Family


Birth certificate cannot be retrospectively changed to reflect father’s gender reassignment

23 April 2015 by

birthcertificate300x203_4fba822944823JK, R(on the application of) v Secretary of State for Home Department and another [2015] EWHC 990 (Admin) 20 April 2015 – read judgment

This case concerned the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.

The Court heard a challenge to the requirement in the UK’s birth registration system that men who had changed gender from male to female should be listed as the “father” on the birth certificates of their biological children. Having decided that this did engage the claimant’s privacy rights under Article 8 of the European Convention of Human Rights, in conjunction with the right not to be discriminated against under Article 14, the Court concluded that the interference was justified.

Factual and legal background

The clamant JK had been born male. She was married to a woman, KK, and the couple had two naturally conceived children. After the birth of the first child in 2012, JK was diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. Before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant.
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DNA sample taken for criminal purposes may not be used for paternity test – Amy Woolfson

11 February 2015 by

dna-evidenceX & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment

The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test. 

Factual and legal background

X’s wife had been found murdered.  The police took DNA from the crime scene.  Some of the DNA belonged to X’s wife and some was found to be X’s.  X was tried and convicted of his wife’s murder.

X’s wife had young children and they were taken into the care of the local authority.  During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them.  He refused to take a DNA test to prove his alleged paternity.  The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test.  The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so.
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How to make family hearings fair

5 January 2015 by

P-154a3cb5-e8aa-4516-9a6b-c5204c8a4e34Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment 

Philippa Whipple QC of  1 COR appeared for the Lord Chancellor in this case.  She has played no part in the writing of this post.

This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children. 

The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.

So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – hereand our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.

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Irish Supreme Court struggles with outcome of surrogacy arrangements

20 November 2014 by

orig-src_-susanne-posel_-daily_-news-dna_baby_womb

M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors [2014] IESC 60 (7 November 2014) – read judgment

The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.

At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.

The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth.
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Removal of subsidy for spare room not unlawful

29 October 2014 by

Bedroom taxCotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  [2014] EWHC 3437 (Admin) – read judgment

Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156.

Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the  rights of singe parents under Article 8 ECHR  who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall.
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Minimum income rules for immigrants do not breach human rights – Appeal Court

18 July 2014 by

money_1945490cMM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment

Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.

Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise. 
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Another “Bedroom Tax” Challenge Fails

4 July 2014 by

Bedroom taxRutherford and Ors v Secretary of State for Work and Pensions [2014] EWHC 1613 (Admin) – Read judgement here.

At the end of May, the High Court ruled that the reduction in Housing Benefit under Regulation B13 of Housing Benefit (Amendment) Regulations – commonly dubbed “the bedroom tax” – did not unlawfully discriminate against a family with a disabled child requiring an additional bedroom for overnight careers because the shortfall was covered by discretionary housing payments.

The case involved three Claimants: Mr and Mrs Rutherford and their 14-year-old grandson Warren. Warren suffers from a profound disability requiring 24-hour care from at least two people. Mr and Mrs Rutherford need the assistance of two paid careers for two nights a week. The family live in a three-bedroom bungalow rented from a housing association and specifically adapted to meet Warren’s needs. Mr and Mrs Rutherford sleep in one room, Warren in another, and a third room is used as a bedroom for overnight carers and to store medical equipment.

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Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

30 March 2014 by

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins.
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High Court rules dead partner’s sperm can be kept despite lack of written consent

12 March 2014 by

Sperm, microscopicElizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary 

The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.

Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.

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Welfare of child not a trump card against deportation

29 November 2013 by

aeroplane in sunset Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent) On appeal from the Inner House of the Court of Session, [2012] CSIH 87 [2013] UKSC 74 – read judgment

 

The Supreme Court has clarified the principles to be applied when considering the welfare of children in deportation cases. The following summary is based on the Supreme Court’s Press Summary.

The appellant (Mr Z) and his wife (Mrs Z) are nationals of the Republic of Congo currently living in Glasgow with their three children, now aged 9, 5 and 2. Mr Z entered the UK illegally in May 2001 using a French passport that did not belong to him. He married Mrs Z in November 2003 after she had entered the previous year using a forged French passport and both their asylum claims had been refused. Their appeals were unsuccessful . In October 2005 Mrs Z and the couple’s daughter (A) were detained and removed to Congo. For the following ten months, Mr Z was treated as an absconder having failed to report to the authorities.

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Islamic “marriage” ceremony at home declared invalid by Court of Protection

25 November 2013 by

r-SHAM-MARRIAGE-COUPLE-large570A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment

A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had

 “deliberately targeted” the respondent because of her learning difficulties and her vulnerability.

The courts would not tolerate such “gross exploitation.”

This was  an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life.
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More than a slip ‘twixt cup and lip

25 October 2013 by

a4632048X Local Authority v Trimega Laboratories and others [2013] EWCC 6 (Fam) – read judgment

Technical evidence can sometimes be crucial to judicial decisions and this case shows how dramatic the consequences are for a family if evidence is unreliable. If the respondent in this case had not put probity before its commercial interests, a mother would have been deprived of the care of her child. Hence the importance of publishing the judgment.

The case arose out applications by the parents, a child and the child’s guardian to care proceedings for wasted costs orders against Trimega Laboratories. In short, the care proceedings had been brought for a number of reasons foremost of which was the mother’s “excessive drinking”. In March 2013 the mother said she had been abstinent from alcohol since August 2012. But in July 2013 a blood alcohol test report from Trimega suggested that she had been drinking.  Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care, and had it not been for this test result a final order would have been made on 25 July 2013 and the child returned to her.
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Court orders MMR vaccine for children

18 October 2013 by

3_3_5_vaccination

F v F [2013] EWHC 2683 (Fam) – read judgment

The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.

This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.

Background

Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely.
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Denial of contact with father too “draconian” – Court of Appeal

26 September 2013 by

Father-and-child-holding--006M (Children) [2013] EWCA Civ 1147,  20 September 2013 – read judgement

The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under  Article 8.

The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge.  She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father.  When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother.
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Court of Appeal laments systemic failures in family justice

9 September 2013 by

CH08-P209-ARe A (a child) [2013] EWCA Civ 1104 – read judgment

Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8.  Whilst this particular appeal was  not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”,  McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.

The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start.  As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges.  Nevertheless, as the Court of Appeal points out,  “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”  
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