Family Law

Bulletin No 73
Butterworths Family and Child Law Bulletin - October 2003
Bulletin Editor
Jonathan Montgomery, BA, LLM
Professor of Law, University of Southampton

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

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

Divorce

Divorce petitions rejected as unfounded

Bhaiji v Chauhan, Queen’s Proctor Intervening (Divorce: Marriages used for Immigration Purposes) [2003] 2 FLR 485, FD

BFLS 1A[2002]

Bhaiji v Chauhan, Queen’s Proctor Intervening (Divorce: Marriages used for Immigration Purposes) [2003] 2 FLR 485, FD concerned five cases, heard together, in which divorce petitions had been brought on the basis that the respondents had behaved in such a way as to make it unreasonable to expect the petitioners to continue to live with them (under the MCA 1973, s 1(2)(b)). Although the respondents did not seek to defend the cases, the Queen’s Proctor intervened, contending that the petitioners had presented false cases with the connivance of the respondents. The allegation was that the marriages had been used to secure indefinite leave to remain in the UK for the five spouses, who were Indian citizens. Such indefinite leave had been granted after declarations that the marriage subsisted and that the spouses intended to live permanently with each other. Suspicion had been raised by the speed with which breakdown was claimed to have occurred after indefinite leave had been granted, the fact that all five petitions had been presented to Bolton County Court (even though three of the couples had no obvious connection with that place), the fact that the petitioners had acted in person without the involvement of solicitors, and the similarities in the particulars alleged of unreasonable behaviour (which seem to have been prepared on the same word processor and used identical phraseology). On an oral hearing to examine the evidence, Wilson J found that the allegations were not established, and in a number of respects were clearly false. Four of the cases were dismissed, and permission was given for the remaining case to be withdrawn.

Comment: The judge ordered for the transcript of his judgment to be sent to the immigration authorities to alert them to the potential for abuse of the relatively easy English divorce procedures to use marriages to secure leave to reside. The case also exposes a number of issues for legal practitioners. Although none of the respondents was found to have connived at the presentation of a false petition, considerable (although unsuccessful) efforts were put into trying to identify the person who had drafted the petitioners. A professional lawyer who was found to have assisted in bringing a knowingly unfounded case can therefore expect to find themselves in difficulties with the court and their professional body. Secondly, the possible abuse of the divorce process was picked up by diligent court officials noticing the similarity of the petitions. The oddities of the cases only became apparent when they were carefully compared. It is difficult, therefore, to be confident that isolated cases of such marriage and divorce arrangements, made for immigration purposes, would be detected. This fact highlights the unsatisfactory nature of the ‘special procedure’ under which the substantive law’s supposed requirement of evidence of irretrievable breakdown is watered down by the limited scope for close scrutiny. Nevertheless, the fact that the irregularities were detected indicates that the days of oral hearings of divorce petitions are not entirely over.

Disclosure

Guardian entitled to see documents on LA concerns over foster father

Re J (Care Proceedings: Disclosure) [2003] EWHC 976 (Fam), [2003] 2 FLR 522

BFLS 3A[4677]; CHM 1[1270]

Re J (Care Proceedings: Disclosure) [2003] EWHC 976 (Fam), [2003] 2 FLR 522 was a case in which the local authority sought to conceal information from the child’s guardian and her mother. The child had been removed from the foster carers after the foster father had been arrested in connection with investigations into child pornography. The local authority had obtained the mother’s consent to a medical examination of the child without revealing that this examination was to ascertain whether he had been sexually abused. The explanation given for the change of foster placement to the mother and children’s guardian was that it was for ‘personal’ reasons. Wall J held that the guardian was entitled to see the documents held by the local authority that revealed the true course of events as they were documents relating to the child within s 42 of the Children Act 1989. By virtue of s 42(3), this right overrode any claim of public interest immunity.

Comment: Wall J was highly critical of the conduct of the local authority in a number of respects. They had sought to avoid the mother knowing about the medical examination at all through a ‘grossly unprofessional and wholly improper’ stratagem of ringing her mobile but planning to put the phone down after only two rings. They wrongly gave ‘personal reasons’ as the reason for the movement of the children to a new placement. The guardian wished to understand the reasons for the termination of the foster placement, the content of the strategy meeting held to discuss the way forward, and the outcome of the medical examination. These were clearly issues that could relate to the child’s welfare and without knowing the details the guardian could not properly carry out his task. Although the information was clearly sensitive and needed to be kept confidential, Wall J pointed out that it would remain confidential in the hands of the guardian and subject to the control of the court within the proceedings. This point had been established in Re R [2000] 3 FCR 721 in the context of reviews under Part 8 of Working Together. The need for social workers to place all relevant information before the court had been also been stressed in L v L [1989] 2 FLR 12.

