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Private Family Law Update: May 2021

 

Index of Cases

  1. M v D [2021] EWHC 1351 – A case concerning the meaning of the term “associated person” in s62(3) of the Family Law Act 1996                       

            https://www.bailii.org/ew/cases/EWHC/Fam/2021/1351.html

  1. Manchester University NHS Foundation Trust v Fixsler & Others [2021] EWHC 1426 (Fam)

            https://www.bailii.org/ew/cases/EWHC/Fam/2021/1426.html

3.     Re L (A Child: Step-Parent Adoption) [2021] EWCA Civ 801

            https://www.bailii.org/ew/cases/EWCA/Civ/2021/801.html 

 

  1. M v D [2021] EWHC 1351 – A case concerning the meaning of the term “associated person” in s62(3) of the Family Law Act 1996

Judgment by Mr Justice MacDonald

This case was an appeal against a dismissed application for a non-molestation injunction pursuant to s42(2) of the Family Law Act 1996. The respondent to the applicant, who had no notice of either the original application or subsequent appeal, was the applicants step nephew (her sister’s stepson). The appellant alleged that the respondent had been verbally abusive and threatening to the appellant, this included abusive phone calls, social media posts and in person. These threats were alleged to include ones of rape, murder and acid attacks. It is noteworthy to highlight that, prior to this application, both the appellant’s sister and niece had both made successful non-molestation applications against the respondent. 

At first instance the application was dismissed due to lack of jurisdiction. District Judge Colvin was not satisfied that a ‘step nephew’ fell within the remits of s62(3) in respect of an associated person. Additionally, he was not satisfied that s62(3)(d), which the appellant relied upon stating she and the respondent were ‘relatives’, nor the interpretation set out in s63(1)(a) or (b) were appropriate in the circumstances. Thus, the application was dismissed.

The decision was appealed on the basis that the judge erred in law when he found that they were not associated persons within the meaning of the Act, pursuant to the provisions of FPR PD30A Para 2.1 in that it raised an important point or principle or practice. It was noted that the statute does include ‘stepmother’, ‘stepfather’, niece and nephew but not stepdaughter, stepson or indeed step-nephew. Ultimately, the appeal was dismissed, and it was deemed that “step-nephew” did not fall within the terms of the act and the inclusion of some ‘step’ relatives over others within the Act had been deliberate.

It was distinguished within the judgement the difference between relatives defined under s61(3)(a) as those of ‘lineal descent and those under s61(3)(b) as collateral relatives. Certain step relatives have been included within s61(3)(a) but not so within s61(3)(b). The Law Commission report (Law Com No. 207) on Family Law Domestic Violence and Occupation of the Family Home, that informed the Act concluded that a broader approach was merited. The report (at para 3.8) concluded that:

            We originally suggested in the working paper that non-molestation        orders should be           available to protect spouses, former spouses,             cohabitants, former cohabitants and perhaps      parents or those with     parental responsibility,’ and certain children.” But although domestic             violence tends to be thought of as taking place in a “husband and wife”    context, there is no        doubt that harassment and violence can occur in many types of relationship.”       

It was concluded that the concept of “associated persons” was implemented in order to extend protection from domestic violence to a wider demographic than had been previously. However, it concluded that this should still be confined to “close” or “immediate” relatives (including those through marriage). It was noted that Parliament was concerned with not creating a new tort of molestation by failing to ensure that the definition of “associated persons” was clearly defined.

Macdonald J paid special consideration to the observations in G v F (Non-Molestation Order: Jurisdiction) in which it was stated:

 “In my judgment, the message of this case to justices is that where domestic violence is concerned, they should give the statute a purposive construction and not decline jurisdiction, unless the facts of the case before them are plainly incapable of being brought within the statute. Part IV of the Family Law Act 1996 is designed to provide swift and accessible protective remedies to persons of both sexes who are the victims of domestic violence, provided they fall within the criteria laid down by section 62. It would, I think, be most unfortunate if section 62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required. This case is, after all, about jurisdiction; it is not about the merits. If on a full enquiry the applicant is not entitled on the merits to the relief she seeks, she will not get it.”

