October 2003

Bulletin No 73
Butterworths Family and Child Law Bulletin – October 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

Divorce petitions
rejected as unfounded

Bhaiji v Chauhan, Queen’s
Proctor Intervening (Divorce: Marriages used for Immigration
Purposes) [2003] 2 FLR 485, FD

BFLS 1A[2002]

Bhaiji v Chauhan, Queen’s
Proctor Intervening (Divorce: Marriages used for Immigration
Purposes) [2003] 2 FLR 485, FD concerned five cases, heard
together, in which divorce petitions had been brought on the basis
that the respondents had behaved in such a way as to make it
unreasonable to expect the petitioners to continue to live with
them (under the MCA 1973, s 1(2)(b)). Although the
respondents did not seek to defend the cases, the Queen’s
Proctor intervened, contending that the petitioners had presented
false cases with the connivance of the respondents. The allegation
was that the marriages had been used to secure indefinite leave to
remain in the UK for the five spouses, who were Indian citizens.
Such indefinite leave had been granted after declarations that the
marriage subsisted and that the spouses intended to live
permanently with each other. Suspicion had been raised by the speed
with which breakdown was claimed to have occurred after indefinite
leave had been granted, the fact that all five petitions had been
presented to Bolton County Court (even though three of the couples
had no obvious connection with that place), the fact that the
petitioners had acted in person without the involvement of
solicitors, and the similarities in the particulars alleged of
unreasonable behaviour (which seem to have been prepared on the
same word processor and used identical phraseology). On an oral
hearing to examine the evidence, Wilson J found that the
allegations were not established, and in a number of respects were
clearly false. Four of the cases were dismissed, and permission was
given for the remaining case to be withdrawn.

Comment: The judge
ordered for the transcript of his judgment to be sent to the
immigration authorities to alert them to the potential for abuse of
the relatively easy English divorce procedures to use marriages to
secure leave to reside. The case also exposes a number of issues
for legal practitioners. Although none of the respondents was found
to have connived at the presentation of a false petition,
considerable (although unsuccessful) efforts were put into trying
to identify the person who had drafted the petitioners. A
professional lawyer who was found to have assisted in bringing a
knowingly unfounded case can therefore expect to find themselves in
difficulties with the court and their professional body. Secondly,
the possible abuse of the divorce process was picked up by diligent
court officials noticing the similarity of the petitions. The
oddities of the cases only became apparent when they were carefully
compared. It is difficult, therefore, to be confident that isolated
cases of such marriage and divorce arrangements, made for
immigration purposes, would be detected. This fact highlights the
unsatisfactory nature of the ‘special procedure’ under
which the substantive law’s supposed requirement of evidence
of irretrievable breakdown is watered down by the limited scope for
close scrutiny. Nevertheless, the fact that the irregularities were
detected indicates that the days of oral hearings of divorce
petitions are not entirely over.

Disclosure

Guardian entitled to
see documents on LA concerns over foster father

Re J (Care Proceedings:
Disclosure) [2003] EWHC 976 (Fam), [2003] 2 FLR
522

BFLS 3A[4677]; CHM
1[1270]

Re J (Care Proceedings:
Disclosure) [2003] EWHC 976 (Fam), [2003] 2 FLR 522 was a case
in which the local authority sought to conceal information from the
child’s guardian and her mother. The child had been removed
from the foster carers after the foster father had been arrested in
connection with investigations into child pornography. The local
authority had obtained the mother’s consent to a medical
examination of the child without revealing that this examination
was to ascertain whether he had been sexually abused. The
explanation given for the change of foster placement to the mother
and children’s guardian was that it was for
‘personal’ reasons. Wall J held that the guardian was
entitled to see the documents held by the local authority that
revealed the true course of events as they were documents relating
to the child within s 42 of the Children Act 1989. By virtue of s
42(3), this right overrode any claim of public interest
immunity.

