April 2003

Bulletin No 67
Butterworths Family and Child Law Bulletin – April 2003 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.

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.

Marriage

House of
Lords declines to reflect ECtHR decision on
transsexuals

BFLS 1A[1525],
5A[4205], [4226]; Rayden 4.1, 5.44

Bellinger v Bellinger
[2003] UKHL 21, (2003) Times, 11 April

In Bellinger v Bellinger
[2003] UKHL 21, (2003) Times, 11 April, the House of Lords declined
to bring the law of marriage into line with the decision of the
European Court of Human Rights in Goodwin v United Kingdom
(2002) 35 EHRR 18. It found that the issues were complex and that
it was more appropriate for Parliament to consider and enact a new,
human rights compliant, regime. Mrs Bellinger was, however, granted
a declaration that s 11(c) of the Matrimonial
Causes Act 1973 is incompatible with Arts 8 and 12 of the European
Convention on Human Rights. Mrs Bellinger was a male to female
transsexual. She was born as a male, but had wished to be regarded
as female for as long as she could remember. In 1967 she had
married as a man, but the relationship broke down and the couple
separated in 1971 and were divorced in 1975. When she married Mr
Bellinger in 1981 he was fully aware of her background. She sought
a declaration that their marriage was valid. The House of Lords
noted that there was an international trend towards recognising
gender reassignment and not condemning post-operative transsexual
people to live in an intermediate zone, not quite one gender or the
other. However, Lord Nicholls found that to accede to Mrs
Bellinger’s application would represent a major change in the
law, with far-reaching ramifications. It raised issues whose
solution called for extensive enquiry and the widest public
consultation and discussion. Questions of social policy and
administrative feasibility arose at several points, and their
interaction had to be evaluated and balanced. The issues were
altogether ill suited for determination by courts and court
procedures. They were pre-eminently a matter for Parliament, and
the intention to bring forward legislation had already been
announced. Mrs Bellinger’s appeal failed, but the declaration
of incompatibility challenged the government to take action to
bring the law into line with the decision of the ECtHR in Goodwin v United
Kingdom.

Comment: Campaigners
will be disappointed that the House of Lords has not been prepared
to take responsibility for bringing the law in line with the
current interpretation of the European Convention on Human Rights.
It has accepted the continuing authority of Corbett v Corbett [1971] P
83 despite the weak authority of a High Court decision before the
House of Lords and despite extensive criticism from both home and
abroad and from academia and within the judiciary. Lord Hope found
that it was not open to the court to use the HRA 1998, s 3(1),
which places a duty on the courts to read and give effect to
legislation in a way that is compatible with the Convention rights.
The case concerned a declaration about the validity of a marriage
ceremony which was entered into in 1981, and s 3(1) of the 1998 Act
is not retrospective: R v
Lambert [2002] 2 AC 545; R v Kansal
(No 2) [2002] 2 AC 69; R v Lyons [2002] 3 WLR
1562, 1580D, para 45 per Lord Hoffmann and 1586B–C, para 63
per Lord Hutton. The interpretative obligation which s 3(1)
provides was therefore not available. Nor were their Lordships
satisfied that the dissenting judgment of Thorpe LJ in the Court of
Appeal offered sufficient certainty to provide the basis of a
revised law. Reform therefore lies in the hands of Parliament. On
13 December 2002, the government announced its intention to bring
forward primary legislation that will allow transsexual people who
can demonstrate they have taken decisive steps towards living fully
and permanently in the acquired gender to marry in that gender. The
legislation will also deal with other issues arising from the legal
recognition of acquired gender and is likely to be based on further
work from the interdepartmental working group on transsexual
people, which was reconvened after the Goodwin decision (written
answers to the House of Commons on 23 July 2002).

Prisoner
entitled to marry without delay and benefit from wife’s
non-compellability as witness

BFLS 1A[503]

R (on the application of the CPS) v
Registrar General of Births, Deaths & Marriages
[2003] 1 FCR 110, [2003] 1 All ER 540, CA

In R (on the application of the
CPS) v Registrar General of Births, Deaths & Marriages
[2003] 1 FCR 110, [2003] 1 All ER 540 the Court of Appeal held that
it would have been wrong for the director of a prison to delay
making arrangements for a marriage to take place, or for the
Registrar General of Births, Deaths and Marriages to delay issuing
a marriage certificate, in order to prevent reliance on the spousal
immunity from giving evidence in a murder trial. The Court of
Appeal overturned the decision of the judge that it would be
contrary to public policy to allow the man to use marriage to
prevent the woman giving evidence against him. The
non-compellability of spouses as witnesses in criminal proceedings
was long established and it was to be assumed that Parliament would
have made provision for delaying marriages in such circumstances if
that had been its intention.

