January/February 2006

January/February 2006

Butterworths Family and Child Law Bulletin

Bulletin no 91

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.

Children’s rights

Confidentiality for young people upheld
R (Axon) v Sec State for Health [2006] EWHC 37 (Admin) (QBD)
BFLS 3A[861]; CHM 1[218]

In R (Axon) v sec state for health [2006] EWHC 37 (Admin) (QBD) Silber J upheld the guidance issued by the Department of Health under which, in some circumstances, contraceptive and abortion advice and treatment can be offered to young people without parental consent or knowledge. It was clear that the decision of the House of Lords in Gillick v W Norfolk & Wisbech HA [1986] 1 AC 112 implicitly rejected Ms Axon’s claim that parents had a right to know when their children sought such advice.

The lordships had taken the view that competent young people could be treated without parental knowledge. While it was normal for the judges of children’s welfare to be the parents, when children reached sufficient understanding to appreciate professional advice, the force of parental rights diminished. There was no parental right of control over competent children.

Silber J also reviewed public policy arguments and accepted evidence that guarantees of confidentiality were an important aspect of ensuring young people sought medical advice and helping reduce teenage pregnancy rates. The likely foreseeable consequences of deterring young people from seeking advice by removing confidentiality were “chilling” (para [72]). The claim that parental rights to be involved could be founded on art 8 of the European convention on human rights was rejected.

It was clear that parental interests would not outweigh the interests of children.

Developments since the decision in Gillick, including the UN convention on the rights of the child, had increased respect for the autonomy of young people and it would not be acceptable to retreat from the Gillick approach an impose additional duties on medical professionals to disclose information to parents.

The guidance issued by the Department of Health was consistent with the law as set out in Gillick and was not unlawful.

Comment: It is not surprising that the judge reached this conclusion on the interpretation of Gillick and it is to be welcomed on policy grounds. However, the judgment did not address one of the key arguments that might have been raised on Ms Axon’s behalf.

The court of appeal has added a considerable gloss on the speeches in Gillick by holding that both competent minors and parents hold the concurrent legal power to consent to treatment (Re R [1991] 4 All ER 177; Re W [1992] 4 All ER 627).

While this approach has been controversial, it has been regarded as well established (see Northamptonshire HA v official solicitor & governors of St Andrew’s hospital [1994] 1 FLR 162). It could be argued that if the law permits parents to consent to treatment even when competent minors oppose it, then it must also permit them to receive the information on which to decide whether or not to give consent.

These post-Gillick cases indicate that Silber J’s view that the decision of the House of Lords in Gillick was that the power to decide what happened transferred from parents to child as the latter became competent was less straightforward than it might seem.

It should also be noted that practical difference for doctors and parents would in many cases be slight. Ms Axon argued that there was no duty of confidentiality owed to children that restricted sharing of information with their parents. The declaration that she sought indicated that it was therefore necessary to inform parents. This does not in fact follow. Even if doctors were not prevented by confidentiality from informing parents, they would only be obliged to do so if there was a separate right to know, which Ms Axon did not assert (although she seems to have assumed existed).

Equally, although the secretary of state proposed that there was such a duty of confidentiality as against parents, it is not absolute. On this approach, disclosure to parents would be permissible in some circumstances, but only if the need for it was sufficiently strong to override the obligation of confidentiality. Both positions in fact allow for flexibility in the discretion of doctors. The importance of the case is not so much in the outcome of difficult cases so much as the impression given to young people and the security that gives them in seeking advice.

Public law proceedings

No power to order trial or therapy in care proceedings

Re G (a child) (interim care order: residential assessment) [2005] UKHL 68, [2005] 3 FCR 621
BFLS 3A[3322.2]; CHM 1[969]

Re G (a child) (interim care order: residential assessment) [2005] UKHL 68, [2005] 3 FCR 621, held that the Children Act 1989 did not empower the court to order the provision of services.

A case concerned a residential assessment for the child and her mother to see whether psychotherapy could change the mother so that it would be safe to leave her child with her. The treatment in question was not focused on the child but on the parent.

The purpose of the power of the court to order assessments was to ensure that the local authority could not control the evidence available to the detriment of the parents and to enable the number of assessments to which a child was subjected to be limited.

The cardinal principle of the Children Act 1989 was to demarcate the responsibilities of local authorities and the courts. The latter were to assess major issues such as whether a care order should be made.
Local authorities should manage the care of children. The principle that delay should be avoided was also important.

