law relation to children-family law

5/8/2014

LLB 3 LRC 1314 |

LONDON SOUTHBANK UNIVERSITY

LAW RELATION TO CHILDREN 2013-14

Law Relation to Children 2013-14

Table of Contents

QUESTION 1.........................................................2

QUESTION 2.........................................................5

QUESTION 3.........................................................9

QUESTION 4........................................................12

QUESTION 5........................................................16

WORD COUNT........................................................20

BIBLIOGRAPHY......................................................21

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QUESTION 1a) We were told John learnt from a mutual friend that Isabelle

planned to permanently relocate to Spain later this week, taking

with her Mary. The starting point is that it is not an offence

for a parent to remove a child from the UK’s jurisdiction

provided he or she has the permission of either anyone with

parental responsibility or the court.1 However, since Isabelle,

being a connected person,2 does not seem to have either of these

permissions, but had made plans to within days remove Mary to

Spain; John may make a formal criminal allegation of child

abduction and request a Port Alert.3 Although “Ports Alerts only

last for 28 days”,4 the police may only activate the system if

there are satisfactory grounds to believe that the alleged risk

of Mary’s removal is real and imminent. Where possible, John may

provide pictures of both Isabella and Mary, and information

regarding their potential point of exit to the police. Then, the

police will notify all point of exit from England and Wales, and

possibly Isabella and Mary will be prevented from leaving the UK.

This is the case “although with the volume of traffic at air and1 Child Abduction Act 1984, s.1.2 Child Abduction Act 1984, s.1 (2).3 NewLawJournal: Mind that child < http://www.newlawjournal.co.uk/nlj/content/mind-child> Assessed 22/04/14.4 Alternative Family Law International: Steps to Prevent Abduction < http://www.alternativefamilylaw.co.uk/en/international/preventing-childabduction.htm> Assessed 22/04/14.

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http://www.alternativefamilylaw.co.uk/en/international/preventing-childabduction.htm

http://www.alternativefamilylaw.co.uk/en/international/preventing-childabduction.htm

http://www.newlawjournal.co.uk/nlj/content/mind-child


channel ports these are of doubtful efficacy”.5 Thus, once they

are found, Isabella and Mary’s passports maybe taken away by the

police6 and Isabella will be ordered not to remove Mary from the

jurisdiction of the Court.7

Furthermore, as soon as Isabella’s movement is curtailed using

the above mentioned measures or if Mary’s removal is not

imminent, John may apply for a prohibited steps order8 to stop

Isabelle from removing Mary. However, the proceedings may not

last more than 26 weeks except where more time is needed to

resolve the matter justly.9 Since, John is named in Mary’s birth

certificate as the father although he is not married with the

mother, he will be entitled under s.10 (4) (a)10 to apply for s.811

orders. It is important to mention at this point that in

considering whether or not to make the orders Mary’s welfare will

be the court’s paramount consideration, rather than that of John

or Isabella.12 Equally, the court shall not make such order unless

making the order will benefit Mary.13 We were told Mary was born

14th of October 2013; hence, Mary will be about 6 months old.5 Clare Renton: Practical Case Management of Child Abduction Cases (2006) <http://www.familylawweek.co.uk/site.aspx?i=ed2255> Assessed 22/04/14.6 Family Law Act 1986, s.36.7 Family Law Act 1986, s.35.8 Children Act 1989, s.8 (1).9 Children and Family Act 2014, s.14.10 Children Act 1989, s.10 (4) (a).11 Children Act 1989, s.8 (1).12 Children Act 1989, s.1 (1).13 Children Act 1989, s.1 (5).

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http://www.familylawweek.co.uk/site.aspx?i=ed2255


Under s.1 (3) (d)14 (welfare checklist), the court must take

Mary’s age into consideration.15 Although the court may be

hesitant to make s.816 orders as a result of Mary’s dependency on

Isabella; also the risk of harm which may flow from John’s

violence history,17 however, the court has to consider the likely

effect upon Mary if contact with John is denied.18 In Re AR (A Child:

Relocation),19 held “the court making s.820 orders must consider the

motive of both parents”.21 Isabella may argue that she had chosen

to return permanently to live with her family in Spain because

she thinks she and Mary will be safe, having endured numerous

domestic violence as a result John’s alcoholic addiction. In

contrast, John may oppose her submission and argue that

Isabella’s intention is motivated by her selfish interest to

exclude him from Mary’s life, which conversely may have negative

impact on him as he loves Mary with all his heart. Even though it

is hard to predict which argument the court would prefer over the

other; what is clear is that “the only authentic principle that

runs through the entire line of relocation is that of the child’s

14 Children Act 1989, s.1 (3) (d).15 ibid.16 Children Act 1989, s.8 (1).17 Children Act 1989, s.1 (3) (e).18 Children and Family Act 2014, s.11 (1)(2); Children Act 1989, s (1) (2A) (2B).19 [2010] EWHC 1346 (Fam).20 Children Act 1989, s.8 (1).21 Mosty J in Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam).

