Landmark Cases in Family Law 9781509909292, 9781849461016, 9781509905058

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Foreword One of English law’s most distinctive characteristics is the importance it attaches to judgments delivered in cases before the higher courts: even the most junior law student knows that these cases are an important source of law. And the student soon learns that there are advantages in that. Often, the facts are so striking that they compel attention and thus a place in the memory – who could forget the snail in the ginger beer bottle, for example? And the judgments themselves create, and therefore illustrate, the content of the law. Perhaps no branch of the law exemplifies these characteristics as much as does Family Law; and a journey through the ‘landmark cases’ skilfully selected by the Editors of this Volume provides an effective way of making a study of the law both exciting and pleasurable. But these cases do more than that: they illustrate many of the great changes which have occurred (especially since the end of World War II) in society and in social institutions. The cases discussed also open up many of the fundamental (and often profoundly difficult) moral and social issues which have to be confronted by lawmakers and others who have to resolve them. For example, how far does a parent have the freedom to take unilateral decisions about a child’s medical treatment? And who, for that matter, is a child’s ‘parent’? Is marriage ‘special’ and if so in what way? Merely to browse through the Editors’ stimulating Introduction demonstrates the richness of the material. Of course there is a downside to this English approach: if judges can change the law – and few would today deny that they can – is it desirable that they should do so? It is not only the student who wrote to the press begging Lord Denning to hold back at least until the end of the examination season who had justifiable reservations. For how can such a power be reconciled with respect for a democratic constitution (today often, if perhaps dubiously said to be based on notions of the separation of powers) in which the law-making power is vested in an elected legislature? The newly articulated statutory emphasis on the need to encourage ‘diversity’ in the range of persons coming forward for judicial appointment [Constitutional Reform Act 2005 s 64] may be seen as merely acknowledging the desirability of avoiding public alienation from a judiciary whose members can so easily be seen as unrepresentative of the society they serve. Yet it may also indicate a tacit acceptance that on some issues the personal characteristics of the judge – sex, sexual orientation, ethnicity, social and educational background– may actually influence decisions by particular judges in particular cases. Would we today commit considerable resources to encouraging those currently under-represented on the Bench (such as lawyers who have practised as solicitors rather than barristers) to come forward if it could be convincingly shown that a more balanced representation would make no significant

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difference to the actual outcome of cases? The answer would almost certainly be that we would do so not least because of the overwhelming need to make the system seem ‘fair’ (which it manifestly fails to do when, for example, there is but a solitary woman amongst the Justices of the Supreme Court). But one problem seems likely to remain This is that although judges are now appointed under a system in which ‘merit’ is the governing factor, they are all human beings with necessarily different personalities ranging perhaps from the ‘activist’ inclined to regard change as intrinsically good to the faithful upholder of traditional values. But even that is an over-simplification: an individual may have a ‘progressive’ personality in respect to certain issues and a deeply ‘conservative’ approach to others: one need only consider the pronouncements of Lord Denning over the years to see an illustration. The greater the discretion vested in a court the greater the likelihood that such attributes will be a factor in the actual decision of cases. These issues are highlighted by the Supreme Court’s judgments in the Radmacher case1 which unhappily came too late – six months elapsed from the conclusion of the hearing to the delivery of the judgments on 20 October 2010 – for extended consideration in this volume. This is unfortunate, since the case certainly seems likely to be seen as a ‘landmark’. A bald statement of the impact of the Supreme Court’s decision may not at first glance seem very remarkable: in the words of the Law Commission2, the Court’s decision arguably takes the law ‘as far towards an enforceable status for marital property agreements as is possible within the current statutory framework’ [para. 1.11]. But in doing so the case raises ‘issues at the heart of family law’ including ‘what are the responsibilities of former spouses to each other’ after divorce? What is the place of autonomy in family law? What is the social cost of divorce . . .’ [para 1.12]. But the case is remarkable for another reason: there were nine justices on the panel, one of whom (Baroness Hale) in a remarkable and sustained piece of forensic oratory which it would be an understatement to describe as ‘forceful’ and ‘powerful’ dissented from her eight colleagues. Not only did she describe key elements in their judgments as ‘mercifully’ (sic) ‘obiter’ – and thus presumably not, in her view, to be treated as binding in future cases – but she made it unmistakably clear that she thought the majority decision would actually work unfairly for women since the object of most ante-nuptial agreements was to deny the economically weaker party the provision to which he or she (and it would indeed usually be ‘she’) might otherwise be entitled. So the case has become one on which strong emotions are likely to be felt and expressed: media commentators will have a field day, and the pressure on Government to allow Parliament to deal with the issues involved will be strong indeed. Nor will that pressure be reduced when the reader gets to the section of Baroness Hale’s judgment in which she urges that the issue is quintessentially 1 2

Radmacher (formerly Granatino) v Granatino [2010] UKSC 42. Marital Property Agreements, Consultation Paper No 198 (2010)

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one which should have been decided by the legislature. This argument is indeed difficult to refute: apart from general considerations of democratic accountability there are many consequential issues with which no court judgment could possibly deal (for example, the extent of any protective measures intended to ensure genuine fairness between the parties, not to mention the question of what principles are to apply where foreign systems of law might be involved). No Government is likely to be enthusiastic about introducing (or facilitating the introduction) of legislation on this subject. Bills to deal with controversial issues where the differences do not reflect traditional ‘party’ loyalties present governments (who are necessarily mindful of the need to keep effective control of the legislative timetable) with very real difficulties. But the problem need not be insoluble. The baton has now passed to the Law Commission which has the task (difficult as it may be) of bringing forward detailed proposals which will hopefully achieve a degree of consensus sufficient to ensure that no responsible Government will be able to ignore them. Only in that way can the systematic development and reform of the law (which it is the Law Commission’s statutory duty3 to promote) be achieved. As Baroness Hale remarked several times in her judgment, at the moment the law is ‘a mess.’ Stephen Cretney 3 February 2011.

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Law Commissions Act 1965, s 3(1)(e).

Preface to Paperback Edition Landmark Cases in Family Law first appeared in 2011, in hardback, and we are delighted that Hart Publishing is now reprinting the book in this paperback version. The text is unaltered from the original, including the Notes on Contributors. In the intervening five years, however, several contributors’ professional roles have changed, and we therefore set out below an updated list of contributors’ current positions. The Editors, January 2016. Andrew Bainham is a barrister at St Philips Chambers, and Emeritus Reader in Family Law and Policy, University of Cambridge. Elizabeth Cooke is Principal Judge of the Land Registration Division, First Tier Tribunal (Property Chamber). Gillian Douglas is Professor of Law, Cardiff University. Jane Fortin is Emeritus Professor of Law, Sussex University. Stephen Gilmore is Professor of Family Law, King’s College London. Lisa Glennon is an independent legal researcher and author. Mary Hayes is Emeritus Professor of Law, University of Sheffield. Jonathan Herring is Professor of Law in the Faculty of Law, Oxford University, and DM Wolfe-Clarendon Fellow in Law at Exeter College, Oxford. Nigel Lowe is Emeritus Professor, Cardiff University. David McClean is Emeritus Professor of Law, University of Sheffield. John Mee is Professor in Law, University College Cork. Walter Pintens is Emeritus Professor, University of Leuven and Honorary Professor, Saarland University. Rebecca Probert is Professor of Law, University of Warwick. Jens M Scherpe is University Senior Lecturer in Law, University of Cambridge, and a Fellow of Gonville and Caius College, Cambridge. Rachel Taylor is Associate Professor in Law, Oxford University, and Fellow in Law at Exeter College, Oxford.

Preface Most of the chapters in this volume were originally presented to fellow contributors as a paper for discussion at a seminar at King’s College London in April 2010. Judith Masson and Penny Booth also attended the seminar and provided helpful comments on the papers, for which we are very grateful. We should also like to record our thanks to Professor Timothy Macklem, Head of King’s College School of Law, and to Hart Publishing, for their kind contributions to funding the seminar. Our thanks also go to Lindsey McBrayne, Project Officer in the School of Law, for her assistance in organising the day. Following the seminar discussion, the papers were reworked in the light of comments, before being edited for this collection. At that stage Liam D’Arcy Brown provided invaluable assistance in proof-reading the final contributions, for which we are most grateful. We also wish to acknowledge that the original idea for the series of books on landmark cases to which this volume belongs came from Professor Charles Mitchell and Professor Paul Mitchell, and we are grateful for their permission and encouragement to extend the series to landmark family law cases. Finally, for kindly agreeing to write the Foreword we are especially grateful to Stephen Cretney. The Editors November 2010

Notes on Contributors Andrew Bainham is a barrister at 14, Gray’s Inn Square, a Fellow of Christ’s College Cambridge and Reader in Family Law and Policy at the University of Cambridge. He was a founder member and the first chair of the Cambridge Socio-Legal Group. For over a decade he was editor of the International Survey of Family Law, published on behalf of the International Society of Family Law. He is the author of Children: The Modern Law, 3rd edn (Bristol, Jordans, 2005) and of many articles in the field of family law, including ‘Arguments about parentage’ (2008) 67 Cambridge Law Journal 322. He is also the editor of Parents and Children (Aldershot, Ashgate, 2008). Elizabeth Cooke is Professor of Law at the University of Reading; her main interests are in property law and family law. As from July 2008 she is serving for five years as a Law Commissioner for England and Wales and is currently working on the law relating to easements, intestacy, and marital property agreements. Her publications include The Family, Law and Society, co-written with Brenda Hale, David Pearl and Daniel Monk (Oxford, Oxford University Press, 2008). Gillian Douglas is Professor of Law at Cardiff University. She has written widely on family law, and is the author of An Introduction to Family Law (1st and 2nd edns) in the Clarendon Law Series (Oxford University Press, 2001, 2004) and coauthor (with Nigel Lowe) of Bromley’s Family Law, 9th and 10th edns (1998 and 2007, now published by Cambridge University Press). She is joint editor of the Child and Family Law Quarterly and the Case Reports section of Family Law. She has conducted several empirical research projects into the impact of the law and legal process following family breakup, including on the financial consequences of separation, post-cohabitation property disputes and the perspectives and experiences of children whose parents have divorced. Jane Fortin is currently Professor of Law at Sussex University, having formerly held a chair and taught for many years at King’s College London. Her strong interest in family and child law has led to her writing widely on legal and policy developments relating to children and their families. She is currently conducting empirical research on the way in which contact arrangements made by divorced or separating parents impact on their children as they grow into adulthood. Her particular interest in children’s rights has led to a number of publications focusing on this area of child law. She is author of Children’s Rights and the Developing Law, 3rd edn (Cambridge, Cambridge University Press, 2009) and numerous articles on the extent to which the law recognises the concept of children’s rights. She is also joint editor of the Child and Family Law Quarterly.

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Stephen Gilmore is Senior Lecturer in Family Law at King’s College London. His research focuses on the law of parental responsibility, children’s rights and the resolution of parental disputes. He is currently exploring the role of social science research evidence in court decision making in child-law cases. He coedited (with Rebecca Probert and Jonathan Herring) Responsible Parents and Parental Responsibility (Oxford, Hart, 2009). Recent journal articles include: ‘Disputing Contact: Challenging Some Assumptions’ (2008) 20 Child and Family Law Quarterly 285; and (with J Herring) ‘ “No” is the hardest word: consent and children’s autonomy’ (2011) 23 Child and Family Law Quarterly 3. He is the case law editor of the Child and Family Law Quarterly. Lisa Glennon is a Lecturer in Law at the School of Law, Queen’s University Belfast. Her research and publications are in the area of family law and comparative property law. She is a former Executive Committee member of the Socio-Legal Studies Association and has, on numerous occasions, acted as consultant to the Law Reform Advisory Committee for Northern Ireland and the Northern Ireland Office of Law Reform. She has been a visiting scholar at Queen’s University (Canada), Emory University and Fordham University. Her recent publications include ‘The Limitations of Equality Discourses on the Contour of Intimate Obligations’ in J Wallbank, S Choudhry and J Herring (eds), Rights, Gender and Family Law (Abingdon, Routledge, 2009). Mary Hayes is Emeritus Professor of Law at the University of Sheffield and Professor of Law (part-time) at the University of Swansea. Until her retirement from the Bench in August 2010, Professor Hayes held a judicial appointment as a Deputy District Judge (Magistrates’ Courts) and was a Justice of the Peace for over 25 years. She has written widely on child and family law issues and is the author of several books and over 40 articles in scholarly journals. Recent publications include ‘Removing Children from their Families: Law and Policy before the Children Act 1989’ in G Douglas and N Lowe (eds), The Continuing Evolution of Family Law (Bristol, Family Law, 2009) and ‘Uncertain Evidence in Child Protection Cases’ in E Buss and M Maclean (eds), The Law and Child Development (Aldershot, Ashgate, 2010). Jonathan Herring is a fellow in law at Exeter College, Oxford University and University Lecturer in Law at the Law Faculty, Oxford University. He has written on family law, medical law, criminal law and legal issues surrounding old age. His books include: Older People in Law and Society (Oxford, Oxford University Press, 2009); European Human Rights and Family Law (Oxford, Hart, 2010) (with Shazia Choudhry); Medical Law and Ethics (Oxford, Oxford University Press, 2010); Criminal Law, 4th edn (Oxford, Oxford University Press 2010); Family Law, 4th edn (Harlow, Pearson, 2009); and The Woman Who Tickled Too Much (Harlow, Pearson, 2009). Nigel Lowe is a barrister of the Inner Temple, Professor of Law and Head of Cardiff Law School. He is a family law specialist and co-author of the leading

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text, Lowe and Douglas’ Bromley’s Family Law, now in its 10th edition. He has also written books on adoption, the Children Act 1989, the international movement of children, and wards of court as well as numerous articles on diverse topics both of domestic and international family law, particularly child law. He was a student studying, inter alia, family law, when J v C was decided. David McClean is an Emeritus Professor of Law in the University of Sheffield. Primarily a private international lawyer and a contributor to Dicey, Morris & Collins on the Conflict of Laws, 14th edn (London, Sweet & Maxwell, 2006), he is also General Editor of Shawcross and Beaumont on Air Law and has written on international co-operation in civil and criminal matters. He has been elected a Fellow of the British Academy, and to the Institut de droit international. Although he has never practised at the Bar, he is a bencher of Gray’s Inn, an honorary QC, and sits as an ecclesiastical judge. John Mee is a Professor in Law at University College Cork. His research interests are in the areas of equity and trusts, family property and land law, with an interest in law reform and legal history in these areas. He has published three books, The Property Rights of Cohabitees (Oxford, Hart, 1999), Law and Taxation of Trusts (with Keogan and Wylie) (Haywards Heath, Tottel, 2007) and Land Law (with Pearce) 3rd edn (forthcoming, Dublin, Thomson Round Hall, 2011). He is a member of the International Advisory Board of the Child and Family Law Quarterly and is a trustee director of the British and Irish Legal Information Institute (BAILII). Walter Pintens is a Professor at the University of Leuven (Belgium) and an Honorary Professor at Saarland University (Germany). He is a founding member of the Commission on European Family Law, editor of the volumes on Family and Succession Law in the International Encyclopaedia of Law, a member of the International Academy of Comparative Law, and an Honorary Justice of the Peace. Rebecca Probert is Professor of Law at the University of Warwick, teaching family law, child law and a course on ‘law and the intact family’. She has written widely on the topics of cohabitation and marriage, particularly from an historical perspective. Her recent publications include Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge, Cambridge University Press, 2009) and Cretney and Probert’s Family Law (London, Sweet & Maxwell, 2009). She is also co-author (with J Masson and R Bailey-Harris) of Cretney: Principles of Family Law (London, Sweet & Maxwell, 2008), editor of Family Life and the Law: Under One Roof (Alderhot, Ashgate, 2007) and Optimistic Objectives (Kenilworth, Takeaway, 2010), and co-editor (with Stephen Gilmore and Jonathan Herring) of Responsible Parents and Parental responsibility (Oxford, Hart, 2009) and (with Joanna Miles) of Sharing Lives, Dividing Assets (Oxford, Hart, 2009). She is currently completing a book on the legal regulation of cohabitants, entitled From Fornicators to Family.

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Jens M Scherpe is a University Senior Lecturer in Law at the University of Cambridge and a Fellow of Gonville and Caius College. He teaches comparative law and family law – and also comparative family law. Previously he was a Research Fellow and Head of the Department for the Law of the Nordic Countries at the Max Planck Institute for Comparative and Private International Law in Hamburg, a member of the Legal Advisory Group of the Law Commission of England and Wales’ Cohabitation Project and has held visiting positions in Belgium, Germany, Australia, New Zealand and Hong Kong. Currently he is working on a British Academy-funded comparative study of the legal rules on marital agreements. Rachel Taylor is a Lecturer in Law at Balliol College, Oxford and was previously Penningtons Tutor in Law at Christ Church, University of Oxford. Her research interests are in family law and human rights law. Recent publications include: ‘Reversing the Retreat from Gillick? R (Axon) v Secretary of State for Health’ (2007) 19 Child and Family Law Quarterly 81 and (with Jonathan Herring) ‘Relocating Relocation’ (2006) 18 Child and Family Law Quarterly 517.

Table of Cases A A (Specific Issue Order: Parental Dispute), Re [2001] 1 FLR 121 ..................107 A v A (1980) 1 FLR 380 ................................................................................99 A v A (Financial Provision) [1998] 3 FCR 421 .............................................275 Ackerman v Ackerman [1972] Fam 1 .................................................... 137–38 Ackerman v Ackerman [1972] Fam 225................................................. 136–39 Agar-Ellis, In re (1883) 24 Ch D 317 ...........................................................203 Airey v Ireland (1979–80) 2 EHRR 305 .......................................................168 Akram v Akram 1979 SLT (Notes) 87 ...........................................................82 Anayo v Germany judgment of 21 December 2010 .....................................160 Apt v Apt [1948] P 83 ...................................................................................76 AR (A Child: Relocation), Re [2010] EWHC 1346 .................. 92, 103, 107, 109 Armstrong v Armstrong (1974) 118 Sol Jo 579 ............................................146 Attorney-General: and Prince Ernest Augustus of Hanover [1957] AC 436 .....................................................................................................31 Attorney-General v Family Court at Otahuhu [1995] 1 NZLR 603 .....65, 66, 68 Attorney-General for the Commonwealth v Kevin and Others [2003] Fam CA 94 ...............................................................................................65 Attorney-General’s Reference (No 90 of 2009) [2009] EWCA Crim 2610 .....233 Austin and anor v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 3 All ER 455 ................................................................................221 B B (A Child) (Residence: Biological Parent), Re [2009] UKSC 5, [2009] 1 WLR 2496 ..................................................................................41, 42, 44 B (A Minor) (Wardship: Sterilisation), Re [1988] AC 199 ...............................35 B (Minors) (Removal from Jurisdiction), Re [1994] 2 FCR 309 ....................104 B (Removal from Jurisdiction); Re S (Removal from Jurisdiction), Re [2003] EWCA Civ 1149, [2003] 2 FLR 1043 ..........................................91 Barnardo v McHugh [1891] AC 388..............................................................28 Bateman v Bateman (orse Harrison) (1898) 78 LT 472 ...................................59 Bellinger v Bellinger [2001] 2 FLR 1048 .......................................................127 Bellinger v Bellinger (Lord Chancellor intervening) [2003] UKHL 21, [2003] 2 AC 467 .................................................................................. 48, 70 Belton v Belton [1987] 2 FLR 343.........................................................100, 104 Bensaid v United Kingdom (2001) 33 EHRR 1 ............................................217 Bernard v Josephs [1982] 1 Ch 391..............................................................183 Bevan v Bevan (1974) 4 Fam Law 126 .................................................... 98, 106

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Blezard v Blezard (1980) 1 FLR 253 .............................................................145 Boldrini v Boldrini [1932] P 9 .......................................................................76 Botta v Italy (1998) 26 EHRR 241 ........................................................168, 217 Brady v Murray 1933 SLT 534 ......................................................................82 Brannigan and McBride v United Kingdom (1994) EHRR 539 .....................169 Braschi v Stahl Associates Company [1989] NYS 2 784 ...............................247 Breen v Williams (1996) 186 CLR 71 ...........................................................187 Brock v Wollams [1949] 1 All ER 715 ..........................................................254 Brodie v Brodie [1917] P 271 .........................................................................82 Bruce v Burke (1825) 2 Add 471 ....................................................................59 Buckland v Buckland (orse Camilleri) [1968] P 296.................................. 77, 81 Bullock v Bullock [1960] 1 WLR 975.............................................................52 Bullock v Bullock [1986] 1 FLR 372 ............................................................149 Burns v Burns [1984] Ch 317 ................................................................5, ch 10 C Calderbank v Calderbank [1976] Fam 93 ....................................................150 Camp and Bourimi v Netherlands (2002) 34 EHRR 49 ................................171 Carega Properties SA v Sharratt [1979] 1 WLR 928 .....................................257 Carley v Smith, Court of Appeal, 23 June 1980 (Lexis)................................183 Carroll (No 2), Re [1931] 1 KB 317 ......................................................... 28, 31 CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 2 FLR 517 ...........................................................................39 Chamberlain v de la Mare (1982) 4 FLR 434 .................................... 34, 99, 100 Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246.............................................................................. 142, 154, 279 Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10/28 (4)), Re [2009] 2 FLR 1467 .......................................129, 130 Clark v Clark [1999] 2 FLR 498 ..................................................................147 Conran v Conran [1997] 2 FLR 615 ............................................................275 Cooke v Head [1972] 1 WLR 518 ........................................................183, 185 Cooper v Crane [1891] P 369 ........................................................................79 Corbett v Corbett (orse Ashley) [1971] P 83 ................................ 2, 3, 6–9, ch 4 Cossey v United Kingdom (1990) 13 EHRR 622 .................................... 67, 169 Crosby v Crosby, 30 July 1969 CA Bar Library, Transcript No 309 .....92, 93, 96 Crossley v Crossley [2005] EWCA Civ 1581 ................................................192 Cruh v Cruh [1945] 2 All ER 545 ..................................................................76 Cumming v Danson [1942] 2 All ER 653 .....................................................243 Curl v Angelo [1948] 2 All ER 189 ..............................................................243 Cuzner v Underdown [1974] 1 WLR 641 .....................................................145 D D, Re [2010] EWCA Civ 593.........................................................................92 D (Care: Natural Parent Presumption), Re [1999] 1 FLR 134 .........................40

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D (Children) [2010] EWCA 50, Re ..............................................................102 D (Leave to Remove: Shared Residence), Re [2006] EWHC 1794 (Fam), [2006] Fam Law 1006 ..............................................................................107 D v D (1982) 12 Fam Law .............................................................................85 D v S [2002] NZFLR 116 ............................................................................109 Dalrymple v Dalrymple (1811) 2 Hag Con 54 ...............................................88 Dart v Dart [1996] 2 FLR 286 ...................................................... 151, 275, 277 Davis v Vale [1971] 1 WLR 1022 .................................................................183 DB (orse O’R) v O’R [1991] 1 IR 289 ............................................................86 D-e v A-g (falsely calling herself D--e) (1845) Rob Ecc 279 ............................59 De Reneville v De Reneville [1948] P 100 ......................................................76 Dew v Dew [1986] 2 FLR 341 .....................................................................149 Diwell v Farnes [1959] 1 WLR 624 ..............................................................177 Duxbury v Duxbury [1992] Fam 62n ..........................................................151 Dyson Holdings v Fox [1975] 3 All ER 1030.......................... 244, 245, 255, 258 E E (a minor) (wardship: medical treatment), Re [1993] 1 FLR 386 .................212 Elliott v Gurr (1812) 2 Phillim 16 ..................................................................59 EO (a minor) (1973) The Times, 16 February ................................................34 Estate of Marshall G. Gardiner, Deceased, In the matter of 42 P3d 120 (2002), Supreme Court of Kansas .............................................................64 Evans v Evans [1989] 1 FLR 351..................................................................147 Evans v Ferguson (1956) 168 Estates Gazette 37 ..........................................255 Eve v Eve (1986) 31 DLR (4th) 1 ...................................................................35 Evelyn, Re [1998] Fam CA 55 .......................................................................41 Eves v Eves [1975] 1 WLR 1338 ...........................................................183, 185 F F, Re [1988] 2 FLR 116 ...............................................................................100 F (A Minor: Paternity Test), Re [1993] 1 FLR 598 ........................................132 F (Paternity: Jurisdiction), Re [2008] 1 FLR 225 ..........................................131 Falconer v Falconer [1970] 1 WLR 1333 ...............................................183, 185 Forbes-Sempill, In Petition of John Alexander Cumnock and the Honourable Ewan Forbes-Sempill, 29 December 1967, National Archives of Scotland, reference CS258/1991/P892 ..................................................... 3, 48, 60 – 63 Fretté v France (2003) 2 FLR 9 ............................................................172, 266 Frost v Hartley [1977] CLY 329 ....................................................................98 Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 .................................................................................. 7, 9, 10, ch 13 G G (Children), Re [2007] EWCA Civ 1497, [2008] 1 FLR 1587 .......................107

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G (Children) (Residence: Same-Sex Partner), Re [2006] UKHL 43, [2006] 1 WLR 2305........................................................................41, 42, 44 G (Leave to Remove), Re [2008] 1 FLR 1587 ...............................................102 G (Residence: Same Sex Partner), Re [2005] EWCA Civ 462, [2005] 2 FLR 957 ................................................................................................43 G v G (Financial Provision: Separation Agreement) [2004] 1 FLR 1011 ........148 Gammans v Ekins [1950] 2 All ER 140 ........................................................255 Gault, Re 387 US 1 .....................................................................................116 Ghaidan v Godin-Mendoza [2004] UKHL 30 .......................... 244, 264, 266–69 Gillick v West Norfolk and Wisbech AHA [1986] AC 112 ...........5, 6, 8, 9, ch 11 Gillies v Keogh [1989] 2 NZLR 327 ............................................................193 Gissing v Gissing [1971] AC 886 ...................... 177, 178, 180–83, 192, 193, 198 Godfrey v Godfrey [1981] CLY 249u ..................................................... 98, 106 Golder v United Kingdom (1979–80) 1 EHRR 524 ...............................166, 167 Goodwin v United Kingdom (2002) 35 EHRR 18 ............................. 67, 70, 169 Gordon v Douce [1983] 2 All ER 228 ...................................................181, 182 Grant v Edwards [1986] Ch 638 ...........................................................182, 195 H H (a child: residence), Re [2002] 3 FCR 277 ..................................................40 H and A, Re [2002] 1 FLR 1145 ..................................................................130 H (A Minor)(Custody: Interim Care and Control), Re [1991] 2 FLR 109 .......40 H (Application to Remove from Jurisdiction), Re [1998] 1 FLR 848...............91 H (Children), Re [2001] EWCA Civ 1338, [2001] 2 FLR 1277.......................101 H (Paternity: Blood Test), Re [1996] 2 FLR 65 .............................................132 H v H [1954] P 258 ............................................................................77, 79, 82 H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam), [2006] 1 FLR 990 .................................................................147 H v H (Residence Order: Leave to Remove from Jurisdiction) [1995] 1 FLR 529 ..............................................................................................101 Hadak, Newman and Hadak (1993) FLC 92-421...........................................41 Hall v Hall (1982) 3 FLR 379 ................................................................ 83, 184 Hanlon v Law Society [1981] AC 124..........................................................183 Hargrave v Newton [1971] 1 WLR 1611 .....................................................183 Harnett v Harnett [1974] 1 All ER 764 .......................................................145 Harris v Morris (1801) 4 Esp 41..................................................................114 Harrogate Borough Council v Simpson (1984) 17 HLR ................. 205 246, 260 Hayes (falsely called Watts) v Watts (1819) 3 Phillim 43 .................................59 Hayward v Hayward (orse Prestwood) [1961] P 152 ................................ 52, 58 Hazell v Hazell [1972] 1 WLR 301 .......................................................183, 185 Hendricks v Netherlands (1982) 5 EHRR 223 ......................................... 38, 39 Hewer v Bryant [1969] 3 All ER 578 ............................................ 121, 122, 203 Hirani v Hirani (1983) 4 FLR 232, CA .................................................... 10, 85 HM Advocate v Duffy 1983 SLT 7 ..............................................................230

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HM Advocate v Paxton 1985 SLT 96 ..........................................................230 Hoffmann v Austria (1994) 17 EHRR 293 ...................................................168 Hoppe v Germany [2003] 1 FLR 384.............................................................39 Hunt v Hunt (1884) 28 Ch D 606 ..................................................................92 Hunter v Hunter [1973] 1 WLR 958............................................................150 Hussey v Palmer [1972] 1 WLR 1286...........................................................183 Hyde v Hyde (1866) LR 1 P & D 130 ............................................................52 I Inze v Austria (1988) 10 EHRR 394 ............................................................171 J J (Paternity: Welfare of Child), Re [2007] 1 FLR 1064 .................................131 J v C [1970] AC 668..................................................................3, 5, 8, 10, ch 3, 96, 99, 100, 103, 116, 122 James v Thomas [2007] EWCA Civ 1212.....................................................196 Johansen v Norway (1996) 23 EHRR 33, ECtHR ..........................................38 K K, A local authority v N [2005] EWHC 2956 (Fam).......................................86 K (A Minor) (Removal from Jurisdiction), Re [1992] 2 FLR 98 ....................101 K (A Minor) (Ward: Care and Control), Re [1990] 1 WLR 431 ......................40 K (Contact: Mother’s Anxiety), Re [1999] 2 FLR 703 ..................................104 K (Minors) (Children: Care and Control), Re [1977] Fam 179........................34 K (Specific Issue Order), Re [1999] 2 FLR 280 ............................................131 K (Wardship: Care and Control), Re [1977] Fam 179 ...................................133 KD (A Minor) (Ward: Termination of Access), Re [1988] AC 806 .................................................................................... 34, 35, 37, 40 K v G [2004] NZFLR 1105 ...........................................................................33 K v K (Financial Provision) [1990] 2 FLR 225 ..............................................147 K v McC [1982] ILRM 277 ...........................................................................86 Kantaras v Kantaras 884 So. 2d 155, Court of Appeal of Florida, Second District (2004) ..............................................................................64 Karner v Austria (2004) 38 EHRR 24...................................................246, 266 Kassim (orse Widmann) v Kasim (orse Kassim) [1962] P 224 .........................59 Kelly v Minister for Foreign Affairs (Irish High Ct, unreported, 12 December 1995) ...................................................................................87 Kenward v Kenward [1951] P 124 .................................................................76 Kernott v Jones [2010] EWCA Civ 578........................................................197 Kevin: validity of marriage of transsexual, Re [2001] FamCA 1074 ...............65 Khalil v Khalil [1980] CLY 242 .....................................................................99 Kokosinski v Kokosinski [1980] Fam 72 ......................................................146 Kowalczuk v Kowalczuk [1973] 1 WLR 930 ................................................184 Kyte v Kyte [1988] Fam 145 ........................................................................147

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L L (A Child), Re [2009] EWCA Civ 1239 ......................................................129 L (A Child)(Contact: Domestic Violence), Re; V (A Child)(Contact: Domestic Violence), Re; M (A Child)(Contact: Domestic Violence), Re; H (Children)(Contact: Domestic Violence), Re [2001] Fam 260 .................................................................................... 38, 103, 104 L (Medical treatment: Gillick competency), Re [1999] 2 FCR 524 ................213 Ladrach, In re 513 NE 2d 828 (1987), Ohio Probate Court.............................64 Leber, In re (1945) 8 Recueil De Jugements Du Tribunal Cantonal De La Republique Et Canton De Neuchâtel 536 .............................................60 Langden v Horton [1951] 1 KB 666 .............................................................255 Lankow v Rose [1995] 1 NZLR 277 ............................................................193 Larkos v Cyprus [GC], no. 29515/95 ...........................................................172 Leaver v Leaver [1977] CLY 322 ............................................................. 98, 99 Lebbink v Netherlands (2005) 40 EHRR 18 ................................................160 Leeds Teaching Hospitals NHS Trust v A and B [2003] 1 FLR 412 ...............131 Le Foe v Le Foe [2001] 2 FLR 970 ...............................................................195 Lindo v Belisario (1795) 1 Hag Con 216 ........................................................52 Littleton v Prange 9 SW 3d 223 (1999) Court of Appeals of Texas, Fourth District, San Antonio ....................................................................64 Lloyd v Sadler [1978] QB 774 .....................................................................243 Lloyds Bank v Rosset [1991] 1 AC 107 ........................................................195 Lonslow v Hennig [1986] 2 FLR 378 ...........................................................100 Lustig-Prean v United Kingdom, App Nos 31417/96 and 32377/96, (2000) 29 EHRR 548...............................................................................253 M M (Child’s Upbringing), Re [1996] 2 FLR 441 ......................................... 40, 43 M v A (Wardship: Removal from Jurisdiction) [1993] 2 FLR 715 ..........101, 104 M v H (1999) 171 DLR (4th) 577 ................................................................263 M v M [1991] NZFLR 337 .................................................................... 64, 65 M v M (A) (1984) 42 RFL (2d) 267................................................................64 M v M (child: access) [1973] 2 All ER 81.....................................................104 M v M (Minors) (Jurisdiction) [1993] Fam Law 396 .............................101, 104 M v M (Short Marriage: Clean Break) [2005] EWHC 528 (Fam), [2005] 2 FLR 533 ............................................................................147, 148 Mabon v Mabon [2005] EWCA Civ 634, [2005] 3 WLR 460 .................108, 216 Mackowik v Kansas City St J & CBR.Co (1906) 94 SW 256, 262 .................130 Mahmud v Mahmud 1977 SLT (Notes) 17 ....................................................82 Maitland v Donn [2008] NIFam 4.................................................................87 Marckx v Belgium (1979–80) 2 EHRR 14 ...................................... 4, 9, 10, ch 9 Mark v Mark [2005] UKHL 42, [2006] 1 AC 98 .............................................76 Martens v Martens [1952] 3 South African LR 771.................................. 78, 87 Mata Estevez v Spain [2001] ECHR 56501/00.......................................170, 253

Table of Cases

xxv

Mazurek v France (2006) 42 EHRR 9 ..........................................................171 McFarlane v McFarlane [2009] EWHC 891 (Fam), [2009] 2 FLR 1322 .........152 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2005] Fam 171 .......................................................................................151 McMichael v United Kingdom (1995) 20 EHRR 205 ...................................169 M (D) v M (S) and G (MDA) intervening) [1969] 2 All ER 243.....................118 Merger and Cros v France (2006) 43 EHRR 51 ............................................171 Messina (formerly Smith orse Vervaeke) v Smith [1971] P 322........................82 MH v GP (Child: Emigration) [1995] 2 FLR 106 ..................................101, 102 Mikulic v Croatia [2002] 1 FCR 720 ...........................................................130 Midland Bank v Cooke [1995] 4 All ER 562 .........................................184, 195 Miller v Miller [2005] EWCA Civ 984, [2006] 1 FLR 151 .............. 127, 147, 148 Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 .................................................................. 3, 127, 142, 148, 153, 279 Minton v Minton [1979] AC 593 ................................................................144 Moodey v Field [1982] CLY 427 ........................................................... 99, 100 MO’M (orse O’C) v O’C [1995] 2 IR 253 ......................................................86 Morgan v Morgan (orse Ransom) [1959] P 92 ..............................................82 MT v JT (1976) 335 A 2d 204 ................................................................... 64–6 N N (orse K) v K [1985] IR 733 ........................................................................86 Nash v Nash [1973] 2 All ER 704............................................................ 98, 99 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (CCT10/99) [1999] ZACC 17 ..................................................... 2, 63 Neulinger and Shuruk v Switzerland (2010) (App No 41615/07), [2011] 1 FLR 122 ......................................................................................39 Nielsen v Denmark (1988) 11 EHRR 175 .............................................220, 221 Niemitz v Germany (1993) 16 EHRR 97 .....................................................217 NS v MI, [2006] EWHC 1646 (Fam), [2007] 1 FLR 444................. 10, 81, 85, 86 O O (a minor), Re (1973) The Times, 26 February ............................................34 O and another (Minors)(Care: Preliminary Hearing), Re; Re B [2003] UKHL 18, [2004] 1 AC 523 .......................................................................36 O and J (Paternity: Ordering Blood Tests), Re [2000] 1 FLR 418 ..................114 O (Contact: Imposition of Conditions), Re [1995] 2 FLR 124 ......................104 O’Donnell v O’Donnell [1976] Fam 83 .......................................................149 Official Solicitor v K [1965] AC 201 ..............................................................28 O’K (orse CP) v WP [1985] IR 279 ................................................................86 O’N v O’N [1977] CLY 31............................................................................98 Orlandi v Castelli 1961 SC 113 ............................................................... 82, 87 Oxley v Hiscock [2005] Fam 211 .........................................................195, 197

xxvi

Table of Cases

P P and G (Transsexuals), Re [1996] 2 FLR 90 ..................................................68 P v R (Forced Marriage: Annulment: Procedure) [2003] 1 FLR 661 ................85 Page v Page (1981) 2 FLR 198 ................................................ 149, 150, 275, 277 Parojcic (orse Ivetic) v Parojcic [1958] 1 WLR 1280 ........................................76 Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473 ............................ 34, 38, 91, 101–04,107– 09 Pettitt v Pettitt [1970] AC 777 ...........................................177, 178, 180–83, 193 Pla and Puncernau v Andorra (2006) 42 EHRR 25 ......................................171 Poel v Poel [1970] 1 WLR 1469 sub nom P (LM) (orse E) v P (GE)......................................................................................... 3, 5, 34, ch 6 Popkin v Popkin (1794) 1 Hag Ecc 765n ......................................................226 Porter v Porter [1971] P 282 ........................................................................138 Porter v Porter [1969] 1 WLR 1155..............................................................278 Preston v Preston [1982] Fam 17 ..........................................................151, 275 Preston-Jones v Preston-Jones [1951] AC 391 ..............................................115 Pretty v United Kingdom [2002] 2 FLR 45 .................................... 217, 218, 221 Price v Gould (1930) 143 LT 333 .................................................................254 PW v A O’C (otherwise W) [1993] 1 IR 324 ..................................................86 R R (a minor)(wardship: medical treatment), Re [1992] Fam 11 ................................................ 207, 212, 213, 214, 218, 220, 221, 223 R (Axon) v Secretary of State for Health and The Family Planning Association [2006] EWHC 37 (Admin), [2006] 2 FLR 206 .... 207, 211, 216–20 R (Baiai and another) v Secretary of State for the Home Department (Nos 1 and 2) [2009] AC 287 .....................................................................84 R (Blood Test: Constraint), Re [1998] 1 FLR 745 ........................................114 R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797 ..................................................................................................265 R (Minors)(Wardship: Jurisdiction), Re [1981] 2 FLR 416 .............................34 R v Berry (1988) 10 Cr App R (S) 13 ...........................................................232 R v Billam (1986) 8 Cr App R (S) 48 ...........................................................232 R v Browne [1993] 2 All ER 75 ...................................................................261 R v C [2004] EWCA Crim 292 ....................................................................232 R v Caswell [1984] Crim LR 111 ................................................................228 R v Clarence (1888) 22 QBD 23 ...........................................................226, 229 R v Clarke [1949] 2 All ER 448 ...................................................................227 R v Cogan [1976] QB 217 ...........................................................................229 R v Harris and McGuiness (1988) 17 NSWLR 158 ........................................64 R v Kowalski (1988) 86 Cr App R 339 ................................................... 227–29 R v Lartner [1995] Crim LR 75 ...................................................................229 R v M (1995) 16 Cr App R (S) 770 ..............................................................233 R v Matthews (unreported) 28 October 1996 ................................................68

Table of Cases

xxvii

R v Millberry [2002] EWCA Crim 2891 ......................................................233 R v Miller [1954] 2 QB 282 .........................................................................227 R v O’Brien [1974] 3 All ER 663 .................................................................227 R v PH [2001] 1 Cr App R (S) 52 ................................................................232 R v R [1992] 1 AC 599 ...................................................................... 4, 6, ch 12 R v Roberts [1986] Crim LR 188 .................................................................227 R v Sharples [1990] Crim LR 198 ................................................................227 R v R (leave to Remove) [2004] EWHC 2572 (Fam), [2005] 1 FLR 687 ...........91 R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 ................................................................................................262 R v Tan and Others [1983] QB 1053..............................................................68 R v United Kingdom (1987) 10 EHRR 74, [1988] 2 FLR 445 ..........................35 R v UK, O v UK, W v UK [1988] 2 FLR 445 ..................................................37 Radmacher (formerly Grantino) v Grantino [2010] UKSC 42 ................. vi, 281 Ramsay-Fairfax (orse Scott-Gibson) v Ramsay-Fairfax [1956] P 115 ..............75 Rees v United Kingdom [1987] 2 FLR 111 ............................................. 67, 169 Rice v Miller (1993) FLC 92-415 ...................................................................41 Richards v Dove [1974] 1 All ER 888 ..........................................................183 Roberts decd, Re, Roberts v Roberts [1978] 1 WLR 653.................................76 Roddy (a child) (identification: restriction on publication), Re [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 .................207, 217, 218, 220, 221, 223 Roos case (Private Act of Parliament, given Royal Assent on 11 April 1670)..............................................................................................2, 6, ch 2 Ross v Collins [1964] 1 WLR 425 .........................................................254, 257 Rozanski v Poland [2006] 2 FLR 1163 .........................................................128 Russell v Russell [1924] AC 687 ..................................................................115 R (Williamson and Others) v Secretary of State for Education [2005] UKHL 15, [2005] 2 All ER 1 ...................................................................216 Rye v Fuljambe (1602) Moo K.B. 683; 72 ER 838 ..........................................15 S S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 AC 593 ................................................................................................129 S (a minor) (consent to medical treatment), Re [1994] 2 FLR 1065 ...............213 S (Practice: Muslim Women Giving Evidence), Re [2007] 2 FLR 461 ..............85 S v HM Advocate (1989) SLT 469 ...............................................................230 S v McC (formerly S) and M (Intervening) [1970] 1 All ER 1162 ..... 113, 120–23 S v S [1976] Fam 18 ....................................................................................150 S v S; W v Official Solicitor [1972] AC 24 ....................................... 3, 8, 9, ch 7, S v United Kingdom (1986) 47 D & R 274............................................253, 266 Salgueiro da Silva Mouta v Portgual (2001) 31 EHRR 47 .............................263 Salvesen (or Von Lorang) v Administrator of Austrian Property [1927] AC 641 .....................................................................................................76 Sansom v Sansom [1966] P 52 .....................................................................139

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Table of Cases

S (BD) v S (DJ)(Children: Care Control) [1977] Fam 109 ...............................34 SC v Wren (1986) 76 AR 115 (CA) ..............................................................200 Schalk and Kopf v Austria [2010] ECHR 20141/04...............................170, 253 Scott v Sebright (1887) 12 P 21 ......................................................................81 Secretary, Department of Health and Community Services v JWB (Marion’s case) (1992) 175 CLR 218 ........................................................200 Sheffield and Horsham v United Kingdom (1999) 27 EHRR 163 ..................170 Silver v Silver [1955] 2 All ER 614 .................................................................82 Simpson v United Kingdom (Application No 11716/85) (1986) 47 D&R 274.........................................................................................................246 Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] 1 FLR 308 ......................................................................................86 Singh v Kaur (1981) 11 Fam Law 152 ...................................................... 81, 85 Singh v Singh [1971] 2 All ER 828 .................................................................85 Singh v Singh (1977) 77 DLR (3d) 154 ..........................................................82 Singh v Singh [2005] CSOH 96, 2005 SCLR 1000 ..........................................76 Smith and Grady United Kingdom, App Nos 33985/96 and 33986/96, (2000) 29 EHRR 493........................................................................253, 254 SK (An Adult) (Forced Marriage: Appropriate Relief), Re [2004] EWHC 3202 (Fam), [2006] 1 WLR 81 .......................................................85 South Glamorgan County Council v W and B [1993] 1 FLR 574 ..................209 Stack v Dowden [2007] UKHL 17 ....................................175, 187, 190, 195–98 S-T (Formerly J) v J [1998] Fam 103 .............................................................68 Stewart v Higgins [1951] Estates Gazette Digest 353....................................254 Stockford v Stockford (1982) 3 FLR 364 ......................................................151 Storck v Germany (2006) 43 EHRR 96 ........................................................221 SW and CR v United Kingdom Ser A 335-B, 1995 .......................................231 SY v SY (orse W) [1963] P 37, CA ................................................ 51, 52, 59, 69 Szechter (orse Karsov) v Szechter [1971] P 286 .................................. 9, 10, ch 5 T T, Re [1975] 2 NZLR 449 .............................................................................64 T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190 ...............................128 T, Re, Petitioner [1997] SLT 724 .................................................................253 Talbot (orse Poyntz) v Talbot (1967) 111 SJ 213 .............................................52 Thain, Re [1926] Ch 676...............................................................................28 Trestain v Trestain [1950] P 198 ..................................................................137 Tubb v Tubb (1970) 114 Sol J 909 .....................................................92, 98, 99 Turner v Jacob [2006] EWHC 1317 (Ch).....................................................192 Tyler v Tyler [1989] 2 FLR 158 ...................................................................101 Tyrer v United Kingdom (1979–80) 2 EHRR 1 ............................................167 U US v Rubenstein 151 F 2d 915 (2nd Cir, 1945) ......................................... 78, 87

Table of Cases

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V Vermeire v Belgium (1993) 15 EHRR 488 ....................................................171 Vervaeke (formerly Messina) v Smith [1983] 1 AC 145 ........................82, 87, 88 W W (A Child) (Removal from Jurisdiction), Re [2005] EWCA Civ 1614, [2006] 1 FCR 346................................................................................ 91, 95 W (Adoption: Homosexual Adopter), Re [1997] 2 FLR 406.........................253 W (a minor) (medical treatment: court’s jurisdiction), Re [1993] Fam 64 ........................................................207, 213, 214, 218, 220, 221, 223 W (A Minor)(Residence Order), Re [1993] 2 FLR 625 ...................................40 W (Children) (Abuse: Oral Evidence), Re [2010] UKSC 12 ..........................133 W (Leave to Remove), Re [2008] EWCA Civ 538, [2008] 2 FLR 1170 ...........101 W (Minors) (Removal from Jurisdiction), Re [1994] 1 FCR 842 ..................101 W v Federal Republic of Germany (1985). 50 D & R 219 ..............................39 W v W [1970] 1 All ER 1157 .......................................................113, 117 – 119 W v W (1976) (2) SALR 308 .........................................................................63 W v W (Physical Inter-sex) [2001] Fam 111 ...................................................69 Wachtel v Wachtel [1973] Fam 72.......................................................3, 6, ch 8, Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 ........265 Ward v Laverty [1925] AC 101 ..................................................... 28, 31, 36, 37 Wemhoff v Germany (1979–80) 1 EHRR 55................................................167 Westminster City Council v C [2008] EWCA Civ 198, [2009] Fam 11 .............76 White v White [2000] 1 AC 596 ..................................... 4, 9, 10, 142, 151, ch 14 Wilkinson v Kitzinger [2006] EWHC 2022 (Fam) .................................170, 268 Williams v Williams [1985] FLR 509, 512–13...............................................104 Wilson v Glossop (1888) 20 QBD 354 .........................................................114 Wood v Wood, Court of Appeal, 7 July 1982 (Lexis) ...................................183 Wright and Webb v Annandale [1930] 2 KB 8 .............................................114 X X (A Minor) (Wardship: Jurisdiction), Re [1975] Fam 47 .............................129 X Ptr 1957 SLT (Sh Ct) 61 ............................................................................60 X and Y (Leave to Remove from Jurisdiction: No Order Principle), Re [2001] 2 FLR 118 ...............................................................................101 X and Y v Netherlands (1986) 8 EHRRR 235.......................................167, 168 X, Y, and Z v United Kingdom [1997] 2 FLR 892 ..........................................67 Y Y (Leave to Remove from Jurisdiction), Re [2004] 2 FLR 330 ......................107 Yaxley v Gotts [2000] Ch 162 .....................................................................192 Yousef v Netherlands (2003) 36 EHRR 20, [2003] 1 FLR 210................. 39, 122

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Z Z (A Minor) (Identification: Restrictions on Publication), Re [1997] Fam 1 ....................................................................................................129 Zaunegger v Germany (App No 22028/04) [2009] ECHR 22028/04 ..............169

Table of Legislation United Kingdom 34 & 35 Henry VIII no 39 ............................................................................14 5 Edw VI......................................................................................................15 Administration of Justice (Scotland) Act 1933 ..............................................61 Adoption and Children Act 2002 ................................................................127 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 s 19 ..........................................................................................................84 Children Act 1948 s 1 ............................................................................................................29 Children Act 1989 ................................................................. 40, 101, 106, 208 s 1(1) ................................................................................ 4, 27, 36, 113, 129 s 1(3) ............................................................................................... 44, 101 s 8 ..........................................................................................................101 s 13 ........................................................................................................101 s 22(4)(a) ...............................................................................................208 s 22(5)(a) ................................................................................................208 s 38(6) ....................................................................................................209 s 43(8) ....................................................................................................209 s 44(7) ....................................................................................................209 sch 1 ...............................................................................................185, 186 sch 3, paras 4(4)(a) ................................................................................209 sch 3 para 5(5)(a) ....................................................................................209 Children (Scotland) Act 1995, s 6 ...............................................................208 Civil Partnership Act 2004 ................................................... 1, 7, 254, 262, 268 s 81 ........................................................................................................246 s 263(2) ..................................................................................................246 Sch 5, para 20 .........................................................................................129 Sch 8, para 13(3) .....................................................................................244 Sch 8, para 27(2)(b) ................................................................................246 Sch 9, para 13 .........................................................................................262 Constitutional Reform Act 2005 s 64 ........................................................................................................... v Divorce Reform Act 1969 ................................................................ 6, 114, 136 Equality Act (Sexual Orientation) Regulations 2007 ....................................248 Equal Pay Act 1970 ....................................................................................... 6

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Family Law Act 1996 s 10 ........................................................................................................147 s 33(7) ....................................................................................................129 s 63A .......................................................................................................86 Family Law Reform Act 1969 .....................................................................114 s 8 ...................................................................................................202, 203 s 21(3) ....................................................................................................129 s 26 ........................................................................................................124 Family Law Reform Act 1987 .....................................................................115 Family Law (Scotland) Act 2006 .................................................................189 Forced Marriages (Civil Protection) Act 2007 ................................................86 Gender Recognition Act 2004 ............................................. 1, 47, 48, 59, 70, 71 Guardianship of Infants Act 1925 s 1 ............................................................................... 27, 30, 31, 33, 36, 44 Guardianship of Minors Act 1971 ........................................................ 36, 113 Housing Act 1980 s 76 .......................................................................................................244 s 50(3) ....................................................................................................246 Housing Act 1985 ......................................................................................243 s 113(1)(a) .............................................................................................246 Housing Act 1988 Pt I, Sch 4 ...............................................................................................244 Human Fertilisation and Embryology Act 2008...........................................127 Human Rights Act 1998 ...................................................... 4, 27, 70, 133, 215, 221, 259, 261, 263, 264 Immigration (Procedure for Marriage) Regulations 2005 SI 2005/15 ..............84 Increase of Rent and Mortgage Interest (Restrictions) Act 1920 s 12(1)(g) ................................................................................................254 Inheritance (Family Provision) Act 1938 ......................................................115 Law Commissions Act 1965 s 3(1)(e) ................................................................................................... vii Legitimacy Act 1926...................................................................................116 Legitimacy Act 1959...................................................................................116 Marriage Act 1949 .......................................................................................84 Married Women’s Property Act 1870 ..........................................................272 Married Women’s Property Acts of 1882 .............................................271, 272 Married Women’s Status Act 1882 s 17 ........................................................................................................184 Matrimonial Causes Act 1857 ................................................................ 25, 59 Matrimonial Causes Act 1923 ....................................................................114 Matrimonial Causes Act 1937 ....................................................................114 Matrimonial Causes Act 1965 s 22 ..........................................................................................................50 Matrimonial Causes Act 1973 ....................................................................274

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xxxiii

s 1 ............................................................................................................ 1 s 5 ..........................................................................................................147 s 11 ..........................................................................................................79 s 11(c) ................................................................................................68, 69 s 12 ..........................................................................................................79 s 12(c) ................................................................................................ 76, 80 s 13(2) ......................................................................................................80 s 12(h) ......................................................................................................70 s 25(1) ...................................................................................... 136, 129,146 s 25(2) .............................................................................................136, 146 25A ........................................................................................................154 Matrimonial Proceedings and Property Act 1970 ........................................274 s 5(1) ......................................................................................................136 National Health Service (Family Planning) Act 1967 ...................................... 7 Nullity of Marriage Act 1971 ............................................................69, 76, 79 Offences Against the Person Act 1861 s 47 ........................................................................................................228 Private Act of Parliament, given Royal Assent on 11 April 1670 (Roos case) ... ch 2 Rent Act 1977 ............................................................................7, 243–46, 251 252, 254, 258, 262, 268 Roos case (see Private Act of Parliament, above) Sex Discrimination Act 1975 ......................................................................... 6 Sexual Offences Act 1956 s 30 ..........................................................................................................68 Sexual Offences Act 1967 ..................................................................7, 71, 252 Sexual Offences (Amendment) Act 1976 s 1(1) ......................................................................................................228 Welfare Reform Act 2009............................................................................132 National Belgium Belgian Civil Code Arts 203, 341a–341c ..............................................................................160 Canada Charter of Rights and Freedoms s 15 ........................................................................................................263 France Napoleon’s French Civil Code 1804 Art 1421 .................................................................................................272

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Ireland Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.................................................................................................189 Poland Polish Civil Code (22 April 1964) Art 82 ......................................................................................................77 South Africa Matrimonial Property Act 88 of 1984 s 11 .......................................................................................................272 South African Constitution s 9(3) ......................................................................................................263 Sweden Swedish Marriage Code 1920 .....................................................................272 United States of America New York City Rent and Eviction Regulations s 2204.6(d) .............................................................................................247 International EC Regulation No 2201/2003 of 27 November 2003 ......................................76 EC Regulation No 1347/2000, OJ L 338/1, 23 December 2003 Art 3 ........................................................................................................76 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ......................................................... 4, 70, 84, 108, 130, 155, 215, 217, 218, 221, ch 9 passim United Nations Convention on the Rights of the Child Art 7 .....................................................................................................132 Art 9(3) ..................................................................................................108 Art 12 .............................................................................................108, 216 Universal Declaration of Human Rights .......................................................... Art 12 ....................................................................................................166

1 Introduction: A Journey Through the Landmark Cases of Family Law STephen GILmore, JonAThAn herrInG And rebeCCA proberT

LAndmArKS And oUr ChoICe oF CASeS

F

AmILy LAw hAS been utterly transformed in the past 50 years. In 1960 sexual activity between consenting male adults was still a crime, while transsexualism was barely understood and rarely encountered. divorce was only available if one spouse could be shown to be at fault, and a ‘guilty’ wife could expect to receive less by way of maintenance than an ‘innocent’ one; moreover, she could expect no share of the family home save what she could establish by way of property law. Considerations of guilt and innocence also affected decisions as to what was still called ‘custody’ of the children, with ‘welfare’ being interpreted through this prism. The contraceptive pill had been developed (just), but was usually prescribed only to the married. not that there were many unmarried cohabiting couples who might have demanded access to it: few couples lived together outside marriage and fewer still advertised their lack of status. Today, by contrast, same-sex couples have the option of entering into a civil partnership1 and at least one major political party is advocating that they should have the right to marry, while the leader of another is happily cohabiting with the mother of his children. Transsexuals can obtain legal recognition of their change of gender.2 divorce is available to all unhappy spouses sooner or later,3 and the courts’ move to a more equal division of assets has apparently made London ‘the divorce capital of the world’.4 This is, therefore, an excellent time to engage in some ‘stock-taking’ of the landmark legal cases that have shaped modern family law. The names of most of the cases described in this book will be very familiar to family lawyers; many 1 2 3 4

Civil partnership Act 2004. Gender recognition Act 2004. matrimonial Causes Act 1973, s 1. rt hon Lord Justice Thorpe, ‘London – The divorce Capital of the world’ [2009] Family Law 21.

2

Stephen Gilmore, Jonathan Herring and Rebecca Probert

such readers, glancing down the table of contents, will be able to recite the principle for which each case is now taken to stand. but the very familiarity of these cases may tend to blur just how innovative they were at the time. It is only by returning to the original sources and examining the facts and the context in which they were decided that we can fully understand the decisions and how they were reached. moreover, as many of the chapters show, it is often only in retrospect that a case becomes a landmark: the afterlife of the case, and its reception and refinement by subsequent judges, is also an important part of the story. The 13 landmark cases discussed in this book are not, as one might expect, all decisions of the house of Lords but were established at various levels of the court system. Some were first-instance decisions which acquired a strong de facto precedent status or were approved in a subsequent appellate decision; others emerged as appellate decisions, sometimes with interesting appellate histories which seem to be material to the decision’s impact. This leads on to an important question: what determines whether or not a case should be described as a landmark? As John mee observes in his chapter, the word ‘landmark’ can be used in several different senses. perhaps the principal understanding in this context is that of a breakthrough or departure, although, as mee points out, the term can also be used in the sense of ‘marking a boundary’ or of representing a prominent guiding feature on the landscape. The landmark cases chosen for this book are those ‘breakthroughs’, ‘departures’, ‘boundaries’ or ‘beacons on the landscape’ which we see as having far-reaching implications for family law and policy, whether within the particular area of law under scrutiny or, as in many of the cases, more broadly. First Precedents perhaps the most obvious type of landmark is a case which addresses an issue for the first time. An example is found in the opening chapter of the book, in which rebecca probert explores the Roos case.5 Almost two centuries before the establishment of judicial divorce in the matrimonial Causes Act 1857, the first divorce by Act of parliament had been granted to Lord roos, allowing him to enter into a second marriage. This marked the beginning of the law’s acceptance that an existing marriage could be brought to an end (rather than, as in the case of three of henry VIII’s marriages, found not to have existed on account of an impediment). The roos case is thus a highly significant landmark in the development of family law; indeed, given the centrality of divorce to modern family law modules, it can be seen as foundational. Another example is Corbett v Corbett (orse Ashley),6 the first case in england and wales (and probably in any common-law jurisdiction) to define a person’s 5 private Act of parliament, given royal Assent on 11 April 1670: see Journals of the House of Commons, Vol 9, 152. 6 [1971] p 83.

Introduction: The Landmark Cases of Family Law

3

sex for the purpose of marriage. ormrod J’s reasoning and conclusion that a person’s sex is determined at birth according to certain congruent biological factors has been highly influential, yet also widely criticised, and remains controversial. Stephen Gilmore’s chapter highlights several ironies in the decision and explores its impact, both domestically and internationally. one oftenoverlooked fact is that Corbett was not in fact the first UK decision to engage with the issue of a person’s sex where there were implications for an existing marriage,7 and Gilmore reflects on whether ormrod J’s decision might have been different had his Lordship had sight of earlier authorities. Cases Setting the Tone for the Developing Law Sometimes a case becomes a landmark because it interprets the existing law in a way which sets the tone for, and exerts a powerful hold over, the law’s development. The decision of Lord denning mr in Wachtel v Wachtel,8 with its influential ‘one-third rule’ and approach to conduct in ancillary relief cases, provides an example. his Lordship’s focus on the needs of the parties and assumptions about the roles of spouses played an influential part in the development of the law on ancillary relief. perhaps even more influential, however, was the court’s approach to the conduct of the parties in ancillary relief applications, endorsing ormrod J’s view in the court below that conduct should only be taken into account if ‘obvious and gross’. The case set a tone for the courts’ approach to conduct following the divorce reform Act 1969, an approach which was subsequently endorsed (if in different words) by parliament9 and the house of Lords.10 Gillian douglas examines the background to the case and analyses exactly why this particular aspect of the case was to have a lasting influence. The early 1970s also saw a number of important child-law decisions that set the tone for subsequent developments.11 nigel Lowe examines the decision in J v C,12 a cornerstone of modern child law. The house of Lords held that the child’s welfare should be the court’s sole consideration rather than simply first among many, and that that principle applied not only in cases of a dispute between parents, but also as between parents and third parties. It set the tone for the development of the courts’ approach to deciding matters with respect to children’s upbringing and remains to this day a leading decision interpreting the 7 See eg, In Petition of John Alexander Cumnock Forbes-Sempill and the Honourable Ewan Forbes-Sempill, 29 december 1967, national Archives of Scotland, reference CS258/1991/p892 (determination of the sex of ewan Forbes-Sempill, who was already married, for the purpose of his succession to a baronetcy which passed only to heirs male). 8 [1973] Fam 72. 9 Conduct is now taken into account only if ‘inequitable to disregard’: matrimonial Causes Act 1973, s 25(2)(g). 10 Miller v Miller; McFarlane v McFarlane [2006] UKhL 24. 11 See also Poel v Poel [1970] 1 wLr 1469; S v S; W v Official Solicitor [1972] AC 24. 12 [1970] AC 668.

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Stephen Gilmore, Jonathan Herring and Rebecca Probert

paramountcy principle in section 1(1) of the Children Act 1989. The house of Lords’ interpretation of paramountcy has attracted considerable academic criticism, and has become increasingly controversial following the enactment of the human rights Act 1998. A third example is Marckx v Belgium,13 which opened up family law to the significance of the european Convention for the protection of human rights and Fundamental Freedoms 1950 (eChr). It rejected the view that the eChr applied only to direct state interference in family life and did not apply to family law as such. As walter pintens and Jens Scherpe discuss in their chapter, recognising that the eChr could be used to challenge the normal operation of family law in an area such as succession exposed family law to a whole new set of potential rights-based challenges. while the significance of that in terms of changes to the substantive law may not have been as great as some expected, it has undoubtedly impacted on the language used to discuss and challenge family law. Breaking with Past Doctrine Sometimes the landmark case, while setting the tone for the law’s development, will also represent a significant break with past doctrine. perhaps the most obvious example in this volume is R v R,14 in which the house of Lords broke with the longstanding rule that a man could not rape his wife. In abolishing this marital rape exemption, the court undertook an examination of the legal rights and obligations of marriage. The case emphasised the need for the legal nature of marriage to keep in line with general social understandings of marriage. however, Jonathan herring in his chapter argues that, despite its apparent progressiveness, the law is yet fully to protect the sexual autonomy of wives. A second example is White v White,15 examined by Lizzie Cooke. This landmark in the law of financial provision and property adjustment ancillary to divorce overruled Court of Appeal authority which had long established a ceiling for quantification of ancillary relief in ‘big-money’ cases based upon a spouse’s reasonable requirements. The house undertook a major re-examination of the courts’ principles, establishing a non-discrimination principle in the assessment of the parties’ respective contributions, and a ‘yardstick of equality’ against which provision was to be tested. White plays a central role in the courts’ approach to ancillary relief and has been highly influential in subsequent developments.

13 14 15

(1979–80) 2 ehrr 14. [1992] 1 AC 599. [2000] 1 AC 596.

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Bulwarks Burns v Burns,16 by contrast, marked an important ending in the realm of family property, and constitutes a landmark in a rather different sense. In the wake of the retirement of Lord denning, the Court of Appeal took the opportunity to reassert a restrictive approach to the family home, and to declare that it was for parliament, rather than the courts, to fashion new remedies in this context. That no such legislation has been forthcoming in the 25 years that have elapsed since this decision testifies to the difficulties of the issues involved, and to the practical impact of Burns upon a whole generation of cohabiting couples. John mee argues in his chapter that Burns should remain a landmark – in the sense of defining the boundary between property law and family law, as well as the proper limits of judicial activism. Landmarks by Outcome and/or Reasoning As a number of the cases in this volume illustrate, the landmark nature of a decision sometimes extends well beyond its strict ratio decidendi, its creation being not so much in the facts and outcome as in the reasoning by which the decision is reached. J v C provides a good example. The importance of the case lies in the house’s interpretation of the welfare principle; the outcome of the case, affirming the lower courts’ decisions, was of little impact. This perhaps explains why, as Lowe observes, J v C was rather a slow-burner, taking some time to make an impact. As rachel Taylor comments in her examination of Poel v Poel, J v C was not cited in that case, although it was decided shortly after J v C. The outcome of Poel, however, would probably have been the same whichever approach the court had taken. Its significance also lies in the impact its reasoning had on subsequent cases with less straightforward facts. It proved to be the starting point for a substantial body of case law on the issue of whether a parent with whom a child resides should be permitted to relocate out of the jurisdiction with consequent reduction of contact between the child and his or her non-resident parent, and is still cited as a leading authority for the importance of child welfare in these decisions, while also acknowledging the importance of respecting the reasonable decisions of the resident parent. In other cases, however, the result itself has more impact, although the reasoning may also be important. In Gillick v West Norfolk and Wisbech AHA,17 for example, the abandonment of absolute parental authority and the holding that a child under 16 could give legally effective consent were themselves striking and potentially revolutionary. yet, as Jane Fortin discusses in her chapter, the landmark nature of Gillick also lies in its reasoning, and the impact that the 16 17

[1984] Ch 317. [1986] AC 112.

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general principles articulated by the majority in the house of Lords has had on the issue of legal recognition of children’s autonomy interests. whatever Gillick’s precise ratio decidendi, it undeniably placed the idea of children’s autonomy rights in the legal consciousness in a way which had not previously existed. how And why do LAndmArKS emerGe?

how and why did these landmark cases emerge? In many instances, the cases and their outcomes are clearly products of their time: the result of a particular set of facts which would only have occurred at that time or of a specific issue that became particularly pressing at the time. Corbett would seem to be an example of the former – caught in time between the availability of gender reassignment surgery on the one hand and the limited medical knowledge on the other – along with the fact that marriage was still the norm. If the Corbetts had chosen to cohabit the issue would never have arisen.18 Gillick is perhaps an example of the latter – reflecting the fact that an increasing number of teenagers were having sex under the age of 16. Given that contraceptive advice was only available to the married until 1967, the case would have been inconceivable 20 years earlier. by contrast, in some cases the interesting question is why the developments in the law came so late, for example in R v R and the Roos case. Although the latter is the earliest case in this volume, it is somewhat surprising that divorce had not been accepted earlier, given the developments in the previous 120 years. Some of the cases are clearly influenced by social change and it is unsurprising, therefore, that the bulk of the cases discussed in this volume were decided after 1970. reforms enacted in the late 1960s led to profound changes in families and in the rules that applied to them. Key among these reforms was the divorce reform Act 1969, which came into force in 1971, and the accompanying changes to the courts’ powers to reallocate assets on divorce. The recognition that a marriage might break down on account of faults on both sides, or even though neither party was at fault – together with a changing view of what constituted fault – led to a different and less moralistic framework operating in the context of the division of assets on divorce and of the care of children postdivorce. yet, as douglas’s chapter shows, the legislative reforms did not dictate this change in approach: in the very first case on the matrimonial proceedings and property Act 1970, the extent to which each spouse was seen to be at fault was still a relevant factor. Wachtel, however, signalled a new approach. but the fact that the 1970s saw the passage of measures such as the equal pay Act 1970 and the Sex discrimination Act 1975 perhaps leads us to forget the extent of discrimination against women, at home as well as at work, that existed 18

we are grateful to professor Judith masson for this comment.

Introduction: The Landmark Cases of Family Law

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at this time. As Cooke brings out in her chapter, the idea that assets should be divided equally inspired mockery. The degree of control that a husband enjoyed over his wife’s body – his consent being deemed necessary for an abortion to be carried out – makes it perhaps less surprising that it was not until 1990 that it was adjudged that a husband could be guilty of raping his wife. A number of other significant reforms were also passed around this time. At the time of its passage, the Sexual offences Act 1967 would have been regarded as of little relevance to family law as then conceived. The fact that an adult could now engage in a sexual relationship with someone of the same sex, provided it was consensual and in private, did not mean that same-sex couples had won public acceptance. As Gilmore points out in his chapter on Corbett, there was no attempt at that time to run an argument for legal recognition of samesex marriage. nonetheless, the 1967 Act was the first tentative step towards acceptance that led eventually to the decision in Fitzpatrick v Sterling Housing Association19 and to the passage of the Civil partnership Act 2004. This should not, however, be taken as implying that the decision in Fitzpatrick was uncontroversial. In deciding that a same-sex couple could be a family for the purposes of the rent Act 1977, the decision heralded a major shift in attitudes towards same-sex couples within family law and attracted considerable attention and controversy (despite, as Lisa Glennon demonstrates, the attempts of the house of Lords to downplay the radicalism of their decision). Two further reforms which were to have profound implications on family life were those enabling the greater availability of abortion and contraception. The two were intertwined: it was deemed better to have abortion legally available and medically controlled than women dying as a result of self-help remedies or the ministrations of back-street practitioners,20 and better still to have effective contraception to prevent unwanted pregnancies. The pill had been available since the early 1960s, but the general practice had been to prescribe it only to married women. As late as 1967 Frost and Jay commented ironically on the hypocrisy that ‘deplore[d] the rise in illegitimacy, while fighting tooth and nail to prevent the Family planning Association helping anyone except the married.’ 21 In that year, however, legislation was passed allowing all clinics to give advice irrespective of marital status;22 from 1970 they were required to do so,23 and [2001] 1 AC 27. See eg, paul Ferris’s exposé of the abortion industry, published in 1966: discussed in d Sandbrook, White Heat: A History of Britain in the Swinging Sixties (London, Abacus, 2007) 698. 21 d Frost and A Jay, To England with Love (London, hodder and Stoughton, 1967) 12. while helen brook had set up a family planning centre designed for young unmarried people in 1964, by 1966 only the fourth such centre had opened: p Ferris, Sex and the British: A Twentieth Century History (London, michael Joseph, 1993) 206. by contrast, the Family planning Association had 770 branches (d dewar, Orphans of the Living: A Study of Bastardy (London, hutchinson & Co, 1968) 143), and local authorities a further 120 or so. 22 As a result of the national health Service (Family planning) Act 1967. 23 h Cook, The Long Sexual Revolution: English Women, Sex, and Contraception 1800–1975 (oxford, oxford University press, 2004) 289. 19 20

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from 1972 contraception was to be provided free of charge.24 Ferris commented in 1971 that the ‘old argument for contraception, that “anything is better than unwanted pregnancies”, has moved down the age-scale until now it can be respectably applied to any woman of about 19 and above. with single girls who are younger than this, it begins to meet the controversy about “teenage immorality”.’25 but, as this indicates, teenagers might still experience difficulties in accessing contraception. Although the Family Law reform Act 1969 allowed those aged 16 or over to consent to medical treatment, those under that age still faced obstacles. As a book aimed at young adolescents advised, ‘[a] doctor can refuse to help, and legally has the right to inform their parents.’26 but evidence of teenage sexual behaviour eventually forced the department of health and Social Security (dhSS) to rethink its guidance. The decision in Gillick was a landmark for children’s rights, but the underlying motivation – that of reducing unwanted pregnancies – was a familiar one. It is also worth bearing in mind that the legislation of the late 1960s – variously termed ‘liberal’ or ‘permissive’ depending on one’s perspective – was by no means universally welcomed. In a survey carried out by the journal New Society in 1969, individuals were invited to state which of the changes that had occurred over the course of the 1960s they welcomed, and which they disliked. The largest single group (26 per cent of those polled) was that which expressed objections to ‘easier laws for homosexuality, divorce, abortion etc’.27 Landmarks may meet with resistance, as well as plaudits. It is interesting to note that all of these reforms were private members’ bills, albeit ones with government backing. As the historian dominic Sandbrook has pointed out, ‘Labour had been elected in 1964 and 1966 on platforms of technological modernisation, and their manifestoes had made no mention of moral issues like hanging, homosexuality or abortion’.28 This was, as Andrew marr has described it, ‘a social revolution led by eggheads and experts’.29 eggheads and experts were also to play a role in other key changes in family law. The triumph of the paramountcy principle in J v C and Another perhaps reflected the growing importance of expert evidence about child welfare, while medical evidence was key to Corbett v Corbett (orse Ashley) and to S v S; W v Official Solicitor.30 This latter case, examined by Andrew bainham, considered 24 ibid 308–09. See also An wilson, Our Times: The Age of Elizabeth II (London, Arrow books, 2009) 222. while service may have remained variable (Schofield, The Sexual Behaviour of Young Adults, 103), contraception was certainly more freely available in the 1970s than it had been in the 1960s. 25 The Observer, 18 July 1971, quoted in Cook, above n 23, 294. 26 C Adams and r Laurikietis, The Gender Trap: A Closer Look at Sex Roles: Book 2: Sex and Marriage (London, Virago, 1976) 43. 27 p barker, ‘Facing Two ways: between the 60s and the 70s’ New Society 27 november 1969. 28 d Sandbrook, White Heat: A History of Britain in the Swinging Sixties (London, Abacus, 2007) 338. 29 A marr, A History of Modern Britain (London, pan books, 2008) 259. 30 S v S, above n 11.

Introduction: The Landmark Cases of Family Law

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the correct approach to deciding whether a blood test of a child should be ordered to assist in establishing parentage. The decision established that a child’s welfare is not paramount in such matters and that the interests of justice are also raised. As bainham comments, the case is one of the more seminal cases to have raised the question of how far justice should intrude more generally into the welfare-dominated arena of child law. The debate about how to reconcile the interests of biological and social parents in this context is an ongoing one, influenced by social change, scientific advance and an increased focus on human rights, yet this decision remains influential in the law’s development. S v S; W v Official Solicitor also reacted to a decreasing stigma attached to illegitimacy. R v R might also be seen as awaiting the emergence of a solid consensus on a controversial issue. In some of the cases there is an evident tension between the extent to which the law should influence social developments on the one hand or simply reflect such developments on the other. As Glennon observes in her chapter, Fitzpatrick was arguably a ‘perfectly pitched stall’, responding to emerging public opinion by recognising same-sex partners as members of each other’s family, yet deferring (to the post-human rights Act era) a decision as to whether such couples could be regarded as spouses. yet it is not just that the time was right for the landmarks to emerge. There is usually some additional spurring factor, often a striking personality. For example, Gillick was the product of mrs Gillick’s strongly held views and campaign against under-age contraception. Similarly, Marckx was the result of the extraordinary personalities of paula marckx and her young, highly motivated lawyer, reacting to an off-hand remark by a court clerk. Some of the cases are the result of the judiciary being presented with new, exceptional facts or situations (for example, Szechter or Corbett). As White v White illustrates, even a rather mundane set of facts can switch on the ‘judicial lightbulb’. The fact that mr and mrs white were farming partners illustrated strikingly the injustice of the ‘reasonable requirements’ ceiling, in that mrs white would have obtained more financially in the Chancery division by way of division of the partnership than she did at first instance in the Family division on divorce.

The FASCInATInG STorIeS ThAT mAKe FAmILy LAw

Family law cases tend to raise highly controversial issues, often on striking facts, frequently provoking wider social debate and/or extensive publicity. Consequently, the landmark cases chosen for this collection provide considerable scope, not only for doctrinal analysis and explanation of the importance and impact of the decisions, but also for in-depth examination of the stories underlying the cases, of the personalities involved (for example, parties, counsel, judges, experts), and of social/policy developments (if any) which were driving the cases and their reasoning and outcomes.

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The fascinating case of Szechter (orse Karsov) v Szechter 31 merits its inclusion in this collection as an illustration of the way in which dramatic facts may shape the formulation of a legal test, with consequences that extend far beyond the parties themselves. In the context of annulment of a marriage owing to lack of consent, the case formulated an objective test for duress, namely a threat, reasonably entertained, to life, limb or liberty. while that test has now been doubted (although arguably not entirely extinguished as a matter of precedent),32 the chapter by david mcClean and mary hayes is a salutary reminder of the powerful influence of particularly sympathetic characters. That the leading decisions within family law emerge in response to various sets of striking facts or ‘unusual scenarios’ may do little to dampen the perception in some quarters that family law is not the stuff of real lawyers. It is sometimes said that the outcomes in family law cases are frequently so fact-dependent, and so devoid of well-reasoned, overarching legal principle, as not to be ‘proper law’. The critics ask: what more intellectual engagement can there be other than that ‘each case depends on its facts’? even statutes in family law often do little more than grant courts broad discretion guided by lists of relevant factors. but such views arguably fail to focus on the wider picture of what family lawyers do. It is the absurd, messy world of family life to which family lawyers must respond. Family law is commonly invoked by individuals who feel they have lost control of what is happening to them: where emotions rather than the mind rule; where children, those most impulsive and unpredictable of people, have such power and such vulnerability; where the language of rules, sections, subsections and schedules seems so obviously inappropriate. Consequently, as the cases in this book demonstrate, family lawyers are rarely approached by people who are planning to undertake some family activity. Family lawyers are in most cases the waste disposal team, rather than the ocado delivery van, of the legal system. Family law, therefore, should not look to, nor be judged by or against, those kinds of legal subjects which are tools to be used to achieve an end, such as commercial law or trusts law. rather, as John dewar has written, family law will reflect the characteristics of the situations it must respond to and hence his famous characterisation of family law as (in some ways) chaotic.33 It would be wrong, however, to give the impression that family law is nothing but chaotic discretion. many of these landmark cases seek to develop and apply overarching principles to the unusual facts at play: the principle of equality between husband and wife (White v White); the importance of the welfare of children (J v C); the significance of non-discrimination (Marckx v Belgium; Fitzpatrick v Sterling Housing Association). It is in the law’s attempts to apply [1971] p 286. See Hirani v Hirani (1983) 4 FLr 232, CA, adopting a subjective test requiring merely that a person’s will is overborne. In NS v MI, [2006] ewhC 1646 (Fam), [2007] 1 FLr 444, munby J expressed his preference for the approach in Hirani. however, Szechter was approved by the Court of Appeal in Singh v Singh [1971] p 226, which was not cited in Hirani, and thus as a matter of strict precedent there still remains a conflict at Court of Appeal level. 33 J dewar, ‘The normal chaos of family law’ (1998) 61 MLR 467. 31 32

Introduction: The Landmark Cases of Family Law

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these principles to the striking facts of the case that the courts highlight the parameters of the principles; or reveal how tensions between the principles might be overcome. however, if family law is shaped by the oddness of the personalities in the cases and by the bizarre circumstances of life, that is as it should be. A family law which imposes a rigid one-size-fits-all approach to families is unlikely to work: the law needs the flexibility to fashion a response to the particular relationships which are placed before it. Consequently, as many of the chapters in this book indicate, family lawyers often rebel against the temptation, apparent in other areas of the law, to abstraction. Family lawyers in practice can never forget that they are dealing with real people, not economically driven entities. The solutions reached must make sense in emotional and personal terms if they are to work. hence we need no apologies for the extraordinary stories which grace this book. It is unsurprising that some of the cases could so easily be turned into hollywood screenplays, or stocking-stuffing books for Christmas. In this book we travel from the sweeping grand staircase of belvoir castle to the horrors of an eastern european prison; from the parisian mistress to the Somerset farmer’s wife; from the view of harley Street on what makes a man a man to their Lordships’ consideration of teenage sex. extraordinary people and extraordinary stories, but all needing the ministrations of family law to resolve the mess they encounter. we hope that readers will enjoy the journey.

2 The Roos Case and Modern Family Law RebeCCa PRobeRT

T

he goLden waLLs of belvoir Castle rise above its surroundings, with an uninterrupted view across miles of the Leicestershire countryside. Inside, as one ascends the grand staircase, the portrait of the bewigged John Manners, otherwise known as Lord Roos, dominates the scene, his formal robes failing to hide a somewhat portly frame. To his left there is a portrait of his beautiful, young third wife, Catharine noel, to his right one of his tragic second wife, Lady diana bruce, who died within a year of the marriage. of his first wife, however, there is no picture. The reason for this is that their marriage was not curtailed by her death – as were so many at the time – but by divorce, as an information board tucked away in one of the less prominent rooms of the castle acknowledges. almost 200 years before the Matrimonial Causes act 1857 established a judicial procedure for the termination of a marriage, John Manners obtained permission from Parliament to marry again. without that divorce, the portraits that grace the walls of the castle – and the many photographs of the current occupants on mantelpieces and sideboards – would look very different. It is the occupancy of the castle for over 500 years that today is the family’s greatest boast. but it is the precedent set by John’s divorce from his first wife that has had a greater impact beyond the castle walls. The Roos case has often been described as the first-ever divorce,1 at least in the sense in which that term is used today. and the castle itself had an important role to play in the story of how that came about.

1

see eg, C gibson, Dissolving Wedlock (London, Routledge, 1994) 29.

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The FIRST dIVoRCe?

Most people, if asked, would date the first divorce to henry VIII.2 but while his contemporaries would have used the term ‘divorce’ to refer to the means used to free henry from his marriages to Catharine of aragon, anne boleyn and anne of Cleves, in modern terminology these were annulments: Catharine was put aside after many years of marriage on the basis that she had been married to his elder brother arthur and was therefore within the prohibited degrees of relationship for the purposes of marriage;3 the marriage to her successor anne boleyn was also annulled on the rather unfair ground that henry had had sex with her sister, again bringing her within the prohibited degrees (and of course anne’s own adultery led to her losing her head: the adultery of a queen was deemed sufficient justification for death but not divorce); while the marriage to anne of Cleves was dissolved on the basis of non-consummation and her earlier contract of marriage with the son of the duke of Lorraine.4 henry was not alone in freeing himself from an unwanted spouse by such means, although other dissatisfied spouses did not have the option of rejecting the Pope’s refusal of an annulment in quite such a spectacular fashion. The common claim that henry broke with Rome in order to obtain a divorce underlines the importance of defining what precisely is meant by ‘divorce’ in this context. an annulment was a means by which the court held that the marriage had never come into existence because of some obstacle or flaw, and was referred to as a divorce a vinculo matrimonii, since it freed the parties from the bonds of matrimony. The term ‘divorce’ was also used at this time in relation to what would today be termed a judicial separation: divorce a mensa et thoro, or separation from ‘bed and board’, allowed the petitioner to live apart from the respondent on the basis that the latter had been guilty of adultery or cruelty. It thus legitimated the separation of the parties to an existing marriage but did not end the marriage nor allow either party to remarry. divorce in the modern sense, by contrast, enables the parties to remarry by dissolving a previous valid marriage. divorce in this modern sense was available in scotland from the mid-sixteenth century on the basis of adultery and ‘malicious desertion’. and the Reformatio Legum Ecclesiasticorum of 1552 had proposed that it be available in england and wales on the basis of adultery, cruelty, desertion or ‘mortal enmity’.5 The same year saw the passage of a private act of Parliament to legitimate the remarriage of the Marquess of northampton. having obtained a divorce a mensa et thoro in the ecclesiastical court on the basis of his wife’s adultery and an act of Parliament bastardising her children,6 he had asked the new King 2 see eg, e gilbert, Committed: A Sceptic Makes Peace with Marriage (London, bloomsbury, 2010) 64. 3 see eg, d starkey, Six Wives: the Queens of Henry VIII (London, Chatto & windus, 2003) 58. 4 ibid 640. 5 L stone, Road to Divorce (oxford, oxford University Press, 1995) 302. 6 34 & 35 henry VIII no 39.

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edward IV to appoint a commission to determine whether he might remarry, ‘for the honour of god and the procreation of an heir’.7 The Commission was duly appointed, but before it had resolved the issue northampton proceeded to go through a ceremony of marriage with elizabeth brooke. The act that was passed in 1552 declared that the Marquess, ‘being separate, divorced, and at Liberty, by the Laws of god, to marry . . . solemnly and lawfully did marry the good and virtuous Lady elizabeth.’8 however, two factors militate against this case being seen as the first divorce: first, the act was not a permission to remarry, but an ex post facto acceptance of remarriage; secondly, it was a very short-lived precedent. The following year saw the accession of the Catholic Mary I and the repeal of the act endorsing the Marquess of northampton’s actions.9 It would also appear that there was a brief period in which it was assumed that it was possible to remarry after the ecclesiastical courts had pronounced a divorce a mensa et thoro.10 The reimplementation of northampton’s divorce after the accession of elizabeth may have given credence to this belief. 11 Yet, again, the fact that the liberty of remarriage was later denied (by the star Chamber, in Fuljambe’s case)12 means that early cases of this kind cannot truly be seen as landmarks. other historians date the first divorce to a later period. Mcgregor, for example, makes no mention of Roos and cites the case of the earl of Macclesfield in 1697 as the first example of a private act of Parliament allowing divorce.13 and as we shall see, the Roos case lacked one element of the modern divorce, since the act that was passed did not explicitly state that his first marriage was dissolved, merely that he was at liberty to remarry. but given the debate over the possibility of remarriage this was, of course, the key issue. Moreover, it is clear from the extent of opposition to the bill that Parliament fully appreciated the significance of the decision that it was being asked to make. There is thus good reason to regard the Roos case as at least the first step towards the modern law of divorce – and indeed towards modern family law. The baCKgRoUnd To The ROOS Case

at the time of John Manners’ birth in 1638 it would not have been anticipated that his future marriage might prove to be of dynastic importance. he was, 7 Calendar of state Papers, domestic series, of the Reign of edward VI, 1547–1533: sP 10/2 f.106. 8 5 edw VI. 9 stone, above n 5, 304. 10 CeP davies, ‘Matrimonial Relief in english Law’ in Rh graveson and FR Crane, A Century of Family Law (London, sweet & Maxwell, 1957) ch 13. 11 susan e James, ‘Parr, william, marquess of northampton (1513–1571)’, Oxford Dictionary of National Biography (oxford, oxford University Press, 2004). 12 Rye v Fuljambe (1602) Moo K.b. 683; 72 eR 838. 13 oR Mcgregor, Divorce in England: A Centenary Study (London, heinemann, 1957) 10.

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after all, only the third son of sir John Manners of haddon hall in derbyshire, 14 who was himself the son of a third son. Three years later, however, sir John Manners became the eighth earl of Rutland after the death of his cousin george – who had himself been the third of the three sons of the fourth earl to inherit the title and to die without issue.15 even in an age of high infant and adult mortality, it was rare for three brothers who had all attained adulthood and married not to produce an heir between them.16 Indeed, the dynastic misfortunes of the family were so striking that they were not only mourned in poetry17 but also led to two unfortunate women being hanged for witchcraft ‘aimed against the family of Francis Manners’, the sixth earl, whose three children all died young.18 and the new incumbents of belvoir Castle seemed to be no more fortunate: the two sons that had preceded John into the world, george and edward, died in their infancy, as did his younger brother Roger.19 as the heir to the earldom, and the sole surviving son, there was a considerable burden on John to make a suitable marriage and produce an heir. at the age of 20 John therefore married the 27-year-old heiress Lady anne Pierrepoint, daughter of the Marquis of dorchester. The families were already connected: John’s grandfather, sir george Manners, had married a grace Pierpoint.20 while their families did not share the same political views – John’s father had supported the cause of Parliament, while the name of the Marquis of dorchester was to head the Declaration of the Nobility and Gentry That Adhered To The Late King – by the later years of the Commonwealth such differences were no longer as divisive as they once had been, and the eighth earl’s support for Cromwell’s regime might well have wavered when they ordered the destruction of his castle, despite his acquiescence in this move.21 In any case, anne’s portion of £10,000 and John’s future as earl of Rutland would have been likely to overcome any minor political differences. It is highly unlikely that love played much role in the marriage: after all, at this level of society it was expected that individuals would accede to the choice of their parents, and the suitability of the match was assessed by class and money rather than personal inclinations. The marriage took place in highgate on 13 July 1658. 22 The law of the time prescribed that marriages should be entered into before a magistrate, according V gibbs (ed), The Complete Peerage (London, st Catherine Press, 1910–59) Vol XI, 264. F barlow, The complete English peerage: or, a genealogical and historical account of the peers and peeresses of this realm (London, 1775) 157. 16 see L stone and J Fawtier stone, An Open Elite? England 1540–1880 (oxford, Clarendon Press, 1984) ch 3, who note the high rates of marriage of the early seventeenth century. 17 If one can apply the term to the 68 lengthy verses of Belvoir: Being a Pindarick Ode upon Belvoir Castle the Seat of the Earls of Rutland, made in the Year 1679. of the fifth earl, Roger, it was noted that ‘Immortal sidney’s daughter was his bride/and the world griev’d, because he childless dy’d’ (Harleian Miscellany (London, 1745) Vol 4, 528). 18 M honeybone, Wicked Practise & Sorcerye (buckingham, baron books, 2008) 13. 19 see the family tree in Rev I eller, The History of Belvoir Castle (London, 1841). 20 ibid. The spelling of this surname varies greatly in contemporary usage. 21 barlow, above n 15. 22 gibbs, The Complete Peerage, above n 14, 265. 14 15

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to the civil form introduced by the barebones Parliament in 1653.23 although legislation passed in 1657 had removed the original stipulation that no other form of marriage would be valid,24 the dynastic importance of the match was such that nothing would have been left to chance. It is likely, however, that the couple would have supplemented the rather underwhelming civil rite with a marriage before an anglican minister, as many of their contemporaries did.25 as one bride had noted in her diary, ‘[i]f it had not been done more solemnly afterwards by a minister, I should not have believed it lawfully done.’26 Unfortunately, the marriage appears to have run into difficulties at an early stage, with faults on both sides. according to one contemporary, ‘[t]he Lady being of a humour not very agreeable, and not finding the satisfaction she expected where she ought to have received it, looked for it abroad where she ought not to find it.’27 John was later to aver that he had not had carnal knowledge of his wife since March 1659 – and indeed for ‘several months before’. 28 she in turn charged her husband ‘with debauchery, and being always in drink’, which, the reporter noted, ‘was too true’.29 she also claimed that she had lived with John as a loyal wife but that the ‘unquietness’ of her mother-in-law had ‘estranged and taken from her’ her husband’s affection.30 Ten months after the marriage anne gave birth to a daughter. but the child, Frances, died the following February.31 a month later, ann left the matrimonial home, apparently ‘abandoning all honour’ and frequenting ‘light loose company’.32 when she returned to John, it was clear ‘that she had kept Company too much’.33 brazenly, she informed John that if her child proved to be a boy, ‘he should be earl of Rutland.’34 The child that was born on 7 september 1661 did indeed prove to be a boy, but he was not welcomed into the world in the manner

23 ‘an act touching Marriages and the registering thereof; and also touching births and burials’ in Ch Firth and Rs Rait (eds), Acts and Ordinances of the Interregnum, 1642–1660 (London, hMso, 1911) Vol 2, 715–18. 24 ‘an act touching several acts and ordinances made since the 20th of april 1653, and before the 3rd of september 1654, and other acts’ in Firth and Rait, ibid Vol 1, 1131. 25 we Tate, The Parish Chest (1946; Chichester, Phillimore & Co Ltd, 1983) 63; R Parker, The Common Stream (st albans, Paladin, 1976); K wrightson, ‘The nadir of english illegitimacy in the seventeenth century’ in P Laslett, K oosterveen and R smith, Bastardy and its Comparative History (London: edward arnold, 1980) ch 6, 185; C durston, ‘ “ Unhallowed wedlocks”: The Regulation of Marriage during the english Revolution’ (1988) 31 Historical Journal 45; a Plowden, In A Free Republic: Life in Cromwell’s England (stroud, sutton Publishing, 2006) 66. 26 J Loftis (ed), Memoirs of Anne, Lady Halkett and Ann, Lady Fanshawe (oxford, Clarendon Press, 1979) 85. 27 e hyde, The life of Edward Earl of Clarendon, Lord High Chancellor of England, and Chancellor of the University of Oxford (oxford, Clarendon Press, 1759) Vol 3, 733. 28 Journals of the House of Lords, Vol 12, 71. 29 ibid. 30 Parliamentary archives, hL/Po/Jo/10/1/314. 31 eller, above n 19, 99. 32 Parliamentary archives, hL/Po/Pb/1/1666/18&19C2n21. 33 hyde, above n 27, 734. 34 ibid.

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befitting a future earl, being baptised by the ignominious name of ‘Ignotus’, with the groom, porter and washmaid standing in as godparents.35 before the birth, anne had been kept a close prisoner by her husband’s family; afterwards, she returned to her father’s house. he, believing in his daughter’s innocence, asked the King to intervene. a day was appointed for all the parties to be heard, but this attempt at royal mediation proved unsuccessful, with anne expressing contempt for her husband and with ‘so many indecent and uncleanly Particulars mentioned, that made all the auditors very weary’.36 not only was anne not reconciled to her husband, but she soon rejected the option of living with her father, choosing to lodge herself ‘at more Liberty’.37 her disillusioned father apologised to John for his credulity, and ‘was ready to join with them to free the Family, as much as was possible, from the Infamy she had brought to them and him.’38 The Road To dIVoRCe

The first step taken by John was to obtain a divorce a mensa et thoro from the ecclesiastical court. anne was later to protest that the sentence had been obtained by means of ‘corrupt practices and subornation of witnesses’,39 but it would appear that there was ample evidence of her adultery by the time of this litigation. John’s next step was to seek a private act of Parliament declaring anne’s son Ignotus to be illegitimate,40 in order to ensure that he would not inherit the earldom. a bill to this effect was introduced into the house of Lords on 19 april 1662, but debate was adjourned because of other pressing business of state. 41 The title of the bill that was subsequently brought before Parliament in october 1666 – ‘an act for the illegitimation of the Children of the Lady anne Roos’ 42 – gives an indication of events that had occurred in the meantime: since the divorce had been granted by the ecclesiastical court ‘the Lady anne continuing in her vicious and abominable way of living hath brought forth another male Child.’43 The bill was passed, nemine contradicente,44 with the concerns raised by certain Lords being allayed by the fact that such a course was not unprecedented, ‘there having been one or two declarations of bastardy in Parliament in the Reign of King henry VII and henry VIII.’45 35 36 37 38 39 40 41 42 43 44 45

Parliamentary archives, hL/Po/Jo/10/1/314. hyde, above n 27, 736. ibid. ibid 737. Parliamentary archives, hL/Po/Jo/10/14/18/14. Journals of the House of Lords, Vol 11, 433. ibid 450. Journals of the House of Lords, Vol 12, 15. Parliamentary archives, hL/Po/Pb/1/1666/18&19C2n21. Journals of the House of Lords, Vol 12. hyde, above n 27, 738.

