May 2003

Bulletin No 68
Butterworths Family and Child Law Bulletin – May 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.

Nullity

Application of duress
principle to forced marriage overseas

1

P v R (Forced Marriage:
Annulment: Procedure) [2003] 1 FLR 661, FD

BFLS 1A[1550]

P v R (Forced Marriage:
Annulment: Procedure) [2003] 1 FLR 661, FD is an important
indication of the prevailing judicial response to the validity of
forced marriages. The petitioner had been forced against her will
to marry a cousin while in Pakistan attending the funeral of her
sister. She had expressed her refusal of consent to her mother, but
was led to understand that she would receive severe and enduring
punishment if she did not go through with the wedding. In addition,
her brother threatened her with physical violence. At the ceremony
she remained silent when her consent was sought, and on each of the
three occasions that this was required, her mother forcibly pushed
her head forward. The imam accepted this as evidence of agreement
to the marriage. The petitioner eventually signed the marriage
certificate, but Coleridge J found that she did so out of fear and
without valid consent. He issued a decree nisi of nullity because
she had not validly consented to the marriage, as required by s
12(c) of the
Matrimonial Causes Act 1973, by reason of duress. He adopted the
test used by the Court of Appeal in Hirani v Hirani (1983) 4
FLR 232, that duress denoted situations where a petitioner’s
will had been overborne. Coleridge J also observed that in view of
the stigma attached to divorce in the community from which the
petitioner came, it was desirable for public funds to be made
available to support nullity proceedings so that cases of forced
marriages could be fully investigated in open court. He also
suggested that it was appropriate for them to be heard in the High
Court.

Comment: This is a
humane response to the distressing phenomenon of forced marriages,
which needs to be distinguished from the acceptable practice of
arranged marriage. However, there are a number of legal
complexities that this decision does not address and which may
require further attention in subsequent cases. First, the
acceptance of the decision in Hirani as valid and
binding, despite the fact that it was arguably decided without
regard to the earlier Court of Appeal decision in Singh v Singh [1971] P
226. As that decision should have bound the Court in Hirani this omission sheds
doubt on the authority of the later decision. The difference
between the decisions is probably best described in terms of the
Singh test requiring
an objective assessment of whether there was a genuine and
reasonably held fear of threat to life, limb or liberty that
destroyed the reality of consent. Hirani, on the other hand
can be seen as more liberal and subjective—whether the
petitioner’s will was overborne. The distinction was probably
immaterial in the current case because there was in fact a threat
of physical violence that would have led a reasonable person to be
fearful. However, in cases where the pressure is more emotional and
economic, then it may become necessary to choose between the two
lines of case law. The second main issue that is not discussed in
the judgment concerns the applicability of the English law of
nullity to a marriage contracted overseas. Under the stricter
objective test, lack of consent due to duress has been held to be a
matter of essential validity of a marriage and therefore governed
by English law where one spouse was domiciled in England (Szechter v Szechter [1970]
3 All ER 905). However, that decision concerned a marriage
contracted in order to escape state persecution. The international
clash of cultures in which the issue of forced marriages contracted
overseas arises is a context that may require greater tolerance to
achieve international comity. It could be argued that the degree of
choice implied by consent to marriage (as opposed to the fact that
consent is required) is a matter for the law of the jurisdiction of
celebration. Under the ‘overborne will’ approach it
could be argued that English cultural expectations are being
imposed on other jurisdictions because it depends on the subjective
state of mind of the petitioner and could therefore be readily
extended to mild resistance to arranged marriages if things go
wrong. A more objective test, albeit less restricted than that
adopted in Szechter
and approved in Singh,
might be better placed to capture the necessary distinction between
‘no consent’ cases and ‘hard choice’
situations that seems to lie between the outcomes of the cases.

