September 2002

BUTTERWORTHS FAMILY AND CHILD LAW BULLETIN

Bulletin No 61
Butterworths Family and Child Law Bulletin – September 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.

Jurisdiction
Proceedings not concluded for purposes of Brussels II until appeal
process is completed

BFLS 2[74]

1

A  v L (Jurisdiction: Brussels
II) [2002] 1 FLR 1042, FD

In A v L (Jurisdiction: Brussels
II) [2002] 1 FLR 1042, FD, His Honour Judge Garner considered
a case where an appeal was pending in Spanish proceedings in a
dispute over contact with a child. He found that in these
circumstances, the Spanish proceedings had not concluded. It
followed that the English courts had no jurisdiction under the
Brussels Convention on Jurisdiction and the Recognition and
Enforcement of Judgments in Matrimonial Matters 1998 (Brussels II)
to consider an application by the mother for variation of the
contact arrangements.

Comment: Under
Brussels II, earlier proceedings prevail. Had the Spanish
proceedings been completed then there would have been jurisdiction
to commence new English proceedings. However, while the Spanish
courts were still seized of the case, then Spain was the
appropriate place for the contact dispute to be litigated.

Paternity

BFLS 3[391]

2

Re H & A (children)
[2002] EWCA Civ 383, [2002] 2 FCR 469, [2002] 1 FLR
1145

In Re H & A (children)
[2002] EWCA Civ 383, [2002] 2 FCR 469, [2002] 1 FLR 1145 the trial
judge had refused to permit blood tests to be taken to establish
whether the father of twins was the mother’s husband or a man
with whom she had an extra-marital relationship. His refusal had
been mainly based on his finding that the husband would not be able
to cope with the fact that he was not the children’s father,
if that were the finding, and that this (unlikely as he saw it)
possibility would rob them of their principal carer. The Court of
Appeal allowed the putative father’s appeal against this
refusal. There were a number of flaws in the judge’s
balancing of the relevant factors. He had taken the view that
without a paternity test the controversy would remain secret. The
Court of Appeal saw this as unlikely in view of the large number of
people who knew of the extra-marital relationship. Further, the
judge’s assessment that the probability of the husband not
being the father was low was not supportable on the facts. Finally,
too great a weight had been placed on the finding that the husband
would be driven from the family. The likely reaction of the husband
was uncertain and the significance of the risk that he might reject
the situation was coloured by an over-optimistic assessment of the
robustness of the marriage without additional pressure. The Court
of Appeal also took the view that insufficient weight was given to
the importance of certainty. With scientific advances, this was an
even more important factor that it was when it was stressed by the
House of Lords in S v McC,
W v W [1970] 3 All ER 107. The appeal was allowed and the
matter remitted for retrial with arrangements being made for
separate representation for the children.

Comment: There is a
fine line between reviewing the application of legal principle made
by a trial judge and reopening assessments of fact. In many ways
this judgment reads like the latter, supposedly not the function of
the appeal court. The main criticisms were of the weight given to
factors and the interpretation of evidence, usually a matter left
to the judge who saw the witnesses. However, this is an important
decision on how the courts will approach the discretion to order
blood tests despite the refusal of the person with care of the
child, which exists under s 21 of the Family Law Act 1969, as
amended by the Child Support (Pensions and Social Security) Act
2000, with effect from 1 April 2001. That provision allows the
court to permit a test in the best interests of the child even
against parental opposition.The approach taken by the judge placed
considerable weight on the parents’ reaction in assessing
where the interests of the child lie. This would mean that the
change in the law was of limited significance. The Court of Appeal
has emphasised the importance of establishing the truth as a factor
that will most commonly prevail over other considerations. It seems
likely that this will guide future courts in the exercise of
discretion to order paternity tests.

