May 2003

    Bulletin No 68
    Butterworths Family and Child Law Bulletin – May 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.

    Nullity

    Application of duress
    principle to forced marriage overseas

    1

    P v R (Forced Marriage:
    Annulment: Procedure)
    [2003] 1 FLR 661, FD

    BFLS 1A[1550]

    P v R (Forced Marriage:
    Annulment: Procedure)
    [2003] 1 FLR 661, FD is an important
    indication of the prevailing judicial response to the validity of
    forced marriages. The petitioner had been forced against her will
    to marry a cousin while in Pakistan attending the funeral of her
    sister. She had expressed her refusal of consent to her mother, but
    was led to understand that she would receive severe and enduring
    punishment if she did not go through with the wedding. In addition,
    her brother threatened her with physical violence. At the ceremony
    she remained silent when her consent was sought, and on each of the
    three occasions that this was required, her mother forcibly pushed
    her head forward. The imam accepted this as evidence of agreement
    to the marriage. The petitioner eventually signed the marriage
    certificate, but Coleridge J found that she did so out of fear and
    without valid consent. He issued a decree nisi of nullity because
    she had not validly consented to the marriage, as required by s
    12(c) of the
    Matrimonial Causes Act 1973, by reason of duress. He adopted the
    test used by the Court of Appeal in Hirani v Hirani (1983) 4
    FLR 232, that duress denoted situations where a petitioner’s
    will had been overborne. Coleridge J also observed that in view of
    the stigma attached to divorce in the community from which the
    petitioner came, it was desirable for public funds to be made
    available to support nullity proceedings so that cases of forced
    marriages could be fully investigated in open court. He also
    suggested that it was appropriate for them to be heard in the High
    Court.

    Comment: This is a
    humane response to the distressing phenomenon of forced marriages,
    which needs to be distinguished from the acceptable practice of
    arranged marriage. However, there are a number of legal
    complexities that this decision does not address and which may
    require further attention in subsequent cases. First, the
    acceptance of the decision in Hirani as valid and
    binding, despite the fact that it was arguably decided without
    regard to the earlier Court of Appeal decision in Singh v Singh [1971] P
    226. As that decision should have bound the Court in Hirani this omission sheds
    doubt on the authority of the later decision. The difference
    between the decisions is probably best described in terms of the
    Singh test requiring
    an objective assessment of whether there was a genuine and
    reasonably held fear of threat to life, limb or liberty that
    destroyed the reality of consent. Hirani, on the other hand
    can be seen as more liberal and subjective—whether the
    petitioner’s will was overborne. The distinction was probably
    immaterial in the current case because there was in fact a threat
    of physical violence that would have led a reasonable person to be
    fearful. However, in cases where the pressure is more emotional and
    economic, then it may become necessary to choose between the two
    lines of case law. The second main issue that is not discussed in
    the judgment concerns the applicability of the English law of
    nullity to a marriage contracted overseas. Under the stricter
    objective test, lack of consent due to duress has been held to be a
    matter of essential validity of a marriage and therefore governed
    by English law where one spouse was domiciled in England (Szechter v Szechter [1970]
    3 All ER 905). However, that decision concerned a marriage
    contracted in order to escape state persecution. The international
    clash of cultures in which the issue of forced marriages contracted
    overseas arises is a context that may require greater tolerance to
    achieve international comity. It could be argued that the degree of
    choice implied by consent to marriage (as opposed to the fact that
    consent is required) is a matter for the law of the jurisdiction of
    celebration. Under the ‘overborne will’ approach it
    could be argued that English cultural expectations are being
    imposed on other jurisdictions because it depends on the subjective
    state of mind of the petitioner and could therefore be readily
    extended to mild resistance to arranged marriages if things go
    wrong. A more objective test, albeit less restricted than that
    adopted in Szechter
    and approved in Singh,
    might be better placed to capture the necessary distinction between
    ‘no consent’ cases and ‘hard choice’
    situations that seems to lie between the outcomes of the cases.