Consideration was also afforded to the wide scope of the Family Law Act 1996, specifically when considering the increasing prevalence of ‘blended families’ in modern society. Despite this the court concluded that the responded is incapable of being brought within the meaning of “associated person” no matter how wide the definition is read. The judge concluded that when speaking of a “nephew… whether full blood or half blood or by marriage or civil partnership” within s63(1), it was not wide enough to encompass the position of the respondent. It was however, noted that the applicant would have an alternative remedy under the Protection from Harassment Act 1997.

  1. Manchester University NHS Foundation Trust v Fixsler & Others [2021] EWHC 1426 (Fam)

Judgment by Justice MacDonald.

Macdonald J granted the Trust’s application declaring that it was not in the interest of the 2 year-old child for life-sustaining treatment to be continued and refused her parents’ application to move her to hospital in Israel.

Alta was born prematurely to parents who are Chassidic Practicing Jews and Israel citizens, they had moved to the UK in 2014. During her birth Alta sustained severe hypoxic ischaemic brain injury and was born showing no signs of life. It was not disputed that she continues to exhibit the symptoms of a catastrophic brain injury which will result in her death at some point in the next two years or so. She has no conscious awareness, no positive interaction with her environment, cannot close her eyes and shows no visual attention or response to auditory stimulus; the judge described this as a “state of perpetual darkness and silence”. Alta is mechanically ventilated via a tracheostomy and fed by feeding tube.

Treating clinicians considered Alta to experience no pleasure but concluded that she did experience pain consistently in response to the care she received. The court were asked to decide whether it was in Alta’s best interest for the life-sustaining treatment she received to continue. The inevitable consequence of it being discontinued would be Alta’s death.

The parents told the court that prior to these proceedings it had been their intention to return to Israel. Given their devout religious beliefs it was emphasised to the court that this was not just their faith but was also a way of life. Within this context the parents sought rabbinical advice about their religious duties and obligations following Alta’s medical situation. In their statement to the court they claimed their religious beliefs teach them that life is sacred and “not only must we preserve life; we also cannot be involved in bringing death closer.” The parents opposed the application brought by the NHS Trust and instead sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course or, if the court concluded that it is in Alta’s best interests for life sustaining treatment to be withdrawn, for that step to be taken in Israel.

The Trust specifically sought the following;

  1. A declaration pursuant to the inherent jurisdiction of the High Court that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that is it in her best interests for a palliative care regime to be implemented;
  2. A specific issue order under section 8 of the Children Act 1989 (and leave to seek such an order pursuant to s.10(2)(b) CA 1989) determining that life-sustaining medical treatment should cease to be provided and a palliative care regime implemented instead.

Extensive medical evidence was before the court, as to be expected in cases such as this. This was discussed at length in para 8-45 of the judgement. It was accepted by all parties that there is no prospect that Alta will recover from her catastrophic brain injury. There was a differing in opinion of how long Alta may survive however, the court heard evidence this could be anywhere between 6-24 months.

The unanimous view of Alta’s treating clinicians, and the experts instructed by the Trust, was that it was in Alta’s best interest for life-sustaining treatment (including artificial ventilation) to be withdrawn and for her to receive palliative care only.

The Law

The court may grant an order declaring that treatment, in accordance with the recommendation of the child’s doctors, can take place on the grounds that it is in the child’s best interests (see Re B (A Minor)(Wardship: Medical Treatment) (1982) 3 FLR 117). The jurisdiction of the court to make such orders arises when the child lacks capacity to make the decision for themselves, in the context of a disagreement between those with parental responsibility and those treating the child. It’s noteworthy that the court has no power to require doctors to engage in medical treatment against their own professional judgement. In reaching its decisions the court is not bound by the clinical assessments of doctors and medical experts, it must form its own view as to the child’s best interests. The key principles are drawn from a number of authorities and can be found from paragraph 57 of the judgement.

