July 2003

Bulletin No 70
Butterworths Family and Child Law Bulletin – July 2003

Bulletin Editor
Jonathan Montgomery, BA, LLM
Professor of Law, University of Southampton

Butterworths Family and Child
Law Bulletin provides an immediate updating service
for the main text of Butterworths
Family Law Service and Clarke Hall and Morrison on
Children. The Bulletin is published every month and sent to
subscribers to those publications.

References to BFLS
and CHM above each case are to the relevant paragraphs in Butterworths Family Law
Service and Clarke
Hall and Morrison on Children.

Divorce

Mere fact of pending
ancillary relief proceedings does not justify withholding decree
absolute

1

Re G
(Decree Absolute: Prejudice) [2002] EWHA 2834 (Fam),
[2003] 1 FLR 870, FD

BFLS 2A[691]

Re G (Decree Absolute:
Prejudice) [2002] EWHA 2834 (Fam), [2003] 1 FLR 870, FD,
concerned whether a wife could prevent a husband from having a
decree nisi of divorce made absolute on the basis that she would
suffer prejudice in pending proceedings for ancillary relief.
Bennett J held that the wife had not shown anything stronger than
her own suspicion that the husband had not made full and frank
disclosure of his assets. The husband had attended hearings as
required and complied with all the court directions. The
wife’s concerns were insufficient to justify refusing to make
the decree absolute.

Comment: Bennett J
held that it was clear that the mere fact that ancillary relief
provisions had yet to be heard was insufficient to justify delaying
the making of the decree absolute. In Wickler v Wickler [1998] 2
FLR 326 there had been much stronger evidence to support the
wife’s claim that she would be prejudiced by the making of
the decree absolute. The husband’s conduct in relation to the
proceedings had been devious, and he had concealed his address as
well as his assets. Bracewell J held that there was a real risk
that he would lose interest in the ancillary relief proceedings
once he was free to remarry. The prejudice to him in delaying his
new marriage was slight but the prejudice to the wife’s
ability to establish and receive her entitlement would be high if
the decree absolute were granted.

Change of
forename

Foster parents have
no power to change forename

2

Re D, L & LA (Care:
Change of Forename) [2003] 1 FLR 339, FD

BFLS 3A[1216.2]; CHM
1[236]

In Re D, L & LA (Care: Change
of Forename) [2003] 1 FLR 339, FD, Butler-Sloss P found that
two sets of foster parents had been wrong to change the forenames
of the children that they were caring for. They had no legal right
to do so. However, in both cases the court would not order the
names to be changed back. In the first case, the foster parents had
subsequently adopted the child and therefore now did have the legal
right to alter the child’s name. In the other case, the child
suffered from Rett syndrome and had little or no understanding of
her situation. While there was no evidence of harm having been
caused by the change of name there was some possibility that a
change back might cause her suffering. More importantly, the foster
parents would have been ‘extremely upset’ and this
would in itself put the consistency of the carers and their
devotion at risk. In the disadvantaged circumstances of this
particular child, this was a crucial factor.

Comment: The
importance of this judgment lies in the authority that it gives to
advice from the Department of Heath to the effect that foster
parents should be told from the outset that they will not have the
power to alter the forenames of children in their care. The reality
is that in many cases, including these, once the issue comes to
court name changes are often a fait accompli that the court can do
little but accept. However, it is still important for advisers to
be able to be clear about the proper position.

Medical treatment

Panic attacks negate
competence

3

Bolton Hospitals Trust
v O [2002] EWHC 2871 (Fam), [2003] 1 FLR 824, FD

BFLS 3A[877]

Bolton Hospitals Trust v O
[2002] EWHC 2871 (Fam), [2003] 1 FLR 824, FD, concerned a woman who
wished to have a caesarean section but was unable to go through
with the operation because of panic attacks when she approached the
operating theatre. The court accepted medical evidence that the
woman had a temporary incapacity and that the hospital should be
authorised to carry out the procedure even against her wishes.
Elizabeth Butler-Sloss P reached this conclusion after discussing
the situation with the woman and satisfying herself that she wanted
the operation, did not wish to risk the life of her baby or
herself, and wished to be able to care for the baby and her other
children. The woman wished the order to be made in order to protect
herself against what she recognised as a psychological problem
preventing her maintaining her choice at the crucial moment.

