January/February 2002

BUTTERWORTHS FAMILY AND CHILD LAW BULLETIN

Bulletin No 55
Butterworths Family
and Child Law Bulletin
 – January/February 2002

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.

Tax
Capital gains tax taper relief for business assets

It was confirmed in the 27 November 2001 pre-Budget report that
legislation will be included in FA 2002 to ensure that, for
disposals of qualifying business assets on or after 6 April 2002,
75% taper relief will be available if the asset has been owned for
a minimum period of two years (currently four years). This reduces
the effective rate of CGT for a higher rate taxpayer to 10% of the
chargeable gain. For business assets owned for at least one year,
but less than two, 50% taper relief will be available (with an
effective CGT rate of 20% for a higher rate taxpayer).

Parental responsibility
Direction on parental defence of chastisement

BFLS 3A[757]
R v H (assault of child: reasonable chastisement)
[2001] EWCA Crim 1024, [2001] 3 FCR 144,
[2001]
2 FLR 431

In R v H (assault of child: reasonable chastisement)
[2001] EWCA Crim 1024, [2001] 3 FCR 144, [2001] 2 FLR 431, the
Court of Appeal considered the proper direction to be given in
cases where a defendant claimed that they were exercising a
parental right of chastisement. In the case, a father had beaten
his son with a belt across his back several times, causing an
assault occasioning actual bodily harm in the form of bruising. His
stated reason for doing so was that the boy was unable or unwilling
to write his name when told to do so. After a preliminary hearing
dealing with the applicable law, an appeal was made concerning what
direction would be appropriate. The Court of Appeal held that a
jury in such cases should be directed to consider the
reasonableness or otherwise of the chastisement, considering the
nature and context of the defendant’s (ie the father’s)
conduct, its duration, its physical and mental consequences in
relation to the child, the age and personal characteristics of the
child and the reasons given by the defendant for administering
punishment.

Comment: Legislation is still awaited for
England and Wales on the scope of the right of parental
chastisement, although it has been severely limited in Scotland and
proposals are under consideration in relation to Northern
Ireland.

Private law proceedings
Legitimacy of condition restricting residence

BFLS 3A[1746]
Re S (a child) (residence order: condition)
[2001] EWCA Civ 847, [2001] 3 FCR 154

In Re S (a child) (residence order: condition) [2001]
EWCA Civ 847, [2001] 3 FCR 154, the Court of Appeal overturned a
condition added to a residence order restricting the parent with
care’s plans to relocate to Cornwall. The judge had heard
expert evidence on the effect of the relocation on the
child’s ability to adjust to the reduced contact with the
father that the move would involve. He decided that it would be in
the interests of the child to prevent the move and made a condition
on the order for residence with the mother that she should continue
to reside in Croydon. The Court of Appeal held that this was
inappropriate. The Children Act 1989 provided restrictions on the
residential parent’s right to decide whether to live abroad
(s 13(1)(b)). By implication, the restrictions on decisions where
to live within the UK should be less onerous. As Payne v Payne
[2001] 1 FCR 425 showed, there was an expectation that reasonable
decisions about emigration should normally be respected and that it
was not a matter of the court seeking to impose its ideal solution.
The courts should show even greater reluctance to interfere with
choices over residence within the UK. Conditions dealing with the
place of residence would be exceptional. The Court of Appeal held
that the question whether the case was exceptional had been
insufficiently explored before the judge and that it should be
remitted for reconsideration by the county court.

