November/December 2005

Bulletin no 90 
Butterworths Family and Child Law Bulletin
Fam LS 2005.90

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.

Parentage

Former non-marital partner not father under HFEA 1990

Re R (a child) [2005] UKHL 33, [2005] 4 All ER 433
BFLS 3A[320.1]; CHM 1[376]
Re R (a child) [2005] UKHL 33, [2005] 4 All ER 433 concerned the status provisions under s 28(3) of the Human Fertilisation and Embryology Act 1990. That section provides for the partner of a woman who has been assisted to conceive to be recognised as the child’s legal father where the placing in her of sperm or eggs was carried out by a licensed person providing services for her and the man “together”.

On the facts of the case, six and a half years elapsed between the beginning of treatment and the pregnancy. Consent forms had been signed by the mother (D) and her then partner (B) about thirty and nine months respectively before she became pregnant.

The parties had separated by the time the embryo was implanted. When the child was born, B applied for contact and parental responsibility orders. The House of Lords approved the Court of Appeal’s view that the time at which the court should apply the test whether the couple were being treated together was the time at which the embryo was being placed into the woman. By this stage the couple were no longer together, and therefore the section did not operate to make B the legal father.

Comment: The difficulty in applying the legal test comes from the fact that the physical aspects of treatment concern only the woman. Consequently, it is difficult to identify any certain form of proof that she was being “treated together with a man”.

Under s 28(2) the statute seeks certainty by assessing the relationship between the parties in terms of marital status, which can be proved with certainty.

Section 28(3) tries to provide for the establishment of paternity in the less clear-cut cases of non-marital relationships. It does so by looking at the relationship between the two adults and the treatment, rather than that between the adults themselves.

Lord Hope indicated that in some ways the House of Lords’ decision could be seen as adopting the service providers’ understanding of the situation as the normal guide to the application of the test, in that their records would be the best guide. The records of both parties’ consent would indicate the necessary joint enterprise. However, those records would not take precedence over additional evidence if that established, as here, that the relationship was no longer in existence at the relevant time.

Contact

Regular contact expected where baby removed, but local authority resources required to facilitate were relevant consideration

Re S (a child) (care proceedings: contact) (2005) Times, 22 September, FD
BFLS 3A[3323]; CHM 1[651]
Re S (a child) (care proceedings: contact) (2005) Times, 22 September, FD concerned contact with a one month old baby who was the subject of an interim care order. The local authority appealed against an order from the family proceedings court that it should facilitate contact for four hours a day Monday to Friday and two hours a day on Saturday and Sunday.

Bodey J held that the practicalities of arranging contact had to be borne in mind when the order was considered, including the extent to which unreasonable burdens would be imposed on the foster carer’s ability to sustain it and/or on the resources of the local authority to facilitate it. Bearing in mind that the order was intended to run only for a few weeks, it was not beyond the broad ambit of discretion vested in the family proceedings court.

Comment: Bodey J noted the possibility of misinterpreting comments of Munby J in Re M [2003] 2 FLR 171, 183 that where a baby is removed the expectation would be for contact on a “regular and generous basis… driven by the needs of the family not stunted by lack of resources. Typically… contact most days of the week for lengthy period”. These were not intended to  imply that daily contact including weekends was necessarily required, nor should they be taken to establish legal principles (rather than a guide to what would be expected to be in the child’s interests), nor did they imply that resource considerations were wholly irrelevant.

Public law proceedings

Second expert should usually be instructed in non-accidental injury or unexplained death cases

W v Oldham MBC (2005) Times, 7 November, CA
BFLS 3A[4629]; CHM 1[1345]
W v Oldham MBC (2005) Times, 7 November, CA held that the court should be slow to deny permission for a second expert witness in cases concerning non-accidental injuries to a child or an infant death without a pathologically ascertained cause. In such cases, medical evidence may become pivotal and would be difficult to challenge if there were only one expert opinion.

Comment: This is a natural response to the concerns exposed about expert evidence by the Sally Clark trial and others. Those cases had shown that there was a risk of injustice in unchallenged medical evidence, even where judges and experts were highly experienced. In the light of this, parents are entitled to a second opinion.

