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Contents...

1

January 2015......................................................................................................................... 4

8

August 2015............................................................................................................................ 58

TO IMPUTE OR NOT TO IMPUTE; THAT IS THE QUESTION........................................................ 4

Actual Intentions..................................................................................................................... 4

Introduction............................................................................................................................. 58

Inferred Intentions................................................................................................................... 6

A Definition.............................................................................................................................. 58

Imputed Intentions................................................................................................................. 6

The Female Genital Mutilation Act 2003 and Part 11 FPR 2010......................................... 59

Jones v Kernott (2011) UKSC 53............................................................................................ 10

Re B & G (Children) (No.2) [2015] EWFC 3........................................................................... 63

To Impute or not to Impute?.................................................................................................. 12

Significant Harm...................................................................................................................... 63

The Welfare Analysis............................................................................................................... 66

Expert Evidence...................................................................................................................... 66

2

February 2015....................................................................................................................... 14

CARE PROCEEDINGS WHERE ONE PARENT MURDERS ANOTHER – IMPLICATIONS FOR

Conclusion............................................................................................................................... 66

PRACTICE................................................................................................................................. 14

London Borough of Croydon V BU and others [2014] EWHC 823..................................... 17

9

London Borough of Waltham Forest v F and Others [2014] EWFC 13............................... 18

Conclusion............................................................................................................................... 19

3 4

September 2015................................................................................................................. 68 Financial Order proceedings in the High Court.................................................................. 68

Introduction............................................................................................................................. 68

March 2015............................................................................................................................. 20

FEMALE GENITAL MUTILATION - A SERIOUS ISSUE AND A SERIOUS RESPONSE................... 58

WITHOUT NOTICE NON-MOLESTATION ORDERS................................................................... 20

Certification and Allocation.................................................................................................. 68

Case Progression.................................................................................................................... 70

The PTR..................................................................................................................................... 70

Conclusion............................................................................................................................... 72

April 2015.................................................................................................................................. 28

PROPRIETARY ESTOPPEL – A USEFUL ALTERNATIVE IN ToLATA CLAIMS................................. 28

10 October 2015........................................................................................................................ 74

Summary of Principles............................................................................................................ 35

5

May 2015.................................................................................................................................. 36

6

11 November 2015.................................................................................................................. 84

EU-WIDE PROTECTION ORDERS AND THE NEW PART 38 FPR 2010...................................... 36

June 2015................................................................................................................................. 40

PUBLICITY IN FINANCIAL PROCEEDINGS – DIFFERING PERSPECTIVES................................. 74

Agreements in Family Cases................................................................................................. 40

Proper Evidence..................................................................................................................... 84

The linking of facts to be proved to the issue of significant harm.................................... 85

Future Impact of the Decision............................................................................................... 86

Comment................................................................................................................................ 88

Introduction............................................................................................................................. 40

The Granatino effect (Granatino v Radmacher [2011] AC 534)...................................... 41

12 December 2015.................................................................................................................. 90

Recent Case Law................................................................................................................... 44

EVIDENCE AND THE THRESHOLD CRITERIA............................................................................ 90

SA V PA (PRE-MARITAL AGREEMENT: COMPENSATION) [2014] EWHC 392........................ 44

S 20 Consent – Its use and Abuse......................................................................................... 90

Luckwell v Limata (2014) EWHC 502..................................................................................... 45

Re W (Children) [2014] EWCA Civ 1065................................................................................ 90

MANN v MANN (2014) EWHC 537......................................................................................... 46

(Medway Council v M, F and G (2014) EWHC 308)............................................................ 93

M v W (Application after New Zealand Financial Agreement) (2014) EWHC 925......... 47

Conclusion............................................................................................................................... 98

Y v Y (Financial Remedy: Marriage Contract) [2014] EWHC 2920.................................... 47

Hopkins v Hopkins, March 2015............................................................................................. 48

S v S (2014) EWHC 7................................................................................................................ 49

The Law Commissions Report on Matrimonial Property, Needs and Agreements

(27/2/14).................................................................................................................................. 50

7

July 2015................................................................................................................................... 52

APPEALS – TIME FOR A RETHINK............................................................................................. 52

CS v ACS & BH (2015) EWHC 1005........................................................................................ 52

Permission................................................................................................................................ 52

Consent Orders....................................................................................................................... 53

Barder Appeals....................................................................................................................... 54

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Chapter 1 January 2015

TO IMPUTE OR NOT TO IMPUTE; THAT IS THE QUESTION In order to establish a beneficial interest pursuant to a constructive trust one has to establish two things: 1. A common intention to share the beneficial interest, and

2.

An act by the asserting party to their detriment in reliance upon that common intention. (Gissing v Gissing (1971) AC 886).

There are two ways of establishing a common intention: The first is by way of actual direct evidence of an express oral agreement.

The second is by way of an inference through conduct whereby common intention is deduced objectively from that conduct.

The classic definition in respect of each of these scenarios can be found in the case of Lloyds Bank v Rosset (1991) 1 AC 107.

Actual Intentions “the first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding between them that the property is to be shared beneficially. The finding of an arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made, it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust�

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Inferred Intentions “in sharp contrast with this situation, but a different one, where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been to the parties to reach such an agreement if they had applied their minds to the question, and where the Court must rely entirely on the conduct of the parties, both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust.”

Imputed Intentions “Unless it is possible to infer from the conduct of the spouses at the time of their concerted action in relation to acquisition or improvement of the family asset that they did form an actual common intention as to the legal consequences of their acts upon the proprietary rights in the asset the court must impute to them a constructive common intention which is that which in the court’s opinion would have been formed by reasonable spouses.”

(Pettitt v Pettitt (1970) AC 777) “…………. There is a wide gulf between inferring from the whole conduct of the parties that there probably was an agreement, and imputing to the parties an intention to agree to share even where the evidence gives no ground for such an inference. If the evidence shows that there was no agreement in fact then that excludes any inference that there was an agreement. But it does not exclude an imputation of a deemed intention if the law permits such an imputation”.

(Gissing v Gissing [1971] AC 886) Thus in the case of Oxley v Hiscock (2004) it was held that it was also permissible: “to supply or impute a common intention as to the parties respective shares (in circumstances in which there was, in fact, no common intention) on the basis of that which, in the light of all material circumstances (including the acts and conduct of the parties after acquisition), is shown to be fair….”

This was seized upon in Stack v Dowden (2007) 1 FLR 1858 where Baroness Hale said that one must “search to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it”.

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However she also went on to say that “The search is …for the result which the parties must, in light of their conduct, be taken to have intended…………the court (may not) abandon that search in favour of the result which the court considers fair”.

However Neuberger LJ rejected the concept of imputing an intention as this seemed to run counter to the Trusts of Land and Appointment of Trustees Act which limits the Courts powers as to Declaratory Relief only which was the rationale for dispensing with any notion of an award on the basis of ‘fairness’ as opposed to based on the parties intentions be they express or inferred.

“An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deducted from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.”

In Kernott v Jones (2010) EWCA Civ 578 the reference of Baroness Hale to ‘imputation’ was further questioned on the basis that the court cannot invent an ‘intention’ where one cannot be inferred! “it is possible that she was suggesting……..the court … ascribe to the parties an intention that they neither expressed nor inferentially had: in other words, that the court can invent an intention for them. That, however, appears unlikely, since it is inconsistent with Baroness Hale’s repeated reference to the fact that the goal is to find the parties’ intentions, which must mean their real intentions.’

“I accordingly do not myself interpret Stack as having intended to enable the courts to find, by way of the imputation route, an intention where none was expressly uttered nor inferentially inferred.”

Lasker v Lasker [2008] EWCA Civ 347 is interesting in that whilst commenting that although “fairness” is not the basis upon which the court reaches a decision in these kinds of cases it was not unhelpful to see whether the outcome arrived at seemed unjust: “It is sensible to stand back and see whether that looks a fair result……………it does seem to me that it is not unhelpful to see whether the outcome ….seems unjust, because if it is, it may be worth revisiting the reasoning”.

In the High Court in Kernott v Jones (on appeal from the County Court) Nicholas Strauss QC held (following HHJ Dedman in the court below):

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“In my view, what the majority in Stack held was only that the court should not override the intentions of the parties, in so far as that appears from what they have said or from their conduct, in favour of what the court itself considers to be fair……… the court must not impose its view..………..To the extent that the intention of the parties cannot be inferred, the court is free……..to impute a common intention to the parties. Imputing an intention involves…………..attributing to the parties an intention which they did not have, or at least did not express to each other. The intention is one which the parties “must be taken” to have had. It is difficult to see how this process can work, without the court supplying, to the extent that the intention of the parties cannot be deduced from their words or conduct, what the court considers to be fair. ” Thus the linking in with imputation and fairness was back on the agenda as was in Oxley v Hiscock.

Jones v Kernott (2011) UKSC 53 The following principles can be extrapolated from the Judgement:

(i)

The starting point where a family home is bought in joint names is that they

own the property as joint tenants in law and equity in equal shares i.e.

equity follows the law; (in sole name cases however there is no such

presumption (see Oxley v Hiscock (2005))

(ii)

That presumption can be displaced by showing (a) that the parties had

a different common intention at the time when they acquired the home,

or (b) that they later formed the common intention that their respective

shares would change (ambulatory);

(iii) Common intention, if it can be inferred, is to be objectively deduced

from the conduct and dealings between the parties. “The relevant

intention of each party is the intention which was reasonably

understood by the other party to be manifested by that party’s words

and conduct notwithstanding that he did not consciously formulate that

intention in his own mind or even acted with some different intention

which he did not communicate to the other party” (Gissing v Gissing

[1971] AC 886);

(iv) Where it is clear that they a) had a different intention at the outset or

b) had changed their original intention, but it is not possible to ascertain

by direct evidence, or by inference, an actual intention as to their

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respective shares, then the court is entitled to impute an intention that

each is entitled to have based upon that “which the court considers

fair having regard to the whole course of dealing between them in relation to the property”. “The whole course of dealing ... in relation to

the property” should be given a broad meaning, enabling a similar range

of factors to be taken into account as may be relevant to ascertaining

the parties’ actual intentions and;

Each case will turn on its own facts; financial contributions are relevant

(v)

but there are many other factors which may enable the court to decide

what shares were either intended or fair.

The majority expressed the view that despite their conceptual differences there was no real practical difference between inferring and imputing. (Lady Hale, Lord Walker, Lord Collins).

