February 2003

Bulletin No 65
Butterworths Family and Child Law
Bulletin  – February 2003

Bulletin Editor
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
. 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
and Clarke
Hall and Morrison on Children.


recognition of contributions of homemaker and wealth

BFLS 4A[821.12]

Lambert v Lambert [2002]
EWCA Civ 1685 [2002] 3 FCR 673, [2003] 1 FLR 139

Lambert v Lambert [2002]
EWCA Civ 1685 [2002] 3 FCR 673, [2003] 1 FLR 139, is an important
case on the interpretation of the decision of the House of Lords in
White v White [2000] 3
FCR 555. The family had significant wealth. The husband claimed
that this wealth had been generated by his exercise of special
skills and that he should therefore receive a greater share of the
assets than the wife. The Court of Appeal held that it was
unacceptable to place greater value on the contribution of a
breadwinner than that of a homemaker. They noted that the judge had
found that there was nothing more that the wife could have done in
the circumstances to justify an award of 50% and that this
suggested that it would be unfair to expect more of her. The
husband’s contribution was that of a skilful businessman but
not, in the eyes of the judge, that of a genius. The Court of
Appeal rejected the suggestion that the mere fact that a large
fortune had been accumulated could constitute a special
contribution that required the spouse who dealt with business
(rather than homemaking) to be awarded a greater share in the
assets. The court did not go so far as to reject the suggestion
that there could ever be a ‘special contribution’
having this effect. It remains a legitimate possibility, but only
in wholly exceptional circumstances. The Court of Appeal
substituted an order for equal division of the overall capital
resources for the original order giving 63% to the husband and 37%
to the wife.

Comment: This case
contains a number of important aspects. There is a full review of
the authorities interpreting the decision of the House of Lords in
White v White. The
alleged conflict of positions adopted by Coleridge J (said to have
improperly created a presumption of equal division) and Connell J
is carefully reviewed. The suggestion that Cowan v Cowan [2001] 2 FCR
331 created a principle that equality should not be used as a
yardstick where there had been an exceptional financial
contribution was rejected. It would lead to an inappropriately
mechanical approach and would reduce the relevance of White v White to
‘big money’ cases. The latest decision also
demonstrates the need to bring into consideration all the factors
identified in s 25 as being significant, although the way in which
it does so does little (as Thorpe LJ acknowledged) to increase the
predictability of the outcomes. The crucial factor, however, was
the approach to the principle of equality as pursued in White v White as an
injunction to avoid discrimination on the basis of the role played
by a spouse in the life of the family. The husband’s claim to
a greater share could only be upheld by such discrimination. The
wife had done all that could be expected of her in the role they
had accepted she should play. To differentiate between them would
necessarily be to devalue that role, something that White v White has said is
not acceptable.

Clawback on
likely capital increase—limits of clean break

BFLS 4A[1012]

Parra v Parra [2002] 3 FCR
513, FD

In Parra v Parra [2002] 3 FCR
513, FD, Charles J considered a divorce case in which one of the
principal assets held by the couple was a piece of land, known as
Star Works, that was anticipated to increase in value in the
long-term as a result of planning permissions that would not be
forthcoming in the short-term. The other main asset was a company
which had been built up by the joint efforts of the spouses and
whose profitability was currently lower than it was likely to be in
the future. Charles J noted that the marriage had been a joint
enterprise and that a 50% split of the assets would have been
appropriate in this case even without the decision of the House of
Lords in White v White
[2000] 3 FCR 555. Taking into account the fact that the husband
would increase his earnings through the company in the future the
lump sum awarded to the wife was approximately 54% of the assets of
nearly £2.5 million. He also accepted the value of making a
clean break in this case as the relationship between the spouses
had deteriorated and become bitter. However, such an order would
only be appropriate if the wife were in a position to benefit from
the long-term investment in the Star Works. That would be achieved
by granting the wife a claw back enabling her to share in possible
future profits on the development of the land.

Comment: This case is
important for two main reasons. It demonstrates the working out of
the implications of equality between spouses in a case where there
was little dispute about the fairness of that approach. Second, it
assists with the creation of clean break settlements even where
there is uncertainty about future fluctuations in value. The claw
back solution does not entirely terminate the relationship between
the parties but it does carefully define the way in which they will
have to interact. The working out of the order not only needed to
define the wife’s stake in future profits, but it also had to
limit the husband’s power to use the asset in a way that
would reduce its value.


