Family Law

Bulletin No 65
Butterworths Family and Child Law Bulletin  - February 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.

Financial provision

Equal recognition of contributions of homemaker and wealth provider

BFLS 4A[821.12]

Lambert v Lambert [2002] EWCA Civ 1685 [2002] 3 FCR 673, [2003] 1 FLR 139

Lambert v Lambert [2002] EWCA Civ 1685 [2002] 3 FCR 673, [2003] 1 FLR 139, is an important case on the interpretation of the decision of the House of Lords in White v White [2000] 3 FCR 555. The family had significant wealth. The husband claimed that this wealth had been generated by his exercise of special skills and that he should therefore receive a greater share of the assets than the wife. The Court of Appeal held that it was unacceptable to place greater value on the contribution of a breadwinner than that of a homemaker. They noted that the judge had found that there was nothing more that the wife could have done in the circumstances to justify an award of 50% and that this suggested that it would be unfair to expect more of her. The husband’s contribution was that of a skilful businessman but not, in the eyes of the judge, that of a genius. The Court of Appeal rejected the suggestion that the mere fact that a large fortune had been accumulated could constitute a special contribution that required the spouse who dealt with business (rather than homemaking) to be awarded a greater share in the assets. The court did not go so far as to reject the suggestion that there could ever be a ‘special contribution’ having this effect. It remains a legitimate possibility, but only in wholly exceptional circumstances. The Court of Appeal substituted an order for equal division of the overall capital resources for the original order giving 63% to the husband and 37% to the wife.

Comment: This case contains a number of important aspects. There is a full review of the authorities interpreting the decision of the House of Lords in White v White. The alleged conflict of positions adopted by Coleridge J (said to have improperly created a presumption of equal division) and Connell J is carefully reviewed. The suggestion that Cowan v Cowan [2001] 2 FCR 331 created a principle that equality should not be used as a yardstick where there had been an exceptional financial contribution was rejected. It would lead to an inappropriately mechanical approach and would reduce the relevance of White v White to ‘big money’ cases. The latest decision also demonstrates the need to bring into consideration all the factors identified in s 25 as being significant, although the way in which it does so does little (as Thorpe LJ acknowledged) to increase the predictability of the outcomes. The crucial factor, however, was the approach to the principle of equality as pursued in White v White as an injunction to avoid discrimination on the basis of the role played by a spouse in the life of the family. The husband’s claim to a greater share could only be upheld by such discrimination. The wife had done all that could be expected of her in the role they had accepted she should play. To differentiate between them would necessarily be to devalue that role, something that White v White has said is not acceptable.

Clawback on likely capital increase—limits of clean break

BFLS 4A[1012]

Parra v Parra [2002] 3 FCR 513, FD

In Parra v Parra [2002] 3 FCR 513, FD, Charles J considered a divorce case in which one of the principal assets held by the couple was a piece of land, known as Star Works, that was anticipated to increase in value in the long-term as a result of planning permissions that would not be forthcoming in the short-term. The other main asset was a company which had been built up by the joint efforts of the spouses and whose profitability was currently lower than it was likely to be in the future. Charles J noted that the marriage had been a joint enterprise and that a 50% split of the assets would have been appropriate in this case even without the decision of the House of Lords in White v White [2000] 3 FCR 555. Taking into account the fact that the husband would increase his earnings through the company in the future the lump sum awarded to the wife was approximately 54% of the assets of nearly £2.5 million. He also accepted the value of making a clean break in this case as the relationship between the spouses had deteriorated and become bitter. However, such an order would only be appropriate if the wife were in a position to benefit from the long-term investment in the Star Works. That would be achieved by granting the wife a claw back enabling her to share in possible future profits on the development of the land.

Comment: This case is important for two main reasons. It demonstrates the working out of the implications of equality between spouses in a case where there was little dispute about the fairness of that approach. Second, it assists with the creation of clean break settlements even where there is uncertainty about future fluctuations in value. The claw back solution does not entirely terminate the relationship between the parties but it does carefully define the way in which they will have to interact. The working out of the order not only needed to define the wife’s stake in future profits, but it also had to limit the husband’s power to use the asset in a way that would reduce its value.