Lifelong anonymity in exceptional case based on EHCR, Art 8

X (a woman formerly know as Mary Bell) v O’Brien [2003] EWHC 1101 (QB), [2003] 2 FCR 686

BFLS 3A[6042]; CHM 1[891]

In X (a woman formerly know as Mary Bell) v O’Brien [2003] EWHC 1101 (QB), [2003] 2 FCR 686 Dame Elizabeth Butler-Sloss P issued an injunction against the whole world giving lifelong anonymity to the adult woman formerly known as Mary Bell and also to her daughter. Mary Bell had been convicted of manslaughter by reason of diminished responsibility in 1968 when she was aged 11. She had killed two small children and the trial revealed that she had herself suffered appalling abuse. Over the years since her conviction there had been considerable public interest, rekindled in 1993 after comparisons were made between her case and that of the murder of Jamie Bulger. On her release from prison in 1980 she had been provided with a new identity and established a more normal life including giving birth to a child. On five occasions, she and her daughter had been forced to relocate when her identify became known. On one of those occasions, her four year old daughter was forced out of school because of her mother’s identity. The President found that her past identity remained confidential and that this confidentiality could be protected by an injunction in the exceptional circumstances, taking into account her rights under Art 8 of the ECHR. The exceptional circumstances were summarised as being (1) the young age at which the offences were committed, (2) the finding of diminished responsibility on solid evidence of childhood abuse, (3) the length of time since the offences were committed, (4) the need for rehabilitation and redemption of the offender, (5) the effect on her rehabilitation of the publicity and semi-iconic status attributed to her, (6) the serious risk of potential harassment, vilification, ostracism, (7) her precarious mental state (a chronic affective disorder manifested by anxiety and depression). The President also noted that X was required to be in regular contact with probation services and there was no danger of her reoffending. She then balanced these factors against the need to promote press freedom, as required by s 12 of the Human Rights Act 1998. She noted that protection was sought only in respect of the present identity and location of the applicants and that this permitted press discussion of the issues surrounding her case. She noted also that the daughter’s privacy was intertwined with that of her mother and could not be severed from it.

Comment: There was no opposition to the application for this injunction from either the newspapers represented before the court or from the Attorney General. The Official Solicitor also supported the making of the order. The principle that an injunction could be made contra mundum binding all persons had been established in Venables v MGN Ltd [2002] 1 FCR 333 and was not challenged in this case. However, the Venables case was regarded as distinguishable by the President in that it turned on the cogent evidence of serious and specific threats to the murderers of Jamie Bulger that engaged their right to protection under Art 2 of the ECHR (right to life). To found injunctions on Art 8 is potentially of far wider significance. However, the President stressed the exceptional nature of the case and was clear that this was not a foundation for extending protection to notorious serious criminals. This would inhibit the legitimate public interest in knowing the identity of those who commit serious crimes and the success or otherwise of rehabilitative processes. In X’s case, her identity remained secret under previous judicial protection, but this had not prevented this legitimate public interest being met through widespread discussion.

Financial provision

Fair division required wife to have influence as shareholder, not merely financial stake

C v C (Variation of post-nuptial settlement: company shares) [2003] EWHC 1222 (Fam), [2003] 2 FLR 493

BFLS 4A[981]

