Family


Adoption - children's welfare - permission - placement orders - revocation - welfare principle

Warwickshire County Council (appellant) v M (respondent) & (1) M (2) L (by their children's guardian) (interveners): CA (Civ Div) (Lords Justice Thorpe, Dyson, Wilson): 1 November 2007

The appellant local authority appealed against an order made pursuant to section 24(2)(a) of the Adoption and Children Act 2002, granting leave to the respondent mother (M) to apply for the revocation of placement orders made in respect of her two children.



Care orders had been made in respect of both children on the basis of a number of concerns about M's care of them, and a clinical psychologist had assessed her as unlikely to sustain the changes necessary for the provision of safe parenting in a time-frame acceptable for them. The placement orders had been made shortly after the making of the care orders. A little more than 18 months later, M sought leave to apply for revocation of the placement orders on the basis that her circumstances had changed. The judge interpreted section 24(3) of the Act as meaning that if the court was satisfied that there had been a change in circumstances since the making of the placement order, then it must grant leave. He found that there had been a change in M's circumstances, and concluded that he was required to grant leave.



The local authority submitted that the judge's construction of section 24(3) was wrong. It submitted that, while the establishment of a change in circumstances was the only necessary precursor to the exercise of the court's discretion as to whether or not to grant leave, in exercising that discretion the court had to take into account the welfare of the children.



Held, in Re P (A Child) (Adoption Order: Leave to Oppose Making of Adoption Order) [2007] EWCA Civ 616, [2007] 1 WLR 2556, the court had held that in exercising its discretion whether to grant parents leave to oppose the making of an adoption order under section 47(5) of the Act, a court was coming to a decision about granting leave in respect of any action that might be taken within section1(7)(b) of that Act. Thus, the principle contained in section 1, that the welfare of the child was the court's paramount consideration, applied to a decision on an application under section 47(5), P (A Child) explained. It did not, however, apply to an application under section 24(3) for leave to apply to revoke a placement order, because to determine such an application was to come to a decision about granting leave for the initiation of proceedings by an individual under the Act and did not fall within section 1(7).



Nevertheless, it did not follow that the welfare of the child was therefore not relevant at all. It was well established that a determination whether to grant leave to apply for an order relating to a child could require the court to exercise a discretion in which the child's welfare, although relevant, was not paramount. It was not clear why Parliament should have provided that the child's welfare should be paramount in the discretionary exercise under section 45(7) but not in that under section 24(3). There was no situation other than section 45(7) in which the facility to participate in proceedings relating to a child was governed by the paramountcy of a child's welfare. Therefore, in relation to a child's application for leave under section 10(8) of the Children Act 1989, the approach taken in Re SC (A Minor) (Leave to Seek Residence Order) [1994] 1 FLR 96 was preferred to that taken in Re C (A Minor) (Leave to Seek Section 8 Orders) [1994] 1 FLR 26, SC (A Minor) approved, C (A Minor) disapproved. Whenever it was invested with a discretion whether to grant leave for proceedings to be issued, the court would have regard to the applicant's prospects of success in the proposed proceedings. In conducting the discretionary exercise under section 24(3), the court might usefully borrow the language of the test set out in rule 52.3(6) of the Civil Procedure Rules and ask whether the applicant would have a real prospect of success. The purpose of using that form of words was to identify factors relevant to the exercise of the discretion, and it could not be written in stone that the prospect of success had to be real. On establishment of a change of circumstances, a discretion arose in which the welfare of the child and the prospect of success had both to be weighed. Analysis of the prospects of success would not always, but would almost always, include analysis of the welfare of the child. The judge's approach to section 24(3) was wrong. In the circumstances, M's applications had no real prospect of success and it would not serve the welfare of the children for her to be granted leave to apply to revoke the placement orders. The grant of leave was set aside.



John Vater (instructed by the local authority solicitor) for the appellant; Alistair MacDonald (instructed by Alsters Kelly) for the respondent; Piers Pressdee (instructed by Johnson & Gaunt) for the intervener.





Landlord and Tenant



Assured tenancies - grounds for possession- housing associations - indecent photographs of children - indictable offences - possession claims

Raglan Housing Association Ltd v Alex Patrick Fairclough: CA (Civ Div) (Lords Justice Chadwick, May, Moore-Bick): 1 November 2007
The appellant (F) appealed against an order for possession obtained by the respondent housing association (R).



F was an assured tenant of a cottage. He had previously been a tenant of another nearby cottage.



