A trilogy of important family law cases

July has been a legally busy month with numerous court decisions and other events.  August is usually a little quieter but we shall see!  In this post I draw attention to three recent cases which illustrate the immensely difficult work undertaken by the judges in the High Court's Family Division and in the Court of Protection.  I am not attempting any detailed analysis of the decisions but will say enough to try to bring out the key points.

XCC v AA and others [2012] EWHC 2183 (COP) - Parker J - judgment

This is not an entirely straightforward case but it basically concerned whether there were grounds in English law not to recognise a marriage entered into in Bangladesh between persons referred to as DD and AA.  Parker J concluded that there were "overwhelmingly strong public policy grounds and welfare grounds not to recognise the marriage" and he made a declaration accordingly.

DD has a very significant degree of learning disability, little language, very little comprehension of anything other than simple matters, and needs assistance with almost all aspects of her daily life. Her parents
are originally from Bangladesh, but have lived in this country for many years and brought up their family here. All family members are British citizens.  In 2003 DD was married in Bangladesh by arrangement to AA.

Clearly, given DD's condition, there was every reason to question whether she had capacity to marry and to give consent to sexual relations.  Parker J concluded that it was in DD's best interests for nullity proceedings to be instituted. The court cannot institute such proceedings in nullity itself.  The Official Solicitor can act as  DD's litigation friend for the purpose of commencing such proceedings and is willing to do so subject to the availability of public funding.

This is a very detailed judgment but well worth reading carefully.  Professionals should pay particular attention to paragraph 96 where Parker J considered their duties in cases of non-capacitous marriage.

NHS Trust v Baby X and others [2012] EWHC 2188 (Fam) Hedley J - judgment.

This is a sad and tragic case.  Hedley J began by saying - "The question in this case is whether a baby known as X should be removed from a ventilator and made the subject only of palliative care. As the evidence is that he will almost certainly die within minutes, or at best hours, of such removal, it will be readily apparent that this case is both tragic and difficult."  X was born a healthy child in 2011, the first and only child of a married couple Mr. and Mrs. X.  In May 2012 he suffered a catastrophic accident at home which resulted in chronic, profound and irreversible brain damage. No suggestion has ever been made that either parent was culpable and the learned judge said that it "was nothing more nor less than a wholly unforeseeable disaster."  Baby X has received exemplary care in hospital but the medical staff formed the view that it was no longer in X's best interests to remain on artificial ventilation as no improvement is to be expected and that this treatment has now become futile.  The parents opposed that view feeling that X should be given every chance to live and they believed that there were signs of improvement.  Further, their faith prevented them giving consent in the present circumstances to a course which will almost inevitably lead to death.

Hedley J concluded that X could be placed on palliative care which would require planning and management.  The Judge did not make an order of the court but just a declaration that so to treat would be lawful as being in X's best interests. The treating team must of course satisfy themselves that this remains the case when they decide to withdraw ventilation and/or decline any other aggressive, invasive treatment.

As Hedley J said -the sorrow of Mr and Mrs X can only be grasped by those who also have passed through the valley of the shadow of death with their own children.

CA (A Baby) [2012] EWHC 2190 (Fam) - Hedley J - judgment

This case concerns agreements reached between parents and local authorities under section 20 of the Children Act 1989 (Provision of accommodation for children).   It is far from uncommon for such agreements to be reached but Hedley J has emphasised that the agreements are lawful only if entered into by a parent who has the requisite capacity to agree.  All consents must be considered in the light of sections 1 to 3 of the Mental Capacity Act 2005.  Even where there is capacity, the consent must be informed and fairly obtained.  Particular considerations arise in respect of separation of mother and child at the time of birth and it is with this that the judgment is principally concerned.

The judgment gives guidance to social workers in respect of obtaining consent under Section 20 from a parent to the removal of a child immediately or soon after birth?  Hedley J noted that excessive prescription had to be avoided as no such guidance can prevail against human capacity to produce wholly unforeseen situations.

The guidance is at paragraph 46 of the judgment and ought to be very carefully noted by social workers.   The President of the Family Division approved paragraph 46.