Ban on
corporal punishment in schools is not breach of religious

BFLS 3A[757], 5A[4404]; CHM

R (Williamson) v Secretary of
State for Education and Employment
[2003] 1 FCR 1,

In R (Williamson) v Secretary of
State for Education and Employment
[2003] 1 FCR 1 the Court of
Appeal considered a claim from Christian parents that they were
entitled to delegate their powers to administer corporal punishment
to teachers in independent schools, despite the terms of the
Education Act 1996, s 548 (as extended to independent schools by
the School Standards and Framework Act 1998, s 131). They also
claimed that if s 548 did prevent them delegating powers of
corporal punishment, then it breached their rights under Arts 8, 9
and 10 of the European Convention on Human Rights and Art 2 of the
First Protocol to that Convention. The Court of Appeal held that s
548 did prevent the delegation of the parental powers of physical
chastisement. The majority held that Art 9 was engaged by the
parents’ complaints, but that, as the prohibition on the use
of such punishments by teachers did not prevent the parents from
administering them themselves, the provision did not breach the
article. The possibility of parental chastisement demonstrated that
the statute did not in fact constitute a material interference with
the parents’ rights, as the parents could manifest those
beliefs through administering physical ‘correction’
themselves. Even in respect of the one school that did not regard
this as an acceptable or practical solution, then the parents could
choose to educate their children in one of the other faith schools,
so again there was no material interference with their rights. The
suggestion that an independent claim could be mounted that the
legislation also infringed Art 8 of the Convention was rejected. As
it was not a breach of Art 8 to require children to be educated, it
could not be said that schooling was an extension of the private
sphere. Protection was given to parental convictions in education
through Art 2 of the First Protocol. However, this did not assist
the applicants. Buxton LJ and Arden LJ both found that the State
was entitled to restrict the choice of schools available to parents
to those free from the use of physical punishment. Buxton LJ
reached this conclusion by holding that the parents’ views
were not within ‘convictions’ requiring respect at all.
The basis for Arden LJ’s views is less clear (see paras

Comment: It is
perhaps unfortunate that the Secretary of State for Education and
Employment had not pleaded the alternative argument that even if
there had been any infringement of Art 9, it was justified under
Art 9(2). This makes the present decision an uncertain guide as to
the outcome of further litigation on the degree of freedom to be
permitted to religious schools, for example a challenge to the
national curriculum and a demand to teach only Creationism rather
than science informed by the understanding of evolutionary
processes. It is also important to note the strength of the
minority view, expressed by Buxton LJ, that Art 9 was not engaged
by the parents’ complaints, as corporal punishment was not
claimed to be part of the ritual expression of Christianity. In his
view, the fact that the parents’ views on corporal punishment
were motivated by their religious beliefs did not make the
administering of corporal punishment an expression of that belief
in the sense required by Art 9 (applying Arrowsmith v UK (1978) 3
EHRR 218, X v UK
(1984) 6 EHRR 558, Kalac v
(1997) 27 EHRR 552, Jewish Liturgical Association
Cha’are Shalom Ve Tsedek v France
(2000) 9 BHRC 27).
Buxton LJ suggested that it would have been necessary for the
applicants to show that their religion obliges them to inflict
corporal punishment (para 64). In his view, the texts cited from
the Old Testament Book of Proverbs referred to a far more extensive
use of physical punishment than was proposed by the applicants and
could not be said to mandate that behaviour as the
applicants’ claimed. The majority of the Court of Appeal
regarded it as being outside the scope of the judicial role to
examine the detailed basis of the beliefs in question. However,
this element of the arguments will merit closer consideration. In
part, Buxton LJ was seeking to distinguish core religious practices
(which would be protected) from those which are not a defining
element of the faith. The majority was concerned that this search
for the essential ‘articles’ of faith within the range
of religious beliefs held by a person was a particularly Christian
phenomenon, and indeed it could be said to represent a peculiarly
Anglican approach. They were probably right to be cautious about
the ability of a court to distinguish a hierarchy of beliefs,
although some religions might themselves do so. However, another
aspect of Buxton LJ’s argument was that the arguments placed
before the court in support of the religious beliefs professed by
the applicants were internally incoherent. It is established ECtHR
jurisprudence that, in order to claim the protection of Art 9,
beliefs must be consistent with human dignity, serious, important,
cogent and coherent. The main arguments in favour of prohibiting
corporal punishment in schools are based on the fact that it is an
affront to human dignity in general and to the rights of the
individual child in particular. This can be seen from the fact that
the UK has been consistently criticised by the Committee on the
Rights of the Child for its persistent failure to implement the
protection of children against parental violence under the UN
Convention on the Rights of the Child. The details of this clash of
views will only be worked out in a case in which the terms of Art
9(2) are considered in detail. The majority view in the Williamson case that
religious beliefs are in issue is likely to be maintained, but the
lengths to which the majority went to uphold the ban on physical
punishment in schools suggests that it is far from settled that
faith schools will be permitted substantial freedom to depart from
prevailing norms on education and discipline.