Police powers not appropriate where EPO in force

Langley v Liverpool CC (2005) Times, 19 October, CA
BFLS 3A[3911]; CHM 1[1180]
In Langley v Liverpool CC (2005) Times, 19 October the Court of Appeal held that where there was an emergency protection order in force under s 44 of the Children Act 1989, it was not appropriate to use the police power of removal under s 46. Parliament had intended that, wherever practical, removal should be authorised by court order.

Consequently, a police officer should not use the s 46 power when he knew that an EPO was in force unless there were compelling reasons to do so.

Comment: This is an unsurprising decision, given the general principle enshrined in the Children Act 1989, and driven in part by human rights requirements, that removal of a child from his family is a serious matter that should be overseen by the court.

However, it is unclear from this short report why the police wished to use their own powers. Nor is there an explanation of the type of reason that might be sufficiently compelling to justify use of s 46 even where an EPO is in place.

Adoption

Contact unusual where prospective adopters do not support

Re R (a child) (Adoption: Contact) (2005) Times, 15 September, CA
BFLS 3A[4347]; CHM 3[313]
In Re R (a child) (Adoption: Contact) (2005) Times, 15 September the Court of Appeal considered a case in which the 17-year-old sister (K) of a child (L) living with prospective adopters applied to have her contact with L maintained.

She had formerly had weekly contact and the prospective adopters had been specially selected because of their willingness to allow the contact to continue. However, they subsequently reached the view that L had not settled easily and was affected by the contact visits. They suggested that direct contact be reduced to one visit a year, with four indirect contacts. K pointed out that she was the child’s only blood relative and that L had a right to family life through reasonable contact. She proposed that three times a year would be appropriate. The judge had refused K leave to apply. The Court of Appeal accepted that K’s submissions were powerful but found that the judge’s decision should not be interfered with.

Given that the application was made within adoption proceedings, the court was bound to bear in mind that it would be unusual to make a contact order where the adopters were not in favour. Here, their opposition, on the basis of disruption to L, was not unreasonable.

Comment: Counsel for K argued that the judge had peremptorily dismissed the application without a proper investigation of the circumstances. However, the essence of the application for leave under s 10(9) is that the consideration should be of whether the case is sufficiently plausible for a full investigation to be appropriate, not necessarily for the full facts to be explored.

Financial provision

Short marriages—relevance of responsibility for breakdown

Miller v Miller [2005] EWCA Civ 984, [2005] 2 FCR 713
BFLS 4A[793]
Miller v Miller [2005] EWCA Civ 984, [2005] 2 FCR 713, concerned the application of the principles established in White v White [2000] 3 FCR 555 to a short marriage. The parties had begun their relationship in 1995, but were married only in 2000. The husband left the wife in 2003 to pursue a relationship with a different woman.

Following an unsuccessful FRD hearing, the ancillary relief claim proceeded to trial with a recital that the wife would not rely on the MCA 1973, s 25(2)(g). Nicholas Mostyn QC, for the wife, contended that she should receive £7.2 million (37.5% of the increase of the husband’s fortune during the marriage—the matrimonial acquest).

There was some dispute over the value of shares (£20m–£14m) and over whether they should properly be regarded as acquired during the marriage or merely vested after the marriage but earned earlier. The husband contended that the wife should be returned to her position prior to the marriage through a lump sum of £500k to purchase a flat and £120k to enable her to work her way back to her former level of seniority over three years. He therefore argued that his offer of £1.3 million was generous.

Singer J made an award of £5m, accepting the wife’s account that the husband had caused the breakdown of the marriage. The husband appealed, contending that the judge had erred (a) in allowing the wife to raise the cause of the marriage breakdown (given the recital following the FDR), (b) in concluding that the husband was to blame and that this shielded the wife from the husband’s reliance on the shortness of the marriage, and (c) that he was plainly wrong to rest his award on the legitimate expectation that the wife would live at a higher standard of living than she had enjoyed prior to the marriage on a long-term basis.

On the first point, Thorpe LJ refused to accept that the wife’s declaration overrode or circumscribed the court’s discretion to investigate the circumstances of the case. He pointed out that the proceedings were quasi-inquisitorial and the judge was never confined by what the parties chose to put in or exclude from evidence. The judge was therefore entitled to consider the evidence, and also to reach the conclusion that he did about the husband’s part in the marriage breakdown.

