family law Cases

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Parents and Children>

The relationships between children and parents are complex. In different contexts, the word "parent" can include biological parents (married or unmarried), step-parents, adoptive parents, foster-parents, godparents and parents-in-law. It may even extend to the court in cases of wardship and to the local authority where a child is "in care". In the majority of cases, even today, a child is born as the result of sexual intercourse between a husband and wife, who thereby stand in a parental relationship to the child, both biologically and legally, without any further formality.

Where a child is born to a married woman, or to a woman recently divorced or widowed, there is a common law presumption that it is the natural child of that woman and her (former) husband. The presumption is not absolute, however, and may be rebutted by the results of blood or DNA tests, by proof of the wife's adultery, or by evidence that husband and wife did not have access to one another during the period in which the child must reasonably have been conceived.

Parental responsibility

According to s.3(1) of the Children Act 1989, the phrase "parental responsibility" describes all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. The rights &c are not themselves defined in the section, but arise from various common law and statutory sources and are considered below. None of the rights is absolute - they must at least be read subject to the child's own rights, and parental rights and responsibilities tend to decrease gradually as the child gets older. Parental responsibility devolves automatically upon the child's natural parents if they are married to one another, or upon the child's mother if she is single. (The rebuttable presumption that a married mother's husband is the child's father gives parental responsibility to such a husband more or less automatically.) The father of a non-marital child can acquire parental responsibility under s.4 of the Act by written agreement with the mother or by a court order to that effect, but does not have it automatically. Some people argue that this is unnecessarily discriminatory and that fathers (married or not) should have the same rights and responsibilities as mothers, but the counter-argument is that any such rule would give parental responsibility to rapists and casual sexual partners.

Re X (Care proceedings: parental responsibility) (2000) Times 19/1/00, Wilson J

Two boys (aged 5 and 2) of unmarried parents were the subject of an interim care order. Their mother now wished to give their father (who was in prison) parental responsibility for them, but the local authority opposed such a move. The judge said the facility in s.4(1)(b) of the Children Act 1989 for unmarried parents to enter into a parental responsibility agreement was independent of the mother's own exercise of parental responsibility; thus the parents were entitled to make such an agreement even though the local authority (which now shared parental responsibility) was opposed.

Those who do not automatically have parental responsibility for a child can acquire it by court order (e.g. adoption order, residence order, care order or parental responsibility order simpliciter), or by becoming the child's guardian on the death of the surviving parent (see above). More than one person (and more than one married couple) can have parental responsibility for the same child, and one person's parental responsibility does not automatically end when another person's begins. When a child is taken into the care of the local authority, for example, the local authority acquires parental responsibility but the parental responsibility of the natural parents continues. Parental responsibility ends only with the death of the child or the parent, the child's reaching age 18, or by virtue of a court order.

Where there is more than one person with parental responsibility for the same child (most often, where a husband and wife share parental responsibility for the children of their family), each parent may exercise that responsibility alone subject to any restrictions imposed by a court order or by statute. One parent alone, for example, can consent to medical treatment or arrange for a baby-sitter, but the consent of both parents is normally needed for adoption, or to change the child's surname if a residence order is in force.

A parent may arrange for another person to carry out his or her responsibilities for the child, but remains responsible in law and may be civilly or criminally liable if the child comes to harm through his negligence in failing to ensure the arrangements made were adequate.

Re P (Parental responsibility order) [1997] 2 FLR 722, Times 24/4/97, CA

An unmarried father X, currently serving a 15 years' imprisonment for robbery, sought a parental responsibility order in respect of his children, and appealed against the judge's refusal of his application. Dismissing his appeal, Lord Woolf MR said the fact of imprisonment was not in itself a bar to such an order, even though it would clearly restrict the extent to which X could discharge his responsibilities. But if a parent behaved in a manner he knew might lead to a long prison sentence, he should be taken to realise the damaging effect of this on the children, and the judge could take this into account as a relevant (but not conclusive) factor.