    Private law
    proceedings

    Condition as to place
    of residence attached

    2

    Re S (a child)
    (residence order: condition) (No 2)
    [2002] EWCA Civ
    1795, [2003] 1 FCR 138

    BFLS 3A[1746.1]

    Re S (a child) (residence
    order: condition) (No 2)
    [2002] EWCA Civ 1795, [2003] 1 FCR
    138 was a case in which exceptionally it was permissible to use a
    condition attached to a residence order to restrict the place in
    which the child was to live (made under the Children Act 1989, s
    11(7)). The child in question was nine and a half, with a learning
    disability that gave her a mental age of under 5 and limited
    tolerance to change. Her mother wished to move from London to
    Cornwall. However, this would lead to less frequent contact with
    her father, a situation that she would not be able to understand
    and that would make her feel rejected. Although the mother would
    suffer distress at not being permitted to move, the judge was
    entitled to reach the conclusion that this was outweighed by the
    needs of the child. The Court of Appeal should not interfere with
    that assessment.

    Comment: In part this
    is an application of the principle that appeal courts should be
    slow to interfere with the discretion of a trial judge. However, it
    also provides an authoritative interpretation of the decision in
    Re E [1997] 3 FCR 245
    as indicating that conditions about the place of residence should
    only be attached to a residence order in exceptional circumstances,
    but not (as some had suggested) that they could never be added
    unless there were concerns over the quality of parenting provided
    by the residential parent.

    Adoption

    Council liable for
    psychiatric damage caused by failure to inform potential adoptive
    parents about the nature of child’s problems

    3

    A & B v Essex
    County Council
    [2002] EWHC 2707, [2003] 1 FLR 615,
    QBD

    BFLS 3A[4170]

    In A & B v Essex County
    Council
    [2002] EWHC 2707, [2003] 1 FLR 615, QBD, Buckley J
    held that the council was liable to adoptive parents for the damage
    caused to them by the placement for adoption of a boy with serious
    behavioural difficulties when those problems were not disclosed to
    them. He found that there was a duty to disclose the nature of the
    boy’s difficulties and that had the council done so, the
    couple would not have accepted the child. However, there was no
    liability for damage caused after the true picture became apparent
    because the couple had chosen to go ahead with the adoption in
    possession of the full facts.

    Financial
    provision

    White v White applies to
    short marriages

    4

    Foster v
    Foster
    (2003) Times, 2 May, CA

    BFLS 4A[792]

    In Foster v Foster (2003)
    Times, 2 May the Court of Appeal considered the implications of White v White [2000] 3 FCR
    555 to short childless marriages. Hale LJ found that where a
    substantial surplus had been generated by the joint efforts of the
    spouses, the length of time taken to do so was immaterial. Where
    the parties had made an equal contribution to the marriage, then
    the assets should be shared equally. A number of the recognised
    reasons for departing from equality were irrelevant in this case;
    housing needs and the needs of children did not arise and there was
    no need for continuing responsibilities between the parties. The
    district judge had been right in his approach, which aimed to give
    back to the parties what they brought to the marriage at the value
    they held at that date. Subsequent acquisitions of property had
    been based on each contributing what they could as a joint
    project.

    Comment: Little
    detail appears in the Times report about the terms of the
    order.

    Enforcement

    Court did not have
    jurisdiction to commit

    5

    Re G (A
    Child) (Contempt: Committal)
    (2003) Times, 5 May,
    CA

    BFLS 3A[1911]

    In Re G (A Child) (Contempt:
    Committal)
    (2003) Times, 5 May, the Court of Appeal allowed a
    father’s appeal against a contempt order made in family
    proceedings whereby he had been sentenced to 14 days’
    imprisonment, suspended for six months. The father had placed
    details of the case, information that had identified the child and
    named volunteers at the contact centre, on the website of Families
    Need Fathers. In the course of the county court family proceedings
    in relation to contact, prohibited steps and non-molestation
    orders, the judge had found the father to be in contempt of court,
    although no proceedings for contempt had been initiated. He had
    made the order in summary form without formulating the basis of the
    alleged contempt in writing, and therefore without giving the
    father the opportunity of preparing his defence or of being
    represented. The father gave evidence and was cross-examined about
    the facts without being told that he was not obliged to give
    evidence for the purpose of the contempt finding. Consequently, the
    process had been flawed and substantially unfair. The contempt
    order was set aside.