Human rights

Ban on corporal punishment in schools is not breach of religious freedom

BFLS 3A[757], 5A[4404]; CHM 6[273]

R (Williamson) v Secretary of State for Education and Employment [2003] 1 FCR 1, CA

In R (Williamson) v Secretary of State for Education and Employment [2003] 1 FCR 1 the Court of Appeal considered a claim from Christian parents that they were entitled to delegate their powers to administer corporal punishment to teachers in independent schools, despite the terms of the Education Act 1996, s 548 (as extended to independent schools by the School Standards and Framework Act 1998, s 131). They also claimed that if s 548 did prevent them delegating powers of corporal punishment, then it breached their rights under Arts 8, 9 and 10 of the European Convention on Human Rights and Art 2 of the First Protocol to that Convention. The Court of Appeal held that s 548 did prevent the delegation of the parental powers of physical chastisement. The majority held that Art 9 was engaged by the parents’ complaints, but that, as the prohibition on the use of such punishments by teachers did not prevent the parents from administering them themselves, the provision did not breach the article. The possibility of parental chastisement demonstrated that the statute did not in fact constitute a material interference with the parents’ rights, as the parents could manifest those beliefs through administering physical ‘correction’ themselves. Even in respect of the one school that did not regard this as an acceptable or practical solution, then the parents could choose to educate their children in one of the other faith schools, so again there was no material interference with their rights. The suggestion that an independent claim could be mounted that the legislation also infringed Art 8 of the Convention was rejected. As it was not a breach of Art 8 to require children to be educated, it could not be said that schooling was an extension of the private sphere. Protection was given to parental convictions in education through Art 2 of the First Protocol. However, this did not assist the applicants. Buxton LJ and Arden LJ both found that the State was entitled to restrict the choice of schools available to parents to those free from the use of physical punishment. Buxton LJ reached this conclusion by holding that the parents’ views were not within ‘convictions’ requiring respect at all. The basis for Arden LJ’s views is less clear (see paras 298–304).

Comment: It is perhaps unfortunate that the Secretary of State for Education and Employment had not pleaded the alternative argument that even if there had been any infringement of Art 9, it was justified under Art 9(2). This makes the present decision an uncertain guide as to the outcome of further litigation on the degree of freedom to be permitted to religious schools, for example a challenge to the national curriculum and a demand to teach only Creationism rather than science informed by the understanding of evolutionary processes. It is also important to note the strength of the minority view, expressed by Buxton LJ, that Art 9 was not engaged by the parents’ complaints, as corporal punishment was not claimed to be part of the ritual expression of Christianity. In his view, the fact that the parents’ views on corporal punishment were motivated by their religious beliefs did not make the administering of corporal punishment an expression of that belief in the sense required by Art 9 (applying Arrowsmith v UK (1978) 3 EHRR 218, X v UK (1984) 6 EHRR 558, Kalac v Turkey (1997) 27 EHRR 552, Jewish Liturgical Association Cha’are Shalom Ve Tsedek v France (2000) 9 BHRC 27). Buxton LJ suggested that it would have been necessary for the applicants to show that their religion obliges them to inflict corporal punishment (para 64). In his view, the texts cited from the Old Testament Book of Proverbs referred to a far more extensive use of physical punishment than was proposed by the applicants and could not be said to mandate that behaviour as the applicants’ claimed. The majority of the Court of Appeal regarded it as being outside the scope of the judicial role to examine the detailed basis of the beliefs in question. However, this element of the arguments will merit closer consideration. In part, Buxton LJ was seeking to distinguish core religious practices (which would be protected) from those which are not a defining element of the faith. The majority was concerned that this search for the essential ‘articles’ of faith within the range of religious beliefs held by a person was a particularly Christian phenomenon, and indeed it could be said to represent a peculiarly Anglican approach. They were probably right to be cautious about the ability of a court to distinguish a hierarchy of beliefs, although some religions might themselves do so. However, another aspect of Buxton LJ’s argument was that the arguments placed before the court in support of the religious beliefs professed by the applicants were internally incoherent. It is established ECtHR jurisprudence that, in order to claim the protection of Art 9, beliefs must be consistent with human dignity, serious, important, cogent and coherent. The main arguments in favour of prohibiting corporal punishment in schools are based on the fact that it is an affront to human dignity in general and to the rights of the individual child in particular. This can be seen from the fact that the UK has been consistently criticised by the Committee on the Rights of the Child for its persistent failure to implement the protection of children against parental violence under the UN Convention on the Rights of the Child. The details of this clash of views will only be worked out in a case in which the terms of Art 9(2) are considered in detail. The majority view in the Williamson case that religious beliefs are in issue is likely to be maintained, but the lengths to which the majority went to uphold the ban on physical punishment in schools suggests that it is far from settled that faith schools will be permitted substantial freedom to depart from prevailing norms on education and discipline.

