June 2002

BUTTERWORTHS FAMILY AND CHILD LAW BULLETIN

Bulletin No 59
Butterworths Family and Child Law Bulletin – June 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.

Public law proceedings
Importance of giving clear instructions to experts

BFLS 3[4627]
Re R (care: disclosure: nature of proceedings)
[2002] 1 FLR 755, FD

In Re R (care: disclosure: nature of proceedings)
[2002] 1 FLR 755, FD Charles J considered a case in which, with
hindsight, a series of mistakes had been made in preparation. The
local authority came to realise that it could not prove that sexual
abuse had occurred and withdrew that aspect of its case to
concentrate on issues of neglect. Charles J held that once the
local authority had withdrawn the allegations of sexual abuse, any
disposition of the case, any care plan, and any management of the
children’s care had to proceed on the basis of a new mindset
in which no concerns of sexual abuse existed. If the local
authority wished to manage the case on the basis that it suspected
that there had been such abuse, then it would need to come to court
and offer proof of those suspicions.

Comment: The judgment contains a detailed
analysis of points at which the collation of evidence could have
been improved. It particularly draws attention to the importance of
properly instructing experts and being precise about what is
expected of them. Charles J offered a helpful explanation of the
sense in which Children Act proceedings were only partly
adversarial. He noted that in respect of the initial stages where
the existence of the threshold criteria had to be proved, then
proceedings were substantially adversarial in nature. This explains
the approach to evidence of abuse taken in Re H & R [1996] 1
All ER 1 where the House of Lords affirmed the application of the
burden of proof. At the second stage of the proceedings, once the
threshold is crossed, when the task of the court is to ascertain
which outcome would most benefit the child, proceedings are
essentially non-adversarial or inquisitorial in nature. He
suggested that it would be helpful for instructions to experts to
indicate on which issues the non-adversarial approach would be
appropriate. It would also be helpful for local authorities to
identify as early as possible the allegations that they are seeking
to prove in order to establish the threshold criteria, and to
separate them from their general statements as to the welfare of
the child.

Confidentiality and privacy

BFLS 3[4662]
Re M (disclosure: police investigation)
[2002] 1
FCR 655, FD

In Re M (disclosure: police investigation) [2002] 1 FCR
655, FD the Metropolitan Police Commissioner sought disclosure of a
letter from a child’s mother, produced in the course of child
protection investigations, in which she admitted harming her son.
Such information was protected from disclosure without permission
from the court. Elizabeth Lawson QC, sitting as a High Court Judge,
found that the child would suffer harm from the release of the
letter. There was a time-limited opportunity for the child to be
rehabilitated with his family and intensive psychiatric, parenting
and social assessment was underway. In those circumstances, it was
not in the boy’s interests for the parents to be distracted
by the stress of worry about potential criminal proceedings.
Criminal proceedings were not necessary to protect him because this
had already been achieved under the Children Act 1989. There was no
suggestion that any other children were at risk, reducing the need
for a prosecution. In these circumstances, the balance was tipped
against disclosure.

Comment: This decision demonstrates that a
careful working through of the factors considered relevant in Re EC
[1996] 3 FCR 521 will not inexorably lead to protected information
being disclosed to the police. Elizabeth Lawson QC noted that her
approach to the case was coloured by her experience that the trend
towards disclosure has in practice discouraged parents from being
frank in child protection cases, contrary to the intention of
Parliament in enacting s 98 of the 1989 Act. Thus, parents who make
admissions find themselves being prosecuted and those who deny
responsibility do not. This encourages parents to keep silent,
leading to delays in the child’s position being resolved. She
also commented on a possible misunderstanding of Re L; Re
V [1999] 1 FCR 308. The observation in that case that
disclosure was likely to be made to the police unless there were
powerful reasons to the contrary did not imply that it was for the
person resisting disclosure to justify their position (thus placing
the onus of proof on them). Instead it was merely a statement about
the most likely outcome of the balancing of the various relevant
factors in the exercise of judicial discretion.