Comment: The Court of
Appeal distinguished the case from the earlier decision in R v Secretary of State for the
Home Department, ex p Puttick [1981] 1 All ER 776 concerning
the consequences of marriage. In that case, the validity of the
marriage was accepted, but the court upheld the right of the
Secretary of State to refuse to grant the woman British
citizenship. The woman had been married after concealing her
identity and committing perjury in the presentation of papers
relating to her status. In those circumstances, it was held that
she was not entitled to the right to registration as a national
that would usually follow marriage. In the current case, the
parties’ relationship was long-standing and it was not merely
a marriage of convenience between strangers for the sole purpose of
acquiring legal protection. Entering a lawful marriage in these
circumstances could not be said to constitute perverting the course
of justice, so the public policy argument that delay was
permissible in order to prevent a serious crime did not apply.

Public law
proceedings

Court should
consider all aspects of risk in ‘uncertain perpetrator’
cases

BFLS 3A[3067]; CHM
1[936]

Re O & N (Minors); Re B (a
Minor) [2003] UKHL 18, (2003) Times, 4 April

In Re O & N (Minors); Re B (a
Minor) [2003] UKHL 18, (2003) Times, 4 April 2003 the House of
Lords considered the law applicable to child protection cases where
the perpetrator of a child’s injuries was uncertain.
Typically, where a child suffers physical harm at the hands of his
parents but the court is unable to identify which parent was the
perpetrator or, indeed, whether both were perpetrators. The
threshold criteria in s 31(2) of the Children Act 1989 are clearly
met, but when the court comes to consider how to dispose of the
case it becomes important to determine how to regard the risks
attached to future parental care. The Court of Appeal had taken
very different approaches to this issue in the two cases heard
together by the House of Lords. In Re B (non-accidental injury:
compelling medical evidence) [2002] EWCA Civ 902, [2002] 2 FCR
654 the Court of Appeal had concluded that, although it had not
been shown which of the parents had caused the harm to the child,
the court could not disregard the risk to the child of the mother
having day to day care. In contrast in Re O and N (care: preliminary
hearing) [2002] EWCA Civ 1271, [2002] 2 FCR 418, a differently
constituted Court of Appeal took the view that the disposal hearing
should proceed on the basis that the mother had not caused L to
suffer any physical harm or caused L or C to be at risk of
suffering physical harm from her. In that case it was clear that
the father had been responsible for one of the child’s
injuries but in respect of the other injuries the judge had found
that neither parent could be exculpated as a possible perpetrator.
It was suggested by the Court of Appeal that the case could
adequately proceed on the basis that the mother had failed to
protect the child, but that finding would have a lesser impact on
the prospects of the mother retaining a substantial caring role
than the judge’s finding that it was possible that she was
the perpetrator. Lord Nicholls, giving the opinion of the House of
Lords, found it would be grotesque if such a case had to proceed at
the welfare stage on the footing that, because neither parent,
considered individually, has been proved to be the perpetrator,
therefore the child is not at risk from either of them. In his
view, the preferable interpretation of the legislation was that in
such cases the court could proceed on the footing that each of the
possible perpetrators was just that: a possible perpetrator
(approving the views of Hale J in Re G (Care proceedings: split
trials) [2001] 1 FLR 872). It was not sufficient to proceed
only on the basis that there had been failure to protect the child.
This would be to disregard the possibility that a parent was the
perpetrator and would distort the basis of the welfare decision
made by the court. Consequently, the approach taken by the Court of
Appeal in Re O and N
was artificial and not in the interests of the child. The approach
taken in Re B was
approved. The appeal in Re
B therefore failed and that in Re O and N succeeded. Lord
Nicholls also advised that a full transcript of preliminary
hearings should be made available to ensure that a full assessment
could be made of the risks. This would go some way to protect
parents against the possibility that even suspicion that they were
the perpetrator could lead to cautious social workers excluding
them from the child’s future.