“Subjective intentions can never be accessed directly, so the court must always direct itself to a consideration of the parties’ objective intentions through a careful consideration of the relevant facts. The point is that the imputation/inference distinction may well be a distinction without a difference with regard to the process of determining parties’ intentions. It is not that the parties’ subjective intentions are irrelevant but rather that a finding as to subjective intention can only be made on an objective basis.”

Lord Collins said “one person’s inference will be another person’s imputation” and it would be difficult to imagine a scenario where in the absence of express agreement the court would infer a shared or common intention which is unfair.

This clearly has to be right when approaching the exercise from the angle of the Judge through the appliance of what is known as ‘judgecraft’.

To Impute or not to Impute?

In the case of Oxley v Hiscock (2004) Lord Justice Chadwick analysed the position as follows: a. The primary question – was there a common intention that each should

have a beneficial interest in the property? (Sole name Cases) or - Did the

parties intend their beneficial interests to be different from their legal

interests? (Joint names Cases)

The secondary question – if so what is the extent of that interest?

b.

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At this first stage one has to ascertain the parties ‘actual’ shared intention (i.e. an intention common to both parties) whether expressed orally or inferred objectively from conduct. At this stage there is no room for imputation as this only arises when one reaches the question as to computation being the Second Stage (The Secondary Question) “Whether the beneficial interests are to be shared at all is still a question of a party’s actual shared intentions. An imputed intention only arises when the court is satisfied that the parties actual common intention, express or inferred, was that the beneficial interest would be shared but cannot make a finding about the proportions in which they were to be shared…”

(Geary v Rankine (2012) EWCA Civ 555)(See also Thompson v Hurst [2012] EWCA Civ 1752) However recent High Court decisions seem to have brought in the notion of imputation when answering the primary question more notably Bhura v Bhura (No 2) (2014) EWHC 727 and Thandi v Sands [2014] EWHC 2378. This is a path that the Court of Appeal has clearly expressed must not be taken as imputation can only arise when dealing with the secondary question and even then when the Court is unable to answer that question by reference to actual or inferred intentions.

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Chapter 2 February 2015

CARE PROCEEDINGS WHERE ONE PARENT MURDERS ANOTHER – IMPLICATIONS FOR PRACTICE Children are resilient that much is true. However that resilience can be stretched at times. Parents divorce, die and in some cases children are removed in order to secure their safety. However I would imagine that all this pales into insignificance where a child is placed in a situation where one parent murders another and even worse if they are witness to that event.

What therefore of the statutory responsibilities of local authorities where this happens in order to protect a child from further harm and offer the necessary and indeed essential therapeutic support in order to minimize the long term emotional harm that will inevitably be caused by such trauma?

Thankfully there is case law offering essential practical guidance in these kinds of situations which is mandatory for Local Authorities to be aware of and follow the first and most important of which is Re: A & B (One Parent Killed by Another) [2010] EWHC 825 which establishes the following important points of principle:

•

In all cases where one parent has been killed by the other the threshold

will be met. The Authority should give immediate consideration to issuing

care proceedings and appoint a social worker for the affected sibling

group given the need for the Local Authority to take a leading role in

terms of exercising Parental Responsibility given that it would not be

appropriate to leave the extended family to attempt to resolve matters

through private law proceedings.

A Guardian should be appointed at the earliest opportunity and the

•

case transferred to the High Court. Early consideration should be given to

interim placement and contact arrangements.

The emphasis throughout is to be on planning and avoiding delay not only

•

in terms of the court process but also in relation to obtaining specialist

therapy and other help for the child(ren) and other family members.

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15

•

There should be liason between the Local Authority and both the police

and the child(ren’)s school and, in relation to any concurrent criminal

proceedings, between the criminal courts and the care courts, using

existing protocols or joint case management hearings

Professionals must familiarise themselves with any specialist guidance and

•

advice, in particular, expert advice should be sought regarding contact

with key relatives Delay in providing therapy for the child(ren) must be

kept to a minimum. School age children should be kept informed.

If the killing took place in the family home the Local Authority should liaise

•

with the police to recover children’s toys and clothes and put immediate

financial and practical support in place for carers.

•

Expert advice should be sought in planning contact.

•

If there is conflict within the family such contact decisions should be made

by the court.

In relation to placement this should be looked at on individual merits.

•

There is no presumption that the perpetrator’s family should be

discounted.

This guidance has recently been revisited in the case of Birmingham City Council v AB & Others [2014] EWHC 3090 Here the local authority sought care and placement orders in respect of three children whose mother had been violently killed by the father. The maternal grandmother had sought to protect the mother and children from the father and at the time of the mother’s death the children were living with her. They were removed from her care under an interim care order and remained in foster care due to the grandmother’s arrest for stealing from the children’s criminal injury compensation.

In the circumstances of this case, despite the advantages of being placed with a family member there was overwhelming evidence that to do so was not in the best interests of the children. Adoption was a last resort but the right thing for the children was a new start away from the family difficulties that continued to exist.

The local authority had failed in numerous areas of the case and, in particular, leaving a relation to take private law proceedings where there had plainly been the gravest significant harm to children was an abnegation of their responsibility.

Furthermore, the failure by CAMHS to begin therapeutic work with the children was particularly concerning and a closer link between the authority and the therapeutic services was needed.

16

The judge provided guidance on best practice in cases where one parent was killed by the other: “In cases in future of one partner killing the other seems to me that, first; the local authority must commence a care application as a matter of urgency, the threshold criteria being plainly met. It may of course be that children never leave the care of a relation after the event, but the local authority should give the case a clear steer. A delay of even a few weeks is unacceptable as the local authority needs at once to have parental responsibility as no one else will have it save for the murderer. Second, the case should immediately be transferred to the High Court and it is for the liaison judge to decide whether or not the case can be released to a section 9 judge for case management and/or trial. Third, the local authority must do what it can to promote bereavement counseling for the children. Fourth, the local authority must bear in mind the children will have inevitable therapeutic needs and an appropriate psychiatric report should be engaged to examine these. Fifth, if the local authority is to place or leave the bereaved children with a close family member the local authority must as a matter of course urgently properly assess the family member who may himself or herself be suffering from loss arising from the killing and who may have difficulties in their own life and need careful evaluation. This was not done in this case and the traumas of the children have almost certainly been accentuated as a result.”

Other cases of note are:

London Borough of Croydon V BU and others [2014] EWHC 823 The mother of the 7-year-old child was brutally murdered by the father. The child who tried to protect the mother also sustained injuries and was found by emergency services with her mother’s body, covered in blood. She was initially placed with her maternal aunt but when the aunt’s grief proved too much for her to continue caring for the child she was moved to a long-term foster placement. The father was convicted of murder and sentenced to a term of imprisonment. Following the criminal proceedings the child wrote a thank you letter to the judge.

The local authority sought a final care order with a care plan for the child to remain with her current long-term foster carers. The maternal grandfather, step grandmother and grandmother were joined as parties to the proceedings. The first two parties sought to care for the child in the long term but the maternal grandmother opposed that proposal. However, when the child expressed a wish to remain with her current carers the maternal family withdrew their proposals to care for her but they now sought ongoing contact with the child.

17

The social worker and guardian, on the basis of the child’s expressed wishes, proposed that the child should have supervised contact with her two maternal aunts and cousin on a monthly basis and supervised contact with the three grandparents separately on a bi-monthly basis. The maternal grandmother and step grandmother opposed what amounted to a reduction in contact with the child.

Prior to the hearing the child sent a letter to the judge expressing her wish to remain with her foster carers and for contact to take place with maternal family members as proposed by the local authority.

In the circumstances there was no doubt that the threshold had been crossed. It was clear that the child’s real wish was to remain in her current placement and where no party opposed that course this was the plan that best accorded with her welfare interests. In accordance with the expert and professional consensus, it would not be in her interests to have any form of contact with the father, until that view changed and it would be in her welfare interests to do so and would be compatible with her therapeutic needs. A s 34(4) order was made permitting the local authority to withhold all contact with the father. The regime of contact with maternal family members proposed by the local authority was approved.

London Borough of Waltham Forest v F and Others [2014] EWFC 13 The father stabbed the mother to death in the family home in front of the 3-year-old child. He was convicted of murder and sentenced to life imprisonment with a 21-year minimum term.

The child was taken into police protection and placed with foster carers. A number of family members living her and in Rwanda put themselves forward as potential carers. The local authority supported by the guardian sought the placement of the child under a special guardianship order with the maternal aunt and her husband in Rwanda.

The father initially opposed the application and sought the child’s adoption by the current foster carers but just prior to the hearing he informed the court that he now supported the local authority application.

The judge applied the guidance given in Re A & B (One Parent killed by the other – Guidance) [2010] EWHC 825 and took into account evidence from a child and adolescent psychologist as well as the evidence of an independent social worker who had conducted an assessment of the maternal aunt and uncle in Rwanda.

18

It was accepted that the child would need ongoing therapy for years to come and a suitable psychiatrist had been identified in Rwanda. The independent social worker reported that the child had a large supportive family in Rwanda including her three cousins and her maternal grandmother.

There was no doubt that it was in the child’s welfare best interests for a special guardianship order to be made in favour of the maternal aunt and uncle.

The local authority made an oral application at the end of the welfare hearing for a prohibited steps order preventing the father from having or making contact with the child.

The father’s representative opposed the application on the basis that he had not had notice and that a formal application should be issued.

Evidence from a consultant child and adolescent psychiatrist was given that it was not in the child’s best interests to have contact with the father.

The judge found that it was entirely unnecessary and disproportionate to require a formal application to be made and that a further hearing was wasteful of scare public funding resources.

The Prohibited Steps Order was in the child’s best interests to protect her from unauthorised contact by the father. The father was given leave to make submissions to vary or discharge the order. The order enabled the special guardians to permit further contact if it fitted with the child’s therapeutic needs. It was vital to the child’s emotional and psychological wellbeing that any contact with the father was strictly controlled.

Conclusion In essence in all cases where one parent is killed by the other, the threshold criteria in s 31 will be met; that is a ‘given’ as the only surviving person with parental responsibility is likely to be the murderer. The authority should issue immediate care proceedings, including appointing a social worker to liaise with the legal department, and do everything possible to avoid compounding an already tragic situation.

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Chapter 3 March 2015

WITHOUT NOTICE NON-MOLESTATION ORDERS Obtaining a non-molestation order does not have a high threshold.

The Governmental definition of Domestic Violence now reads: “Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: • Psychological • physical • sexual

•

financial

• emotional Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”

Despite this extensive definition neither the term ‘molestation’ nor “harassment” appears within the definition which is surprising given its inclusion in the Family Law Act 1996 and the Protection of Harassment Act 1997.