    Comment: The Court of
    Appeal also noted that the power of a county court judge to commit
    for contempt was limited to cases of contempt in the face of the
    court (County Courts Act 1984, s 118) and disobedience to a court
    order (County Court Rules 1981, ord 29). The current case concerned
    neither of these types of contempt, so that under the Rules of
    Supreme Court r 1(2) (in the Civil Procedure Rules, Sch 1)
    committal for contempt could only have been made by a Queen’s
    Bench Divisional Court. Although para 1.1 of the Practice Direction (Family
    Proceedings: Committal)
    [2001] 1 WLR 1253 suggested a wider
    power, a practice direction could not override the rules and was
    therefore incorrect (although to be preferred as a matter of
    policy).

    Parenthood

    Application of
    special paternity rules in assisted conception

    6

    Re R (A Child)
    [2003] EWCA Civ 182, [2003] 1 FCR 481, [2003] 2 All ER 131

    BFLS 3A[318]

    In Re R (A Child) [2003] EWCA
    Civ 182, [2003] 1 FCR 481, [2003] 2 All ER 131, the Court of Appeal
    held that whether an unmarried man, who was not the genetic father
    of a child, was to be treated as the father of a child conceived by
    assisted conception under the Human Fertilisation and Embryology
    Act 1990, s 28(3) was to be considered as at the date of the when
    the embryo was placed in the woman. Consequently, the man’s
    claim to be treated as the father of the child failed. Although the
    couple had initially sought treatment together to enable the woman
    to become pregnant using IVF involving donated sperm, they had
    separated before the resulting embryo had been placed in the woman.
    At the time this procedure was carried out, it could not be said
    that the couple were receiving ‘treatment services’
    under the 1990 Act ‘together’ as the section required
    before statutory paternity was created.

    Comment: The Court of
    Appeal preferred the simple approach of focusing on the factual
    situation at the time that the embryo was placed in the woman to
    two alternatives that have been considered in the High Court. In
    U v W [1997] 1 FCR
    527, Wilson J had approached similar issues arising under s 28(2)
    (which applies to married couples) by suggesting that couples were
    being treated together in cases where the clinic was providing
    services in response to a joint request. The view of Hedley J in
    the High Court in the current case was that couples should be
    treated as receiving treatment together until either party or the
    clinic withdraws from the understanding that this is the case.
    These approaches were rejected by Hale LJ as they introduced issues
    of consent where the statute did not require it. She also
    considered the most appropriate procedure for dealing with cases
    such as this. She confirmed that a parentage declaration under the
    Family Law Act 1986, s 55A was the preferred mechanism, rather than
    dealing with the matter as a preliminary issue in an application
    for a parental responsibility order as had occurred here. Most
    importantly, declarations were binding on all persons so that, for
    example, re-registration of the birth would follow the making of
    such a declaration.

    Use of wrong sperm
    prevents husband establishing paternity

    7

    Leeds Teaching Hospital
    NHS Trust v A
    [2002] EWHC 259, [2003] 1 FCR 599,
    QBD

    BFLS 3A[306],
    [318]

    In Leeds Teaching Hospital NHS
    Trust v A
    [2002] EWHC 259, [2003] 1 FCR 599, QBD, Dame
    Elizabeth Butler-Sloss P considered the legal parentage of twins
    born after an error at a fertility clinic (further details appear
    in the report of an earlier stage in the litigation: Leeds Teaching Hospital NHS
    Trust v A & B
    [2003] 1 FLR 412). Although it was intended
    that the sperm of Mr A would be mixed with eggs from his wife, in
    fact the sperm of Mr B had been used instead. The question arose
    whether Mr A or Mr B was to be regarded by the law as the father of
    the twins born as a result of the treatment. The President held
    that Mr A would only be the father of the children if the Human
    Fertilisation and Embryology Act 1990, s 28 applied. Section 28(2)
    would have made Mr A the legal father of the twins if he consented
    to the placing in his wife of the embryos. However, he had
    consented to the placing in his wife of embryos created with his
    own sperm. He had not consented to the treatment that in fact
    occurred. Thus, s 28(2) did not apply. Section 28(3) applied where
    unmarried couples were being ‘treated together’. The
    President rejected the suggestion that it could also apply to those
    who were married, and was strengthened in this by noting that the
    same view had been assumed in Re R (A Child) [2003] EWCA
    Civ 182, [2003] 1 FCR 481 (see above). However, even if s 28(3) had
    applied, in the President’s opinion, the fundamental mistake
    as to the nature of the treatment meant that it was not
    ‘treatment together’ within the section because it was
    not the treatment expected. (a view consistent with the approach to
    a hypothetical example considered by Wilson J in U v W [1998] 1 FCR 526 at
    539). Consequently, Mr A could not rely on the special status rules
    arising in relating to assisted conception and by operation of the
    more general principles concerning parentage, the legal father of
    the twins was the genetic father, Mr B.

