The Involvement of Children In Family Proceedings under FPR 16.6

In the recent decision in CS v SBH [2019] EWHC 634 (Fam), the High Court was asked to decide whether or not a child who had instructed a legal representative, had sufficient understanding of the family proceedings within the meaning of Family Procedure Rule 16.6 so as to give instructions to their representative to pursue an appeal.

The case is of relevance to family practitioners as most of the case law on the participation of children in family law appeals have been in the context where the Civil Procedure Rules apply, i.e. at Court of Appeal level and not in cases involving appeals from a Circuit Judge to the High Court as in this case, where the Family Procedure Rules (FPR) apply.

Background

The family proceedings had started out as an application to vary a child arrangements order made by the Family Court in January 2017 by the child’s mother. In January 2017, the court had ordered that the child should live with her father and spend time with her mother. On 6 November 2018, the Family Court dismissed the mother’s application. Following the order on 6 November 2018, the child (CS), appealed the court’s refusal to make an order that she should live with her mother. At the date of the order of 6 November 2018 and at the date of the hearing before the High Court, CS was 12 years old going on 13.

The dispute over the child arrangements for CS had first begun in 2015 and during the original court proceedings, CS had the benefit of a Children’s Guardian. When the variation application was pursued by the mother, the same Children’s Guardian was appointed to act for CS under FPR 16.4 and she, in turn, appointed a child law solicitor to act for the child. In October 2018, CS’ solicitor met with her to decide whether or not CS was competent to instruct her directly without a Children’s Guardian in case there should be a conflict situation between the Children’s Guardian and CS’ own wishes and feelings. CS’ solicitor decided that CS was not competent in applying the criteria under rule 16.29 of the Family Procedure Rules.

In the end, there was no conflict and the Children’s Guardian filed a report recommending that the child should live with her mother.

Finally, prior to the final hearing of the mother’s variation application on 6 November 2018, CS wrote a letter to the Judge saying that her views were not influenced by her mother.

In a detailed judgment, the Judge considered that although there was evidence of change in the mother’s emotional stability, there was insufficient evidence of a change in the mother’s attitude to the father so as to enable the court to change the child’s primary place of residence as there remained a significant risk of parental alienation with the father if the court did so.

The Appeal

On appeal, CS was represented by a Solicitor who had been contacted by the child’s mother. CS had not returned to her previous Solicitor because she disagreed with the competency assessment that had been carried out in October 2018.

A further issue identified by the court on appeal was whether an appeal constituted new proceedings or not for the purposes of FPR 16.6. If so, the criteria to be applied was that under FPR 16.6(3) and it was for the new Solicitor to make an assessment of competency, subject to the court’s power to intervene of its own motion. If the appeal did not constitute new proceedings, the criteria to be applied was set out under FPR 16.6(6) and the court’s permission would be required before CS could instruct a legal representative. After balancing the factors for and against, Mr Justice Williams decided that the appeal was a continuation of the first instance proceedings and therefore the correct test was FPR r16.6(6) which requires the court to consider that “the child has sufficient understanding to conduct the proceedings”.

In arriving at its decision as to CS’ competency, the High Court reviewed the authorities at paragraphs 51-59 and found at [63] that the case law showed there has been a shift from a paternalistic approach in favour of an approach giving significantly more weight to the autonomy of the child in evaluating whether they have sufficient understanding.

In carrying out its assessment, the Court observed that the letter from CS to the Judge in October 2018 was at odds with the decisions of the previous judges and the expert in the first set of proceedings that CS’ wishes were enmeshed with those of her mother and were not in fact independent.

The court also had statements from both the previous solicitor who had acted for CS alongside the Children’s Guardian and her solicitor on appeal. The solicitors on appeal had first seen CS in May 2018 but did not go on to be instructed until more recently. However, they had assessed her as competent at that point in time. No further assessments had been carried out since she “instructed” them to appeal. On the other hand, CS’ previous solicitor maintained that she lacked competence in the proceedings which had been determined and implied that she would still lack competence on appeal.

Balancing all the relevant factors, the Court found that CS did not have sufficient understanding to conduct the proceedings and that its answer would have been the same under both the tests provided for under FPR 16.6. A particularly persuasive factor was the fact that the child’s previous solicitor was more fully aware of the entire history of the proceedings and so her evaluation was a more informed evaluation of the child’s sufficiency of understanding than that of CS’ new solicitor.