Re C & V (Parental responsibility) [1998] 1 FLR 392, CA

Children C and V had the same mother M but different fathers. V's father F applied for a parental responsibility order in respect of V, and contact with both children. M opposed the orders, and since V had a long-term medical condition requiring M's care, the judge refused both orders. Allowing F's appeal in part and granting the parental responsibility order, Ward LJ said a parental responsibility order is independent of contact: it simply confers on a natural father the status a married father has already, and any excesses are better controlled by s.8 orders. Where possible, the law should readily confer this status on an absent father as a mark of approval for his willingness to take responsibility for his child, and should not refuse it unless the father's reasons are demonstrably improper.

Re H (Parental responsibility) [1998] 1 FLR 855, CA

A man F applied for a parental responsibility order and a contact order in respect of his son S. On finding as a fact that F had sadistically injured S, the judge refused parental responsibility and granted only supervised contact. Butler-Sloss LJ said the standard "tripartite test" for a parental responsibility order is based on the father's degree of commitment to the child, the degree of attachment between them, and the father's reasons for applying, but this is no more than a starting point. The child's welfare is the paramount consideration; in the instant case the judge had been right to refuse an order, even though the three criteria were met, and F's appeal failed.

The criminal and civil law relating to child abduction, and the prohibition in s.13 of the Children Act 1989 on the long-term removal of a child from the UK without the consent of all those with parental responsibility, indicate that a parent has a right to the physical possession of the child. Except in certain emergency situations a child cannot be removed from a parent without a court order, and a child in the care of the local authority under a voluntary arrangement can be taken back by a parent at any time. A parent generally has a right to contact with the child, which can be enforced by a contact order under s.8 of the 1989 Act if (for example following divorce) the other parent is uncooperative. Similarly, even where a child is taken into care under a court order, there is a presumption in favour of reasonable contact with the parents unless there is some reason for not allowing this. However, contact is commonly terminated as a preliminary step in the adoption process, to assist bonding with the new (adoptive) parents.

Campbell & Cosans v United Kingdom (1982) 4 EHRR 293, ECHR

The parents of two Scottish teenagers complained that their children were at risk of being physically punished at school, and one had been suspended for refusing. The Court said this was not torture or humiliating or degrading punishment because it did not reach a threshold of severity, but found a violation of Art.2 of Protocol 1, under which children should be educated in accordance with their parents' philosophical convictions. [Note that it was the parents' rights rather than the children's which were declared to have been violated.]

A parent also has a right to choose the religion in which the child is to be brought up, and (under s.7 of the Education Reform Act 1988) can insist that the child be withdrawn from religious instruction and religious assemblies at school. It is not clear how far a parent can insist on a child's following or not following the practices of a particular religion once the child is of an age and understanding to be able to make his own decisions.

Re Agar-Ellis (1883) LR 24 ChD 317, CA

H was an Anglican and W a Catholic. H agreed before marriage that any children should be brought up as Catholics, and when he subsequently changed his mind W nevertheless arranged for them to be instructed in secret. When the children were about 11 they refused to go with H to the Anglican church; H (with the support of the court) then took the children away from W, refused to let them practise their Catholic faith, and insisted that all communications between them and W go through him. When the middle child C reached 16 she applied to the court to be allowed to choose her own religion and to spend a holiday with her mother; H agreed to her attending Catholic services but adamantly refused to her going to W. Affirming Pearson J and rejecting C's application, Cotton LJ said that as long as a father is not at fault, no court has power to interfere with his common law right to control the education and residence of his children.

A parent has a right to consent to medical treatment for the child right up to the age of 18, even though the child himself has a statutory right to consent from the age of 16 (Family Law Reform Act 1969 s.8) and a common law right (following the Gillick case) to consent below that age if he has the necessary understanding. In practice it would be only in rare cases that doctors would rely on the parent's consent and administer treatment against the wishes of a child of an age and understanding to consent on his own behalf, but it is clear that such cases do exist.

Family Law Reform Act 1969 s.8(1)

The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment ... shall be as effective as it would be if he were of full age, and ... it shall not be necessary to obtain any consent ... from his parent or guardian.

Re P [1986] 1 FLR 272, Butler-Sloss J

A 14-year-old girl P became pregnant for the second time, having already given birth to one child the previous year. P wanted an abortion but her parents opposed it, and the local authority applied on P's behalf for an order in the wardship jurisdiction. The judge said the parents' objections, and their willingness to take on the responsibility of caring for both the existing baby and its potential sibling, were factors that must be considered, but P's needs were paramount. In the circumstances, a termination would be in P's best interests and an order would be made accordingly.