C v C (Variation of post-nuptial settlement: company shares) [2003] EWHC 1222 (Fam), [2003] 2 FLR 493 concerned how to distribute assets on divorce which included shares held under a Cayman Islands trust. Coleridge J considered whether it would be more appropriate to vary the trust to transfer shares from the trust to the wife or to give her monetary compensation in lieu of such a transfer through a deferred lump sum or something similar. The wife sought a transfer of the shares because the voting rights that they would bring would give her influence in the running of the company that the spouses had set up to carry out pharmaceutical research. She also sought to be independent of the husband as soon as possible and expected to take up work as a university lecturer by the end of the year. It was hoped that the company would increase in worth, perhaps returning to its value of some US$11m a few years previously, and then be sold within about 5 years. Taken at current value, the husband’s assets totalled some £480,000 and the wife’s £121,000. However, the nature of those assets had to be taken into consideration, as did the fact that the husband’s earning potential was greater than the wife’s. Coleridge J suggested that the circumstances indicated that there needed to be a compelling reason before the wife would be denied the opportunity to play a role in the company through the influence that a shareholding would bring. She had previously played a role in the success of the company and wished to continue to do so in the future. She also had reason to be concerned that the husband might have an adverse effect on its fortunes due to a poor relationship with the current directors. She had made a sensible case for holding shares, which the court should in fairness concede to. Turning to quantification, Coleridge J determined that the matrimonial home should be transferred to the wife, subject to the mortgage (total equity £168,745). This met the need of the couple’s child for a home (the first consideration under s 25 of the Matrimonial Causes Act 1973 being her welfare). It also constituted the most secure asset. The wife should also receive 30% of the husband’s shares in the company. On current valuations, that constituted a broadly equal division. The wife would receive periodical payments at a nominal level from January 2004 onwards. Coleridge J noted that if the company was sold for a significantly higher value, then the court could make further adjustment though varying the wife’s entitlement to periodical payments and then capitalising them to achieve a clean break settlement.

Comment: Coleridge J noted that the decision of White v White [2001] 1 All ER 1 had made the court’s task easier by discouraging the parties from raising evidence about the respective value of their contributions to the family wealth. There was no disagreement about the fact that the court should seek to make a broadly equal division of the assets, the question concerned how to achieve such a division given the nature of the assets available. The judge placed considerable weight on the wife’s previous involvement with, and planned future involvement in, the company. He noted that wives in her position sometimes step away from any involvement in the future running of the company. For them, there was no particular advantage in owning shares rather than having a stake in the eventual sale. Where the issue was purely the financial one of benefiting from future profits, shareholding would not be necessary. Some form of charge or variation of the trust to ensure that the wife remained a beneficiary might suffice. Here, however, there were good reasons for enabling the wife to be able to influence the conduct of the company. This will not always be easy to achieve, especially where assets are held abroad. Coleridge J noted that the trustees to the Cayman Island settlement were not parties to the case, and that enforcement of the order could prove expensive. However, he was satisfied that the husband was likely to co-operate with any order made. He also noted that where the underlying assets held under the trust were shares in an English company (as here) there were powers available to the court to encourage compliance.

International child abduction

Wrong to find situation intolerable when authorities had not been given opportunity to provide family protection

Re H (children: abduction) [2003] EWCA 355, [2003] 2 FCR 151, [2003] 2 FLR 71

BFLS 5A[2177]; CHM 2[67]

In Re H (children: abduction) [2003] EWCA 355, [2003] 2 FCR 151, [2003] 2 FLR 71 the Court of Appeal found that the judge had been wrong to find that abducted children would be placed in an intolerable position, within the terms of Art 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction, if returned to Belgium. The Court of Appeal agreed with the judge that the children’s position in the family indicated grave risk of harm. However, they did not agree that there was reason to believe that the Belgian authorities could not protect the children. The mother had not sought any help from the Belgian child protection authorities or from the Belgian courts (although she had called the police on a number of occasions). It could not be assumed that the Belgian authorities would be unable to manage the situation. As the intolerable situation had to relate to returning to the jurisdiction, not to the family situation that previously existed, the possibility that the situation could be managed prevented the requirement of Art 13(b) being established. The case was remitted to a High Court judge for a directions hearing to put into place arrangements for the children’s return.

Comment: The mother gave an account of persistent domestic violence directed against her and against one of the children. This account was corroborated by the children’s conversations with the child and family reporter, but contradicted by the husband. Belgian child protection agencies were involved with the family after a referral from the children’s school but the mother had not taken any steps to seek protection. The children’s abduction had precluded further investigations. In these circumstances, it was inappropriate to assume that there was no adequate protection, as the Belgian authorities had not had the opportunity to intervene. As the question under the Hague Convention is whether the children will be safe in the jurisdiction, not in the family circumstances from which they had been removed, then this was a crucial factor in the case.

