Family Law Issues and Advice: Marriage and Children

Re: Daniel, James and Alia

This case raises a wide variety of Family Law issues.

Samantha must be advised as to:

• • The ending of her marriage with Gordon;

• • Her remedies in respect of Gordon’s violence;

• • The issue of where and with whom all three children should live;

• • Financial support for the children.

Tara, as grandmother with whom the twins are currently residing, must be advised as to whether she can legally consolidate her relationship with Daniel and James.

James, a minor, requires advice as to the proposed bone marrow transplant.

Ramesh needs to be made aware of his rights and responsibilities in respect of Alia.

The Ever Ready Social Services must consider their potential role not only in respect of Alia but also in relation to the wider family.

Samantha

It may be inferred from Samantha’s desire to leave Gordon and “start a new life in Scotland with all three children” that she regards the marriage as at an end. She should petition for the dissolution of the marriage. This will be on the basis that the marriage has irretrievably broken down”. In order to prove this, she must establish one of the “five facts” provided by the Matrimonial Causes Act 1973. In her case, an obvious basis is under s.1(2)(b) of the Act “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” If she does not wish to advance possibly contentious allegations of this type, she might allow Gordon to divorce her on the basis of her adultery with Ramesh under s.1(2)(a) or the parties might agree to a divorce after two year’s separation under s.1(2)(d).

In such proceedings, the court has a duty imposed by s.41 of the Act to enquire in respect of the children whether it should exercise any of the powers conferred upon it by s.8 of the Children Act 1989. In the circumstances of this case with Daniel and James currently living with their grandmother and Ramesh making overtures about his relationship with Alia, Samantha should seek an order under s.8(1) “settling the arrangements to be made as to the person with whom the child is to live” (a “residence” order). She should be aware that if such an order is made in respect of any of the children in favour of any of the other parties, she will not be able to thwart this by the proposed move to Scotland since s.25 of the Family Law Act 1986 provides that an order made by a court in one part of the UK is recognised and enforceable in any other part of the UK.

It is unclear whether Samantha regards the “brutal assault” upon her by Gordon as posing a continuing threat to her safety or the risk of “significant harm” to the children. If so, she should consider applying for a non-molestation order under the Family Law Act 1996. In addition, if she is unable to pursue her intention to move to Scotland and there is a family home which she requires for the occupation of herself and the children, this could be the subject of an occupation order under s.33 of that Act preventing Gordon from continuing to occupy. In the long term, she may consider applying for a property adjustment order in her favour as a form of financial relief ancillary to the divorce proceedings. It is not possible to advise in greater detail on these particular issues without details of the family property and the respective financial positions of Samantha and Gordon.

Samantha will be entitled to periodical payments in respect of each of the children under the “new” child support formula provided by the Child Support, Pensions and Social Security Act 2000. This will be done by requiring the Child Support Agency to collect payments from a “non-resident” parent according to a formula which is based upon a percentage of that parent’s net weekly income. However, the parent from whom such collections should be made will be regulated by the provisions of the Child Support Act 1991 which imposes child support liability primarily upon the natural parent. Gordon may therefore escape liability on the grounds that he is not the natural father of Daniel and James and may not be the natural father of Alia (for a discussion of the issue of paternity, see Ramesh below).

Tara

Section 3(1) of the Children Act 1989 defines “parental responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” and includes the right to control and direct the child’s upbringing, the power to control education, choice of religion and so forth. It is not clear exactly what Tara wishes to achieve in “legally consolidating” her relationship with the children. As a grandparent, even though the twins are now living with her, she does not have parental responsibility. She should therefore consider applying for one of the orders available under s.8 of the Children Act 1989. This may in fact be an order that Daniel and James reside with her; it may be limited to an order that she have contact with them in the event of their returning to their mother and going to live in Scotland or it may even be a specific issue order in relation to the issue of James and the bone marrow transplant (see James below). If the twins had lived with her for at least three years, Tara would be able to apply for a residence or contact order without the leave of the court. In these circumstances, however, she will require leave. The relevant factors to be considered by the court in deciding whether to grant leave are contained in s.10(9) of the Children Act 1989 and include:

• • The nature of the proposed application for a section 8 order;

• • The applicant’s connection with the child;

• • Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it.