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Yet although John had ensured that the earldom would not pass to children who were not his own, he still had no children to whom it could pass. nor, indeed, did he have any living brothers, and the younger brothers of the eighth earl had died many years earlier. From the family tree it is extremely difficult to work out who would have succeeded to the title if the younger John had died without issue. The fate of belvoir Castle – newly rebuilt,46 and soon to be hailed as ‘art’s Master-piece and nature’s Pride’47 – was at stake. John therefore sought a further private act that would allow him to remarry. anne issued a vehement protest against the bill, pointing out, quite correctly, that there was no precedent for a Parliament authorising divorce a vinculo matrimonium, and, equally accurately, that it had been the invariable practice of the ecclesiastical court to include in the sentence of divorce ‘express inhibitions to the parties not to marry again, till one of the parties be dead.’48 she also expressed the fear that the bill might have fatal consequences for ‘all the families of the kingdom’.49 Unsurprisingly, the bill attracted considerable controversy. The poet and politician andrew Marvell informed one correspondent that ‘[t]he great bill begun in the Lords, and which makes more ado than ever any act in this Parliament did, is for enabling Lord Ros [sic], long since divorced in the spiritual Court, and his Children declared illegitimate by act of Parliament, to marry again.’ 50 Ranged against the bill were, predictably, most of the bishops and ‘all the Papist Lords’.51 also opposed to the bill was the Catholic James, duke of York, the younger brother of Charles II. It is likely, however, that the reasons for his opposition lay not in his religion – he had only recently converted to Catholicism and had not yet made his new allegiance public52 – but in more personal factors. eight years after his brother Charles had wed Catharine of braganza, their marriage remained childless. If Charles were to die without legitimate issue, James would succeed him as king. If, however, Charles were to find some means of ending his marriage to Catharine and remarrying, it was all too likely that James would lose his place in the succession: after all, the numerous children born to Charles’s mistresses provided ample proof of his fertility. James’s fear that his brother might be contemplating a divorce by private act of Parliament was no doubt fuelled by the fact that Charles was taking a very close interest in the Roos case. Much to the surprise of members of Parliament, Charles had put in a personal appearance in the house of Lords – not incognito as some writers have suggested,53 but openly and as part of a new practice on his The programme of rebuilding had been completed in 1668: eller, above n 19, 98. another typical extract from Harleian Miscellany, above n 17, 528. Parliamentary archives, hL/Po/Jo/10/14/18/14. 49 Parliamentary archives, hL/Po/Pb/1/167o/22C2n14. 50 The Poems and Letters of Andrew Marvell, 2nd edn (hM Margoloiuth ed, oxford, Clarendon Press, 1952) 301. 51 ibid. see also Journals of the House of Lords, Vol 12, 311. 52 b Coward, The Stuart Age, England 1603–1714, 3rd edn (London, Longman, 2003) 311. 53 see eg, stone, above n 5, 311. see also the comments of Marvell, above n 50, 102. 46 47 48

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part.54 as one contemporary, John starkey, reported: ‘unexpectedly the king came and tooke his place amongst them. he told them he came not to disturb them but to claime an ancient right that his ancestors had of sitting amongst them and hearing their debates.’55 The debates on the Conventicle bill were the first that he attended, in March 1670,56 but it was suspected that his interest in the Roos case was more personal. as gilbert burnet reported, ‘the King was as earnest in the setting it on, as the duke [of York] was in opposing it.’57 Charles’s support for the bill was clearly crucial in ensuring its passage through Parliament. some of those who might otherwise have opposed the bill found it expedient to support it: as Marvell explained, ‘anglesey and ashly, who study and know their Interests as well as any gentlemen at Court, and whose sons have marryed two sisters of Ros, Inheritrixes if he has no issue, yet they also drive on the bill with their greatest Vigour.’58 even so, it was a close-run thing. when the question was put to the house of Lords as to whether the bill should be read a second time, 42 of those present in the chamber voted against it and only 41 in favour. but once proxy votes were taken into account there was a slender majority of six in favour. had the position been reversed, ‘the Lord arlington had a Power in his Pocket to have nulled the Proxys, if it had been to the Purpose.’59 This being an age before verbatim reporting, the Journals of the House of Lords are rather unilluminating on the nature of the arguments advanced, it simply being reported that ‘[a]fter a long debate, and full consideration’ the bill passed.60 Progress in the house of Commons appears to have been swifter. The bill received its first reading on 29 March 1670, and the following day the house divided 141-65 in favour of committing it for consideration. on 31 March it was reported that ‘the Committee had examined the Matter of Fact in the said bill; and had gone through the bill; and found no cause to make any alteration or amendment thereunto’61 – a level of agreement that modern parliamentarians might well envy. The King declared himself pleased to pass the act requested, declaring that ‘it shall and may be lawfull . . . for the said John Manners . . . at any time or times hereafter to contract matrimony and to marry as well in the life time of the said Lady ann, as if she were naturally dead.’62 and, just to make absolutely sure that there could be no argument as to the future inheritance of the estate, it was added that ‘all and every children and child born in such matrimony shall

54 55 56 57 58 59 60 61 62

a Patterson, The Long Parliament of Charles II (new haven, Yale University Press, 2008) 52. Quoted by Patterson, ibid 157. Journals of the House of Lords, Vol 12, 318. g burnet, Bishop Burnet’s History of his own time (London, 1724–34) Vol 1, 262. Marvell, above n 50, 301. ibid. Journals of the House of Lords, Vol 12. Journals of the House of Commons, Vol 9, 152. ibid.

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be deemed adjudged and taken to be so borne in lawful wedlock and to be legitimate and inheritable and shall inherit the said earldom of Rutland.’63 ConseQUenCes

For the Roos Family The act allowing John to remarry was passed on 11 april 1670, and on 10 november 1671 he took advantage of it by entering into a marriage with Lady diana bruce in the chapel at ampthill Park in bedfordshire.64 she was a widow with a young son, so had already proved herself capable of bearing an heir, and barely nine months after the wedding the longed-for boy was born, on 15 July 1672.65 Tragically, he died the same day, and diana followed him to the grave nine days later. eighteen months later John married for the third time, this time to the 16-year-old Catharine noel, who had been a mere infant at the time of his first marriage.66 Their first child, born in 1675, was a girl, but in september 1676 Catharine gave birth to a boy, John, and another two children followed. 67 This new John, however, did not become the tenth earl of Rutland but rather the second duke, the more elevated title having been bestowed on his father in 1703. and the title has passed down the generations to the current incumbent, the eleventh duke of Rutland, who in 2009 celebrated the fact that the family had been in occupation of belvoir Castle for 500 years. For Lady Anne by contrast, the Marquessate of dorchester, which had been bestowed on anne’s father, became extinct upon his death in 1680.68 and anne’s own subsequent life is obscure. while she had recovered a considerable part of her fortune when the marriage first ran into trouble (by the simple expedient of removing the jewels and plate of which it consisted to her father’s house),69 the act made no provision for her. The Complete Peerage notes that it was rumoured that she married someone called Vaughan.70 nothing further appears to be recorded of her life in the public annals, and even her date of death is uncertain. but if she did enter into a 63 64 65 66 67 68 69 70

ibid, see also Parliamentary archives, hL/Po/Pb/1/167o/22C2n14. gibbs, above n 14, 265. eller, above n 19, 101. gibbs, above n 14, 265. The marriage took place by licence at exton, Rutland. eller, above n 19, 101. gibbs, above n 14, Vol IV. see stone, above n 5, 309. gibbs, above n 14, 265.

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second marriage, there might well have been questions regarding its validity, for the act that had been passed only stated that John was entitled to remarry; it gave no such permission to anne. This is unlikely to have been an oversight: after all, the whole purpose of the act was to enable John to remarry in order to produce an heir to the earldom. and the biblical precedents quoted by bishop Cosin in support of this focused entirely on the man’s right to remarry: ‘if the wife be put away for fornication, the husband, by the tenour of Christ’s words, is left free to marry again; which freedom is not allowed to the adultress herself, nor any man else that shall marry her.’71 In the eyes of the men who passed the bill, anne, having failed to fulfil her dynastic duty, was simply irrelevant. In this respect, the Roos case was distinct from divorce in the modern sense. but the question as to whether the guilty spouse should be free to remarry was one that was to recur again and again, not only in relation to private acts of Parliament but also during the course of the debates on what became the divorce and Matrimonial Causes act 1857. For the Monarchy The Roos case also marked the beginning of a more interventionist role for the King in politics. he had apparently enjoyed his attendance at the debates – telling the Lords that it was ‘better than going to a play’72 – and was subsequently to be present at ‘virtually every sitting during the sessions of 1673, 1674 and 1675’.73 historians have, however, been more interested in the consequences that the Roos case might have had. did Charles ever really envisage using the mechanism of a private act of Parliament to free himself from his queen? some historians have suggested that Charles’s support for the bill was merely strategic, ‘using the question of the royal succession to remind his brother of his dependence upon Charles’s goodwill’.74 Yet some contemporaries were convinced that it was a real possibility: Marvell expressed the opinion ‘that Lauderdale at one ear talks to the king of Monmouth and buckingham at the other of a new Queen’.75 and according to burnet, the discussions at court as to whether a bill to bring about a divorce should be introduced ‘went so far, that a day was agreed upon for making the motion in the house of Commons’.76 according to his informant, ‘three days before the motion was to be made, the King called for 71 State Trials 13, 1332. These arguments were recorded in the course of debates on the next divorce case, that of the duke of norfolk. see also the self-explicatory title of An abstract of Bishop Cozen’s Arguments Proving That Adultery Works a Dissolution of the Marriage and that it is lawful for the Man in Such Case to Marry again during the Life of her that is Divorced. 72 Marvell, above n 50, 303. 73 JR Jones, Charles II: Royal Politician (London, allen & Unwin, 1987) 93. 74 R hutton, Charles the Second: King of England, Scotland and Ireland (oxford, oxford University Press, 1991) 270. 75 Marvell, above n 50, 302. 76 burnet, above n 57, 262.

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him, and told him, that matter must be let alone, for it would not do’.77 events in 1673 – James’s open avowal of his conversion, his marriage to a Catholic princess, Mary of Modena, and the queen’s own illness – revived discussion of divorce,78 or, by way of alternative, the legitimisation of Monmouth, Charles’s son by his mistress Lucy walter.79 but once again no steps were taken. had Charles obtained a divorce and had children by a new queen, english history would have taken a very different course. The duke of York would have lived out his days in discontented peace rather than exile, Monmouth would have kept his head, and there would have been no cause for the glorious Revolution of 1688, nor any need, in the next generation, to trace the royal line back to the descendants of the electress of hanover. For Divorce Law It is also likely that the history of divorce law would have been very different. The only complaint that could be made against Catharine of braganza was her inability to provide Charles with an heir: her fidelity was not in question. so why was Charles so interested in the Roos case, and why was it seen as a potential precedent for him to end his marriage? If one reads the act allowing Lord Roos to remarry with these questions in mind, then the reasons for its passage become clear. The draft terms of the act noted that John had been ‘justly divorced’ from ann on account of her adultery.80 Its justification for permitting him to remarry was, however, explicitly dynastic rather than being linked to her conduct. Indeed, its key concern was apparent from its opening lines, in which John is described as the ‘only son and heir apparent of John earl of Rutland’.81 It went on to note that there was ‘no probable expectation of Posterity to support the family in the Male line but by the said John Manners’, the likelihood of his father having further legitimate sons being slim. The fact that this divorce was very much a family matter was further underlined by the elder John being one of the petitioners – along with other, unspecified relations (although presumably not those who would stand to inherit in the case of the failure of the male line). The dynastic issue perhaps goes some way to explain why Parliament agreed to pass this particular bill. There were many peers whose wives were guilty of adultery. but there were few heirs to an earldom who had only succeeded because of dynastic mishaps and who had no legitimate heirs to succeed to the title. belvoir Castle would have loomed large in the minds of those deciding the issue. 77 78 79 80 81

ibid. Coward, above n 52, 311. J Miller, Charles II (London, weidenfeld and nicolson, 1991) 207. Parliamentary archives, hL/Po/Jo/10/1/337/263. ibid.

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For Charles II to view the Roos case as a possible precedent for his own case, it would have to have been seen as one enabling a divorce by private act of Parliament when the marriage had proved childless rather than one allowing divorce on the basis of adultery. Roos’ wife’s adultery would, therefore, be merely the reason why there were no legitimate children, rather than the reason for the divorce, and a divorce a mensa et thoro in the ecclesiastical court would not have been regarded as a prerequisite. Indeed, there were a number of subsequent cases in which Parliament granted a divorce despite the fact that no divorce a mensa et thoro had been obtained. and childlessness was an important element within the cases that followed Roos. as wolfram has noted, almost all of the early divorce bills included the clause ‘he hath no issue nor hope of any’;82 until 1747, no divorce was granted to a man who had a living legitimate son. Petitioners played up the dynastic elements of their case. Thomas Loggin and his wife, for example, described themselves as being ‘of very good and ancient families’ when petitioning that the marriage of their son Francis be dissolved; yet, as has been pointed out, their circumstances hardly merited this description, Francis’s maternal grandfather being a mere haberdasher.83 If, as has been argued,84 there was a ‘major demographic crisis’ among the landed elite in the late seventeenth and early eighteenth centuries, then one would expect a number of petitioners to be childless. but for all of them to lack an heir suggests that there was a strong perception that the new procedure was a remedy to secure the succession to an estate, rather than for a man to rid himself of an erring wife. This may have been one reason why the take-up of the new option was slow: only 14 acts of Parliament allowing divorce were passed between 1700 and 1749,85 despite the fact that many of what were to become preconditions for the use of the procedure were not yet in force. From the mid-eighteenth century, however, a new tone could be discerned in the petitions. The wife’s adultery, rather than the lack of a legitimate heir, became the key feature. There was a feeling that a man should be able to remarry, not simply to secure the succession, but to regain ‘the comforts of matrimony’. This new approach to divorce was associated with a changing view of the purpose of marriage, as greater weight was attached to the relationship between the spouses.86 The demand for private acts of Parliament to dissolve failed marriages grew in the later part of the eighteenth century. admittedly, s wolfram, ‘divorce in england 1700–1857’ (1985) 5 OJLS 155, 175. R bearman, ‘divorce by act of Parliament: the case of Francis Loggin of butlers Marston’ (2010) 14 Warwickshire History 202. 84 stone and stone, above n 16, ch 3. 85 wolfram, above n 82. 86 see generally L stone, The Family, Sex and Marriage in England 1500–1800 (London, weidenfeld & nicolson, 1977); R Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century England (new York, academic Press, 1978); d Turner, Fashioning Adultery: Gender, Sex and Civility in England, 1660–1740 (Cambridge, Cambridge University Press, 2002) 72. 82 83

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even then the average was fewer than three per year.87 There were, after all, strong individual and non-legal institutional barriers to divorce.88 The period also saw the gradual accretion of procedural hurdles. by the end of the eighteenth century, those who wished to petition for a divorce also had to have obtained a divorce a mensa et thoro in the ecclesiastical court and to have sued the wife’s paramour for criminal conversation in the common-law courts.89 while the cost of so doing may have been overstated by those who later called for reform, the cumbersome nature of the process did attract criticism. as early as 1761 one writer, noting the biblical authority for divorce and remarriage in cases of infidelity, asked ‘why should not some more easy method be thought of, than now is practised, for relieving the party injured and oppressed?’90 It took almost 100 years for this call to be answered. The Matrimonial Causes act 1857 did not enjoy an easy passage through Parliament, but it might have been even harder had it not been possible to portray the change as one of procedure rather than principle: Parliament had, it was pointed out, been granting divorces by means of private acts for almost 200 years. The procedure involved was time-consuming both for petitioners and – as numbers crept upwards in the early part of the nineteenth century – for Parliament.91 It was also expensive, and so ran counter to the principle – far stronger in the nineteenth century than in the eighteenth – that the same moral standard of behaviour should be expected of all sections of the populace.92 In short, the principle of divorce having already been accepted, the only issue for the reformers of the mid-nineteenth century was how it should be put into effect. and each subsequent reform of divorce has shared a similar premise: that the reform proposed will be beneficial in extending the availability of divorce (and the advantage of remarriage) to those previously barred from it by reason of class, gender or conduct.93 each new step has been justified by the evasions or expense of the law as it then stood.

wolfram, above n 82. see J bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge, Cambridge University Press, 2003) ch 3. 89 s anderson, ‘Legislative divorce – Law for the aristocracy?’ in gR Rubin and d sugarman, Law, Economy and Society (oxford, Professional books Ltd, 1984) ch 5. 90 anonymous, Adultery anatomized: in a select collection of tryals, for criminal conversation: Vol 2 (London, 1761) 128. 91 see s Cretney, Family Law in the Twentieth Century: A History (oxford, oxford University Press, 2003) 161. 92 on which see eg, g himmelfarb, The De-moralization of Society: From Victorian Virtues to Modern Values (London, Iea health and welfare Unit, 1995) 50. 93 on the availability of divorce after 1858, see eg, g savage, ‘ “ Intended only for the husband”: gender, Class, and the Provision for divorce in england, 1858–1868’ in K ottesen garrison (ed), Victorian Scandals: Representations of Gender and Class (athens, ohio University Press, 1992) ch 1. 87 88

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For a Different Kind of Divorce Law given the ‘might-have-beens’ explored in this chapter, it may be appropriate to close by wondering how the law might have developed if John and anne had lived out their married life happily and produced a brood of children. There would, undoubtedly, have been other attempts to secure divorce with the possibility of remarriage. whether the petitions that subsequently came before Parliament would have resulted in divorces in the absence of the precedent set by the Roos case is a moot point. It is, for example, unlikely that the subsequent case of the duke of norfolk in the 1690s would have been regarded as sufficiently compelling to justify the first step, given his flagrant adultery.94 Let us assume, then, that without the exceptionally unfortunate genealogy that precipitated the Roos case the system of granting divorces by private acts might never have evolved. There would, of course, still have been pressure for reform. In the light of earlier debates – and the precedent of scotland – any general legislation enacted would probably have had a rather broader basis than what eventually passed in 1857. without the Roos case, divorce law might have developed without the double standard that was intrinsic to its dynastic focus. It would almost certainly have extended the grounds for divorce beyond adultery. Rather than seeing the Roos case as the unfortunate instigator of today’s high divorce rates, there is perhaps a stronger case for viewing it as the limited loophole that reduced the incentive for a more logical divorce law. ConCLUsIon

From any perspective, the Roos case was an important landmark. given the centrality of divorce to modern family law, it could even be claimed as the single most important development in the history of family law. but it would seem that the principle that it is now seen as establishing was not the same as the one that contemporaries would have perceived. The path from the Roos case to modern-day petitioners for divorce is no straighter than the line of descent from the family in occupation in 1509 to that living there in 2009. The edifice that now looks out over the Vale of belvoir may look impressively ancient, but it is not the same as the one that stood there in 1509, in 1669, or even in 1809. 95 and just as fashions in architecture have changed over time, so too we should not overlook the fact that the line of development of divorce law could well have been different. Precedents are slippery things, and this is as true of landmark cases as of any other.

stone, above n 5, 313–17. There was a considerable programme of building in the early years of the nineteenth century, but a fire in 1816 then destroyed a considerable of the castle: eller, above n 19, 133. 94 95

3 J v C: Placing The Child’s Welfare Centre Stage Nigel loWe

iNTRoDUCTioN

l

aNDmaRk DeCiSioNS by their very nature generate considerable discussion, and the daunting task that each of the contributors to this volume has had to face is to decide what new can be brought to the table. in the case of J v C1 that is indeed a formidable task. yet it is surprising what fresh insights can be gleaned from a re-reading of even a well-known decision. Furthermore, in this particular case the key issue, namely the weight to be placed on the child’s welfare in upbringing disputes between parents and others, has proved an ongoing issue and one that has already come before the newly created Supreme Court. This chapter begins by returning to the 1960s to put the issue that the lords had to decide into its historical context. it then examines the decision itself. attention is then focused upon the impact that the decision has had during the following four decades and not least how it survived both the Children act 1989 and, perhaps more surprisingly, the Human Rights act 1998. The chapter concludes by reflecting upon the decision’s historical, contemporary and possible future significance. baCk To THe 1960S

although it was true that by section 1 of the guardianship of infants act 1925 courts were enjoined in any proceedings in which the custody or upbringing of an infant was in question to treat the infant’s welfare as the first and paramount consideration, the child was virtually an invisible player in the family justice system. as michael Freeman has said elsewhere,2 if child law was taught at all in [1970] aC 668. m Freeman, ‘Fifty years of Family law: an opinionated Review’ in g Douglas and N lowe (eds), The Continuing Evolution of Family Law (bristol, Family law, 2009) 147. 1 2

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universities it was about ‘legitimacy (or rather illegitimacy) and adoption’. in other words it was about issues of status and not about a child’s welfare. but in truth this was a reflection of the fact that reported cases about welfare disputes were relatively uncommon. indeed, in very striking contrast to the current plethora of children cases dealt with by the House of lords and now the Supreme Court, there had, by 1960, been no post-war House of lords decision on children. in the only contemporary case-note3 written on J v C by one Stephen Cretney, the author claimed that the decision was the ‘first english appeal to the House of lords since the Judicature acts in which the “rights” of parents to the custody of their child as against third parties has been squarely in issue’. The reference to an ‘English’ appeal is to be noted as it was intended to exclude the 1925 decision, Ward v Laverty,4 which was an appeal from Northern ireland. but even allowing for this nicety, the comment overlooks Barnardo v McHugh5 decided in 1891 in which the House of lords were concerned with a dispute between barnardo’s and the mother of an illegitimate child. it might also be added that the first post-War House of lords child law decision, Official Solicitor v K,6 had been decided just four years before J v C but that was concerned with a mother’s right to see the whole of the official Solicitor’s report including the confidential and medical reports attached to it, compiled in connection with a custody dispute, so the case was not directly about the child’s upbringing. essentially, therefore, the point is well made that a House of lords decision about a child’s upbringing was a post-War novelty. moreover, the House of lords were being asked to settle the dispute against the law’s then preoccupation with parental rights as well as post-1925 act Court of appeal authority7 that (a) seemed to imply that the wishes of an unimpeachable parent were to be preferred to the welfare of the child,8 and (b) established that the 1925 act had no application to disputes between parents and third parties.9

3 S Cretney, ‘Wardship-Parens Patriae’ (1969) 119 New Law Journal 216. There was also an interesting editorial published in the journal a week earlier ‘Children in Care – Parental Rights’ (1969) 119 New Law Journal 190 – note that the accompanying comment was entitled ‘Conjugal Rights by order of the Court’! 4 [1925] aC 101. Referred to by lord guest in J v C, above n 1, as an ‘irish case decided in Northern ireland before the 1925 act and where the 1925 act never applied’. 5 [1891] aC 388. 6 [1965] aC 201. For all these and post J v C House of lords’ decisions about the child’s welfare, see N lowe, ‘The House of lords and the welfare principle’ in C bridge (ed), Family Law Towards the Millennium – Essays for P M Bromley (london, butterworths, 1997) 125. 7 Ward v Laverty, above n 4, seemingly ignored at this stage. 8 Re Thain [1926] Ch 676, though in J v C lord macDermott considered the headnote from which the implication can be drawn to be misleading. 9 Re Carroll (No 2) [1931] 1 kb 317.

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THe FaCTS oF J v C

it may be noted that notwithstanding that J v C was decided in 1969, the review so far has been taken back to 1960. This is because the litigation rumbled on for much of the 1960s, formally beginning in September 1963 when a boy’s Spanish parents wrote to Surrey County Council asking for their son’s return to them. but the full story goes further back than that. it began in November 1957 when the Spanish couple came to england to improve their economic position, leaving, incidentally, their four-year-old daughter behind in Spain with her grandmother. in may 1958 the mother gave birth to the boy in question. Unfortunately, the mother suffered from tuberculosis, and to avoid the boy’s going into institutional care he went to live with foster parents already known to the birth parents inasmuch as the foster mother, who could speak Spanish fluently and who ‘generally helped Spaniards’, had been called to the hospital to act as interpreter for the mother. Shortly after, the boy was formally taken into care under section 1 of the Children act 1948, but remained living with the foster parents. When the foster parents moved to another county the Spanish couple also moved there. eventually, in march 1959, the boy was discharged from care to live with his parents, though because the mother was still fragile (she could not, for example, lift the baby) the foster mother continued to help. about a year later the mother became pregnant again and the couple returned to Spain taking the boy with them. at that stage the expectation was that that would be the end of the story so far as the english foster parents were concerned. However, whilst in Spain the boy fared badly and his health deteriorated and, following a request by the mother, the foster parents reluctantly agreed to take the boy back. Thus it was in July 1961 that the boy, then aged three years and two months, returned to the foster parents with whom he immediately flourished. in august 1961 the foster parents applied to Surrey County Council to be formally appointed foster parents and the child was taken into formal care in october 1961, but remained living with the foster parents. The Spanish parents then moved to West germany to improve their economic position, leaving their two other children with their grandmother. They made no attempt to see their son in england. Their plans changed in February 1963 when the grandmother died and the parents were obliged to return to Spain. Prompted by a rather tactless letter in which the foster parents told the parents about how ‘english’ the boy had become, in September 1963 the Spanish mother wrote to Surrey County Council asking for their son’s return and the authority in turn informed the foster parents. but the local authority took no further action until, in December 1963, in response to the foster parents’ notice to them of their intention to apply to adopt the boy, they instituted wardship proceedings10 – 10 indeed this is one of the earlier examples of a local authority warding a child, though this later became a more common practice: see N lowe and R White, Wards of Court, 2nd edn (london, barry Rose/kluwer, 1986) ch 16.

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acting, as Harman lJ said in the Court of appeal, without either ‘conspicuous consistency or good sense’. as the New Law Journal editorial pointed out after the House of lords’ decision, the authority’s extraordinary dilatoriness was ‘all the more deplorable because it concerns a matter – the welfare of a small child – in which prompt decision-making is vital.’11 This dilatoriness was compounded by subsequent events, not least a further lengthy delay in part due to the inability of the Spanish parents to press on with the matter exacerbated by a wrangle between Spanish lawyers and Foreign office officials that the dispute was a legal and not a political one. in the midst of this, in July 1965, Ungoed Thomas J ordered the continuation of the wardship with care and control being given to the foster parents and that the child be brought up as a Roman Catholic. The parents were not represented at this hearing because they had been misled by Surrey County Council that they would be represented. again matters stalled but the litigation was kick-started by the foster parents’ issuing a summons in February 1967 effectively seeking to relieve themselves of the obligation to bring the boy up as a Catholic (this move was prompted by the difficulties of finding a suitable school for the boy). in response, in may 1967, the mother made an application for care and control. That hearing, again before Ungoed Thomas J, was determined in July 1967. He ruled in favour of the foster parents which was perhaps not surprising, at any rate through 2010 lenses, given that the boy was then nine years old and had been happily living with the foster parents for the previous six years during which time he had not seen his birth parents. There was also evidence doubting the father’s ability to cope with what at best was likely to be a difficult transitional period for the boy. in July 1968 the Court of appeal dismissed the parents’ appeal and the matter finally came before the House of lords in December 1968, judgment being given in February 1969. THe aRgUmeNTS

it was accepted at the House of lords’ stage that Ungoed Thomas J’s decision was only challengeable if it could be shown that he had exercised his discretion upon some wrong principle. in this regard, as one might expect, a number of arguments were deployed. The major argument was that united parents are prima facie entitled to the custody of their infant children and the court should only deprive them of care and control if they are unfitted by character, conduct or position in life to have this control. Thus in the case of unimpeachable parents (which for the purposes of argument the appellants were assumed to be) the court should, save in very exceptional cases, give care and control to the parents. it was consequentially argued that, notwithstanding section 1 of the guardianship of infants act 1925 11

editorial: ‘Children in Care – Parental Rights’ (1969) 119 New Law Journal 190, 191.

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which, it was contended, only applied to disputes between parents and not between parents and non-parents, the child’s welfare was not the first and paramount consideration. The House of lords unanimously rejected these submissions. in reaching this conclusion lords guest, macDermott and Upjohn in particular each reviewed the law at some length, both before and after 1925. both lords guest and Upjohn considered that section 1 of the 1925 act was declaratory of the law even before 1925 but while lord macDermott seemed less ready to accept that proposition he did accept that Ward v Laverty 12 was of general application. However, all their lordships were agreed that section 1 of the 1925 act was not confined, as the preamble seemed to imply, 13 to disputes between parents, but was of ‘universal application’, and, insofar as Re Carroll14 held otherwise, it was overruled. as lord macDermott (with whom lord Pearson expressly agreed) pointed out, the wording of section 1 seemed to be deliberately wide and general relating to any proceedings before any court, and so worded would apply to cases, such as the present, between parents and strangers. This construction finds further support in the following considerations. in the first place since (as the statutes and authorities already mentioned by way of background show) welfare was being regarded increasingly as a general criterion which was not limited to custody disputes between parents, it would be more than strange if the earlier part of section 1 were meant to apply only to that single type of dispute. Secondly, the questions for decision which are expressly mentioned – custody, upbringing, administration of property belonging to or held in trust for the infant, and the application of property belonging to or held in trust for the infant, and the application of income thereof – are of a kind to suggest the involvement not only of parents but of others such as guardians or trustees. and thirdly there is nothing in the rest of the act to require a limited construction of section 1.

The conclusion that section 1 of the 1925 act was intended to have universal application has been challenged by Cretney, who, having examined the Parliamentary history of section 1, commented:15 it seems inconceivable that legislation which would have resulted in a child being kept from his family by an outsider to offer a better upbringing would have been well received in 1925: and this outcome was certainly unforeseen by anyone involved in drafting the 1925 act.

Ward, above n 4. The preamble stated ‘Whereas Parliament by the Sex Disqualification (Removal) act 1919 and various other enactments has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby’. However, as their lordships pointed out, relying on A-G: and Prince Ernest Augustus of Hanover [1957] aC 436, preambles cannot control the ambit of sections of an act. 14 Re Carroll, above n 8. 15 Sm Cretney, ‘“What will the Women Want Next?” – The Struggle for Power Within the Family 1925–1975’ (1996) 112 LQR 110,133. 12 13

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Cretney has since reinforced this criticism, pointing out16 inter alia that when overruling Re Carroll (No2) the law lords seemed unaware that Slesser lJ (who gave the leading judgment) ‘was particularly well informed about the intentions underlying the guardianship legislation, since it was he who (as Solicitor-general in the 1924 labour government) had chaired the meetings at which the compromise between the women’s organisations and the government had been worked out and translated into statutory form, and it was he who had procured the approval of the Home affairs Committee and the Cabinet to that compromise.’ a second submission was that the care and control order amounted to de facto adoption but without any of the safeguards built into an adoption, viz the need either for parental consent or its formal dispensation upon stated grounds – in particular that it was being unreasonably withheld – a ground which it was argued could not be sustained in this case. This argument, too, was dismissed along the basic lines that there were important conceptual differences between a care and control order and an adoption. in particular, while the latter order permanently severed the legal connection between the child and his birth parents, the former did not. Furthermore, as lord Upjohn pointed out, a care and control order was variable not least upon an application by the child himself.17 it was agreed in argument that succession rights were not in issue. again this ruling did not go unchallenged. in particular, Cretney18 questioned the desirability of de facto adoptions. Writing at a time when adoption law was under review,19 he asked: ‘is it not likely to be unsettling to the child and his foster parents (who must have a strong incentive to treat the child differently from their own) without any compensating advantage to the parents? if there is a factual relationship of a parent and child, should not the legal relationship be grafted on?’ as he pointed out, it was because of a large number of de facto adoptions which had no legal force that adoption was introduced in the first place. The third submission was that by the rules of comity an english court ought not to exercise jurisdiction over foreign infants resident in this country after united foreign parents have requested their child’s return. in lord guest’s view, this argument was wholly misconceived since, as he pointed out, there was no reported case where ‘comity’ has operated where there is no order of a foreign court.

16 Stephen Cretney, Family Law In The Twentieth Century – A History (oxford, oxford University Press, 2003) 572–73. 17 This dismissal scuppered another argument (see [1970] aC at 676) that it could not be right to cut the child off from either the benefits or the obligations of living with his parents, it being pointed out that under Spanish law it is the family duty for children to look after aged parents. indeed such an obligation is common in european civil law jurisdictions, which is in stark contrast to english law following the repeal of the Poor laws by the National assistance act 1948. 18 Cretney, above n 3, 217. 19 Viz by the Houghton Committee.

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THe eND ReSUlT

What J v C essentially decided when upholding Ungoed Thomas J’s decision, was that: 1. The welfare principle applies as much to disputes between parents and third parties as it does to disputes between parents. 2. even assuming that the parents are ‘unimpeachable’ their interests could and were in this case outweighed by the child’s welfare requirements.

in establishing these points alone J v C can surely be regarded as a landmark decision, but its significance went beyond that. in their first detailed assessment of the application of the welfare principle as then expressed by section 1 of the 1925 act, the law lords, particularly lord guest and especially lord macDermott, firmly put the child’s welfare centre stage and in so doing can truly be said to have laid the foundation of our modern welfare-dominated child laws. in fact, on close analysis, their lordships varied in the way that they did this, with lord Upjohn being at the parent end of the spectrum and lords guest and macDermott being at the child’s welfare end. but it was the macDermott view that subsequently carried the day inasmuch as it was his explanation of the meaning of ‘first and paramount’ that has been repeatedly relied upon,20 namely: Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. i think they connote a process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.

THe ReaCTioN To aND SUbSeQUeNT TReaTmeNT oF J v C

The Pre-Children Act Case Law While it now seems obvious that J v C was a landmark decision, it was clearly not immediately so regarded. There was, for instance, no case-note written on it in 20 both in england and Wales and elsewhere. in australia, eg, see S Parker, P Parkinson and J behrens, Australian Family Law In Context, 4th edn (North Ryde, NSW, law book Co, 2009) 275; in ireland, see aJ Shatter, Shatter’s Family Law, 4th edn (london, butterworths, 1997) 13.41 and 13.46; and in New Zealand, see PRH Webb, b atkin, J Caldwell, m Henaghan, D Partridge and P Treadwell, Family Law in New Zealand, 14th edn (Wellington, NZ, butterworths, 2009) 6.112 and K v G [2004] NZFlR 1105.

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any of the major journals. after Cretney’s New Law Journal note the next serious reference to the decision was by JC Hall in his seminal Cambridge Law Journal article tellingly entitled ‘The Waning of Parental Rights’, published in 1972.21 bevan’s The Law Relating to Children, published in 1973, does not exactly make a song and dance of the decision, essentially discussing it under the particular heading ‘Resolving disputes over custody as between a parent and a stranger’ rather than treating the decision as laying down any general principle. 22 Case-wise, however, it was becoming evident (though not in relation to family relocation)23 that the child’s welfare was really becoming the court’s paramount consideration, as witnessed first by the quashing of the notion that the so-called unimpeachable parent stood in a more favourable position as against the other who was guilty of matrimonial misconduct (that is, the interests of justice do not outweigh the welfare principle)24 and the eventual expunging altogether of the mythical ‘unimpeachable parent’ from the advocate’s armoury.25 in addition, in two cases in the early 1970s the Court of appeal had occasion expressly to follow J v C when granting care and control to foster parents of children left with them shortly after birth in this country by their West african parents. The parents took up paid employment elsewhere before seeking to recover the children, in the one case nine years later and in the other five years later, to take them back to their parents’ country of origin.26 but the really significant decision was another House of lords judgment, Re KD (A Minor)(Ward: Termination of Access),27 in which a local authority was seeking (in wardship proceedings) to terminate a mother’s limited access to her son. it was argued for the mother that the right of access was a parental right which should only be displaced where the court was satisfied that the exercise of the right would be positively inimical to the interests of the child. it was further contended that this right had been affirmed as a fundamental human right under the european Convention for the Protection of Human Rights and Fundamental Freedoms (eCHR). both contentions were rejected. as lord oliver put it,28 the contention that a parent has a right of access was out of line with an approach which has been universally acted upon ever since the decision of your lordships’ House in J v C. [1972b] ClJ 248. Hk bevan, The Law Relating to Children (london, butterworths, 1973) 287–90. See Poel v Poel [1990] 1 WlR 1469 (upon which the current leading authority, Payne v Payne [2001] eWCa Civ 166, [2001] Fam 473, is based) which, as ormrod lJ observed in Chamberlain v de la Mare (1982) 4 FlR 434 at 443, ignored J v C. See further R Taylor in ch 6 of this volume. 24 See S (BD) v S (DJ)(Children: Care Control) [1977] Fam 109. See also Re K (Minors)(Children: Care and Control) [1977] Fam 179. 25 S (BD) v S (DJ), above n 24, and Re R (Minors)(Wardship: Jurisdiction) [1981] 2 FlR 416, 425 in which ormrod lJ declared the ‘unimpeachable parent’ to be in ‘forensic limbo’. 26 See respectively Re O (a minor) (1973) The Times, 26 February, where the parents were Nigerian, and Re EO (a minor) (1973) The Times, 16 February, where the parents were ghanaian. 27 [1988] aC 199. 28 [1988] aC 806, 827. 21 22 23

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in lord oliver’s view, adopting lord macDermott’s analysis in J v C, the law recognised the parent’s position by taking it to be a normal assumption that a child benefits from having continued contact with both parents. Nevertheless that position must always be qualified by considerations of what is best for the welfare of the particular child in question. So understood, his lordship could find nothing in the european Court of Human Rights’ decision, R v United Kingdom,29 which ‘contradicts or casts any doubt upon that decision [that is, in J v C] or which calls now for any re-appraisal of it by your lordships’. Re KD provided important re-affirmation of J v C that in resolving disputes over a child’s upbringing, including access, the court’s sole consideration was to promote the child’s welfare. Whilst no doubt being predisposed to consider that children were better off being brought up by their own parents rather than with third parties and benefited from having continued contact with each parent, this was not because parents had ‘rights’ as such but because such a position was prima facie in children’s interests. Substantially contemporaneously with Re KD, though in an entirely different context, the House of lords similarly held in Re B (A Minor)(Wardship: Sterilisation)30 that in resolving disputes about a child’s upbringing, his or her welfare was the court’s sole concern. The issue in Re B was whether a 17-yearold girl, who suffered a moderate degree of mental impairment and had very limited intellectual development, should be sterilised. giving leave for the operation and rejecting the argument, based on a Canadian Supreme Court decision,31 that such an operation could never be authorised for non-therapeutic reasons, lord oliver commented:32 if in that conclusion the expression ‘non-therapeutic’ was intended to exclude measures taken for the necessary protection from future harm of the person over whom the jurisdiction is exercisable, then i respectively dissent from it for it seems to me to contradict what is the sole and paramount criterion for the exercise of the jurisdiction, viz the welfare and benefit of the ward. [emphasis added.]

lord oliver added that Re B was not about sterilisation for social purposes or eugenics nor about the convenience of the child’s carers and involved no general principle of public policy. it was simply about what was in the child’s best interests.

29 (1987) 10 eHRR 74, [1988] 2 FlR 445 in which the Uk was found to be in breach of art 8 of the eCHR (right to respect for family life) because under the then law parents had no means of challenging access decisions in relation to a child in local authority care. in fact this and other european Court of Human Rights’ decisions did cause the government to provide under the Children act 1989, s 34 a presumption of reasonable contact between a child in care and his family. See R White, P Carr and N lowe, The Children Act in Practice, 2nd edn (london, butterworths, 1995) para 1.6. 30 [1988] aC 199. 31 Eve v Eve (1986) 31 DlR (4th) 1. 32 Re B, above n 30, 212.

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The Children Act 1989 by the end of the 1980s it seemed clear that when called upon to determine a child’s upbringing the courts were effectively treating the child’s welfare as the sole consideration in the sense that all the circumstances of the case were weighed in the balance to determine what was in the best interests of the child concerned. Nevertheless the fact remained that, under what had become the guardianship of minors act 1971, the child’s welfare was still expressed to be ‘the first and paramount interest’ (emphasis added). although in their report on Guardianship and Custody33 the law Commission acknowledged that the words ‘first and’ had effectively become redundant,34 they recommended that the statutory guideline be amended. The Commission, however, were unhappy with a pure paramountcy formulation on the ground that litigants might still be tempted to introduce evidence that had no relevance to the child in the hope of persuading the court to balance one against the other. Their own proposal was that:35 [W]hen reaching any decision about the child’s upbringing or maintenance, the welfare of any child likely to be affected by the decision should be the court’s only concern.

However, in the event the government simply adopted the pure paramountcy formulation, section 1(1) of the Children act 1989 stating that: When a court determines any question with respect to – (a) the upbringing of the child, or (b) the administration of the child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.

No one expected that this formulation would make any material difference to the then law, it being generally regarded as a statutory enshrinement of the position established in J v C. indeed, lord Nicholls later said as much in Re O and another (Minors)(Care: Preliminary Hearing); Re B36 when he observed that the approach adopted by lord macDermott in J v C when applying the welfare principle under the guardianship of infants act 1925 was ‘equally applicable’ to that under the 1989 act. in other words, in interesting contrast to Ward v

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3.14.

law Com No 172, Family Law, Review of Child Law, Guardianship and Custody (1988) para

Though at para 3.13 the Commission maintained that in the past the word ‘first’ had caused confusion in that it had ‘led some courts to balance other considerations against the child’s welfare rather than to consider what light they shed upon it’. 35 See para 3.14. When the issue concerned the child’s property the recommendation was simply that the court should only be concerned with that child’s welfare. From a human rights perspective, the government was surely right to have rejected the law Commission’s proposal, see further below. 36 [2003] UkHl 18, [2004] 1 aC 523, [24]. 34

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Laverty,37 which seemed to have been overridden by the 1925 act, J v C continued to be the authority notwithstanding the passing of the Children act 1989. However, a more daunting challenge to its authority was presented by the Human Rights act 1998. The Human Rights Challenge as already mentioned, it had been unsuccessfully argued before the House of lords in Re KD (A Minor)(Ward: Termination of Access)38 that in relation to parents’ so-called right of access to their children the paramountcy principle was incompatible with the european Convention on Human Rights. lord oliver (with whom lords keith, brandon and goff agreed)39 said: i do not, for my part discern any conflict between the propositions laid down by your lordships’ House in J v C and the pronouncements of the european Court of Human Rights in relation to the natural parents’ right of access to her child. Such conflict as exists, is, i think, semantic only and lies only in differing ways of giving expression to the single common concept that the natural bond and relationship between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it.40

as his lordship pointed out, the word ‘right’ is used in a variety of different senses, but that in most societies parenthood is generally conceived of as conferring upon parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or by the authorities on whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say the welfare of the child. That is the basis of your lordships’ House in J v C and i see nothing in R v UK41 which contradicts or casts any doubt on that decision or which calls now for any reappraisal of it by your lordships.

Notwithstanding that this analysis had not gone unchallenged in academic circles,42 the House of lords’ ruling might have been taken as definitive but for Ward, above n 4. Re KD, above n 27. lord Templeman commented ([1988] aC 812) that there was ‘no inconsistency of principle or application between the english rule and the Convention rule’. 40 at 825. 41 R v UK, O v UK, W v UK [1988] 2 FlR 445, in which the absence of any legal mechanism to challenge a termination of contact by a local authority was found to be in breach of art 8 of the Convention. 42 See in particular the analysis by J Herring, ‘The Human Rights act and the welfare principle in family law – conflicting or complementary?’ [1999] Child and Family Law Quarterly 232. 37 38 39

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the fact that the Human Rights act 1998 provided the opportunity for a general re-appraisal. However, against a background of widespread speculation43 that the paramountcy principle might not survive another human rights challenge, the Court of appeal quickly confirmed its compatibility. in Re L (A Child)(Contact: Domestic violence),44 butler-Sloss P considered that the prevailing preference for children’s interests was entirely compatible with article 8(2) of the european Convention on Human Rights. as she pointed out, in Hendricks v Netherlands45 it was held that where there was a serious conflict between the interests of a child and one of his or her parents which could only be resolved to the disadvantage of one of them it was the child’s interests that had to prevail under article 8(2). as butler Sloss P put it: The principle of the crucial importance of the best interests of the child has been upheld in all subsequent decisions of the european Court of Human Rights.

She pointed in particular to Johansen v Norway46 in which the Court commented that ‘the parent cannot be entitled under article 8 of the Convention to have such measures taken as would harm the child’s health and development’. in Payne v Payne47 Thorpe lJ similarly had no doubts as to the compatibility of the paramountcy principle with the Convention. He observed: The acknowledgement of child welfare as paramount must be common to most if not all judicial systems within the Council of europe. it is of course enshrined in art 3(1) of the United Nations Convention on the Rights of the Child 1989. accordingly the jurisprudence of the european Court of Human Rights inevitably recognises the paramountcy principle, albeit not expressed in the language of our domestic statute.

accordingly, Thorpe lJ concluded that whilst the advent of the 1998 act required some revision of the judicial approach to reaching its conclusion, as a safeguard to an inadequate perception and application particularly for fathers’ rights under articles 6 and 8, it requires no re-evaluation of the judge’s primary task to evaluate and uphold the welfare of the child as the paramount consideration, despite its inevitable conflict with adult rights. 43 See H Swindells, ‘Crossing the Rubicon – Family law Post The Human Rights act 1998’ in S Cretney and e butler-Sloss (eds), Family Law – Essays For The New Millennium (bristol, Family law, 2000) 55, 62–66. a bainham, ‘Children law at The millennium’ in Family Law Essays for the Millennium, ibid 113, 125–26; and F kaganas and C Piper, ‘grandparents and contact: “rights or welfare” revisited’ (2001) 15 International Journal of Law, Policy and the Family 250. See also J Fortin, ‘The HRa’s impact on litigation involving children and their families’ [1999] Child and Family Law Quarterly 237, expressing concern that the Convention would dilute the paramountcy principle. 44 Re L (A Child)(Contact: Domestic violence); Re v (A Child)(Contact: Domestic violence); Re M (A Child)(Contact: Domestic violence); Re H (Children)(Contact: Domestic violence) [2001] Fam 260, 277. 45 (1982) 5 eHRR 223. in fact this case was decided by the Commission and not the european Court of Human Rights as suggested by butler-Sloss P. 46 (1996) 23 eHRR 33, eCtHR. 47 [2001] eWCa Civ 166, [2001] Fam 473, [38] and [57].

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it is noticeable that by analysing the paramountcy principle in terms of prioritising children’s welfare where it conflicts with parents’ interests, both butlerSloss P and Thorpe lJ moved away from the traditional view that children’s welfare should be the court’s sole concern which would seem to be incompatible with human rights law.48 However, as Thorpe lJ clearly said, this shift is only a semantic one and there seems little doubt that neither he nor butler-Sloss P thought that the 1998 act would cause an english court to reach a different decision than it would otherwise have done.49 as a matter of fact, since these two decisions, the european Court of Human Rights has arguably moved closer to the english position. in particular one can point to the comment in Yousef v Netherlands50 that in judicial decisions where the rights under art 8 of parents and those of the child are at stake, the child’s rights must be the paramount consideration. if any balancing of interests is necessary, the interests of the child must prevail

This was the first time that the european Court of Human Rights expressly referred to the paramountcy of the child’s rights,51 though whether the Court’s use of the word ‘paramount’ can be considered to equate to the sense that it is used in the english courts can be debated. although it has been argued52 that Yousef itself was out of line with other human rights decisions, it was certainly a pointer towards a greater emphasis on the predominance of children’s rights under the Convention. moreover, it must now be considered together with the subsequent decision, Neulinger and Shuruk v Switzerland,53 in which the grand Chamber noted54 48 as most assuredly the law Commission’s proposed test (set out above) would have been with its reference to the child’s welfare being the court’s only concern. 49 For a similar conclusion see a bainham, ‘Protecting Children and their Rights’ [2002] Family Law 279, 288. 50 (2003) 36 eHRR 20, [2003] 1 FlR 210, [73]. in CF v Secretary of State for the Home Department [2004] eWHC 111 (Fam), [2004] 2 FlR 517, [103] munby J referred to Yousef (above) as establishing that the welfare principle was a ‘core principle’ of human rights law. it might be noted, however, that the european Court of Human Rights conflated ‘rights’ and ‘interests’. 51 Compare the statement in Yousef with earlier ones, eg in W v Federal Republic of Germany (1985). 50 D & R 219 where the european Commission held that national courts should ‘take into account the interests of children’; Hendricks v Netherlands, above n 45, where the Commission referred to the interests of children ‘predominating’ and Hoppe v Germany [2003] 1 FlR 384 at [49] where the Court referred to the interests of children as being of ‘particular’ importance. For an analysis of other european Court of Human Rights’ decisions, see J Fortin, Children’s Rights and the Developing Law, 3rd edn (Cambridge, Cambridge University Press, 2009); S Choudhry and H Fenwick, ‘Taking the rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights act’ (2005) 25 OJLS 453; D bonner, H Fenwick and S Harris-Short, ‘Judicial approaches to the Human Rights act’ (2003) 52 International & Comparative Law Quarterly 549; and a Vine, ‘is the Paramountcy Principle Compatible with article 8?’ [2000] Family Law 826, 828–30. 52 See bonner, Fenwick and Harris-Short, above n 51, 580, fn 154. 53 (2010) (app No 41615/07), [2011] 1 FlR 122. 54 at [135]. ironically, this emphasis on children’s welfare was arguably misplaced in relation to the 1980 Hague Convention on the Civil aspects of international Child abduction with which the case was concerned.

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Nigel Lowe that there is a broad consensus – including in international law – in support of the idea that in all decisions concerning children their best interests must be paramount.

THe CoNTiNUiNg PRoblem oF ReSolViNg DiSPUTeS beTWeeN PaReNTS aND THiRD PaRTieS 55

Notwithstanding that J v C and the approach of lord macDermott in particular is firmly embedded in our child law, the resolution of disputes between parents and third parties (the very issue in J v C) has remained a troubling problem. even in abstract terms there is an inherent difficulty in how best to reflect the importance of parenthood without undermining the general application of the paramountcy test as established by J v C. although in retrospect one might have expected judges to refer to lord oliver’s description in Re KD of parenthood’s being a protected privilege but one which is ultimately subservient to the paramountcy of the child’s welfare, they chose instead to express themselves in different terms. in Re W (A Minor)(Residence Order),56 for example, balcombe lJ said: it is the welfare of the child which is the test, but of course there is a strong presumption that, other things being equal, it is in the interests of the child that it shall remain with its natural parents but that has to give way to particular needs in particular situations.

although the overall sentiment of this statement is clear enough and indeed reflective of lord Templeman’s comment in Re KD57 that: The best person to bring up a child is a parent. it matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered

it might nevertheless be thought to be too strong a statement. as the Court of appeal subsequently observed,58 no presumption in favour of the natural parent can be found anywhere in the 1989 act and consequently any judicial overlay of the words of the statute had to be treated with caution. moreover, as was pointed out, the biological parent might not always be the natural parent in the eyes of the child and in cases where the child has been in the long-term care of a non-parent it will be the latter who is the child’s psychological parent. Fortin, above n 50, 521 ff. [1993] 2 FlR 625, 633 expressly approving similar comments made by lord Donaldson mR in Re H (A Minor)(Custody: Interim Care and Control) [1991] 2 FlR 109, 113, who in turn was explaining earlier dicta by Fox lJ in Re K (A Minor)(Ward: Care and Control) [1990] 1 WlR 431 to the effect that the displacement of the parental right to look after their child required positive reasons; a sentiment substantially repeated in Re D (Care: Natural Parent Presumption) [1999] 1 FlR 134. 57 Re KD, above n 38, 812. Referred to and applied in Re M (Child’s Upbringing) [1996] 2 FlR 441, discussed below. 58 in Re H (a child: residence) [2002] 3 FCR 277. 55 56

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This issue has now been reconsidered, first by the House of lords in Re G (Children) (Residence: Same-Sex Partner)59 and then by the Supreme Court in Re B (A Child) (Residence: Biological Parent).60 in Re G baroness Hale said: The statutory provision is plain: the welfare of the child is the paramount consideration. as lord macDermott explained [in J v C], this means that it ‘rules upon or determines the course to be followed’. There is no question of a parental right. as the law Commission explained,61 ‘the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child’ or, as lord macDermott put it, the claims and wishes of parents ‘can be capable of ministering to the total welfare of the child in a special way’.

However, baroness Hale added that none of this means that the fact of parentage62 is irrelevant and she expressly approved the following comment by an australian judge:63 i am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process. . . . each case should be determined upon an examination of its own merits and of the individuals there involved. [emphasis added.]

While this positional statement is clear, it was arguably tempered by a different line taken by lord Nicholls, who, having referred to the paramountcy of the child’s welfare, said: in reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parents can be expected to be in the child’s best interests, both in the short term also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly. [emphasis added.]

but any notion that lord Nicholls was to be taken as espousing a different approach to baroness Hale was firmly quashed by the Supreme Court in Re B. giving the judgment of the court, lord kerr pointed to lord Nicholls’ qualification of his statement by his reference to ‘the ordinary way’ of rearing a child and commented: [2006] UkHl 43, [2006] 1 WlR 2305. [2009] UkSC 5, [2009] 1 WlR 2496. law Com Working Paper No 96, Custody (HmSo 1986), para 6.22. 62 Note: baroness Hale was at pains to stress that one should be wary of placing too much stress on the biological parenthood given that parenthood can comprise genetic, gestational, social and psychological parenthood. 63 Namely lindenmayer J in Hadak, Newman and Hadak (1993) FlC 92-421 approved by the Full Court of the Family law Court of australia in Rice v Miller (1993) FlC 92-415 and Re Evelyn [1998] Fam Ca 55. 59 60 61

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Nigel Lowe but many disputes about residence and contact do not follow the ordinary way. Therefore although one should keep in mind the common experience to which lord Nicholls was referring, one must not be slow to recognise those cases where that common experience does not provide a reliable guide.

Referring to baroness Hale’s judgment quoted above, lord kerr said: it is a message which should not require reaffirmation but, if and in so far as it does, we would wish to provide it in this judgment. all consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. it is only as a contributor to the child’s welfare that parenthood assumes any significance. in common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

it is one thing to agree upon the principle but quite another to agree upon its application. in Re B, however, notwithstanding that the matter went to the Supreme Court, the application of the paramountcy test, as properly understood,64 seemed straightforward. in that case the Supreme Court restored the magistrates’ decision that a four-year-old who had lived virtually all his life with his grandmother should remain with her and not be moved to live with his father. The position was not so straightforward in Re G, which involved a dispute between a lesbian couple over the future upbringing of two children the couple decided to have together via the artificial insemination of one of them. after their separation each formed new same-sex relationships. The biological mother and the children moved to leicester together with the mother’s new partner but her former partner maintained regular contact and paid maintenance. The former partner subsequently applied for a shared residence order and during the hearing the mother revealed her intention to relocate permanently with the children to Cornwall. The Children and Family Court advisory and Support Service (CaFCaSS) report considered that if the partner did not have parental responsibility (and at that time this could only have been acquired by a residence order)65 she would be marginalised from the children’s future. although the trial judge found that the relocation plans were designed at least in part to frustrate contact between the children and the former partner, he nevertheless refused to make a shared residence order but instead made specific issue orders and a

64 The original decision was overturned in the father’s favour on the basis of lord Nicholls’ judgment in Re G that the justices had failed to give weight to the notion that children should be raised by their biological parent or parents. The Court of appeal (see Re B (Residence: Second Appeal) [2009] eWCa Civ 548, [2009] 2 FlR 632) refused to interfere with the appeal judge’s ruling upon the basis that his fundamental approach was not plainly wrong. The Supreme Court disagreed, holding that as the exercise of the justices’ discretion, though flawed, could not be said to be plainly wrong, the appeal judge had in turn been wrong to interfere with their decision. 65 Had the children been conceived after april 2009 the partner could have (assuming the father was a ‘licensed’ sperm donor) acquired parental responsibility either upon being registered as a parent or by means of a parental responsibility agreement with the mother or a court order by reason of the reforms introduced by the Human Fertilisation and embryology act 2008.

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further contact order. That order was, however, successfully appealed, with the Court of appeal making a shared residence order.66 Subsequently and in defiance of the restrictions, the mother and family relocated to Cornwall and the former partner brought fresh proceedings. at first instance, bracewell J granted primary care to the partner, which decision was upheld by the Court of appeal, rejecting inter alia the arguments that (a) the unique biological and legal connection was the determining factor in the welfare balancing exercise, and (b) that bracewell J had over-emphasised the mother’s misconduct and had ignored the guardian’s reports of a happy family in Cornwall. in reaching this decision Thorpe lJ considered that the J v C principle had no application to a dispute between two biological parents and strongly doubted its application in a homosexual union where one parent was the biological parent and the other not. The House of lords overruled this decision, holding that the welfare principle as espoused by J v C was of universal application and in this case the courts below had allowed the unusual context of the case to distract them from applying that principle. in particular, the fact that the appellant was ‘the natural mother of those children in every sense of the term,67 while raising no presumption in her favour is an important and significant factor in determining what will be best for them now and in the future’. Furthermore, there had been no case for transferring residence given that the evidence was, notwithstanding her previous history, that the mother was duly affording contact between the children and her former partner. a final example of the difficulties of applying the welfare principle to parent– third party disputes is Re M (Child’s Upbringing)68 in which the Court of appeal ordered the immediate return of a 10-year-old Zulu boy to his natural parents (who had been retained by the applicant whilst in South africa as household employees) in South africa, notwithstanding that he had been brought up for the last four years exclusively by the white applicant in england, and apparently ignoring both the child’s own wishes to remain here and strong medical advice that an immediate return would be harmful. The added complication in this case was that the applicant had misled the parents into giving their consent for the boy to come to england upon the basis that the proposed stay and living arrangements would be short-term (that is, no more than five years) – in fact the applicant sought to adopt the child – and had proved unreliable in arranging contact visits for the parents thereby in effect thwarting the first-instance plan for a phased return. although the case bore a striking similarity to J v C, that case was not cited by the court. instead it relied upon the now discredited test of regarding the starting point to be a strong supposition, other things being equal, that it is in a child’s interests to be brought up by his natural parents. another criticism of the decision was that the court paid no heed to the child’s own wishes as perhaps 66 67 68

Re G (Residence: Same Sex Partner) [2005] eWCa Civ 462, [2005] 2 FlR 957. ie she was the genetic, gestational, social and psychological parent. [1996] 2 FlR 441.

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they should have done pursuant to section 1(3)(a) of the Children act 1989. in point of fact the child fared badly on his (much publicised) return and he later returned to england with his mother’s consent. Some CoNClUDiNg RemaRkS

J v C is rightly included in this volume of landmark cases in Family law. it was not only an important decision in its own right but it also signalled the change from a parent/status-dominated law to a child-welfare dominated one, thereby laying the foundation of our current child law. moreover, unlike some of the cases in this volume, J v C has proved an enduring authority and 40 years on and counting it is still being cited and relied upon even in the top court. in so doing it has survived two challenges. First, it continues to be regarded as the authority notwithstanding the passing of the Children act 1989. This is in contrast to the fate of Ward v Laverty, which, though surely a ground-breaking decision, seems to have been overridden by the guardianship of infants act 1925. Secondly, and more significantly, it has survived a human rights challenge. ironically, although J v C (and lord macDermott’s classic explanation of the paramountcy principle in particular) remains the established authority, the actual issue raised in J v C, namely, how to resolve disputes between parents and third parties, has continued to trouble the courts. indeed, in one of its first decisions, Re B (A Child)(Residence: Biological Parent)69 the Supreme Court was called upon yet again to state the applicable principle. Whether the Supreme Court’s pronouncement will mark the end of such disputes reaching the appellate courts remains to be seen. They are, after all, tough decisions to make. Who could say, definitively, that with their options boxed in, the Court of appeal was wrong in Re M (Child’s Upbringing) to return the child to his parents and so preserve his ethnic and cultural roots? even in Re G (Children)(Residence: Same-Sex Partner), given the biological mother’s track record of seeking to marginalise her former partner’s role over the children, the final decision was a matter of fine judgment.70 more interesting still is to speculate for how much longer J v C will continue to be a key authority. in this regard, while it seems clear that it will, so long as the governing principle remains the paramountcy of the child’s welfare, that principle itself has been called into question by a number of influential commentators.71 in fact the law has already moved on from J v C in the sense that 69 it was the Supreme Court’s fifth handed down judgment but the first case in which the application had been made to the Supreme Court as opposed to the former Judicial Committee of the House of lords. 70 See also l Smith, ‘Re g (Children)(Residence: Same Sex Partner’ (2006) 29 Journal of Social Welfare and Family Law 307. 71 See in particular, a bainham, ‘Non-intervention and Judicial Paternalism’ in P birks (ed), Frontiers of Liability (oxford, oxford University Press, 1994) 161 and developed in a bainham, ‘“Honour Thy Father and mother”: Children’s Rights and Children’s Duties’ in g Douglas and

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there has been a shift away from treating children as the passive victims of family breakdown towards regarding them as participants and actors in the family justice system.72 it was with this shift in mind that the original title of this chapter – J v C: Placing the Child Centre Stage – was changed to J v C: Placing the Child’s Welfare Centre Stage. it never occurred to anyone in J v C to canvas formally, and to take into account, the child’s own views. That would be a requirement now.73 Had the child’s views been considered, it would undoubtedly have been found that he wished to remain with the foster parents. indeed the evidence was that he had a happy home in england and had strong antiSpanish feelings, an example of which was his wish not to speak Spanish despite the fact that the whole family (except for the foster father) spoke that language in the kitchen and nursery. yet, and here is the final irony, the anecdotal evidence74 is that after attaining his majority the child returned to live in Spain and ended all contact with the english foster family.

l Sebba (eds), Children’s Rights and Traditional values (aldershot, ashgate, 1998) 93; H Reece, ‘The Paramountcy Principle: Consensus or Construct?’ (1996) 49 Current Legal Problems 267; J eekelaar, ‘beyond the welfare principle’ [2002] Child and Family Law Quarterly 237; and J Herring, ‘The Welfare Principle and the Rights of Parents’ in a bainham, S Day Sclater and m Richards (eds), What is a Parent? (oxford, Hart Publishing, 1999) 89, and developed in ‘The Human Rights act and the welfare principle in family law – conflicting or complementary?’ [1999] Child and Family Law Quarterly at 233. but see also by the same author, ‘Farewell Welfare?’ (2005) 27 Journal of Social Welfare and Family Law 159, and N lowe and g Douglas, Bromley’s Family Law, 10th edn (london, butterworths, 2007) 471–72 for a ‘defence’ of the welfare principle. Note also the thoughtful comments by bonner, Fenwick and Harris-Short, above n 51, 580. 72 See N lowe and m murch, ‘Children’s participation in the family justice system – translating principles into practice’ [2001] Child and Family Law Quarterly 137. 73 See Children act 1989, s 1(3)(a). 74 i am grateful to Professor Judith masson of the University of bristol for this information gained from a conversation she had with the child’s foster brother.

4 Corbett v Corbett: Once a Man, Always a Man? Stephen GilMOre*

intrODUCtiOn

A

pril AShley’S life changed dramatically when, as one of Vogue magazine’s favourite female underwear models, ‘she’ was exposed by the Sunday People newspaper as having previously undergone a socalled ‘sex-change operation’.1 Ashley’s affair with, and then purported marriage to, the honourable Arthur Cameron Corbett, son of the second Baron rowallan,2 made the developing story even more ‘scandalous’ and appetising to the press feeding frenzy.3 indirectly, and in part, the press exposure led to a court case which resulted in Ormrod J’s landmark judgment in Corbett v Corbett (orse Ashley),4 the subject of this chapter. Distilled to the legal equivalent of the ‘sound-bite’, Corbett held that a person’s sex is determined at birth by reference to congruent biological factors and, on the facts, the purported marriage was void. it was the first case in england and Wales (and is commonly supposed to be the first legal case anywhere) to determine a person’s sex for the purpose of marriage and to consider whether a transsexual person could consummate a marriage. As such, Corbett shaped the developing law relating to transsexualism in its own jurisdiction and in others. Despite considerable criticism, the ruling held complete sway on the issue of transsexual marriage for some 35 years in england and Wales until the implementation of the Gender

* i am grateful to the participants at the seminar that preceded this book for helpful comments, and to lesley-Anne Barnes for kindly sending me a copy of her article on gender identity and Scottish law. 1 ‘her Secret is Out – the extraordinary Case of top Model April Ashley’ Sunday People, 19 november 1961. 2 the second Baron was then the Governor of tasmania (1959–63) and formerly the Chief Scout (1945–59). 3 Ashley sold her story to the News of the World, which appeared in six parts in May to June 1962. 4 [1971] p 83.

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recognition Act 2004;5 and Corbett remains the common-law position in the absence of the applicability of the 2004 Act, now seemingly endorsed at the highest level.6 the inclusion of Corbett in this volume will thus come as no surprise to family lawyers, to whom the decision, and its importance, will be well-known. for the same reason, the informed reader may question what might be gained now by a re-reading of such a well-known decision. paradoxically, it is that very feature of a landmark decision which may provide some justification for doing so: as the landmark case is distilled to a well-known and frequently cited legal principle, the detailed context of the decision is often subsumed and easily forgotten. in this chapter i wish to revisit that possibly forgotten context of Corbett, exploring in detail the background to the case, including the backgrounds of those involved. the purpose is to move beyond merely a ‘legal analysis’, to a broader examination of the various factors which may have influenced the decision and its subsequent impact. the analysis highlights some features of the case to which attention is not often drawn. One wonders, for example, whether readers familiar with Corbett will readily recall that the case originated in a property dispute, or that April Ashley (who became one of the most celebrated transsexual persons in the world) did not claim to be a transsexual person. in addition, it is a fact, one suspects little known among english family lawyers, that Corbett was not the first case in the United Kingdom to determine the sex of a person where there were implications for the validity of an existing marriage. three years earlier, lord hunter had delivered a fully reasoned judgment in such a case in the Scottish Court of Session in In Petition of John Alexander Cumnock ForbesSempill and the Honourable Ewan Forbes-Sempill,7 a judgment which was not made public at the time and of which Ormrod J apparently remained unaware. this was despite the fact that three of the expert witnesses who appeared in Corbett had also appeared in the earlier case. Corbett proceeded on the basis that it was a case of first impression, and the chapter speculates on whether the law’s development might have been different had Ormrod J had sight of earlier authorities, including lord hunter’s judgment. the final part of the chapter explains, and reflects upon, Corbett’s influence, both domestically, and in other jurisdictions.

the relevant provisions were implemented on 4 April 2005 (Si 2005/54). Bellinger v Bellinger (Lord Chancellor intervening) [2003] UKhl 21, [2003] 2 AC 467: ‘there is much to be said for the view that the words “male” and “female” should each be given a single, clear meaning that can be applied uniformly in all cases. that was achieved by the decision in Corbett v Corbett (orse Ashley)’ per lord hope of Craighead, para [58]. 7 Judgment delivered on 29 December 1967. the judgment is available from the national Archives of Scotland, reference CS258/1991/p892 (a copy of the complete case file is in the possession of the author). 5 6

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BACKGrOUnD

April Ashley, the respondent in Corbett, was born on 29 April 19358 and registered as a boy in the name George Jamieson. in her (auto)biography, written in collaboration with Duncan fallowell,9 Ashley relates that George was born to a tough neighbourhood in liverpool and was ‘constantly taunted for being like a girl’. She describes how from an early age George felt himself to be essentially female, a feeling ‘as deep as feelings go’.10 in order to ‘confront’ these difficulties, George joined the Merchant navy and, at age 16, went to sea. his time in the navy ended following an attempted suicide by overdose. Upon his return to liverpool he was treated at the age of 17 in relation to his suicidal ideation at the Walton hospital, under the supervision of a Dr Vaillant, Consultant psychiatrist, who gave evidence at the trial. George subsequently worked in the hotel industry in london and St helier, before travelling to the South of france in 1956 where he met and joined a troupe of male female impersonators who worked at the Carousel nightclub in paris. there was evidence that, by this time, George was regularly taking oestrogen to encourage a feminine physique. While in paris, George obtained details of a surgeon who was willing to carry out gender reassignment surgery and on 11 May 1960, aged 25, George underwent what was then referred to as a ‘sex change operation’. the operation was performed by Dr Georges Burou at Clinique du parc, 13 rue lapebie, Casablanca.11 Shortly after the operation, George’s name was changed by deed poll to April Ashley, after the month of her birth and a character in the film Gone with the Wind, Ashley Wilkes. On 19 november 1960, about six months after the operation, Ashley and Corbett met at Corbett’s invitation for lunch at the Caprice restaurant in london. Corbett had a longstanding interest in transvestism, associating with people of similar tendencies. As Ormrod J explained in his judgment, Corbett became ‘more and more involved in the society of sexual deviants and interested in sexual deviations of all kinds’. in this way he became familiar with the ‘personalities’ within this community, among whom he heard of, and wished to meet, Ashley. Corbett was married12 with four children yet a relationship developed between Corbett and Ashley, based in part on Corbett’s obsession with Ashley’s gender change. he found her transformation mesmerising. As he explained at trial, the reality that Ashley had achieved in terms of her female appearance far outstripped any cross-dressing fantasy that he could have contemplated for himself, and therein lay his fascination. 8 9 10 11 12

See Corbett, above n 4, 89. Duncan fallowell and April Ashley, April Ashley’s Odyssey (london, Jonathan Cape, 1982). ibid ch 1. it was apparently the doctor’s ninth such operation. to eleanor Boyle, a cousin of the earl of Glasgow.

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Ashley obtained a passport and national insurance document indicating her sex as female, and during 1961 she worked as a successful ‘female’ model. She was also cast as one of six ‘beauties’ in a Bing Crosby/Bob hope film The Road to Hong Kong.13 When Ashley’s operation was exposed in the newspapers, Corbett and Ashley went to live in Marbella, Spain, where Corbett had bought a villa and a nightclub. Corbett and his wife divorced and he and Ashley went through a ceremony of marriage in Gibraltar on 10 September 1963. the relationship swiftly broke down, however, and in fact they lived together intermittently following the marriage for no more than 14 days. there was conflicting evidence as to what, if anything, had passed between them sexually during this time. litigation between the parties did not surface until 1965, when Ashley sought to enforce a claim to the villa. She was in difficult financial circumstances following the press disclosure, which had led to her modelling work ‘drying up’. She therefore instructed her manager’s solicitor, terry Walton,14 to make a claim on the property. Because of difficulties serving process outside the jurisdiction, Ashley’s solicitors instead issued15 an originating summons under section 22 of the Matrimonial Causes Act 1965, for maintenance. Corbett’s response to that claim gave rise to the case. he petitioned for a declaration that the ceremony of marriage was null and void and of no effect because the respondent at the time of the ceremony was not a woman.16 Alternatively, he petitioned that the ‘marriage’ was never consummated owing to the incapacity or wilful refusal of the respondent. the respondent denied being male and cross-prayed for a decree of nullity on the ground of the petitioner’s incapacity or wilful refusal. She also pleaded that the petitioner was estopped from alleging the marriage was void or that the court should not exercise its discretion in the circumstances. As can be seen from this brief outline of the background, several factors conspired to make Corbett a less than ideal case in which to seek to have recognised in law a person’s post-operative sex. recognition for the purpose of marriage was the most controversial context. Moreover, this was not a case of a committed couple in a longstanding relationship who were jointly interested in establishing the existence of their marriage per se, which might naturally have attracted some sympathy. By sharp contrast, the Corbetts’ ‘strange relationship’ (as Ormrod J described it) was unusual and atypical of the marital relationships with which the judge was familiar;17 the purported marriage was of very short Ashley’s name was removed from the film’s credits when she was exposed by the press. Walton subsequently wrote some articles on transsexualism and the law in the New Law Journal: see t Walton, ‘When is a Woman not a Woman?’ 30 May 1974, ‘Why Can’t a Woman’ 26 October 1984; ‘A Measure of Appreciation’ 4 September 1992; Cn Armstrong and t Walton, ‘transsexuals and the law’ 5 October 1990; ‘transsexual Metamorphoses’ 24 January 1990; ‘transsexuals: the goals in sight’ 8 December 1995. 15 On 16 february 1966. 16 Originally the petition had stated that the respondent was ‘a person of the male sex’ but Ormrod J identified that it was more correct to use the words ‘not a woman’. 17 Corbett, above n 4, 93D–e. 13 14

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duration; and the case originated in a property dispute as an adjunct to which the parties were disputing the validity of the marriage ceremony. While these factors were not necessarily material to the judge’s decision, they had potential indirectly to colour the outcome.18 Ormrod J’s description of the whole story as ‘essentially pathetic, but almost incredible’ certainly did not bode well19 for the prospects of legal recognition of the marriage. A DiStinGUiSheD CASt

the case was heard over 17 days in november and December 1969 and judgment was delivered on 2 february 1970. there assembled an impressive cast of distinguished legal and medical professionals to assist in determining the issues. Counsel and Their Arguments20 Ashley’s leading counsel was James p Comyn QC (later Comyn J) 21 assisted by leonard lewis QC, who had only recently been appointed Queen’s Counsel. Comyn, an established common-law all-rounder22 and feared advocate, apparently known for his ‘natural sympathy for the underdog’,23 seemed well suited to his client’s cause. he had some experience on the issue of consummation in cases of surgical intervention, having successfully argued for the wife in SY v SY (orse W).24 in that case it was held that a wife who required surgery to enlarge her vagina to permit normal intercourse could consummate a marriage. the case contained obiter comments that an individual born without a vagina could be rendered capable of consummating by construction of an artificial one. Counsel placed strong reliance on that authority, arguing that Ashley’s surgery did not prevent consummation. Counsel’s principal argument, however, was that the medical evidence established ‘that the respondent was a case of inter-sex at the time of the operation and so was properly operated on’ and thus had properly ‘been allocated the female sex’. the evidence advanced on Ashley’s behalf went beyond the view that transsexualism is a form of intersex disorder, to suggest that Ashley was a case of 18 Ashley’s perception was that there was also a class element to the proceedings which favoured Corbett, in the sense that he, the judge and the barristers were of similar social backgrounds which Ashley did not share. 19 Corbett, above n 4, 92. 20 the arguments are summarised in Corbett, above n 4, 85 ff. 21 educated at new College Oxford, Comyn was president of the Oxford Union in 1940, beating roy Jenkins (later lord Jenkins) to the post. he was a high Court judge between 1978 and 1985. See his obituary in The Independent, 7 January 1997 by Michael O’toole. 22 Described by Jeremy Gompertz in his obituary of Sir Michael eastham as one of ‘the last of the great all-round common law silks’, The Independent, 13 March 1993. 23 O’toole, above n 21. 24 [1963] p 37, CA.

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intersex in the sense of having a developmental difference in the form of Klinefelter’s syndrome. it is a disorder in which a degree of feminisation takes place about the time of puberty in hitherto apparently normal males, the signs of which are atrophied testicles, some spontaneous development of the breast, a female pattern of pubic hair and very little facial hair. thus a rather intriguing feature of Corbett is that the principal argument put by counsel for the respondent (presumably acting on client’s instructions) was that April Ashley (who was to become one of the world’s most celebrated transsexual persons) was an intersexual, not a transsexual, person. Counsel also argued that Ashley should be classed as a woman for the purpose of marriage as she had been so classed for other legal purposes, including national insurance. furthermore, the petitioner, who had freely entered into the marriage with full knowledge of the relevant facts, should be treated as being estopped by his conduct from seeking annulment.25 Corbett’s leading counsel was the legendary family lawyer, Joseph Jackson QC, who appeared with his junior, J C J tatham. Jackson’s expertise in matrimonial law26 is evident in the focus of the petitioner’s arguments, which was essentially that same-sex marriage is not, and should not, be recognised. Counsel argued that marriage is the union of a man and a woman,27 there being nothing matrimonial about a ceremony between two men. Counsel further argued that in the ordinary case where biological criteria of sex all point the same way, sex should be determined at birth by reference to those criteria. Counsel averred that on the facts Ashley was a castrated male and the purported marriage ceremony was merely ‘a simulation of marriage falling short even of a void marriage’. Counsel submitted that Corbett and Ashley ‘could never marry under any system of law’ and this ‘country should refuse to recognise any purported marriage of two men on the ground of public policy’. Ashley’s counsel did not seek to counter-argue for the recognition of same-sex marriage, although this is not at all surprising for a case at this time. On the issue of consummation, Corbett’s counsel distinguished SY v SY (orse W) on the basis that it was ‘not a case of a woman with a rudimentary vagina where the passage can be enlarged so as to permit full penetration’. finally, counsel pointed out that the defect in the estoppel point was that it was based on the validity of the marriage, with which the petitioner took issue: as counsel put it, ‘knowledge cannot estop a man into being considered a woman’.

25 Seeking to distinguish Hayward v Hayward (orse Prestwood) [1961] p 152 from the present case, relying on observations of lord Merriman p in Bullock v Bullock [1960] 1 Wlr 975, 979. 26 he was the co-author of the major practitioner work, Rayden and Jackson on Divorce and Family Matters (now in its 18th edn and published by lexisnexis/Butterworths). 27 Citing Talbot (orse Poyntz) v Talbot (1967) 111 SJ 213 for the view that the test is not subjective and the so-called classic definition of marriage by lord penzance in Hyde v Hyde (1866) lr 1 p & D 130, 133; Lindo v Belisario (1795) 1 hag Con 216, 230. See, however, for the view that Hyde was a defence rather than a definition: r probert, ‘Hyde v Hyde: defining or defending marriage?’ (2007) 19 Child and Family Law Quarterly 322.

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The Medically Qualified Judge Ormrod J,28 who had read both jurisprudence and medicine at Queen’s College Oxford, was ideally dually qualified to hear the complex medical evidence given by nine eminent doctors in the case. Ormrod had qualified at the Bar in 1936 29 before returning to Oxford at the outbreak of World War ii to complete medical training, serving as house physician at the radcliffe hospital and subsequently in the royal Army Medical Corps. After the war, he returned to legal practice, taking silk in 1958, before swift elevation to the high Court bench in 1961. he was promoted to the Court of Appeal in 1974 where, until his retirement in 1982, he regularly presided in appeals from the family Division, exerting considerable influence over the development of family law during this period. he was certainly unique in being both a lord Justice of Appeal and a fellow of the royal College of physicians.30 neither of these elements of his lordship’s background should be overlooked when thinking about the content and influence of Corbett. Most obviously, his medical background is likely to have influenced the perspective with which he addressed the case: there is certainly a strong biological and anatomical focus in the judgment. in addition, Ormrod J’s medical expertise arguably gives the judgment a sense of medical, as well as legal, authority in a complex field where other judges might fear to tread differently. When combined with Ormrod lJ’s subsequent eminence in the field of family law, these features of the case may explain how Corbett acquired a de facto precedent status punching well above its actual weight, and in part why a first-instance decision, which was not strictly binding on any court which later considered it, has achieved such longevity and influence. The Medical Evidence the facts: A partial picture Ormrod J commented that the ‘quality of the medical evidence on both sides was quite outstanding, not only in the lucidity of its exposition, but also in its intellectual and scientific objectivity’.31 it was provided by practitioners, many of whom were, or were to become, some of the most distinguished in their respective fields. Despite the quality of the expert testimony, however, a striking feature of the Corbett case is that the outcome hinged rather on the poor quality, or 28 Sir roger fray Greenwood Ormrod, pC (20 October 1911–6 January 1992). the account of Ormrod’s background draws on the following: his obituary in The Times, 9 January 1992; and r Dunn, ‘Ormrod, Sir roger fray Greenwood (1911–1992)’ Oxford Dictionary of National Biography (Oxford, Oxford University press, 2004). 29 Completing pupillage with edward pearce, later lord pearce of Sweethaws. 30 he was elected frCp in 1969, and also frCpsych (hon) in 1975. 31 Corbett, above n 4, 89.

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unavailability, of some of the evidence going to the facts. the case was beset with difficulties establishing the facts surrounding the pre-operative state of Ashley’s body. Ashley was physically examined by two medical inspectors at Guys hospital, Mr leslie Williams and Miss (later Dame) Josephine Barnes.32 the inspectors found: the absence of a uterus, ovaries or testicles, and the presence of welldeveloped breasts with nipples of masculine type, an ample sized, skin-covered, moist vagina with normally placed urethral orifice and no impediment to sexual intercourse.33 the report recommended obtaining information from Dr Burou on what exactly was done at the operation and also an investigation into Ashley’s chromosomal sex. the suggested chromosomal test was carried out by professor f hayhoe of Cambridge University,34 who reported that the cells he examined were of the male type.35 however, Dr Burou refused to supply any information or to answer letters addressed to him by the respondent’s solicitors. Ashley’s time at the clinic is described in detail in her book April Ashley’s Odyssey.36 there she recounts that she asked Dr Burou not to photograph her prior to the operation. it is possible that Burou took from this that Ashley wished to leave any evidence of her pre-operative state firmly in the past. Whatever the reason for Dr Burou’s failure to respond, the absence of photographic evidence, and of Burou’s testimony, proved material in that there was no evidence of the pre-operative state of George’s genitals. there was nothing therefore to support the view (as pleaded in Ashley’s case) that the operation was for the removal of a vestigial (as opposed to a normal) penis, nor to show that George had atrophied testicles, which might support a diagnosis of Klinefelter’s syndrome. Ashley herself was unable to provide any supporting evidence. in evidence in chief, she said that she thought that when she was in the Merchant navy she had a penis, and had testicles, although she did not have any idea of the size of the genitals. She refused to answer questions about whether she had had erections and ejaculated, and wept when so questioned.37 Ormrod J acknowledged, as far as Ashley’s credibility was concerned, ‘that persons who suffer from these intense desires to belong to the opposite sex often exhibit a profound emotional reaction when asked about the genitalia which they so much dislike’.38 32 the celebrated obstetrician and gynaecologist, and first woman president of the British Medical Association. See M Blythe, ‘Barnes, Dame (Alice) Josephine Mary taylor (1912–1999)’ Oxford Dictionary of National Biography (Oxford, Oxford University press, Sept 2004; online edn, Jan 2008 (accessed 6 April 2010)). 33 See the medical reports set out in Corbett, above n 4, 96–97. 34 Although the law report ([1971] p 83, 97) gives the expert’s name as professor ftG hayhoe, it seems likely that this was actually professor frank GJ hayhoe, who became head of haematology at Cambridge University and was Vice-Master of Darwin College, Cambridge: see ‘tribute: professor frank hayhoe, March 28 2009’ (2010) 12 The Darwinian, at 12. 35 Corbett, above n 4, 97. 36 fallowell and Ashley, above n 9, ch 5. 37 Corbett, above n 4, 91. 38 ibid.

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there were further evidential difficulties. it will be recalled that Jamieson had been treated at the Walton hospital, liverpool, under the care of Dr Vaillant, Consultant psychiatrist. Dr Vaillant gave evidence at trial and produced the relevant hospital records which showed that the respondent had been physically examined by one of his assistants. no abnormality had been observed other than that Jamieson had presented a ‘womanish appearance’ and had ‘little bodily and facial hair.’ the doctor’s report to Jamieson’s general practitioner stated: ‘On examination, apart from his womanish appearance, there was no abnormal finding.’ this might imply that the womanish appearance represented an abnormality. the inability to trace the junior doctor concerned and the absence of detail in the available medical records, however, meant that there was no further evidence as to the nature, extent, or findings of the psychiatrist’s physical examination. interestingly, Ashley could have given direct evidence at least of the extent of the examination, although there is no indication in the law report that she was asked to do so. furthermore, Ormrod J held that little significance could be given in a forensic context to two chemical tests of the respondent’s urine to assess hormonal balance39 and to a psychological test,40 because the tests were not administered under supervised conditions. there was no suggestion that the tests should be repeated in such a way in order to ensure the best evidence was before the court. the experts’ Opinions three medical experts on each side were called. professor C J Dewhurst, professor of Obstetrics and Gynaecology at the royal postgraduate Medical School, london University (later Sir Jack Dewhurst, one of the leading obstetricians and gynaecologists of his generation and president of the royal College of Obstetricians and Gynaecologists)41 appeared for the petitioner. he had a particular interest in intersexual disorders and adolescent gynaecology, and was co-author of a book entitled The intersexual disorders.42 Dr J B randell, a Consultant psychiatrist at Charing Cross hospital with a special interest in transsexualism, was also called for Corbett. he and professor Dewhurst had been working together in a team, with a plastic surgeon, studying the treatment of transsexuals through surgery.43 the petitioner also relied on the evidence 39 One of the tests was an estimation of the 17 ketosteroids in a sample of urine collected over a 24-hour period. this was done on two occasions with different results and neither sample was collected under supervised conditions. 40 the turner-Miles test, a questionnaire which is completed by the patient. 41 1975–78. he was knighted for his services to the royal College. See ‘Sir Jack Dewhurst’ obituary, The Telegraph, 28 March 2007. 42 CJ Dewhurst and rr Gordon, The intersexual disorders (london, Bailliere, tindall and Cassell, 1969). he was the author of several leading textbooks, eg, Practical, Paediatric and Adolescent Gynaecology and Dewhurst’s Textbook of Obstetrics and Gynaecology for Postgraduates. he was also interested in medical history, writing Royal Confinements: a Gynaecological history of Britain’s Royal Family (littlehampton Book Services, 1980): see his obituary, above n 41. 43 Corbett, above n 4, 97.

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of professor Dent, professor of human Metabolism at University College hospital.44 the respondent also called an expert in intersexual disorders, Dr C n Armstrong, Consultant physician at newcastle royal infirmary,45 who was the co-editor of a book entitled Intersexuality in vertebrates including man.46 One of Armstrong’s colleagues, professor Martin roth (later Sir Martin), professor of psychiatry in the University of newcastle-upon-tyne, who arguably became the most distinguished psychiatrist of his generation, also appeared. 47 A third expert called by Ashley was professor ivor Mills, professor of Medicine at Cambridge University, an endocrinologist who pioneered the study of hormonal influences on behaviour and the mind.48 Ormrod J commented that ‘there was a very large measure of agreement between [the experts] on the present state of scientific knowledge on all relevant topics’.49 All accepted four relevant factors: (i) chromosomal factors; (ii) gonadal factors (i.e., presence or absence of testes or ovaries); (iii) genital factors (including internal sex organs); and (iv) psychological factors. Some of the witnesses would have added: (v) hormonal factors or secondary sexual characteristics (such as distribution of hair, breast development, physique etc., which are thought to reflect the balance between the male and female sex hormones in the body).50

however, the experts ‘differed in the inferences and conclusions which they drew from the application of this knowledge to the facts’.51 they agreed that cases in which there were discrepancies between the first three factors are correctly classified as cases of intersex. there was a disagreement, however, as to 44 A fellow of the royal Society. there is a chair at University College london in his honour: the Charles Dent Chair in Medicine. 45 for an account of Dr Armstrong’s career, see Cn Armstrong, ‘My 70 years in medicine in northumbria’ (1989) 82 Journal of the Royal Society of Medicine 103. 46 Cn Armstrong and AJ Marshall (eds), Intersexuality in vertebrates including man (london, Academic press, 1964). Armstrong contributed a chapter entitled ‘intersexuality in man’, 349. 47 roth, who was subsequently appointed professor of psychiatry at Cambridge University and served as president of the royal College of psychiatrists, was one of only three psychiatrists to be awarded a fellowship of the royal Society, one of the others being Sigmund freud. A proponent of a scientific understanding of mental illness founded on research, he was a fierce opponent of the anti-psychiatry movement’s view (eg, in the works of thomas Szasz and ivan illich) of mental illness as a social construct and psychiatry as a bogus enterprise. roth distinguished himself particularly in old-age psychiatry, establishing geriatric psychiatry as a specialty and elucidating ‘important distinctions between cerebrovascular dementia caused by strokes and Alzheimer’s disease proper’ (see CM Wischik, ‘professor Sir Martin roth’ obituary, The Independent, 19 October 2006. See also, obituary, The Telegraph, 13 October 2006; ‘Sir Martin roth: psychiatrist whose research broke new ground in the understanding of dementia and anxiety’ obituary, The Guardian, 27 October 2006; ‘professor Sir Martin roth: Distinguished psychiatrist whose many significant achievements included elucidating the aetiology of Alzheimer’s disease’ obituary, The Times, 24 October 2006. 48 royal College of physicians Munk’s roll Details for ivor henry Mills (13 June 1921–14 December 2005) (www.munksroll.rcplondon.ac.uk/Biography/Details/5514 (accessed 6 April 2010). 49 Corbett, above n 4, 89. 50 ibid 100. 51 ibid 89.

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the categorisation of cases in which those three factors are congruent but psychological or hormonal factors are ‘abnormal’. Dr randell and professor Dewhurst commented that they would not give weight to psychological factors if biological factors were congruent. Dr Armstrong and professor roth took the view that transsexualism was a form of intersexualism. professor Mills, as an endocrinologist, opined that those in whom the balance between male and female hormones is abnormal should be regarded as cases of intersex. professor Mills concluded that there was evidence that Ashley had some hormonal imbalance so that the process of androgenisation at and after puberty did not proceed in the normal way, and that she was probably a case of Klinefelter’s syndrome which, while commonly of the XXy chromosome type, sometimes occurs in persons with Xy chromosomes. By contrast, professor Dent suggested that Ashley was a transsexual with some evidence of delayed puberty. finDinGS Of fACt

in Ormrod J’s view, Ashley’s history accorded closely with that of a transsexual person, possibly with some abnormal puberty, but his lordship concluded that Klinefelter’s syndrome had not been established. that diagnosis was rejected because there was no evidence that Ashley had atrophied testicles. in addition, his lordship was not willing to accept Ashley’s evidence that she had spontaneously developed breasts. this was because of her admission to professor roth that she had commenced taking oestrogen at age 18. When taken together with the possibility that she had had a delayed puberty this could not be excluded as a reason for Ashley’s womanish appearance. in her book, April Ashley’s Odyssey, however, Ashley describes that when George first joined the navy he had a ‘phobia’ on board ship about undressing in front of others and anyone seeing his chest, which apparently had a pulpiness around the nipples, which she described as ‘rudimentary breasts’.52 it is interesting, and possibly significant, that this description of budded breasts (a feature of Klinefelter’s syndrome) relates to a period prior to the time as established in Corbett that Ashley began taking oestrogen, and is consistent with her testimony that breast development was spontaneous. Could it be, therefore, that the most well-known ‘transsexual case’ really was brought by an intersexual person, as Ashley herself argued through her counsel, and that it was the ruling in Corbett itself that established Ashley as the celebrated transsexual person she became? Ormrod J’s conclusion on the facts was that Ashley had been ‘shown to have Xy chromosomes and, therefore, to be of male chromosomal sex; to have had testicles prior to the operation and, therefore, to be of male gonadal sex; to have had male external genitalia without any evidence of internal or external female sex organs and, therefore, to be of male genital sex; and psychologically to be a 52

fallowell and Ashley, above n 9, ch 2.

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transsexual.’53 his lordship observed that Ashley was living and passing as a woman, more or less successfully, and her post-operative condition looked more like a female than a male. however, that was only to say that ‘the pastiche of femininity was convincing’.54 reASOninG On the lAW

Counsel for the respondent had conceded that there were formidable difficulties in the way of his argument on the issue of estoppel by conduct, and Ormrod J was content to follow Hayward v Hayward (orse Prestwood),55 which held that the doctrine was not applicable in proceedings for a declaration that a marriage is void. the case therefore resolved into two principal issues, Ashley’s sex and the question of consummation. Ormrod J began his examination of legal principle by making clear that sex is ‘an essential determinant of the relationship called marriage’56 and that he was determining Ashley’s ‘legal sex’ in the context of marriage, not at large. 57 this, it seems, was the nub of the case as Ormrod J saw it. nearly 20 years later, in correspondence with an Australian academic, Dr henry finlay, who was the co-author of a book entitled Sex Change,58 Ormrod wrote: 2. the real issue in Corbett was the meaning of the word ‘marriage’. it is agreed that it means the formal union of a man and a woman. the only question, therefore, was one of construction! Giving the word ‘woman’ its natural and ordinary meaning, could April Ashley be described as a woman? the answer must be no! 3. there is nothing to stop our legislature from enacting that the homosexual can ‘marry’, but they have not yet done so.59

his lordship concluded in Corbett that: having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must . . . be biological, for even the most extreme degree of transsexualism . . . cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. in other words, the law should adopt in the first place, the first three of the doctors’ criteria, ie the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.60 Corbett, above n 4, 104. ibid. 55 [1961] p 152. 56 Corbett, above n 4, 105. 57 ibid 106. 58 hA finlay and WAW Walters, Sex Change – Medical and Legal Aspects of Sex Reassignment (Victoria, AU, hA finlay, 1988). finlay had sent Sir roger a copy of the manuscript of the book, which is what prompted the correspondence. 59 See Dr henry finlay, ‘Corbett to Kevin: legal recognition of transsexualism in england and Australia’, paper presented to the Society of legal Scholars conference in Oxford, 2003. Copy of the paper with author. 60 Corbett, above n 4, 106C–e. 53 54

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thus the respondent’s operation could not affect her true sex, the respondent was male, and ‘her’ marriage to the petitioner was void ab initio. that conclusion rendered obiter any statements on the issue of incapacity or wilful refusal to consummate the marriage. his lordship found on the facts that the respondent was wilfully refusing. in any event, distinguishing SY v SY, he would if necessary have held that consummation with an artificial vagina was not possible, commenting: i do not think that sexual intercourse, using the completely artificial cavity constructed by Dr. Burou, can possibly be described in the words of Dr. lushington in D-e v. A-g (falsely calling herself D--e) (1845) rob.ecc. 279, 298, 299 as ‘ordinary and complete intercourse’ or as ‘vera copula – of the natural sort of coitus.’ in my judgment, it is the reverse of ordinary, and in no sense natural. When such a cavity has been constructed in a male, the difference between sexual intercourse using it and anal or intra-crural intercourse is, in my judgment, to be measured in centimetres.61

it is debatable whether these obiter comments would now be followed after enactment of the Gender recognition Act 2004, which now makes possible a valid marriage between a man and a male-to-female transsexual person.62 A further subsidiary issue arose as to the proper form of the recording of Ormrod J’s findings. Counsel for the petitioner sought a declaration, but the respondent’s counsel argued that if Ormrod J found against the respondent on the validity of the marriage, his lordship should grant a decree of nullity. the importance of the distinction is that a claim for financial relief can be made ancillary to a decree of nullity whereas there is no such power in the case of a declaration. Applying Kassim (orse Widmann) v Kasim (orse Kassim) 63 Ormrod J held that the court granting a decree of nullity is exercising a statutory jurisdiction transferred from the ecclesiastical courts by the Matrimonial Causes Act 1857. the question was therefore whether the ecclesiastical courts would have entertained such a decree. in the absence of direct authority, Ormrod J was not willing to find that they would not have done so, as they had granted sentences in cases of meretricious marriages.64 there was also no discretion to withhold such a decree.65 Accordingly, Ormrod J granted a decree of nullity. perhaps the greatest irony of the case therefore is that the petitioner, in seeking a declaration to render the marriage void in order to resist a claim for maintenance within marriage, rendered the marriage void by decree of nullity, on which the court could entertain an application for ancillary relief.

ibid 107. for discussion, see r probert, ‘how would Corbett v Corbett be decided today?’ [2005] Family Law 382. 63 [1962] p 224. 64 eg, Elliott v Gurr (1812) 2 phillim 16. 65 Citing Hayes (falsely called Watts) v Watts (1819) 3 phillim 43; Bruce v Burke (1825) 2 Add 471 and Bateman v Bateman (orse Harrison) (1898) 78 lt 472. 61 62

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A CASe Of firSt iMpreSSiOn?