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welfare”,22 which remains the paramount consideration of the

court.23

b) If, however, John’s name is not mention in Mary birth’s

certificate but (without being married) he lives together with

Isabella; the starting point is that he will not have parental

responsibility for Mary.24 Hence, such question as to whether or

not Mary is to reside abroad will be Isabella’s sole

responsibility. Nonetheless, this may not override the parental

involvement presumption under the 2014 Act.25 Accordingly, it

follows that it is to the best interest of a child to have

contact with the parents.26 Section 1 of Child Abduction Act 1984

makes removing a child out of the UK an offence provided the

parent or other person removing the child did not obtain

appropriate consent.27 However, John consent will not be required

as he may not be a father under s.1 (3).28 Yet, in Re C (Minor)

(Adoption: Residence Orders)29 the Court Appeal held that the term

‘parent’ has a wider definition so that “a putative father who

has not already acquired parental responsibility does not have to22 Black LJ in k v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [54].23 Munby LJ in Re F (Child) [2012] EWCA Civ 1364[42].24 Children Act 1989, s.2 (2) (a).25 Children and Family Act 2014, s.11.26 Payne v Payne [2001] EWCA Civ 116; Re O (A Child) (Contact: Withdrawal of Application [2003] EWHC 3031.27 Child Abduction Act 1984, s.1.28 Child Abduction Act 1984, s.1 (3).29 (1992) Times, 19 November.

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seek a leave of the court before applying for s.830 orders”.31 So,

it seems the fact that John and Isabella had known each other for

5 years, lived together for over three years, and had Mary while

still living together, will be carefully considered by the court.

As a result, John may not need leave of the court to make s.832

application.33 It is submitted that the order will be sufficient

provided the application is made on time, and the order issued by

the court before Isabella is able to remove Mary to Spain. This

is the case unless Isabella had made s.1334 application and

obtained permission to remove Mary.35 However, since John did not

have parental responsibility,36 he may not be able to invoke Port

Alert System as without such statutory right Isabella will not be

committing an offence.37 Therefore, it is submitted that John

stands a better chance to stop Isabella from removing Mary from

the UK if he has a parental responsibility. It follows that

provided John is named on Mary’s birth certificate even though

Mary is still 6 months old, it is likely that John will succeed

not only in stopping Isabella from Removing Mary to Spain but

30 Children Act 1989, s.8 (1).31 Re C (Minor) (Adoption: Residence Orders) (1992) Times, 19 November. 32 Children Act 1989, s.8 (1).33 Children Act 1989, s.10 (4) (a).34 The Children Act 1989, s.13.35 Re WB (Residence Orders) [1995] 2 FLR 1023.36 Children Act 1989, s.3 (1).37 Child Abduction Act 1984, s.1 (3).

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also in securing a prohibited steps order38 which will prohibit

Isabella from future removal of Mary out of the UK’s

Jurisdiction.

QUESTION 2a) John may start proceedings to bring back Mary under either the

European Convention on Recognition and Enforcement of Decisions

concerning Custody of Children and on Restoration of Custody of

Children or the Hague Convention of 1980 on the Civil Aspects of

International Child Abduction. However, to maintain cogency and

to avoid conflict of laws, since in practice the regimes have

similar effect, John may choose to apply under the Hague

convention.39 Although John will have to offset legal cost accrued

in the proceedings,40 he would have to going through the

International Child Abduction and Contact Unit which is the

designated Central Authority for England.41 It must be mentioned

at this point that the “Central Authority is required by the

38 Children Act 1989, s.8 (1).39 The Hague Convention of 1980 on the Civil Aspects of International Child Abduction.40 Gov.UK: <http://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit/action-to-take> Assessed 23/04/14.41 Gov. UK: Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention) < http://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit> Assessed 23/04/14.

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http://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit

http://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit


convention to promote the peaceful enjoyment of access rights,

including taking proceedings to organise and protect access”.42

The starting point is that “where a foreign court has custody

rights over a child and removal of the child is wrongful; if

there is no risk that return will place the child in an

intolerable situation there is a mandatory duty to order

return”.43 However, in order to invoke the convention John must

show that a) he has rights of custody or rights of access.44 It

seems John will satisfy the custody criteria as he is named on

Mary’s birth certificate as the father; unless he is not, then,

he may argue that by virtue of living with Mary since she was

born he has acquired right of access. b) John must show that Mary

habitual residence is England.45 This is a question of fact. The

law use to be that “the habitual residence of a baby was that of

the people who had parental responsibility for the baby”,46

however, this principle has recently received negative judicial

treatment.47 The law has now been settled by the Supreme Court in

LC (Children) (International Abduction: Child's Objections to Return) Re ,48 held “the42 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.21.43 B v B (Child Abduction: Custody Rights) [1993] Fam. 32.44 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.3.45 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.4.46 Charles J in B v H (Habitual Residence: Wardship) [2002] 1 FLR 388.47 See Patten LJ in ZA & Anor v NA [2012] EWCA Civ 1396.48 [2014] UKSC 1.

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test is whether there was some degree of integration by her (or

him) in a social and family environment there”.49 Mary is below

the age of 16,50 too young to have her own state of mind which may

necessitate such degree of integration;51 hence, it is submitted

that England may still be regarded as her habitual residence.52 c)

Under art.3,53 John must show that Mary was wrongfully removed or

retained. Whether or not Mary was wrongfully removed will depend

on if John has rights of custody or “access which would have been

so exercised but for the removal or retention”.54 In B v B (Child

Abduction: Custody Rights)55 A Canadian mother who had an interim

custody of a child who she later removed into the UK without the

consent of the father, who had rights of access; allowing the

husband appeal the Court of Appeal held “removal of the child was

wrongful within the meaning of art.3”56 Therefore, provided John

is able to show that he has rights of custody or access, that

England is Mary’s Habitual residence and that she was wrongfully

49 Lord Wilson in LC (Children) (International Abduction: Child's Objections to Return), Re [2014] UKSC 1.50 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.4.51 Lord Wilson in LC (Children) (International Abduction: Child's Objections to Return), Re [2014] UKSC 1.52 W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008.53 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.3.54 Hague Convention of 1980 on the Civil Aspects of International Child Abduction, art.3a, b.55 [1993] Fam. 32.56 B v B (Child Abduction: Custody Rights) [1993] Fam. 32.