Comment: This
decision provides an illustration of the working through of the
principles established by the Court of Appeal in the cases of Re MB [1997] 2 FLR 426 and
St Georges Healthcare NHS
Trust v S [1998] 2 FLR 728. Arrangements were made for the
President to discuss the matter with the woman herself by telephone
in the hearing of the parties. The woman was given the opportunity
to be represented, although she declined it. It also shows the
importance of alerting the medical experts who are asked to assess
the situation to the advice of the Court of Appeal set out in the
two leading cases. The first psychiatrist who assessed the woman
wrongly believed that he was being asked to determine whether she
should be ‘sectioned’ under the Mental H ealth Act
1983. The second, having been given the court judgments to read,
was able to ask the appropriate question and advise the court
accordingly.

Private law
proceedings

Significance of
grandparents to be recognised in leave applications

4

Re J (leave to issue
application for residence order) [2003] 1 FLR 114,
CA

BFLS 3A[1865]; CHM
1[694.1]

In Re J (leave to issue
application for residence order) [2003] 1 FLR 114 the Court of
Appeal allowed an appeal against the judge’s refusal to allow
a child’s grandmother to apply for a residence order. The
judge had asked himself whether she had a ‘good arguable
case’ following the test suggested in Re M (Care: Contact:
Grandmother’s Application for Leave) [1995] 2 FLR 86.
However, Thorpe L J noted that this risked displacing application
of the test set out in s 10(9) of the Children Act 1989. While Re M had been a useful
decision in its time, there was now greater recognition of the
importance of grandparents and what they had to offer.

Comment: The
implications of this judgment are that Re M should no longer be
applied even in its original context, applications for leave to
apply for contact to children in care under s 34 of the Children
Act 1989. Thorpe LJ made two main points in relation to the
authority of the earlier decision. First, that it had been
superseded by better appreciated of the value of the contributions
that grandparents can make. Second, that to introduce a filter of
‘serious arguable case’ was to preclude consideration
of the test actually contained in the statute. In relation to
contact and care proceedings, there is no specific statutory test
but in relation to private law proceedings the statutory language
should always be considered. Thorpe LJ noted that there is a
laudable aim behind the Re
M filter—to exclude hopeless cases—but it needs to
be treated carefully.

Financial
provision

Terms of prenuptial
agreement should be implemented

5

K v K (Ancillary
Relief: Prenuptial Agreement) [2003] 1 FLR 120,
FD

BFLS 4A[755]

K v K (Ancillary Relief:
Prenuptial Agreement) [2003] 1 FLR 120, FD concerned a very
short, 14 month, marriage. The parties were wealthy. The husband
was worth at least £25 million and the wife had assets of
about £1 million (mostly held in trust). A prenuptial
agreement had been drawn up with independent financial advice. This
included advice to the wife that the amounts offered to her seemed
low in the light of the husband’s apparent wealth. Despite
this advice, the wife chose not to press for full disclosure of the
husband’s assets. Although the wife had been pregnant at the
time of the marriage and her parents had exerted pressure on the
couple to marry before the birth of the child, this situation was
known to all parties and did not undermine the freedom of their
choice over the terms of the prenuptial agreement. It was pressure
to marry rather than pressure to sign the agreement. The agreement
was to cover the first five years after the wedding and provided
that in the event of divorce, or separation for more than six
months, the wife should receive £100,000 to be increased by
10% per annum compound. It also expressly provided that the husband
would make reasonable financial provision for any children
including the provision of a home for both wife and children.
Rodger Hayward Smith QC, sitting as a deputy High Court judge,
decided that, in exercising his discretion under s 25 of the
Matrimonial Causes Act 1973, the agreement was the determining
factor in relation to capital provision. He made a lump sum order
for £120,000 in accordance with that agreement. He then
considered the proper level of periodical maintenance and the
provision of housing for the child and made further orders in
respect of these matters that turn essentially on the facts of the
case rather than examination of the law.

