Bulletin No 82
Butterworths Family and Child Law Bulletin – November 2004
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.
• Medical treatment
Continuing consent required from gamete donors
Evans v Amicus Healthcare Ltd  EWCA (Civ) 727,  2 FCR 530,  2 FLR 766,  3 All ER 1025
In Evans v Amicus Healthcare Ltd  EWCA (Civ) 727,  2 FCR 530,  2 FLR 766,  3 All ER 1025 the Court of Appeal upheld the decision of Wall J ( 3 FCR 577,  4 All ER 903) that the male former partner of the applicant woman was entitled to withdraw his consent to the storage of the embryos created when they were still together. The proper construction of the Human Fertilisation and Embryology Act 1990 was that continuing consent of both gamete donors was required to make storage and use of human embryos lawful. The intrusion into the woman’s private life was justified as proportionate to the need to respect the man’s rights and freedoms. Consequently, the 1990 Act was not incompatible with the European Convention on Human Rights. The majority of the Court of Appeal rejected the suggestion that there was any discrimination against the applicant within Art 14 of the ECHR, finding that the difference between fertile and infertile women to which she pointed did not arise from the statute, which in fact sought to overcome the difficulty of infertility. Arden LJ found that there was discrimination, but that it was justified for the same reasons as intrusion into private life was justified.
Comment: This decision confirms the interpretation that Sch 3 to the 1990 Act requires continuing consent before any use can be made of frozen embryos. No priority is given to the choice of the woman over that of the man. One solution to the risk that relationships will break up is to store gametes rather than embryos. Storage of eggs is thought more likely to be successful than previously and had Natalie Evans stored her eggs rather than a fertilised embryo, she would have had the chance to have a child genetically her own with a new partner or anonymous donor. Arden LJ suggested that another solution would be an agreement about future intentions if the parties separated. However, as she notes, any such agreement would be subject to the consent requirements of the 1990 Act and it is not clear how this would have altered the outcome of the case.
Patients’ rights to demand treatment
R (Burke) v GMC  EWHC 1879 (Admin)
BFLS 3A; CHM 1
R (Burke) v GMC  EWHC 1879 (Admin) is a very important decision exploring the impact of the Human Rights Act 1998 on English health care law. Munby J upheld Mr Burke’s challenge to the guidance on withholding life sustaining treatment issued by the GMC on the basis that it failed to give due regard to his human rights. First, it emphasised the right of competent patients to refuse treatment, and failed to give due regard to the right to require it. Second, it gave insufficient acknowledgement to the duty of a doctor, who was unwilling to provide the treatment that a patient wanted, to continue that treatment until a doctor was found who would accede to the patient’s wishes. Third, it failed sufficiently to acknowledge the heavy presumption in favour of life sustaining treatment and to recognise that the touchstone of best interests was intolerability. Fourth it failed to set out the legal requirement to obtain prior judicial sanction for the withdrawal of artificial nutrition and hydration (ANH) in cases where (a) there was any doubt as to the patient’s competence, (b) the medical professionals were not unanimous as to the patient’s condition or prognosis, (c) there was evidence that the patient, while competent, would have wanted ANH to continue, (d) there was evidence that the patient (even if incompetent or a child) resisted or disputed the withdrawal of ANH, or (e) persons having a reasonable claim to have their views taken into account assert that withdrawal of ANH was contrary to the patient’s wishes.