Comment: The exceptional circumstances taken
into account by the judge concerned the fact that the child in
question had significant health problems, including a learning
difficulty. However, the impact on the mother of frustrating her
plans to leave Croydon and move to the country had not been fully
investigated and this needed to be done. For a case where the
circumstances were sufficiently strong to justify restricting a
move within the UK, see Re H below. The Re S case leaves open the
question whether the test reinforced in Payne in respect of moves
abroad is identical to that relating to restrictions on the place
of residence in the UK. The main tenor of the Court of
Appeal’s judgments is that the courts should be more
reluctant to interfere with relocations within the country, but
Clarke LJ suggests (at 163) that in both categories the essential
question will be whether it would be incompatible with the welfare
of the child to permit the move. The case is also interesting in
that the original application was for a prohibited steps order. The
judge took the view that as the application concerned the place of
the child’s residence it was better analysed as a residence
order case. The Court of Appeal tacitly accepted this approach.

Condition restricting residence valid

BFLS 3A[1746]
Re H (children) (residence order: condition)
[2001] EWCA Civ 1338, [2001] 3 FCR 182, [2001] 2
FLR 1277

Re H (children) (residence order: condition) [2001]
EWCA Civ 1338, [2001] 3 FCR 182, [2001] 2 FLR 1277, concerned a
case where the father, who cared for the children, intended to move
to his native Northern Ireland. The judge refused to permit this.
He found that the father had no accommodation or employment
established. The welfare report indicated that the loss suffered by
the children through separation from their mother would be similar
to a feeling of bereavement. The mother’s psychiatrist gave
evidence that the impact on the mother would be devastating and the
Court of Appeal inferred that this could lead to her losing her job
and consequently being unable to support the family financially.
The Court of Appeal found that these factors gave evidential
foundation for the order preventing the father moving to Northern
Ireland and that as a result the judge’s discretion could not
be challenged on appeal.

Comment: This decision relies on that in Re S above, but does
not expressly use the language of ‘exceptional
circumstances’. Its general thrust could be said to indicate
that the father’s planned move would be incompatible with the
welfare of the child, supporting Clarke LJ’s suggestion in Re
S that (despite the expressed view that cases internal to the UK
should be treated more warily) there is great similarity in the
tests to be applied in emigration cases under s 13 of the Children
Act 1989 and domestic relocation cases. A further point of interest
in this case was the statement that the approach taken by Munby J
in Re X & Y [2001] 2 FCR 398 should not be followed. That case
(see Bulletin 52) had suggested that the key to determining cases
was the no order principle in s 1(5) of the Children Act 1989. This
would have had far-reaching implications but does not seem to have
won the backing of the Court of Appeal. Finally, the Court of
Appeal firmly rejected the suggestion that a move from England and
Wales to the jurisdiction of Northern Ireland was restricted by s
13 of the Children Act. That related to departure from the United
Kingdom not the legal jurisdiction.

Public law proceedings
Local authority failed to show why order requiring funding of
assessment should not be made

BFLS 3A[3322.6]
Re C (children) (residential assessment)
[2001] EWCA Civ 1305, [2001] 3 FCR 164

In Re C (children) (residential assessment) [2001] EWCA
Civ 1305, [2001] 3 FCR 164, the Court of Appeal made an order that
a local authority should fund a residential assessment. It had been
established by the House of Lords in Re C [1997] 1 FCR 149 that
such an order was within the jurisdiction of the court. It was true
that the court should consider whether it was reasonable to require
a local authority to commit a significant amount of expenditure to
such an assessment. However, in this case the local authority had
raised the issue at a late stage, without due warning, and without
sufficient financial information (especially as to the possibility
of joint funding from health and education budgets). The assessment
was in the interests of the children and the local authority had
failed to show sufficient reason against the making of a court
order that it should be carried out.

Comment: The essence of this decision is that
it is for a local authority to raise a ‘defence’
against an order that it commit resources to a specified assessment
in a child’s interests. If it fails to establish to case
against such an order, then the court should make it. Here, the
failure of the authority to raise such a defence (failures which
were partly procedural) prevented it successfully objecting to the
order.