To that we must turn to case law:“(Molestation)……….implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party so as to justify the intervention of the court……….there has to be some conduct which clearly harasses and affects the Applicant to such a degree that the intervention of the court is called for…..”

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(C v C (Non Molestation: Jurisdiction) (1998) 1 FLR 554) In Vaughan v Vaughan [1973] 3 All ER 449 the court considered the definition of molestation in the Shorter Oxford Dictionary, namely “to cause trouble; to vex; to annoy; to put to in inconvenience”.

It has been held to include conduct, which does not amount to violent behaviour (Davis v Johnson [1979] AC 264).

Moreover the term “molest” applies to any conduct which can properly be regarded as constituting such a degree of harassment as to call for the intervention of the court.

Under s.7 (2) of the PHA 1997, harassing someone includes alarming the person or causing them distress.

The OED definition of the phrase is: “To subject (an individual or group) to unwarranted (and now especially unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.’ “harassment…….includes within it an element of intent, intent to cause distress or harm” (Johnson v Walton (1990) 1 FLR 350) “’Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.” (Thomas v News Group Newspapers Ltd (2001) EWCA Civ 1233) The criteria for the making of a non-molestation order is set out in s42 (5) and is extremely wide namely “all the circumstances including the need to secure the health, safety and well being of the applicant or relevant child” The following three principles can be extrapolated from case law when deciding whether to grant a non-molestation order:

(a) There must be evidence of molestation.

(b) The applicant or the child must need protection.

(c) The judge must be satisfied on the balance of probabilities that judicial

intervention is required to control the behaviour which is the subject of the

complaint.

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The emphasis therefore is to focus the attention on the effect of the conduct rather than the nature of it.

Under s42 (7) a non-molestation order may be made for a specified period or until further order. Generally orders run for 6 months to 12 months.

In M v W (Non-Molestation Order: Duration) [2000] 1 FLR 107 it was suggested that orders should not be made open ended i.e. “until further order” unless there were exceptional or unusual circumstances.

However in Re B-J (A Child) (Non-Molestation Order: Power of Arrest) [2000] 2 FLR 443 it was held that an order could be made indefinitely where circumstances warrant it.

S 45 (1) FLA 1996 gives the court the power to grant an order without notice where it considers it “just and convenient” to do so.

Re J (Abduction: Wrongful Removal) [2000] 1 FLR 78 held that the without notice procedure itself does not constitute a violation of Art 6 provided the opposing party has the opportunity to set the order aside.

Although the Act clearly gives the court the authority to make either (or both) a non-molestation order or an occupation order without notice, it would require exceptional circumstances to deprive a respondent of their home on such a basis.

Wookey v Wookey; Re S (a minor) [1991] 2 FLR 319 held that the Court, before proceeding with a without notice application, should first of all consider whether it would be best to give at least ‘informal notice’ i.e. short notice (as informal notice is better than no notice at all (G v G (Ouster: Ex parte application) (1990) 1 FLR 395)) or, indeed, as more often is the case, abridge time for service.

‘An Ex Parte Order should be made only when either there is no time to give the Defendant notice to appear, or when it is reasonable to believe that the Defendant, if given notice, would take action which would defeat the purpose of the Order.’

Loseby v Newman [1995] 2 FLR 754.

‘Ex parte applications for injunctions should, in general, only be made where there are strong grounds to justify such an application, where there is real urgency and impossibility of giving notice. It will often be preferable to abridge time, and the Respondent may attend on short notice. In cases such as an application for a non molestation order, the presence of both sides may well lead to agreed undertakings and the opportunity for the Judge to try to reduce the tension of family disputes and to underline the importance of compliance with the undertaking accepted or the order granted.’

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Wookey v Wookey; re S (A Minor) [1991] 2 FLR 319.

‘A string of authorities in this court emphasise the draconian nature of such an order and that it should be restricted to exceptional cases. I do not myself think that the wider statutory provisions contained in the Family Law Act 1996 obliterate that authority. The order remains draconian, particularly in the perception of the Respondent. It remains an order that overrides proprietary rights and it seems to me that it is an order that is only justified in exceptional circumstances.’

Chalmers v Johns [1999] 1 FLR 392.

In Re S (Ex Parte Order) [2001] 1FLR 308 at 320 Munby J (as he then was) set out the principles which should be followed on applications for ex parte injunctions: “Those who seek relief ex parte are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or law. The principle is as applicable in the Family Division as elsewhere. Those who fail in this duty, and those who misrepresent matters to the court, expose themselves to the very real risk of being denied interlocutory relief whether or not they have a good arguable case or even a strong prima facie case.”

•

The claimant’s counsel must put the defendant’s case fairly and candidly

and draw the judge’s attention to any relevant affidavits.

•

No information may be given to the judge at a without notice hearing

which could not be repeated to the other party.

Furthermore Information put before the Court to substantiate such an order should be subject to the closest scrutiny and if the applicant is not present, there should be a contemporaneous note of instructions. If that is unavailable a short adjournment may be needed to verify the information relied upon (KY v DD (2011) EWHC 1277) If additional information is put to the court orally, there also has to be a direction for the filing of evidence to confirm the information within a very short time.

It is incumbent upon those advising about a without notice application to consider vigorously whether it was justified and be clear as to the evidential basis.

KY v DD (Without Notice Applications) (2011) EWHC 1277 In determining whether to exercise its powers under S 45 (1), the court shall have regard to all the circumstances including –

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(a) Any risk of significant harm to the applicant or a relevant child,

attributable to conduct of the respondent, if the order is not made

immediately;

(b) whether it is likely that the applicant will be deterred or prevented from

pursuing the application if an order is not made immediately; and

(c) Whether there is reason to believe that the respondent is aware of the

proceedings but is deliberately evading service and that the applicant or

a relevant child will be seriously prejudiced by the delay involved.

More recently in R v R (2014) EWFC 48 it was held that the following important principles applied to orders made in proceedings under the Family Law Act 1996:

(a) the default position of a judge faced with a without notice application

should always be “why?” and not “why not?”. Without notice orders could

only be made in exceptional circumstances and with proper

consideration for the rights of the absent party;

(b) the court should use its sweeping powers under the 1996 Act with caution,

particularly at a one-sided hearing. Where an order was made, it was

the court’s responsibility to ensure that it was accurately drafted. That

consideration applied with special force when a breach of the order

would amount to a criminal offence;

(d) extra injunctive provisions such as exclusion areas and orders prohibiting

any direct communication between parties should not be routinely

included in non-molestation orders. They were serious infringements of a

person’s freedom of action and required specific evidence to justify them;

(e) the court should be on guard against the potential for unfairness arising

from the Legal Aid, Sentencing and Punishment of Offenders Act 2012,

whereby the applicant was entitled to legal representation as a result of

unproven allegations, while the respondent was not.

If a ‘without notice’ order is made, an ‘on notice’ hearing should take place as quickly as possible thereafter: If the court makes an order ………………. it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing. (S 45(3)) Having said that it has often been the practice of some courts to make a ‘without notice’ order lasting for up to 6 months, giving the Respondent permission to apply

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on 24 hours notice to vary or discharge the order in addition to fixing a date for the on notice hearing; the theory behind this is that if on the return date matters are agreed, or indeed there is no appearance by the respondent, despite being served, then no further order needs to be made as the existing order made on the day of the without notice hearing remains effective.

This in particular avoids problems of having to effect service on the respondent twice, once with the on notice hearing and without notice order and again with the order made on the hearing of the substantive application on the return date when the respondent may subsequently have chosen to evade service and also resulting in a saving of process server’s fees.

It is submitted that there is nothing at all wrong with this approach.

In some instances however the Court have not listed a return date at all but merely provided within the without notice order a permission to apply provision.

In light of s 45(3) and Re J (Abduction: Wrongful Removal) [2000] 1 FLR 78 however this cannot be right.

JM v CZ (Costs: Ex Parte Order) (2014) EWHC 1125 confirmed that this indeed was wrong as such orders clearly do not comply with s 45(3) which require a full on notice hearing very shortly after the without notice order (i.e. as soon as is ‘just and convenient to do so’ (see also Horgan v Horgan (2002) EWCA Civ 1371)) The following practice was therefore commended in respect of orders made without notice:

•

A return date should be listed after 14 days of the initial without notice

order.

•

That there be provision that the Respondent confirm in writing 7 days

before that date to both the Applicant and the Court whether they

wished to attend on that date to argue for variation or discharge.

If the Respondent fails to write within that period it will be open to the

•

applicant to notify the Court that the return date should be vacated.

However this was further modified to snuff out previous bad practice once and for all when the President of the Family Division issued PRACTICE GUIDANCE: FAMILY COURT – DURATION OF EX PARTE (WITHOUT NOTICE) ORDERS on 13 October 2014.

In it the President remarked that to grant an ex parte (without notice) injunction for an unlimited time is wrong in principle and must stop.

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The following principles were set out:

(i)

An ex parte (without notice) injunctive order must never be made without

limit of time. There must be a fixed end date.

(ii)

It is not sufficient merely to specify a return day. The order must specify on

its face and in clear terms precisely when it expires (e.g., 4.30pm on 19

November 2014).

(iii) The duration of the order should not normally exceed 14 days.

(iv) The order must also specify the date, time and place of the hearing on

the return day. It is usually convenient for this date to coincide with the

expiry date of the order.

The order “must contain a statement of the right to make an application

(v)

to set aside or vary the order under rule 18.11.” The phrase “liberty to

apply on 24 hours’ notice” is not sufficient for this purpose. The order must

spell out that the respondent is entitled, without waiting for the return day,

to apply on notice (the details of which and the need for which must be

set out on the face of the order) to set aside or vary the order.

(vi) If the respondent does apply to set aside or vary the order the court must

list the application as a matter or urgency, within a matter of days at most.

He furthermore suggested the following form of order is used:“1 Paragraph(s) [insert] of this order shall be effective against the respondent [insert names] once it is personally served on [him]/[her] [and/or] once [he]/[she] is made aware of the terms of this order whether by personal service or otherwise.

2 Paragraph(s) [insert] of this order shall last until [insert date and time] unless it is set aside or varied before then by an order of the court.

3 The case is listed for a further hearing in the Family Court sitting at [insert place] on [insert date] (‘the return date’), time estimate: [insert time]. At the hearing on the return date the court will reconsider the application and decide whether the order should continue. If the respondent does not attend on the date and at the time shown the court may make an order in [his]/[her] absence.

4 The respondent has the right to apply to the court at any time, and without waiting until the return date, to set aside or vary this order. [Insert if appropriate: The respondent must give [insert hours/days] [written] notice of the application to the [applicant]/[applicant’s solicitors].]