Human rights

Failure to enforce order for return of abducted child breached ECHR, Art 8

Sylvester v Austria (App Nos 36812/97 & 40104/98) [2003] 2 FCR 128, [2003] 2 FLR 210, ECHR

BFLS 5A[4182]

Sylvester v Austria (App Nos 36812/97 & 40104/98) [2003] 2 FCR 128, [2003] 2 FLR 210, ECHR concerned the non-enforcement by the Austrian courts of an order for the return of an abducted child under the Hague Convention. Following unsuccessful attempts to enforce the order that the child be returned to the father in the USA, the Austrian Supreme Court took the view that the changed circumstances now meant that it was inappropriate to force the child’s return. It noted in particular the impact of the lack of contact with the father. The European Court of Human Rights found that the delays were the responsibility of the Austrian government. It had been at fault in failing to secure expert reports promptly and failing to take steps to locate the mother when she changed her whereabouts in order to defy the execution of the return order. This constituted a breach of Art 8 of the European Convention on Human Rights in respect of the rights of both the father and the child. Damages were awarded.

Comment: While concerned with international child abduction, where speed is an important principle, this case will have wider implications. Examples would probably include child protection cases where delays in appointing children’s guardians or securing expert reports reduce the prospects of rehabilitation of children into their families. It may also be relevant in relation to cases where contact is not enforced. States are obliged to take reasonable steps to enforce orders (Ignaccolo-Zenide v Romania [2000] ECHR 31679/96) and failure to do so would open the way to compensation claims.

ECHR should not reopen welfare judgments on facts

Sahin v Germany; Sommerfield v Germany [2003] 2 FCR 619 & 647, [2003] 2 FLR 671, ECHR

BFLS 5A[4182]

In Sahin v Germany; Sommerfield v Germany [2003] 2 FCR 619 & 647, [2003] 2 FLR 671 the Grand Chamber of the ECHR rejected the approach initially taken by the ECHR in criticising the assessment of a contact dispute by the German courts. This had involved close scrutiny of the evidence relied upon by the German courts and rejecting their conclusions despite the fact that there was evidence on which it could reasonably be based (see [2002] 3 FCR 321). This approach to the requirements of Art 8 failed to give due respect for the margin of appreciation of states. However, in relation to Art 14 the Grand Chamber upheld the finding of breach, as the German law treated unmarried fathers without establishing sufficient justification.

Comment: This decision in many ways takes a similar stance to that developed by the House of Lords to family law appeals in G v G [1985] 2 All ER 545. It draws a distinction between issues of fact, where the court should be very reluctant to interfere with the assessments made by the trial court, and those of law. Here, the German courts had made a judgment of what was in the interests of the child after a proper procedure and with reasonable supporting evidence. To enable such a decision on the evidence to be reopened would have the effect of encouraging the use of the ECHR as a regular avenue of appeal. However, in respect of discrimination against unmarried fathers the question related to the legal rules to be applied and was an appropriate matter for the ECHR to consider.

Statutes

Human Fertilisation and Embryology (Deceased Fathers) Act 2003

This Act addresses the situation of mothers who have conceived children after the death of their husbands or partners, using assisted conception techniques (commonly called fertility treatment). These women have been unable to register their deceased husband or partner as the father on the child’s birth certificate as a result of the provisions of s 28(6) of the Human Fertilisation and Embryology Act 1990. In proceedings brought by children conceived in these circumstances, the High Court declared in March 2003 that this restriction was incompatible with the claimants’ right under Art 8 of the European Convention of Human Rights and/or Art 8 read in conjunction with Art 14. The Act also implements the recommendation of Professor Sheila McLean, Professor of Law and Ethics in Medicine at the University of Glasgow, made in her report ‘Review of the Common Law Provisions relating to the Removal of Gametes and of the Consent Provisions of the Human Fertilisation and Embryology Act 1990’ (July 1998) that children born in these circumstances should have a symbolic acknowledgement of their father on their birth certificates.

The Act allows a man to be registered as the father of a child conceived after his death using his sperm or using an embryo created with his sperm before his death. This registration will not confer upon the child any legal status or rights as a consequence of that registration. This Act also enables a man to be registered as the father of a child conceived after his death using an embryo created using donor sperm before his death, again, without conferring upon the child any legal status or rights as a consequence of that registration.