In this case it is anticipated that Tara would have little difficulty in obtaining leave since she is a grandparent, she has “always had a close relationship with the twins” and they are currently being cared for by her. However, the merits of the application for a particular s.8 order itself will be considered separately. In this instance, the court will consider the factors contained in the statutory checklist provided by s.1(3) of the Children Act 1989 which include:

• • The ascertainable wishes of the child concerned;

• • The child’s physical, emotional and educational needs;

• • The likely effect on the child of any change in his circumstances;

• • The child’s age, sex, background and other relevant circumstances;

• • Any harm which the child has suffered or is at risk of suffering; and

• • How capable each of the child’s parent’s (and any other person in relation to whom the court considers the question to be relevant) is in meeting his needs.

When these factors are considered, it is clear that in the light of the history of this matter and specifically the care of the children in the past, a contest between Samantha and Tara in respect of where Daniel and James should reside is likely to be finely balanced.

James

The issue of whether James should undergo the bone marrow procedure to assist his brother is likely to become the subject of a disputed specific issue order between his mother and Tara as seen above. Section 8(1) of the Children Act 1989 defines this as “an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. Thus, in Re C (A Child)(HIV Test)^[1] such an order was made that a baby be tested for HIV. This situation is complicated by James’ unwillingness to undergo the procedure. The weight to be accorded to James’ views will be subject of a test of competence in accordance with the leading case of Gillick^[2]. In this it was held by Lord Scarman (at p.186) that parental rights must “yield to the child’s right to make his own decisions when he reaches sufficient understanding and intelligence to be capable of making up his mind on the matter in question” and (at p.188) that “the parental right to determine whether their child will have medical treatment terminates if and when the child achieves sufficient understanding.” It may also be possible for James to contend that being forced to undergo this medical procedure breaches his rights under the European Convention on Human Rights as enacted in this jurisdiction by the Human Rights Act 1988. However, two factors should be noted. The first is that the decided cases in this area relate (as in Gillick) to the provision of medical treatment contrary to the wishes of the parents or (as in Re R^[3]) to the imposition of therapeutic treatment upon the instructions of the parents when contrary to the expressed wishes of the child. The situation of James is unusual in that there is no medical benefit to be derived by him from the proposed procedure. Nonetheless it is submitted that the same principles should apply and that he should be regarded as entitled to refuse to undergo the procedure if he is properly to be regarded as sufficiently mature and sufficiently well advised to be able to understand the nature of what is proposed, its implications and the consequences of his decision. Accordingly, his age and level of maturity will be a second deciding issue.

Ramesh

The parentage of Alia is a vexed issue. While it is acknowledged that Samantha had an affair with Ramesh and that Gordon had a low sperm count, if he was in fact treated at the fertility clinic, he may nonetheless be capable of being Alia’s father. In any event, there is a rebuttable presumption^[4] that a mother’s husband is her child’s father. Although Samantha has now ended her relationship with Ramesh and wishes to commence a new life in Scotland, the courts are likely to uphold his desire to determine whether or not he is the father of Alia. Cretney^[5] has commented that “more weight has been given to the virtue of discovering the truth than preserving legal presumptions or the status quo” and that “it has been said that a child’s long term interests are better served by knowing the truth and securing that adults found their lives on fact rather than wish.” Any objections on the part of Samantha are therefore likely to be overridden in accordance with the somewhat surprising case of Re H (Paternity: Blood Test)^[6] in which a blood test was carried out at the behest of the mother’s former lover notwithstanding the fact that the mother and her husband had become reconciled and it was accepted that a contact order was unlikely to be made. It was reasoned that the child may eventually become aware of doubts as to paternity and the child’s interests were better served by knowing the truth rather than acceding to the mother’s desire to obscure it.