The power to direct and examination or assessment under s 38(6) must relate to the child, and any services provided must be ancillary to that end, not an end in themselves.

Assessment should relate to present capacity not possible future developments. It could not have been contemplated that the assessments would take many months to complete. It would be surprising if they lasted more than two or three months at the most.

Comment: In effect, the assessment proposed was not of the child but of the mother and took the form of a trial of therapy. It was expensive for the local authority to fund, a factor that the House of Lords accepted, without formally deciding, was a relevant factor. The key issue in the case was whether the court should resolve the care order question promptly on the evidence put before it – essentially responding to the case made.

Alternatively, should it manage proactively the process of considering the need for intervention including the exploration or alternative ways forward? Under the legislative framework, the latter was seen as the responsibility of the local authority not the courts.

Financial provision

Feilden v Cunliffe [2005] EWCA Civ 1508, [2005] 3 FCR 593 (CA)
White v White in Inheritance Act cases
BFLS 4A[3518.1]

In Feilden v Cunliffe [2005] EWCA Civ 1508, [2005] 3 FCR 593 the court of appeal considered a dispute over whether a will had made reasonable provision for a wife, and in particular the relevance of the principles from White v White [2000] 3 FCR 555 to claims by spouses under the Inheritance Act 1975.

The value of the estate was approximately £1.4 million. The residuary estate was left on discretionary trust to a broad class of beneficiaries, including the wife (Mrs Cunliffe), nephews and nieces, a friend, sister-in-law, gardener and employees of the family business. An open offer of the executors to pay Mrs Cunliffe £200,000 indicated that they accepted that these terms did not make reasonable financial provision for the wife.

The question before the court was how much she should receive from the estate. The Inheritance Act 1975 required the court to have regard to what the wife might reasonably have expected to receive if the marriage had been terminated by divorce rather than death (s 2(2)). The marriage had been a short one, lasting only twelve months.

Mrs Cunliffe, who was 48 when they had married, had no assets of significance other than funds amounting to some £226,000 passing to her as the survivor of jointly owned assets with the deceased off which she had been living. By the time of the hearing this fund was worth some £150,000. She has some modest earning capacity, possibly of up to £10,000 per annum.

Wall LJ saw no reason in principle why the White v White approach should not be applied in Inheritance Act cases. That approach was to achieve a fair and non-discriminatory approach. However, he noted that as the only statutory obligation on a spouse was to make reasonable provision for the other on their death, the cross-check yardstick of equality might not bear much relation to reasonableness.

Looking to the sums available, the court of appeal considered that £30,000 per annum was a not unreasonable income for Mrs Cunliffe, taking into account the short duration of the marriage (which made it inappropriate to her to expect to maintain the standard of living she enjoyed while her husband was alive). A Duxbury calculation indicated that a lump sum of £560,000 would generate such an income. That would be approximately achieved by adding £400,000 to the £150,000 that she already had.

In addition, a housing fund of £200,000 was necessary.

This would secure accommodation that was significantly less grand than the matrimonial home but would provide a reasonable home. Consequently, a sum of £600,000 should be paid out of the estate. This amounted to approximately 43 per cent of the gross estate, after allowing for inheritance tax and costs, it amounted to about 60 per cent of the net estate. This was at the top end of the bracket for an award and was rather less than the £800,000 that had been awarded by the judge, with an inadequate explanation of how it had been reached.

Comment: The main point of law here is the application of White v White to Inheritance Act cases. Wall LJ distinguished the relevance of the principles of fairness and non-discrimination, which were clearly applicable, from the usefulness of the cross-check of equal division ([19]-[21]). His rationale for this was the statutory reference to “reasonable provision”. The approach adopted by the court centred upon assessment of the reasonable needs of the wife and the amount generated by that calculation was not revised by reference to the proportion of the estate that it represented.

It is not clear whether this will mean in cases of larger estates that an implicit cap on awards based on reasonable needs remains possible, despite its rejection in divorce cases.

Medical treatment

Permission to limit resuscitation techniques

NHS trust v D [2005] EWHC 2439 (Fam)
BFLS 3A[888]; CHM 1[896.1]

In NHS trust v D [2005] EWHC 2439 (Fam) Coleridge J granted a declaration to the NHS trust permitting them to refrain from specified forms of resuscitation, mechanical ventilation, procedures requiring a general anaesthetic or central venous access in relation to an woman who was unable to take decisions for herself.