Comment: Wall J was
highly critical of the conduct of the local authority in a number
of respects. They had sought to avoid the mother knowing about the
medical examination at all through a ‘grossly unprofessional
and wholly improper’ stratagem of ringing her mobile but
planning to put the phone down after only two rings. They wrongly
gave ‘personal reasons’ as the reason for the movement
of the children to a new placement. The guardian wished to
understand the reasons for the termination of the foster placement,
the content of the strategy meeting held to discuss the way
forward, and the outcome of the medical examination. These were
clearly issues that could relate to the child’s welfare and
without knowing the details the guardian could not properly carry
out his task. Although the information was clearly sensitive and
needed to be kept confidential, Wall J pointed out that it would
remain confidential in the hands of the guardian and subject to the
control of the court within the proceedings. This point had been
established in Re R
[2000] 3 FCR 721 in the context of reviews under Part 8 of Working Together. The need
for social workers to place all relevant information before the
court had been also been stressed in L v L [1989] 2 FLR 12.

Lifelong anonymity
in exceptional case based on EHCR, Art 8

X (a woman formerly know as
Mary Bell) v O’Brien [2003] EWHC 1101 (QB),
[2003] 2 FCR 686

BFLS 3A[6042]; CHM
1[891]

In X (a woman formerly know as
Mary Bell) v O’Brien [2003] EWHC 1101 (QB), [2003] 2 FCR
686 Dame Elizabeth Butler-Sloss P issued an injunction against the
whole world giving lifelong anonymity to the adult woman formerly
known as Mary Bell and also to her daughter. Mary Bell had been
convicted of manslaughter by reason of diminished responsibility in
1968 when she was aged 11. She had killed two small children and
the trial revealed that she had herself suffered appalling abuse.
Over the years since her conviction there had been considerable
public interest, rekindled in 1993 after comparisons were made
between her case and that of the murder of Jamie Bulger. On her
release from prison in 1980 she had been provided with a new
identity and established a more normal life including giving birth
to a child. On five occasions, she and her daughter had been forced
to relocate when her identify became known. On one of those
occasions, her four year old daughter was forced out of school
because of her mother’s identity. The President found that
her past identity remained confidential and that this
confidentiality could be protected by an injunction in the
exceptional circumstances, taking into account her rights under Art
8 of the ECHR. The exceptional circumstances were summarised as
being (1) the young age at which the offences were committed, (2)
the finding of diminished responsibility on solid evidence of
childhood abuse, (3) the length of time since the offences were
committed, (4) the need for rehabilitation and redemption of the
offender, (5) the effect on her rehabilitation of the publicity and
semi-iconic status attributed to her, (6) the serious risk of
potential harassment, vilification, ostracism, (7) her precarious
mental state (a chronic affective disorder manifested by anxiety
and depression). The President also noted that X was required to be
in regular contact with probation services and there was no danger
of her reoffending. She then balanced these factors against the
need to promote press freedom, as required by s 12 of the Human
Rights Act 1998. She noted that protection was sought only in
respect of the present identity and location of the applicants and
that this permitted press discussion of the issues surrounding her
case. She noted also that the daughter’s privacy was
intertwined with that of her mother and could not be severed from
it.

Comment: There was no
opposition to the application for this injunction from either the
newspapers represented before the court or from the Attorney
General. The Official Solicitor also supported the making of the
order. The principle that an injunction could be made contra mundum binding all
persons had been established in Venables v MGN
Ltd [2002] 1 FCR 333 and
was not challenged in this case. However, the Venables case was regarded
as distinguishable by the President in that it turned on the cogent
evidence of serious and specific threats to the murderers of Jamie
Bulger that engaged their right to protection under Art 2 of the
ECHR (right to life). To found injunctions on Art 8 is potentially
of far wider significance. However, the President stressed the
exceptional nature of the case and was clear that this was not a
foundation for extending protection to notorious serious criminals.
This would inhibit the legitimate public interest in knowing the
identity of those who commit serious crimes and the success or
otherwise of rehabilitative processes. In X’s case, her
identity remained secret under previous judicial protection, but
this had not prevented this legitimate public interest being met
through widespread discussion.