Ormrod J regarded the issue of determining the sex of an individual as one of first impression, commenting that there was no authority in english law ‘directly in point’.66 in fact no authority whatsoever on determining a person’s sex was cited to the court. research might, however, have thrown up some authorities in other jurisdictions. for example, in 1945 a Swiss Cantonal Court in In re Leber 67 recognised the post-operative sex of a male-to-female transsexual person, specifically declining to rule that she should not be permitted to marry in her acquired sex. the court attributed to the psychological element in Ms leber’s make-up a significance at least as important as her physical element, and concluded that when combining the two her status should be that of a woman. perhaps this authority might have given Ormrod J pause for thought concerning his rejection of the relevance of psychological factors. By contrast, and somewhat closer to england and Wales, in Scotland in X Ptr68 in 1957, the tayside Sheriff Court declined the petition of a male-to-female transsexual person to be re-registered as a female. the court commented that the petitioner’s changes ‘have not yet reached the deepest level of sex-determination’. As lesley-Anne Barnes observes, while the petition was declined, this statement may suggest that a person might undergo changes affecting the deepest level of sex determination.69 the judgment is brief, however, and provides little further indication of the judge’s reasoning. perhaps of greater interest to Ormrod J would have been the fully reasoned opinion in 1967 of lord hunter in the Scottish Court of Session Outer house in In Petition of John Alexander Cumnock Forbes-Sempill and the Honourable Ewan Forbes-Sempill 70 (hereafter Forbes-Sempill). this concerned a dispute over succession to the Baronetcy of forbes of Craigievar (a nova Scotia Baronetcy), which descended within the forbes-Sempill family to heirs male. ewan forbes-Sempill had been registered at birth and brought up as elizabeth forbes-Sempill, the youngest daughter of the eighteenth lord Sempill. elizabeth qualified as a doctor Corbett, above n 4, 105. requete de A.-l. leber, (1945) 8 recueil De Jugements Du tribunal Cantonal De la republique et Canton De neuchâtel 536. A translation of the judgment appears in e Savitsch, Homosexuality, Transvestism and Change of Sex (london, heinemann, 1958) 96–107. the case was cited by DK Smith, ‘transsexualism, Sex reassignment Surgery, and the law’ (1971) 56 Cornell Law Review 963, which appeared shortly after Corbett and which seems to indicate that the case might have been located by a common lawyer. the case is also cited somewhat later by D Douglas Cotton, ‘note, Ulane v Eastern Airlines: title Vii and transsexualism’ (1986) 80 Northwestern University Law Review 1037. 68 1957 Slt (Sh Ct) 61, cited in l-A Barnes, ‘Gender identity and Scottish law: the legal response to transsexuality’ (2007) 11 Edinburgh Law Review 162, 169. 69 Barnes, above n 68, 169–70. 70 Judgment 29 December 1967, national Archives of Scotland, reference CS258/1991/p892. for a useful account of the background to this case, see the obituary of Sir ewan forbes of Craigievar, Bt, Daily Telegraph, 1 October 1991, 19, and Z-J playdon, ‘the Case of ewan forbes’, published at www.pfc.org.uk/legal/the-case-of-ewan-forbes. 66 67

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and worked as a general practitioner. Although she had had a life-long feeling of not fitting the female sex, she was almost 40 years old before taking steps to address the problem formally. Upon presentation of medical evidence, she obtained a warrant from the Sheriff of Aberdeen to correct her entry in the birth register to the first name ‘ewan’ and the sex male. thereafter, ewan forbes-Sempill announced in the advertisement columns of the highlands newspaper The Press and Journal on 12 September 1952 that henceforth Dr forbes-Sempill wished to be known as Dr ewan forbes-Sempill. Shortly thereafter Dr forbes-Sempill married his housekeeper, isabella Mitchell.71 Upon the death of the nineteenth Baron Sempill, ewan forbes-Sempill apparently was the male heir entitled to the Baronetcy.72 his succession was challenged, however, by his cousin, John forbesSempill, on the basis that ewan was not male. the Secretary of State for the home Department had indicated that in the circumstances he would not be prepared to enter ewan forbes-Sempill’s name on the register of the Baronetage unless the court found that ewan was lord Sempill’s heir male. the case thus came before the court on a petition for summary trial73 to determine that question. the parties were agreed that the trial should take place in chambers and it seems that great steps were taken to ensure that the proceedings remained private. Zoe-Jane playdon’s investigation of the circumstances surrounding the case suggests that, although the lodging of the petition was recorded, there were no publicly available minutes of the subsequent stages of proceedings as recorded by the Court of Session, the evidence was taken at a solicitor’s office and court officials were ordered to maintain the strictest secrecy.74 lord hunter took the view that since the outcome of his judgment did not affect anyone’s status it should not be reported. the case was therefore never put in the public domain at the time and it seems that Ormrod J remained unaware of it. this was despite the fact that three of the experts in Corbett, namely professor roth, professor Dewhurst, and Dr Armstrong gave expert evidence in the case. in 1989, in an account of his long career in medicine, Dr Armstrong revealed that: ‘in 1967 i was a witness in a very important case to determine legally in court the sex of a person in regard to a title’ and gave some indication of why the case was apparently never mentioned by the experts, adding in parenthesis ‘i am not allowed to disclose the name as the case was held in camera’.75

71 On 10 October 1952. See Daily Telegraph obituary ‘isabella, lady forbes’ at www.telegraph. co.uk/news/obituaries/1386476/isabella-lady-forbes.html, describing her marriage as follows: ‘an odd couple, ill-matched socially and in background, and she standing a foot taller than he. yet theirs remained a love match and they doted on each other throughout a marriage that lasted for nearly four decades.’ 72 the Barony passed to the nineteenth Baron’s eldest daughter. 73 pursuant to Administration of Justice (Scotland) Act 1933, s 10 and rule 231 of the rules of Court. 74 Z-J playdon, ‘the Case of ewan forbes’, available at www.pfc.org.uk/legal/the-case-of-ewanforbes. 75 Armstrong, above n 45, 105.

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ewan forbes-Sempill’s case was put on the basis that he was a true hermaphrodite with predominant male characteristics.76 in the absence of Scottish authority, lord hunter did not hesitate to accept guidance from the Civil law and civilian writers of authority cited by counsel.77 those authorities suggested that ‘a hermaphrodite should be assigned to one sex or the other according to the sexual characteristics which are found in that person to prevail or predominate’.78 his lordship also found some evidence in the authorities that the Civil law took into account ‘considerations in addition to those of external appearance’.79 in his lordship’s opinion the broad principles of the Civil law appeared to be ‘sound and to accord with common sense and with the requirements of modern society’. he rejected the idea that hermaphrodites could be placed into a third category, commenting that, while sex is a spectrum, the law which is concerned in a practical way with the sexual role of the individual in society must draw a firm line.80 in a case where one sex did not predominate, it would be necessary to rely upon the burden of proof. his lordship rejected the idea of a person in such a case making a binding election towards one sex or the other. in saying that, however, lord hunter indicated that he was: not to be taken as saying that the psychological attitude and orientation of the person concerned cannot be adminicle of evidence pointing towards a solution of the question of sexual predominance.81

having examined the law, lord hunter turned to the facts and concluded that ewan forbes-Sempill was a true hermaphrodite in whom male sexual characteristics predominated.82 his chromosomal sex was of the XX female type but this was viewed by lord hunter as the ‘least valuable of the available criteria’ when dealing with legal identification of sex in an adult. the other criteria pointed to the male sex predominating. forbes-Sempill’s gonadal sex was ambiguous but the presence of testicular tissue had been established. his lordship found that by appearance the genitalia were female but by function predominantly male. forbes-Sempill was able to function mechanically as a male and have sexual intercourse with his wife to their mutual satisfaction. in terms of physical capacities and stamina, forbes-Sempill’s male characteristics predominated. his lordship also found overwhelming evidence that forbes-Sempill was psychologically male. On this criterion, lord hunter commented: Judgment 29 December 1967, 6. ibid 12. 78 ibid 14. it is a view shared by Coke. See e Coke, Institutes (1st US edn 1812) (16th european edn 1812): ‘[a]n hermaphrodite may purchase [land] according to the sexe which prevaileth.’ at 3.a. (cited by Cotton, above n 67, fn 159.) 79 Judgment 29 December 1967, 10. 80 for debates surrounding a ‘third sex’ and sex as a continuum in the context of a discussion of intersexuals, see p-l Chau and J herring, ‘Men, women and people: the definition of sex’ in B Brooks-Gordon, l Gelsthorpe, M Johnson and A Bainham (eds), Sexuality Repositioned: Diversity and the Law (Oxford, hart publishing, 2004). 81 Judgment 29 December 1967, 17. 82 ibid 29. 76 77

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i am far from saying, to take an example, that a finding that the psychological sex of an individual was male would ever justify a conclusion that a person was legally a male although the physical sex of that person was clearly female, but, in a case where a person can function sexually as a male to the extent which the Second petitioner is able to do, and where there can be found in that person’s body male gonadal tissue from which masculine attitudes, behaviour and desires, both sexual and otherwise, as well as masculine physical characteristics, may reasonably be assumed to have emanated, directly or indirectly, the fact that the psychological sex is male is in my opinion an adminicle of evidence of some importance.83

it is hard not to speculate whether Ormrod J might have judged Corbett differently had he had sight of lord hunter’s judgment. Forbes-Sempill was clearly different from Corbett in that it dealt with an intersexual not a transsexual person (as Ormrod J had found), a distinction which lord hunter clearly had in mind in the above passage. however, ewan forbes-Sempill had lived as a woman for nearly 40 years before marrying as a male. One wonders whether that fact and the outcome in Forbes-Sempill, combined with lord hunter’s downplaying of chromosomal sex, his acknowledgement of the role of psychological factors, and some of the other factors highlighted in the passage above, would have led Ormrod J to conclude that April Ashley was a woman. Might he have done so on the basis that she was psychologically female, was living and functioning sexually as a female, and that some abnormality around puberty could not be discounted? CORBETT’S inflUenCe

International Impact Corbett’s influence was first felt in other common-law jurisdictions. this is perhaps not surprising since cases involving transsexual persons are relatively rare and the Corbett case had already established a precedent in england and Wales. Although not binding, it would naturally be expected to have a conservative impact on the domestic case law and on cases coming to court. the impact of Corbett in other jurisdictions was more variable. it was endorsed in several early cases, yet rejected in others, although even in the latter it was a springboard for movement in a new direction in which Corbett arguably sometimes exerted a steering influence. it should be borne in mind, however, in the discussion which follows that in many jurisdictions the common-law position has now been overtaken by statutory reform. Corbett was cited in South Africa in W v W84 by nestadt J who, finding marriage between a man and a post-operative male-to-female transsexual person invalid, commented: ibid 28. W v W (1976) (2) SAlr 308. for criticism, see Ml lupton, ‘the Validity of post-operative transsexual Marriage’ (1976) 93 South African Law Journal 385. 83 84

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the case was similarly endorsed in early case law in Canada, 86 and in obiter comments in new Zealand.87 Similarly, several US courts have held that, for the purpose of marriage, a person’s sex is biologically determined at birth and that, if transsexual marriage is to be recognised, it is a matter for the relevant legislature expressly to make clear.88 While Corbett has sometimes been cited as an example of that view, the cases have turned on the ordinary meaning to be given to the words ‘man’ and ‘woman’ or ‘male’ and ‘female’ as used in relevant marriage statutes. in MT v JT,89 however, the Appellate Division of the Superior Court of new Jersey expressly rejected Corbett. the court upheld the validity of a marriage between a man and a post-operative male-to-female transsexual person, holding that ‘a person’s sex or sexuality embraces an individual’s gender’ and that the ‘dual tests of anatomy and gender are more significant’.90 the court concluded that: ‘if the anatomical or genital features of a genuine transsexual are made to conform to a person’s gender, psyche, or psychological sex, then identity by sex must be governed by the congruence of these standards’.91 Similarly in later case law in new Zealand, M v M,92 the family Court rejected Corbett,93 upholding the validity of a marriage celebrated in 1977 between a male and a post-operative male-to-female transsexual person, commenting that: [t]he evidence may lead to a finding that the cumulative effect of the changes that have occurred is to have brought about a change of sex in a real sense, albeit that the chromosomal structure is perforce unchanged and the sexual organs are the work of a man and not of any deity. 94 W v W, above n 84, 314e–f. there is now legislation in South Africa. M v M (A) (1984) 42 rfl (2d) 267. 87 Re T [1975] 2 nZlr 449, McMullin J. 88 In re Ladrach 513 ne 2d 828 (1987), Ohio probate Court; Littleton v Prange 9 SW 3d 223 (1999) Court of Appeals of texas, fourth District, San Antonio, cert denied 531 US 872; In the Matter of the Estate of Marshall G. Gardiner, Deceased 42 p3d 120 (2002), Supreme Court of Kansas; Kantaras v Kantaras 884 So. 2d 155, Court of Appeal of florida, Second District (2004). 89 (1976) 335 A 2d 204. 90 ibid per Judge handler, 209. 91 ibid. 92 [1991] nZflr 337 (family Court, Otahuhu, Judge Aubin). for comment, see r Mackenzie, ‘transsexuals’ legal Status and Same Sex Marriage in new Zealand: M v M’ (1992) 7 Otago Law Review 556. 93 M v M, above n 92, 348. 94 ibid. the court had been persuaded by a criticism of Corbett’s reasoning in an Australian criminal case, R v Harris and McGuiness (1988) 17 nSWlr 158, in which the new South Wales Court of Criminal Appeal held that a post-operative transsexual person was female for the purposes of the criminal offence of attempting to procure the commission by a male of an act of indecency with another male in the Crimes Act 1900 (nSW), s 81A. in so holding, the court drew a clear distinction between the criminal law and the law of marriage, acknowledging that the latter may 85 86

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the judgment in M v M prompted the new Zealand Attorney-General’s application to the new Zealand high Court in Attorney-General v Family Court at Otahuhu,95 for clarification of the law. ellis J rejected the Corbett approach for the reasons given in M v M96 and MT v JT 97 and concluded that there was ‘no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of reassignment. it would merely confirm the factual reality’.98 this line of case law recognised that the reasoning in Corbett was susceptible to criticism, in particular Ormrod J’s reference to the ‘essential role of a woman’. if this referred to the respondent’s ability to have sex as a woman it was contradicted by the medical evidence. 99 if it referred to the ability to procreate, it ignored the law of nullity which does not make such ability a condition of a valid marriage.100 if it referred to an ability to look and act like a woman, it was contradicted by Ormrod J’s finding that April Ashley lived as a female. Corbett was further criticised and rejected in the Australian family Court in Re Kevin: validity of marriage of transsexual,101 (hereafter Re Kevin), in which Chisholm J upheld the validity of a marriage between a woman and a femaleto-male transsexual person who had undergone surgery for breast reduction but had not had phalloplasty. the court held that sex was to be determined at the date of the marriage, having regard to all relevant factors, including life experiences and self-perception. in a decision which was subsequently upheld by the full Court of the family Court of Australia, 102 Chisholm J lucidly exposed the logical flaw in Ormrod J’s reasoning. As the judge observed, Corbett proceeds via the following propositions: (1) the biological constitution of individuals is fixed at birth (major premise); (2) the respondent’s biological constitution at birth was male (minor premise); (3) the respondent’s biological constitution remains male (conclusion); (4) therefore, the respondent’s ‘true sex’ is male; (5) the validity of a marriage depends on ‘true sex’; (6) therefore, the other party being a man, the marriage is void.103 however, while the first three statements involve ‘special considerations’, but nevertheless was highly critical of the reasoning in Corbett. for commentary, see M Otlowski, ‘the legal Status of A Sexually reassigned transsexual: R v Harris and McGuiness and Beyond’ (1990) 64 Australian Law Journal 67. See also Secretary, Department of Social Security v SRA 118 Alr 467 (federal Court of Australia, General Division). [1995] 1 nZlr 603. [1991] nZflr 337. 97 (1976) 335 A 2d 204. 98 Attorney-General v Family Court at Otahuhu, above n 95, 630. 99 See iM Kennedy, ‘transsexualism and Single Sex Marriage’ (1973) 2 Anglo-American Law Review 112, 124; and Smith, above n 67, 1006 ff. 100 non-consummation makes a marriage merely voidable (now Matrimonial Causes Act 1973, s 12(a) and (b)), and even then not always (ibid s 13). 101 [2001] famCA 1074. for commentary, see M Otlowski, ‘What is the harm in it anyway?: Re Kevin and the recognition of transsexual marriage’ [2002] Australian Journal of Family Law LEXIS 12; and J McConvill and e Mills, ‘Re Kevin and the right of transsexual persons to Marry in Australia’ (2003) 17 International Journal of Law, Policy and the Family 251. 102 Attorney-General for the Commonwealth v Kevin and Others [2003] fam CA 94 (nicholson CJ, ellis and Brown JJ). 103 [2001] famCA 1074, para 77. 95 96

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have ‘an impeccable classical logic’, the only basis for step (4) (and indeed step (5)) is that ‘biological sexual constitution’ is treated as equivalent to ‘true sex’.104 Chisholm J commented, in a powerful passage: this apparently subtle shift in terminology is significant. the key issue was whether social and psychological matters were relevant in determining whether [the respondent] was a man or a woman. to treat biological sexual constitution as equivalent to true sex excludes these matters, but does so by way of definition: no reason is given for excluding them . . . What is remarkable about [the proposition that congruent biological factors exclusively determine sex] is that nothing has been said to support it. no relevant principle or policy is advanced. no authorities are cited to show, for example, that it is consistent with other legal principles. this lack of any supporting argument has been obscured by a definitional sleight of hand, using the term ‘true sex’. the use of this language creates the false impression that social and psychological matters have been shown to be irrelevant. in truth, they have simply been assumed to be irrelevant.105

While the above account shows that Corbett has been rejected in several other jurisdictions, Andrew Sharpe has demonstrated, in an insightful analysis of the authorities, that the spectre of Corbett is still evident in some of those leading decisions.106 Sharpe shows that in MT v JT a biological focus can still be discerned in the court’s concern with Mt’s ‘post-surgical reality’, placing ‘particular emphasis on her postoperative sexual capacity’ for heterosexual intercourse.107 he argues that such concerns ‘serve to insulate marriage and heterosexuality from the possibility of homosexual contamination’.108 in Attorney-General v Family Court at Otahuhu the biological focus is retained, arguably for the same reason, but shifts from the idea of sexual function to aesthetics, in that the parties must ‘present themselves as having what appear to be the genitals of a man and a woman’.109 While the genito-centric approach is abandoned in Re Kevin, since Kevin had not had phalloplasty, Chisholm J’s judgment emphasises research on the origin of sex in brain differentiation. thus the case supports the view that sex is determined at birth and, as Sharpe puts it, ‘the spectre of the Corbett decision haunts the reform moment’.110 Sharpe makes the further point that Re Kevin ‘inaugurates an expansion of gatekeepers’111 in that Kevin’s sex depended on how he was perceived in his community. in the absence of a focus on contrasting genitalia, anxiety about homosexual marriage is assuaged via socio-cultural recognition of Kevin’s gender.112 it can be seen therefore that some ibid para 78. ibid paras 78 and 84. the medical opinion in Corbett unanimously acknowledged the significance of psychological factors in determining sex. 106 An Sharpe, ‘endless Sex: the Gender recognition Act 2004 and the persistence of legal Category’ (2007) 15 Feminist Legal Studies 57–84. 107 ibid 62. 108 ibid 63. 109 ibid 64. 110 ibid 67. 111 ibid 68. 112 ibid. 104 105

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of the cases emanating from a rejection of Corbett do not necessarily present the most liberal position. Domestic Impact By contrast with its variable impact in other jurisdictions, Corbett had a more consistent preserving influence on the english common law. in the light of the strong criticisms of the judgment noted above, it is interesting to reflect on why that was the case. Ormrod J’s medical background and his eminence in the field of family law have already been highlighted as possible reasons for the strong influence Corbett exerted as a ‘precedent’. however, arguably several other factors also conspired to keep Corbett in place. first, given the professional standing of the experts (explained earlier), it would require a very convincing new body of expert opinion on the aetiology of transsexualism113 to mount a challenge to the expert opinion, which would also depend on scientific advances. Secondly, until the decision of the european Court of human rights in Goodwin v United Kingdom114 in July 2002, there was little pressure for change within applicable human-rights jurisprudence. in Rees v United Kingdom,115 the european Court of human rights had noted that there was ‘little common ground between the contracting states’ on the legal recognition of transsexualism and that this was ‘an area in which the parties enjoy a wide margin of appreciation’,116 a view which was adhered to in several subsequent cases, albeit with gradually decreasing conviction.117 thirdly, some of the contexts in which Corbett has been explored may not have assisted the cause of transsexual rights, for example the criminal law, in which, as Jerold taitz has observed, ‘the court may show less sympathy than it would where the parties before it have behaved in a virtuous or acceptable manner’.118 113 eg there is a possibility that it has an organic basis in brain differentiation: see J-n Zhou et al, ‘A Sex Difference in the human Brain and its relationship to transsexuality’ (1995) 378 Journal of Nature 68. 114 (2002) 35 ehrr 18. for comment, see C Bridge [2002] Family Law 738; J Sawyer, ‘Goodwin v UK’ [2002] International Family Law 123; and J Sawyer, ‘providing the Catalyst for Change’ (2002) 152 (7041) New Law Journal 1089. for discussion, see C Bessant, ‘transsexuals and Marriage after Goodwin v United Kingdom’ [2003] Family Law 111. 115 [1987] 2 flr 111, dismissing allegations of violations of Arts 8 and 12 of the eChr arising out of the registrar General’s refusal to alter a female-to-male transsexual person’s sex on his birth certificate. 116 Rees, above n 115, para 37. 117 eg Cossey v United Kingdom (1990) 13 ehrr 622 where there was a slimmer majority than in Rees and a strong dissenting opinion of Judge Martens, arguing that respect for human dignity and freedom demanded that the law should recognise the new sex a post-operative transsexual had created, ibid 648, para 2.7; X, Y, and Z v United Kingdom [1997] 2 flr 892. for commentary, see C lind, ‘perceptions of sex in the legal determination of fatherhood: X, Y and Z v UK’ (1997) 9 Child and Family Law Quarterly 401; Sheffield and Horsham v United Kingdom (1998) 27 ehrr 163. 118 J taitz, ‘Judicial Determination of the Sexual identity of post-operative transsexuals: A new form of Sex Discrimination’ (1987) 13 American Journal of Law and Medicine 53.

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Against this background, the domestic cases adhered faithfully to the Corbett rationale. it was adopted by the Court of Appeal in R v Tan and Others 119 in the context of the offence of living off the earnings of prostitution,120 for reasons of ‘common sense and the desirability of certainty and consistency’.121 Corbett was also applied in Re P and G (Transsexuals)122 where the Divisional Court dismissed applications for judicial review of the registrar General’s refusal to alter the birth register to reflect the applicants’ reassigned sex. however, the potential for a different approach in future could be seen in some dicta. in Re P and G Kennedy lJ acknowledged as a possibility ‘a situation in which . . . the Corbett criteria on their own have become so out of date that to continue to use them would be irrational’.123 Similarly, in S-T (Formerly J) v J124 Ward lJ commented that he was ‘unable lightly to dismiss’ the reasoning of ellis J in Attorney-General v Family Court at Otahuhu, and that Corbett might ‘bear reexamination at some appropriate time’.125 indeed, the court in Rees v United Kingdom had cautioned that the issue of legal recognition of transsexual gender must be ‘kept under review having regard particularly to scientific and societal developments’,126 a warning repeated in more forceful language in subsequent cases which emphasised ‘an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter’. As Anthony Bradney observed, the effect of this case law on Corbett was ‘somewhat contradictory’, affirming it in the short-term but seemingly undermining it in the long-term.127 As noted above, the change in the european Court of human rights’ approach came in Goodwin v United Kingdom.128 the court now attached more significance to an ‘emerging consensus within contracting states’ and a ‘contin119 [1983] QB 1053. in barely a paragraph referring to Corbett the court did not engage at all with its reasoning, and the result was based in part on a concession by counsel. for commentary, see pJ pace, ‘Sexual identity and the Criminal law’ (1983) Crim LR 317 (fallacious to seek consistency between civil and criminal law). Compare, however, the Crown Court decision of hooper J in R v Matthews (unreported) 28 October 1996 that it was possible for a male-to-female transsexual person to be raped vaginally (seemingly questioning R v Tan). 120 Sexual Offences Act 1956, s 30. 121 R v Tan and Others, above n 119, 1064C. 122 [1996] 2 flr 90 (Kennedy lJ, forbes J). 123 ibid 97f–G. 124 [1998] fam 103 (potter lJ and Sir Brian neill; Ward lJ dissenting). 125 ibid 122A–B. he added that the words ‘male’ and ‘female’ in the Matrimonial Causes Act 1973, s 11(c) may have ‘left the way open for a future court, relying on developments of medical knowledge, to place greater emphasis on gender than sex’ (at 124f–h), a view which Sir Brian neill acknowledged was arguable: ibid 153C. As noted above, the spectre of Corbett can be seen in ellis J’s decision, and thus also in Ward lJ’s suggested possible future departure from Corbett. See A Sharpe, ‘english transgender law reform and the Spectre of Corbett’ (2002) 10 Feminist Legal Studies 65, esp 71–80. 126 [1987] 2 flr 111. 127 A Bradney, ‘transsexuals and the law’ [1987] Family Law 350, 353. 128 (2002) 35 ehrr 18, eCthr. it was held that the rights of Christine Goodwin, a postoperative male-to-female transsexual person, under Art 8 of the eChr, had been violated in respect of her treatment in the spheres of employment, social security, pensions and marriage. for comment, see Bridge and Sawyer, above n 114. for discussion, see Bessant, above n 114.

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uing international trend towards legal recognition’,129 than to lack of evidence of a common european approach.130 it was not convinced that the terms ‘man’ and ‘woman’ must ‘refer to determination of gender by purely biological criteria’131 and held that ‘a test of congruent biological factors can no longer be decisive in denying recognition to the change of gender of a post-operative transsexual.’132 Shortly before Goodwin’s potential ‘attack’ on Corbett, Charles J had distinguished Corbett in W v W (Physical Inter-sex).133 in that case a decree of nullity was sought on the ground that the respondent, who was diagnosed with a physical intersex condition, was not female. Charles J held that in a case in which the biological indicia of sex were not congruent, the decision whether the respondent was male or female was to be ascertained by having regard to her development and all of the indicia of sex listed in Corbett. furthermore, the capacity to consummate a marriage was a relevant but not decisive factor. 134 Applying these criteria to the respondent, Charles J held that she was ‘female’, and accordingly declined to grant the decree of nullity. W v W rendered the position of transsexual persons more anomalous135 and opened up ‘the possibility of a gender-based rather than sex-based approach’.136 in the light of these developments, the betting person might confidently have predicted that Corbett’s days were numbered. however, further factors combined to retain the case as the leading common-law authority. Corbett was decided prior to the nullity of Marriage Act 1971 (now consolidated in the Matrimonial Causes Act 1973). the 1971 Act put the law of nullity in statute, providing, in what is now section 11(c) of the Matrimonial Causes Act 1973,137 that a marriage is void unless the parties are respectively male and female. thus any challenge to the law on void marriages in this context would need to focus on the meaning of the words ‘male’ and ‘female’ in section 11(c) as intended by 129 Goodwin, above n 128, para 84, citing the evidence provided by liberty at paras 55–56 of the judgment. 130 for criticism of the court’s earlier approach, see lind, n 117 above, 406 (human rights protection should not depend on convergence of views in states). the court also recognised that ‘it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads’ and saw the ongoing debate surrounding the aetiology of transsexualism as ‘of diminished relevance’, given the ‘level of commitment and conviction required to achieve a change in social gender role’. 131 Goodwin, above n 128, para 100. 132 ibid. 133 [2001] fam 111, reassured by Ormrod J’s own appreciation that the respondent’s intersex condition might require a different approach: see his lordship’s extra-judicial statements at (1972) 40 Medico-Legal Journal 78, esp 86. for comment, see A Barlow, ‘A new approach to transsexualism and a missed opportunity?’ (2001) 13 Child and Family Law Quarterly 225. See also p-l Chau and J herring, ‘Defining, Assigning and Designing Sex’ (2002) 16 International Journal of Law, Policy and the Family 327; and J herring and p-l Chau, ‘Assigning Sex and intersexuals’ [2001] Family Law 762. 134 preferring the Court of Appeal decision in SY v SY (orse W), above n 24 which had been distinguished in Corbett. 135 Barlow, above n 133, 239. 136 ibid 232. 137 Originally enacted as the nullity of Marriage Act 1971, s 1(c).

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parliament. in addition, by the time Goodwin was decided, the judicial role in considering the compatibility of a statutory provision with european humanrights jurisprudence was controlled by the human rights Act 1998. the opportunity to consider the issue post-Goodwin came in Bellinger v Bellinger.138 elizabeth Ann Bellinger, a post-operative male-to-female transsexual person, petitioned the high Court for a declaration, pursuant to section 55 of the family law Act 1986, that her marriage to Mr Bellinger in 1981 was valid at its inception and subsisting. On Mrs Bellinger’s appeal to the house of lords, the house did not see this as a suitable occasion on which to change the law and did not engage with the common law in Corbett. the court thus declined to make a declaration that the marriage was valid but, in the light of Goodwin, declared pursuant to section 4 of the human rights Act 1998 that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with Articles 8 and 12 of the european Convention for the protection of human rights and fundamental freedoms 1950 (eChr), in Schedule 1 to that Act. Corbett had survived. 139 parliament subsequently dealt with this declaration of incompatibility by enacting the Gender recognition Act 2004.140 in brief, this Act allows a person of at least 18 years old to obtain a Gender recognition Certificate recognising for all purposes141 a newly acquired gender. the certificate may be granted by a Gender recognition panel upon proof that the applicant is suffering or has suffered from gender dysphoria and statutory declarations that he or she has lived in the acquired gender for two years and intends to do so for life. the Act thus does not require the applicant to undergo gender reassignment surgery. While the Act is not beyond criticism,142 it seems appropriate to see the Act as a ‘great leap forward’,143 arguably catapulting english law to pole position in terms of worldwide transsexual law reform.144 138 Bellinger, above n 6. for commentary, see S Gilmore, ‘not quite between the ears and between the legs – transsexualism and marriage in the lords’ (2003) 15 Child and Family Law Quarterly 295. 139 And in some dicta seemed to be endorsed: see above n 6. 140 for a brief overview of the Act, see S Gilmore, ‘the Gender recognition Act 2004’ [2004] Family Law 741. for criticism, see An Sharpe, ‘A Critique of the Gender recognition Act 2004’ (2007) 4 Bioethical Inquiry 33. 141 Subject to provisions of the Gender recognition Act 2004, such as eg, the newly acquired gender does not affect a person’s status as the parent of a child (see s 12). 142 See eg, S Cowan, ‘looking Back (to)wards the Body: Medicalization and the GrA’ (2009) 18 Social and Legal Studies 247, criticising the Act’s medicalisation of the transgender ‘condition’ (248–49) and the use of the notion of ‘acquired gender’ as opposed to ‘validation of persistent sense of gendered self-identity’ (at 250); r Sandland, ‘running to Stand Still’ (2009) 18 Social and Legal Studies 253, 254 (describing the Act as a damage-limitation exercise, and criticising the Act for excluding that which does not conform to a binary model of gender). Sandland also argues that a person should be able to marry whom he or she wishes; An Sharpe, ‘A return to the ‘truth’ Of the past’ (2009) 18 Social and Legal Studies 259 (criticising the homophobia of law to be found in the Act’s insertion of s 12(h) into the Matrimonial Causes Act 1973, making a decree of nullity possible on the basis that the respondent is a person who has acquired a gender under the Act). 143 An Sharpe, ‘Gender recognition in the UK: a Great leap forward’ (2009) 18 Social and Legal Studies 241, 244. 144 ibid 242.

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ironically, therefore, Corbett’s powerful holding influence over the common law, staving off common-law developments (for the combination of reasons outlined above), may indirectly have influenced the enactment of this ‘most progressive piece of legislation in the world’.145 had there been change in the common law earlier as in other jurisdictions, perhaps the impetus for statutory reform would not have been so great; and, as illustrated above, the common-law developments would not necessarily have resulted in as liberal an approach. COnClUSiOn

Corbett was an unpromising case on its facts for establishing the validity of a person’s marriage in his or her post-operative gender. in addition, the prospect of establishing recognition of a same-sex marriage was slim, given the established view of marriage as a union of man and woman and that homosexual sex had then only recently been decriminalised.146 the outcome of the case on this issue (which was viewed as one of first impression on which there was no existing authority) was thus perhaps unsurprising for its time. Still, the case was clearly a landmark. it was the first court case in england and Wales to determine a person’s sex specifically for the purpose of identifying the validity of a purported marriage and to consider whether a transsexual person could consummate a marriage. the case held that for the purpose of marriage a person’s sex is determined at birth by reference to congruent biological factors and that any operative intervention and psychological factors are to be ignored. in addition, a transsexual person is incapable of consummating a marriage in his or her post-operative gender. these rulings shaped the law on transsexualism and marriage in england and Wales and in other jurisdictions. Although never binding on any court that cited it, for reasons explored in this chapter Corbett proved to be a strong de facto precedent, exercising a powerful hold on the common law of england and Wales. the impact in other jurisdictions, however, was more variable, following Corbett in some cases and rejecting it in others. yet it has been argued that even in cases in which Corbett was rejected, the spectre of Corbett sometimes remains and such departures from Corbett are not always seen as representing the most liberal developments for transsexual persons. By contrast, and somewhat ironically, Corbett’s strong conservative influence on the law of england and Wales may indirectly have influenced enactment of the Gender recognition Act 2004, one of the most liberal transsexual laws in the world. the litigation in Corbett was itself tinged with several ironies. April Ashley, who became one of the world’s most celebrated transsexual persons, put her case (through counsel) on the basis that she was an intersexual person and was ibid. Sexual Offences Act 1967. See S Cretney, Same Sex Relationships From ‘Odious Crime’ to ‘Gay Marriage’ (Oxford, Oxford University press, 2006) for a full discussion of the law’s development. 145 146

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properly assigned to the female sex. the case turned on the unavailability and poor quality of evidence going to Ashley’s pre-operative state. in default of such evidence, Ashley failed to establish her case, with the conclusion that she was a male-to-female transsexual person. in addition, Corbett was viewed as a case of first impression, yet, as this chapter has shown, there were several earlier cases which had determined a person’s sex as a matter of law. in particular, three years earlier lord hunter’s fully reasoned judgment in the Scottish Court of Session determined the sex of an intersexual person who had lived as a woman and then married as a man. the judgment was kept from the public domain and never drawn to the judge’s attention in Corbett. it is possible (although perhaps not probable) that the decision in Corbett might have been different had Ormrod J had sight of lord hunter’s opinion. Bringing this story of Corbett v Corbett to a close, it should be noted that on 11 August 2005 the UK’s General register Office informed April Ashley that it had received a copy of her full Gender recognition Certificate147 and could make a new record of her birth. forty-five years and four months after her operation she was legally a woman and free to marry a man.148

147 148

Gender recognition Certificate Grf 000723. April Ashley with Douglas thompson, The First Lady (london, John Blake, 2006) 371–72.

5 ‘But I Didn’t Really Want To Get Married’ DavID McClean anD MaRy Hayes

InTRODUCTIOn

T

He MaIn leGal issue in Szechter (orse Karsov) v Szechter 1 concerned the notion of duress in the context of the formation and annulment of marriage. That is a remarkably ‘fact-heavy’ area of law, and the facts of the cases are often extraordinary. But no case can rival Szechter v Szechter for the tension in sir Jocelyn simon P’s judgment between ‘hard cases making bad law’ and the poignancy of the potential outcome should the court decline to ‘stretch the law a little here or a little there’ on the ground that this would amount to ‘palm tree justice’. The facts of the case tell a story worthy of a Hollywood epic; and it did actually provide the basis for a radio play.2 The parties have written about the events at length.3 In this chapter we seek to discover whether and how this remarkable case has influenced the approach of english law to petitions for nullity when petitioners have asserted that they did not really want to get married. SZECHTER (ORSE KARSOV) v SZECHTER: THe FaCTs

nina Karsov, the petitioner, was born in 1940. Her life-story is one of survival despite horrific experiences, persecution and illness. When she was two or three, she and her mother were put on a train bound for Treblinka, the extermination camp in which over 800,000 perished. Her mother managed to throw her out of the train into the snow, and she was rescued but sustained spinal injuries which required regular hospital in-patient treatment, and her fingers had to be amputated. Her mother was killed and her father committed suicide. nina was brought [1971] P 286. Beatrice Colin’s ‘The January Wedding’, broadcast by the BBC in 2006. nina Karsov and szymon szechter, Nie Kocha Sie Pomnikóv (Monuments are not Loved), (london, Hodder & stoughton ltd, 1970); nina Karsov, Nina Karsov’s Diary (london, Overseas Publications Interchange, 1992). 1 2 3

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up in Warsaw by a Mrs Karsov, whom she thought to be her real mother. When nina was nine, Mrs Karsov was arrested and two years later given a 10-year prison sentence for alleged collaboration with the German occupation forces. In fact, she had fought with the Polish resistance movement and worked to save many Jews, and after five years she was exonerated and released. Meanwhile, nina contracted tuberculosis and a hyper-thyroid condition which also needed specialist treatment. Despite all this, nina Karsov graduated from Warsaw University and worked as a journalist and as an historical researcher. she managed to attend some political trials and came into contact with szymon szechter. she became his secretary and they collaborated in written work. she came to be treated by szymon szechter, his wife lydia, and their children, as one of the family. In august 1966, szymon and lydia szechter and nina Karsov were arrested by the security police. szymon and lydia were soon released, but nina was kept in Mokotow Prison, Warsaw, for over a year for interrogation. szymon schechter was told that if he helped the police he and his family would be allowed to go to Israel. He chose rather to stay in Poland, hoping that as someone with a certain public profile, he might be able to help nina. The authorities rejected medical advice that nina be moved to the prison hospital, and inadequate treatment for her thyroid affected her heart, causing her loss of weight and anxiety about her survival. she was kept in very harsh conditions, and her interrogation involved the classical threats of long imprisonment, incarceration in a psychiatric hospital, and of future persecution of herself and of Mrs Karsov. she was tried in October 1967 and sentenced to three years’ imprisonment. Meanwhile the szechters had discussed how they could help nina. If they had been able to adopt her, she might be able to go to Israel with them as part of the family, but she was over the maximum age for adoption. The plan they eventually decided upon was extraordinary. It was for szymon and lydia to obtain a divorce; that he should then go through a ceremony of marriage with nina and take her to Israel as his wife; then have that marriage dissolved or nullified, and re-marry lydia. Without nina’s knowledge, the first part of the plan was put into effect in april 1967. The judgment records that the szechters were divorced ‘secretly’, which can only mean without publicity, and lydia went to Israel with her younger son, to rejoin her elder son who was already there. When the plan was eventually put to her, nina at first refused to agree; the security authorities also objected to any marriage to szymon and only relented at the third request. as the judgment records: In the end, however, she came to see that it was the only solution for her. she believed that she would never survive a long, or even medium, prison sentence and that the desire of the authorities to see the respondent out of the country might lead to her earlier release if she were married to him. she also knew that the respondent would be in a better position to help her in prison if they were married; for example, he could probably visit her or send her parcels.4 4

Szechter, above n 1, 292–93.

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szymon and nina were married in a brief civil ceremony in the prison in February 1968. Despite the marriage, her appeal against imprisonment was turned down the following month. However, her case had attracted a good deal of publicity abroad: amnesty International declared her the Prisoner of 1968, Bertrand Russell wrote publicly to the Polish Government about her case, and she was released in september of that year. szymon and nina were allowed, indeed encouraged, to leave Poland. The various parties were eventually re-united in london, and nina sought a decree of nullity, the petition being supported by szymon szechter and counsel for the Queen’s Proctor. not surprisingly, sir Jocelyn simon P was moved by this story. He nonetheless felt constrained to make a general observation about the application of the law in exceptional cases: There is obviously a temptation for a court, faced with a situation of hardship brought about by heroism in the teeth of cruelty and oppression, to try if necessary to stretch the law a little here or a little there. The principles of the law are indeed essentially adaptable to varying circumstances; but the principles themselves are those which have been established by juristic authority or parliamentary enactment. The operation of the law is thus reasonably certain and predictable, and it is no service to those who live under its rule to introduce uncertainty and capriciousness, even with the ostensibly laudable aim of meeting a hard case. If there is a substantial area of hardship which the existing law does not reach, the remedy nowadays lies in the hands of Parliament, which has at its service the advice of the executive as to all foreseeable repercussions of the decision (an advantage denied to courts of law); and if even the most sagaciously framed general rule is still liable to throw up, exceptionally, some cases of hardship, it is open to Parliament, should it be so advised, to establish a court of equity to deal with such cases on their merits. But it is not open to a court of law to deal out what is sometimes called ‘palm-tree justice’.5

THe DeCIsIOn

There were, moreover, a number of technical legal issues that had to be addressed in order to ascertain whether the marriage could be annulled. Jurisdiction The first question simon P had to consider was that of jurisdiction. Jurisdiction in nullity was at that time unregulated by statute and was the subject of some rather difficult case law. However the court was able to hold, correctly, that it had jurisdiction on the basis of either the common residence of the parties6 or their common domicile in england at the date of the petition. The domicile 5 6

ibid 289. Ramsay-Fairfax (orse Scott-Gibson) v Ramsay-Fairfax [1956] P 115.

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aspect was complicated by the unreformed common-law rule that a wife necessarily had the domicile of her husband as a domicile of dependence: this would apply to a woman party to a voidable marriage but not a void marriage. 7 as the parties were domiciled in england whichever rule applied, the issue did not have to be fully addressed. There was a possible issue raised by the fact that the continued residence of the parties, or of nina Karsov at least, depended on Home Office consent under immigration law,8 but there was already authority that such uncertainty did not affect the fact of residence.9 Were the facts to recur today (an eventuality happily most unlikely given the political changes in Poland) jurisdiction would be determined under Council Regulation 2201/2003 and would exist on the basis of the habitual residence of the spouses, or of either of them.10 Choice of Law a second private international law issue then had to be considered: that of choice of law. What law governs the question of duress as nullifying a marriage? On that question, simon P recognised that there was limited authority, but what there was suggested that matters of consent to marriage were to be decided by reference to the personal law of the parties.11 He felt able to accept the proposition in Dicey and Morris that no marriage is valid if by the law of either party’s domicile one party does not consent to marry the other.12 On this basis the question of the validity of the marriage would have been governed by Polish law. simon P’s view has been accepted in scotland,13 but the judgment on this point is not quite straightforward. simon P also looked at the content of english law. One reason for doing so was that ‘the annulment of a marriage is a very serious step’.14 This might be seen as suggesting that english law might also 7 see Salvesen (or Von Lorang) v Administrator of Austrian Property [1927] aC 641; De Reneville v De Reneville [1948] P 100. The uncertainty as to whether a marriage is void for duress raised in Parojcic (orse Ivetic) v Parojcic [1958] 1 WlR 1280 was resolved by the nullity of Marriage act 1971, in provisions now forming the Matrimonial Causes act 1973, s 12(c): see Re Roberts decd, Roberts v Roberts [1978] 1 WlR 653; Westminster City Council v C [2008] eWCa Civ 198, [2009] Fam 11, paras [20]–[22]. 8 This was initially refused, a matter which led to a successful press campaign to have the decision reversed. 9 Boldrini v Boldrini [1932] P 9; Cruh v Cruh [1945] 2 all eR 545. see now Mark v Mark [2005] UKHl 42, [2006] 1 aC 98. 10 Council Regulation (eC) no 2201/2003 of 27 november 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (eC) no 1347/2000, OJ l 338/1, 23 December 2003, art 3. 11 Apt v Apt [1948] P 83; Kenward v Kenward [1951] P 124. 12 Dicey and Morris, Conflict of Laws, 8th edn (london, sweet & Maxwell, 1967) 271. The same proposition is advanced, but regarded as not securely established, in the current text: Dicey, Morris and Collins, The Conflict of Laws, 14th edn (london, sweet & Maxwell, 2006) para 17R-118 (Rule 68). 13 Singh v Singh [2005] CsOH 96, 2005 sClR 1000. 14 Szechter, above n 1, 295.

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govern the issue, either as part of a rule of double reference – that is, that for a marriage to be annulled for want of consent it must be invalid under both the law of the domicile of the parties and the law of the forum – or because the effect of the foreign law might be contrary to english public policy. It is not possible to be sure what was in the President’s mind. Proof of Foreign Law a second reason given for referring to english law was that ‘the expert witness on Polish law had to go into hospital for an operation, so that he had to give his evidence by affidavit and was not available for oral examination’.15 The background here is that in england foreign law is a question of fact to be proved by evidence from a suitably qualified expert. This is a matter which has received much attention in recent years from the Hague Conference on Private International law. an analysis of the situation prepared in 2007 by the Permanent Bureau of the Conference contrasts the passive or ‘fact’ approach with the active or ‘law’ approach.16 In fact, as the analysis revealed, there are many nuanced positions between these two approaches. england retains a fairly strict ‘fact’ approach, and in the absence of satisfactory evidence of foreign law the court will apply english law (or, in an alternative formulation, will assume that the foreign law is the same as english law). The evidence as to Polish law in Szechter v Szechter pointed to an article in the Civil Code,17 translated as: a declaration by a person who, for whatever reasons, was in a state excluding a conscious or unconstrained decision in expressing his/her will is void.

That appears to be a much wider rule than one based on duress; as will be seen it may be closer to Irish law than to english law. The Queen’s Proctor did not challenge the evidence or the conclusion of the witness that the facts of the present case would render the marriage void under this test in Polish law. Duress in English Law However, the decision did not rest on Polish law alone. looking at english law, simon P recognised that private reservations or motives are not in general matters cognisable to vitiate an ostensibly valid marriage. But fear or force would ibid 295–96. Feasibility Study on the Treatment of Foreign Law (Preliminary Document no 21 a of March 2007); and see G T yates, ‘Foreign law Before Domestic Tribunals’ (1978) 18 Virginia Journal of International Law 725. see also R Fentiman, Foreign Law in English Courts (Oxford, Oxford University Press, 1998); M Jänterä-Jareborg, ‘Foreign law in national Courts’ (2003) 304 Recueil des Cours 181; and Dicey, Morris and Collins, 14th edn, above n 12, ch 9. 17 article 82 of the Civil Code of 22 april 1964. 15 16

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negative apparent consent. He relied on two earlier english cases, treating them as similar. The facts of one of them, Buckland v Buckland (orse Camilleri),18 have familiar features. The petitioner, a Maltese dockyard policeman, was charged with the corruption of a 15-year-old girl. although he denied any wrongdoing, he was told that he was likely to be convicted and imprisoned: he had only two options, to marry the girl or to go to prison. scarman J held that the petitioner agreed to the marriage because of fears, reasonably entertained, which arose from external circumstances for which the was in no way responsible, and that accordingly the marriage ceremony was null and void. H v H19 is rather different. The marriage in that case was in Hungary, the petitioner fearing that as a member of a relatively prosperous family she would be persecuted and perhaps imprisoned by the Communist authorities. To get a foreign passport, she married a schoolboy (who was absent for the second lesson of the day using a dental appointment as an excuse, but returned after the ceremony in time for the third lesson). Karminski J refused to accept that a nullity decree could be obtained merely by proving that the marriage was entered into solely to secure an immigration or emigration advantage, expressly preferring the approach in Martens v Martens to that in US v Rubenstein, but went on without any very full analysis to hold that the fear entertained by the petitioner was of such a kind as to negative her consent to the marriage. In following these cases, simon P was perhaps breaking no new ground. It was his view that the facts before him were stronger than those in both Buckland v Buckland and H v H. He concluded:20 It is, in my view, insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or social degradation. In order for the impediment of duress to violate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. I think that in the instant case that test is satisfied.

This ruling runs together a number of ideas, with the dominant strand being the absence of a valid consent evidenced by a threat to life, limb or liberty. The outcome for nina and szymon was that their marriage was held void. The decree confirmed that nina had never been married to szymon and, as a judgment in rem, meant that szymon was free to remarry his former wife without fear that the validity of that marriage could later be challenged. This he did. It should perhaps be pointed out that there was no method by which pressure put on lydia to agree to divorce szymon to enable him to marry nina could affect the validity of the divorce. Without lydia’s generosity of spirit, the ‘marriage’ 18 19 20

[1968] P 296. [1954] P 258. Szechter, above n 1, 298.

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between nina and szymon could not have taken place and the threat to nina’s life, limb and liberty would not have been alleviated. accordingly, the descriptive and somewhat emotive phrase ‘there were three people in this marriage’21 appears particularly apt to the circumstances. aFTeR SZECHTER

Void and Voidable Marriages at common law (which applied at the time nina presented her petition), such lack of consent rendered the marriage void.22 Conceptually, this must be correct. Where a person is forced against his or her will to go through a ceremony of marriage there is no true consent to the marriage taking place. Why does the modern law of nullity render a marriage voidable for lack of consent rather than void? normally, the grounds listed in section 11 of the Matrimonial Causes act 1973 can readily be established by undisputed factual evidence and, in any event, the statutory grounds do not allow for the exercise of discretionary judgment. By contrast, where lack of consent is alleged, be it as a result of duress, mistake or unsoundness of mind, the marriage cannot safely be treated as void and non-existent without a court first investigating the circumstances and determining whether the petitioner’s will was indeed overborne when the ceremony took place. Therefore, on the recommendation of the law Commission,23 the law was changed in 1971 to make lack of consent render a marriage voidable only.24 Marriages are voidable for a curious hotch-potch of reasons, set out in section 12 of the Matrimonial Causes act 1973. The arguments made by the law Commission in 197025 for the retention of the voidable marriage are becoming increasingly unconvincing as attitudes to personal relationships develop and change. The law’s assertion that non-consummation, mental disorder, venereal disease and pregnancy by another man uniquely provide special reasons for granting a prospective decree of nullity cannot readily survive a close and critical examination. These grounds for voidable marriages may or may not result in one or both parties wishing to bring the marriage to an end. such responses to problems within a marriage are identical to the responses of spouses contemplating divorce. But the decrees by which the marriages are terminated are different. The problems within a marriage identified in section 12 are no more ‘impediments’ to the marriage coming into being than, say, domestic violence from the outset or the revelation that one spouse is a paedophile. 21 22 23 24 25

Coined and made notorious by Princess Diana. Buckland, above n 18; H v H [1954] P 258. Contrast Cooper v Crane [1891] P 369. law Commission, Report on Nullity of Marriage (law Com no 33, 1970). Matrimonial Causes act 1973, s 12(c) replacing the nullity of Marriage act 1971. law Commission, above n 23, para 24.

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By contrast, lack of consent ‘whether in consequence of duress, mistake, unsoundness of mind or otherwise’26 undoubtedly provides a proper basis for deciding that, as a matter of law, a marriage never truly came into existence at the time of the ceremony. Had the szechter marriage come before a court a year or so later, after lack of consent had been moved from the void to the voidable category, the marriage would still have been annulled on the ground that nina did not validly consent to it because of duress. However, the forward-looking nature of a decree where a marriage is voidable would have meant that the law would have regarded nina and szymon as having been legally married for many months. One might wonder whether this might have affected the parties’ (including lydia’s) feelings about themselves. Might the nature of the decree have compromised the relationships between the three of them and possibly led to some distress? The implications of the change from void to voidable are clearer if we introduce some variables into the facts. nina’s original prison sentence was for three years. she was eventually released seven months after the marriage took place. section 13(2) of the Matrimonial Causes act 1973 makes it plain that in some cases of voidable marriages, including marriages voidable for lack of consent, a petition for nullity must be instituted within three years of the date of the marriage. Three years could easily have elapsed before nina was able to present her petition in which case it would have been too late and time-barred. such an outcome would have been disconcerting and deeply unwelcome. If nina had died before she could seek to have the marriage annulled, she would have been validly married to szymon at the time of her death and he would have been her widower. szymon could not have petitioned for nullity himself as, where a marriage is voidable, both parties must be living at the time of the grant of decree. similarly, if szymon had died before the marriage was annulled, nina, not lydia, would have been his widow and, unless he had left a will to the contrary, entitled to inherit his estate. Duress later developments and cases have also challenged the test laid down in Szechter whereby duress could only be established if there was a ‘genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb or liberty’. Genuine and Reasonably Held The test in Szechter v Szechter is objective at least to the extent that the fear must be ‘reasonably held’. yet if the focus is on the reality of the party’s consent, a 26

Matrimonial Causes act 1973, s 12(c).

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subjective test is the logical one to apply, and the law Commission accepted this logic in its Report on Nullity of Marriage.27 On its preferred approach, were the facts to recur it would be immaterial were nina’s fears to be irrational and groundless. In Singh v Kaur28 Ormrod lJ cited Scott v Sebright29 as authority for a subjective test and this was also the view of Munby J in NS v MI. 30 Of course there comes a point at which the irrationality of the asserted fear makes it difficult to convince a court that the fear was genuine, and the burden of proof is plainly on the party seeking a decree of nullity. Danger for which the Party is not Himself Responsible There is a consistent emphasis in the cases, and in the earlier canon law, that the threat must arise from a source external to the party concerned. In Szechter v Szechter simon P avoided that language, perhaps because nina’s fear that she could not survive imprisonment could raise an arguable issue as to how ‘external’ were its origins. More difficult would be cases similar to Buckland v Buckland,31 but where the man concerned was actually guilty of the offences the reporting of which was threatened. How essential is it, in other words, that the party concerned is innocent and the allegations that are to be made against him are false? The law Commission took the view that some ‘legitimate’ threats such as mere exposure to, or legal proceedings against, a man who has made a girl pregnant would not vitiate consent. Unfortunately, the law Commission’s recognition that some threats of exposure might be regarded as ‘legitimate’32 was supported by an unhelpful example: ‘We doubt . . . whether any court would hold that it is a legitimate threat not capable of vitiating consent for an employer to tell the office boy who has robbed the till that unless he marries the employer’s ex-mistress he will be prosecuted.’33 Its view that the decisions that had so far been reached on duress ‘seem to be about right’ arguably complicated rather than clarified the issue. However, its conclusion that ‘any attempt to define duress with the precision appropriate to statute would, in our view, be likely to do more harm than good’34 may be salutary in the context of the account to be taken of the ‘innocence’ of the petitioner. It awaits resolution and Szechter v Szechter seems here to be of little assistance.

law Commission, above n 23, para 62(b). (1981) 11 Fam law 152. 29 (1887) 12 P 21. 30 [2006] eWHC 1646 (Fam), [2007] 1 FlR 444. 31 Buckland, above n 18, where the petitioner was falsely accused of seducing a young girl in Malta. 32 law Commission, above n 23, para 65. Which reflects the approach taken in the commercial contract cases. 33 ibid. 34 ibid. 27 28

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Mental Reservations The words which stand as the title of this paper might be said by a number of those who have gone through a ceremony of marriage. a robust answer would be along the lines of ‘It was your decision to marry and you knew what you were doing at the time’. Or, in the more elegant words of Ormrod J:35 Where a man and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife. . . . To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community.

It is clear law that ‘mental reservations cannot in english law invalidate a marriage duly celebrated’.36 as the scottish law Commission has recognised, the different approach found in the law of scotland has serious disadvantages:37 a marriage is also void in scots law if the parties, even although consenting freely to go through a marriage ceremony and in no error, had at the time of the ceremony a mental reservation to the effect that a legal marriage would not result from the ceremony. For example, the parties may have tacitly withheld consent to be married by a civil ceremony because they believed a religious ceremony to be essential for their religious purposes . . .38 although this rule is consistent with the traditional view that true consent, and not merely the external appearance of consent, is essential for the constitution of marriage it is open to the objection that it allows parties to use the scottish marriage law and scottish marriage ceremonies cynically for their own purposes.39

The leading modern authority for the english approach, maintaining the validity of a marriage duly celebrated despite mental reservations or the primary intentions of the parties to secure some advantage unconnected with marriage, is Vervaeke (formerly Messina) v Smith.40 It is necessary to give an account of the ‘horrible and sordid story’41 of Marie vervaeke, a Belgian prostitute who plied her trade in london. 35 Messina (formerly Smith orse Vervaeke) v Smith [1971] P 322. These words are often quoted but are omitted from the published reports of the case in which they were spoken 36 Morgan v Morgan (orse Ransom) [1959] P 92 at 102, adopting the view in the Report of the archbishops’ Commission on the law of nullity of Marriage (1955) 27: ‘english law looks to the consent as expressed, and will not allow the parties privately to derogate from their public professions’. see eg: Brodie v Brodie [1917] P 271. 37 scottish law Commission, Family Law (scot law Com no 135, 1992), para 8.17. 38 Citing Brady v Murray 1933 slT 534; Orlandi v Castelli 1961 sC 113; Mahmud v Mahmud 1977 slT (notes) 17; Akram v Akram 1979 slT (notes) 87. 39 Contrasting the position with that obtaining in england (H v H [1954] P 258; Silver v Silver [1955] 2 all eR 614) and Canada (eg Singh v Singh (1977) 77 DlR (3d) 154). see Orlandi, above n 38: ‘where it can be established that there has been no true matrimonial consent, and that the ceremony was only designed as a sham or as an antecedent to true marriage, it is competent to found upon that absence of consent for the purpose of setting aside a marriage regularly celebrated’. 40 [1983] 1 aC 145. 41 so said Ormrod J in Messina, above n 35, 328. The words do not appear in the report at [1971] 2 all eR 1046.

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In 1954 Marie went through a ceremony of marriage with one William smith, an out-of-work drunkard, who was paid £50 and given a one-way ticket to south africa. They parted at the door of the register office, Ms vervaeke, who had accumulated over 100 convictions for prostitution, having obtained the British nationality she required if she were to be free from possible deportation. In March 1970 she married eugenio Messina, a principal in the prostitution business in which she had worked. He collapsed and died at the wedding breakfast, leaving her (she claimed) a wealthy widow. To secure her inheritance, she sought and obtained a nullity decree in respect of her marriage to William smith on the ground of want of consent: she alleged that she had been unaware that the ceremony was in fact a marriage ceremony. The Queen’s Proctor intervened and it seemed not unlikely that the decree would be set aside. Ms vervaeke then presented a second petition, having discovered that William smith had earlier married a Russian lady in shanghai, so that his marriage to her was bigamous. This second petition failed, as the shanghai marriage had been dissolved by a nevada decree entitled to recognition in england.42 Undeterred, Ms vervaeke sought and obtained a nullity decree from the Belgian courts, which was upheld by the Ghent Court of appeal which held that the parties had ‘delusively indulged in a marriage ceremony without in fact really consenting to a marriage, [and so] they behaved against public policy. The disturbance of public order, the protection of what belongs to the essence of a real marriage and of human dignity, exact that such a sham-marriage be declared invalid.’43 This decree was held entitled to recognition in england by Waterhouse J and the Court of appeal,44 but this decision was reversed by the House of lords45 partly on the ground of estoppel per rem judicatam, the Belgian decree being inconsistent with a prior decision on the same point in the english courts but also on the basis of english public policy. as lord Hailsham of st Marylebone lC put it: The fact is that in the english law of marriage there is no room for mental reservations or private arrangements regarding the parties’ personal relationships once it is established that the parties are free to marry one another, have consented to the achievement of the married state and observed the necessary formalities.46

The private arrangement between the parties to limit their personal relationships to the achievement of the status of married person with a view to acquiring British nationality for the previously alien partner therefore did not render the marriage invalid. 42 43 44 45 46

Messina, above n 35. an appeal was dismissed by consent. The Belgian decree was subsequently accorded recognition in Italy. [1981] Fam 77. Vervaeke, above n 40. at 153.

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That english law retains this principle is illustrated by aspects of modern UK and indeed european immigration practice. Council Resolution of 4 December 1997 on measures to be adopted on the combating of marriages of convenience47 discourages the issuing of residence permits where there is reason to suspect that the marriage in question is one of convenience; and a marriage of convenience is defined for the purpose as a marriage concluded between a national of a Member state or a third-country national legally resident in a Member state and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member state.

Under section 19 of the asylum and Immigration (Treatment of Claimants, etc) act 2004 and the Immigration (Procedure for Marriage) Regulations 2005, 48 anyone subject to immigration control must obtain Home Office approval before marrying under Part III of the Marriage act 1949. The compatibility of this practice with the right to marry, protected by article 12 of the european Convention on Human Rights (eCHR), was considered by the House of lords in R (Baiai and another) v Secretary of State for the Home Department (Nos 1 and 2).49 It held that section 19 should be read as including a proviso that permission was not to be withheld in the case of a qualified applicant who was not seeking to enter a marriage of convenience. The rules do not apply to marriages in the Church of england, but the chancellors of dioceses (acting as vicarsgeneral of the bishop) have adopted procedures aimed at preventing the issue of common licences where there is a suspicion that the marriage is one solely of convenience in the sense of the Council Resolution.50 In none of this is there any suggestion that marriages might be annulled if found to be marriages of convenience as so defined. arranged Marriages and the ‘life, limb or liberty’ Test Many young people of a different ethnic origin have been brought up in this country and exposed to a different culture from that of their parents. When of marriageable age some may resist their parents’ expectation that they will be parties to an arranged marriage. The pressure on them to act in accordance with parental wishes and expectations is sometimes acute. Whether such pressure amounts to duress such as to negate consent has arisen in a number of OJ C 382/1, 16 December 1997. sI 2005/15. 49 [2009] aC 287. 50 One of us (David McClean) has exercised this jurisdiction as chancellor of two dioceses. Knowledge of the exemption for anglican weddings has spread amongst asylum-seekers and persons from many parts of the world now prefer the Church of england to the register office. The Government conceded in the course of the Baiai litigation that this exemption for anglican weddings was discriminatory, but has yet to take action to end it. 47 48

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cases and it is in the context of arranged marriages that a difference of view emerged as to whether duress leading to lack of consent must be based on a threat to life, limb or liberty. Singh v Singh51 is a sad example of a woman put under family pressure to enter an arranged marriage. she did not meet her husband until the day of the civil marriage ceremony. she went through with it but subsequently refused to take part in a sikh religious ceremony which would normally have followed. she had no further contact with her husband. The court refused a nullity decree as there was no ‘no threat to life, limb or liberty’, citing simon P in Szechter v Szechter.52 a different result was reached in the Court of appeal in Hirani v Hirani53 (where Singh v Singh was not cited). Great pressure was brought to bear on a Muslim girl, who had attracted the ire of her parents by seeing a Hindu boy, to enter into an arranged marriage. The trial judge relied on the passage from Szechter v Szechter and refused a decree, but his decision was reversed in the Court of appeal: in its view the President had intended to impose no such limitation on the scope of duress, and was ‘merely contrasting a disagreeable situation with one which constituted a real threat’.54 In Singh v Kaur55 where a young man alleged that he had been forced to marry by pressure from his parents, Ormrod lJ commented that there are many arranged marriages in this country, that a rigorous test must be applied, and that he would not like to see the life, limb or liberty test watered down. More recently, Munby J has held that the ‘life, limb or liberty’ test ‘is no longer the law, if it ever was’.56 Given the conflict between two Court of appeal decisions, the strict legal position may be arguable, but the trend in judicial opinion seems clear. ‘Forced Marriages’ The difference between an ‘arranged’ marriage and a ‘forced’ marriage can be difficult to define. Cases in which there are no threats to kill the unwilling party but other forms of unacceptable pressure are alleged have become distressingly frequent in the context of ‘forced marriages’.57 Munby J has repeatedly described [1971] 2 all eR 828. The petitioner was also denied a decree on the ground of incapacity to consummate the marriage due to her invincible repugnance for her husband. cf D v D (1982) 12 Fam law, where a decree was granted on the ground of non-consummation but not lack of consent. 53 (1983) 4 FlR 232. 54 a scottish court, considering this difference of opinion, held that ‘a threat of immediate danger to life, limb or liberty, or some equally serious threat’ was required: Kaur or Singh, above n 13 (emphasis added); on the facts a threat to tear up the wife’s passport, leaving her stranded in India met this test. The case reported as Re S (Practice: Muslim Women Giving Evidence) [2007] 2 FlR 461 has similar facts and the same result, but the court says nothing as to the nature of the test for duress. 55 (1981) 11 Fam law 152. 56 NS v MI, above n 30, [27], citing P v R (Forced Marriage: Annulment: Procedure) [2003] 1 FlR 661. 57 see singer J in Re SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] eWHC 3202 (Fam), [2006] 1 WlR 81: ‘there is a spectrum of forced marriage from physical force or fear of 51 52

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such marriages as ‘utterly unacceptable’, ‘a gross abuse of human rights’, ‘an appalling practice’, ‘an abomination’;58 nullity decrees will be granted where there is evidence in this context of emotional pressure. This may, as in NS v MI,59 include threats by relatives to commit suicide if the marriage does not take place. These cases seem to go beyond the scope of duress as defined in Szechter v Szechter. although not concerned with the question of nullity, it is noteworthy that section 63a of the Family law act 1996, as inserted by the Forced Marriages (Civil Protection) act 2007, offers definitions. a person (‘a’) is forced into a marriage if another person (‘B’) forces a to enter into a marriage (whether with B or another person) without a’s free and full consent; it does not matter whether the conduct of B which forces a to enter into a marriage is directed against a, B or another person; and ‘force’ includes ‘coerce by threats or other psychological means.’ The Reality of Consent a broader approach to the issue of duress has also been taken in Ireland. In reading the Irish cases, we need to remember that no divorce was available in Ireland until 1997 and to appreciate the very strong influence of the Catholic Church, at least in earlier years, on social and moral attitudes. The Irish courts adopted a subjective test of duress60 and held that ‘[a]ny degree of duress which in fact causes a person to agree to a marriage to which he or she would not otherwise have agreed invalidates the marriage’.61 In the leading case of N (orse K) v K62 the Irish supreme Court specifically contrasted the approach in Szechter v Szechter with the broader view taken in Ireland. even a lack of information, as opposed to direct threats, may result in a marriage being set aside on the basis that consent was apparent rather than real.63 The results strike the english reader as extraordinary. For example, in PW v A O’C (otherwise W), 64 a marinjury or death in their most literal form, through to the undue imposition of emotional pressure which is at the other end of the forced marriage range, and that a grey area then separates unacceptable forced marriage from marriages arranged traditionally which are in no way to be condemned, but rather supported as a conventional concept in many societies. social expectations can of themselves impose emotional pressure and the grey area to which I have referred is where one may slip into the other: arranged may become forced but forced is always different from arranged’. 58 Re K, A local authority v N [2005] eWHC 2956 (Fam); Singh v Entry Clearance Officer, New Delhi [2004] eWCa Civ 1075, [2005] 1 FlR 308; NS v MI, above n 30. 59 NS v MI, above n 30. 60 K v McC [1982] IlRM 277. 61 O’K (orse CP) v WP [1985] IR 279. 62 [1985] IR 733. 63 DB (orse O’R) v O’R [1991] 1 IR 289; MO’M (orse O’C) v O’C [1995] 2 IR 253. 64 [1993] 1 IR 324. The annulment was because the wife had twice threatened suicide, once to persuade the husband to travel to england to marry her and again to get him to lie to the register office as to his residential qualification, so that his decision to enter into the marriage was not the result of a fully free exercise of his independent will.

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riage celebrated in england in 1956 was annulled in proceedings begun 33 years later; the parties had lived together for 10 years and had had three children. Marriage to Remain in a Country or leave It One aspect of Szechter v Szechter, though not the whole story, was the wish of all concerned to leave Poland. a wish to leave or to remain in a country features in a number of cases including, it will be remembered, the House of lords decision in Vervaeke (formerly Messina) v Smith.65 The courts in a number of jurisdictions have had to consider such cases and are notably divided in their approach. US v Rubenstein66 concerned a marriage entered into, in return for $200, solely to avoid the deportation of the wife. It was agreed that there would be no cohabitation and that a divorce would be obtained after six months. There are some similarities to the facts of Vervaeke (formerly Messina) v Smith. although the nullity of the marriage was not directly in issue, as the case concerned a criminal charge of conspiracy to bring into the country an alien by false representations, Judge learned Hand held that there was never any valid marriage: Mutual consent is necessary to every contract; and no matter what forms or ceremonies the parties may go through indicating the contrary, they do not contract if they do not in fact assent, which may always be proved. Marriage is no exception to this rule . . . if the spouses agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at all. They must assent to enter into the relation as it is ordinarily understood, and it is not ordinarily understood as merely a pretence, or cover, to deceive others.

a similar position was taken in scotland, following the scottish approach to ‘mental reservations’ generally, in Orlandi v Castelli,67 where the marriage was entered into to enable the man, whose residence permit had expired, to remain in the United Kingdom. On the other hand, in the south african case of Martens v Martens,68 where, in order to be able to enter south africa to live with one man the woman went through a ceremony of marriage with another, a nullity decree was refused: there was a clear intention to enter into a marriage albeit for a limited purpose. What was distinctive about Szechter v Szechter (and the earlier case of H v H) is that no-one was saying ‘marry or else’. as far as one can tell from the report, the wife in H v H thought up the marriage scheme herself. There was no pressure Vervaeke, above n 40. 151 F 2d 915 (2nd Cir, 1945). 67 Orlandi, above n 38. 68 [1952] 3 salR 771. see also Kelly v Minister for Foreign Affairs (Irish High Ct, unreported, 12 December 1995), where a similar approach was taken, but on the facts the marriage held to be part of a genuine relationship; and the rather similar northern Ireland case of Maitland v Donn [2008] nIFam 4. 65 66

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on her to marry, indeed no immediate pressure of any sort. It is difficult to see that the facts meet the test simon P formulated of an ‘immediate danger . . . to life, limb or liberty’. There were also some very odd features of the Szechter case. The szechters’ divorce was obtained without nina Karsov’s knowledge; both she and the security authorities were reluctant to go ahead with the proposed marriage, which took place before her appeal had been heard. The editors of the Law Reports seem correct in identifying the key fact as ‘Fear of inability to survive imprisonment’, but it is not at all clear that the marriage led to nina’s early release, which may have been a response to international publicity such as that generated by amnesty International. nor is it clear that her ability to leave Poland depended on the fact of her marriage; the case does not seem to have been argued on that basis. The marriage, it would seem, was of no effect in more ways than one. COnClUsIOn

There is distinct force in stephen Cretney’s comment that ‘the reasoning in these cases seems somewhat questionable: far from their will being overborne the parties wanted to marry precisely to enjoy the legal consequences of that status’.69 On that view, Szechter v Szechter is almost impossible to reconcile with the House of lords’ decision in Vervaeke (formerly Messina) v Smith. Szechter v Szechter was not cited by counsel in the latter case, but it was understandably in the mind of lord simon of Glaisdale,70 and there is an intriguing passage in his speech: Quite apart from its having been legally adopted and its being consonant with our general law of contract (see Dalrymple v Dalrymple (1811) 2 Hag Con. 54, 105–106, per sir William scott), the english policy towards the sort of marriage in question here seems as soundly based, morally, socially and in reason, as the Belgian, and there appears to be no inherent reason why, giving every weight to the international spirit of the conflict of laws, we should surrender our own policy to that of any foreign society. The type of ‘sham’ marriage in question is not necessarily entered into for a nefarious purpose. auden married the daughter of the great German novelist, Thomas Mann, in order to facilitate her escape from persecution in nazi Germany: see also Szechter (orse Karsov) v Szechter [1971] P 286.

This seems to suggest that some distinction can be drawn between ‘sham’ marriages entered into for a ‘nefarious’ purpose (which will be held valid) and those entered into for non-nefarious purposes, which may be annulled. This may be a way of reconciling some of the decisions, but it offers a distinctly slippery test. The cases rather suggest that it is nefarious to wish to continue to enjoy the 69

260. 70

Family Law in the Twentieth Century: a History (Oxford, Oxford University Press, 2003) 76, fn Vervaeke, above n 40, 164.

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delights of life in the United Kingdom, but non-nefarious to wish to leave a less desirable country. a case in which a party wishes to remain in england in order to avoid return (for example, after a failed asylum application) to a country in which he reasonably fears persecution or even execution would present particular difficulty. It is worth repeating what simon P himself said: The operation of the law is thus reasonably certain and predictable, and it is no service to those who live under its rule to introduce uncertainty and capriciousness, even with the ostensibly laudable aim of meeting a hard case.

What does seem clear is that the boundary test set by simon P, that there has to be an immediate threat to life, limb or liberty (a test the facts of the case itself only just pass) has been abandoned whenever social pressures make that desirable. It was abandoned in Ireland because of the non-availability of divorce and the special pressures created by Catholic attitudes. It was abandoned in england because of the growth of forced marriages, reflecting religious pressures of a different kind. although there have been no cases exploring the issue, the courts now have additional freedom to annul marriages where there was no valid consent for reason other than duress or mistake, where in the statutory language the absence of a valid consent arises ‘otherwise’. We have seen that the boundaries set in Szechter v Szechter have proved distinctly permeable; perhaps they are now simply irrelevant. THe TWIsT In THe Tale

The szechter saga was extraordinary enough as it stood at the time of simon P’s judgment. What happened afterwards? as expected, szymon szechter was able to remarry his wife lydia; but unlike all the best stories they did not live happily ever after. some years later, szymon obtained a second divorce. The reader can perhaps guess whom he then married: yes, nina Karsov.

6 Poels Apart: Fixed Principles and Shifting Values in Relocation Law RAcheL TAyLoR

INTRoDUcTIoN

T

he qUeSTIoN oF relocation is one of the most controversial and intractable problems currently facing family law. The desire of one parent to remove the child to another jurisdiction, leaving the other parent behind, frequently produces deep conflicts between the irreconcilable interests of the parents and child. on the one hand the relocating parent’s freedom to live where she1 wishes is threatened, potentially leaving her isolated from the support of her family network or unable to support herself by working within her area of expertise. on the other hand, the parent left behind risks losing any meaningful relationship with his child, seeing contact reduced to a few phone calls and the occasional holiday visit. The problem is made more difficult by the fact that the interests of the child are rarely clear.2 Given the depth of the problems posed by such cases, it is remarkable that Poel v Poel3 has remained the foundational case on the subject for 40 years. The courts have repeatedly stated that Poel provides the core principles on which the modern law is based,4 and, as Thorpe LJ has observed, ‘[f]ew guidelines for the determination of individual cases, the facts of which are never replicated, have stood so long in our family law’.5 The longevity of the case is particularly surprising as neither the judges deciding the case, nor the contemporary commentators, appeared to regard Poel as raising any novel question of principle. Nonetheless, this short, and apparently routine, decision has produced guidelines that have remained despite significant changes in the social and legal 1 Usually the person seeking leave will be the mother, although this is not always the case, see eg, Re W (A Child) (Removal from Jurisdiction) [2005] eWcA civ 1614, [2006] 1 FcR 346. 2 G Austin, ‘Relocation law and the threshold of harm’ (2000) 34 Family Law Quarterly 63. 3 Poel v Poel [1970] 1 WLR 1469 sub nom P (LM) (orse E) v P (GE). 4 See eg, Re H (Application to Remove from Jurisdiction) [1998] 1 FLR 848, 853; Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction) [2003] eWcA civ 1149, [2003] 2 FLR 1043 [8]; R v R (leave to Remove) [2004] eWhc 2572 (Fam), [2005] 1 FLR 687 [92]. 5 Payne v Payne [2001] eWcA civ 166, [2001] 1 FLR 1052 [27].

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context in which the cases arise. Although the case has received strong support from the court of Appeal,6 it has been subject to widespread criticism and pressure for change from academics, practitioners and pressure groups,7 and there are increasing signs of judicial willingness to reappraise the case.8 As such, this is a timely point to consider whether Poel is capable of supporting the edifice that has been built upon it. The LAW BeFoRe POEL

Poel was not the first case to consider the problem of relocation,9 nor was it the only contemporary case.10 The standard custody order directed that the children subject to it were not to be removed from the jurisdiction without leave, save for holidays and the written consent of the respondent to the custody order.11 At the time that Poel was decided, there does not appear to have been a settled jurisprudence on relocation cases as such. The earlier law demonstrated a reluctance to grant custody to a person who wished to remove the child from the jurisdiction,12 but the cases around Poel suggest that the matter was one of court discretion, with the court taking particular care concerning the best interests of the child but also paying attention to the freedom of the custodial parent.13 Poel does not appear to represent a decisive change; instead, seen in its contemporary context, it is simply another decision on the exercise of discretion in this factually complex, but legally straightforward, area. POEL v POEL

The Facts The facts in Poel can be stated simply and are similar to many of the cases that came after it.14 Stephen Poel was about 18 months old when, in May 1969, his mother left his father taking Stephen with her. Just before Stephen turned two, his mother obtained a divorce bringing her four-year marriage to his father to See esp Payne, ibid. See eg, M hayes, ‘Relocation cases: Is the court of Appeal applying the correct principles?’ [2006] 18 Child and Family Law Quarterly 351; the Resolution debate reported by W Longrigg, ‘The Leave to Remove Debate’ [2005] Family Law 911; and www.relocationcampaign.co.uk. 8 Re D [2010] eWcA civ 593 [4] (Wall LJ); AR (A Child: Relocation) [2010] eWhc 1346 [15] (Mostyn J) and Thorpe LJ, ‘Newsline: Relocation Development’ [2010] Family Law 565. 9 R George, ‘The Shifting Law: Relocation Disputes in New Zealand and england’ (2009) 12 Otago Law Review 107, 111 suggests the first case was Hunt v Hunt (1884) 28 ch D 606. 10 Crosby v Crosby, 30 July 1969 cA Bar Library, Transcript No 309; Tubb v Tubb (1970) 114 Sol J 909. 11 Halsbury’s Laws of England, 3rd edn (London, Butterworths, 1969) Vol 12, 869. 12 PM Bromley, Family Law, 4th edn (London, Butterworths, 1971 ) 279. 13 Crosby, above n 10, 7, 10 and 11. 14 This account is based on that given in the judgments of the court of Appeal. 6 7

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an end. Mr Poel did not seek to defend the petition, nor did he contest the mother’s application for a custody order in respect of Stephen. It appears that Mr Poel continued to enjoy regular access to Stephen for two and a half hours a week and paid a weekly contribution to his maintenance. Mrs Poel married Mr elson a few months after the divorce (so becoming Mrs elson) and was soon expecting a child with her new husband. Mr elson wished to move to New Zealand, having spent some time there in his earlier career in the Merchant Navy. he obtained a job and accommodation in New Zealand, intending to relocate there with his new family, including Stephen. The elsons therefore applied for leave to remove Stephen from the jurisdiction. The application was refused by Judge Potter sitting in Kingston county court, and the elsons appealed to the court of Appeal. The Court of Appeal The appeal was heard on 24 July 1970 by Lord Justice Winn, Lord Justice Sachs and Sir Gordon Willmer. It is evident from the judgments that the case was not viewed as raising any novel or important questions of principle; the reasoning in the judgments is scant, the case runs to a mere five pages in the printed reports, and not a single case is cited in the judgments.15 Instead the case appears to have been viewed as concerning the application of two established principles: first that the welfare of the child was the primary consideration; and second that once custody had been granted the law should be slow to interfere in the reasonable way of life chosen by the custodial parent. on application of these principles the court unanimously found in favour of the elsons and reversed Judge Potter’s decision. Lord Justice Winn’s Judgment Winn LJ, giving the first judgment, considered that the principle to be applied was the same as that applied in making the custody order itself, namely that the welfare of the child was the ‘primary consideration’. Winn LJ’s interpretation of the welfare principle does not appear to equate to the ‘sole consideration’ test used today. Instead Winn LJ considered that the court ‘should have regard primarily to the welfare of the child’ (emphasis added),16 but also to the ‘very dominant factor’17 that there was a custody order in favour of the mother and that that custody was working well. This factor meant that Stephen was ‘in a sense . . . comprised in the family of the stepfather, elson’,18 and as such his interests were given little independent consideration, instead becoming bound 15 16 17 18

Crosby, above n 10 was cited in argument. Poel, above n 3, 1471. ibid. ibid.

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up with the interests of the family as a whole, as the conclusion to the judgment makes clear: [T]he child’s happiness is directly dependent not only upon the health and happiness of his own mother but upon her freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with her new husband and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take this boy to New Zealand which I think quite clearly his welfare dictates.19

Whilst this makes it clear that Winn LJ saw the freedom of the custodial family as significant for Stephen’s own welfare, it is also clear that he valued the freedom of the adults involved for its own sake too. Winn LJ was particularly concerned that any order would interfere with Mr elson’s ‘right to do what he chooses with his life and to live where he chooses’.20 Whilst Mr elson had obtained work as a scaffolder in New Zealand, there was no suggestion that finding work was a motivation for the relocation. Indeed his reasons for moving were not considered in any detail, Winn LJ simply speculated that Mr elson may have enjoyed the climate or the agricultural surroundings.21 Mr elson’s freedom was valued as a matter of principle rather than for its material utility. The interests of Stephen and his father in maintaining a relationship with one another were passed over briefly. Winn LJ noted that it was a ‘grave thing’ that Stephen would be deprived of the advantage of ‘of having the advice of his father from time to time, and, in case of need, of falling back upon him for protection and care’,22 but as there was no evidence of shortcomings in the step-family’s provision for the child, this factor was not given any significant weight. The father’s own interests received little more than a cursory mention, indeed the current contact that he enjoyed with Stephen is not mentioned in the judgments.23 contact between Stephen and his father does, therefore, appear to be assessed for its practical utility rather than for the inherent value in the relationship itself. Despite the acknowledged fine balance of the case, Winn LJ found these considerations sufficient to reverse the decision of Judge Potter and to allow the mother to relocate to New Zealand with Stephen. Lord Justice Sachs’ Judgment Whilst Lord Justice Sachs simply made a brief concurring speech, it is his speech which is most often quoted in the cases that followed Poel. The key passage in his speech is worth quoting in full: ibid 1473. ibid 1471. 21 ibid. 22 ibid. 23 A fund of £100 was set up towards a future trip for Mr Poel to New Zealand or for Stephen to return to the UK if necessary. 19 20

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When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear. 24

Again the emphasis of the judgment is on both the freedom of the custodial parent to live her life as she wishes and upon the welfare of the child. Sachs LJ explicitly links the two, noting that strains produced from the restriction of the custodial parent might well interfere with the welfare of the child. here the family’s plans were reasonable, if the court were to order them not to take the child they would stay, possibly to the detriment of the child, and in those circumstances the court should not interfere with the decision of the family. As the judge had not placed sufficient interest on this freedom the court was entitled to intervene. Sir Gordon Willmer’s Judgment Sir Gordon Willmer also made a brief concurring speech although in somewhat equivocal terms, feeling that, whilst he would have allowed the mother’s application, he had doubts as to whether the judge’s decision could be described as wrong. Whilst he clearly regarded the decision as a discretionary one for the judge, he did not comment on the principles on which that discretion should be exercised. however, having considered the earlier speeches he felt that he was not prepared to dissent from their conclusions.25 The Principle in Poel There are two clear principles given by Winn LJ and echoed by Sachs LJ in Poel. The first is that the welfare of the child is the ‘primary consideration’ and the second is the right of the elsons to live their life as they chose. Both judgments recognise that these two principles are linked, as significant decisions affecting the family as a whole will affect the child as part of that family. consideration of Stephen’s welfare does not go beyond this observation, and independent interests such as his relationship with his father receive, at best, cursory attention. For a child so young this perhaps reflects the factual reality that his welfare 24 25

Re W, above n 1, 1473. ibid 1474.

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would be determined primarily by his relationships with the adults caring for him. The factual assessment of his welfare was, however, primarily a matter for the trial judge. That the court of Appeal felt able to interfere with his decision suggests that either the failure to identify Stephen’s interests with those of the elsons was so wrong that the judge strayed outside of the ambit of his discretion, or that he had otherwise erred as a matter of law. The only other ground on which the judge might be seen to have erred was his failure to place sufficient importance on the freedom of the custodial family. That Winn LJ put significant weight on the custodial parent’s freedom of movement is perhaps clearer in his decision a year earlier in Crosby v Crosby, 26 in which he granted a father permission to relocate, explaining his reluctance to interfere with the father’s decisions as follows: [I]t seems to me that a father who has custody is in very much the same position in the eyes of the law as a sole natural guardian or sole parent. In a sense, it is the court that inhibits what would otherwise be the absolute right at common law of such a parent to take his children wherever he likes in the world.

This view is echoed in Poel both in Winn LJ’s concern for the right of Mr elson to do what he chose with his life, and in Sachs LJ’s concern that the court should not ‘lightly interfere’ with the reasonable decisions of the custodial parent. It is in this context that Winn LJ considered that the custody order in favour of the mother was a ‘very dominant factor’ in Poel. This observation is difficult to reconcile with the modern understanding that the welfare principle means that welfare is the sole consideration. To understand this difficulty it is important to look at the timing of Poel. The case was heard a year and a half after the decision of the house of Lords in J v C,27 the case that is widely regarded as establishing the modern interpretation of the welfare principle. This interpretation of J v C took some time to be established as can be seen from the contemporary edition of Bromley’s Family Law, which stated that welfare was the first and paramount consideration in questions of custody and upbringing but ‘not the sole consideration’.28 on that basis there was no conceptual difficulty in recognising the primacy of the welfare of the child and also recognising that the court should be slow to place restrictions on the freedom of the custodial parent. The relationship between welfare and parental freedom is the heart of the problem of interpreting Poel.

Crosby, above n 10, cA 11. See too cross LJ, 7. [1970] Ac 668. See ch 3 in this volume. 28 PM Bromley, Family Law, 4th edn (London, Butterworths, 1971) 276. See too SM cretney, Principles of Family Law, 1st edn (London, Sweet and Maxwell, 1974) 290 citing J v C in support of the proposition that ‘The law is not that the welfare of the child is the sole consideration’. Similarly, J Jackson, Rayden on Divorce, 11th edn (London, Butterworths, 1971) 891. 26 27

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INTeRPReTING POEL

Contemporary Commentary The initial reception of Poel suggests that contemporaries would have been surprised at its longevity and influence. The contemporary law journals paid little attention to the case aside from the occasional case summary.29 The case received only brief references in the leading texts. The key practitioner text, Rayden on Divorce, cited Poel for the proposition that ‘the court ought not to interfere with the mode of life chosen by the party who had been granted custody provided that it was reasonable’.30 The 1971 edition of Bromley considered the significance of the case to be that the non-custodial parent’s ‘interests must be subordinated to the child’s and emigration will be permitted if this is for the latter’s welfare’.31 The case also received only brief mention in the first edition of cretney’s Principles of Family Law published in 1974, where similarly cretney appeared to view the case as an example of the welfare of the child taking precedence over other interests including the relationship between the child and his father.32 These comments seem to accept the identification of the welfare of the child with that of the step-family. The case is interpreted as subordinating the noncustodial parent’s interests in contact to the child’s interests in the freedom of the custodial family. This is in contrast with much of the current commentary which criticises relocation cases for subordinating the child’s interests in contact to the resident parent’s interests in her own freedom.33 It is striking that, like the court in Poel, the contemporary commentary does not place weight on the child’s interest in knowing his father.34 The 1970s: Welfare and Freedom Whilst the recent law on relocation is well-known, cases in the decade that followed Poel have received less attention. consideration of these cases supports the view that, once it was clear that the future of the children lay with one parent, the courts would generally respect the freedom of that parent to live life as they chose. The cases also support the view that this was both because of the welfare of the child and because of the reluctance to interfere in the reasonable (1971) 1 Fam Law 22. Jackson, above n 28, 901–02. 31 Bromley, above n 28, 279; by the next edition it had been relegated to a footnote: PM Bromley, Family Law, 5th edn (London, Butterworths,1976) 311 fn 6. 32 SM cretney, Principles of Family Law, 1st edn (London, Sweet and Maxwell, 1974) 294. 33 M hayes, ‘Relocation cases: Is the court of Appeal applying the correct principles?’ [2006] 16 Child and Family Law Quarterly 351. 34 A similar approach was taken to the non-custodial mother: Tubb, above n 10. 29 30

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life choices of the custodial parent. Whilst welfare remained ‘paramount’, actual discussion of what that meant for the individual children in question remained rare once the questions of custody had been concluded. In contrast, those cases in this period where there were reasonable alternatives for the upbringing of the children demonstrate a far more intensive consideration of the welfare of the children. Indeed the only two cases of this period in which the court of Appeal prevented the removal of a child are cases where there was both a reasonable alternative to the care of the relocating parent and particular concerns about the welfare of the child. In Bevan v Bevan, 35 the court of Appeal focused intently on individual welfare, particularly educational concerns, in transferring care and control of children aged 11 and 15 from the relocating mother to their actively involved father. In the very different case of Frost v Hartley36 the court of Appeal again focused intensely on the particular child in upholding a decision to transfer custody of a five-year-old to his father, due to serious concerns about the boy’s welfare should he be removed from the jurisdiction of the court and the oversight of social services who had already been heavily involved in his short life. Where there is no realistic alternative to the care of the relocating parent, the welfare of the child receives far less intense scrutiny.37 Indeed in the influential case of Nash v Nash,38 the court of Appeal does not make a single mention of the world ‘welfare’, focusing instead on the freedom of the custodial parent. of particular note is the absence of any significant consideration of the loss of relationship with the other parent in the cases. So, for example, in Tubb v Tubb39 the fact that the relocation of the father and children to Australia was ‘very likely’ to mean that the mother would not see the two children again received little comment in the court of Appeal save for recognising ‘great sadness’ from the mother’s point of view.40 Instead, the cases tended to echo Poel in the assumption that the child is part of a new family and that the interests of this new family stand or fall together, meaning that the welfare of the child is usually best served by allowing the family to choose the life that best suits its needs.41 The cases also support the view that Poel is founded on the notion of custody. At the start of the next decade ormrod LJ, ordinarily a strong supporter of Poel, was very clear that the case did not apply in cases of active joint custody. 42 By contrast, where there was one custodial parent, and custody was working well, the courts repeatedly stated that they should not lightly interfere with the (1974) 4 Fam Law 126. [1977] cLy 329. Although welfare received close attention in deciding whether the alternatives were reasonable: O’N v O’N [1977] cLy 31. 38 [1973] 2 All eR 704. 39 Tubb, above n 10. 40 See similarly: Leaver v Leaver [1977] cLy 322. 41 See eg, Tubb and Crosby, above n 10. 42 Godfrey v Godfrey [1981] cLy 249u. 35 36 37

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plans of a reasonable parent. For example, in Nash, Davies LJ was clear that ‘when one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody’.43 At the end of the decade, ormrod LJ queried whether this reluctance to interfere was a principle of law or of common sense, but found that the fact that it was a forcefully stated ‘proposition of good sense cannot . . . be doubted’.44 It was ormrod LJ who would come to restate these propositions forcefully over the next decade, and in doing so he would appear to elevate them to a principle of law. The Distress Doctrine As J v C became fully understood, and the welfare principle regarded as establishing welfare as the sole consideration, Poel’s focus on parental freedom looked increasingly problematic. ormrod LJ was concerned to defend Poel against the charge that it was inconsistent with the welfare principle. In A v A 45 he firmly stated that the best interests of the child were the governing principle, rejecting the alternative test of simply asking whether the mother’s plans were reasonable. In reality this reaffirmation of the welfare principle had little impact, given that, at least for young children, the child’s welfare was interpreted as depending primarily on the security of the primary carer.46 This is particularly clear from his judgment in Moodey v Field,47 in which he summarised the test to be applied: [I]is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible.

The apparent contradiction with his observation in A v A that reasonableness was not the test can only be explained if the interests of the child are assumed to be those of the parents unless proven otherwise. concern that welfare was being sidelined in favour of parental freedom received its strongest expression in Balcombe J’s remarkable high court decision in Chamberlain v De La Mare.48 In a bold judgment, he implied that the court of Appeal in Poel and Nash had failed to follow the welfare principle, pointing out that his duty was to apply the statute even if the superior court had 43 [1973] 2 All eR 704, 706. See too Davies LJ in Tubb, above n 10 and ormrod LJ in Leaver, above n 40 and Khalil v Khalil [1980] cLy 242. 44 Khalil, above n 43. 45 (1980) 1 FLR 380. 46 Although as the mother in A spoke no english and had no connections with the UK she had a particularly strong case that she would find parenting much more difficult in the UK. 47 [1982] cLy 427. 48 (1983) 4 FLR 434, 436–37. Reported with the court of Appeal decision that reversed it.