High Court
should not substitute own decision on youth committal

CHM 7[108]

R (C) v Sheffield Youth Court;
R (N) v Sheffield Youth Court
(2003) Times, February,

In R (C) v Sheffield Youth Court;
R (N) v Sheffield Youth Court
(2003) Times, February, QBD,
Stanley J considered the Magistrates’ Courts Act 1980,
s 24(1) concerning transfers to the Crown Court. He held that the
youth courts were required to transfer cases that fell within the
scope of the sub-section—those where the court considers that
it ought to be possible to impose a long sentence of imprisonment
should the young person be committed. In deciding whether this was
the case, the youth court should take into account the sentencing
powers of the crown court and the guidance that had been given as
to their exercise. If that guidance indicated that there was no
real possibility of a long sentence, then committal was
inappropriate. The decision whether to commit was granted by
Parliament to the youth courts and, on review in the High Court,
the issue was whether the decision was within the range of
acceptable decisions. It was not whether the higher court would
have made the same decision itself.


Adoption and
Children Act 2002

The Adoption and
Children Act 2002 will align adoption law with the Children Act
1989 in making the child’s welfare the paramount
consideration in all decisions relating to adoption. It will create
a duty on local authorities to maintain an adoption service, gives
a new right to an assessment of needs for adoption support. It will
require adoption support agencies to register under Part 2 of the
Care Standards Act 2000. There is provision for the Secretary of
State to establish an Adoption and Children Act Register to suggest
matches between children waiting to be adopted and approved
prospective adopters

The Act makes new
provision for the process of adoption and the conditions for the
making of adoption orders, including new measures for placement for
adoption with consent and placement orders to replace the existing
provisions in the Adoption Act 1976 for freeing orders. The courts
will be obliged to draw up timetables for resolving adoption cases
without delay. Provision is made for adoption orders to be made in
favour of single people, married couples and unmarried couples.
There will be a new and more consistent approach to access to
information held in adoption agency records and by the Registrar
General about adoptions which take place after the Act comes into
force, by ensuring that the release of this sensitive information
about adopted people and their birth relatives is protected and
that its disclosure is subject to safeguards.

The Act
incorporates with amendments the Adoption (Intercountry Aspects)
Act 1999 (other than ss 1, 2 and 7, and Sch 1), as respects England
and Wales, providing additional restrictions on bringing a child
into the United Kingdom in connection with adoption, aimed at
ensuring that British residents follow the appropriate procedures
where they adopt a child overseas or bring a child into the United
Kingdom for the purposes of adoption. It also provides for
restrictions on arranging adoptions and advertising children for
adoption (through traditional media and electronically) other than
through adoption agencies, and prohibits certain payments in
connection with adoption.

