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Children: Private Law Update (February 2008)

John Tughan, of 4 Paper Buildings, reviews the latest key cases in private children law

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John Tughan, 4 Paper Buildings

The following issues have come before the Courts since the last Private Law Update:

• Change of residence as a result of contact problems
• Residence as it impacts on housing issues
• The approach of the Court in a case of wholesale deception of biological parents in a surrogacy arrangement
• The role of special guardianship, contact and change of surname within family relationships
• Best practice in relation to DNA evidence
• Parental responsibility, contact and s91(14) in the surrogacy context

In V v T [2007] EWHC 2312 (Fam) Mr Justice Sumner was dealing with an application by the Father for a sole residence order on the basis of the mother's generally negative approach to contact, including a sudden move to Devon. It was contended that the court ought to transfer residence to him unless it was confident that the mother was committed to promoting and expanding the child's relationship with him. In the proceedings the mother initially disputed the conclusions of the child psychiatrist as to the long-term consequences of a breakdown of the child's relationship with the father, but later acknowledged that she needed to be positive about the father.

It was held that the courts would be slow to change a child's residence in such circumstances without giving the resident parent a chance to understand what had gone wrong and to remedy it, provided that such a course was compatible with the child's best interests. The changes in the mother's attitude justified the child remaining with the mother, but under the continued supervision of the Court.

Here, the Court was faced with a difficult but not uncommon situation and the guidance given is important. A parent must have a chance to understand the problem and change, where necessary. I would suggest that this is similar to the thinking behind the principle of split fact and outcome hearings in both public and private cases in that a person should be given time to consider the issues and reflect on their actions.

In Holmes-Moorhouse v Richmond Upon Thames London Borough Council [2007] EWCA Civ 970 the Court of Appeal (Auld, Rix and Moses LJJ) were considering a shared residence order with a difficult housing situation. Useful guidance was given.

The judge had made a shared residence order in respect of the couple's three younger children, and an order that the father leave the family home, both by consent. The children were to spend alternate weeks and half of each school holiday with each parent. The father applied to the housing authority for assistance as a homeless person in priority need. The application was rejected, at first, because residency and care were shared and the children's needs could be met while they were with the mother, but on review on the basis that the children were staying with, not living with, the father.

The local housing authority was required to satisfy itself of the reasonableness of the expectation of an applicant for housing assistance that dependant children would come to live with the applicant; the order of the family court under s 8 was not conclusive of that question. However, there was no room for permitting the scarcity of resources to play a part in considering the reasonableness of the expectation that dependant children would come to live with the applicant. A distinction must be drawn between those cases in which the residence order was made despite opposition, and those in which it was made by consent. Where a residence order was opposed, the family court had a statutory obligation to have regard to the accommodation available to each parent. Where a parent had no available accommodation, the authority must consider the likelihood of such accommodation becoming available, and would therefore be bound to make enquiries of the relevant housing authority. The housing authority could take that opportunity to place before the family court matters relevant to the authority's own statutory obligations. When a shared residence order had been made notwithstanding such enquiries, then it was difficult to see how the housing authority could displace the conclusion that the expectation of the parent benefiting from the shared order was reasonable. However, where the order was made by consent and it was apparent that the court had not considered the capability of the parent to meet the accommodation needs of the child, a local housing authority was obliged to consider afresh the reasonableness of the parents expectation. If it decided that the expectation was not reasonable, the parent should then return to the family court so that the court could consider the order.

In Re S (Surrogacy/Residency) Mr Justice Coleridge was dealing with a startling set of facts. The mother, who already had three children, each by different fathers, and had entered into surrogacy agreements with two separate sperm donor fathers. In each case, in the early stages of pregnancy, the mother had falsely informed the donor father and his wife that she had miscarried. The couples did not discover that the mother had in fact continued with the pregnancies, and was, with her husband, raising the children as her own, until the mother's eldest child, aged 19, left home and contacted the surrogacy agency. The father of the 6-year-old surrogacy child eventually came to an agreement with the mother that the child would be told of her true paternity at an appropriate time in the near future and that there would subsequently be contact between father and child.

The father of the 18-month-old surrogacy child sought residence, with a view to adopting the child; he proposed contact to the mother and her husband. Both fathers claimed that the mother had tricked them, with the knowledge and consent of her husband who had fertility problems, into providing sperm donations, and that she had never intended to fulfil the surrogacy arrangements. Expert evidence was that the mother's apparent willingness to provide the fathers with contact could not be relied upon.

On the basis that it was in the child's best interests to live with the biological father and his wife, with good contact to the mother and her husband, the judge made a residence order in the father's favour. The mother's conduct in relation to the surrogacy was only relevant to the issue of credibility or suitability for the parental role; the court was not seeking to penalise the mother for her prolonged deception of two couples seeking to have surrogate children. The court had grave doubts about the mother's ability to sustain contact in a real and positive way over time. Both children were to be made wards of court to enable a level of supervision of the situation. The court urged all surrogacy agencies to ensure that their checks into the background of all parties to these essentially artificial childbirth arrangements were as thorough as they could be.