He had pleaded guilty to 15 counts of making indecent photographs of children by downloading them on his computer from the Internet, and a further four counts of possessing indecent photographs of children. He had been sentenced to an extended sentence of four years' imprisonment, comprising a custodial period of 12 months and an extended licence period of three years. When R learned of the convictions, it sought possession under ground 14 of schedule 2 to the Housing Act 1988. The judge held that F had been convicted of an indictable offence committed in or in the locality of the dwelling house within ground 14(b)(ii), and that it would be reasonable to make a possession order, having regard to the nature and gravity of the offences committed by F. F submitted that the acts which constituted the offences had not been committed at the time when he was the tenant of the cottage of which possession was sought, and that ground 14(b)(ii) only applied to offences committed by the tenant during the period of his tenancy of the dwelling in question and did not apply if the offences were committed before that tenancy commenced.



Held, it was arguable that ground 14(b)(i) was concerned only with the use that the tenant had made of the premises during the currency of his tenancy, S Schneiders & Sons Ltd v Abrahams [1925] 1 KB 301 considered. Paragraph (b)(i) was directed to one particular type of behaviour likely to cause distress and annoyance to neighbours, namely the manner in which the premises themselves were used. Paragraph (b)(ii) was much broader, being directed to behaviour in the locality in general. Even if paragraph (b)(i) was to be construed as limited to convictions arising out of the use of the premises during the tenancy agreement, for which it might be said that the tenant as tenant could fairly be held responsible, there was no reason why paragraph (b)(ii) should be construed in the same way because the tenant could properly be held responsible for the way in which he had behaved in the locality, both before he became a tenant and afterwards. Once it was accepted that those who had committed indictable offences in the neighbourhood where they lived were to be regarded as liable to behave in a manner that was annoying or intimidating to their neighbours in future, as paragraph (b)(ii) assumed, there was no reason to think that Parliament intended to restrict that paragraph to offences committed during the currency of the tenancy. Ground 14 merely contained a precondition to the exercise of the court's power to grant possession: the court was not entitled to exercise that power unless it was satisfied that it was reasonable to do so. Accordingly, there was nothing in the language of paragraph (b)(ii) or in the underlying policy limiting its scope to offences committed during the currency of the tenancy.



Appeal dismissed.



Richard Egleton (instructed by Gales) for the appellant; Philip Glen (instructed by Dutton Gregory) for the respondent.





Consumer



Breach of contract - credit cards - debtor-creditor-supplier agreements - extraterritoriality - misrepresentation

Office of Fair Trading v (1) Lloyds TSB Bank Plc (2) Tesco Personal Finance Ltd (3) American Express Services Europe Ltd HL (Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance): 31 October 2007
The appellant credit card issuers (L) appealed against a decision ([2006] EWCA Civ 268, [2007] QB 1) that section 75(1) of the Consumer Credit Act 1974 extended to the use of credit cards in relation to foreign transactions.



L argued that if section 75(1) did apply to foreign transactions, the implications would be startling and readily apparent, in that it would make UK card issuers the potential guarantors of some 29 million foreign suppliers, with whom they would not have any direct contractual relations; the whole premise of sections 75(2) and 75(5) was that a UK court would have jurisdiction over the supply transaction and the supplier.



Held, L's first submission depended on today's market. The Act fell to be construed against the background of the market as it existed, and was understood and foreseen at the time of the Act's passing and of the report of the committee on consumer credit, chaired by Lord Crowther.



Furthermore, the general factors that led the Crowther committee to recommend the imposition on card issuers of a liability reflecting suppliers' liability to debtors, all applied as much to overseas as to domestic supply transactions, if not more so. In relation to the former, there would be likely to be an even greater discrepancy between the cardholder's ability to pursue suppliers on the one hand, and the ease with which card issuers could obtain redress through the contractual and commercial ties that Crowther contemplated would link them and suppliers.



Card issuers' ability to bear irrecoverable losses and so 'spread the burden' existed in relation to both overseas and domestic transactions. Furthermore, it was accepted that, even in 1974, there had been some limited use of credit cards for overseas transactions. Moreover, the Act itself contemplated that credit agreements might have overseas aspects that could require special attention. While the relevant provisions were directed at the nature of the credit agreement and of the credit provided under it, rather than directly at the supply transaction in a debtor-creditor-supplier context, they militated nonetheless against L's submission that the Act was incapable of affecting any form of credit to support an overseas transaction. L had asserted that if section 75(2) was limited to relationships between a card issuer and supplier subject to a domestic law of the UK, that confirmed that section 75(1) could not extend to overseas supply transactions. That did not follow. First, the relationship of a UK card issuer and an overseas supplier might be subject to, say, English law. Second, whatever the law applicable to the relationship between the UK card issuer and the relevant supplier, the issuer might well have a right of indemnity in respect of sums paid compulsorily under section 75(1). It could not be assumed that Parliament envisaged that section 75(2) would be the only route to an indemnity. Third, the Crowther report did not suggest that liability under section 75(1) depended on the existence of an effective indemnity. Section 75(2) was itself subject to any contrary agreement. More relevantly, Crowther recognised that the effect of section 75(1) would be to impose on card issuers irrecoverable losses, but took the view that they were better able to bear them than cardholders. Again, that militated against treating the existence of a statutory indemnity under section 75(2) as critical to liability under section 75(1). As to section 75(5), it was true that, whatever rules of court might provide, an overseas supplier would be less easily brought before a UK court than a domestic supplier, and might simply ignore any attempt to join him, in which case any UK judgment might not be enforceable against him here or anywhere. But again, it was a principal theme of the Crowther report that creditors would have a strong contractual and commercial influence over their suppliers and that, where resort could not be had to such suppliers, losses were better borne by creditors, who could spread them over the public at large, than by debtors. In the circumstances, the only limitation on the territorial scope of section 75(1) was that the credit agreement had to be a UK credit agreement.



