October 2002

Bulletin No 62
Butterworths Family and Child Law
Bulletin – October 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.

Adoption

Human Rights
Act does not alter test for disclosure of confidential information
to parties in adoption proceedings

BFLS 3[4306]

1

Re X (adoption: confidential
procedure)
[2002] EWCA Civ 828, [2002] 2 FLR
476

Re X (adoption: confidential
procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476 concerned
confidential adoption proceedings in which the natural parents were
not aware that the proposed adopters were in fact the foster
parents who had been looking after the children since their removal
from parental care four years previously. The solicitor for the
parents had become aware of the identity of the prospective
adopters and sought advice from the courts as to whether she should
inform the parents. Hale J noted that the court had the power to
lift the veil of confidentiality if the interests of the child
required it to do so (see Re D [1996] AC 593). While
Art 6 of the European Convention on Human Rights requires the
balancing of the interests of the adults and children (see Re B [2001] 2 FLR 1017)
the position had not been fundamentally changed by the
implementation of the Human Rights Act 1998. The judge had
correctly considered these factors and the conclusion that the
identity of the prospective adopters should not be revealed to the
parents could not be said to be plainly wrong. The appeal against
his decision was therefore dismissed.

Comment: The position
was perhaps complicated by the fact that the natural parents’
objection to the adoption might have been withdrawn if they had
known the prospective adopters were in fact the foster parents, in
whom they apparently had confidence. Their solicitor believed that
she could have persuaded the parents that the adoption was in the
children’s interests if she was able to reveal the full
picture. There is some indication that the Court of Appeal was
sympathetic to the view that this might have been an appropriate
way forward, but they were not prepared to interfere with the
discretion of the judge on this point. The importance of the
decision is that it confirms that the tripartite test set out in
Re D should continue
to be used following the Human Rights Act. This requires
consideration first of whether the disclosure of the information
would involve a real possibility of significant harm to the child.
Second, the court should consider whether the overall benefits to
the child in having the evidence properly tested, bearing in mind
the risks of harm, point to non-disclosure. Third, if disclosure is
found not to be in the interests of the child, then that
consideration has to be weighed against the interests of the
natural parents in seeing and responding to all the material
presented in the case.

Financial
provision

Husband
cannot simply claim that father would no longer support
family

BFLS 4[714]

2

M v M (Maintenance Pending
Suit) [2002] EWHC 317, [2002] 2 FLR 123, FD

In M v M (Maintenance Pending
Suit) [2002] EWHC 317, [2002] 2 FLR 123, FD the family had
been generously supported by the husband’s father during the
marriage. In the face of the divorce, the husband said that his
father would no longer support the family financially. The court
refused to accept this at face value, holding that a party who
suggested that there was a significant change in circumstances from
those that had prevailed during the marriage had to produce
evidence to convince the court that this was so. The
husband’s father had not appeared to give evidence to the
court and there was insufficient evidence to persuade the court
that it should proceed on the basis that financial support would
not be forthcoming.

Comment: It should be
noted that the application before the court concerned maintenance
pending suit and it does not necessarily follow that the husband
could not convince the court that he would be no longer supported
by his father when the full hearing took place. The key factor
seems to be the fact that the husband was alleging a significant
change of attitude on the part of his father. The case was not,
therefore, so much about the availability of funds from the wider
family so much as whether there was any reason to accept the
husband’s account that his father had changed his mind about
providing support without fully testing its accuracy on the
evidence. To have taken any different view would have enabled the
husband to deny his wife maintenance by making claims that she
could not rebut. At the full hearing, it is to be expected that the
court would seek to determine precisely the position of the
husband’s father.

Solicitor
liable for negligent advice in ancillary relief matter

BFLS 4[751]

3

Phippen v Palmers [2002] 2
FLR 415, FD

In Phippen v Palmers [2002] 2
FLR 415, FD Heather Swindells QC, sitting as a judge of the High
Court, found a solicitor liable for negligently advising the
claimant in her application for financial relief ancillary to
divorce proceedings. No reasonably competent solicitor would have
advised her that the proposed clean break settlement was
appropriate because it failed to meet her income requirements. It
has also been negligent to wrongly suppose that receipt of one
third of the capital rendered the difference in incomes between the
spouses irrelevant. No competent solicitor would have made this
error. The solicitor was also negligent in failing to refer the
case to counsel, as he had indicated to the client that he planned
to do. The claimant was awarded the sum of £100,000 plus
interest in damages.

Comment: While the
details of the award clearly depend on the circumstances of the
case, this is a salutary reminder that solicitors who fail properly
to protect the interests of their clients in financial provision
cases may be made to make good their loss. The figure was
calculated to represent the additional fund that the wife needed
(on a Duxbury basis)
to secure her reasonable financial needs.