Re T (Change of surname) [1998] 2 FLR 620, Times 23/6/98, CA

M and F cohabited for three years, and had twins TT who were registered with F's name on their birth certificates. When their relationship ended, F (as well as M) was granted parental responsibility. M then changed TT's name by deed poll to match her own (and that of her older child), but F sought a specific issue order that TT retain F's surname. Reversing the circuit judge and making the order, Thorpe LJ said the children had no biological connection with M's previous husband (whose name she still used). To allow the change of name without even consulting F was a manifest error of law, which could not be allowed to stand even though seven months had now passed.

Costello-Roberts v United Kingdom (1993) 19 EHRR 112, Times 26/3/93, ECHR

A boy of seven was given three strokes of the slipper by his head teacher for repeated misbehaviour. The European Court of Human Rights held by 5 to 4 that in order for punishment to be contrary to Art.3 of the Convention (which prohibits humiliating and degrading punishment) it had to reach a minimum level of severity, greater than the usual humiliation inherent in any punishment. In this case that threshold had not been reached, and the case was dismissed.

In 1992 a father pled guilty to assaulting his nine-year-old son occasioning actual bodily harm after giving him three or four strokes with a cane on the seat of his trousers. Thirty years ago, said his lawyer, nothing would have been done, but what was acceptable then is not acceptable today. In 1993 a mother was cleared of assault by a jury at Southampton Crown Court after smacking her nine-year-old daughter several times with a slipper on her bare bottom for stealing. (Times news report 20/8/93)

In 1994 a father gave his seven-year-old son three strokes with a belt after the boy had covered the living room with paint in the latest of a series of acts of vandalism. The jury at Mold Crown Court acquitted him of assault causing actual bodily harm. (Times news report 24/6/94)

In 1996 a father was arrested and detained for fifteen hours on a charge of assault after slapping his 12-year-old son on the head; he was released on bail only on condition that he stayed out of the family home. Two months later the CPS dropped the charges and the defendant was bound over to keep the peace for twelve months. (Times news report 4/9/96)

A v United Kingdom [1998] 2 FLR 959, Times 1/10/98, ECHR

An 8-year-old boy A, admittedly very badly behaved, was caned by his stepfather S on numerous occasions. S was acquitted of assault causing actual bodily harm, but the European Court of Human Rights said the caning (having reached the necessary level of severity) violated A's right not to be subjected to inhuman or degrading punishment.

In May 1999 a Scottish father was convicted of assault after spanking his eight-year-old daughter when she refused to let the dentist treat her toothache. The spanking comprised six or seven smacks with his hand on the girl's bare bottom, but was hard enough to leave bruises and was considered excessive by several witnesses. The sheriff said this went beyond the scope of the reasonable chastisement a parent is allowed to use; the father was admonished (a Scottish procedure with no equivalent in English law) and struck off the register of teachers. (Times news report 20/5/99) In January 2000 the Government published a consultation document setting out various options for legislation on the physical punishment of children by parents and others. The government is determined that parents should retain the right to smack, but suggests outlawing the use of implements and/or any punishment causing actual bodily harm, particularly to the head. There is also some discussion as to whether the right to smack should be restricted to parents, or whether it should extend to others in loco parentis (e.g. grandparents, baby-sitters) with the parents' express or implied consent. (Update: Feb 2008 - This document is no longer live on the internet)

A parent's right to consent or withold consent to the child's adoption is discussed in the second part of this chapter, and the right to appoint a guardian is discussed above. A parent also has the right to administer the child's property and to make contracts on the child's behalf, and has the right to make applications to the court in various proceedings relating to the child's welfare.

On the other side, the most important parental duty is to maintain the child, by looking after him physically and/or providing financial support; failure to do so may lead to civil or criminal proceedings.