Youth justice

High Court should not substitute own decision on youth committal issue

CHM 7[108]

R (C) v Sheffield Youth Court; R (N) v Sheffield Youth Court (2003) Times, February, QBD

In R (C) v Sheffield Youth Court; R (N) v Sheffield Youth Court (2003) Times, February, QBD, Stanley J considered the Magistrates’ Courts Act 1980, s 24(1) concerning transfers to the Crown Court. He held that the youth courts were required to transfer cases that fell within the scope of the sub-section—those where the court considers that it ought to be possible to impose a long sentence of imprisonment should the young person be committed. In deciding whether this was the case, the youth court should take into account the sentencing powers of the crown court and the guidance that had been given as to their exercise. If that guidance indicated that there was no real possibility of a long sentence, then committal was inappropriate. The decision whether to commit was granted by Parliament to the youth courts and, on review in the High Court, the issue was whether the decision was within the range of acceptable decisions. It was not whether the higher court would have made the same decision itself.

Statutes

Adoption and Children Act 2002

The Adoption and Children Act 2002 will align adoption law with the Children Act 1989 in making the child’s welfare the paramount consideration in all decisions relating to adoption. It will create a duty on local authorities to maintain an adoption service, gives a new right to an assessment of needs for adoption support. It will require adoption support agencies to register under Part 2 of the Care Standards Act 2000. There is provision for the Secretary of State to establish an Adoption and Children Act Register to suggest matches between children waiting to be adopted and approved prospective adopters

The Act makes new provision for the process of adoption and the conditions for the making of adoption orders, including new measures for placement for adoption with consent and placement orders to replace the existing provisions in the Adoption Act 1976 for freeing orders. The courts will be obliged to draw up timetables for resolving adoption cases without delay. Provision is made for adoption orders to be made in favour of single people, married couples and unmarried couples. There will be a new and more consistent approach to access to information held in adoption agency records and by the Registrar General about adoptions which take place after the Act comes into force, by ensuring that the release of this sensitive information about adopted people and their birth relatives is protected and that its disclosure is subject to safeguards.

The Act incorporates with amendments the Adoption (Intercountry Aspects) Act 1999 (other than ss 1, 2 and 7, and Sch 1), as respects England and Wales, providing additional restrictions on bringing a child into the United Kingdom in connection with adoption, aimed at ensuring that British residents follow the appropriate procedures where they adopt a child overseas or bring a child into the United Kingdom for the purposes of adoption. It also provides for restrictions on arranging adoptions and advertising children for adoption (through traditional media and electronically) other than through adoption agencies, and prohibits certain payments in connection with adoption.

The Act also makes a number of amendments to the Children Act 1989. These include provision for an unmarried father to acquire parental responsibility where he and the child’s mother register the birth of their child together; a new special guardianship order, intended to provide permanence for children for whom adoption is not appropriate; a power for local authorities’ to provide accommodation for children in need under s 17; a duty on local authorities to make arrangements for the provision of advocacy services to children or young people making or intending to make representations; amends the definition of ‘harm’ in the Children Act 1989 to make clear that harm includes any impairment of the child’s health or development as a result of witnessing the ill-treatment of another person; makes the application for a placement order specified proceedings and to enable rules of court to make applications for section 8 orders specified proceedings and to provide for the representation of children in proceedings. Regulations may be made under the Children Act to require a local authority to review the care plan of a looked after child

