July 2003

    Bulletin No 70
    Butterworths Family and Child Law Bulletin – July 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.

    Divorce

    Mere fact of pending
    ancillary relief proceedings does not justify withholding decree
    absolute

    1

    Re G
    (Decree Absolute: Prejudice
    )
    [2002] EWHA 2834 (Fam),
    [2003] 1 FLR 870, FD

    BFLS 2A[691]

    Re G (Decree Absolute:
    Prejudice)
    [2002] EWHA 2834 (Fam), [2003] 1 FLR 870, FD,
    concerned whether a wife could prevent a husband from having a
    decree nisi of divorce made absolute on the basis that she would
    suffer prejudice in pending proceedings for ancillary relief.
    Bennett J held that the wife had not shown anything stronger than
    her own suspicion that the husband had not made full and frank
    disclosure of his assets. The husband had attended hearings as
    required and complied with all the court directions. The
    wife’s concerns were insufficient to justify refusing to make
    the decree absolute.

    Comment: Bennett J
    held that it was clear that the mere fact that ancillary relief
    provisions had yet to be heard was insufficient to justify delaying
    the making of the decree absolute. In Wickler v Wickler [1998] 2
    FLR 326 there had been much stronger evidence to support the
    wife’s claim that she would be prejudiced by the making of
    the decree absolute. The husband’s conduct in relation to the
    proceedings had been devious, and he had concealed his address as
    well as his assets. Bracewell J held that there was a real risk
    that he would lose interest in the ancillary relief proceedings
    once he was free to remarry. The prejudice to him in delaying his
    new marriage was slight but the prejudice to the wife’s
    ability to establish and receive her entitlement would be high if
    the decree absolute were granted.

    Change of
    forename

    Foster parents have
    no power to change forename

    2

    Re D, L & LA (Care:
    Change of Forename)
    [2003] 1 FLR 339, FD

    BFLS 3A[1216.2]; CHM
    1[236]

    In Re D, L & LA (Care: Change
    of Forename)
    [2003] 1 FLR 339, FD, Butler-Sloss P found that
    two sets of foster parents had been wrong to change the forenames
    of the children that they were caring for. They had no legal right
    to do so. However, in both cases the court would not order the
    names to be changed back. In the first case, the foster parents had
    subsequently adopted the child and therefore now did have the legal
    right to alter the child’s name. In the other case, the child
    suffered from Rett syndrome and had little or no understanding of
    her situation. While there was no evidence of harm having been
    caused by the change of name there was some possibility that a
    change back might cause her suffering. More importantly, the foster
    parents would have been ‘extremely upset’ and this
    would in itself put the consistency of the carers and their
    devotion at risk. In the disadvantaged circumstances of this
    particular child, this was a crucial factor.

    Comment: The
    importance of this judgment lies in the authority that it gives to
    advice from the Department of Heath to the effect that foster
    parents should be told from the outset that they will not have the
    power to alter the forenames of children in their care. The reality
    is that in many cases, including these, once the issue comes to
    court name changes are often a fait accompli that the court can do
    little but accept. However, it is still important for advisers to
    be able to be clear about the proper position.

    Medical treatment

    Panic attacks negate
    competence

    3

    Bolton Hospitals Trust
    v O
    [2002] EWHC 2871 (Fam), [2003] 1 FLR 824, FD

    BFLS 3A[877]

    Bolton Hospitals Trust v O
    [2002] EWHC 2871 (Fam), [2003] 1 FLR 824, FD, concerned a woman who
    wished to have a caesarean section but was unable to go through
    with the operation because of panic attacks when she approached the
    operating theatre. The court accepted medical evidence that the
    woman had a temporary incapacity and that the hospital should be
    authorised to carry out the procedure even against her wishes.
    Elizabeth Butler-Sloss P reached this conclusion after discussing
    the situation with the woman and satisfying herself that she wanted
    the operation, did not wish to risk the life of her baby or
    herself, and wished to be able to care for the baby and her other
    children. The woman wished the order to be made in order to protect
    herself against what she recognised as a psychological problem
    preventing her maintaining her choice at the crucial moment.

