September/October 2005

Bulletin no 89

Butterworths Family and Child Law Bulletin

Fam LS 2005.89

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.

Marriage

Restrictions on in-law marriages unjustified

B & L v UK (application 36536/02) ECHR 13 September 2005
In B & L v UK (application 36536/02), 13 September 2005, the European Court of Human Rights found that the barriers to marriage between father-in-law and daughter-in-law set out in the Marriage (Prohibited Degrees of Relationship) Act 1986 were in breach of art 12 of the European Convention on Human Rights. Marriages between such parties were prohibited unless the parties were over twenty one years of age and the intervening spouses were both dead. The only mechanism for exemption from these provisions was a personal act of parliament, which was not regarded as sufficient to mitigate the legal prohibition if it breached human rights.

The ECHR found that restrictions on the right to marry should not restrict it so that the very essence of the right was impaired (Rees v UK [1986], F v Switzerland [1987]). It noted that there were a number of contracting states to the convention which had similar bars to the UK. It noted that the expressed (and legitimate) aims of the legislation were to protect the integrity of the family (preventing sexual rivalry between parents and children) and protecting children from harm arising from the changing relationships of the adults around them. However, it noted that the bar on marriage did not prevent such relationships occurring and that there were no incest or other criminal law provisions to prohibit them.

It also noted that the majority view of a Church of England working party (wrongly described as a group of the House of Lords at para 39) had been that the prohibition was an anomaly and no longer necessary. It also noted that a personal act of parliament had been passed in 1985 to allow a marriage in similar circumstances, in which one member of the House of Lords had declared that the impediment to marriage served no public purpose.

Rejecting the government’s contention that the availability of the personal act of parliament indicated that flexibility was available where appropriate, the ECHR took it as evidence that an absolute prohibition was unnecessary so that the rights of the couple in question had been breached in imposing such a ban.

Comment: It is possible to point to a number of detailed flaws in the account given by the EHCR of the issues. The Church of England working party was treated as an official document rather than a church one. The majority view was seen as significant, despite the explicit rejection by parliament (it was noted that amendments to achieve the outcome proposed by the ECHR had been explicitly rejected). To use the difference of views in parliament as indicating that there was not really a strong case for the prohibition without citing arguments in favour of it or accepting the outcome of the parliamentary process as indicating the settled will of the houses opens up bewildering possibilities in giving prominence of unrepresentative views.

The wider issue, however, is how far the rejection of the terms of the 1986 act suggests that other restrictions on marriage will be open to challenge under the convention. The ECHR has already forced the UK to abandon its restrictions relating to transsexuality.

 It would be interesting to see whether the decision to prohibit homosexual marriage and instead introduce the new registered partnerships could withstand challenge on the lines mounted in this case. The consequences of registering a partnership are closely analogous to those of marriage. This could be argued to indicate that the public policy objections to extending marriage itself have been recognised by parliament to be weak. There are no criminal prohibitions on homosexual relationships and no necessary disruption of existing relationships. More immediately, perhaps, scrutiny will need to be given to the other prohibition found in the 1986 act, relating to step-parents and step-children. Here, there is a recognition that the ban should not be absolute, with preconditions being the age of the parties and whether the younger has lived as a “child of the family” of the older. It is arguable that the latter aspect of the bar will be vulnerable to challenge following this ECHR decision.

Statutory instruments
The Civil Partnership Act 2004 (amendments to subordinate legislation) order 2005, SI 2005/2114

This order, which comes into force on 5 December 2005, makes amendments to various provisions of subordinate legislation consequential upon the Civil Partnership Act 2004.

The act, the substantive provisions of which comes into force on the same date as this order, enables same-sex couples to form a civil partnership by registering as civil partners of each other (and certain overseas relationships registered abroad may be treated as civil partnerships). The act makes provision for civil partners to be treated in the same or similar way as spouses in relation to certain benefits and obligations.

Schedule 1 makes amendments to miscellaneous subordinate legislation. This includes

• the smallholdings (selection of tenants) regulations 1970 to ensure that civil partners have the same rights to the succession of smallholdings as spouses. It also amends those regulations to ensure that a person treated by a deceased tenant as a child of the family applies to civil partnerships in the same way as it does to marriage.

• the local authorities’ cemeteries order 1977. Paragraph 17 is an interpretation provision and defines “relative” for the purposes of sch 3, which is concerned with the removal of tombstones and other memorials and the levelling of graves. Under sch 3, if a relative objects to proposals to remove a tombstone or other memorial or to levelling of a grave, a burial authority may not proceed in relation to that particular tombstone or grave, unless in particular circumstances the consent of the secretary of state is obtained. The effect of the amendment is to include a civil partner within the definition of a relative and so put a civil partner in the same position as a spouse.