Statutory Instruments

The Social Security (Contributions) (Amendment No 4) Regulations 2002, SI 2002/2924

With effect from 17 December 2002, these Regulations amend the Social Security (Contributions) Regulations 2001 as a result of the Education (Teacher Student Loans) (Repayment etc.) Regulations 2002 (provision for the repayment or reduction of amounts payable in respect of student loans of newly qualified teachers). With effect from 1 April 2003, they also amend the Regulations to reflect the renaming of the invalid care allowance as the ‘carer’s allowance’ in accordance with the Regulatory Reform (Carer’s Allowance) Order 2002.

The Registration of Births, Deaths and Marriages (Fees) Order 2002, SI 2002/3076

This Order specifies the fees payable under the Acts relating to the registration of births, deaths and marriages and associated matters, from 1 April 2003. Most fees remain the same, but where fees have been increased, the fees payable both before and after that date are set out in the Schedule. Where fees have been increased, the additional amount is 50 pence.

The Social Security Contributions (Decisions and Appeals) (Amendment) Regulations 2002, SI 2002/3120

These Regulations, which took effect on 7 January 2003, amend the Social Security Contributions (Decisions and Appeals) Regulations 1999 to replace all references to statutory sick pay or statutory maternity pay in the principal Regulations with references to statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay.

The Residential Family Centres Regulations 2002, SI 2002/3213

These Regulations, which come into force on 1 April 2003, are made under the Care Standards Act 2000 and apply in relation to residential family centres in England only. Part I of the Act establishes, in relation to England, the National Care Standards Commission and Part II provides for the registration and inspection of establishments and agencies, including residential family centres, by the Commission. It also provides powers for regulations governing the conduct of establishments and agencies.

Certain establishments are excluded from the definition of a residential family centre under s 4(2) of the Act, including most hospitals, independent clinics and care homes. An establishment is also excluded from the definition of residential family centre if it is a hostel or domestic violence refuge, or an establishment whose main purpose is to provide accommodation and services to adults.

By reg 4, each centre must prepare a statement of purpose consisting of the matters set out in Sch 1, and a resident’s guide to the centre. The centre must be conducted in a manner which is consistent with the statement of purpose. Regulations 5 to 9 make provision about the persons carrying on and managing the centre, and require satisfactory information to be available in relation to the matters prescribed in Sch 2. Where the provider is an organisation, it must nominate a responsible individual in respect of whom this information must be available (reg 5). Regulation 6 prescribes the circumstances where a manager must be appointed for the centre, and reg 8 imposes general requirements in relation to the proper conduct of the centre, and the need for appropriate training.

Part III makes provision about the conduct of residential family centres, in particular as to the health, welfare, care and education of the residents and as to the protection of children accommodated there. It also makes provision for the facilities and services to be provided to residents. Provision is also made about the staffing of centres and the fitness of workers, and about record keeping and complaints.

Part IV makes provision about the suitability of premises, and the fire precautions to be taken. Part V deals with the management of residential family centres. Regulation 23 requires the registered person to monitor the quality of care provided by the centre. Regulation 24 imposes requirements relating to the centre’s financial position. Regulation 25 requires the registered provider to visit the centre as prescribed.

Part VI deals with miscellaneous matters, including the giving of notices to the Commission, and notification to the Commission and others of the events listed in Sch 5.

Regulation 31 provides for offences. A breach of the regulations specified in reg 31 may be an offence on the part of the registered person. However, no prosecution may be brought by the Commission unless it has first given the registered person a notice which sets out in what respect it is alleged he is not complying with a regulation and, where it is practicable for him to do so, the action he should take in order to comply and the period for compliance. The notice must also specify the period within which he may make representations about the notice.

The Civil Procedure (Amendment No 2) Rules 2002, SI 2002/3219

These Rules are not principally concerned with family matters. They insert into the Civil Procedure Rules 1998, as Part 63, new rules governing the procedure for intellectual property rights, in particular patents, registered designs and registered trade marks. They also make minor amendments to the rules currently in force: rule 25.13 (security for costs where the claimant is resident out of the jurisdiction and not in a convention state) to comply with the judgment of the Court of Appeal in De Beer v Kanaar & Co; rules 36.6 and 37.1, in anticipation of changes to the rules governing payments into court; and rule 56.4 (miscellaneous provisions about land).