As a result, the court ruled that the child was unable to pursue an appeal without a Children’s Guardian as the circumstances under FPR 16.6 had not been met by CS.

Proxy Marriages and EU Law

An important principle in EU law is the concept of abuse of rights, as the exercise of Treaty rights by individuals may require EU Member States to ignore their own national laws.

In the UK, the Home Office will sometimes refuse applications if it believes that there is a clear intention to abuse EU rights by an applicant, e.g. where there has been a use of fake payslips or a marriage of convenience (i.e. a sham marriage). The onus is on the Home Office to provide evidence of the lack of genuineness of the applicant‘s employment or marriage.

In IS (marriages of convenience) Serbia [2008] UKAIT 00031, the Asylum and Immigration Tribunal held that the burden of proving that a marriage is not a “marriage of convenience” for the purposes of the EEA Regulations rests on the appellant: however, the appellant is not required to discharge it in the absence of evidence of matters supporting a suspicion that the marriage is one of convenience (i.e. there is an evidential burden on the Respondent Home Office).

In practice when allegations are made that a marriage is a sham, it is usually necessary to show the genuineness of the relationship by providing witnesses who are acquainted with the couple, close family members, best friends, managers, co-workers, etc.  Appellants would also be expected to provide proof of communication, itemised bills, or social media information. This list is not exhaustive and will depend on the circumstances surrounding the case.

Particular issues arise time and again in relation to proxy marriages:

1.     The appellant must prove that the proxy marriage is lawful in the country in which it was contracted.

2.     The appellant has the obligation to prove that their proxy marriage was in accordance with the laws of the country in which it took place and that both parties were free to marry.

In this situation, the production of a marriage certificate duly attested and issued by a competent authority of the country in which the marriage took place, would in some ways satisfy the presumption of validity.

For a long time it was believed that a proxy marriage contracted according to the laws of the country in which it took place was also required to be validly recognised as a marriage by the EU country of the other contracting spouse: Kareem (Proxy marriages – EU law) [2014] UKUT 24 (IAC).

However, in Awuku v SSHD [2017] EWCA Civ 178, the courts finally put it to rest that proxy marriages are a matter of private international law and not EU law and that marital status and nationality are clearly distinguishable. Provided that a proxy marriage complies with the law of the land in which it is celebrated it will be recognised in England and Wales.

How does a person then prove that the proxy marriage complies with the law of the land in which it is celebrated? Some practitioners suggest a country expert with a detailed report, but others prefer to get an official document issued by Foreign Ministers and then provide an endorsement by their Ambassador in the UK.  A letter from an Ambassador can negate the use of expert reports because the Ambassador is the representative of his or her Government in the UK. Furthermore, considering that embassies can be registered as a place where their citizens can freely get married, it is surprising that to-date many embassies have taken no action towards providing this confirmation service.

Very often it is our experience that the Home Office fails to grapple with issues of what constitutes a proxy marriage in some countries, for example, Senegal. Senegal is a Muslim country and about 95 percent of the population is Muslim. Many of its citizens are abroad and not everyone can return home to get married.

A proxy wedding or proxy marriage is a wedding in which one or both of the individuals being united are not physically present. Usually, being represented instead by other people and this would be the only option available to them.

Many Senegalese are unable to physically attend their wedding in Senegal for various reasons and this is due to material circumstances which are almost impossible to overcome. This might be caused by military service, criminal convictions, travel restrictions, immigration status or even religious and cultural reasons.

It is worth noting however that the legal requirement for an expert report of Ambassador’s letter is not enough on its own. The documents submitted alongside applications must clearly evidence companionship, emotional support and an abiding interest in each other‘s welfare and wellbeing from the beginning of their relationship.

In other claims, the Judge is asked to assess the durability of the relationship as opposed to the fact of marriage. In light of the numerous considerations set out above as to why proxy marriages are an important option for couples, it is essential that we remind ourselves there are no formal ways to truly assess marriages, as couples live in marriage in so many different ways and styles. As a result, in assessing whether there is sufficient evidence or suspicion by the state so as to interfere with EU law rights, decision-makers (both the Home Office and Judges) must not impose their own expectations of how a couple might conduct their relationship and should instead consider whether the evidence that has been presented is properly corroborative of the relationship claimed as directed in the Upper Tribunal decision in Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC).