Non-marital children

About one-third of children are born to parents who are not married. The disadvantages of illegitimacy have been almost entirely eliminated by legislation over the past 25 years or so: even the word "illegitimate" is now frowned upon, and children born outside marriage are described (when such description is necessary) as non-marital or extra-marital children. Under the Legitimacy Act 1967 a child born of a void marriage is regarded as legitimate if at the time of conception or subsequent "marriage" either parent believed the marriage to be valid, and a non-marital child is automatically legitimised if his parents marry at some time after his birth. There are those who argue that the natural father of a child should stand in the same legal position whether or not he is married to the child's mother, and with as many as one in three children now born outside marriage there is something to be said for such an argument. The strongest counter-argument to any general principle of this kind, however, is the very wide range of actual relationships that may exist. As Balcombe LJ put it in Re H (Illegitimate children) [1991] 1 FLR 214, at one end of the spectrum [the father's] connection with the child may be only the single act of intercourse (possibly even rape) which led to conception; at the other end of the spectrum he may have played a full part in the child's life, only the formality of marriage to the mother being absent.

Non-marital children have the same entitlements as marital children in respect of maintenance and the inheritance of property, and the Family Law Reform Act 1987 sets out a general principle that in any law enacted or other instrument made after April 1988, no distinction is to be made between marital and non-marital children unless a contrary intention is evident. This principle does not apply retrospectively, however, so that (for example) under the British Nationality Act 1981 a child of unmarried parents cannot acquire British citizenship through his father alone. Similarly, since the descent of peerages and other titles of honour is governed by the words of the grant (which usually refer to "heirs of his body lawfully begotten"), such titles cannot pass to children born illegitimate even if they are subsequently legitimated.

The father of a non-marital child does not automatically have parental responsibility for the child, though he can obtain such responsibility under s.4 of the Children Act 1989. Where paternity is disputed by the putative father or by anyone else, ss.20-24 of the Family Law Reform Act 1969 (as amended) allow the court to order blood tests (or more recently, DNA tests based on other body samples) involving any two or more of the child, the child's mother, and any person alleged to be the child's father. No blood may be taken from any person without his or her consent (or the responsible parent's consent in the case of a child under 16), but refusal to consent may lead the court to draw such inferences as appear proper.

Re A (Paternity: refusal of blood test) [1994] 2 FLR 463, CA

A woman W had sex with three men including A, and subsequently gave birth to a child. She claimed maintenance against A, who denied he was the father, and the court ordered a DNA test. A refused to cooperate unless the other two men were also tested, and the judge accepted his argument as reasonable. Allowing W's appeal, the Court of Appeal said a court could legitimately infer from A's refusal that he was in fact the father: such an inference from a man's non-cooperation was virtually inescapable, said Waite LJ, unless there were clear and cogent reasons for his refusal.

Where a couple want children but are unable to conceive naturally, they may seek medical assistance. In artificial insemination the woman's egg is fertilised by sperm from her husband (AIH) or from some other donor (AID), and modern technology allows in-vitro fertilisation in which the egg (taken from the woman concern or some other donor) is fertilised in the test tube before being implanted in the womb. Under s.27 of the Family Law Reform Act 1987 any child born to a married woman by artificial insemination or in-vitro fertilisation with her husband's consent is regarded as the natural child of the woman and her husband, irrespective of the actual origin of the sperm and egg. Alternatively, the childless couple may enter a surrogacy agreement under which another woman will carry the child through pregnancy but hand him over at birth. The legal implications of such an arrangement are complex: the child is prima facie the child of the birth mother M irrespective of any agreement, but an order can be made under s.30 of the Human Fertilisation and Embryology Act 1990 that it shall be treated for all legal purposes as the child of a married couple H and W. The making of such an order is conditional on the child's being the genetic child of H and/or W, on the consent of M and the child's genetic father (if that is not H), and on no money having been paid or promised for the surrogacy except to cover reasonable expenses.

Re P (Wardship: surrogacy) [1987] 2 FLR 421, Arnold P

A woman X who already had a child of her own agreed with H and W to act as a surrogate mother in return for payment. H donated sperm and X was artificially inseminated, but during pregnancy she changed her mind and refused to hand over the twins PP when they were born. In wardship proceedings brought by the local authority with a view to clarifying the legal position, the judge declined wardship and awarded care and control to X. The children's welfare was the paramount consideration, he said: the court had to balance the material advantages of life with H and W (who were relatively wealthy) against the bonding that had already occurred through five months' living with X.