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5 If the respondent intends to rely on any evidence in support of [his]/[her] application to set aside or vary this order, or intends to rely on any evidence to oppose the continuation of the order at the hearing on the return date, the substance of the evidence must be provided in writing to the [applicant]/ [applicant’s solicitors] in advance.

[Add if appropriate] 6 If the respondent intends to oppose the continuation of the order on the return day [he]/[she] must notify the court [in writing or by email] no later than [insert date and time] that [he]/[she] intends to attend the hearing on the return day and to oppose the continuation of the order. If the respondent does not notify the court then the court may, if appropriate, make an order dispensing with the need for any attendance by the [applicant]/[applicant’s solicitors] on the return day and may, if appropriate, on the return day make an order extending the injunction.�

Anecdotal evidence suggests that most courts are still making longer term orders on the without notice hearing than suggested by the president which it is suggested is good practice for the reasons previously set out provided a return date for the on notice hearing is listed to take place between 7 and 14 days from the initial without notice hearing as opposed to not listing one at all, leaving the onus on the Respondent to apply, which is clearly no longer acceptable practice.

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Chapter 4 April 2015

PROPRIETARY ESTOPPEL – A USEFUL ALTERNATIVE IN ToLATA CLAIMS Proprietary Estoppel arises where one party spends money on property belonging to another in the expectation or belief, which is encouraged by the other party, that by doing so they will acquire an interest in it. This often arises in situations where the legal owner creates or encourages an expectation that the other party will have an interest in land in reliance on which the other party acts to their detriment. Being an equitable remedy it is concerned with preventing unconscionable conduct and as such the Court must look at the matter in the round.

The doctrine is aimed at preventing a person from insisting on their strict legal rights where:

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A representation, promise or assurance that the claimant has, or will

acquire rights in respect of specified property;

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Reliance on it; and

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Detriment to the claimant in consequence of their reasonable reliance,

i.e. reliance on the promise or assurance with a sufficient link between the

promise and the conduct constituting the detriment (the promise or

assurance does not have to be the sole inducement) (Suggitt v Suggitt

(2011) EWHC 903).

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Unconscionability “that equity is concerned to prevent unconscionable

conduct permeates all the elements of the doctrine……the court must look at the matter in the round.” (Gillett v Holt (2000) 2 FLR 266) Whilst a representation has to be clear and unequivocal for the purposes of proprietary estoppel (Thorner v Major [2009] UKHL 18), the court has to take a broad approach in order to establish whether it would be unconscionable for a party to renege on something which they had allowed or encouraged the other party to believe.

The elements of proprietary estoppel should not be rigidly compartmentalised as it is essential to consider them altogether in one evaluation. (Davies v Davies [2014] EWCA Civ 568) 28

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Thus unconscionability permeates all the elements of proprietary estoppel rather than being a discrete feature of it.

“It is the detrimental reliance which makes the promise irrevocable and leads to the conclusion, at the end of a broad enquiry, that repudiation of the assurance is unconscionable.’

Southwell v Blackburn (2014) EWCA Civ 1347 In contrast to that of a Constructive Trust which requires there to be a common intention in proprietary estoppel a representation may give rise to a misapprehension on a party which is not shared by the legal owner: “There are circumstances in which it is not possible to infer any agreement, arrangement or understanding that the property is to be shared beneficially but in which nevertheless equity has been prepared to hold that the conduct of an owner in allowing a claimant to expend money or act otherwise to his detriment will be precluded from denying that the claimant has a proprietary interest in the property … claims based on proprietary estoppel are more likely to arise where the claimant has acted after an informal promise has been made to him.”

Yaxley v Gotts [2000] Ch 162 For example where a cohabitant had given a number of evasive excuses as to why a property was not held in joint names and believed that they had an interest in the property and acted to their detriment in reliance upon that belief. The owner deliberately failed to disabuse them of their mistaken belief and a proprietary estoppel had arisen (Van Leatham v Brooker & Caradoc Estates (2006) 2 FLR 495) To be entitled to a remedy based on proprietary estoppel, the person seeking such remedy must have an expectation of a “certain interest in land” (Yeomans Row Management Ltd v Cobbe [2008] UKHL 55).

Whilst an assurance from the legal owner as to some future rights in land can be expressed or impliedly made, such assurance must be a clear one; what is ‘clear’ depends upon the context but the assurance itself need not be unequivocal.

(Thorner v Major & others (2009) UKHL 18) Thus the assurance has to be viewed contextually so that the relevant question is what the claimant would reasonably have understood the legal owner to mean by his words and acts.

The “promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might

30

reasonably expect to be relied upon by the person to whom it was made.” (Walton v Walton (unreported) 14/4/94).

The assurance given must also relate to identified property. For example a promise made to give “financial security during my life and financial security on my death” did not represent an assurance to have an interest in any particular asset. (Layton v Martin (1986) 2 FLR 227).

Similarly a statement to the effect that the Claimant would never want for anything was held insufficient to give rise to an estoppel (Lissimore v Downing (2003) 2 FLR 308) (see also, James v Thomas [2007] EWCA Civ 1212, (the phrases ‘this will benefit us both’ and ‘you will be well provided for’ held not to constitute a promise of some property interest but merely a representation that the parties were making their life together as man and wife) However a promise that “it’ll all be yours one day” was regarded as sufficiently linked to the subject property to justify a claim to it by way of estoppel (Wayling v Jones (1995) 2 FLR 1029).

A promise that a person may be allowed to stay in a house for as they wish also raises or potentially raises an equity in that person’s favour Greasley v Cooke [1981] 1 WLR 1306.

In Coombes v Smith [1986] 1 WLR 808, an assurance given by the defendant to his female cohabitee that he would always ‘provide her with a roof over her head’ was held insufficient to constitute a representation that she was legally entitled to security of tenure against his wishes.

In Bennett v Bennett (unreported) 18 May 1990, the Court of Appeal held that a mere verbal statement by the legal owner that he ‘didn’t want [the claimant] out’ could not have been reasonably understood by her as an assurance that she could remain for the rest of her life. The statement simply suggested that the legal owner was prepared to let her stay in the property for the time being and that he would, therefore, have the right to ask her to leave on reasonable notice.

A similar conclusion was reached in Bostock v Bryant (1990) 61 P & CR 23, where the claimant was told by her uncle: ‘don’t worry about the future, you’ll be alright’. This was held by the Court of Appeal to be too vague to amount to an assurance that she could live in the house as long as she wished.

In, Southwell v Blackburn (2014) EWCA Civ 1347 the Court of Appeal held that the legal owner’s assurance that the claimant ‘would always have a home and be secure in this one’ and that she ‘would have the sort of security that a wife would

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have, in terms of accommodation at the house’ was enough to support the finding that she would have security of rights of occupation in the house which would be recognised even in the event of the breakdown of the parties’ relationship.

Similarly, in the case of Hammond v Mitchell [1999] 1 WLR 1127, the words spoken were: ‘don’t worry about the future because when we are married, it will be half yours anyway and I’ll always look after you’. These expressions were held to give rise to a common intention that the claimant was to be entitled to a beneficial share in the property registered in her male partner’s sole name.

Where there is any ambiguity then that ambiguity should not deprive a person who reasonably relied on it (an objective test) but the relief may be accorded on the basis of the least beneficial interpretation!

Whether there is detrimental reliance is an evaluative judgment and whether a claimant suffers detriment must be judged at the point where the person who gave the assurance seeks to go back on it.

Ultimately the question is whether looked at in the round, in the circumstances that have happened, it would be unconscionable for the promise or assurance not to be kept.

Whether the detriment itself is sufficiently substantial must be judged by whether it would be unjust or inequitable to allow the assurance to be disregarded.

(Davies v Davies [2014] EWCA Civ 568) The recent case of Southwell v Blackburn (2014) EWCA Civ 1347 reiterated as follows:

•

detriment is not a narrow or technical concept;

•

detriment need not consist of the expenditure of money or other

quantifiable financial detriment, so long as it is something substantial;

•

the need to show detriment must be approached as part of a broad

inquiry as to whether repudiation of an assurance is or is not

unconscionable in all the circumstances;

there must be sufficient causal link between the assurance relied on and

•

the detriment asserted;

the issue of detriment must be judged at the moment when the person

•

who has given the assurance seeks to go back on it;

whether the detriment is sufficiently substantial is to be tested by whether

•

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it would be unjust or inequitable to allow the assurance to be disregarded

- that is, again, the essential test of unconscionability;

the detriment alleged must be pleaded and proved.∙ proprietary estoppel

•

... does not look forward into the future and guess what might happen.

It looks backwards from the moment when the promise falls due to be

performed and asks whether, in the circumstances which have actually

happened, it would be unconscionable for the promise not to be kept.

Thus Proprietary Estoppel requires a clear representation or assurance which is relied upon, and in all the circumstances it is reasonable to rely upon, in consideration of which there has been detriment to the person so reliant of sufficient substance to justify an equitable remedy. There must also be a sufficient link between the promises relied upon and the conduct which constitutes the detriment.

As far as the interrelationship with Express Trusts are concerned in Clarke v Meadus (2010) EWHC 3117 the argument that an express declaration within a deed was capable of being overridden by a proprietary estoppel in favour of the claimant as a result of promises and representations made after the deeds were executed was accepted. Thus formal documents setting out a party’s beneficial interest are not immutable or incapable of being effected by subsequent events amounting to proprietary estoppel.

This is an important consideration as in the absence of rectification or rescission through fraud, mistake or undue influence; proprietary estoppel is the only other doctrine by which an Express Declaration of Trust can be set aside.

In the case of Oxley v Hiscock, it was that to a large extent there was no difference between arguments based upon constructive trust as opposed to that of proprietary estoppels: “Once it is recognised that what the Court is doing in cases of this nature is to supply or impute a common intention as to the parties’ respective shares (in circumstances in which there was, in fact, no common intention) on the basis of that which, in the light of all the circumstances (including the acts and conduct of the parties after the acquisition) is shown to be fair it seems to be very difficult to avoid the conclusion that an analysis in the terms of proprietary estoppel will necessarily lead to the same results; and that it may be more satisfactory to accept that there is no difference, in cases of this nature, between constructive trusts and proprietary estoppel”.

However, in the case of Stack v Dowden (2007) 1 FLR 1858, Lord Walker disagreed “I am now rather less enthusiastic about the notion that proprietary estoppel and ‘common interest’ constructive trusts can and should be completely assimilated.