Appeal dismissed.



Mark Hapgood QC, Sonia Tolaney (instructed by Lovells for the first appellant, and SJ Berwin for the second appellant) for the appellants; Mark Howard QC, Iain MacDonald (instructed by CMS Cameron McKenna) for the third appellant; Jonathan Sumption QC, William Hibbert (instructed by the in-house solicitor) for the respondent.





Employment



Contract terms - retrospective effect - severance payments - transfer of undertakings

Amanda Jackson v Computershare Investor Services PLC: CA (Civ Div) (Lords Justice Mummery, Maurice Kay, Wilson): 30 October 2007
The appellant employee (J) appealed against a decision by the Employment Appeal Tribunal (EAT) that the tribunal had been wrong to allow her claim for enhanced severance pay from the respondent employer (C).



In 1999, J had started work for a company that had no enhanced severance pay scheme. That contract was transferred in 2004 under the Transfer of Undertakings (Protection of Employment) Regulations 1981 to C, which did have an enhanced severance pay scheme for employees who had joined the company before March 2002.



J was made redundant a year later and claimed to be entitled to enhanced severance pay. The tribunal found that she had been unfairly dismissed, that she had joined C at the date of transfer in 2004, but that by regulation 5(1) she was deemed to have joined C in 1999 and so was entitled to an enhanced severance payment under C's scheme. The EAT held that it had been impermissible for the tribunal to apply regulation 5(1) in that way. J argued, in support of the tribunal's decision, that regulation 5(1) required the terms of C's severance scheme to be interpreted in the context of the stipulation that J's employment contract with her original employers 'should have effect... as if originally made' between J and C.



Held, the purpose of the regulations was to safeguard, as a matter of public policy, the existing rights of employees on a transfer of an undertaking and the change of employer by making it possible for an employee to work for the new employer on the same terms and conditions as those agreed with the transferor. It was not their objective to confer additional rights on the employee or to improve the situation of the employee, Viggosdottir v Iceland Post Ltd (E3/01) [2002] 2 CMLR 18 considered. The fact that C calculated J's severance pay on the basis of her deemed continuity of service from 1999 was irrelevant to the question whether she was a new entrant to the scheme within the meaning of the scheme terms. That question was to be determined by the date when, as a fact, she had joined C, not by the direct or indirect application of regulation 5(1). The tribunal had found that J had joined C after 2002, which had not been and could not be challenged on appeal and was plainly correct. Accordingly, J was not entitled to an enhanced severance payment under the scheme.



Appeal dismissed.



Patrick Green (instructed by Bevans) for the appellant; Brian Napier QC (instructed by Brodies) for the respondent.





Sentencing



Actual bodily harm - dangerousness - extended sentences - imprisonment for public protection - violent offences

R v William John Mackie: CA (Crim Div) (Lord Justice Pill, Mr Justice Hedley): 30 October 2007
The appellant (M) appealed against a sentence of imprisonment for public protection with a specified term of 18 months, imposed after he pleaded guilty to an offence of assault occasioning actual bodily harm.



M's partner (B) was at home late in the evening when M burst in, shouting and swearing. He punched her, seized her hair, and pulled her to the floor. He left the room but soon returned, pulled her to the ground, punched and kicked her. Finally, he desisted, the police were called and M was arrested. M had previous convictions, including seven for violence, with B among the victims. The judge found that the dangerousness provisions under sections 224 to 229 of the Criminal Justice Act 2003 were satisfied, and he purported to impose a term of imprisonment for public protection pursuant to section 225.