In any event, it may be in Samantha’s interests to establish the true paternity of Alia. In accordance with s.26(2) of the Child Support Act 1991, Gordon will be assumed to be Alia’s father since he was married to Samantha between conception and birth. In the circumstances, he is unlikely to accept this. A similar assumption will be made in respect of the man whose name appears as father on the Birth Certificate. Section 27 of the Act provides that the Secretary of State or the person with care may apply to the court for a declaration under s.55A of the Family Law Act 1986 as to whether the alleged parent is a parent of the child. The court has the power to direct scientific tests. It cannot order a party to undergo such a test but where there is a refusal, this will give rise to the inference that the refusing party is the father of the child.

Ever Ready Social Services

There are a number of factors which give rise to concern in relation to Alia. Of immediate importance is the unexplained bruising and excessive crying noted by Tara. In addition, Gordon is known to have been violent toward Samantha in front of the child and to hold particular views about physical chastisement. Also in the background is the unexplained death of Natasha. Under s.47 of the Children Act 1989, a local authority is under a duty to investigate the welfare of a child in their area where they have “reasonable cause to suspect that a child s suffering, or is likely to suffer, significant harm”. Section 47(1)(b) will therefore require Ever Ready Social Services to make “such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote a child’s welfare”. If Samantha fails to cooperate in the making of such enquiries, a range of orders are at the court’s disposal:

• • Emergency Protection Order (“EPO“);

• • Child Assessment Order (“CAO“);

• • Supervision Order;

• • Care Order.

Section 44 regulates the making of as EPO and requires the production of the child by anyone in a position to do so, the removal of the child or prevention of removal from a place of safety such as a hospital and vests parental responsibility for the child in the applicant (in this case the local authority). Once again, actual or anticipated “significant harm” is the primary ground for such an order. As the name suggests, such an order would only be made if the child was in danger of harm and the local authority were not (probably for want of enquiries or information) in a position to decide the child’s future. Where the grounds for an EPO are not made out, the authority can secure production and assessment of the child by way of the CAO. In the long term, Ever ready may wish to consider applying for a Supervision Order or a Care Order in respect of Alia. The Care Order vests parental responsibility for the child in the local authority who as a result will be at liberty to remove the child from the parents should this be deemed necessary. The Supervision Order would involve a lesser degree of intervention: parental responsibility would remain unchanged but the child remains at home under the supervision of a designated officer. The grounds for the making of both such orders are the same:

• • Significant harm (as above);

• • That the harm is attributable to the care given or likely to be given by the parent;

• • That the order promotes the welfare of the child; and

• • That the making of the order is better than the making of no order.

As a less Draconian action, the court (perhaps in the context of an application for a s.8 order) may of its own motion under s.16 of the Children Act 1989 make a family assistance order which would require the authority to “advise, assist and (where appropriate) befriend any person named in the order. If the concerns in respect of Alia are not regarded as sufficiently serious for the making of one of the orders discussed above, this may prove a preferable solution since it would provide assistance if required also to Daniel and James and not merely be restricted to Alia.

Bibliography

• Blackstone’s Statutes on Family Law 2005-2006
• Cretney, S., Masson, J. & Bailey-Harris, R., Principles of Family Law (7^th Ed., 2003)
• Hale, B., Pearl, D., Cooke, E. & Bates, P., The Family, Law and Society, Cases and Materials, (5^th Ed., 2002)
• Herring, J., Family Law, (2^nd Ed., 2004)
• Westlaw
• www.opsi.gov.uk

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Footnotes

^[1] [1999] 2 FLR 1004

^[2] [1986] AC 112

^[3] [1992] Fam 11

^[4] Child Support Act 1991, s.26(2)

^[5] Cretney, S., Masson, J. & Bailey-Harris, R., Principles of Family Law (7^th Ed., 2003), p.528

^[6] [1996] 2 FLR 65