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Proprietary estoppel consists of asserting an equitable claim against the conscience of the ‘true’ owner. The claim is a ‘mere equity’. It is to be satisfied by the minimum award necessary to do justice which may sometimes lead to no more than a monetary award. A ‘common intention’ constructive trust by contrast is identifying the true beneficial owner or owners and the size of their beneficial interest.”

This was further backed up in the case of Q v Q (2008) EWHC 1974 where it was held that Proprietary estoppel and constructive trust remained distinct concepts as there was a significant difference between the nature of reliefs available under either concept. Under proprietary estoppel the Court has to decide “the minimum equity to do justice between the parties” (Crabb v Arun DC (1976) Ch 179) in the particular circumstances of the case whereas a constructive trust leads to a declaration of beneficial ownership.

What about quantum of award in a successful claim?

•

The value of the equity will depend upon (a) all the circumstances of the case, including (b) expectation and (c) detriment. (Jennings v Rice [2002]

EWCA 159

•

The court must balance the proportionality of the expectation with that of

the detriment incurred. ‘Proportionality lies at the heart of the doctrine of

proprietary estoppel and permeates its every application.’) (Henry v

Henry [2010] UKPC 3)

•

When considering detriment this must be balanced against any relevant

benefit enjoyed by the claimant. The court is not simply concerned with

financial detriment but looks at all the circumstances in the round.

•

When there is a clear understanding between the parties, falling short

of a contract, ‘In such a case the court’s natural response is to fulfil

the claimant’s expectations. But if the claimant’s expectations

are uncertain, or extravagant, or out of all proportion to the detriment

which the claimant has suffered the court can and should recognise that

the claimant’s equity should be satisfied in another (and generally more

limited) way.’ (Henry v Henry [2010] UKPC 3)

The question of preventing unconscionable conduct permeates all

•

considerations. (Gillett v Holt [2001] Ch 210)

•

The end result must be a just one having regard to the assumption made by the party asserting the estoppel and the detriment which he has

experienced (Sledmore v Dalby (1996) 72 P&CR 196)

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In essence a successful claimant may be awarded the interest he believed he would acquire or, if the circumstances dictate, a lesser interest.

Finally, the case of Davies v Davies [2014] EWCA Civ 568 emphasises that proprietary estoppel claims require a holistic approach and split trials should be avoided.

Summary of Principles A claimant relying on proprietary estoppel must show a clear and unequivocal assurance in relation to the family home in order to raise an equity in their favour. The relevant question is what the claimant would reasonably have understood the legal owner to mean by their words and acts.

Although detriment need not be financial, the claimant may fail if any benefits accruing to them as a consequence of the relationship outweigh the detriment suffered.

Practice Point: - In many cases there is a clear tactical advantage of pleading, in addition to a main claim to a constructive trust, an alternative case based on proprietary estoppel.

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Chapter 5 May 2015

EU-WIDE PROTECTION ORDERS AND THE NEW PART 38 FPR 2010 In June 2014 the Council of the European Union adopted a regulation on mutual recognition of protection measures taken in civil matters upon request of the person at risk.

The Protection Measures Regulation (Regulation (EU) 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters) came into effect in the UK on 11 January 2015.

The Protection Measures Regulation is an EU instrument which enables a ‘protected person’ to take a ‘protection measure’ ordered in one Member State to another Member State (save and except Denmark) and have it recognised and, if necessary, enforced there against the person causing the risk provided the measure has been certified.

The aim of the regulation is to establish an efficient mechanism of recognition to ensure that all protection measures taken in civil matters in a member state can circulate freely throughout the EU. This means that a protection measure ordered in one Member State will be treated as if it had been ordered in the Member State where recognition is sought. No special procedure, mirror order or declaration of enforceability will be required.

A “protection measure” is defined in the Protection Measures Regulation and essentially involves an obligation on a “person causing the risk” to stay away from or not to contact a “protected person” e.g. undertakings, non-molestation and occupation orders under the Family Law Act 1996 as well as forced marriage protection orders and undertakings under the same act.

The Regulation introduces a uniform model of certificate in a multilingual standard form in order to facilitate the free movement of protection measures. The victim will need a suitable certificate to be able to invoke the protection measure in another Member State.

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To that end, the new rules provide for a certificate which will act as a kind of ’passport’ containing all essential information for a quick and easy recognition of the protection measure when the protected person moves or travels to another member state. The protection measures covered by the regulation will include obligations or prohibitions imposed on the person causing risk, such as:

•

a prohibition or regulation on entering the place where the protected

person resides, works or visits or stays regularly;

a prohibition or regulation of contact, in any form, with the protected

•

person, including by phone, electronic or ordinary mail, fax or any other

means;

•

a prohibition or regulation on approaching the protected person closer than a prescribed distance

The Regulation is not intended to regulate the procedures for implementation or enforcement and does not deal with the sanctions for violation of a protection measure foreseen by each Member State. Those matters are left to the law of that Member State.

The new regulation aims at complementing Directive 2011/99/EU on the European Protection Order (‘EPO Directive’) which covers protection orders in criminal matters.

The Family Procedure Rules 2010 have been amended by The Family Procedure (Amendment No. 4) Rules 2014, which introduce a new Part 38 and related Practice Direction PD38A, in order to make procedural provisions in respect of incoming and outgoing protection measures to which the Protection Measures Regulation applies.

Part 38 includes procedures both for a protected person to have her or his protection measure recognised in another Member State, and for a protected person to bring a protection measure from another EU Member State to the court in England and Wales for enforcement here.

PD 38A paragraph 1.3 states:A “protection measure” is a decision that says the “person causing the risk” must comply with one or more of the three kinds of obligation set out below, to protect another person, the “protected person”, from physical or psychological harm.

The obligations are:

•

a ban or controls on entering the place where the protected person lives or works, or regularly visits or stays;

37

•

a ban or controls on contact, in any form, with the protected person, including by telephone, post, e-mail, text or social media or any other

means;

•

a ban or controls on approaching the protected person closer than a

stated distance.

The family court will be an ‘issuing authority’ under the Protection Measures Regulation and will therefore be dealing with proceedings relating to ‘outgoing protection measures’ i.e. protection measures found in the above orders under the Family Law Act 1996.

The procedural requirements as to this are set out in chapter 2 of Part 38 in relation to an application for an Article 5 certificate.

The protected person can apply either at the same time as they are applying for the order which contains a protection measure, or later before the order is made or, provided the order containing the protection measure is still in force, at any time after the order is made (PD 38A para 2.1) Before it can issue the Article 5 certificate, the court needs to know that the order containing the protection measure has been brought to the attention of (“served on”) the person causing the risk (PD 38A para 2.4) Thus for outgoing orders:

•

The Applicant can ask for a certificate when the order is made.

•

There is a prescribed form – common throughout the EU.

•

The Respondent must be notified of the issue of the certificate.

•

There is no appeal against the issue of the certificate, though it can be

rectified if there is an error in it.

The family court will also deal with proceedings under the Protection Measures Regulation relating to ‘incoming protection measures’ i.e. protection measures issued in another Member State. The procedure for this is set out in Chapter 3 of Part 38.

An incoming protection measure, for which an Article 5 certificate has been issued in another Member State, is automatically recognised by the court in England and Wales. Thus incoming protection measures can be enforced by the family court and the High Court in England and Wales as if they had been ordered by those courts.

38

The protected person can apply to the court for an adjustment of “factual elements” in the incoming protection measure in order to make it effective in England and Wales.

“Factual elements” can include the address or location the person causing the risk must stay away from, such as the location where the protected person lived or worked in the Member State of origin, or the minimum distance the person causing the risk must keep away from the protected person (PD 38A para 3.3) If the protected person has an incoming protection measure accompanied by an Article 5 certificate from the Member State of origin and they believe the person causing the risk has disobeyed the protection measure, the protected person can apply to the court under rule 10.11 for the issue of a civil warrant for the arrest of the person causing the risk (PD 38A para 3.5) The person causing the risk can apply under rule 38.14 for the court to refuse to recognise an incoming protection measure or to refuse to enforce it against them.

The court will only refuse to recognise or enforce the protection measure when to do so would be “manifestly contrary to public policy” or if recognition of the incoming protection measure is “irreconcilable” with a judgment that has been given or recognised in the United Kingdom (PD 38A para 3.7) Thus for incoming orders:

•

There is no recognition procedure. The certificate is proof of the order and

enforceable as any domestic order.

•

Protection measures are enforced as if it were a domestic order.

•

There can be an ‘adjustment of the factual elements’ – for example if a

new address is required to provide protection in this jurisdiction.

•

The respondent has to be informed of the adjustments.

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Chapter 6 June 2015

Agreements in Family Cases Introduction “formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there is good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement” (Edgar v Edgar (1980) EWCA Civ 2) “If there is a dispute as to whether the negotiations led to an accord that the process should be abbreviated, the court has a discretion in determining whether an accord was reached. In exercising that discretion the court should be astute to discern the antics of a litigant who, having consistently pressed for abbreviation, is seeking to resile and to justify his shift by reliance on some point of detail that was open for determination by the court at its abbreviated hearing.”

(Xydhias v Xydhias [1999] 1 FLR 683) In such a case the court can always, limit the ambit of the issues to be considered at the hearing by focusing the hearing exclusively on those issues relevant to the magnetic factor(s).

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

(Radmacher (formerly Granatino) v Granatino [2010] UKSC 42) “[Radmacher] necessitates a significant change to the approach to be adopted, on a proper application of the discretion conferred by the MCA, to the impact of agreements between the parties in respect of their finances. At the heart of that significant change, is the need to recognise the weight that should now be given to autonomy, and thus to the choices made by the parties to a marriage … The new respect to be given to individual autonomy means that the fact of an agreement can alter what is a fair result and so found a different award to the one that would otherwise have been made.”

40

(V v V (Prenuptial Agreement) [2011] EWHC 3230) The Granatino effect (Granatino v Radmacher [2011] AC 534) “In Granatino v Radmacher [2011] AC 534 the Supreme Court gave definitive guidance as to the treatment of a nuptial contract in proceedings for ancillary relief following a domestic divorce. The guidance contained in the judgment of the majority delivered by Lord Phillips of Worth Maltravers PSC can be summarised as follows:

i)

The court should give effect to a nuptial agreement which is freely

entered into by each party with a full appreciation of its implications

unless in the circumstances prevailing it would not be fair to hold the

parties to their agreement.

‘… if an ante-nuptial agreement, or indeed a post-nuptial agreement, is

ii)

to carry full weight, both the husband and wife must enter into it of their

own free will, without undue influence or pressure, and informed of its

implications …’ (para 68) In determining whether an agreement has

been “freely entered into by each party with a full appreciation of

its implications” there is no absolute black and white rule for full disclosure

or independent legal advice. Rather, the question is whether in the

individual case there is a material lack of disclosure, information or advice.