It was submitted that the assessment of Alta’s best interest should “start from the assumption that Alta would share the values of her parents, of her brother and of her wide family and community.” [66] The court considered the judgement of Tafida Raqeeb v Barts NHS Foundation Trust and others [2020] 3 All ER 663 at some length. Which recognised the wide range of considerations relevant to the evaluation of best interest. This included:

  • Religious Belief
  • Futility (in its non-technical sense)
  • Dignity
  • The Meaning of Life
  • The Principle of the Sanctity of Life

MacDonald J accepted the position that, in assessing the various components of Alta’s best interest, the court must consider the particular religious, cultural and ethical context of this particular case given that Alta’ is an Israeli citizen, her family’s devout Orthodox Jewish beliefs and the fact that the family had intended to emigrate to Israel with Alta. These are but a few factors to be considered when assessing the overall picture of Alta’s best interest, the weight attached to each was to be carefully balanced against other factors including both medical and non-medical evidence.

For this reason, the court rejected the submissions made on behalf of the parents that “the best interests decision-making process can and must be framed within the Jewish belief system in this case.” [72] Instead, the Jewish belief system was to be a single factor to be weighed against others in the decision-making process. Macdonald J was also of the view that the court were not able to accept the submission that the assessment of Alta’s perspective should start from the assumption that Alta would share the values of her parents and her community, given the severe degree of brain damage she had sustained from birth.

The court ultimately ruled that it was in Alta’s best interests for life-sustaining treatment to be withdrawn, and for palliative care to be implemented and thus the applications of the Trust were granted. The reasons for the decision were as follows:

Medical Condition and Prognosis

  • No hope of recovery or improvement of current condition.
  • Satisfied that Alta consistently exhibits movements that, if she is able to experience pain, would cause her pain. E.g., spasms in response to care given/contact
  1. More weight given to medical evidence of treating clinicians before the court, rather than that of the parents and Rabbi Goldberg due to (i) Not in dispute that Alta suffers spasms when handled (ii) Parents have had little contact with Alta in hospital thus reducing the weight the court can attach to their assertations regarding the nature of her responses (iii) Parents inevitably live in hope (iv) No medical training
  2. Less weight given to Dr Ross’s observations regarding Alta’s responses over treating clinicians due to the lack of time spent observing Alta.
  • Satisfied, on the balance of probabilities, that Alta does in fact feel pain and that pain is a significant burden upon her.
  • Accepted that the general human understanding is that pain is a negative thing and would be so for Alta, despite her lack of cognitive functioning.

Best Interests

  • Rejected the notion that the view of Alta would be that she shared the values of her parents, brother and of her wider family and community. Given the severe brain injury sustained which left her unable to learn about the world around her. She was considered not of the age or ability to have knowledge of and to adopt her parents’ values.
  • The court took the stance that Alta may have adopted her parents’ values.
  • Despite severe disability a child may still wish to receive treatment, cannot be assumed that their position would be for this to be stopped.
  • Considerable weight placed on the presumption in favour of preserving life. Not just in the perspective of the family’s religious view but also from society as a whole – “Alta is profoundly disabled, but a life of disability is of equal value to all other lives”
  • Despite this it was recognised that life should not be preserved at all costs.
  • Consistent pain that is likely to increase over time.
  • No benefit will come from the medical treatment being administered.
  • Notwithstanding the fact there was no evidence to support that doctors in Israel would be willing and able to accommodate Alta, the court were satisfied that a transfer to Israel given the above findings would not be in her best interest.
  • Parents views were considered in relation to their strong religious belief as Ultra-Orthodox Jews. Viewed it is not religious law that governs the decision it is the secular law of the jurisdiction. Art 9 ECHR considered however the religious principles of the parents did not outweigh the other compelling factors.

