July 2002

BUTTERWORTHS FAMILY AND CHILD LAW BULLETIN

Bulletin No 60
Butterworths Family and Child Law
Bulletin   – July 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 on
Children.

Habitual
residence

Habitual
residence of baby born abroad

BFLS 2[107], 3[6317]

1

B v H (children) (habitual
residence)
[2002] 2 FCR 329, FD

In B v H (children) (habitual
residence) [2002] 2 FCR 329, FD Charles J considered the
habitual residence of children taken to Bangladesh by their
parents. The father had dual British and Bangladeshi nationality.
The mother was a Bangladeshi national with indefinite leave to
remain in England. The three eldest children were born in England
and had British passports. The youngest child was born in
Bangladesh. The mother contended that she had been compelled to
take the trip to Bangladesh and that the father had removed her and
the children’s passports so that they could not return to
England (although the father did on a number of occasions). She
also said that the parents’ relationship had been violent and
she obtained a divorce from the father in Bangladesh, after which
she returned to England. She commenced wardship proceedings, but
the court would only have jurisdiction if the children were
habitually residence in England and Wales. Charles J held that the
children were too young to form their own intentions on residence.
The essential issue in relation to the three older children was
thus whether they had lost their habitual residence in the UK, not
whether they had acquired a new habitual residence in Bangladesh.
The mother had always wished to return to England. It had not been
established that the father intended that the children should have
their home in Bangladesh as he had returned to England on a number
of occasions. Thus, it had not been shown that either parent had
changed habitual residence and the habitual residence of the older
children in England had therefore not been lost. The position of
the baby had to be analysed differently. The general rule was that
a baby would share the English habitual residence of her parents
even if born abroad. Charles J rejected the suggestion that
habitual residence could not be established without physical
presence. The dicta from Re
M [1993] 1 FCR 718 and Al Habtoor v Fotheringham
[2001] 1 FCR 385 which were said to support such a contention could
not be read in that way when placed in their proper context in the
judgments. Thus, the baby also was habitually resident in England
and Wales. Consequently, the court had jurisdiction in respect of
all four children. Charles J made the children wards of court and
awarded care and control of them to the mother, with recitals
adapted from the decision of Singer J in Re KR [1999] 2 FCR
337.

Comment: This
decision helpfully clarifies the position in respect of babies born
abroad. The principal analogy used by Charles J to illustrate the
validity of the position that he adopted was that of a baby born
unexpectedly while its parents were on a brief foreign holiday. He
found that such a baby would already be habitually resident in
England and Wales as that was clearly the intention of the parents.
His approach thus rejects the suggestion that physical presence by
the child is essential where the intentions of the parents are
clear. Further examination of the problem would have been necessary
had it been established that the father did not intend to return to
the UK. In those circumstances, the intentions of the parents would
have diverged and physical presence might have been a deciding
factor.

Public law
proceedings

Court could
direct residential assessment

BFLS 3
[3322.1]–[3322.6]

2

Re B (a child: interim care
order) [2002] EWCA Civ 25, [2002] 2 FCR 367

In Re B (a child: interim care
order) [2002] EWCA Civ 25, [2002] 2 FCR 367 the Court of
Appeal considered a case where the local authority wished to
intervene to protect a child at birth where six earlier children
had been previously removed from the parents’ care. An
interim care order was sought while the mother and baby were still
in hospital. The guardian ad litem and parents proposed that the
mother and baby should be accommodated in a hostel and family
assessment centre but the local authority did not agree. The judge
found that this precluded him from imposing a condition that such
an assessment be undertaken. The Court of Appeal found that the
residential assessment was one of a series designed to illuminate
the court’s ultimate conclusion and was consequently within
the scope of the power to issue directions under s 38(6) of the
Children Act 1989. The judge had therefore been wrong not to
consider the direction sought.

