July 2004

Tidy error!
Butterworths Family and Child Law Bulletin – July 2004

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.

•           Family protection

Husband can be prosecuted for rape happening before marital exemption rejected

R v C [2004] EWCA Crim 292, [2004] 3 All ER 1, [2004] 1 FCR 759

BFLS 1A[3625]

R v C [2004] EWCA Crim 292, [2004] 3 All ER 1, [2004] 1 FCR 759, confirmed that a man can be convicted of a rape perpetrated on his wife on a date before the ruling of the House of Lords in R v R [1991] 4 All ER 481. The husband could not rely on the argument that this would be to apply a retrospective penalty. It was well known in 1970, when the rape took place, that the marital rape exception was an anomalous fiction being progressively limited by the courts. The man must have known that it was wrong to rape his wife and it was not an abuse of process to prosecute him.

Comment: It is the nature of criminal appeals that they clarify law that was uncertain at the time the offence was committed. Consequently, it was not a retrospective change of the law to prosecute the husband in R v R [1991] 4 All ER 481, as was confirmed by the ECtHR in SW v UK (1995) 21 EHRR 363. While at first it might seem that the husband in 1970 was expected to foresee developments long in the future, it had already been established that forcible intercourse could be punished as actual bodily harm (R v Miller [1954] 1 All ER 529) so it was clear that the law regarded such activities as wrong even if they were not then classified as rape.

•           Contact

Father should have been permitted to cross-examine social worker on controversial report

Re U (children) (contact) [2004] EWCA Civ 71, [2004] 1 FCR 768

BFLS 3A[5592]; CHM 1[1241]

Re U (children) (contact) [2004] EWCA Civ 71, [2004] 1 FCR 768 concerned a case in which the father had been convicted of an act of violence against a child some 18 years earlier and had not disclosed the fact to his wife. She was understandably concerned about his contact with their two young children, particularly in the light of his deception. The judge accepted that introducing direct contact was likely to destabilise the family and had relied on a written social work report that went beyond the author’s expertise to speculate about the possibility that the father might subliminally ‘groom’ his daughters,  placing them at risk of significant harm in terms of sexual and emotional abuse. The judge had dealt with the matter on the written evidence and refused to allow it to proceed to an oral hearing. That had been an error, and the father’s appeal against the refusal of his contact application was allowed.

Comment: The father was entitled to an opportunity to challenge the social worker’s views in cross-examination. It is not clear how significant a feature of the case it was that the social worker strayed considerably beyond her professional expertise and phrased her recommendations in a manner that was partisan and subjective. The judge had acknowledged that the father had legitimate concerns in this respect, but the Court of Appeal seems to have taken the view that the judge was nevertheless influenced by these aspects of the report.

•           Child protection

Interpreting photographic evidence

Re Y (evidence of abuse: use of photographs) [2003] EWCA 3090 (Fam), [2004] 1 FLR 855, FD

BFLS 3A[4709]; CHM 1[1315]

Re Y (evidence of abuse: use of photographs) [2003] EWCA 3090 (Fam), [2004] 1 FLR 855, FD contains an account of difficulties in assessing medical evidence of possible child sexual abuse that arose from the problems of interpreting photographs. It provides a helpful illustration of the ambiguities of photographs of children’s genitalia and the difficulties that face experts instructed by the courts when they are asked to assess the reliability of such evidence. It also recognises that direct clinical examinations may sometimes be necessary to enable an accurate assessment to be made.

•           Medical treatment

Non-emergency cases of disputed treatment should be referred to the courts

Glass v UK (Application No 61827/00) [2004] 1 FCR 553, [2004] 1 FLR 1019, ECtHR

BFLS 3A[874]; CHM 1[898.2]

In Glass v UK (Application No 61827/00) [2004] 1 FCR 553, [2004] 1 FLR 1019 the ECtHR found that an NHS hospital had breached the human rights of a mother by failing to refer a disagreement over medical treatment to a court for resolution. The health professionals believed that it was not in the interests of David Glass, a child with severe mental and physical disabilities, to receive active and intensive therapy. There was also a dispute over medication for pain relief that the hospital wished to administer but the mother feared would hasten the boy’s death. The ECtHR accepted that the health professionals had been motivated by concern for their patient’s interests but found that the hospital should have referred the dispute to a court. They had failed to show that there was an emergency that might have justified proceeding without court authorisation. The NHS Trust should have taken the initiative in making an application to the court. The failure to do so breached the rights of the family under Art 8 of the European Convention on Human Rights. Damages of 25,000 Euros were awarded against the UK government.