The Children and Family Court Advisory and Support Service (Miscellaneous Amendments) Order 2002, SI 2002/3220

This Order amends the following the Data Protection (Subject Access Modification) (Social Work) Order 2000, the Justices’ Clerks Rules 1999; and the Adoption Agencies Regulations 1983 to reflect the establishment of the Children and Family Court Advisory and Support Service (under the Criminal Justice and Court Services Act 2000) and the replacement of the term ‘guardian ad litem’ with officers of the Service who represent children who are the subject of family proceedings. In proceedings under s 41 of the Children Act 1989 and s 65 of the Adoption Act 1976 the term ‘children’s guardian’ replaces ‘guardian ad litem’.

The Intercountry Adoption (Hague Convention) Regulations 2003, SI 2003/118

These Regulations come into force on 1 June 2003. They were made under the Adoption (Intercountry Aspects) Act 1999 and implement the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption that was concluded at the Hague on 29 May 1993.

Part 2 makes provision in respect of requirements, procedure, recognition and effect of adoption in England and Wales where the United Kingdom is the receiving State. It applies where a child is habitually resident in another Contracting State and the prospective adopters are habitually resident in the British Islands. Regulations 3 to 7 make provision regarding the application for determination of eligibility, and the assessment of suitability, eligibility and other requirements such as counselling and police checks. Regulations 8 to 11 provide for the assessment of suitability of the prospective adopter, the procedure to be followed and the notification of decision. Regulation 12 sets out the procedure following the receipt of the Article 16 Information from the Central Authority of the State of origin. Regulation 13 imposes duties on the adoption agency in respect of the period before the arrival of the child in England and Wales. Regulations 14 to 20 make provision in respect of the case where a child arrives in the United Kingdom but no Convention adoption has been made. Regulation 21 prescribes the requirements for the purposes of making a Convention adoption order. Regulation 22 makes provision regarding the procedural requirements following a Convention adoption order or Convention adoption. Regulations 23 and 24 respectively make provision in respect of where a court refuses to make a Convention adoption order and the annulment of a Convention adoption order or a Convention adoption.

Part 3 makes provision in respect of requirements and procedure in England and Wales where the United Kingdom is the State of origin. It applies where a child, habitually resident in England and Wales is to be adopted by prospective adopters who are habitually resident in another Contracting State. Regulation 25 imposes duties on an adoption agency in respect of the assessment of a child. Regulations 26 to 30 set out the functions of an adoption panel, provide for the making, and notification, of decisions, the procedure to be followed once the Article 15 Report is received, duties of the adoption panel and the local authority decision in respect of the placement of the child. Regulation 31 sets out the requirements in respect of the Article 16 information and the procedure to be followed in preparing a report and gathering information. Regulations 32 and 33 respectively prescribe the requirements for the purposes of making a Convention adoption order and the procedural requirements following a Convention adoption order or Convention adoption.

Part 4 makes miscellaneous provisions. Regulations 34 and 35 provide for the application and modification of the Adoption Act 1976 and the Adoption Agencies Regulations 1983. Regulation 36 makes it an offence where a person contravenes or fails to comply with reg 15 (notification to local authority), reg 18(2) (return of child to local authority), reg 18(4) (return of child to relevant authority as ordered by the court) or reg 23 (refusal to return child to relevant authority within prescribed time as ordered by the court). Regulation 37 makes transitional and consequential provisions.

The Child Support (Decisions and Appeals) (Amendment) Regulations 2003, SI 2003/129

The Regulations come into force in relation to a particular case on the day on which s 16 of the Child Support Act 1991 as amended by the Child Support, Pensions and Social Security Act 2000 comes into force in relation to that type of case. They amend the Social Security and Child Support (Decisions and Appeals) Regulations 1999, substituting a new para (2)(b) in reg 5A to clarify the operation of that regulation.