Comment: The power to
order assessments should be distinguished from the desire to impose
upon the local authority a plan of management designed to secure
rehabilitation when this is resisted. The Court of Appeal was
therefore concerned to ascertain whether the proposed placement was
an integral part of collecting the information required by the
court to dispose of the case or was instead intended to improve the
parenting skills of the parents. Having determined that it was for
the purpose of informing the court’s decision rather than
promoting an alternative care plan, then a direction requiring the
placement fell within the court’s powers. Thus, the line
between judicial management of the care proceedings and the
responsibility of the local authority to manage the child’s
care was not crossed.

Judge should
have reconsidered finding of fact after subsequent
confession

BFLS 3[4695.1]

3

Re M (children: determination of
responsibility for injuries)
[2002] EWCA Civ
499, [2002] 2 FCR 377

In Re M (children: determination
of responsibility for injuries) [2002] EWCA Civ 499, [2002] 2
FCR 377 the Court of Appeal overturned the refusal of the judge to
reopen a preliminary finding of fact. The principal issue of fact
in the care proceedings concerned the allocation of responsibility
for serious injuries to a child. This was tried in preliminary
proceedings in which the judge fixed liability more upon a third
party than the mother. Subsequently, the mother confessed that she
had been responsible. The admission was formalised into a statement
and the local authority applied for the judge to give the matter
further consideration. The judge refused. The Court of Appeal
accepted that it would not be appropriate to reopen preliminary
findings of fact merely because a witness had changed her
statement. However, the risk that such a finding might be
undermined by subsequent evidence needed to be managed. The
credibility of the mother’s revised account could only be
tested by cross-examination and this should take place at the
substantive hearing. To this extent, the judge’s decision was
overruled.

Comment: The Court of
Appeal sympathised with the judge’s rejection of the
application for a retrial of the preliminary issue. That went too
far. A more moderate application to reopen the contested issue at
the full hearing offered the opportunity to ensure that false
assumptions were not made without prolonging the proceedings or
undermining the value of preliminary investigations. The Court of
Appeal concluded that the new information was sufficient to require
reconsideration of the issue but not sufficient to lead to an
additional hearing. This compromise preserves the value of
preliminary proceedings on issues of fact, while managing the risk
that further evidence will come to light that needs consideration.
It should not be assumed from this decision that the same approach
would be taken for all cases where a key witness changes their
account, but consideration would be given to the need to reopening
issues.

Proper court
to hear human rights challenge

BFLS 3[3312.5]

4

C v Bury Metropolitan Borough
Council [2002] EWHC 1438 (Fam), (2002) Times, 25
July

In C v Bury Metropolitan Borough
Council [2002] EWHC 1438 (Fam), (2002) Times, 25 July, Dame
Elizabeth Butler-Sloss P held that although the local authority had
failed to involve the mother in the decision-making process in
respect of her child and to keep her informed, the outcome had not
had a detrimental effect on her case. The authority, in choosing
the placement, with the proposal to find suitable part-time foster
parents leading to the aspiration to place him in the future
permanently in a foster family, had acted appropriately. There was
no breach either of the rights of the child or of his mother under
the European Convention on Human Rights in the plans put forward.
She further held that human rights challenges to care plans should
be heard in the Family Division of the High Court and where
possible by judges with experience of sitting in the administrative
court.

Comment: The
President noted that the approach that should be taken to
challenges to care plans had become broader since the
implementation of the Human Rights Act 1998 (see Re W & B [2002] 1 FLR
815). This requires considerations beyond merely welfare questions,
but it does not necessarily supplant them. The suggestion that
cases should be heard in the Family Division indicates that
experience in family matters is seen as more important than
experience of administrative law, but that where judicial
experience in both is available then it should be used.

Local
authorities

Local
authority has power to offer accommodation under the Children Act
1989, s 17

BFLS 3[2262]

5

R (on the application of W) v
Lambeth LBC [2002] EWCA Civ 613, [2002] 2 FCR 289, [2002] 2
All ER 901

In R (on the application of W) v
Lambeth LBC [2002] EWCA Civ 613, [2002] 2 FCR 289, [2002] 2
All ER 901 the Court of Appeal held that the local authority had
the power under s 17 of the Children Act 1989 to accommodate a
family with dependent children where they would not be entitled to
accommodation under the housing legislation. However, the authority
had a discretion whether to exercise that power and in the present
case had given adequate and intelligible reasons for its decision
not to accommodate the family. There were, therefore, insufficient
grounds to interfere with its decision.