The Act also makes
a number of amendments to the Children Act 1989. These include
provision for an unmarried father to acquire parental
responsibility where he and the child’s mother register the
birth of their child together; a new special guardianship order,
intended to provide permanence for children for whom adoption is
not appropriate; a power for local authorities’ to provide
accommodation for children in need under s 17; a duty on local
authorities to make arrangements for the provision of advocacy
services to children or young people making or intending to make
representations; amends the definition of ‘harm’ in the
Children Act 1989 to make clear that harm includes any impairment
of the child’s health or development as a result of
witnessing the ill-treatment of another person; makes the
application for a placement order specified proceedings and to
enable rules of court to make applications for section 8 orders
specified proceedings and to provide for the representation of
children in proceedings. Regulations may be made under the Children
Act to require a local authority to review the care plan of a
looked after child


The Social
Security (Contributions) (Amendment No 4) Regulations 2002, SI

With effect from
17 December 2002, these Regulations amend the Social Security
(Contributions) Regulations 2001 as a result of the Education
(Teacher Student Loans) (Repayment etc.) Regulations 2002
(provision for the repayment or reduction of amounts payable in
respect of student loans of newly qualified teachers). With effect
from 1 April 2003, they also amend the Regulations to reflect the
renaming of the invalid care allowance as the ‘carer’s
allowance’ in accordance with the Regulatory Reform
(Carer’s Allowance) Order 2002.

Registration of Births, Deaths and Marriages (Fees) Order 2002, SI

This Order
specifies the fees payable under the Acts relating to the
registration of births, deaths and marriages and associated
matters, from 1 April 2003. Most fees remain the same, but where
fees have been increased, the fees payable both before and after
that date are set out in the Schedule. Where fees have been
increased, the additional amount is 50 pence.

The Social
Security Contributions (Decisions and Appeals) (Amendment)
Regulations 2002, SI 2002/3120

These Regulations,
which took effect on 7 January 2003, amend the Social Security
Contributions (Decisions and Appeals) Regulations 1999 to replace
all references to statutory sick pay or statutory maternity pay in
the principal Regulations with references to statutory sick pay,
statutory maternity pay, statutory paternity pay or statutory
adoption pay.

Residential Family Centres Regulations 2002, SI

These Regulations,
which come into force on 1 April 2003, are made under the Care
Standards Act 2000 and apply in relation to residential family
centres in England only. Part I of the Act establishes, in relation
to England, the National Care Standards Commission and Part II
provides for the registration and inspection of establishments and
agencies, including residential family centres, by the Commission.
It also provides powers for regulations governing the conduct of
establishments and agencies.

establishments are excluded from the definition of a residential
family centre under s 4(2) of the Act, including most hospitals,
independent clinics and care homes. An establishment is also
excluded from the definition of residential family centre if it is
a hostel or domestic violence refuge, or an establishment whose
main purpose is to provide accommodation and services to

By reg 4, each
centre must prepare a statement of purpose consisting of the
matters set out in Sch 1, and a resident’s guide to the
centre. The centre must be conducted in a manner which is
consistent with the statement of purpose. Regulations 5 to 9 make
provision about the persons carrying on and managing the centre,
and require satisfactory information to be available in relation to
the matters prescribed in Sch 2. Where the provider is an
organisation, it must nominate a responsible individual in respect
of whom this information must be available (reg 5). Regulation 6
prescribes the circumstances where a manager must be appointed for
the centre, and reg 8 imposes general requirements in relation to
the proper conduct of the centre, and the need for appropriate

Part III makes
provision about the conduct of residential family centres, in
particular as to the health, welfare, care and education of the
residents and as to the protection of children accommodated there.
It also makes provision for the facilities and services to be
provided to residents. Provision is also made about the staffing of
centres and the fitness of workers, and about record keeping and

Part IV makes
provision about the suitability of premises, and the fire
precautions to be taken. Part V deals with the management of
residential family centres. Regulation 23 requires the registered
person to monitor the quality of care provided by the centre.
Regulation 24 imposes requirements relating to the centre’s
financial position. Regulation 25 requires the registered provider
to visit the centre as prescribed.

Part VI deals with
miscellaneous matters, including the giving of notices to the
Commission, and notification to the Commission and others of the
events listed in Sch 5.

Regulation 31
provides for offences. A breach of the regulations specified in reg
31 may be an offence on the part of the registered person. However,
no prosecution may be brought by the Commission unless it has first
given the registered person a notice which sets out in what respect
it is alleged he is not complying with a regulation and, where it
is practicable for him to do so, the action he should take in order
to comply and the period for compliance. The notice must also
specify the period within which he may make representations about
the notice.