Private law
proceedings

Condition as to place
of residence attached

2

Re S (a child)
(residence order: condition) (No 2) [2002] EWCA Civ
1795, [2003] 1 FCR 138

BFLS 3A[1746.1]

Re S (a child) (residence
order: condition) (No 2) [2002] EWCA Civ 1795, [2003] 1 FCR
138 was a case in which exceptionally it was permissible to use a
condition attached to a residence order to restrict the place in
which the child was to live (made under the Children Act 1989, s
11(7)). The child in question was nine and a half, with a learning
disability that gave her a mental age of under 5 and limited
tolerance to change. Her mother wished to move from London to
Cornwall. However, this would lead to less frequent contact with
her father, a situation that she would not be able to understand
and that would make her feel rejected. Although the mother would
suffer distress at not being permitted to move, the judge was
entitled to reach the conclusion that this was outweighed by the
needs of the child. The Court of Appeal should not interfere with
that assessment.

Comment: In part this
is an application of the principle that appeal courts should be
slow to interfere with the discretion of a trial judge. However, it
also provides an authoritative interpretation of the decision in
Re E [1997] 3 FCR 245
as indicating that conditions about the place of residence should
only be attached to a residence order in exceptional circumstances,
but not (as some had suggested) that they could never be added
unless there were concerns over the quality of parenting provided
by the residential parent.

Adoption

Council liable for
psychiatric damage caused by failure to inform potential adoptive
parents about the nature of child’s problems

3

A & B v Essex
County Council [2002] EWHC 2707, [2003] 1 FLR 615,
QBD

BFLS 3A[4170]

In A & B v Essex County
Council [2002] EWHC 2707, [2003] 1 FLR 615, QBD, Buckley J
held that the council was liable to adoptive parents for the damage
caused to them by the placement for adoption of a boy with serious
behavioural difficulties when those problems were not disclosed to
them. He found that there was a duty to disclose the nature of the
boy’s difficulties and that had the council done so, the
couple would not have accepted the child. However, there was no
liability for damage caused after the true picture became apparent
because the couple had chosen to go ahead with the adoption in
possession of the full facts.

Financial
provision

White v White applies to
short marriages

4

Foster v
Foster (2003) Times, 2 May, CA

BFLS 4A[792]

In Foster v Foster (2003)
Times, 2 May the Court of Appeal considered the implications of White v White [2000] 3 FCR
555 to short childless marriages. Hale LJ found that where a
substantial surplus had been generated by the joint efforts of the
spouses, the length of time taken to do so was immaterial. Where
the parties had made an equal contribution to the marriage, then
the assets should be shared equally. A number of the recognised
reasons for departing from equality were irrelevant in this case;
housing needs and the needs of children did not arise and there was
no need for continuing responsibilities between the parties. The
district judge had been right in his approach, which aimed to give
back to the parties what they brought to the marriage at the value
they held at that date. Subsequent acquisitions of property had
been based on each contributing what they could as a joint
project.

Comment: Little
detail appears in the Times report about the terms of the
order.

Enforcement

Court did not have
jurisdiction to commit

5

Re G (A
Child) (Contempt: Committal) (2003) Times, 5 May,
CA

BFLS 3A[1911]

In Re G (A Child) (Contempt:
Committal) (2003) Times, 5 May, the Court of Appeal allowed a
father’s appeal against a contempt order made in family
proceedings whereby he had been sentenced to 14 days’
imprisonment, suspended for six months. The father had placed
details of the case, information that had identified the child and
named volunteers at the contact centre, on the website of Families
Need Fathers. In the course of the county court family proceedings
in relation to contact, prohibited steps and non-molestation
orders, the judge had found the father to be in contempt of court,
although no proceedings for contempt had been initiated. He had
made the order in summary form without formulating the basis of the
alleged contempt in writing, and therefore without giving the
father the opportunity of preparing his defence or of being
represented. The father gave evidence and was cross-examined about
the facts without being told that he was not obliged to give
evidence for the purpose of the contempt finding. Consequently, the
process had been flawed and substantially unfair. The contempt
order was set aside.