Comment: This is an
important decision, dispelling the confusion left by the
contradictory cases in the Court of Appeal. The House of Lords is
now demonstrating a consistent approach to the interpretation of s
31 of the Children Act 1989 so as to ensure the substantive issues
of children’s welfare can be fully considered. In Lancashire County Council v
B [2000] 2 AC 147 their Lordships had ensured that uncertainty
about the identity of a perpetrator should not preclude the ability
of the courts to protect children who had been found to have
suffered or be at risk of harm. The case concerned the question of
linking the harm to failures in parenting, and the ruling was that
failure in the experience of parenting from the child’s
perspective sufficed to satisfy the threshold criteria under s
31(2)(b)(i) even if
the adults whose parenting had failed could not be identified with
certainty. However, the decision took the same stand as the House
in Re O & N (Minors);
Re B (a Minor) on the fundamental policy issue that the need
to protect children had to prevail over the niceties of the
presumptions of innocence and the standard of proof.

Experimental
treatment authorised in the absence of any alternative

BFLS 3A[879]

Simms v Simms; A v A
[2002] EWHC 2734 (Fam), [2003] 1 FCR 361, [2003] 1 All ER
669

In Simms v Simms; A v A
[2002] EWHC 2734 (Fam), [2003] 1 FCR 361, [2003] 1 All ER 669 Dame
Elizabeth Butler-Sloss P authorised experimental treatment to be
given to two incapacitated young patients suffering from new
variant CJD. She held that it had been shown that a responsible
body of medical opinion regarded the provision of this treatment as
acceptable. She found that although there were known risks
involved, they were slight. The evidence showed that there might
possibly also be benefits (although the chance of this was small)
including prolongation of life (although not recovery). She also
found that there was no alternative treatment available. Bearing in
mind the strong presumption in favour of the course of action that
would prolong life (following Donaldson MR in Re J [1990] 3 All ER 930,
938), she authorised the treatment.

Comment: This
decision confirms that experimental treatment can be offered to
those who cannot consent for themselves when it is appropriate.
This is a helpful illustration and, although the point has been
implicitly accepted previously, it is useful for it to have been
the main point in a decision. There are two other particularly
interesting aspects to this case: the approach taken by the
President to the weight to be given to the views of the parents and
siblings of the patients, and the effect on the wider family if the
order was refused was intriguing. One of the enduring difficulties
faced by English law in dealing with incompetent patients is that
it is not clear how the views and interests of relatives are
relevant. The President argued that they were of ‘great
weight in the wider considerations of the best interests
test’ but did not explain how they were incorporated into the
assessment, which is of the best interests of the patient not the preferred
outcome for the family. In her view assessment of ‘best
interests’ must be made in the ‘widest possible
way’ and should ‘include the medical and non-medical
benefits and disadvantages, the broader welfare issues of the two
patients, their abilities, their future with or without treatment,
the views of the families and the impact of refusal of the
applications’. In some circumstances, the consequences for
the patient of the impact on carers of having their views
overridden can be used as a justification for making those views
the determinative factor (eg Re T [1997] 1 All ER 193).
However, care needs to be taken that neither reliance on medical
opinion, nor deferring to the wishes of the patient’s family,
detracts from the responsibility of the court to determine
objectively where the best interests of the patient lies. Finally,
the President noted that the NHS Trust concerned reserved the
right, and indeed subsequently exercised it, to refuse to carry out
the treatment. This was clearly a disappointment to the court,
rendering the hearing to some extent a purely academic exercise and
distressing for the family. This is the natural consequence of the
court’s reluctance to infringe clinical freedom by forcing
doctors to carry out treatment against their clinical judgment (Re J [1992] 4 All ER 614).
However, it raises questions over the extent to which English law
can offer a full and independent hearing on the scope of the civil
rights of incapacitated patients, including the extent of the right
to life under Art 2 of the European Convention on Human Rights. How
can there be an independent and objective hearing on the best
interests of the patient if the court cannot require those involved
to accept its decision?

Practice
Directions

President’s Ancillary Relief Advisory Group, Best
Practice Guide for Instructing a Single Joint Expert

December
2002 [2003] 1 FLR 573

This practice
guide is commended by the President and contains advice of the
instruction of single joint expert, including identification of
appropriate persons, the terms that should be included in court
directions and the nature of the instructions to be given. The
guide seeks to avoid conflicts of interest and to ensure that cases
are managed efficiently, effectively and economically so that costs
are proportionate.