Disclosure

Disclosure
of history of abuse with safeguards

BFLS 3[4646]

3

Re C (sexual abuse: disclosure
to landlords) [2002] 2 FCR 385, FD

In Re C (sexual abuse: disclosure
to landlords) [2002] 2 FCR 385, FD Bodey J authorised the
disclosure to social landlords of information from child protection
proceedings indicating that a man had been found to be a serial
sexual abuser of children. Although there had been no criminal
proceedings, a finding had been made in care proceedings that the
allegations against the man should be believed. The chief constable
and director of social services sought permission to disclose the
findings to the housing association that was the landlord of the
man and his partner, and to any subsequent housing association
should the couple move house. Bodey J adopted the analysis of key
questions from R v A Local
Authority in the Midlands, ex p LM [2000] 1 FCR 736:

—  first, the extent of the
authorities’ belief in the truth of the allegations. This was
high given the judicial findings, albeit that they were not in
criminal proceedings;

—  second, the interests of the
third party to whom the information was to be disclosed in
receiving it. This was less high than where there was a statutory
duty of child protection, but the housing association did have an
interest in enabling its officers to take prudent decisions about
housing families with children in close proximity to the man in
question;

—  third, the degree of risk posed
if disclosure was not made. Here Bodey J found that the risks were
high. It was arguably better to give the housing association
accurate information than to leave them to respond to concerns that
had been expressed by other residents.

The judge accepted
that this was an exceptional case in which disclosure should be
permitted. He allowed disclosure to a named individual in the
housing association currently involved, with a record being kept of
the authorisation with the police. If another person took over
responsibility, their name should be lodged on the court file by
the police. This would bring home the sensitivity of the
information. He also agreed wording for the notice to be given,
which specified the purpose for which the information was being
shared and that further disclosure might lead to civil action.
Bodey J refused, however, to authorise in advance disclosure to
other housing associations. That would need to be considered in
relation to the circumstances that arose.

Comment: This case is
one of a series, reviewed in the judgment, where disclosure of
information about paedophiles has been authorised. They raise
difficult considerations about the balance of private and public
interests. The most interesting part of this report is perhaps the
careful steps taken by Bodey J in agreeing the drafting of the
order to ensure that disclosure was limited to the information and
circumstances that he had agreed. These provide a helpful model for
future such cases. He also considered the relevance of Article 8 of
the European Convention on Human Rights, but found that the tests
he had applied were substantially the same as those required under
the Convention and that it added nothing to address them
separately.

Adoption

Proper
recognition of complexity of child’s origins

BFLS 3[4171]

4

Re C (Adoption: Religious
Observance) [2002] 1 FLR 1119, FD & QBD

In Re C (Adoption: Religious
Observance) [2002] 1 FLR 1119, FD & QBD, Wilson J rejected
a challenge by way of judicial review proceedings brought by the
guardian ad litem to a local authority’s decision to place a
child with Jewish prospective adopters. The child was of mixed
background: Jewish, Irish Roman Catholic and Turkish-Cypriot
Muslim. The proposed placement was with a couple with a strong
Jewish identity but low religious observance, who had wide ranging
contact with other groups including Roman Catholic and Turkish
friends. The guardian ad litem objected to this placement, arguing
that the couple were too Jewish and would not properly serve the
interests of the child in understanding her origins. She sought
judicial review of the care plan arguing that it was irrational and
failed to take into account the child’s ethnic background or
the wishes of her mother, who had previously indicated that she did
not want the girl brought up in a religious household (although by
the time of the hearing she was happy with the placement). Wilson J
found that the panel had been right to consider the parental wishes
in context, noting that their concerns about the placement had been
half-hearted and inconsistent and giving them less weight than
would have been appropriate if they had been more vehemently
expressed. He also found that the guardian was wrong to suggest
that the panel had ignored the complexity of the child’s
family origins and merely labelled her as Jewish. This was not the
case. Finally, Wilson J observed that the judicial procedure was
not appropriate for a challenge where the essence of the issue was
the welfare of the child not the lawfulness of an administrative
decision. With the benefit of hindsight it could be seen that the
consequence of the application had been to delay decisions about
the child’s placement for six months.

Comment: Wilson
J’s approach suggests that the most helpful procedure for
raising concerns about the proposed placement is to challenge the
care plan within care proceedings. Where the court is not prepared
to sanction the proposed care plan, but the local authority
declines to amend it, then judicial review might be appropriate
(see Re S & D
(Children: Powers of Court) [1995] 2 FLR 456 and Nottingham CC v P [1994]
Fam 18). Unless that rare circumstance arose, then he saw no reason
why the issues could not be fully canvassed in the family
proceedings courts.