    Comment: It is
    important to remember that the ruling on paternity had no immediate
    practical consequences. It had already been accepted that the
    children would continue to live with their mother and her husband
    (Leeds Teaching Hospital
    NHS Trust v A & B
    [2003] 1 FLR 412). Any application for
    parental responsibility or contact by Mr B would be considered on
    its merits against the test of the best interests of the children.
    Mr B’s right to apply for such orders was established, but
    nothing more. There was no discussion in the case of the
    implications in terms of Mr B’s child support obligations,
    and presumably Mr B could consider whether the NHS Trust’s
    failure to exercise due care in the treatment would make them
    liable in negligence for the financial exposure that he will
    suffer. Further consideration may also be needed to establish the
    scope of the implications of the President’s ruling. She
    noted that counsel raised concerns about whether her approach would
    lead to minor errors in treatment excluding the operation of s
    28(2). The President’s view was that the error in this case
    was so fundamental as to vitiate the consent, but that more minor
    errors would not do so.

    Cloning covered by
    the Human Fertilisation and Embryology Act 1990

    8

    R (on the
    application of Quintavelle (on behalf of ProLife Alliance)) v
    Secretary of State for Health
    [2003] UKHL 13, [2003]
    1 FCR 577, [2003] 2 All ER 113

    BFLS 3A[301]

    In R (on the application of
    Quintavelle (on behalf of ProLife Alliance)) v Secretary of State
    for Health
    [2003] UKHL 13, [2003] 1 FCR 577, [2003] 2 All ER
    113, the House of Lords held that the cloning of human embryos by
    the technique of cell nuclear replacement (CNR) fell within the
    scope of the Human Fertilisation and Embryology Act 1990.
    Parliament had intended to bring all instances of the creation of
    human embryos outside of the human body within the regulatory
    powers of the Human Fertilisation and Embryology Authority and
    therefore an embryo created by CNR fell within the definition of
    ‘embryo’ despite that fact that it was not created by a
    process of fertilisation. The reference to fertilisation in the
    definition used in the Act was directed to the time at which an
    entity should be treated as an embryo and was not an integral part
    of the definition. Nor was the technique prohibited by s 3(3) of
    the 1990 Act, as it did not involve the substitution of the nucleus
    of an embryo because there was no ‘embryo’ until after
    the CNR process had been completed.

    Comment: The
    practical consequence of this decision is that the Human
    Fertilisation and Embryology Authority can now control, through the
    licensing process, the use of this technology. If an embryo
    resulting from the use of CNR is not an ‘embryo’ for
    the purposes of the 1990 Act, then there would be no legal
    constraints on their use. Equally, had the CNR technique fallen
    within s 3(3), then the Authority could not have licensed the
    technique.

    Public law
    proceedings

    Diplomatic immunity
    does not preclude care order

    9

    Re B (Care Proceedings:
    Diplomatic Immunity)
    [2002] EWHC (Fam)1751, [2003] 1
    FLR 241

    BFLS 3A[5501]

    In Re B (Care Proceedings:
    Diplomatic Immunity)
    [2002] EWHC (Fam) 1751, [2003] 1 FLR 241
    Butler-Sloss P held that diplomatic immunity, being limited to acts
    in official capacities, did not prevent a care order being made in
    respect of the child of a driver in the employment of a foreign
    embassy. The child in question had been found to have significant
    non-accidental injuries.

    Comment: The parents
    were not protected from the making of the order, but they would be
    protected from any enforcement proceedings. In certain
    circumstances, this might prevent it being in the interests of a
    child to make an order. Here, however, there did not need to be a
    confrontation. The President was clear that the need of the child
    was for rehabilitation with the parents and refused to permit an
    appeal, despite the intrinsic interest of the legal arguments,
    because it would be likely to undermine that rehabilitation process
    if energy were being put into legal proceedings.