• the trade union (nominations) regulations 1977 which deal with nominations made by members of trade unions as to the payment of any union funds which may be made on their death. The effect of the amendment to reg 2 is to place a civil partner in the same position as a spouse in relation to an exception from a provision which renders a nomination invalid. The amendments to reg 3 provide that, in relation to a nomination, forming a subsequent civil partnership is treated in the same way as entering into a subsequent marriage.

• the coroners rules 1984 which specify persons who are entitled to examine witnesses at an inquest. Those listed include a spouse of the deceased and the effect of this amendment is to give a civil partner of the deceased the same right as a spouse to examine witnesses.

• the customs and excise (personal reliefs for special visitors) order 1992 to extend an existing relief on the payment of value added tax on motor vehicles for diplomats, members of international organisations and visiting forces who are married to those who are in a civil partnership.

• the education (fees and awards) regulations 1997 so that civil partners are treated in the same way as spouses in relation to the charging of fees for certain courses and eligibility for certain awards. Paragraph 9 amends the education (grants etc) (dance and drama) (England) regulations 2001 to include in the categories of persons who may qualify for an award under the regulations the civil partner of a refugee and the civil partner of a migrant worker.

• the good laboratory practice regulations 1999, which implement council directive 87/18/EEC relating to the application of the principles of good laboratory practice and the verification of their applications for tests on chemical substances and council directive 88/320/EEC on the inspection and verification of good laboratory practice. Regulation 11(2) deals with incrimination. The amendment to reg 11(2) ensures that civil partners have the same protection, in relation to incrimination of their civil partner, as those who are married have in relation to their spouses.

• Regulation 6(2)(b) of the divorce etc (pensions) regulations 2000. This regulation sets out when a person in whose favour a pension attachment order has been granted must notify the person responsible for the pension arrangement of any relevant change of circumstances, and what will happen should he fail to do so. The amendment reflects the fact that the formation of a subsequent civil partnership will become such a change of circumstances. Schedule 2 amends certain rules relating to health care professions so as to include references to a civil partner in the definition of “relative” and to include a reference to a civil partner as an alternative to the term “spouse” where they occur in the rules. Schedule 3 amends subordinate legislation relating to the National Health Service.

• the National Health Service (charges to overseas visitors) regulations 1989 to include a reference to a civil partner as an alternative to the term “spouse” where the term occurs in these regulations.

• the primary care trusts (membership, procedure and administration arrangements) regulations 2000; the Commission for Patient and Public Involvement in Health (membership and procedure) regulations 2002 and the patients’ forums (membership and procedure) regulations 2003. These regulations state that where two people are living together as a couple, married or not, one person’s indirect pecuniary interest in a matter will, if known by the other person, be deemed to be an interest of that other person. The amendments are made so that indirect pecuniary interests of persons living together as a couple, whether civil partners or not, are treated in the same way.

• the National Health Service (travel expenses and remission of charges) regulations 2003 to remove the reference to a couple being “married or unmarried” in the definition of “partner” so as to include civil partners, or persons of the same sex living together as if they were civil partners of each other, in the definition.

Schedule 4 makes amendments to subordinate legislation relating to establishments and agencies regulated under the Care Standards Act 2000 and related regulations.

Part 1 amends certain regulations made under part 2 of the Care Standards Act 2000 which provides for the registration and inspection of establishments and agencies by the Commission for Social Care Inspection (in relation to care homes and adult placement schemes amongst others) and the Commission for Health Audit and Improvement (in relation to private and voluntary health care). Part 2 of the act also provides powers for regulations governing the conduct of establishments and agencies, and the regulations being amended here are made under those powers. In relation to the care homes regulations 2001, the National Care Standards Commission (registration) regulations 2001 and the adult placement schemes (England) regulations 2004, the amendments are made in order to include references to a civil partner or a former civil partner in the definition of “relative” in each case, and to include a reference to a civil partnership status alongside the term “marital status” where it occurs in the regulations. The private and voluntary health care (England) regulations 2001 are amended to include a reference to a civil partnership status alongside the term “marital status” where it occurs.

Part 2 amends reg 6(2) of the community care, services for carers and children’s services (direct payments) (England) regulations 2003. Regulation 6 prohibits a direct payment from being used to secure a service from certain persons, except in specified circumstances, and is amended to include references to a civil partner and to a person who lives as if they were a civil partner.