In Re L (Special Guardianship: Surname) [2007] EWCA Civ 196; [2007] 2 FLR 50 the Court of Appeal was dealing with the appropriate arrangements for a child who was living with her Grandparents under the terms of a Special Guardianship Order.

The married parents were both drug addicts, although both were attempting to abstain from drugs, the Afro-Caribbean father less successfully than the mother. Their relationship was highly volatile and there were many incidents of domestic violence. When their child was 3 months old she was placed with the well-educated, professional maternal grandparents under a residence order and their care of her remained exemplary. The grandmother and mother had a particularly complex relationship and the grandparents suffered hostility from the father; they were granted an injunction restraining him from using or threatening violence against them or approaching their home. The grandparents began adoption proceedings when it became clear that the parents could not resume care of the child but the local authority, who were particularly concerned about the grandparents' reluctance to clarify for the child who her biological parents were, favoured a special guardianship order. Such an order was finally accepted by the grandparents but their application to change the child's surname was refused; limited supervised direct contact between the mother and child was ordered alongside further contact, if approved in advance by a social worker, and indirect contact with the father was provided for. The grandparents, who were not eligible for legal aid, now challenged the contact orders and the refusal of permission to change the child's surname.

It was held dismissing the appeal, that the child's welfare was the litmus test and overwhelmingly justified the judge's decision to refuse an order enabling the child's surname to be changed. Honesty was the best policy and the child had to learn to live with the fact she was being brought up by her grandparents rather than by her parents. The judge had been right to order some indirect 'letterbox' contact with the father. Every child was entitled to know his or her parents and to have contact with them unless there were cogent reasons to refuse it. There were good reasons to refuse direct contact here but that was not a justification for preventing very limited indirect contact. Nonetheless the order should indicate the number of cards and letters that may be sent, the time when they should be sent and consideration of the suitability of any presents sent.

In Re F (Children: DNA Evidence) [2008] EWHC 3235 (Fam) Anthony Hayden QC (sitting as a deputy High Court judge) gave guidance as to best practice in cases where DNA testing was sought.

Any order for DNA testing made by the family courts should be made, and specify that it was being made, pursuant to the Family Law Act 1989. The order should either identify the company undertaking the testing, or direct that the company be selected in accordance with the Act; only accredited companies could be instructed. Taking samples from children should only be undertaken pursuant to the express order of the court; further samples might be taken only with court approval, following a written application to the judge. These requirements should be communicated to the identified DNA company in the letter of instruction.

Save in cases where the issue was solely confined to paternity testing, all requests for DNA testing should be by letter of instruction, which should: (1) emphasise that the DNA experts responsibilities were identical to those of any expert reporting in a family case and that their overriding obligation was to the court; (2) set out in clear terms precisely what relationships were to be analysed and, where available, the belief of the parties as to the extent of their relatedness; and (3) make it clear that if the DNA experts considered there was any lack of clarity, or any ambiguity in their written instructions, or required further guidance, they should revert to the solicitor instructing them, who should keep a note or memo of any such request.

If any test carried out cast any doubt on, or appeared relevant to, the hypothesis set by their instructions, the DNA experts had to regard themselves as being under a duty to draw that to the attention of the court and the parties. Reports prepared by the DNA experts should bear in mind that they were addressing lay people; such reports should strive to interpret their analysis in clear language. Care should be taken to explain results within the context of identified conclusions, and particular care should be taken in the use of phrases such as "this result provides good evidence". Such expressions should always be set within the parameters of current DNA knowledge and identify in plain terms the limitations as to the reliability of any test carried out. Where any particular test and subsequent ratio of likelihood was regarded as in any way controversial within the mainstream of DNA expertise, the use of the test and the reasons for its use should be signalled to the Court within the report.

In TJ v CV [2007] EWHC 1952 (Fam) Mr Justice Hedley was dealing with the case of a child who had been born to lesbian civil partners using sperm from a donor who was the brother of one of the women. The court refused the father a parental responsibility order, but ordered contact four times a year, at least three of which were to be individual to the father and child rather than general family gatherings. They were to be on neutral territory and each was to last for about 2 hours. The purpose of the contact was not to allow the development of a parental relationship and the father was not to seek to advance his paternal status during such contact; such a relationship would threaten the civil partners and would not be consistent with their autonomy as a nuclear family. The contact was intended to allow the child to picture the father as someone significant but not ordinarily important in his life, whom he could question to satisfy his own natural curiosity about the kind of man who had enabled him to be. A section 91(14) order was made for 5 years to give the family an extensive break from litigation.

John Tughan
4 Paper Buildings