August 2004

Tidy error!
Bulletin No 80
Butterworths Family and Child Law Bulletin – August 2004

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.

•           Jurisdiction

Jurisdiction in cases of unlawful residents

Marks v Marks (Divorce: Jurisdiction) [2004] EWCA Civ 168, [2004] 1 FLR 1069

BFLS 2A[101], [107]

Marks v Marks (Divorce: Jurisdiction) [2004] EWCA Civ 168, [2004] 1 FLR 1069 considered the jurisdiction of the English courts in a case where the petitioner in divorce proceedings was an overstayer, having originally been lawfully resident in the UK but who had not obtained permission to extend her stay. The failure to obtain permission to stay was largely due to the husband, who had obtained the necessary permissions for himself and the children but had not done so for the wife. However, she had some responsibility in that she had not ensured that her position was regularised when the husband’s actions came to light. Nevertheless, her degree of culpability was low. In 2000 the husband invited the wife to petition for divorce in England and in his answer admitted her habitual residence in the jurisdiction. Later in the proceedings, however, he challenged the jurisdiction of the English court, contending that as an overstayer the wife lacked the necessary qualifications. Hughes J, in the High Court, found that the wife was not habitually resident in the UK as habitual residence had to be interpreted as referring to lawful residence. However, he further found that she had acquired a domicile of choice in the UK, so that the court had jurisdiction to entertain the petition. The Court of Appeal explored the interpretation of authorities and the conflict between the views expressed in Dicey & Morris on the Conflict of Laws and Rayden and Jackson on Divorce and Family Matters. The former expressed the principle in terms of the impossibility of founding domicile on illegal residence. The latter took a weaker line, accepting that the court would be hostile to a claim based on illegal entry and residence but suggest that there was scope for the court to be flexible when the immigrant did not appreciate that their entry was illegal or the time since entry was considerable. In relation to habitual residence, the leading case was Akbarali v Brent LBC; Abdullah v Shropshire CC; Shabpar v Barnet LBC; Jitendra Shah v Barnet LBC; Barnet LBC v Nilish Shah [1983] 1 All ER 226, HL. That case established that it was wrong in principle to permit a person to rely on their own unlawful act to secure an advantage (see Lord Scarman’s speech). The context was access to social security benefits and it was held that illegal immigrants were debarred from obtaining such benefits, which were available to those habitually resident in the UK. Since the implementation of the Human Rights Act 1998 this approach needed to be considered in the light of Art 6 of the ECHR. Thorpe LJ found that this right was engaged and could be breached by denial of access to the courts. He noted that the wife was not originally an illegal immigrant and that the illegality of her residence was partly the product of her husband’s conduct and partly of her own irresponsibility. He noted that the wife’s home was in England, her children were there, as was most of the husband’s fortune. The Nigerian customary courts could not deal with financial matters and the only realistic forum to determine financial issues was the English court. To apply the public policy argument articulated in Shah to deny relief would prevent the wife using the courts with which she had the most connection. Thorpe LJ also noted that the husband had invited the wife to petition in London and had initially admitted the court’s jurisdiction, that there had been extensive proceedings under the Family Law Act 1996, Pt IV in which the husband had established his right to use the former matrimonial home, and that the ancillary relief proceedings were already well under way. These factors suggested that the courts should entertain jurisdiction for the wife, but also made the case unusual and unsuitable for the formulation of a general rule. In relation to domicile, Thorpe LJ preferred the Rayden formulation. In his view, absolute rules had little place in family law and while it was imperative to prevent the acquisition by illegal conduct of public law benefits an absolute general law was not required. Waller LJ reached the same conclusion by a slightly different route. He felt that access to the courts was not a benefit in the same way as social security payments and also observed that jurisdiction of the courts affected third parties such as children who could not be said to share responsibility for the misconduct that was said to bar access. He also noted that aspects of illegal residence could be analysed under the heading of whether the residence was habitual. Someone evading the immigration authorities would not be described as habitually resident, whereas someone who was settled but had overlooked the need to secure an extension of leave to remain might be. Latham LJ felt that it was true that a petitioner gained an advantage by establishing the jurisdiction of the courts, but that it was not offensive to do so. All three judges accepted that the wife could establish jurisdiction both on habitual residence and domicile.

Comment: The subtle variation in approaches by the three judges perhaps reinforces the reluctance expressed by Thorpe LJ to see this case as generating a general principle. Perhaps it is better to see it as authority for the softening of the suggested principle that illegal immigrants cannot claim relief from the courts. In those stark terms, such a principle would be difficult to reconcile with rights under Art 6 of the ECHR. The true principle is that the courts have a discretion to prevent the use of the courts to secure advantages where the claim to jurisdiction is based on the applicant’s own unlawful actions if it would be offensive to allow such advantage to be taken. In the current case, the wife’s relative innocence and the husband’s culpability were to be taken into account in determining whether it would be so offensive. The Court of Appeal has resisted divergence between the foundation of jurisdiction on habitual residence and on domicile. Allowing the two concepts to operate with different effect risks leaving people in legal limbo where different bases apply in different jurisdictions.