Comment: The Court of
Appeal also noted that the power of a county court judge to commit
for contempt was limited to cases of contempt in the face of the
court (County Courts Act 1984, s 118) and disobedience to a court
order (County Court Rules 1981, ord 29). The current case concerned
neither of these types of contempt, so that under the Rules of
Supreme Court r 1(2) (in the Civil Procedure Rules, Sch 1)
committal for contempt could only have been made by a Queen’s
Bench Divisional Court. Although para 1.1 of the Practice Direction (Family
Proceedings: Committal) [2001] 1 WLR 1253 suggested a wider
power, a practice direction could not override the rules and was
therefore incorrect (although to be preferred as a matter of
policy).

Parenthood

Application of
special paternity rules in assisted conception

6

Re R (A Child)
[2003] EWCA Civ 182, [2003] 1 FCR 481, [2003] 2 All ER 131

BFLS 3A[318]

In Re R (A Child) [2003] EWCA
Civ 182, [2003] 1 FCR 481, [2003] 2 All ER 131, the Court of Appeal
held that whether an unmarried man, who was not the genetic father
of a child, was to be treated as the father of a child conceived by
assisted conception under the Human Fertilisation and Embryology
Act 1990, s 28(3) was to be considered as at the date of the when
the embryo was placed in the woman. Consequently, the man’s
claim to be treated as the father of the child failed. Although the
couple had initially sought treatment together to enable the woman
to become pregnant using IVF involving donated sperm, they had
separated before the resulting embryo had been placed in the woman.
At the time this procedure was carried out, it could not be said
that the couple were receiving ‘treatment services’
under the 1990 Act ‘together’ as the section required
before statutory paternity was created.

Comment: The Court of
Appeal preferred the simple approach of focusing on the factual
situation at the time that the embryo was placed in the woman to
two alternatives that have been considered in the High Court. In
U v W [1997] 1 FCR
527, Wilson J had approached similar issues arising under s 28(2)
(which applies to married couples) by suggesting that couples were
being treated together in cases where the clinic was providing
services in response to a joint request. The view of Hedley J in
the High Court in the current case was that couples should be
treated as receiving treatment together until either party or the
clinic withdraws from the understanding that this is the case.
These approaches were rejected by Hale LJ as they introduced issues
of consent where the statute did not require it. She also
considered the most appropriate procedure for dealing with cases
such as this. She confirmed that a parentage declaration under the
Family Law Act 1986, s 55A was the preferred mechanism, rather than
dealing with the matter as a preliminary issue in an application
for a parental responsibility order as had occurred here. Most
importantly, declarations were binding on all persons so that, for
example, re-registration of the birth would follow the making of
such a declaration.

Use of wrong sperm
prevents husband establishing paternity

7

Leeds Teaching Hospital
NHS Trust v A [2002] EWHC 259, [2003] 1 FCR 599,
QBD

BFLS 3A[306],
[318]

In Leeds Teaching Hospital NHS
Trust v A [2002] EWHC 259, [2003] 1 FCR 599, QBD, Dame
Elizabeth Butler-Sloss P considered the legal parentage of twins
born after an error at a fertility clinic (further details appear
in the report of an earlier stage in the litigation: Leeds Teaching Hospital NHS
Trust v A & B [2003] 1 FLR 412). Although it was intended
that the sperm of Mr A would be mixed with eggs from his wife, in
fact the sperm of Mr B had been used instead. The question arose
whether Mr A or Mr B was to be regarded by the law as the father of
the twins born as a result of the treatment. The President held
that Mr A would only be the father of the children if the Human
Fertilisation and Embryology Act 1990, s 28 applied. Section 28(2)
would have made Mr A the legal father of the twins if he consented
to the placing in his wife of the embryos. However, he had
consented to the placing in his wife of embryos created with his
own sperm. He had not consented to the treatment that in fact
occurred. Thus, s 28(2) did not apply. Section 28(3) applied where
unmarried couples were being ‘treated together’. The
President rejected the suggestion that it could also apply to those
who were married, and was strengthened in this by noting that the
same view had been assumed in Re R (A Child) [2003] EWCA
Civ 182, [2003] 1 FCR 481 (see above). However, even if s 28(3) had
applied, in the President’s opinion, the fundamental mistake
as to the nature of the treatment meant that it was not
‘treatment together’ within the section because it was
not the treatment expected. (a view consistent with the approach to
a hypothetical example considered by Wilson J in U v W [1998] 1 FCR 526 at
539). Consequently, Mr A could not rely on the special status rules
arising in relating to assisted conception and by operation of the
more general principles concerning parentage, the legal father of
the twins was the genetic father, Mr B.