Confidentiality
Protecting scope of confidentiality

BFLS 3A[4646]
A Health Authority v X
[2001] 2 FLR 673,
FD, upheld by the Court of Appeal [2001] EWCA Civ 2014

In A Health Authority v X [2001] 2 FLR 673, FD, upheld
by the Court of Appeal [2001] EWCA Civ 2014 (unreported) the court
ordered that medical reports from a Children Act case and GP
records should be disclosed to the health authority in order to
enable it to carry out its statutory function to check whether
general medical practitioners had properly carried out their
contractual duties. There was a legitimate reason for intruding
into the privacy of the patients. The test of proportionality,
balancing these interests as necessary in a democratic society, was
made out provided that the health authority undertook to use the
documents solely for the purpose of the investigation and not for
any other purposes. The authority’s appeal against this
restriction on their use of the papers was rejected.

Comment: This case shows the further
elaboration of way in which Art 8 of the European Convention on
Human Rights is being used to refine judicial understanding of the
limits of confidentiality. The legitimacy of providing information
to enable statutory duties of investigation has been noted
previously in Re A [1998] 2 FLR 641 and the balancing of interests
in relation to media discussion is now a familiar exercise (see eg
Re M [1990] FCR 395, A v M [2000] 1 FCR 1). One
interesting feature of this new case is the court’s
insistence on limiting the health authority’s use of the
documents.

Human rights
Impact of Human Rights Act on right to die cases

BFLS 3A[903], 5A[4401]
R (on the application of Pretty) v DPP
[2002] 1
All ER 1, [2002] 1 FCR 1

In R (on the application of Pretty) v DPP [2002] 1 All
ER 1, [2002] 1 FCR 1, the House of Lords rejected the
applicant’s claim that she was entitled to an advance
assurance from the DPP that her husband would not be prosecuted if
he assisted her to die once she found the impact of her motor
neurone disease unbearable. She built her case on the impact of the
Human Rights Act 1998. The House of Lords held that it was not
possible to deduce a right to die from Art 2 of the European
Convention on Human Rights. Any positive obligations under Art 3
(freedom from inhuman and degrading treatment) were limited and not
in issue in this case because the degrading element of Mrs
Pretty’s situation came not from her treatment by the DPP but
from her illness. Their Lordships also suggested that the extent of
the State’s intervention to protect citizens from such
situations was substantially a matter for Member States rather than
dictated by the Convention. The House also considered the
implications of Art 8 of the Convention, and whether it could be
used to found a right of autonomy in relation to the manner of Mrs
Pretty’s death. Lords Bingham and Steyn rejected the
suggestion that Art 8 was engaged in this way. Lord Hope accepted
that Mrs Pretty was entitled to respect for a choice for death
rather than life. However, she was not entitled under Art 8 to a
positive obligation to assist her in carrying through this choice.
The remaining two law lords did not address the point.

Comment: This decision is principally about the
law governing the DPP’s power to give an assurance, in
advance of the event, that a person who subsequently assists
suicide will not be prosecuted. The House of Lords upheld the
established law that such a statement, necessarily made in the
absence of knowledge of the circumstances, would be inappropriate.
Technically, the decision leaves open the question whether the
Human Rights Act 1998 would constrain the DPP’s discretion to
prosecute if Mr Pretty carried through his wife’s wishes. If
and when that occurs, the argument that a prosecution would
improperly intrude into her right to choose the manner of her dying
might still be raised. However, the implication of the speeches
handed down by the House of Lords is that their lordships did not
believe that the ECHR dictated the approach that should be taken.
Rather this was a legitimate area for public debate and decision by
democratically elected legislatures.

Human reproduction
Scope of Human Fertilisation and Embryology Act 1990

R (Quintavelle) v Secretary of State for Health
(2002) 25 January, Times, CA

In R (Quintavelle) v Secretary of State for Health
(2002) 25 January, Times the Court of Appeal held that a human
embryo created by cell nuclear replacement was an
‘embryo’ within the scope of s 1 of the Human
Fertilisation and Embryology Act 1990. Use of such creations was
therefore regulated by the Human Fertilisation and Embryology
Authority.