Comment: This decision raises some very significant issues and is under appeal by the GMC. In relation to the particular position of Mr Burke, it is likely that he would have had his wishes respected under current guidance. He suffered from a degenerative condition that led to serious physical disabilities but did not impair his mental ability. He decided that when his condition deteriorated further he wished to be fed and provided with appropriate hydration until he died of ‘natural causes’ (para ). The GMC Guidance indicated that patients’ preferences should be taken into account but did not guarantee that they should be followed. Munby J’s findings are important and controversial. His first criticism, that there was insufficient regard to the right to require treatment, needs to be considered against the fact the previously English courts have declined to accept any such legal right to a specific treatment (see the recognition of this by Munby J himself in R (Watts) v Bedford PCT   EWHC 2228 (Admin) at para ). The second criticism can be seen as a development of the approach of Butler-Sloss P in Ms B v NHS Hospital Trust  EWHC 429 (Fam) and is an important clarification. However, Munby J also indicated that there were reasons to think that the traditional reluctance of the courts to compel doctors to treat against their clinical judgment might need to change in the light of the Human Rights Act 1998 (see paras –). If this view were to prevail, the relationship between the courts and doctors would change significantly and it will be interesting to see how the Court of Appeal approaches this question. The third issue, the interpretation of the best interests test, saw Munby J championing an approach that he had put unsuccessfully before the Court of Appeal in Re J  Fam 33 as counsel in that case. There would seem to be divergent views on the Family Division bench on the usefulness of the ‘intolerability’ test (see Portsmouth NHS Trust v Wyatt  EWHC 2247 (Fam), below) and it will be interesting to see how the Court of Appeal resolves the matter. So far as reference to court is concerned, Munby J has provided a helpful list of factors requiring court reference that pushes towards greater court involvement than has previously been required. Of most interest is the implication that there is something different about nutrition and hydration. This was rejected by the House of Lords in Airedale NHS Trust v Bland  1 All ER 821, although many commentators have argued that there are reasons to treat this form of basic care differently.
Withholding intrusive ventilation in child’s interests
Portsmouth NHS Trust v Wyatt  EWHC 2247 (Fam)
BFLS 3A; CHM 1[898.3]
In Portsmouth NHS Trust v Wyatt  EWHC 2247 (Fam) Hedley J authorised the NHS Trust to decline to provide artificial ventilation to Charlotte Wyatt, a year old baby, should her condition deteriorate such that she required such ventilation to survive. The court accepted medical evidence that the probability was that Charlotte would not survive for more than 12 months, even with such ventilation (a realistic probability of such survival was said to be 5%). The treatment was not in Charlotte’s best interests as it would cause pain and distress but would serve no purpose (see para ) in view of the poor prognosis. The parents’ view that treatment should be given was to be given ‘proper attention’ within the consideration of best interests and was sufficiently important to be dealt with in its own right. However, the responsibility lay with the court to decide where Charlotte’s best interests lay.
Comment: This case has attracted significant media interest, and was unusually heard in open court. In legal terms the outcome is consistent with previous decisions on similar issues, but it is nevertheless interesting for a number of reasons. First, it proceeded on the basis that there were no independent human rights submission. While key rights were engaged, it was found that the Convention rights added nothing to the domestic law (para ). This is particularly interesting when combined with the fact that Hedley J gave no special weight to the views of the parents (paras –). This is in line with established authorities (eg Re C (HIV Test)  2 FLR 1004, Royal Wolverhampton NHS Trust v B  2 FCR 76, Re MM  1 FLR 224) in rejecting the analysis that some had made of Re T  1 All ER 193. However, it might have been expected that closer scrutiny would have been given to the suggestion that Art 8 of the European Convention on Human Rights required stronger weight to be given to parental views. An argument to this effect might be drawn from the decision of the European Court of Human Rights in Glass v UK  1 FCR 553 although the better analysis is probably that the parental rights that are to be drawn from that case are procedural, in the form of the right to have a judicial consideration in cases of dispute.
A second area of interest concerns the relevance of the basis of the parental views that further treatment should be given. The parents were devout Christians and were hoping for miraculous divine intervention (para ). Hedley J did not go so far as to suggest that this meant that they were not focussed on Charlotte’s interests (compare the concerns expressed in Re C  1 FLR 384, where the parents were said to have privileged an absolute principle of sanctity of life over the individual interests of their son). However, the judge made reference to their ‘intuitive feelings’ and this may indicate that they were less influential that the reasoned objections that persuaded the court to accept the parents’ views in Re T even against the professional opinion (but see Re MM where it was accepted that the parents’ views were rational, but medical opinion still persuaded the court).
A third important feature of the case was the rejection of the suggestion made by Munby J in R (Burke) v GMC  EWHC 1879 (Admin) that the touchstone of ‘best interests’ was ‘intolerability’. Hedley J proceeded on the basis that while this was a valuable guide, it was neither to be seen as a gloss on, nor a supplementary test to, best interests (para ). It will be interesting to see whether the Court of Appeal clarifies this issue when it hears the appeal in the Burke case. Without explicitly challenging the approach adopted by Munby J, Hedley J seems to resist the temptation to create more precise legal formulations of best interests, preferring the more open ‘balance sheet’ approach of Re A  1 FLR 549 and gently quoting the rejection of the proposal from James Munby QC (as he then was) of the intolerability test in Re J  Fam 33 (see para ).