The order was opposed by the family, who believed that the woman responded to them. However, the judge accepted the unanimous medical evidence that the movements that the family observed did not represent responses to stimuli, but were involuntary reflexes. There was no prospect of improvement and the woman’s death was anticipated within months.

In those circumstances, the judge found that there was no benefit to the woman ([44]), as opposed to the family ([45]) who believed every day was worth fighting for.

Coleridge J noted that the woman was receiving excellent palliative care, and that this would continue. He also noted that close monitoring was planned in case there were any signs of improvement.

Comment: This was a case in which the medical opinion was consistent and in opposition to the family’s perception of the woman’s condition. The judge inevitably had to accept the medical evidence. The family’s observation of the woman was accepted, but its interpretation as indicating some response was a matter of interpretation on which expert opinion necessarily prevailed.

Of more significance for future cases was the approach taken by the judge to the “best interests” decision. He was clear that it was only the patient’s interests that were relevant. If there was a conflict between her interests (as seen by the judge) and those of her family, then the patient’s interests prevailed.

He implicitly rejected the suggestion raised by Munby J in R (Burke) v GMC [2004] EWHC 1879 that the “touchstone” of best interests was intolerability. Instead, he adopted the “balance sheet” approach, whereby he identified the benefits and disadvantages of the treatments in question and considered whether there was sufficient benefit to those treatments for them to be in the patient’s best interests.

There is a sound pedigree to that approach, which now seems to be the dominant approach; Re J [1991] Fam 33 (Lord Donaldson and Taylor LJ), Re S [2001] Fam 15 (Thorpe LJ), Re L [2004] EWHC 2713 (Elizabeth Butler-Sloss P) and Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Hedley J).

However, it is important to note that the balance sheet needs to be drawn up in respect of the particular treatments under consideration, not in relation to the patient’s condition as a whole or quality of life. The balance sheet is to be used to determine whether specific medical interventions are appropriate not to judge whether a person’s life is worth living. That is why the quality of care being offered and its continuance were important and why it was necessary to ensure that monitoring was in place to ensure that any improvement would be quickly identified.

Human rights

Daughter to join mother
Tuquabo-Tekle v Netherlands (app no 60665/00) [2005] 3 FCR 649 (ECHR)
Tuquabo-Tekle v Netherlands (app no 60665/00) [2005] 3 FCR 649 (ECHR) concerned the obligations of states under art 8 of the European convention on human rights in respect of families wanting to be reunited following parents acquiring the right to reside in the host state.

The applicants wished to bring to Holland a fifteen year old daughter who lived in Eritrea. The Dutch government rejected the request on the basis that there were no close family ties, based on delay in applying for permission for the daughter to come, indicating that the arrangement whereby she lived with her grandparents had been intended to be permanent.

The ECHR rejected this, finding that it had always been intended for the daughter to join her mother. The court accepted that the mother’s concern that her daughter would be taken out of school in order to be married off, and that she had little influence on this while she was in Eritrea did not in itself give rise to a positive obligation on the Netherlands to allow her to reside in the country.

However, the government had failed to strike a fair balance between the applicants’ interests and its own interest in controlling immigration.

Comment: The key issue in this case seems to be the judgment made by the government that the girl had been placed permanently with her grandmother. The ECHR’s view that it had always been intended that the girl rejoined her mother when she was older was supported by the steps taken by the mother to reunite the family once she had previously been granted permission to reside in Norway, before moving to the Netherlands.

The reasons that this did not extend to her daughter at that time were outside her control and did not indicate a lack of intention to bring her daughter to Europe. It may be that part of the background to this case is proper understanding of child-rearing practices in which it is more common for wider families to bring up children for a while and then return them to their parents in due course.

Child’s view on contact respected

Suss v Germany (App 40324/98) [2005] 3 FCR 666 (ECHR)
BFLS 5A [4287], [4341.1]

In Suss v Germany (app 40324/98) [2005] 3 FCR 666 the European court of human rights considered a case in which a ten year old child refused to have contact with her father and contact was then prohibited by the court.

The ECHR held that the father’s interests were overridden by those of the child. He had been given ample involvement in the court processes. There was expert evidence that enforcing contact in these circumstances would be damaging.

The ECHR rejected the contention that the child had no independent will, so that her wishes had been manipulated by the mother. In these circumstances, there was not breach of the father’s rights under art 8.

Comment: The importance of this case lies in its clear acceptance that the interests of the child prevail over those of the parents in art 8 cases concerning children’s upbringing and the respect given to the views of the child as a major factor in determining what her interests required.