    Comment: This
    decision provides an illustration of the working through of the
    principles established by the Court of Appeal in the cases of Re MB [1997] 2 FLR 426 and
    St Georges Healthcare NHS
    Trust v S
    [1998] 2 FLR 728. Arrangements were made for the
    President to discuss the matter with the woman herself by telephone
    in the hearing of the parties. The woman was given the opportunity
    to be represented, although she declined it. It also shows the
    importance of alerting the medical experts who are asked to assess
    the situation to the advice of the Court of Appeal set out in the
    two leading cases. The first psychiatrist who assessed the woman
    wrongly believed that he was being asked to determine whether she
    should be ‘sectioned’ under the Mental H ealth Act
    1983. The second, having been given the court judgments to read,
    was able to ask the appropriate question and advise the court
    accordingly.

    Private law
    proceedings

    Significance of
    grandparents to be recognised in leave applications

    4

    Re J (leave to issue
    application for residence order)
    [2003] 1 FLR 114,
    CA

    BFLS 3A[1865]; CHM
    1[694.1]

    In Re J (leave to issue
    application for residence order)
    [2003] 1 FLR 114 the Court of
    Appeal allowed an appeal against the judge’s refusal to allow
    a child’s grandmother to apply for a residence order. The
    judge had asked himself whether she had a ‘good arguable
    case’ following the test suggested in Re M (Care: Contact:
    Grandmother’s Application for Leave)
    [1995] 2 FLR 86.
    However, Thorpe L J noted that this risked displacing application
    of the test set out in s 10(9) of the Children Act 1989. While Re M had been a useful
    decision in its time, there was now greater recognition of the
    importance of grandparents and what they had to offer.

    Comment: The
    implications of this judgment are that Re M should no longer be
    applied even in its original context, applications for leave to
    apply for contact to children in care under s 34 of the Children
    Act 1989. Thorpe LJ made two main points in relation to the
    authority of the earlier decision. First, that it had been
    superseded by better appreciated of the value of the contributions
    that grandparents can make. Second, that to introduce a filter of
    ‘serious arguable case’ was to preclude consideration
    of the test actually contained in the statute. In relation to
    contact and care proceedings, there is no specific statutory test
    but in relation to private law proceedings the statutory language
    should always be considered. Thorpe LJ noted that there is a
    laudable aim behind the Re
    M
    filter—to exclude hopeless cases—but it needs to
    be treated carefully.

    Financial
    provision

    Terms of prenuptial
    agreement should be implemented

    5

    K v K (Ancillary
    Relief: Prenuptial Agreement)
    [2003] 1 FLR 120,
    FD

    BFLS 4A[755]

    K v K (Ancillary Relief:
    Prenuptial Agreement)
    [2003] 1 FLR 120, FD concerned a very
    short, 14 month, marriage. The parties were wealthy. The husband
    was worth at least £25 million and the wife had assets of
    about £1 million (mostly held in trust). A prenuptial
    agreement had been drawn up with independent financial advice. This
    included advice to the wife that the amounts offered to her seemed
    low in the light of the husband’s apparent wealth. Despite
    this advice, the wife chose not to press for full disclosure of the
    husband’s assets. Although the wife had been pregnant at the
    time of the marriage and her parents had exerted pressure on the
    couple to marry before the birth of the child, this situation was
    known to all parties and did not undermine the freedom of their
    choice over the terms of the prenuptial agreement. It was pressure
    to marry rather than pressure to sign the agreement. The agreement
    was to cover the first five years after the wedding and provided
    that in the event of divorce, or separation for more than six
    months, the wife should receive £100,000 to be increased by
    10% per annum compound. It also expressly provided that the husband
    would make reasonable financial provision for any children
    including the provision of a home for both wife and children.
    Rodger Hayward Smith QC, sitting as a deputy High Court judge,
    decided that, in exercising his discretion under s 25 of the
    Matrimonial Causes Act 1973, the agreement was the determining
    factor in relation to capital provision. He made a lump sum order
    for £120,000 in accordance with that agreement. He then
    considered the proper level of periodical maintenance and the
    provision of housing for the child and made further orders in
    respect of these matters that turn essentially on the facts of the
    case rather than examination of the law.