Comment: The decision of the High Court was
reported at [2001] 4 All ER 1013. The Court of Appeal adopted a
purposive construction of the legislation to reflect the fact that
the intention of Parliament had been to outlaw human cloning and
that the terms of the Act should therefore be extended to cover a
new technology not envisaged at the time it was passed. This
decision probably renders unnecessary the passing of the Human
Reproductive Cloning Act 2001, which has now put the illegality of
implanting a human cloned embryo beyond doubt. However, as the Act
proscribes the implantation of an embryo created otherwise
than by way of fertilisation rather than its creation, it
leaves open the possibility that such embryos could be used for
research within the provisions of the 1990 Act.

Statutes

Human Reproductive Cloning Act 2001

This Act makes it a criminal offence punishable by up to ten
years’ imprisonment to place in a woman a human embryo
created otherwise than by way of fertilisation. It is in part a
response to the decision of the High Court reported at [2001] 4 All
ER 1013, now overturned by the Court of Appeal in R
(Quintavelle) v Secretary of State for Health (2002) 25
January, Times (see above). The Court of Appeal’s decision in
that case has brought embryos created by cell nuclear replacement
techniques (a form of cloning) within the scope of the regulatory
structure established by the Human Fertilisation and Embryology Act
1990. The new Act has a slightly different effect. It deals with
the placing of such embryos in a woman rather than their creation
or use in research. The impact of this is that the Human
Fertilisation and Embryology Authority will be unable to licence
the use of such embryos to establish pregnancy, even if it is
otherwise within the scope of its powers, because to do so would be
to purport to licence an illegal act. However, as the new Act does
not deal with research activities involving such embryos, they can
now be licensed following the Court of Appeal’s decision.

Practice direction

Deaths in the USA on 11 September 2001, [2002] 1 FCR 96, [2001]
2 FLR 1200, [2001] Fam Law 911

Issued by Gerald Angel, 10 October 2001

This Direction provides for grants of representation in respect
of deaths on 11 September 2001 in the attacks on the World Trade
Centre, the Pentagon and in Pennsylvania on the production of a
death certificate issued by the relevant US authorities. In the
absence of such a certificate, an application for leave to swear
death should be made to the Principal Registry of the Family
Division.

Statutory instruments

Child Abduction and Custody (Parties to Conventions)
(Amendment) Order 2001, SI 2001/3923

This Order amends the Child Abduction and Custody (Parties to
Conventions) Order 1986 in order to add Malta, Slovakia and Turkey
to the list of Contracting States to the Convention on the Civil
Aspects of International Child Abduction and to add the Czech
Republic and Turkey to the list of Contracting States to the
European Convention on Recognition and Enforcement of Decisions
concerning Custody of Children and on Restoration of Custody of
Children.

Civil Jurisdiction and Judgments (Authentic Instruments and
Court Settlements) Order 2001, SI 2001/3928

This Order is needed in consequence of the coming into force on
1 March 2002 of Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters. The Regulation applies
to all Member States except Denmark.

The Civil Jurisdiction and Judgments Order 2001, which, for the
most part, will also come into force on 1 March 2002, makes the
main legislative changes needed in respect of the Regulation. It
applies specified provisions of the Civil Jurisdiction and
Judgments Order 2001 to authentic instruments and court settlements
from other Member States bound by the Regulation, which by virtue
of Chapter IV of the Regulation are enforceable in the same manner
as judgments.

Authentic instruments usually take the form of agreements
containing obligations, which are drawn up by the parties before a
notary public. They exist in most European legal systems, as do
court settlements, which are settlements of legal proceedings
agreed by the parties and approved by the court, and which are
enforceable without having to be drawn up as judgments.