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removed to Spain by Isabella, the Spanish court is under a duty

to order the immediate return of Mary to the UK.

b) How, then, can Isabella legally oppose Mary’s return to England?

Isabella may argue under Article 12 and 1357 and the court has

discretion to refuse Mary’s return if the conditions under the

articles58 are satisfied. Under art.1259 the court may refuse

immediate return of Mary if it has been over 12 months since Mary

was removed.60 However, since Mary’s removal happened just last

week, art.1261 cannot be invoked. Furthermore, Isabella may argue

that John was not actually exercising his custody or access

rights at the time Mary was removed; or that he acquiesced62 in

the removal.63 This is not an argument John will be ready to

entertain. Hence, John may argue that the reason he did not visit

or seek a court order when Isabella left to stay with her friends

was because he had hoped she will return home after some weeks.

It is submitted that Isabella’s argument may not be sufficient to

evoke art.13 (a).64 We were told that John and Isabella’s

57 Hague Convention of 1980 on the Civil Aspects of International Child Abduction, Art.12, 13.58 ibid.59 Hague Convention of 1980 on the Civil Aspects of International Child Abduction, Art, 12.60 ibid.61 ibid.62 A (Minors) (Abduction: Custody Rights), Re [1992] Fam. 106.63 Hague Convention of 1980 on the Civil Aspects of International Child Abduction, Art.13 (a).64 ibid.

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relationship was marred throughout by John’s alcohol addiction

which has in various occasions resulted into violent towards

Isabella. Article 13 (b)65 provides that the court has discretion

to refuse return if “there is a grave risk that his or her return

would expose the child to physical or psychological harm or

otherwise place the child in an intolerable situation”.66

Accordingly, in deciding whether or not to refuse Mary’s return

the court may seek to probe evidence of John’s alcohol addiction

as well as the history of domestic violence. The starting point

is that Isabella has a burden of proof under art.13 (b)67 “which

is a heavy one which required clear and compelling evidence that

returning Mary will expose her to physical or psychological harm

or place her in an intolerable situation”.68 In F (A Child), Re69 where

the “appellant mother appealed against a decision ordering the

return of her three-year-old child (R) to Italy following an

application by the respondent father. The mother asserted that

following R's birth, the father had repeatedly behaved violently

towards her and the relationship had therefore ended”.70 The Court

65 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.13 (b).66 ibid.67 ibid.68 F (A Child), Re [2014] EWCA Civ 275.69 [2014] EWCA Civ 275.70 F (A Child), Re [2014] EWCA Civ 275.

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of Appeal held “mother’s case under art.13 (b)71 was not made out

because there was insufficient evidence of a grave risk to R”.72

Therefore, applying this principle to our case, it will seem

highly unlikely Isabella will be able to convince the court to

refuse Mary’s return. This is the case provided the Spanish court

is persuaded by the principle in F (A Child), Re.73 It is therefore

submitted that, if art. 13(b)74 did not apply and Mary removal is

found to be wrongful, the court is under a mandatory duty to

order her immediate return to the UK.75

QUESTION 3a) As Catherine and Brian is Dominic’s parent, it is likely they

will have parental responsibility;76 accordingly, this right comes

with obligations to care for and to promote Dominic’s welfare.

Equally, the local authorities are under a statutory duty to

assist parents and children in need.77

We were told Mehreen was carrying out investigation pursuant to

s.47,78 and that the investigation was obstructed because Brian

71 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.13 (b).72 F (A Child), Re [2014] EWCA Civ 275.73 ibid.74 Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Art.13 (b).75 (C v C (Abduction: Rights of Custody Abroad) [1989] 1 W.L.R. 654, A (Minors) (Abduction: Custody Rights), Re [1992] Fam. 106.76 Children Act 1989, s. 2 (1) or (2).77 Children Act 1989, s. 17 (1).78 Children Act 1989, s. 47 (1).

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refused her access to the Dominic.79 Under s.47 (6),80 the local

authority must, where such access is refused, “apply for an

emergency protection order, a child assessment order, a care

order or a supervision order with respect to the child unless

they are satisfied that his welfare can be satisfactorily

safeguarded without their doing so”.81 It important to mention at

this point that children are best brought up within their

family,82 so, there are emphases that local authorities must,

whenever possible, work in partnership with a child’s parent or

other members of the parent’s family to find alternative solution

before making an order to the court. It follows that, since “no

baby, no child, can be removed simply as the result of a decision

taken by social workers in some room”,83 the Southwark Council may

start by applying for an emergency order84 which lasts between 8

days to 1585 days in total; and “should not be made for any longer

than is absolutely necessary”.86 The order if made by the court

would give the Southwark Council shared parental responsibility

with Dominic’s parents and this will enable the council to take

79 Children Act 1989, s. 17 (4).80 Children Act 1989, s. 17 (6).81 ibid.82 Baroness Hela in Re B (Care proceedings: Standard of Proof) [2008] UKHL 35.83 Munby J in R (G) Nottingham City Council [2008] EWHC 152 [18].84 Children Act 1989, s. 44.85 Children Act 1989, s. 45 (1) (5).86 Munby J in X Council v B (Emergency Protection Order) [2004] EWHC 2015, [57].