International child abduction

Asylum Act does not prevent
return of abducted children

BFLS 5[2179]

4

Re S (children) (abduction:
asylum appeal) [2002] EWCA Civ 843, [2002] 2 FCR 642, [2002] 2
FLR 465

In Re S (children) (abduction:
asylum appeal) [2002] EWCA Civ 843, [2002] 2 FCR 642, [2002] 2
FLR 465 the Court of Appeal upheld the decision of Bennett J (see
[2002] 2 FLR 437) that, where the court concluded in child
abduction proceedings that a child should be returned to another
country, it was not prevented from so ordering by the fact that
their mother was seeking asylum. The mother claimed that she had
been the victim of domestic abuse and marital rape while in India.
While hearing the father’s application under the Hague
Convention on the Civil Aspects of International Child Abduction
the trial judge had concluded that the mother’s evidence was
open to serious question and that it was in the children’s
interests to be returned to India. He had rejected the
mother’s suggestion that he could not make such an order
because s 15 of the Immigration and Asylum Act 1999 prevented a
person’s removal while an asylum claim was pending. The Court
of Appeal upheld this view. Laws LJ held that the prohibition
applied to the immigration authorities and could not be construed
as adding an exception to the obligations under Art 12 of the Hague
Convention or to circumscribe the powers of the court in
wardship.

Comment: As the Court
of Appeal noted, where there is evidence that the children or their
mother would suffer harm if returned, there is scope within the
Hague Convention to take this into account in deciding to refuse to
order that they are restored to the jurisdiction of their habitual
residence. The mother’s claim would have subordinated this
assessment of the substance of the situation to a procedural
requirement that no return could be ordered until any application
for asylum has been resolved. This would undermine the fundamental
principle of the Hague Convention that the interests of children
are normally served by prompt return. The bar on return pending
examination of the substance of an asylum claim is an important
protection, but in the circumstances before the Court of Appeal the
substance of that claim had received consideration. This is
permitted through the Hague Convention proceedings in so far as it
relates to the risk of harm to the child either directly or through
the impact on their carer.

Statutory
Instruments

Social
Security (Incapacity) (Miscellaneous Amendments) (No 2) Regulations
2002, SI 2002/2311

These Regulations
amend the Social Security (General Benefit) Regulations 1982, the
Social Security (Incapacity Benefit) Regulations 1994 and the
Social Security (Incapacity for Work) (General) Regulations 1995.
In the Social Security (General Benefit) Regulations 1982 the
amount which can be earned before disqualification from
unemployability supplement is increased from £3,432 to
£3,510 with effect from 1 October 2002. In the Social Security
(Incapacity Benefit) Regulations 1994 the earnings limit for
councillor’s allowance is increased from £66.00 to
£67.50 with effect from 1 October 2002. Regulation 18 is also
amended to allow a person who was previously entitled to incapacity
benefit in youth to become entitled again after returning from an
unlimited absence abroad with effect from 1 January 2003. In the
Social Security (Incapacity for Work) (General) Regulations 1995
the weekly limit for earnings from work which may be undertaken by
a person without his being treated as being capable of work is
increased from £66.00 to £67.50 with effect from 1
October 2002.

Housing
Benefit (General) Amendment Regulations 2002, SI
2002/2322

These Regulations
further amend the Housing Benefit (General) Regulations 1987 which
provide for a scheme whereby housing benefit is payable to persons
who are liable to make certain payments in respect of a dwelling
occupied as their home. Paragraph 11A of Schedule 1A to those
Regulations is amended so that a tenancy in respect of a dwelling
whose ownership has been transferred on or after 7 October 2002,
with the consent of the Secretary of State, Scottish Ministers or
the National Assembly for Wales, or to a person approved by the
Housing Corporation, must be referred to a rent officer only where
the rent payable under the tenancy has been increased since the
transfer and the local authority considers the rent to be
unreasonably high. Such a tenancy need no longer be referred to the
rent officer on the ground that the local authority considers the
dwelling to be larger than the claimant reasonably requires.

Social Fund
(Miscellaneous Amendments) Regulations 2002, SI
2002/2323

These Regulations
amend the Social Fund (Applications) Regulations 1988 by allowing
applications for crisis loans to be made otherwise than in writing
and the Social Fund Maternity and Funeral Expenses (General)
Regulations 1987 so that persons may only be entitled to a funeral
payment under those Regulations where they are entitled to a
qualifying benefit in respect of the date of claim for a funeral
payment. The amendments took effect on 1 October 2002.

Social
Security (Miscellaneous Amendments) (No 2) Regulations 2002, SI
2002/2380

These Regulations
amend the Income Support (General) Regulations 1987, the
Jobseeker’s Allowance Regulations 1996, the Housing Benefit
(General) Regulations 1987 and the Council Tax Benefit (General)
Regulations 1992. A minor amendment is made to the wording of the
Jobseeker’s Allowance Regulations 1996, Sch 1, para
20J(3A)(a) to clarify the date from which the condition for the
award of carer premium shall be treated as satisfied.