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not. The court of Appeal, led by ormrod LJ, vigorously defended Poel as an orthodox application of the welfare principle but diplomatically suggested that the judgments in the case would have been expressed differently had the decision in J v C been at the forefront of their minds. To avoid the apparent inconsistencies between welfare and freedom in the Poel judgments, he minimised the emphasis on the freedom of the custodial family, stressing instead the potential harm that could come from refusal. To ormrod LJ, Poel meant that if the court were to interfere with the freedom of the custodial family the frustrations and bitterness which would result from such an interference with any adult whose career is at stake would be bound to overflow on to children. It would be bound to prejudice the relationship between the step-father in this case and the children, whom he must see as a drag on him . . . [emphasis added].49

The ‘almost inevitable bitterness’ (emphasis added)50 which such an interference was likely to produce meant that adopting the Moodey approach of prima facie approving the plans of the custodial parent was itself in the interests of the child. It is certainly true that there is concern in Poel that restrictions on parental freedom could strain the new marriage and impact on the welfare of the children. In Poel, however, Sachs LJ expresses himself tentatively, considering that interference with the custodial parent may produce strains which might reflect on the welfare of the child.51 In Chamberlain this is stated virtually conclusively: the almost inevitable bitterness is bound to overflow on to the children. The recasting of these concerns in such definite terms strengthened the hand of the court of Appeal. In the decisions that follow, failure to consider this ‘distress factor’ is repeatedly cited as a key reason for reversing a decision to refuse permission to relocate.52 As Mary hayes has observed,53 the willingness of the court of Appeal to intervene in relocation cases is in direct contrast to the usual deference shown to judicial determination of welfare. The activism in relocation cases suggests either that the trial judge must, as a matter of law, place great weight on the strongly worded ‘distress doctrine’ or that the court is extremely sceptical of any factual finding that goes against that doctrine. 54 This is a remarkable conclusion for a proposition that does not appear to have any foundation in the research evidence. ormrod LJ’s reworking of relocation law reaches similar results to the test in Poel but through subtly different reasoning. In Poel, once a child had a future ibid 442. ibid 443. 51 Poel, above n 3, 1473. 52 See eg, Lonslow v Hennig [1986] 2 FLR 378, 384–385 (Dillon LJ), 386 (Lloyds LJ) and 387 (Nicholls LJ); Belton v Belton [1987] 2 FLR 343, 349 (Purchas LJ), 351 (Butler-Sloss J); Re F [1988] 2 FLR 116. 53 M hayes, ‘Relocation cases: Is the court of Appeal applying the correct principles?’ [2006] 16 Child and Family Law Quarterly 351. 54 Mary hayes points out that judicial findings that distress will not affect the children are often characterised by the court of Appeal as expressions of hope rather than findings of fact: ibid. 49 50

Poels Apart: Fixed Principles and Shifting values in Relocation Law 101 with a particular parent, her welfare was judged to be best served by allowing that family to make decisions as to the best way to run their lives. Given the uncertainties of life and a reluctance to interfere in the lives of parents, the court would only intervene when there was a clear welfare reason. In the 1980s, a perceived need to stress welfare as the sole concern gave rise to a focus on harm through the ‘distress doctrine’. Whilst purporting to focus on the welfare of the child, the certainty with which it was expressed effectively operated as a presumption in favour of the custodial parent. however, the shift in emphasis did not automatically benefit custodial parents, as the value placed on their freedom was contingent on the supposed harm to the child. Where a parent showed particular resilience and commitment to her children she could find her application dismissed where a weaker person might have succeeded.55 Nor did it benefit children as the welfare assessment became dominated by this narrow and unproven assumption of harm. Nevertheless, the principles developed by ormrod LJ have essentially survived to the present day. The Modern Law The more recent history of Poel is well-known. The case, as developed by ormrod LJ,56 has survived considerable social and legislative change. The transformation of child law in the form of the children Act 1989 had virtually no impact on the principle. The courts repeatedly regarded the Act as changing the form of the application,57 but not the substance,58 save that the welfare checklist59 may give additional weight to the views of older children.60 By taking this narrow, technical view of the children Act 1989 the courts have sidestepped the challenge posed to Poel by the shift away from custody towards joint parenting. The modern law is founded on the court of Appeal decision in Payne v Payne.61 A strong court of Appeal firmly supported the existing approach to the cases, tracing that approach back to Poel itself. Thorpe LJ summarised the law since Poel in two propositions: Tyler v Tyler [1989] 2 FLR 158. K (A Minor) (Removal from Jurisdiction) [1992] 2 FLR 98, M v M (Minors) (Jurisdiction) [1993] Fam Law 396, MH v GP (Child: Emigration) [1995] 2 FLR 106. 57 children Act 1989, s 8 and s 13 although see R George, ‘changing Names, changing Places: Reconsidering Section 13 of the children Act 1989’ [2008] Family Law 1121. 58 See eg, M v A (Wardship: Removal from Jurisdiction) [1993] 2 FLR 715; Re W (Minors) (Removal from Jurisdiction) [1994] 1 FcR 842; and H v H (Residence Order: Leave to Remove from Jurisdiction) [1995] 1 FLR 529. Although see too X and Y (Leave to Remove from Jurisdiction: No Order Principle) [2001] 2 FLR 118, disapproved by the court of Appeal in Re H (Children) [2001] eWcA civ 1338, [2001] 2 FLR 1277 [19]. 59 children Act 1989, s 1(3). Technically the checklist only applies to applications under s 8, but it is good practice to apply it to s 13 cases: Payne [2001] 1 FLR 1052, [33]. 60 M v A (Wardship: Removal from Jurisdiction) [1993] 2 FLR 715; Re W (Leave to Remove) [2008] eWcA civ 538, [2008] 2 FLR 1170. 61 [2001] eWcA civ 166, [2001] 1 FLR 1052. 55 56

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(a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.62

The court of Appeal in Payne essentially reaffirmed these propositions, defending them against the argument that they no longer held, given the social and legal changes since Poel. Thorpe LJ and Dame Butler-Sloss explicitly rejected a presumption in favour of relocation,63 giving detailed guidance on the discipline to be followed. Nonetheless the continued emphasis on the distress doctrine continues to operate in favour of the relocating parent.64 Has Poel Survived? Poel was founded on two key principles: the welfare of the child and the freedom of the custodial parent. These principles were usually seen as interdependent: the welfare of the child was usually best served by respecting the freedom of the new family. As can be seen in Thorpe LJ’s summary in Payne, these principles remain the foundation of the modern law, and in this sense Poel has survived to the present day. There are, however, changes that have shifted the meaning of each of these propositions. Poel was decided as the welfare principle was undergoing a transformation. The freedom of the custodial parent no longer has any value in its own right, but solely through the lens of welfare. At the same time, as the dominant model of post-separation parenting has shifted from custody to shared parenting, so the assumption that the child’s welfare can be identified with that of the ‘new’ family has become increasingly outdated. To counter this shift the courts have focused instead on the ‘distress doctrine’ and the harm that may come to the child. This means that although the reasoning in Poel has, to an extent, become outdated, the application of the law remains very similar. The relocating parent will usually be permitted to relocate unless there are particular welfare concerns to the contrary. Whether Poel will survive much longer is increasingly doubtful. There has been judicial recognition of the criticisms of the case and the fact that those criticisms leave the law open to challenge.65 In the strongest judicial comment on the case, Mostyn J has recently argued that ‘a review of the ideology of Poel/ ibid [26]. ibid [25] and [82]. Thorpe J had previously described the test as creating a presumption in favour of the relocating parent: MH v GP (Child: Emigration) [1995] 2 FLR 106. 64 M hayes, ‘Relocation cases: Is the court of Appeal applying the correct principles?’ [2006] 16 Child and Family Law Quarterly 351; c Geekie, ‘Relocation and Shared Residence: one Route or Two?’ [2008] Family Law 446; J herring and R Taylor, ‘Relocating Relocation’ [2006] 16 Child and Family Law Quarterly 517. 65 Re D (Children) [2010] eWcA 50 [33]–[34] (Ward LJ); Re G (Leave to Remove) [2008] 1 FLR 1587 [15] Thorpe LJ. 62 63

Poels Apart: Fixed Principles and Shifting values in Relocation Law 103 Payne by the Supreme court is urgently needed’.66 even Thorpe LJ himself has now taken the view that it is ‘not difficult’ to argue for a shift from the principles in Poel.67 Given the strength of the criticism of Poel, its demise looks increasingly inevitable. The chANGING LeGAL AND SocIAL coNTeXT

As Thorpe LJ has observed ‘[w]hen the law enters the field of child welfare statements of principle may not hold their value much beyond the times in which they were expressed.’68 The 40 years since Poel have seen a transformation of the legal and social context in which relocation takes place, both nationally and internationally. These changes challenge the very foundations of the case through changed notions of welfare and post-separation parenting. Further challenges come through the development of human rights and the international response to the problems posed by relocation. These challenges for Poel will be considered in turn. Welfare Principle As Poel was decided, the law was on the cusp of transforming its approach to the welfare principle following the decision of the house of Lords in J v C.69 Poel was decided at a point when welfare was given primary importance but was not understood to be the sole consideration. This allowed the court to give explicit weight to the understandable concern that the judges had for the freedom of the custodial parent. As the understanding of welfare changed, this concern became distorted by focusing not on the parent’s interest in freedom but on the supposed harm that might result to the child if that freedom were restricted. This gloss on the statutory test has produced a rigid approach in place of the usually flexible test of welfare. The courts’ willingness to accept the ‘inevitable bitterness’ argument is surprising given the absence of any significant research to support it,70 and the fact that the courts do not attach such importance to this factor in applying the welfare principle in other areas.71 The approach to maternal distress in relocation cases can be contrasted with that in contact cases. There has been a strong history of judicial scepticism towards the argument that ordering contact against the opposition of the mother could cause such distress that it would AR (A Child: Relocation) [2010] eWhc 1346 [15]. Thorpe LJ, ‘Relocation Development’ [2010] Family Law 565. 68 Re L, v, M, H (Contact: Domestic violence) [2001] Fam 260, 294. 69 [1970] Ac 668. 70 J herring and R Taylor, ‘Relocating Relocation’ [2006] 16 Child and Family Law Quarterly 517. 71 S Gilmore, ‘The nature, scope and use of the specific issue order’ [2004] 14 Child and Family Law Quarterly 367. 66 67

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detrimentally impact on the welfare of the child.72 At the same time as the court of Appeal was readily accepting the ‘inevitable bitterness’ argument in relocation cases, it was playing down the distress caused by domestic violence in contact cases and ordering mothers to push that violence to the background to avoid affecting the welfare of the child.73 Although there is now more awareness of this problem in contact cases,74 the mother seeking to make this argument will face considerable obstacles in proving it is the case as there is no presumption against contact in such cases.75 The contrast with relocation cases, where both the distress to the mother and its effect on the children appear to be readily accepted, is surprising given that the anxiety caused by contact with a violent ex-partner is easily understandable and supported by considerable evidence.76 Similarly, the importance placed on contact with the non-resident parent in relocation cases can be contrasted with that in contact cases.77 In Poel the notion that a relationship between Stephen and his father might be beneficial in itself received no consideration, instead the court simply mentioned the practical disadvantages of the loss of advice and emergency care. contemporary contact cases, on the other hand, placed ‘immense value’ on the relationship and demonstrated reluctance to prevent access save where necessary for the welfare of the child.78 This contrast can also be seen in later cases such as Belton where Purchas LJ was careful to stress that he was not challenging the ‘basic principle’ that the child had a paramount interest in contact, whilst giving that contact significantly less weight than the mother’s freedom in the relocation case before him.79 Where contact has been the decisive factor in refusing relocation, the cases have tended to involve older children, very involved fathers and poor planning on the part of the mother wishing to relocate.80 A more difficult question is whether there has been an increased appreciation of the importance of contact since Poel and whether this is a reason for changing the approach to relocation, an argument rejected by Thorpe LJ in Payne. 81 certainly, as Thorpe LJ observed, the courts have generally recognised the importance of contact throughout the time since Poel.82 Further, whilst there See eg, Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124. See eg, Williams v Williams [1985] FLR 509, 512–13. 74 See eg, Re K (Contact: Mother’s Anxiety) [1999] 2 FLR 703. 75 Re L, v, M, H (Contact: Domestic violence) [2001] Fam 260. 76 See eg, c Sturge and D Glaser, ‘contact and Domestic Violence – The experts’ court Report’ (2000) 30 Family Law 615. 77 Although in some cases relocation may actually increase contact! B (Minors) (Removal from Jurisdiction) [1994] 2 FcR 309. 78 See eg, M v M (child: access) [1973] 2 All eR 81. 79 Belton, above n 52, 345. 80 See eg, M v A (Wardship: Removal from Jurisdiction) [1993] 2 FLR 715 and M v M (Minors) (Jurisdiction) [1993] Fam Law 396. 81 [2001] eWcA civ 166, [2001] 1 FLR 1052 [29]. 82 SM cretney, Principles of Family Law, 1st edn (London, Sweet and Maxwell, 1974) 256 states that the non-custodial parent ‘will almost invariably be granted access’. See too J Jackson, Rayden on Divorce, 11th edn (London, Butterworths, 1971) 907 who says that ‘as a general rule the court is slow to deprive a parent of all contact with his or her child’. 72 73

Poels Apart: Fixed Principles and Shifting values in Relocation Law 105 has been significant research into contact since Poel,83 that research has not been unequivocal in its support for increased contact but has instead highlighted those factors that may contribute to its benefit, or potential harm, in a particular case.84 It might also be argued that the ease of modern communication, particularly through the internet, means that indirect contact will now be easier and more effective than it was at the time of Poel, so direct contact should actually be given less importance. Nevertheless, such arguments should be treated with caution, particularly as the success of these methods tends to depend upon the support of the resident parent.85 Whilst contact is better understood than at the time of Poel, it is difficult to make the simple argument that it is now recognised as more important. There is, however, a significant question as to why the courts have consistently minimised the importance of that contact in relocation cases, despite its recognition in the wider law. Analysis of welfare in relocation cases has tended to rely on generalised assumptions rather than an individualised analysis of the particular child in question. These assumptions are surprising as they seem to contrast with the value placed on contact and on the distress of the resident parent in contact cases. The explanation for this difference can perhaps be found in the overriding importance of the concept of custody in Poel, a concept that has changed radically in the 40 years since Poel. What has changed in that time is not the value placed on contact, but the reality and ideal of post-separation parenting. From Custody to Joint Parenting Sachs LJ’s famous dictum in Poel began with the observation that ‘[w]hen a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent’ (emphasis added).86 The fact that Stephen was, of necessity, in the sole custody of one parent permeates the whole case, determining the assessment of his welfare and the value placed on the freedom of his mother and step-father. 87 Whilst this approach is unsurprising in 1970, it no longer represents the reality of 2010. In the early 1970s, sole custody was the usual result of court orders made following the break down of the parents’ marriage. Sole custody carried with it the right to determine significant decisions in a child’s life including residence. Whilst it was possible for a court to make a split order and vest custody in one parent and care and control in the other, this practice was criticised as creating 83 J Wallerstein and J Kelly, Surviving the Breakup, How Children and Parents Cope with Divorce (New york, Basic Books, 1980). 84 S Gilmore, ‘Disputing contact: challenging Some Assumptions’ [2008] 20 Child and Family Law Quarterly 285. 85 M Freeman, ‘Relocation: The Reunite Research’ (July 2009) available from www.reunite.org. 86 Poel, above n 3, 1473. 87 Thorpe LJ, [2010] International Family Law 127.

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uncertainty. 88 It is notable that in those early relocation cases where joint parenting was adopted, relocation applications were refused and the courts held that Poel did not apply.89 The emphasis on the custodial parent in Poel was closely tied to the perception that Stephen was part of the new family elson.90 This reflects the prevailing ‘logic of substitution’ approach to post-separation custody, through which the ‘new’ family of the step-parent was seen as replacing the family that the child had ‘lost’ on divorce.91 Such an approach found support in the (then dominant) theory that the welfare of the child depended primarily on a close relationship with a single ‘psychological’ parent, meaning that contact with the noncustodial parent could be subordinated to protect the primary relationship with the custodial family.92 The influence of this substitutionary approach can be seen in the contemporary popularity of step-parent adoption, at its height in the early 1970s.93 Whether or not the situation was formalised through adoption, it was the norm to regard the child as primarily a member of the step-family. Anxiety to provide the child with a nuclear family was perhaps understandable in a period where lone-parent families were still relatively rare.94 It was therefore in keeping with the dominant approach to post-separation welfare for the court in Poel to prioritise the stability and autonomy of the new family even at the expense of the relationship between Stephen and his father. It was the introduction of the children Act 1989 that marked the decisive shift away from the custodial approach to post-separation parenting. The Law commission, in its work prior to the Act, was concerned to ‘lower the stakes’ and introduce a system of continuing parenting for both parents to replace the ‘winner takes all’ approach of the existing system.95 The introduction of continuing parental responsibility96 and the flexible menu of section 8 orders to replace the rigid rights-based approach of custodial orders reflected a philosophy that parental separation should not, as far as possible, alter the child’s relationship with each parent.97 These changes were replicated in other jurisdictions 88 PM Bromley, Family Law, 4th edn (London, Butterworths, 1971) 268. See also J Jackson, Rayden on Divorce, 11th edn (London, Butterworths, 1971) 895. 89 See esp Godfrey, above n 42, also Bevan v Bevan (1974) 4 Fam Law 126. 90 Poel, above n 3, 1471. 91 R Van Krieken, ‘The “Best Interests of the child” and Parental Separation: on the “civilising of Parents”’ (2005) 68 MLR 25. 92 J Goldstein, A Freud and A Solnit, Beyond the Best Interests of the Child (New york, Free Press, 1973). 93 S cretney, Family Law in the Twentieth Century: A History (oxford, oxford University Press, 2003) 624, 627 and 705. N Lowe, ‘english Adoption Law: Past, Present and Future’ in S Katz, J eekelaar and M Maclean (eds), Cross Currents (oxford, oxford University Press, 2000). 94 Seven per cent of households with dependent children in Great Britain in 1971 were headed by a lone mother compared to 20 per cent in 2007, office of National Statistics, Social Trends 40 (2010) ch 2, 17. 95 Review of Child Law: Guardianship and Custody (Law com No 172, 1988) [4.5]. 96 ibid [2.11]. 97 B hoggett, ‘The children Bill: The Aim’ [1989] Family Law 217, J eekelaar ‘Parental responsibility: state of nature or nature of the state?’ [1991] 13 Journal of Social Welfare and Family Law 37.

Poels Apart: Fixed Principles and Shifting values in Relocation Law 107 and reflected a growing trend towards understanding children’s welfare as best served if both parents continued to be closely involved in the life of the child.98 This challenged the foundation of Poel, as it could no longer be assumed that it was natural or desirable for the residential parent to accept the sole responsibility of parenting.99 Despite this radical change in the philosophy and legal framework for post-separation parenting, the response of the courts in relocation cases was dismissive, with a near-exclusive focus on the technical process of relocation rather than the challenge to the custodial approach in Poel.100 In Payne itself Dame Butler-Sloss stated the need to reconsider the emphasis on the rights of custodial parents following the changed philosophy of the children Act but then proceeded to cite a line of cases assuming that no change was necessary.101 Surprisingly then, the shift in the conceptual foundations underlying Poel has received almost no attention in the case law. This shift away from the custodial parent approach raises a particularly acute challenge to Poel in the case of shared parenting, especially when that shared parenting is reflected in a shared residence order. Such orders are becoming more prevalent and, whilst not routine, are no longer viewed as unusual.102 Shared parenting is arguably the antithesis of the foundation of Poel, and there is a strong argument that Poel/Payne should not apply where a shared residence order is working in practice.103 More importantly, the growing use of shared residence orders shows a continuation of the move away from the custodial parental model and a continuing erosion of the foundations of Poel. The argument that the shift towards shared residence necessitates a review of the law on relocation has been rejected by the court of Appeal on the basis that such a shift was already underway at the time that Payne was decided.104 Whilst this is true, it does not address the point that the increase in shared residence orders is merely the latest stage in a shift away from the assumptions that underlie Poel.

Van Krieken, above n 91, 35. Although in many cases one parent will continue to accept the overwhelming responsibility for parenting in practice. 100 Walker LJ expressed some doubts on this point in re A (Specific Issue Order: Parental Dispute) [2001] 1 FLR 121 but retracted those concerns in Payne. 101 Payne v Payne [2001] eWcA civ 166, [2001] 1 FLR 1052, [77]. 102 S Gilmore, ‘Shared Residence: A Summary of the courts’ Guidance’ [2010] Family Law 285. Mostyn J goes further, describing shared residence as the rule AR (A Child: Relocation) [2010] eWhc 1346 [52]. 103 Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 and Re D (Leave to Remove: Shared Residence) [2006] eWhc 1794 (Fam), [2006] Fam Law 1006. Discussed c Geekie, ‘Relocation and Shared Residence: one Route or Two?’ [2008] Family Law 446 and R George, ‘Re L (Internal Relocation: Shared Residence Order)’ (2010) 32 Journal of Social Welfare and Family Law 71. 104 Re G (Children) [2007] eWcA civ 1497, [2008] 1 FLR 1587 [13]–[14]. 98 99

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Human Rights A very different development in the legal context since Poel is the increased importance of human rights, both in terms of the treaty commitments entered into by the UK and in the use of such rights in domestic law. of particular importance is the right of the child to have contact with both parents following separation, recognised by the UN convention on the Rights of the child, which entered into force some 20 years after Poel.105 Similarly, for older children the right to full participation is a challenge to an approach that effectively assumes the child’s interests are served by protecting the interests of adults.106 Also significant is the challenge posed by the human Rights Act. Relocation cases will inevitably engage a number of serious and potentially conflicting rights.107 At a minimum, disputes that reach the court will affect the Article 8 rights of all the family members to contact with one another, as well as the rights of the resident parent to freedom of movement. In Poel very little attention was given to the rights of the father and of the child in developing and maintaining a relationship with one another. Whilst significant attention was given to the autonomy of the mother in Poel itself, the way in which the test has developed has focused solely on whether limiting autonomy will affect the child. This means that an emotionally secure parent who is able to shield her child from disappointment will find that her autonomy is less valued than a parent who is unable to do so. Such an approach does not truly recognise the resident parent’s own interests in autonomy. There is a strong argument that the human Rights Act requires consideration of the rights of each family member in the dispute, with the interests of the child being given particular importance.108 This challenge was decisively rejected in Payne,109 although the reasoning of the court of Appeal has received widespread academic criticism,110 particularly on the ground that it misrepresents the european convention on human Rights (echR) reasoning which requires primary, but not exclusive, attention to the interests of the child.

United Nations convention on the Rights of the child 1989, Art 9.3. ibid Art 12. See too Mabon v Mabon [2005] eWcA civ 634, [2005] 3 WLR 460. 107 herring and Taylor, above n 64. 108 S choudhry and h Fenwick, ‘Taking the Rights of Parents and children Seriously: confronting the Welfare Principle Under the human Rights Act’ (2005) 25 Oxford Journal of Legal Studies 453. S choudhry and J herring, European Human Rights Law and Family Law (oxford, hart, 2010) 260–68. 109 Payne v Payne [2001] eWcA civ 166, [2001] 1 FLR 1052, esp [57] and [81] –[82]. 110 S harris-Short, ‘Family law and the human Rights Act 1998: Judicial Restraint or Revolution’ [2005] 17 Child and Family Law Quarterly 329; S choudhry, ‘The Adoption and children Act 2002, the Welfare Principle and the human Rights Act 1998: a missed opportunity’ [2003] 15 Child and Family Law Quarterly 119; and herring and Taylor, above n 64. 105 106

Poels Apart: Fixed Principles and Shifting values in Relocation Law 109 International Context Relocation is necessarily an international problem. If relocation is permitted it will be the law of the destination country that will primarily govern the future welfare of the child and any future parental dispute. If relocation is not permitted there is the fear that the parents may resort to abduction.111 A co-operative approach to these problems is imperative. Although there was some attempt to reach out to the courts of other jurisdictions in the early cases,112 both the international approach to the problem113 and the relocation law of other key jurisdictions114 only began to develop in the decade after Poel. In Payne, Thorpe LJ noted that the common-law jurisdictions all tend to adopt the same test of welfare in relocation cases. This similarity in starting point masks a great divergence in the way in which welfare is actually assessed,115 however, with england and Wales generally being viewed as one of the more permissive jurisdictions.116 Judicial co-operation on the subject has led to the Washington Declaration on International Family Relocation.117 Whilst the Declaration is intended as a document for further discussion and co-operation, rather than a conclusive or binding agreement, it is the product of high-level judicial co-operation between a large number of states and deserves careful consideration.118 The Declaration requires an individualised assessment of welfare, listing those factors that might affect the welfare of the child in a neutral list with no presumption as to likely outcome. Most significantly, the ‘distress factor’ that has dominated domestic relocation law since the 1980s receives no explicit mention: it is only indirectly relevant to point viii, which requires consideration of ‘the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties’. If the Declaration were to influence domestic relocation law it would clearly require a radical rethink of the current law. Given the judicial enthusiasm with which the Declaration has been received, it may well be the catalyst to a revolution in domestic relocation law. 119

Payne v Payne [2001] eWcA civ 166, [2001] 1 FLR 1052, [28]. Crosby, above n 10. 113 especially the hague convention on the civil Aspects of child Abduction 1980. 114 R George, ‘The Shifting Law: Relocation Disputes in New Zealand and england’ (2009) 12 Otago Law Review 107. 115 See eg, D v S [2002] NZFLR 116. 116 A Worwood, ‘International Relocation: The Debate’ [2005] Family Law 621; T Foley ‘International child Relocation’ Research Paper (2006, civil Appeals office). 117 Available at www.hcch.net/upload/decl_washington2010e.pdf. 118 Thorpe, above n 8. 119 AR (A Child: Relocation) [2010] eWhc 1346 [10]–[17]. 111 112

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coNcLUSIoNS

As the foundations of Poel have been eroded, it looks increasingly likely that the approach to relocation will have to change. What should replace it is uncertain. Although the assumption of harm in the distress doctrine has been heavily criticised, the fact that the welfare of the child cannot be isolated from the wellbeing of those around them should not be forgotten.120 Similarly, although there has been an ideological shift towards joint parenting, in many post-separation families one parent still takes on the overwhelming burden of childcare and the non-resident parent has little or no contact with the children.121 Preliminary research in New Zealand has found cases where parents have been prevented from relocating in order to maintain contact with the non-resident parent, despite the fact that there is little prospect of a significant relationship between the child and that parent.122 If the importance of the relationship between the child and the non-moving parent is elevated to a guiding principle, there is a danger that some resident parents will face the full burden of childcare hampered by restrictions on the freedom of the family that serve no practical purpose. The history of relocation law demonstrates the need for caution before introducing general assumptions into the welfare assessment. If Poel is reviewed, as seems increasingly likely, the new test is likely to be an individualised welfare assessment focused on the welfare of the child guided only by a list of relevant but not dominant factors. careful research is needed to aid a better understanding of the welfare of children and families in relocation cases over the longterm. empirical research faces considerable practical difficulties, given the number of variables that may be involved in a relocation case and the difficulty of identifying and following geographically widespread families over a long period.123 At present much of the research that has been carried out has been small scale or focused on one group of parents, and is consequently of limited value.124 To understand the welfare of children involved in these cases more fully, what is needed is large-scale longitudinal research on families where relocation has been allowed and where it has not.125 120 J herring, ‘The human Rights Act and the Welfare Principle in Family Law: conflicting or complementary’ (1999) 11 Child and Family Law Quarterly 223; R George, ‘The Shifting Law: Relocation Disputes in New Zealand and england’ (2009) 12 Otago Law Review 107, 127. 121 A Blackwell and F Dawe, Non-Resident Parental Contact with Children (London, DcA, 2003). 122 N Taylor, M Gollop and M henaghan, ‘Relocation following parental separation in New Zealand: complexity and diversity’ (2010) International Family Law 97. 123 J Mason, ‘Relocation – The Debate’ [2005] Family Law 748, c Bruch, ‘Sound Research or Wishful Thinking in child custody cases? Lessons from Relocation Law’ (2006) 40 Family Law Quarterly 281; herring and Taylor, above n 64. 124 F Judd and R George, ‘International Relocation: Do we Stand Alone?’ [2010] Family Law 63 and c o’Flinn, ‘Back in the Fold’ (2009) 159 New Law Journal 1416. 125 Such research has started in New Zealand, see N Taylor, M Gollop and M henaghan, ‘Relocation following parental separation in New Zealand: complexity and diversity’ (2010) International Family Law 97.

Poels Apart: Fixed Principles and Shifting values in Relocation Law 111 It is astounding that a five-page case that cites no authority and does not appear to have roused any particular argument on principle has founded a doctrine that has lasted 40 years. The legal and social worlds have changed significantly over that time, undermining the assumptions of post-separation parenting that underlie the case. Why Poel has been so influential is difficult to explain: it may simply be the accident of timing in that it was one of the first reported cases raising a factual scenario that would soon become commonplace. The history of Poel shows the danger that statements of common sense can harden into propositions of law that survive long after the foundations that they were built on have disappeared.

7 Welfare, Truth and Justice: The Children of Extra-marital Liaisons AndrEW BAinhAm

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Any Things hAvE changed in the last 40 years. The propensity of those involved in extra-marital affairs to keep quiet about them is not one of them. it was in this changeless context that the house of Lords in S v S; W v Official Solicitor1 considered a consolidated appeal in two cases. They were concerned with when, and on what basis, blood tests should be ordered2 with a view to establishing the true paternity of children born to married mothers. in W v W3 the Court of Appeal had held by a majority of 2–1 that, on the facts of that case, tests ought not to be ordered, but in S v McC (formerly S) and M (Intervening)4 the court, also by a majority, had arrived at the opposite conclusion that they should. different criteria had been employed: in W v W, the majority view was that the child’s welfare was the court’s sole consideration; in S v McC the majority decided that the welfare of the child concerned, though important, was not the sole consideration and that the interests of justice also entered the equation. The principal question therefore for the house of Lords to resolve was this: whether blood testing for paternity was an issue to be determined by what we would now call the welfare or paramountcy principle5 or [1972] AC 24. in fact ‘ordered’ was and is a misnomer. in the case of adults, as opposed to children, the courts do not have jurisdiction to order testing, merely to ‘direct’ it. Where an adult fails to comply with the direction, adverse inferences may be drawn. see Family Law reform Act 1969, ss 20, 21 and 23. in this chapter, where ‘ordered’ is used this is only to reflect the use of this terminology in the case itself. 3 [1970] 1 All Er 1157. 4 [1970] 1 All Er 1162. 5 The principle first appeared in the guardianship of infants Act 1925, s 1 was then reincarnated in the guardianship of minors Act 1971, s 1 and is today enshrined as the central principle in the law affecting children in the Children Act 1989, s 1. On the house of Lords jurisprudence developing the principle see n Lowe, ‘The house of Lords and the welfare principle’ in C Bridge (ed), Family Law Towards the Millennium: Essays for PM Bromley (London, Butterworths, 1997) 125. 1 2

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whether the interests of others, including the public interest in justice, should have any bearing. how far the arguments for establishing the truth should prevail over the legal presumption of legitimacy6 was an important factor to be weighed. Though affairs within marriage, including those resulting in children, have been constantly with us and doubtless always will be, many other things affecting family life and the law’s regulation of it were in the process of radical change when the appeal reached the house of Lords in 1970. The previous year, divorce law had been reformed by the divorce reform Act 1969. it was to be confidently expected that, when the Act came into force in 1971, the new provision for no-fault ‘facts’ based on separation would remove the historical emphasis on fault.7 more particularly for present purposes, adultery would lose its sting. This had for many years after the introduction of judicial divorce been the sole basis for divorce8 and also (in the case of wives) an absolute bar to maintenance.9 1969 was also the year of the Family Law reform Act. One might have thought that its provisions dealing with the courts’ powers to direct blood tests10 would have been highly relevant to the appeal. But both the Court of Appeal and the house of Lords found that the newly enacted provisions did not help at all on the question of principle before them, namely how the court should exercise its discretion.11 This is not to say, however, that the 1969 Act was an irrelevant part of the context. This legislation also pushed forward the evolving 6 At common law a child was presumed to be the child of the mother’s husband and accordingly legitimate if his parents were married at the time of his conception or birth. see Blackstone’s Commentaries, 446 ff. This pater est presumption exists in many other jurisdictions. 7 see for discussion in the context of ancillary relief, douglas, ch 8 in this volume. 8 From 1857 to 1923 adultery simpliciter could be relied upon only by husbands. The matrimonial Causes Act 1923 permitted wives also to petition on the basis of adultery but it was not until the matrimonial Causes Act 1937 (AP herbert’s Act) that the grounds for divorce were extended beyond adultery, essentially to include cruelty, desertion and supervening incurable insanity. 9 if the wife’s conduct released the husband from his common law duty to cohabit with her, his obligation to maintain her terminated as well. so a single act of adultery by her would deprive her of the right to be maintained unless the husband had connived at it or condoned it. see eg, Wright and Webb v Annandale [1930] 2 KB 8; Wilson v Glossop (1888) 20 QBd 354 and Harris v Morris (1801) 4 Esp 41. 10 Above n 2. Lord reid explained the reasoning behind directing, as opposed to ordering, tests on the basis that ‘English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty’ but he noted that some jurisdictions in the Us viewed matters differently and would compel tests. S v S, above n 1, 43. in 2000 the 1969 Act was amended to make it plain, following conflicting high Court decisions in Re R (Blood Test: Constraint) [1998] 1 FLr 745 and Re O and J (Paternity: Ordering Blood Tests) [2000] 1 FLr 418, that the courts do have power to compel a test on a child under 16. The Family Law reform Act 1969, s 21(3) now provides that a bodily sample may be taken from a person under the age of 16 years either if the person with care and control of him consents or, if that person does not consent, where the court considers that it would be in the best interests of that person for the sample to be taken. As we shall see, this causes a degree of confusion in that this is not the same test, established by the house of Lords in S v S; W v Official Solicitor, which the court applies when it considers whether testing is appropriate in the first place. see below. 11 As Lord reid put it, S v S, above n 1, 45: ‘The Act gives no guidance as to the circumstances in which blood tests should be ordered’.

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reform of legitimacy and illegitimacy laws by giving to the illegitimate child the right to succeed to a parent’s estate on intestacy.12 it also made it plain that the presumption of legitimacy could be rebutted on the balance of probabilities, a change to which the house of Lords did attach some significance.13 By 1970, British society had also just experienced the sexual revolution of the 1960s. Births outside marriage were already on the increase, though the explosion was yet to come. But no reliable statistics have ever existed or, it is suggested, can ever exist which tell us the true incidence of adultery, adulterine births or the numbers of adulterini.14 There has been no shortage of those hazarding a guess at the proportion of ‘cuckoos in other men’s nests’, but there is an overwhelming sense that, for obvious reasons, accuracy in this area will continue to elude us. What is abundantly clear is that English law, in common with that in many other jurisdictions, has historically put obstacles in the way of establishing the truth of paternity where the mother is a married woman. in 1950, for example, a majority of the house of Lords in Preston-Jones v Preston-Jones15 held that an interval of 360 days since the husband had last had intercourse with the wife and the birth of a child to her could not, in the absence of further evidence, establish adultery by her16. When in 1970 the house of Lords came to determine the appeal in S v S; W v Official Solicitor the law’s concern with upholding the institution of marriage through the presumption of legitimacy was, notwithstanding the 1969 Act reforms, still a palpable consideration. indeed many countries have long since continued to cling with tenacity to the presumption, even in the face of clear scientific evidence to the contrary, and it has taken intervention by the European Court of human rights to make them shift their ground.17 Likewise the treatment of ‘adulterine bastards’ has historically been less favourable than that shown to other children born to parents who are not married to each other. it even spawned a treatise on the subject.18 When the concept 12 The Act also brought the illegitimate child within the definition of ‘dependant’ for the purposes of claims to family provision under the inheritance (Family Provision) Act 1938. The illegitimate child remained disadvantaged in relation to the intestacy of wider kin until equality was achieved by the Family Law reform Act 1987. 13 Lord reid offered the view, above n 1, 43, ‘that the final abolition of the old strong presumption of legitimacy by section 26 of the Act of 1969 shows that in the view of Parliament public policy no longer requires that special protection should be given by the law to the status of legitimacy’. Lord macdermott, while supporting the greater use of tests, thought that this, together with the effect of s 26, might ‘bring about more paternity issues and thus produce an increase in the numbers of bewildered and unhappy children’. S v S, above n 1, 51. 14 The plural of adulterinus, the Latin term for a child begotten in adultery. 15 [1951] AC 391. 16 There was however other evidence in the case which, together with non-access, established adultery. see also Russell v Russell [1924] AC 687 discussed by s Cretney in L Blom-Cooper, B dickson and g drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009) 670, 678–79. 17 The author has commented on a number of these cases from, respectively, russia, malta, slovakia and Turkey in ‘“ Truth will out”: Paternity in Europe’ [2007] CLJ 278. 18 nicolas, The Law of Adulterine Bastardy (1836).

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of legitimation by subsequent marriage was introduced by the Legitimacy Act 1926, adulterine bastards were specifically excluded.19 They remained excluded for over 30 years until the Legitimacy Act 1959 extended legitimation to all children whose parents subsequently married, whatever their marital status at the time the child was born.20 We can perhaps see in the historical treatment of adulterine children the law’s preoccupation with support for marriage and the subordination of children’s interests to this. The whole notion of legitimation can be seen in retrospect as having little to do with children and everything to do with the state’s interest in upholding marriage. To allow the legitimation of children born to genuinely unmarried parents could be justified as encouraging and upholding marriage as the state in which children should be raised. But where those children were the products of a previously violated marriage, it was far less easy to stomach. Forty years ago there was also a major shift in the thinking of the higher courts on the balance to be struck between the interests of children and adults. in its momentous decision in J v C21 the house of Lords held that the welfare principle, where it applied, meant that the child’s welfare was not only the most important consideration for the court, but was no less than its sole consideration. moreover, this ‘paramountcy’ principle applied whether the dispute was between two parents or between parents and others. This was a period in which there was not so much as a whisper in the English courts about children’s ‘rights’,22 but J v C was undoubtedly a landmark. it established new priorities in disputes concerning children and promoted their welfare over considerations of justice to adults, or any rights those adults might claim to have, where the dispute directly concerned children’s upbringing. There can be no doubt that the house of Lords in S v S; W v Official Solicitor was acutely aware of its then recent decision in J v C,23 but did it govern the matter before it? There had been sharp disagreement in the Court of Appeal on the application of the welfare principle to blood testing and paternity disputes and it is to this disagreement that we must first turn.

19 Legitimacy Act 1926, s 1(2) provided: ‘nothing in this Act shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born’. 20 There were heated clashes in Parliament summarised by david renton mP as arising from the conflicting considerations of ‘sanctity of marriage and compassion towards children, the children not having chosen their parents’. hC deb, vol 598, Col 1463. 21 [1970] AC 668, on which see Lowe, ch 3 in this volume. 22 There was, however, across the Atlantic: the breakthrough for the constitutional rights of children came a few years earlier in the Us supreme Court’s landmark decision in Re Gault 387 Us 1 where the Court memorably held: ‘Whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of rights is for adults alone’. it was the first unequivocal ruling that young people, as individuals, had rights of their own. 23 Lord macdermott and Lord guest were members of the Appellate Committee in both cases.

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ThE COUrT OF APPEAL dECisiOns

WvW The account of the facts in W v W, as articulated by Lord denning mr and summarised in the headnote, is enough to make today’s politically correct recoil. The husband and wife were white and had two children of the family. in late January 1963 the wife, on her own admission, committed adultery with a ‘coloured man’ at her mother’s house. she left London and her butcher husband in July 1963 to live in Bristol with a coach driver. On 6 december 1963 she gave birth to a third child, Paul, who (according to the report of the Official solicitor’s representative) had what could be described as ‘negroid features’. The husband had been paying maintenance for all three children, but then in October 1966 the wife dropped a bombshell on him in the shape and form of a photograph. As Lord denning put it: i have it here in my hand now. it shows the two older as obviously children of white parents. But Paul is very different in features, colour and hair – so different that an ordinary person might think the father of Paul was a coloured man.24

The wife in due course commenced divorce proceedings based on the husband’s cruelty and desertion, but the husband was in the event granted the divorce on the basis of his wife’s adultery. in the course of the proceedings, the court ordered the representation of Paul by the Official solicitor on the trial of the issue of whether the husband was, or was not, his father. Both the husband and wife were willing to submit to blood testing and the wife was willing also that Paul be tested. such tests carried a 70 per cent chance, based on averages, that the husband would be shown not to be the father. But the Official solicitor objected on behalf of the child that such tests were not in his best interests. sir Jocelyn simon P refused to order that a test be carried out on Paul and the husband appealed. dismissing the husband’s appeal, the majority held that the sole criterion for the exercise of the court’s discretion was the best interests of the child, though Cross LJ somewhat cryptically doubted that the child’s interest should be treated as paramount.25 Winn LJ thought there was no issue of principle involved. it was to his mind purely a question of fact whether testing was in the child’s interests or not. he concluded that it was not since the result might be to deprive the child of a father (the husband) without establishing any alternative candidate. in his words:

24 25

W v W, above n 3, 1158. ibid 1161.

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Paul might be told, either at the age of six or later, that the husband of his mother was not his father, without giving him any indication of the identity or characteristics in respect of the man who in nature begot his birth.26

Cross LJ likewise was concerned about what he saw as loss of a father: Paul would be left in the position of having no identifiable father at all and would sooner or later realise that his mother had been lying when she told him that her husband was the father. i cannot think that such a result would be in Paul’s best interests. 27

What was it that was really influencing the majority here? Was it, as the judgments suggest, the hopelessness of identifying an alternative candidate for paternity? The difficulty with this is that it was quite clear, on the mother’s own admission, with whom she had committed adultery in late January 1963. it was mr victor Barsatti from guyana. But mr Barsatti, who had been named in the husband’s answer, had disappeared from the scene and it had been impossible to serve him. The husband’s divorce was therefore granted on the basis of adultery with a man on whom service had been dispensed with. if the majority’s true concern had been with the prevention of lies to the child by the mother, testing would surely have helped. it might have supported the position that the husband was indeed the father or it might have excluded him. if the latter, there would have been nothing to prevent the mother from telling the child, at some appropriate point, of the likelihood that mr Barsatti was his father. This is on the assumption that the mother had only one affair in late January 1963 since, as Lord denning notes: ‘it was a fact that the wife’s mother had coloured men as lodgers, and the wife used to visit her mother at weekends’.28 should we instead interpret the majority decision as an early and rather enlightened blow for social parenthood? modern thinking often views the parent as the one who performs the role of a parent. On this analysis, Paul ought not to be deprived of the established paternity of the husband, on the basis that he was the father in situ; and having a father on the ground is better than not having one at all, even if there is doubt as to the biological position. The flaw in this reasoning is that the husband had never performed the social role of father to Paul and indeed had not seen any of the children for three years at the time of the divorce proceedings. he had merely been sending maintenance. There was therefore a possible financial benefit to the child in maintaining the support liability of the husband which arose automatically by virtue of the presumption of legitimacy. Was it the disinclination to render Paul illegitimate which was the greater influence on the majority? There is some support for this in the judgment of Winn LJ, relying on a passage from the judgment of Lord denning in M (D) v M (S) and G (MDA) intervening).29 But we can only speculate on whether the 26 27 28 29

ibid. ibid. ibid 1158. [1969] 2 All Er 243, 244–45.

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majority may have been influenced by the related consideration of support for marriage. if they were, they were not openly admitting it. Lord denning mr (dissenting) would have none of this and would have ordered tests. First, he felt able to conflate the interests of all concerned. he saw no conflict of interest between the husband, wife, or child, all of whom would, in his view, benefit from revelation of the truth: Paul’s best interests are bound up with the interests of all those about him. Take the little brother and sister. Take the wife. Take the husband. They can all see that there is a question mark about Paul’s paternity; and their attitude to him will be affected by the outcome. Take Paul himself. Whenever there is a question mark as to the parenthood of a child, the one thing a child will want to know as he grows up is: who is my father? he will be torn apart unless he knows. it is better for him, as for everyone else, that the truth should out.30

secondly, Lord denning was concerned with the proper administration of justice, the reputation of the courts, and with what we can conveniently call the ‘best evidence principle’. For him it was in the best interests of everyone, where there was a paternity issue, that it should be decided ‘on the best evidence available’ and ‘on all the evidence and not half of it’.31 The court no longer had to rely solely on presumptions but could, and should, have regard to scientific evidence in the form of available blood testing. And if the court refused to make use of available evidence, the parties might themselves do things privately and establish that the court’s finding was completely wrong. ‘The court’, he said, ‘should not expose itself to such a condemnation’.32 Thirdly, he was influenced by the positive consideration that testing might reveal that the husband was indeed the father. Perhaps optimistically, he thought that because the husband would have to pay maintenance for the child ‘it may be that he will take an interest in Paul’.33 he was also influenced by the positive prospects of confirmed legitimacy rather than the majority’s opposite concern about the effects of illegitimacy, should the test prove negative. Paul would have the chance, as he saw it, of ‘the satisfaction of knowing that a court in England has found that he was legitimate’.34 The key differences between the majority and the dissentient Lord denning were therefore twofold. First, the majority took the view that the child’s welfare was the sole consideration whereas his view was that, important though this was, the interests of others including the interests of justice should be taken into account. secondly, in defining the child’s best interests, the majority attached greater weight to stability and the presumption of legitimacy whereas Lord denning clearly gave precedence to ascertaining the truth. 30 31 32 33 34

W v W, above n 3, 1159. ibid. ibid 1160. ibid. ibid.

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S v McC (formerly S) and M (S intervening) The facts were similar in some ways to those in W v W. Again the issue of the legitimacy of a child arose in divorce proceedings and again the husband was granted a divorce based on the wife’s adultery. The wife had admitted adultery but asserted that the child was the product of marital intercourse with her husband. This was another case in which the wife had spent time away from the matrimonial home and had lived in a house in which there were ‘coloured people’. however, here there was an identifiable co-respondent, a mr m who was a ‘Pakistani’. The wife had intermittently lived in the matrimonial home and away from it between 1963 and december 1965 when she gave birth to a baby girl. she had three older boys who were, in the words of Lord denning mr, ‘ordinary white children’. But the baby girl was ‘said to be coloured’.35 in January 1965, when the wife was away all night, the husband had found a note in her handbag with mr m’s name and address on it. Then, on 20 march 1965 she had gone away again for a time before returning to the matrimonial home, only to leave again in a taxi with mr m. she eventually returned to her husband in december 1965 when ‘she was obviously pregnant and the baby imminent. The husband took her in for humanity’s sake’. But, following the birth, he said the child was ‘coloured and refused to accept her as his’. Finally, on 7 december 1966 the wife took out an affiliation summons against mr m. such a summons had to be issued within 12 months of the birth. in the divorce proceedings in may 1968 the judge ordered that the legitimacy issue be tried because, if the child was a child of the marriage, there was a duty to ensure that proper arrangements were made for her. he ordered that blood tests be taken of the husband, the wife, mr m (subject to his consent) and the child. The husband and wife agreed that they and the child be tested, mr m refused and the Official solicitor again objected to the testing of the child. There was therefore a subsequent order for the testing of just the husband, the wife and the child. Lord denning succinctly put the issue on appeal in this way: The contest is this: the Official solicitor says that a blood test should not be ordered of an infant child unless it is shown to be in the sole and exclusive interest of the child. Counsel for the husband says that a blood test can be ordered, not only in the interest of the child, but also in the interest of others, such as the husband himself. it can also be ordered, he says, in the interests of justice itself.36

The Court of Appeal held by majority (sachs LJ dissenting) that it was right to order the child to be tested because, although her interest was not the sole con35 sachs LJ dissenting was, however, distinctly unimpressed by this feature of the case: ‘it should be recorded that there is not one shred of evidence before this court that this is a coloured child. There is merely an allegation in particulars of the petition that the child is coloured. But this is a matter which the Official solicitor . . . has said is in dispute; according to the Official solicitor, the wife is of dark skin herself. As to these matters we have literally no evidence at all.’ ibid, 1168. 36 ibid 1164.

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sideration, on the facts this was in her social and financial interest. secondly, the interests of justice in determining whether a child was legitimate or not required that the court should have the best available evidence before it. Lord denning, who was clearly aware that he was in the minority in W v W, chose to ignore it in S v McC. Perhaps unsurprisingly, sachs LJ declared himself bound by the majority view in W v W. Karminski LJ noted that Winn LJ in W v W had viewed the appeal as one which raised no issue of principle but a very narrow issue of fact, and Karminski LJ indicated that he approached the matter ‘in the same way’. so sachs LJ relied on precedent to dissent, Lord denning just ignored W v W, and Karminski LJ dodged the awkward issue of precedent by taking the view that the principal issue was one of fact rather than principle. Lord denning was influenced by both social and financial factors affecting the child and by the interests of justice. so far as the child’s financial interests were concerned, it was his view that it was in the child’s financial interest because should the husband be shown not to be the father, the wife would be regarded as a ‘single woman’ for the purposes of the affiliation proceedings against mr m. Accordingly she would stand a better chance of success in these. 37 The child’s social interests required the resolution of the uncertainty surrounding her paternity: i think it is in the social interests of the child – so that she can take her place in society. We do not know what the wife will tell the child about her father. if she tells her that the husband is the father, will not the child say: ‘why does not father want to see me? Why does he not give me presents like other fathers?’ if the wife tells the child that mr m is her father, will not the child say: ‘Why does he not recognise me?’ When she is growing up, she is bound to realise that there is a question-mark about her birth. she will be desperately anxious to know ‘who is my father?’ it is surely in her best interests that the answer should be given as truthfully as possible.38

This is an extremely striking passage. Although expressed as concern about the child’s social interests, what we really see here is Lord denning’s conviction about the importance of biology and his view that it would be supremely important to the child to know the biological position. For Lord denning, it was clear that the definition of ‘father’ meant ‘biological father’ and not ‘social father’. his position is entirely at odds with the view that a ‘parent’ is the person performing the social role of parent. he stops short of offering the view that knowledge of biological origins is the child’s ‘right’ largely, it is suggested, because the concept and language of children’s rights were not on the courts’ agenda in 1970.39 But, as was often the case, some will think that Lord denning ibid. ibid 1165. 39 A rare exception perhaps was Lord denning’s own judgment in June 1969 in Hewer v Bryant [1969] 3 All Er 578. his famous dictum that the parental right is a ‘dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is’ was seized upon by the majority of the house of Lords in Gillick. A case can be made for saying that it was Lord denning who, in 1969, was the early champion of children’s rights in the English courts. it should be noted however that Lord denning did not use the language of children’s rights and was still focused primarily 37 38

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was again ahead of the times. What he said was very much in tune with modern attitudes to what is now expressed as the child’s right to knowledge of biological origins. But something even more striking was to come. For Lord denning the interests of justice were not only relevant but should actually be given priority over the interests of the child: Finally, i must say that, over and above all the interests of the child, there is one overriding interest which must be considered. it is the interests of justice. should it come to the crunch, then the interests of justice must take first place.40

This was a radical view indeed and not one which finds favour at all in the modern public and private law affecting children. But, again, Lord denning put his finger on an issue which was not only critical in 1970 but which continues to vex courts and commentators alike today; how far are the concerns of justice relevant in children cases? Karminski LJ expressed himself to be in complete agreement with Lord denning and his reasons; but, on a closer examination of his judgment it is clear that, at least on the latter issue, he was not. he said that he himself had ‘always had some difficulty in knowing precisely what “paramount” means as it is used in the Act’.41 One is tempted to say that he was not alone in that. its distinctive interpretation in English law is not always well understood, not least by the European Court of human rights.42 But he was content to say that ‘the first concern and the most important, though not the only one, is the interests of the child itself’.43 it seems clear from this that he would, in contrast to Lord denning, give priority to welfare over considerations of justice. he agreed that it was vital that the best evidence available should go before the court, but he was quite emphatic that ‘the public interest should be subordinate to the interests of this or any other infant’.44 sachs LJ, dissenting, was influenced primarily by the prospect of ‘bastardizing’ the child and by the societal disadvantages an illegitimate child might experience: [i]t is no use merely applying humanitarian thought in the quiet atmosphere of these courts; nor is it much use merely looking at the way the legislature is trying hard to better the position of the illegitimate. it is a very practical, human question, and i say on parents’ rights, albeit the limitations placed on them. The author has discussed the importance of Lord denning’s contribution in Hewer v Bryant in A Bainham, ‘Lord denning as a champion of children’s rights: The legacy of hewer v Bryant’ (1999) Denning Law Journal 81. S v McC, above n 4, 1165. The guardianship of infants Act 1925, though similar difficulties over its interpretation arise in relation to the Children Act 1989, s 1. 42 in Yousef v The Netherlands [2003] 1 FLr 210 the European Court held that the best interests of a child might outweigh the Convention rights of a parent and, in so doing, described the child’s interests as ‘paramount’. But paramountcy, according to its interpretation in J v C, involves not an outweighing of adult rights but a complete denial of the existence or relevance of adult rights in disputes over children’s upbringing. 43 S v McC, above n 4, 1170. 44 ibid. 40 41

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no more than that the onus is on those who seek to assert that the human outlook has changed.45

secondly, he was of the view that if only the interests of the child were taken into account that would lead to ‘a relatively small number of cases in which an order for a blood test would be made’, whereas a test which took into account other interests would result in an order ‘in the vast majority of cases, and there would rarely be exceptions’.46 Thirdly, he was concerned that these applications were often motivated by the selfishness of adults, so that ‘almost every application for a blood test which comes before the courts is brought by an applicant from some motive of self interest’.47 Finally, he was in no doubt that the court should strive to avoid a situation in which the child might be left with no legal father at all. it was, as he put it, ‘an undisputed premise that one thing to be avoided was leaving a child with no one the law would designate as its father’.48 sachs LJ’s dissent provokes many questions. What is the attitude of society to ‘illegitimacy’ and what role does the law have to play in this? What conception of the child’s welfare should prevail on a blood test application? Why should adults not seek to defend their own interests in cases involving children and to what extent, if any, should their interests be taken into account? And is it the case that a child is better off with any father rather than no father at all, even if the man concerned is in reality not the father? ThE hOUsE OF LOrds’ dECisiOn

The house of Lords unanimously allowed the appeal in W v W (now reported as W v Official Solicitor) and dismissed the appeal in S v McC (now reported as S v S). The Law Lords found no conflict between the considerations of welfare, truth and justice. They all pointed clearly to the ordering of tests in each of these two cases. Famously, Lord reid formulated a distinctive approach to blood testing for parentage: that tests on a child should be permitted unless the court is satisfied that this would be against the child’s best interests. This may not look at first sight greatly different from applying the welfare principle, but it is a refinement of it which has the effect of creating a presumption in favour of testing. Lord reid also offered the view, to be expressed more generally in the great Gillick decision49 some 15 years later, that as soon as the child was able to understand 45 46 47 48 49

ibid 1167. ibid 1166. ibid 1167. ibid 1168. see Fortin, ch 11 in this volume.

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the matter in issue it would generally be unwise to test that child against his or her will. Lord reid (with whose speech Lord guest and Lord hodson expressly agreed) explained the difference between the two approaches to the relevance of the child’s welfare to testing. A test which required it to be shown that testing was positively in the child’s best interests suffered from the uncertainty of not knowing at the time where the child’s best interests would lie: ‘in most cases it is virtually impossible to determine at the time when the order is sought whether taking the test would or would not be in the child’s interests.’50 he thought that although the court must protect the child, ‘it is not really protecting the child to ban a test on some vague and shadowy conjecture that it may turn out to its disadvantage: it may equally well turn out to be for its advantage or at least do it no harm.’51 The alternative, which he favoured, of requiring it to be shown that it would be against the child’s best interests for a test to be performed would be to create a presumption in favour of testing and tests would be the rule rather than the exception. As to the other interests at stake in testing, he thought that a reasonable parent would surely ‘have some regard to the general public interest and would not refuse a blood test unless he thought that would clearly be against the interests of the child’. he could not assume that ‘in the present cases the husbands [were] acting in selfish disregard of these children’s interests in asking for blood tests’.52 he then considered the child’s possible illegitimacy as the result of testing. he thought that ‘on average’ in 1970 it was ‘still a considerable disadvantage to be illegitimate’, notwithstanding reforming legislation, but he doubted whether ‘again on average, this disadvantage would be greatly diminished by a decision in favour of legitimacy seen to have been based on inadequate evidence after refusal to allow a blood test’. he also thought that the Family Law reform Act 1969 had made a difference in that ‘the final abolition of the old strong presumption of legitimacy by section 26 of the Act of 1969 shows that in the view of Parliament public policy no longer requires that special protection should be given by law to the status of legitimacy’.53 Lord macdermott’s speech was quite unlike that of any of the other Law Lords or any of the judges in the Court of Appeal. his preoccupation was with jurisdictional questions. he began by referring to the ‘ancillary’ jurisdiction which the courts had to direct an adult to take a blood test and held that this extended also to infants.54 The key question for him was whether, in exercising this jurisdiction in the case of a child, the court was bound by the welfare principle.

50 51 52 53 54

S v S, above n 1, 42. ibid 45. ibid 44. ibid 43. ibid 46–47.

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Lord macdermott distinguished two jurisdictions in relation to children. The first or ‘protective jurisdiction’ was of a general nature deriving principally from the Court of Chancery but also to some extent from the common law courts before merger in 1873. The essence of this jurisdiction was that an infant, because of incapacity, might stand in need of the aid of the court. The courts had a duty to protect such an infant and ensure that when engaged in litigation he did not suffer because of incapacity. The second or ‘custodial jurisdiction’ was an aspect of the prerogative and paternal jurisdiction of the Court of Chancery which had now passed to the several jurisdictions of the high Court.55 The ancillary jurisdiction to order blood tests was part of the former jurisdiction and the question raised by it was ‘quite distinct from the question of custody and the other questions mentioned in section 1 of the guardianship of infants Act’. The question of paternity might arise in the custodial jurisdiction but that was not to make it a question of custody. it was ‘only part of the process for determining the facts to be considered in deciding the ultimate and paramount question, namely, what is best for the welfare of the child’.56 it did not therefore have to be shown that a test was for the benefit of a child, though the court would always be alert to the exercise of its protective jurisdiction. Lord morris of Borth-y-gest based his reasoning largely on the best evidence principle while acknowledging the continuing disadvantages of illegitimacy. The resolution of doubt was for him perhaps the key consideration given that the doubt was likely to be already apparent by the time of legal proceedings: ‘it is not as though the tranquil air is then or there first being clouded.’57 he also clearly questioned the thesis which would suggest that any father is better than none: Will it be in the interests of the child to have a conclusion expressed which the husband (if held to be the father) will never accept and which he will feel was given without evidence which would have supported his case? it will not advantage the child to have such a ‘father’ from whom no affection and no benevolence will come.58

Lord hodson identified the threat to the child’s legitimacy as the only real argument against testing but was of the view that, by 1970, ‘the general attitude toward illegitimacy has changed and the legal incidents of being born a bastard are now almost non-existent’. he thought that the interest of justice and the welfare of the child pointed in the same direction: The interests of justice in the abstract are best served by the ascertainment of truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.59

55 56 57 58 59

ibid 48. ibid 50. ibid 55. ibid. ibid 57.

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he also drew an analogy with adoption and addressed the question of timing: [i]t must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence and, as in adoption, the child should be told the truth as soon as possible. [Emphasis added.]60

he agreed with Lord macdermott that blood testing for paternity fell within the protective rather than custodial jurisdiction and was clear that, although the court would always need to protect the child, the child’s welfare was not paramount. But he went further than this. not only was the child’s welfare not paramount – it was not superior either to the other interests at stake: [T]he interests of other persons than the infant are involved in ordinary litigation. The infant needs protection but that is no justification for making his rights superior to those of others. [Emphasis added.]61

reading the speeches in the house of Lords as a whole, the Lords did not perceive any clash between the best interests of the child and the interests of justice and so were not really called upon to resolve any such conflict. The same result might have been achieved on the basis that the child’s interests were paramount. There was unanimity that it was in the best interests of these two children that doubts be resolved by testing. in some ways it is surprising then that they resisted the temptation simply to apply their own recent decision in J v C to the question before them, especially as Lord macdermott and Lord guest had been members of the Appellate Committee in that case. instead they endeavoured to find a principled reason why the interests of children should be paramount in some cases but not in others and came up with the distinction between the protective and custodial jurisdictions. There is no question that the debate continues about when exactly the interests of children should outweigh those of adults or the wider public interest. The issue is whether this rather technical, jurisdictional distinction remains the most effective or appropriate rationale for the weighting to be attached to the competing interests involved. ThE mOdErn signiFiCAnCE OF ThE dECisiOn

if the facts of S v S; W v Official Solicitor were before the courts today, it is unlikely that some of the influences which weighed with the judges in 1970 would have anywhere near the same resonance. First, there is the rather obvious point that it is most unlikely that a contested divorce would be before the courts at all. These have diminished in number to such an extent that they might now be viewed as an endangered species. Adultery still accounts for a high percentage of divorces under the special procedure, but only because it provides one of the quickest means of securing dissolution and 60 61

ibid 59. ibid 58.

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may be rather less distasteful than relying on behaviour. The law, it might be said, has very largely lost interest in adultery and infidelity in marriage.62 A comparatively recent attempt by the Court of Appeal to resurrect its relevance on applications for financial relief63 was firmly and quickly slapped down by the house of Lords.64 Western society today appears distinctly uninterested in matrimonial infidelity except perhaps where this involves celebrities. The tabloid press continues to report their transgressions with considerable glee. if a child results we are no longer inclined to refer to it as an ‘adulterine bastard’; the preferred epithet is now ‘love child’.65 secondly, and allied to this, is the much smaller significance attached today to the institution of marriage, dramatically reflected in the decline in the marriage rate and in the raging argument about whether marriage should have a privileged status at all vis-à-vis other familial relationships. The short point is that the case for concealing the truth, ostensibly to preserve the child’s stability within marriage, is much less likely to weigh with the courts today. Thirdly, the stigma of illegitimacy has all but disappeared. Even in 1970 Christopher French QC felt able to argue in the house of Lords that ‘illegitimacy at the present time is no longer the unmitigated disaster that it once was’. 66 Today it would not be regarded as a disaster at all, or even a disadvantage, though those who have argued that the law has ‘abolished’ illegitimacy are mistaken.67 The status of legitimacy and, by necessary implication, that of illegitimacy has been preserved in pre-1987 legislation and (contrary to the spirit of reforming legislation) has actually been extended to modern legislative measures.68 it remains one of the more disgraceful blots on the family law landscape. But what is quite clear is that no judge deciding a paternity dispute in England today should be remotely influenced by the potential for rendering the child illegitimate as such. Finally, scientific testing has progressed well beyond the conventional blood testing available in 1970. The advent and widespread availability of dnA testing now means that tests can be carried out which establish parentage with near certainty and which are not limited to excluding certain men from 62 Adultery would have disappeared from divorce law if the no-fault regime of Part ii of the Family Law Act 1996 had been implemented. 63 Miller v Miller [2006] 1 FLr 151. 64 Miller v Miller; McFarlane v McFarlane [2006] UKhL 24. 65 some of the more sensational cases include those of politicians Cecil Parkinson, david Blunkett and Tim yeo; Wimbledon tennis champion Boris Becker; and the late Paula yates who discovered late in life that she had been fathered by game show host hughie green and not, as had previously been thought, Stars on Sunday presenter Jess yates. 66 S v s, above n 1, 35. 67 Thorpe LJ, eg, overstated the position when he said in Bellinger v Bellinger [2001] 2 FLr 1048: ‘illegitimacy with its stigma has been legislated away.’ The stigma may largely have gone but the law continues to recognise a status of legitimacy and hence, by necessary implication, one of illegitimacy. The author has examined the issue at greater length in A Bainham, ‘is legitimacy legitimate?’(2009) 39 Family Law 673. 68 The Adoption and Children Act 2002 and the human Fertilisation and Embryology Act 2008 both recognise and rely on the concept of legitimacy. discussed further in Bainham, ibid 676–77.

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paternity.69 if the courts direct tests in order to have the best evidence before them, that evidence is now virtually conclusive. if they do not make a direction, some parties are very likely to obtain their own determinations if they have not already done so. it is of course still the case that if there is no other man than the husband identified as a possible candidate, there might still be an argument that testing could result only in definitively excluding the husband and leaving the child with no legal father. But, more often than not, this is not the case. nowadays we have the phenomenon, not experienced very much if at all in 1970, of the ‘other man’ who is not concerned to dodge the responsibilities of parenthood but rather to assert them.70 given the dramatic societal changes of the last 40 years, what precisely is the claim of S v S; W v Official Solicitor to be a landmark in the development of family law and what is its continued significance today? Perhaps its true claim is that it was the first major decision to grapple with the interaction of three of the most important concepts in the law affecting children – welfare, truth and justice. it can be seen as the locus classicus of the position that, despite the law’s undoubted commitment to the welfare of children, this cannot be the sole or paramount consideration throughout the family justice system because, selfevidently, many other interests are involved. it can also be seen as laying the groundwork for what has become the modern idea that children have a ‘right’ to knowledge of their biological origins. The Lords notably resisted what was at that time a seductive argument:71 that considerations of justice and the rights of others were irrelevant wherever a child’s interests were before the court. how far then has the approach in this case to these three key concepts been developed in the last 40 years? Welfare Family lawyers are familiar with what i have called elsewhere the ‘nuances of welfare’.72 This is the notion that the welfare of children will always be relevant in proceedings which to some extent concern their welfare but how relevant depends entirely on the legislative context. sometimes their interests are 69 For an interesting examination of the impact of the availability of dnA in the context of paternity and kinship see T Freeman and m richards, ‘dnA testing and kinship: paternity, genealogy and the search for the “truth” of our genetic origins’ in F Ebtehaj, B Lindley and m richards (eds), Kinship Matters (Oxford, hart Publishing, 2006) 67. 70 For an example of this phenomenon in England see Re T (Paternity: Ordering Blood Tests) [2001] 2 FLr 1190. For an example in the European Court of human rights see Rozanski v Poland [2006] 2 FLr 1163. 71 seductive because the seminal decision of the Lords in J v C had just given great prominence to considerations of the child’s welfare in matters affecting their upbringing. it does not stretch the imagination too far to regard the identification of a child’s parent as a matter affecting his or her upbringing. 72 A Bainham, ‘The nuances of welfare’ (1995) 54 CLJ 512.

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‘paramount’;73 sometimes they are the ‘first consideration’;74 sometimes they are weighted in the exercise of judicial discretion;75 sometimes they are just relevant but not to be weighted above other considerations.76 Testing for parentage demonstrates yet another nuance in the application of welfare: a course should be followed unless it can be shown to be against a child’s best interests, a formula established in S v S; W v Official Solicitor and one which remains good law today.77 These alternative applications of the welfare consideration are not accidents. They are Parliament’s way of legislating for the interests of children to be weighted, more or less, when set against the interests of the adults concerned or in some cases the public interest. What is important is that the rationale for these subtleties should be clear and justifiable. it may be doubted whether it always is. The distinction drawn by Lord macdermott between the protective and custodial jurisdictions looks, to the modern eye, over-technical and unfit for purpose. This is quite simply because some of those issues which fall within the former are a good deal more important to children than some which fall within the latter. is it, for example, really the case that the determination of parentage or protection of a child from exposure in the media78 are less central or important to the child’s well-being 73 This will only be where the ‘welfare principle’ in the Children Act 1989, s 1(1) applies; ie, where what is to be determined by the court relates to ‘the upbringing of a child’ or ‘the administration of a child’s property or the application of any income arising from it’. in practice, the former is of course very much more significant than the latter. 74 This is so under the matrimonial Causes Act 1973, s 25(1) when the court is considering what orders for ancillary relief are to be made on divorce or annulment of a marriage and similarly under the Civil Partnership Act 2004, sch 5, para 20 on dissolution or annulment of a civil partnership. 75 As in the so-called ‘balance of harm’ test in the Family Law Act 1996, s 33(7). in essence this requires a court to make an occupation order where, inter alia, any relevant child is likely to suffer significant harm attributable to the respondent’s conduct unless equivalent or greater harm would be caused to the respondent and any relevant child by the making of the order. This test effectively attaches a premium to the risk of harm to children. it elevates this over other considerations including housing needs, financial resources and conduct of the parties. it is the result of a deliberate policy to attach greater weight to the risk of harm to the victims of domestic violence, including children, as opposed to the other considerations which arise on excluding someone from his own home. 76 This would appear to be so in all cases, following S v S; W v Official Solicitor, which can be said to fall within the ‘protective’ rather than ‘custodial’ jurisdiction. 77 For a recent application of the test see the Court of Appeal decision in Re L (A Child) [2009] EWCA Civ 1239, a case which illuminates the difference between this test and that in the Family Law reform Act 1969, s 21(3). here it was held that Coleridge J had erred and had set the bar too high in requiring it to be shown under s 20 (which governs the general discretion of the courts to direct scientific tests) that a test was in the best interests of a child. The correct test, following S v S; W v Official Solicitor, was whether testing would be against the child’s best interests. he had failed to distinguish properly between this test and that in s 21(3) which applied only after the s 20 discretion had been exercised. section 21(3) did require that before the person with care and control of a child should be compelled to produce the child for testing, it should be shown to be positively in the child’s best interests for this to be done. Whether this divergence in the statutory tests can be justified, or whether it has simply resulted from a Parliamentary oversight, is a moot point. 78 For some leading cases on striking the balance between media freedom and the protection of children’s interests see Re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47; Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1; Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 and, more recently, Re Child X (A child)(Residence and Contact:

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than the question of whether a child should be dropped off at 6.30 or 6.45 on a sunday evening after a contact session? And given that children proceedings always involve the interests of others and are almost invariably brought by adults, there is substantial doubt whether a paramountcy principle can continue to be justified at all, especially in the light of the balancing exercise required by the European Convention for the Protection of human rights and Fundamental Freedoms 1950 (EChr).79 Of course, it is one thing to debate the relevance of welfare and quite another to define what it is, and Lowe and White have astutely described the house of Lords decision as ‘ironic’ in this respect.80 The very case which decided that the child’s welfare was not paramount was the one which struck a major blow for the interests of children in knowing the truth of their parentage. Truth Today the ‘best evidence principle’ and the claims of the child to knowledge of biological origins have been very largely endorsed by the family courts in paternity disputes. Presumptions were described over a century ago by an American court as ‘the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts’.81 This sentiment was echoed by the Court of Appeal in Re H and A, the leading English paternity case, where it was said by Thorpe LJ that ‘the paternity of any child is to be established by science and not by legal presumption or inference’.82 What in 1970 was seen by the house of Lords as the child’s interest in knowledge of the truth is increasingly expressed internationally as the child’s right. This is recognised explicitly in the United nations Convention on the rights of the Child83 and in the jurisprudence of the European Court of human rights.84 yet, neither the domestic courts nor the European Courts have accepted anything approaching an absolute or unqualified right either to test the truth or, having discovered it, reveal it to the child. 85 Rights of Media Attendance:FPR Rule 10/28 (4)) [2009] 2 FLr 1467. For detailed treatment of the subject see n Lowe and g douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 459–61. 79 As to which see particularly s Choudhry and h Fenwick, ‘Taking the rights of parents and children seriously: confronting the welfare principle under the human rights Act’ (2005) 25 OJLS 453. 80 nv Lowe and rAh White, Wards of Court, 1st edn (London, Butterworths, 1979) 129. 81 Mackowik v Kansas City St J & CBR.Co (1906) 94 sW 256, 262. 82 [2002] 1 FLr 1145, 1154. 83 Article 7(1) is most frequently cited in support of such a right. it provides: ‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents’ (author’s emphasis). 84 see particularly Mikuli´c v Croatia [2002] 1 FCr 720 where the ECthr accepted that a child had a right to know her biological parentage as an aspect of her right to respect for private life under Art 8(1). 85 The ECthr did not, for example, in this case assert any convention right on the part of a man claiming to be the father to establish his paternity.

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The family justice system is still a very long way away from that noble sentiment expressed by John Keats in 1820: ‘Beauty is truth, truth beauty’, – that is all ye know on earth, and all ye need to know.86

The courts still contrive to find reasons why the truth should be withheld from a child,87 and the donor-conceived have no legal right to be told of their status despite recent reforms removing donor anonymity.88 Whether any good ever came out of deceit is a fair question to pose and we should continue to ask it. But perhaps the really intriguing question is whether the truth is in fact being genuinely withheld with children in mind or whether it is really the protection of adult privacy which is the driving force. in the overall context of the march towards a right to knowledge of biological origins, the children of extra-marital relations might be seen as a peculiarly disadvantaged group. Almost certainly significantly more numerous than either the adopted or donor-conceived, they are a largely forgotten constituency. But is their right to knowledge of the truth any less pressing or meaningful than that of others and can anything be done about it? such children (or, as in some reported cases, now adults), are heavily dependent on luck. it was the racial element which generated the doubt over paternity in S v S; W v Official Solicitor and it was the racial element which, over 30 years later, surfaced again to cast doubt on paternity in the quite different context of assisted reproduction. if Leeds general infirmary had confused the sperm of two white men no-one would have been any the wiser. But when they confused the sperm of a white man with that of a black man, the truth was out.89 more generally, the only prospect of establishing biological parentage in the context of extra-marital affairs is where there is something to trigger suspicion; and the only person who is in a position to know, or strongly believe in, the true biological position is the mother of the child. it is she who knows her menstrual cycle. it is she who knows what sexual encounters she had, or did not have, around the time of ovulation. And the approximate time of conception is something which can be measured reasonably accurately as an aspect of ante-natal care. All of this suggests that there ought to be at least some focus on the mother’s legal duties. it needs to be acknowledged at once that marital infidelity is every bit as much, if not more, associated with husbands as it is with wives. There are going to be situations in which a husband is just as aware as his wife that he is not the biological father of the child. And, as everyone knows, it takes two to tango. But Ode on a grecian Urn from Lamia, Isabella, the Eve of St.Agnes and other Poems (1820). For particularly glaring examples see Re K (Specific Issue Order) [1999] 2 FLr 280 and Re J (Paternity: Welfare of Child) [2007] 1 FLr 1064 cf Re F (Paternity: Jurisdiction) [2008] 1 FLr 225. 88 The author has discussed the position of donor-conceived persons in the light particularly of the human Fertilisation and Embryology Act 2008 in A Bainham, ‘Arguments about parentage’ (2008) 67 CLJ 322, 334–36 and in A Bainham, ‘What is the point of birth registration?’ (2008) 20 Child and Family Law Quarterly 449, 462–67. 89 Leeds Teaching Hospitals NHS Trust v A and B [2003] 1 FLr 412. 86 87

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the facts of life are such that no man, husband or otherwise, can ever be 100 per cent sure that no other man was involved. hence it is the mother who is in a unique position to inform the state through birth registration and, in due course, the child of the true position. in the unmarried context, it is the policy of the Welfare reform Act 2009 to seek to maximise the number of births in which both biological parents are correctly registered.90 it is suggested that the current duties relating to registration in the context of marriage could be expressed more clearly to make it plain that the duty on married parents is to register the biological father, whether the husband or not.91 Perhaps we are also approaching the point where the discretion of the courts to direct tests in paternity disputes should be removed. it is already the case that there is in effect a strong presumption in favour of testing. Would it be going much further to make testing mandatory, subject to adverse inferences for those refusing? There might need to be an exception to deal with vexatious litigants and fishing expeditions, but is there really any other good reason for the courts refusing to direct a test? some may feel that if the husband has acted as a social father to the child, it is that social parentage which counts more than the biological truth. As recently as 1993 the Court of Appeal took this view92 but then spectacularly struck out for truth in 1996.93 recently, Choudhry and herring have offered the view that there may have been too great a concentration on the truth principle and on Article 7 of the United nations Convention on the rights of the Child (UnCrC) and not enough on the balancing exercise under the EChr which may require the concerns of stability to be given rather more weight.94 That is one way of looking at it. Another is that it is quite simply not acceptable, given our modern 90 it does so principally by requiring the mother, subject to exceptions, to provide information regarding the father. see Births and deaths registration Act 1953 s 2B as amended by the 2009 Act. 91 in fact the law has long required this despite a laissez faire attitude to situations in which the mother registers her husband even when the biological position may be incongruent with this. The duty on the mother (and on the husband where he is aware of the true position) is to tell the truth at registration and this is backed up by the criminal offence of perjury. see the Perjury Act 1911, s 4 discussed by the author in greater depth in A Bainham, ‘What is the point of birth registration?’(2008) 20 Child and Family Law Quarterly 449, 453. 92 in Re F (A Minor: Paternity Test) [1993] 1 FLr 598 the Court refused an application for tests brought by the mother’s lover with whom she was having sexual relations around the same time that she was also having sexual relations with her husband. The Court held that the child’s physical and emotional welfare was inextricably bound up with her relationship with her mother and the stability of the family unit of which she was part. This was a case in which the mother had become reconciled to her husband and the child had always been raised as a child of the marriage. it should be noted however that while the mother was represented by counsel, the mother’s lover was unrepresented in the Court of Appeal. One can only wonder whether this may have had some impact on the decision. 93 in Re H (Paternity: Blood Test) [1996] 2 FLr 65 Ward LJ famously (or infamously depending on how one looks at it) said of the mother that she ought not to be ‘living a lie’ and that she should be teaching her children that ‘honesty is the best policy’. A significant factor in this case, however, was that the husband had undergone a vasectomy long before the time of conception. 94 s Choudhry and J herring, European Human Rights and Family Law (Oxford, hart Publishing, 2010) 190–95, esp 193. see also J Fortin, ‘Children’s right to know their origins – too far, too fast?’ (2009) 21(3) Child and Family Law Quarterly 336.

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perceptions of autonomy and the rights of children, who in due course will become adults, for the mother to pass off her husband as the father when she knows, or at least strongly suspects, otherwise.95 Justice S v S; W v Official Solicitor has a strong claim to having laid the foundations for the much greater emphasis now placed on establishing the truth in paternity disputes. A major element in the reasoning, as we saw, was that justice required this. But how far have we come more generally in the last 40 years in accepting and carrying forward the principle that justice is a key consideration in disputes concerning children? Justice, it is submitted, is a slippery concept in children cases. it is by no means as well-established as the welfare principle and can indeed be seen as antithetical to it. it is frequently said that if the child’s welfare is the sole consideration in disputes over their upbringing, then the question of the rights of adults or doing justice to them does not enter into it.96 There are however signs that, since the human rights Act, it is becoming more difficult to ignore the rights of others in children cases, and the welfare principle, in its pure form articulated by Lord macdermott, is increasingly being called into question, but perhaps more by commentators than by the judges who have tended to adhere doggedly to it. moreover, a recent decision of the supreme Court strongly supports the position that considerations of justice to all parties and gathering best evidence must enter into the question of whether children should give evidence in care proceedings.97 how far questions of justice should intrude more generally into the welfaredominated arena of children law remains a matter for ongoing debate, but S v S; W v Official Solicitor is certainly one of the more seminal cases to have raised the question.

95 something which has led to tortious actions for damages based on deceit both in England and other jurisdictions. noted in Bainham, above n 87, 327 and fnn 24 and 25. 96 This is widely acknowledged to be the effect of the J v C formulation. The case most frequently cited by way of illustration is Re K (Wardship: Care and Control) [1977] Fam 179 where the wife of an Anglican clergyman was conducting an affair with the church youth leader. nonetheless the time had arrived when a so-called ‘guilty’ party could now be awarded, rather than deprived of, the care and control of her young children in preference to what, at one time, would have been regarded as an ‘unimpeachable’ parent. 97 in Re W (Children) (Abuse: Oral Evidence) [2010] UKsC 12 the issue was whether a 14-yearold girl, who had made profoundly serious sexual allegations against her de facto step-father, should give evidence at a fact-finding hearing in care proceedings relating to her and four younger children in the family unit. The supreme Court held that competing rights under the EChr meant that the existing presumption against a child giving evidence in family proceedings could no longer be justified as such. it also offered the view, however, that the abandonment of the presumption was not likely to result in large numbers of children giving such evidence since the interests of justice would still need to be balanced against other considerations, particularly welfare considerations affecting the child concerned.

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There is no universal formula or view on how to reconcile the often conflicting considerations of welfare, truth and justice in children cases. S v S; W v Official Solicitor was an early decision of great significance in illuminating this problem. yet perhaps it was the two Court of Appeal decisions, and especially the contribution of Lord denning, which have the greater claim to be regarded as a true landmark since it was that Court, and not the house of Lords, which openly appreciated the potential for conflict and attempted to address it.

8 Bringing an End to the Matrimonial Post Mortem: Wachtel v Wachtel and its Enduring Significance for Ancillary Relief GilliAn DouGlAS

inTRoDuCTion When a marriage breaks up, there will thenceforward be two households instead of one. The husband will have to go out to work all day and must get some woman to look after the house – either a wife, if he remarries, or a housekeeper, if he does not. He will also have to provide maintenance for the children. The wife will not usually have so much expense. She may go out to work herself, but she will not usually employ a housekeeper. She will do most of the housework herself, perhaps with some help. or she may remarry, in which case her new husband will provide for her.1

T

HE DECiSion of the Court of Appeal in Wachtel v Wachtel in 1973 is still remembered for these antediluvian comments by lord Denning in relation to the differing lifestyles, and needs, of men and women.2 But the case is also cited as a leading authority for two key principles. first, that the parties’ matrimonial (mis)conduct will generally be irrelevant to the assessment of financial relief, unless it is ‘both obvious and gross’,3 and secondly, that in determining how much a spouse should pay by way of periodical payments to Wachtel v Wachtel [1973] fam 72 per lord Denning MR, 94. lord Denning was not alone in holding such views. i am grateful to Rebecca Probert for drawing the following text, ‘written for young people in school, college and at work, and for their teachers and parents’, to my attention: C Adams and R laurikietis, The Gender Trap: A Closer Look at Sex Roles, Book 2, Sex and Marriage (london, Virago, 1976) 123: ‘not having a mother in the family can also make life much more expensive for fathers coping on their own – unlike women, they have not been trained to do housekeeping, so they tend to shop where it is easiest, not where it is cheapest. They may buy expensive convenience foods, and not be as careful about buying clothes for their children, perhaps getting things that look good but soon wear out.’ 3 Wachtel, above n 1, 90. 1 2

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the other spouse, one-third of the parties’ joint incomes may be taken as a ‘starting point’.4 in this chapter, i consider why it is that, whilst the ruling of the Court of Appeal on the general irrelevance of misconduct to the assessment of financial relief and property adjustment has been more or less consistently reiterated by the judiciary (notwithstanding the clear disapproval of Parliament), its attempt to settle how periodical payments and the allocation of assets should be determined has been more problematic (although, as i will show, the view that ‘thirds’ rather than ‘halves’ may be appropriate has lingered right up to the present day). i argue that the case represented the start of the trend in family policy towards viewing intimate relationships as liberal, autonomous and freely terminable and a corresponding shift in the legal and social view of marriage from a relationship based on dependency – of the wife on the breadwinner husband – to the current view of marriage, (and now civil partnership), as an equal partnership or, as i prefer to describe it, a joint enterprise.5 in this regard, examining how the rulings in the case have fared nearly 40 years on tells us much about how our approach to marriage, not just divorce, has changed in the interim. THE BACKGRounD To THE CASE

first of all, it is necessary to provide some background in order to emphasise how revolutionary the decision was, compared with what had gone before. The introduction of the principle of irretrievable breakdown as the sole ground for divorce under the Divorce Reform Act 1969 meant that the courts dealing with the financial consequences of the ending of the marriage faced a dilemma: how were they to interpret the companion provisions, then set out in section 5(1) of the Matrimonial Proceedings and Property Act 1970?6 it shall be the duty of the court in deciding whether to exercise its powers under section 2 or 4 of this Act in relation to a party to the marriage and, if so, in what manner, to have regard to all the circumstances of the case . . . and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.

Were these to be regarded, as was held in Ackerman v Ackerman, 7 as being ‘obviously intended to codify the existing law and practice’, that is, the pre-existing ibid 94. G Douglas, An Introduction to Family Law, 2nd edn (oxford, oxford university Press, 2004) 11: a ‘jointly undertaken project in which the parties assume equal, but possibly different, burdens and have equal rights to the fruits of their labour’. 6 now see the Matrimonial Causes Act 1973, s 25(1)(2). 7 [1972] fam 225, 232, per Phillimore lJ. He was also party to the judgment in Wachtel by which point he had obviously changed his mind. See below. 4 5

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law and practice? or was the 1970 Act, by contrast, more properly to be regarded as a ‘reforming statute designed to facilitate the granting of ancillary relief in cases where marriages have been dissolved under the 1969 Act, an even greater measure of reform’?8 Conduct Prior to Wachtel v Wachtel The old approach was characterised (or perhaps caricatured) by lord Denning thus: [T]he matrimonial offence . . . affected all that followed. if a person was the guilty party in a divorce suit, it went hard with him or her. it affected so many things. The custody of the children depended on it. So did the award of maintenance. To say nothing of the standing in society. So serious were the consequences that divorce suits were contested at great length and at much cost.9

in fact, as Cretney describes, by the 1900s the courts were prepared to grant a guilty wife a ‘compassionate allowance’, and by the 1960s ‘some judges in the superior courts’ (though not all those at first instance) recognised that only misconduct of a ‘really serious nature, disruptive, intolerable, and unforgivable’10 should justify depriving the wife of all maintenance.11 The willingness of at least the ‘superior courts’ to recognise that an apparently guilty wife might not be entirely to blame for the breakdown of the marriage, and hence should not be completely penalised in the ancillary proceedings, grew during the post-war period, not least thanks to lord Denning’s own position on this matter. As Cretney notes,12 in Trestain v Trestain,13 for example, Denning lJ (as he then was), foreshadowing the arguments of the law Commission nearly 20 years later, stated: i desire to say emphatically that the fact that the husband has obtained this decree does not give a true picture of the conduct of the parties. i agree that the marriage has irretrievably broken down and that it is better dissolved. So let it be dissolved.

However, it did not follow that, at that time, he regarded conduct as being generally irrelevant when assessing financial relief. indeed he went on to add, ‘But when it comes to maintenance, or any of the other ancillary questions which follow on divorce, then let the truth be seen’, and he was concerned more with the artificiality of the divorce proceedings themselves, under which a spouse had Wachtel, above n 1, 91. [1973] fam 72, 89. (one might be forgiven for thinking that, under the new dispensation of divorce proceedings based on irretrievable breakdown, ‘great length’ and ‘much cost’ have become a thing of the past!) 10 in the words of Baker P in Ackerman v Ackerman [1972] fam 1, 6. 11 S Cretney, Family Law in the Twentieth Century: A History (oxford, oxford university Press, 2003) 408. 12 ibid 403, fn 53. 13 [1950] P 198, 202. 8 9

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to be found guilty or not, than with the way in which maintenance was to be determined. in putting forward their reform proposals for ancillary relief in the 1960s, the law Commission accepted that conduct would still be a relevant factor in the court’s deliberations on the finances.14 in their Working Paper, published in 1967,15 they proposed as one of their guiding principles for reform that the distinction between the guilty and the innocent party in the provision that could be made should be abolished. They added: in saying this we certainly do not contemplate that, in the normal way . . . guilt or innocence should be disregarded . . . few would suggest that in awarding maintenance the conduct of the parties should not be an important consideration. But it is now widely recognised that on the breakdown of marriages there are usually faults on both sides and that it is often impossible with justice to stigmatise one as ‘guilty’ and the other as ‘innocent’.16

The latter approach is well-illustrated by the decision of the Court in Ackerman v Ackerman,17 handed down 11 months earlier by a different bench. At first instance, Sir George Baker P gave what he termed a ‘declaratory judgment’ in an attempt to offer the kind of guidance then commonly given by the divorce court to registrars dealing subsequently with proceedings for maintenance.18 on appeal, he was criticised for using a ‘mathematical formula’ to ascribe the ‘precise degree of blame’ of the wife. Phillimore lJ noted that the wife’s apparent ‘misconduct’ needed to be weighed against the other factors to be taken into account under section 5(1), which put her behaviour in context.19 But whilst downplaying the wife’s conduct and upholding the first instance view that it should not, in the end, affect the award, he did not say it was irrelevant in reaching that conclusion, and one has only to read the first instance judgment to see how much time and energy was traditionally put into allegations of misconduct 14 See Cretney, above n 11, 424, and law Commission, Reform of the Grounds of Divorce: The Field of Choice (Cmnd 3123, 1966) para 27. 15 law Commission, Matrimonial and Related Proceedings – Financial Relief (law Com WP no 9, 1967) para 21. See also law Commission, Report on Financial Provision in Matrimonial Proceedings (law Com no 25, 1969) para 6: ‘Payments ordered at the conclusion of the principal suit will depend to some extent on the court’s findings regarding the respective conduct of the parties.’ The Report said little more on the issue, save in paras 81 and 82, noting that the previous legislation referred to the court making orders as it thought ‘reasonable’, ‘fit’ or ‘just’ and producing a ‘set of guidelines’ for the courts similar to those later enacted in s 5. 16 law Commission, Matrimonial and Related Proceedings¸ paras 21, 23. 17 Ackerman, above n 7. The case shows that the litigant in person in the family justice system is not a phenomenon of the new millennium – the husband represented himself both in the High Court and Court of Appeal. 18 As Stephen Cretney explains, the divorce itself was granted by the judges, but the ‘ancillary’ matters were left to the registrars (now known as district judges): see Cretney, above n 11, 402–06. 19 See too, Porter v Porter [1971] P 282, 286, where ormrod J noted that the case before him had ‘to be dealt with under s 5 of the Matrimonial Proceedings and Property Act 1970 which sets out very fully the matters which the court must consider in deciding to make a periodical payments order. Conduct is still a relevant matter, and in some cases may be very important, but it is only one among a number of other serious considerations.’

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at the ancillary relief stage, completely re-hashing the case for the divorce itself (12 pages out of 19 in Baker P’s judgment were devoted to the factual circumstances and allegations). 20 When ormrod J came to give his first instance judgment in Wachtel, he expressed frustration at the seeming refusal of trial judges to give effect to the more liberal view espoused so many years earlier by Denning lJ. A careful reading of section 5 (1) together with section 4, which gives the court very wide new powers to interfere with proprietary rights, suggests that Parliament has intended to bring about a shift of emphasis from the old concept of ‘maintenance’ of the wife and children by the husband to one of re-distribution of assets and, what might be called, ‘purchasing power.’ A parallel shift of emphasis has been brought about, much more clearly, by the Divorce Reform Act 1969, which has changed the conceptual basis of divorce from matrimonial fault or offence, to irretrievable breakdown of the relationship of marriage, retaining some elements of the old fault concept but using them essentially as evidence of irretrievable breakdown. These two Acts, which are clearly intended to be read together, form the new code of family law . . . it is no longer appropriate, if indeed it ever was, to talk about an ‘innocent’ or a ‘guilty’ wife in this context.