Comment: Rodger
Hayward Smith QC distilled from the authorities on prenuptial
agreements a list of key questions (see pp 131–132), which
provide a helpful framework within which to consider the effect of
prenuptial agreements. They relate first to the quality of the
decision to sign: understanding, advice, undue pressure, and abuse
of position. These questions would be relevant to most prenuptial
agreement cases. They then examine issues of clarity and
interpretation in terms that necessarily relate to the details of
the particular agreement in question. Finally, they turn to
consider the weight to be given to those terms. First, examining
whether they would lead to injustice. It was found that there would
be no injustice in holding the wife to the agreement in relation to
capital provision and that it would in fact be unjust to the
husband to ignore the agreement. In the light of this, the
agreement was one of the circumstances to be taken into account
under s 25 of the Matrimonial Causes Act 1973, indeed making the
agreement was conduct that it would be inequitable to disregard
(under s 25(2)(g)). Rodger Hayward Smith QC was reassured by the
decision in S v S
[1997] 2 FLR 100 and M v
M [2002] 1 FLR 654 that he was not breaking new ground by
taking the agreement into account. However, it should be noted that
neither of these earlier cases involved accepting the precise terms
of the prenuptial agreement as happened in this case. In the
earlier decisions, the agreement was seen as a relevant factor but
not determinative of the order to be made. In M v M in particular, it
was difficult to see what difference the reference to the terms of
the agreement actually made.

Fairness more
important than clean break

6

F v F
(Clean Break: Balance of Fairness) [2003] 1 FLR 847,
FD

BFLS 4A[800]

In F v F (Clean Break: Balance of
Fairness) [2003] 1 FLR 847, FD Singer J considered how
equality could be achieved where there was considerable illiquidity
of assets. He found that the wife should be provided with an annual
income of £75,000 (the husband’s was assessed at
approximately £450,000). This would require an increase in the
Duxbury fund of some £550,000 over and above the
husband’s proposal. However, the bulk of the husband’s
assets comprised shares in his company, worth approximately
£2.8 million but not reasonably realisable. Singer J held that
a clean break in these circumstances would not be feasible, nor
appropriate, nor just. The statutory requirement to consider a
clean break did not override the obligation to achieve a fair
outcome and in this case there was nothing to displace the fairness
of an approximately equal division as encouraged by the House of
Lords in White v White
[2001] 1 All ER 1. Counsel were invited to draw up a form of order
to include periodical payments to the wife at £75,000 pa. In
fact, after the handing down of the judgment and before the hearing
to finalise the order, the husband offered the wife lump sums to
the order of some £1 million and in the event a clean break
order was made.

Comment: In essence,
Singer J was asked to determine whether the statutory pressure
towards clean break settlements took precedence over the
requirement to achieve a fair outcome as interpreted in White v White and Cowan v Cowan [2001] 2 FLR
192. Given the apparent illiquidity of the husband’s assets
it did not seem that it was possible to achieve both a clean break
and an equal outcome (the requirement of fairness in this case).
Faced with such a choice, ensuring substantive fairness was the
courts principal responsibility. In fact, it seems that the
husband’s difficulties in raising the resources required to
finance a clean break were less significant than claimed. This
could be seen as a vindication of Singer J’s refusal to
accept that liquidity problems were a legitimate reason to depart
from the pursuit of equality or fairness.

International child
abduction

Sharia law not
incompatible with welfare

7

B v El-B (Abduction: Sharia
Law: Welfare of Child) [2003] 1 FLR 811, FD

BFLS 5A[2277]; CHM
2[33.1]