Each party must have all the information that is material to his or her

decision that the agreement should govern the financial consequences

of the marriage coming to an end. An absolute rule would only be

necessary if the agreement were to be contractually binding, but this is

not the case as there is a safety-net of (un)fairness.

The presence of any of the standard vitiating factors of duress, fraud

iii)

or misrepresentation will negate any effect the agreement might

otherwise have. Further, unconscionable conduct such as undue

pressure (falling short of duress) will likely eliminate the weight to be

attached to the agreement (ibid). Other unworthy conduct, such as

exploitation of a dominant position to secure an unfair advantage, will

reduce or eliminate the weight to be attached to the agreement (ibid).

The court may take into account a party’s emotional state, and what

pressures he or she was under to agree, as well as their age and maturity,

and whether either or both had been married or been in long-term

relationships before. The court may take into account foreign elements to

determine whether or not the parties intended their agreement to be

effective.

41

iv) In determining whether “in the circumstances prevailing it would not

be fair to hold the parties to their agreement”:

a) The agreement cannot be allowed to prejudice the reasonable

requirements of any children of the family.

b) Respect should be accorded to the decision of a married couple as

to the manner in which their financial affairs should be regulated

particularly where the agreement addresses existing circumstances

and not merely the contingencies of an uncertain future. This is likely

to be so where the agreement seeks to protect pre-marital property.

By contrast it is less likely to be so where the agreement leaves in the

hands of one spouse rather than the other the most part of a fortune

which each spouse has played an equal role in their different ways in

creating. If the devotion of one partner to looking after the family

and the home has left the other free to accumulate wealth, it is likely

to be unfair to hold the parties to an agreement that entitles the

latter to retain all that he or she has earned.

Is likely to be unfair to hold the parties to an agreement which leaves

c)

one spouse in a predicament of real need, while the other enjoys

a sufficiency or more. However, need may be interpreted as being

that minimum amount required to keep a spouse from destitution.

For example, if the claimant spouse had been incapacitated in the

course of the marriage, so that he or she was incapable of earning a

living, this might well justify, in the interests of fairness, not holding him

or her to the full rigours of the ante-nuptial agreement.

(Kremen v Agrest No. 11 [2012] EWHC 45) “In my judgment the requirement of “a full appreciation of its implications” does not carry with it a requirement to have received specific advice as to the operation of English law on the agreement in question. Otherwise every agreement made at a time when England and Wales was not on the horizon would be discarded. But in order to have influence here it must mean more than having a mere understanding that the agreement would just govern in the country in which it was made the distribution of property in the event of death, bankruptcy or divorce. It must surely mean that the parties intended the agreement to have effect wherever they might be divorced and most particularly were they to be divorced in a jurisdiction that operated a system of discretionary equitable distribution. I have respectfully suggested in Kremen v Agrest No. 11 that usually the parties will need to have received legal advice to this effect, and will usually need to have made mutual disclosure.”

42

“What then did the Supreme Court say about how to determine whether an agreement has been freely entered into with a full appreciation of its implications?

In paragraph 69 it was stated that there is no rule at all that full disclosure, or full legal advice, is a necessary pre-condition for the satisfaction of this criterion. On the contrary, the question is in the individual case whether there has been a material lack of disclosure, or a material lack of information, or a material lack of legal advice. I venture the opinion that usually -- and that is in the usual run of cases and not a case when one is dealing with such a highly intelligent sophisticate as Mr. Granatino -- a full appreciation of the implications will normally carry with it a requirement of having at least enough legal advice to appreciate what one is giving up…”

(B v S [2012] EWHC 265) In seven decisions in 2011 and 2013 which involved pre-nups, the existence of the pre-nup was influential but not binding in two (Z v Z [2012] 1 FLR 1100 and V v V [2012] 1 FLR 1315).

In Z v Z (No 2) (Financial Remedies: Marriage Contract) [2011] EWHC 2878 Moor J took into account the terms of the agreement in limiting the wife to a claim based on her generously interpreted needs.

In V v V (Prenuptial Agreement) [2011] EWHC 3230 Charles J gave great weight to the principle of individual autonomy In five others it had no impact on the outcome (Kremen v Agrest [2012] 2 FLR 414, B v S [2012] 2 FLR 502, GS v L [2013] 1 FLR 300, AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 and the ‘oral pre-nuptial agreement case’ of Z v A [2012] 2 FLR 667).

In B v S (Financial Remedy: Marriage Property Regime) [2012] EWHC 265 Mostyn J did not place weight on the agreement, holding that there’s a big difference between a prenuptial agreement which specifically contemplates divorce and seeks to restrict or influence the exercise of discretion of the court, and an agreement regarding the marital property regime in civil jurisdictions. Neither party had entered into the agreement with ‘a full appreciation of its implications’ and no weight was therefore attached to the agreement in an assessment of what was a fair award to the wife.

While Mostyn J held that the requirement of ‘a full appreciation of implications’ did not carry a requirement to have specific advice on the effects of English law and the agreement, ‘It must surely mean that the parties intended the agreement to have effect wherever they might be divorced and most particularly were they to be divorced in the jurisdiction that operated a system of discretionary equitable distribution’.

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“when adjudicating a question of interim maintenance, where there has been a prenuptial agreement, the court should seek to apply the terms of the pre-nuptial agreement as closely and as practically as it can, unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a likely prospect of satisfying the court that this agreement should not be upheld. In the absence of any evidence of that nature from the wife, it is my judgement that it is appropriate for me to seek to apply the agreement to this case as closely as I can, provided that the wife is not left in any real predicament of need.”

(BN v MA (2013) EWHC 4250)

Recent Case Law SA V PA (PRE-MARITAL AGREEMENT: COMPENSATION) [2014] EWHC 392 This case concerned the unfairness of applying the terms of a pre-nuptial agreement based around the alleged inadequacy of the advice and circumstances which had led the wife to signing the same.

‘In my judgment the requirement of “a full appreciation of its implications” does not carry with it the requirement to have received specific advice as to the operation of English law on the agreement in question. Otherwise, every agreement made at the time when England and Wales was not on the horizon would be disregarded. But in order to have influence here it must mean more than having a mere understanding that the agreement would just govern in the country in which it was made the distribution of property in the event of death, bankruptcy or divorce. It must surely mean that the parties intended the agreement to have effect wherever they might be divorced and most particularly were they to be divorced in a jurisdiction that operated a system of discretionary equitable distribution.”

Thus it was held that to have effect within the jurisdiction of England and Wales the parties who had entered into the agreement abroad must have had advice not specifically about the law as it applied to divorce and inheritance distribution within this jurisdiction, but at least, to the effect that the agreement would apply wherever they might be divorced, including, in particular, in a regime that operated a system of “discretionary equitable distribution” and it would be wise to insert a clause dealing with this in the agreement. (A Key Drafting point applicable to Agreements entered into both here and abroad) A further emphasis was made upon the fact that a marital agreement does not have to deal with all aspects of the parties’ resources in order to be presumptively

44

binding over the assets or resources which it addresses. For example, an agreement may deal with the capital whilst leaving maintenance at large or it may deal with certain assets which each party wished to retain and ring fence from the eventual pot. In this event, the court would ordinarily give effect to such an intention, albeit that would not prevent a court, upon the s 25 exercise, taking the values of those excluded assets into account overall in the assessment of the fairness of the division of the remaining resources.

Luckwell v Limata (2014) EWHC 502 In this case which attracted a lot of legal press a prenup and two post-nuptial agreements made by a wealthy heiress and her husband, to protect the reasonable requirements of their three children was set aside as the children would be left in the damaging situation of staying with their mother in relative luxury and father in relative penury.

Holman J held as follows:

1.

It is the Court and not the parties who decide the ultimate question of

what provision is to be made.

The overarching criterion remains the search for “fairness” in accordance

2.

with Section 25. An agreement however is capable of altering what is fair

including provision in relation to “need”.

An agreement (provided it is not “impugned” for procedural unfairness

3.

such as duress) should be given due weight depending upon the

individual facts of the case which may range from anything from slight to

decisive.

4.

Effect should be given to an agreement that is entered into freely with full

appreciation of the implications unless in the circumstances prevailing it

could not be fair to hold the parties to it.

Whether it will be fair to hold the parties to the agreement will depend

5.

upon the facts and the following guidance can be given:-

a.

A nuptial agreement cannot be allowed to prejudice the reasonable

requirements of any child;

b.

Respect for autonomy including a decision as to the manner

in which the financial affairs should be regulated may be particularly

relevant where the agreement addresses the existing circumstances

and not merely the contingencies of an uncertain future;

45

c.

There is nothing inherently unfair in an agreement making provision

dealing with existing non-marital property including anticipated future

receipts and there may be good objective justifications for it such as

obligations towards family members;

The longer the marriage has lasted the more likely it is that events might

d.

have seemed fair at the time or the making of the agreement unfair now

particularly if the position is not as envisaged;

e.

It is unlikely to be fair that one party is left in a predicament of real need

while the other has “sufficiency or more”;

f.

Where each party is able to meet his or her needs fairness may well not

require a departure from the agreement.

The Judge recognised that a Nuptial Agreement cannot be allowed to prejudice the reasonable requirements of any children of the family.

“There is no doubt that very great weight indeed should be given to the agreements in this case. There are no vitiating factors such as duress or non-disclosure. They were entered into freely by a mature man after expert legal advice’ however ‘the overarching criterion remains the search for “fairness”’.

The longer a marriage lasts the more likely it is that events render what might have seemed fair at the time of making the agreement unfair now particularly if the position is not as envisaged.

It is unlikely to be fair that one party is left in a predicament of real need when the other has a sufficiency or more.

The Court must be scrupulous to avoid gender discrimination or gender bias and any stereo-typical view that a wife may be dependent on her husband but not viceversa.

Although need is not a trump card it may nonetheless outweigh the fact of an agreement in the overall circumstances of a particular case.

MANN v MANN (2014) EWHC 537 CPR r.1.4 (2) (e) imposes a positive duty on the court to encourage alternative dispute resolution where appropriate and CPR 26.4(2A) enables the court to impose a stay on proceedings, whether the parties agreed or not, for a specified period to “allow for settlement of the case”.

46

However their FPR equivalent (FPR r.3.3) states that the court can only adjourn proceedings for a specified period to allow ADR to take place, but only if the parties agreed.

However, in this case it was held that where there is a written agreement to engage in ADR before proceeding with an enforcement application, r.3.3 could be invoked to adjourn the application for a specified period to enable ADR to take place, even where one party was trying to back out of it.