Surrogate
motherhood

Scope of
reasonable expenses—retrospective authorisation of
payment

BFLS 3[337]

5

Re C; Application by Mr &
Mrs X under s 30 of the Human Fertilisation and Embryology Act
1990 [2002] EWHC (Fam) 236, [2002] 1 FLR 909, FD

In Re C; Application by Mr &
Mrs X under s 30 of the Human Fertilisation and Embryology Act
1990 [2002] EWHC (Fam) 236, [2002] 1 FLR 909 Wall J considered
two issues relating to the payment of money to a surrogate mother.
The first was whether the sum of £12,000 could be regarded as
reflecting only reasonable expenses. This was a matter of fact, and
the surrogate mother had been unable to provide a breakdown of
expenses. In the circumstances, the sum did not reflect expenditure
or loss of earnings and so was not properly regarded as
constituting reasonable expenses under s 30(7) of the 1990 Act.
Unless the payment was ‘authorised by the court’ there
would be no jurisdiction to make a parental order in favour of the
genetic father of the child and his wife. The second question then
arose, whether the court had the power to authorise payment
retrospectively. Wall J accepted that the policy behind the
prohibition on payments beyond expenses under s 30 of the 1990 Act
was the same as the equivalent prohibition in s 57 of the Adoption
Act 1976. It had been held that there was a power to authorise
payments retrospectively in relation to adoption after surrogacy
(see Adoption Application
AA212/86 (Adoption: Payment) [1987] 2 All ER 826). Wall J held
that the same discretion was available in relation to s 30. A
number of factors led him to exercise his discretion in favour of
authorising the payments so that the parental order could be made.
The sum paid was not disproportionate to the £10,000 that the
commissioning parents had been advised was a likely level of
expenses (and which had been seen as reasonable in Adoption Application AA212/86
(Adoption: Payment). Had the surrogate mother been in
employment (as in the earlier case) the sum would quite probably
have been reasonable. The commissioning parents were not aware that
the surrogate mother was unemployed and claiming income support
until after the pregnancy was established, by which time it was too
late for them to withdraw. They were therefore innocent of any
intention to pay a fee rather than expenses. The surrogate
mother’s fraud against the Department of Social Security was
not encouraged, aided or abetted by the commissioning parents in
any way and was not their responsibility. Finally, the child was
much loved and cherished by the commissioning couple and it was
clearly in her interests that she be treated as their child.

Comment: On the face
of it this decision, like the earlier decisions on the
interpretation of the Adoption Act 1976, undermines the attempt to
outlaw commercial surrogacy arrangements by neutralising the
prohibitions on money changing hands. However, there are a number
of features of the case that suggest that this would be an unfair
criticism. First, the Surrogacy Arrangement Act 1985 itself
incorporates the policy that penalties should not be suffered by
the children or those looking after them by exempting the surrogate
mother and commissioning parents from the offences that it creates.
Second, Wall J stressed the innocence of the commissioning parents.
In cases where the parents are aware that the money they pay cannot
be accounted for as expenses, then the result might well have been
different. Nevertheless, it remains the fact that where a surrogacy
arrangement has proceeded as planned and a strong bond has been
formed between the commissioning parents and the child, the
latter’s interests will almost always point to the granting
of a parental order. It will be rare for the intrusion of money to
deflect the court from making an order regularising the
child’s position in their new family.

Appropriate
jurisdiction to consider parentage of surrogate
children

BFLS 2[107], 3[6317]

6

W & B v H (Child Abduction:
Surrogacy) [2002] 1 FLR 1008, FD; W & W v H (Child Abduction:
Surrogacy) No 2 [2002] 2 FLR 252, FD