On the substantive points, the court approached the decision on the basis that the treatment requested by the parents would cause Charlotte harm (see eg paras , , , ). While it was not so harmful that it could not be given in good conscience (para ) the fact that harm was involved meant that some benefit needed to accrue to Charlotte if she was to be put through the intrusion of ventilation. On the facts, Hedley J found that there was insufficient benefit to justify exposing her to that risk of harm.
Jurisdiction within UK
Re B (a child: court’s jurisdiction)  EWCA Civ 681,  2 FCR 391,  2 FLR 741
BFLS 2A; CHM 2
Re B (a child: court’s jurisdiction)  EWCA Civ 681,  2 FCR 391,  2 FLR 741 concerned the child of a Scottish father and Somali mother. The child was born in 1997, a year after the parents married. In September 2000 the parents separated and the mother brought the child to England without the father’s consent and without informing him of her new address. Under the Family Law Act 1986, s 41 the child was deemed to retain habitual residence in Scotland for 12 months. This in turn precluded the jurisdiction of the English courts to make a residence order; although this was not realised when the mother applied for one in November 2000 and the father, once served with notice of the order, made no application for its discharge. In November 2001, when the 12 month deemed residence period was over, the father applied in England for a residence and contact order. Being unsuccessful, he commenced divorce proceedings in Scotland in January 2003 and asked the Scottish courts to take jurisdiction despite the litigation in the English courts. It was clear that had an application been made to the Scottish courts within the 12 month deemed habitual residence period, then the Scottish jurisdiction would have prevailed under the statute. However, the lack of jurisdiction to make the order in November 2000 did not render it a nullity, rather it remained effective until discharged (see Hadkinson v Hadkinson  2 All ER 567 at 569). In addition, the father had accepted the jurisdiction of the English courts when he applied for residence and contact in 2001, when the provisions of s 41 were no longer applicable and the child was clearly habitually resident in England. As a result it was clear that the English courts had jurisdiction over the case. Turning to the questions of jurisdiction arising out of the Scottish proceedings, it was clear the Scottish courts had jurisdiction to entertain the divorce proceedings, based on the father’s habitual residence. It was also clear that that jurisdiction included the power to make orders in relation to the child of the marriage. However, the fact that there was jurisdiction did not make it appropriate to exercise that jurisdiction. At the point when the Court of Appeal was considering the case, the Scottish court had stayed its proceedings, pending the outcome of the English hearing. There was, therefore, no current jurisdiction in the Scottish court as it was suspended by the stay of proceedings. There was in effect an agreement between the courts of the two countries that the proper forum for proceedings related to the child was England and Wales.
Comment: This case became more complicated than was necessary because of the father’s delay in taking steps to challenge the mother’s removal of the child. It was not helped by the fact that the father mostly represented himself, leading to less clarity in the legal arguments than would have been helpful and to some confusion between the English and Scottish judges as to what each had actually ruled. Leave to appeal was given on the basis that there appeared to be brewing a conflict between the courts, when this was not in fact the case when the true position was ascertained. Reading between the lines, it also seems that the judges were worried that the father was not pursuing legal action solely in the interests of his daughter. His resistance to travelling to London for contact with her or to be interviewed by CAFCASS officers, despite financial support being offered, was contrasted by the court with his ability to attend the proceedings in London. The case indicates, however, that practitioners need to be mindful of the special provisions in the Family Law Act 1986 dealing with jurisdiction conflicts within the UK.
• Public law proceedings
Designation goes with residence when placement is with family
Kirklees MBC v LB of Brent  2 FLR 800, FD
BFLS 3A[3023.1]; CHM 1
In Kirklees MBC v LB of Brent  2 FLR 800, FD Bodey J had to determine which local authority should be designated for the purpose of care orders. The children’s mother suffered from severe mental health problems and was detained in a secure psychiatric unit. The children were removed from the mother’s care under a police protection order and placed in foster care by Kirklees MBC. The mother, her partner and the children’s father all lived in Kirklees and each retained some contact with the children. With the agreement of all parties the children went to live with their maternal aunt in Brent and she was approved by the Kirklees panel as a short-term foster carer. Bodey J found that the fact of approval did not bring into play the ‘disregard’ of residence under s 105 of the Children Act 1989 because placement with a family member was not to be interpreted as ‘the provision of accommodation by or on behalf of a local authority’ (applying Re H  EWCA Civ 1629,  1 FLR 534, CA). He rejected the suggestion that the children had not spent sufficient time in Brent to establish habitual residence. Eight months in a placement that all regarded as permanent was sufficient. Consequently Brent should be the designated authority.