Schedule 5 makes amendments to subordinate legislation relating to flood management. It amends the river authorities (compensation) regulations 1965 and the land drainage (compensation) regulations 1977. These regulations provide for the payment of compensation to persons who suffer loss of employment or loss or diminution of emoluments in consequence of the transfer of function or property to river authorities (or any alteration of river authority areas) or which is attributable to a scheme, order or agreement under the Land Drainage Act 1976. The regulations provide for compensation to be payable to a widow on the death of a claimant and the amendments, in particular, make provision for compensation to be payable to surviving civil partners.

Schedule 6 makes amendments to subordinate legislation relating to the administration of estates. The act amended s 47A of the Administration of Estates Act 1925 to enable a surviving civil partner, as well as a surviving spouse to have their life interest in an estate redeemed and to receive its capital value. The schedule adds references to surviving civil partners to the non-contentious probate rules 1987 and the intestate succession (interest and capitalisation) order 1977, which deal with notices to choose to have the life interest redeemed and with the calculation of the capital value. Paragraph 2 also amends the 1987 rules to provide that a surviving civil partner has the same right as a surviving spouse to apply for a grant of administration where the deceased died intestate.

Schedule 7 makes amendments to subordinate legislation relating to legal aid. It amends the community legal service (costs) regulations 2000, the community legal service (funding) order 2000 and the community legal service (funding) (counsel in family proceedings) order 2001, all of which relate in whole or in part to family proceedings.

The amendments provide for proceedings under the Civil Partnership Act to be included in the definition of ‘family proceedings’ in each of the three instruments.

Schedule 8 makes amendments to subordinate legislation relating to parliamentary elections in England and Wales and European parliamentary elections. Paragraph 1 gives civil partners the same status as a spouse in all matters connected to the conduct of parliamentary elections. It also extends the definition of “relative” to include civil partners. Paragraph 2 has the same effect as para 1 in relation to European parliamentary elections. Paragraph 3 amends the order which prescribes Welsh versions of certain forms or forms of words which may be used at European parliamentary elections in Wales, by prescribing Welsh versions of the words “spouse” and “civil partner” in substitution for the words “husband and wife”.

Schedule 9 amends subordinate legislation relating to parliamentary and European parliamentary elections in Northern Ireland. Paragraph 1 gives civil partners the same status as a spouse in all matters connected to the conduct of Parliamentary elections. It also extends the definition of “relative” to include civil partners. Paragraph 2 has the same effect as para 1 in relation to European parliamentary elections.

Schedule 10 amends subordinate legislation relating to elections in Scotland to enable certain civil partners to claim a service qualification or a proxy or absent vote, prevent civil partners from attesting overseas electors’ declarations in respect of their civil partners, and to clarify that a person is to be treated as a relative of their civil partner for various Scottish electoral purposes.

Schedule 11 makes minor amendments to the National Assembly for Wales (representation of the people) order 2003 so that civil partners are treated in the same way as spouses for electoral purposes.

Schedule 12 makes amendments to subordinate legislation relating to the conduct of local government elections in England and Wales, Greater London Authority elections, local authority referendums and local authority mayoral elections so that civil partners are treated the same way as spouses for local election etc purposes.

Schedule 13 makes amendments to subordinate legislation relating to immigration and nationality. Paragraph 1 amends the asylum support (interim provisions) regulations 1999 to expand the definition of dependant in reg 2(1) to include civil partners and those who live together as if they are civil partners. Paragraph 2 amends the asylum support regulations 2000 so that the definition of a dependant is expanded to include civil partners and those who live together as if they are civil partners. The formation or dissolution of a civil partnership or same-sex cohabitation is now also a relevant change of circumstances, which must be notified to the secretary of state under reg 15 of those regulations. Paragraph 3 amends the withholding and withdrawal of support (travel assistance and temporary accommodation) regulations 2002 to expand the definition of dependant in reg 2(2) to include civil partners and those who live together as if they are civil partners. Part 2 of the schedule makes minor amendments to regulations relating to nationality so that civil partners are treated in the same way as spouses for these purposes.

Schedule 14 makes amendments to subordinate legislation relating to probation. Paragraph 2 amends reg 6(2)(e) of the local probation boards (miscellaneous provisions) regulations 2001. Regulation 6 lists those persons who are eligible to make a complaint to a local probation board, and is amended so that a civil partner is included within the definition of an immediate family member who is entitled to complain on behalf of an eligible person who is deceased. Paragraph 1 amends the probation (compensation) regulations 1965 to include references to a civil partner for the purposes of who is eligible to lodge a claim under the provisions of the regulations.