However, such agreement to mediate before litigating has to be very clearly expressed and the family Court can only order a stay for mediation but of course cannot force the parties to mediate.

M v W (Application after New Zealand Financial Agreement) (2014) EWHC 925 In this case the Wife was refused permission to apply for financial orders under the Matrimonial and Family Proceedings Act 1984 Pt III due to having entered into a “Separation and Relationship Property Agreement� in New Zealand. The agreement was as full, fair and final as it was possible to provide for in New Zealand. Both sides had had full legal advice and had had the agreement fully explained to them at the time of signing.

Y v Y (Financial Remedy: Marriage Contract) [2014] EWHC 2920 In this case Roberts J accepted that the wife believed that the agreement was only entered into to protect her from third party creditors and that she had no idea that the agreement would have any effect on a divorce and that she was not familiar with such concepts.

The judge found that at the time the wife signed the contract, she did not have a full understanding of the legal implications which would flow from a divorce, nor the rights which she might be giving up by signing.

Roberts J considered that, if the wife had taken independent legal advice before signing the contract, it would have covered the full implications of the marriage contract, including a divorce in France.

Furthermore, as there was a chance they would be living in a different jurisdiction, she may well have sought advice about the implications in a different jurisdiction and one could not say it would have been limited to the principle that she would be entitled to have her needs met. The wife was likely to have been advised in the

47

context of a number of different options and outcomes and any advice given to the wife at the time was likely to have included advice about the possibility of a future change in law. Also, had the wife understood the impact of the contract on divorce, she might have thought very differently about the fairness of the separation of assets regime which she was entering into.

‘I find it difficult to see how a full appreciation of [an agreement’s] implications ............. will not, in almost every case, involve both a full understanding on the part of both parties as to (i) the nature and effect of the terms and (ii) of the circumstances in which its implementation in a jurisdiction other than that in which it is made will, or might, affect the scope of any legal award or remedy which otherwise be available to one of the parties in the event of a divorce . . . In order to gain traction or influence here, the parties must surely have intended at the time of the agreement that its terms would apply in the event of a subsequent divorce wherever that divorce took place and whether or not it was anchored to a jurisdiction which operated a system of discretionary equitable distribution.’

The judgment thus confirms the trend that the weight to be given to the agreement is determined significantly by the couple’s intentions at the time of the marriage.

Hopkins v Hopkins, March 2015 The Husband was a 66 year old property tycoon worth £38 million. Mrs Hopkins was 62. They had a clandestine affair whilst in their 20s resulting in the birth of their son, but did not live together until 2001, subsequently marrying in 2009.

In 2011 a Post-Nuptial Agreement was entered into, which the Wife subsequently sought to renege upon arguing that she had been bullied into the agreement.

The matter came before Judge Nicholas Cusworth QC, who said that she would have to live with the Post-Nup. She had signed it of her own free will having received, “…copious volumes of legal advice”.

He accepted that at the time the agreement was entered into the Wife was “…rational, thoughtful, saddened by her situation, but certainly capable of independent thought. She knew her own mind and was keenly aware of her own objectives”, and therefore he rejected the Wife’s case that she was operating under any “…undue influence, duress, or improper pressure….” when she entered into the settlement.

48

S v S (2014) EWHC 7 The parties submitted their dispute to family arbitration. An award was made. The parties submitted a consent order, the form ARB1 (agreement to arbitrate), arbitral award, forms D81 and forms A for dismissal purposes, to the court. The case was transferred to the President. He gave a judgment setting out the approach to be taken when a court is asked to make a consent order in those circumstances.

There is nothing in the Arbitration Act 1996 which on the face of it would preclude arbitration as a permissible process for the resolution of disputes rooted in family life or relationship breakdown.

Where the parties had bound themselves, as by signing a Form ARB1, to accept an arbitral award of the kind provided for by the IFLA Scheme, that generated a single magnetic factor of determinative importance. In the absence of some very compelling countervailing factor(s), the arbitral award should be determinative of the order made. Indeed, an arbitral award is surely of its nature even stronger than a simple agreement between the parties.

Where a party sought to resile from the arbitral award, the other party’s remedy was to apply to the court using the “notice to show cause� procedure. The court would no doubt adopt an appropriately robust approach, both to the procedure it adopted in dealing with such a challenge and to the test it applied in deciding the outcome. In accordance with the reasoning in cases such as Xydhias v Xydhias [1999] 2 All E.R. 386, the parties would almost invariably forfeit the right to anything other than a most abbreviated hearing; only in highly exceptional circumstances was the court likely to permit anything more than a very abbreviated hearing.

Where the attempt to resile is plainly lacking in merit the court may take the view that the appropriate remedy is to proceed without more ado summarily to make an order reflecting the award and, if needs be, providing for its enforcement. Even if there is a need for a somewhat more elaborate hearing, the court will be appropriately robust in defining the issues which are properly in dispute and confining the parties to a hearing which is short and focused. In most such cases the focus is likely to be on whether the party seeking to resile is able to make good one of the limited grounds of challenge or appeal permitted by the Arbitration Act 1996.

The IFLA Scheme required the arbitrator to decide the dispute in accordance with the law of England and Wales. In that context, it was important to remember the fundamental principles expounded by the House of Lords in White v White [2001] 1 A.C. 596, that in arriving at any financial order the objective had to be to achieve a fair outcome and that, in seeking to achieve a fair outcome, there was no place

49

for discrimination between husband and wife. Different considerations might apply where an arbitral process was based on a different system of law or, in particular, where there was reason to believe that, whatever system of law was purportedly being applied, there may have been gender-based discrimination. The proper approach in that situation would have to be considered when such a case arose.

The Law Commissions Report on Matrimonial Property, Needs and Agreements (27/2/14) This proposes that “qualifying” marital agreements will be contractually binding.

A Qualifying Agreement is one which meets the specified criteria:

•

Both parties have full disclosure

•

Both parties have legal advice

•

It is signed not later than 28 days before the wedding

•

It is in the form of a Deed.

•

It is signed by both parties with a statement that they understand that they

are contracting out of the Court’s jurisdiction

The usual contractual principles apply (Fraud/Undue Influence)

•

The agreement must make provision for the parties needs. The Court retains jurisdiction to ensure the needs of the parties are met and that provision is made for any children but aside from that the Court will not have jurisdiction to make financial orders where such a qualifying agreement has been entered into.

Marital Agreements that exclude non- matrimonial property from division will be binding provided the parties’ needs are met.

The FJC has been asked to provide guidelines as to how “needs” will be defined.

Baroness Deech has also introduced a private member’s bill, The Divorce (Financial Provision) Bill in February 2014 which received its second reading on 27 June 2014.

On the issue of pre-nuptial agreements, the bill proposes that prenuptial agreements are to be binding subject to the provision of independent legal advice, full disclosure and on the basis that the agreement was entered into at least 3 weeks before the marriage.

50

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Chapter 7 July 2015

APPEALS – TIME FOR A RETHINK CS v ACS & BH (2015) EWHC 1005 In CS v ACS & BH (2015) EWHC 1005 the President has now made it known that the rules on Appeals need to be changed.

In their present form Part 30 of FPR 2010 applies not only to orders made after a contested hearing but also orders made by consent.

Permission Pursuant to rule 30.3, permission to appeal must be obtained first (except in cases where a party’s liberty is at stake, i.e. committal, secure accommodation or a refusal to grant habeas corpus for release in relation to a minor).

The procedure for seeking permission is set out in PD 30A. Permission should initially be by way of an oral application at the end of the judgement at which the decision to appeal is made (r 30.3/O v O (Procedure for Listing Applications for Permission to Appeal to the High Court) Baron J 14 July 2011;AB v CB & Trustees of the X Trust (2014) EWHC 2998) An application can also be made to the appeal court itself, if permission is not sought at the lower court or such permission, if sought, is rejected (r30.3. (4)) Having said that in AB v CB (Financial Remedy: Variation of Trust) (2014) EWHC 2998 Mostyn J stressed that permission applications should ordinarily be made to the Court at first instance and only elevated if permission is refused.

He felt that his view on this reflected paragraph 52.3.4 of the White Book, as endorsed by the Court of Appeal in Re T (A Child) [2002] EWCA Civ 1736 stressing that;

a)

This will save time particularly as the judge may already have considered if

the case raised issues for appeal.

b)

It will save costs.

c)

Failure does not preclude a subsequent application to the Court of

Appeal.

52

d)

As the first instance Judge may be a specialist, the determination of the application to leave may be found helpful by the Court of Appeal judges.

However this view was counteracted by the decision in P v P (2015) EWCA Civ 447 which stated that although it is good practice to seek permission initially from the lower Court it is not obligatory to do so which has to be right.

Permission is likely to be granted in cases where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard (FPR r 30.3(7)) “Real” means that the prospect of success must be realistic rather than fanciful: “Permission to appeal will only be given where the Court considers that an appeal would have a real prospect of success or there is some other compelling reason i.e. the prospect of success must be realistic rather than fanciful.”

(Tanfern Limited v Cameron Macdonald (2000) 1 WLR 1311; AV v RM [2012] EWHC 1173) In the case of NLW v ARC [2012] EWHC 55, Mostyn J held that the concept of a real prospect of success meant a better than a 50/50 chance of success: “I would suggest the concept of a real prospect of success must mean generally speaking that it is incumbent upon an appellant to demonstrate that it is more likely than not that the appeal will be allowed at a substantive hearing” However in H v G (Adoption: Appeal) [2013] EWHC 2136, AV v RM (2012)EWHC 1173 and CR v SR (Financial Remedies: Permission to Appeal) (2013) EWHC 1155 it was held that no further elaboration of these words is necessary or helpful as the rule simply requires a real prospect of success to be shown.

In exercising such discretion, the court must also have regard to the over-riding objective set out in r 1.1 including considerations as to proportionality even where the appeal has a real prospect of success (HH v BLW (Appeal: Costs: Proportionality) (2012) EWHC 2199)

Consent Orders The rules and accompanying practice direction state that the only way to challenge an order made by consent has to be by way of appeal (PD 30A, para.14.1).

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However, in MAP v RAP [2013] EWHC 4784 Mostyn J held that where the validity of a consent order is being questioned due to alleged lack of capacity the application should be made at first instance to a district judge to revoke the order, using the procedure under FPR 2010, r 4.1(6).

In coming to this conclusion, Mostyn J considered FPR 2010, r 30 and PD30A, which sets out that where an order is made by consent, the only way to challenge the order is by appeal.