Procedure

Costs order
in respect of addition time spent in hearing over
publicity

BFLS 3A[6004]

A v Times Newspapers
[2003] 1 All ER 587, [2003] 1 FCR 326, [2003] 1 FLR 689,
FD

In A v Times Newspapers
[2003] 1 All ER 587, [2003] 1 FCR 326, [2003] 1 FLR 689, FD Sumner
J considered whether the newspaper should pay the costs incurred
due to a day of a hearing being lost after an application from the
newspaper that the evidence be heard in open court. Such public
hearings were highly unusual in children’s matters, as the
newspaper would have known. The newspaper had known of the date of
the hearing for some months and could have made an earlier
application without such disruption to the substantive hearing. In
those circumstances, it would normally be appropriate for the
newspaper to bear the costs of disruption. However, Holman J had
earlier indicated that the case, which involved the immunisation of
children, was of such importance that a public hearing was likely.
This indication strengthened the newspaper’s case and made it
arguable. In those specific circumstances it was not appropriate to
require the paper to pay the additional costs.

Comment: In most
cases, the outcome of the case would have been different as it is
rare for judges to give an advance indication in the terms made by
Holman J. It is therefore particularly important to note the
guidance on practice offered by Sumner J. He found that the more
appropriate step for the paper to have taken would have been to
make a specific application in advance for the hearing to be in
public. On such an application it would not be expected that costs
would be awarded against the newspaper, provided that it presented
an arguable case. He also found that there was no duty on CAFCASS
or the parents to give notice to the newspaper of the hearing, even
when the case had previously attracted considerable publicity.

Statutory
Instruments

Protection
of Children and Vulnerable Adults and Care Standards Tribunal
(Amendment) Regulations 2003, SI 2003/626

These Regulations,
which came into force on 1 April 2003, amend the Protection of
Children and Vulnerable Adults and Care Standards Tribunal
Regulations 2002, which make provision about the proceedings of the
tribunal established by s 9 of the Protection of Children Act 1999.
The jurisdiction of the tribunal has been extended by the Care
Standards Act 2000. These Regulations amend the Tribunal
Regulations so as to make provision for the conduct of appeals
under s 68 of the 2000 Act, against decisions of the General Social
Care Council and the Care Council for Wales in respect of
registration under Part IV of the 2000 Act. They also deal with
appeals (‘suspension appeals’) under reg 8(1) of the
Child Minding and Day Care (Suspension of Registration) (England)
Regulations 2003, against decisions of Her Majesty’s Chief
Inspector of Schools in England to suspend the registration, under
Part XA of the Children Act 1989, of a person acting as a child
minder or providing day care; or to refuse to lift the suspension
of such registration. Part XA was inserted in the Children Act 1989
by s 79 of the Care Standards Act 2000.

Family
Proceedings Fees (Amendment) Order 2003, SI 2003/645

This Order amends
the Family Proceedings Fees Order 1999, increasing a number of the
fees with effect from 1 April 2003.

Supreme
Court Fees (Amendment) Order 2003, SI 2003/646

This Order amends
the Supreme Court Fees Order 1999, increasing a number of the fees
with effect from 1 April 2003.

County Court
Fees (Amendment) Order 2003, SI 2003/648

This Order amends
the County Court Fees Order 1999, increasing a number of the fees
with effect from 1 April 2003.

Community
Legal Service (Costs) (Amendment) Regulations 2003, SI
2003/649

These Regulations,
which came into force on 7 April 2003, provide for amendments to be
made to the Community Legal Service (Costs) Regulations 2000.
Regulation 3 changes the definition of a statement of resources to
allow a declaration to be made as to whether or not a party has
deliberately foregone or deprived himself of resources or
expectations. Regulation 4 provides for protection of a litigation
friend of an individual who receives funded services and who is
either a child or a patient. Regulation 5 provides that when making
a request for a hearing to determine the costs payable to him under
a costs order, the receiving party only has to make a statement of
resources when he has to show financial hardship for the purposes
of reg 5(3)(c) of the
Community Legal Service (Costs Protection) Regulations 2000 (order
for costs against the Legal Services Commission in a court of first
instance).