Comment: It is
important to remember that the ruling on paternity had no immediate
practical consequences. It had already been accepted that the
children would continue to live with their mother and her husband
(Leeds Teaching Hospital
NHS Trust v A & B [2003] 1 FLR 412). Any application for
parental responsibility or contact by Mr B would be considered on
its merits against the test of the best interests of the children.
Mr B’s right to apply for such orders was established, but
nothing more. There was no discussion in the case of the
implications in terms of Mr B’s child support obligations,
and presumably Mr B could consider whether the NHS Trust’s
failure to exercise due care in the treatment would make them
liable in negligence for the financial exposure that he will
suffer. Further consideration may also be needed to establish the
scope of the implications of the President’s ruling. She
noted that counsel raised concerns about whether her approach would
lead to minor errors in treatment excluding the operation of s
28(2). The President’s view was that the error in this case
was so fundamental as to vitiate the consent, but that more minor
errors would not do so.

Cloning covered by
the Human Fertilisation and Embryology Act 1990

8

R (on the
application of Quintavelle (on behalf of ProLife Alliance)) v
Secretary of State for Health [2003] UKHL 13, [2003]
1 FCR 577, [2003] 2 All ER 113

BFLS 3A[301]

In R (on the application of
Quintavelle (on behalf of ProLife Alliance)) v Secretary of State
for Health [2003] UKHL 13, [2003] 1 FCR 577, [2003] 2 All ER
113, the House of Lords held that the cloning of human embryos by
the technique of cell nuclear replacement (CNR) fell within the
scope of the Human Fertilisation and Embryology Act 1990.
Parliament had intended to bring all instances of the creation of
human embryos outside of the human body within the regulatory
powers of the Human Fertilisation and Embryology Authority and
therefore an embryo created by CNR fell within the definition of
‘embryo’ despite that fact that it was not created by a
process of fertilisation. The reference to fertilisation in the
definition used in the Act was directed to the time at which an
entity should be treated as an embryo and was not an integral part
of the definition. Nor was the technique prohibited by s 3(3) of
the 1990 Act, as it did not involve the substitution of the nucleus
of an embryo because there was no ‘embryo’ until after
the CNR process had been completed.

Comment: The
practical consequence of this decision is that the Human
Fertilisation and Embryology Authority can now control, through the
licensing process, the use of this technology. If an embryo
resulting from the use of CNR is not an ‘embryo’ for
the purposes of the 1990 Act, then there would be no legal
constraints on their use. Equally, had the CNR technique fallen
within s 3(3), then the Authority could not have licensed the
technique.

Public law
proceedings

Diplomatic immunity
does not preclude care order

9

Re B (Care Proceedings:
Diplomatic Immunity) [2002] EWHC (Fam)1751, [2003] 1
FLR 241

BFLS 3A[5501]

In Re B (Care Proceedings:
Diplomatic Immunity) [2002] EWHC (Fam) 1751, [2003] 1 FLR 241
Butler-Sloss P held that diplomatic immunity, being limited to acts
in official capacities, did not prevent a care order being made in
respect of the child of a driver in the employment of a foreign
embassy. The child in question had been found to have significant
non-accidental injuries.

Comment: The parents
were not protected from the making of the order, but they would be
protected from any enforcement proceedings. In certain
circumstances, this might prevent it being in the interests of a
child to make an order. Here, however, there did not need to be a
confrontation. The President was clear that the need of the child
was for rehabilitation with the parents and refused to permit an
appeal, despite the intrinsic interest of the legal arguments,
because it would be likely to undermine that rehabilitation process
if energy were being put into legal proceedings.