Wardship

The extensive statutory powers available to the court under the Children Act 1989 have reduced (but not altogether eliminated) the need for children to be made wards of court. Wardship is part of the inherent jurisdiction of the High Court, derived from the King's role as parens patriae but subsequently exercised by the Court of Chancery and since 1970 by the Family Division. Once a child is made a ward of court, the court itself stands in loco parentis and no important step in the child's life can be taken without the consent of the court. In particular, a ward may not marry, be adopted, or be subjected to major medical treatment or blood tests for the determination of parentage, without the court's consent. (The same wardship jurisdiction can be used to protect adults who because of serious illness or mental incapacity are unable to give informed consent to medical or other treatment.) The wardship procedure is governed by the Supreme Court Act 1981, and application must be made to the High Court. The child is warded as soon as the application is made, but wardship ceases if an originating summons has not been issued within 21 days. The Official Solicitor is normally appointed as litigation friend (formerly guardian ad litem) to represent the child's interests in the subsequent proceedings. The judge must first decide whether the court has jurisdiction to make the child a ward of court, and then (if so) whether that jurisdiction should be exercised or whether the desired result can be obtained by other means. The powers in the Children Act 1989 are often sufficient, and the court has a general inherent jurisdiction to protect children when necessary, even without making them wards of court.

Children Act 1989 s.100

(2) No court shall exercise the High Court's inherent jurisdiction with respect to children (a) so as to require a child to be placed in the care, or put under the supervision, of a local authority ... (3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied [that the desired result cannot be achieved in any other way, and] there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised ... the child is likely to suffer significant harm.

Re O (Medical treatment) (1993) Times 19/3/93, Johnson J

A child O needed medical treatment including a blood transfusion, but the parents (who were Jehovah's Witnesses) refused to consent. The family proceedings court, in the parents' absence, determined that O was "likely to suffer significant harm" and made an Emergency Protection Order. The local authority then sought a care order and the case was transferred to the High Court. Exercising the inherent jurisdiction of the court, the judge ordered that O be given appropriate treatment (including blood transfusions) whenever a medical need arose. Obiter, he said the inherent jurisdiction was the only appropriate framework in which to consider such a case, because the parents should normally be granted an inter partes hearing if their religious convictions were to be overridden.

Child abduction

One of the most distressing consequences of family breakdown is that children are sometimes illegally taken away from their home, often by the parent with whom they are not living. A "connected person" (that is, a parent, putative father, guardian, or person with a residence or custody order) who unlawfully takes a child under 16 out of the United Kingdom commits a criminal offence punishable with seven years' imprisonment under s.1 of the Child Abduction Act 1984. Any such taking is unlawful for this purpose unless it is done with the consent of the child's mother and anyone else with parental responsibility or a residence or custody order, or with the leave of the court, or by a person with a residence order who takes the child out of the country (e.g. on holiday) for less than a month.

Any person other than the child's mother or father, or a person with parental responsibility or a residence or custody order, who without good reason takes or detains a child under 16 so as to remove him from the lawful control of a person having legal custody of him, commits an offence similarly punishable under s.2 of the Act. The common law offence of kidnapping also remains in force and may be relevant where the child is over 16, though where the child is under 16 and the kidnapper is a "connected person" no prosecution may be brought for this offence without the consent of the Director of Public Prosecutions.

Re W, Re B (Child abduction: unmarried father) [1998] 2 FLR 146, Hale J

In two separate cases heard together for convenience, unmarried fathers without parental responsibility sought declarations that mothers had acted wrongly in taking a child out of the country. F1 had already applied for a parental responsibility order when M1 and her new husband emigrated with C1 to Australia, just a week before the final hearing of F1's application. The judge granted a declaration in this case: M1's behaviour was calculated to frustrate the process of law and her removing the child from the jurisdiction was a breach of the rights of custody attributable to the court. M2 had failed to return with C2 from a visit to her family in Ireland, but here there were no proceedings pending and no declaration would be made. Obiter, there was no authority to suggest that the different rights of unmarried mothers and unmarried fathers, or of married and unmarried fathers, violated the non-discrimination provisions of the European Convention on Human Rights.