Comment: This
decision is an important step in restoring the flexibility in the
use of powers under s 17 that was removed by the finding in A v Lambeth Borough
Council [2001] 3 FCR 673 that they could not be used to
provide accommodation because that would be to circumvent the
housing legislation. In the latest decision, the Court of Appeal
reversed that aspect of its earlier decision, holding that
Parliament had not intended so rigid a demarcation of powers. This
does not oblige local authorities to accommodate all children in
need because s 17 provides a power rather than a duty. That aspect
of the decision in A v
Lambeth remains good law. However, the decisions that
accommodation of children is beyond the powers of authorities,
based on the earlier case, such as R (on the application of J) v
Enfield LBC [2002] 2 FLR 1 should now be regarded as
superseded by the new Court of Appeal decision.

Human
rights

Parents
should be represented in emotionally charged children’s
cases

BFLS 5[4162], [4303.1]

6

P, C & S v United
Kingdom (App No 56547/00), ECtHR

In P, C & S v United
Kingdom (App No 56547/00), ECtHR the mother of the child
concerned had previously been convicted in the USA of abusing a
child as a result of Munchausen Syndrome by Proxy. When she was
pregnant with a further child, of a new husband, and living in
England, social services investigated whether they should intervene
to protect the child. The parents were not cooperative with those
investigations and child protection proceedings were initiated at
birth. A care order was made at a hearing at which the mother
represented herself. The judge stated that he was satisfied that
the result would not have been different had she had legal
representation. He also examined the older issues for himself
rather than merely relying on the outcome of the US proceedings.
There were subsequent proceedings at which an order was made
freeing the child for adoption. Again, the mother was not
represented. She claimed that her rights under the European
Convention on Human Rights had been breached. The ECtHR found that
Art 6 (right to a fair hearing) was indeed breached. The complexity
of the case, along with the importance of what was at stake and the
highly emotive nature of the subject matter, meant that the
principles of effective access to court and fairness required that
the mother receive the assistance of a lawyer. Turning to the
applicants’ claims under Art 8, the court was satisfied that
the decision to apply for an emergency protection order was
justified within Art 8(2) of the Convention in order to protect the
rights and interests of the child. However, to remove the child at
birth, when there was no real possibility of the mother harming her
(as she was suffering from the effects of blood loss) was a
draconian step that was a breach of the Convention. In relation to
the care proceedings, Art 8 required that the parents be involved
in the proceedings and, for the same reasons as their Art 6 rights
had been breached, this aspect of their rights under Art 8 had also
been contravened.

Comment: The mother
had a current legal aid certificate at the relevant times, but her
representatives had been granted leave to withdraw in the face of
what they saw as unreasonable instructions given by the mother on
the conduct of the case. Consequently, this decision could be seen
as allowing the mother to benefit from her own unreasonableness. If
this is the case, then it may encourage parents to be uncooperative
in child protection proceedings. Also of importance is the finding
that the invocation of an emergency protection order during the
mother’s stay in hospital was a disproportionately harsh
intervention. Local authorities should therefore be careful when
determining when to implement child protection procedures to ensure
that the balancing of interests under the European Convention on
Human Rights is at the heart of all their decisions, not merely
incorporated into the case placed before the courts.