Disclosure to parties question of balance of interests
under ECHR

BFLS 3[4642]
Re B (disclosure to other parties)
[2002] 2 FCR
32, FD

In Re B (disclosure to other parties) [2002] 2 FCR 32,
FD Munby J considered the impact of the Human Rights Act 1998 on
disclosure of documents to parties in child protection cases. He
noted that while the right to a fair trial under Article 6 of the
European Convention on Human Rights was absolute, the component
principles of what was meant by a fair trial needed to reflect the
circumstances. Consequently, there was no absolute right of the
father of the children in question to see the documents. Where
non-disclosure was necessary to protect the rights of the children
and the mother under Article 8 of the Convention then it did not
constitute a breach of Article 6. Thus, the father had a prima
facie right to see the documents in question but it could be
limited in the interests of the other parties where the balance of
interests showed that it was strictly necessary to do so. The court
should be rigorous in its assessment of the gravity of feared harm
to others. Counsel for the mother then sought to limit the material
to which disclosure should be permitted by reference to the
particular application (for contact to only one of the children of
the family) that the father was making. Munby J was not persuaded
that this approach led to the conclusion suggested. Participation
in the proceedings, which were dealing with a range of issues
beyond those of the contact application, would not be possible
without access to the documents being used by the other parties. In
his view, the only materials that should be withheld were police
evidence building on interviews with two other children (not of the
applicant), psychiatric and therapeutic evidence on medical work
with the mother and her husband, and the parts of a
psychologist’s report relating to the other children in the
case. In relation to these materials, the privacy interests of
those concerned outweighed the father’s need to know.

Comment: While this case concerns a helpful and
detailed consideration of the relevant authorities, the main
observation that Munby J had to make about the impact of the Human
Rights Act 1998 was that the decision of the House of Lords in
Re D [1996] 1 FCR 205 remained a reliable guide. Although
it predated the implementation of the Act, it had been taken with
regard to the relevant Convention rights.

Evidence
Improper to rely on untested allegations of past abuse

BFLS 3[4685]
Re D (sexual abuse allegations: evidence of adult
victim)
[2002] 1 FLR 723, FD

In Re D (sexual abuse allegations: evidence of adult
victim) [2002] 1 FLR 723, FD magistrates were criticised for
concluding that a grandparent was unsuitable as a carer because of
allegations of sexual abuse made by a former foster child some 16
years previously and reiterated shortly before the later civil case
(in which the former foster child had no involvement). The court
had not received direct evidence from the young woman. It had
failed to have regard to the need to establish the facts with
appropriate certainty in relation to serious allegations (Re
H& R [1996] 1 All ER 1). It should not have accepted the
allegations as based on fact without them being tested in
evidence.

Comment: In addition to criticising the failure
of the court, and in particular the justices’ clerk, to
properly address the principles of evidence, the President,
Elizabeth Butler-Sloss, considered whether there were circumstances
in which allegations could be taken into account other than through
direct evidence to the court. She noted that the protection given
to children from giving evidence in care proceedings (and instead
using video or audio interviews) did not usually extend to adults.
Even in the rare occasions where such a vulnerable adult might not
be expected to give evidence personally, it was wholly
inappropriate to accept a social worker’s account of an
interview without the benefit of a careful transcript of the
conversation.

Medical treatment

BFLS 3[877.1]
Re B (adult: refusal of treatment) [2002] 2 FCR 1,
[2002] 2 All ER 449, FD

In Re B (adult: refusal of treatment) [2002] 2 FCR 1,
[2002] 2 All ER 449, FD the President upheld a woman’s right
to refuse life sustaining treatment. She found that the only legal
issue was her understanding of the decision. She was satisfied that
the woman appreciated the decision that she was making. She
rejected the suggestion that until the woman had tried
rehabilitation she would not be competent to assess whether the
quality of life that it secured for her was acceptable. She
reiterated the fundamental principles to be used in such cases,
building on the guidance from St George’s Healthcare
Trust v S [1998] 2 FCR 685. (i) There is a presumption that
the patient has competence. (ii) Where mental capacity is not in
issue and the patient refuses treatment, questions of best
interests are irrelevant. (iii) Any doubts about capacity should be
resolved as soon as possible. (iv) While these doubts are being
resolved the care must be given in accordance with the
doctors’ views as to the patient’s best interests. (v)
Those considering capacity should not confuse the question with
that of the nature of the decision actually made, which may reflect
a difference in values rather than an absence of competence.
Doctors’ emotional reaction to or disagreement with a
decision should not cloud their judgement on capacity. (vi) Where
disagreements about competence remain, the patient should be kept
informed about steps being taken and be part of the process,
including the assistance of expertise external to the hospital.
(vii) Where the hospital is faced with a dilemma that the doctors
do not know how to resolve, this must be recognised and further
steps taken as a matter of priority. (viii) If there is no
disagreement about capacity, but the doctors are for any reason
unable to carry out the wishes of the patient, then their duty is
to find other doctors who will do so. (ix) If steps to seek
independent assistance from outside the hospital failed, the NHS
Trust should not hesitate to make an application to the High Court
or seek the advice of the Official Solicitor. (x) Clinicians and
hospitals should bear in mind that a competent but seriously
disabled patient has the same rights to personal autonomy as any
other patient.