Regulations 2(b),
3(c), 4(b) and 5(b) amend the capital disregard provisions that
apply when ascertaining entitlement to those benefits so that the
disregard of specified arrears and concessionary payments will
apply for either 52 weeks or, where large payments are made to
rectify an official error and are paid during the benefit award,
for the remainder of that award (as defined) if that is a longer
period.

Regulations 2(a),
3(b), 4(a) and 5(a) make amendments to the principal Regulations to
provide that any payment made to a claimant in respect of the
repayment of a student loan under reg 11(2) of the Education
(Teacher Student Loans) (Repayment etc) Regulations 2002 shall be
disregarded in the calculation of income.

Income-related Benefits and Jobseeker’s Allowance
(Working Tax Credit and Child Tax Credit) (Amendment) Regulations
2002, SI 2002/2402

These Regulations
amend the Income Support (General) Regulations 1987, the
Jobseeker’s Allowance Regulations 1996, the Council Tax
Benefit (General) Regulations and the Housing Benefit (General).
They make provision to the amended Regulations in connection with
the introduction of child tax credit and working tax credit by the
Tax Credits Act 2002. The changes come into effect in April
2003.

The amendments
remove references in the amended Regulations to working
families’ tax credit and disabled person’s tax credit,
which are abolished by s1 of the 2002 Act, and include references
to child tax credit and working tax credit created by that Act.
They make provision for treating the date on which the tax credits
are to be paid in income support and jobseeker’s allowance
and for additional income disregards in all the amended Regulations
which are connected with the introduction of the tax credits. The
amendments also make provision in connection with the extended
entitlement to child benefit following the death of a child
introduced by section 55 of the 2002 Act and make other changes
consequential upon, and relating to, the 2002 Act.

Social
Security Amendment (Personal Injury Payments) Regulations 2002, SI
2002/2442

These Regulations
amend the Council Tax Benefit (General) Regulations 1992, the
Housing Benefit (General) Regulations 1987, the Income Support
(General) Regulations 1987 and the Jobseeker’s Allowance
Regulations 1996. In particular, regulation 2 requires periodical
payments received by virtue of any agreement or court order to make
personal injury payments to the claimant to be treated as income.
Regulation 3 provides that payments of income received from all
trusts whose funds derive from personal injury payments to a
claimant, from an annuity purchased with such funds and those
received by virtue of any agreement or court order to make personal
injury payments to the claimant, are to be disregarded in their
entirety when used for items other than everyday living expenses
and £20 of such income disregarded when used for such
expenses. The Regulations come into force on 28 October 2002.

Social
Security Amendment (Carer’s Allowance) Regulations 2002, SI
2002/2497

These Regulations
amend the Social Security (Invalid Care Allowance) Regulations 1976
and other Regulations as a consequence of changes made to s 70 of
the Social Security Contributions and Benefits Act 1992 by the
Regulatory Reform (Carer’s Allowance) Order 2002. Regulation
2 revokes regs 10 and 11 of the Social Security (Invalid Care
Allowance) Regulations 1976 as the powers under which they are made
are repealed by art 3(2) of the Regulatory Reform (Carer’s
Allowance) Order 2002 with effect from 28 October 2002. Schedule 2
to these Regulations makes changes to secondary legislation, as a
consequence of the change of the name of the allowance from invalid
care allowance to carer’s allowance, with effect from 1 April
2003.

Recent
articles on family and child law

Adult sexual abuse of a
child? Matthew Waites (2002) 151 NLJ 1342

Child abduction update
Duncan Ranton (2002) 152 NLJ 1343

Divorce law update Kerry
Fretwell & Caroline McNally (2002) 152 NLJ 1381

Beyond the welfare
principle John Eekelaar (2002) 14(3) CFLQ 237

The presumption of
marriage Andrew Borkowski (2002) 14(3) CFLQ 251

One step forward and three
steps back? Children, abuse and parental contact in Denmark
Marrianne Hester (2002) 14(3) CFLQ 267

Adoptive parenthood as a
‘legal fiction’—its consequences for direct
post-adoption contact Carole Smith & Janette Logan (2002)
14(3) CFLQ 281

The emerging rights of
imprisoned mothers and their children Vanessa E. Munro (2002)
14(3) CFLQ 303

The Queen (Quintavelle) v Sec
State for Health: Are cloned embryos? Jonathan Herring &
Dr P-L Chan (2002) 14(3) CFLQ 315

Re B (Adoption: Natural
Parent): Putting the child at the heart of adoption? Sonia
Harris-Short (2002) 14(3) CFLQ 325

Re B (Consent to treatment:
Capacity): A right to die or is it right to die? Richard
Huxtable (2002) 14(3) CFLQ 341