In W & B v H (Child Abduction:
Surrogacy) [2002] 1 FLR 1008, FD; W & W v H (Child Abduction:
Surrogacy) No 2 [2002] 2 FLR 252, FD a woman had agreed to
carry a child on behalf of the applicants created from an
anonymously donated egg and the male applicant’s sperm. The
agreement was lawful and enforceable in California where it was
made. It was reinforced by a court order made by a Californian
court, on an application by H, that the surrogate mother (H) had no
parental status and the commissioning parents (W and B) were the
legal parents. The surrogate mother lived in England. She was found
to be pregnant with twins, declined to return to California to give
birth as intended and decided she wished to keep the children.
Under English law, she was the only person with parental
responsibility (Human Fertilisation and Embryology Act 1990, s 27).
W and B brought proceedings under the Hague Convention on the Civil
Aspects of Child Abduction 1980 and these were the subject of the
first hearing. Hedley J found that they did have rights of custody
under Californian law within the meaning of the Convention, as that
law permitted the establishment of paternity by the court prior to
birth. However, they could only rely on the Convention if the twins
were habitually resident in California immediately prior to
wrongful retention by H. They had never been physically present in
California and Hedley J held that they could not establish habitual
residence there. He accepted that there might be circumstances such
as those in B v H (Habitual
Residence: Wardship) [2002] 1 FLR 388 where habitual residence
could be established without physical presence. However, this case
was very different and he could not hold that habitual residence
had been established. Consequently, no order could be made under
the Child Abduction and Custody Act 1985. The matter then fell to
resolved under the inherent jurisdiction and the decision on this
point is reported at W
& W v H (Child Abduction: Surrogacy) No 2 [2002] 2 FLR
252, FD. Hedley J expressed the opinion that ‘from a lawyers
point of view this case “is California through and
through”’. He noted that the children had no biological
connection with the mother and that their only connection with
England was therefore the accident of their birth here. It had
always been intended that they should be brought up in California
and there were already Californian court proceedings in relation to
the dispute. In those circumstances the appropriate forum was
California not England.

Comment: This is
probably a sufficiently rare situation to be determined on its
merits rather than by strict legal argument. It would have been
open to Hedley J to put a case for habitual residence in England by
noting that H was the legal mother under English law, the law of
the place where the child was born, and that she intended to keep
the twins with her. Such a case would have been stronger than the
contention in B v H
that where a child is born abroad to a woman who intends to return
to England, then habitual residence there is established
immediately. The argument used by the court assumes rather than
demonstrates that the Californian law should prevail in relation to
establishing parenthood. Equally, the ‘lawyer’s
view’ that this was a Californian case seems to be strongly
influenced by observation that there was no biological connection
between the twins and the mother. Yet a ‘lawyer’s
view’ of s 28 of the 1990 Act could easily be that it renders
the blood tie irrelevant in favour of the gestational link
evidenced by giving birth. It may well be that the legal analysis
in this decision would not bear close scrutiny in subsequent cases
and it should be treated warily as a precedent, but it provides a
pragmatically attractive solution to the practical problem before
the court.

Child
support

Child
Support Act human rights compliant

BFLS 5[4265]

7

R (on the application of
Denson) v Child Support Agency [2002] EWHC 154 (Admin), [2002]
1 FLR 938, QBD

In R (on the application of
Denson) v Child Support Agency [2002] EWHC 154 (Admin), [2002]
1 FLR 938, QBD, Munby J rejected the suggestion that an application
for a liability order to enable child support arrears to be
enforced raised any issues under the European Convention on Human
Rights and the Human Rights Act 1998. If any such issues had
arisen, any intrusion would have been justified within the
Convention.

Comment: In addition
to dealing with the issues on the liability order, Munby J noted
that a series of cases seeking to challenge the Child Support Acts
as breaching the Convention had failed. See Logan v UK (1996) 22 EHRR
CD 178, Burrows v UK
(27 November 1996, unreported) and Stacey v UK (19 January
1999, unreported) which all rejected suggestions that Art 8 was
engaged by the child support system.