The Social Security (Overlapping Benefits) Amendment Regulations 2003, SI 2003/136

These Regulations, which come into force on 7 April 2003, amend the Social Security (Overlapping Benefits) Regulations 1979 by removing the provision to adjust the amount of guardian’s allowance payable under s 77 of the Social Security Contributions and Benefits Act 1992 by reference to the rates of child benefit payable.

The Child Support (Applications: Prescribed Date) Regulations 2003, SI 2003/194

These Regulations specify 3 March 2003 as the date prescribed for the purposes of ss 4(10)(a) and 7(10)(a) of the Child Support Act 1991 which preclude an application for child support maintenance under s 4 or, in Scotland, an application by a child for a maintenance calculation under s 7, in cases in respect of which there is in force a maintenance order made before that date.

Recent reports

The Victoria Climbié Inquiry

The Report of the Victoria Climbié Inquiry (Cm 5730), chaired by Lord Laming, makes 108 recommendations on good practice in child protection. Many of them relate to standards of record keeping and the management of cases and are recommended by the Inquiry to be implemented within six months without the need for further resources or legislative change. Others, such as the introduction of a single electronic database for holding information recorded by those working in children and families’ service will require more extended consideration. It is also recommended that the documents Working Together and the National Assessment Framework should be brought together by the Department of Health into a single simplified document. More far reaching recommendations include a National Agency for Children and Families, incorporating the responsibilities of a Children’s Commissioner for England.

Recent articles on family and child law

Courts and contact Briefing from Joseph Rowntree Foundation on a research report [2002] Fam Law 872

Property rights on family breakdown Rt Hon Lord Justice Thorpe [2002] Fam Law 891

Marriage, divorce and the courts Stephen Cretney [2002] Fam Law 900

Brussels II revisited—an overview of proposed amendments Helen Stafford & Eric Donnelly [2002] Fam Law 904

Homelessness and the family Helen L Conway [2002] Fam Law 911

Embracing children—non-urgent treatment, dental legal issues and children Penny Booth & Stephanie Proud [2002] Fam Law 917

Segal orders District Judge MJ Segal [2002] Fam Law 923

H-J & H-J—Fairness at last? Marc Saunderson [2002] Fam Law 924

Financial eligibility for legal aid—the joint account Laurence Singer [2002] Fam Law 925

Pension shares and MIGs Geoff Jones [2002] Fam Law 927

Representation of children in public law proceedings: Notice to Children Panel Members Law Society [2002] Fam Law 930

The misnomer of family law Hon Justice Wilson [2003] Fam Law 29

Lambert—shutting Pandora’s box David Hodson, Miranda Green & Nadine de Souza [2003] Fam Law 37

Ancillary relief costs orders Andrew Newbury [2003] Fam Law 46

‘Shaking forces’—shaken baby syndrome and the level of violence involved Cathy Cobley & Alison Kemp [2003] Fam Law 51

Freeze! The Civil Jurisdiction and Judgments Act 1982 Emma Harte & Sophie Barrett [2003] Fam Law 56

The age of equality—the implications of Lambert for big money divorces Louise Spitz & Christine Gentry (2002) 152 NLJ 1799

Tenancies and same-sex couples Rebecca Probert (2002) 152 NLJ 1801

Uses and abuses of Khreino Barbara Hewson (2003) 153 NLJ 97

Shared parenting—a 70% solution? Felicity Kaganas & Christine Piper (2002) 14 CFLQ 365

Parental Alienation Syndrome and Alienated Children—getting it wrong in child custody cases Carol S Bruch (2002) 14 CFLQ 381

Tackling youth crime—supporting families in crisis Raymond Arthur (2002) 14 CFLQ 401

Child protection on the internet—challenges for criminal law Alisdair A Gillespie (2002) 14 CFLQ 411

Re W & B; Human Rights and the Children Act 1989 Carole Smith (2002) 14 CFLQ 427

Re W & B; A note on the judgment from the perspective of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Nuala Mole (2002) 14 CFLQ 447

Clibbery v Allan; or Scott v Scott revisited Mike Dodd (2002) 14 CFLQ 461