Schedule 15 contains amendments to subordinate legislation relating to merchant shipping so that civil partners and relatives of civil partners are treated in the same way as spouses and relatives of spouses for the purposes of the definition of “immediate family”.

Schedule 16 makes amendments to financial services and related legislation. Paragraph 1 amends the financial services and markets Act 2000 (regulated activities) order 2001. Sub-para (2) amends art 3(1) so that civil partners are treated in the same way as spouses for the purposes of the definition of “close relative”. Sub-para (3) amends art 61(4)(c)(i) so that civil partners are treated in the same way as spouses for the purposes of the definition of “related person” which may be relevant in determining whether a contract is a regulated mortgage contract as defined in art 61(3)(a). Sub-para (4) amends art 71(2)(b) so that employees’ or former employees’ civil partners and surviving civil partners are treated in the same way as their spouses, widows and widowers in relation to employee share schemes. Sub-para (5) amends para 2 of Part 2 of Sch 1 so that a contract of insurance to provide a sum on the formation of a civil partnership is treated as a contract of long-term insurance on the same basis as a contract of insurance to provide a sum on marriage.

Paragraph 2 amends art 2(1) of the Financial Services and Markets Act 2000 (promotion of collective investment schemes) (exemptions) order 2001 so that civil partners are treated in the same way as spouses for the purposes of the definition of “close relative”.

Paragraph 3 amends para 8(2)(b) of the schedule to the Financial Services and Markets Act 2000 (collective investment schemes) order 2001 so that employees’ or former employees’ civil partners and surviving civil partners are treated in the same way as their spouses, widows and widowers in relation to employee share schemes.

Paragraph 4 amends para 41(3)(b)(ii) of the schedule to the Financial Services and Markets Act 2000 (exemption) order 2001 so that employees’ or former employees’ civil partners and surviving civil partners are treated in the same way as their spouses, widows and widowers in relation to employee share schemes in electricity industry shares.

Paragraph 5 amends reg 44(8)(a) of the open-ended investment companies regulations 2001 so that civil partners are treated in the same way as spouses for the purposes of determining whether a transaction is voidable under that regulation.

Paragraph 6 amends reg 21 of the savings contracts regulations 1969 so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the civil partnership register.

Paragraph 7 amends reg 29L(2)(c) of the National Savings Bank regulations 1972 so that civil partners are treated the same way as spouses for the purposes of opening individual savings accounts. Regulation 35(1)(c) is amended to allow a nomination to be revoked by the formation of a civil partnership by a holder in the same way as applies on the marriage of a holder. It also amends reg 41(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 8 amends reg 25 of the premium savings bonds regulations 1972 so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the civil partnership register.

Paragraph 9 amends reg 52 of the National Savings stock register regulations 1976 so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the civil partnership register. Regulation 36(1)(c) is amended to allow a nomination to be revoked by the formation of a civil partnership by a holder in the same way as applies on the marriage of a holder. It also amends reg 42(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 10 amends reg 26 of the savings certificates (yearly plan) regulations 1984 so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the civil partnership register. It also amends reg 17(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 11 amends reg 26 of the savings certificates regulations 1991 so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the civil partnership register.

Paragraph 4 of sch 2 is amended to allow a nomination to be revoked by formation of a civil partnership by a holder in the same way as applies on the marriage of a holder. It also amends reg 17(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 12 amends reg 23 of the savings certificates (children’s bonus bonds) regulations 1991 so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the civil partnership register.

Paragraph 13 amends reg 2 of the industrial assurance (premium receipt books) regulations 1948 so that civil partners are treated in the same way as spouses in relation to making an entry in a premium receipt book relating to a proposed policy.

Paragraph 14 amends art 5 of the Building Societies Act 1986 (powers and miscellaneous transitional provisions) order 1986 so that civil partners are treated in the same way as spouses in relation to making an advance to which the article applies.

Paragraph 15 amends para 5(6) of Sch 8 and para 4(5) of Sch 9 to the building societies (accounts and related provisions) regulations 1998 so that civil partners are treated in the same way as spouses in relation to a directors’ interest in shares in or debentures of, any connected undertaking of the society.

Schedule 17 amends subordinate legislation relating to paternity and adoption leave and pay, sexual orientation discrimination in employment and vocational training, and employment agencies and businesses.

Paragraphs 1, 2, 3, 5 and 6 amend the paternity and adoption leave regulations 2002, the statutory paternity pay and statutory adoption pay (administration) regulations 2002, the statutory paternity pay and statutory adoption pay (general) regulations 2002, the paternity and adoption leave (adoption from overseas) regulations 2003 and the statutory paternity pay (adoption) and statutory adoption pay (adoptions from overseas) (no 2) regulations 2003. These extend entitlement to paternity leave, adoption leave (including adoption from overseas), statutory paternity pay, statutory adoption pay (including adoption from overseas) to civil partners and also extend any evidential or information requirements relating to these entitlements to civil partners.