The Civil
Procedure (Amendment No 2) Rules 2002, SI 2002/3219

These Rules are
not principally concerned with family matters. They insert into the
Civil Procedure Rules 1998, as Part 63, new rules governing the
procedure for intellectual property rights, in particular patents,
registered designs and registered trade marks. They also make minor
amendments to the rules currently in force: rule 25.13 (security
for costs where the claimant is resident out of the jurisdiction
and not in a convention state) to comply with the judgment of the
Court of Appeal in De Beer
v Kanaar & Co
; rules 36.6 and 37.1, in anticipation of
changes to the rules governing payments into court; and rule 56.4
(miscellaneous provisions about land).

The Children
and Family Court Advisory and Support Service (Miscellaneous
Amendments) Order 2002, SI 2002/3220

This Order amends
the following the Data Protection (Subject Access Modification)
(Social Work) Order 2000, the Justices’ Clerks Rules 1999;
and the Adoption Agencies Regulations 1983 to reflect the
establishment of the Children and Family Court Advisory and Support
Service (under the Criminal Justice and Court Services Act 2000)
and the replacement of the term ‘guardian ad litem’
with officers of the Service who represent children who are the
subject of family proceedings. In proceedings under s 41 of the
Children Act 1989 and s 65 of the Adoption Act 1976 the term
‘children’s guardian’ replaces ‘guardian ad

Intercountry Adoption (Hague Convention) Regulations 2003, SI

These Regulations
come into force on 1 June 2003. They were made under the Adoption
(Intercountry Aspects) Act 1999 and implement the 1993 Hague
Convention on the Protection of Children and Co-operation in
respect of Intercountry Adoption that was concluded at the Hague on
29 May 1993.

Part 2 makes
provision in respect of requirements, procedure, recognition and
effect of adoption in England and Wales where the United Kingdom is
the receiving State. It applies where a child is habitually
resident in another Contracting State and the prospective adopters
are habitually resident in the British Islands. Regulations 3 to 7
make provision regarding the application for determination of
eligibility, and the assessment of suitability, eligibility and
other requirements such as counselling and police checks.
Regulations 8 to 11 provide for the assessment of suitability of
the prospective adopter, the procedure to be followed and the
notification of decision. Regulation 12 sets out the procedure
following the receipt of the Article 16 Information from the
Central Authority of the State of origin. Regulation 13 imposes
duties on the adoption agency in respect of the period before the
arrival of the child in England and Wales. Regulations 14 to 20
make provision in respect of the case where a child arrives in the
United Kingdom but no Convention adoption has been made. Regulation
21 prescribes the requirements for the purposes of making a
Convention adoption order. Regulation 22 makes provision regarding
the procedural requirements following a Convention adoption order
or Convention adoption. Regulations 23 and 24 respectively make
provision in respect of where a court refuses to make a Convention
adoption order and the annulment of a Convention adoption order or
a Convention adoption.

Part 3 makes
provision in respect of requirements and procedure in England and
Wales where the United Kingdom is the State of origin. It applies
where a child, habitually resident in England and Wales is to be
adopted by prospective adopters who are habitually resident in
another Contracting State. Regulation 25 imposes duties on an
adoption agency in respect of the assessment of a child.
Regulations 26 to 30 set out the functions of an adoption panel,
provide for the making, and notification, of decisions, the
procedure to be followed once the Article 15 Report is received,
duties of the adoption panel and the local authority decision in
respect of the placement of the child. Regulation 31 sets out the
requirements in respect of the Article 16 information and the
procedure to be followed in preparing a report and gathering
information. Regulations 32 and 33 respectively prescribe the
requirements for the purposes of making a Convention adoption order
and the procedural requirements following a Convention adoption
order or Convention adoption.

Part 4 makes
miscellaneous provisions. Regulations 34 and 35 provide for the
application and modification of the Adoption Act 1976 and the
Adoption Agencies Regulations 1983. Regulation 36 makes it an
offence where a person contravenes or fails to comply with reg 15
(notification to local authority), reg 18(2) (return of child to
local authority), reg 18(4) (return of child to relevant authority
as ordered by the court) or reg 23 (refusal to return child to
relevant authority within prescribed time as ordered by the court).
Regulation 37 makes transitional and consequential provisions.

The Child
Support (Decisions and Appeals) (Amendment) Regulations 2003, SI

The Regulations
come into force in relation to a particular case on the day on
which s 16 of the Child Support Act 1991 as amended by the Child
Support, Pensions and Social Security Act 2000 come

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