Comment: The courts have set themselves against making the tests for designating authorities too technical in order to avoid being drawn into expensive disputes about whose resources should support families (see C v Plymouth CC  1 FLR 875). As a result the disregard for periods spent in local authority accommodation is generally interpreted narrowly (see eg Re C  1 FLR 544). On the establishment of habitual residence, Bodey J accepted the generic approach to habitual residence drawn from Lord Brandon’s speech in Re J  2 AC 562 (also reported as C v S  2 FLR 442) that there needed to be the coincidence of an appreciable period of residence and a settled intention. In this case the arrangement could perhaps have been seen as indefinite, rather than ‘permanent’ (as the judge termed it) in that there was some prospect for the mother’s mental health improvement. However, it was clearly settled in the sense that there was no search for alternative arrangements. The length of period was longer than that accepted as sufficient in Northamptonshire CC v Islington LBC  2 FLR 881, where it was five months. However, in both cases the length of residence was sufficient because it was combined with clear plans for continuing residence. It should not necessarily be assumed that five months or more residence would always be enough.
Civil and criminal standards of proof not to be conflated
Re T (Abuse: Standard of Proof)  EWCA Civ 558,  2 FLR 838
BFLS 3A[3065.2]; CHM 1
Re T (Abuse: Standard of Proof)  EWCA Civ 558,  2 FLR 838 confirmed that the standard of proof in child protection proceedings is the civil standard, taking into account the fact that greater certainty is required in serious cases where the allegations are thought inherently less likely to be true. The suggestion that any distinction between criminal and civil standards was ‘largely illusory’ was mistaken (and Re ET  2 FLR 1205 was therefore based on an incorrect standard of proof).
Comment: The interpretation of the standard of proof as explained by the House of Lords in Re H  1 All ER 1 continues to be difficult. This decision indicates that the courts are resistant to any gloss on the words used in the case. On the particular facts, the assessment of the evidence was complicated by the existence of more than one set of photographs of the child’s injuries. The experts had not seen all of those photographs and disagreements arose that were resolved when it was realised that the opinions were based on different evidence. The President indicated that local protocols should be developed as soon as possible to enable all available photographs to be released to all the experts when they receive instructions to report in child protection proceedings. There was also a need for consideration at a national level between the judiciary and the relevant disciplines.
Privacy of children cases upheld
Pelling v Bruce-Williams  EWCA Civ 845,  3 FCR 108,  2 FLR 823
BFLS 3A[6002.2]; CHM 1[1212.2]
In Pelling v Bruce-Williams  EWCA Civ 845,  3 FCR 108,  2 FLR 823, the Court of Appeal held that proceedings relating to children could properly continue to be heard in private. It was technically open to the court to overturn the ruling in Re R (minor) (Court of Appeal: Order against identification)  2 FLR 145 on the basis that it predated the implementation of the Human Rights Act 1998. It was also technically possible for the court to take a different view on the matter than had been taken by the European Court of Human Rights when the applicant aired his arguments there, see B v UK; P v UK  2 FLR 261. However, the issues were essentially matters of policy and it was not appropriate for the Court of Appeal to depart from the established policy, which had been held to be compliant with the European Convention on Human Rights.
Comment: This decision is not surprising, given that the same applicant had aired the same arguments unsuccessfully in a number of cases previously. However, it is significant that the Court of Appeal indicated some sympathy with the merits of the arguments and suggested that the time was ripe for questions of privacy of proceedings to be considered by the new Family Justice Council (see para ). Thorpe LJ noted that the Scottish system was based on greater openness and that both systems were compliant with the ECHR.
• International child abduction
Child’s objections to return respected
Re J (children) (abduction: child’s objections to return)  EWCA Civ 428,  1 FCR 737,  2 FLR 64
BFLS 5A; CHM 2[71.1]
In Re J (children) (abduction: child’s objections to return)  EWCA Civ 428,  1 FCR 737,  2 FLR 64 the Co