The One-third Rule Before Wachtel not only did the Court of Appeal in Ackerman appear to accept that conduct would be a relevant factor in assessing financial relief, but it also, ‘[s]omewhat to the surprise of the profession’, applied the old-fashioned one-third rule to determining the wife’s maintenance, which, according to Peter Bromley, was ‘widely used in practice [though it] had been judicially discredited’.21 The ‘rule’, ‘principle’ or ‘approach’, taken up by the divorce courts (and the magistrates) from the old ecclesiastical courts’ approach to alimony after a divorce a mensa et thoro, meant that the wife was to have such sum by way of maintenance as would bring her income up to one-third of the parties’ joint incomes. like Bromley, Cretney noted that the rule had long served a useful purpose in providing a basis for negotiations between solicitors representing divorcing or separating parties.22 in his History, Cretney cites a number of cases to support his view that the justification for one-third derived largely from custom and tradition,23 but notes that a more modern rationale was put forward by Simon P in Sansom v Sansom:24

for an abbreviated but vivid précis of the allegations, see Cretney, above n 11, 425. PM Bromley, Bromley’s Family Law, 5th edn (london, Butterworths, 1976) 544–45. it was described as ‘discredited’ by Sir Jocelyn Simon P in a case concerning maintenance rather than divorce: Kershaw v Kershaw [1966] P 13, 17. 22 SM Cretney, Principles of Family Law (london, Sweet & Maxwell, 1974) 192, fn 57. 23 Cretney, above n 11, 410 esp fn 97. 24 [1966] P 52, 55. 20 21

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The reason why the ‘rule of one-third’ so often worked out soundly and fairly was because in a typical case the court was concerned with three groups of needs – those of the wife, those of the husband and those of the children for whose support the husband was liable: again, after divorce a respondent husband will sometimes have remarried and thus have undertaken obligations to another woman and possibly their children (though i am not intending to say that the claims of this group are in all circumstances entitled to rank with, much less before, the claims of a wife petitioner for divorce and the children of the marriage).

in Ackerman, the rule was applied without explanation. Phillimore lJ, having rejected the approach taken by the President, simply asserted that ‘the proper course is to start again. i would begin with the “one-third rule” – bearing in mind that it is not a rule’.25 The uncertain status of the rule reflected an obvious discomfort in applying it to cases of either ‘too much’ wealth, or ‘too little’.26 in the former situation, the courts’ reluctance to view a divorced wife as entitled to, or deserving, a sum above what became well-known as her ‘reasonable requirements’ in more modern times (discussed below), reflected a patriarchal view of marriage and the position of wives, whilst in the latter, sheer practicalities could render a onethird approach impossible. This ambivalence and uncertainty have bedevilled the courts’ assessments of ancillary relief, with a clear rationale for property division and ongoing payments after divorce continuing to elude them. THE DECiSion in WACHTEL v WACHTEL

The Factual Background it is a reflection, and an indictment, of the current costs of pursuing ancillary relief litigation that nearly all the reported cases which have achieved ‘precedent’ status in the past decade have been ‘big money’ cases. The artificiality and difficulty of applying rulings in such atypical cases to the mass of divorces being processed on a daily basis by practitioners has been frequently noted. 27 Perhaps one reason why Wachtel has had such resonance down the years is that it concerned a middle-class couple, by no means poor, but not ultra-rich either. it was described by counsel for the wife as ‘representative of 75 per cent of divorce cases so far as matrimonial provision is concerned’.28 Ackerman, above n 7, 234. See Cretney, above n 11, 411–14. 27 See E Hitchings’ study of the ‘everyday case’ in practice: ‘Chaos or Consistency? Ancillary Relief in the “Everyday” Case’ in J Miles and R Probert (eds), Sharing Lives, Dividing Assets: An InterDisciplinary Study, (oxford, Hart Publishing, 2009); E Hitchings, ‘Everyday Cases in the Post-White Era’ [2008] Family Law 873; J Miles, ‘Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane’ [2008] Child and Family Law Quarterly 378. 28 Roger Gray QC, above n 1, 85. The average cost of a house in 1973 was just under £9,800 and the average annual salary was £2,170: data taken from www.fool.co.uk/news/foolseyeview/2002/ fev020422c.htm. 25 26

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The parties were married for 18 years, and had a son and a daughter. The husband was a dentist, earning not less than £6,000 per annum. The wife was a receptionist who worked until the first child was born, and then continued to help the husband from time to time in his dental practice. The wife left the husband, who remained in the matrimonial home, and cross-decrees of divorce were granted, each on the basis of the other’s ‘unreasonable behaviour’. Custody of the son was granted to the husband, and of the daughter to the wife. The matrimonial home was bought on a 100 per cent mortgage, in the husband’s sole name, and had increased greatly in value. At the time of the divorce, it was worth about £22,000, with the mortgage debt standing at £2,000. The husband had met all the mortgage payments and paid for all outgoings. ormrod J ordered that the husband pay the wife a lump sum of £10,000, or half the value of the home, whichever was the lower; and periodical payments of £1,500 per annum (less tax)29 to the wife and £500 per annum for the daughter. The husband appealed. The husband complained that he had ‘in effect been ordered to pay his wife one-half of his capital, and about one-half of his income’.30 He also appealed because ormrod J had found both parties equally to blame for the breakdown of the marriage, and had therefore made no reduction in the amount payable to the wife, in breach, the husband argued, of the requirement in section 5 to have regard to the parties’ ‘conduct’. The Judgment in the Court of Appeal in a passage which may sound depressingly familiar to modern readers, the Court of Appeal noted early in its judgment that counsel for both sides had told the Court that they hoped it would lay down guidelines which could be used by practitioners and judges31 – there were ‘divergences of view and of practice’ between different members of the judiciary, and ‘counsel and solicitors are unable to advise their clients with a reasonable degree of certainty as to the likely outcome of any contested proceedings. it is very desirable to remove that uncertainty and to assist parties to come to agreement.’32 Cretney notes that neither the law Commission nor Parliament had provided any proper discussion of the principles underpinning the new provisions.33

There were particular taxation rules applying to periodical payments orders at the time. Wachtel, above n 1, 88. 31 Cretney, above n 11, 423, fn 178, notes that empirical research confirmed counsel’s view: see W Barrington Baker, J Eekelaar, C Gibson and S Raikes, The Matrimonial Jurisdiction of Registrars (oxford, SSRC, 1977). 32 Per lord Denning, Wachtel, above n 1, 87. 33 Cretney, above n 11, 423. 29 30

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over 30 years later, Sir Mark Potter P, in Charman v Charman (No 4) 34 voiced concern that a later landmark decision, White v White,35 ‘did not resolve the problems faced by practitioners in advising clients or by clients in deciding upon what terms to compromise’ and commented that the more recent decision in Miller v Miller; McFarlane v McFarlane 36 had not been received by specialist practitioners as ‘one that introduces the benefit of predictability and improvement of the prospect of compromise’. The difficulty of predicting the outcome of litigation makes it very hard to ‘bargain in the shadow of the law’,37 but with the cost of financial relief proceedings reaching eye-watering amounts there is a real imperative to try to improve the incentives to the parties to bargain rather than litigate and this helps explain both the longevity and acceptability (by judges and practitioners at least) of the Wachtel ruling on conduct and the more problematic reception of its approval of the one-third rule, as i discuss below. The Court’s Treatment of Conduct lord Denning MR noted that the parties had been found equally responsible for the breakdown of the marriage,38 and this perhaps helped him to take a very robust view of the treatment of conduct in the ancillary proceedings.39 He made clear the link between the shift to irretrievable breakdown of the marriage as the basis of the divorce, and the approach the courts should as a result take to the requirement in section 5 to have regard to the parties’ conduct when determining the financial aspects: Does this mean that the judge in chambers is to hear their mutual recriminations and to go into their petty squabbles for days on end, as he used to do in the old days? Does it mean that, after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. in most cases both parties are to blame – or, as we would prefer to say – both parties have contributed to the breakdown.40

it would therefore be repugnant to penalise the wife for her ‘misconduct’, and her mutual responsibility with the husband for the breakdown of the marriage, when set alongside the contribution she had made during the marriage to the welfare of the family, perhaps over many years. only in the ‘residue of cases where the conduct of one of the parties is “. . . both obvious and gross,” so much so that to order one party to support another whose conduct falls into [2007] EWCA Civ 503, [2007] 1 flR 1246, 1292. [2001] 1 AC 596, Hl. 36 [2006] uKHl 24, [2006] 2 AC 618. 37 R Mnookin and l Kornhauser, ‘Bargaining in the Shadow of the law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. 38 Wachtel, above n 1, 87. 39 Compare the law Commission’s views, cited above (n 15 and accompanying text), and note their later emphasis on this point in The Financial Consequences of Divorce: The Basic Policy (law Com no 103, 1980) para 40, discussed further below. 40 Wachtel, above n 1, 89–90. 34 35

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this category is repugnant to anyone’s sense of justice’ would the court be free to decline to award support, or to reduce such support. But short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life . . . [i]n the financial adjustments consequent upon the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place.41

Bromley greeted this ruling with enthusiasm: This new approach to the problem must be warmly welcomed. it accords recognition to the fact that in the vast majority of cases both parties will bear some responsibility for the breakdown of the marriage, although neither need be to blame morally.42

And he noted (as did Cretney) that the ruling would take away the need for contested hearings, cross petitions, and the airing of allegations of misconduct, in most cases, which should, of course, keep the lid on litigation costs. The Court’s Treatment of the one-third ‘Rule’ The Court endorsed the view taken in Ackerman that the one-third rule was the appropriate and flexible starting point for assessing maintenance. in addition to the justification offered by lord Denning, quoted at the beginning of this chapter, which Bromley described as ‘frankly unconvincing’43 (though not offensive!), his lordship also pointed out that the husband’s expenses would be greater than the wife’s, post-divorce, since he would be carrying most of the cost of two households rather than one;44 that he would have to pay for the children’s support; and that the wife would also be receiving a share of the capital assets (whereas, under the ‘old dispensation’, she would have had to meet the costs of her accommodation from her one-third of income).45 not only was the one-third starting point to apply to maintenance, but also to capital division. lord Denning argued46 that it would not be fair to permit the wife to claim half the capital assets and half the income, nor even half the capital assets and a third of the income.47 Rather, ‘[i]f she has one-third of the family assets as her own and one-third of the joint earnings – her past contributions ibid 90. PM Bromley, Bromley’s Family Law, Supplement to Fourth Edition (london, Butterworths, 1974) A62; SM Cretney, Principles of Family Law (london, Sweet & Maxwell, 1974) 195. 43 Bromley, above n 21, 545. 44 There is indeed empirical evidence that men’s expenses may rise more than women’s after separation, as they are more likely to move out of the matrimonial home and incur additional housing costs; however, women’s incomes decline more: see G Douglas and A Perry, ‘How parents cope financially on separation and divorce – implications for the future of ancillary relief’ [2001] Child and Family Law Quarterly 67, 72. 45 Wachtel, above n 1, 94–95. 46 ibid. 47 Thus the husband was ordered to pay a lump sum of £6,000 rather than £10,000 to the wife. 41 42

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are adequately recognised, and her future living standards assured so far as may be.’ The Court accordingly reduced the lump sum awarded to the wife, from £10,000 to £6,000. Although the Daily Mirror proclaimed the Court’s ruling as a ‘Wives’ lib Charter’, Mrs Wachtel commented rather more caustically: ‘if the appeal has helped the women of Britain i’m all for that, but it hasn’t done me much good.’48 The view that the ruling was not such a triumph for women was also advanced by the President of the national Council of Women of Great Britain, who wrote to The Times to point out that their research had shown how the work of women in the home was undervalued, which might explain why the one-third rule remained common, and to caution against the risk that the one-third ‘starting point’ might become ‘the norm’.49 lord Denning contrasted the position arrived at in Wachtel with that which would pertain were the spouses to be treated as partners and were only the capital assets to be divided, when half-shares would be appropriate: ‘That would be fair enough if the wife afterwards went her own way, making no further demands on the husband. it would be simply a division of the assets of the partnership.’ And he added, ‘That may come in the future’, as indeed, to a greater or lesser extent, it has. He emphasised that the approach was not a rule to apply rigidly; it would serve where – as in the particular case – the marriage had been long-lasting, and the wife had been in the home bringing up the children. it might not be applicable to a short marriage, or where the wife could go out to work. The implication was that, in such cases, capital division with no ongoing support might be appropriate, with the added benefit that the avoidance of periodical payments would ‘help to remove the bitterness which is so often attendant on [them]. once made, the parties can regard the book as closed’.50 This statement foreshadowed the clean-break principle which was to emerge in Minton v Minton51 at the end of the 1970s. THE AfTERMATH of WACHTEL v WACHTEL

The ruling in Wachtel regarding conduct has proved to be of lasting significance, whilst the approach taken to assessing the wife’s share of income and capital has had a more chequered history. in this part of the chapter, i outline the major developments that followed the judgment and seek to explain the reasons for the disparity. The Daily Mirror, 9 february 1973. The Times, 12 february 1973. 50 At 96. See too, law Commission, Report on Financial Provision in Matrimonial Proceedings, above n 15, para 9: ‘A lump sum . . . enables the parties to start afresh without relics of the past hanging like millstones round their necks.’ 51 [1979] AC 593. 48 49

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Conduct Some months after the decision in Wachtel was handed down, the Court of Appeal was invited to take a different view to that of the lord Denning court, but refused. in Harnett v Harnett,52 the Court of Appeal, both as a matter of loyalty to another division of the Court, and on principle, upheld the ‘obvious and gross’ approach. Whilst Cairns lJ, with whom Davies lJ agreed, agreed with the first instance judge, Bagnall J, that, in effect, both parties were equally at fault, Roskill lJ (who had been a member of the Wachtel court) preferred the view that the wife’s conduct (adultery with a youth aged 20 (‘half her age’), who lived from time to time in the family home when his parents were abroad) fell ‘far, far short of the type of conduct which the court had in mind in Wachtel v Wachtel as possibly justifying a reduction in or a refusal of financial support’.53 one may speculate whether lord Denning would have agreed, but the husband’s violence and moody behaviour would no doubt have counted against him. Thereafter, according to Bromley in 1976, ‘the parties’ conduct has been left out of account in almost every reported case’54 although there were indications of disapproval of the approach and the odd rogue case slipped through in the following years.55 in particular, in Blezard v Blezard,56 lawton lJ gave a strong judgment in which he was at pains to stress that he had taken account of the husband’s conduct, which he described as follows: This is a case, all too familiar, in which a man in his late 40s, who had been married for 25 years to a wife aged 51, left her with two children to look after for a younger woman in her mid-30s. it was his decision to leave and to set up home with and marry the younger woman . . . The idea has, i think, got around amongst some lawyers, but not perhaps amongst right-thinking members of the public, that nowadays leaving one’s spouse to set up home with another is a mere accident of life, which should be borne by the wife without fuss and which should not be taken into account when the court exercises its jurisdiction to rearrange the finances of the broken family. in my judgment, that is not the law. Such conduct may be of the greatest importance when the court comes to make a property disposition order under s 24 of the Matrimonial Causes Act 1973.

‘Right-thinking members of the public’ had a strong influence in lobbying for a review of the law, conducted by the law Commission at the start of the 1980s, although their concern (and those of men, in particular),57 was expressed more broadly than an objection to the treatment of conduct per se by the courts. Their [1974] 1 All ER 764. ibid 770. 54 Bromley, above n 21, 553. 55 See Bromley’s Family Law, 6th edn (london, Butterworths, 1981) 556 eg, in which Bromley detected a possible shift in judicial attitudes, to reflect more closely ‘the views of the majority of laymen’ and see the list of cases outlined in law Commission, above n 39, para 40, fn 139, and in SM Cretney, Principles of Family Law, 4th edn (london, Sweet & Maxwell, 1984) 800, fn 13. 56 (1980) 1 flR 253. for a comparable case where the wife was held entirely to blame for the failure of the marriage, and where her claim for a declaration of entitlement to a half share in the matrimonial home was described as ‘impudent’, see Cuzner v Underdown [1974] 1 WlR 641. 57 Represented by the lobby group, Campaign for Justice in Divorce. 52 53

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basic objection to the regime that had emerged was that it imposed a life-long obligation of support which failed to recognise either the logic of divorce as terminating that obligation, or the unfairness on a respondent – usually the husband – who was required to give up a significant part of his property, and income as well, to a wife who may have been responsible for the failure of the marriage. in their initial Discussion Paper,58 the law Commission sought only to set out the issues and problems that had emerged and to offer a range of options for the way forward, without any recommendations. Their hesitation lay in the very strength of the criticisms made, the strong feelings on both ‘sides’ (primarily gendered), as to the merits of their positions, the potential cost of any proposals that would shift responsibility for post-divorce support further to the state, and the fundamental social question – on which a group of lawyers was not qualified to judge – as to the nature of marriage and the respective functions of husband and wife.59 Although by the time they produced their report in response to the consultation generated by their Discussion Paper, they had arrived at some conclusions on how the criticisms should be addressed,60 they regarded ‘conduct’ as an ‘intractable’ problem for the law. The reasons were twofold. first, they argued, the courts cannot apportion responsibility for breakdown in the mass of cases,61 quoting ormrod J in Wachtel v Wachtel at first instance: [The law] is much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown cannot be properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more the shares will, in most cases, approach equality.62

But secondly, they considered that the difficulty of determining which instances of conduct should be regarded as ‘obvious and gross’ had, in the views of some commentators, served to fetter the courts’ discretion and to influence legal advisers to adopt ‘too narrow a view of the law’. nonetheless, they proposed that express inclusion of ‘conduct’ as one of what were now the section 25 factors in the Matrimonial Causes Act 1973 would enable the courts to do their duty of taking account of conduct ‘in those cases where to do otherwise would offend a reasonable person’s sense of justice’. Although this did not in fact make it to their list of recommendations, it was the subject of consideration in Parliament and did emerge in the revised section 25(2), as paragraph (g), using a formulation taken from another early case,63 [T]he conduct of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it. 58 59 60 61 62 63

84.

law Commission, above n 39. ibid para 4. law Commission, The Financial Consequences of Divorce (law Com no 112, 1981). ibid para 37. Wachtel, above n 1, 79. Armstrong v Armstrong (1974) 118 Sol Jo 579, cited in Kokosinski v Kokosinski [1980] fam 72,

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There was a division of opinion amongst the judges and practitioners as to whether this provision would result in a greater emphasis being placed upon conduct.64 However, there was no real change in practice. By and large, the courts continued to limit considerations of conduct to the extreme case, such as Kyte v Kyte65 where the wife, who was engaged in an affair, assisted the husband’s suicide attempts, although there was still the odd decision which, in Cretney and Masson’s view, was ‘close to the line’.66 There have been two further attempts to revise how conduct should be regarded in the intervening years, one by statute, and one in the case law. When reform of the ground for divorce was being debated by Parliament during the passage of the family law Act 1996, at the same time that Parliamentarians were accepting no-fault divorce, they were also, paradoxically, attempting to reinstate issues of conduct at various points in the process.67 A revised section 25(2)(g) was enacted, because in the words of the Parliamentary Secretary in the lord Chancellor’s Department, ‘anecdotal evidence’ suggested that only conduct of a financial nature was being taken into account. The new wording provided that the conduct of each of the parties was to be considered, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution . . . of the marriage, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

However, the provision was never brought into effect. A more recent attempt to revive conduct as relevant in situations other than those which might be regarded as ‘extreme’ can be seen in the first instance and Court of Appeal judgments in Miller v Miller.68 Singer J relied upon an earlier

64 See the discussion by PM Bromley and nV lowe in Bromley’s Family Law, 8th edn (london, Butterworths, 1992) 782. 65 [1988] fam 145. See too, Evans v Evans [1989] 1 flR 351: wife convicted of incitement to murder her husband under a contract killing arrangement. 66 SM Cretney and JM Masson, Principles of Family Law, 5th edn (london, Sweet & Maxwell, 1990) 404, referring to K v K (Financial Provision) [1990] 2 flR 225: husband’s share of the matrimonial home reduced because of his drinking, failure to find work and generally disagreeable behaviour contrasted with wife’s impeccable behaviour. later examples of the classic ‘extreme’ kind include H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (fam), [2006] 1 flR 990, which is self-explanatory, and Clark v Clark [1999] 2 flR 498, where the Court of Appeal, whilst considering it ‘hard to conceive graver marital misconduct’ than the wife marrying a very elderly man, inducing him to buy properties in her name, banishing him from the home to a caravan in the grounds and bringing her lover into the house, nevertheless awarded her a lump sum of £175,000 to which the husband had consented. 67 including in a toughened-up provision allowing for refusal of the divorce where it would result in substantial financial or other hardship to the other spouse or a child of the family and where it would be wrong in all the circumstances, including the conduct of the parties and the interests of any child, for the marriage to be dissolved: family law Act 1996, s 10, revising Matrimonial Causes Act 1973, s 5 (which does not refer to conduct). 68 M v M (Short Marriage: Clean Break) [2005] EWHC 528 (fam), [2005] 2 flR 533 and Miller v Miller [2005] EWCA Civ 984, [2006] 1 flR 151.

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ruling in G v G (Financial Provision: Separation Agreement)69 in which Thorpe lJ considered that, in order to ‘do fairness between the parties’, [t]here must surely be room for the exercise of a judicial discretion between the pole of a wife who is driven to petition by the husband’s unfeeling misconduct and that of a wife who exits from a marriage capriciously and for her own advantage.

Singer J accordingly admitted evidence from both spouses as to the other’s alleged misconduct, and considered himself ‘better able to position myself fairly in relation to [the wife’s] claims than otherwise would have been the case’.70 it is unclear how much of the more than £800,000 the parties spent in bringing the case before him was incurred in addressing the conduct points each raised, but the judge was able to conclude that, ‘to state the obvious’, whilst none of what he had found was conduct which it would be inequitable to disregard, ‘it has the result that it would be unfair to [the wife] to concentrate solely on the bare chronology of this marriage without acknowledging that she did not seek to end it nor did she give H any remotely sufficient reason for him to do so.’71 When Miller reached the Court of Appeal, Thorpe lJ, unsurprisingly, upheld Singer J’s approach, considering that whilst it is ‘pointless, and in terms of costs, risky, to assert misconduct that does not measure high on the scale of gravity’, nonetheless, ‘conduct that would not merit advancing under s 25(2)(g) is not, therefore, irrelevant or inadmissible. often the court’s assessment of the worth of the comparable contributions will require consideration of motives, attitudes, commitments and responsibilities.’72 But the problem with this approach is that it leaves advisers unclear whether to risk ignoring conduct because it does not ‘measure high on the scale of gravity’ or to play safe and introduce it, with the consequent increase in costs and time in requiring the court to evaluate matters which, in the views of earlier courts and the law Commission, were, in the main, non-justiciable. So it is equally unsurprising that the House of lords slapped down this approach when it dealt with Miller the following year.73 lord nicholls made it clear that it was erroneous given that Parliament had ‘drawn the line’ in section 25(2)(g) regarding the kind of conduct which may be taken into account. in his view, in most cases, ‘fairness does not require consideration of the parties’ conduct. This is because in most cases misconduct is not relevant to the basis on which financial ancillary relief is ordered today.’74 Baroness Hale took the same view, emphasising that ‘save in the most obvious and gross cases’, it is impossible to decide which spouse was more to blame for what went wrong in the marriage.75 69 70 71 72 73 74 75

[2004] 1 flR 1011, para 34. M v M (Short Marriage: Clean Break) [2005] EWHC 528 (fam), [2005] 2 flR 533, 537. ibid 542. Miller v Miller [2005] EWCA Civ 984, [2006] 1 flR 151, 158. Miller v Miller; McFarlane v McFarlane [2006] uKHl 24, [2006] 2 AC 618. ibid para 65. ibid para 145.

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So, the House returned the jurisprudence on conduct to the position asserted by lord Denning 30 years earlier, and that is where it remains. The One-third Rule Barrington Baker and colleagues found, in their path-breaking study of the matrimonial jurisdiction of registrars in the early 1970s, that 61 per cent of registrars regarded the one-third approach a useful starting point.76 ormrod lJ, in O’Donnell v O’Donnell77 described Wachtel as the ‘prototype of a very large number of cases with which the courts are dealing every day’ and which assisted ‘hundreds of cases’ to be decided or settled by negotiation, and he had no wish to put a gloss on it which would give rise to uncertainty. nonetheless, he noted that it was not typical of all cases: it concerned a couple who started out with very little, founded a family, and managed to build up capital and acquire a matrimonial home which was paid for out of their earnings. ‘These cases’, he said, ‘are true examples of equal partnership, and such expressions as “family assets” and “the wife earning her share” are wholly apposite to them’78 (in which case, we might today regard them as paradigm examples where an equal share should be the appropriate outcome). He contrasted such cases with others where one or both spouses might bring substantial wealth into the marriage, or acquire assets during it by inheritance or gift, which he considered required different treatment. The case before him was in between the two, in his opinion: the wife worked hard to build up the family-run hotel business, but its development was ‘undoubtedly to a large extent’ due to the injection of capital provided by the husband’s father. The basic objective in this kind of case, in his view, was to meet the wife’s ‘reasonable requirements’, and it was from this point on that this concept began to take priority over the one-third rule as an approach where there was considerable wealth at stake and capital was to be divided.79 Thus, in Page v Page80 ormrod lJ criticised the trial judge for having awarded the wife, after 40 years of marriage, a half share in the substantial capital assets, stating that: There is nothing in the section itself which lends any support to the arithmetical approach to these cases, although in Wachtel v Wachtel this court suggested that the ‘one-third rule’ provided a convenient starting point. The court must perform its duties under s. 25 and consider each of the factors therein set out, bearing in mind the result of applying the ‘one-third rule’ . . . Where there are substantial assets the rule may yield too high a figure. The effect of applying a ‘one half rule’ is, of course, to 76 W Barrington Baker, J Eekelaar, C Gibson and S Raikes, The Matrimonial Jurisdiction of Registrars (oxford, SSRC, 1977) 41–45. 77 [1976] fam 83, 88. 78 ibid 89. 79 Though one-third was still regarded as a suitable starting point in Bullock v Bullock [1986] 1 flR 372 and Dew v Dew [1986] 2 flR 341. 80 (1981) 2 flR 198, 200, also cited by Cretney in his History, above n 11, 431, fn 220.

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exaggerate this difference. Moreover, the choice between a denominator of three or two is highly arbitrary as there are no reliable criteria to guide the choice.

At the other extreme, the one-third approach had little purchase where the husband’s income was too low, as clearly he should not be left with insufficient to live on for his own needs (plus any support for his children or a second family) and the availability of welfare benefits would cushion and protect the wife’s standard of living, whilst any payment by the husband of maintenance would simply go to the state. 81 As ormrod lJ went on to point out in Page v Page, ‘in many cases where the assets are small relative to the needs and obligations of one party, the “one-third rule” produces a result which is too low and obviously does not accord with the requirements of the section.’82 But as Cretney comments, ‘[t]he difficulty with judicial statements such as this is that they fail to reveal the basis upon which it is held that payments are “too high” or “too low”.’83 Struggles with the one-third approach were apparent in other contexts too. Where the matrimonial home was the only asset of any value that the parties had, then the one-third rule might not work, and the courts soon began to find a variety of ways of meeting the parties’ needs, including the well-known techniques of transfer of the whole interest to one spouse, or the use of a charge or Mesher order to preserve an interest in the home – usually a half-share to the spouse out of occupation.84 The house therefore became a symbol of the partnership nature of the marriage, and its disposal a key aspect of the shift in the law towards seeing ancillary relief as focused on division of assets rather than provision of support. Yet despite the insistence of Scarman lJ in Calderbank v Calderbank 85 that ‘husbands and wives come to the judgment seat in matters of money and property upon a basis of complete equality’, it was clear that where husbands were the applicants, the one-third approach – still less any allocation based on equal shares – had to ‘give way to the particular circumstances’ of the parties’ married life, because claims by men were ‘exceptional’. The husband’s award of oneeighth of the assets was upheld. one can see in such cases perhaps a refusal to contemplate wives being bound to the same obligations as husbands, but, maybe in addition, a more subtle view of the dependent husband as being rather similar to the dependent wife, insofar as the law should seek to meet his, as well as her, reasonable needs or requirements, but no more.86 it is unnecessary to rehearse the development and application of the ‘reasonable requirements’ approach which supplanted the one-third rule in ‘big money’ 81 See Cretney, above n 55, 835 and the cases cited, eg S v S [1976] fam 18, Hunter v Hunter [1973] 1 WlR 958. 82 (1981) 2 flR 198, 200. 83 Cretney, above n 55. 84 See Bromley, above n 21, 554–56. 85 [1976] fam 93, 103 86 See Cretney, above n 55, 834.

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cases,87 the creation of devices such as the Duxbury calculation88 to determine the correct capital sum needed to generate the appropriate level of income to meet such requirements, or the use of other approaches such as the ‘net effect’ to compare the impact on husband and wife of a suggested payment of maintenance.89 nor need we review the development of the yardstick and starting point of equality which has now become the primary approach to evaluating claims to the division of assets.90 it is only necessary to point out that the one-third starting point (or endpoint) continues to appear to influence some outcomes (one cannot know if this is true for negotiated settlements as there is no research bearing on the question).91 for example, in McFarlane, the district judge had ordered periodical payments of £250,000 per annum to the wife – one-third of the husband’s net income. on first appeal, Bennett J had noted that this sum was far in excess of the wife’s needs, which she had put at £128,000 per annum (although he awarded her £180,000, in order, he said, to take account of the other factors in section 25). The Court of Appeal, finding Bennett J in error, considered that it was permissible to use periodical payments to accumulate capital in order to do justice to the wife in the light of these other factors, and that the principles of White v White92 should apply to income as well as to capital. However, while Thorpe lJ commented that ‘in the assessment of periodical payments, as of capital provision, the overriding objective is fairness’ he nonetheless concluded that the cross-check of equality is not appropriate . . . first in many cases the division of income is not just between the parties, since there will be children with a priority claim for the costs of education and upbringing. Second . . . [i]n assessing periodical payments the court considers the division of the fruits of the breadwinner’s future work in a context where he may have left the child-carer in the former matrimonial home, where he may have to meet alternative housing costs and where he may have in fact or in contemplation a second wife and a further child.93

The Court therefore restored the original periodical payments order. in the House of lords, the issue in dispute was whether the periodical payments should be limited to a fixed term, as imposed by the Court of Appeal, and the House restored the joint lives order without commenting in substance on the See eg, Preston v Preston [1982] fam 17; Dart v Dart [1996] 2 flR 286. Duxbury v Duxbury [1992] fam 62n. 89 See eg, Stockford v Stockford (1982) 3 flR 364. 90 See E Cooke, ‘Better late Than never? A discussion of White v White’, ch 14 in this volume, and J Miles, ‘Principle or pragmatism in ancillary relief’ (2005) 19 International Journal of Law, Policy and the Family 242; G Douglas, ‘fairness and Equality: the English Courts’ struggles with Property Division on Divorce’ in T Helms and J M Zeppernick (eds), Lebendiges Familienrecht: Festschrift für Rainer Frank (frankfurt am Main/Berlin, Verlag fur Standesamtswesen, 2008) 101. 91 neither the research by G Davis et al (‘Ancillary Relief outcomes’ [2000] Child and Family Law Quarterly 43) nor Hitchings’ study, above n 27, examined the point. 92 [2001] 1 AC 596. 93 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2005] fam 171, para 106. 87 88

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amount,94 although lord nicholls considered that it would properly fall for review if and when the order was reviewed. This was duly done by Charles J in McFarlane v McFarlane,95 who ordered that the payments should cease in 2015, and be of amounts proportionate to the husband’s net income, ranging from 40 per cent up to £750,000 to 10 per cent for a balance over £1 million per annum. The award was intended to enable the wife to build up funds to provide her with an annual income of £150,000 per annum (in current terms). Whether Charles J’s proportions can be regarded as equating to a one-third approach, or as contemplating something more or less generous, is open to debate, but perhaps one should conclude that, as was originally contemplated in Wachtel and indeed, as was recognised by courts throughout the twentieth century, the one-third rule may – or may not – fit the circumstances for an unknown proportion of cases. it is this uncertainty which has rendered this aspect of Wachtel more problematic than its treatment of the conduct issue. ConCluSion

As the preceding discussion has shown, the judgment in Wachtel has indeed proved to be a landmark decision in family law. As well as the particular issues of when to take conduct into account and how to assess periodical payments and capital, it delivered the guidance which had been hoped for it in terms of stating clearly that the 1970 Act represented a new approach to the determination of ancillary relief. The Act, it was clear, was a reforming, not a codifying, statute.96 Precedents from the old law would be of limited relevance to courts and practitioners dealing with the new. More importantly, the Court’s robust rejection of the suggestion that courts should ‘hear [the parties’] mutual recriminations and to go into their petty squabbles for days on end’97 underscored how far the law of divorce had moved from its emphasis on the matrimonial offence and the concept of blame. This is not to say that conduct ceased to feature in subsequent litigation – we have seen that there were several examples of its being used to reduce awards, and of legislative attempts to increase its significance. Why was it, however, that these were rebuffed each time by the higher courts? There appear to be three reasons. first, the denial of the relevance of conduct clearly fitted the logic of the concept of divorce being based on the irretrievable breakdown of the marriage. it would have significantly undermined the ideological shift in the approach to divorce if conduct had re-appeared via the ancillaries. Given the fundamental change in social attitudes which had been brought about, or at least reflected, by the Archbishop of Canterbury’s Report, Putting 94 95 96 97

[2006] uKHl 24, [2006] 2 AC 618. [2009] EWHC 891 (fam), [2009] 2 flR 1322. A point emphasised in Cretney’s History, above n 11, 429. Per lord Denning MR in Wachtel, above n 1, 89–90.

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Asunder,98 and the law Commission’s The Field of Choice,99 there was really no going back. Secondly, and perhaps, for the judiciary and practitioners, more importantly, the downplaying of conduct fitted the increasing importance attached to the ‘civilised divorce’ and the reduction of antagonism, or, as the law Commission had put it, ‘to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation’.100 This has become ever more important in the intervening years, particularly when put alongside the escalating costs of litigation over ancillary relief. The refusal to let ‘conduct’ back into divorce via ancillary relief proceedings has been seen most recently and clearly in the House of lords’ rejection of the willingness of Singer J in Miller to investigate the parties’ allegations of conduct in order to produce a ‘fair’ outcome and their firm reiteration of the formula set out in section 25(2) (g) that only conduct which it would be inequitable to disregard can be taken into account at all. Thirdly, the Wachtel approach to conduct fits the modern view of ancillary relief as concerned primarily with dividing the family assets (however defined) belonging to the marital partnership. As Baroness Hale put it in Miller/ McFarlane, ‘once the assets are seen as a pool, and the couple as equal partners, then it is only equitable to take their conduct into account if one has been very much more to blame than the other’. 101 This dictum exemplifies not only the modern approach to financial relief, but also the modern approach to marriage. Baroness Hale has also said, extra-judicially, that ‘we have just about reached the point where the status [of marriage] brings with it the principle of equality’.102 Arriving (more or less) at a view of marriage as an equal partnership has not been an easy journey, as the discussion above has demonstrated. But whilst not gainsaying the point that, in terms of popular social attitudes, many ‘laymen’ might in fact feel that conduct should have a higher priority when it comes to dividing the assets, it is the chiming of the Wachtel approach with the overall trend in family policy towards a model of intimate partnerships as autonomous and freely terminable relationships which has kept its central message apposite. However, in relation to the assessment of periodical payments and the division of the capital assets of the marriage, the case has been much more problematic. Again, one can put forward three possible reasons for this. first, as has been seen, the one-third approach did not ‘fit’ enough cases but suffered from 98 Archbishop’s Group, Putting Asunder: A Divorce Law for Contemporary Society (london, SPCK, 1966). 99 law Commission, Reform of the Grounds of Divorce: The Field of Choice (Cmnd 3123, 1966). 100 ibid para 15. 101 See Baroness Hale in Miller v Miller; McFarlane v McFarlane [2006] uKHl 24, [2006] 2 AC 618, [145]. 102 B Hale, ‘The future of Marriage’ in G Douglas and n lowe (eds), The Continuing Evolution of Family Law (Bristol, family law, 2009) 187, 201.

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Goldilocks syndrome – the parties had to be neither too rich nor too poor, the resulting figure had to be neither too high nor too low; in short, the circumstances had to be ‘just right’ before the court could be satisfied that one-third would deliver the fair outcome sought. This produced unpredictability in the case law. Secondly, the courts’ frequent reiteration that the one-third rule was not a rule, but only a starting point, accentuated the uncertainty that such unpredictability generated. We do not have evidence as to how far settlements were predicated on the one-third approach, but, rather like the assertion by lord nicholls in White v White that equality was to be the yardstick but not the presumption in seeking a fair outcome, the lack of a sufficiently prescriptive tone may have left plenty for the parties to argue over, especially in the big money cases where, as we have noted, one-third was soon superseded by ‘reasonable requirements’ as the appropriate range of settlement. Thirdly, the one-third approach is, of course, discriminatory and premised on a dependency model of marriage. When, by contrast, the clean break principle came to the fore, especially after it received statutory endorsement with the enactment of section 25A of the Matrimonial Causes Act 1973, this became more obvious. in a clean break case, the wife no longer needed – or wanted – periodical payments so that the rationale for a third rather than a half share disappeared. unlike the conduct issue, the one-third ruling no longer fitted the legal ideology of the jurisdiction, nor the view of modern marriage. it has taken a very long time, vast expenditure of money, huge amounts of legal expertise and the experience of being legal guinea pigs for many unfortunate litigants, to get the law to the point it has reached today. The Court of Appeal has argued that reform of the Matrimonial Causes Act is long overdue103 – how can modern divorce still be governed by a law shaped nearly half a century ago? Tracing the subsequent history of the Wachtel decision, one could equally say that the flexibility of the law, and its very lack of a clear rationale and set of objectives, have enabled the courts to use their precedent powers to respond as appropriate to changing social attitudes and contexts. But reliance on the vagaries of litigation, particularly in a system now so distorted by a case law largely confined to considering the interests of the mega-rich, is unlikely to provide the clear law, responsive to the current concept of marriage and civil partnership in the twenty-first century, which is needed. it is therefore now time for us to lay Wachtel to rest and examine afresh how the law should best deal with the legal and financial consequences of the ending of intimate relationships.

103

Charman v Charman (No 4) [2007] EWCA Civ 503, [2007]1 flR 1246.

9 The Marckx Case: A ‘Whole Code of Family Law’? WALTer PinTens And Jens M sCherPe

inTrOdUCTiOn

A

LAndMArk CAse is a case that has changed the course of the law, for better or worse, and has had a significant and lasting impact upon it. There are few cases which have done so on the same scale as the case of Marckx v Belgium,1 a case in which Belgium was found to be in breach of the european Convention on human rights (the Convention or eChr) because of its law on children born out of wedlock. First, Marckx is a judgment by the european Court of human rights and as such concerns not only the Contracting state immediately involved in the proceedings but also all Contracting states of the Convention. Therefore, even at first glance, the Marckx judgment meant that the differential treatment of children born in and out of wedlock, of ‘illegitimate’ and ‘legitimate’ children, was no longer permissible in any of the Contracting states, as this was seen to violate Article 8 and Article 14 in conjunction with Article 8 of the Convention. so its impact covers a much greater territory than most of the other cases included in this book, namely all jurisdictions of the Contracting states. But this alone does not explain why Marckx is a landmark case; its significance is much greater. in Marckx the Court for the first time interpreted Article 8, and particularly the right to respect for private and family life, as comprising the areas of family law and succession law as such. This meant that, from this judgment on, the family and succession laws of the Contracting states of the Convention could, in principle, be reviewed by the european Court of human rights, particularly with regard to Article 14 in conjunction with other Articles of the Convention, which states that the rights and freedoms set forth in the Convention shall be secured without discrimination. The Marckx case is therefore the beginning of a ‘european Family Law’ and a ‘european succession Law’ insofar as the Convention and the Court now guarantee a certain minimum 1

Marckx v Belgium (1979–80) 2 ehrr 14.

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standard in these areas for all Contracting states. in this sense, Marckx is a not merely a landmark case, it is a meta-landmark case. in addition, the Marckx case can also serve as an example of the clash between what were perhaps the dominant interpretative techniques in civil-law and common-law countries. in his (very strongly) dissenting opinion, the english judge, sir Gerald Fitzmaurice, relied on classic grammatical or literal interpretation of the Convention, whereas the majority (consisting of judges from civil law jurisdictions) seemed more inclined to apply a purposive approach, a teleological interpretation, giving effect to the Convention as a ‘living instrument’, which is the approach the european Court of human rights takes to interpreting the Convention to the present day. in a way, the Marckx case was the right case at the right time. it almost seems as if it was the case the Court had been waiting for, as it allowed the Court to clarify the concepts of respect for private and family life, which it had ‘scarcely had the occasion to do until now’.2 however, the case would not have reached the Court but for the extraordinary personality of Paula Marckx, her young, highly motivated and perhaps somewhat idealistic lawyer, and an off-hand remark by a court clerk. it took all these to bring a case that would change family law in europe for ever. PAULA MArCkX – A COLOUrFUL PersOnALiTY And A Free sPiriT

Paula Marckx was born in Antwerp in 1925. At the age of 17 she was a swimsuit model for the Belgian fashion house natan (a famous dressmaker for royals and high society to the present day). After many adventures and small jobs during and after the second World War, she decided to write. she was strongly influenced by Françoise sagan and her book Bonjour Tristesse. And Paula Marckx succeeded: her book, La Route Sinueuse,3 was published (under the pseudonym Perrine Marick) in 1958 by the famous publishing house hachette in Paris. it was the start of her career as a journalist. her lover introduced her into high society. For Belgian, spanish and swiss newspapers and magazines she interviewed the former king simeon of Bulgaria, Maria Callas, Aristoteles Onassis, Franco, Winifred Wagner, the Beatles and Willy Brandt. But journalism was not enough for her. she became one of the first female pilots in Belgium. soon thereafter she started the first Belgian call-centre. in 1973 Paula Marckx gave birth to a daughter, Alexandra. since the child was born out of wedlock, a few weeks later she had to appear before the Justice of the Peace. The judge explained to her that under Belgian law the mention of her name on the birth certificate of the child was not sufficient to establish maternal affiliation and that it was therefore necessary to formally recognise the 2 3

ibid para 30. The Winding Road.

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child. even then, a certain degree of supervision by a family council would be necessary. Paula Marckx was also told that while the recognition would ex lege make her the guardian of Alexandra, it would not give the child the same rights as a child born in wedlock. To put the child legally on similar footing as a child born in wedlock, she would have to adopt her own child, but even then Alexandra would still not be in the exact same legal position as if she had been born to married parents. Paula Marckx was furious. When a court clerk remarked that women were always complaining but that not one of them was ever prepared to take action and contest the legislation, he was not aware of the effect his words would have. Paula Marckx was not prepared to let the matter rest. she wanted to fight against what she perceived as injustice against her and her daughter. With the help of a young feminist lawyer, Moni Van Look, she went through procedures before the european Commission of human rights (the Commission) and then the european Court of human rights. But even Paula Marckx could not have anticipated that her case would bring about what amounted to a revolution in european family and succession law. The FACTs OF The CAse

since Paula Marckx was not married at the time she gave birth to her daughter on 16 October 1973, Alexandra was an ‘illegitimate’ child. Paula Marckx reported her daughter’s birth to the local registry office. As required by the then Belgian legislation on illegitimate children, the registration officer informed the Justice of the Peace that an illegitimate child had been born. As already mentioned above, Paula Marckx then had to appear before the Justice of the Peace on 26 October 1973, who explained to her that, unlike for married women, the mere birth certificate recorded at the registry office did not suffice to prove the maternal affiliation. in order to establish the maternal affiliation of a child born out of wedlock, Belgian law required a voluntary recognition by the mother or legal proceedings instituted by the child or its legal representative (action en recherche de maternité).4 On 29 October 1973, Paula Marckx recognised her daughter, thereby establishing a legal bond between her and Alexandra. nevertheless, in Belgian law the establishment of the maternal affiliation of an illegitimate child only had limited effects as regards both the extent of its family relationships and the rights of the child and its mother in the matter of inheritance on intestacy and voluntary dispositions. As to the extent of the family relationships, Belgian legislation did not provide for a legal bond between the illegitimate child and the mother’s relatives. even after the maternal affiliation was established, the child did not in 4

For all references to Belgian law at the time see Marckx, above n 1, paras 14–19.

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law become a member of the mother’s family. One of the consequences of this was that the child had no right to inherit on intestacy from its maternal family and that no maintenance obligations existed between the child and its grandparents. But even between mother and child an illegitimate child under Belgian law did not have the same rights on inheritance as a child born in wedlock. Unlike the child born to a married woman, a recognised illegitimate child did not have the status of heir in the estate of its parent who died intestate, but solely that of an ‘exceptional heir’. This meant that unless the mother left no other relatives entitled to inherit on intestacy, the illegitimate child was only entitled to a part of her property; in the case that meant three-quarters of the share of a ‘legitimate’ child. recognised illegitimate children were further at a disadvantage concerning voluntary dispositions by the mother, since Belgian law stated that they could not receive more by disposition inter vivos or by will than their entitlement under intestacy; this put the child in a worse position than even a (legal) stranger, as the latter could receive the entire estate (provided there were no other heirs entitled to a reserved portion of the estate). Consequently, the mother of an illegitimate child was facing a dilemma: either she recognised the child, thereby losing the possibility of leaving her entire estate to it, or she renounced establishing a family relationship with the child in the eyes of the law, in order to retain the option of leaving all her estate to it. in order to improve Alexandra’s legal position, Paula Marckx adopted her daughter on 30 October 1974. As a result of the adoption, Alexandra acquired over her mother’s estate the rights of a ‘legitimate’ child but, unlike the latter, she still had no rights on intestacy in the estates of her mother’s relatives. Under the then Belgian law, only ‘legitimation’ and ‘legitimation by adoption’ would have placed the illegitimate child on exactly the same footing as a legitimate child, but both of these measures required the mother to marry. On 29 March 1974 Paula Marckx lodged an application against Belgium with the european Commission of human rights, acting on behalf of herself and her infant daughter, Alexandra. While the case in the end would require a judgment on no less than 17 different issues, the basic complaint was that Belgian law was in breach of the following provisions of the Convention: Article 8 1. everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 1 of Protocol no. 1 every natural or legal person is entitled to the peaceful enjoyment of his possessions. no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The Commission, after having expressed an opinion in favour of the applicants in its report on 10 december 1977,5 referred the Marckx case to the european Court of human rights, requesting the Court to adjudicate on whether or not the contested Belgian legislation and the legal situation it created for the applicants were compatible with the Convention. This in itself was remarkable, because at the time complaints by individuals only rarely reached the Court.6 On 13 March 1978 the competent Chamber (consisting of seven judges) relinquished jurisdiction to the plenary Court (consisting of 15 judges) because it found that the case raised serious questions affecting the interpretation of the Convention. On 13 June 1979, three weeks before the Law Commission of england and Wales was to publish its long-awaited working paper on the reform of illegitimacy,7 the Court pronounced its groundbreaking judgment in the Marckx case, primarily expressing the Court’s opinion on the manner of establishing affiliation, the extent of the illegitimate child’s family relationships and the patrimonial rights of the illegitimate child and its mother, but at the same time establishing (or at least confirming) the interpretative methodology of the Court and laying the groundwork for a european family and succession law.

ibid para 23. F sturm, ‘das straßburger Marckx-Urteil zum recht des nichtehelichen kindes und seine Folgen’ (1982) FamRZ 1151, esp n 13, and the Report by the Secretary General on the Legal Activities of the Council of Europe, (strasbourg, 1982) 6 ff. 7 Law Commission, Illegitimacy (Law Com WP no 74, 1979). On this report and the implications of the Marckx decision see s Maidment, ‘The Marckx Case’ [1979] Family Law 228, esp 231 f and M hayes, ‘Law Commission Working Paper 74: illegitimacy’ (1980) 43 MLR 299. 5 6

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Applicability of Articles 8 and 14 ECHR First of all, the Court had to establish that the matter at hand fell within the scope of Article 8 and the right to respect for private and family life.8 The Court took the opportunity ‘to clarify the meaning and purport of the words “respect for . . . private and family life”’, stating that the provision did not distinguish between ‘legitimate’ and ‘illegitimate’ family as such a distinction would contradict the wording that the rights are awarded to ‘everyone’.9 While Article 8 rights presuppose the existence of a family life and thus do not arise from mere biological kinship,10 it was undisputed that Paula Marckx had assumed responsibility for her daughter and thus they had a ‘family life’. Then the Court had to establish what the ‘respect’ for this family life required of the Belgian legislature, which led the Court to the finding that makes the Marckx case a ‘landmark’: it was held that in addition to the negative obligation (the state must not interfere the family life other than in accordance with the strict rules set out in Article 8-2), there also may be positive obligations inherent in an effective ‘respect’ for family life:11 This means, amongst other things, that when the state determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Court’s view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child’s integration in his family. in this connection, the state has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 8-1) without there being any call to examine it under paragraph 2 (art. 8-2).

The Court concluded its reasoning on this matter by stating that Article 8 was clearly relevant to the present case and that it was thus necessary for the Court to review the applicants’ complaints in the light of this provision. With regard to Article 14, the Court confirmed that ‘it had no independent existence, but it played an important autonomous role by complementing the other normative provisions of the Convention and the Protocols’,12 and particularly in this case with regard to differential treatment based on ‘birth’:13 Marckx, above n 1, paras 30 ff. ibid para 31. 10 ibid. see also Lebbink v Netherlands (2005) 40 ehrr 18, para 37: ‘The Court does not agree with the applicant that a mere biological kinship, without any further legal or factual elements indicating the existence of a close personal relationship, should be regarded as sufficient to attract the protection of Article 8.’ Cf Anayo v Germany judgment of 21 december 2010 (available in the hUdOC database). 11 Marckx, above n 1, para 31. 12 ibid para 32. 13 ibid. 8 9

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32. . . . Article 14 (art. 14) safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14 (art. 14) therefore violates those two Articles taken in conjunction. it is as though Article 14 (art. 14) formed an integral part of each of the provisions laying down rights and freedoms (judgment of 23 July 1968 in the “Belgian Linguistic” case, series A no. 6, pp. 33–34, para. 9; national Union of Belgian Police judgment of 27 October 1975, series A no. 19, p. 19, para. 44). Accordingly, and since Article 8 (art. 8) is relevant to the present case (see paragraph 31 above), it is necessary also to take into account Article 14 in conjunction with Article 8 (art. 14+8). 33. According to the Court’s established case-law, a distinction is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, inter alia, the above-cited judgment of 23 July 1968, p. 34, para. 10). 34. in acting in a manner calculated to allow the family life of an unmarried mother and her child to develop normally (see paragraph 31 above), the state must avoid any discrimination grounded on birth: this is dictated by Article 14 taken in conjunction with Article 8 (art. 14+8).

The Establishment of Maternal Affiliation Under Belgian law, Paula Marckx could only establish Alexandra’s affiliation by recognising her; neither her birth alone nor the entry of her mother’s name on the birth certificate sufficed because the child was born out of wedlock. While the procedure was simple and ‘hardly present[ed] any difficulties’, it nevertheless meant that maternity was not recognised automatically at birth.14 Moreover, as mentioned before, an unmarried mother in Belgium was faced with a dilemma when considering whether or not to recognise her own child: if she did, her capacity to give or bequeath her property to it would be restricted; if she desired to retain the option of making such dispositions in her child’s favour, she would be obliged to renounce establishing a legal family tie with her own child. The Court held (with 10 votes to five) that ‘the dilemma which exists at present is not consonant with “respect” for family life; it thwarts and impedes the normal development of such life’ for Paula Marckx and thus was in violation of Article 8.15 As for Alexandra Marckx, the Court held (by 12 votes to three): 37 . . . only one method of establishing her maternal affiliation was available to her under Belgian law, namely, to take legal proceedings for the purpose (recherche de 14 15

ibid para 36. ibid.

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maternité; Articles 341a–341c of the Civil Code). Although a judgment declaring the affiliation of an “illegitimate” child has the same effects as a voluntary recognition, the procedure applicable is, in the nature of things, far more complex. Quite apart from the conditions of proof that have to be satisfied, the legal representative of an infant needs the consent of the family council before he can bring, assuming he wishes to do so, an action for a declaration as to status; it is only after attaining majority that the child can bring such an action himself (see paragraph 14 above). There is thus a risk that the establishment of affiliation will be time-consuming and that, in the interim, the child will remain separated in law from his mother. This system resulted in a lack of respect for the family life of Alexandra Marckx who, in the eyes of the law, was motherless from 16 to 29 October 1973. despite the brevity of this period, there was thus also a violation of Article 8 (art. 8) with respect to the second applicant.

The Court then went on to examine whether there also had been a violation of Article 14 of the Convention, taken in conjunction with Article 8, here a discrimination because of ‘birth’. According to the Court’s well-established case law, a distinction was (and of course still is) discriminatory if it had no objective and reasonable justification, that is, if it did not pursue a legitimate aim or if there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Belgian Government argued that the aims of the provisions were the protection of the ‘traditional family’ and indeed the protection of the unmarried mother and the child: 16 [W]hilst the married mother and her husband “mutually undertake . . . the obligation to feed, keep and educate their children” (Article 203 of the Civil Code), there is no certainty that the unmarried mother will be willing to bear on her own the responsibilities of motherhood; by leaving the unmarried mother the choice between recognising her child or dissociating herself from him, the law is prompted by a concern for protection of the child, for it would be dangerous to entrust him to the custody and authority of someone who has shown no inclination to care for him; many unmarried mothers do not recognise their child.

Thus the unmarried mother would not be burdened with an unwanted legal bond to the child, and adoption procedures etc could work more swiftly, ensuring that the child would be living in a caring family. however, the Court did not accept this: 17 [T]he fact that some unmarried mothers, unlike Paula Marckx, do not wish to take care of their child cannot justify the rule of Belgian law whereby the establishment of their maternity is conditional on voluntary recognition or a court declaration. in fact, such an attitude is not a general feature of the relationship between unmarried mothers and their children; besides, this is neither claimed by the Government nor proved by the figures which they advance. As the Commission points out, it may happen that also a married mother might not wish to bring up her child, and yet, as far as she is concerned, the birth alone will have created the legal bond of affiliation. 16 17

ibid para 39. ibid.

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Again, the interest of an “illegitimate” child in having such a bond established is no less than that of a “legitimate” child. however, the “illegitimate” child is likely to remain motherless in the eyes of Belgian law.

hence the Court found that the distinction complained of by the applicants lacked objective and reasonable justification and that, consequently, the manner of establishing Alexandra Marckx’s maternal affiliation violated Article 14 taken in conjunction with Article 8 with respect to both applicants (for Paula Marckx with 11 votes to four, and with 13 votes to two for Alexandra). The Extent of a Child’s Family Relationships Building on its reasoning concerning maternal affiliation, the Court then had little difficulty deciding that differences concerning the legal integration of an ‘illegitimate child’ into the maternal family amounted to a violation of Alexandra’s rights under Article 8 (with 12 votes to three) and Article 14 in conjunction with Article 8 (with 13 votes to two). As already explained, under the then Belgian law, a legitimate child was fully integrated from the moment of its birth into the family of each of its parents, whereas a recognised illegitimate child, and even an adopted illegitimate child, remained, in principle, a stranger to its parents’ families. ‘Family life’ within the meaning of Article 8 according to the Court included at least the ties between near relatives, such as those between grandparents and grandchildren. ‘respect’ for family life implied an obligation for the state to act in a manner calculated to allow these ties to develop normally, which was not the case when the child did not legally become a member of the mother’s family.18 The differential treatment was also held to be lacking objective and reasonable justification.19 Patrimonial Rights (Inheritance and Voluntary Dispositions) With regard to the patrimonial rights of both applicants, the Court found that Article 8 was engaged, arguing that matters of intestate succession – and of disposition – between near relatives were intimately connected with family life.20 however, the Court unanimously held that Article 8 did not require that a child should be entitled to share in the estates of his parents or of near relatives, nor did it guarantee a mother complete freedom to give or bequeath her property to her child. The Contracting states had the choice of the means calculated

18 19 20

ibid para 45. ibid para 48. ibid paras 51–52.

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to allow everyone to lead a normal family life. similar reasoning was to be applied to the question of voluntary dispositions.21 The Court then turned to the issue of the distinction made between illegitimate and legitimate children. Until she was adopted, in case of intestate succession Alexandra only had a capacity to receive property from her mother Paula Marckx, which was markedly less than that which a child born in wedlock would have enjoyed. The Court held (by 13 votes to two) that this difference in treatment lacked objective and reasonable justification and thus was a violation of Article 14 in conjunction with Article 8.22 it extended the same reasoning to the differential treatment of married and unmarried mothers:23 the need to have recourse to adoption in order to eliminate the said differences in treatment amounted to discrimination. Moreover, Alexandra had at no time before or after her adoption had any entitlement on intestacy in the estates of members of Paula Marckx’s family, which also constituted discrimination. With respect to Alexandra, the Court unanimously excluded the peaceful enjoyment of possessions under Article 1 of Protocol 1 because the provision only applied to a person’s existing possessions and did not guarantee the right to acquire possessions in the future.24 The same obviously did not apply to Paula Marckx, and thus Article 1 of Protocol 1 was held to be applicable in principle as it comprised the right to dispose of one’s property (by 10 votes to five). Because the provision allowed the Contracting states to enforce such laws as they deem necessary to control the use of property in accordance with the general interest, thus leaving it to the individual Contracting state to determine the meaning and purport of the words ‘necessary’ and ‘general interest’, the Court (by nine votes to six) held that there was no breach of the provision taken alone, but (by 10 votes to five) that the differential treatment of married and unmarried mothers lacked a general interest or an objective and reasonable justification and amounted to discrimination in violation of Article 14 in conjunction with Article 8.25 The siGniFiCAnCe OF The JUdGMenT

The judgment’s immediate legal impact was succinctly described by the Law Commission of england and Wales in its first report on illegitimacy: 26 [T]he importance of this case for english law is obvious and should not be underrated. implicit in the Court’s judgment is the view that a distinction between “legitimate” and “illegitimate” cannot of itself justify differences in the enjoyment of the 21 22 23 24 25 26

ibid paras 53, 61. ibid paras 54–59. ibid para 62. ibid para 50. ibid para 65. Law Commission of england and Wales, ‘illegitimacy’ (Law Com no 118, 1982) 23.

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rights and freedoms guaranteed by the Convention. such distinctions, if they exist, instead require “special argument”, and will be upheld only if they are found to have an objective and reasonable justification. . . . [W]e do not believe that such a justification for the present english law is possible. Unless and until that law is changed there must therefore be a risk that a complaint from this country would be upheld.

in an analysis of the judgment and the Working Paper27 proposals, Maidment correctly pointed out that,28 [s]hould the Law Commission delay or encounter difficulties in bringing its new proposals before Parliament for enactment, who knows whether an english Paula Marckx may not decide to make a similar application to the european Court of human rights, and receive a similar judgment.

indeed, the Law Commissions of england and Wales and scotland were well aware of such a possibility, and their reform proposals, which eventually became law, clearly took this into account.29 The same of course is true for other Contracting states of the Convention.30 But the implications of the Marckx judgment extended well beyond the law of illegitimacy, and those implications are what make the case a ‘landmark’ one. The Court’s Methodology in Marckx the Court for the first time stipulated a positive obligation on the state to protect the respect for private and family life under Article 8 – against the fierce opposition of the english judge, sir Gerald Fitzmaurice, who argued that this methodology was fundamentally flawed. While Marckx was not the first case in which the different views of the judges on the appropriate interpretational methodology clashed, it is an excellent example of the development of what now is the generally accepted ‘dynamic’ interpretation of the Convention. Given the background of sir Gerald, his opposition is hardly surprising. Before becoming a judge in strasbourg, he sat as a judge on the international Court of Justice. his approach, therefore, was very much dominated by international law Law Commission, above n 7. Maidment, above n 7, 232. 29 For england and Wales, see above n 7, 28: ‘The removal of discrimination against nonmarital children in matters of succession would also bring english law into line with the provisions of the european Convention on human rights as laid down by the judgment of the european Court of human rights in the Marckx case’. For scotland see scottish Law Commission, Report on Illegitimacy (scot Law Com no 82, 1984) esp 7: ‘arguably changes are necessary to prevent the continuing breach of the Convention by the United kingdom’. see also Law Commission, Illegitimacy (Second Report) (Law Com no 157, 1986). 30 cf hoge raad (supreme Court of the netherlands) case no 463, 18 January 1980, Nederlands Jurisprudentie 1980, 1460; Pintens, ‘Menschenrechtskonvention und Privatrecht’, rabels Zeitschrift für ausländisches und internationales Privatrecht (rabelsZ) (63) 1999, 704; sturm, above n 6; M salzberg, ‘The Marckx Case’ (1983–1984) 13 Denver Journal for International Law and Policy 283; C Forder, ‘Legal protection under Article 8 eChr: Marckx and beyond’ (1990) 37 Netherlands International Law Review 165. 27 28

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(and his common-law background), and he is characterised as ‘influential but controversial’, and certainly as conservative.31 sir Gerald’s position, which he first expressed in Golder v United Kingdom32 (where he also found himself, as he very frequently did, in the minority), true to his background, was based on the history and literal interpretation of Article 8:33 it is abundantly clear (at least it is to me) – and the nature of the whole background against which the idea of the european Convention on human rights was conceived bears out this view – that the main, if not indeed the sole object and intended sphere of application of Article 8 (art. 8), was that of what i will call the “domiciliary protection” of the individual. he and his family were no longer to be subjected to the four o’clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings; . . . such, and not the internal, domestic regulation of family relationships, was the object of art. 8, and it was for the avoidance of these horrors, tyrannies and vexations that “private and family life . . . home and . . . correspondence” were to be respected, and the individual endowed with a right to enjoy that respect – not for the regulation of the civil status of babies.

in defence of sir Gerald, there were good reasons to argue the way he did. First, Article 8 is based on Article 12 of the Universal declaration of human rights, 34 which, it can be argued, merely contains a ‘negative’ obligation; a defence against ‘attacks’ by the state.35 An earlier draft of Article 8,36 which according to Frowein ‘very clearly’ stipulated a positive obligation,37 was not accepted. From this one could indeed infer that no positive obligation was intended. in addition, given that in international treaties the Contracting states generally give up part of their sovereignty, it could be assumed that a narrow and literal interpretation is required as the states presumably did not want to relinquish more of their sovereign rights than absolutely necessary.38 Thus from a purely technical, international law point of view, sir Gerald Fitzmaurice’s reasoning probably is more convincing,39 and his view might even 31 On sir Gerald see JG Merrills, ‘sir Gerald Fitzmaurice’s Contribution to the Jurisprudence of the international Court of Justice’ (1976–77) 48 British Yearbook of International Law 183 and JG Merrills/rY Jennings, Judge Sir Gerald Fitzmaurice and the Discipline of International Law: Opinions on the International Court of Justice 1961–1973 (Judges) (dortrecht, Martinus nijhoff Publishers, 1998). 32 Golder v United Kingdom (1979–80) 1 ehrr 524. 33 Marckx, above n 1, para 7 of the dissenting opinion. 34 AM Connelly, ‘Problems of interpretation of Article 8 of the european Convention on human rights’ (1986) 35 International Comparative Law Quarterly 568 f. 35 ‘no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. everyone has the right to the protection of the law against such interference or attacks.’ 36 ‘no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence. everyone has the right to the protection of the law against such interference.’ 37 JA Frowein and W Peukert, Europäische Menschenrechtskonvention (kehl, nP engel Verlag, 1996) 338. 38 F rigaux, ‘La loi condamnée. A propos de l’arrèt du 13 juin 1979 de la Cour européenne des droits des hommes’ Journal des Tribunaux 1979, 513, 520; sturm, above n 6, 1153. 39 Maidment, above n 7, 230 sees his interpretation as ‘most persuasive in the terms of the origins of the Convention and the aftermath of World War ii’.

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reflect the original intention of the draftsmen and –women.40 But the nature and the spirit of the Convention necessitate a different approach from the one envisaged by Articles 31 ff of the Vienna Convention on the Law of Treaties of 23 May 1969,41 and indeed the Court had stated that clearly before in Wemhoff v Germany: 42 8. . . . Given that it is a lawmaking treaty, it is also necessary to seek the interpretation that is most appropriate in order to realize the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties. [emphasis added.]

in Golder v UK, the Commission explained the approach to be taken (which was followed by the majority of the Court in its judgment in the case), namely that the overriding function of this Convention is to protect the rights of the individual and not lay down as between states mutual obligations which are to be restrictively interpreted having regard to the sovereignty of these states. Both the Commission and the Court found that the role of the Convention and the function of its interpretation is to make the protection of the individual effective.43 in Tyrer v United Kingdom, decided shortly before Marckx, the Court had also expressly held that ‘the Convention is a living instrument which . . . must be interpreted in the light of present-day conditions’. 44 in the same case, the Court also applied what is called the ‘better law approach’, based on a comparative analysis. The view and methodological approach of the majority in Marckx was thus consistent with previous case law. it relied on a teleological interpretation, based on the aims and objectives of the Convention, a ‘dynamic’ or ‘evolutive’ interpretation in light of developments in social and political attitudes, which cannot be confined to the conceptions of the period in which the Convention was drafted or entered into force and may therefore go beyond the ‘original intention’. As Jayme has pointed out, the ‘dynamic’ and ‘evolutive’ interpretation complies with the general principles that have evolved in the sphere of human rights concerning the family and family law.45 That this path towards recognition of positive obligations and evolutive interpretation must be the right one becomes obvious in cases such as X and Y v Netherlands:46 under dutch law the rape or sexual abuse of a mentally handicapped woman could not be prosecuted as she herself was not able to take cf Forder, above n 30, 163. On this see rCA White and C Ovey, Jacobs, White & Ovey: European Convention on Human Rights, 5th edn (Oxford, Oxford University Press, 2010) ch 4. 42 Wemhoff v Germany (1979–80) 1 ehrr 55. 43 Golder v United Kingdom, report of the Commission of 1 June 1973, series B, no 16, 40 (available in the hUdOC database). 44 Tyrer v United Kingdom (1979–80) 2 ehrr 1, para 31. see also d harris, M O’Boyle, e Bates and C Buckley, Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press, 2009) 7 ff. 45 e Jayme, ‘europäische Menschenrechtskonvention und deutsches nichtehelichenrecht’ Neue Juristische Wochenschrift 1979, 2426. 46 X and Y v Netherlands (1986) 8 ehrrr 235. 40 41

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action, and legal representation was impossible. The Court held that the absence of a criminal sanction amounted to a breach of Article 8 as the state had a positive obligation to protect individuals from such heinous interference with their private life. in some situations the Contracting states cannot, as douglas has put it, ‘claim to remain neutral’,47 and as Marckx has made clear, this, in principle, applies to all family matters.48 indeed, today there is no doubt that the Convention is a ‘living instrument’ and must be understood and interpreted this way.49 The Influence on Family Law Article 8, unlike other Convention provisions, does not set forth rights as such but a right to respect for family and private life. it is regarded as ‘one of the most open-ended provisions’50 and ‘one of the most dynamically interpreted provisions’51 of the Convention. As already noted, Marckx was the first case to establish that Article 8 imposes positive obligations on the Contracting states, and it has since been followed in a large number of cases.52 subsequent case law has clarified that a positive obligation under Article 8 exists where there is a ‘direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life’ 53 and that this may require the Contracting state to adopt measures designed to secure respect for the protected rights, even in the sphere of the relationships between individuals.54 hence Article 8 is not confined to negative protection, and matters such as the civil status of a person and, indeed, the whole of family law in general are reviewable. Marckx thus marks the beginning of an era of family law, and can rightly be called an ‘historic event’.55 47 G douglas, ‘The family and the state under the european Convention on human rights’ (1988) 2 International Journal of Law and the Family 102. 48 For another example, decided shortly after Marckx, see Airey v Ireland (1979–80) 2 ehrr 305. 49 Pintens, above n 30; Jayme, above n 45; douglas, above n 47, 78; Forder, above n 30, 167; PJ duffy, ‘The protection of privacy, family life and other rights under Art. 8 of the european Convention of human rights’ (1982) 2 Yearbook of European Law 194; J Meeusen, ‘Judicial disapproval of discrimination Against illegitimate Children’ (1995) 43 American Journal of Comparative Law 137; White and Ovey, above n 41, ch 4; C Warbright, ‘The structure of Article 8’ [1998] EHRLR 32. 50 White and Ovey, above n 41, 335. 51 d Feldman, ‘The developing scope of Article 8 of the european Convention on human rights’ (1997) 3 European Human Rights Law Review 265; on the difficulties of interpreting Art 8 see JM scherpe, ‘Family and private life, ambits and pieces’ [2007] 19 Child and Family Law Quarterly 390. 52 cf s Grosz, J Beatson and P duffy, Human Rights – The 1998 Act and the European Convention (London, sweet & Maxwell, 2000) 265 f. 53 Botta v Italy (1998) 26 ehrr 241, para 34; cf harris et al, above n 44, 19. 54 X and Y v Netherlands (1986) 8 ehrr 235, para 23; see also Grosz, Beatson and duff, above n 52, 271 and Hoffmann v Austria (1994) 17 ehrr 293. 55 MT Meulders-klein, ‘Cohabitation and Children in europe’ (1981) 29 American Journal for Comparative Law 390.

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But what about sir Gerald’s fear, which is more or less summarised in his dissenting opinion: that the majority judgment is nothing but ‘a misguided endeavour to read – or rather to introduce – a whole code of family law into Article 8’ (emphasis added)?56 For sir Gerald, ‘family life’ did not extend to family law. But the majority said it did, and since then the Court has been able to review whether national family law provisions are compatible with the eChr. his fear of a ‘code’, however, seems unwarranted in hindsight. The case did not create a code, but merely fragments and, perhaps gametes, of a common european family law.57 The Court has been very careful not to encroach upon the Contracting states’ sovereignty to determine the family laws appropriate for their respective jurisdictions, although admittedly the margin of appreciation left in the Marckx case was rather narrow. it has, however, made clear that the Convention provides a ‘floor’ for family law, a minimum standard beneath which the laws of the Contracting states must not fall.58 The legal position of a father not married to the mother is an excellent example of the sensitive approach of the Court. in McMichael v United Kingdom the Court held scots law, according to which at the time a father not married to the mother did not automatically acquire parental responsibility for his child at birth, was not in violation of the Convention despite the fact that in many jurisdictions this was already the norm.59 The Contracting states are generally afforded a ‘margin of appreciation’.60 But the recent judgment in Zaunegger v Germany61 shows where the court will draw a line: in German law the father was unable to acquire parental responsibility without the consent of the mother. This amounted to an outright denial of a right, and in such cases the Court will rule that there is a breach of the Convention and then – and only then – ‘compel’62 change. The case of Goodwin v United Kingdom and the development leading up to it provide another illustration of the Court’s approach and, specifically, its usage of comparative law. While originally affording the United kingdom a wide margin of appreciation (which essentially meant allowing the refusal of the recognition of change of legal gender),63 the development in the other Contracting Marckx, above n 1, para 15. cf JM scherpe, ‘The Gametes of a european Family Law’ [2008] International Family Law 98. 58 n Wikely, ‘same sex couples, family life and child support’ (2006) 122 LQR 542, 544. 59 McMichael v United Kingdom (1995) 20 ehrr 205. 60 cf W Ganshof van der Meersch, ‘Le caractère “autonome” des termes et la “marge d’appréciation” des gouvernements dans l’interprétation de la Convention européenne des droits de l’homme’ in F Matscher and h Petzold (eds), Protecting Human Rights: The European Dimension: Studies in honour of Gérard J Wiarda (Cologne, Carl heymanns Verlag, 1988) 201; r Macdonald, ‘The margin of appreciation’ in r Macdonald, F Matscher and h Petzold (eds), The European System for the Protection of Human Rights (dortrecht, kluwer Publishers, 1993) 83; White and Ovey, above n 41, 78 ff. see also Brannigan and McBride v United Kingdom (1994) ehrr 539, para 43. 61 cf JM scherpe, ‘nichteheliche kinder, elterliche sorge und die europäische Menschenrechtskonvention‘, rabels Zeitschrift für ausländisches und internationales Privatrecht (rabelsZ) 73 (2009) 935–61. 62 douglas, above n 47, 103. 63 see the earlier cases of Rees v United Kingdom (1987) 9 ehrrr 56; Cossey v United Kingdom 56 57

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states in the end mandated a change in the way the Convention was to be interpreted in the matter and, from the Goodwin judgment on, all Contracting states were obliged to allow for a recognition of said change. Contrary to sir Gerald’s fears, it did not in any way impose rules on the conditions or modalities for this – while the latter of course remained reviewable by the Court once implemented. Another example of the ‘living instrument’ approach of the Court is the interpretation of ‘family’. The term as such is not defined in the Convention, and the Marckx case paved the way for the ever-changing interpretation of this concept. A ‘static’ interpretation would have confined ‘family’ to the nuclear, traditional family, but the concept has evolved beyond that in the case law and, indeed, the national laws of the Contracting states. not only are non-formalised family forms such as cohabitation now capable of being a ‘family’, and thus ‘family life’, but since the judgment in Schalk and Kopf v Austria the same now applies to same-sex couples.64 The latter case expressly reversed the Court’s earlier position, expressed in Mata Estevez v Spain65 (and relied upon in Wilkinson v Kitzinger),66 because of the development of the law and social attitudes in the Contracting states. so while Marckx did not create a ‘code’ of family law, it nevertheless for the first time opened the door to the reviewability of national family laws, making it a milestone in the development of all national family laws in europe. The Influence on Succession Law The importance of the Marckx judgment for the law of filiation (and family law in general) should not detract from the impact the case also had on the law of succession. Obviously the judgment provided considerable reform stimulus (and obligations) for those jurisdictions which had not yet changed their succession laws to put the children born in and out of wedlock on an equal footing.67 As explained above, in Marckx it was held that in this regard differential treatment amounted to a violation of the Convention (Article 14 in conjunction with Article 8). While the Court found that the child’s expectation to inherit was not protected under Article 1 of Protocol 1, the restriction of the mother’s freedom to dispose of her property (both inter vivos and through a will) left Belgian law in breach (1991) ehrr 622 and Sheffield and Horsham v United Kingdom (1999) 27 ehrr 163. 64 Schalk and Kopf v Austria [2010] eChr 20141/04. cf JM scherpe, ‘same-sex couples have family life’ [2010] Cambridge Law Journal 463. 65 Mata Estevez v Spain [2001] eChr 56501/00. 66 Wilkinson v Kitzinger [2006] eWhC 2022 (Fam). 67 see W Pintens, ‘die europäisierung des erbrechts’ Zeitschrift für Europäisches Privatrecht 2001, 635; W Pintens, ‘das erbrecht in der rechtsprechung des europäischen Gerichtshofes für Menschenrechte’ in J Bröhmer et al, Internationale Gemeinschaft und Menschenrechte – Festschrift für Georg Ress zum 70. Geburtstag (Cologne, Carl heymanns Verlag, 2005) 1047 ff.

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of Article 14 in conjunction with Article 1 of Protocol 1 as the differential treatment could not be justified. While Marckx marked the beginning of the end of discrimination against certain family members in the law of succession, the implications perhaps were too revolutionary for some Contracting states. it took several further court decisions, both national68 and by the Court69 until the (supposedly rather clear) rules laid down in Marckx were implemented into the laws of the Contracting states.70 however, just as in family law, the Marckx judgment made an impact well beyond the area with which it was immediately concerned. it made clear that succession law could no longer be regarded as merely part of property law or the law of obligations, but established that it was strongly connected to family law. hence Marckx established that the right to respect for family life under Article 8 also had a proprietary component and thus could have relevance for the law of succession. This opened up the law of succession to a review by the Court with regard to Article 14. One of the cases where this was shown quite clearly is Camp and Bourimi v Netherlands,71 a case in which the father had died intestate before he could marry the mother and prior to the birth of the child. The child was unable to inherit from his father under the then dutch law, which the Court found to be a violation of Article 14 in conjunction with Article 8. Arguably the high point (so far) of judicial activism of the Court was reached in Pla and Puncernau v Andorra, a case in which the Court had to examine a case of testamentary succession for the first time.72 The case concerned the matter of interpretation of a will which lead to the exclusion of an adopted child. Basing its reasoning on Marckx, the Court found that the law on testamentary succession fell within the scope of Article 8 of the Convention, and then went on to say: 59. Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the european supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present 68 eg Cour de Cassation (Belgium) 3 October 1983, Journal des Tribunaux 1984, 648; Cour de Cassation (Belgium) 6 March 1986, Revue Critique de Jurisprudence Belge 1987, 5; Cour de Cassation (France) 25 June 1996, Dalloz 1998, 453. 69 Vermeire v Belgium (1993) 15 ehrr 488; Inze v Austria (1988) 10 ehrr 394; Mazurek v France (2006) 42 ehrr 9; Merger and Cros v France (2006) 43 ehrr 51. 70 For an overview of the development see Pintens, ‘das erbrecht‘, above n 67, esp 1050 ff. 71 Camp and Bourimi v Netherlands (2002) 34 ehrr 49. 72 Pla and Puncernau v Andorra (2006) 42 ehrr 25. see the commentaries by W Pintens, Zeitschrift für das gesamte Familienrecht 2004, 1167; e hereto Arroyo i Amayuelas and d Bondia García, ‘interpretació de testamento contaria a los derechos humanos? el caso “Pla & Puncernau vs Andorra”’, Derecho Privado y Constitución 2004, 7 ff; W Pintens, ‘Family law – A challenge for europe?’ in Area de drey Civil Universitat de Girona (ed), Nous reptes del Dret de familia (Girona, documenta Universitaria, 2005) 21 ff.

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case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Larkos v. Cyprus [GC], no. 29515/95, §§ 30–31, eChr 1999-i). 60. . . . since the testamentary disposition . . . made no distinction between biological and adopted children it was not necessary to interpret it in that way. such an interpretation therefore amounts to the judicial deprivation of an adopted child’s inheritance rights. 61. The Court reiterates that a distinction is discriminatory for the purposes of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, inter alia, Fretté v. France, no. 36515/97, § 34, eChr 2002-i). in the present case, the Court does not discern any legitimate aim pursued by the decision in question or any objective and reasonable justification on which the distinction made by the domestic court might be based. in the Court’s view, where a child is adopted (under the full adoption procedure, moreover), the child is in the same legal position as a biological child of his or her parents in all respects: relations and consequences connected with his or her family life and the resulting property rights. The Court has stated on many occasions that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention . . .

The Court then reiterated its position, established in Marckx, that the Convention is a ‘dynamic text’, and a ‘living instrument’ and that children born in and out of wedlock are to be given equal civil rights. With regard to the question at hand, the Court stated: 62 . . . even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix’s death, namely in 1939 and 1949, particularly where a period of fifty-seven years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills: any interpretation, if interpretation there must be, should endeavour to ascertain the testator’s intention and render the will effective, while bearing in mind that “the testator cannot be presumed to have meant what he did not say” and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court’s case-law.

This judgment is remarkable in a number of ways, but the crucial issue which attracted the most criticism is the depth and intensity with which it interfered with the law of succession in question. As Judge Bratza, the english judge, rightly pointed out in his dissenting opinion, the Court cannot prevent a testator from treating his children differently in his or her will, regardless of their descent, nor can the effect of the fundamental rights on family relations prevent or limit the testamentary freedom. The intention of the testator and his testa-

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mentary freedom hold a key position in the testamentary succession. hence, in the view of Judge Bratza, only the reserved portion of the estate can justifiably limit testamentary freedom. Testamentary freedom undoubtedly is protected by Convention, but, for example, a legacy which is linked to a condition that limits the freedom to get married would be in violation of the fundamental rights enshrined in the Convention. however, in the Pla and Puncernau case, no such breach of fundamental rights seemed apparent. The Andorran courts merely interpreted the will and sought to discern the presumed intention of the testator. if the testator had explicitly provided for the same result, nobody would have called upon the Court (or at least not successfully), as a testator is free to show favour to one child above the other. The Andorran Court had indirectly reached a decision that the testator could have reached directly.73 The interpretation of a will cannot be compared to the interpretation of a law or treaty. it is the intention of the testator that matters, and it is perfectly legitimate to interpret the intention in a way that takes into account the time at which it was written – and not, like the Convention, by taking into account the evolution of the law since. After all, a will must (also) be explained given its context. Therefore it has been argued that the Court in this case might have overstepped its boundaries.74 Perhaps this was the kind of judicial (over)activism that sir Gerald Fitzmaurice was afraid of when he said in his dissenting opinion in Marckx: 5 . . . but principle is easily lost sight of when eagerness for specific results – however meritorious they may be in themselves – overreaches the still, small voice of the juridical conscience.

ePiLOGUe

The Marckx judgment caused quite a stir as soon as it was handed down. The day after the judgment, Paula and Alexandra Marckx were headline news in all Belgian newspapers. The magazine Libelle named Paula ‘Woman of the Year’ and on 1 January 1980 Alexandra gave the opening speech for the ‘Year of the Child’ on a Belgian radio station. Paula Marckx is now 84, and the Marckx case certainly was not the only amazing achievement in her colourful and adventurous life. indeed, when in 2006 she published her memoirs under the title Helemaal bloot (‘Totally naked’),75 the case was only a very short chapter in the book: there was so much more to tell. she Pintens, above n 72, 27. hereto Arroyo i Amayuelas and Bondia García, ‘interpretación de testamento contaria a los derechos humanos?’ (fn 72) esp 71 ff and 87. 75 A Gies and P Marckx, Paula Marckx. Helemaal bloot (Antwerp, Uitgeverij houtekiet, 2006). For a short description of her life see M Goldhaber, A People’s History of the European Court of Human Rights (new Brunswick, rutgers University Press, 2009) pp 15ff. 73 74

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combined her career as a journalist with that of a successful business woman. she became director-general of the World Trade Centre in Antwerp and continues to be involved in business relating to Antwerp airport. she still writes a column, ‘Paula’s Place’, for the Gazette van Detroit, a newspaper published in dutch and english offering a bridge between Belgians in the United states and their homeland. in 2009 she published her columns with interviews with Belgian personalities such as Cardinal danneels and former Prime Minister Tindemans in a book.76 Only recently she was in the headlines again, after her latest book, explaining her exciting life as a mistress, was published.77 Paula’s solicitor, Moni Van Look, went on to have a very successful career as a lawyer in Belgium. And Alexandra Marckx? she is now 37. After studies in spanish and tourism she studied Zoo-therapy in new York. she published a book Mundus Canis, a guide in six languages with thousands of addresses of hotels and restaurants in europe where the traveller is welcomed with his dogs. she has plans for a cemetery and crematorium for animals. in all those plans she enjoys the support and business skills of her mother. her dream is to begin practising zoo-therapy in Flanders. But for the legal world, it was the judgment of the european Court of human rights that created a lasting legacy, the gametes of a common european family and succession law, which will forever be connected with the name of Marckx.

76 P Marckx, Interviews from the Gazette van Detroit. Profiles of 50 High Achievers from Belgium (Alpharetta/Puurs, Unibook.com, 2009). 77 P Marckx, The Perfect Mistress. For Small Men With Large Ambitions (Milton keynes, Authorhouse, 2010).

10 Burns v Burns: The Villain of the Piece? John Mee*

InTRoDUCTIon

T

he ClaIManT In Burns v Burns1 cohabited with her partner for 18 or 19 years2 and cared for their children but was left with no remedy in the law of trusts upon the termination of the relationship. Is Burns a landmark case in family law? The word ‘landmark’ is often used to refer to a case which marks a breakthrough or exciting new departure. Few would suggest that Burns, famous as a ‘hard case’, qualifies under this criterion. however, other established meanings of ‘landmark’ seem more apposite. a landmark can mean ‘an object set up to mark a boundary line’ or ‘[a]n object in the landscape, which, by its conspicuousness, serves as a guide in the direction of one’s course . . . any conspicuous object which characterizes a neighbourhood or district’.3 Burns may indeed mark a boundary line, either between family law and the law of trusts or (on one view) between the era of lord Denning’s judicial activism and a reaction which set in after his retirement from the bench.4 It certainly represents a conspicuous feature of the landscape of the law relating to cohabitants’ property rights, around which scholars, and would-be law reformers, must navigate. The decision retains its importance in the modern law relating to the common intention constructive trust, its authority not appearing to have been shaken by the decision of the house of lords in Stack v Dowden.5 This chapter considers again the issues raised by Burns, both in respect of the common intention constructive trust and in relation to the possible reform of the property * I would like to thank Mary Donnelly and Rebecca Probert for their comments on a previous draft of this chapter. any remaining errors are solely my responsibility. 1 [1984] Ch 317 (Court of appeal). 2 ibid 332 per Fox lJ (18 years); 320, 325, 326 per Waller lJ (19 years). The parties began to cohabit in rented accommodation in summer 1961 and separated at some point (unspecified in the judgments) in 1980. 3 ‘landmark, n.’ The Oxford English Dictionary, 2nd edn (oxford, oxford University Press, 1989). 4 lord Denning MR gave his last judgment in September 1982, less than a year before Burns was decided in July 1983. 5 [2007] UKhl 17.

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rights of cohabitants. The chapter takes a sceptical view of the merits of judicial law reform in the present context, arguing that there are significant objections to the idea of the courts setting out to establish a new framework to regulate the property entitlements of cohabitants upon the termination of their relationship. The chapter begins, in Part 1, with a consideration of the facts of Burns and of the approach taken in the judgments of the Court of appeal in that case. This Part also considers how the case fits in with previous authority, including the approach of lord Denning MR in a series of earlier Court of appeal cases. In Part 2, consideration is given to the impact of Schedule 1 of the Children act 1989, legislation which, it has been suggested, may address the apparent injustice in cases such as Burns v Burns. The author’s position is that this legislation, although important in its own right, does not truly provide a remedy for the perceived injustice which Burns has come to symbolise, that is, the fact that the claimant was unable to share in the wealth created by the family over the duration of the relationship. Finally, Part 3 discusses some of the issues raised by Burns as to the legitimacy of judicial reform in this area of the law. The ultimate conclusion of this chapter is that, although many commentators do not approve of the consequences of the decision, it is probably not possible to say that the law of trusts was wrongly applied in Burns v Burns or, even, that the law of trusts should be applied differently if a similar case were to arise today. Whether legislation should be enacted to regulate the property rights of cohabitants is a different (and complex) question.

BURNS v BURNS

The ‘figure of Mrs Burns’6 has featured prominently in debate relating to the possible reform of the law affecting cohabitants’ property rights and the case has frequently been used as a shorthand to sum up the case in favour of reform.7 Valerie Burns took part in a Panorama programme on ‘The Cost of living in Sin’ which was broadcast by the BBC on 24 november 2002. 8 This programme emphasised the potentially adverse consequences of cohabitation outside marriage and may have contributed to an increased perception that legislative reform was required in the area. a striking feature of the facts of Burns v Burns is that it involved a relationship which was very much ‘quasi-matrimonial’. For many of those who rest the case for reform of cohabitants’ rights on a perceived 6 See a Bottomley, ‘From Mrs. Burns To Mrs. oxley: Do Co-habiting Women (Still) need Marriage law?’ (2006) 14 Feminist Legal Studies 181, 183. 7 See eg, law Society, Cohabitation – The Case for Clear Law: Proposals for Reform (2002) 1. For comment on the tendency to emphasise the Burns scenario, see the observations of R Probert, ‘Trusts and the Modern Woman – establishing an Interest in the Family home’ (2001) 13 Child and Family Law Quarterly 275; Bottomley, above n 6. 8 See news.bbc.co.uk/2/hi/programmes/panorama/2489373.stm for details of the programme and a link to a full transcript.

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functional similarity between cohabitation and marriage,9 Burns seems to demonstrate compellingly the case for reform. This case was given further colour by Valerie Burns’ description on the Panorama programme of how, following the breakdown of her relationship, she was reduced to sleeping in her car in a lay-by. The Facts of the Case In 1961, Valerie was aged 20, was living with her parents and earning around £12 a week as a tailor.10 In the summer of that year, she moved into a rented house with Patrick Burns. The judgments do not indicate his age but a newspaper report suggests that he was 57 years old (and ‘a businessman’) at the time of the Court of appeal’s decision in 1983 and so he would have been aged around 35 at the start of the relationship.11 Fox lJ stated that Valerie ‘entered upon her relationship with the defendant knowing that there was no prospect of him marrying her’.12 The 2002 Panorama television programme provided the additional detail that ‘Valerie met Patrick at his driving school the day she passed her test. he’d been married but his Catholic ex-wife refused to give him a divorce.’ 13 according to Valerie’s account on this television programme, the couple moved in together seven months after this meeting. Cohabitation was much less common in england at that time than at present and, on Valerie’s account of the matter, the parties began to cohabit only because she was pregnant.14 a child was born to the couple in april 1962. In July 1963, when Valerie was again pregnant, a house in north london was purchased for £4,900. The house was purchased in Patrick’s sole name and he borrowed £4,500 on mortgage. at this time, it would 9 For discussion of the assumptions underlying this view, see R Probert, ‘Cohabitation: Current legal Solutions’ (2009) 62 Current Legal Problems 316, 321–29. 10 Burns, above, n 1, 370. 11 ‘Plea by Mistress Rejected’ The Times, 27 July 1983, 3. This newspaper report suggests that Valerie was aged 40 at the time of the decision (July 1983) which does not, in fact, tally with her having been aged 20 in the summer of 1961. 12 Burns, above n 1, 332. 13 The quote here, and those which in the following text are attributed to the Panorama programme, are from the transcript available on the BBC website (see above n 8). 14 Some indication of contemporary judicial attitudes can be found in Diwell v Farnes [1959] 1 WlR 624 (although, of course, this case deals with a cohabitation which ended, rather than began, at around the relevant time; the cohabitation in Diwell actually started in 1941). The majority of the Court of appeal in Diwell overturned the decision at first instance that the female claimant was entitled to a half share in a home in the sole name of her partner, holding instead that she was entitled to a share proportionate to her contributions to the purchase price of the property. There was a reference by omerod lJ (ibid 631) to the proposition that it would not be possible to enforce a contract based on immoral consideration. While Diwell was less generous in its treatment of cohabitants than of spouses, the approach which the Court of appeal declined to apply to cohabitants was based on the view, influenced by the Married Women’s Status act 1882, s 17, that the maxim that ‘equality is equity’ could be applied in a sweeping manner where spouses had contributed to the acquisition of a family home. This more generous approach was, in any case, rejected by the house of lords in the later cases of Pettitt v Pettitt [1970] aC 777 and Gissing v Gissing [1971] aC 886.

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have been normal for a family home to be held in the sole name of the male partner, even if the couple had been married. Fox lJ stated that: The balance of the purchase price and the costs of the purchase were paid by the defendant out of his own moneys. The plaintiff made no financial contribution; she had nothing to contribute. as to the reason for buying the house the judge said that he had no doubt that it was an important factor in the decision that the defendant realised that it was much better use of money to buy an asset – a house – rather than rent a flat (which was what he was doing previously).15

The second child was born in october 1963. The parties lived together in the house until 1980. Valerie changed her name by statutory declaration and ‘their friends and acquaintances believed them to be married’.16 When the children of the relationship were young, Valerie did not work but stayed at home to care for them. In the late 1960s, ‘as a result of qualifying as an instructor in flower arrangement she was able to earn a little by giving lessons in flower arrangement’.17 The amounts involved were, however, small. In 1972, Valerie began a driving instruction business. While the business was initially on a limited scale, by 1975 Valerie was earning an appreciable amount and, from 1977 or 1978 until she left the defendant in 1980, she was earning roughly £60 per week net of expenses.18 Valerie’s money was spent in various ways. She ‘made gifts of clothing and other things to the defendant and the children’, paid for the telephone bills (by agreement with the defendant ‘because she spent a lot of time on the telephone talking to her friends’) and bought various household chattels. She also paid for the housekeeping and the rates but this was done with the benefit of a generous housekeeping allowance from the defendant (£60 per week in the later stages of the relationship), which was calculated so as to take account of the rates.19 at one point, Valerie also redecorated the house, since she preferred wallpaper to paint.20 The ‘figure’ of the male defendant is notably absent from the judgments in the case. Patrick King Burns represented himself before the Court of appeal21 but no comment is made on this in the judgments. We are given no sense of his age or of the nature of his employment or the motive for his unwillingness to marry (although, as has been mentioned above, other sources shed light on these issues). Fox lJ felt that it was ‘evident that in a number of respects he treated her very well. he was generous to her, in terms of money, while the relationship continued. and, what in the long term is probably more important he encouraged her to develop her abilities in a number of ways, with the result that Burns, above n 1, 327. ibid per Waller lJ, 320. ibid per Fox lJ, 328. 18 ibid. 19 ibid. 20 ibid 330. 21 See ibid 320. The summary of the arguments shows the defendant having simply contended that the trial judge had correctly applied Pettitt and Gissing. Contrast the more elaborate argument on behalf of the claimant: ibid 319–20. 15 16 17

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she built up the successful driving instruction business.’22 Fox lJ may also have had in mind the fact that in 1972 Valerie ‘took flying lessons and qualified as a pilot of light aircraft in 1973’,23 as well as qualifying as an instructor in flower arrangement. In terms of the ending of the relationship, and the defendant’s role in this, the Court of appeal judgments state only that relations between the parties had deteriorated in the final two years of the relationship24 and that Valerie ‘left’ the defendant in 1980.25 a newspaper report of the Court of appeal’s decision suggests that she ‘moved out of their bedroom after he went on an overseas trip with a female personal assistant’.26 according to Valerie’s account given many years later on Panorama, having turned a blind eye to Patrick’s affairs for many years, she finally confronted him and told him ‘You’ve got to make a choice, it’s either me or . . . you know . . . the lifestyle’. he refused to change and ‘so that was it’. The Decision Valerie sought a declaration that the home was held on trust by the defendant in equal shares for herself and the defendant or, alternatively, in such shares as the court saw fit. She also sought a sale of the house, in which the defendant was apparently still living,27 and an appropriate division of the proceeds of sale. She was unsuccessful at first instance, before Dillon J (although no written judgment appears to be available in respect of this stage of the litigation). on appeal, the Court of appeal also rejected her claim and, subsequently, the appeal Committee of the house of lords refused leave to appeal.28 Valerie’s claim to a beneficial interest in the home was based on a number of arguments. She relied, first, on an indirect contribution to the acquisition of the house through the income from her driving instruction business; secondly, on a contribution in the form of the redecoration of the house and the purchase of household chattels and fixtures and fittings; and, finally, she relied upon the fact ‘that the plaintiff had been held up to the world as his wife by the defendant [and] had maintained the home and brought up their children during a period of 16 years’.29 applying the ‘common intention’ analysis developed in Gissing v Gissing,30 both May lJ and Fox lJ concluded that no common intention had existed between the parties that the beneficial ownership of the house would be ibid per Fox lJ, 332. ibid per Fox lJ, 328. 24 ibid per Waller lJ, 320. 25 ibid per Waller lJ, 320; per Fox lJ, 328. 26 ‘Plea by Mistress Rejected’ The Times, 27 July 1983, 3. 27 ibid. 28 Burns, above n 1, 345. The petition was refused on 17 november 1983 by lord Diplock, lord Scarman and lord Brightman. 29 ibid 319. 30 Gissing, above n 14. 22 23

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shared. a difficulty with the claim based on indirect financial contributions was that any contribution from her earnings had, in substance, only begun in 1975 – 12 years after the purchase of the property. This suggested that, at the time of the initial purchase, no common intention had existed between the parties. While it would be possible for the parties to form a common intention at some time subsequent to the purchase, for example on the occasion of the early discharge of the mortgage or the making of capital improvements to the property,31 there was nothing to indicate that this had taken place on the facts of the case. Similarly, the limited contributions to the redecoration of the house and the purchase of household chattels were not regarded as sufficient to indicate the existence of a common intention.32 as for the claimant’s work in bringing up the children and taking care of the home, Fox lJ agreed that, at the time of the purchase, the claimant ‘contemplated living with the defendant in the house and, no doubt, that she would do housekeeping and look after the children’.33 however, Fox lJ went on to state that: [T]hose facts do not carry with them any implication of a common intention that the plaintiff should have an interest in the house. Taken by themselves they are simply not strong enough to bear such an implication.34

Thus, Fox lJ found that the intention that the claimant would work in the home did not suffice to demonstrate the existence of a common intention at the time of the initial purchase. he also emphasised that the fact that she subsequently did act as envisaged, taking care of the children and of the home, did not serve to alter the parties’ property rights.35 Similarly, May lJ took the view that: [W]hen the house is taken in the man’s name alone, if the woman makes no ‘real’ or ‘substantial’ financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union.36

Waller lJ gave a judgment in which he appeared to be shaping up to hold in favour of the claimant. he showed sympathy with the ‘imputed’ intention approach favoured (in somewhat different forms) by both lord Reid and lord Diplock in Pettitt v Pettitt.37 This involves imputing to the parties a fictional intention based on the intention that, as reasonable people, they would have 31 32 33 34 35 36 37

Burns, above n 1 per Fox lJ, 327. ibid per Fox lJ, 329–30. ibid per Fox lJ, 327. ibid per Fox lJ, 327–28. ibid per Fox lJ, 330–31. ibid 345. Pettitt, above n 14. note also the speech of lord Reid in Gissing, above n 14.

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held if they had directed their minds to the question of their separate property entitlements. The orthodox view is that this type of approach had been rejected in Pettitt and in Gissing v Gissing.38 on one view of the matter, this approach is ‘the one that got away’, in that it represents an alternative path of development for the law which could have resulted in a much more potent set of remedies for claimants upon the termination of cohabitation. Waller lJ commented that ‘[i]f the law permits it a deemed intention between the parties would surely include some provision to make up for the statutory rights which marriage would have given in the event of a break up’.39 however, he concluded his judgment (somewhat abruptly) by stating that, having read the judgments of May lJ and Fox lJ in draft, he was ‘reluctantly persuaded that the law does not permit this court to impute a deemed intention on the facts of this case’.40 all the judges evinced sympathy in respect of the failure of Valerie’s claim. as has just been explained, Waller lJ came close to upholding the claim. May lJ commented that, when one compared the result in the case to the one that would have prevailed had she been married, ‘she can justifiably say that fate has not been kind to her’. however, in his opinion, ‘the remedy for any inequity she may have sustained is a matter for Parliament and not for this court’.41 Similarly, Fox lJ (having noted that the defendant had, in many respects, treated the claimant well during the relationship) commented that ‘[n]evertheless, she lived with him for 18 years as man and wife, and, at the end of it, has no rights against him. But the unfairness of that is not a matter which the courts can control. It is a matter for Parliament.’42 Assessing the Decision in Terms of Doctrine and Existing Authority Writing in the wake of the decision, lowe and Smith commented that ‘[i]n legal terms, the decision in Burns v Burns should occasion no real surprise’, in light of the failure of the claim in Gissing v Gissing.43 This view was quickly questioned by Dewar who drew attention to ‘the equally recent Court of appeal decision in Gordon v Douce44 [which] points to the existence of an alternative method of disposing of such cases, the ramifications of which extend beyond the arid confines of the law of implied trusts’.45 Dewar went on to argue for the existence of an ‘alternative doctrine’ existing alongside the ‘orthodox doctrine’, this alternative doctrine amounting to a version of the doctrine of proprietary estoppel. Unfortunately, Dewar’s reliance on Gordon v Douce seems to have 38 39 40 41 42 43 44 45

Gissing, above n 14. [1984] Ch 317, 326. ibid. ibid 345. ibid 332. ‘The Cohabitant’s Fate?’ (1984) 47 Modern Law Review 341, 344. [1983] 2 all eR 228. ‘Promises, Promises’ (1984) 47 Modern Law Review 735, 735.