Comment: This case reiterates the rights of
people who understand the choices they are being asked to make
about their health care to refuse treatment, even where the health
professionals believe that they should accept it. Butler-Sloss P
indicated a degree of frustration with the doctors’
reluctance to respect the fact that the woman in their care had
reached a decision. They suggested that she was not truly competent
because she had not experienced all the rehabilitation options that
they could offer her, despite the fact that it was clear that there
was little or no prospect of her physical capabilities increasing.
One of the interesting things about the case is that the court did
not seek to force the individual doctors to comply with the
woman’s wishes personally, but required the Trust to make
alternative arrangements for the transfer of her care to doctors
who were prepared to respect her wishes. This retains a degree of
respect for clinical freedom, but not at the expense of the rights
of patients.

Procedure
Judge wrong to depart from terms agreed for directions

BFLS 3[5596]
Re M (judge’s discretion) [2002] 1 FLR 730,
CA

In Re M (judge’s discretion) [2002] 1 FLR 730 the
Court of Appeal overturned an interim residence order made at a
directions hearing. The couple in whose favour the residence order
was made had not requested it. The application had been for
directions in agreed terms, including for a psychological
assessment, but only one of those terms had been included in the
order made. The Court of Appeal held that the judge had erred in
rejecting the guardian’s views without explanation,
dismissing issues that were clearly triable (such as the
mother’s possible explanation of the impact of her heroin
problems). The residence order had wrongly been made subject to
conditions, but it was not permissible to impose such conditions on
a person who did not come within the Children Act, s 11(7)(b).

Comment: Where the parties are not expecting
matters to be contested because the request for directions is in
agreed terms, then they may well not attend the hearing or pay for
legal representation. This was the situation in this case and it
exacerbated the difficulties of reaching a defensible conclusion
given the unexpected turn of events.

Financial provision
Clear evidence needed to justify reopening consent order for
non-disclosure

BFLS 4[1077]
P v P (consent order: appeal out of time)
[2002] 1 FLR 743, FD

In P v P (consent order: appeal out of time) [2002] 1
FLR 743, FD Bennett J refused to allow a wife to reopen a consent
order. On the facts, the balance fell firmly on the side of
finality of litigation. The wife’s evidence of undisclosed
assets was entirely circumstantial, based on the rapidity of the
husband’s success in his new business. There was also
insufficient explanation of her delay in seeking to reopen the
order for five years.

Comment: Bennett J noted that Lord Brandon had
suggested in Barder v Barder [1987] 2 All ER 440 that
conclusive proof that the basis of a consent order was erroneous
would be needed to justify reopening it. Here the case was based on
the wife’s inferences from the husband’s prosperity,
not on hard evidence. Her position was further weakened by the fact
that she had never required the husband to submit an affidavit of
means. Together, this meant that her claim was speculative and did
not meet the hurdle established by the House of Lords in
Barder.

Taxation
Working families tax credit

From 4 June 2002 the basic working families’ tax credit is
increased by £2.50 from £60.00 to £62.50.

Human rights
Human right to establish identity through DNA tests

BFLS 7[4206]
Mikulic v Croatia [2002] 1 FCR 720,
ECtHR

In Mikulic v Croatia [2002] 1 FCR 720 the European
Court of Human Rights held that the right to respect for private
life under Article 8 of the European Convention on Human Rights
included a right to establish identity through paternity testing
(building on Gaskin v UK (1989) 12 EHRR 36). The Croatian
system had failed to respect this aspect of the applicant’s
human rights because it failed to include any procedural measure to
compel the supposed father to undergo DNA testing. This failed to
strike a fair balance between his right not to undergo tests and
the applicant’s right to establish her identity.