Transsexual
rights recognised in ECtHR

BFLS 1[1525], 5[4205],
4226]

7

Goodwin v United Kingdom
(App No 28957/95); I v
United Kingdom (App No 25690/94) (2002) 152 NLJ 1171,
ECtHR

In Goodwin v United Kingdom
(App No 28957/95); I v
United Kingdom (App No 25690/94) (2002) 152 NLJ 1171 the
European Court of Human Rights heard together two cases concerning
the rights of transsexuals. Goodwin had previously married as man,
with four children by that marriage. She subsequently underwent
gender reassignment surgery on NHS. She was then able to live in
her new female identity but was not given a new National Insurance
number and claimed that this had led to her revealing her old
identity to employers. She contended that this had resulted in
discrimination but that her legal claim had been refused as she was
still regarded as male. She also stated that she had foregone
applications for loan, a remortgage opportunity, and winter fuel
allowance, as these would have involved revealing her pre-surgical
identity through the requirement to produce her birth certificate.
Finally, in relation to the breaches identified, she said that she
had declined to report a theft to the police because of fear that
her identity would be revealed during investigations. In I’s
case, the applicant (a post-operative male to female transsexual)
had worked as a dental nurse in the army. She applied for a course
to qualify as an enrolled general nurse but was rejected when she
refused to provide her birth certificate. She was also asked to
provide her birth certificate when seeking a student loan and when
applying for an administrative post in a prison.

The ECtHR issued
separate judgments in the two cases, but they were identical on the
arguments of legal substance. The court argued that it was
illogical to fund surgery but not fully recognise the legal
implications. It accepted that the state of scientific knowledge of
transsexualism did not provide any determining argument on the
question of their proper legal status. It also accepted that there
was still no international consensus on how transsexuals should be
treated in law, but nevertheless saw a trend towards greater
recognition. There were, however, some English developments to
which attention was drawn. The court noted that plans to allow
amendments to civil registrations of birth indicated that the
historical purity of birth certificates as merely a document of
past record was now less important than it had been in 1986 when
Rees was decided. It
also noted the concerns expressed by the Court of Appeal in Bellinger v Bellinger
[2001] 3 FCR 1 and that there had been an interdepartmental working
party on possible reforms, although not public consultation on its
proposals.

Turning to the
Convention, the court stressed the interpretation of Art 8 as
providing a right to personal autonomy, citing Pretty v UK [2002] 2 FCR
97, whereby ‘protection is given to the personal sphere of
each individual, including the right to establish details of their
identity as individual human beings’. The court reasoned that
in the twenty first century the rights of transsexuals to establish
personal identities could not be regarded as a controversial matter
that required further time to shed light on the issues arising.
This enabled it to suggest that there was no further justification
for holding that the matter should remain under review. The court
found that the consequence was that the UK’s margin of
appreciation could now apply only to determining the appropriate
means of achieving recognition of transsexuals’ rights, not
to whether they should be recognised. There were no significant
factors of public interest to weigh against the interest of the
individual applicant in obtaining legal recognition of her gender
re-assignment and the fair balance that is inherent in the
Convention now tilted decisively in her favour. The UK had
therefore failed properly to respect the applicants’ rights
under Art 8.

On Art 12, the
court held that while there was a margin of appreciation on how
restrictions might be placed on the right to marry, such as
determining how transsexuals established that they had changed
gender, it was not permissible to bar transsexuals from marrying.
The earlier acceptance that the right to marry was met because
English law permitted transsexuals to marry in their pre-assigned
gender was rejected as offering no possibility of entering a
marriage. UK law therefore also failed properly to respect the
applicants’ rights under Art 12.

Comment: One of the
interesting features of these decisions is that the arguments used
to justify a significant departure from the previous decision of
the ECtHR were not really new. The suggestion that it is illogical
to permit surgery but then refuse to recognise its consequences
could have been made in any of the earlier cases. The assessment of
the state of scientific knowledge and the general international
legal picture indicates that nothing has really changed since the
ECtHR took a different view in Sheffield & Horsham v
UK [1998] 3 FCR 141. Yet the court was prepared to reverse its
previous acceptance of the traditional position of UK law on both
the right to marry and the alteration of birth certificates. The
first important practical impact of the decision will be on the
hearing of Bellinger v
Bellinger in the House of Lords, in which presumably the
dissenting judgment of Thorpe LJ can now be expected to
prevail.