    Comment: Rodger
    Hayward Smith QC distilled from the authorities on prenuptial
    agreements a list of key questions (see pp 131–132), which
    provide a helpful framework within which to consider the effect of
    prenuptial agreements. They relate first to the quality of the
    decision to sign: understanding, advice, undue pressure, and abuse
    of position. These questions would be relevant to most prenuptial
    agreement cases. They then examine issues of clarity and
    interpretation in terms that necessarily relate to the details of
    the particular agreement in question. Finally, they turn to
    consider the weight to be given to those terms. First, examining
    whether they would lead to injustice. It was found that there would
    be no injustice in holding the wife to the agreement in relation to
    capital provision and that it would in fact be unjust to the
    husband to ignore the agreement. In the light of this, the
    agreement was one of the circumstances to be taken into account
    under s 25 of the Matrimonial Causes Act 1973, indeed making the
    agreement was conduct that it would be inequitable to disregard
    (under s 25(2)(g)). Rodger Hayward Smith QC was reassured by the
    decision in S v S
    [1997] 2 FLR 100 and M v
    M
    [2002] 1 FLR 654 that he was not breaking new ground by
    taking the agreement into account. However, it should be noted that
    neither of these earlier cases involved accepting the precise terms
    of the prenuptial agreement as happened in this case. In the
    earlier decisions, the agreement was seen as a relevant factor but
    not determinative of the order to be made. In M v M in particular, it
    was difficult to see what difference the reference to the terms of
    the agreement actually made.

    Fairness more
    important than clean break

    6

    F v F
    (Clean Break: Balance of Fairness)
    [2003] 1 FLR 847,
    FD

    BFLS 4A[800]

    In F v F (Clean Break: Balance of
    Fairness)
    [2003] 1 FLR 847, FD Singer J considered how
    equality could be achieved where there was considerable illiquidity
    of assets. He found that the wife should be provided with an annual
    income of £75,000 (the husband’s was assessed at
    approximately £450,000). This would require an increase in the
    Duxbury fund of some £550,000 over and above the
    husband’s proposal. However, the bulk of the husband’s
    assets comprised shares in his company, worth approximately
    £2.8 million but not reasonably realisable. Singer J held that
    a clean break in these circumstances would not be feasible, nor
    appropriate, nor just. The statutory requirement to consider a
    clean break did not override the obligation to achieve a fair
    outcome and in this case there was nothing to displace the fairness
    of an approximately equal division as encouraged by the House of
    Lords in White v White
    [2001] 1 All ER 1. Counsel were invited to draw up a form of order
    to include periodical payments to the wife at £75,000 pa. In
    fact, after the handing down of the judgment and before the hearing
    to finalise the order, the husband offered the wife lump sums to
    the order of some £1 million and in the event a clean break
    order was made.

    Comment: In essence,
    Singer J was asked to determine whether the statutory pressure
    towards clean break settlements took precedence over the
    requirement to achieve a fair outcome as interpreted in White v White and Cowan v Cowan [2001] 2 FLR
    192. Given the apparent illiquidity of the husband’s assets
    it did not seem that it was possible to achieve both a clean break
    and an equal outcome (the requirement of fairness in this case).
    Faced with such a choice, ensuring substantive fairness was the
    courts principal responsibility. In fact, it seems that the
    husband’s difficulties in raising the resources required to
    finance a clean break were less significant than claimed. This
    could be seen as a vindication of Singer J’s refusal to
    accept that liquidity problems were a legitimate reason to depart
    from the pursuit of equality or fairness.

    International child
    abduction

    Sharia law not
    incompatible with welfare

    7

    B v El-B (Abduction: Sharia
    Law: Welfare of Child)
    [2003] 1 FLR 811, FD

    BFLS 5A[2277]; CHM
    2[33.1]