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been misplaced. Dewar argued that ‘the full explanation’ for ‘such a divergence of result’ as between Burns and Gordon v Douce ‘must lie in the fact that the two (differently constituted) Courts of appeal applied different brands of implied trust doctrine on each occasion without apparent consciousness of the fact’.46 however, there was, in fact, no appeal in Gordon v Douce in respect of the finding that the claimant was entitled to a 25 per cent share in the beneficial interest.47 The only issue in the Court of appeal in Douce was the proper date of valuation of the parties’ shares (although this is described by Dewar as ‘the other issue on appeal’ in the case (emphasis added)).48 It is true that the judgments of Fox and May lJJ in Burns present a conservative view of the ‘common intention’ analysis, tending to speak in terms of the ‘resulting trust’ and downplaying the aspects of the doctrine that are closest to proprietary estoppel. as was demonstrated by Grant v Edwards,49 not long after the decision in Burns, somewhat different factors come into play in cases where there is an express common intention. however, while Burns does not offer a particularly crisp statement of the common intention doctrine as a whole, it is not clear that the judges in the case failed to apply that (limited) doctrine properly to the specific facts of the case, since there was no suggestion in the case that there had been express discussions between the parties in respect of sharing ownership of the house. The facts of Burns were not directly comparable to those in Gissing itself, given that the claimant wife in Gissing had worked full-time, except for a short period around the time of the birth of the couple’s only child (although ‘[s]he, of course, did all the household work of cleaning and cooking’).50 nonetheless, according to May lJ in Burns,51 the claim in Burns was ‘no stronger than that put by lord Diplock’ in the following key passage from his speech in Gissing: Where the wife has made no initial contribution to the cash deposit and legal charges and no direct contribution to the mortgage instalments nor any adjustment to her contribution to other expenses of the household which it can be inferred was referable to the acquisition of the house, there is in the absence of evidence of an express agreement between the parties no material to justify the court in inferring that it was the common intention of the parties that she should have any beneficial interest in a matrimonial home conveyed into the sole name of the husband, merely because she continued to contribute out of her own earnings or private income to other expenses of the household.52 ibid 736. [1983] 2 all eR 228, 230 per Fox lJ. 48 Dewar, above n 45, 735. note also that Fox lJ, one of the judges in Burns, was one of the two judges in Gordon v Douce (along with Bush J). 49 [1986] Ch 638. 50 [1969] 2 Ch 85, 100, per Phillimore lJ. on contemporary assumptions about women’s work, see Douglas, ch 8 in this volume. 51 [1984] Ch 317, 331–32. 52 Gissing, above n 14, 909. a dictum of lord Diplock in Pettitt, above n 14, 826a-B was also relied upon in Burns, above n 1, 330 per Fox lJ; 342 per May lJ. however, the relevant dictum of lord Diplock emphasises that the home improvement activities of the ‘husband’ while ‘the wife 46 47

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even though there does not appear to have been any prior decision expressly ruling out a claim based on work in the home,53 it seems difficult to argue that the conduct of Valerie Burns, in caring for the children of the family, could form the basis for an inference that there must have been an actual common intention between herself and Patrick Burns that she would have a share in the ownership of the house. Such an inference of fact seems all the more implausible since, first, the house was purchased in 1963, when the expectations of an average cohabitant may have been more limited than today and, secondly, the defendant was considerably older than the claimant, had already been through a marital breakdown and may well have been concerned to protect his separate property rights (making it less likely that he would have given the claimant the impression that she could hope to share in the ownership of the house).54 Thus, it does not appear that, consistently with Gissing, the claim in Burns could have succeeded. It is true, of course, that maintaining consistency with Gissing was not a notable concern of lord Denning MR in a series of Court of appeal decisions between Gissing and Burns (most of these decisions being made in the first few years after Gissing).55 lord Denning MR’s approach to the relevant type of case had been that ‘whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust’.56 The emphasis in the relevant authorities was on the status of does the shopping, cooks the family dinner or bathes the children’ do not establish a common intention to alter the ‘existing proprietary rights in the family home on which they are undertaken’ (emphasis added). The italicised words appear to indicate that lord Diplock was commenting on the effect of the activities of the ‘husband’, and not (directly at any rate) on those of the ‘wife’. The dictum of lord hodson in Pettitt, above n 14, 811B-D (referred to by Fox lJ in Burns, above n 1, 330) seems to be more in point. 53 note the remarks of lord lowry in Hanlon v Law Society [1981] aC 124, 200 (a costs case) which indicate a view that financial contributions, rather than ‘contributions (using that word in a broad sense) . . . to the welfare of the home’, are required to justify the inference of a common intention to share the beneficial interest. In general, it may be that it was regarded as clearly established by Gissing that some form of financial contribution was necessary, so that counsel did not tend to rely on contributions in the form of work in the home. note eg the rejection of the claim in Wood v Wood, Court of appeal, 7 July 1982 (lexis). While it appears likely that the claimant was looking after the couple’s young daughter, no mention was made of this possible contribution in the case (although there was discussion of the claimant’s having done odd jobs around the farm). 54 The Panorama television programme (see above n 8) includes a clip from a november 1983 ‘Sixty Minutes’ programme in which Patrick Burns refuses to agree that the law as applied in Burns was unfair. The impression one gains is of a person with a strong sense of his own entitlements (who might indeed be the kind of person who would insist on his partner’s agreeing to an opt-out if legislation were passed allowing the courts to adjust the rights of cohabitants upon the termination of their relationship). 55 See Falconer v Falconer [1970] 1 WlR 1333; Davis v vale [1971] 1 WlR 1022; Hargrave v Newton [1971] 1 WlR 1611; Hazell v Hazell [1972] 1 WlR 301; Cooke v Head [1972] 1 WlR 518; Hall v Hall (1982) 3 FlR 379. note also the authorities in which lord Denning MR supported the idea of a ‘new model constructive trust’ to be applied whenever ‘justice and good conscience’ required it, including Hussey v Palmer [1972] 1 WlR 1286 and Eves v Eves [1975] 1 WlR 1338. See also Richards v Dove [1974] 1 all eR 888 and the joint names case of Bernards v Josephs [1982] 1 Ch 391. note, finally, the failure of the claim in Carley v Smith, Court of appeal, 23 June 1980 (lexis) (15 years of cohabitation, claim not based on child-rearing; lord Denning not a member of the panel). 56 Cooke v Head [1972] 1 WlR 518, 520.

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indirect financial contributions and it is unclear, in fact, whether or not lord Denning MR would have been willing to uphold the claim of Valerie Burns if the decision had fallen to him.57 If one were applying lord Denning MR’s test, the question would be whether the facts of Burns would have justified the conclusion that the house had been acquired by the ‘joint efforts’ of the parties, this being a rather imprecise criterion. a possibly more expansive approach was suggested by a dictum of lord Denning MR in 1981 in Hall v Hall58 to the effect that the share to be obtained by a claimant ‘depends on the circumstances and how much she has contributed – not merely in money – but also in keeping up the house; and, if there are children, in looking after them.’59 however, it seems that lord Denning was here discussing what would now be referred to as the question of quantification (‘But what should that share be?’)60 – a question which would only arise if ‘because of her contributions to the joint household’61 or, as he put it earlier, ‘to the establishment of the joint household’,62 she became entitled to a share ‘by way of a resulting trust’.63 It remains unclear whether lord Denning felt that the claimant’s contributions had to have a financial aspect, with non-monetary contributions in terms of childcare and similar work then ‘piggybacking’ on the financial contributions at the quantification stage, 64 or whether non-financial contributions alone would have been sufficient to get over the initial hurdle of establishing a trust in favour of the claimant. even if one concludes that lord Denning MR, operating at full stretch as it were, would have found a way to hold in favour of Valerie Burns if it had been up to him, it does not seem plausible to regard the result reached in Burns as representing a backlash against the liberal approach implemented by lord Denning in the 1970s. It would, in fact, have been an extremely bold step for the Court of appeal to have upheld the claim in Burns in the face of Gissing.65 Since the result in Burns was dictated by the application of conventional doctrine to the facts, there does not appear to be room to regard that result as a reaction by the Court of appeal against the liberties taken by lord Denning with the 57 Certain comments of his in Kowalczuk v Kowalczuk [1973] 1 WlR 930 arguably suggest that he would not have been willing to do so. See ibid 934 where lord Denning MR commented that ‘I would not be prepared to go so far as the registrar seems to have done in taking into account – under section 17 [of the Married Women’s Status act 1882] – her contributions in looking after and bringing up the family and in looking after the house, buying the food and so forth. Such contributions can be considered [when the court is exercising its discretion to adjust property rights in the divorce context] but not under section 17 of the act of 1882.’ note, however, that the claim in this case was weakened considerably by the fact that the disputed house had been acquired by the defendant prior to the marriage. 58 (1982) 3 FlR 379. 59 ibid 382. 60 ibid. 61 ibid. 62 ibid. 63 ibid. 64 Compare Midland Bank v Cooke [1995] 4 all eR 562. 65 Greater scope to take a new direction would have been available to the house of lords but, as mentioned earlier, leave to appeal was refused by the appeal Committee of the house of lords: see text to n 28 above.

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doctrine of precedent in his treatment of family home cases with different facts. In fact, lord Denning’s relatively generous approach in cases such as Falconer v Falconer,66 Hazell v Hazell67 and Cooke v Head68 did not come in for any criticism in Burns.69 overt disagreement with lord Denning seems to have been confined to his dictum in Hall, discussed above, which may or may not go further than his approach in the earlier cases. This Part has considered the decision in Burns itself. Part 2 will now consider the impact of an important piece of legislation that is relevant to the issues raised by Burns. It will be concluded that the relevant provisions, although serving an important function, do not provide a substitute for possible judicial or legislative reform in respect of property claims based on a cohabitant’s contributions and sacrifices during the relationship. Part 3 will then discuss, in light of the decision in Burns, the issues in respect of possible judicial reform. SCheDUle 1 oF The ChIlDRen aCT 1989 anD The BURNS SCenaRIo

Since Burns v Burns was decided, there has been a significant change in the statutory position, in the form of Schedule 1 of the Children act 1989.70 according to Ruth Deech, Burns is generally cited as an example of a case where hardship can occur ‘[b]ut this argument overlooks the passage . . . of Sch 1 of the Children act 1989’.71 In a more detailed and cautious discussion, Rebecca Probert also sees some potential in this section,72 which seems to have been underused in the past.73 Schedule 1 gives the court the power to order the making of periodical payments or the transfer of a lump sum or the settlement or transfer of property, either to the child or to the applicant for the benefit of the child. The applicant can be ‘a parent or guardian of a child, or . . . any person in whose favour a residence order is in force with respect to a child’. 74 as Probert explains, it is possible for an allowance for the child’s carer to be included within periodical payments for the child.75 however, as she also notes, ‘[t]he case-law is consistent in holding that any property settled on, or for the benefit of the child, must revert to the settlor once the child attains the age of majority’.76 Probert [1970] 1 WlR 1333. [1972] 1 WlR 301. 68 [1972] 1 WlR 518. 69 although May lJ seemed to prefer Brightman J’s majority approach in Eves, above n 55 to lord Denning’s ‘new model’ constructive trust approach in that case. 70 See law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (law Com no 307) (July 2007) 36–38, 169–71. 71 R Deech, ‘Cohabitation’ [2010] Family Law 39, 42. 72 Probert, above n 9, 336–38. 73 law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown: A Consultation Paper (law Com Consultation Paper no 179) (May 2006) 81–84. 74 Sch 1, para 1(1). 75 Probert, above n 9, 336. 76 ibid 337. 66 67

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mentions the possibility, however, that a broader interpretation could be taken. She suggests that it might be argued that, in some cases, ‘the potential benefit to the child requires a future benefit to the mother’.77 The argument would be that it might be best in some circumstances that the parent caring for the child should ‘be freed from the necessity of seeking employment [during the children’s minority] and that this requires that the carer should be entitled to retain at least some part of the property’s value even after they have attained their majority’.78 For present purposes, the key point about Schedule 1 is that it looks forward rather than backwards. In other words, it does not address the sacrifice made by a cohabitant in relation to past child-care activity. even if its full potential were realised, it would simply operate to prevent a former cohabitant from sustaining further loss as a result of future child-care activity (after the termination of the cohabitation). as has been mentioned, there is the possibility that a claimant who cares for the children of the relationship after its termination might end up retaining some property after the children reach their majority. however, if this were to occur, it would simply be paid for by further sacrifice on the part of the former cohabitant, in addition to that which occurred during the currency of the relationship. Thus, it is difficult to see how Schedule 1 can be regarded as providing a remedy for perceived injustice resulting from the cohabiting relationship and its termination – even though it may reduce the scope for further loss to the claimant, on top of that which has already been sustained by the time that the relationship ended. It must be remembered that no order would be possible under Schedule 1 unless the claimant continues, after the termination of the cohabitation, to have responsibility for child-care. Thus, there would be no possibility of a remedy under this legislation if it happened, for whatever reason, that the children of the relationship went to live with the defendant after the end of the relationship (although, presumably, it would very often happen that the partner who had been looking after the children during the relationship would continue to do so after its termination). Similarly, Schedule 1 would be of no value if the cohabiting relationship lasted until after the minority of children – in Burns, for example, the children of the relationship were aged 18 and 17 at the time when Valerie Burns first issued proceedings against her partner79 (and 21 and 19 at the time of the Court of appeal’s judgment). overall, in terms of the possible need for reform, it does not appear that the landscape is decisively altered by the enactment, since Burns v Burns, of Schedule 1. The discussion now turns to the issues surrounding the potential role of the law of trusts in accomplishing reform.

ibid. ibid. The first child was born on 29 april 1962 and the second child on 9 october 1963: Burns, above n 1 per Waller lJ, 320. Valerie Burns issued proceedings on 14 January 1981, approximately six months after leaving her partner: ibid 318. 77 78 79

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PoSSIBle JUDICIal ReFoRM ThRoUGh The laW oF TRUSTS

To many people with an interest in family law, Burns may be seen to have been wrongly decided, with the courts allowing the technicalities of the law of trusts to stand in the way of social justice. The issues surrounding possible judicial law reform through the law of trusts are explored in this final Part of the chapter. The point is made, first, that it is questionable whether it would be legitimate, in democratic terms, for the courts to embark on radical reform of the law in this important area without the input of the legislature. Secondly, consideration is given to the role of the law of trusts in possible judicial law reform. It is pointed out that the law of trusts is important in its own right and that adverse consequences, outside the cohabitation context, may result from distorting the principles of the law of trusts in order to provide a remedy to cohabitants in a wider range of cases. Finally, it is argued that if, as appears to be required in the interests of democratic legitimacy, judicial law reform must be confined to the incremental development of existing principles (principally, the common intention constructive trust), then the outlook on this front is not favourable. This suggests that, if reform is to occur, it should be undertaken by the legislature. The implication is that Burns was not wrongly decided, although it is a different question as to whether the legislature should intervene to alter the rules applying to property disputes arising upon the termination of cohabitation. Doctrine and Democratic Legitimacy In considering whether it is really for the courts to preside over ‘the evolution of the law of property to take account of changing social and economic circumstances’,80 it is necessary to bear in mind that, in order to have democratic legitimacy, doctrinal development must build incrementally on existing legal principles. The point has been expressed as follows in the high Court of australia: advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. any changes in legal doctrine, brought about by judicial creativity, must ‘fit’ within the body of accepted rules and principles . . . It is a serious constitutional mistake to think that the common law courts have authority to ‘provide a solvent’ for every social, political or economic problem.81

It seems clear that, in terms of this issue, a free pass cannot be obtained simply by suggesting that the desired change in the law should be brought about 80 81

Stack, above n 5 per Baroness hale, [46]. Breen v Williams (1996) 186 ClR 71, [46]–[47] per Gaudron and Mchugh JJ (fn omitted).

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through the intervention of equity. as is illustrated by the failure of lord Denning’s attempt in the 1970s to gain recognition for a ‘constructive trust of a new model’ which would apply whenever justice and good conscience require it,82 the law of trusts is not subject to some peculiarly lax regime in terms of the scope for its development. In relation to the connection between legal doctrine and democratic legitimacy in the present context, it should be remembered that even if ‘[i]t may be an article of faith for some that cohabitation is a superior relationship to marriage’83 and another article of faith that cohabitants’ rights should be increased, not everyone shares the same faith on these matters. What of the proverbial ‘Daily Mail readers’ who object strongly to (what they see as) any attack on the institution of marriage; or those observers who see the process of attaching greater legal rights and duties to cohabitation as representing the triumph of the marriage model, with less conventional forms of personal relationship being forced into the same mould as traditional marriage? Do people holding these opinions not get a vote? The answer is, of course, ‘no’ if radical reform takes place through the courts.84 The question is whether, if one is personally in favour of a particular change in the law, it is defensible to argue that the courts should implement that change, without reference to whether it would represent a legitimate development of existing legal principles. Jeremy Waldron, in Law and Disagreement,85 argues plausibly for the central role of the legislature in resolving disagreements amongst citizens in respect of what the law should be. If one person argues, on the basis of one world-view, that their viewpoint is correct and another person, having another world-view, argues the opposite, who is to determine which one is right, if not the democratically elected legislature? The argument runs into greater complexities if the point at issue relates to what are argued to be basic human rights.86 however, in the context of the debate on cohabitants’ rights, it does not, at present, appear that human rights norms require any major change in the current law.87 Moreover, as well as its merits as a matter of principle, the argument about democratic legitimacy as a bar to judicial law reform is lent practical importance by the fact that the courts in england and Wales appear, on the whole, to accept it in the present context. no See J Mee, The Property Rights of Cohabitees (oxford, hart Publishing, 1999) ch 6. Probert, above n 9, 325. 84 note Caroline Sawyer’s radical suggestion (‘equity’s Children: Constructive Trusts for the new Generation’ (2004) 16 Child and Family Law Quarterly 31, 46) that equity should give birth ‘to a sibling form of the “common intention” constructive trust’ which would recognise ‘an obligation to share equitable interests founded on shared parental obligation to bring up children’. She explicitly argues (ibid 48) that the courts would have the advantage of being ‘more removed than the legislature from the direct political effects of public resistance’. 85 (oxford, Clarendon Press, 1999). 86 For recent discussion, see M Tushnet, ‘how Different are Waldron’s and Fallon’s Core Cases For and against Judicial Review?’ (2010) 30 OJLS 49. 87 For discussion, see eg, S Wong, ‘Rethinking Rosset from a human Rights Perspective’ in a hudson (ed), New Perpectives on Property Law, Human Rights and the Home (london, Cavendish, 2004); S Wong, ‘The human Rights act 1998 and the Shared home: Issues for Cohabitants’ (2005) 27 Journal of Social Welfare and Family Law 265. 82 83

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drastic judicial reform of the rights of cohabitants has yet been forthcoming, in contrast to the position in, for example, Canada, australia and new Zealand.88 a further point can be made concerning the legitimacy of judicial law reform, by reference to the law reform process in this area in the United Kingdom and Ireland. as is well known, the law Commission published a report in 2007 containing recommendations for reform.89 The law Commission’s proposals are complicated and subject to a variety of limitations. The Government subsequently indicated that it would take no action on the relevant report, pending an assessment of the efficacy and cost of the scheme in the Family law (Scotland) act 2006,90 which ‘has provisions which are similar in many respects to those which the Commission recommends’.91 Recent legislation passed in Ireland, the Civil Partnership and Certain Rights and obligations of Cohabitants act 2010, is partly concerned with the introduction of civil partnership for same-sex couples.92 however, the act also sets up a scheme for ‘qualified cohabitants’, which applies to heterosexual or same-sex couples who live together without marriage or civil partnership.93 The availability of most of the remedies under the act is dependent on the claimant establishing that, as a result of the relationship or of its termination, he or she is ‘financially dependent’ on the other cohabitant.94 88 See the discussion of these developments, and a critique on doctrinal grounds, in Mee, above n 82, chs 7–9. 89 Cohabitation: The Financial Consequences of Relationship Breakdown (law Com no 307, 2007). See G Douglas, J Pearce and h Woodward, ‘The law Commission’s Cohabitation Proposals: applying Them in Practice’ [2008] Family Law 351; D hughes, M Davis and l Jacklin, ‘ “ Come live with Me and Be My love” – a Consideration of the 2007 law Commission Proposals on Cohabitation Breakdown’ [2008] The Conveyancer and Property Lawyer 197; R Probert, ‘a Review of Cohabitation: The Financial Consequences of Relationship Breakdown, law Com. no. 307 (hMSo 2007)’ (2007–08) 41 Family Law Quarterly 521; G Douglas, J Pearce and h Woodward, ‘Cohabitants, Property and the law: a Study of Injustice’ (2009) 72 MLR 24. 90 See in particular ss 25–29. See generally, T Guthrie and h hiram, ‘Property and Cohabitation: Understanding the Family law (Scotland) act 2006’ (2007) 11 Edinbugh Law Review 208. 91 See the Ministerial Statement by Bridget Prentice, Parliamentary Under Secretary of State, Ministry of Justice: Response to paper on cohabitation and relationship breakdown (6 March 2008). 92 The act came into force on 1 January 2011. 93 See Part 15 of the act. Section 172 provides that ‘qualified cohabitants’ must have lived together in ‘an intimate and committed relationship’ for at least two years, if they are the parents of one or more dependent children or, if not, for at least five years. There is an ill-conceived limitation in s 172(6) in respect of cases where one or both of the cohabitants is married to a third party; in order for the parties to constitute qualified cohabitants, the ‘married’ cohabitant must have ‘lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years’ (so as to be eligible to seek a divorce under Irish law). For criticism of this aspect of the legislation, see J Mee, ‘a Critique of the Cohabitation Provisions of the Civil Partnership Bill 2009’ (2009) 12 Irish Journal of Family Law 83, 84–86. 94 See s 173(2), relating to property adjustment orders, maintenance orders and pension adjustment orders. Financial dependency is not normally a prerequisite for the availability of orders for provision from the estate of a deceased cohabitant (see s 194) but its absence is a disqualifying factor where the relationship had terminated prior to the death of the cohabitant from whose estate provision is being sought (see s 194(5)). Thus, the drafters of the act seem to have been thinking predominantly in terms of cases which resemble Burns v Burns, in that a claimant has sacrificed earning prospects in order to devote himself or (more likely) herself to child-rearing and work in the home. In the view of the current author, the cohabitation scheme in the Irish act is seriously flawed.

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The broader significance of the varying approaches to legislative law reform is that they call into question the legitimacy of any attempt by the courts to shortcircuit the democratic process by, in effect, advancing a reform scheme of their own. a consideration of the range of possible judicial reforms suggests that they do not resemble the more nuanced (and potentially more limited) legislative schemes that have been enacted or discussed in england and Wales, Scotland, or Ireland. The Role of the Law of Trusts In light of the general point about democratic legitimacy made in the previous section, it is necessary now to take a step backwards and look at the fundamental question of why it might be considered that the law of trusts is the appropriate venue for the rectification of perceived injustice arising upon the termination of intimate cohabitations. henry Kissinger famously (but, it seems, apocryphally) asked ‘Who do I call if I want to call europe?’95 So, if you want to reform the law on cohabitants’ rights, whom do you call? If the answer is not to be ‘the legislature’, it would seem necessary to identify an area of law, the existing principles of which hold out the possibility for appropriate development to address the problem at issue. It would be necessary for the candidate legal area to be sufficiently mature to handle the challenge, so that if the infant law of restitution had been put on the line in 1970 we might have heard little more than a few gurgles. even now, as a somewhat pampered adolescent, the law of restitution may not be in a position to give much assistance (although the possibility of a radical change of direction cannot be ruled out entirely).96 Thus, in Pettitt and Gissing, after a brusque exchange with the law of contract, we were finally put through to the law of trusts. The attraction of the law of trusts was originally the existence of the presumption of resulting trust. The ancient doctrine of the purchase money resulting trust is rooted in historical conditions that no longer prevail. hundreds of years ago, when a person made a conveyance of land without consideration, it was most likely that the person taking the conveyance was intended to be a trustee. accurately reflecting the likely genuine intention of the parties in the relevant period of history, equity was willing to presume, in the absence of rebutting For criticism of aspects of the Bill which led to the 2010 act, see Mee, above n 93 (see in particular 86–89 on the requirement of financial dependency); J Mee ‘Succession and the Civil Partnership Bill 2009’ (2009) 14 Conveyancing and Property Law Journal 86. Some improvements were made to the Bill in the course of its passage through Parliament (particularly in relation to the succession law provisions) but, unfortunately, the concept of ‘financial dependency’ has continued to be central to the statutory scheme. See generally, J Mee ‘Cohabitation law Reform in Ireland’ (2011) 23 CFLQ (forthcoming) 95 See eg, the comments of Gideon Rachmann, chief foreign affairs commentator for the Financial Times: blogs.ft.com/rachmanblog/2009/07/kissinger-never-wanted-to-dial-europe. 96 note lord Walker’s comments on the law of unjust enrichment in Stack, above n 5, [23], [28].

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evidence, that the original owner intended to create a trust. This doctrine was subsequently developed to cover the analogous case of the purchase of property in the name of another. By force of inertia, the presumption of resulting trust remained part of the law even after the passing away of the historical circumstances which originally justified it.97 a key problem for a cohabitant claiming a share of his or her partner’s property is that the parties are, or at least the claimant is, unlikely to have given attention to the parties’ separate property entitlements. The utility of a presumption of intention is that it bridges that gap in a claimant’s case by placing the onus on the defendant to prove that the claimant did not have the requisite intention, an onus which is difficult to discharge given the fact that the claimant is unlikely actually to have considered the question. The modern common intention trust, although it differs in various respects from the purchase money resulting trust, is still heavily entangled with the older doctrine. Crucially, the purchase money resulting trust turns on the payment of the purchase price for the acquisition of property. Thus, the aspect of the law of trusts that made it seem attractive as a venue for law reform has an inherent focus on financial contributions, in the sense of something which can be interpreted as a payment towards the purchase price of property. It is, therefore, understandable that a legal analysis which has been developed out of the purchase money resulting trust will be limited in its ability to deal with the Burns scenario. In thinking about the role of the law of trusts as a possible location for law reform in this area, it is crucial to remember that the law of trusts, like all areas of the law, has its own function to perform within the legal system. like impatient visitors to a distant country, irritated at the locals’ inability to speak the visitors’ language, lawyers concerned only with the achievement of the goal of affording cohabitants greater remedies may chafe at the limitations of equity and trusts. The problem is that the law of trusts is important for reasons other than its role in respect of resolving disputes between cohabitants. We are not talking here about abstract theoretical purity and logic98 which could appeal only to anorak-clad property-law scholars. Rather, having a sensible law of equity and trusts is important because it impacts upon people’s lives (as do all areas of the law). If we develop new rules with a view to increasing the remedies 97 Some modern restitution scholars have, in my view, sought to rewrite legal history by suggesting that the relevant aspects of resulting trust doctrine do not simply reflect historical circumstances which no longer prevail but rather represent a defensible commitment by the law to a particular attitude to the reversal of unjust enrichment. See eg, P Birks, An Introduction to the Law of Restitution revised edn (oxford, Clarendon Press, 1989) esp 54–73; P Birks, ‘Restitution and Resulting Trusts’ in S Goldstein (ed), Equity and Contemporary Legal Developments (Jerusalem, hebrew University of Jerusalem, 1992) 335; R Chambers, Resulting Trusts (oxford, oxford University Press, 1997); R Chambers, ‘Resulting Trusts in Canada’ (2000) 38 Alberta Law Review 378; P Birks, Unjust Enrichment, 2nd edn (oxford, Clarendon Press, 2005) esp 150–52 and 304–07. For one counterargument, with an historical focus, see J Mee, ‘“automatic” Resulting Trusts: Retention, Restitution, or Reposing Trust?’ in C Mitchell (ed), Constructive and Resulting Trusts (oxford, hart Publishing, 2010). 98 Compare Probert, above n 9, 332.

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available to cohabiting couples, without somehow ensuring that these rules will apply only to cohabiting couples, then the new expanded rules will obviously be available to those who are not in cohabiting relationships. Thus, the common intention constructive trust is frequently argued in cases not involving spouses or cohabitants, for example in cases involving friends, business partners, parents and children.99 This is not to argue that people falling into these categories should not receive just treatment from the law but rather that generous rules, devised on the basis of a perception that it is appropriate to treat cohabiting couples on a par with married couples, do not necessarily make sense when applied outside the cohabitation context. More specifically, there are obvious dangers in any rule that would require the court to find the existence of an actual common intention in circumstances where, on the normal rules of evidence, no such common intention should be found to exist.100 The point is that the central proposition behind the common intention analysis – that the court should declare the existence of a trust when a person has acted to his or her detriment on the basis of a common intention that the claimant would obtain a share in the ownership in the home – cannot be regarded as isolated and free-standing. Surely the legal system is not so primitive, our commitment to intellectual coherence in the law so slight, that the central concept underlying an important doctrine can be seen as lighter than air, requiring no support or justification in principle? The relevant proposition, at the centre of the common intention doctrine, can only remain in place if it can be explained by reference to the principles of justice underlying equitable rules in this area. Thus, the basic idea, as expressed by lord Diplock in Gissing v Gissing, is that a remedy should be available when the legal owner of property has led the claimant to act ‘to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land’.101 on the basis of this, or any other plausible foundation in principle for a doctrine that depends on the claimant having acted to her detriment on the basis of a common intention, it is necessary that there has been a genuine common intention on the basis of which the claimant can be said to have acted. If the court finds that a common intention existed, when it really did not, then there is no doctrinal foundation for a remedy. The advocate of a remedy in these circumstances would effectively be arguing that the foundation in justice for a remedy has nothing at all to do with the logic of the common intention analysis but resides elsewhere, in the special features of cohabitation and, perhaps, in its putative functional similarity with marriage. The potential for collateral damage seems clear when the courts are being 99 See eg, Yaxley v Gotts [2000] Ch 162; Crossley v Crossley [2005] eWCa Civ 1581; Turner v Jacob [2006] eWhC 1317 (Ch). 100 See below (under the heading ‘The limited Potential of the Common Intention analysis’) for discussion of the issues which arise where a common intention can be found to exist but it is unclear how to quantify the share of the claimant. 101 Gissing, above n 14, 905.

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urged to ignore the logic of the doctrine they are applying in order to provide remedies for one set of claimants who are thought to be deserving for other reasons. The doctrine being distorted for this purpose will lose all coherence – as has surely happened in this area of the law of trusts – leading to unpredictability, complexity, and potential overkill when that doctrine is invoked by claimants outside the context of cohabitation. This leads to negative consequences for real people (who incidentally may, in their spare time, be cohabitants), who are entitled to expect that the law of equity and trusts – like, say, the law of torts or the law of contract – makes sense and is fit for its range of purposes. From the point of view of avoiding an inappropriate impact outside the cohabitation context, it would be preferable if radical judicial innovation could be expressly confined to the ‘family’ context, as was lord Denning’s ‘family assets’ doctrine102 and as would be, say, an approach based fully on ‘imputed intentions’ (not merely in the context of quantification) or on reasonable expectations as in new Zealand.103 This would ensure that rules designed to benefit cohabitants would not be applied in, for example, a business context, or as between people in a very different relationship to that which prevails between cohabitants. This argument does not depend on any desire to keep property law or the law of trusts ‘pure’, in the sense of being theoretically pristine and uncontaminated by the reality of human life and relationships. Instead, it points out that the argument by some commentators, that there are special features of the cohabitation situation (for example its putative functional similarity to marriage) which justify creating special legal doctrines to apply to cohabitants, does not justify extending those special doctrines to those in relationships which lack the special features of the cohabitation situation. however, the difficulty with the idea of developing special rules of limited application is that the democratic legitimacy argument, and the general attitude of the english courts in this area, suggests that the courts should not arrogate to themselves the task of devising a quasi-legislative scheme to regulate the property rights of cohabitants. If the courts stick with this line, drawn firmly in Pettitt and Gissing, then they are confined to trying to develop existing principles of equity to deal with family, personal and business relationships in general. If the courts are proceeding on this basis, this complicates claims by commentators that the law of trusts is engaged in ‘allocating’ property rights upon the termination of a relationship104 and that it is seriously at fault because it does not ‘ascribe a value’ to unpaid work in the home. If one is asking the question, ‘is it just, in the abstract, that a cohabitant who has worked in the home should have a claim upon the termination of the relationship?’, one is 102 See the statement of this doctrine by lord Denning MR in the Court of appeal in Gissing v Gissing [1969] 2 Ch 85, 93. The doctrine was rejected by the house of lords in Pettitt, above n 14 and in Gissing, above n 14. 103 See Gillies v Keogh [1989] 2 nZlR 327; Lankow v Rose [1995] 1 nZlR 277. 104 See eg, a hudson, ‘equity, Individualisation and Social Justice: Towards a new law of the home’ in a hudson (ed), New Perspectives on Property Law, Human Rights and the Home (london, Cavendish, 2004) 2.

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likely to get a different answer than if one is asking the question, ‘does the fact that a cohabitant has worked in the home prove that there must have been an actual common intention between the cohabitants that the claimant would get a share in a home in the name of the other cohabitant?’ What has been said thus far does not amount to an argument against somehow developing the law of equity and trusts, on a principled basis, so as to do better justice in disputes between people across the full range of family, personal and business relationships. nor does it amount to an assertion that the law deals fully satisfactorily with all claims which may arise amongst family members other than cohabitants (so that all problems would be eliminated if the special position of cohabitants could be dealt with by legislation). however, in relation to ‘family’ claims arising outside the cohabitation context, it is important to remember that ‘it is not the place of law to provide a remedy for every disadvantage’105 and that equity ‘cannot smooth out all of the inequities arising from human relationships’.106 The creation of more sweeping (and more invasive) rules, involving a higher level of discretion, has the effect of diminishing predictability, potentially involving more people in litigation and the threat of litigation, setting family members against each other in a context of heightened tension, and risking remedies being unjustly granted in favour of claimants who can exploit the open-endedness of the law to present an unmeritorious claim in a plausible way. The Limited Potential of the Common Intention Analysis as a final aspect of considering the possibility of judicial law reform, it is necessary to examine whether, by developing existing principles of the law of trusts on an incremental basis, it would be possible to develop a framework which could deal satisfactorily with property disputes arising upon the termination of cohabitation. In this context, it is necessary to emphasise the limitations of the common intention trust doctrine, notwithstanding the more sanguine approach of some other commentators. The unfortunate reality seems to be that the ‘common intention’ constructive trust doctrine represents an elaborate set of legal cul-de-sacs – a maze in which the courts have become stranded. Judicial stumbling about inside this maze can be viewed by commentators in different ways. one temptation is to take a view coloured by sympathy for claimants and uncomplicated by a willingness to engage with the somewhat tedious principles of the law of trusts (which may, not unreasonably, be regarded as ‘tiresomely confused, rather than interesting’).107 This leads to a cheer being sent up each time a decision is made which favours a claimant, irrespective of whether the reasoning in the case is defensible in principle, followed by groans when we end 105 106 107

Probert, above n 9, 343. Mee, above n 82, 320. See Sawyer, above n 84, 34.

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up in the hedge yet again. Many new dawns have been hailed, and retrospective steps lamented, over the years: Burns v Burns (booh!), Grant v Edwards108 (hurrah!), Lloyds Bank v Rosset109 (booh!), Midland Bank v Cooke110 (hurrah!), plucky little Le Foe v Le Foe111 (holistic hurrah!), Oxley v Hiscock112 (hurrah! ‘fairness’!), Stack v Dowden113 (hurrah! ‘context’ even if not ‘fairness’!). If one views the cases with a dispassionate eye, it is difficult to see that progress is really being made. Cases such as Oxley v Hiscock and Stack v Dowden, sometimes regarded as representing an important step forward, were largely concerned with what may loosely be referred to as the problem of ‘quantification’ – in other words, the issue of what happens when it can be established that there was a common intention between the parties that ownership should be shared but the parties never addressed their minds to the question of what shares each person should have. The question of ‘quantification’ is a difficult one but it should be recognised that the fact that it even arises represents, in a sense, the limited ‘pay-off’ for the many disadvantages of the common intention trust (in terms of its complexity, expensiveness to apply, confused theoretical foundation and so on). Under the purchase money resulting trust, the battered old hat from which lord Diplock pulled the common intention rabbit, the question of quantification cannot arise as a separate issue. When the purchase money resulting trust doctrine is applied, a person who contributes to the purchase price of property is presumed to obtain a share under a resulting trust and the share will always be proportionate to the contribution in question. What lord Diplock’s sleight of hand in Gissing achieved was the separation of the question of the possible existence of a common intention from the question of what share the claimant should obtain if he or she acted to his or her detriment on the basis of the common intention.114 Cases such as Midland Bank v Cooke,115 Oxley v Hiscock and Stack v Dowden really do no more than try to tap this potential in the common intention doctrine, which was explicit from the very beginning.116 although the claimant in Midland Bank v Cooke succeeded in obtaining a one-half share, the courts are still likely in many cases to give weight to direct financial contributions by the parties, leading to a lower share for the claimant (as occurred for example in Oxley v Hiscock). In addition, problems remain for claimants where it is not possible to infer a common intention in the first case, which was the position in Burns. Commentators differ as to how frequently a scenario like that in Burns, involving a long-term cohabitation where the claimant has cared 108 109 110 111 112 113 114 115 116

[1986] Ch 638. [1991] 1 aC 107. [1995] 4 all eR 562. [2001] 2 FlR 970. [2005] Fam 211. Stack, above n 5. See further Mee, above n 82, 151–55. Midland Bank, above n 110. See Gissing, above n 14 per lord Diplock, 908–09.

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for the children of the relationship, is likely to arise in modern times.117 however, whatever view one takes on that point, it will clearly happen with a reasonable degree of frequency that the defendant will have purchased the disputed property prior to the start of the relationship, thus making it very difficult for the claimant to succeed, irrespective of the nature of his or her contributions, as is illustrated by James v Thomas.118 Moreover, a more generous approach in relation to indirect financial contributions, mentioned in Stack v Dowden,119 would not necessarily help a claimant whose financial contributions began some time after the initial purchase of the home (as, in the case of Valerie Burns, whose ‘contribution’ was not, in fact, limited to work in the home). If the common intention constructive trust were to be developed so as to give a remedy in a case such as Burns, it would be necessary for the law to permit the inference of a common intention on the basis of the fact that the claimant engaged in child-care activities.120 Probert suggests that ‘the logic of accepting that a common intention can be inferred from indirect contributions also points in favour of accepting domestic contributions as generating a common intention. . . . Indeed, it might be thought that the argument is more compelling in the case where one member of the couple remains at home to care for a young child’.121 It is true that, depending on the circumstances, it may well be more plausible to infer the existence of a common intention on the basis of domestic contributions when compared with indirect financial contributions. The difficulty is that, in most instances, it does not seem objectively plausible to infer the existence of an actual common intention on the basis of either form of contribution. Probert notes ‘the acceptance at the highest level that a distinct set of rules is appropriate when dealing with the family home’.122 But, if one is operating within the confines of a doctrine which depends on the making of genuine inferences of fact, what is meant by the existence of ‘a distinct set of rules’? If the question being asked is still: ‘Was there a genuine common intention?’, then the answer will very often (even in the context of disputes over the family home) be ‘no’. The problem with the common intention analysis is not that judges (or property lawyers) insist on giving the wrong answers to questions concerning the inference of common intentions. The problem is that the questions are not adapted to give the kind of answer that many family lawyers would understandably like to hear.

117 Contrast R Probert, ‘Trusts and the Modern Woman – establishing an Interest in the Family home’ (2001) 13 Child and Family Law Quarterly 275, 277 with G Douglas, J Pearce and h Woodward, ‘Cohabitants, Property and the law: a Study of Injustice’ (2009) 72 MLR 24, 34. 118 [2007] eWCa Civ 1212. 119 See Stack, above n 5 per lord hope, [12]; per lord Walker, [26]; per Baroness hale, [63]. 120 This paragraph discusses the question of whether a common intention can be said to exist in the first case, rather than the question of quantification. 121 Probert, above n 9, 342. 122 ibid.

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Some commentators feel that recent cases such as Oxley v Hiscock and Stack v Dowden123 supply the magic wings which would allow the courts to escape the maze. however, on a fair reading neither Oxley nor Stack represents anything like an intellectual ‘breakthrough’ or ‘revolution’, notwithstanding the enthusiasm of commentators such as Kevin Gray and Susan Francis Gray in their leading textbook.124 It is important not to invest too much significance in mere rhetoric (for example, Baroness hale’s insistence in Stack that ‘context is everything’).125 Furthermore, it is misleading to construct a neat opposition between Baroness hale and lord neuberger, with Baroness hale being seen as advancing a revolutionary ‘family law’-style solution and lord neuberger being seen as offering a powerful dissent based on a clear restatement of orthodox trusts law principles. none of the speeches in Stack is impressive in terms of quality of doctrinal analysis and the impact of Stack on the law is both limited and complex. The case makes a useful contribution to the extent that it reduces the likelihood that the common intention constructive trust will be applied inappropriately to prevent joint ownership of the family home at law being reflected in joint beneficial ownership.126 however, it should be borne in mind that this development involves a modest reduction, rather than any increase, in the scope of equitable intervention in this area. Stack has refocused attention on the question, raised by the speech of Waller lJ in Burns, of whether it is possible to ‘impute’ an intention.127 one leading commentator has taken the view that the decision of the house of lords in Stack allows the court to impute a common intention to the parties where none existed, so that a claimant can expect a half share in a family home which is held in his or her partner’s sole name, provided that the parties’ relationship can be regarded as ‘communal’.128 however, this interpretation of Stack appears to the current author to be misconceived and any imputation of intention envisaged by Stack seems to be confined to cases where a common intention has been established and the only dispute is as to the quantification of the respective shares. The recent Court of appeal decision of Kernott v Jones129 suggests that (as matters currently stand, at any rate) it is not realistic to expect the law to move towards a new approach of recognising claims based on the imputation of fictional ‘reasonable’ intentions.

note also Abbot v Abbot [2007] UKPC 53. K Gray and SF Gray, Elements of Land Law, 5th edn (oxford, oxford University Press, 2009) 880–82. 125 Stack, above n 5, [69]. 126 Unfortunately, the value of this contribution was partially undermined by the questionable finding in Stack itself that the claimant was entitled to more than a joint share. 127 See, in particular, Stack, above n 5 per lord Walker, [17]–[22], [33]; per Baroness hale, [60]; per lord neuberger, [125]–[127]. 128 S Gardner, ‘Family Property Today’ (2008) 124 LQR 422. 129 [2010] eWCa Civ 578. See, in particular, ibid per Rimer lJ, [76]–[77]. 123 124

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ConClUSIon

The argument in this chapter has been that, even if many do not like the implications of the decision, it is difficult to argue that Burns v Burns was wrongly decided on its own terms (although the Court of appeal did present a rather limited version of the common intention analysis in respects unrelated to the actual facts of the case). Unlike the position following Gissing v Gissing in respect of married couples, no legislative reform has followed in the wake of Burns v Burns. It is arguable that Waller lJ was correct to suggest that the problem in cases such as Burns is not ‘one which could readily be dealt with by legislation’.130 The law Commission’s proposed legislative model seems very complex and, though perhaps not for this reason, may not be enacted in the near future.131 This chapter has doubted the legitimacy, in democratic terms, of radical judicial reform in this area and has also suggested that the current common intention trust analysis is not a promising avenue for future development on an incremental basis. This may seem a pessimistic outlook, but where is it decreed that every type of dispute that can arise in society can easily be dealt with by legal means? It may be, however, that something will eventually give – if legislative reform does not occur, then some creative or accidental misreading of existing equitable doctrine may supply the opportunity for the courts to widen the circumstances in which they give a remedy in disputes in the cohabitation (or the wider family) context. Stack v Dowden does not represent this sort of turning point, though perhaps the hyperbole surrounding the case may create a suitable climate for a more radical new departure. Such a departure would probably not be defensible in democratic terms – especially if it occurs against the background of a conscious decision by the legislature not to implement legislative reform – but, if the courts were to choose to ignore this obstacle, it is difficult to see who could effectively call them to account. nonetheless, the clear insistence by Fox and May lJJ that this kind of reform is more appropriately a matter for Parliament establishes Burns v Burns as a landmark to guide future judges, if they are willing to heed it.

130 Burns, above n 1, 326. The complexities involved in devising an appropriate legislative scheme are considered in J Mee, ‘Property Rights and Personal Relationships: Reflections on Reform’ (2004) 24 Legal Studies 414. 131 While the then labour Government explained its failure to act upon the law Commission’s proposals on the basis of the need to learn from the Scottish experience (see text to n 91 above), it has been argued by G Douglas, J Pearce and h Woodward, ‘Cohabitants, Property and the law: a Study of Injustice’ (2009) 72 MLR 24, 26 that the explanation may also relate to ‘a more deepseated concern to avoid being charged by its political opponents with “undermining marriage” by seeming to improve the position affecting those who choose to avoid that status’.

11 The Gillick Decision – Not Just a High-water Mark JaNe ForTiN*

iNTroDUCTioN

L

orD SCarMaN’S opiNioN in Gillick v West Norfolk and Wisbech Area Health Authority (Gillick)1 contained the following often-quoted words:

[The] parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.2

Stephen Cretney immediately recognised their radical nature and the decision’s overriding importance.3 patrick parkinson considered Lord Scarman’s approach to be a clear exposition of the ‘mature minor’ doctrine, and, furthermore, that ‘his judgment is a great step forward for those who favour greater rights for children’.4 in John eekelaar’s view, the true significance of Lord Scarman’s decision was dramatic: the child ‘capable of making up his own mind on the matter requiring decision’ could now make any decision for him or herself within that competence, without anyone – parents, third parties or the courts – being able to stop them. He concluded with the challenging words ‘Children will now have, in wider measure than ever before, that most dangerous but most precious of rights: the right to make their own mistakes’.5 The decision galvanised what was already a growing interest in the concept of children’s rights.6 Within a very short time, the term ‘Gillick competence’ was 1 * i acknowledge with gratitude the helpful comments made by professor Gillian Douglas and Stephen Gilmore on drafts of this chapter. 1 [1986] aC 112. 2 ibid 186. 3 S Cretney, ‘Family Law’ (1985) All ER Annual Review 171, 172. 4 p parkinson, ‘The Gillick Case – Just What Has it Decided?’ (1986) 16 Family Law 11, 13. 5 J eekelaar,‘The emergence of Children’s rights’ (1986) 6 OJLS 161, 182. 6 eg see M Freeman’s seminal work, The Rights and Wrongs of Children (London and Dover, Frances pinter publishers, 1983).

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adopted in other common law jurisdictions.7 The term is widely used by the medical profession to describe the degree of competence required in a child before he or she can consent to a medical procedure. But, as discussed below, eekelaar’s uncompromising interpretation of the Gillick decision did not meet with universal agreement. Whatever the real scope of the decision, it radically changed the way in which society views children. Hugh Bevan was correct in his observation that ‘Thanks to the persistence of Mrs Victoria Gillick child law will never be quite what it was, whatever may be the precise effects and implications of the majority decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority.’8 GILLICK – iTS HiSToriCaL aND LeGaL CoNTeXT

it is supremely ironic that Mrs Victoria Gillick’s litigation produced precisely the opposite of what she had aimed for. She relates her distress in october 1985 over losing the final round of her five-year legal battle against ‘secret schoolgirl contraception’.9 Having failed, in 1978, to obtain the assurance of the Norfolk area Health authority10 that none of their clinic doctors would treat any of her own four daughters, then all under the age of 10, without her knowledge or consent, she decided to take matters further. in 1982, she sought a declaration from the High Court that the guidance issued by the Department of Health and Social Security (DHSS) to doctors11 was unlawful, insofar as it advised them that they could, exceptionally, provide girls under 16 with contraceptive advice and treatment without parental involvement. Having lost in the High Court, she successfully appealed to the Court of appeal,12 only for that decision to be overturned by the House of Lords. Mrs Gillick describes herself as a ‘Sixties child’,13 having entered her teenage years at the beginning of the ‘Swinging Sixties’. That was the decade when a new-found optimism vied with hedonism and changing social attitudes to human sexuality, aided and abetted by the invention of oral contraception. Meanwhile, Mrs Gillick, a deeply sincere roman Catholic, married in 1967 at the age of 20 and had, by 1985, when the House of Lords delivered their judg7 eg in Secretary, Department of Health and Community Services v JWB (Marion’s case) (1992) 175 CLr 218, the High Court of australia approved the principles set out in Gillick as ‘reflecting the common law in australia’: New South Wales Law reform Commission, Report 119, Young People and Consent to Health Care (Sydney, 2008) para 4.16. See also p parkinson, ‘Children’s rights and doctors’ immunities’ (1992) 6 Australian Journal of Family Law 101. influenced by the Gillick decision, Canadian law adopted the ‘mature minor’ doctrine enabling minors with sufficient understanding to consent to medical procedures. See eg, SC v Wren (1986) 76 ar 115 (Ca). 8 HK Bevan, Child Law (London, Butterworths, 1989) para 1.01. 9 V Gillick, A Mother’s Tale (London, Hodder and Stoughton, 1989) 7. 10 Which subsequently became the West Norfolk and Wisbech area Health authority. 11 DHSS (1980) Health Notice (HN (80) 46). 12 [1985] 1 all er 533, on appeal from Woolf J [1984] QB 581. 13 Gillick, above n 9, 12.

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ments, 10 children: five girls and five boys. The DHSS guidelines to which she so objected represented the Government’s response to society’s increasingly liberal attitudes to sex outside marriage. But Mrs Gillick had became increasingly appalled by what she saw as generally lax attitudes to morality and to teenage sexuality in particular. in her view, only good parenting could withstand a general descent into teenage self-indulgence and promiscuity. in the summer of 1978, she started her campaign against the way in which doctors in ‘special teenage birth control clinics’ were ‘putting teenage girls on the pill’14 without their parents’ knowledge or consent.15 Mrs Gillick’s passionate stand against the DHSS guidance gained a sympathetic following,16 with the press supporting her stance as a mother campaigning to protect the family from state interference.17 even doctors were far from united over the Government’s guidance.18 Michael Schofield recounts how the assistant Secretary of the British Medical association, only five years before Mrs Gillick had commenced her campaign, had declared ‘as a doctor i can tell you that extraordinary and pre-marital intercourse is medically dangerous, morally degrading and nationally destructive’.19 Nevertheless, as the Government was only too aware, it was impossible to put the clock back and the increasing dangers of unprotected teenage sex were very obvious.20 Despite deciding in Mrs Gillick’s favour, parker LJ himself acknowledged that there was strong evidence that young girls would be deterred from seeking contraceptive advice and treatment, with ‘increased risks of pregnancy, more unwanted babies, more back street abortions and so on’21 if forced to involve their parents in medical consultations. it is against this social backdrop that the importance of the decision adopted by the House of Lords can be fully appreciated. The Gillick decision was long overdue from a narrower legal perspective. The fact that on her journey to the House of Lords Mrs Gillick collected five judgments in her favour and four against reflects the lack of clarity that then existed in the legal principles ibid 149. Her campaigning group, ‘parents in Suffolk’ was formed in 1978 to combat ‘schoolgirl contraception’; ibid 162. 16 ‘parents in Suffolk’ organised a petition against the DHSS guidance, claiming to have attracted between 250,000 and 500,000 names altogether. 17 Summarised by S Gilmore, ‘The Limits of parental responsibility’ in r probert, S Gilmore and J Herring, Responsible Parents and Parental Responsibility (oxford, Hart publishing, 2009) 71–72 and J eekelaar, above n 5, 178. 18 at a public meeting held in 1978, local Gps voiced concern over ‘their’ teenage patients being prescribed oral contraceptives by the ‘special’ teenage birth control clinics behind the backs of their parents and their own Gps. Gillick, above n 9, 154. 19 M Schofield, The Sexual Behaviour of Young Adults (London, allen Lane 1973) 128. 20 in 1974–75, interviews with 1,500 young people aged between 16–19 indicated that 12 per cent of girls had had sex by the age of 16: C Farrell, ‘Sexual attitudes and Behaviour of Young people’ in W armytage, r Chester and J peel (eds), Changing Patterns of Sexual Behaviour (London, academic press, 1980) 64. i am grateful to rebecca probert for bringing this work and that in n 19 above to my attention. 21 Gillick, above n 1, 121. 14 15

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governing this area of law.22 The law relating to the boundary between parents’ rights and children’s rights had seldom been put to the test.23 Despite a growing academic interest in children’s rights at that time,24 eveleigh, Fox and parker LLJ in the Court of appeal showed little interest in ideas about adolescent autonomy. They emphasised that the law had not abandoned its essentially Victorian approach to parenthood and that by virtue of their common law right to custody, a parent or guardian had complete control of their children up to the age of majority, with the right to determine the place and manner in which they spent their time.25 Legislation allowed only those of 16 and over to receive contraceptive advice or treatment without their parents’ knowledge or consent.26 admittedly the law might need to ‘move with the times’ but it was for the legislature, not the courts, to change matters.27 The majority of the House of Lords adopted a very different approach. Fundamentally rejecting the Court of appeal’s decision, they argued that the law must be flexible and responsive, otherwise it would bear the mark of obsolescence.28 in Lord Scarman’s view: if the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. 29

Furthermore, Lord Fraser’s words summed up well their Lordships’ interest in encouraging adolescents’ capacity for independence: it is, in my view, contrary to the ordinary experience of mankind, at least in Western europe in the present century, to say that a child or young person remains in fact under the complete control of his parents until he attains the definite age of majority . . . in practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent.30

WHaT WaS GILLICK’S reaL iMporT?

From the start, there was much academic debate over the true meaning of their Lordships’ decision.31 analysis was not helped by Lord Fraser and Lord Scarman 22 The decision at Court of appeal level was reached unanimously in Mrs Gillick’s favour by eveleigh, Fox and parker LJJ. at House of Lords level, that decision was overturned, by a majority of three to two: Lord Fraser of Tullybelton, Lord Scarman and Lord Bridge of Harwich found against Mrs Gillick, with Lord Brandon of oakbrook and Lord Templeman dissenting. 23 a Bainham, Children, Parents and the State (London, Sweet & Maxwell, 1988) 48. 24 eg Freeman, above n 6. 25 Gillick, above n 1 per parker LJ, 130 and Fox LJ, 143. 26 Family Law reform act 1969, s 8(1). 27 Gillick, above n 1 per parker LJ, 122 and 133. 28 ibid Lord Scarman, 186. 29 ibid. 30 ibid per Lord Fraser, 171. 31 Many of the commentators’ views are summarised by Gilmore, above n 17, 65–79.

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rejecting Mrs Gillick’s arguments from very different viewpoints, or by Lord Bridge avowedly agreeing with both of them. The differences between the opinions of Lord Fraser, Lord Scarman and Lord Bridge and the inconsistencies within those of Lord Fraser and Lord Scarman have provided commentators with scope for endless disagreement from the time Gillick was first reported. Lord Fraser, Lord Scarman and Lord Bridge unanimously disagreed with the Court of appeal’s decision. They were clear that doctors would not be acting unlawfully if they provided adolescent girls under the age of 16 with contraceptive advice and treatment without involving their parents. They emphasised that under section 8 of the Family Law reform act 1969 an adolescent, on attaining 16, acquires the right to consent to medical procedures. But, in their view, the section32 also preserves the validity of consents at common law for those under the age of 16. The Government’s guidance to doctors advising that they could, in exceptional circumstance, provide contraceptive advice and treatment to girls under the age of 16 without informing or involving their parents was therefore lawful. Nor would doctors incur criminal liability if they followed it. it is notable that both opinions of Lord Fraser and Lord Scarman contained a strong condemnation of the old common law concept of parents (in early case law, the father) having absolute control over their children until adulthood. Lord Fraser considered it to be a ‘historical curiosity’33 and Lord Scarman referred to the ‘age of discretion’ cases as indicating that the courts had not always adopted such a rigid approach.34 Both approved35 of the way Lord Denning Mr in Hewer v Bryant,36 had described it as a ‘dwindling right.’37 Both stressed that parents’ rights derive from their duties and exist only for the benefit of their children.38 Thereafter there is little similarity in their decisions. at first sight, Lord Fraser’s opinion looks reasonably straightforward; Lord Scarman and Lord Bridge clearly thought so, given their asserted agreement with it. However, Lord Fraser’s opinion lacks overall clarity. as can be seen from his words quoted above, he made some very general remarks about the need to encourage adolescents’ capacity for independence.39 Furthermore, as noted above, he emphasised that, as a general principle, the old common law rule of parents’ absolute authority over their minor children had to be abandoned.40 Nevertheless, the wording of the headings dividing his long judgment certainly suggest that he was keen to confine the scope of his decision to the medical ie Family Law reform act 1969, s 8(3). Notably In re Agar-Ellis (1883) 24 Ch D 317; see [1986] aC 112 per Lord Fraser, 173. See also Lord Scarman, 183. 34 Gillick, above n 1, 187. Through these so-called ‘age of discretion’ cases, the courts had established that a boy of 14 or a girl of 16 could give valid consent to being out of their father’s custody or in that of another so as to defeat the parent’s claim by habeas corpus to have the child returned. 35 ibid per Lord Fraser, 172; per Lord Scarman, 186. 36 [1970] 1 QB 357. 37 ibid per Lord Denning Mr, 369. 38 Gillick, above n 1 per Lord Fraser, 170 and per Lord Scarman, 184. 39 ibid per Lord Fraser, 171. 40 ibid 173. 32 33

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treatment of children;41 this is how many commentators interpret his judgment.42 in his view, a decision as to whether medical treatment would take place or not would normally be decided by the parents of a child under 16, depending on their view of what was in the child’s welfare.43 indeed, the general tenor of his judgment makes clear his view that no decision should ever be made regarding an adolescent’s future unless it promotes his or her welfare. Nevertheless, there would be exceptional situations where their consent would not be available. Then, like Lord Scarman, Lord Fraser considered that a Gillick-competent teenager had a legal right to consent, but notably only within a medical context: it seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. of course the consent of the parents should normally be asked, but they may not be immediately available. provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, i see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises.44

Whilst this comment is reasonably general in its terms, he had much more specific advice for doctors over how to judge a young patient legally competent to receive contraceptive advice and treatment without their parents’ involvement. What became known as the ‘Fraser guidelines’ require the doctor to be satisfied that: the girl understands his advice; she cannot be persuaded to inform her parents of the matter; she is likely to go ahead with sexual intercourse with or without contraception; her physical or mental health is likely to suffer without treatment; her best interests require her to receive treatment without her parents’ consent.45 it is notable that the fifth and last requirement indicates Lord Fraser’s view that in the context of medical treatment, the doctor replaces the child’s parents as the final arbiter of what is in the child’s general – as opposed to his or her medical – best interests.46 as ian Kennedy observed, Lord Fraser was simply replacing ‘parent power with doctor power’.47 Unlike Lord Scarman, he clearly did not consider, at least within the context of contraception, that parents’ rights and duties terminated when a young patient attained Gillick competence – they simply passed to the doctor.48

41 eg ‘The parents’ rights and duties in respect of medical treatment of their child’; ibid per Lord Fraser, 170. 42 eg S de Cruz, ‘parents, Doctors and Children: the Gillick Case and Beyond’ (1987) Journal of Social Welfare Law 93, 100. 43 Gillick, above n 1 per Lord Fraser, 173. 44 ibid 169. 45 ibid 174. 46 i Kennedy, Treat Me Right: Essays in Medical Law and Ethics (oxford, oxford University press, 1988) 94. 47 ibid 95. 48 Bainham, above n 23, 50; De Cruz above n 42, 100; Kennedy above n 46, 95.

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Lord Scarman’s opinion proved far more problematic than Lord Fraser’s. Unlike Lord Fraser, it was couched ‘at a broad level of generality’.49 Nevertheless, for many, there was little doubt over the meaning of Lord Scarman’s words quoted at the beginning of this chapter. as soon as a child has attained ‘a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’ the parents’ own right to control their children in any context, more particularly to make decisions on their behalf, simply terminates.50 Like Lord Fraser, Lord Scarman also provided doctors with some specific advice over the legal capacity of girls under 16 to receive contraceptive advice or treatment without involving their parents. He stressed that it would be no easy matter for a doctor to be satisfied that they had the requisite understanding to consent. it would not be enough for a girl merely to understand the advice given; she would also need sufficient maturity to understand what was involved – including the impact on her relationship with her parents; the longterm problems associated with the impact of pregnancy and its termination; and the risks to health of sexual intercourse at an early age.51 This firm advice to doctors providing girls under the age of 16 with contraceptive treatment did not undermine his general view of parents’ legal position. His assertion, quoted at the start of this chapter, was repeated, but this time in a medical context. [a]s a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him or her to understand fully what is proposed.52

Many commentators, notably eekelaar, focused on Lord Scarman’s more general concept of adolescent legal competence reflected in his words set out at the beginning of this chapter. in eekelaar’s view, it could only mean that a Gillick-competent child could decide any matter for him or herself within the area of such competence, irrespective of adults’ view of the wisdom of the decision.53 eekelaar’s interpretation of Lord Scarman’s words as meaning that adolescents had gained a generalised right to make all decisions, including those which might damage their future wellbeing, was not universally accepted. arguably, Lord Scarman’s assertion that he himself agreed with Lord Fraser’s opinion54 was at odds with his later more general remarks.55 it certainly makes the ratio decidendi of his decision very unclear.56 Some considered that Lord Scarman’s general statement that parents’ rights terminate in situations involving a Gillick-competent teenager57 was simply 49 50 51 52 53 54 55 56 57

Bainham, above n 23, 50. parkinson, above n 4, 13 and Cretney, above n 3, 172. Gillick, above n 1 per Lord Scarman, 189. ibid 188–89. eekelaar, above n 5, 182. Gillick, above n 1 per Lord Scarman, 176. Gilmore, above n 17, 74–79. parkinson, above n 4, 13. per Lord Scarman, 189–90.

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an obiter precursor to his real views about contraceptive advice and treatment noted above – with it being implicit that the decision-making then passes to the doctor.58 andrew Bainham considered that ‘their Lordships have stopped well short of recognising general rights in young people to take major decisions on contraception, other medical treatment or indeed any aspect of their lives’.59 The Gillick decision had not in his view introduced a policy of legal autonomy or independence for children.60 Third parties, such as school authorities, could take positive action in relation to a child in contravention of the parents’ express wishes, if of the view that he or she was Gillick competent, but they would also need to be satisfied that it would be in the child’s best interests to follow that course of action.61 another way of restricting the ambit of Lord Scarman’s generalised assertions was to point to his own comment that parental rights did not entirely disappear until the age of majority.62 This, Stephen Gilmore considered, was inconsistent with his view that attainment of Gillick competence produced a termination of parental rights.63 Gilmore also argued that Lord Scarman’s interpretation of the age of discretion case law reflected a view that Gillick competence did not produce the right ‘to carry through decisions which would seriously prejudice their interests’.64 on this, Lord Scarman had stressed the fact that, according to the case law, the age of discretion was the attainment by a child ‘of an age of sufficient discretion to enable him or her to exercise a wise choice in his or her own interests’ (emphasis added).65 eekelaar’s radical interpretation of Lord Scarman’s opinion remains as controversial today as it was more than 20 years ago.66 Nevertheless, many of the attempts to dilute the impact of Lord Scarman’s views set out at the beginning of this chapter can be answered. His words of agreement with Lord Fraser’s opinion were unsurprising, given their joint view that Mrs Gillick’s application was unfounded. Furthermore, as noted above, he clearly agreed with much of Lord Fraser’s assessment of the preceding case law. Nevertheless his own approach to adolescent autonomy, though difficult to reconcile with Lord Fraser’s, was carefully set out. His remark that parents’ rights do not entirely disappear until the child’s majority is easily explained by his own explanation that parental rights include matters relating to the person and property of the child, including guardianship of the child’s property, many of which do not disappear until adulthood.67 His use of the word wise, when discussing the De Cruz, above n 42, 100–01. a Bainham, ‘The Balance of power in Family Decisions’ (1986) 45 Cambridge Law Journal 262, 273. 60 ibid 275. See also Gilmore, above n 17, 74. 61 Bainham, above n 23, 52–53. 62 Gillick, above n 1 per Lord Scarman, 184. 63 Gilmore, above n 17, 75. See also Bainham, above n 23, 51. 64 Gilmore, above n 17, 77. 65 Gillick, above n 1 per Lord Scarman, 188. 66 Gilmore, above n 17, 74–79. 67 Gillick, above n 1, 184. 58 59

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principle established by the age of majority cases, was no more than a factual description of how the courts had chosen the age of 14 for boys and 16 for girls as representing the age when they were deemed to be capable of wise decisions. it did not suggest that he himself confined his notion of Gillick competence to those with a capacity for wisdom. So the fact that Lord Scarman established a rigorous set of tests for doctors before providing girls under 16 with contraceptive advice or treatment without involving their parents was not an example of his insisting that an adolescent must be capable of making a wise choice, as suggested by Gilmore.68 it merely emphasised Lord Scarman’s view that Gillick competence must be determined on a case-by-case basis in the light of the seriousness of the matter under review. it would, and should, therefore be no easy matter for a doctor to be satisfied that a girl under the age of 16 had the requisite understanding to consent. Finally, none of the commentators seeking to narrow its scope explains adequately why Lord Scarman not only stated unequivocally his view in general terms that the parents’ right yields to the Gillick-competent child’s right, but repeated this view in a medical context. His assertion, set out above, could not have been clearer: the parental right to determine the medical treatment of those under 16 terminates on the acquisition of Gillick competence. it is notable that subsequent judicial assessments of Lord Scarman’s decision in Gillick have not attempted to dilute its general application. although, as discussed below, Lord Donaldson of Lymington Mr in the early 1990s69 did his best to restrict the ambit of Lord Scarman’s decision, he did not indicate that his general comments on the notion of competence should be confined in the ways suggested by commentators. More recently, in R (Axon) v Secretary of State for Health and The Family Planning Association (Axon)70 Silber J subjected the Gillick decision to a scrupulously detailed examination.71 He concluded that there was nothing to suggest that their Lordships’ speeches should be confined to contraceptive advice or treatment. rather, in his view, the approach of the majority had been to consider ‘in general terms the reasons why parental knowledge or consent might or might not be required for all forms of medical advice and treatment . . .’72 Nor, in his view, was there anything in their speeches ‘which suggests that parental authority has any place in decision-making for a young person’ who is Gillick competent.73 Munby J’s decision in Re Roddy (a child)(identification: restriction on publication) (Re Roddy),74 shows that he too clearly accepted Lord Scarman’s general concept of Gilmore, above n 17, 79. ie in Re R (a minor)(wardship: medical treatment) [1992] Fam 11 and Re W (a minor) (medical treatment: court’s jurisdiction) [1993] Fam 64. 70 [2006] eWHC 37 (admin), [2006] 2 FLr 206. 71 See Silber J’s summary of the majority’s findings in Gillick, ibid [13]. 72 ibid [86]. 73 ibid [95]. 74 [2003] eWHC 2927 (Fam), [2004] 2 FLr 949. 68 69

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adolescent autonomy. indeed, he proceeded to develop it within the context of Strasbourg jurisprudence.75 Whether or not one agrees with a broad interpretation of Lord Scarman’s decision, a fundamental weakness of his Gillick competence formula is its extreme generality – or rather ‘its deceptive simplicity’.76 Given the context of Mrs Gillick’s application, it is entirely comprehensible that its implications were explored by their Lordships only in relation to contraceptive advice and treatment. Nevertheless, this meant that it was left to practitioners and the judiciary to work out its impact in other areas of law and practice. THe iMpaCT oF GILLICK

The Parent-Child Relationship To many, the Gillick decision sent out the important message that the concept of children’s autonomy had a legal reality. as Michael Freeman observed, it was seen the world over as a ‘landmark in children’s rights jurisprudence’.77 Mature adolescents had now gained a freedom to reach decisions of their own over how they spent their time rather than being subject to parental regulation and control. Welcome though such a principle might be to some, implicit in the terms of the new Children act 1989 was a degree of ambivalence over the extent to which the impact of Gillick on family life should be made immediately visible. admittedly, the replacement of the old concept of ‘parental rights and duties’ with a new one of ‘parental responsibility’ was intended to reflect the everyday reality of being a parent.78 it also discouraged the idea that children were under parents’ absolute control. Nevertheless, the Children act failed to promote a more democratic and open type of relationship between parents and teenage children along similar lines to later Scottish legislation.79 Thus although local authorities were now expected to consult children before reaching decisions relating to them,80 no one considered it appropriate to expect parents to do the same. Consequently, the Children act 1989 contains no provision imposing on parents a duty to consult their children over important matters regarding their own future. one should not, however, overlook the Children act’s modest efforts to ensure that the wishes of mature children are respected in various contexts. Thus, the concept of Gillick competence was written into aspects of child proDiscussed further below. J Fortin, Children’s Rights and the Developing Law (Cambridge, Cambridge University press, 2009) 148. 77 M Freeman, ‘rethinking Gillick’ (2005) 13 International Journal of Children’s Rights 201, 201. 78 Law Com No 172, HC 594, Family Law, Review of Child Law, Guardianship and Custody (London, HMSo, 1988) para 2.4. 79 Children (Scotland) act 1995, s 6; discussed by Fortin, above n 76, 91–92. 80 Children act 1989, s 22(4)(a) and s 22(5)(a). 75 76

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tection proceedings, providing the child ‘of sufficient understanding to make an informed decision’ with a statutory right to refuse to undergo medical and psychiatric assessments.81 Furthermore, children were, for the first time, given the right to take the initiative and bring family disagreements before the courts for determination. By giving them the right to apply for a section 8 order, 82 the Children act 1989 provided children with a means of obtaining a degree of independence from their parents, perhaps by being given authority to live with some other adult. The Children act’s failure to clarify the point at which parents’ powers and responsibilities end presumably stemmed from the draftsmen’s reluctance to provide an interpretation of the Gillick decision in every possible context. Nevertheless, Lord Scarman’s generalised comments left parents unclear how their responsibilities were defined by law. Telling them that their rights are derived from their parental duties and exist only for as long as they are needed to protect the child’s person and property83 fails to explain when their attempts to discipline their children become an unreasonably authoritarian regime that the law will not condone.84 More problematic is the confusion in the law surrounding the question whether young people can legally leave home against their parents’ wishes and the extent to which parents can force them to return home if they do leave. as their Lordships explained in the Gillick decision, the old ‘age of discretion’ cases indicated that the judiciary had, for many centuries been unexpectedly liberal with runaway children.85 But that case law has long since been recognised as anachronistic and has not been replaced by a set of clear legal principles. Lord Scarman merely pointed out in Gillick that although the parental ‘right or power’ exists, it does so ‘primarily to enable the parent to discharge his duty of maintenance, protection, and education until he [the child] reaches such an age as to be able to look after himself and make his own decisions’.86 implicit in his decision is the view that parents who consider that their offspring have reached ‘a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’87 should not attempt to prevent them leaving home. Some parents might of course be reluctant to acknowledge that their offspring ever reach such maturity. one of the principal aims of the Children act 1989 was to clarify the way in which the family courts should deal with parental disputes over children, with 81 Children act 1989, s 38(6), s 43(8), s 44(7); Sch 3, paras 4(4)(a) and para 5(5)(a). NB Sch 3, para 5(5)(a) also rules out psychiatric or medical treatment against the wishes of a Gillick-competent minor. But see South Glamorgan County Council v W and B [1993] 1 FLr 574: Douglas Brown J used the inherent jurisdiction to bypass s 38(6), thereby forcing a Gillick-competent child to undergo assessment and treatment. 82 Having first obtained court leave to do so under Children act 1989, s 10(8). 83 Gillick, above n 1 per Lord Scarman, 184. 84 J Fortin, ‘Children’s rights and the use of physical force’ [2001] 13 Child and Family Law Quarterly 243, 247–50. 85 See above n 34. 86 Gillick, above n 1 per Lord Scarman, 185. 87 ibid 186.

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section 1 requiring them to give paramount weight to the child’s welfare. The draftsmen seemed uninfluenced by eekelaar’s view of the Gillick decision, which was that the allocation of custody would be ‘an empty exercise’ in cases where the child had the capacity to determine the matter.88 admittedly the new checklist contained in section 1(3) places the ‘ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’ at the top of the list of factors to be considered by the courts when deciding what order would most accord with a child’s welfare. The Law Commission had considered that such a provision would reflect the ‘increasing recognition given both in practice and in law to the child’s status as a human being in his own right,89 rather than the object of the rights of others’.90 Nevertheless, the wording of the checklist makes it plain that the courts must place whatever weight they choose on the child’s wishes and feelings – there is no suggestion that mature minors should have a casting vote. indeed, as commentators on eekelaar’s arguments correctly predicted,91 in the intervening years following the Gillick decision, the courts showed little enthusiasm for eekelaar’s proposition that decisions relating to a mature teenager would be dictated entirely by his or her choices, as opposed to the court’s own view of his or her best interests.92 Adolescents’ Relationships with Third Parties Whilst Gillick provides parents with many important messages about how they should adapt their relationships with their adolescent offspring as they grow older, these lessons may be of limited usefulness given the waning attraction of the home environment to children as they mature in age. adolescence is marked with a growing desire to take up pastimes outside the home and, in this context, it is their relationships with third parties which become far more important than relationships with their parents. Many young people’s activities are already regulated by statute, in a particularly arbitrary and illogical fashion.93 Since the many gaps not covered by statutory provisions are now governed by the Gillick principles, how they affect adolescent life depends on that decision’s true meaning. in eekelaar’s view, the Gillick-competent adolescent has an absolute right to reach decisions for himself regarding his future activities. Following the more cautious approach of Bainham and others, the parents’ duty to assess the child’s J eekelaar, ‘The eclipse of parental rights’ (1986) 101 LQR 4, 8. Gillick, above n 1. 90 Law Com No 172, HC 594, Family Law, Review of Child Law, Guardianship and Custody (London, HMSo, 1988) para 3.24. 91 Bevan, above n 8, 13 and Bainham, above n 59, 275. 92 J eekelaar, ‘Gillick in the Divorce Court’ (1986) New Law Journal 184. 93 J Claridge (updated by), At What Age Can I? A Guide to Age-based Legislation (The Children’s Legal Centre, essex, 2008). 88 89

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best interests passes to third parties, if and when the child enters into relations with them.94 When commenting on Gillick, Cretney and Bainham had been worried by the unsatisfactory position a third person, such as a prospective landlord or employee, might be left in when approached by a young person who is in conflict with his parents over whether he should leave home or take employment.95 Whilst there are clear principles of common law governing the circumstances in which a child can enter into contractual relations with a third person for the supply of necessaries,96 no other questions have been clearly answered by subsequent case law. This presumably reflects the fact that children’s relationships with third parties do not have sufficient financial impact to provoke litigation. There is, though, one important exception to this observation. it is probably no coincidence that the judiciary have explored in detail the principles established by Gillick in the same area of law as it first arose – adolescents’ relationships with an exceptionally important group of third parties – their doctors. although, as noted above, the concept of Gillick competence was swiftly embraced by the medical fraternity, its generality has not been particularly helpful. With some prescience, parkinson questioned its workability and predicted problems for doctors being left to assess Gillick competence, but with the possibility of judges second-guessing them in the event of a parental challenge.97 Cretney considered that the decision ‘ignored the realities of every day medical practice’.98 in the context of teenage sexuality, Lord Fraser’s guidance to doctors over the circumstances in which they can provide adolescent patients with contraceptive advice and treatment (the ‘Fraser guidelines’) was far more specific. They were rapidly adopted by revised government guidance99 and by the medical profession and are still regarded as the rules governing those providing adolescents under 16 with contraceptive services.100 They were later described by Silber J in R (Axon) v Secretary of State for Health and The Family Planning Association (hereafter Axon)101 as ‘legal pre-conditions’ to a medical

Bainham, above n 23, 52–53. Cretney, above n 3, 174 and Bainham, above n 23, 66–67. 96 Discussed by e Cooke, ‘Don’t Spend it all at once!: parental responsibility and parents’ responsibilities in respect of Children’s Contracts and property’ in r probert, S Gilmore and J Herring, Responsible Parents and Parental Responsibility (oxford, Hart publishing, 2009). 97 parkinson, above n 4, 14. 98 Cretney, above n 3, 173. See also New South Wales Law reform Commission, Report 119, Young People and Consent to Health Care (Sydney, 2008) para 4.10: the ‘several ambiguities in the Gillick case . . . continue to plague the common law test for competence’. 99 Department of Health (DH), (1986) Circular HC (86) 1, replaced by subsequent similar guidance. 100 Department of Health, Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health, ref No 3382 (TSo, London, 2004). 101 [2006] eWHC 37 (admin), [2006] 2 FLr 206. 94 95

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professional providing contraceptive advice or treatment to a young person without their parents’ knowledge or consent. 102 in the context of more general medicine, Lord Scarman’s Gillick competence formula quickly exerted considerable influence over the way in which young patients were dealt with. a succession of guidance documents have stressed the ability of children under the age of 16 to give legal consent to treatment if judged Gillick competent.103 Whilst some of this advice has sought to flesh out the bare bones of Lord Scarman’s formula by introducing more practical considerations,104 the message to doctors remains the same – that they must explore the capacity of each young patient to consent to the particular medical treatment envisaged. Doctors have not been universally enthusiastic about the concept of Gillick competence.105 Nevertheless a willingness to abide by it was demonstrated when, in 2008, a medical team accepted the decision of a 13-yearold terminally ill patient, Hannah Jones, not to undergo a potentially life-saving heart transplant. Hannah Jones was supported by her parents in the decision she reached. But the implicit message in Lord Scarman’s decision to parents of Gillick-competent children may not always be easy for them to accept. Despite this, disputes about treatment have very seldom been serious enough to reach the courts. When they have, the judiciary have shown a degree of creativeness with Lord Scarman’s formula. eekelaar was realistic about the chances of the courts interpreting the concept of Gillick competence objectively. He predicted the temptation to believe that ‘unless a child takes the same view of its interests as an adult (or a court) holds, it falls short of maturity’.106 Subsequent case law shows the accuracy of this prediction. as it demonstrates, the judiciary find it difficult to avoid such a temptation, particularly in those cases involving children reaching decisions endangering their own future well-being. in cases involving Jehovah’s Witness patients refusing to accept life-saving treatment, qualifying for Gillick competence was made dependent on the ability to understand the manner of dying without treatment.107 Similarly in Re R (a minor) (wardship: medical 102 ibid [110]. NB ibid [90]–[91]: Silber J considered that a girl must demonstrate a higher level of competence to consent to an abortion, given its serious psychological consequences; discussed by Fortin, above n 76, 166. 103 inter alia: British Medical association, Consent, Rights and Choices in Health Care for Children and Young People (London, BMJ Books, 2001) esp ch 2; General Medical Council, 0–18 Years: Guidance for All Doctors (London, GMC, 2009) esp paras 20–22; Department of Health, Seeking Consent: Working With Children (London, DH publications, 2001) esp 5; Human Tissue authority (2009) Code of Practice 1 – Consent, para 140; Human Tissue authority (2009) Code of Practice 6 – Donation of allogeneic bone marrow and peripheral blood stem cells for transplantation, paras 71–76. For a critique of the Human Tissue authority’s interpretation of Gillick competence, see Fortin, above n 76, 388–89. 104 Fortin, above n 76, 149–50. 105 r Lansdown, ‘Listening to children: have we gone too far (or not far enough)?’ (1998) 91 Journal of Royal Society of Medicine 457. 106 eekelaar, above n 88, 9. 107 Re E (a minor) (wardship: medical treatment) [1993] 1 FLr 386: a 16-year-old Jehovah’s Witness patient was forced to undergo blood transfusion treatment against his wishes, on the basis

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treatment),108 confronted by a teenager who would again lapse into a dangerously psychotic state if she did not accept treatment, the test of Gillick competence became even more stringent. according to Lord Donaldson Mr, the young patient must demonstrate not merely an ability to understand the nature of the proposed treatment ‘but a full understanding and appreciation of the consequences both of the treatment in terms of intended and possible side effects and, equally important, the anticipated consequences of a failure to treat’.109 Furthermore such competence has to be a permanent aspect of an adolescent’s development – it cannot exist on some days and not others.110 Given that the state of mind of many mentally disturbed adolescents fluctuates from day to day, as was the case in Re R itself, this requirement is a particularly demanding one. Life-saving Treatment and ‘the Retreat from Gillick’111 it is one thing to tinker with the test for Gillick competence, it is quite another to review the decision itself and produce a substantially weakened interpretation of its message. in the early 1990s, the Court of appeal set about doing just that in order to preserve doctors’ ability to treat unco-operative young patients who were risking their lives by refusing life-saving treatment. The two wellknown cases of Re R (a minor) (wardship: medical treatment)(Re R)112 and Re W (a minor) (medical treatment: court’s jurisdiction)(Re W)113 demonstrate how difficult it is for the judiciary to realise the concept of Gillick competence in such circumstances. Serious though the issues were in Gillick, giving a young girl access to contraception without involving her parents is far less dangerous than allowing her to risk her future health and possibly her very survival, by respecting her refusal to undergo essential medical treatment. Lord Donaldson Mr, in Re R, established three alternative methods for safeguarding the doctors’ ability to override a young patient’s refusal to undergo treatment. only the first left Lord Scarman’s concept of Gillick competence intact. as described above, it simply excluded the patient’s ability to qualify for Gillick competence by imposing a rigorous set of criteria. Given his finding that r was Gillick incompetent, it is unclear why Lord Donaldson felt obliged to that he was not Gillick competent because of his inability to comprehend the implications of his refusing treatment and the manner of his own death. See also Re S (a minor) (consent to medical treatment) [1994] 2 FLr 1065 and Re L (medical treatment: Gillick competency) [1999] 2 FCr 524. But the recent (May 2010) death of a 15-year-old Jehovah’s Witness accident victim in hospital, having refused a blood transfusion, suggests that hospitals may now less readily seek judicial assistance to override the wishes of such patients. 108 109 110 111 112 113

Re R, above n 69. ibid 26. ibid. See G Douglas, ‘The retreat from Gillick’ (1992) 55 MLR 569. Re R, above n 69. Re W, above n 69.

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establish two additional methods of overriding r’s wishes, unless he considered it essential to dilute the impact of Gillick. The second method involved Lord Donaldson’s arguing that Lord Scarman had never intended to suggest that parents lose their own right to consent to their child’s treatment. But if Lord Scarman had so intended, such a view was obiter – he had only discussed Mrs Gillick’s claim to a parental right to veto the young patient’s decision, not parents’ right to consent to his or her treatment.114 in Lord Donaldson’s view, doctors could obtain legal authority to treat a dissenting minor patient from one of two keyholders to the treatment door: the young patient, or someone with parental responsibility. 115 His third and last method was to adopt the view of many commentators on the Gillick decision regarding the continuing power of the wardship court to override the wishes of a Gillick-competent patient.116 in his view, just as a wardship court can, in the exercise of its parens patriae jurisdiction, override parents’ decisions for the child, so it can override the decisions of the Gillick-competent child.117 Lord Donaldson’s decision in Re W118 further undermined the concept of Gillick competence by enabling doctors to treat all minor patients, irrespective of their competence or age, on the legal authority of their parents. it had been implicit in the decisions of both Lord Fraser and Lord Scarman in Gillick that section 8 of the Family Law reform act 1969 created a rebuttable presumption that those aged 16 or over had the capacity to decide all medical matters for themselves. But according to Lord Donaldson, although section 8 of the 1969 act gave those of 16 and over the right to consent, there was nothing in the section removing their parents’ own ability to authorise treatment on their behalf. indeed, in his view it was plain that parents retained this right relating to any child, however old, Gillick competent or not, until he or she attained the age of 18.119 The doctor thereby has a legal ‘flak jacket’ protecting him against ‘claims by the litigious’ in all situations where the minor has refused treatment.120 The principles established by the Court of appeal were developed in the context of medical treatment for ill and dying patients. There are cogent arguments favouring the courts retaining their power to overrule the wishes of young minors who require life-saving medical treatment.121 But the Court of appeal’s principles allow parents, irrespective of the context, to override the wishes of their adolescent offspring, Gillick competent or not, healthy or not, up to the Re R, above n 69, 23–24. See also Re W, above n 69 per Lord Donaldson Mr, 76. Re R, above n 69, 22. 116 eg Bainham, above n 59, 274. cf eekelaar who argued (above n 88, 7–8 and n 5, 181) that the wardship court’s parens patriae powers are no greater than those of the parents of a Gillickcompetent adolescent. 117 Re R, above n 69, 25. 118 Re W, above n 69 . 119 ibid: both Lord Donaldson (77–78) and Balcombe LJ (86) referred to the terms of the Family Law reform act 1969, s 8(3), as justifying this stance. 120 ibid 78. 121 N Lowe and S Juss, ‘Medical Treatment – pragmatism and the Search for principle’ (1993) 56 MLR 865. 114 115

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age of 18. Little wonder that a storm of academic protest was levelled at the way that these two Court of appeal decisions had substantially weakened Gillick’s underlying message.122 Gillian Douglas protested that Lord Donaldson’s reasoning had undermined ‘the whole essence of the Gillick principle’.123 as Bainham observed, there was nothing in the decisions of Lord Fraser or Lord Scarman giving ‘the remotest hint that a parent’s view could lawfully be allowed to prevail over that of the mature child’.124 Whilst he sympathised with the jurisdictional point that the superior courts have the power under their inherent jurisdiction to override the wishes of a Gillick-competent adolescent, as he pointed out, the ‘real issue is whether they should’.125 it is certainly doubtful whether the House of Lords had intended to produce such an outcome.126 Controversial though they are, these legal principles remain good law, unless and until distinguished by the Court of appeal127 or overturned by the Supreme Court. GILLICK’S FUTUre?

Judicial Enthusiasm for ‘Rights Talk’ Lord Scarman’s judgment in Gillick appeared to promise mature adolescents complete autonomy in their dealings with their parents and third parties. But the extent to which the law will allow them that autonomy today remains unclear. By october 2000, when the Human rights act 1998 was implemented in this country, the law was still far from recognising such a principle. one could argue that the incorporation of the european Convention on Human rights (eCHr) into domestic law should achieve for children all that was promised by Gillick itself. The 1998 act makes it plain that the domestic courts have little choice but to acknowledge not only that children, as people, have rights of their own, but that they have access to the same list of rights as are available to adults. in that case, has Gillick had its day? Did its importance simply lie in the way it signalled an appreciation that children must be treated as individuals and not

122 Douglas, above n 111, 570. See also J Masson, ‘Re W: appealing from the golden cage’ (1993) 5 Journal of Child Law 37; J eekelaar, ‘White Coats or Flak Jackets? Doctors, Children and the Courts – again’ (1993) 109 LQR 182; a Bainham, ‘The judge and the competent minor’ (1992) 108 LQR 194. 123 Douglas, above n 111, 574. 124 a Bainham, ‘The judge and the competent minor’ (1992) 108 LQR 194, 199. 125 ibid 196. 126 B Hale and J Fortin, ‘The Legal principles Governing the Care and Treatment of Children with Mental Health problems’ in M rutter et al (eds), Rutter’s Child and Adolescent Psychiatry (oxford, Blackwell publishing, 2008) 106. 127 See S Gilmore and J Herring, ‘“No” is the Hardest Word: Consent and Children’s autonomy’ [2011] Child and Family Law Quarterly 3. These authors discuss ways in which Lord Donaldson’s approach might be distinguished.