Community
Legal Service (Financial)(Amendment) Regulations 2003, SI
2003/650

These Regulations
amend the Community Legal Service (Financial) Regulations 2000 with
effect from 7 April 2003. Regulation 4 makes provision for persons
in receipt of a guarantee state pension credit under the State
Pension Credit Act 2002 to be taken as automatically satisfying the
financial eligibility determination under reg 4 of the 2000
Regulations. Regulations 5, 6 and 8 amend the income limits for the
purposes of determining eligibility for services provided by the
Legal Services Commission as part of the Community Legal Service.
Regulation 7 amends reg 5B of the 2000 Regulations so that the
Commission may waive eligibility limits in relation to specific
issues in multi-party actions. Regulation 9 amends reg 38(8) of
2000 Regulations so that as well as test cases, the Commission may
waive contributions in respect of specific issues in multi-party
actions. Regulation 10 makes an amendment to provide that where
Legal Help is given as part
of the family advice and information networks pilot, a funded
party’s liability is limited to the charge which would have
been incurred under the Legal Help remuneration, and is not
affected by any increased remuneration which may be applicable
under that pilot.

Community
Legal Service (Funding) (Amendment) Order 2003, SI
2003/651

This Order, which
came into force on 1 April 2003 amends the Community Legal Services
(Funding) Order 2000. Article 3 disapplies the Legal Help
remuneration rates for the family advice and information networks
pilot. Articles 4 and 5 set the remuneration rates payable in
respect of Crown Court and magistrates’ court cases under the
Proceeds of Crime Act 2002. Article 6 removes the date on which the
obligation of the court to carry out an assessment of costs in
legal aid cases comes to an end.

Working Tax
Credit (Entitlement and Maximum Rate) (Amendment) Regulations 2003,
SI 2003/701

These Regulations,
made under powers conferred by the Tax Credits Act 2002, amend the
Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002.
The Regulations came into effect on 6 April 2003. In addition to
dealing with matters of a clerical and drafting nature, they make
amendments to take account of the rewriting of the income tax
legislation on employment income by the Income Tax (Earnings and
Pensions) Act 2003 Regulation 4 makes minor amendments to reg 4 of
the principal Regulations, which deals with entitlement to the
basic element of working tax credit. Section 11(2) of the Act
provides that this element must be included in determining the
maximum rate at which a person may be entitled to working tax
credit. Regulations 5 to 7 exercise powers conferred by s 10 of the
Act, which provides that the entitlement of a claimant to working
tax credit is dependent on the claimant being in qualifying
remunerative work. Regulation 5 substitutes reg 5 of the principal
Regulations to deal in greater detail with time off in connection
with maternity, paternity and adoption; and reg 6 substitutes reg 6
of the principal Regulations to deal in greater detail with periods
of illness or incapacity for work.

Regulation 8
substitutes reg 9 of the principal Regulations, which deals with
entitlement to the disability element of working tax credit.
Section 11(3) of the Act provides that this element must be
included in determining the maximum rate at which a person may be
entitled to working tax credit. The principal difference between
the substituted regulation and its predecessor is that the link
between entitlement to this element and the date of the making of
the claim has been removed. The substituted reg 9 contains
references to an initial claim, to training for work and to a
period of training for work; but, since the substituted reg 9 is
long, the opportunity has been taken to place this additional
material in two new regulations. Regulation 9A accordingly deals
with initial claims, and reg 9B with training for work and with
periods of training for work.

Section 11(5) of
the Act provides that the maximum rate at which a person may be
entitled to working tax credit may involve such other elements as
may be prescribed; and reg 3(1) of the principal Regulations
prescribed a number of other elements, which were then dealt with
in greater detail in regs 10 to 18 of those Regulations.
Regulations 9 and 11 of these Regulations make detailed amendments
to the provisions relating to two of those elements: the 30-hour
element and the lone parent element respectively. Regulation 10
substitutes reg 11 of the principal Regulations, which is concerned
with the second adult element, to deal with drafting matters and to
make additional provision where one claimant is serving a custodial
sentence of more than twelve months.

Regulations 12 to
16 exercise powers conferred by s 11 of the Act, which is concerned
with the child care element of working tax credit. Regulation 12
amends reg 13 of the principal Regulations. Paragraphs (2) and (6)
correct drafting errors; para (3) extends entitlement to the
childcare element to couples where one partner is in qualifying
remunerative and the other is an in-patient in hospital or is in
prison; para (4) substitutes reg 13(3) and (4) of the principal
Regulations to deal with the wider ambit of reg 5 of those
Regulations and to deal with drafting changes; and para (5)
provides that a person is incapacitated for the purposes of what is
now para (1)(c)(i) of
that regulation when in receipt of short term incapacity benefit
payable at the hi