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Dominic into care and to carry out further investigation. More

so, the local authority may apply for care order87 if there is

evidence warranting the order. In most cases the court would wish

to have an independent investigation of the Dominic’s

circumstances,88 however, the court must now dispose any

application for care order without delay, and in any event within

twenty-six weeks.89 Hence, provided there are reasonable grounds

for believing that s.31 (2)90 grounds will suffice, the court may

make consecutives interim care order91 pending the final hearing.

b) Furthermore, in respect to emergency order the Council may use

evidence of domestic violence and bruises to Dominic’s body to

show that it has reasonable cause to suspect that Dominic is suffering,

or is likely to suffer, significant harm.92 The threshold is quite

low93compared with that under s.31 (2).94 Here, “[a] court may only

make a care order or supervision order if it is satisfied that Dominic is

suffering, or is likely to suffer, significant harm.95 Harm is defined as

ill-treatment or impairment of health or development.96 Although87 Children Act 1989, s. 31 (1) (a).88 ; Stephen G and Gilmore, Hayes and Williams’’: Family (3rd edn, Oxford University Press 2012) 614.89 Children and Families Act 2014, s.1 (a) (b).90 Children Act 1989, s.31 (2).91 Children Act 1989, s. 38 (1).92 Children Act 1989, s. 44 (1) (b) when read together with s.47 (1) (b).93 Scott Baker J in R (S0 v Swindon Borough Council and another [2001] EWHC (Admin) 334.94 Children Act 1989, s.31 (2).95 Children Act 1989, s.31 (2) (a) (b).96 Children Act 1989, s.31 (2) (a).

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exposing a child to domestic violent may impair his emotional

development,97 the starting point is that Dominic Bruises, without

prove of causative link, will not, by itself, be sufficient to

satisfy s. 31 (2)98 threshold.99 Hence, the Southwark Council may

not, without further evidence, be able to prove that Dominic has

suffered significant harm, unless the court found the bruises to

be “considerable or noteworthy or important”.100 Alternatively,

the Southwark Council may want to proof that Dominic is likely to

suffer significant harm. Their lordships held in Re H and others

(Minors) Sexual Abuse: standard of proof)101 that ‘likely’ means sense of

real possibility that cannot sensibly be ignored having regard to

the nature and gravity of the feared harm”.102 Whether or not, in

the circumstance, Dominic will be likely to suffer significant

harm is a question of fact which may be decided whenever the

Southwark Council is able to carry out a full investigation

(including medical checks). What is true, however, is that “the

law operates a binary system in which facts in issues are either

proven or not”.103 It follows that the word ‘satisfied’ under s.31

97 Report of the Inquiry into Child Abuse in Cleveland 1987 Cmnd 412 (1987),p4.98 Children Act 1989, s.31 (2).99 CL v East Riding Yorkshire Council, MB and BL (A Child) [2006] EWCA Civ 49.100 Booth J in Humberside County Council v B [1993] 1 FLR 257.101 [1996] AC 563.102 Re H and others (Minors) Sexual Abuse: standard of proof) [1996] AC 563.103 Re B (Children) (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2008] AC UKHL 35.

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(2)104 is the language of proof, hence, “suspicions of lingering

doubts could not form a proper basis for concluding that likely

significant harm had been established”.105 Therefore, provided the

Southwark Council is able to prove a real risk which is more than

a mere suspicion the court may make an interim or care order.

Once s.31 (2)106 threshold is established, the court must, as “the

child’s welfare is paramount”,107 consider whether looking at all

the circumstance of Dominic, making a care order will be in his

best interest. To do this, the court must look at s.1 (3)108

checklist factors. Dominic wishes, being 4 years old, may not be

easily ascertained,109 and his emotional needs are at the present,

unknown.110 Since, we were only told he had bruises which their

causes are yet to be proven.111 There is simply not enough fact to

make a reasonable conclusion; however, “the court shall not make

the order or any of the orders unless it considers that doing so

would benefit Dominic than making no order at all”.112 If,

however, the court decides to make the care order, under s.34113

104 Re H and others (Minors) Sexual Abuse: standard of proof) [1996] AC 563.105 ibid [572-573].106 Children Act 1989, s.31 (2).107 Children Act 1989, s.1 (1).108 Children Act 1989, s.1 (3).109 Children Act 1989, s.1 (3) (a).110 Children Act 1989, s.1 (3) (b); Re K (Residence order) (1999) Times 8/1/99, CA.111 Children Act 1989, s.1 (3) (e).112 Children Act 1989, s.1 (5); Johnson J in B v B (Grandparent: residence order) [1992] Fam Law 490. 113 Children Act 1989, s.34.

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the local authority must allow Catherine and Brian reasonable

contact with Dominic,114 and this is the case unless the court

held otherwise.115

c) Lastly, is the issue of whether the court could make an order to

remove Brian from the family home? Under s.44A (1)116 the court

may include an exclusion requirement in the emergency protection

order provided that conditions in s.44A (2)117 are satisfied. It

follows that the court may make an exclusive requirement to

remove Brian from the family home if there is reasonable cause to

believe that, by excluding Brian, Dominic is likely not to suffer

significant harm118 or that the enquiries will cease to be

frustrated.119 Clearly, Brian may be suffering from alcoholic

related problem, but, the fact that Catherine refused to honour

the appointment she arranged with Mehreen is somewhat ambivalent,

given that she was aware of Mehreen’s suspicion over bruises in

Dominic’s body. Therefore, provided there is reasonable cause to

believe that Brian was the perpetuator, the court may decide to

include an exclusion requirement in the emergency protection

114 Children Act 1989, s.34 (1); Children Act 1989, s.1 (2A) as amended by Children and Families Act 2014, s.11.115 Children Act 1989, s.34 (6).116 Children Act 1989, s.44A (1).117 Children Act 1989, s.44A (2).118 Children Act 1989, s.44A (2) (a) (i).119 Children Act 1989, s.44A (2) (a) (ii).