Held, the judge's sentence was unlawful since the offence was not a serious offence within section 224(2)(b) because the maximum penalty was five years' imprisonment. Accordingly, the case did not qualify under section 225(1)(a) and no sentence under that section could lawfully be passed. However, the judge could and should have used his powers under section 227 to pass an extended sentence, as the offence was a specified violent offence as defined by section 224(3) and part 1 of schedule 15 of the Act, and the dangerousness condition was fulfilled. The judge clearly had in mind a determinate sentence of three years' imprisonment. That would have been both proper and lawful, although the judge should have extended that sentence under section 227(2) in respect of licence, and could have done so by up to two years, taking the case to the permitted maximum under section 227(5). Had he done that, no complaint could or would have been made of the sentence. The court could and did substitute that sentence for the one imposed by the judge. A person sentenced to imprisonment for public protection could not have his case considered by the Parole Board until he had served the minimum term. Thereafter, he could not be released until it was considered safe to do so. After release, he remained subject to licence indefinitely, unless the Parole Board directed that the licence should cease to have effect. However, no such direction could be given until at least ten years had expired since the date of actual release. An extended sentence entitled a prisoner to be released at the half-way point of the custodial term specified, which would be 18 months in this case. He then remained on licence and at risk of recall until the expiration of the whole term, which would be five years in this case. It followed that, taking this case as a whole, the proposed sentence was not more onerous than the one in fact passed.



Appeal allowed.



Alistair J Keith (instructed by the Registrar of Criminal Appeals) for the appellant; Jane Scotchmer (instructed by the Crown Prosecution Service) for the respondent.



Demonstrators - disparity of sentence - inchoate offences - inciting racial hatred - sentence length - soliciting murder - terrorism

R v Abdul Saleem; R v Abdul Muhid; R v Umran Javed: CA (Crim Div) (Lord Philips, Lord Chief Justice, Mr Justice Davis, Mr Justice Simon): 30 October 2007
The appellants (S, M and J) appealed against sentences imposed following their convictions for offences of soliciting murder, contrary to section 4 of the Offences against the Person Act 1861, and using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred, contrary to section 18 of the Public Order Act 1986.



Following the publication of cartoons depicting the Prophet Mohammed in a Danish newspaper, a march was organised by Muslims at a London mosque to demonstrate against their publication. The demonstration was organised at short notice and the police only became aware of it 24 hours in advance. The police took the decision to deploy information-gathering teams to film the demonstration with a view to making a decision about any public order arrests after the event, rather than make arrests on the day and act as a catalyst for violence.



Video footage filmed by police officers and television news stations showed M leading chants and carrying a Danish flag that was later burned outside the Danish embassy. He was convicted of two counts of soliciting murder and sentenced to six years' imprisonment. S was closely involved with the organisation of the march, driving a car with a public address system on it and giving a speech. He was convicted of one count of stirring up racial hatred and sentenced to four years' imprisonment. J was also filmed leading chants and holding placards, encouraging the 'annihilation of all those who insult Islam'. He was convicted of one count of soliciting murder and one count of stirring up racial hatred and sentenced to six years' imprisonment. The appellants submitted that the sentences imposed were excessive in light of recent authorities and that the judge had given insufficient regard to the context of their offending, namely that the demonstration was organised at short notice, at a time when emotions were running high and great offence had been taken to the cartoons within the Islamic community. They further submitted that the judge should have sentenced on the basis that their conduct was likely to stir up racial hatred rather than on the basis that it was intended to.



Held, the appellants and other demonstrators had subjected a multi-cultural city to chanting and placards of the most offensive nature, at a time when tensions concerning terrorism were high, the London bombings of July 2005 having occurred only six months before. Every person was entitled to convene and demonstrate but not to urge deaths and murder. The placards used in the demonstration were plentiful, threatening and uncompromising. The judge had the difficult task of sentencing inchoate offences with a terrorist purpose. The period of time covered by the offending, and the likelihood of those acts resulting in the commission of further offences by others, had to be considered. The offending in this case had occurred over a short period of time through a demonstration that occurred without sophisticated planning and was not comparable to recent cases, R v El-Faisal (Abdullah Ibrahim) (Reasons for Dismissal of Appeal) [2004] EWCA Crim 456 and R v Abu Hamza [2006] EWCA Crim 2918, [2007] QB 659 considered.



In El-Faisal and Abu Hamza, the offending had involved persistent and protracted courses of conduct aimed at recruiting young Muslims to a particular cause. Although the demonstration had included chanting and messages, it was unlikely that they would have persuaded those present or seeing it on television to carry out those messages; however, the court could not be sure in relation to those already inclined towards terrorist activity. In the circumstances, the sentences imposed on S, M and J were not sufficiently disparate from the sentences imposed in both El-Faisal and Abu Hamza. Accordingly, the appropriate sentences were: for S, 30 months' imprisonment; for J, four years' imprisonment for soliciting murder and two years' imprisonment concurrent for stirring up racial hatred; and, for M, four years' imprisonment.



Appeals allowed.



R Tansey QC for the appellant Saleem; P Mendelle QC for the appellant Muhid; H De Silva QC for the appellant Javed; D Perry QC, A Ezekiel for the Crown.