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Published: Fri, 02 Feb 2018

Family Law and Neglect | Free Family Law Essay

Alison and Benjamin were good

friends. Benjamin was very keen on having children and Alison agreed to have a

child with him, but medical tests indicated that he had a low sperm count. In

2004, they decided to attend a fertility clinic, stating that they were

partners. Unknown to Benjamin, Alison was having an affair with Charles.

In May 2005, Alison gave birth to

Serena. Her relationship with Charles ended and she has since refused to let

Benjamin see Serena, saying that the child is not his. In June 2005, Benjamin

found out from a common friend that Alison had given Serena to Lisa and Fred, a

married couple, and that she was paid £15,000 by them. Apparently, Alison had

agreed to have a baby for them, as Fred has a rare genetic order and had been

advised not to have children. Lisa already has three children living with them

from a previous relationship- Maria, aged 4, Ned, aged 8, Olaf, aged 14.

Lisa has recently been unwell and

Fred is unable to tolerate the strain of looking after the three children and

the baby, Serena. The neighbours have heard Fred shouting and the younger

children crying. One of the neighbours has said that she saw Fred shaking the

baby Serena to stop her from crying. The school has also noticed that the

children look very tired, unkempt and that Ned has a very bad bruise on his

arm. Unknown to Lisa, several years ago, Fred was questioned by the police in

relation to an allegation of sexual abuse by a young girl, but there was

insufficient evidence to prosecute him. Olaf has recently been diagnosed with a

kidney disorder and the doctors recommend a transplant. Ned, his younger

brother, has agreed to donate one of his kidneys. Although Fred and Lisa

approve of the operation , Olaf is adamantly opposed to it, as under his aunts

influence he has recently become a devoted Jehovas witness, the tenets of which

preclude, for example blood transfusions, Olaf has threatened to leave home and

move to his aunts house if they do not respects his wishes.

Alison now bitterly regrets having

given Serena away. She says that she is her legal mother and wants to look

after her. She is, however unemployed and concerned about receiving sufficient

child maintenance. Benjamin insists that he is Serena Father and has threatened

to initiate legal proceedings so that Serena can live with him and his

girlfriend. Last week Benjamin assaulted Alison when she told him about her

affair with Charles. The Ever Ready Social services has been alerted about all

four children and are considering there options in relation to them.

Advise Alison, Benjamin, Olaf and

the Ever ready Social services as to what steps they can take in light of the

above circumstances.

Law governing domestic relations

always treads a very careful line between protecting the rights of privacy of

people living in a liberal state and the need to protect and regulate certain

relationships that are open to extreme abuse. In the following situations we

will advise four inter-related person’s on the legal consequences of their

domestic situations and disagreements.

Alison

The first step in establishing the

likelihood of Alison being able to fulfil her desire and have Serena returned

to her is to establish the existence of parental rights given the somewhat

complex situation in which Serena was conceived. The existence of in vitro technology has caused novel problems for the law’s approach. The vestment of

rights and responsibilities in the mother was, at common law and statute,

straightforward, automatic and fundamentally premised on the genetic tie to the

child concerned. However, the potential for the genetic link between mother and

child to be broken by the implanting of a foreign embryo in her womb means that

the law must have some method of resolving disputes over who has parental

rights and responsibilities. This situation does not exist in this case however

the issue of surrogacy is linked to the regulation of parental responsibilities

and rights in conjunction with these new technologies under the Human

Fertilisation & Embryology Act 1990.

It would appear as though Alison

had a surrogacy arrangement with Fred and Lisa to give them Serena for a

certain amount of money. It is well established that the gestational mother, in

this case Alison, automatically inherits parental rights and responsibilities

under s.27 (1) of the HFEA 1990. This includes the right to determine the

child’s residence and other correlative rights.

The commissioning couple, in this situation Fred and Lisa, have tow options to

formalise their relationship with Serena. They can, within 6 months of the

birth, apply for a parental order under s.30 of the HFEA 1990; this is

equivalent to a speedy adoption process.

They could make an application under the Children Act 1989 for a residence

order or they could opt for the full adoption process. It appears at the moment

that Lisa and Fred have done none of the above and therefore currently do not

have any legal relationship with Serena. This however does not mean that it is

merely a formality for Serena to be returned to Alison.

In order for Alison to have Serena

returned, presuming Fred and Lisa are unwilling to return her voluntarily, she

will have to make an application to the court to make a residence order under

s.8 of the CA 1989 in her favour. In doing this Fred and Lisa may well make

some form of counter-claim for parental responsibilities whether this is a

residence order, adoption order or a parental order. The courts have given us

little guidance as to the outcome in surrogacy disputes over the years given

the infrequent nature of disputes of this kind. In RE P the court held that where the surrogate mother declined to hand over the twin

babies to a married couple it was of the utmost importance to maintain the

maternal bond and awarded what was then ‘custody’ to the mother. However, in C

v. S a very similar situation arose to the facts in this case where the

commissioning parents had been de facto in charge of the child for a

year. Although a Scottish case the reasoning would certainly exert influence on

English Law and in this case the Sheriff felt that the welfare of the child

being the paramount principle required the court to adjudicate in the favour of

the surrogate parents given that the child had established a bond with them and

their genetic mother was a stranger.