•           Local authority obligations

Accommodation of children of asylum seekers responsibility of NASS not local authorities

R (O) v Haringey LBC [2004] EWCA Civ 535, [2004] 2 FCR 219

BFLS 3A[2269.1]; CHM 1[1602]

In R (O) v Haringey LBC [2004] EWCA Civ 535, [2004] 2 FCR 219, the Court of Appeal held that the National Asylum Support Service (NASS) was responsible for the children of an ‘asylum seeker’. The mother had come from Uganda to join her husband but left the matrimonial home due to domestic violence. She sought exceptional leave to remain in the UK, claiming that removal to Uganda would breach her rights under Art 3 of the European Convention on Human Rights because she would be unable to receive treatment for HIV that was necessary to save her life. This made her an ‘asylum seeker’ for the purposes of the statutory provisions. The local authority housed her under the National Assistance Act 1948, s 21 as an ‘infirm destitute’ but claimed that the NASS was responsible for her children. The Court of Appeal held that the duty of the local authority to the mother under the National Assistance Act was not displaced by the NASS scheme so that the availability of asylum support should be disregarded when determining whether a person was in need of support under s 21. However, the responsibility of the local authority for children under the Children Act 1989, s 17 was expressly displaced by the duties of NASS (see the Immigration and Asylum Act 1999, s 122(5)). Consequently, responsibility for the accommodation of the children lay with the NASS not the local authority.

Comment: The practical consequence of this decision was recognised as being essentially financial. In practice, Haringey would arrange for the family to be accommodated, but the cost of the accommodation of the children fell on the NASS.

•           Child protection

Standard of proof following Cannings

Re U (a child) (serious injury: standard of proof); Re B (a child) (serious injury: standard of proof) [2004] EWCA Civ 567, [2004] 2 FCR 257

BFLS 3A[3065], CHM 1[932], 1[1312]

In Re U (a child) (serious injury: standard of proof); Re B (a child) (serious injury: standard of proof) [2004] EWCA Civ 567, [2004] 2 FCR 257, the Court of Appeal considered whether the decision in R v Cannings [2004] 1 FCR 193 altered the approach that should be taken to expert medical evidence in child protection cases, and whether the two cases before the court should be regarded as unsafe. The Court of Appeal first reviewed the confusion created by case law suggesting that there was no material difference between the criminal standard of proof and the civil standard when it was dealing with unlikely events such as child abuse. Dame Elizabeth Butler-Sloss P, giving the judgment of the whole court, stated that this approach was mistaken. The standard remains the civil standard, as explained by the House of Lords in Re H & R [1996] 1 FCR 509. Turning to the impact of the Cannings case on care proceedings, the President drew attention to five relevant points that were transferable to the Children Act context:

(i)         the cause of an injury that cannot be explained remains equivocal;

(ii)        recurrence itself is not probative;

(iii)       particular caution is necessary when medical experts disagree, particularly where one opinion declines to exclude the possibility of a natural cause;

(iv)       the court should always be on guard against the over-dogmatic expert who has developed a scientific prejudice or whose reputation is at stake;

(v)        the judge in care proceedings must never forget that current certainties may be discarded by future generations or scientific research may identify explanations for things that are currently mysteries.

When the details of the evidence in the two cases were examined it was found that the courts had carefully assessed the totality of the evidence, and given the lower burden of proof that was applied in child protection cases, there was no basis for reopening the assessments. Unlike the Cannings case, the judicial decisions had not been made solely on the basis of medical evidence, which in turn drew on statistical arguments rather than demonstrable causal mechanisms. The inquisitorial nature of care proceedings meant that it would be rare for decisions to be made without regard to the context in which medical assessments were made. Practitioners should be slow to assume that cases that have been carefully tried on a wide range of evidence will be readily reopened.

Comment: While the Cannings decision has attracted considerable publicity, it seems likely that its impact on family proceedings will be limited. Given that the court in care proceedings scrutinises the full context, it will be rare for medical evidence to be the sole factor in decisions. The giving of reasons for decisions will mean that these other factors are normally relatively easy to identify so that a challenge to medical evidence alone will often be insufficient to shed doubt on the basis of a care order. While the discussion of the standard of proof reaffirms that the civil standard is to be applied, it is still difficult to be clear how it differs from the criminal standard in practice when the nature of abuse is extreme, and therefore rare.