Paragraphs 1–6 and 8 of the Civil Jurisdiction and
Judgments Order 2001 are applied, with modifications, and s 48 of
the Civil Jurisdiction and Judgments Act 1982 is applied, to such
documents and settlements as if they were judgments to which the
Regulation applies.

Civil Jurisdiction and Judgments Order 2001, SI 2001/3929

This Order makes legislative changes needed in consequence of
the coming into force on 1 March 2002 of Council Regulation (EC) No
44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters. The
Regulation applies to all Member States except Denmark and to that
extent replaces the 1968 Brussels Convention on jurisdiction and
the enforcement of judgments in civil and commercial matters, to
which the United Kingdom became party by an Accession Convention
signed in 1978. The Conventions were given the force of law in the
United Kingdom by the Civil Jurisdiction and Judgments Act 1982, as
later amended by the Civil Jurisdiction and Judgments Act 1991 to
give the force of law also to the 1988 Lugano Convention on
jurisdiction and the enforcement of judgments in civil and
commercial matters, which made similar arrangements with a number
of non-Member States.

The Brussels Convention, in so far as it governs relationships
with Denmark, and the Lugano Convention, remain in place. The main
purpose of this Order is to amend the Act so as to preserve the
current position in respect of the Brussels Convention, so far as
it relates to Denmark, and the Lugano Convention, and to make new
but analogous provision in respect of the Regulation.

The Order amends certain provisions of the Act to apply for the
purposes of the Regulation in the same way that they apply for the
purposes of the Brussels and Lugano Conventions (Sch 2). It amends
the Act to clarify the relationship between the Regulation, the
Brussels Convention and the Lugano Convention (Sch 2, para 1(c)).
It also amends Sch 4 to the Act, which contains provisions for the
allocation of intra-UK jurisdiction which previously were modelled
on the Brussels Convention, broadly so as to bring those provisions
into line with the equivalent provisions of the Regulation; an
exception is jurisdiction in contractual matters, which continues
to be aligned on Art 5(1) of the Convention rather than Art 5(1) of
the Regulation (Sch 2, paras 3 and 4).

Social Security (Loss of Benefit) Regulations 2001, SI
2001/4022

These Regulations, which come into effect on 1 April 2001 are
made by virtue of, or in consequence of, ss 7–13 of the
Social Security Fraud Act 2001 and relate to restrictions in
payment of certain benefits which apply where a person has been
convicted of one or more benefit offences in each of two separate
proceedings and one offence is committed within three years of the
conviction for another such offence.

Social Security Contributions (Decisions and Appeals)
(Amendment) Regulations 2001, SI 2001/4023

These Regulations amend the Social Security Contributions
(Decisions and Appeals) Regulations 1999, with effect from 31
January 2002. They concern appeals against decisions in relation to
social security contributions and entitlements to statutory sick
pay and statutory maternity pay.

Civil Courts (Amendment) Order 2001, SI 2001/4025

This Order amends the Civil Courts Order 1983 so as to close the
county courts at Chepstow and Monmouth from 1 April 2002.

Recent articles in family and child law

Draft EC Regulation on Parental Responsibility His
Honour Judge Ian Karsten QC [2001] Fam Law 885

Ancillary relief—progress or decline? District
Judge Stephen M Gerlis [2001] Fam Law 891

We are family (after all)—inclusive family law
Alan Inglis [2001] Fam Law 895

Families in conflict—perspectives of children and
parents Ann Buchanan, Joan Hunt, Harriet Bretherton &
Victoria Bream [2001] Fam Law 900

The dilemmas of a panel solicitor who has no
children’s guardian Derek Winter [2001] Fam Law 904

Re B—disclosure after the Human Rights Act 1998
Sarah Phillimore [2001] Fam Law 905

SFLA news: SFLA good practice Philip Way [2001] Fam Law
909

The Adoption and Children Bill 2001 Richard White
(2001) 151 NLJ 1724

Domestic violence—times are a’changing
Nadine Tilbury (2001) 151 NLJ 1796