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order and attach a power of arrest to it120 or request for John’s

undertaking121 if it fears John may not abide by the order. It is

submitted that Catherine could remain at the family home and take

care of Dominic without fear of Brian coming back.

QUESTION 4The rule that a child’s welfare shall be the paramount

consideration is the core principle to which Family Courts

determining any question affecting children proceed.122 However,

more often than not, this objective has been hampered by

“shocking delays in the system”.123 It follows that “cases take

far too long. With care and supervision cases now taking on

average 56 weeks, the life chances of already damaged children

are further undermined by the very system that is supposed to

protect them”.124 Accordingly, by enacting Section 14 of the

Children and Families Act 2014 the parliament wishes to limit, or

possibly eliminate these delays. The Act gained royal assent on

120 Children Act 1989, s.44A (5).121 Children Act 1989, s.44B (1).122 Children Act 1989, s.1 (1).123 Hugh Logue, family law: <http://www.familylaw.co.uk/articles/FamilyJusticeReview03112011-695>Assessed 18/04/14.124 Family Justice Review Final Report (November 2011). < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf > Assessed 25/04/14.

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the 13th of March, and s.14125 took effect on the 22nd of April

2014.

Under section 32 (1) (a) of the Children Act 1989 “a court

hearing an application for a care or supervision order126 shall

draw up a timetable with a view to disposing of the application

without delay”.127 Section 14 (2)128 expanded s.32 (1) (a)129 to

include “in any event within twenty-six weeks beginning with the

day on which the application was issued”.130 Section 32 which

previously had only 2 subsections would now be added with 8 extra

subsections, bringing the total subsections to 10.131

Accordingly, a court is under a duty when revising132 or drawing

up133 a timetable under the new s.32 (1) (a) (ii)134 to have

particular regard to the impact which the timetable would have on

the welfare of the child and conduct of the proceedings.135 In

other to allow the court some limited flexibility s.32 (5)136

provides “that a court may extend the 26 weeks period, but only

125 Children and Families Act 2014, s.14.126 ibid.127 Children Act 1989, s. (32) (1) (a) (i), as amended. 128 Children and Families Act 2014, s.14 (2).129 Children Act 1989, s. 32 (1) (a), as it was.130 Children Act 1989, s. 32 (1) (a) (ii), as amended.131 Children and Families Act 2014, s.14 (3).132 Children Act 1989, s. 32 (4) (a) (b), as amended. 133 Children Act 1989, s. 32 (3) (a) (b), as amended.134 Children Act 1989, s. 32 (1) (a) (ii), as amended.135 Children Act 1989, s. 32 (4) (a) (b), (3) (1) (b) as amended. 136 Children Act 1989, s. 32 (5), as amended.

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if the court considers that the extension is necessary to enable

the court to resolve the proceedings justly”.137 However, the

parliament also made it clear under s.32 (7)138 that the power to

extend139 under s.32 (5)140 is not to be granted routinely and is

to be seen as requiring specific justification.141 It follows that

whenever such discretion is exercised, each separate extension is

to end no more than eight weeks.142 Therefore, having explained

s.14143 and the changes it has made s.32,144 the essay will now

look at the likely effect of these changes.

At the heart of s.14145 is the need to resolve cases as quickly as

possible. However, it is of general acceptance that “justice must

never be sacrificed upon the altar of speed".146 Hence, while

measures which may assist in reducing unnecessary delays in

children proceedings are to be encouraged, the risk for injustice

and unfair outcome which could be as a result of rushed decision

or procedural impropriety remains. The quest for comprehensive,

cautious and deep investigation of evidence in cases becomes

137 ibid.138 Children Act 1989, s. 32 (7), as amended. 139 Children Act 1989, s. 32 (5), as amended.140 Children Act 1989, s.32 (1) (a) (ii), as amended.141 Children Act 1989, s. 32 (7), as amended.142 Children Act 1989, s. 32 (8), as amended. 143 Children and Families Act 2014, s.14.144 Children Act 1989, s.32.145 Children and Families Act 2014, s.14.146 Pauffley J in Re NL (A child) [2014] EWHC 2740 (Fam), approved by Munby J in Re S (A Child) [2014] EWCC B44.

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necessarily vital whenever the court is faced with issues

relating to children’ welfare. To that point, Munby J has argued

that, “if, despite all, the court does not have the kind of

evidence we have identified, and is therefore not properly

equipped to decide these issues, then an adjournment must be

directed, even if this takes the case over 26 weeks”.147 This

view by the most senior Family Court Judge in the country was

seen as a judicial codification of s.32 (5);148 and necessarily a

win for flexibility over inflexibility.149 However, central to the

changes introduced by section 14150 is as Edward Timpson, Children

and Families Minister, simply puts it, "The new 26 week time

limit will reduce unnecessary delays by ensuring that judges

focus on the facts without getting caught up in unnecessary

evidence or bureaucracy”.151 It follows “that research shows that

lengthy case duration can have harmful effects on a child’s

development, and may deny a child a chance of a permanent

home”.152 Furthermore, there are particular emphases on “reducing147 Munby J in Re B-S (Children) [2013] EWCA Civ 1146, [49].148 Children Act 1989, s. 32 (5), as amended.149 Lisa Nandy (Wigan) (Lab), Public Bill Committee: Children and Families Bill (19 March 2013) [c311] < http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/130319/am/130319s01.htm> Assessed 25/04/14.150 Children and Families Act 2014, s.14.151 Family Law Week, ‘Largest family justice reform for a generation’ comes into effect http://www.familylawweek.co.uk/site.aspx?i=ed129095 Assessed 24/04/14.152 Edward Timpson, Public Bill Committee: Children and Families Bill (19 March 2013) [c317] <