Evidence

Parents are
compellable witnesses in Children Act proceedings even at split
hearings

10

Re Y & K (Minors) (Split
hearing: evidence) (2003) Times, 18 April, CA

BFLS 3A[4691]

Re Y & K (Minors) (Split
hearing: evidence) (2003) Times, 18 April, CA held that in
civil proceedings, including split hearings under the Children Act
1989, a competent witness was compellable. Consequently, counsel
for the local authority had been wrong to concede in the county
court that he could not insist on the parents giving evidence.

Comment: Hale LJ
observed that the only suggestion of the contrary view to that
taken by the Court of Appeal was a ‘by the way’ remark
by Thorpe LJ in Re B
[2002] 2 FLR 1133. However, this remark (as Thorpe LJ confirmed,
sitting in the current case) had been made without the point being
argued. Specifically, the implications of the Children Act 1989, s
98 had not been considered. That section provided immunity against
self-incrimination and was the method used by the statute to
balance the need to ensure evidence was fully presented to the
court with the interests of parents accused of failing properly to
look after their children. The error in the present case was to
treat the proceedings as if they involved criminal accusations
against the parents, where they would be entitled to stay silent.
This error is easier to fall into in split hearings, where the
question of how to proceed in the future to further the
child’s best interests would not be examined, because they
feel more like criminal proceedings. However, they remain civil
matters subject to the usual rules on compellability. Section 98
provides protection against the use of evidence in non-Children Act
proceedings.

Disclosure

Consequence of
conditional agreement to be interviewed

11

Re AB (Care
Proceedings: Disclosure of Medical Evidence to
Police) [2002] EWHC (Fam) 2198, [2003] 1 FLR 579

BFLS 3A[4646]

In Re AB (Care Proceedings:
Disclosure of Medical Evidence to Police) [2002] EWHC (Fam)
2198, [2003] 1 FLR 579 Wall J considered whether to disclose to the
police a paediatrician’s report made in Children Act
proceedings. The mother, acting on legal advice, had only agreed to
be interviewed by the jointly appointed expert on the basis that
the doctor would not reveal the contents of his interview outside
the scope of those care proceedings. The doctor opposed the
application from the police for disclosure of his report partly on
the basis that he was obliged to do so because of the conditions
agreed with the mother, and partly on the more general basis that
disclosure undermined the ability of paediatricians to make full
assessment of children’s situation because it discouraged
frankness from the parents being interviewed. Wall J noted that
there was a debate about the appropriateness of his discretion to
disclose the report and how it should be exercised, but found that
it was not the role of a High Court judge to seek to alter the
general approach to be taken, given that the Court of Appeal had
considered the matter. He rejected the view that Re L; Re V [1999] 1 FLR
267 created a presumption in favour of disclosure (although he
accepted that there needed to be good reasons to refuse
disclosure). He found that on the facts there was no disadvantage
to the child in disclosing the report (unlike the case of Re M [2001] 2 FLR 1316
where disclosure was refused in order to ensure that rehabilitation
was not impeded by the pressure of possible criminal
investigations). Applying the criteria identified in by the Court
of Appeal in Re C
[1996] 2 FLR 725, the public interest lay in enabling the police to
use the information discovered in the Children Act proceedings to
inform their murder investigation. Disclosure was therefore
ordered.

Comment: Wall J gave
consideration to the propriety of advising clients not to agree to
be interviewed by an expert medical witness. He thought that such
advice failed to give proper weight to the protection given by the
Children Act 1989, s 98 to the use of information in criminal
proceedings. However, he did not that it could be described as
professionally improper to advise non-cooperation. However, it
would rarely be wise, as the court would usually draw an adverse
inference from the failure to co-operate. In the present case, it
seemed that the lawyers’ advice had been given without regard
to the protections offered by s 98, an important failing.

Leave refused to
disclose incest to police

12

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