The family
home

Merely
lending name to mortgage application did not give beneficial
interest

BFLS 4[57]

8

Carlton v Goodman [2002]
EWCA Civ 545, [2002] 2 FLR 259

In Carlton v Goodman [2002]
EWCA Civ 545, [2002] 2 FLR 259 the claimant sought to establish a
beneficial interest in a home. She had enabled her former partner,
now deceased, to purchase the property by agreeing to allow her
name to be included in the mortgage application. However, she had
made no mortgage payments or contribution to the purchase. The
Court of Appeal held that, although in principle an arrangement
whereby a person accepted liabilities could be treated as a
contribution to the purchase of a property, on the facts there was
no intention that that this should be the case. Her involvement was
circumscribed and temporary (the plan was that her name would be
removed from the title deeds after a year). In these circumstances,
the woman had no beneficial interest in the property and held it on
trust for the man’s estate.

Comment: This is
essentially a decision on the facts of the case. Ward LJ noted that
the purchase of the house was never a joint project intended to
benefit the woman as well as the man and that the life policy
guaranteeing the mortgage was in the man’s name only. The
three members of the Court of Appeal were unanimous on the outcome,
but may have diverged on their understanding of the nature of the
trust of land in question. Mummery LJ discussed conflicting
versions of the doctrine of resulting trust, while Ward LJ
considered both this and the question of a common intention
constructive trust. Both inclined to the view that the law was
confusing and welcomed the Law Commission’s attention to home
sharing. It is therefore disappointing that the outcome of this
examination seems to be to remit the problems to the courts for
judicial consideration.

Financial
provision

Legal fund
for child abduction proceedings can be ‘need’ within s
25

BFLS 4[790]

9

Al Khatib v Masry [2002]
EWHC 108, [2002] 2 FCR 539, [2002] 1 FLR 1053, FD

In Al Khatib v Masry [2002]
EWHC 108, [2002] 2 FCR 539, [2002] 1 FLR 1053, FD Munby J made a
substantial award in favour of a wife in circumstances where the
husband had failed properly to disclose his assets and had also
abducted the children and prevented the wife having even telephone
contact.The bulk of the judgment concerns the basis on which the
judge felt entitled to infer that the husband could meet the
financial burden of the award. One factor in particular, however,
is of wider significance. The wife was awarded £2.5 million as
a ‘war chest’ to enable her to take legal action to
secure the return of the abducted children. This was seen by Munby
J as a financial need and responsibility within the Matrimonial
Causes Act 1973, s 25(2)(b). This fund was to be kept separate and
used only for litigation purposes. Any remaining balance should be
remitted to the husband as soon as the children were returned
either to the wife or to the jurisdiction of the court.

Comment: Munby J
rejected the suggestion that the ‘war chest’ should be
seen as coercive or punitive of the husband. He drew on the fact
that in Brett v Brett
[1969] 1 All ER 1007 a maintenance fund had been created for an
orthodox Jewish wife that was to be reduced if she was granted a
religious divorce by her husband. This reflected the fact that she
had a legal need for maintenance if she could not remarry and
thereby acquire the right to support from her husband. Thus, while
providing an incentive for granting a religious divorce, the money
was justified by reference to a separate legal obligation.
Similarly in the present case the ‘war chest’ fund
reflected the anticipated cost of litigation, not a sum calculated
to encourage the husband to return the children.

On facts,
wife’s interests prevailed over confiscation
order

BFLS 4[783]

10

Re A, A v A [2002] EWHC 611,
[2002] 2 FCR 481; reported as Re MCA, HM Customs & Excise
Commissioners and Long v A, A v A (Long Intervening) [2002] 2
FLR 274, QBD & FD

Re A, A v A [2002] EWHC
611, [2002] 2 FCR 481; reported as Re MCA, HM Customs & Excise
Commissioners and Long v A, A v A (Long Intervening) [2002] 2
FLR 274, QBD & FD concerned the relationship between the powers
of the family courts to redistribute property on divorce under the
Matrimonial Causes Act 1973 and confiscation orders under the Drug
Trafficking Act 1994. Following the marital breakdown, and
unbeknown to the wife, the husband had been involved in drug
smuggling. On his conviction, a confiscation order was made against
his assets. The issues arose as to the relevance of this order to
the ancillary relief proceedings and its enforceability against the
marital home.Under the Drug Trafficking Act 1994, s 31(4) the
powers to confiscate property should be exercised with a view to
allowing other persons than the defendant to retain the value of
their property. Munby J held that this covered both existing
beneficial interests and also rights in respect of property such