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http://www.familylawweek.co.uk/site.aspx?i=ed129095

http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/130319/am/130319s01.htm

http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/130319/am/130319s01.htm


administrative burden on court staffs, to increase efficiency in

the system”153 and most importantly is the need to reduce overall

running cost for both the court and local authorities.154 A good

example is the whooping £1.1 billion estimated total cost to the

state of public law cases in 2009/10.155 Hence, whilst some cases

costs approximately £80 000 each, some cost over £655 000.156

Although the Committee recognises that supreme to the cost is the

fundamental outcome of the court’s decision toward the welfare of

children, it argues that “the amount of money spent on taking

care cases through the courts can look disproportionate to the

amounts available to prevent cases needing to be brought in the

first place”.157 Ironically, on the opposite side of the debate is

“Law Society Chief Executive Desmond Hudson, who has argued that

(despite the cost of public law cases to the state) the

Government will have to find the resources to implement the

recommendations”.158 He made it clear that "to effectively halve

the time which cases take now will require additional resources -

http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/130319/am/130319s01.htm> Assessed 25/04/14.153 ibid.154 Family Justice Review Final Report (November 2011) [93] < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf >Assessed 25/04/14.155 ibid.156 ibid.157 ibid.158 Hugh Logue, family law: Family Justice Review Published (November 2011) <http://www.familylaw.co.uk/articles/FamilyJusticeReview03112011-695> Assessed 25/04/14.

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more court time and more judges' time. It will also require more

time from family solicitors, but that is under threat from cuts

in legal aid fees and scope”.159 It follows that with the “£2bn

cut to the Ministry of Justice budget by 2015; we fear that

closures and redundancies are more likely than innovation and

investment”;160 the latter being exactly what section 14161

proposes. If, as suggested by Lady Hale, the 1989 Act 162 was

drafted with the Convention163 in mind164and although delay was

ordinarily inimical to the child's interests, planned and

purposive delay could be beneficial to the child;165 then, it must

also be true that when the issues are too grave, the stakes for

all are too high, for the outcome to be determined by rigorous

adherence to an inflexible timetable and justice thereby

potentially denied.166 Therefore, whether or not the new changes

will have the expected effect of reducing delays in children

proceedings will be proven with time. However, what is clear is

159 Hugh Logue, family law: Family Justice Review Published (November 2011) <http://www.familylaw.co.uk/articles/FamilyJusticeReview03112011-695> Assessed 25/04/14. 160 Philippa Newis, The Guardian Online: Austerity's dark cloud overshadows David Norgrove's family justice review < http://www.theguardian.com/commentisfree/2011/nov/04/family-justice-review>Assessed 24/04/14.161 Children and Families Act 2014, s.14.162 Children Act 1989.163 European Convention on Human Rights.164 Lady Hale in B (A Child) [2013] UKSC 33, [194].165 Ward, J in C v Solihull MBC [1993] 1 F.L.R. 290.166 Munby J in Re B-S (Children) [2013] EWCA Civ 1146, [49].

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http://www.theguardian.com/commentisfree/2011/nov/04/family-justice-review


that “the 26 week time limit is a mandatory limit which must be

complied with, subject to the statutory exception set out in the

new s.32(5).167

QUESTION 5a) This question concerns the issues of enforcement of surrogacy

agreement, acquisition of parental responsibility of a surrogate

child by the donor and the validity of a commercial surrogacy.

Here, we were told that Ivor and Monica (the donor) and Ingrid

were mutual friends. Accordingly, the arrangement was for Ingrid

to be the surrogate mother168 and to hand over the eventual child

to the donor; and in return, for the donor to reimburse Ingrid’s

reasonable expenses. The starting point is that “[n]o surrogacy

arrangement is enforceable by or against any of the persons

making it”.169 In A v C,170 a case of artificial insemination (Here,

the host mother was artificial inseminated using her own egg and

a donated semen), where the surrogate mother refused to hand over

the child after birth. The Court of Appeal held that “the tie was

purely biological and that under the circumstance, since there

had been no relationship between the donor and the surrogate

167 Munby J in Re S (A Child) [2014] EWCC B44 [38].168 See Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421 for definition of surrogate mother.169 Surrogacy Arrangements Act 1985, s.1A.170 [1985] FLR 445.

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mother, allowing the donor access was of no benefit to the

child”.171 However, in Re W (Minors) (Surrogate),172 a case of embryo

transfer (here, unlike in A v C,173 the egg and the semen which

formed the embryo and which was injected into the host mother

belongs to the couple (the donor)). In holding against the

surrogate mother, the court held “that it was necessary to cement

the relationship between the genetic parent and the twins”.174

There seems to be a strong emphasis on the method used i.e.

whether it is artificial insemination or embryo transfer. We were

told embryo was inserted into Ingrid’s womb; thus, bringing her

case in line with Re W (Minors) (Surrogate) principle.175 Although Ingrid

will, in whichever case, be the child’s gestation parent;176

however, looking at the welfare and best interests of the child,

the court may consider the child’s relationship with the genetic

parent to be of paramount importance.177 Therefore, it is

submitted that although normally surrogacy arrangements are

legally unenforceable, the fact that Ivor and Monica are the

171 A v C [1985] FLR 445.172 [1991] 1 FLR 385.173 [1985] FLR 445. 174 Re W (Minors) (Surrogate) [1991] 1 FLR 385.175 [1991] 1 FLR 385.176 Baroness Hale in Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43.177 Re W (Minors) (Surrogacy) [1991] 1 FLR 385, 180; Popline: http://www.popline.org/node/339588