The Court of Appeal rejected the suggestion that, in short marriages, the court should seek merely to put the economically weaker spouse back on their feet. That principle (drawn from Robertson v Robertson (1982) 4 FLR 387) had been developed when the ‘reasonable needs’ approach was dominant and was no longer appropriate (see also Foster v Foster [2003] EWCA Civ 565).

The judge had approached the instant case on the basis that, taken in context, the wife had a legitimate expectation of a higher standard of living than she had enjoyed prior to the marriage. In Thorpe LJ’s view, that was a fact-dependent conclusion rather than a legal principle to be extracted for application in subsequent cases. Wall LJ took a similar view, but also drew attention to the husband’s considerable wealth and suggested that it was not best analysed as a “matrimonial acquest’” case. Rather, in all the circumstances of the case, an award of £5m (of which £2.7 was a lump sum and £2.3m the London home) against a husband worth at least £17.5m should not be regarded as excessive or disproportionate.

Comment: While this case has attracted much interest and raised concerns about the continued confusion of approach, it should not be forgotten that it turned largely on assessment of the range of discretion available to the judge. Thorpe LJ indicated that the award was at the top end of the range that was permissible, but that it was within that range and should not be disturbed. He also regarded the facts as highly unusual.

In such cases of high asset, short and childless marriages, the trial judge’s discretion was very wide indeed (making appeals unlikely to succeed). In such cases, the Court of Appeal seems to have regarded the circumstances of the breakdown as relevant. In order to see whether it is reasonable for the husband to claim relief from extensive post-divorce financial responsibilities on the basis of a short marriage, it was necessary to ensure that his hands were “clean” otherwise an advantage would be gained from his own misconduct.

Here, the wife was clearly committed to the future of the marriage right up to its last few months (following her miscarriage, they both remained hopeful of having a child), but the husband left her immediately after disclosing his new relationship. However, the Court of Appeal did not consider that this type of circumstance should be seen as falling within the scope of s 25(2)(g)—conduct that it was inequitable to disregard. Rather, the consideration seems to have been placed within the terms of s 25(2)(a)—the resources of the parties. It remains to be seen whether Thorpe LJ’s suggestion that this decision should not be seen as a precedent for legal principles will confine it to the footnotes of the development of financial provision post-White, or whether it will generate greater interest in the circumstances of marital breakdowns and more extensive investigation of those facts.

Jurisdiction under MCA 1973 does not continue after death

Harb v Aziz (2005) Times, 21 November, CA
BFLS 4A[515]
In Harb v Aziz (2005) Times, 21 November the Court of Appeal held that the death of a party to unresolved proceedings under s 27 of the Matrimonial Causes Act 1973 brought those proceedings to an end.

Section 27 provided a remedy only during the joint lives of the parties. The main substantive point in issue had been a claim by King Fahd bin Abdul Aziz of Saudi Arabia that he held sovereign immunity against matrimonial proceedings. The appeal could not proceed after his death as it was not a cause of action under s 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 that would survive against the estate.

Neither art 8 nor art 6 of the European Convention on Human Rights availed the applicant, as they could not create substantive financial rights and could not extend such rights beyond those defined in the 1973 Act.

Comment: While the appeal against the finding that sovereign immunity extended to give King Fahd protection against suit under the MCA 1973 did not involve a substantive issue that would affect many litigants, this decision may expose a significant lacuna in the law. The normal mechanism for protecting people against the death of someone on whom they are dependant during proceedings against them is an application under the Inheritance (Provision for Family and Dependants) Act 1975.

However, that is only available where the deceased person was domiciled in England and Wales. Thus, where a spouse who is domiciled overseas dies during proceedings, there would appear to be no jurisdiction to provide a remedy.

