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Children: Private Law Update (February 2012)

Alex Verdan QC reviews the most significant of the latest judgments in private law Children applications.

Alex Verdan QC, Barrister, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings
In this review I will focus on recent material covering the following topics: 

Religious upbringing
Re N (A Child - Religion – Jehovah's Witness)
[2011] EWHC B26 (Fam)
This case concerned the parties' cross applications for residence of a 4 year old child (N), and an attempt by the father to restrict the child's involvement in the mother's practice as a Jehovah Witness. 

The practice of Jehovah Witnesses was highly relevant to the circumstances of this case. In his judgement HHJ Clifford Bellamy, sitting as a High Court Judge, outlined the central beliefs which were central to this issue: 

The mother was brought up as a Jehovah Witness but did not inform the father of this until they had been in a relationship for six months. The father was an Anglican and attended church on most Sundays with N and the paternal grandparents but was not a 'great religious person'. The father was in the Army.

In contrast, the mother was a committed Jehovah Witness, and would regularly take N to her meetings at the Kingdom Hall. The mother did not want N to be involved in school assemblies or to go to any other place of worship, and withdrew the child from the school nativity play.

The father expressed great concern that N was being over exposed to the mother's religious beliefs and practices and sought to limit this. Furthermore, the father was worried that the mother would withhold her consent to a blood transfusion for N should the need arise.

The judge set out the following principles to be applied in cases such as these [85]:

(i) Parental responsibility is joint and equal. Neither parent has a predominant right to choose a child's religious upbringing.

(ii) Where parents follow different religions and those religions are both socially acceptable the child should have the opportunity to learn about and experience both religions.

(iii) A parent's right to enable her child to learn about and experience his or her religion is not an unconfined right. Where the practice of that religion involves a lifestyle which conflicts with the lifestyle of the other parent and the court is satisfied that that conflict has had or may in the future have an impact on the child's welfare the court is entitled to restrict the child's involvement in those practices.

(iv) Restrictions imposed for welfare reasons do not necessarily amount to a breach of that parent's right to follow the beliefs and practices of his or her religion provided that any restriction imposed is justified by the findings made by the court and proportionate.

(v) In determining such an issue, as in the determination of any other question relating to the upbringing of the child, the child's welfare is the court's paramount consideration.

The judge held that there was no reason why N should not continue to attend both the Kingdom Hall with his mother and the Anglican Church, including Sunday school, with his father and paternal grandparents. The frequency of visits to the Kingdom Hall was not to be limited as the father requested; such an imposition was not considered either justified or proportionate.

However, the judge had profound reservations about the appropriateness of either parent 'teaching' their beliefs to N in any formal sense, by 'instructing' or 'giving lessons', and such practice was to be restricted.

Neither parent was to prevent N from taking part in school activities, including nativity plays, other performances, concerts, after school clubs, sports and field trips.

With regards to medical treatment, the court was referred to guidance given by the Association of Anaesthetists of Great Britain and Ireland in a booklet published in 2005 under the title Management of Anaesthetics for Jehovah's Witnesses. Section 3 of the booklet is headed 'The legal position in respect of anaesthesia and consent'. At paragraph [99] the judge quoted the following:

'Children of Jehovah's Witnesses below the age of 16 years may cause particular difficulty. The wellbeing of the child is overriding and, if the parents refuse to give permission for blood transfusion, it may be necessary to apply for a 'Specific Issue Order' via the High Court in order legally to administer the blood transfusion...It is important, however, before this serious step is taken, that two doctors of consultant status should make an unambiguous clear signed entry in the clinical record that blood transfusion is essential, or likely to become so, to save life or prevent permanent serious harm…

In the case of young people over 12 years who are capable of understanding the issues, the anaesthetist may be able to rely upon their consent.

The management of a child of a Jehovah's Witness in an emergency situation who is likely to succumb without the immediate administration of blood is viewed in law in a different light. In this situation, application to the courts will be too time-consuming and the blood should be transfused without consulting the court. The courts are likely to uphold the decision of the doctors who give blood.'

All parties agreed that this is an accurate outline of the position in law. It was also agreed and accepted that where consent is required for the medical treatment of a child, the consent of one parent alone is sufficient.

The following was further ordered:

'In the event that any medical professional (whether here or abroad) recommends a blood transfusion or any other medical treatment for N when he is in the mother's care, the mother shall inform the medical authorities/professional immediately of the father's contact details, and his ability to consent to such treatment.'

Applications relating to children conceived by IVF
ML & AR v RW & SW
[2011] EWHC 2455 (Fam) & P & L (Minors) [2011] EWHC 3431
This case concerned an application for residence orders in respect of two girls, P aged 10 years and L aged 6 years, both conceived by IVF between two pairs of same-sex partners.

The applicant father (F) and his male partner (SF) entered into an agreement to start a family by IVF, with the respondent mother (M) and her female partner (SM).

A clear agreement was reached that the respondents would do the principal parenting and provide two-parent care to the children. The applicants were acknowledged as having a parenting role but in a secondary capacity. Their parenting role was fulfilled by (i) giving the children a sense of identity; (ii) providing a male component of parenting; and (iii) providing a more general benign involvement which would have, but would certainly not be confined to, an avuncular aspect.

F and SM both held parental responsibility for the children, F by virtue of a court order and SM by virtue of an agreement made pursuant to a civil partnership. The parties agreed to have two children together under the same arrangements. There was a degree of regularity to contact with the applicant fathers, which included overnight staying contact and holidays.