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child’s genetic parent may, as in Re W (Minors) (Surrogate),178 be the

distinguishing factor.

b) If Ingrid did eventually hand over the child, how could Ivor and

Monica acquire parental responsibility for it? The starting point

is that by law “a woman who bears a child will, at the child

birth always be regarded as the legal mother”179and the child’s

welfare is paramount.180 However, s.54 (1)181 provides that “on an

application made by two people (“the applicants”), the court may

make an order providing for a child to be treated in law as the

child of the applicants if (a) the child has been carried by a

woman who is not one of the applicants, as a result of the

placing in her of an embryo or sperm and eggs or her artificial

insemination”.182 We were told embryo was inserted into Ingrid’s

womb and that she carried the child. Therefore, provided the

applicants are husband and wife183and Ingrid is not one of the

applicant184 s.54 (1) (a)185 will be satisfied. Furthermore, under

s.54 (4)186 “the child's home must be with the applicants and

178 Re W (Minors) (Surrogacy) [1991] 1 FLR 385.179 Human Fertilisation and Embryology Act 2008, s.33 (1). 180 Hedley J in L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146, [2011] Fam 106.181 Human Fertilisation and Embryology Act 2008, s.54 (1).182 ibid. 183 Human Fertilisation and Embryology Act 2008, s 54 (2) (a).184 Human Fertilisation and Embryology Act 2008, s 54 (1).185 Human Fertilisation and Embryology Act 2008, s.54 (1) (a).186 Human Fertilisation and Embryology Act 2008, s.54 (4).

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either or both of the applicants must be domiciled in the United

Kingdom”.187 It is submitted that provided Ivor and Monica are

making the application within 6 months period starting from the

day, on which the child is born,188 and either or both of the them

are domiciled in the United Kingdom, subsections (b)189 will be

satisfied. In addition, under s.54 (8)190 “the court must be

satisfied that no money or other benefit (other than for expenses

reasonably incurred) has been given or received by the husband or

the wife for or in consideration of the making of the order, or

the handing over of the child to the husband and the wife, or the

making of any arrangements with a view to the making of the

order, unless authorised by the court”.191 We were told that

Ingrid and the donor were mutual friends and that the donor had

agreed to reimburse Ingrid’s reasonable expenses, including any

medical treatment. It follows that as long as Ingrid “freely,

with full understanding of what is involved, agreed

unconditionally to the making of the order”;192 the couple may not

be in breach of s.54 (8).193It is submitted that provided all the

187 Human Fertilisation and Embryology Act 2008, s.54 (4) (a) (b).188 Human Fertilisation and Embryology Act 2008, s.54 (3).189 Human Fertilisation and Embryology Act 2008, s.54 (4) (a).190 Human Fertilisation and Embryology Act 2008, s.54 (8).191 Human Fertilisation and Embryology Act 2008, s.54 (8) (a) (b) (c) (d).192 Human Fertilisation and Embryology Act 2008, s.54 (6) (a) (b).193 Human Fertilisation and Embryology Act 2008, s.54 (8).

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conditions under subsections (3) to (8)194 are satisfied, of

course, Invar and Monica must be over 18 years of age;195 the

court will endeavour to make the order and the couple will by so

doing acquire parental responsibility of the child.

c) The last issue to consider is whether Ivor and Monica would still

acquire parental responsibility if they had paid £50,000 to

Ingrid in addition to her expenses? The starting point is that

unless authorised by the court,196 it seems highly improbable that

payment of an extra £50,000 will satisfy the requirement of s.54

(8)197 above.198 However, in X (Children) (Parental Order: Foreign Surrogacy),199

Hedley J held that “for policy consideration the court should

consider (1) whether the money paid was disproportionate to

reasonable expenses (2) whether parties acted in good faith.200

Whether or not an amount is disproportionate is a question fact.

Therefore, the court may have to find out why the extra money was

given. For example, it may be that the money was given as a

payment to ‘buy the child’ or that the couple genuinely want to

improve the life standard of Ingrid i.e. by furnishing her new

194 Human Fertilisation and Embryology Act 2008, s.54 (3)-(8).195 Human Fertilisation and Embryology Act 2008, s.54 (5).196 Human Fertilisation and Embryology Act 2008, s.54 (8) (d).197 Human Fertilisation and Embryology Act 2008, s.54 (8).198 Wall J in C (A Child) [2002] EWHC 157 (Fam), [34].199 [2008] EWHC 3030 (Fam), [2009] Fam 71.200 X (Children) (Parental Order: Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] Fam 71.

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flat, paying her university fees or simply as a kind gift. It

will in most cases depend on how rich or poor both the

commissioning couple and the host mother are. If, however, the

clinic was involved in the negotiations and intend to profit from

the transaction,201 the clinic will be guilt of an offence under

s.2 (1) (2).202 What is clear, however, is that “although the

context in which the child was conceived cannot be ignored”,203

the court will not make the order sort if looking at all the

circumstance it found the amount to be utterly unreasonable.204

WORD COUNT: 4992.