In attempting to conclude the

likelihood of success of Alison’s action I draw on wider case-law on the issue

of the blood link in parenthood. The case of Re K (A Minor) (Custody) established that the relevant question is not to consider who can offer a

better home but whether the welfare of the child positively demands the

displacement of the parental right. In that case a child was removed from his

Aunt and Uncles were a disturbed child had apparently ‘flourished‘ and

given to his father. Similar situation arose in Re K where the child had

formed strong bonds to the Uncle and Aunt but the Mother changed her mind about

the arrangement 18 months after she had handed over the child and applied for

custody. Butler-Sloss LJ relied on other psychological evidence to the effect

of enhanced sense of identity. In Re W (A Minor) (Residence Order) 1993 the maternal grandparents had looked after a boy who had been very disturbed

and emotionally deprived, the grandparents were acknowledged to have ‘worked

wonders‘ with the child, the child wished to stay with his grandparents but

the judge gave residence to the father. In spite of all the contrary evidence,

fortunately it became clear on appeal that the father wouldn’t be able to

provide a perfect normal family and the order was overruled. In Re M

(Child’s Upbringing)and Re B (A Minor) children had been removed from their parents to another culture for some time

by the time the court awarded residence to the parents, particularly in Re M where the child had been with the parents for 4 years by the end of litigation,

spoke little of his native language and was well settled.

Given the overall favouring of the

blood-link in English domestic relations law generally I would argue that the

evidence of violence and investigation by social services of Fred and Lisa

would be enough that the blood link presumption would operate in favour of

Alison and she would be able to get a residence order over Serena.

Benjamin

Benjamin faces much the same

situation as Alison in that he must primarily establish his paternity and then

make out his case to have Serena returned to him. The paternity issue is confused

given that Alison was having an affair with Charles at the time and presumably

it is difficult to tell whether the pregnancy ensued from the fertility

treatment or the affair. The position of unmarried fathers in law is not

particularly satisfactory, they do not get automatic parental rights or

responsibilities and the situation is always more difficult than for the

mother. In this situation there are three potential fathers; Benjamin, Charles

or Fred. In the same way as we mentioned above Fred can be discounted as there

doesn’t seem to have been any legal actions taken by the surrogate couple and

therefore he has no parental rights or responsibilities.

s.28 (3) of the HFEA 1990 deals

with the situation where an unmarried couple go to treatment ‘together‘,

given that none of the paternity qualifications in normal circumstances (i.e.

he is not married to Alison (s.2 (1) CA 1989) nor is he, as far as we know,

been subject to a parental responsibility agreement pursuant to s.4 of the CA

1989) we have to look at the HFEA 1990 to establish his paternity automatically.

The Warnock Committee considered this very issue and in a progressive move

allowed unmarried partners to have automatic parental rights, this translated

into s.28 (3) of the HFEA 1990 which provides that ‘in the course of

treatment services provided for her [The Mother] and a man together’ then the man will be considered to be the father. This only operates if the

procedure used, required donation from a third party as s.28 (3) (b) requires

that the man is not to be the donor of the sperm. We do not have details of the

treatment but if it was Artificial Insemination by Donor or In Vitro

Fertilisation using another man’s sperm then this presumption operates. If not

however and it was Benjamin’s sperm then he will be in the same position as an

unmarried father which as mentioned above doesn’t automatically give him rights

and responsibilities. He could in conjunction with an order for residence also

request an order of parental rights and responsibilities under s.4 (1) (a) of

the 1989 Act. However, this will operate primarily on the basis of blood groups

and DNA profiles and if Alison is correct and it is in fact Charles that is the

genetic father Benjamin’s order will be rejected. This would effectively bar

him from requesting an s.8 order for residence in that he would not fall in any

of the categories entitled to make a claim.

However, assuming that he wasn’t

the sperm donor or he was the genetic father we now have to consider his

application for residence with him and his girlfriend. Presumably in this case

the actions of both Alison and Benjamin would be joined so the court could make

a uniform decision between maintaining the status quo and granting

residence to Benjamin or Alison. We have already seen in Alison’s example that

the blood link presumption is strong. The operation of this doctrine in

Benjamin’s case is unclear because he might have parental rights and

responsibilities but not actually be related to the child genetically. However,

given the unsatisfactory nature of Fred and Lisa’s relationship with the

children it was argued above that a residence order would be considered in any

case.

This would effectively bring Alison

and Benjamin into conflict over who would best serve the child’s welfare. The

court’s in recent years have taken a move away from unilateral residence orders

and following the landmark case of D v D (Shared Residence Order) where the court seemed to reject decades of case law on the issue and state

that the best interests of the child may be suited to this and that there was

no need for exceptional circumstance nor even a positive benefit.

This is a distinct option in this case where the issues are finely balanced

given Benjamin’s assault on Alison, Alison’s behaviour in refusing contact,

selling Serena to Lisa and Fred, Serena’s lack of finances to support Serena

and the potential of a nurturing nuclear family in Benjamin and his girlfriend.