•           Education

School entitled to refuse to allow pupils to wear the jilbab

R (Shabina Begum) v Denbigh High School (2004) Times, 18 June, QBD

CHM 6[621], Appendix C[316]

In R (Shabina Begum) v Denbigh High School (2004) Times, 18 June, QBD Bennett J held that the refusal of the applicant to attend Denbigh High School wearing clothes consistent with the school uniform policy did not give rise to a claim of constructive exclusion. The school permitted Muslim girls to wear the shalwar kameez but not the stricter jilbab, which exposed only the face and covered the body and limbs completely. The school had made considerable efforts to persuade the girl to return to school, had sought independent advice to confirm that their uniform policy did not offend against the Islamic dress code and had kept her name on the school roll. In those circumstances, the reality was that the pupil had chosen of her own volition not to attend the school unless permitted to wear the jilbab. It could not be said that the school had excluded her. Bennett J rejected the suggestion that the concept of constructive dismissal from employment law had any real counterpart in the relationship between a school and its pupils. The pupil had chosen to attend the school knowing its uniform policy. The school was not obliged to alter its policy to accommodate her change of religious beliefs and it was not a breach of her rights under Art 9 of the European Convention on Human Rights to refuse to do so. The refusal to permit her to return to school was because she refused to abide by the school uniform policy, not because of her religious beliefs. The uniform policy had been devised, with the advice of the Muslim community, specifically to promote a positive ethos and a sense of community identity. It was proportionate and had a legitimate aim within Art 9(2), that was the proper running of a multi-faith secular school.

Comment: It is significant that the school had taken considerable steps to recognise the religious beliefs of its pupils. It could not be said that those of the Islamic faith were disregarded. One interpretation of the issue is that the pupils were accommodated in following Islam, but not permitted to follow their personal interpretation of its requirements. This treats religious freedom as a sort of collective right—the right to belong to a faith as defined by the faith community rather than a right of personal conscience to do whatever you choose in the name of religion. This approach can be seen as a response to the need for some certainty on behalf of schools and also as a way of dealing with disputes within communities by giving the faith leaders the ability to establish norms rather than leaving schools at the mercy of minority groups.

•           Adoption

Unlawful placement for adoption abroad still prevented ‘former parents’ from seeking revocation of freeing order

Re B (children) (adoption: removal from jurisdiction) [2004] EWCA Civ 515, [2004] 2 FCR 129

BFLS 3A[4232], [4170]; CHM 3[252], [371]

Re B (children) (adoption: removal from jurisdiction) [2004] EWCA Civ 515, [2004] 2 FCR 129 concerned a case in which two children subject to orders freeing them for adoption had been placed outside the jurisdiction without prior court approval. The majority of the Court of Appeal held that that this constituted an offence under the Adoption Act 1976, s 55. However, the Court of Appeal unanimously held that the fact that the placement was illegal did not permit the children’s ‘former parents’ to apply to have the freeing orders revoked. The parents could make such an application if the children had still not been placed for adoption more than 12 months after the freeing orders were made. Even though the placement was illegal, it was nevertheless a placement for adoption. Consequently, the preconditions for an application by ‘former parents’ under the Adoption Act 1976, s 20 had not been met because the children had their home with people with whom they had been placed for adoption.

Comment: The decision in this case was complicated by the fact that there were many anomalies in the construction of the Adoption Act 1976 and the Children Act 1979 which made all available interpretations problematic. It was also overshadowed by the fact that the findings against the ‘former parents’ in the earlier proceedings had been strongly to the effect that they did not place their children’s interests first. This led to some resistance to allowing them to re-establish a role in their children’s lives. The fact that the local authority had been advised to seek the court’s permission for the placement abroad but had chosen to ignore the advice was unfortunate, although the majority of the Court of Appeal accepted that legitimacy could be given to the placement by subsequent court authority, which although it operated only prospectively was effective to bar the application by the ‘former parents’ because the application, although not the placement, had been made after that court approval had been given.

•           Child support

Liability for child support not to be considered by magistrates

Farley v Secretary of State for Work and Pensions (2004) Times, 23 July, QBD

BFLS 4A[306]; CHM 4[95]

In Farley v Secretary of State for Work and Pensions (2004) Times, 23 July, QBD Keith J held that magistrates were not permitted, on an application for a liability order under the Child Support Act 1991, s 33 in respect of arrears, to consider whether the defendant had been liable to make child support payments. The words ‘a person who is liable to make payments of child support maintenance’ in s 33(1)(a) meant a person whom the Secretary of State (through the Child Support Agency) had decided should make such payments. The only matter for the courts was whether arrears had been accumulated.