The key issue in B v El-B (Abduction: Sharia
Law: Welfare of Child) [2003] 1 FLR 811, FD was whether the
approach of Sharia law to the custody of children was to be
respected by English courts in international child abduction cases
or to be considered as potentially in conflict with the fundamental
principle that the child’s welfare should be protected. Under
the Hanafi rules of Sharia law, as codified in Lebanon, transfer of
legal custody of children from mother to father takes place at the
ages of 7 (for boys) and 9 (for girls). There was limited scope for
the extension of maternal custody by the courts in order to protect
the child from serious harm. The case concerned a Lebanese mother
who had brought the children to England in breach of an order of
the Lebanese court that she and the children should remain in
Lebanon. As Lebanon is not a signatory to the Hague Convention on
the Civil Aspects of International Child Abduction, the case was
brought under the wardship jurisdiction. Peter Hughes QC, sitting
as a deputy High Court judge, rejected the contention that the
court should regard the ‘arbitrary’ transfer of custody
at these specific ages as inimical to the welfare of the child. The
welfare of the child had to be considered in relation to the
circumstances. Here, both parents were devout Muslims and this was
the cultural background of the children. It would be wrong to
suggest that the application of Muslim law was inappropriate. The
mother’s assertion that she would be denied justice in
Lebanon was unsupported by evidence. There was no substance in the
suggestion that Sharia law was not to be regarded as child-centred.
The apparent suggestions in Re JA [1998] 1 FLR 231
that welfare was not the test in Sharia law needed to be taken in
the context of a case where the family had lived in England for
substantial periods and where there was expert evidence of harm to
the mother and child if return to the United Arab Emirates was
ordered. A careful review of the welfare issues might lead to a
refusal to return an abducted child in certain cases, but it was
not an outright rejection of Sharia law (see Re E [1999] 2 FLR 642,
CA).

Comment: The court
was particularly critical of advice given in London to the mother
that a court would not look adversely on her abducting the children
to England. While the wardship jurisdiction is concerned with the
welfare of the ward, it remains the case (even without the
application of the Hague Convention) that the courts take the view
that removing a child abroad is rarely in its interests. Thus,
return to the child’s ‘home’ jurisdiction will
usually be regarded as in the interests of the child unless
specific issues point in another direction. Here, the wife could
point to nothing other than the fact that she felt that her chances
of winning a court case in Lebanon were lower than under English
law. To accede to her application would have been to encourage
forum shopping, which would create a situation not generally
conducive to protecting children’s welfare. The decision
indicates that attacks on the substance of Sharia law are unlikely
to persuade courts that abducted children should not be returned to
their country of origin. Specific factors that undermine a
parent’s ability to secure a fair hearing, such as absence of
standing or representation, will probably be more significant. So
too may evidence that the parties do not share an Islamic
culture.

Putative
father’s inchoate custody rights provide basis for Hague
Convention order

8

Re F (Abduction: unmarried
father: sole carer) [2002] EWHC 2896 (Fam), [2003] 1
FLR 839, FD

BFLS 5A[2136]; CHM
2[51.1]

In Re F (Abduction: unmarried
father: sole carer) [2002] EWHC 2896 (Fam), [2003] 1 FLR 839,
FD, Elizabeth Butler-Sloss P held that an unmarried putative father
was entitled to use the Hague Convention on the Civil Aspects of
International Child Abduction to secure the return of an abducted
child because he had been his sole carer. Despite the uncertainty
that the mother had raised over the boy’s paternity, the man
had inchoate rights that would be recognised as enforceable under
the Convention because (a) he had been the exclusive carer and (b)
the court would have been likely to uphold his application for a
residence order under the Children Act 1989. These limitations on
the situations in which ‘inchoate rights of custody’
could be recognised would ensure that the concept would not be
extended too far. In the President’s view, she was applying
the underlying principle behind the decision of the Court of Appeal
in Re B [1994] 2 FLR
249. Although that decision concerned an unmarried genetic father,
the principle behind it was not the blood tie but the situation of
exclusivity of care.

Comment: If the
principle behind the Hague Convention is to maintain stability of
care for children, then it makes sense to concentrate on the social
reality of the child’s position rather than accidents of
formal status. In most cases both parents have some role in the
child’s upbringing and the position of unmarried fathers
without parental responsibility has been examined in a number of
cases. This case was required to consider whether it was necessary
to resolve paternity disputes before an order under the Child
Abduction and Custody Act 1985 could be made. If proof of paternity
were held to be essential, a mother who abducted a child could
frustrate the working of the Convention by raising questions over
the putative father’s status. This would not affect marriage
cases because the presumption of paternity would assist the husband
until displaced and cases could be disposed of on the basis that
proof had not yet been raised to rebut the presumption. No such
presumption could assist unmarried fathers. This latest decision
ensures that where there has been continuity of exclusive care from
the putative unmarried father, then the mother cannot force the
court to await the results of paternity tests before returning a
child to his familiar home.