Youth justice

Detention of young persons at Her Majesty’s pleasure must be kept under review

R (Smith) v Secretary of State for the Home Department [2005] UKHL 51, (2005) 155 NLJ 1415
CHM 7[754]
In R (Smith) v Secretary of State for the Home Department [2005] UKHL 51, (2005) 155 NLJ 1415, the House of Lords held that where a young person had been sentenced to be detained at Her Majesty’s pleasure before 30 November 2000, with minimum terms that had been set by the chief justice and which had not expired, then their case should be kept under continuing review.

The secretary of state had refused to review the term when requested to do so in 2002 by a young person convicted of murder. He argued that the decision in R v Secretary of State for the Home Department, ex p Venables [1997] 3 All ER 97 applied only to cases where the minimum term had been set by the executive, and had no application to cases (such as this one) where it had been set by the judge.

On judicial review, the House of Lords disagreed. It was an important feature of detention at Her Majesty’s pleasure that it should be subject to continuing review. Any minimum term could only be provisional since such continuing review might call for it to be varied downwards.

Comment: Their lordships noted that there were 114 people detained at Her Majesty’s pleasure on sentences passed before 30 November 2000 when s 82A of the Powers of Criminal Courts (Sentencing) Act 2000 introduced the new process of review by the parole board. The ruling ensures that their situation is regularly reviewed for clear evidence of exceptional and unforeseen progress as might reasonably be judged to call for reconsideration of the minimum term.

Medical treatment

Patients cannot demand clinically inappropriate treatment

R (Burke) v GMC [2005] EWCA Civ 1003
BFLS 3A[877.1]; CHM 1[896.1]
In R (Burke) v GMC [2005] EWCA Civ 1003 the Court of Appeal allowed the General Medical Council’s appeal against Leslie Burke’s challenge to their guidance on withholding and withdrawing life-prolonging treatment. Mr Burke had argued that the guidance paid insufficient regard to his right to require such treatment. His application had succeeded before Munby J.

The Court of Appeal was critical of the judge’s wide-ranging judgment, indicating that he had gone far further than was required to decide the immediate issue. They noted that Mr Burke was unlikely to have been denied the care he wished to receive under the terms of the guidance. They found that doctors would have a duty to take reasonable steps to keep a patient alive where the patient has made it clear that it is his wish to be kept alive (para [34]).

Deliberately interrupting such treatment against the express wishes of a patient to be kept alive, with the intention thereby of terminating the patient’s life would leave the doctor with no answer to a charge of murder (para [35]). However, a patient could not demand treatment that the doctor believed was adverse to the patient’s clinical needs (para [55]). Thus, the general position is that doctors need to decide what options are clinically indicated, the patient then chooses one (or none) of them.

If one of the options is chosen, the doctor will then provide it. If none is chosen, then the patient may ask for a different treatment, which the doctor would no doubt consider but would not be obliged to provide if it is not clinically indicated (although he should offer to arrange a second opinion) (para [50]).

Comment: For the most part, this decision affirms the established interpretation of the rules governing the doctor-patient relationship. However, it offers a slight shift towards the extension of patient choice in that it is suggested that doctors should offer to patients a choice of the whole range of clinically acceptable options and accept the patient’s choice from amongst them. This suggests greater control to patients than permitting doctors to present only the optimal solutions. However, this control is limited to those options that doctors see as clinically indicated.

The Court of Appeal resisted the suggestion that there was any legal right to demand particular reatment.

Human rights

Failure to take steps to ensure child’s return was breach of art 6 rights

HN v Poland App 77710/01 [2005] 3 FCR 101, ECtHR
BFLS 5A[4169]
In HN v Poland App 77710/01 [2005] 3 FCR 101 the European Court of Human Rights held that art 6 rights had been breached in child abduction proceedings where it had taken three years, seven months and 16 days to resolve the issues, due to periods of inactivity by the authorities. The authorities were found to have failed to take all necessary steps to facilitate the execution of the proceedings as could reasonably be demanded in the circumstances of the case.

Differential tax regime for non-marital fathers breach of human rights

PM v UK App No 6638/03 [2005] 3 FCR 101, ECtHR
BFLS 5A[4230]
In PM v UK App No 6638/03 [2005] 3 FCR 101 the European Court of Human Rights held that the UK had improperly discriminated against a non-marital father by denying him tax relief on the maintenance payments in respect of his daughter when a divorced father paying child maintenance would have been granted tax relief. The man had been acknowledged as father and had acted in that role, he had duly fulfilled his financial obligations towards his daughter and there was no reason for treating him differently to a previously married father.