Having regard to the findings made in respect of the pain felt by Alta, the court was not satisfied that moving her to Israel for her to spend her last days with her family and so that her death and burial could be in accordance with the family’s religious beliefs did not outweigh the additional burden of pain that would subsequently be put upon Alta.

Furthermore, should the court have allowed Alta to be moved to Israel for her final days there was to be no guarantee that the withdrawal of life sustaining treatment would be endorsed. Indeed, it was conceded that the decision of the court would not be enforceable in Israel. Furthermore, it was deemed unfair to put the temptation of allowing the parents to take Alta back to Israel, where their views on withdrawing life-sustaining treatment would be shared by family and friends, with the opportunity for the order of this court to be ignored.

MacDonald J concluded by stating “Within this context, it is with profound regret that I must conclude on the evidence before the court that it is in Alta’s best interests for the treatment that is currently sustaining her precious life now to be withdrawn. The parents cannot be criticised for having reached a different decision informed by the religious laws that govern their way of life. But applying the secular legal principles that I must, and according due respect to the deeply held religious convictions of the parents, I cannot agree with their assessment and am required to act accordingly.” [161]

  1. Re L (A Child: Step-Parent Adoption) [2021] EWCA Civ 801

Judgment by Lady Justice King

This was an appeal against the making of an adoption order by HHJ Dawson on 21st December 2020 in relation to boy ‘L’ who is 11-years old. The mother fell pregnancy with L in 2009 when she was in a casual relationship with the father, whom she did not tell about the pregnancy. Later that year she formed a new relationship with a ‘Mr B’ whom was registered as the father and L was given his surname. L grew up believing Mr B was his father.

When L was about three years of age, the father who had been unaware of L’s existence, requested a DNA test after being told L may be his child, due to a strikingly similar appearance. The mother agreed and the test confirmed that the father was L’s biological father. In 2013 the father applied for a child arrangement order so that he could spend time with L, this was granted however contact did not run smoothly. The volatile relationship between the father and mother became obvious and was evidenced by criminal proceedings being brought against the father as a consequence of his behaviour towards the mother.

The mother and Mr B later separated, and L’s surname was changed by deed poll from that of Mr B to that of the fathers. In October 2014 the father made an application to the court for a declaration of parentage, to have his name added to L’s birth certificate and to be granted parental responsibility.

In 2015 the mother and the stepfather began a relationship; they bought a house together and had their child in September 2017. They are engaged and are due to be married at the end of this year, 2021. During this time contact between L and the father broke down. There was an incident in September 2016 when, following a period of no contact between the two, dad turned up at L’s school in order to collect him for contact. L became upset and after contact told the mother and stepfather and the father, he would not be going on any more contact visits. L has not seen his father since September 2016.

The stepfather had become L’s psychological father and L had begun to seek reassurance of him being his ‘real’ father. All of the evidence showed L to be the driving force behind the application to adopt and so the stepfather applied to adopt L on 18th December 2019. Both the social worker and The Children’s Guardian supported the adoption and believed it was in the best interest of L.

The stepfather made his application to adopt L pursuant to s51(2) Adoption and Children Act (ACA) 2002.

Re P (A Child) [2014] EWCA Civ 1174; [2015] 1 FLR 1327 considered how an adoption application brought by a child’s step-parent is to be approached. In his judgement, McFarlane LJ considered the European Court of Human Rights case of Söderbäck v Sweden [1999] 1 FLR 250. Macfarlane LJ, made a clear distinction between adoption by total stranger and adoption by family members and stated at paragraph 47:

            “47… adoption by strangers being at the extreme end of the spectrum of interference and             adoption by a family member being at a less extreme point on the scale. The former option is only justified when ‘nothing else will do’, whereas the latter option, which involves a lower           degree of interference, may be more readily justified.”