Statutory instruments

The Reporting of Suspicious Civil Partnerships regulations 2005, SI 2005 no 3174
These regulations, which came into force on 5 December 2005, set out the procedure for reporting certain civil partnerships to the secretary of state where it is suspected that the civil partnership will be, or is, a sham civil partnership.

The procedure is set out to facilitate the duties of registrars to report suspicious civil partnerships under s 24A of the Immigration and Asylum Act 1999 (inserted by sch 27 to the Civil Partnerships Act 2004).

The Civil Partnership Act 2004 (Commencement No 2) Order 2005, SI 2005 no 3175
This order brings into force on 5 December 2005 all the remaining provisions of the Civil Partnership Act 2004 (other than those provisions that come into force by order made by the Scottish ministers or the Department of Finance and Personnel in Northern Ireland) with the following exceptions:

– Section 75(2) of the act, which amends s 4A(1) of the Children Act 1989 (acquisition of parental responsibility by step-parent), is brought into force by this order on 30 December 2005

– Section 79 of the act, which amends the Adoption and Children Act 2002 to ensure that civil partners are treated equally with spouses for the purposes of adoption, is brought into force by this order on 30 December 2005

– Paragraphs 3 and 9 of sch 1 to the act (prohibited degrees of relationship: England and Wales) are not commenced by this order

– Part 7 of sch 5 to the act and para 10(4)(b), (5)(b) and (9)(c) of sch 7 to the act, which relate to pension protection fund compensation, are not commenced by this order

– Paragraph 13(4) and (5) of sch 27 to the act, which amends s 1(4) and (5) of the Marriage Act 1949 (marriages within prohibited degrees), is not commenced by this order

– Paragraph 13(6) of sch 27 to the act, which omits s 1(6) to (8) of the 1949 act (marriages within prohibited degrees), is only partially commenced on 5 December 2005

– Paragraph 17 of sch 27 to the act, which amends sch 1 to the 1949 act (kindred and affinity), is only partially commenced on 5 December 2005

– The amendment of s 1 of the 1949 act (marriages within prohibited degrees) in sch 30 to the Act is only partially commenced on 5 December 2005

The Civil Partnership (Registration Provisions) Regulations 2005, SI 2005 no 3176
These regulations, which came into force on 5 December 2005, provide English and Welsh forms for the registration of civil partnerships in England and Wales.

The regulations also relate to:
– the making and granting of applications to the registrar general to shorten the waiting period
– the shortening of the waiting period by the registration authority
– the contents of the civil partnership document
– completion of bilingual forms
– the manner of completion of the civil partnership document
– the information to be recorded in the civil partnership register
– the creation of indexes of entries in the civil partnership register by the registrar general and by registration authorities
– access to civil partnership records
– the time limit for the access regime to civil partnership records
– the retention of documents relating to civil partnerships
– (duties of the civil partnership registrar and the authorised person
– corrections of errors in the civil partnership register by the registrar general.

Recent articles on Family and Child Law

Access to and reporting of family proceedings,  Munby J [2005] Fam Law 945

The law relating to affinity after B & L v UK , Dr Ruth Gafffney-Rhys [2005] Fam Law 955

Challenges of the new adoption law, Deborah Cullen [2005] Fam Law 958

The Civil Partnership Act 2004 in force, Mark Harper & Katherine Landells [2005] Fam Law 963

Every day matters at Cafcass,  Noel Arnold [2005] Fam Law 971

Suspension by the UK of inter-country adoptions, Philip Cordery [2005] Fam Law 975

The new pensions procedure, David Salter [2005] Fam Law 977

Happy families, consenting couples, and children with dignity: sex selection and saviour siblings,  Roger Brownsword (2005) 17 CFLQ 435

Adoption – a (fairly) new approach, Deborah Cullen (2005) 17 CFLQ 475

Families old and new – the family and article 8, Munby J (2005) 17 CFLQ 487

Father 4 Justice, law and the new politics of fatherhood,  Richard Collier (2005) 17 CFLQ 511

Doctors, parents, and the courts: legitimising restrictions on the continued provision of lifespan maximising treatments for severely handicapped, non-dying babies, Antje Pedain (2005) 17 CFLQ 535

Turning rights from the outside in: revisiting the politics of separation in prison mother and baby units: CF v Secretary of State for the Home Department , Vanessa E Munro (2005) 17 CFLQ 545

Divorce law update Nicola Hay (2005) 155 NLJ 1926



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