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as adjuncts of their parents? Silber J asserted in Axon128 that the landscape of family matters has now changed, with members of the judiciary, such as Thorpe LJ in Mabon v Mabon,129 now showing a greater awareness of the provisions in the United Nations Convention on the rights of the Child, and with there being ‘further support for the general movement towards now giving young people greater rights concerning their own future while reducing the supervisory rights of their parents’.130 Silber J is undoubtedly right in thinking that there is a far greater awareness today of children’s rights. in the context of parental disputes, the courts have increasingly considered it appropriate to give older children separate representation, and even, in some cases like Mabon, allowing them to instruct their own solicitors. But when considering how Gillick influenced thinking in the years following its appearance, it is not always easy to disentangle Lord Scarman’s ideas about children’s autonomy from ideas about children’s right to participate in decision-making, as protected by article 12 of the Convention on the rights of the Child. For many people, article 12 establishes one of the Convention’s most important principles – that children’s views on matters affecting them should be listened to and respected, in accordance with their age and maturity. But article 12 delivers a very different message to the one sent out by Gillick. it gives every child, not merely a Gillick-competent child, the right to participate in decision-making about themselves. accordingly even very young children should be consulted; but, as article 12 acknowledges, the weight given to their views will vary, depending on their age and understanding.131 in some cases, those consulting children will be sufficiently impressed by the weight of their views that they will accede to their wishes, but this does not mean that the children decided the matter for themselves. The right to be consulted, as guaranteed by article 12, is clearly not about children’s autonomy.132 Such a distinction is not immediately obvious in Thorpe LJ’s decision in Mabon v Mabon.133 He stressed the need for the courts to allow older children to take a more active part in their parents’ disputes, as in that case, by instructing their own solicitor. referring to article 12 of the Convention on the rights of the Child, he emphasised that today ‘there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision-making processes that fundamentally affect his family life’ [2006] eWHC 37 (admin), [2006] 2 FLr 206, [77]–[80] and [115]. [2005] eWCa Civ 634, [2005] 2 FLr 1011 per Thorpe LJ, [26]–[27]. See also R (Williamson and Others) v Secretary of State for Education [2005] UKHL 15, [2005] 2 all er 1 per Baroness Hale of richmond, [80]. 130 [2006] eWHC 37 (admin), [2006] 2 FLr 206, [115]. 131 See r Hart’s model of children’s participation – his ‘Ladder of participation’ involving eight levels: r Hart, Children’s Participation: From tokenism to citizenship (Florence, UNiCeF international Child Development Centre, 1992). 132 G Lansdown, Promoting Children’s Participation in Democratic Decision-Making (innocenti research Centre, Florence, 2001) para 1.2. 133 [2005] eWCa Civ 634, [2005] 2 FLr 1011. 128 129

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(emphasis added).134 Despite the careful inclusion of the word ‘and’, his comment comes dangerously close to eliding two very different principles. The Right to Respect for Private Life The key to developing the ideas in Lord Scarman’s decision in Gillick further may lie in the way that respect for a person’s private life under article 8 carries protection for a person’s psychological integrity – a matter explored by the european Court of Human rights in Pretty v United Kingdom.135 The Court pointed out that respect for psychological integrity includes the right to selfdetermination, or ‘the notion of autonomy’.136 it went on to stress that the very essence of the Convention is respect for human dignity and human freedom and that it is under article 8 that notions of the quality of life take on significance. 137 one of the problems, however, is that there appears to have been very little appropriate litigation enabling the courts to consider these new parameters to children’s rights. Two decisions, Re Roddy138 and Axon,139 stand out for the way that they explore the extent to which the concept of Gillick autonomy can be reinterpreted within the new legal framework established by the Human rights act. Unlike Gillick, Re Roddy did not involve the interplay between children’s rights and parents’ rights. angela, a teenage mother aged just under 17, by successfully appealing to her rights under articles 8 and 10 of the eCHr, persuaded Munby J to lift a series of injunctions,140 – thereby enabling her to tell her story to the press. in his decision,141 Munby J explored the development of the right to respect for private life by Strasbourg case law,142 including the european Court’s words in Pretty v United Kingdom,143 regarding the way that article 8 protects personal autonomy. This right includes the right to decide for oneself what is private and what can be shared with others.144 But he did not argue that because angela had attained the age of 16 she was automatically entitled to such a right. instead, he skilfully inserted the test of Gillick competence into the interpretation of her position under the Convention. Thus, the ibid [26]. [2002] 2 FLr 45. 136 ibid [61]. 137 ibid [65]. 138 Re Roddy, above n 74. 139 [2006] eWHC 37 (admin), [2006] 2 FLr 206. 140 The injunctions had been obtained by the local authority in the course of care proceedings relating to angela, designed to protect angela’s identity and the identities of her baby and the child’s father. 141 [2003] eWHC 2927 (Fam), [2004] 2 FLr 949, [31]. 142 inter alia: Niemitz v Germany (1993) 16 eHrr 97, para [29]; Botta v Italy (1998) 26 eHrr 97, para 32; Bensaid v United Kingdom (2001) 33 eHrr 1, para 47. 143 [2002] 2 FLr 45. 144 [2003] eWHC 2927 (Fam), [2004] 2 FLr 949, [36]. 134 135

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courts have a duty not only to recognise but to defend the right of the child who has sufficient understanding to make an informed decision to make his or her own choices, as protected by articles 8 and 10.145 He stressed that the courts should accept ‘a very important point of principle’ that a Gillick-competent adolescent like angela has under the eCHr the same autonomy rights as those who have attained 18 – these rights must be taken seriously by the courts.146 ‘or are we to treat children as little more than the largely passive objects of more or less paternalistic parental or judicial decision-making?’147 in this way, Munby J made clear his view that certain Convention rights are only available to Gillick-competent children. Before they attain such competence, their parents or the courts will claim their protection on their behalf.148 The concept of Gillick competence thereby gains greater strength, backed up as it is by those Convention rights, such as those protected by articles 8 and 10, involving an element of choice in their exercise. Should the Status of Minority Carry a Protective Function? Munby J’s remarks were made in the context of allowing an adolescent to tell her story to the papers, the outcome of which would not endanger her life. But as eekelaar recognised, Lord Scarman’s concept of adolescent autonomy is a potentially dangerous one. How would Munby J have responded in Re Roddy149 had angela roddy been challenging unwanted but life-saving medical treatment? Would he have distinguished the principle established by the Court of appeal in Re R150 and Re W151 on the basis that it not only undermines Gillick but infringes the rights guaranteed by the eCHr? arguably, the european Court’s comments on the right to self-determination in Pretty v United Kingdom152 would appear to be just as relevant to an adolescent undergoing medical treatment as to an adult patient. Nevertheless, Pretty involved a terminally ill adult who needed assistance in committing suicide. There was no conflict of rights between parent and child, as in Gillick. Nor did Pretty involve a situation where, because of the patient’s extreme vulnerability as a desperately ill minor, the courts might feel under a special duty to protect him or her. after all, the status of minority is designed to carry a protective function.

ibid [57]. ibid [46]. 147 ibid. 148 eg Glass v United Kingdom [2004] 1 FLr 1019, [70]: per the eCtHr, all children have the right to physical integrity under art 8, which must not be infringed without consent. Consent should have been sought from David Glass’s mother, as his proxy. 149 Re Roddy, above n 74. 150 Re R, above n 69. 151 Re W, above n 69. 152 [2002] 2 FLr 45. 145 146

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The legal advisers of a young patient facing unwanted treatment might turn to Silber J’s decision in Axon153 for assistance. it carries a special interest for the way he tackled Ms axon’s arguments regarding the impact of the Human rights act on the principles in Gillick. Ms axon realised very clearly that, unlike Mrs Gillick, she could, as a parent, assert rights over her children under article 8, including the right to be informed by her daughters’ doctors of any medical consultations. as Silber J realised, an argument like this threatened the very substance of the Gillick principle. He stressed that the Gillick decision not only remained good law but was unaffected by Ms axon’s right under article 8 of the eCHr to have her family life respected by the state. More curiously, he considered that any parental right or power under article 8 was no wider than that delineated by the Gillick principles.154 He therefore borrowed the concept of parental authority dwindling as the child develops decision-making skills,155 and spliced it onto the parental rights protected by article 8. in his view, although Ms axon undoubtedly enjoyed parental rights under article 8 to advise and guide her daughters, these dwindled and terminated on their attaining Gillick competence. as rachel Taylor points out, this idea of parents simply losing their right to respect for family life as soon as their children gain sufficient understanding to reach decisions for themselves is not supported by Strasbourg jurisprudence,156 despite the way it coincides with the House of Lords’ views in Gillick.157 The retention of a parent’s right to enjoy family life under article 8 does not necessarily carry a right to control his or her children throughout their lives. as Taylor argues, a far better way of reconciling Gillick with parents’ right to respect for their family life under article 8 is to acknowledge that family life may continue to exist between parents and children but that it does not require ‘respect’ or legal promotion once the child matures.158 Silber J clearly had some doubts about the strength of his rather singular interpretation of article 8’s scope and so went on to consider (in the event of his being wrong) whether the state could justify infringing Ms axon’s rights by reference to article 8(2). He referred rather generally to a variety of reasons justifying the state infringing Ms axon’s right to respect for her family life, including the public policy issues surrounding teenage pregnancy and the need to reassure girls seeking contraceptive advice and treatment that they have a right to medical confidentiality.159 Taylor argues that Silber J’s decision is important for the way that it is part of a ‘growing movement towards greater recognition and [2006] eWHC 37 (admin), [2006] 2 FLr 206. ibid [132]. 155 as discussed above, the decisions of Lord Scarman and Lord Fraser in Gillick embraced this concept of a ‘dwindling parental right’ as coined by Lord Denning in Hewer v Bryant [1970] 1 QB 357. 156 r Taylor, ‘reversing the retreat from Gillick? R (Axon) v Secretary of State for Health’ [2007] Child and Family Law Quarterly 81, 90–92. 157 ibid 90. 158 ibid 91–92. 159 [2006] eWHC 37 (admin), [2006] 2 FLr 206, [138]–[140]. See also [66]–[69]. 153 154

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autonomy of children’.160 She also acknowledges that his general comments about the importance of these rights were ‘not well developed’.161 one could put this more bluntly and argue that they had little real substance. Despite an immensely long judgment containing a detailed analysis of Ms axon’s legal claims, there was no similarly detailed analysis of her daughters’ legal position. Despite acknowledging their right to medical confidentiality, there was no clear articulation of their other Convention rights, such as the right to sexual privacy, in the light of their mother’s claim of a right to control their intimate lives. 162 Unlike Munby J’s decision in Re Roddy,163 Axon fails to clarify how Lord Scarman’s ideas about adolescents’ autonomy can be reinterpreted as Convention rights and how they might be balanced against those of others. The actual ratio decidendi of Silber J’s decision merely confirms, rather unadventurously, a narrow point of medical law that children’s right to medical confidentiality is protected by article 8.164 a more substantial weakness is Silber J’s failure to deal particularly convincingly with the controversial decision of the european Court of Human rights in Nielsen v Denmark.165 Nielsen goes some way towards explaining the difference between young children’s entitlement to the rights listed in the eCHr and that of adults. Clearly, as Munby J stressed in Re Roddy,166 children, as people, are prima facie entitled to claim the whole range of Convention rights, just as if they were adults. But the Convention rights of a young child may conflict with those of his or her parents under article 8. in the Court’s view in Nielsen, article 8 protects a wide range of parental decisions over how their children should spend their time, including where they should reside, whether they should go to an educational or recreational institution, or to hospital, and whether they should receive medical treatment.167 The idea that any parent’s decision within this range made for ‘a proper purpose’ is protected by article 8, and thereby negates any claims the child might have, is an important one. 168 it will need addressing by the domestic courts, if and when the principles established by Re R and Re W are challenged by an adolescent claiming to be Gillick competent and resisting life-saving treatment. Ms axon cited Nielsen as supporting her claim that parents’ article 8 rights include having the chance to discuss such matters as contraceptive advice and treatment with their teenage children.169 But in Silber J’s view, Nielsen was irrelTaylor, above n 156, 93. ibid 94. 162 See J Fortin, ‘Children’s rights – Substance or Spin?’ (2007) 36 Family Law 759, 764. 163 Re Roddy, above n 74. 164 [2006] eWHC 37 (admin), [2006] 2 FLr 206, [127]. 165 (1988) 11 eHrr 175. Discussed by U Kilkelly, The Child and the European Convention on Human Rights (Dartmouth, ashgate, 1999) 34–38. 166 Re Roddy, above n 74. 167 (1988) 11 eHrr 175, para 61. 168 ibid. in the Court’s view, the mother’s protection under art 8 ruled out art 5 being engaged on the boy’s behalf. 169 [2006] 2 FLr 206, [124]. 160 161

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evant because the boy’s challenge had been brought under article 5, not article 8, and it related to a parent’s rights to exercise physical control over her child, not to a parent’s right to obtain information about her child from a third person, such as a doctor.170 This narrow reading of the Court’s decision is unconvincing. The majority’s discussion was prefaced by some very general comments on the broad range of parental rights protected by a respect for family life. 171 a better way of reconciling Nielsen with adolescent autonomy is surely to argue that the young patient’s own Convention rights should counterbalance the parents’ article 8 rights. The older the child, the more likely it is that a court would accord greater weight to the child’s right to respect for his psychological integrity, under article 8, including the right to self-determination, as described by the Court in Pretty and by Munby J in Roddy. The Supreme Court might well sympathise with such an approach, given Lord Walker of Gestingthorpe’s recent suggestion that Nielsen is ‘questionable’ in its reliance on ‘parental rights’.172 if a domestic court were prepared to treat Nielsen in the way suggested, the principle established by Re R and Re W would probably not survive a Convention challenge. it is notable that the Department of Health advises doctors not to turn to the parents of a patient aged between 16 and 18 for legal authorisation for an unwanted medical procedure. it suggests that in the absence of any postHuman rights act decision on the principle established by the Court of appeal ‘it is not wise to rely on the consent of a person with parental responsibility’ in such circumstances.173 The Department of Health may be correct in predicting the courts’ eventual willingness to overrule Re R and Re W in relation to parents’ legal authority. But the judiciary may be less willing to give up their own right, when exercising their parens patriae jurisdiction, to force life-saving treatment on a seriously ill adolescent. although hospitals today are perhaps less keen to seek judicial assistance to override the wishes of young patients,174 the judiciary may still consider they have a duty to preserve the life of a minor, if asked to do so. as argued elsewhere, they might seek to justify overriding an adolescent patient’s article 8 rights by asserting that it is necessary to promote his or her welfare under article 8(2). overriding his or her rights under articles 3 and 5 (combined with those under article 9 if the treatment offends the young patient’s religious beliefs) might be justified by arguing that these rights all conflict with the courts’ own duty to save the patient’s life under article 2.175 in this respect, the courts might argue that they are recognising the adolescent’s special ibid [126]. (1988) 11 eHrr 175, para 61. 172 Austin and anor v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 3 all er 455, [45]: Lord Walker suggested that Storck v Germany (2006) 43 eHrr 96, a case involving an 18-yearold claimant, reflects the eCtHr’s changed approach to adolescent autonomy. 173 Department of Health, Code of Practice: Mental Health Act 1983, (London, TSo, 2008) para 36.33; discussed by Fortin, above n 76, 161–62. See also Department of Health, Reference Guide to Consent for Examination or Treatment (2009), 34, para 15. 174 See the Jehovah’s Witness accident victim’s death, referred to in n 107 above. 175 Fortin, above n 76, 162. 170 171

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vulnerability as a desperately ill minor – a topic simply not discussed in Gillick itself. CoNCLUSioN

Mrs Gillick’s application produced a long overdue reassessment by the highest court in the land of the broad issue of potential conflicts between parent and child, in the light of adolescents’ developing capacity for adult autonomy. The radical import of Lord Scarman’s words quoted at the beginning of this chapter is that parents have no right to oppose their children once they have reached sufficient understanding and intelligence to make up their own minds on the matter in question.176 Their significance was widely discussed here and abroad. The fact that, 20 years later, Ms axon brought a legal challenge very similar to that mounted by Mrs Gillick suggests that parents still find the House of Lords’ message in Gillick difficult to accept. it also indicates that the boundaries between parents’ rights and children’s rights remain sufficiently unclear to warrant expensive litigation. Nevertheless, Silber J’s decision in Axon usefully emphasised the relevance of Gillick within the rights framework superimposed on family law by the Human rights aact. it ensures that parents cannot exploit their ability to appeal to the eCHr to control their children in a manner fundamentally undermining the general tenor of Lord Scarman’s words. Within the context of Mrs Gillick’s application, it is understandable that their Lordships focused on parent-child relationships. But as eekelaar recognised, Lord Scarman’s words quoted at the beginning of this chapter went further than that and in this respect they were truly ground-breaking. admittedly doubts remain over their true scope. Gilmore argues that ‘it is difficult to see Gillick as a binding precedent for the view that children have been given [such] 177 autonomy rights’.178 But ultimately, as Bevan so clearly perceived, it does not matter what the precise effects of the majority decision really were.179 at a time when the United Nations Convention on the rights of the Child was still at drafting stage, Lord Scarman’s words suggested to eekelaar and to many others that neither parents, third parties nor the courts could interfere with the autonomy of Gillick-competent adolescents. it was Lord Scarman’s vision of society’s changing needs that justifies Gillick being described as a landmark case. His message was clear – as they grow older, children can and should gradually take responsibility for their own decision-making; further, that the developing autonomy of adolescents must be acknowledged and respected. Children’s views today are respected today in a way that would have been unthinkable a century ago. Nevertheless, there has been very little case law 176 177 178 179

Cretney, above n 3, 172. ie the right to teenage independence. Gilmore, above n 17, 74. Bevan, above n 8.

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developing the notion of Gillick competence in a concrete fashion. Within the context of their relationships with third parties, the concept of adolescent autonomy remains largely undeveloped. The ad hoc way our system of common law develops, through case law, must largely explain why Lord Scarman’s ideas have not been further explored. Since the important needs of adolescents without parental support, such as education, accommodation and financial support, are largely regulated by legislation, they are unlikely to produce legal challenges testing the concept of Gillick competence. Cases like Re Roddy 180 may be provoked by other issues, including the financial resources of the press,181 and so their occurrence is essentially ad hoc. as the Court of appeal’s decisions in the early 1990s, Re R182 and Re W,183 show, disputes over medical treatment still sporadically spawn the necessary litigation. This is understandable, given that unwanted medical treatment infringes one of our most valued civil liberties, the right to physical integrity. But this case law produced legal principles which, far from fostering respect for adolescent competence, undermined its legal significance. it is on this area of law that children’s rights activists must focus to produce a test case for legal challenge, with the Human rights act providing its important new context. Meanwhile it is frustrating that, despite the great promise that Gillick still holds for adolescents, they must wait upon the vagaries of our legal process. For the future, when suitable cases do arise, the courts must be prepared to analyse and articulate children’s Convention rights far more clearly. Unless they do, Lord Scarman’s ideas will not be fully developed within our new rights framework. We must ensure that the Gillick decision was not simply a highwater mark never to be reached again.

[2003] eWHC 2927 (Fam), [2004] 2 FLr 949. angela roddy had approached The Mail on Sunday saying that she wanted to talk about her experiences of the local authority care system. 182 Re R, above n 69. 183 Re W, above n 69. 180 181

12 No More Having and Holding: The Abolition of the Marital Rape Exemption JoNATHAN HERRiNg

iNTRoDUCTioN

W

HEN THEiR loRDsHips announced their decision in R v R1 cheers broke out in the public gallery of the House of lords from supporters of Women against Rape. They were quickly removed, still cheering.2 Their spokesperson Claire glasman said: This is a fantastic day for women everywhere. The law lords have finally nailed a legal lie which has somehow survived for nearly three centuries. . . . it overturns 250 years of legal sexual slavery which has been based not on a court case but on an 18th century judge’s decision that a husband could not rape his wife.3

This chapter will consider the context and impact of the decision. R v R is clearly a landmark case in that it abolished a longstanding legal rule about marriage. But one important question is why it took so long for the marital rape exemption to be abolished. As many commentators have pointed out it is remarkable, indeed outrageous, that it existed up until 1991. it will be argued that the marital rape exemption’s endurance reveals some deep-seated attitudes and assumptions about the nature of marriage and of sexual relations. Further, while the decision has many positive aspects, it is noticeable that the basis for it was a rather narrow one. in particular, while making clear that violence within marriage is not justified, it did not bring out the especial wrong of violence in intimate relationships. Nor is there an acknowledgment of the positive obligation on the state to protect individuals vulnerable to violence.

1 2 3

R v R [1992] 1 AC 599. R pearson, ‘Ruling Ends “250 Years of sexual slavery” ’ 23 october 1991, press Association. ibid.

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THE EXEMpTioN

The exact origins of the marital rape exemption are unclear.4 it is commonly stated that it was first formalised in 1676 in the writings of the jurist sir Matthew Hale:5 But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.

Hale does not cite case-law support for his claim, but it seems to have been a generally accepted view. Helen Fenwick6 suggests that at the time Hale’s views could be seen as progressive because his exception only applied to married women and previously there had been statements that a man could never be guilty of raping a woman with whom he had previously had consensual sexual relations. less charitable readings claim that Hale’s approach reflects his misogyny.7 A more significant point is that the exception needs to be viewed in its broader legal context, in particular the fact that at the time Hale was writing sexual relations outside marriage were punishable by the ecclesiastical courts. The choice for women was between unlawful sexual relations outside marriage, or giving up their sexual autonomy within marriage.8 Hale’s comments were picked up by the ecclesiastical courts in Popkin v Popkin9 where lord stowell stated: ‘The husband has a right to the person of his wife’, though he added the important qualification, ‘but not if her health is endangered’.10 The very first edition of Archbold’s leading textbook on criminal law11 contained the clear statement that ‘[a] husband also cannot be guilty of a rape upon his wife’. some doubts were expressed about the exemption in 1888 in R v Clarence.12 Wills J held:13 if intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which i certainly am not prepared to assent, and for which there seems to me to be no sufficient authority.

J Barton, ‘The story of Marital Rape’ (1992) 108 LQR 260. M Hale, History of the Pleas of the Crown, 1st edn (london, Nutt, 1736) vol 1, 629 . 6 H Fenwick, ‘Marital Rights or partial immunity?’ (1992) 142 New Law Journal 831. 7 M Freeman, ‘ “ But if You can’t Rape Your Wife Who[m] can you Rape?” The Marital Rape Exemption Re-examined’ (1982) 15 Family Law Quarterly 1. 8 M Anderson, ‘Marital immunity, intimate Relationships, and improper inferences: A New law on sexual offenses by intimates’ (2003) 54 Hastings Law Journal 1464. 9 (1794) 1 Hag Ecc 765n. 10 ibid 767. 11 J Archbold, Pleading and Evidence in Criminal Cases (1822) 259. 12 (1888) 22 QBD 23. 13 ibid 33. 4 5

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Field J in the same case stated that there might ‘be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime’.14 such doubts notwithstanding, by the mid-twentieth century it seems that the existence of the marital rape exemption was well-accepted within the legal community.15 A good example of its status is R v Miller16 where it was held that a husband could not be found guilty of raping his wife, even where she had already presented a divorce petition. Hale’s statement was confirmed as representing the law. While modern commentators question whether it could ever have genuinely been believed,17 it should be borne in mind that, as writers of the law on rape have noted, ‘rape myths’ do play a major role in assumptions about victims in the law on rape.18 it is remarkable what factors are seen as indicating that women are willing to have sex: from the clothing they wear, the places they visit, or how they smile.19 The assumption that married women consent to sex with their husband is no more bizarre than that women who wear short skirts consent to sex with any man.20 in the second half of the twentieth century, however, the courts started to chip away at the exemption. First, although a husband could not be convicted of raping his wife, the courts were willing to convict husbands of assault or indecent assault against their wives, where injuries could be shown.21 second, the courts started to develop a series of exceptions to the exemption. it was held not to apply in cases where courts had ordered the couple not to cohabit;22 where there was a decree nisi;23 a domestic violence protection order;24 an undertaking from the husband not to molest the wife;25 or a formal separation agreement between the parties.26 it seemed that, with these exceptions, the courts were seeking to render Hale’s presumption of consent a revocable one. Where a wife clearly indicated that she no longer intends to be bound by the normal marriage contract, the exemption no longer applied.

ibid 57. R v Clarke [1949] 2 All ER 448; R v Sharples [1990] Crim lR 198; R v Kowalski (1988) 86 Cr App R 339. 16 [1954] 2 QB 282. 17 l siegel, ‘The Marital Rape Exemption: Evolution to Extinction’ (1995) 43 Clevland State Law Review 352. 18 T Binderup, CM Monson, J langhinrichsen-Rohling, ‘Does “No” Really Mean “No” After You say “Yes”?’ (2000) 15 Journal of Interpersonal Violence 1156. 19 M Whatley, ‘The Effect of participant sex, Victim Dress, and Traditional Attitudes on Causal Judgments for Marital Rape Victims’ (2005) 20 Journal of Family Violence 191. 20 l Ellison and V Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49 British Journal of Criminology 202. 21 eg R v Kowalski, above n 15. 22 R v Clarke, above n 15. 23 R v O’Brien [1974] 3 All ER 663. 24 R v S (unreported), 15 January 1991, not following R v Sharples, above n 15. 25 R v Steele (1976) 65 Cr App R 22. 26 R v Roberts [1986] Crim lR 188. 14 15

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it was also notable that on marriage the assumption was that the wife consented to ‘normal sexual intercourse’. in R v Caswell 27 a husband forced his wife to have oral sex with him in a public toilet. it was held that the marital rape exemption did not apply to this conduct and so the husband could be convicted of indecent assault. Although the judge accepted that ‘normal persuasion’ as a prelude to sexual intercourse might be covered by the exemption, the conduct in that case could not be classified in that way. in Kowalski 28 the Court of Appeal confirmed the exemption did not apply to oral sex. it was explained that the exemption referred to in Hale was restricted to rape and did not apply to other crimes. THE DECisioN iN R V R

The decision was anonymised with a clear order preventing publication of the identity of the parties.29 it would therefore be inappropriate to delve into their personal history, and this description of the facts is accordingly taken from the judgments. The defendant and victim had married on 11 August 1984. Their only child, a son, was born in 1985. There was a brief separation in November 1987, but the couple reconciled after a couple of weeks apart. The wife left the husband in 1989 and returned, with her four-year-old son, to live with her parents. she told the defendant that she intended to divorce him. A decree nisi was granted on 3 May 1990. The husband forced his way into the wife’s parents’ house just before 9 o’clock on the evening of 12 November 1989, when her parents were out. He attempted to rape her and squeezed her neck tightly with his hands. He was charged with attempted rape and an assault occasioning actual bodily harm.30 The Trial At his trial the husband raised the defence that the use of the word unlawful in section 1(1) of the sexual offences (Amendment) Act 1976 meant that a husband could not be guilty of raping his wife. The trial judge, owen J, rejected that submission at R’s trial on 30 July 1990 at leicester Crown Court. He adopted the accepted line that on marriage a wife gives consent to sexual intercourse at any time during the marriage. He then focused on the question of when such consent can be revoked by the wife. owen J suggested that revocation of consent could take place if both parties agreed. He, in fact, went further [1984] Crim lR 111. R v Kowalski, above n 15. The Evening Standard did in fact name the victim and was fined £750 and £50 costs for doing so: press Association, ‘Newspaper Fined for Naming Rape Victim’, 31 March 1992. 30 offences Against the person Act 1861, s 47. 27 28 29

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and suggested that, where parties separate and the wife indicates that she revokes consent to sexual relations, this is effective as a withdrawal of consent, even if there is no specific agreement from the husband.31 He held that on the facts of the case, an agreement could be found to live separately and that this amounted to a withdrawal of the consent to sexual relations. in short, owen J found the husband’s claim that he could rely on the Hale exemption to be ‘as offensive as it was idiotic’.32 The husband accordingly pleaded guilty to attempted rape and the assault charge and was sentenced to three years’ imprisonment. He appealed to the Court of Appeal on the basis that owen J’s ruling was incorrect. The Court of Appeal Before the Court of Appeal, R’s counsel argued that a husband could not be guilty of raping his wife because on marriage a wife consented to the husband’s exercise of his marital rights for the duration of the marriage, again basing this on the writings of Hale. it was argued that this approach had been supported by the courts ever since.33 R’s counsel did accept that, as already mentioned, over time exceptions to the doctrine had developed: the wife’s consent could, in specific circumstances, be withdrawn. (Extraordinarily, this was said to include her death!) However, as none of these existed in R’s case he argued that the presumption of consent applied and he could not be guilty of rape. The Crown’s response was that the statement in Hale was not, in fact, supported by authority and that there had even been some doubts expressed about it as far back as the 1888 case of Clarence.34 The claim was, to put it at its least, modest: The Crown accepts that on marriage the law presumes that a wife consents to sexual intercourse with her husband. That presumption is rebuttable and may be rebutted by evidence that the wife did not in fact consent: she may make it clear that she does not consent by simply saying ‘No.’35

To be clear this meant that the position of a wife was still different to that in the general law of rape. A wife was to be taken to be consenting, unless she withdrew her consent. A wife who, therefore, did nothing to withdraw her consent would be taken to consent. However, for women generally, to consent to sex required a positive act of consent. silence or submission was inadequate.36 sir geoffrey lane traced the development of the law. He saw there being three solutions to the dilemma of how to understand the definition of rape in the 31 32 33 34 35 36

[1991] 1 All ER 747, 754. Quoted in T Dempster, ‘Consent and Marital Rape’ (1990) 140 New Law Journal 1149. R v Cogan [1976] QB 217; R v Kowalski, above n 15. (1888) 22 QBD 23. R v R, above n 1, 602. R v Lartner [1995] Crim lR 75.

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1976 Act: the literal solution, which held that the word ‘unlawful’ in the Act indicated that rape could only take place if the defendant and victim were not married to each other; the compromise solution, that ‘unlawful’ was to be interpreted to mean that the parties were not married to each other or one of the exemptions that had been developed in the case law applied; or the radical solution, namely to do away with the marital rape exemption altogether.37 He did not find any of these attractive. in the end he concluded: [T]he idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections (if that is what Hale meant), is no longer acceptable. it can never have been other than a fiction, and fiction is a poor basis for the criminal law. The extent to which events have overtaken Hale’s proposition is well illustrated by his last four words, ‘which she cannot retract.’ it seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment.38

The appeal was dismissed. it is interesting that the Court of Appeal referred to the rule of Hale as a fiction, which had been overtaken by the current position of a wife ‘in present day society’. But as a fiction, it never had represented the facts. it was not that social practices had somehow changed so that what had once been true had become false, but rather that the way of looking at the world had. House of Lords The House of lords agreed that the appeal should be dismissed. lord Keith of Kinkel quoted at length from a scottish decision in S v HM Advocate,39 in which lord Emslie had traced the changes in the status of women over the twentieth century and explicitly stated that: it cannot be affirmed nowadays, whatever the position may have been in earlier centuries, that it is an incident of modern marriage that a wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. There is no doubt that a wife does not consent to assault upon her person and there is no plausible justification for saying today that she nevertheless is to be taken to consent to intercourse by assault.40

lord Emslie had gone on to cite scottish cases to show that there were circumstances, such as separation, in which it would be clear that ‘any supposed implied consent’ had been withdrawn,41 and had held that the critical question 37 38 39 40 41

R v R, above n 1, 610. ibid 611. (1989) slT 469. ibid 473. Namely HM Advocate v Duffy 1983 slT 7 and HM Advocate v Paxton 1985 slT 96.

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was not whether there had been a separation but simply whether consent had been withheld. lord Keith thought these comments were correct of statements not only of scottish law, but also of English law. He thought that ‘on grounds of principle . . . there was no good reason’ why Hale’s proposition should be followed today.42 He concluded that the word ‘unlawful’ in the 1976 Act should be treated as ‘mere surplusage’43 and certainly not requiring the defendant not to be married to the victim. The question he seemed to find hardest was whether the removal of the marital rape exemption should be left to parliament, but he agreed with lane lJ’s conclusion in the Court of Appeal that the court was not creating a new offence but simply removing ‘a common law fiction which has become anachronistic and offensive’44 and that the court had a duty to act to effect this. The European Court of Human Rights Following the decision of the House of lords the case was taken to the European Court of Human Rights in SW and CR v United Kingdom.45 The European Court considered whether the decision of the House of lords amounted to a retrospective change to the law contrary to Article 7 of the European Convention on Human Rights (ECHR).46 The claim was rejected. Article 7 was seen as designed to ensure there were no arbitrary prosecutions, but that did not prevent development and interpretation of the criminal law by courts, providing any development was clearly defined and foreseeable. The applicants could be aware that the marital exemption had been held ripe for abolition by the law Commission and that the courts’ approach was reasonably foreseeable. There was, therefore, no breach of Article 7. sUBsEQUENT REACTioNs AND CAsE lAW

While the R v R litigation was progressing it is interesting that other courts carried on under the old law. The Independent reported a case following the Court of Appeal decision47 where a husband had sex with his wife six years after their separation ‘for old times’ sake’. He was cleared of rape, but convicted of an assault and fined £100. The judge directed the jury not to convict of rape because there was no ‘independent evidence’. But, following the decision of the [1992] 1 AC 599, 622. ibid 623. 44 ibid 611. 45 ser A 335-B, 1995. 46 p ghandhi and J James, ‘Marital Rape and Retrospectivity – The Human Rights Dimensions At strasbourg’ [1997] Child and Family Law Quarterly 17. 47 17 April 1991. 42 43

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House of lords the courts refused to apply the exemption, even in cases where the rape had taken place before their lordships’ decision.48 Yet it would be wrong to think that the marital status of the parties is now irrelevant in the law on rape. in sentencing the issue is still relevant. 49 shortly after the decision in the House of lords a judge sentenced a man who raped his wife to three years’ imprisonment, adding that had the victim been a stranger it would have been eight years.50 in another case a man was given a two-year suspended sentence for a marital rape, it being described as a ‘misplaced attempt to get his wife to love him’.51 some academics endorsed the idea that marital rape is nothing like as bad as ‘stranger rape’. glanville Williams, arguing that the exemption had accorded with ‘public opinion’ and that the label of rape should not be used,52 stated that: [o]ther things being equal, rape by a cohabitee or ex-cohabitee, though horrible, as all rape is, cannot be so horrible and terrifying as rape by a stranger. i speak with the handicap of being a male, but a male can empathise with the female victims of crime, and anyway i take courage from the support of some women (including the woman most important to me), even though they are not the vociferous ones.53

He also argued that the social harm involved in marital rape was less than in ‘stranger rape’: [T]he stranger who pounces, perhaps wearing a mask, is a greater menace to society and a greater terror to women than the known attacker who acts in pursuance of what he misguidedly thinks of as his rights, or who is suffering from an unbearable sense of the loss of his partner by separation (he may even, stupidly, think that by forcing himself upon her he may regain her affection).54

such ideas continued to exert considerable influence. in Berry55 it was held that the fact that the parties were in a relationship could mean there was less ‘violation’ and ‘defilement’ than cases of stranger rape and therefore a lesser sentence than otherwise might be suggested.56 phil Rumney in his 1999 analysis of relationship rape cases concluded that the Berry decision was regularly being applied to reduce sentences in relationship rape cases.57 indeed he argues that ‘there appears to be little difference in the approach of the courts to marital rape sentencing today from their approach prior to R’.58 R v C [2004] EWCA Crim 292. K Warner, ‘sentencing in Cases of Marital Rape’ (2000) 20 Legal Studies 592. 50 ‘Judge Warns Man who Raped Wife’ The Independent, 10 April 1992. 51 The Guardian, 22 october 1991. 52 g Williams, ‘The problem of Domestic Rape’ (1991) 141 New Law Journal 205. 53 g Williams, ‘Rape is Rape’ (1991) 142 New Law Journal 11. 54 ibid. 55 R v Berry (1988) 10 Cr App R (s) 13. 56 see also R v Billam (1986) 8 Cr App R (s) 48. 57 p Rumney, ‘When Rape isn’t Rape: Court of Appeal sentencing practice in Cases of Marital and Relationship Rape’ (1999) 19 OJLS 243. 58 R v PH [2001] 1 Cr App R (s) 52. 48 49

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A good example of the courts’ attitudes in the 1990s is R v M,59 where lord Taylor explained: in the present case we would point out that there is a distinction between a husband who is estranged from his wife and is parted from her and returns to the house as an intruder either by forcing his way in or by worming his way in through some device and then rapes her, and a case where, as here, the husband is still living in the same house and, indeed, with consent occupying the same bed as his wife. We do not consider that this class of case is as grave as the former class.60

in R v Millberry61 the Court of Appeal reviewed its approach to cases of relationship rape and noted that the sentence for rape would not necessarily be the same in all cases. it recognised that there might be ‘mitigating circumstances’, suggesting that: Where, for example, the offender is the husband of the victim there can, but not necessarily will, be mitigating features that clearly cannot apply to a rape by a stranger . . . [i]t is not to be overlooked, when considering ‘stranger rape’, the victim’s fear can be increased because her assailant is an unknown quantity. is he a murderer as well as a rapist? in addition, there is the fact . . . that when a rape is committed by a stranger in a public place, not only is the offence horrific to the victim it can also frighten other members of the public. This element is less likely to be a factor that is particularly important in a case of marital rape were the parties to the marriage are living together.62

on the other hand, the court did also recognise that ‘because of the existence of a relationship the victim can feel particularly bitter about an offence of rape, regarding it as a breach of trust’ and that the victim might therefore regard the offence as being as bad as a ‘stranger rape’. What is noticeable here is that the ‘breach of trust’ involved in marital and relationship rape is regarded as sufficient to make the offence as bad as ‘stranger rape’. But surely a good argument can be made for saying that the breach of trust can make the rape in some cases even worse. This seems to have been accepted recently by the Court of Appeal in Attorney-General’s Reference (No 90 of 2009)63 where a sentence of 10 years was increased to 18 in a case of marital rape. This is an extreme case of its kind: rape by a husband of his wife from whom he was separated. The facts that we have narrated demonstrate, and the conduct of his defence confirms, that the offender deliberately chose to use sexual intercourse with his wife without her consent as a weapon with which to dominate and humiliate her. This was the woman with whom he had once had a relationship of genuine affection and who had borne him two children. There was a grave breach of trust. The offender used the kind of knowledge that couples have of each other, which he would have 59 60 61 62 63

(1995) 16 Cr App R (s) 770. ibid para 17. [2002] EWCA Crim 2891. ibid para 13. [2009] EWCA Crim 2610.

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acquired during their moments of warm intimacy, about a sexual practice that she found wholly unacceptable. With that knowledge he forced her to submit to it. Apart from the sheer humiliation and horror, she suffered physical pain. Having done that, he added to her degradation by raping her vaginally. The offender’s actions were quite merciless.64

However, that seems to be regarded as an exceptional case. if the horrific facts of that case are what is required before the courts will acknowledge the gravity of breach of trust, we are still a long way from an adequate acknowledgement that marital rape and rape in other cases where there is a close relationship between the parties has an added inherent wrong. THE BAsis FoR THE EXEMpTioN

given this continuing debate about whether rape by a husband is as ‘bad’ as rape by a stranger, and the fact that the exemption lasted so long, it is worth considering the arguments that were used to justify the exemption and the assumptions that underpinned them. such arguments and assumptions are revealing as indicating attitudes about marriage and sex, and their rejection in R v R therefore justifies its place as a landmark case in family law as well as in criminal law. First, as we have seen, there was the Hale argument that a term of the marriage contract was that on marriage a woman gave her irrevocable consent to vaginal intercourse. While few today would support this line of argument, it still has echoes in some more contemporary writings. As late as 1980 Michael Hilf wrote: While an act of non-consensual intercourse is an interference with personal autonomy, a married person’s general expectation of autonomy is less than a single person’s. . . . it is obvious that some personal autonomy is sacrificed when one enters into a marital relation in order to allow for some degree of marital autonomy. A married person has, to some extent, a lesser expectation of personal autonomy; therefore, the affront to one’s autonomy is less in the case of spousal rape than in the case of ordinary rape. . . . While a married person’s interest in bodily integrity is not inconsiderable, a balance must be struck between the individual’s interest in private autonomy and the public policy favoring spousal immunity.65

linked to this are the suggestions that it is the wife’s duty to allow her husband ‘to have sex with her’. indeed Biblical support could be sought in st paul’s teaching: For the wife does not have authority over her own body, but the husband does; likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except perhaps by agreement for a set time.66 64 65 66

ibid para 21. Mg Hilf, ‘Marital privacy and spousal Rape’ (1980) 16 New England Law Review 31, 41. 1 Cor. 7: 4 (New Revised standard Version).

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it is reflected too in the comments of Dr Mary Macaulay, writing in 1952,67 who stated that it was a ‘shocking thing’ to hear of a wife refusing her husband’s sexual advances: ‘such an attitude would be impossible in any woman to whom loving and giving were synonymous’. such arguments assume that sex plays a central role in marriage.68 of course, consummation of marriage is regarded as necessary to ensure that the marriage is not voidable on the grounds of non-consummation.69 A failure to engage in sexual activities during marriage may be regarded as unreasonable behaviour and found the basis for a divorce petition.70 However, given that nowadays sexual behaviour as often – if not more often – takes place outside marriage as within it, it might be debated whether or not sex should be seen as some kind of defining characteristic of marriage.71 secondly, there was the doctrine of marital unity.72 This is well exemplified by Blackstone’s statement: Husband and wife are legally one person. The legal existence of the wife is suspended during marriage, incorporated into that of the husband. . . if a wife is injured, she cannot take action without her husband’s concurrence.73

given the unity of husband and wife, it went without saying that a husband could not commit a crime against his wife. That unity was, of course, declared to be a fiction some time before the decision in R v R. The survival of the marital rape exception demonstrates the legal and social power that a husband had over his wife. As Michael Freeman noted even a female slave had the right to refuse her master sex.74 While those legal powers may have diminished, there is still in some places a social recognition of the legal authority of a husband. Conservative religious groups still emphasise that the wife should submit to her husband.75 surveys of marital rapists find a strong belief in a husband’s right to have sex and a wife’s duty to ‘provide it’. 76 in authorising this kind of thought the law played a role in the oppression of women. As West argued: The marital rape exemption is an instance of state complicity in men’s subordination of women through routinized violent sexual assault and the threat of violent assault. 67 The Art of the Marriage Bed (1952); quoted in D Kynaston, Family Britain, 1951–57 (london, Bloomsbury, 2009). i am grateful to Rebecca probert for drawing my attention to this work. 68 R Ryan, ‘The sex Right: A legal History of the Marital Rape Exemption’ (1995) 20 Law & Social Inquiry 941. 69 Matrimonial Causes Act 1973, s 12. 70 C Barton and K painter, ‘Rights and Wrongs of Marital sex’ (1991) 141 New Law Journal 394. 71 J Herring, ‘sexless Family law’ (2009) Lex Familiae 3. 72 Ryan, above n 68. 73 Blackstone, Commentary on the Laws of England (oxford, Clarendon press,1765). 74 Freeman, above n 7. 75 eg The Council on Biblical Manhood and Womanhood, The Danvers Statement on Biblical Manhood and Womanhood. 76 EK Martin, CT Taft and pA Resick, ‘A Review of Marital Rape’ (2007) 12 Aggression and Violent Behavior 329.

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Each assault spurs self-denial, self-abnegation, and self-diminution for women and furthers political ratification of women’s psychological and psychic subservience.77

A third set of arguments focused on the privacy of the family. The protection of the marital bedroom from inspection by the courts was claimed to justify the exemption.78 This argument has proved particularly influential in the American courts, where the protection of family privacy from state intrusion has been seen as a constitutional right. 79 such arguments about the sanctity of the home assume that marriage is a safe haven. The reality is very different. studies suggest that rape within intimate relationships is common.80 one study found that one in seven married women had been raped by their husbands.81 Eighty per cent of those raped by their husband had suffered more than one attack. Furthermore, one in three divorces or separations are linked with unwanted sex.82 one survey of victims of marital rape found 52 per cent stating that the impact of the rape was significant and 34 per cent suffering extreme trauma.83 These statistics are widely available, but so strong is the ideal image of marriage as a place of love and tenderness that it is scarcely challenged by the reality of domestic violence and marital rape. 84 The traditional husbandly role of protector of the wife was seen as incompatible with the notion of marital rape.85 The appeal of the ideal of marriage played, i suggest, an important role in delaying the abolition of the rape exception. it still features in, for example, glanville Williams’ arguments suggesting that the marital rapist is usually over-ardent, rather than a violent abuser. MoViNg oN FRoM R V R

Few academic commentators, if any, would nowadays argue in favour of a marital rape exemption. R v R has been widely welcomed. Yet it should not be

77 R West, ‘Equality Theory, Marital Rape, and the promise of the Fourteenth Amendment’ (1990) 42 Florida Law Review 45. 78 s Caringella-MacDonald, ‘parallels and pitfalls: The Aftermath of legal Reform for sexual Assault, Marital Rape, and Domestic Violence Victims’ (1998) 3 Journal of Interpersonal Violence 174; DEH Russell, Rape in Marriage, 2nd edn (Bloomington, indiana University press, 1990). 79 ibid. 80 CR Hanneke and NA shields, ‘Marital rape: implications for the Helping professions’ (1985) 66 Social Casework 451; CR Hanneke, NA shields and gJ McCall, ‘Assessing the prevalence of Marital Rape’ (1986) 1 Journal of Interpersonal Violence 350; K painter, D Farrington, ‘Marital violence in great Britain and its Relationship to Marital and Non-marital Rape’ (1998) 5 International Review of Victimology 257. 81 Barton and painter, above n 70. 82 ibid. 83 Russell, above n 78. 84 J Hasday, ‘Contest and Consent: A legal History of Marital Rape’ (2000) 88 California Law Review 1373. 85 J sitton, ‘old Wine in New Bottles: The “Marital” Rape Allowance’ (1993) 72 North Carolina Law Review 289.

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regarded as the end of the road for those concerned about rape in the context of marriage or other intimate relationships. First, as argued above, in relation to sentencing, we need a clear acknowledgment from the courts that where the parties were in a close intimate relationship, such as marriage, this should be an aggravating, rather than mitigating feature in relation to rape. in the writings and decisions on marital rape the experiences of the victims of rape have been silenced. in R v R itself little weight was attached to the experience of women who have suffered marital rape. Remarkably, glanville Williams’ advice was to listen to ‘sensible women’, rather than the victims of marital rape. Had he listened to them he would have heard of the trauma and turmoil caused by marital rape.86 The assumption that marital rape is necessarily less serious than non-marital rape does not fit with the evidence about the impact of marital rape, which indicates high rates of trauma and significant long-term effects.87 Bennice and Resick argue that marital rape victims suffer more severe post-trauma distress than those raped by strangers.88 Finkelhor and Yllo describe the feelings of one victim of marital rape:89 My whole body was being abused. i feel if i’d been raped by a stranger, i could have dealt with it a whole lot better . . . When a stranger does it, he doesn’t know me, i don’t know him. He is not doing it to me as a person, personally. With your husband, it becomes personal. You say, this man knows me. He knows my feelings. He knows me intimately, and then to do this to me – it’s such a personal abuse.

As seen above, the courts currently tend to regard an existing intimate relationship between the defendant and victim as a mitigating factor in sentencing for rape. it should, in fact, be an aggravating feature. second, in R v R, their lordships rejected Hale’s argument in favour of the irrebuttable presumption of consent. We need to go further and state there is no assumption of consent at all, even in the context of marriage. six out of 10 women in a survey reported they had had sex with their husband when they did not really want to. one in seven reported it as duty to have sex. Wives reported a great fear of being seen as ‘cold’ or ‘frigid’.90 The difficulties in distinguishing rape from legitimate sexual intercourse are well discussed in the feminist writings on rape. For example, Catharine MacKinnon observes: The problem . . . [is] . . . what it has always been: telling the difference [between rape and heterosexuality]. perhaps the wrong of rape has proven so difficult to articulate 86 J Bennice and p Resick, ‘Marital Rape: History, Research and practice’ (2003) 4 Trauma, Violence and Abuse 228. 87 Russell above n 78; Bl Katz, ‘The psychological impact of stranger versus Non-stranger Rape on Victims’ Recovery’ in A parrot and l Bechhofer (eds), Acquaintance Rape – The Hidden Crime (New York, John Wiley & sons, 1991); Mp Koss, TE Dinero, C seibel and s Cox, ‘stranger, Acquaintance and Date Rape: is there a Difference in the Victim’s Experience?’ (1988) 12 Psychology of Women Quarterly 1. 88 Bennice and Resick, above n 86. 89 89 D Finkelhor and K Yllo, License to Rape: Sexual Abuse of Wives (New York, Free press, 1985) 118. 90 Barton and painter, above n 70.

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because the unquestionable starting point has been that rape is definable as distinct from intercourse, when for women it is difficult to distinguish them under conditions of male dominance.91

More work is required to understand when sex is justified. A wife’s reluctant acceptance that sex takes place does not do sufficient moral work to justify a sexual penetration. There is not space to develop that argument here, but it is an issue which requires much further thought.92 Third, it should be acknowledged that intimate relationships generate vulnerability to sexual abuse. sexual abuse is particularly difficult to prove within these relationships, and the circumstances of an intimate relationship lay a party open to sexual and other abuse. The European Court is beginning to acknowledge that the state has a positive obligation to protect victims of domestic violence.93 There is an especial obligation on the state to ensure that the criminal law, the police and prosecuting authorities take reasonable steps to protect those who are in danger of having their human rights infringed. The arguments are exactly the same in relation to sexual abuse within an intimate relationship. Fourth, and this develops from the third, marriage has traditionally been seen as a site of protection, warmth and support. Hence the tendency to claim to support and uphold marriage among politicians, even today. However, while it can be supportive of these things, it can also be a site of violence and rape. it is, therefore, dangerous to support ‘marriage’ as an abstract concept. We need to be clear what it is about marriage and relationships that is deserving of support from the state.94 CoNClUsioN

in John galsworthy’s novel, The Man of Property, soames Forsythe rapes his wife irene. Describing his contemplations galsworthy writes: The incident was really not of great moment; women made a fuss about it in books; but in the cool judgment of right-thinking men, of men of the world, of such as he recollected often received praise in the Divorce Court, he had but done his best to sustain the sanctity of marriage, to prevent her from abandoning her duty, possibly . . . No, he did not regret it.95

C MacKinnon, ‘Feminism, Marxism, Method and the state’ (1983) 3 Signs 635, 637. M Madden Dempsey and J Herring, ‘Rethinking the Criminal law’s Response to sexual offences: on Theory and Context’ in C Mcglynn and V Munro (eds), Rethinking Rape Law (Aldershot, Routledge, 2010). 93 Opuz v Turkey Application no 33401/02, 9 June 2009. see also p londono, ‘positive obligations, Criminal procedure and Rape Cases’ [2007] 2 European Human Rights Law Review 158. 94 K o’Donovan, ‘Marriage: A sacred or profane love Machine’ (1993) 1 Feminist Legal Studies 75. 95 J galsworthy, The Man of Property (first published 1906, london, Headline, 2008) 245. 91 92

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This rather ambivalent justification for marital rape has echoed down through the ages. it is interesting that in its more modern form glanville Williams relies on right-thinking women rather than men, agreeing that it is ‘not really rape’. This chapter has sought to discuss the decision of R v R and the abolition of the rape exemption. it has addressed three main issues. First, it has considered the broad range of assumptions and beliefs about marriage that coalesced to maintain the marital rape exemption for such a long time. They may explain, in part, why it took so long for their lordships to remove it. second, it has argued that while the decision has been widely welcomed as a progressive and desirable move, by focusing on a narrow basis for the exemption, it has left unanswered some important issues concerning marriage and the nature of consent to sex in intimate relations. Third, the chapter has suggested that R v R should not be considered the last word on marital rape. it has been argued that the intimacy of the relationship between the parties should be regarded as an aggravating rather than a mitigating factor in sentencing for marital rape. Further, that marriage and intimate relationships should be seen as generating a source of vulnerability and hence requiring especial protection for women from violent and sexual abuse.

13 Fitzpatrick v Sterling Housing Association: A Perfectly Pitched Stall LiSA GLennon

inTRoDUCTion

o

n 28 oCTobeR 1999 the House of Lords held by a narrow majority that same-sex couples could be classed as ‘family members’ for the purposes of the Rent Act 1977, thus allowing a surviving partner to succeed to a tenancy held in the name of his deceased partner.1 The decision received substantial media publicity and was described as both ‘historic’2 and ‘landmark’.3 it was publicly perceived as a milestone in the quest for gay and lesbian emancipation although some commentators doubted its long-term implications.4 The purpose of this chapter is to reflect, a decade after the decision was handed down, whether it deserves its place within a collection of essays on the ‘Landmark Cases in Family Law’. on first view the decision clearly merits this accolade as the House of Lords recognised, for the first time, the familial status of same-sex couples. However, the doctrinal and factual background of the case suggests that the decision carries less magnitude since gay and lesbian couples were merely classed within a residual and asexual legislative category of family membership under the Rent Act 1977 in the context of a very compelling set of facts. The House of Lords were unanimous in their refusal to expressly equate same-sex couples with their unmarried heterosexual counterparts who were treated as spouses under the legislation. Thus, a clear distinction was maintained between couples on the basis of their sexual orientation. This chapter will argue, however, that herein lies the true significance of the case. While 1 Fitzpatrick v Sterling Housing Association [2001] 1 AC 27. The decision was reached by a narrow three to two majority with Lords Hutton and Hobhouse of Woodborough dissenting. 2 S Doughty, ‘Gays have same Rights as married couples say Lords: Judges Give Homosexuals new Legal Status’ Daily Mail, 29 october 1999. 3 i burrell, ‘Gay Man Wins Landmark Decision on Housing Rights’ The Independent, 29 october 1999. 4 See, eg, R bailey-Harris, ‘Case Reports: Fitzpatrick v Sterling Housing Association’ [2000] Family Law 14 and n Roberts, ‘Fitzpatrick v Sterling – A Case with Wider implications?’ [2000] Family Law 417.

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the court created a narrow form of differential treatment between same- and opposite-sex couples (in the context of the Rent Act), it implicitly analogised such relationships in terms of their functions. This, it will be argued, allowed the majority to deliberately inhabit a ‘halfway house’ in order to provide a solid doctrinal foundation for more extensive future reform whilst, simultaneously, ensuring that the decision did not out-pace social attitudes towards gay and lesbian rights. For this reason, it is submitted that the decision deserves its place within a collection such as this. THe FACTS

Martin Fitzpatrick, a Dublin-born former Royal navy serviceman met John Thompson, a South African-born former silversmith, in 1969. They moved into their Hammersmith flat in 1976 and lived there until Thompson’s death in 1994 at the age of 66. nine years before his death, Thompson fell down some stairs and sustained a blood clot to the brain which caused irreversible brain damage. He was in a coma for some months and when he regained consciousness he never spoke again. His injuries were so severe that he became a tetraplegic requiring constant care and attention which was lovingly provided by Mr Fitzpatrick. The latter said of his relationship with Thompson that in the early days it may have seemed unusual not only was i going out with a guy, but he was a black guy . . . [W]e were so close . . . i would say we were like hubby and wife. We were loving people. i just loved him so much.5

Mr Fitzpatrick was treated as Thompson’s next-of-kin when he underwent two major brain operations but he felt that his partner would never make progress in hospital. Thus, in the summer of 1986 he gave up his mobile snack-bar business to provide 24-hour care. Mr Fitzpatrick’s devotion to his partner was noteworthy as he became an expert full-time carer, keeping pressure sores at bay and learning how to change catheters. He devised a method of feeding Mr Thompson with a gastric tube through his nose – including pints of Guinness during trips out. He taught him to blink once for ‘yes’, twice for ‘no’.6

As Mr Fitzpatrick was reported to have said, ‘i made him feel he was alive’.7 However, when Thompson died nine years after suffering his injuries, the landlords attempted to evict Mr Fitzpatrick, aged 47, from the flat which the couple had shared with their aged cat, billy. The flat in question was a private sector tenancy under the Rent Act 1977. even though the landlord was a charity which 5 P Wynn Davies, ‘Gay carer fights for right to home after partner dies’ The Independent, 10 June 1997. 6 ibid. 7 ibid.

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provided accommodation for both families and individuals at affordable rents, it was a private company which meant that it fell outside the definition of ‘housing association’ under the Housing Act 1985. As such, the charity was classed as a private landlord and the tenancy was subject to the provisions of the Rent Act 1977. Thompson had become the statutory tenant of the flat in 1972,8 four years before Mr Fitzpatrick moved in with him. After Thompson’s death, Mr Fitzpatrick applied to take over the tenancy which comprised four rooms plus kitchen and bathroom. even though the top two floors of the building in which the flat was situated had been empty for quite some time,9 the landlords refused his request although they were willing to re-house him in smaller accommodation in another of their properties. it was reported that when Thompson died the weekly rent of the flat, which had been specially adapted for his needs, 10 was £19.50 although the landlords could have applied to have it raised. Mr Fitzpatrick, who was described as a ‘big, boisterous, bald bloke with a loud tie and a flower in his lapel’,11 applied to the West London County Court for a ruling that he was entitled to succeed to the statutory tenancy under the provisions of the Rent Act 1977. SUCCeSSion RiGHTS UnDeR THe RenT ACT 1977

Under the provisions of the Rent Act 1977,12 on the death of a statutory tenant in a private sector tenancy, the tenancy passes to certain specified persons. Such transmission on death has been provided for by the Rent Acts since their inception in 192013 as the policy of the legislation, which is to provide security of tenure to those who occupy the property as their home,14 extends not just to the tenants of the property but also to their successors. As Lord nicholls noted in Fitzpatrick, the intention of the Act is the ‘provision of a secure home for those who share their lives together with the original tenant in the manner which characterises a family unit’.15 Recipients of these so-called ‘derived rights’16 are listed hierarchically in Schedule 1 to the 1977 Act, and their identity has evolved 8 Under the Rent Act 1977 tenants living in private rented accommodation under a contractual lease which was granted before 15 January 1989 are protected tenants. once the lease ends and the tenant remains in possession he or she becomes a statutory tenant under the 1977 Act. 9 Wynn Davies, above n 5. 10 it was reported that Hammersmith & Fulham Council spent a considerable amount of money adapting the flat so that Thompson could continue to live at home, ibid. 11 Guardian leader pages, ‘Partners for life; The Law is now accepting what gays and lesbians have known for years: we have families too’ The Guardian, 1 november 1999. 12 Hereafter the 1977 Act. This Act was amended by the Housing Act 1980 and the Housing Act 1988. it has also been amended by the Civil Partnership Act 2004. 13 Fitzpatrick v Sterling Housing Association [1998] 1 FLR 6 per Waite LJ, 307. 14 Lord Greene MR said in Curl v Angelo [1948] 2 All eR 189 that the object of the Act is to ‘protect people from being turned out of their home’, 192. See also Cumming v Danson [1942] 2 All eR 653 and Lloyd v Sadler [1978] Qb 774. 15 Fitzpatrick, above n 1, 45. 16 ibid per Lord Slynn, 31.

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over the years through both legislative and judicial intervention.17 The first category of successor is the surviving spouse of the original tenant who automatically succeeds to the tenancy on the latter’s death provided that he or she occupies the dwelling-house as his or her residence.18 The definition of ‘spouse’ in the legislation is not confined to formally married couples and thus the second category of successor under paragraph 2(2) to Schedule 1 is a de facto spouse defined, at the time of the Fitzpatrick decision, as ‘a person who was living with the original tenant as his or her wife or husband’.19 The final category of successor under paragraph 3(1) to Schedule 1 is a member of the original tenant’s family who was residing with him in the dwelling-house for the period of two years immediately before the tenant’s death.20 not only do family members have to satisfy more stringent eligibility requirements by proving two years’ residence with the deceased, but they succeed to a different type of tenancy. As a result of amendments introduced by the Housing Act 1988, a family member is only entitled to an assured tenancy as opposed to a statutory tenancy which is enjoyed by the surviving spouse in its literal and extended sense. The main differences are that an assured tenancy does not carry any further rights of succession, while succession to a statutory tenancy is not similarly restricted and, in monetary terms, an assured tenant must pay a contractual or market rent as opposed to a fair rent. in addition, an assured tenant may be evicted for the non-payment of rent without the court having to be satisfied that it is reasonable to make a possession order, which is required to evict a statutory tenant.21 Mr Fitzpatrick argued that he was entitled to succeed to the tenancy either on the ground that he was living with the original tenant as his surviving spouse in its extended sense under paragraph 2(2) or, in the alternative, that he was a surviving family member under paragraph 3(1). both the trial judge and the Court of Appeal rejected these arguments22 although, most likely motivated by the compelling facts, the case was heard with considerable sympathy. The Court of Appeal accepted that the couple were in a permanent and stable homosexual relationship23 and Waite LJ opined that the exclusion of same-sex couples from succession rights under the 1977 Act was ‘offensive to social justice and tolerance’ and was ‘out of tune with modern acceptance of the need to avoid any discrimination on the ground of sexual orientation’.24 However, the majority 17 Amendments made by the Housing Act 1980, s 76 and the Housing Act 1988, Pt i, Sch 4 widened the range of persons entitled to succeed to a private sector tenancy. See also Dyson Holdings v Fox [1975] 3 All eR 1030. 18 Rent Act 1977, Sch 1, para 2(1). 19 ibid Sch 1, para 2(2). This provision was inserted by the Housing Act 1988. it has now been amended by the Civil Partnership Act 2004 to include a person living with the original tenant as if they were civil partners: Civil Partnership Act 2004, Sch 8, para 13(3). 20 Rent Act 1977, Sch 1, para 3(1). 21 Ghaidan v Godin-Mendoza [2004] UKHL 30 per Lord nicholls, [5]. 22 Ward LJ dissenting in the Court of Appeal. 23 Fitzpatrick, above n 13, per Waite LJ, 306. 24 ibid 318.

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felt that any remedial action was a matter for Parliament. Wary of going beyond the legitimate judicial function of interpretation and implementation, the majority of the court were steadfast in their determination that as paragraph 2(2) contained the gender-specific words ‘living as his or her husband or wife’, the definition of surviving spouse was limited to opposite-sex cohabitants. The undefined nature of the term ‘family’ under paragraph 3(1) did not, according to the court, provide greater judicial leeway to give an updated meaning and the majority refused to accept that this could be anything other than relationships based on marriage, including opposite-sex cohabitation,25 and ties of kinship which included adoption. Ward LJ dissented on both grounds and it was observed at the time that his ‘powerful dissent’ paved the way for the decision of the majority in the House of Lords.26 Certainly Mr Fitzpatrick was bolstered by the sympathetic approach of the Court of Appeal and the fact that one judge had ruled in his favour. He considered that he had won a ‘vital moral victory’ in court, saying that: As the law stood i knew i couldn’t win the case, but when the three judges say the law has to be changed . . . it is a great thing in my favour. That one of the judges voted for me made me feel that there is a very good chance in the future for me to win this case. i do not intend to give up until i win.27

THe APPeAL

Mr Fitzpatrick appealed against this decision on two grounds. First, he challenged the gender-specific interpretation of the term ‘living with the original tenant as his or her wife or husband’,28 arguing that Parliament’s intention was that this term be interpreted by the courts on an incremental basis so as to include any relationship akin to marriage and not just those between partners of the opposite sex. Ward LJ took a similar approach in his dissenting speech in the Court of Appeal. Advocating a functionalist analysis, he evaluated the role of a husband and wife and set this as an objective criterion in order to classify other relationships, regardless of the gender of the parties. on the specific question of whether same-sex couples came under the ambit of those ‘living together as wife or husband’, Ward LJ placed significance on the use of the word ‘as’ holding that it means ‘in the manner of’ and thus suggests that emphasis be placed on how the couple functioned rather than the form which their relationship took. in light of this, he concluded that there was no ‘essential difference’

25 This had already been accepted in Dyson Holdings v Fox [1975] 3 All eR 1030. The Court of Appeal was critical of the ‘judicial policy making’ in this particular case and preferred to leave such matters to Parliament. 26 n Roberts, ‘Fitzpatrick v Sterling – A Case with Wider implications?’ [2000] Family Law 417. 27 M Streeter, ‘Judges urge law change for gay rights’ The Independent, 24 July 1997. 28 Under the Rent Act 1977, Sch 1, para 2(2).

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between same- and opposite-sex relationships and thus interpreted paragraph 2(2) to include the former: no distinction can sensibly be drawn between the two couples in terms of love, nurturing, fidelity, durability, emotional and economic interdependence – to name but some and no means all of the hallmarks of a relationship between a husband and his wife.29

While the majority of the House of Lords adopted a similarly functional approach to the second of Mr Fitzpatrick’s claims that he was a member of Thompson’s family under paragraph 3(1), they took a rigid interpretative stance when considering this first question. it is notable that this was the first time such a claim had arisen in the context of the private sector tenancies under the 1977 Act, although the question had arisen previously before the Court of Appeal in relation to public sector tenancies in Harrogate Borough Council v Simpson.30 in that case a surviving partner in a lesbian relationship unsuccessfully sought succession to a secure tenancy of a local authority letting claiming to be a member of the original tenant’s family by living together ‘as husband and wife’.31 The Court of Appeal refused to accept that the use of the word ‘as’ meant that: Parliament was indicating, not only that the provisions were intended to apply to persons who were married in the formal sense, but also to unions which gave the appearance of two people living together in a kind of matrimonial state.32

Thus, the court concluded that the term ‘living together as husband and wife’ did not include a lesbian relationship.33 The House of Lords in Fitzpatrick approved this decision and stated that if Parliament had intended same-sex relationships to be included within paragraph 2(2) it would have been expressly stated.34 The court concluded unanimously that the language of the provision required a biological distinction between the sex of the parties living together as wife or husband. The next question required the Lords to interpret the undefined term ‘family’ under paragraph 3(1). This was another ‘first’ as never before had a same-sex partner claimed familial status under the 1977 Act. However, the same issue had Fitzpatrick, above n 13, 39. (1984) 17 HLR 205. 31 Public sector tenancies are governed by the Housing Act 1985 which provides that a secure tenancy can pass to either the tenant’s surviving spouse or a member of the tenant’s family who was living with the tenant for 12 months before his death: Housing Act 1980, s 50(3). This provision is now contained in the Housing Act 1985, s 113(1)(a) and has been amended by the Civil Partnership Act 2004 (ss 81, 263(2), Sch 8, para 27(2)(b)) to include civil partners and those who live together as if they were civil partners. The Housing Act 1985, s 113(1)(b) which replaced the Housing Act 1980, s 50(3) provides that a person is a member of another’s family if he is a spouse of that person, or he and that person live together as husband and wife (or as civil partners) or, he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. Step and half-blood relations are included. 32 Harrogate Borough Council, above n 30 per Watkins LJ, 209. 33 The decision was approved by the european Commission of Human Rights in Simpson v United Kingdom (Application no 11716/85) (1986) 47 D&R 274. This admissibility decision has, however, been superseded by the decision of the eCtHR in Karner v Austria (2004) 38 eHRR 24. 34 Fitzpatrick, above n 1 per Lord Slynn, 34. 29 30

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arisen previously in other jurisdictions and the majority drew considerable support from the functional approach adopted elsewhere. For example, a decade earlier the new York Court of Appeal was called upon to decide the claim of Miguel braschi who had lived with his gay partner, Leslie blanchard, in a rentcontrolled apartment for over 10 years until the latter’s death.35 After blanchard’s death, the respondent (Stahl Associates Company) who owned the property, served notice on the plaintiff to terminate, contending that as a mere licensee he had no right to occupy the apartment since his partner was the tenant on record. The plaintiff sought protection from eviction under the new York City Rent and eviction Regulations, which specifies that upon the death of a rent control tenant, the landlord cannot evict ‘either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant’.36 The question before the court was the meaning of the undefined word ‘family’ within this provision. The majority made it clear that, when interpreting ambiguous statutory terms, the intended purpose of the legislation took priority. With this in mind, a functional approach to the question was adopted and the court found in favour of the plaintiff: [T]he term family . . . should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance a marriage certificate or adoption order. The intended purpose against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life . . . [i]t is reasonable to conclude that . . . the Legislature intended to extend protection to those who reside in households having all the normal familial characteristics.37

The majority of the House of Lords adopted a similar approach in Fitzpatrick and, in their interpretative analysis, focused on the purpose of the 1977 Act, which was to protect those who share their lives in a single family unit living in one house.38 This is in sharp contrast to the approach of the Court of Appeal which showed greater concern about the effect on private landlords of extending the number of successors to private sector tenancies.39 However, as the majority of the House of Lords observed, once the legislature conferred succession rights on family members, it was not for the courts to attempt to control this for the benefit of landlords by restricting the number of such persons who were entitled to succeed. Seeking to give effect to the remedial nature of the legislation led the majority to adopt a progressive interpretation of the words Braschi v Stahl Associates Company [1989] nYS 2 784. new York City Rent and eviction Regulations, s 2204.6(d). 37 Braschi, above n 35, 788–89. 38 Fitzpatrick, above n 1, per Lord nicholls, 44. See text to n 14. 39 Fitzpatrick, above n 13, 20. Wikeley observed that the majority of the Court of Appeal in Fitzpatrick ‘declined the opportunity to address the fundamental policy objective of the legislation; instead, they effectively took refuge in a narrow reading of the case law to perpetuate a formalist rather than functionalist construction of family.’ n Wikeley, ‘Fitzpatrick v Sterling Housing Association Ltd: Same-sex partners and succession to Rent Act tenancies’ (1998) 10 Child and Family Law Quarterly 191, 196. 35 36

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used therein, thus avoiding a narrow retrospective assessment of who came under the definition of ‘family’ at the time the legislation was enacted. According to the majority, while social developments had not altered the definition of the term ‘family’, they had altered its application: What has changed are the precise personal associations to which the concept [family] may now be applied. The essential meaning of the word has not changed . . . but changes in social habits and opinions may affect the propriety of its application to new circumstances.40

This approach, which prioritises function over form in an analytical framework which seeks to give effect to the core purpose of the legislation, has much to recommend it. indeed, it serves as a useful methodological template for the assignment of rights and obligations in other areas of family law.41 in the present case it allowed the majority to find in favour of the appellant, holding that as a matter of law the same-sex partner of a deceased tenant can establish the necessary familial link in order to succeed to an assured tenancy under paragraph 3(1). it is worth noting that both Lords Hutton and Hobhouse dissented on this point.42 Given the appellant’s claim that the relationship he shared with his partner was akin to that of a married couple or of those living together as husband and wife, Lord Hutton was of the view that if he were entitled to succession rights under the 1977 Act, this would have been conferred under paragraph 2(2) rather than as a family member of the deceased tenant under paragraph 3(1). As same-sex couples were not included within paragraph 2(2), Lord Hutton stated that it would be a ‘somewhat strained and artificial construction’ to hold that the appellant came within the definition of family member under paragraph 3(1).43 Fitzpatrick, above n 1, per Lord Clyde, 50. i have argued elsewhere that a functional approach to the conferment of rights and obligations in family law, which demotes the significance of relationship status in favour of functional indicators such as caregiving and emotional and financial inter-dependence, would produce more accurate results by transcending the assumed characteristics of relationships based on their form (see L Glennon, ‘obligations between Adult Partners: Moving from Form to Function’ (2008) 22 International Journal of Law, Policy and the Family 22 and ‘The Limitations of equality Discourses on the Contours of intimate obligations’ in J Wallbank, S Choudhry and J Herring (eds), Rights, Gender and Family Law (London, Routledge, 2009) 169). Such an approach would, in the first instance, identify the legislative objectives to be served, and then define the remit of legally significant relationships to give effect to these objectives, allowing the regulatory framework to ‘tailor definitions to suit particular contexts that actually meet the legislative purpose’, J Millbank, ‘The role of “functional family” in same-sex family recognition trends’ (2008) 20 Child and Family Law Quarterly 155. it would also help to break down the historic supremacy of blood and marital ties in family law. See R bailey-Harris, ‘Third Stonewall Lecture – Lesbian and Gay Family Values and the Law’ [1999] Family Law 560. 42 Fitzpatrick, above n 1, 55–66 and 66–74 respectively. 43 ibid 58. For a critique of this view see L Glennon, ‘Fitzpatrick v Sterling Housing Association Ltd: An endorsement of the Functional Family?’ (2000) 14 International Journal of Law, Policy and the Family 226, 238–40. The dissenting view of Lord Hutton is not entirely surprising. in the parliamentary activity of the House of Lords, Lord Hutton has voted against legislation conferring greater rights on gays and lesbians, eg, on 21 March 2007, he voted against the passage of the equality Act (Sexual orientation) Regulations 2007 which make it unlawful to discriminate on the grounds of sexual orientation, see Hansard, HL Debates, 21 March 2007, Col 1331. 40 41

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Lord Hobhouse also refused to regard the ‘homosexual lovers’ as members of the same family and felt that any change was a matter for Parliament and not the courts.44 Mcnorrie, describing the minority speeches as ‘tired and defeated’, said that they read ‘as if their authors knew that not only their colleagues, but also the sweep of history itself, were against them’.45

WAS FITZPATRICK A LAnDMARK DeCiSion?

This was the first time that the House of Lords accepted that same-sex couples can form a family unit. Thus, symbolically, it was an important judicial endorsement of gay and lesbian relationships which recognised that they can embody normative familial characteristics which were identified by Lord Slynn as mutual inter-dependence, sharing of lives, caring and love, commitment and support.46 The court’s emphatic declaration that transient relationships of a casual nature will not meet the requisite legal test for family membership helped to transcend the assumption that same-sex relationships, by their very nature, lack permanence and stability. by contrast, Lord nicholls recognised that where ‘sexual partners are involved, whether homosexual or heterosexual, there is scope for the intimate love and affection and long-term commitment which typically characterise the relationship of husband and wife’.47 The decision in Fitzpatrick can only be regarded as progressive, however, if one supports an assimilationist model of partnership recognition. That is, while the majority brought same-sex couples in stable, monogamous and committed relationships within the definition of the family, they did not disturb the prevailing understanding of the family or the functions which families are deemed to serve both internally and in society.48 This is a highly contested strategy within gay and lesbian politics since many suggest that it does little more than absorb gays and lesbians within the mainstream, not only undermining the goals of gay liberation but also affirming the use of marriage (and other status-based indicators such as civil partnerships) as the proxy for the conferment of rights and responsibilities.49 by contrast, anti-assimilationist scholars argue that the gay

Fitzpatrick, above n 1, 66–74. K Mcnorrie, ‘We are Family (Sometimes): Legal Recognition of Same-Sex Relationships after Fitzpatrick’ (2000) 4 Edinburgh Law Review 256, 263. 46 Fitzpatrick, above n 1, per Lord Slynn, 38. 47 ibid 44. 48 See A Diduck, ‘A Family by any other name . . . or Starbucks comes to england’ (2001) 28 Journal of Law and Society 290. Such a strategy endorses inherent assumptions about the exclusivity of sexual relationships and the mutual acceptance of legally enforceable duties of care and support between adult partners. 49 See P ettlebrick, ‘Since When is Marriage a Path to Liberation’ in S Sherman (ed), Lesbian and Gay Marriage: Private Commitments, Public Ceremonies (Philadelphia, Temple University Press, 1992). 44 45

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and lesbian reform agenda should be used to seek a more transformative vision of the family, and its relationship with the state.50 However, whilst accepting the concerns of anti-assimilationist protagonists, it is submitted that gay and lesbian emancipation does not have to be located within the absolutes of assimilation or anti-assimilation positions.51 To support the decision in Fitzpatrick (or strategies such as civil partnerships) does not represent an unqualified acceptance of existing norms. nor does it suggest that the current understanding of the family and its role within society remains unaltered or that the nuclear sexual family continues to occupy a privileged position in family ideology. in other words, the legal assimilation between same- and opposite-sex couples does not necessarily preclude a wider debate on the legal and social functions of the family and its interaction with the state. Moreover, considering the social backdrop of the historical disadvantage, prejudice and stereotype suffered by gays and lesbians, pursuing equality for same-sex relationships by assimilation with their heterosexual counterparts is a vital aspect of the reform process in order to legitimise fully such relationships in social consciousness.52 As such, it is submitted that the rights of gays and lesbians must be viewed as an issue for equalitydiscourse and not as the vehicle to pursue a more transformative ideology of the family. in light of this, the decision in Fitzpatrick can be viewed as both a progressive and positive development. Certainly the decision was publicly perceived as significant and it was reported in both the broadsheet and the tabloid newspapers. The Independent and Daily Mirror described it as a ‘landmark’ ruling.53 The Guardian headlined that ‘Lords’ gay ruling redefines the family’ and noted that the ‘significant victory’ could have ‘wide legal implications’.54 The Daily Mail reported the day after the ‘historic’ decision was handed down that ‘homosexual couples count as families in law’.55 The paper headlined that ‘Gays have same rights as married couples say Lords: Judges Give Homosexuals new Legal Status’.56 other tabloid news50 See, eg, the arguments outlined by Susan boyd, speaking in the Canadian context, in S boyd, ‘expanding the “Family” in Family Law: Recent ontario Proposals on Same Sex Relationships’ (1994) 7 Canadian Journal of Women and the Law 545. For a summary of the well-known assimilationst/anti-assimilationist debate which has been most vibrant in north American academic literature see ettlebrick, above n 49; Stoddard, ‘Why Gay People Should Seek the Right to Marry’ in Sherman, above n 49; n Hunter, ‘Marriage, Law and Gender: A Feminist inquiry’ (1991) 1 Law & Sexuality 9; n Duclos, ‘Some Complicating Thoughts on Same-Sex Marriage’ (1991) 1 Law & Sexuality 31; n Polikoff, ‘We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will not “Dismantle the Legal Structure of Gender in every Marriage” ’ (1993) 79 Virginia Law Review 1535. 51 See L Glennon, ‘Targeting the exclusionary impact of Family Law’ in M Maclean (ed), Family Law and Family Values (oxford, Hart Publishing, 2005) 157; L Glennon, ‘Displacing the Conjugal Family in Legal Policy – A Progressive Move?’ (2005) 17 Child and Family Law Quarterly 141 and L Glennon, ‘Strategizing for the Future through the Civil Partnership Act’ (2006) 33 Journal of Law and Society 244. 52 ibid. 53 burrell, above n 3 and ‘Gays win battle for equal housing rights’ The Mirror, 29 october 1999. 54 M Wells, ‘Lords’ gay ruling redefines the family’ The Guardian, 29 october 1999. 55 Doughty, above n 2. 56 ibid.

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papers similarly misinterpreted the legalities of the decision. For example, the Daily Express reported that ‘Gays get the Same Rights as Man and Wife’. 57 These headlines overlook the technicalities of the decision, in particular, the fact that it was limited to a specific provision of the 1977 Act and that it did not include same-sex couples within the category of de facto spouse but instead simply classed them within a residual and asexual category of family membership. While these legal nuances were oft-times overlooked in the public representation of the case, it is clear that in social consciousness the decision signified an important judicial endorsement of same-sex relationships. Academic commentary also recognised its significance. For example, Diduck noted that the decision is a ‘progressive and important one in that it is a clear statement by law legitimising relationships previously deemed illegitimate or unworthy of legal protection or respect’.58 on a personal level, the decision was of both practical and symbolic significance to Mr Fitzpatrick not only in allowing him to remain in the home he shared with his partner, but also in giving retrospective legal recognition to their relationship. Angela Mason, then executive director of Stonewall, said that ‘this is a wonderful victory for Martin and for all the lesbians and gay men in this country. The law lords clearly felt the discrimination experienced by same sex couples could not be justified’.59 A headline view of the case adds weight to this argument that the decision was premised on equality grounds and the desire to achieve parity in law between same- and opposite-sex relationships. However, the appeal was not run on discrimination grounds, or on the need to interpret the 1977 Act in line with human rights principles.60 This allowed the majority of the court to adopt a somewhat schizophrenic position by ruling in favour of Mr Fitzpatrick whilst denying that this was a case about the rights of same-sex couples or their legal status. instead, the majority presented it as simply a matter of context-specific statutory construction. Lord Clyde, who made it very clear that he was not analogising same- and opposite-sex relationships, said: it would be wrong to regard the present case as one about the rights of homosexuals. it is simply a matter of the application of ordinary language to this particular statutory provision in the light of current social conditions.61

Similarly, Lord Slynn emphasised that the questions the court had to consider were just ‘within the meaning of the Act’,62 and Lord nicholls also stressed the limited nature of the decision.63 There is some truth in these statements. it cannot be disputed that this was a context-specific case and that not all legislative provisions carry undefined terms which have the same scope for dynamic 57 58 59 60 61 62 63

A Hendry, ‘Gays get the Same Rights as Man and Wife’, Daily Express, 29 october 1999. Diduck, above n 48, 291. burrell, above n 3. Diduck, above n 48, 291. Fitzpatrick, above n 1, 53. ibid 33–34. ibid 46–47.

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judicial interpretation. However, even though the decision was technically confined to the provisions of the 1977 Act, its true significance must be measured against the prevailing social, legal and political landscape. it was only in 1967 that some, although not all, homosexual activity was de-criminalised by the Sexual offences Act.64 Since then, the development of same-sex rights in the UK has mirrored the ‘standard sequence’ of events usually associated with gay and lesbian emancipation.65 This sequence tends to start with the protection of individual rights, such as the equalisation of the age of consent, to recognising the partnership status of same-sex relationships. in this vein, baroness Deech observed how, since 1967, homosexuality in the UK ‘has moved from criminal status to legalisation, from legalisation to acceptance and equal respect with heterosexual relationships’.66 The location of the Fitzpatrick decision within this continuum of legal developments is noteworthy because it was the first time that the House of Lords recognised the partnership involved in same-sex relationships at a time when moves to protect the individual rights of gays and lesbians were just gathering momentum. For example, the age of consent for homosexual and heterosexual activity was only equalised in 2000,67 discrimination on the grounds of sexual orientation was not outlawed in the workplace until 2003,68 greater protection from homophobic hate crimes was developed in 2003,69 and it was only in the same year that the infamous section 28 was abolished.70 Thus, in 1999, the majority of the House of Lords pre-empted these developments by legitimising same-sex partnerships at a time when ‘official discourse’ still referred to them as ‘pretended family relationship[s]’.71 64 The 1967 Act legalised homosexual activity which took place, in private, between two consenting males over the age of 21. 65 K Waaldijk, ‘Standard Sequences in the Legal Recognition of Homosexuality – europe’s Past, Present and Future’ (1994) 4 Australasian Gay and Lesbian Law Journal 50; K Waaldijk, ‘Civil Developments: Patterns of Reform in the Legal Position of Same-Sex Partners in europe’ (2000) 17 Canadian Journal of Family Law 62. 66 R Deech, ‘Civil Partnership’ [2010] Family Law 468: transcript of the 5th Gresham College lecture (2009–10). See also S Cretney, Same-Sex Relationships: From ‘Odious Crime’ to ‘Gay Marriage’ (oxford, oxford University Press, 2006) and b Hale, ‘Homosexual Rights’ (2004) 16 Child and Family Law Quarterly 125. 67 The Sexual offences (Amendment) Act 2000 equalised the age of consent for homosexual and heterosexual activity which is 16 in england and Wales and 17 in northern ireland. 68 The employment equality (Sexual orientation) Regulations 2003, which implemented Council Directive 2000/78/eC, made it unlawful to discriminate on grounds of sexual orientation in employment and vocational training. 69 The Criminal Justice Act 2003 imposes a statutory requirement on judges to treat as an aggravating factor when sentencing, assaults involving or motivated by hostility based on sexual orientation (or presumed sexual orientation). 70 Local Government Act 2003, s 122 repealed the Local Government Act 1986, s 2A (known as s 28) which prohibited local authorities from intentionally promoting homosexuality or publishing material with the intention of doing so or from promoting teaching in schools of the acceptability of homosexuality as a pretended family relationship. 71 Mcnorrie, above n 45, 268–69. Although, at the time, some progress had already been made on same-sex rights, eg, in 2000 the Government lifted the ban on homosexuals serving in the armed forces following the ruling of the eCtHR that such a ban was unlawful, see Smith and Grady v

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As well as contrasting starkly with the demeaning representation of same-sex relationships in domestic dialogue under section 28, Fitzpatrick also contrasted with the jurisprudence of the european Court of Human Rights which, at the time, required respect for the ‘sexual identity of lesbians and gays but not their relationships’.72 When the Fitzpatrick decision was handed down in 1999, samesex couples were not regarded as having a family life with each other for the purposes of Article 8 of the european Convention on Human Rights (eCHR).73 This had not changed by 2001 when the european Court of Human Rights in Mata Estevez v Spain74 said that: [D]espite the growing tendency in a number of european states towards the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the contracting states, an area in which they still enjoy a wide margin of appreciation . . . Accordingly, the applicant’s [homosexual] relationship with his late partner does not fall within article 8 so far as that provision protects the right to respect for family life.75

it is only now, over a decade later, that the european Court of Human Rights has finally accepted that same-sex couples can be classed as ‘family’ for the purposes of Article 8. in Schalk and Kopf v Austria,76 the Court, noting the evolution of same-sex rights and social attitudes towards same-sex couples throughout europe, considered it: artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8. Consequently . . . a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would.77

Thus, when measuring the significance of Fitzpatrick, one must be aware of its location within this transitional period in the gay and lesbian reform agenda both domestically and in europe. Taking cognisance of this places a question mark over the majority’s self-assessment of the importance of the case. While technically it is not incorrect to say that Fitzpatrick was a context-specific case United Kingdom, App nos 33985/96 and 33986/96, (2000) 29 eHRR 493 and Lustig-Prean v United Kingdom, App nos 31417/96 and 32377/96, (2000) 29 eHRR 548. See also Re T, Petitioner [1997] SLT 724 where an adoption order was made in favour of a petitioner who was proposing to raise the child with his homosexual partner, and Re W (Adoption: Homosexual Adopter) [1997] 2 FLR 406 where it was stated that there was no reason why a partner in a lesbian relationship should be barred from adopting on the grounds of her sexuality. Following the Adoption and Children Act 2002, same-sex couples can now adopt jointly in england and Wales. [1999] 4 All eR 705. 72 b Hale, ‘Same-Sex Relationships and the House of Lords’ Incorporated Council of Law Reporting Lecture 2007, 14: www.lawreports.co.uk/AboutiCLR/LecturePDF/2007Transcript.pdf. 73 Article 8 states that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’. 74 App no 56501/00, 10 May 2001. 75 See also S v United Kingdom (1986) 47 D & R 274. 76 App no 30141/04, 24 June 2010. 77 ibid [94]. Although the Court held that this did not oblige states to offer legal marriage to same-sex couples and, thus, the margin of appreciation remains intact on this issue.

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of statutory construction, in terms of social consciousness it ‘conferred legitimacy’ on same-sex relationships contrasting with the ‘once perceived immorality of homosexuality’78 and with both domestic and european discourses which denied the familial status of gay and lesbian relationships.79 it seems, therefore, that a clear disconnect exists between the contemporary public perception and the retrospective assessment of the decision on the one hand, and how it was presented by the majority on the other. not only did the latter readily dismiss the claim that the appellant could succeed to spousal succession rights under paragraph 2(2), but they sought to undermine the significance of their finding that a same-sex relationship fell within the meaning of the ‘family’ by labelling this as nothing more than an exercise in statutory interpretation. Various doctrinal features of the case, discussed below, allowed them to position the decision in this way and to suggest that its importance was confined to its particular legislative context. First, even though the 1977 Act was considered by the legislature on two occasions, the term ‘family’ was left undefined.80 by contrast, the corresponding statutory regime which governs succession to public sector tenancies specifically defines the family members who are entitled to succeed by providing a sliding scale of successors based on the assumed proximity of their relationship with the deceased.81 However, in the context of private sector tenancies, the definition of the ‘family’ has been left to the judiciary where the legal test is based on the presence of a ‘broadly recognisable de facto familial nexus’ as perceived by the ordinary man or woman.82 Secondly, an analysis of pre-Fitzpatrick authorities reveals that the term ‘family’, since its first appearance as a general category in section 12(1)(g) of the increase of Rent and Mortgage interest (Restrictions) Act 1920, has always had a flexible meaning. For example in Price v Gould, 83 Wright J said that the word was not a technical term but instead was ‘a popular, loose and flexible expression’. Ties of consanguinity or affinity do not automatically confer family status and much depends on the characteristics of the relationship in question.84 one of the benefits of this approach is that the legal Mcnorrie, above n 45, 268–69. it is also worth noting that the decision was handed down before the enactment of the Civil Partnership Act 2004 which gave same-sex couples the choice to opt in to a formal state-sanctioned relationship structure and thus acquire marital-like rights and duties. 80 The 1977 Act was amended by the Housing Act 1980 when the primary class of successor was changed from ‘widow’ to ‘surviving spouse’. it was subsequently amended by the Housing Act 1988, which introduced the provision which accorded spousal succession rights to those ‘living together as husband and wife’. 81 See above n 31. 82 Ross v Collins [1964] 1 WLR 425. 83 (1930) 143 LT 333. 84 Various relationships have been held to come under the ambit of the provision, eg, brothers and sisters in Price v Gould (1930) 143 LT 333; brothers and sisters-in-law in Stewart v Higgins [1951] Estates Gazette Digest 353; and an adopted child in Brock v Wollams [1949] 1 All eR 715. However, ‘blood relations are not divided into fixed categories, with near relations ranking as family and more distant relations not’ Fitzpatrick, above n 1, per Lord nicholls, 41. Judgement calls are made on levels of intimacy and interdependency displayed in the relationship. An example of this can be found 78 79

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construction of the term ‘family’ has developed contemporaneously with social trends to reflect the ‘diverse ways people, in a multicultural society, now live together in family units’.85 The high-water mark position was the 1976 case of Dyson Holdings v Fox,86 where the Court of Appeal had to consider whether a committed heterosexual relationship came within the definition of family for the purposes of the 1977 Act. While in the earlier case of Gammans v Ekins87 Asquith LJ held that the tie of marriage was essential to family membership, the majority in Dyson distinguished this ratio by treating it as correct according to when it was decided, but inapplicable in the context of contemporary social conditions. Holding that cohabitants who were living together as man and wife were members of the same family, the Court of Appeal emphasised the dynamic nature of the term: between 1950 and 1975 there have been many changes in the law effected by statute and decisions of the courts. Many changes have their foundation in the changed needs and views of society. Such changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word ‘family’ is not fixed once and for all time. i have no doubt that with the passage of years it has changed . . . it is not restricted to blood relationships and those created by the marriage ceremony. it can include de facto as well as de jure relationships . . .88

While stressing the fluid nature of the term, the court also stated that unmarried couples did not deserve automatic recognition as family members and that those in casual and short-term relationships should be precluded from the definition. The core of the decision, however, was that ‘family’ is not restricted to relationships based on consanguinity or marriage. For the majority in Fitzpatrick, this proved to be influential. once it was accepted that a man and woman living together in a stable sexual relationship were members of the same family there was no justification for excluding same-sex couples whose relationships embodied the same characteristics. on the one hand, this appears to be a radical acknowledgement of the functional equivalence of same- and oppositesex relationships. However, it was not presented as such by the majority, who took the view that in adopting the general interpretative principle of Dyson it was simply an extension of the prevailing methodology. in the words of Lord nicholls: by contrasting Langden v Horton [1951] 1 Kb 666 with Evans v Ferguson (1956) 168 Estates Gazette 37. both cases concerned first cousins of approximately the same age who were attempting to succeed to a tenancy under the 1977 Act as a member of the original tenant’s family. in Langden it was held that the parties were not members of the same family, while this was distinguished in Evans on the basis that the claimant was 22 years younger than the tenant, had discharged filial obligations and had cared for the tenant when she was ill in the years preceding her death. Fitzpatrick, above n 1 per Lord nicholls, 43. Dyson, above n 17. 87 [1950] 2 All eR 140. 88 Dyson, above n 17 per James LJ, 1035. We have seen that the legislature has now included heterosexual cohabitants living together as husband and wife as a separate category of applicant (Sch 1, para 2(2) to the 1977 Act). 85 86

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[A]t the risk of repetition, it is necessary to stress the limited nature of the decision in this case. The courts have already decided that the undefined expression ‘family’ is to be given a wide meaning in the context of the Rent Acts. The courts have already decided that family includes relationships other than those based on consanguinity or affinity. To include same sex partners is to do no more than apply to them the same rationale as that underlying the inclusion of different sex partners. The decision goes no further than this . . .89

As Moran observes, even if the substance of a judicial decision involves a radical departure from existing orthodoxy, the politics of judicial interpretation means that it can be presented as continuity, evidenced by the application of previous court decisions.90 That judicial decision-making can be presented as the mere extension of prevailing norms allowed the majority in Fitzpatrick to ‘shroud change with the trappings of continuity’ and to represent their ‘radical support for same-sex couples as no change at all’.91 However, the substance of the decision involved a much more progressive legitimisation of same-sex rights than a mere interpretative construction would suggest. THe bASiS oF ReCoGniTion: THe CoUPLe’S SeXUAL PARTneRSHiP oR THe APPeLLAnT’S CAReGiVinG?

While holding that same-sex couples could be members of the same family, Lord Clyde added the following qualification: i should stress that the present case is to be distinguished from that of spouses or unmarried couples living in a relationship where marriage may be possible. i am not holding that a homosexual partnership is like or is akin to such a relationship.92

in light of this, and the fact that the couple were included within the asexual category of family membership, one might assume that it was the devotion and care provided by Mr Fitzpatrick which led the court to classify the partners as ‘family’ and that their sexual relationship was not material in this regard. The words of Mr Fitzpatrick after the decision was handed down add some weight to this view. He said: i only wish that it had not taken so long and that John was alive today to share this event with me . . . i was very, very surprised at the decision but i suppose i had to win. i cared for John because i loved him. i would do the same again, a thousand times over. i am chuffed.93

Fitzpatrick, above n 1, 46–47. L Moran, ‘What’s Home Got To Do With it? Kinship, Space, and the Case of Family, Spouse and Civil Partnership in the UK’ (2005) Yale Journal of Law and Feminism 268, 279. 91 ibid. 92 Fitzpatrick, above n 1, 53. 93 Doughty, above n 2. 89 90

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The juxtaposition between noting the fact of his ‘victory’ and his provision of care suggests that Mr Fitzpatrick supposed that the court was recognising or rewarding his caregiving rather than basing his family connection with Thompson on their sexual partnership. even his solicitor, Will Rolt, said that they had initially thought of constructing the proceedings as a carer’s case.94 However, this was not the basis upon which the case was run, and a careful reading of the speeches of the majority reveal that neither was this the basis upon which family membership was conferred. The couple were deemed to be family members as a result of, not in spite of, their sexual partnership. The majority, albeit denying that this was a case about same-sex rights, emphasised that this was a sexual partnership case in order to distinguish it from the line of authority which continues to deny platonic homesharers the right to succeed to an assured tenancy as a family member under paragraph 3(1). This thinking can be traced to the 1964 case of Ross v Collins 95 where the defendant acted as an unpaid housekeeper to the tenant after the latter’s wife had died, and received free accommodation in return. Although the defendant regarded the tenant as an elder relative (writing affectionate letters to him while on holiday) and was a devoted carer, the court held that family membership could not be established between them. Russell LJ said that: [T]wo strangers cannot . . . ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. nor in my view can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their relationship as tantamount to such. nor, in my view, would they indeed be recognised as familial links by the ordinary man.96

The inability of two persons who are unrelated by ties of consanguinity or affinity to establish the necessary familial nexus in the absence of a sexual relationship was subsequently endorsed by the House of Lords in Carega Properties SA v Sharratt.97 in this case the court held that a 75-year-old widow and a 24-yearold man, who lived together in a platonic relationship for nearly 20 years until the former’s death, were not family members for the purposes of the 1977 Act. This was so despite the fact that they referred to themselves as aunt and nephew. in line with Ross v Collins,98 the court held that two strangers in a platonic relationship, notwithstanding its length or stability, cannot be regarded as members of the same family. While in Fitzpatrick the dissenting judgments of Lords Guardian leader pages, above n 11. [1964] 1 WLR 425. 96 ibid per Russell LJ, 432. 97 [1979] 1 WLR 928. This was the only occasion in which the House of Lords had previously considered the meaning of family for the purposes of the Rent Act legislation, Fitzpatrick, above n 1 per Lord nicholls, 44. 98 Ross, above n 82. 94 95

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Hutton and Hobhouse felt that this decision precluded finding for the appellant, the majority did not regard it as a relevant precedent as the present case, by contrast, concerned a couple in a sexual partnership.99 Lord Clyde said that Fitzpatrick did not give rise to the problematic question of the ‘extent to which persons not in a relationship of sexual intimacy may qualify as members of a family’.100 Thus, while the care and devotion displayed by Mr Fitzpatrick was extremely compelling and may have swayed the majority in their deliberations to find for the appellant, in terms of legal doctrine it was the sexual partnership of the couple which allowed them to distinguish this case from the authority concerning platonic homesharers, who, it seems, despite the overtly functional approach taken, would still have difficulty in establishing the necessary familial nexus for the purposes of the 1977 Act.101 This is crucial when assessing whether the decision of the majority in Fitzpatrick represents continuity or change. Two pieces of information are important here. First, it was the couple’s sexual relationship which qualified them for family membership. Secondly, in terms of sexual relationships, it was already established that ‘a man and a woman living together in a stable and permanent sexual relationship are capable of being members of a family’.102 Lord nicholls, making the connection between these two propositions, said that: once this is accepted, there can be no rational or other basis on which the like conclusion can be withheld from a similarly stable and permanent sexual relationship between two men or between two women . . . Where sexual partners are involved, whether heterosexual or homosexual, there is scope for the intimate mutual love and affection and long-term commitment that typically characterise the relationship of husband and wife. This love and affection and commitment can exist in same sex relationships as in heterosexual relationships.103

Thus, within the majority’s functional analysis, heterosexual couples were regarded as the appellant’s relevant comparator and family membership was conferred because same-sex couples were deemed to be their equivalents. As we have seen, the majority stressed that this was simply an exercise in statutory interpretation, thus positioning the decision as one premised on continuity. However, the binary opposition between continuity and change rests on a legal fiction, as the decision in Fitzpatrick illustrates how judicial decision-making can be consistent with established doctrine whilst also representing radical change. on one view, the majority did not depart from prevailing ideology in terms of the functions which a family are deemed to perform and in borrowing the interpretative methodology of the Court of Appeal in Dyson. This method Fitzpatrick, above n 1 per Lord nicholls, 44. ibid 50. 101 Lord Clyde opined that the necessary familial bond, of love and affection in a permanent relationship, would be difficult to establish in the absence of an active sexual relationship or at least the ‘potentiality of having such a relationship’, ibid. 102 ibid per Lord nicholls, 44. 103 ibid. 99

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of interpretation may not have been new, but its application to same-sex couples was novel, and, within this interpretative analysis, same- and opposite-sex relationships were deemed to be functionally identical. not only was this an important counter-message to the prevailing official discourse which referred to homosexuality as giving rise to ‘pretended family relationships’,104 but, despite the majority’s declarations to the contrary, it also made the case ‘inescapably, about gay rights’.105 Any qualification to the long-term implications of the decision, from a technical perspective, could have been summed up by a simple observation that not all legislation, as currently drafted, would facilitate such a purposive and functional approach to statutory interpretation. However, making this point did not require an out-and-out denial of the significance of the case in the gay rights agenda. FITZPATRICK: A DeLibeRATe HoLDinG PoSiTion

This raises questions surrounding the true motives behind the majority’s representation of their decision. Given the timing of the decision in 1999, the majority may have felt that a stronger articulation of gay and lesbian rights would out-pace social attitudes and that, in light of the potential offered by the forthcoming Human Rights Act 1998,106 an incremental approach was the optimum strategic step. indeed, it seems that the timing of the decision not only intersected with major changes in gay and lesbian law reform, but also with the liberalisation of social attitudes towards homosexuality. The most recent british Social Attitudes Survey indicates that attitudes towards homosexual relationships have gradually liberalised since 1998.107 in 1983, 62 per cent of respondents to the survey thought that sexual relations between two people of the same sex were ‘always’ or ‘mostly’ wrong. This rose to 75 per cent in 1987 but steadily declined to 36 per cent in 2007. in 1999, the year of the Fitzpatrick decision, 49 per cent of respondents still felt that homosexual sex was wrong but, by 2003, this had dropped to 40 per cent.108 Thus, Fitzpatrick was decided not only during a transitional period in gay and lesbian law reform, but also at a time when See above n 70. R Sandland, ‘not “Social Justice”: The Housing Association, The Judges, The Tenant and His Lover’ (2000) 8 Feminist Legal Studies 227, 228. See also Diduck, above n 48, 291. 106 This Act made the provisions of the european Convention on Human Rights enforceable in domestic law. Under the Act, courts must interpret the law, as far as possible, in a way which is compatible with Convention rights or, if this is not possible, issue a ‘declaration of incompatibility’. 107 A Ross and A Sacker, ‘Understanding the dynamics of attitude change’ in A Park et al (eds), British Social Attitudes 2009–2010: the 26th Report (London, Sage Publications, 2010) 116. 108 The researchers found that these social attitudes were largely dependent on a person’s age or generation as younger generations tended to be more accepting and tolerant. As such, the ‘predominant mechanism of change’ was a ‘generation research effect’ which ‘represents changes in attitudes at the level of the nation that occur not because individuals change, but because the attitudes of older, dying generations are being superseded by the attitudes of the young’ (115). However, this was also combined with a ‘period effect’ which suggests that all age groups have gradually become more liberal in their attitudes to homosexual relationships since 1998 (122). 104 105

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social attitudes to homosexuality were evolving. in light of this it can be argued that the court, for strategic reasons, downplayed the significance of the decision whilst simultaneously laying the doctrinal foundations for a subsequent discrimination-based claim under the then-imminent Human Rights Act which would ultimately have greater transformative potential. indeed, writing not long after the case, Diduck speculated that: What may have happened . . . is that the court in Fitzpatrick acted cannily with a view to the longer term. if issues of social justice were indeed on the court’s agenda, perhaps the Lords found as they did as a first step to future Human Rights Act applications.109

Several points can be made to reinforce this claim. First, it can be argued that the majority could have gone further by approving the approach of Ward LJ in the Court of Appeal in re-interpreting the definition of those living together as ‘wife’ and ‘husband’ under paragraph 2(2) to include same-sex couples.110 However, none of the majority speeches engaged in any meaningful way with this question. Lord nicholls rejected this argument in one short paragraph by saying that the terms ‘wife’ and ‘husband’ are gender-specific and connote a biological distinction between the parties.111 Lord Slynn was similarly dismissive of this first ground of appeal, and he accepted as correct the decision in Harrogate Borough Council v Simpson.112 He did not address the reasoning of Ward LJ, simply saying that if the legislation had used the non-gender specific noun ‘spouse’ instead of ‘wife’ and ‘husband’, then the matter might be more debatable as suggested by Mr Fitzpatrick’s counsel. instead, for Lord Slynn, the use of gender-specific words meant that the provision covered only opposite-sex couples, and was intended to do so by Parliament. Lord Clyde took the same view although he did refer, albeit briefly, to the alternative view of Ward LJ.113 interestingly he did not reject the latter’s methodology and considered the possibility that the use of the word ‘as’ within paragraph 2(2) could fuel an analogy-based claim.114 However, he concluded that: even if the word ‘as’ does not require a complete equation, nevertheless the approximation must be a closer one than can exist in the case of a homosexual couple . . . The paragraph in my view is simply seeking to cover situations where the couple are husband and wife in every respect except that they are not married. Thus merely living in the same household will not be sufficient; the manner of their living together and the reason for their so doing may also have to be explored.115

109 110 111 112 113 114

n 29. 115

Diduck, above n 48, 298. See text to n 29. Fitzpatrick, above n 1, 43. (1984) 17 HLR 205. See text to n 30. Fitzpatrick, above n 1, 47. Such as that which led to the approach adopted by Ward LJ in the Court of Appeal, see text to Fitzpatrick, above n 1, 47–48.