Financial
provision

Fair division
required wife to have influence as shareholder, not merely
financial stake

C v C (Variation of
post-nuptial settlement: company shares) [2003] EWHC
1222 (Fam), [2003] 2 FLR 493

BFLS 4A[981]

C v C (Variation of
post-nuptial settlement: company shares) [2003] EWHC 1222
(Fam), [2003] 2 FLR 493 concerned how to distribute assets on
divorce which included shares held under a Cayman Islands trust.
Coleridge J considered whether it would be more appropriate to vary
the trust to transfer shares from the trust to the wife or to give
her monetary compensation in lieu of such a transfer through a
deferred lump sum or something similar. The wife sought a transfer
of the shares because the voting rights that they would bring would
give her influence in the running of the company that the spouses
had set up to carry out pharmaceutical research. She also sought to
be independent of the husband as soon as possible and expected to
take up work as a university lecturer by the end of the year. It
was hoped that the company would increase in worth, perhaps
returning to its value of some US$11m a few years previously, and
then be sold within about 5 years. Taken at current value, the
husband’s assets totalled some £480,000 and the
wife’s £121,000. However, the nature of those assets had
to be taken into consideration, as did the fact that the
husband’s earning potential was greater than the
wife’s. Coleridge J suggested that the circumstances
indicated that there needed to be a compelling reason before the
wife would be denied the opportunity to play a role in the company
through the influence that a shareholding would bring. She had
previously played a role in the success of the company and wished
to continue to do so in the future. She also had reason to be
concerned that the husband might have an adverse effect on its
fortunes due to a poor relationship with the current directors. She
had made a sensible case for holding shares, which the court should
in fairness concede to. Turning to quantification, Coleridge J
determined that the matrimonial home should be transferred to the
wife, subject to the mortgage (total equity £168,745). This
met the need of the couple’s child for a home (the first
consideration under s 25 of the Matrimonial Causes Act 1973 being
her welfare). It also constituted the most secure asset. The wife
should also receive 30% of the husband’s shares in the
company. On current valuations, that constituted a broadly equal
division. The wife would receive periodical payments at a nominal
level from January 2004 onwards. Coleridge J noted that if the
company was sold for a significantly higher value, then the court
could make further adjustment though varying the wife’s
entitlement to periodical payments and then capitalising them to
achieve a clean break settlement.

Comment: Coleridge J
noted that the decision of White v White [2001] 1 All
ER 1 had made the court’s task easier by discouraging the
parties from raising evidence about the respective value of their
contributions to the family wealth. There was no disagreement about
the fact that the court should seek to make a broadly equal
division of the assets, the question concerned how to achieve such
a division given the nature of the assets available. The judge
placed considerable weight on the wife’s previous involvement
with, and planned future involvement in, the company. He noted that
wives in her position sometimes step away from any involvement in
the future running of the company. For them, there was no
particular advantage in owning shares rather than having a stake in
the eventual sale. Where the issue was purely the financial one of
benefiting from future profits, shareholding would not be
necessary. Some form of charge or variation of the trust to ensure
that the wife remained a beneficiary might suffice. Here, however,
there were good reasons for enabling the wife to be able to
influence the conduct of the company. This will not always be easy
to achieve, especially where assets are held abroad. Coleridge J
noted that the trustees to the Cayman Island settlement were not
parties to the case, and that enforcement of the order could prove
expensive. However, he was satisfied that the husband was likely to
co-operate with any order made. He also noted that where the
underlying assets held under the trust were shares in an English
company (as here) there were powers available to the court to
encourage compliance.

International child
abduction

Wrong to find
situation intolerable when authorities had not been given
opportunity to provide family protection

Re H (children:
abduction) [2003] EWCA 355, [2003] 2 FCR 151, [2003]
2 FLR 71

BFLS 5A[2177]; CHM
2[67]

In Re H (children: abduction)
[2003] EWCA 355, [2003] 2 FCR 151, [2003] 2 FLR 71 the Court of
Appeal found that the judge had been wrong to find that abducted
children would be placed in an intolerable position, within the
terms of Art 13(b) of
the Hague Convention on the Civil Aspects of International Child
Abduction, if returned to Belgium. The Court of Appeal agreed with
the judge that the children’s position in the family
indicated grave risk of harm. However, they did not agree that
there was reason to believe that the Belgian authorities could not
protect the children. The mother had not sought any help from the
Belgian child protection authorities or from the Belgian courts
(although she had called the police on a number of occasions). It
could not be assumed that the Belgian authorities would be unable
to manage the situation. As the intolerable situation had to relate
to returning to the jurisdiction, not to the family situation that
previously existed, the possibility that the situation could be
managed prevented the requirement of Art 13(b) being established. The
case was remitted to a High Court judge for a directions hearing to
put into place arrangements for the children’s return.