Comment: It is doubtful whether an English court would have prevented the hospital administering the treatment had an application been made. In almost all the reported cases, judges have preferred the account given by the health professionals of child patients’ best interests to that of the parents. Nevertheless, it is an important safeguard that judicial oversight is available. The importance of this decision is that it indicates that the onus is on the NHS Trust to place the matter before the court, not for the family to do so. As public authorities, NHS Trusts are obliged by the Human Rights Act 1998 to act in accordance with respect for human rights, so failure to make appropriate referrals to court may prove the basis for an action for damages under s 7 of the 1998 Act.

•           Financial provision

Distribution of income surplus to reasonable needs

McFarlane v McFarlane; Parlour v Parlour [2004] EWCA (Civ) 872

BFLS 4A[783]

Mcfarlane v McFarlane; Parlour v Parlour [2004] EWCA (Civ) 872 has received extensive publicity as an important case on the handling of future income in cases where that income exceeds that needed to meet reasonable requirements. The two cases that were heard together concerned substantial periodical payments for a limited period to enable the wives to build up provision for their future independence. In most respects the cases were very different, but in both the husbands had significant incomes but limited pension provision. Their earnings over the next few years were expected to be used to establish financial security for the future. Periodical payments were ordered to enable the wives to make similar provision.

In McFarlane the marriage had lasted sixteen and a half years to separation and the parties had cohabited for two years before the wedding. When they were married the parties had similar earning potential, the wife as a city solicitor and the husband as an accountant. It was subsequently decided that the wife should give up work to bring up the children. On the divorce, their capital of £3 million was divided equally between them by consent. It was also agreed that the husband should pay £20,000pa in respect of each of the three children. The dispute arose over the distribution of the balance of husband’s income, which amounted £693,000pa (after deducting the payments agreed for the children). The parties had arranged their financial affairs so as to pay off their mortgages on property quickly using tax efficient partnership loans and had not made significant pension provision. Thus provision for retirement was to be made from future income. It was accepted by the husband that the wife was entitled to a conventional joint lives order. The husband offered the wife payments at £100,000pa. The wife claimed £275,000pa. The district judge awarded her £250,000pa, reduced by Bennett J in the High Court to £180,000pa, but reinstated by the Court of Appeal. The wife’s annual requirements were assessed at £128,000. The husband contended that the only purpose of periodical payments was maintenance and payments above the wife’s reasonable needs would be an impermissible mechanism to award her additional capital. Bennett J accepted this argument, but the Court of Appeal rejected the suggestion. They found no basis in authority for the proposition that the purpose of periodical payments was limited in this way. The decision of the district judge was restored on the basis that the Court of Appeal had been wrong to intervene, bearing in mind the limitations on appeals set out in Cordle v Cordle [2002] 1 WLR 1441. However, it was limited to an extendable term of five years.

In the Parlour case, the marriage had lasted only three years, five months. However, there had been prior cohabitation for three years and the court treated the marriage as constituting a seven-year relationship. Unlike the wife in McFarlane, Karen Parlour had made no financial sacrifices to become dependant on Ray, nor been disadvantaged by staying at home. There was considerable disparity between her earning potential as an optician’s assistant and his as a professional footballer. Her claim was based on her contribution to his success by ‘bringing him back from the brink’ of heavy drinking. The spouses’ capital was divided by agreement at an FDR hearing, with 37% going to the wife in the form of the matrimonial home, a property of modest value and a lump sum of £250,000. Unlike McFarlane where the husband’s income was set to rise significantly, Ray Parlour faced likely declining income because he was reaching the end of his playing career. At the time of the hearing his annual earnings were £1.2 million. However, that was likely to drop significantly when his current contract expired in four years. The husband’s offer of periodical payments for the wife and children was £120,000 (10%). The wife sought £444,000, representing the same proportion of income as was received of the capital. Bennett J regarded that as unprincipled and unfair. He awarded £250,000 to be shared between the wife and the children. The Court of Appeal awarded the wife £444,000 pa for a four year extendable term, to coincide with the negotiation of the footballer’s new contract. This would enable her to build up resources for the future using the £294,000 pa she would receive over and above her reasonable needs. The Court of Appeal hoped that this would enable a clean break to be achieved at the end of the period when the husband’s earning potential could be reassessed.