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However, this is somewhat anomalous. Requiring an exploration of the ‘manner of’ the parties’ cohabitation suggests a functional approach to the interpretation of paragraph 2(2). We have seen that such an approach was taken when interpreting paragraph 3(1) and that, within this analysis, it was the couple’s sexual partnership alongside the permanence and stability of their relationship which proved to be crucial. if one accepts that Lord Clyde’s dictum suggests that a function-based analysis is permissible when interpreting paragraph 2(2), these functional characteristics of the couple’s relationship could have been transposed to deliberation under this provision where the plausible interpretation of Ward LJ in the Court of Appeal could then have been given greater consideration. This is a surprising level of non-engagement with an important issue that was raised by the appellant’s counsel. With respect, it is especially surprising that Lord Slynn, in particular, did not engage in a more considered way with the question given that he had been known to take a liberal approach to social issues. As noted in one of his obituaries: if Slynn’s judicial output over his 10 years in the Lords was always sound and expressed with notable clarity, mercifully devoid of prolixity, on social issues he displayed a distinct brand of liberalism.116

For example, along with Lord Mustill he dissented in the well-known case of R v Browne,117 which dealt with the criminality of sado-masochism. The House of Lords held by a three to two majority that the fact that the parties who had engaged in sado-masochism were all consenting adults was no defence to a charge of assault causing actual bodily harm. by contrast, Lord Slynn held that sado-masochism was carried out consensually and that the parties were simply indulging in sexual gratification. one might also find it surprising that, when considering the appellant’s claim under paragraph 2(2), Lord Slynn made no reference to human rights principles. His Lordship had particular experience and expertise in dealing with european law. From 1981 he was Advocate General at the european Court of Justice, a role which he held for eight years, and from 1988 until 1992 he was a judge in the european Court of Justice. As a member of the House of Lords, he served as Chairman of the Select Sub-Committee on european Law and institutions. Given his expertise in this area, one might have expected Lord Slynn to raise human rights arguments surrounding the exclusion of same-sex couples from the definition of ‘spouse’. even though Fitzpatrick was decided prior to the enactment of the Human Rights Act 1998 and thus the court was not compelled to have regard to the principles of the eCHR it could, at its discretion, consider its provisions when interpreting an ambiguous statutory provision.118 L blom-Cooper, obituary: ‘Lord Slynn of Hadley’ The Guardian, 21 May 2009. [1993] 2 All eR 75. 118 Blackstone’s Guide to the Human Rights Act makes it clear that even before 1998 Act, principles of the european Convention on Human Rights could have a direct impact on the development 116 117

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it can be argued that the meaning of the phrase ‘living together as husband and wife’ under the 1977 Act was ambiguous. First, the legislation did not specify with certainty that the parties to the deemed spousal relationship had to be respectively male and female. The provision says: [A] person who was living with the original tenant as his or her wife or husband shall be treated as a spouse of the original tenant.119

by contrast, other legislative provisions are much more specific about the respective gender of the parties. For example, de facto spouses in domestic violence legislation, prior to amendment by the Civil Partnership Act 2004, were defined as ‘a man and woman who, although not married to each other, are living together as husband and wife’.120 Secondly, a functional approach had been taken for some time when interpreting paragraph 3(1).121 There is no reason to conclude definitively that Parliament intended a flexible and dynamic approach be taken for one provision of the 1977 Act but not another.122 indeed, Ward LJ, by relying on the use of the word ‘as’ in paragraph 2(2) offered a viable function-based construction. on this point, Mcnorrie observes that paragraph 2(2) is only unambiguous if the reasoning of Ward LJ in the Court of Appeal was ‘wholly without rationality’, which, he concludes, it was not.123 The lack of judicial consensus on the issue at appellate level, at the very least, gives rise to a certain amount of ambiguity. However, neither Lord Slynn nor Lord nicholls considered the reasoning of Ward LJ, and Lord Clyde did so only fleetingly. Thus, the majority did not offer any compelling reason to reject his dissenting judgment. However, it may have been Lord Slynn’s expertise in european law which prevented him from raising human rights arguments in relation to this particular question, as the jurisprudence of the european Court of Human Rights, at this stage, may not have been helpful to the appellant’s claim. We have already seen that, at the time of the Fitzpatrick decision, the european Court of Human Rights did not recognise same-sex couples as having a ‘family life’ for the purposes of Article 8.124 More importantly perhaps, the decision was handed down of domestic law through the use of legal arguments based on Convention principles in english courts. The judiciary could directly consider the provisions of the Convention in certain circumstances including as an aid to the construction of legislation in cases of ambiguity (eg, R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696); to establish the scope of the common law where it is developing or uncertain; to inform the exercise of judicial discretion and to inform decisions on Community law taken by domestic courts. J Wadham, H Mountfield and A edmundson, Blackstone’s Guide to the Human Rights Act 1998, 3th edn (oxford, oxford University Press, 2003) 1.1.2. Rent Act 1977, Sch 1, para 2(2). Family Law Act 1996, s 62(1). The Civil Partnership Act 2004 (Sch 9, para 13) amended this provision to include those living together as if they were civil partners. 121 See text to n 85. 122 See also Mcnorrie, above n 45, 278–79. 123 ibid 266. 124 See text to n 75. 119 120

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two months before the european Court of Human Rights recognised for the first time in Salgueiro da Silva Mouta v Portgual125 that discrimination on the grounds of sexual orientation is prohibited under Article 14 of the eCHR. The powerful combination of the principle in Salgueiro and the Human Rights Act, once enacted, meant that domestic legislation could no longer distinguish on the grounds of sexual orientation without an objective or rational justification.126 This changed the nature of the interrogation required by, for example, the appellant’s first ground of appeal in Fitzpatrick. As Mcnorrie points out: So the question for the courts in interpreting phrases like ‘living together as husband and wife’ is not (as it was in Fitzpatrick) whether Parliament intended to include or exclude same-sex couples, but rather whether an inclusive definition most closely consists with the non-discrimination requirements of the european Convention.127

Thus, rather than simply being a matter of abstract statutory construction, the question became one of whether the interpretation of legal provisions which had the effect of excluding same-sex couples was legally valid when considered through the lens of human rights law.128 in light of this, it can be argued that Lord Slynn wished to leave the legality of paragraph 2(2) to another day when it became the subject of discrimination-based litigation under the Human Rights Act, and when Convention jurisprudence had evolved on the issue of same-sex rights. on this latter point he noted that ‘these cases are still in an early stage of development of the law and that attitudes may change as to what is acceptable throughout europe’.129 in addition, Lord Slynn observed that ‘when considering social issues in particular judges must not substitute their own views to fill gaps’.130 it is likely that endorsing Ward LJ’s interpretation of paragraph 2(2) would have been open to this criticism and thus Lord Slynn may have felt that this argument was better framed as a discrimination claim under the Human (2001) 31 eHRR 47. Such justification being required in order to ensure compliance with Art 14 of the eCHR. See text following n 138. 127 Mcnorrie, above n 45, 265. Mcnorrie (259–60) points to examples from other jurisdictions where such a phrase was successfully challenged on constitutional equality grounds. See, eg, M v H (1999) 171 DLR (4th) 577 where the Canadian Supreme Court held the exclusion of same-sex couples from the definition of ‘spouse’ which included ‘parties living together as husband and wife’ subjected same-sex couples to less favourable legal treatment relative to their heterosexual counterparts which amounted to differential treatment on the basis of sexual orientation. This was held to be in violation of the non-discrimination provisions of the Canadian Charter of Rights and Freedoms (s 15). in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (CCT10/99) [1999] ZACC 17, the South African Constitutional Court held that while the use of word ‘spouse’ in legislation could not be interpreted to include same-sex couples, the latter’s exclusion amounted to discrimination on the grounds of sexual orientation which was in violation of the South African Constitution, s 9(3) which requires the state to respect the dignity of every person. 128 Mcnorrie, above n 45. 129 Fitzpatrick, above n 1, 39. it is also unlikely that approving the reasoning of Ward LJ would have attracted enough support in the Lords. indeed, the decision on para 3(1) was reached by a narrow majority and one could speculate that it is unlikely that Lord Clyde, in light of his strong denial of any assimilation between same- and opposite-sex couples, would have endorsed this view. 130 Fitzpatrick, above n 1, 33. 125 126

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Rights Act when judicial powers of interpretation were bolstered by section 3(1) of that Act.131 in taking this approach, Lord Slynn did not have to sacrifice justice in the present case because he was still able to confer succession rights on Mr Fitzpatrick since he made it clear that failing under paragraph 2(2) was not detrimental to a claim under paragraph 3(1).132 However, he clearly had his eye on the future legality of this as he concluded his dismissal of the appellant’s first contention by saying: Whether that result is discriminatory against same-sex couples in light of the fact that non-married different sex couples living together are to be treated as spouses so as to allow one to succeed to the tenancy of the other may have to be considered when the Human Rights Act is in force.133

LiTiGATinG UnDeR A HUMAn RiGHTS PARADiGM

it did not take long for a human rights challenge to be made. in Ghaidan v Godin-Mendoza134 the question was whether paragraph 2(2), as interpreted by the House of Lords in Fitzpatrick, was incompatible with the eCHR. As we have already seen, the conferral of an assured but not a statutory tenancy on a survivor to a same-sex relationship had practical as well as ideological consequences.135 The question was whether this differential treatment constituted unjustifiable discrimination on the grounds of sexual orientation under Article 14 of the eCHR read in conjunction with Article 8.136 The House of Lords held that it did. Accepting that both opposite- and same-sex relationships can be marriage-like in nature, the court concluded that any difference in treatment between the two was based upon the parties’ sexual orientation, which had no objective or reasonable justification. Using their interpretative powers under section 3 of the Human Rights Act, the statutory category of those who ‘live together as husband and wife’ was interpreted to include same-sex couples.137 131 Human Rights Act 1998, s 3(1) provides that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. 132 Fitzpatrick, above n 1, 34. 133 ibid. 134 [2004] UKHL 30. 135 See text to n 21. 136 Article 14 reads that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. While sexual orientation is not listed as a prohibited ground of discrimination, it has now been included as such by the eCtHR in Salgueiro da Silva Mouta v Portugal (2001) 31 eHRR 47. Thus Lord Slynn was correct in his prediction that Convention jurisprudence would evolve on this issue, see text to n 129. 137 For an interesting dialogue on the best use of human rights principles to advance the legal status of same-sex couples see J Murphy, ‘Same-sex Marriage in england: A Role for Human Rights [2004] 16 Child and Family Law Quarterly 245 and n bamforth, ‘The Role of Philosophical and Constitutional Arguments in the Same-Sex Marriage Debate: A Response to John Murphy’ [2005] 17 Child and Family Law Quarterly 165.

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Several questions arise in an Article 14 interrogation.138 First, do the facts fall within the ambit of one or more of the Convention rights? Secondly, was there a difference in treatment in respect of that right between the complainant and his/ her comparators? Thirdly, were the complainant and the comparators in an analogous situation? Fourthly, was the difference in treatment objectively justifiable? it was common ground between the parties that one of the Convention rights was engaged in this case. everyone has a right to respect for their home, which brought the case within the ambit of Article 8.139 it was also common ground that there was a difference in treatment between a survivor of a sameand opposite-sex relationship. Thus, as noted by baroness Hale, the core issues were whether there was any difference in treatment between those in an analogous situation and, if this was answered in the affirmative, whether this could be justified.140 on both counts, Fitzpatrick proved to be an influential doctrinal backdrop. on the first point the landlords argued that there was no differential treatment ‘between two cases which ought to be treated alike’,141 on the grounds that same- and opposite-sex relationships are intrinsically different. it was argued that same-sex couples cannot be equated with ‘family’ in the traditional sense as they are unable to have children with one another.142 This argument was given short shrift. The legislation already gave protection to unmarried opposite-sex couples regardless of the presence of children143 and thus it was clear that neither marriage, parenthood or ‘procreative potential’ was a prerequisite to protection under paragraph 2(2).144 The decision in Fitzpatrick further undermined the landlord’s argument. Drawing upon the broad social policy of the legislation, Lord nicholls relied upon his own dictum in Fitzpatrick to hold that the security of tenure provided by paragraph 2(2) for the survivor of a heterosexual relationship, which he considered to be an important and legitimate social aim,145 equally applied to survivors of same-sex relationships: A homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together. They have an equivalent relationship. There is no rational or fair ground for distinguishing the one couple from the other in this context: see the discussion in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, 44. 146

138 See Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 and R (Carson) v Secretary of State for Work and Pensions [2003] eWCA Civ 797. 139 See n 73. 140 Hale, above n 72, 6. 141 ibid. 142 Ghaidan, above n 21, [15]. 143 Rent Act 1977, Sch 1, para 2(2). 144 ibid per Lord nicholls, [16]. His Lordship had already made the same point in Fitzpatrick, above n 1, 42. 145 Ghaidan, above n 21, [17]. 146 ibid.

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in light of this, the court held that there was differential treatment between those in an analogous relationship. The main question, therefore, was whether this could be justified. Differential treatment can only be justified under Article 14 if it pursues a legitimate aim and the method of achieving this is reasonably proportionate to the aim sought to be realised. Convention jurisprudence also makes it clear that there must be cogent reasons to justify differential treatment on the ground of sexual orientation.147 it was argued by the landlord that the aim in this case was the protection of the ‘traditional family’. even though, in line with the jurisprudence of the european Court of Human Rights, this may be a legitimate aim in certain contexts,148 the argument that the exclusion of same-sex couples was necessary to achieve this could ‘hardly survive the decision in Fitzpatrick’ for a variety of reasons.149 First, the decision in Fitzpatrick changed the nature of this question. As it was now established that same-sex couples could succeed to assured tenancies under the 1977 Act,150 it could not be alleged that giving succession rights per se to such couples would undermine the ‘family’. instead the question became one of whether the policy of protecting the family required withholding statutory, but not assured, tenancies from survivors of same-sex partnerships. This much narrower form of differential treatment, which was created by the Fitzpatrick decision, helped to undermine the landlord’s argument. if Fitzpatrick had never occurred or the majority had refused to bring same-sex couples within paragraph 3(1), leaving the court in Ghaidan to start from a point of non-inclusion, the argument that giving same-sex couples succession rights under the legislation would undermine the rights of landlords in the private sector, and of the family, may have been strengthened. by contrast, what legitimate aim was to be served by depriving a same-sex partner of a statutory but not an assured tenancy?151 Secondly, the majority in Fitzpatrick recognised that the family, in this context, has a fluid and flexible meaning which ‘sounds a strong warning against drawing any conclusions as to exactly who is excluded by an assumed policy of protecting “the family”’.152 Thirdly, that same-sex couples were already regarded as capable of forming a family unit undermined the argument that their exclusion was necessary to protect the family. indeed, how could the inclusion of same-sex couples threaten something of which they were already deemed to be a part?153 Finally, the traditional family in this context could not See, eg, Fretté v France (2003) 2 FLR 9 and Karner v Austria, above n 33. See Karner, above n 33, [40]. 149 This was noted by buxton LJ at the Court of Appeal stage in Ghaidan: Mendoza v Ghaidan [2002] eWCA Civ 1533, [25]. 150 Under Sch 1, para 3(1). 151 As noted by buxton LJ in the Court of Appeal in Ghaidan, above n 149, [20]. 152 ibid. 153 in Fitzpatrick, Lord Slynn had dismissed the suggestion that the exclusion of same-sex couples from succession rights was necessary to protect the family, Fitzpatrick, above n 1, 40. At the Court of Appeal stage in Ghaidan, buxton LJ relied upon this dictum to conclude that ‘even if the Commission had been right in S v United Kingdom in thinking that the policy of paragraph 2 is to 147 148

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be based on marriage as both the legislature and the judiciary had conferred succession rights on de facto relationships and so ‘what was in issue here was a difference in treatment between two kinds of non-marital relationship’.154 on this point, it was already part of judicial orthodoxy that the essence of opposite-sex relationships could be replicated in same-sex relationships. Thus, the decision in Fitzpatrick allowed the court in Ghaidan to assume rather than seek to establish the functional equivalence of same- and opposite-sex relationships and, once this was accepted, any rational basis for distinguishing between them disappeared. it has already been pointed out that Lord nicholls relied upon his own dictum in Fitzpatrick to refute the argument that same- and opposite-sex relationships were intrinsically different when considering whether they were in an analogous situation for the purposes of Article 14.155 When deliberating on the subsequent justification question required by Article 14, Lord Rodger of earlsferry similarly relied upon the majority speeches in Fitzpatrick to evidence the functional equivalence of same- and opposite-sex relationships.156 He said: What these passages [from Fitzpatrick] make clear, however, is that a long-term homosexual relationship is to be treated as being the same as a long-term heterosexual relationship in all respects save in sexual terms. There is no material difference between them, so far as membership of the original tenant’s family is concerned for the purposes of the Rent Act.157

in light of this, he opined that the only factor which prevented the majority in Fitzpatrick from holding that a homosexual partner could not be regarded as a surviving spouse was the linguistic drafting of paragraph 2(2), which prevented an updated meaning being ascribed to the term, unlike that facilitated by the undefined term ‘family’ in paragraph 3(1). it was not due to any functional difference between these relationships. This recognition was of great significance and, according to his Lordship, ‘must be the starting point of any consideration of the matter in the present case’.158 in this respect it seems that the court in Ghaidan accorded more weight to the decision in Fitzpatrick than the majority’s own assessment of it. Given the already accepted functional assimilation between same- and opposite-sex relationships, the only reason for their differential treatment was based upon sexual orientation, a position which had no objective or reasonable justification. Thus all five Law Lords concluded protect the family, that assumption could not, after Fitzpatrick, be used to support an argument that the exclusion of homosexual couples from the protection of paragraph 2 is necessarily or by definition not discriminatory’ [25]. Hale, above n 72, 8. See n 146. 156 in particular his Lordship referred to the dicta of Lords nicholls, Slynn and Clyde, above n 1, 44, 38–39 and 51–52 respectively. 157 Ghaidan, above n 21, [127]. baroness Hale also accepted that ‘[h]omosexual relationships can have exactly the same qualities of intimacy, stability and interdependence that heterosexual relationships do’ [139] and [142]. 158 ibid [127]. 154 155

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that treating the survivors of homosexual partnerships less favourably than survivors of heterosexual partnerships under the 1977 Act violated the principles of the Convention.159 one should not underestimate the importance of the decision in Ghaidan. Although the analogy-based claim related to a specific statutory provision, it called into question the legitimacy of other provisions which conferred rights on unmarried opposite-sex but not same-sex couples.160 Further, in light of the fact that under the Convention, differences based on sexual orientation can only be justified by ‘convincing and weighty’ rationale,161 subsequent courts may have found it ‘difficult to justify differential treatment in similar cases between what had been judicially accepted as functionally synonymous relationships’.162 While there was significant mileage in the analogy-based litigation strategy employed in Ghaidan, it should be remembered that the decision in Fitzpatrick helped to create the perfect conditions to aid the success of this claim. indeed, the combination of Fitzpatrick and Ghaidan helped to bring same-sex partnership rights within the mainstream political agenda, thus creating a cumulative process of legal assimilation where the distinctions between opposite- and same-sex couples were erased. This culminated in the passage of the Civil Partnership Act 2004 which followed the assimilationist model of relationship recognition by giving same-sex couples the choice to opt-in to a formalised relationship structure which bestowed marital-like rights and duties.163 159 Lord Millet concurred on this point but dissented on whether the Rent Act 1977, Sch 1, para 2(2) could be re-interpreted in a manner which was compliant with the Convention. Lord Millet thought that it was not possible to interpret the phrase ‘a person who was living with the original tenant as his or her wife or husband’ to include the survivor of a same-sex relationship. The other four Law Lords disagreed and held that, using their interpretative powers under the Human Rights Act 1998, s 3(1) the provision could be so interpreted. 160 R bailey-Harris and J Wilson, ‘Mendoza v Ghaidan and the Rights of De Facto Spouses’ [2003] 33 Family Law 575. 161 Karner v Austria, above n 33, [42]. 162 Glennon, ‘The Limitations of equality Discourses’ above n 41, 171. 163 As well as creating a civil partnership scheme, the Civil Partnership Act 2004 also amended existing legislation (such as the Rent Act 1977 and the inheritance (Provision for Family and Dependants) Act 1975) which refers to persons ‘living together as husband and wife’ to include those ‘living together as if they were civil partners’. While obligations between civil partners are based on marriage, same-sex marriage remains unlawful and it has been held that this is not in violation of the principles of the Convention, Wilkinson v Kitzinger [2006] eWHC 2022 (Fam). See also Schalk and Kopf v Austria App no 30141/04, 24 June 2010. indeed, the decision of Sir Mark Potter in Wilkinson v Kitzinger on the contentious issue of same-sex marriage is a disappointing one which marks a retreat from the potential offered by the previous jurisprudence of the House of Lords in both Fitzpatrick and Ghaidan. Potter P relied upon the assumed differences between heterosexual and homosexual relationships to justify the continued denial of marriage to the latter, [121]. While prefacing his comments with the observation that same-sex relationships are not inferior, he held that marriage is a heterosexual institution whose primary (although not exclusive) aim is procreation in a family environment where children are nurtured by both maternal and paternal influences, [118] and [120]. To allow same-sex couples to marry would, he concluded, ‘fail to recognise physical reality’, [120]. not only was his contention that this corresponds with social and legal views in england and across europe unfounded, but his dictum is at odds with prior jurisprudence which emphasised that procreation is not a pre-requisite for marriage (see Lord nicholls and baroness Hale in Ghaidan, above n 21, [16] and [141] respectively). in addition he,

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ConCLUSion

The decision of the House of Lords in Fitzpatrick, which pre-dated the enactment of the Human Rights Act, represented a powerful endorsement of the sexual partnership of gay and lesbian relationships at a time when such relationships were not fully legitimised either in law or social consciousness. However, it was not regarded as such by the majority, who noted that, as the decision simply utilised a functional method of legal recognition which was already part of established legal doctrine, it was simply an exercise in statutory interpretation. This, however, misrepresents the significance of the decision in the gay and lesbian reform agenda. it has been suggested that this was a deliberate positioning tactic of the majority who wished to lay the doctrinal foundations for a future challenge on human rights grounds whilst also trying to ensure that this decision in 1999 did not out-pace social attitudes towards gay and lesbian rights. This was achieved by establishing the functional equivalence between same- and opposite-sex relationships to confer succession rights on Mr Fitzpatrick not as a de facto spouse, but as a member of his partner’s family. Classification within this category allowed the court to mask the manner in which they assimilated same- and opposite-sex relationships, but a careful reading of the decision reveals this as its core. indeed, this was the interpretation accorded to it by the majority judges in Ghaidan who relied upon dicta from Fitzpatrick to declare rather than seek to establish the functional similarity between these relationship-types. once this was accepted, the differential treatment complained of could only be based on the parties’ sexual orientation which, given the broad social policy of the 1977 Act and Convention jurisprudence, had no rational justification. Lord Slynn, one of the majority judges in Fitzpatrick, once remarked that it was most appropriate for a law lord to be offered fudge when coffee was served.164 Drawing on this analogy it is suggested that the ruling of the majority in Fitzpatrick was a carefully crafted ‘fudge’, achieving justice for the appellant whilst simultaneously creating the conditions for a successful discrimination-based claim under the Human Rights Act 1998 which ultimately had greater transformative potential.

unfortunately, relies upon the idea that marriage is defined by ascribed gender roles, a notion which baroness Hale rejected in Ghaidan. in this sense the reasoning of Potter P is more in line with the dissenting views of Lord Millet in Ghaidan who opined that the institution of marriage is inherently heterosexual. 164

obituary: ‘Lord Slynn of Hadley, english Law Lord’ The Scotsman, 1 May 2009.

14 A Late Instalment in a Long Story ELIzAbEth CookE*

thE FINAL ChAPtER

I

hAvE thE PRIvILEgE of writing the final chapter in this collection, and of commenting on the most recent of the cases selected by the editors. It is certainly not history; it is so recent that any comment about the personal lives of the protagonists is clearly off-limits. It is a remarkable decision – not for its content, which (save in two respects, to be discussed) was wholly unremarkable, but because of when it happened. the law relating to the division of matrimonial assets on divorce in England and Wales has developed over a long period. It can be presented as a story in three or four instalments, because the decision in White v White1 is the third instalment; there may or may not be a fourth. It is odd that it is the third instalment rather than forming part of an earlier one, and that that third instalment came so late (and in particular, that it came 30 years after the enactment of the statutory provision whose meaning it elucidates). In the discussion that follows I look at the reasons why it came when it did – neither sooner nor later – and why, despite being a cliff-hanger, it may or may not be completed by a final episode. thE FIRSt INStALMENt: SEPARAtE PRoPERtY FoR SPoUSES

Every family lawyer knows that in England and Wales there operates a system of separate property for spouses; marriage and civil partnership have no effect upon the property rights of spouses. It is also well-known that the origin of that system lies in the statutes generally referred to as the Married Women’s Property Acts of 1882. before that series of statutory reforms, a married woman could not hold the legal title to property; it passed to her husband on her marriage. * I write here in my personal capacity and my paper does not reflect the views of the Law Commission. I am grateful to my colleague Matthew Jolley for reading and commenting upon a draft of this chapter; all errors and infelicities are my own. 1 [2000] UkhL 54; [2001] 1 AC 596.

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After reform, her property rights were unaffected by marriage; she retained, and could acquire, her own.2 Although at that date many European jurisdictions operated systems of community of property, so that marriage ensured that a couple were jointly entitled to all that they owned, the norm was for the powers of management of that property to be vested in the husband.3 So although the pre-1882 system was somewhat antiquated, the post-1882 regime was progressive in giving financial independence to wives – or, rather, to those very few wives who owned property. to those who did not, of course, it gave nothing. Moreover, what the regime established by the Married Women’s Property Acts did not do was to make any provision for adjustment of property rights when the marriage came to an end on divorce. Divorce was a rarity, and the 1882 reform was not concerned with it. Women with their own earnings or property, who were the main beneficiaries of the reform, must have been among those least troubled by the absence of any provision for the sharing of property on divorce because they, at least, had something of their own. For those who had nothing, divorce meant, potentially, destitution. the English regime therefore stood in stark contrast to the community regimes of continental Europe, which provided for joint ownership of property during marriage and also for the equal division of that jointly owned property on divorce. thE SECoND INStALMENt: DIvoRCE REFoRM AND ItS AFtERMAth

that first instalment in the story, as presented here, was relatively simple; the second is more complex. the twentieth century featured a long series of family law reforms, as the law struggled to keep up with a dramatically changing society and with rapidly evolving views of family life. In Europe, a number of jurisdictions – but by no means all – moved from a system of immediate community of property, whereby some or all of a couple’s property is jointly owned during marriage, to one of deferred community, whereby property is pooled and shared only on divorce, death or bankruptcy.4 one by one, the European regimes were also reformed to remove the husband’s management prerogative.5 the English 2 Note that the Married Women’s Property Act 1870 enabled a married woman to keep her own earnings, and gave her title to various investments made in her name; as a corollary, it made her liable to the parish for the maintenance of her husband if she had her own property. 3 So Napoleon’s French Civil Code of 1804 provided, at art 1421, ‘Le mari administre seul les biens de la communauté. Il peut les vendre, aliéner et hypothéquer sans le concours de la femme’: the husband alone administers the community goods. he can sell, alienate or mortgage them without his wife’s agreement. 4 Sweden was the first to do this, in the Swedish Marriage Code of 1920. 5 this reform seems to have happened surprisingly late in various jurisdictions: in belgium in 1976, eg, and in France in 1985. See P Malaurie and L Aynès, Les Régimes Matrimoniaux (Paris, Defrénois, 2004) paras 400–05. In South Africa, the rule giving the husband control over his wife’s property was abolished in 1993: see Matrimonial Property Act 88 of 1984, s 11 as amended.

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story was also one of change – Stephen Cretney’s history gives us a panoramic view6 – but the sharing of property on divorce was not among the reforms achieved. The Pressure for Change Legislative provision was made in 1938 for there to be a transfer of matrimonial property when the marriage came to an end on death, in the event that a spouse was disinherited by will, or inadequately provided for by the rules of intestacy.7 but the reform of financial provision on divorce came much more slowly, and by the late 1960s was long overdue. the availability of what we now call ancillary relief was very limited, and was supposed to consist only of a limited entitlement to maintenance; but the power to vary a marriage settlement8 made it possible for the judges to effect some limited sharing of family property, by stretching language and concepts so as to regard a jointly-owned family home as a marriage settlement.9 It did not go unnoticed that marriage was a very bad deal indeed, financially, for the party who stayed at home (as most wives did) to look after the children: the cock bird can feather the nest precisely because he does not have to spend most of his time sitting on it.10

the Law Commission noted that by the end of the 1960s women were ‘in effect’ saying that they were ‘no longer content with a system whereby a wife’s rights in family assets depend on the whim of her husband or on the discretion of the judge. We demand definite property rights, not possible discretionary benefit’.11 Divorce Reform At the same time, there was a long build-up of pressure for divorce reform, 12 which eventually bore fruit with the Divorce Reform Act in 1969. Mr and Mrs White were married by then – they married in 1961 – and they may have seen Mr giles’ take on the reform. I am grateful to the Daily Express for permission to reproduce it. 6 S Cretney, Family Law in the Twentieth Century: A History (oxford, oxford University Press, 2003). 7 Inheritance (Family Provision) Act 1938; the current statute is the Inheritance (Provision for Family and Dependants) Act 1975. 8 Dating back to the Matrimonial Causes Act 1857. 9 See the observations of Lord Nicholls of birkenhead in White v White [2001] 1 AC 596, 603. 10 Sir Jocelyn Simon, With all my Worldly Goods . . . (birmingham: holdsworth Club, 1965) 14 (reproducing his address of 20 March 1964). 11 Family Law: Family Property Law (Law Com WP No 42, 1971) para 0.22. 12 Cretney, above n 6, ch 9.

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Ronald Charles giles, Sunday Express, 26 January 1969. Computer catalogue of the british Cartoon Archive, University of kent record 14683 searched at www.cartoons.ac.uk.

the cartoon raises a sad smile, for more than one reason. What did he think had happened? the date is 1969; so this must be a comment only on the Divorce Reform Act of that date, which said nothing about property. but the reform of the grounds for divorce was closely linked, in many minds, with the reform of the law on the distribution of property on divorce. Stephen Cretney points out that ‘Reform of property law . . . became the price to be paid for liberalising the divorce law’;13 in other words, if it was to become easier for women to be divorced, there had to be reform to safeguard their financial security. giles’ assumption that equal division of assets on divorce was being introduced reflects, I suppose, the expectation that that was what was going to happen. the fact that he thought it was so funny is a measure of its unfamiliarity and of the fact that – despite the pressure for reform – it was not regarded by all as fair or practicable. Reality, of course, was very different. What the statute14 gave was a discretion, with no steer as to outcome. the law consolidated in section 25 of the Matrimonial Causes Act 1973 was entirely neutral as to whether or not assets should be shared on divorce; it said neither no nor yes. And the courts therefore interpreted it to mean ‘no’ because, as giles’ depiction illustrates, sharing was a very alien idea. ibid 133. the Matrimonial Proceedings and Property Act 1970; the 1969 and 1970 statutes were, of course, consolidated in the Matrimonial Causes Act 1973. 13 14

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had the Law Commission’s later examination of the possibility of community of property, in any form, borne fruit, then the failure of the divorce legislation to address sharing would not have mattered because joint ownership would have achieved this. but even the Commission’s eventual modest recommendation of an automatic joint ownership of the matrimonial home15 came to nothing. Reasonable Requirements: An Unreasonable Limitation? the result is well-known: the courts’ approach to ancillary relief applications was to ensure that everyone’s needs were met, with cake rather than bread where cake had been the norm during marriage, and even with icing on the cake where there was enough to do so. but nothing more. And that meant that the claimant in ancillary relief, typically the wife, met a glass ceiling; even cake with icing on it can only be so big, even a millionaire’s wife can only need so much (and must not, of course, be allowed anything to bequeath to her children).16 Perhaps only a few family law academics now remember the seminar held at king’s College, London, organised by the Society of Public teachers of Law in the room next to the one where we met to share the drafts for this book in April 2010. At that seminar Lord Justice thorpe,17 among others, discussed the ‘reasonable requirements’ jurisprudence, whereby the limit to a claimant’s entitlement, no matter what the respondent’s wealth, limit lay somewhere around the £12–15 million mark.18 Perhaps more well-known is the powerful critique mounted in the early 1990s by Peter Singer J.19 the wrongness of the system was not hard to see. It was discriminatory, as a matter of fact, not deliberately but because claimants tended to be women. but the real evil in the system was that it failed to uphold marriage as a financial partnership, as a sharing of risk and reward. that was how marriage was viewed in the law of the vast majority of common law as well as European states, by that date, in all cases where the couple had not contracted out of their legal regime. how odd, and how sad, that English law should have made do for so long with an impoverished view of marriage.

First Report on Family Property: A New Approach (Law Com No 52, 1973). Per ormrod LJ in Page v Page [1981] 2 FLR 198, 201, and in Preston v Preston [1982] Fam 17, 25. See the observations of Lord Nicholls of birkenhead in White v White [2000] UkhL 54, [2001] 1 AC 596, 609. 17 See his chapter, ‘the English System of Ancillary Relief’ in R bailey-harris (ed), Dividing the Assets on Family Breakdown (bristol, Jordan Publishing, 1998). 18 those were his words at the conference; even that may have been a generous summary. In Dart v Dart [1996] 2 FLR 286 the husband was worth between £400 million and £800 million, and the wife was awarded £9 million. In Conran v Conran [1997] 2 FLR 615, of her husband’s £85 million the wife recovered £8.4million for her ‘reasonable requirements’ and £2.1million for her ‘contributions’ to his business. In A v A (Financial Provision) [1998] 3 FCR 421 the husband was worth over £200 million, and his wife was awarded £4.4 million after 14 years of marriage. 19 P Singer, ‘Sexual discrimination in ancillary relief’ [2001] 31 Family Law 115 (the original lecture was given to the Family Law bar Association in 1992). 15 16

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thE thIRD INStALMENt: WHITE V WHITE

The Facts the facts of White v White have been so often recounted and so recently that I provide only a skeleton here. It was, as I commented above, an unremarkable decision. two people farmed throughout their long marriage. they had two farms. they no longer had dependent children, and they each wanted to continue farming. Would it be excessive to say that on those facts, a fair decision is a no-brainer? one farm each? or perhaps one party keeps two farms, and the other takes half their combined value, with a sharing of the parties’ pension rights? In the absence of any principle of sharing property, neither of those solutions was available at first instance. that being the case, the starting point was the regime of separate property for spouses, subject to the requirement to meet ‘reasonable requirements’. the bulk of the property stood in Mr White’s sole name, and so Mrs White was in the position of applicant. the judge at first instance assessed her reasonable requirements at £980,000, and made an award which, when added to the property in her sole name, gave her just that. She thus took 17 per cent of the family assets – in stark contrast, as her counsel pointed out in the Court of Appeal,20 to what she would have achieved had she been not a wife but a farming partner. the Court of Appeal took a broader view, awarding her 32 per cent of the total assets on the basis that her contributions to the marriage, as a farming partner, entitled her to far beyond her reasonable requirements. ‘Contributions’ are of course listed in the statute as one of the circumstances to which the court is to have particular regard.21 Unsatisfied, Mrs White took the matter to the house of Lords, where she met with what must have seemed to her to be a defeat, yet which changed the face of the law of ancillary relief. the house of Lords rejected the reasoning of the Court of Appeal, and overturned 30 years of case law, yet left Mrs White’s award unchanged. In the Daily Telegraph, Joshua Rozenberg described the exercise as ‘an expensive waste of time’,22 and quotes the bemused23 comment of Mrs White (now Patricia greenslade): ‘I am very pleased if it does help people, but how can it do that when I have received a quarter?’24 20 Paul Coleridge QC, acting for Mrs White, noted that she ‘would have been far better off had she had merely farmed in partnership with the husband (of 33 years) but never married him. that is the bizarre result achieved by the misapplication of the court’s discretionary powers’; his words are quoted by C barton and M hibbs, ‘Ancillary Financial Relief and Fat Cat(tle) Divorce’ (2002) 65 MLR 79. 21 Matrimonial Causes Act 1973, s 25(2)(f). 22 J Rozenberg, ‘Costly Lesson in Sharing the Spoils’ The Daily Telegraph, 16 october 2001. 23 Understandably; see n 27 below. 24 Perhaps she arrived at this percentage by comparing what she was awarded (£800,000) with what her husband retained, approximately.

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The Reasoning in the House of Lords the crucial step taken in the house of Lords was to outlaw the ‘reasonable requirements’ approach. the explanation is best given in the words of Lord Nicholls of birkenhead:25 It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As butler-Sloss LJ said in Dart v Dart [1996] 2 FLR 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. but there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. typically, a husband and wife share the activities of earning money, running their home and caring for their children. traditionally, the husband earned the money, and the wife looked after the home and the children. this traditional division of labour is no longer the order of the day. . . . but whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions. . . . If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. there should be no bias in favour of the money-earner and against the home-maker and the child-carer. there are cases, of which the Court of Appeal decision in Page v Page (1981) 2 FLR 198 is perhaps an instance, where the court may have lost sight of this principle.

At a stroke, therefore, the approach that limited the applicant’s entitlement to her ‘reasonable requirements’ was outlawed. As Lord Nicholls went on to say:26 I can see nothing, either in the statutory provisions or in the underlying objective of securing fair financial arrangements, to lead me to suppose that the available assets of the respondent become immaterial once the claimant wife’s financial needs are satisfied. Why ever should they? If a husband and wife by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should the claimant wife be confined to the court’s assessment of her reasonable requirements, and the husband left with a much larger share? or, to put the question differently, in such a case, where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? on the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with the much larger balance. but the mere absence of financial need cannot, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. . . . there is much to be said for returning to the language of the statute. Confusion might be avoided if courts were to stop using the expression ‘reasonable requirements’ in these cases, burdened as it is now with the difficulties mentioned above.

25 26

[2001] 1 AC 596, 605. ibid 608.

278

Elizabeth Cooke

Without reasonable requirements, what was to be the outcome of an application? his Lordship was cautious about this, but nevertheless his words spelt revolution in the law of ancillary relief: A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision means that one party will receive a bigger share than the other. before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. the need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination. this is not to introduce a presumption of equal division under another guise. generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. the discretionary powers, conferred by Parliament 30 years ago, enable the courts to recognise and respond to developments of this sort. . . . today there is greater awareness of the value of non-financial contributions to the welfare of the family. there is greater awareness of the extent to which one spouse’s business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse, a contribution which also required much sustained hard work over many years. . . . In Porter v Porter [1969] 1 WLR 1155, 1159, Sachs LJ observed that discretionary powers enable the court to take into account ‘the human outlook of the period in which they make their decisions’. In the exercise of these discretions ‘the law is a living thing moving with the times and not a creature of dead or moribund ways of thought’. Despite these changes, a presumption of equal division would go beyond the permissible bounds of interpretation of section 25. . . . A presumption of equal division would be an impermissible judicial gloss on the statutory provision. . . . In contrast, it should be possible to use equality as a form of check for the valuable purpose already described without this being treated as a legal presumption of equal division.

on reading those words Mrs White might therefore have expected to receive something very near to half the matrimonial assets. but Lord Nicholls took pains, as we have seen, to avoid the idea of a principle or presumption of equal division. the Court of Appeal’s decision was upheld on the basis that it rightly went beyond the meeting of needs, in the light of the parties’ contributions, but stopped short of equality because of the significant contribution made to the parties’ financial standing by the husband’s father. but that outcome, however negative from Mrs White’s point of view,27 when put alongside the outlawing of the reasonable requirements jurisprudence, left the courts with no alternative but to regard equal division as a norm, even if the basis for equality was less 27 It is interesting to note Lord Cooke of thorndon’s comment that the decision did seem to give the maximum possible weight to the father-in-law’s input: ibid 616.

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than clear.28 As Lord Nicholls said to his colleagues in a later case, the ‘glass ceiling thus put in place [by the ‘reasonable requirements’ test] was shattered by the decision of your Lordships’ house in the White case’.29 An Unremarkable Decision? the decision in White v White was unremarkable, in that it brought about a principle – what else is a yardstick, despite Lord Nicholls’ warnings about impermissible interpretations?30 – of equal sharing and so brought the law of England and Wales into line with a norm operated widely throughout the world, and certainly in the majority of both common law and European jurisdictions. At last, marriage is treated by the law in this jurisdiction as a financial partnership. Why this took so long is, first, a tribute to the authority and persuasiveness of the judges of the Family Division in the 1980s and 1990s; second, perhaps, a blunt unwillingness to deprive the wealthy of their property as a result of divorce. Whether things would have been different if the majority of the judges who so strongly favoured the ‘reasonable requirements’ approach had not been of the same gender as the majority of the persons whom that approach protected, we can only speculate. And why was it this case that enabled the courts to take the step? In some respects the case was ideal because of the business partnership, the absence of dependant children and the easy divisibility of the assets; had there been only one farm that could not have been split without adverse consequences to its value, the first-instance decision might have stood. In other respects the case was not, on the face of it, a likely one for the introduction of a principle of sharing, because it was not one involving really ‘big money’. on the face of it the more wealthy divorces in the 1980s and 1990s31 might have been more propitious opportunities – if they had reached the house of Lords, which they did not – because of the far more serious disparity in outcome. but that may indeed be why the Whites’ case was the one to bring about change – because it did not involve a transfer of many millions, and necessarily involved an award far smaller than many of those made in the ‘reasonable requirements’ cases. Nevertheless, the implications of their decision for the truly ‘big money’ cases will have been clear to their lordships. I have suggested that this was, in a sense, an unremarkable decision, surprising only in that it happened so long after the enactment of the statute of which it was an interpretation. but I suggest that it was remarkable in two respects. 28 Were the assets to be shared on the basis that marriage is, simply, a partnership? or on the basis that contributions are equal – in which case, what happens if they manifestly are not? See E Cooke, ‘A new yardstick for the marriage partnership’ [2001] 13 Child and Family Law Quarterly 81. 29 Miller v Miller; McFarlane v McFarlane [2006] UkhL 24, [2006] 2 AC 618, [8]. 30 See the references, passim to the ‘sharing principle’ in the Court of Appeal’s decision in Charman v Charman [2007] EWCA Civ 503, [2007] 1 FLR 1246. 31 See the cases cited at n 18 above.

280

Elizabeth Cooke

It was remarkable, first, in that although it introduced a principle of equal sharing, it left equality as such a flexible concept. It is unusual, in the common law as well as the European context, to have a regime where property can start out as non-matrimonial and become matrimonial over time.32 It is unusual to have a principle of equal sharing that is modified – other than by explicit statutory provision – in the context of a short marriage. had Sir Paul McCartney married, without contracting out of the sharing regime, in Sweden, he would have shared everything; had he married in France (without a marital agreement) he would have shared only the marital acquest, which would have been a very different matter. but in either case, equal division would have meant equal division. In this jurisdiction, an inflexible principle of equal division is alien, which is why Mr giles thought it was so funny. We are still exploring that flexibility, just as we are still exploring the reasons for equality and the objectives that ancillary relief should be achieving. 33 this is inevitable. one of the reasons why it is inevitable is the fact that we do not have enforceable marital property agreements. All couples are stuck with White v White, which means that they are stuck with equality save where the circumstances dictate otherwise, including the existence of a pre- or post-nuptial contract. but such contracts are not reliably enforceable; they are only one of the circumstances that the court must take into account. And that is other remarkable feature of White v White. the equal sharing of matrimonial assets is a normal and unsurprising feature of a modern legal system, and we have discussed why this instalment in the story came so late. but the equal sharing of matrimonial assets without a reliable means of contracting out of equal division is almost unknown. thE FINAL INStALMENt: MARItAL PRoPERtY AgREEMENtS?

So: will there be another instalment to this long story? I referred above to Lord Justice thorpe’s paper, published following the 1998 seminar, in which he gave an overview of the development of ancillary relief. he drew attention there to the growing focus of attention upon pre-nuptial contracts, sparked off perhaps by the then government’s expression of enthusiasm for their introduction in a legally binding form.34 he said:

32 In Miller; McFarlane, above n 29 Lord Nicholls, [25], said: ‘non-matrimonial property represents a contribution made to the marriage by one of the parties. Sometimes, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not’. So it seems that what appears to be non-matrimonial property in a shorter marriage may (but will not always) become matrimonial – and therefore to be shared – as the years pass. 33 See E Cooke, ‘Miller/McFarlane: law in search of discrimination’ (2007) 19 Child and Family Law Quarterly 98. 34 home office, Supporting Families: a Consultation Document (1998).

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[t]here is considerable attraction in empowering the parties to contract in anticipation of marriage, during marriage and in contemplation of divorce, provided that the contractual result is neither irresponsible nor unfair.

the Lord Justice was not, at that point, contemplating the introduction of a principle of sharing on divorce, and his remarks (as well as the attention given to the point by the government) indicate that marital property agreements were becoming topical even in the absence of the White decision. but once that decision was made and sharing was introduced, pre-nuptial contracts potentially took on a far more important and more formal role, because it is so unusual (looking globally) for any legal system to enforce equal sharing without also permitting couples to contract out of that regime. the current law on pre- and post-nuptial agreements is well-known, and the Supreme Court’s decision in Radmacher v Granatino35 has been widely read and commented upon. they were formerly void, in contractual terms, because they contravened the public policy that forbade agreements that made provision for future separation. that public policy has now been swept away.36 Even so, a couple cannot be sure that their agreement will be enforced in ancillary relief proceedings, and legal advisers may therefore be in the difficult position of charging their clients for advice and drafting whose effect cannot be predicted with certainty. So the law remains in limbo in the wake of the decision of the Supreme Court in Radmacher v Granatino.37 Now that the decision has been handed down, the Law Commission will consult on the options for reform. there may yet, therefore, be the fourth instalment that the White v White story seems to demand. the content of the instalment is not inevitable. the question that instalment three leaves us asking is this: is the equal sharing of marital assets on divorce – subject to a variable notion of non-matrimonial property38 – an inevitable consequence of marriage, or should there be choice for the couple? the question that must follow from that is: if there should be a choice, should that choice be enshrined in a system of enforceable marital property agreements, despite the well-known risks attendant upon choices made in the dark, when the parties to the contract cannot see the future and are, in any event, in love. the answers will emerge in time. Meanwhile, may the protagonists farm prosperously. We owe them gratitude for the change in the law to which their sadness gave rise; no doubt they, like the law, will have moved on, and we wish them happiness.

35 36 37 38

[2010] UkSC 42. ibid per Lord Philips, [52]; the point is obiter, but is likely to be followed by the lower courts. ibid. See above n 32 and text.

Index Adolescents/third party relationships child’s best interests, 211 contractual relations, 211 employees, 211 landlords, 211 medical treatment, 211–4, 218, 223 statutory provisions, 210 Ancillary relief see also Property rights of spouses allocation of assets, 136 avoiding litigation, 142 civilised divorce, 153 clean break principle, 154 conduct of a financial nature, 147 degree of blame, 138 development, 280 discretionary approach, 274 division of capital, 141, 144, 149–54 Duxbury calculation, 151 equal division of property, 274, 278, 280, 281 extreme conduct, 135, 142, 146–8 fairness between the parties, 148, 151, 153, 277, 278 financial partnership, 275, 279 financial position prior to breakdown, 136 joint incomes, 136 judicial approach, 146, 147 judicial discretion, 136 Law Commission, 138, 145, 146, 273, 75 limits to entitlement, 275 maintenance, 137, 138, 140, 143 matrimonial conduct, 135–9, 142, 143, 145–9 modern approach, 153 mutual recriminations, 152 negotiated settlements, 142, 151 net effect, 151 net income, 151, 152 one-third rule, 136, 139, 140, 142–4, 149–51, 154 see also One-third rule periodical payments, 135, 136, 151, 152, 153 purchasing power, 139 reasonable requirements, 140, 150, 154, 275–9 redistribution of assets, 139 relevance, 146–8, 152, 153 responsible apportionment, 146, 148, 149 rising costs, 142, 153 wife’s compassionate allowance, 137

Arranged marriages duress, 84, 85 see also Duress ethnic groups, 84 family pressure, 84, 85 forced marriages, distinguished, 85 see also Forced marriages lack of consent, 84 parental wishes, 84 threats to life, limb or liberty, 84, 85 Blood tests children’s welfare, 116 see also Children’s welfare extra-marital relationships, 113 judicial discretion, 114 legislation, 114 legitimacy issues, 114, 115, 116, 117, 119, 120, 123–6 see also Legitimacy paramountcy principle, 113, 117 paternity, 113, 115, 116 public interest considerations, 114 Burns v Burns background, 177–9 Children Act (1989), 176, 185, 186 see also Children Act (1989) cohabitation quasi-matrimonial relationship, 176 termination, 175, 176 trust law, 175, 176 contribution to family home/life bringing up children, 179, 180, 182–4 indirect contribution, 179, 180, 184 maintaining the home, 179, 180 judicial law reform, 176, 187–90, 193, 194, 198 see also Judicial law reform need for legislation, 181, 198 property held on trust adjustment of property rights, 180 beneficial interest, 179, 180, 182 common intention, 179, 180, 182, 183, 191, 192, 194–6, 198, constructive trust, 183 deemed intention, 181 division of proceeds, 179 equal shares, 179 fixtures and fittings, 179, 180 implied trust, 181, 184

284

Index

Burns v Burns (cont.): background (cont.): imputed intention, 180, 181, 197 indirect contribution, 179, 180, 184, 196 law reform, 188, 189 resulting trust, 183, 184 sale of house, 179 shared assets, 179, 180, 182, 183 significance, 175, 176, 198 social justice, 187 Child law see also Children Act (1989) status issues, 28 Children Act (1989) children’s property, 36 children’s upbringing, 36 children’s welfare, 36, 37 see also Children’s welfare cohabitation, 186 impact, 176, 185 paramountcy principle, 36 see also Paramountcy principle periodical payments, 185 property rights benefit of child, 185, 186 future benefit of the mother, 186 property reverting to settler, 185, 186 transfer of property, 185 residence order, 185 transfer of lump sum, 185 Children’s rights adolescent autonomy, 205, 206, 208, 215, 218, 221, 222, 223 capacity for independence, 202, 203 children’s welfare, 204 child’s best interests, 35, 36, 117–9, 121–6, 129, 130, 204, 206, 211 decision-making, 199, 205, 206, 212, 210, 216, 218, 222 human rights entitlement, 220 European Convention of Human Rights (ECHR), 215 freedom of expression, 217, 218 freedom of thought, conscience, religion, 221 Gillick competence, 217, 218, 222, 223 human dignity, 217 Human Rights Act (1998), 215 parental authority, 219–21 personal autonomy, 216–8, 220, 221 prohibition on torture, inhuman and degrading treatment, 221 psychological integrity, 217 quality of life, 217 respect for private and family life, 217–21 right to liberty and security, 221

right to life, 221 self-determination, 217, 221 sexual privacy, 220 UN Convention, 108, 130, 132, 216, 222, 223 increased awareness, 216 legal context, 201, 202 medical procedures, 200, 203, 204, 206 see also Medical treatment minority status/protective function medical confidentiality, 220 parental authority, 219–21 personal autonomy, 220 respect for private and family life, 219 special duty, 218, 222 teenage pregnancy, 219 parental disputes, 216 parental rights, 222 right to consultation, 216 separate representation, 216 sufficient intelligence, 199, 205, 222 sufficient understanding, 199, 205, 222 Childrens’ welfare bioliogical mother, 42, 43 care and control, 30, 32, 34 Children Act (1989), 36 see also Children Act (1989) child’s best interests, 35, 36, 117–9, 121–6, 129, 130, 204, 206, 211 child’s health, 29 child’s own views, 45 custody rights, 28 emotional needs, 41 fact of parentage, 41 foster parents, 29, 30, 34, 45 human rights, 34, 108, 130, 132, 133 importance, 27 interests of justice, 133 judicial discretion, 129 legitimacy of the child, 103, 116, 119, 121, 122, 123–5, 128–30, 133 see also Legitimacy local authority failure to act, 29, 30 long-term care, 40 natural parent, 40, 41, 43 nuances of welfare, 128, 129 paramountcy principle, 27, 31, 33, 34, 36–8, 40–2, 44, 113, 117, 129, 130, 133 see also Paramountcy principle parentage, 129, 130 parental disputes, 40 see also Parental disputes parental rights, 34, 35 psychological parent, 40 relevance, 128, 130 relocation custody, 105–7 general assumptions, 110

Index harm to the child, 10 human rights, 108 importance of contact, 104, 105 joint parenting, 105–7 need for research, 110 paramountcy principle, 104 parental freedom, 103, 108 shared residence, 107 welfare principle, 93, 95–105 right of access, 34, 35, 37 sterilisation, 35 UN Convention on the Rights of the Child, 108, 130, 132 upbringing disputes, 27, 28, 31, 40, 42 Choice of law annulment of marriage, 76, 77 consent to marry, 76 governing law, 76, 77 law of domicile, 77 law of forum, 77 public policy, 77 validity of marriage, 76 Civil partnerships equal partnership, 136 Cohabitation adverse consequences, 176 child care future activity, 186 past activity, 186 Children Act (1989), 186 see also Children Act (1989) Irish legislation, 189 judicial law reform, 176, 187–90, 193, 194, 198 see also Judicial law reform Law Commission, 189, 198 law reform, 187–90, 198 property held on trust adjustment of property rights, 180 beneficial interest, 179, 180, 182 common intention, 179, 180, 182, 183, 191, 192, 194–6, 198 constructive trust, 183 deemed intention, 181 division of proceeds, 179 equal shares, 179 fixtures and fittings, 179, 180 implied trust, 181, 184 imputed intention, 180, 181, 197 indirect contribution, 179, 180, 184, 196 law reform, 188, 189 resulting trust, 183, 184 sale of house, 179 shared assets, 179, 180, 182, 183 property rights adjustment, 180 reform, 175–7, 190

285

trust law, 175, 181, 183, 184, 190–4 see also Trusts Contraceptive advice criminal liability, 203 DHSS guidelines, 200, 201 divided opinions, 201 doctor as final arbiter, 204, 205, 211, 212 Fraser guidelines, 204, 211 girls under 16 years, 200, 203, 205 parental involvement, 200, 203–5 risk of pregnancy, 201 teenage sexuality, 201, 211 Corbett v Corbett background, 49–51 case of first impression, 48, 60–3, 72 change of sex female to male 60–2, 72 hermaphrodites, 62 male characteristics, 62 male to female, 60, 64, 70 reassigned sex, 68 counsel, 51, 52 de facto precedent, 67, 71 domestic impact acceptance of transsexualism, 68 common law, 67, 71 conservative influence, 69–71 consummation of marriage, 69 criminal law, 67 expert opinion, 67 gender recognition, 68 human rights, 67–70 intersex disorder, 69 living off earnings of prostitute, 68 reassigned sex, 68 validity of marriage, 68 factors influencing the decision, 48 findings of fact, 57–8 gender recognition, 47, 48. 50, 52, 59, 60, 68 see also Gender recognition incapacity/wilful refusal, 50, 59 international impact Australia, 65, 66 Canada, 64 common law jurisdictions, 63 New Zealand, 64, 65 South Africa, 63 United States of America, 64, 66 variable impact, 63, 71 legal arguments consummation of marriage, 52, 58, 59 estoppel by conduct, 52, 58 intersex disorder, 51, 52, 71 Klinefelter’s syndrome, 52, 57 same-sex marriage, 52 validity of marriage, 52, 58, 59

286 Corbett v Corbett (cont.): legal reasoning ancillary relief, 59 consummation of marriage, 58, 59 legal sex, 58 meaning of marriage, 58 nullity decree, 59 request for declaration, 59 validity of marriage, 58, 59 marriage consummation, 69, 71 non-consummation, 48, 50, 52, 59 purported marriage, 47, 48, 50, 52, 71 recognition, 51, 52 same-sex marriage, 71 transsexual marriage, 47, 48, 50 validity of ceremony, 50–2 validity of marriage, 68, 71 medical evidence, 53–7, 72 see also Medical evidence medically qualified judge, 53, 67 previous authority, 60–3, 72 property dispute, 48, 50, 51 psychological factors, 60, 63 reassignment surgery, 48, 49, 59 service outside the jurisdiction, 50 significance, 48 subsequent impact, 48 transsexualism, 48 Divorce a mensa et thoro, 14, 15, 18, 24, 25, 139 adultery, 14, 23, 24, 26, 114, 115, 126, 127 ancillary relief see Ancillary relief civilised divorce, 153 clean break principle, 154 cruelty, 14 desertion, 14 division of property, 274, 281 divorce reforms, 273 ecclesiastical courts, 18, 25 failed marriages, 24 first-ever divorce, 13–5 Ireland, 86, 89 irretrievable breakdown of marriage, 136, 137, 142 judicial separation, 14 legislation 114 legislative reform, 25, 26 moral standards, 25 property rights of spouses see Property rights of spouses private Acts of Parliament, 18–21, 24–6 validity, 78 DNA testing best evidence, 129 parentage, 127, 128

Index Duress arranged marriages, 84, 85 see also Arranged marriages consent lack of consent, 79, 80 reality of consent, 86 danger for which party not responsible, 81 external threat, 81 false allegations, 81 fear of prosecution, 78 fear or force, 77, 78 forced marriages, 86, 89 see also Forced marriages genuine/reasonably held fear, 78–81 innocence of petitioner, 81 Irish courts, 86, 89 Law Commission, 81 legitimate threats, 81 mental reservations, 82, 83 threat of immediate danger, 78, 80 threat to life, limb or liberty, 78, 84, 85, 88, 89 validity of marriage, 77, 78 European Convention on Human Rights (ECHR) children’s rights, 215, 217–21 children’s welfare, 34, 37–9 compatibility, 159, 169, 170 Contracting States, 155, 156 declaration of incompatibility, 70 extent of protection, 4, 34, 37 freedom of expression (Art 10), 217, 218 freedom of thought, conscience, religion (Art 9), 221 human dignity, 217 incorporation, 215 judicial balancing, 130, 132 judicial interpretation dynamic interpretation, 165, 165, 167, 168, 172 evolutive interpretation, 167 international law influence, 165–7 literal approach, 156, 166 methodology, 159, 165 teleological approach, 156, 167 living instrument, 156, 167, 168, 170, 172 margin of appreciation, 169 national laws, 159, 169, 170 no arbitrary prosecution, 231 non-discrimination (Art 14) differential treatment, 160, 163, 164, 171, 172, 264–9 family law, 155, 159 family relationships, 163 legitimate aim, 266 maternal affiliations, 162, 163 no independent existence, 160

287

Index objective/reasonable justification, 161, 163, 164, 265, 266, 268, 269 patrimonial rights, 164 proportionality principle, 161, 266 provisions 155 161, 162 succession law, 155, 159, 170–2 unjustifiable discrimination, 264 violations, 162, 163, 164, 170–2 paramountcy principle, 37–40 peaceful enjoyment of possessions (Art 1 Protocol No. 1), 159, 164, 170, 171 prohibition of torture, inhuman and degrading treatment (Art 3), 221 respect for private and family life (Art 8) children’s rights, 217–21 dynamic interpretation, 165, 168 family life, 163, 168, 169, 171 family relationships, 163 father’s rights, 38 legitimacy issues, 155, 159 literal interpretation, 166 maternal affiliations, 161–3 medical confidentiality, 220 national legislation, 160 negative obligation, 160, 168 parental freedom, 108 patrimonial rights, 163 positive obligation, 160, 165, 166, 168 proprietary element, 171 relevance, 160, 161 respect, 163 rights of access, 37 same-sex relationships, 253, 262 sexual orientation, 264, 265 succession law, 171 transsexuals, 70 whole of family law reviewable, 168, 169 validity of marriage, 70 retrospective criminality (Art 7), right to liberty and security (Art 5), 221 right to life (Art 2), 221 right to marriage (Art 12), 70, 84 testamentary freedom, 173 European Court of Human Rights (ECtHR) see also Marckx v Belgium family law, 155, 159 non-discrimination, 160–4 respect for private and family life, 160, 161, 163, 165, 166, 168 succession law, 155, 159 Extra-marital liaisons adultery, 114, 115 births outside marriage, 115 see also Legitimacy blood tests, 113 see also Blood tests marital infidelity, 126, 127, 131

parentage, 116, 131 paternity, 113, 115 Family law changing attitudes, 1 controversial issues, 9 development, 1, 2 overarching principles, 10 publicity, 9 social debate, 9 sources, 2 Financial relief see Ancillary relief Fitzpatrick v Sterling Housing Association see also Tenancies background, 242, 243 context-specific case, 251, 253–6 human rights concerns, 259–64, 269 judicial decision-making, 256, 258, 263 judicial interpretation, 251, 252, 258, 259, 264 legislative context, 251, 253, 254, 255, 259 marriage-like relationships, 264, 268 press coverage, 250, 251 public perception, 254 retrospective assessment, 254 same-sex relationships familial status, 246, 248–51, 266 familial ties, 241 protection from eviction, 247 retrospective legal recognition, 251 succession rights, 241–4 tenancies, 241–4, 266 sexual orientation differential treatment, 242, 244 discrimination, 244, 252 distinction between couples, 241, 246 gay/lesbian emancipation, 252 gay/lesbian identity, 253 gay/lesbian reform agenda, 253, 259, 269 gay/lesbian rights, 242, 249, 250, 252, 259, 269 gay/lesbian social attitudes, 269 human rights concerns, 263–6, 268 significance, 241, 249, 252 social issues, 261, 263 Forced marriages arranged marriages, distinguished, 85 see also Arranged marriages duress, 86, 89 see also Duress human rights abuse, 86 increase, 89 legislation, 86 nullity decrees, 86 psychological pressure, 86 threats, 86 unacceptable pressure, 85

288 Gay/lesbian relationships emancipation, 252 family status, 253 identity, 253 reform agenda, 253, 259, 269 rights, 242, 249, 250, 252, 259, 269 social attitudes, 269 Gender recognition biological factors, 48 change of sex female to male 60–2, 72 hermaphrodites, 62 male characteristics, 62 male to female, 60, 64, 70 reassigned sex, 68 determination of sex, 48, 60 gender determined at birth, 48, 60 gender dysphoria, 70 Gender Recognition Act (2004), 48, 59, 70, 71 Gender Recognition Certificate, 70, 72 Gender Recognition Panel, 70 intersex disorder, 51, 52, 69, 71 marriage consummation, 47, 48, 50, 71 meaning of marriage, 58 nullity, 59 purported marriages, 47, 50, 52, 71 purpose of marriage, 47, 48, 50 same-sex marriage, 71 significance, 71 validity of marriage, 48, 50–2, 58, 59, 68, 71 reassignment surgery, 48, 49, 59, 70 post-operative sex, 50, 60 transsexuals, 47, 48, 50 see also Transsexuals Gillick v West Norfolk and Wisbech Area Health Authority academic debate, 202, 203 adolescents/third party relationships child’s best interests, 211 contractual relations, 211 employees, 211 landlords, 211 medical treatment, 211–4, 218, 223 statutory provisions, 210 children’s competence age of discretion capacity for wise decisions, 206, 207 decision-making, 199, 205, 206, 212, 210, 216, 218, 222 degree of competence, 200 Gillick competence, 199, 204–8, 210–4, 217, 218, 222, 223 right to make mistakes, 199, 205 sufficient intelligence, 199, 205, 222 sufficient understanding, 199, 205, 222

Index children’s rights adolescent autonomy, 205, 206, 208, 215, 218, 222, 223 capacity for independence, 202, 203 children’s welfare, 204 child’s best interests, 204, 206, 211 decision-making, 199, 205, 206, 212, 210, 216, 218, 222 Gillick competence, 217, 218, 222 legal context, 201, 202 medical procedures, 200, 203, 204, 206 parental rights, 222 right to make mistakes, 199, 205 sufficient intelligence, 199, 205, 222 sufficient understanding, 199, 205, 222 contraceptive advice criminal liability, 203 DHSS guidelines, 200, 201 divided opinions, 201 doctor as final arbiter, 204, 205, 211, 212 Fraser guidelines, 204, 211 girls under 16 years, 200, 203, 205 parental involvement, 200, 203–5 risk of pregnancy, 201 teenage sexuality, 201, 211 differing judicial opinions, 203 judicial interpretation, 213–5, 218 legal principles, 215 medical treatment adolescent capacity to decide, 214, 223 consent to treatment, 212, 214 Gillick competence, 213, 214 life-saving treatment, 213, 214, 218 medical profession, 211, 212 mentally disturbed adolescents, 213 parental responsibility, 214 parental right to consent, 214, 215 refusal of treatment, 212, 213, 218,, 223 parent/child relationship child protection proceedings, 209 children’s welfare, 210 child’s autonomy, 208 consultation, 208 decision-making, 208–10 discipline, 209 Gillick competence, 208 medical treatment, 214, 215 parental authority/rights, 199, 202, 203, 205–9 parental control, 208 parental disputes, 209 parental duties, 208, 209 parental responsibility, 208, 209 significance, 199, 200, 222, 223 unfounded application, 206 Homosexuality age of consent, 252

289

Index de-criminalisation, 252 homophobic hate crimes, 252 liberalisation, 259 perceived immorality, 254 pretended family relationships, 259 Social Attitudes, 259, 60 teaching in schools (Section 28), 252 Human rights see also European Convention of Human Rights (ECHR) assisted suicide, 248 children’s rights entitlement, 220 European Convention of Human Rights (ECHR), 215 freedom of expression, 217, 218 freedom of thought, conscience, religion, 221 Gillick competence, 217, 218, 222, 223 human dignity, 217 Human Rights Act (1998), 215 parental authority, 219–21 personal autonomy, 216–8, 220, 221 prohibition on torture, inhuman and degrading treatment, 221 psychological integrity, 217 quality of life, 217 respect for private and family life, 217–21 right to liberty and security, 221 right to life, 221 self-determination, 217, 221 sexual privacy, 220 UN Convention, 108, 130, 132, 216, 222, 223 children’s welfare paramountcy principle, 37–40, 44 parental rights, 37, 38 rights of access, 37 differential treatment, 171, 172, 264–9 human dignity, 217 legitimacy issues, 155, 159 see also Legitimacy legitimate aim, 266 marriage forced marriages, 86 right to marriage, 70, 84 medical treatment, 218, 223 see also Medical treatment no arbitrary prosecution, 231 non-discrimination, 155, 159, 160–4, 170–2, 263–5 patrimonial rights, 159 peaceful enjoyment of possessions, 159, 164, 170, 171 private and family life, 155, 160–3, 165, 166, 168, 169, 171, 217–21, 253, 262, 264, 265 prohibition of torture, inhuman and degrading treatment, 221

proportionality principle, 161, 266 retrospective criminality, 231 right to liberty and security, 221 right to life, 221 self-determination, 218, 221 transsexuals, 67–70 Universal Declaration of Human Rights, 166 Intestacy intestate succession, 163, 164 presumption of legitimacy, 114, 115 Judicial interpretation dynamic interpretation, 165, 167, 168, 172 evolutive approach, 167 literal approach, 156, 166 methodology, 159, 165–7 teleological approach, 156, 167 Judicial law reform changing social/economic circumstances, 187 cohabitation, 188, 189 democratic legitimacy, 187–90, 193, 198 development of existing principles, 187, 194 doctrinal development, 187 JvC background, 29–30 children’s welfare bioliogical mother, 42, 43 care and control, 30, 32, 34 child’s best interests, 35, 36 child’s health, 29 child’s own views, 45 custody rights, 28 emotional needs, 41 fact of parentage, 41 foster parents, 29, 30, 34, 45 human rights, 34 importance, 27 local authority failure to act, 29, 30 long-term care, 40 natural parent, 40, 41, 43 paramountcy principle, 27, 31, 33, 34, 36–8, 40–2, 44, 116 parental rights, 34, 35 psychological parent, 40 right of access, 34, 35, 37 sterilisation, 35 upbringing disputes, 27, 28, 31, 40, 42 human rights paramountcy principle, 37–40, 44 parental rights, 37, 38 rights of access, 37 legal arguments children’s welfare, 31 care and control 30, 32 comity rules, 32 custody, 30, 31 de facto adoptions, 32

290

Index

J v C (cont.): legal arguments (cont.): guardianship legislation, 30, 31, 32, 36, 44 jurisdiction, 32 parental disputes, 31 united parents, 30 parental disputes, 40–3 see also Parental disputes reaction case law, 34, 35 Children Act (1989), 36–7 publications, 33, 34 result paramountcy principle, 33 welfare principle upheld, 33, 36 significance, 27, 44 wardship proceedings, 29 Jurisdiction comity rules 32 common domicile, 75, 76 common residence, 75 domicile of dependence, 76 habitual residence, 76 nullity of marriage, 75 removal of child out of jurisdiction, 91–3 see also Relocation wife’s domicile, 76 Landmark developments abortion, 7 ancillary relief, 3, 4 see also Ancillary relief breaking with past doctrine, 4 bulwarks, 5 children’s autonomy, 6 children’s welfare, 3, 5, 8, 9, 10 see also Children’s welfare criteria, 2 discrimination, 6, 7, 10 divorce, 2 see also Divorce equality, 6, 7, 10 family property, 5 financial provision, 4 first precedents, 2, 3 gender recognition, 3 see also Gender recognition human rights, 4 see also Human rights influence of individual personality, 9, 11 judicial activism, 5 landmarks by outcome, 5 landmarks by reasoning, 5 legal development, 3, 4 legal interpretation, 3 legislative reforms, 6–8 marital rape, 4, 7 see also Marital rape

paramountcy principle, 4 parental authority, 5, 6 products of their time, 6 property rights, 4, 180 same-sex relationships, 1, 7 social change, 6–9 social policy, 9 teenage contraception, 7–9 see also Contraceptive advice underlying stories, 9–11 Legitimacy adulterine children, 115, 116 ascertaining the truth best evidence principle, 130 biological origins, 130, 131 child’s best interests, 130 child’s right to know, 130, 11, 133 human rights, 130, 132 paternity, 130–2 registration of biological parents, 132 births outside marriage, 115 children’s welfare, 103, 116, 119, 121, 122, 123–5, 128–30, 133 see also Children’s welfare effects of illegitimacy, 119, 122–5, 127 human rights, 130, 132, 155 intestacy, 115 Law Commission, 159 legitimacy/illegitimacy laws, 115, 116 legitimation by subsequent marriage, 116 legislation, 116 paternity issues, 113, 115, 127 presumption of legitimacy, 114, 115, 119 Marckx v Belgium background, 156–60 family relationships illegitimate child, 163 legal integration, 163 non-discrimination, 163 respect for private and family life, 163 human rights family law, 155, 159 legitimacy issues, 155 non-discrimination, 155, 160–4 peaceful enjoyment of possessions, 159, 164 respect for private and family life, 155, 160, 161, 163, 165, 166, 168 succession law, 155, 159 voluntary dispositions, 158, 159 illegitimate child adoption, 157, 158, 162 family relationships, 157–9, 161 formal recognition, 156–8, 161 human rights, 155 inheritance/succession, 157, 158, 159, 161 legal status, 157

Index maternal affiliation, 156, 157, 161 patrimonial rights, 157, 158, 161 succession law, 155, 159 voluntary dispositions, 158, 159 influence on family law comparative law, 169 ECHR compatibility, 169, 170 interpretation of ‘family’, 170 parental responsibility, 169 respect for private and family life, 168, 169, 171 sovereignty, 169 whole code of family law, 169, 170 influence on succession law differential treatment, 171, 172 illegitimate children, 170 judicial activism, 171 link to family law, 171 non-discrimination, 170–2 peaceful enjoyment of possessions, 170, 171 respect for private and family life, 171 testamentary disposition, 172 testamentary freedom, 173 testamentary interpretation, 173 voluntary dispositions, 170 interpretative techniques literal approach, 156 methodology, 159 teleological approach, 156 judicial interpretation, 165–7 Marckx, Paula, 156, 157, 173, 174 maternal affiliations family relationships, 161 formal recognition, 161 illegitimacy, 161, 163 inheritance rights, 161 non-discrimination, 162, 163 respect for private and family life, 161–3 voluntary recognition, 162 patrimonial rights inheritance rights, 157, 158, 161 intestate succession, 163, 164 non-discrimination, 164 peaceful enjoyment of possessions, 159, 164 respect for private and family life, 163 voluntary dispositions, 158, 163 significance family law, 155, 157, 168–71 interpretative techniques, 156 Law Commission, 164, 165 succession law, 155, 157, 170–3 wider implications, 165 Marital rape abolition, 225, 230, 231, 239 aggravating factor, 237, 239 assault, 231

291

breach of trust, 233, 234 consent assumption of consent, 237 irrevocable consent, 234 nature of consent, 239 positive act of consent, 229 presumption of consent, 229, 230, 237, 237 silence/submission not consent, 229 withdrawal of consent, 228–31 domestic violence, 238, 239 effects, 237 exemption assault/indecent assault, 226–8, 230 biblical support, 234 conservative religious beliefs, 235 continuing acceptance, 227, 234, 235, 239 family privacy, 236 husband’s legal authority, 235 insufficient authority, 226 judicial exceptions, 227, 229, 232, 233 justification, 234–6, 239 marital autonomy, 234 marital unity, 235 mutual matrimonial consent, 226, 227 normal persuasion, 228 origins, 226 personal autonomy, 234 presumption of consent, 226–30 State complicity, 235 underlying assumptions, 234, 235 human rights, 238 marriage/violence, 238 mitigating circumstances, 233 nature of marriage/sexual relations, 225 post-trauma distress, 237 public opinion, 232 relationship rape, 233 retrospective criminality, 231 sentencing, 232, 233, 237, 239 sex in marriage, 235 sexual abuse, 238, 239 social harm, 232 stranger rape, distinguished, 232–4 survey of victims, 236, 237 vulnerable individuals, 225 Marriage absence of cohabitation, 87 annulment, 14, 73, 75, 76, 77, 79, 80, 88, 89 arranged marriages, 84–5 see also Arranged marriages asylum/immigration practice, 84 autonomous/freely terminable relationships, 136, 153 avoiding deportation, 87 avoiding imprisonment/persecution, 74, 75, 88, 89 common licences, 84

292

Index

Marriage (cont.): community of property, 271, 275 consent, 76, 78, 79, 80, 82, 83, 86, 87, 89 consummation, 47, 48, 50, 52, 58, 59, 69, 71 decline in marriage rate, 127 dissolution, 74 duress 73, 76, 77, 79, 80 see also Duress equal partnership, 136, 153 forced marriages, 85, 86, 89 see also Forced marriages formulation, 73 irretrievable breakdown, 136, 137, 142 joint enterprise, 136 legal certainty, 75 male/female parties, 69 marital autonomy, 234 marital infidelity, 126, 127, 131 marital rape see Marital rape marital unity, 235 marriage ceremony, 50–2 marriages of convenience, 84 meaning of marriage, 58 mental reservations advantage unconnected with marriage, 82, 83 consent to marry, 82, 83 decision to marry, 82 English law, 82, 83 marriage duly celebrated, 82 private arrangements, 83 Scots law, 82, 87 sham marriages, 83 non-consummation, 14, 48, 50, 52, 59, 79 nullity, 59, 69, 74–6, 78, 79, 80, 86, 87 pre-nuptial agreements, 280, 281 privileged status, 127 prohibited degrees of relationship, 14 property rights of spouses see Property rights of spouses purported marriages, 47, 48, 50, 52, 71 purpose of marriage, 47, 48, 50 reason for marriage, 88 recognition, 51, 52 relationship of dependency, 136, 154 remaining/leaving a country, 87–9 remarriage, 14, 15, 19, 21, 25, 26, 74, 89 resident permits, 84, 87 right to marriage (Art 12 ECHR), 70, 84 same-sex marriage, 52, 71 see also Same-sex relationships sex in marriage, 235 sham marriages, 83, 88 significance, 71 situations of hardship, 75 social/legal changes, 136, 153, 154 State support, 238

validity of marriage, 48, 50–2, 58, 59, 68, 70, 71, 76–8 void marriages change from void to voidable, 79, 80 lack of consent, 80 voidable marriages annulment, 80 duress, 79, 80 lack of consent, 79, 80 Law Commission, 79 mental disorder, 79 non-consummation, 79 nullity, 79, 80 pregnancy by another man, 79 venereal disease, 79 Maternal affiliations family relationships, 161 formal recognition, 161 illegitimacy, 161, 163 inheritance rights, 161 non-discrimination, 162, 163 respect for private and family life, 161–3 voluntary recognition, 162 Matrimonial assets see Ancillary relief; Property rights of spouses Medical evidence biological features, 57 chromosomal test, 54 expert evidence, 53, 55, 56 intersexualism, 55, 56, 57 physical examinations, 54, 55 psychological factors, 57 quality of evidence, 53, 72 scientific knowledge, 56 Medical treatment adolescent capacity to decide, 214, 223 consent to treatment, 212, 214 Gillick competence, 213, 214 human rights, 218, 223 life-saving treatment, 213, 214, 218 medical profession, 211, 212 mentally disturbed adolescents, 213 parental responsibility, 214 parental right to consent, 214, 215 refusal of treatment, 212, 213, 218,, 223 One-third rule see also Ancillary relief acceptance, 149 continuing influence, 151 discriminatory, 154 effect, 149, 150 fair outcome, 154 low income families, 150 matrimonial home, 150 starting-point, 136, 149, 151, 154 substantial assets, 149–51, 154

Index uncertainty, 152, 154 unsuitability, 152–4 Paramountcy principle Children Act (1989), 36 children’s welfare, 27, 31, 33, 34, 36–8, 40–2 see also Children’s welfare generally, 4 human rights, 37–40, 44 legitimacy of the child, 113, 117, 122, 126, 129, 130, 133 see also Legitimacy parental disputes, 40, 41 relocation, 93, 95, 96, 98, 99, 102 Parental disputes children’s welfare, 40 see also Children’s welfare contact orders, 43 paramountcy principle, 40, 41 parental responsibility, 42 parental rights, 41 parenthood, 40–2 same-sex relationships, 42, 43 see also Same-sex relationships shared residence order, 42 third parties, 40–4 Parent-child relationships child protection proceedings, 209 children’s welfare, 210 child’s autonomy, 208 consultation, 208 decision-making, 208–10 discipline, 209 Gillick competence, 208 medical treatment, 214, 215 see also Medical treatment parental authority/rights, 199, 202, 203, 205–9 parental control, 208 parental disputes, 209 parental duties, 208, 209 parental responsibility, 208, 209 Patrimonial rights illegitimate children, 157, 158, 159, 161 inheritance, 157, 158, 159, 161 intestate succession, 163, 164 non-discrimination, 164 peaceful enjoyment of possessions, 159, 164 respect for private and family life, 163 voluntary dispositions, 158, 159, 163 Poel v Poel access to the child, 93 background, 92, 93 children’s welfare custody, 105–7 general assumptions, 110 harm to the child, 10 human rights, 108

293

importance of contact, 104, 105 joint parenting, 105–7 need for research, 110 paramountcy principle, 104 parental freedom, 103, 108 shared residence, 107 welfare principle, 93, 95–105 criticisms, 92, 102, 103 interpretation contemporary commentary, 97 custody, 98, 99 joint custody, 98 modern law, 101, 102 paramountcy principle, 98, 102 parental freedom, 97–9, 102 social/legislative changes, 101, 103 subsequent case law, 97 welfare principle, 97–100, 102 reappraisal, 92 relocation alternative care, 98 children’s welfare, 93, 95–102 child’s interests, 91 custody issue, 92–5, 101, 105–7 distress doctrine, 99–105, 110 educational concerns, 98 father’s interests, 94, 95, 108 interests of new family, 98, 100, 102, 106 irreconcilable interests, 91 joint parenting, 101, 102 judicial activism, 100 judicial discretion, 92, 95, 96 leave to remove child, 93–5 maintenance of the child, 93 paramountcy principle, 93, 95, 96, 98, 99, 102 parental freedom, 91, 94–9, 102, 103, 108 post-separation parenting, 102, 103, 105–7, 110, 111 removal of child outside the jurisdiction, 91, 93 significance, 91, 111 Pre-nuptial agreements enforcement, 280 public policy, 281 status, 281 Property held on trust adjustment of property rights, 180 beneficial interest, 179, 180, 182 common intention, 179, 180, 182, 183, 191, 192, 194–6, 198 constructive trust, 183 deemed intention, 181 division of proceeds, 179 equal shares, 179 fixtures and fittings, 179, 180 implied trust, 181, 184 imputed intention, 180, 181, 197

294

Index

Property held on trust (cont.): indirect contribution, 179, 180, 184, 196 law reform, 188, 189 resulting trust, 183, 184 sale of house, 179 shared assets, 179, 180, 182, 183 Property rights of spouses see also Ancillary relief community of property, 272, 275 definite property rights, 73 disinherited spouse, 273 divorce, 272, 273, 275 European jurisdictions, 272 family law reforms, 272, 273 husband’s management prerogative, 272 Law Commission views, 273, 275 legal title, 271, 272 separate property, 271 statutory provisions, 271–3 RvR see also Marital rape assault interference by assault, 230 occasioning actual bodily harm, 228, 229 background, 22 rape attempted rape, 228, 229 martial rape exemption, 225, 228–31 nature of consent, 239 positive act of consent, 229 presumption of consent, 229, 230, 237 retrospective criminality, 231 silence/submission not consent, 229 withdrawal of consent, 228–31 violence in intimate relationships, 225, 236, 237 significance, 234, 236 Rape attempted rape, 228, 229 consent assumption of consent, 237 nature of consent, 239 positive act of consent, 229 presumption of consent, 229, 230, 237 silence/submission not consent, 229 withdrawal of consent, 228–31 feminist writing, 237, 238 legitimate sexual intercourse, distinguished, 237, 238 martial rape exemption, 225, 228–31 see also Marital rape mitigating circumstances, 233 relationship rape, 233 retrospective criminality, 231 sentencing, 232, 233, 237, 239 stranger rape, 232–4 violence in intimate relationships, 225, 236,

237 Relocation alternative care, 98 case law, 92 children’s welfare, 93, 95–102 child’s interests, 91 custody issue, 92–5, 101, 105–7 distress doctrine, 99–105, 110 educational concerns, 98 father’s interests, 94, 95, 108 human rights, 103, 108 importance of contact, 104, 105 interests of new family, 98, 100, 102, 106 international context, 103, 109 internet contact, 105 irreconcilable interests, 91 joint parenting, 101, 102, 105 judicial activism, 100 judicial discretion, 92, 95, 96 leave to remove child, 93–5 maintenance of the child, 93 maternal distress, 103, 104 need for research, 110 non-resident parent, 104, 110 paramountcy principle, 93, 95, 96, 98, 99, 102 parental freedom, 91, 94–9, 102, 103, 108 post-separation parenting, 102, 103, 105–7, 110, 111 removal of child outside the jurisdiction, 91, 93 shared residence, 107 social/legislative changes, 101, 103, 111 Washington Declaration, 109 Removal from jurisdiction removal of child, 91, 93 Roos Case background, 13, 15–8 consequences, 21–4 demographic issues, 24 divorce a mensa et thoro, 14, 15, 18, 24, 25 a vinculo matrimonium, 19 adultery, 14, 23, 24, 26 cruelty, 14 desertion, 14 ecclesiastical courts, 18, 25 failed marriages, 24 first-ever divorce, 13–5 judicial separation, 14 legislative reform, 25, 26 moral standards, 25 private Acts of Parliament, 18–21, 24–6 royal intervention, 19, 20, 22, 23 dynastic issues, 15, 16, 17, 23 illegitimate son, 17, 18, 23 marriage annulment, 14

Index first marriage, 16, 17 marital infidelity, 17, 23, 24 non-consummation, 14 prohibited degrees of relationship, 14 remarriage, 14, 15, 19, 21, 23, 25, 26 succession, 19 see also Succession law S v McC (formerly S) and M (intervening) adultery, 120 background, 120 biological origins, 121, 122 blood tests, 113, 120, 123 see also Blood tests children’s welfare, 103 see also Children’s welfare child’s best interests, 121–3 effects of illegitimacy, 122, 123 interests of justice, 121, 122 legitimacy of the child, 120, 121 see also Legitimacy paramountcy principle, 122 social/financial factors, 121 SvS blood tests, 113 see also Blood tests children’s welfare, 116 see also Children’s welfare paternity, 131 presumption of legitimacy, 115 see also Legitimacy racial element, 131 significance, 128, 133, 134 Same-sex relationships acceptance of existing norms, 250 anti-assimilation model, 250 assimilation model, 249, 268, 269 basis of recognition care/devotion, 256–8 sexual partnership, 256–8 biological distinction, 260 conferral of legitimacy, 254, 256 equality, 250 familial nexus, 257 familial status, 246, 248–51, 253–8 familial ties, 241 family life, 262 legal status, 251 long-term commitment, 249 marriage, distinguished, 256 partnership recognition, 249, 252, 268 permanence/stability, 249 platonic relationships, 257, 258 protection from eviction, 247 retrospective legal recognition, 251 respect for private and family life, 253, 262 rights/responsibilities, 249 same-sex rights, 252

295

tenancies, 241–4 see also Tenancies Sexual orientation differential treatment, 242, 244, 264–9 discrimination, 244, 252, 263–6 distinction between couples, 241, 246 gay/lesbian relationships emancipation, 252 family status, 253 lesbian identity, 253 reform agenda, 253, 259, 269 rights, 242, 249, 250, 252, 259, 269 social attitudes, 269 human rights concerns, 263–6, 269 respect for private and family life, 264, 265 Spouse’s property rights see Property rights of spouses Succession law differential treatment, 171, 172 illegitimate children, 170 intestacy see Intestacy judicial activism, 171 link to family law, 171 non-discrimination, 170–2 peaceful enjoyment of possessions, 170, 171 respect for private and family life, 171 testamentary disposition, 172 testamentary freedom, 173 testamentary interpretation, 173 voluntary dispositions, 158, 159, 163, 170 Szechter v Szechter background, 73–5 choice of law, 76, 77 see also Choice of law divorce, 78 duress, 73, 76–83, 86, 89 see also Duress jurisdiction common domicile, 75, 76 common residence, 75 domicile of dependence, 76 habitual residence, 76 nullity, 75 wife’s domicile, 76 marriage annulment, 73, 75, 76, 77, 80, 88, 89 avoiding deportation, 87 avoiding imprisonment/persecution, 74, 75, 88, 89 consent, 76, 78, 79, 82, 89 dissolution, 74 duress, 73, 76–83, 86, 89, 79 formulation, 73 legal certainty, 75 nullity, 74–6, 78, 79 remarriage, 74 situations of hardship, 75

296

Index

validity, 77, 78 void/voidable marriage, 79, 80 proof of foreign law, 77 significance, 73, 89 Tenancies assured tenancy, 244, 264, 266 eviction, 242 market rent, 244 opposite sex cohabitants, 245 private sector tenancies, 242, 243, 246, 247, 266 Rent Act (1977) death of statutory tenant, 243 derived rights, 243 familial status, 246–9 gender-specific requirements, 244–6 living as husband and wife, 244–6, 260–2, 264 same-sex relationships, 246, 248 statutory tenancy, 243, 244 succession rights, 243, 244 surviving member of tenant’s family, 244, 245, 246, 248, 249 surviving spouse, 244, 245 same-sex couples, 241–4 security of tenure, 265 succession rights, 241–4, 266–9 Transsexuals biological factors, 48 change of sex female to male 60–2, 72 hermaphrodites, 62 male characteristics, 62 male to female, 60, 64, 70 reassigned sex, 68 gender recognition, 48, 68 see also Gender Recognition human rights, 67–70 medical evidence, 53–7, 72 see also Medical evidence reassignment surgery, 48, 49, 59 social acceptance, 68 transsexualism, 48 Trusts cohabitation, 175, 176, 190–4 see also Cohabitation common intention, 179, 180, 182, 183, 191, 192, 194–6, 198 constructive trusts, 175, 183, 191, 192, 194–6, 198 developing special rules, 191–4 implied trust alternative doctrine, 181 orthodox doctrine, 181, 184 proprietary estoppel, 181 judicial law reform, 187–90, 193, 194, 198 see also Judicial law reform

orthodox principles, 197 presumption of intention, 190, 191 property held on trust adjustment of property rights, 180 beneficial interest, 179, 180, 182 common intention, 179, 180, 182, 183, 191, 192, 194–6, 198 constructive trust, 183 deemed intention, 181 division of proceeds, 179 equal shares, 179 fixtures and fittings, 179, 180 implied trust, 181, 184 imputed intention, 180, 181, 197 indirect contribution, 179, 180, 184, 196 law reform, 188, 189 resulting trust, 183, 184 sale of house, 179 shared assets, 179, 180, 182, 183 purchase of property, 190, 191 resulting trust, 183, 184, 190, 191 W v Official Solicitor ascertainment of truth, 125, 126 best evidence principle, 125 blood tests, 113, 123–6 see also Blood tests children’s welfare, 116, 123–5 see also Children’s welfare child’s best interests, 123–6 effects of illegitimacy, 124, 125 interests of justice, 125 jurisdictional issues, 124–6, 129 paramountcy principle, 126 paternity, 131, 126 presumption of legitimacy, 115 see also Legitimacy public interest considerations, 126 racial element, 131 significance, 128, 133, 134 truth and justice issues, 123 WvW adultery, 117, 118 ascertaining the truth, 119 background, 117 best evidence principle, 119 blood tests, 113, 117, 119 see also Blood tests children’s welfare, 113, 119 see also Children’s welfare child’s best interests, 117–9 effects of illegitimacy, 119 interests of justice, 119 maintenance payments, 117–9 paramountcy principle, 117 paternity, 118 presumption of legitimacy, 119 social parenthood, 118

Index support for marriage, 119 Wachtel v Wachtel ancillary relief allocation of assets, 136 avoiding litigation, 142 clean break principle, 154 degree of blame, 138 division of capital, 141, 144, 149–54 financial position prior to breakdown, 136 joint incomes, 136 judicial discretion, 136 maintenance, 137, 138, 140, 143 matrimonial conduct, 135–9, 142, 143 negotiated settlements, 142 one-third rule, 136, 139, 140, 142–4, 149–51, 154 periodical payments, 135, 136, 152, 153 purchasing power, 139 redistribution of assets, 139

rising costs, 142, 153 wife’s compassionate allowance, 137 background, 136, 137, 140, 141 laying down guidelines, 141 significance, 135–6, 140, 144, 152 subsequent developments, 144–52 treatment of conduct, 142, 143 White v White background facts, 276 discretionary powers, 278 discriminatory awards, 277 division of assets, 276–8 equal sharing of property, 278, 280, 281 fair financial arrangements, 277, 278 impermissible interpretations, 278, 279 non-financial contribution, 278 reasonable requirements doctrine, 276–9 separate property, 276

297