Comment: Under the legislative scheme, the Child Support Agency has the responsibility for determining maintenance assessments. Any other decision than the one made by Keith J would have unravelled the demarcation of functions under the Child Support Acts and moved determinations back to the courts.

•           Financial provision

Duration of periodical payments

D v D (Financial Provision: Periodical Payments) [2004] EWHC 445 (Fam), [2004] 1 FLR 988

BFLS 4A[843]

In D v D (Financial Provision: Periodical Payments) [2004] EWHC 445 (Fam), [2004] 1 FLR 988, Coleridge J considered the proper duration for a periodical payments order of £10,000 per annum. The parties had been married for 21 years. The wife was aged 55. The husband was aged 51. The husband contended that the order should be for 10 years, with liberty to apply for variation in the amount during that time, but with a s 28(1A) bar to prevent the wife extending the term. The wife sought a joint lives order without limit as to time. Coleridge J found that district judge had erred by considering whether the wife would be able to adjust to her retirement without undue hardship, when in fact the relevant date under s 25A(2) was the date at which periodical payments terminated. On the facts, this was a later date than the date of retirement. The district judge had also made an error in the calculations because he had failed to assess properly the future value of the capital sum awarded to the wife. These errors enabled Coleridge J to consider the order that should have been made. He ordered that a 10 year limit should be placed on the periodical payments. That reflected the district Judge’s careful analysis of what was required to achieve fairness between the parties, and in particular that the wife’s periodical payments should not extend beyond the husband’s retirement. However, he declined to place a bar on applications to extend this period under the Matrimonial Causes Act 1973, s 28(1A) as it was impossible for the court to look 10 years into the future with any precision.

Comment: This approach is consistent with the approach taken in the subsequent case of Mcfarlane v McFarlane; Parlour v Parlour [2004] EWCA (Civ) 872 (see Bulletin 79) in which the Court of Appeal emphasised the importance of the courts seeking to ensure a clean break as soon as possible. The order made in this case would achieve a clean break in 10 years time. Despite the errors made by the district judge, the objective was fundamentally sound. While it would be open to the wife to apply to extend the order, the onus would be on her to demonstrate why this should be so and unless she did so it would automatically lapse.

Restoration of lump sum application adjourned pending inheritance

Re G (financial provision: liberty to restore application for lump sum) [2004] EWHC 88 (Fam), [2004] 2 FCR 184, [2004] 1 FLR 997, FD

BFLS 4A[915]

In Re G (financial provision: liberty to restore application for lump sum) [2004] EWHC 88 (Fam), [2004] 2 FCR 184, [2004] 1 FLR 997, FD, Singer J considered a case in which the wife’s application for a lump sum had been adjourned generally, with liberty to restore, in order to reflect the expectation that the husband would inherit money from his uncle or father in due course. Singer J noted that this was not without precedent (eg MT v MT [1992] 1 FLR 362) and not incompatible with the obligation of the court under the MCA 1973, s 25A to seek to terminate financial interdependence as soon as is just and reasonable. The financial position of the husband was difficult to specify precisely because on the death of his uncle the husband became the potential beneficiary of trust funds rather than outright owner of assets. However, the court was satisfied that the assets that could be applied to support him, if the trustees so chose, amounted to over £2 million. Singer J accepted the husband’s suggestion that any order that was made would be honoured with the assistance of the trustees. Since the divorce, the wife had remarried, but that second marriage was itself in difficulties and divorce proceedings were under way. The second marriage did not preclude the court exercising its discretion in respect of the lump sum application. However, it was a relevant factor. It did not, however, diminish the wife’s contribution to the first marriage in the form of bringing up the two daughters. That would have continued even if the second marriage had been sustained. The wife formulated her claim on the basis of her reasonable needs for accommodation purchased outright, to have her debts discharged and replacement of her car. It was not calculated as a proportion of the husband’s inheritance. The husband responded by suggesting that accommodation could be provided through the children’s trust funds (which had been set up as part of the devolution of property from the husband’s uncle’s estate). However, this would force them to use up capital as the fund would not support both the purchase of a house and the generation of sufficient income to meet the children’s education costs. Nor was it appropriate to settle a sum on the wife for life to enable a joint purchase with the children’s trusts. The wife suffered from multiple sclerosis and amongst her health needs was a need to avoid stress. The uncertainty of not knowing whether she would find herself in disagreement with one or both of her daughters and the complexity of arranging for repairs etc from three different sources would be considerable. The wife was a responsible adult entitled to get on with her own life without these debilitating and demeaning restrictions. Singer J found the basis of the wife’s claim reasonable, although he did not accept all her figures as to quantum. He ordered that she receive a lump sum of £460,000.

<B style="mso-b