All these factors must be weighed and the application of the Welfare principle

will be different in every situation. However, on the information provided it

would appear as though the case law favours Benjamin given his stable family

relationship and ability to provide for Serena.

Olaf

The issues surrounding Olaf are

complex but despite the controversy that surrounds this area of law the issue

of competence in adolescent children to make important decisions especially

concerning the use of medical treatment is an area which appears to be settled.

The starting point of any

discussion in this area is the case of Gillick v. West Norfolk & Wisbech

Area Health Authority and in particular the now famous dicta by Lord Scarman:

The underlying

principle of the law is … that parental rights yield to the child’s right

to make his own decisions when he reaches a sufficient understanding and intelligence

to be capable of making up his own mind on the matter requiring decision

This is also a fundamental tenet of

Human Rights in Article 12 which also ensures that children’s views be taken

into consideration. There is not a definitive age at which Gillick-competence

materialises but relies on the ‘sufficient intelligence and understanding

test. Gillick was seen by many commentators as the zenith of liberal

state regulation of domestic relationships however the court has in recent

years moved towards more of a state paternalism and a willingness to overrule a Gillick-competent child. On more direct authority we have the case of ReR

(A Minor) the court here held that Gillick was on the issue of consent to

treatment and imported a test whereby it only required the consent of either

the parents or the child. This has been subsequently followed and the law now

imposes a ‘flak jacket‘ test

whereby consent is necessary only as protection from liability for doctors and

that as long as consent comes from one interested party whether that be the

courts or a Gillick-competent child. The position was stated by Lord Donaldson

in the case of a Gillick-competent child to be that parents could not override

refusal to consent but that the courts could.

Therefore on the above authorities Olaf has the right to consent to the

treatment, his parents cannot overrule this decision however if the doctors

decide to apply to the court they could overrule his decision. The court

wouldn’t do this per se but there is the potential. The decisions

discussed above and subsequent ones such as Re K, W and H (Minors) (Medical

Treatment) have been where the child was suffering some sort of psychological problem and

overruled his decision, this situation would be novel and as such would turn on

the psychological state of Olaf and the courts adherence to either principles

of paternalism of liberalism.

Ever Ready Social Services

Ever Ready Social Services are

considering its options in the current situation given the allegations of

shouting, the evidence of the bruising on Ned’s arm and the general demeanour. The

approach of Social Services is generally premised on a ‘no-order principle’

or a ‘minimum intervention principle’.

The difficulty and the negative outcomes of this policy have caused huge debate

in all UK jurisdictions in recent years. Ever Ready have all the orders under

Part V of the CA 1989 such as Emergency Protection orders, Removal and

Accommodation Orders and other such legal paraphernalia however fundamentally

speaking whilst the CA 1989 discourages overly paternalistic intervention it

does place a duty on local authorities to investigate where they ‘have

reasonable cause to suspect that a child who lives, or is found, in their area

is suffering, or is likely to suffer, significant harm‘.

The recent case law has emphasised the balance that has to be paid to these two

legal principles of duty to investigate and duty not to intervene in private

family life excessively.

The courts have provided guidance on this issue in the recent X Council v. B

(Emergency Protection Orders) EPO’s should only be undertaken if the

situation is such that the children are in a high level of imminent danger

therefore in consideration of the facts this probably wouldn’t be an acceptable

course of actions.

Ever Ready probably has enough

information to order a Child Assessment order so that they can obtain more

precise information as to whether the children are suffering, or likely to

suffer, harm. The existence of a previous allegation of sexual abuse against

Fred and the evidence of the neighbours of Shouting go towards the balance of

probabilities threshold that a local authority are required to prove in order

to establish that the order is in the welfare of the child.

However given the dicta in X Council and the opinion of academics these

orders should only be considered if the local authority has attempted informal

procedures to try and see the child and consult with the parents. The use of informal

methods followed by a Child Assessment Order if they fail has to be the first

two steps to take. The evidence presented in the question does not give

sufficient grounds for any more stringent actions even given the previous

allegations.

Bibliography

  • Diduck

    & Kaganas Family Law, Gender and the State Oxford / 1999

  • Edwards, Lillian & Family

    Law W.Green / Sweet & Maxwell/Griffiths, Anne 1997

  • Douglas

    & Lowe Becoming a Parent in English Law (1992)

    108 LQR 414

  • Hudson, Richard Children’s

    Rights and Gillick 1989 NLJ 49

  • Hutchesson, Peter Re W

    (a minor) (refusal of 1992 NLJ 1124 medical

    treatment)

  • Iwaniec, Dorota, Research

    — The Plight Of 2004 CFLQ 423

  • Donaldson, Theresa Neglected

    Children — Social Work & Allweiss, Hon. And

    Judicial Decision-Making,

  • Judge Martin And

    Management Of Neglect Cases

  • McCallum, Louise Shared

    Residence — Just A Label? 2004 Fam LJ 528

  • Radevsky, Tony The

    Standard of Proof in Wardship 1988 NLJ 125


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