    The key issue in B v El-B (Abduction: Sharia
    Law: Welfare of Child)
    [2003] 1 FLR 811, FD was whether the
    approach of Sharia law to the custody of children was to be
    respected by English courts in international child abduction cases
    or to be considered as potentially in conflict with the fundamental
    principle that the child’s welfare should be protected. Under
    the Hanafi rules of Sharia law, as codified in Lebanon, transfer of
    legal custody of children from mother to father takes place at the
    ages of 7 (for boys) and 9 (for girls). There was limited scope for
    the extension of maternal custody by the courts in order to protect
    the child from serious harm. The case concerned a Lebanese mother
    who had brought the children to England in breach of an order of
    the Lebanese court that she and the children should remain in
    Lebanon. As Lebanon is not a signatory to the Hague Convention on
    the Civil Aspects of International Child Abduction, the case was
    brought under the wardship jurisdiction. Peter Hughes QC, sitting
    as a deputy High Court judge, rejected the contention that the
    court should regard the ‘arbitrary’ transfer of custody
    at these specific ages as inimical to the welfare of the child. The
    welfare of the child had to be considered in relation to the
    circumstances. Here, both parents were devout Muslims and this was
    the cultural background of the children. It would be wrong to
    suggest that the application of Muslim law was inappropriate. The
    mother’s assertion that she would be denied justice in
    Lebanon was unsupported by evidence. There was no substance in the
    suggestion that Sharia law was not to be regarded as child-centred.
    The apparent suggestions in Re JA [1998] 1 FLR 231
    that welfare was not the test in Sharia law needed to be taken in
    the context of a case where the family had lived in England for
    substantial periods and where there was expert evidence of harm to
    the mother and child if return to the United Arab Emirates was
    ordered. A careful review of the welfare issues might lead to a
    refusal to return an abducted child in certain cases, but it was
    not an outright rejection of Sharia law (see Re E [1999] 2 FLR 642,
    CA).

    Comment: The court
    was particularly critical of advice given in London to the mother
    that a court would not look adversely on her abducting the children
    to England. While the wardship jurisdiction is concerned with the
    welfare of the ward, it remains the case (even without the
    application of the Hague Convention) that the courts take the view
    that removing a child abroad is rarely in its interests. Thus,
    return to the child’s ‘home’ jurisdiction will
    usually be regarded as in the interests of the child unless
    specific issues point in another direction. Here, the wife could
    point to nothing other than the fact that she felt that her chances
    of winning a court case in Lebanon were lower than under English
    law. To accede to her application would have been to encourage
    forum shopping, which would create a situation not generally
    conducive to protecting children’s welfare. The decision
    indicates that attacks on the substance of Sharia law are unlikely
    to persuade courts that abducted children should not be returned to
    their country of origin. Specific factors that undermine a
    parent’s ability to secure a fair hearing, such as absence of
    standing or representation, will probably be more significant. So
    too may evidence that the parties do not share an Islamic
    culture.

    Putative
    father’s inchoate custody rights provide basis for Hague
    Convention order

    8

    Re F (Abduction: unmarried
    father: sole carer)
    [2002] EWHC 2896 (Fam), [2003] 1
    FLR 839, FD

    BFLS 5A[2136]; CHM
    2[51.1]

    In Re F (Abduction: unmarried
    father: sole carer)
    [2002] EWHC 2896 (Fam), [2003] 1 FLR 839,
    FD, Elizabeth Butler-Sloss P held that an unmarried putative father
    was entitled to use the Hague Convention on the Civil Aspects of
    International Child Abduction to secure the return of an abducted
    child because he had been his sole carer. Despite the uncertainty
    that the mother had raised over the boy’s paternity, the man
    had inchoate rights that would be recognised as enforceable under
    the Convention because (a) he had been the exclusive carer and (b)
    the court would have been likely to uphold his application for a
    residence order under the Children Act 1989. These limitations on
    the situations in which ‘inchoate rights of custody’
    could be recognised would ensure that the concept would not be
    extended too far. In the President’s view, she was applying
    the underlying principle behind the decision of the Court of Appeal
    in Re B [1994] 2 FLR
    249. Although that decision concerned an unmarried genetic father,
    the principle behind it was not the blood tie but the situation of
    exclusivity of care.

    Comment: If the
    principle behind the Hague Convention is to maintain stability of
    care for children, then it makes sense to concentrate on the social
    reality of the child’s position rather than accidents of
    formal status. In most cases both parents have some role in the
    child’s upbringing and the position of unmarried fathers
    without parental responsibility has been examined in a number of
    cases. This case was required to consider whether it was necessary
    to resolve paternity disputes before an order under the Child
    Abduction and Custody Act 1985 could be made. If proof of paternity
    were held to be essential, a mother who abducted a child could
    frustrate the working of the Convention by raising questions over
    the putative father’s status. This would not affect marriage
    cases because the presumption of paternity would assist the husband
    until displaced and cases could be disposed of on the basis that
    proof had not yet been raised to rebut the presumption. No such
    presumption could assist unmarried fathers. This latest decision
    ensures that where there has been continuity of exclusive care from
    the putative unmarried father, then the mother cannot force the
    court to await the results of paternity tests before returning a
    child to his familiar home.