Human rights

CICB does not provide
sufficient redress to satisfy ECHR rights

9

E & Others v UK
(App 33218/96) [2003] 1 FLR 348, ECHR

BFLS 5A[4156]

In E & Others v UK (App
33218/96) [2003] 1 FLR 348 the European Court of Human Rights held
that the Criminal Injuries Compensation Board was not to be
regarded as providing a mechanism for determining the liability of
social services for negligence in relation to their dealings with
children who were the victims of abuse. This was a case in which it
was held that the local authority should have known that the
children were continuing to be put at risk by the presence of their
step-father despite a probation order with a condition that he did
not return to their home. At the time, the House of Lords had
indicated that public policy precluded litigation against the local
authority (X v Bedfordshire
CC [1995] 3 All ER 353). The Criminal Injuries Compensation
Board was therefore the only avenue for redress, but it was not
sufficient to meet the requirements of Art 13 of the European
Convention on Human Rights (right to an effective remedy).

Comment: Subsequent
domestic litigation has demonstrated that there is now scope to sue
social services departments for negligence, see W v Essex CC [2000] 2 All
ER 237 and Barrett v LB of
Enfield [2001] 2 AC 550, so this aspect of the case has been
superseded. However, the status of the Criminal Injuries
Compensation Board may continue to be important, especially in
cases of domestic violence.

Child support

Child support for
children at boarding school

10

C v Secretary of State
for Work and Pensions and B [2002] EWCA Civ 1854,
[2003] 2 FCR 325, [2003] 1 FLR 829

BFLS 4A[432]; CHM
3[63]

In C v Secretary of State for Work
and Pensions and B [2002] EWCA Civ 1854, [2003] 2 FCR 325,
[2003] 1 FLR 829, the Court of Appeal considered how the status of
‘absent parent’ under the Child Support Act 1991 should
be determined in a case in which the child in question attended
boarding school. The Child Support Agency had been wrong to decide
that a father was an absent parent without any share in the
child’s care (and therefore liable for a full maintenance
assessment) by reference to the fact that he had been refused a
shared residence order. The proper test was what arrangements for
day-to-day care would have been made if the boy were not attending
boarding school. In this case, the obvious answer would seem to be
that the previous arrangements (in which the father had a share in
day-to-day care sufficient to reduce the maintenance assessment
against him) would be likely to have continued. The decision should
be remitted to the child support officer for reconsideration.

Comment: This
decision deals with a very specific but important issue about
boarding schools. However, it also makes a more general point about
the status of residence orders in child support assessments. Potter
LJ held that the child support system was self contained and the
tests that it contained had to be specifically applied. It was
wrong to rely on determinations in other proceedings, save in so
far as it was reasonable to expect that court orders would be
implemented so that their provisions might give an indication of
the care being given.

Statutory
Instruments

The Adoption Support
Services (Local Authorities) (England) Regulations 2003, SI
2003/1348

These Regulations
make provision for local authorities in England to provide adoption
support services as part of the service maintained by them under s
1(1) of the Adoption Act 1976. They take effect on 31 October 2003.
Adoption support services are defined by s 2(6) of the Adoption and
Children Act 2002 as counselling, advice and information, and other
services prescribed by regulations, in relation to adoption. Such
services are prescribed in reg 2(1) of these Regulations, and
include financial support (reg 2(1)(a)). Regulation 3 specifies the
persons to whom financial support may be paid, and the
circumstances in which it may be paid.

Each local authority
is required to appoint an adoption support services adviser to give
advice and information to persons who may be affected by the
adoption of a child (reg 4). Regulation 5 specifies the persons who
are entitled to an assessment of their needs for adoption support
services. Regulation 6 specifies the procedure for assessment, and
reg 7 provides for the determination of financial support. After
carrying out an assessment the local authority must give notice
under reg 8 as to any adoption support services that are proposed
to be provided, and as to the period within which representations
may be made about the proposed decision. They must then give notice
of their decision in a