Homes (Fitness for Human Habitation) Act 2018 – A Review

On 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 (“the Act”) came into force. The Act amends the Landlord and Tenant Act 1985 by introducing new sections (in England only) 9A, B and C.

What is the purpose of the Act? 

The purpose of this legislation, as suggested by its title, is to ensure that rented accommodation meet certain property standards and are safe for human habitation. To achieve this, Section 9A implies a covenant into any tenancy granted on or after 20 March 2019 that the property is fit for human habilitation at the time the tenancy is granted and will remain so during its term. What is interesting is that the obligation on the landlord to ensure fitness for human habilitation applies not only to the particular dwelling occupied by a tenant but also to other parts of the building which the landlord has an interest in, including common parts and retained parts (such as the roof, stairwells, hallways, entrances, etc.).

What tenancies does the Act apply to?

The Act applies to both private and social rented properties as follows:

  1. Leases granted for a term of less than 7 years
  2. Secure, assured or introductory tenancies for a fixed term of 7 years or more
  3. Tenancies granted before, but renewed for a fixed term on or after 20 March 2019
  4. From the 20 March 2020 the Act will apply to all periodic tenancies. This is because the Act gives landlords of properties let before 20 March 2019 12 months from the date of commencement to comply.

What standard is considered “unfit” for human habilitation? 

It is ultimately for the court to decide whether a dwelling is or is not fit for human habilitation.

In arriving at its decision, the court will have regard to the condition of the property with respect to the following factors set out in section 10 of the Landlord and Tenant Act 1985:

  • the condition of the building
  • the stability of the building
  • any damp problems
  • the safety of the internal layout
  • the extent of natural lighting
  • the sufficiency of ventilation
  • the supply of hot and cold water
  • the drainage and sanitary facilities
  • the facilities for the preparation and cooking of food and for the disposal of wastewater.

In addition, a property may be deemed unfit as a result of any hazard that is described in the Housing Health and Safety Rating System which currently lists 29 hazards including asbestos, fire, pests and noise.

Rented accommodation will be unfit for human habilitation if the condition of the property is such that, in relation to any of the factors listed above, it is not reasonably suitable for occupation by humans.

Are there any exceptions? 

A landlord will not be held responsible if the property is unfit for habitation as a result of the tenants’ behaviour/treatment of the property and/or breach of the tenant covenants. Nor will they be held responsible for damage or destruction as a result of events beyond the Landlord’s control such as fire, storm, flooding, etc.

The landlord is not obliged to carry out works to the property if doing so would put him in breach of an enactment (such as planning permission) or require the consent of a third party (such as a superior landlord) which has been withheld. The same applies in respect of items that the tenant is entitled to remove from the dwelling.

What does the Act mean for tenants?

If a landlord fails to adequately maintain the property, a tenant can seek redress by taking their landlord to court for breach of contract (namely, breach of the implied covenant of fitness for human habilitation). If the court finds that the breach has occurred, it can award damages to compensate the tenant for the living situation and/or order specific performance for the landlord to rectify the issues identified. The amount of damages awarded to the tenant is at the discretion of the judge taking into account the severity of the unfitness, the length of the issues and the potential harm to the tenant.

It is important that a tenant notifies its landlord of any problems as soon as possible as the landlord is responsible from the moment he or she is made aware of the issue by the tenant (save for HMOs).

What does the Act mean for Landlords? 

For Landlords of joint tenancies, the tenant will need to notify the landlord of any property defect making the property unsuitable or unsafe. The landlord will have to address the issue in a reasonable amount of time. As to what is reasonable depends on the seriousness of the defect as well as the particular circumstances. For example, extreme damp and mould in a property housing a child with asthma are likely to be considered more urgent then say the same property housing a single, healthy young adult.

However, this does not mean that landlords can sit back and wait for the tenant’s call regarding any potential defect under the Act.