Comment: The government argued that it was legitimate to give minor fiscal privileges to married couples in order to support the institution of marriage and that it would always have been open to the parties to choose to obtain that support by marrying. The different treatment on this view therefore flowed from the free choice of the parties to remain unmarried.

The court took the view that the purpose of the tax relief was to make it easier to support children, which was equally relevant to marital and non-marital families. That approach does not preclude special tax relief for spouses, but, given the way in which child support obligations have developed without regard to marital status, such differential treatment cannot be justified in relation to child-related tax rules.

Statutory instruments

The Adoption and Children Act 2002 (Commencement No 10 Transitional and Savings Provisions) Order 2005, SI 2005/2897
This order is the tenth commencement order made under the Adoption and Children Act 2002. In addition to bringing into force further provisions of the act, it makes a number of transitional and savings provisions.
Article 2 brings into force on 30 December 2005 a number of provisions of the act.

Article 2(a) brings into force paras 1, 2, 6 to 8, and 17 to 22 of sch 4 and s 139(2) in so far as it relates to those paragraphs.

Schedule 4 is concerned with transitional and transitory provisions and savings and s 139(2) gives effect to it.

Paragraph 1 of sch 4 sets out the general rules for continuity while para 2 makes a general rule for old savings.

Paragraphs 6, 7 and 8 are concerned, respectively, with pending applications for freeing orders, freeing orders and pending applications for adoption orders.

Paragraphs 17 to 19 are concerned with the status of adopted children, para 20 with the registration of adoptions, 21 with the effect on the application of the Child Abduction Act 1984 and 22 with the effect on the application of the Courts and Legal Services Act 1990.

Article 2(b) brings into force s 139(3) and sch 5 (repeals) except in so far as they relate to:
— ss 50, 52, 53(2) and 65(1) of the Adoption (Scotland) Act 1978;
— s 40(2)(a) of the Matrimonial and Family Proceedings Act 1984; and
— s 14 of the Adoption (Intercountry Aspects) Act 1999.

All the provisions set out in sch 5 are repealed save for those listed above.

Part 3 of the order is concerned with transitional arrangements.

Article 3 sets out, with exceptions, the general rule for how cases in progress under the adoption agencies

Regulations 1983 on 30 December 2005 should be dealt with.

Article 4 makes transitional provision for the case of a child free for adoption by virtue of a freeing order made under s 18 of the Adoption Act 1976.

Article 5 is concerned with the transitional arrangements in the case of a child who because of the repeal of ss 32 to 36 of the 1976 Act ceases to be a protected child and so becomes a privately fostered child.

Articles 6 to 8 make transitional arrangements in relation to intercountry adoption cases.

Article 6 sets out a general rule, with exceptions, for Hague convention cases in progress on 30 December 2005.

Article 7 makes transitional provision concerning the conditions to be met by prospective adopters in non-convention cases; Art 8 regarding the functions on local authorities after receiving a notice of intention to adopt, in both non-convention and Hague convention cases.

Article 9 is concerned with restrictions on removal of children when an application for an order under s 12 (adoption orders) or s 18 (freeing for adoption) of the 1976 Act is pending on 30 December; Art 10 is about applications for freeing orders pending on 30 December 2005; Art 11 about pending application for adoption orders in non-agency cases; and Art 12 is concerned with applications under s 53 (annulment, etc. of overseas adoptions) or 55 (adoption of children abroad) of the 1976 Act which have been made but not disposed of immediately before 30 December 2005.

Part 4 of the order makes savings provisions in relation to records and the disclosure of adoption information (Art 13); parental orders under s 30 of the Human Fertilisation and Embryology Act 1990 (Art 14); the Local Authority Adoption Service (England) Regulations 2003 (Art 15); and voluntary adoption agencies (Art 16).