Re KR (Abduction: forcible removal) (1999) Times 16/6/99, Singer J

A 17-year-old Sikh girl KR who tried to escape her cultural background was taken by her parents to a village in northern India, much against her will and probably with a view to a forced marriage there. KR managed to send a letter to friends in England, who took action to have her made a ward of court. The judge made orders which (with the cooperation of the Indian authorities) led to KR's return to England, and said child abduction is still child abduction even when both parents are the abductors and the child is nearly an adult. The court's sensitivity to traditional religious and cultural values must usually give way to respect for the integrity of the individual child, whose opposition to an enforced or arranged marriage will usually prevail.

The United Kingdom is party to various international conventions dealing with child abduction, which aim to ensure that children under 16 unlawfully abducted from one country are swiftly returned swiftly, even though the laws of the receiving country might have given custody to the abductor. The Conventions are based on a presumption that (at least within the first year after the abduction) the child should be returned and the courts of the home country allowed to determine any dispute over custody; this presumption is displaced only where the person with custody rights was not in fact exercising them (or consented to the child's removal), or where there is a grave risk that the child's return would expose him to physical or psychological harm, or where the child himself objects to returning and is of sufficient age and maturity that his views should be taken into account. In practice such defences only rarely succeed.

Re E (Abduction) [1989] 1 FLR 135, CA

H and W lived in Australia, and H returned to England with their 5-year-old child E. Once in England H told W he would not return, and W sought E's return under the Hague Convention. H claimed W was promiscuous and took drugs, and said E would be at risk if they returned, but the judge rejected this defence and made the necessary order. H's appeal failed: Balcombe LJ said abducting parents should not be allowed to use delaying tactics to frustrate the urgent return required by the Convention. The investigation of H's allegations was a matter for the Australian courts, which had ample powers to protect E if they proved to be well-founded.

Re A (Abduction) [1991] 2 FLR 241, CA

H and W lived in Arizona and had joint custody of their children. W brought the children to England for a three-month holiday, and then told H she would not return. H came to England and said (inter alia) that he would not try to remove the children, but on his return to America H obtained a divorce and custody order and (having only just learned of the possibility) applied for the children to be returned under the Hague Convention. The judge made an order accordingly and W's appeal was dismissed: H had not truly acquiesced in the wrongful retention of the children in England, particularly since W had not in fact believed his assertions (made purely to protect his own position) that he would not try to reclaim them.

B v K (Child abduction) [1993] Fam Law 17, Johnson J

A German mother K now living in Germany brought her three children to England (where they had been brought up) and started divorce proceedings against her husband B. B applied for the children to be returned under the Hague Convention, and the judge said B must succeed unless one of the defences applied. He did not accept the children were at risk of physical harm, because on the facts it was clear that if he ordered their return, K would return with them. The two eldest children were 9 and 7 and were old enough for their views to be taken into account; it was irrelevant that they did not want to live with their father, because any order would be for their return to Germany, not their return to B. But it was clear that they did not want to return to Germany at all, and that wish should be respected. As for the youngest child (whose views could not be taken into consideration), he would suffer psychological harm if ordered to return while his siblings remained in England, so no order would be made for the return of any of the children.

Re T (Abduction: Custody rights) (2000) Times 24/4/00, CA

A father F resident in England abducted two children (G11 and B6) from the custody of their mother M in Spain, the issue of custody at that time being before the Spanish courts. Wall J ordered the return of the children to M under the Hague Convention, but his decision was reversed by the Court of Appeal. M was an alcoholic, the children had been subjected to "emotional abuse", and G (who because of M's condition had matured beyond her years) had objected coherently and strongly to being returned to live with her. G was of an age and maturity such that her views should be given considerable weight, even though they might have been influenced by F's hostility towards M. As for B, it had been G who had borne much of the responsibility of caring for him, and it would not be in his interests that he should be returned to M alone.

The main weakness of the conventions, however, lies in the fact that they are applicable only in those countries which have acceded to them. Many Islamic countries in particular are not party to the Hague Convention, and since their laws generally give legal custody to a child's father alone, an application by a British mother for the return of her abducted child is unlikely to make much progress.