In 2008 the relationship between the couples broke down as a result of disagreement regarding the roles that the parties should play in the lives of the children. The older child became 'deeply enmeshed' in the parties' dispute and withdrew from contact, siding with her principal carers (M and SM). The younger child continued to enjoy contact with the applicants but was unable to acknowledge that when in the presence of the respondents or her older sister.

Hedley J identified this case as providing a vivid illustration of just how wrong arrangements of this type can go. The judge identified two particular issues at the outset [9]:

(i) The need for precise agreement as to the roles that each is to play before an attempt is made to achieve a pregnancy; and

(ii) This case, like others, is bedevilled by a lack of sufficient vocabulary to explain the true nature of the relationships.

Hedley J delivered two judgments in respect of these proceedings. The first in July 2011 which sought: 

(i) To determine the nature of the relationships that had both been intended and had been developed between the girls and the men;

(ii) To make provision for interim contact.

The second, in December 2011 dealt with disposal of the case.

Hedley J found that there had been some regularity as to contact over the years which supported the view that the applicants had taken on a secondary parenting role. He also found that at the time of the parties' agreement to have the second child, the applicants had developed a significant role in the older child's life, and the parties' intention was for the younger child to be treated in exactly the same way. Moreover, between 2001 and 2008 there was a harmonious relationship in which the children understood what the relationships were.

However, since the relationship breakdown it was found that the older child had suffered significant harm as a result of the protracted and intense conflict between the four adults but the younger child was comparatively unharmed.
In addition to developing the concept of principal and secondary parents, the judge clarified that the conventional roles in heterosexual separating couples were an unreliable model to apply in these circumstances.

Hedley J considered the men's residence application to present an obstruction to contact. Therefore he struck it out but made an interim contact order between the applicants and the younger child, including monthly overnight contact. He directed there be a welfare report and the Guardian's view ascertained as to the need for a psychologist to assess the children.
The matter then returned to court in December 2011 to establish whether final contact orders should be made and to determine quantum. In reaching a decision Hedley J gave the following guidance to cases such as this [8]:

(i) To stress the importance of agreeing the future role of the parties before the first child is born;

(ii) To warn against the use of stereotypes from traditional family models and in particular  to resist the temptation to squeeze a given set of facts to fit such a model;

(iii) To provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties;

(iv) Contact is subject to the qualification that there may be other factors peculiar to the case which may have a significant impact upon the nature and quantum of contact which is right.

The judge found that the men had something of a real value to offer L in contact, and a restriction on contact would not be an adverse reflection of the value of their contribution but rather a proper acknowledgement of their role in L's life.

The judge ordered the women to make L available for one weekend staying contact per month with the applicant males, which would then be extended by two days in 2012.

In light of the serious harm the older child suffered only indirect contact was ordered.

No further professional intervention was directed.

Re X and Y (Children)
[2011] EWHC 3147
This case concerned an application for parental orders in respect of two children born to two women in India under surrogacy agreements.

The applicants, Mr and Mrs A, made surrogacy agreements with two women in India who had been contacted via a company at a fertility clinic in New Delhi. The company was responsible for finding mothers who had to be women and had already given birth to a living child. The applicants were advised to use two surrogate mothers to increase the chance of a successful birth. The applicants did not consult legal advice in the UK before they travelled to India.

The women gave birth to X (a boy), and Y (a girl). Mr A was the children's biological father, and the biological mother was an anonymous egg donor. X and Y are full biological siblings.

The surrogacy company drew up contracts, which concerned the surrogacy arrangement and financial terms. The first part provided for the applicants to be the sole carers of the children, and for the surrogate mothers to renounce all legal rights with respect to the children.

The second part provided for financial arrangements for the applicants to pay the surrogates 2,000,000 rupees (£27,000 approx.), comprising in part medical expenses and compensation. The clinic was not a party to, nor responsible for, the financial agreement between the surrogates and the applicants.

Following birth both mothers signed consent forms confirming the birth, receipt of payment and consent to removal from India. Mr and Mrs A then applied for parental orders in the UK.

In considering the application, the President applied s. 54 of the Human Fertilisation and Embryology Act 2008. The issue for the judge to consider was (i) whether the payment was in contravention of s. 54(8); (ii) whether retrospective authorisation of any payment was required; and (iii) whether the paramountcy of the child's welfare is engaged in decisions concerning the retrospective authorisation of payments.

Pursuant to section 54(8):

'Unless authorised by the court, that money or other benefit (other than for reasonably incurred expenses) has been given or received by either of the applicants for or in consideration of (i) the making of the order, (ii) any agreement required by s 54(6), (iii) the handing over of the child to the applicants, and (iv) the making of arrangements with a view to the making of the order.'

Out of the 2,000,000 rupees paid to the clinic by Mr and Mrs A, 1,400,000 was for medical care and 670,000 was for non-medical expenses such as legal fees and compensation for the surrogates, coordinator and donor, if applicable.

The parents accepted that the payment went beyond reasonable expenses but sought the court's authorisation, relying on the fact that they acted in good faith, with no attempt to defraud, and that the payments were not so disproportionate that the granting of parental orders would be an affront to public policy.

On behalf of the children it was also argued that the payments should be retrospectively authorised, and the children's welfare required the making of parental orders.

The President found that the applicants had acted genuinely and in good faith and that the payments were not disproportionate, and made parental orders accordingly. In giving judgment he endorsed the approach taken by Hedley J in Re X and Y and emphasised the following:

"What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (ie the child concerned) that rigour must be mitigated by an application of a consideration of that child's welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child  (particularly a foreign child) would not be gravely compromised  (at the very least) by a refusal to make an order."