It was emphasised the that the context of each individual case should be considered as it is deemed “necessary to evaluate the proportionality of the intervention in family life that is being proposed” [62].

It was concluded that stranger adoption is only justified when ‘nothing else will do’ whereas step-parent adoption can be more readily justified, and thus the test is lower. It is not an order of last resort and the ‘nothing else will do’ test found in Re B (a child) [2013] UKSC 33 is not the correct test. The interference of a step-parent adoption is less extreme and may render adoption proportionate in a case where the proposed adopter is a step-parent when, given the same circumstances it may not be deemed proportionate should the applicant be a stranger.

When assessing the factors highlighted by McFarlane LJ from Söderbäck, King LJ stated the proportionality exercise in this case would be conducted as the following:

  • The father had not had care of L and was only as a result of his seeking out a DNA test he found he was his child. As a result, there was a declaration of parentage, parental responsibility was granted, and L’s name was changed to his fathers. Against the above is the fact that as a result of the fathers behaviour, social services became involved and L became a Child in Need, and the father was convicted in the Magistrates Court for his aggressive behaviour towards the mother.
  • No contact since 2016 – no efforts by father to enforce the contact order which was in place.
  • Stepfather is L’s psychological father. L understands the meaning of adoption and is fully supportive of it.
  • Both social services and the Children’s Guardian state it is the best interest of L to be adopted.

The deciding judge was not referred to either Söderbäck or Re P however it was deemed clear that she had each of these matters in mind when deciding what was in the best interest of L. The judge set out more detail of the credibility of mother’s account regarding the fathers threatening and intimidating behaviour and was satisfied the L knew the meaning of adoption and was very clear in that he wanted his stepfather to adopt him ‘because he is a dad’.

The judge concluded at para 57:

“My decision then, weighing the pros and cons of those options in the circumstances of this case, is that an adoption order is the only order that will give L the best chance of a happy and secure future as part of a loving family.”

Upon appeal it was for the court to decide whether the judge’s failure to have in mind the approach, set out in Re P, to step-parent adoptions means the judgement should be set aside and the matter should be reconsidered by a judge at first instance. King LJ saw no fault in the judge’s application of the statutory requirements to the application which included consideration of the adoption welfare checklist. The judge was unaware of the decision of the ECtHR and McFarlane LJ has prescribed a lower test in the cases of step-parent adoption and so applied the more stringent Re B test of ‘nothing else will do’ test before concluding that an order for adoption was in L’s best interests and proportionate to Art 8 terms. It followed that the judge’s failure to specifically refer to the approach in Re P did not undermine the order made.

As with Re P, the provisions of s46(6) ACA were not brought to the judge’s attention and thus there is nothing in the judgement, or a recital, confirming the compliance with the mandatory requirement that contact arrangements have been considered.

S46(6) ACA sets out a clear obligation that:

 “The court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose, the court must consider any existing or proposed arrangements and obtain the views of the parties to the proceedings.”

It was deemed that within the judgement it was clear the judge did consider each of the elements of s46(6) ACA however, they were not set out together and dealt with specifically in such a context. King LJ deemed this to be unsatisfactory and the mandatory requirement for such consideration should be readily available in one place within the judgement. Nevertheless, it was concluded that there was enough consideration within the judgement to show the court had fulfilled its obligation under S46(6) ACA and the adoption order should not be set aside in order for contact to be considered. However, it was made clear that the approach ser out in the judgement was not endorsed, merely that adequate consideration had been given. Had it been concluded that the judge had failed to comply with the terms of S46(6) ACA the court would have used its powers pursuant to CPR 52.20(1) and allowed the appeal, set aside the adoption order and proceeded to consider S46(6) ACA. King LJ deemed there was ample material before the court to conclude no contact arrangement should be made and having carried out that exercise and reached such conclusion the court would have proceeded to remake the adoption order. Therefore, the outcome for L, the parents and the stepfather would have been the same.

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