Comment: Under Croatian law there was no other
mechanism to establish paternity than the DNA test and the failure
to enable the applicant to pursue that mechanism, because an order
for such a test was ignored by the supposed father, was in breach
of the Convention. This was found by the ECtHR to be the case,
despite the fact that Croatian law permitted the court to draw the
inference from the man’s avoidance of the test that he was
indeed the father. Given this last feature, this decision may have
considerable implications for the UK law, as it implies that there
must be provision for compulsory testing except where the balance
is tipped against the child’s right to know their identity by
the particular facts of the case. There are also implications for
the claims of those who are born after assisted conception to know
the identity of the sperm or egg donors. This is currently
prevented by the Human Fertilisation and Embryology Act 1990, but
is under reconsideration and may need to be changed to reflect
Article 8 rights.

Statutory Instruments
National Care Standards Commission (Children’s Rights
Director) Regulations 2002, SI 2002/1250

These Regulations are made under the Care Standards Act 2000,
Sch 1, para 10(2) and prescribe the functions of the
children’s rights director who is to be appointed by, and to
be a member of the staff of, the National Care Standards
Commission. The children’s rights director will have
functions in relation to the interests of children within
institutions regulated under the Care Standards Act 2000. The
regulations came into force on 24 May 2002 and apply to England
only.

Social Security (Attendance Allowance and Disability
Living Allowance) (Amendment) (No 2) Regulations 2002, SI
2002/1406

These Regulations, which came into force on 1 July 2002, amend
the Social Security (Attendance Allowance) Regulations 1991 and the
Social Security (Disability Living Allowance) Regulations 1991.They
provide that the cost of the accommodation for the purposes of regs
7 and 8(6) of the Attendance Allowance Regulations and regs 9 and
10(8) of the Disability Living Allowance Regulations does not
include the cost of nursing care provided by (or the provision of
which is secured by) a local authority for which the local
authority are not to charge by virtue of s 1 of the Community Care
and Health (Scotland) Act 2002.

Income Support (General) and Jobseeker’s Allowance
Amendment Regulations 2002, SI 2002/1411

These Regulations, which came into force on 17 June 2002, amend
the Income Support (General) Regulations 1987 and the
Jobseeker’s Allowance Regulations 1996 so as to amend the
definition of ‘self-employment route’ to include
assistance in pursuing self-employed earner’s employment
whilst participating in the New Deal for Lone Parents. This brings
the calculation of income of such participants within the scope of
the special rules contained in Chapter IVA of Part V of the 1987
Regulations and in Chapter IVA of Part VIII of the 1996
Regulations.

Tax Credit (New Category of Child Care Provider)
Regulations 2002, SI 2002/1417

These Regulations, which came into force on 20 June 2002, make a
scheme for establishing a new category of persons whose charges for
providing child care outside the United Kingdom are to be taken
into account for the purposes of determining working
families’ tax credit or disabled person’s tax credit.
The persons whose charges can be taken into account for these
purposes must be approved by an organisation that has been
accredited by the Secretary of State. The Regulations set out the
requirements for such accreditation.

Protection of Children Act 1999 (Commencement No 3)
Order 2002, SI 2002/1436

This Order is the third commencement order made under the
Protection of Children Act 1999. It brought into force on 12 March
2002 s 8 of the Act. Section 8 amends ss 113 and 115 of the Police
Act 1997, which relate to criminal record certificates that may be
issued under that Act.

Recent articles on family and child law

Local authorities and child protection—the mosaic of
accountability Rebecca Bailey Harris & Michael Harris
(2002) 14 CFLQ 117
Special educational needs—the role of the courts
Neville Harris (2002) 14 CFLQ 137
Do divorced women catch up in pension building? Jay Ginn
& Deborah Price (2002) 14 CFLQ 157
The 1996 Hague Convention on the protection of children—a
fresh appraisal Nigel Lowe (2002) 14 CFLQ 191
D v D: equality, fairness, risk and the distribution of share
options on divorce David S Rosettenstein (2002) 14 CFLQ
207
R (on the application of Mellor) v Secretary of State for the
Home Department: prisoners and artificial insemination—have
the courts got it right? John Williams (2002) 14 CFLQ
217
Care orders, local authorities and the courts Sarah
Forster, Nicholas Khan & Ian Peddie QC 614
Child law update Richard White (2002) 152 NLJ 705
Divorce law update Kerry Fretwell & Christine Gentry
(2002) 152 NLJ 790
Pension sharing on divorce Bernard Brindley (2002) 152
NLJ