Practice
Directions

Practice Direction: Judicial
Continuity in the Royal Courts of Justice [2002] 3 All ER
603

Issued by Dame
Elizabeth Butler-Sloss P on 22 March 2002

This Direction
sets out a procedure to ensure as much judicial continuity as
possible in cases in the Family Division of the High Court at the
Royal Courts of Justice in London. Separate paragraphs deal with
the procedure for applications within Part IV of the Children Act
1989 (care and supervision proceedings), urgent applications,
applications under Part II of the Children Act 1989 (private law
proceedings), and financial provision proceedings (ancillary relief
in matrimonial proceedings and applications for financial provision
under the Children Act 1989). A standard directions form, FDO2C, is
appended to assist the operation of the procedure.

District Judge’s
Direction: Long Vacation 2002 [2002] Fam Law 563, [2002] 1 FLR
1195

Issued by Gerald
Angel with the approval of the President, 25 April 2002

This Direction
describes business that will be taken at the Royal Courts of
Justice during the Long Vacation 2002 as being (1) injunctions, (2)
committals to, and release from, prison, (3) applications relating
to children with a time estimate not exceeding one day, (4) matters
certified by a district judge as fit for vacation business subject
to a time estimate not exceeding one day, (5) on the direction of a
High Court judge where the estimated length of hearing is in excess
of one day.

Statutes

Divorce
(Religious Marriages) Act 2002

This Act inserts a
new s 10A into the Matrimonial Causes Act 1973 enabling a court to
require the dissolution of a religious marriage before making
absolute a civil divorce if it believes that it is just and
reasonable to impose such a restriction. Initially, only Jewish
marriages are brought within the scope of the section, but other
religions may subsequently be prescribed by regulations. The Act is
to be brought into force by statutory instrument on a day to be
appointed.

Statutory
Instruments

Jobseeker’s Allowance (Joint Claims) Amendment
Regulations 2002, SI 2002/1701

These Regulations,
which will come into force on 28 October 2002, amend the
Jobseeker’s Allowance Regulations 1996 by prescribing that a
joint-claim couple shall include those childless couples where at
least one member was born after 28 October 1957. They also allow
one member of such a couple to continue to claim a
jobseeker’s allowance where that member was entitled to that
allowance on 27 October 2002, but only until the member of the
couple who is not entitled to an allowance on that day is notified
that he or she is required to attend at a time and place specified
by an employment officer.

Community
Legal Service (Financial) (Amendment No 2) Regulations 2002, SI
2002/1766

These Regulations,
which came into force on 5 August 2002, amend the provisions
relating to the gross income cap in the Community Legal Service
(Financial) Regulations 2000. They increase the gross income limit
beyond which an individual is not eligible for services funded by
the Legal Services Commission as part of the Community Legal
Service. They also provide for deductions of benefits to be made in
assessing gross income. In addition they provide for the limit to
be increased for individuals who have more than four dependant
children.

Child
Support (Temporary Compensation Payment Scheme) (Modification and
Amendment) Regulations 2002, SI 2002/1854

These Regulations,
which came into force on 17 July, provide for modifications and
amendments in relation to the temporary compensation payment scheme
under s 27 of the Child Support, Pensions and Social Security Act
2000. The scheme makes provision for certain cases where there has
been a delay in the making of a maintenance assessment under the
Child Support Act 1991 leading to arrears of child support
maintenance.

Child
Support Appeals (Jurisdiction of Courts) Order 2002, SI
2002/1915

This Order, which
came into force on 21 July 2002, revokes and replaces (as regards
England and Wales) the Child Support Appeals (Jurisdiction of
Courts) Order 1993), which provides for child support appeals to be
made to a court instead of to an appeal tribunal where the issue in
the appeal is parentage of the qualifying child in relation to whom
an application for child support maintenance has been made under
the Child Support Act 1991.

The amendments are
consequential on the replacement, by virtue of s 10 of the Child
Support, Pensions and Social Security Act 2000, of s 20 of the
Child Support Act 1991, which deals with child support appeals.
This Order also makes provision for the application (with
modifications) of regs 31 and 32 of the Social Security and Child
Support (Decision and Appeals) Regulations 1999 in relation