Paragraph 4 amends the flexible working (eligibility, complaints and remedies) regulations 2002 to extend the entitlement to request a contract variation for flexible working to civil partners.

Paragraph 7 amends the employment equality (sexual orientation) regulations 2003. These regulations implement in Great Britain directive 2000/78 (establishing a general framework for equal treatment in employment) in so far as it relates to discrimination on grounds of sexual orientation. The regulations make it unlawful to discriminate on grounds of sexual orientation in employment and vocational training.

Sub-para (2) inserts a new para—para 3–into reg 3 to ensure that the status of a civil partner is comparable to that of a spouse. The effect of the amendment is that if a spouse receives different treatment to a civil partner, the employer or training provider etc. cannot successfully argue that there is no discrimination because married persons are not comparable to civil partners.

Sub-para (3) substitutes a new reg 25. Regulation 25(a) preserves the existing exemption for benefits which are dependent on marital status where the right to the benefit accrued or the benefit is payable in respect of periods of service prior to the coming into force of the Act. Regulation 25(b) permits benefits to be conferred on married people and civil partners to the exclusion of all others.

Paragraph 8 amends the conduct of employment agencies and employment businesses regulations 2003 so that civil partners are included within the definition of connected persons for the purposes of those regulations.

Schedule 18 makes amendments to subordinate legislation relating to insolvency.

Paragraph 1 amends the insolvency rules 1986 so that where a person is adjudged bankrupt, the person’s civil partner is to have the same rights and liabilities as the spouse of a bankrupt has at present in connection with dealings with a bankrupt’s home. In addition, Form 6.28 is amended to require information about the civil partnership status of a debtor petitioning for his own bankruptcy as well as his marital status.

Paragraph 2 amends the insolvent partnerships order 1994 to make equivalent amendments in respect of members of partnerships.

Paragraph 3 makes amendments to the limited liability partnerships regulations 2001 so that the definition of “associate” in the Insolvency Act 1986, as applied to limited liability partnerships by those regulations, extends to civil partners of members of limited liability partnerships in the same way that it applies to the spouses of such members. The definition is important, for example, in the context of determining whether transactions between an insolvent and other persons, including associates, prior to the onset of insolvency should be undone or adjusted to protect creditors.

The day care and child minding (disqualification) (England) regulations 2005, SI 2005/2296
These regulations, which came into force on 3 October 2005, set out the categories of persons who are disqualified from registration in England as child minders or providers of day care. Persons disqualified under these regulations may not act as childminders or provide day care. Nor may they be employed in connection with day care provision or directly concerned in the management of any provision of day care.

The regulations set out the circumstances in which disqualification may be waived either wholly or in part eg for the purposes of employment at a day care provider or direct involvement in management.
The regulations apply to applications for registration made under part XA of the Children Act 1989. A right of appeal lies to the Care Standards Tribunal in relation to any determination made by the registration authority under these regulations by virtue of reg 11.

The day care and child minding (suitability) (England) regulations 2005, SI 2005/2297
These regulations, which came into force on 3 October 2005, set out the information which the chief inspector may ask a person applying for registration as a child minder or provider of day care to consent to the disclosure of (reg 4). The regulations also provide that failure to consent to the disclosure of this information or withdrawal of such consent entitles the  chief inspector to regard the person as not suitable to look after children under the age of eight or to be in regular contact with such children (reg 3). Where the term “A” is used in the regulations, this refers to the person defined as “A” in s 79B(5A) of the act.

The Children Act 2004 (commencement no 4 and savings) (England) order 2005, SI 2005/2298
This is the fourth commencement order made under the Children Act 2004. This commencement order brings s 48 of, and paras 1, 3, 4 and 6 of sch 4 to, the act together with related repeals into force so far as relating to England on 3 October 2005. Savings are made in relation to para 6 of sch 4.

Paragraphs 3 and 4 of sch 4 amend ss 79E, 79F and 79G of the Children Act 1989 to provide that when an application is made by a person who wishes to be registered as a childminder or as a provider of day care they must pay a fee.

Paragraph 6 of sch 4 amends s 79B(4) of the Children Act 1989 to provide that the provider of day care must make adequate arrangement to ensure that every person (other than himself and the responsible individual) looking after children on the premises is suitable to look after children under the age of 8; and every person (other than himself and the responsible individual) living or working on the p