    Evidence

    Parents are
    compellable witnesses in Children Act proceedings even at split
    hearings

    10

    Re Y & K (Minors) (Split
    hearing: evidence)
    (2003) Times, 18 April, CA

    BFLS 3A[4691]

    Re Y & K (Minors) (Split
    hearing: evidence)
    (2003) Times, 18 April, CA held that in
    civil proceedings, including split hearings under the Children Act
    1989, a competent witness was compellable. Consequently, counsel
    for the local authority had been wrong to concede in the county
    court that he could not insist on the parents giving evidence.

    Comment: Hale LJ
    observed that the only suggestion of the contrary view to that
    taken by the Court of Appeal was a ‘by the way’ remark
    by Thorpe LJ in Re B
    [2002] 2 FLR 1133. However, this remark (as Thorpe LJ confirmed,
    sitting in the current case) had been made without the point being
    argued. Specifically, the implications of the Children Act 1989, s
    98 had not been considered. That section provided immunity against
    self-incrimination and was the method used by the statute to
    balance the need to ensure evidence was fully presented to the
    court with the interests of parents accused of failing properly to
    look after their children. The error in the present case was to
    treat the proceedings as if they involved criminal accusations
    against the parents, where they would be entitled to stay silent.
    This error is easier to fall into in split hearings, where the
    question of how to proceed in the future to further the
    child’s best interests would not be examined, because they
    feel more like criminal proceedings. However, they remain civil
    matters subject to the usual rules on compellability. Section 98
    provides protection against the use of evidence in non-Children Act
    proceedings.

    Disclosure

    Consequence of
    conditional agreement to be interviewed

    11

    Re AB (Care
    Proceedings: Disclosure of Medical Evidence to
    Police)
    [2002] EWHC (Fam) 2198, [2003] 1 FLR 579

    BFLS 3A[4646]

    In Re AB (Care Proceedings:
    Disclosure of Medical Evidence to Police)
    [2002] EWHC (Fam)
    2198, [2003] 1 FLR 579 Wall J considered whether to disclose to the
    police a paediatrician’s report made in Children Act
    proceedings. The mother, acting on legal advice, had only agreed to
    be interviewed by the jointly appointed expert on the basis that
    the doctor would not reveal the contents of his interview outside
    the scope of those care proceedings. The doctor opposed the
    application from the police for disclosure of his report partly on
    the basis that he was obliged to do so because of the conditions
    agreed with the mother, and partly on the more general basis that
    disclosure undermined the ability of paediatricians to make full
    assessment of children’s situation because it discouraged
    frankness from the parents being interviewed. Wall J noted that
    there was a debate about the appropriateness of his discretion to
    disclose the report and how it should be exercised, but found that
    it was not the role of a High Court judge to seek to alter the
    general approach to be taken, given that the Court of Appeal had
    considered the matter. He rejected the view that Re L; Re V [1999] 1 FLR
    267 created a presumption in favour of disclosure (although he
    accepted that there needed to be good reasons to refuse
    disclosure). He found that on the facts there was no disadvantage
    to the child in disclosing the report (unlike the case of Re M [2001] 2 FLR 1316
    where disclosure was refused in order to ensure that rehabilitation
    was not impeded by the pressure of possible criminal
    investigations). Applying the criteria identified in by the Court
    of Appeal in Re C
    [1996] 2 FLR 725, the public interest lay in enabling the police to
    use the information discovered in the Children Act proceedings to
    inform their murder investigation. Disclosure was therefore
    ordered.

    Comment: Wall J gave
    consideration to the propriety of advising clients not to agree to
    be interviewed by an expert medical witness. He thought that such
    advice failed to give proper weight to the protection given by the
    Children Act 1989, s 98 to the use of information in criminal
    proceedings. However, he did not that it could be described as
    professionally improper to advise non-cooperation. However, it
    would rarely be wise, as the court would usually draw an adverse
    inference from the failure to co-operate. In the present case, it
    seemed that the lawyers’ advice had been given without regard
    to the protections offered by s 98, an important failing.

    Leave refused to
    disclose incest to police

    12

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