    Human rights

    CICB does not provide
    sufficient redress to satisfy ECHR rights

    9

    E & Others v UK
    (
    App 33218/96) [2003] 1 FLR 348, ECHR

    BFLS 5A[4156]

    In E & Others v UK (App
    33218/96) [2003] 1 FLR 348 the European Court of Human Rights held
    that the Criminal Injuries Compensation Board was not to be
    regarded as providing a mechanism for determining the liability of
    social services for negligence in relation to their dealings with
    children who were the victims of abuse. This was a case in which it
    was held that the local authority should have known that the
    children were continuing to be put at risk by the presence of their
    step-father despite a probation order with a condition that he did
    not return to their home. At the time, the House of Lords had
    indicated that public policy precluded litigation against the local
    authority (X v Bedfordshire
    CC
    [1995] 3 All ER 353). The Criminal Injuries Compensation
    Board was therefore the only avenue for redress, but it was not
    sufficient to meet the requirements of Art 13 of the European
    Convention on Human Rights (right to an effective remedy).

    Comment: Subsequent
    domestic litigation has demonstrated that there is now scope to sue
    social services departments for negligence, see W v Essex CC [2000] 2 All
    ER 237 and Barrett v LB of
    Enfield
    [2001] 2 AC 550, so this aspect of the case has been
    superseded. However, the status of the Criminal Injuries
    Compensation Board may continue to be important, especially in
    cases of domestic violence.

    Child support

    Child support for
    children at boarding school

    10

    C v Secretary of State
    for Work and Pensions and B
    [2002] EWCA Civ 1854,
    [2003] 2 FCR 325, [2003] 1 FLR 829

    BFLS 4A[432]; CHM
    3[63]

    In C v Secretary of State for Work
    and Pensions and B
    [2002] EWCA Civ 1854, [2003] 2 FCR 325,
    [2003] 1 FLR 829, the Court of Appeal considered how the status of
    ‘absent parent’ under the Child Support Act 1991 should
    be determined in a case in which the child in question attended
    boarding school. The Child Support Agency had been wrong to decide
    that a father was an absent parent without any share in the
    child’s care (and therefore liable for a full maintenance
    assessment) by reference to the fact that he had been refused a
    shared residence order. The proper test was what arrangements for
    day-to-day care would have been made if the boy were not attending
    boarding school. In this case, the obvious answer would seem to be
    that the previous arrangements (in which the father had a share in
    day-to-day care sufficient to reduce the maintenance assessment
    against him) would be likely to have continued. The decision should
    be remitted to the child support officer for reconsideration.

    Comment: This
    decision deals with a very specific but important issue about
    boarding schools. However, it also makes a more general point about
    the status of residence orders in child support assessments. Potter
    LJ held that the child support system was self contained and the
    tests that it contained had to be specifically applied. It was
    wrong to rely on determinations in other proceedings, save in so
    far as it was reasonable to expect that court orders would be
    implemented so that their provisions might give an indication of
    the care being given.

    Statutory
    Instruments

    The Adoption Support
    Services (Local Authorities) (England) Regulations 2003, SI
    2003/1348

    These Regulations
    make provision for local authorities in England to provide adoption
    support services as part of the service maintained by them under s
    1(1) of the Adoption Act 1976. They take effect on 31 October 2003.
    Adoption support services are defined by s 2(6) of the Adoption and
    Children Act 2002 as counselling, advice and information, and other
    services prescribed by regulations, in relation to adoption. Such
    services are prescribed in reg 2(1) of these Regulations, and
    include financial support (reg 2(1)(a)). Regulation 3 specifies the
    persons to whom financial support may be paid, and the
    circumstances in which it may be paid.

    Each local authority
    is required to appoint an adoption support services adviser to give
    advice and information to persons who may be affected by the
    adoption of a child (reg 4). Regulation 5 specifies the persons who
    are entitled to an assessment of their needs for adoption support
    services. Regulation 6 specifies the procedure for assessment, and
    reg 7 provides for the determination of financial support. After
    carrying out an assessment the local authority must give notice
    under reg 8 as to any adoption support services that are proposed
    to be provided, and as to the period within which representations
    may be made about the proposed decision. They must then give notice
    of their decision in a

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