Comment: The mother
gave an account of persistent domestic violence directed against
her and against one of the children. This account was corroborated
by the children’s conversations with the child and family
reporter, but contradicted by the husband. Belgian child protection
agencies were involved with the family after a referral from the
children’s school but the mother had not taken any steps to
seek protection. The children’s abduction had precluded
further investigations. In these circumstances, it was
inappropriate to assume that there was no adequate protection, as
the Belgian authorities had not had the opportunity to intervene.
As the question under the Hague Convention is whether the children
will be safe in the jurisdiction, not in the family circumstances
from which they had been removed, then this was a crucial factor in
the case.

Human rights

Failure to enforce
order for return of abducted child breached ECHR, Art 8

Sylvester v
Austria (App Nos 36812/97 & 40104/98) [2003] 2
FCR 128, [2003] 2 FLR 210, ECHR

BFLS 5A[4182]

Sylvester v Austria (App
Nos 36812/97 & 40104/98) [2003] 2 FCR 128, [2003] 2 FLR 210,
ECHR concerned the non-enforcement by the Austrian courts of an
order for the return of an abducted child under the Hague
Convention. Following unsuccessful attempts to enforce the order
that the child be returned to the father in the USA, the Austrian
Supreme Court took the view that the changed circumstances now
meant that it was inappropriate to force the child’s return.
It noted in particular the impact of the lack of contact with the
father. The European Court of Human Rights found that the delays
were the responsibility of the Austrian government. It had been at
fault in failing to secure expert reports promptly and failing to
take steps to locate the mother when she changed her whereabouts in
order to defy the execution of the return order. This constituted a
breach of Art 8 of the European Convention on Human Rights in
respect of the rights of both the father and the child. Damages
were awarded.

Comment: While
concerned with international child abduction, where speed is an
important principle, this case will have wider implications.
Examples would probably include child protection cases where delays
in appointing children’s guardians or securing expert reports
reduce the prospects of rehabilitation of children into their
families. It may also be relevant in relation to cases where
contact is not enforced. States are obliged to take reasonable
steps to enforce orders (Ignaccolo-Zenide v Romania
[2000] ECHR 31679/96) and failure to do so would open the way to
compensation claims.

ECHR should not
reopen welfare judgments on facts

Sahin v Germany; Sommerfield v
Germany [2003] 2 FCR 619 & 647, [2003] 2 FLR 671,
ECHR

BFLS 5A[4182]

In Sahin v Germany; Sommerfield v
Germany [2003] 2 FCR 619 & 647, [2003] 2 FLR 671 the Grand
Chamber of the ECHR rejected the approach initially taken by the
ECHR in criticising the assessment of a contact dispute by the
German courts. This had involved close scrutiny of the evidence
relied upon by the German courts and rejecting their conclusions
despite the fact that there was evidence on which it could
reasonably be based (see [2002] 3 FCR 321). This approach to the
requirements of Art 8 failed to give due respect for the margin of
appreciation of states. However, in relation to Art 14 the Grand
Chamber upheld the finding of breach, as the German law treated
unmarried fathers without establishing sufficient
justification.

Comment: This
decision in many ways takes a similar stance to that developed by
the House of Lords to family law appeals in G v G [1985] 2 All ER 545.
It draws a distinction between issues of fact, where the court
should be very reluctant to interfere with the assessments made by
the trial court, and those of law. Here, the German courts had made
a judgment of what was in the interests of the child after a proper
procedure and with reasonable supporting evidence. To enable such a
decision on the evidence to be reopened would have the effect of
encouraging the use of the ECHR as a regular avenue of appeal.
However, in respect of discrimination against unmarried fathers the
question related to the legal rules to be applied and was an
appropriate matter for the ECHR to consider.

Statutes

Human Fertilisation and
Embryology (Deceased Fathers) Act 2003

This Act addresses
the situation of mothers who have conceived children after the
death of their husbands or partners, using assisted conception
techniques (commonly called fertility treatment). These women have
been unable to register their deceased husband or partner as the
father on the child’s birth certificate as a result of the
provisions of s 28(6) of the Human Fertilisation and Embryology Act
1990. In proceedings brought by children conceived in these
circumstances, the High Court declared in March 2003 that this
restriction was incompatible with the claimants’ right under
Art 8 of the European Convention of Human Rights and/or Art 8 read
in conjunction with Art 14. The Act also implements the
recommendation of Professor Sheila McLean, Professor of Law and
Ethics in Medicine at the University of Glasgow, made in her report
‘Review of the Common Law Provisions relating to the Removal
of Gametes and of the Consent Provisions of the Human Fertilisation
and Embryology Act 1990’ (July 1998) that children born in
these circumstances should have a symbolic acknowledgement of their
father on their birth certificates.