Turning to the principles to be applied, the Court of Appeal rejected the suggestion that capital and income should be treated as fundamentally different. The principles in White v White [2002] 2 FLR 981 were applicable to the division of income as well as capital. The practice of wealthy husbands declining to complete Form E on the basis that they could meet any order that the court was likely to make was not acceptable and had to stop. The main error made by Bennett J was to have insufficient regard to the statutory requirement to achieve the termination of the continuing financial relationship between the parties as soon as possible (MCA 1973, s 25A). The capital settlements in each case had gone some way towards achieving this, but it was not enough to prevent continuing periodical payments. The capital settlement represented the share of the accumulated past surpluses of income over expenditure. Sharing out the future surplus could provide the consideration for dismissing the wife’s remaining claims. This would enable a clean break to be achieved. The orders made by the Court of Appeal provided the wives with the ability to accumulate that surplus over periods of five and four years respectively so that a clean break would become possible.

Comment: This decision has been portrayed in the media as a major change in practice in exceptional circumstances. While the Court of Appeal has suggested that the situations were exceptional, this is really only true of the Parlour case. The facts of McFarlane are perhaps more common for professional people, particularly at a time where suspicion of pension arrangements leads parties to plan to create security in old age through heavy investment in the later stages of their careers. What was unusual in the Parlour case was the predictable drop in income within a few years. The wife and children would have been prone to suffer a major drop in living standards if there was no investment of the surplus income to provide them security. Unless such security was created, continuing maintenance would be required from whatever income Ray Parlour continued to command. The Court of Appeal’s order gave the wife the means to establish a secure financial future for herself and the children rather than rely on the husband to do it for them. The McFarlane award can almost be seen as a form of structured settlement in which the total clean break award is provided in the form of a combination of a capital lump sum and future instalments. In neither case is it really appropriate to see the awards as providing a continuing stake in future earning potential. Ray Parlour’s lucrative contract was signed during the marriage and was the product of his achievements during it. In McFarlane the award was enabling the spouses to disentangle their interests in their partnership together, a partnership in which financial decisions had been carefully calculated and planned. Once the parties’ financial interests could be separated out, a clean break could be achieved.

The most important practical implications of the case concern the requirement of all parties to complete Form E, making full disclosure of their means and the need to ensure that all contributions to the family are treated as of equal value (applying White v White). It remains to be seen whether wives actually receive more from their husbands as a result of the ruling, or whether they will receive it more quickly in order to achieve a clean break so that periodical payments will be higher but over a shorter time. That is the logic of the arguments put forward by the Court of Appeal to support their decision, although there remains scope for confusion as to how closely it explains the actual outcomes.

Realisation of assets after divorce

Sawden v Sawden [2004] EWCA Civ 339, [2004] 1 FCR 776

BFLS 4A[1017]

In Sawden v Sawden [2004] EWCA Civ 339, [2004] 1 FCR 776 the Court of Appeal varied a financial settlement so as to insert a trigger for sale of the matrimonial home in the event that both of the adult children left home and settled independently in homes of their own. The original order had provided for the husband’s 45% charge on the property to be realised on the wife’s remarriage or cohabitation, sale (with provision for a roll over onto another principal residence on one occasion), death or end of occupation for six months. The husband was 58 years old and in poor health. He contended that it was not reasonable to prevent him getting the benefit of his share by effectively prolonging the wife’s residence in the matrimonial home indefinitely so that he was unable to realise his portion of the assets. This position was further exacerbated by the fact that the two adult children remained living at home even though both worked. The Court of Appeal agreed that it would be appropriate to trigger a sale of the family home if both children were to leave and establish homes of their own. Ward LJ considered the approach that would be likely to be taken if the children had in fact already left home and concluded that a court would find that justice required the husband to be able to realise his share.

Comment: There are a number of interesting features to this decision. The shares of 45% to the husband and 55% to the wife were not in issue on the appeal but seem to confirm the acceptability of an approximately equal division of assets even in cases of modest means. The wife’s larger share reflected the fact that she had maintained the property for some seven years after the separation from her own means, having retrained and gained employment as a secretary. Second, the Court of Appeal seems to have been happy to accept that the home should not be sold while the adult children chose to continue to live in it. The elder child was 28 and living at home to reduce costs as he established a carpentry business. The younger child was 21 and working as a nursery school teacher. It is arguable that their choice to stay at home should not automatically have prevailed over the husband’s application to realise his only significant asset when he had very small means and was reliant on income support. The issues would be different where the children needed financial support through education, or possibly even when they were unable to secure employment. Here, however, the husband’s claim would seem stronger than where the children were financially dependent or minors. It may be significant that the parties were not legally represented; the wife because she could no longer afford a solicitor, the husband never having been represented (although he had received support from a McKenzie friend).