Statutory Instruments

The Housing Benefit (General) (Local Housing Allowance) Amendment Regulations 2003, SI 2003/2399

These Regulations amend the Housing Benefit (General) Regulations 1987, the Housing Benefit (General) Amendment Regulations 1995 and the Housing Benefit (Decisions and Appeals) Regulations 2001 and provide for new arrangements for determining eligible housing costs for the purposes of claims for housing benefit made by persons living in the areas of certain local authorities (‘pathfinder authorities’). The pathfinder authorities are Blackpool, Brighton and Hove, Edinburgh, Conwy, Coventry, Leeds, Lewisham, North East Lincolnshire, and Teignbridge. Different commencement dates apply to each of these authorities.

Regulation 2 inserts new definitions. Regulation 3 amends reg 8 of the Regulations to provide for the calculation of maximum housing benefit in cases where the eligible rent has been determined in accordance with regulations 10 and 11A. Regulation 4 inserts reg 8A, which provides for the maximum housing benefit to expire where it has not been updated. Regulation 5 amends reg 10 of the Regulations to provide for the determination and application of an eligible rent where a pathfinder authority has been required to determine a maximum rent (standard local rate) by virtue of reg 11A. Regulation 6 inserts regs 11A and 11B. Regulation 11A provides for the circumstances in which a pathfinder authority must determine a maximum rent (standard local rate), the way it is to be determined, and for the treatment of any amount by which the maximum rent (standard local rate) exceeds the rent which the claimant is liable to pay. Regulation 11B makes provision for pathfinder authorities to publicise the new arrangements.

Regulation 7 inserts para (2B) in reg 12A of the Regulations, which provides that cases to which the new arrangements apply do not need to be referred to the rent officer. The same applies to requests for pre-tenancy determinations where the case would be subject to the new arrangements were a claim to be made. Where rent under the tenancy is attributable to board and attendance, there is no provision for a pre-tenancy determination to be made. Regulation 8 amends reg 12B of the Regulations to provide for pathfinder authorities to apply to the rent officer for board and attendance redeterminations where part of the rent is attributable to board and attendance. Regulation 9 amends reg 12C of the Regulations to provide for pathfinder authorities to apply for substitute board and attendance determinations or redeterminations where the rent officer has notified them that he has made an error, and reg 10 amends reg 12CA of the Regulations to exclude broad market rental area and local housing allowance determinations from the provisions of reg 12C of the Regulations.

Regulation 11 inserts reg 12E, which makes provision for cases where decisions are revised as a result of amended broad market rental area or local housing allowance determinations being made by the rent officer. Regulation 12 amends regs 93 and 94 of the Regulations to make provision for the circumstances in which local authorities may pay a person’s housing benefit direct to his landlord in cases to which the new arrangements apply. Regulation 13 inserts Sch 8 which specifies the local authorities which are pathfinder authorities.

Regulation 14 makes modifications and amendments to the Regulations in the case of persons who have reached the qualifying age for state pension credit. Regulation 15 amends the Housing Benefit (General) Amendment Regulations 1995 to provide for the circumstances in which transitional provision under those Regulations will cease to have effect in cases to which the new arrangements for determining eligible rent apply. Regulation 16 makes consequential amendments to the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001.

The Social Fund Cold Weather Payments (General) Amendment Regulations 2003, SI 2003/2605

These Regulations, which come into force on 1 November 2003, amend the Social Fund Cold Weather Payments (General) Regulations 1988 in relation to the lists of weather stations and applicable postcode districts in Schs 1 and 2 to those Regulations. Regulation 2 replaces Sch 1 to the Regulations with Sch 1 to these Regulations. The new Schedule largely re-enacts the list contained in the former Schedule, but it also replaces six weather stations, adds six new weather stations to the scheme, and provides for certain other changes to the postcode and weather station linkages.

Regulation 3 replaces Sch 2 to the principal Regulations, with Sch 2 to these Regulations. This substitution takes into account the fact that one of the specified alternative weather stations from the previous Schedule is no longer required as an alternative weather station, and one new alternative weather station is required due to the replacement of one of the stations from Sch 1 for this winter’s scheme.

Recent articles on family and child law

‘Shaken Baby Syndrome’—Child Protection Issues when Children Sustain a Subdural Haemorrhage Cathy Cobley & Tom Sanders (2003) 25 JSWFL 101.

Third Party Applications for Protection Orders in England and Wales—Service Provider’s Views on Implementing Section 60 of the Family Law Act 1996 Mandy Burton (2003) 25 JSWFL 137.