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03 MAY 2013

Samantha Bangham’s Week in Cases 3 May 2013

Samantha Bangham - Family Law Reporter Another crazy week in the world of family law has passed with one particularly extraordinary judgment. Just when you thought you had heard everything a case such as A Council v M and Others (No 1: Fact Finding) [2012] EWHC 4241 (Fam), [2013] FLR forthcoming, comes along!

The judgment of Peter Jackson J from March 2012 has only just been released upon conclusion of the criminal proceedings involving the mother’s conviction for child cruelty and has been widely reported in the international media. The facts were that the mother forced her 13-year-old daughter to embark on a programme of artificial insemination, resulting in a pregnancy when she was 16. Peter Jackson J commented that he had ‘an abiding sense of disbelief that a parent could behave in such a wicked and selfish way towards a vulnerable child’. The, now 18-year-old, daughter was currently residing in a mother and baby foster placement while her younger sibling, due to her being 17, was permitted to remain with their mother in accordance with her wishes. The proceedings were primarily concerned with the 7-year-old child who had been placed in foster care. It was decided that she should remain in foster care and have no contact with the mother for a substantial period to enable her to settle into her placement. In any event the mother was sentenced to 5 months’ imprisonment. A serious case review by the local safeguarding children board was due to be carried out. This case has raised concerns about the wider issue of purchasing sperm for artificial insemination via the internet and the protection offered by the HFEA.

The two subsequent judgments in this case have been approved for publication in FLR also relating to the welfare determination: A local Authority v M and Others (No 2: Welfare) [2013] EWHC 4242 (Fam) and also reporting restrictions: A Council v M and Others (No 3: Reporting Restrictions) [2012] EWHC 2038 (Fam).

In another care case the issue of genetic testing for inherited disease was determined. Re Y and Z (Care Proceedings: Genetic Testing) [2013] EWHC 953 (Fam), [2013] FLR forthcoming, concerned two children who were subject to care proceedings with a care plan for adoption. The father claimed that two of his relatives suffered from Huntington’s Disease and the he suspected he did too but the disease typically did not became symptomatic in adults until middle age. There was no conclusive medical evidence of the diagnosis in the paternal family but the local authority sought immediate genetic testing of the children to determine whether they were carriers of the gene. The local authority submitted that if testing were not carried out then it could be more difficult to find adoptive placements. On these facts the risk of psychological harm if one or both children had the gene outweighed the risk of harm arising from the possibility that it would be more difficult to identify an adoptive placement if one or both were carriers. Baker J stressed that cases of this nature turned on their own facts and that in cases involving conditions which developed during childhood and which could be treated during childhood a very different balancing exercise would take place.

In Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] FLR forthcoming, the Court of Appeal reminded us of the permanent nature of adoption orders. The child, now 5 years old, was removed from his mother’s care just days after birth and placed in foster care. Final care and placement orders were made and he was placed with prospective adopters where he had since remained while the adopters applied for an adoption order. When the father became aware of the proceedings he took a DNA paternity test which confirmed he was the child’s father and applied to oppose the adoption order. The Court of Appeal, comprising of Sir James Munby P, Arden and Aikens LJJ dismissed the application and it was held that in all the circumstances the child required that the stability that had been obtained for him should not be threatened and that it was in his best interests to be adopted. The father sought permission to appeal but there was a delay in obtaining a transcript of the judgment and in the meantime an adoption order was granted. The father’s appeal was dismissed on the grounds that he had no relationship with the child who had been settled for over 2 years with the adopters. The court could not take the risk of disturbing that placement. The judgment was clear and demonstrated no error of law or approach.

In R (T) v Legal Aid Agency [2013] EWHC 960 (Admin), [2013] FLR forthcoming, the topical issue of Legal Aid funding was raised. Collins J dealt with an application for judicial review of the Legal Aid Agency decision to grant prior approval for expert fees in respect of a psychologist and specialist family service report but at a level significantly less than the minimum fee estimated. Despite requests from the court the authority failed to engage with the process. The Legal Aid Agency decision was quashed. While it was open to them to determine a request was excessive and refuse prior authority it also had to be reasonable. In cases where children may be removed from their parents’ care, Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was engaged and the welfare of the child was paramount. Fairness dictated that where prior authority was refused sufficient reasons should be provided so any challenge could be brought speedily.

In addition, the Court of Protection has been equally as busy. One judgment which made its way into the press was Stoke City Council v Maddocks (By His Litigation Friend, the Official Solicitor), a decision of His Honour Judge Cardinal in which previous hearings had been convened to determine where the elderly man who suffered from Alzheimer’s Disease and a degree of vascular dementia should reside. Contempt proceedings were now brought in respect of the man’s daughter who was subject to restraining orders preventing her from removing the man from his placement and using violence or threatening staff of the local authority. In the circumstances there was no alternative other than to commit the woman to prison. Although that course would contain an element of punishment to the man as he continued to appreciate his daughter’s visits she seemed to ruin most or all of the visits and telephone calls with her behaviour and caused him considerable grief. An appropriate sentence was for 5 months’ imprisonment for each breach to run concurrently.

If you are undertaking Court of Protection work then please take a look at the services we provide in this area including the Court of Protection Law Reports, Court of Protection Practice and Elder Law Journal.

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.

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