201 Surrogacy Arrangements Act 1985, s.2 (4) (a).202 Surrogacy Arrangements Act 1985, s.2 (1) (2).203 J. Hill, ‘What Does it Mean to be a “Parent”? The Claims of Biology as the Basis for Parental Rights’ (1991) 66 New York University Law Review 353.204 Wall J in C (A Child) [2002] EWHC 157 (Fam).

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BIBLIOGRAPHYCases:

A (Minors) (Abduction: Custody Rights), Re [1992] Fam. 106

A v C [1985] FLR 445

B (A Child) [2013] UKSC 33

B v B (Child Abduction: Custody Rights) [1993] Fam. 32

B v B (Grandparent: residence order) [1992] Fam Law 490

B v H (Habitual Residence: Wardship) [2002] 1 FLR 388

C (A Child) [2002] EWHC 157 (Fam)

C v C (Abduction: Rights of Custody Abroad) [1989] 1 W.L.R. 654

C v Solihull MBC [1993] 1 F.L.R. 290

CL v East Riding Yorkshire Council, MB and BL (A Child) [2006] EWCA Civ 49

F (A Child), Re [2014] EWCA Civ 275

F (A Child), Re [2014] EWCA Civ 275

Humberside County Council v B [1993] 1 FLR 257

K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793

L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146, [2011] Fam 106

LC (Children) (International Abduction: Child's Objections to Return), Re [2014] UKSC 1

Payne v Payne [2001] EWCA Civ 116

R (G) Nottingham City Council [2008] EWHC 152

R (S0 v Swindon Borough Council and another [2001] EWHC (Admin) 334

Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

Re B (Care proceedings: Standard of Proof) [2008] UKHL 35

Re B (Children) (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2008] ACUKHL 35

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Re B-S (Children) [2013] EWCA Civ 1146

Re C (Minor) (Adoption: Residence Orders) (1992) Times, 19 November

Re F (Child) [2012] EWCA Civ 1364

Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43

Re H and others (Minors) Sexual Abuse: standard of proof) [1996] AC 563

Re K (Residence order) (1999) Times 8/1/99, CA.

Re NL (A child) [2014] EWHC 2740 (Fam)

Re O (A Child) (Contact: Withdrawal of Application [2003] EWHC 3031

Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421 for definition of surrogate mother

Re S (A Child) [2014] EWCC B44

Re W (Minors) (Surrogate) [1991] 1 FLR 385

Re WB (Residence Orders) [1995] 2 FLR 1023

W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008

X (Children) (Parental Order: Foreign Surrogacy) [2008] EWHC 3030 (Fam)

X Council v B (Emergency Protection Order) [2004] EWHC 2015

ZA & Anor v NA [2012] EWCA Civ 1396

Statutes:

Child Abduction Act 1984

Children Act 1989

Children and Families Act 2014

European Court of Human Rights

Family Law Act 1986

Hague Convention of 1980 on the Civil Aspects of International Child Abduction

Human Fertilisation and Embryology Act 2008

Surrogacy Arrangements Act 1985

Books:

Dennis I, The Law Of Evidence (5th end, Sweet & Maxwell 2013)

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Stephen G and Gilmore, Hayes and Williams’’: Family (3rd edn, Oxford University Press 2012)

Masson M, Bailey-Harris R, Probert J, Principle of Family Law (8th edn, Sweet & Maxwell 2008)

Lowe N, Douglas G, Bromley’s Family Law (10th edn, Oxford University Press 2007)

Black L, Bridge J & Co, A Practical Approach to Family Law (8th edn, Oxford University Press 2007)

Government Reports:

Report of the Inquiry into Child Abuse in Cleveland 1987 Cmnd 412 (1987)

Family Justice Review Final Report (November 2011)

Public Bill Committee: Children and Families Bill (19 March 2013)

Online Articles:

Alternative Family Law International: Steps to Prevent Abduction < http://www.alternativefamilylaw.co.uk/en/international/preventing-childabduction.htm> Assessed 22/04/14

Clare Renton: Practical Case Management of Child Abduction Cases (2006) < http://www.familylawweek.co.uk/site.aspx?i=ed2255> Assessed 22/04/14

Family Law Week, ‘Largest family justice reform for a generation’ comes into effect http://www.familylawweek.co.uk/site.aspx?i=ed129095 Assessed 24/04/14

Hugh Logue, family law: Family Justice Review Published (November 2011) <http://www.familylaw.co.uk/articles/FamilyJusticeReview03112011-695> Assessed 25/04/14

J. Hill, ‘What Does it Mean to be a “Parent”? The Claims of Biology as the Basis for Parental Rights’ (1991) 66 New York University Law Review 353

NewLawJournal: Mind that child < http://www.newlawjournal.co.uk/nlj/content/mind-child> Assessed 22/04/14

Philippa Newis, The Guardian Online: Austerity's dark cloud overshadows David Norgrove's family justice review < http://www.theguardian.com/commentisfree/2011/nov/04/family-justice-review> Assessed 24/04/14

Popline: http://www.popline.org/node/339588

UK Government’s Websites:

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Edward Timpson, Public Bill Committee: Children and Families Bill (19 March 2013) [c317] < http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/130319/am/130319s01.htm> Assessed 25/04/14

Family Justice Review Final Report (November 2011) [93] < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf >Assessed 25/04/14

Gov. UK: Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention) < http://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit> Assessed 23/04/14

Gov.UK: <http://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit/action-to-take> Assessed 23/04/14

Lisa Nandy (Wigan) (Lab), Public Bill Committee: Children and Families Bill (19 March 2013) [c311] <http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/130319/am/130319s01.htm> Assessed 25/04/14

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law relation to children-family law

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