•           Housing

Homosexual partner as living as spouse

Ghaidan v Godin-Medoza [2004] UKHL 30, [2004] 2 FCR 481

BFLS 1A[3122], 1A[3129]

In Ghaidan v Godin-Medoza [2004] UKHL 30, [2004] 2 FCR 481 the House of Lords held that a homosexual partner was to be treated as a spouse for the purposes of succession to a statutory tenancy after the death of his partner. The House agreed unanimously that it was incompatible with the European Convention on Human Rights to treat homosexual and heterosexual unmarried couples differently. It was accepted that Art 8 of the Convention was engaged where legislation governed succession of tenancies to family members. Although that Article did not require States to make such provision, if it were made then it must be done so in a non-discriminatory manner so as to avoid falling foul of Art 14 of the Convention. No justification had been offered for distinguishing between unmarried heterosexual and homosexual couples, so it was discriminatory to treat them differently. The majority of the House of Lords took the view that it was possible to interpret the housing legislation’s definition of ‘living with the original tenant as his or her wife’ so that it extended to homosexual couples as well as to heterosexual couples. Lord Millet took the minority view that this was a matter for parliament and such a construction would go beyond the interpretive scope provided by s 3 of the Human Rights Act 1998.

Comment: This decision is of immediate practical importance in the provision of security to members of homosexual relationships. It goes beyond the protection offered to such persons as family members by Fitzpatrick v Sterling [2000] 1 FCR 21 by ensuring a statutory not merely an assured tenancy. It has a wider and greater significance in relation to the role of the courts in statutory interpretation. Their Lordships were prepared to alter the settled interpretation of the concept of living together ‘as husband and wife’ in order to achieve a non-discriminatory application of the Act. The majority felt able to do so because they saw the main principle behind the legislation as to provide security to family members and understood the flexible interpretation as furthering that main principle rather than undermining it. Lord Millett did not feel able to adopt that approach, believing that the statute was clear in its intention to protect married and heterosexual unmarried couples and that the judges would be usurping the function of Parliament to extend the legislation as the majority proposed, although he agreed that the Convention required such an extension. This is an important exploration of the judicial role in interpreting statutes following the Human Rights Act 1998. In relation to family law statutes, it would seem likely that legislation providing protection for spouses and couples living together as ‘husband and wife’ will normally cover homosexual couples as well as heterosexual ones. Legislation that distinguishes between married couples and non-married couples would be treated differently (see Karner v Austria [2004] 2 FCR 563), but if protection is extended beyond the limits of marriage, then it cannot now be withheld from homosexual couples. It can be anticipated that there will be difficulties in determining when could are living together as spouses. A helpful discussion of the ways in which relationships are ‘marriage like’ can be found in the speech of Baroness Hale at [139]–[144].

•           Privacy

Adolescents’ human rights—privacy and freedom of expression

Re Roddy (a child) (identification: restriction on publication); Torbay BC v News Group Newspapers [2003] EWHC 2927, FD

BFLS 3A[835]; CHM 1[883.1], 1[227]

Re Roddy (a child) (identification: restriction on publication); Torbay BC v News Group Newspapers [2003] EWHC 2927, FD concerned the privacy of a young woman, Angela Roddy, who had become pregnant at the age of 12 and was now aged 16. When she was pregnant there had been considerable media interest in reports that she had been offered money by the Roman Catholic Church to keep rather than abort her baby. Injunctions had been put into place keeping secret the identity of the baby and also the parents, both of whom were 12 years old. The young woman now sought permission from the court to reveal her identity so that she could tell her story to the press. She had been taken into care and her baby placed for adoption against her wishes. Munby J considered that there was a protective jurisdiction available to the court, which had to be exercised by balancing the demands of Arts 8 and 10 of the European Convention on Human Rights. He noted that Angela had rights to impart her views under Art 10 as well as interests under Art 8 to respect for her private life. Applying the line of decisions emphasising the need to balance privacy concerns with those promoting free expression and freedom of the media, Munby J found that the balance fell in favour of permitting discussion of the case without revealing the identities of the father or the child. He also considered the possibility that Angela’s own interests might conflict. She wished to tell her story, but as a child there was an argument to be considered as to whether this was in her best interests to let her do so. Munby J reviewed the law on children’s rights to take decisions, beginning with the leading House of Lords decision, Gillick v West Norfolk & Wisbech AHA [1985] 3 All ER 402, and concluded that the court had a duty to defend Angela’s right to exercise her rights under Arts 8 and 10 of the ECHR. Consequently, even if her decision to tell her story to the press had been challenged by her parents and the local authority (who in fact supported her in this case), then her choice should be respected.

Comment: There are two very important aspects of this case that are likely to prove significant in the development of the law. The first was the recognition that Art 10 rights may be as significant as Art 8 rights in disputes over media coverage of family affairs. Previous cases have tended to stress