The Act allows a man
to be registered as the father of a child conceived after his death
using his sperm or using an embryo created with his sperm before
his death. This registration will not confer upon the child any
legal status or rights as a consequence of that registration. This
Act also enables a man to be registered as the father of a child
conceived after his death using an embryo created using donor sperm
before his death, again, without conferring upon the child any
legal status or rights as a consequence of that registration.

Statutory
Instruments

The Housing Benefit (General)
(Local Housing Allowance) Amendment Regulations 2003, SI
2003/2399

These Regulations
amend the Housing Benefit (General) Regulations 1987, the Housing
Benefit (General) Amendment Regulations 1995 and the Housing
Benefit (Decisions and Appeals) Regulations 2001 and provide for
new arrangements for determining eligible housing costs for the
purposes of claims for housing benefit made by persons living in
the areas of certain local authorities (‘pathfinder
authorities’). The pathfinder authorities are Blackpool,
Brighton and Hove, Edinburgh, Conwy, Coventry, Leeds, Lewisham,
North East Lincolnshire, and Teignbridge. Different commencement
dates apply to each of these authorities.

Regulation 2 inserts
new definitions. Regulation 3 amends reg 8 of the Regulations to
provide for the calculation of maximum housing benefit in cases
where the eligible rent has been determined in accordance with
regulations 10 and 11A. Regulation 4 inserts reg 8A, which provides
for the maximum housing benefit to expire where it has not been
updated. Regulation 5 amends reg 10 of the Regulations to provide
for the determination and application of an eligible rent where a
pathfinder authority has been required to determine a maximum rent
(standard local rate) by virtue of reg 11A. Regulation 6 inserts
regs 11A and 11B. Regulation 11A provides for the circumstances in
which a pathfinder authority must determine a maximum rent
(standard local rate), the way it is to be determined, and for the
treatment of any amount by which the maximum rent (standard local
rate) exceeds the rent which the claimant is liable to pay.
Regulation 11B makes provision for pathfinder authorities to
publicise the new arrangements.

Regulation 7 inserts
para (2B) in reg 12A of the Regulations, which provides that cases
to which the new arrangements apply do not need to be referred to
the rent officer. The same applies to requests for pre-tenancy
determinations where the case would be subject to the new
arrangements were a claim to be made. Where rent under the tenancy
is attributable to board and attendance, there is no provision for
a pre-tenancy determination to be made. Regulation 8 amends reg 12B
of the Regulations to provide for pathfinder authorities to apply
to the rent officer for board and attendance redeterminations where
part of the rent is attributable to board and attendance.
Regulation 9 amends reg 12C of the Regulations to provide for
pathfinder authorities to apply for substitute board and attendance
determinations or redeterminations where the rent officer has
notified them that he has made an error, and reg 10 amends reg 12CA
of the Regulations to exclude broad market rental area and local
housing allowance determinations from the provisions of reg 12C of
the Regulations.

Regulation 11
inserts reg 12E, which makes provision for cases where decisions
are revised as a result of amended broad market rental area or
local housing allowance determinations being made by the rent
officer. Regulation 12 amends regs 93 and 94 of the Regulations to
make provision for the circumstances in which local authorities may
pay a person’s housing benefit direct to his landlord in
cases to which the new arrangements apply. Regulation 13 inserts
Sch 8 which specifies the local authorities which are pathfinder
authorities.

Regulation 14 makes
modifications and amendments to the Regulations in the case of
persons who have reached the qualifying age for state pension
credit. Regulation 15 amends the Housing Benefit (General)
Amendment Regulations 1995 to provide for the circumstances in
which transitional provision under those Regulations will cease to
have effect in cases to which the new arrangements for determining
eligible rent apply. Regulation 16 makes consequential amendments
to the Housing Benefit and Council Tax Benefit (Decisions and
Appeals) Regulations 2001.

The Social Fund Cold Weather
Payments (General) Amendment Regulations 2003, SI
2003/2605<