The Civil Partnership Act 2004 (Tax Credits, etc) (Consequential Amendments) Order 2005, SI 2005/2919
The Civil Partnership Act 2004 introduced the concept of civil partnership for couples of the same sex. As a result of that act this order, which comes into force on 5 December 2005, makes consequential amendments to the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (SI 2002/2005), the Tax Credits (Definition and Calculation of Income) Regulations 2002 (SI 2002/2006), the Child Tax Credit Regulations 2002 (SI 2002/2007), the Tax Credits (Claims and Notifications) Regulations 2002 (SI 2002/2014), the Tax Credits (Payments by the Commissioners) Regulations 2002 (SI 2002/2173), the Tax Credits (Immigration) Regulations 2003 (SI 2003/653), the Tax Credits (Residence) Regulations 2003 (SI 2003/654), the Tax Credits (Provision of Information) (Functions Relating to Health) Regulations 2003 (SI 2003/731), the Child Benefit (General) Regulations 2003 (SI 2003/493), the Guardian’s Allowance (General) Regulations 2003 (SI 2003/495), the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003 (S.I. 2003/492), the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations 1976 (SI 1976/1267), the Child Benefit and Social Security (Fixing and Adjustment of Rates) (Northern Ireland) Regulations 1976 (SR 1976/223), the Child Trust Funds Regulations 2004 (SI 2004/1450), the Social Security Benefit (Computation of Earnings) Regulations 1996 (SI 1996/2745) and the Social Security Benefit (Computation of Earnings) Regulations (Northern Ireland) 1996 (SR 1996/520).

The amendments relate to terminology and in particular introduce new definitions of partner’and couple.

Part 1 provides for citation and commencement.

Part 2 contains the amendments to tax credits.

Part 3 contains the amendments to child benefit and guardian’s allowance.

Part 4 contains an amendment to child trust funds.

Part 5 contains amendments to provisions of social security law relating to the computation of earnings for those in receipt of certain social security benefits.

The Dissolution etc (Pensions) Regulations 2005, SI 2005/2920
These regulations, which come into force on 5 December 2005, make provision relating to orders made under the Civil Partnership Act 2004, including those made after proceedings overseas, for ancillary relief in proceedings for dissolution, separation or nullity of civil partnership which relate to the pension rights of a party to the civil partnership.

The regulations provide in particular for:
(a) the valuation of pension rights by the court;
(b) notices of change of circumstances to be provided by the person responsible for the pension arrangement to the civil partner without pension rights, or by that civil partner to the person responsible to the pension arrangement; and
(c) the stay period during which pension sharing orders cannot take effect.

The Family Proceedings (Civil Partnership: Staying of Proceedings) Rules 2005, SI 2005/2921
These rules, which come into force on 5 December 2005, are made under s 223 of the Civil Partnership Act 2004 which allows for provision to be made in relation to civil partnerships corresponding to the provision made in respect of marriages by sch 1 to the Domicile and Matrimonial Proceedings Act 1973.

That schedule makes provision about the relationship between domestic proceedings for divorce, judicial separation, nullity of marriage and declarations as to the validity and subsistence of a marriage of the petitioner, and proceedings in another jurisdiction of a similar type, and provides for when those domestic proceedings must or may be stayed.

These rules make similar provision about the relationship between domestic proceedings for an order of dissolution, separation or nullity of civil partnership or for a declaration as to the validity or subsistence of a civil partnership, and proceedings in another jurisdiction of a similar type.

Rule 2 requires any party who is seeking an order in civil partnership proceedings to provide particulars of relevant overseas proceedings in accordance with the provisions of the FPR 1991.

Rule 3 provides that where there are proceedings for a dissolution order before the court and the trial in those proceedings has not begun then, in certain circumstances, the court must stay those proceedings if similar proceedings in respect of the same civil partnership are continuing in Scotland, Northern Ireland, Jersey, Guernsey (including Alderney and Sark) or the Isle of Man (“a related jurisdiction”). Rule 11 modifies the application of this provision in respect of a civil partnership which is a recognised overseas relationship registered before the coming into force of these rules.

Rule 4 provides that where there are proceedings before the court and the trial in those proceedings has not begun then, if the balance of fairness makes it appropriate, the court can stay all or part of those proceedings if there are similar proceedings continuing in another jurisdiction. This rule also applies where the trial in the proceedings before the court has begun but one of t