A landlord is considered immediately responsible for any defect in the common or retained parts of the building. Therefore, landlords must be vigilant and ensure the building and shared areas are well-maintained and safe for human use. For landlords letting out their property on a room by room basis (such as HMO), they will be held immediately responsible for a defect from the moment it occurs regardless of tenant notification, although they still have a reasonable time in which to fix it. The best way for Landlords to ensure they are compliant in these situations is to ensure they conduct regular inspections and keep detailed records.

Comment

The changes to the Landlord and Tenant Act 1985 will fundamentally change the law of disrepair. Until now, the 1985 Act only required landlords to keep rented properties in “repair”. Therefore, if a defect was not classed as a “disrepair” there was no obligation on the landlord to address this. For example, if a boiler was faulty then the landlord would need to repair this, however, if the property had no heating at all then technically speaking the landlord would not be obliged to install a boiler because there was no “disrepair” and doing so would amount to an improvement. The coming into effect of the Act now means that landlords will have to take active steps to improve properties to ensure that they meet standards “fit for habitation” instead of waiting for an existing feature to fall into disrepair before being held accountable.

The new legislation will be particularly welcomed by local authority tenants experiencing health and safety hazards in their homes. Whilst such tenants could and can complain to their landlord, Local Authorities cannot take enforcement action against themselves which left their tenants at a substantial disadvantage. The Homes (Fitness for Human Habitation) Act 2018 allows such tenants to bring claims against local authorities that fail to provide accommodation fit for human habitation.

Commentators believe the legislation opens up the avenue for a whole new set of “fitness claims” to be brought against Landlords, in addition to disrepair claims.  It is likely that the existing Housing Disrepair Pre-Action Protocol will be amended to include this head of claim.

Whatever the future holds, Black Antelope Law has specialist experience in acting for both tenants and landlords in housing disrepair and condition disputes and can assist you every step of the way.

The duty of UK Businesses to prevent illegal workers

Can your business afford to give away £8,538.00? That’s the average civil penalty sum made against UK businesses for employing illegal workers in breach of immigration laws.

If the above sum of money could substantially affect the stability of your business, it is important that as an employer employing or seeking to employ migrants, that you ensure that your workers have the right to live and work in the United Kingdom. Migrants’ right to work should be constantly monitored and checked in line with changes in Immigration Rules even after their employment commences as part of the employers’ responsibilities.

What happens if you as an Employer do not comply with the Immigration Rules?

As an employer, you can be fined up to £20,000 per person as a civil penalty for employing any illegal workers without the right immigration status and your organisation’s details may be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers (https://www.gov.uk/government/collections/employers-illegal-working-penalties#guidance-and-codes-of-practice).

Even worse, if you knowingly employ an illegal worker then you will commit a criminal offence and may face up to 2 years’ imprisonment and / or an unlimited fine if your case is dealt with at the Crown Court. Illegal workers include: students with expired visas, or students working more hours than they’re allowed to, and people who work on a visitor’s visa – these are just a few examples, but there are many more circumstances that you may not be currently aware of!

The sanctions that are imposed on any employer for hiring a migrant with no immigration status are serious and severe in its repercussions with the potential to damage any organisation’s revenue and reputation. You must therefore as an employer check that a job applicant or a current employee’s allowed to work for you in the UK before you employ them and you have the right sponsorship licence in place before you take on an employee.

Under the current immigration laws, statistics show that approximately 1270 employers across the UK have been subject to civil penalties to date for retaining illegal migrant workers for a total value of £10,843,750. However, this statistic is ever growing with the number of employers penalised for hiring illegal workers expected to increase due to no compliance.

How can Black Antelope Law help your organisation?

We provide clear and concise advice on all aspects of business immigration law in the United Kingdom with results that will allow you to:

  1. Employ and maintain the right of workers for your organisation
  2. Avoid any negative publicity and damage to your organisation’s reputation
  3. Make visa applications and/or applications for an extension of stay and settlement
  4. Undergo audits in the workplace to combat illegal working and any subsequent disciplinary issues
  5. Avoid any criminal and civil sanctions that might otherwise be enforced upon you

Our business immigration service includes keeping you up to date on relevant immigration law updates which may affect your specific organisation. We will provide you with all the relevant materials and our team will always be on hand to advise you accordingly.

Your needs can be discussed in a no-obligation meeting with a simple consultation to assess the status and structure of your organisation and its compliance with the current immigration laws.