice is a factor which the judiciary should consider in deciding whether to appoint an additional expert.

Reflections on the use of wardship after Children Act 1989Al-Habtor v Fotheringham (2001) The Times, 2 March, CAWardship survives the Children Act 1989, but in ever-restricted circumstances.

In Al-Habtor v Fotheringham (2001) The Times, 2 March the Court of Appeal held that English courts should be extremely careful before warding a child who had ceased to be habitually resident in the UK.

Here a child who had left the UK to reside, at least for the time being, should not be made a ward, said Lord Justice Thorpe.

Any order such as to return the child to England and Wales was unenforceable.

A person might leave the jurisdiction for one day, and cease to be habitually resident, whilst not becoming habitually resident anywhere else (J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, HL).

The writ of the High Court might, theoretically, run wide, but in children matters especially since the Children Act 1989 and against a child in what Lord Justice Thorpe characterised as a friendly foreign state it should be used sparingly.

Bridges should be built rather than peremptory challenges issued by the courts.Help with mediation and the funded family clientHelp with mediation is part of the post-Access to Justice Act 1999 legal aid lawyers lexicon.

Under the new funding code it provides a form of approved family help (green form legal aid in old terminology).

It is intended to provide help (ie legal advice) in relation to resolving family disputes.

It is available only where a client is participating in family mediation (funding code, criteria, section 11.2.1).

However, the solicitor can only deal with the client: negotiation direct with the other spouse or his/her lawyer is forbidden (Decision Making Guidance 20.7.4).

Could this really be true? What happens if a client visits her solicitor with a memorandum of understanding modern lawspeak for terms settled with a mediators help? Her solicitor is unhappy on her behalf about a couple of minor factors: say the periodical payments proposed are on the low side, and the pension share is a little mean.

Normally, the solicitor would ring the husbands solicitor and see what terms could be renegotiated.

Some adjustment might be agreed in a couple of calls and a separation agreement or consent order could be drafted on the back of this new agreement.But if the wife client is funded? The prohibition on communication with the other side was raised with the Legal Services Commission: Help with mediation would not extend to solicitor negotiations to reopen a memorandum of understanding came the reply.

The solicitor under pain of not being paid, perhaps worse cannot talk to the other spouses solicitor.

If the referral back to mediation does not resolve matters (do not worry, of course, about the expense to the taxpayer and the non-funded client; and forget about the inconvenience to everyone of all this), then the solicitor can take the matter forward outside mediation that is by applying for yet another form of legal aid from the display of five or so available to the family lawyer.To deal with it otherwise such as in accordance with common sense and normal professional practice brings different levels of service...into play.

That risks confusion at the Mad Hatters Tea party; and that, as Alice said, would never do.CorrectionKasir v DSRM [2001] 1 MarchThe claimants appeal did not include a challenge to the documents item, which was the item on which the parties had been unable to reach agreement following the detailed assessment.Not as stated in [2001] Gazette, 22 February 39.