The appeal route is mandatory in respect of a consent order where there is no real challenge to the validity of the order per se, for example where a challenge is made on Barder principles. A challenge based on non-disclosure also probably falls under the appeal route.

However, where the ground of attack is that there has been no true consent (because of incapacity), the final sentence of para 14.1 does not apply, and it is appropriate for revocation of the order to proceed under r 4.1(6).

In coming to this conclusion, Mostyn J relied on Re L-B (Reversal of Judgment) [2013] UKSC 8 where Lady Hale stated that FPR 2010, r 4.1(6) governs the procedure for challenging findings of fact and found that the rule also applies to setting aside a consent order where there is no true consent.

Following on from that the President has now declared that provision ultra vires in relation to a wife’s appeal of an order based upon her husband’s non-disclosure (CS v ACS & BH (2015) EWHC 1005)

Barder Appeals Rule 30.12(3) sets out the circumstances in which the appeal court will allow an appeal; namely, where the decision is either (1) wrong or (2) unjust because of a serious procedural or other irregularity.

The first ground of appeal (wrong decision) can be based on the lower court being wrong either as to the law (e.g. failure to give proper reasons; a failure to take account of relevant factors, or to have regard to irrelevant factors, the Court thus misdirecting itself, or in applying the appropriate statutory test) or, to a more limited degree, fact, or in the exercise of any discretion (where the decision is outside the “generous ambit within which a reasonable disagreement is possible” (G v G (1985) 1 WLR 647))

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The Court must also remind itself of the dicta in Piglowska v Piglowska (1999) 2 FLR 763:

•

The advantage of the lower Court in seeing and hearing the witnesses

when evaluating the facts found and weighing and quantifying the

relevant factors; • Proportionality: “…... there is the principle of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute. In a case such as the present, the legal system provides for the possibility of three successive appeals from the decision at first instance.... This cannot be right. To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness”

•

The taking of a too narrow textual analysis in determining whether the

court has misdirected itself in law;

The assumption that, unless demonstrated otherwise, the judge knew of

•

the correct judicial functions and the matters to be taken into account.

Reference should also be had to the case of Tanfern Ltd v Cameron-Macdonald and anor (2000) 2 ALL ER 801 where for an appeal to be successful the decision had to be ‘wrong’ in so far as the substance of the decision is concerned or, where the exercise of discretion applies, where the court had ‘exceeded the generous ambit within which a reasonable disagreement is possible’ or the decision can be shown to be ‘plainly wrong’ (see Re MA (Care Threshold) (2009) EWCA Civ 853) Prior to the new rules coming into force in V v V (Financial Relief) (2005) 2 FLR 697 it was held that any appeal should be allowed only if, in conducting the necessary balancing exercise, the judge had taken into account matters that were irrelevant, or ignored matters that were relevant, or had otherwise arrived at a conclusion that was “plainly wrong” or had “erred in law”. In A v L (2011) EWHC 3150 it was held that this remains the position post implementation of the new Rules.

However in the case of Re B (Care Proceedings: Appeal) 2013 UKSC 33 it was held that ‘wrong’, in the context of an evaluative determination (as opposed to one of judicial discretion) such as with whether or not the s. 31 CA 1989 threshold is met for a care order, means just ‘wrong’, not ‘plainly wrong’ or ‘manifestly wrong’ ‘plainly’ adding nothing helpful.

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“In ordinary language there is a difference between wrong and plainly wrong. If a plainly wrong test is adopted, it will be possible for an appellate court to hold that the judge was wrong to make an adoption order but was not plainly wrong to do so.”

As far as the second ground of appeal (procedural irregularity) the court only has the power to interfere if the procedural or other irregularity is a serious one and that the irregularity resulted in an ‘unjust decision’.

Taken at face value, therefore, the new rules appear to make no specific provision for applications to review and revisit findings in light of subsequent evidence (such as findings made at a ‘Finding of Fact Hearing’) or to set aside, or seek permission to appeal out of time, an order made in circumstances akin to that in Barder v Barder (Caluori Intervening) (1987) 2 FLR 480 A “Barder Appeal’ arises where, after the final order, a fundamental assumption on which the order was made alters in such a way as materially to invalidate it such that it is possible to appeal out of time against it.

The following conditions must be met:

1.

The new events must have occurred “which invalidate the basis, or

fundamental assumption, upon which the order was made” and which

are such that if permission out of time were granted ‘the appeal would be

certain, or very likely, to succeed.’

2.

Those new events have occurred within a relatively short time of the order.

3.

The application must have been made reasonably promptly.

4.

Third parties, who may have acquired property the subject of the

litigation, should not be prejudiced.

According to a strict interpretation of FPR 30.12(3) it may be argued that a ‘Barder Appeal’ cannot be classified as a ‘wrong’ or ‘unjust’ decision on the basis of the evidence that was before the court at the time the original order was made and therefore it is a moot point as to whether such appeals are technically covered by the rules (see Cart v Cart (2013) EWCA Civ 1006) However this may well have now been addressed in the case of CS v ACS & BH [2015] EWHC 1005 as set out above.

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Chapter 8 August 2015

FEMALE GENITAL MUTILATION - A SERIOUS ISSUE AND A SERIOUS RESPONSE Introduction Following the consultation ‘Female genital mutilation: proposal to introduce a civil protection order’ launched by the Prime Minister at the Girl Summit on 22 July 2014 and which ended on 19 August 2014, the government took forward provisions in the Serious Crime Bill to implement this proposal resulting in the Serious Crime Act 2015.

This extends the criminal offence of FGM and inserts new civil remedy for “an FGM protection order” which itself may also be made by the criminal court of its own initiative

A Definition The WHO Inter-Agency Statement on FGM (at Annex 1 thereof) makes clear that the previous terminology female ‘circumcision’ was expressly changed to female genital ’mutilation’ to ensure that it was not equated with male circumcision.

There is a wide range of different types of FGM procedures that are known to be carried out.

The World Health Organisation (WHO) lists the following four categories: Type I: Clitoridectomy. Partial or total removal of the clitoris and in rare cases only the prepuce (the fold of skin surrounding the clitoris).

Type II: Excision. Partial or total removal of the clitoris and labia minora with or without removal of the labia majora.

Type III: Infibulation. Narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora or majora with or without removal of the clitoris.

Type IV: Other. All other harmful procedures to the genitals for non-medical reasons, for example pricking, piercing, incising, scraping and cauterizing the genital area.

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The Female Genital Mutilation Act 2003 and Part 11 FPR 2010 The Female Genital Mutilation Act 2003 (as amended by the Serious Crime 2015 Act) creates a new civil law measure – the FGM Protection Order – which will enable a court to make an order with the purpose of protecting a girl or women against the commission of a genital mutilation offence or protect a girl or woman against whom such an offence has been committed.

Part 11 of FPR 2010 now regulates the practice and procedure for applications both under FLA 1996, Part IVA in relation to a forced marriage protection order and a female genital mutilation protection order under FGM Act 2003.

Such an application may be freestanding or made within existing proceedings and can be made without notice.

Only the potential or actual victim or a “relevant third party” can apply for a protection order without first needing to seek permission of the Court.

A ‘relevant third party’ (as defined in paragraph 2(7) Schedule 2 of the FGM Act 2003) can apply to the Family Court for a protection order without first seeking permission from the Court in order to protect a victim or potential victim.

A Local Authority is such a “relevant third party”.

This supports a Local Authorities duty to protect children and investigate the welfare of vulnerable persons in their area. Being able to apply for a Protection Order, without first needing to seek permission of the court, should assist local authorities, through their social services units, in protecting actual or potential victims.

Being specified as a relevant third party will make it more efficient for local authorities to apply for a Protection Order, particularly in cases where time is of the essence, as there will be no requirement to seek the permission of the court before doing so.

Applications for permission to apply for such protection orders must follow the process set out in rule 11.3 and a part 18 application notice will be required which will need to be verified by a statement of truth if the applicant wishes to rely on the matters contained within it.

The Application Notice will need to set out the following:

•

The reason for the proposed application, for the making of which

permission is sought;

•

The Applicant’s connection with the person to be protected;

•

The Applicant’s knowledge of the circumstances of the person to be

protected; 59

•

In relation to a Forced Marriage Protection Order the Applicant’s knowledge of the wishes and feelings of the person to be protected

(r 11.3(1)(a));

•

What order is sought and why (r 18.7).

A draft of the proposed substantive application will need to be provided together with sufficient copies for service on each respondent as well as the person to be protected (r 11.3(1) (b)).

A draft of the order sought should also be filed with the Court (r 18.7) and if it is intended that the application is to be made without notice it will need to contain a provision whereby the Respondent has the opportunity to make representations at an ‘on-notice’ hearing as soon as just and convenient to do so but in any event within 7 days of service of the order upon them.

If a without notice application is being made it will need to be supported by a witness statement setting out:

•

The reason for making the application and why it is being made without

notice (r 11.2(2));

•

The details required by r 11.3(1)(a);

•

The reasons for the urgency;

•

How the overriding objective will be furthered;

•

The Rule which permits such an application (PD 18A para 5.1)

Where the application is being made by an organisation, details of the name and address of the person submitting the application and the position they hold within the organisation must be provided (r 11.2(3)) The Statement in support of the substantive application will also need to be sworn as opposed to verified by a statement of truth.

The application must be served personally on the respondent unless the court orders otherwise.

Where a person to be served with any documentation is

(a) a child;

(b) a person, not being a party, who lacks or may lack capacity within the

meaning of the Mental Capacity Act 2005; or

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(c) a protected party;

the court must give directions about the persons who are to be served or informed (r 11.2A) FPR 2010 r 11.4(4) provides for the party to be protected to also be served with a notice informing them of how to apply to become a party to the proceedings and of their right to make representations in writing or orally at any hearing.

The Applicant is required to file a certificate of service verified by a statement of truth and set out both the date and time of service as well as details as to how the person served was identified (rrs 6.37, 11.4(6) and 17.2(1)(d)) Where the person who is the subject of proceedings is not the applicant and is a child, the court must consider, at every stage in the proceedings, whether to make that child a party to proceedings (r 11.6 (A1)) Applications for a person to be joined or removed as a party to proceedings for a protection order must follow the process in rule 11.6 (FL 431). Such joinder or removal can also be effected of the courts own initiative in which case the provisions of r 4.3(2) and (3) will apply as will r 11.9.

Where an order is made in the absence of the person to whom the order is addressed the court must set out in the body of the order a summary of the reasons and the identity of the persons who are to be served with the order (r 11.8(3)).

The provisions for withholding information as set out in rule 11.7 provides for the withholding of any submissions made or evidence adduced in order to protect the person who is the subject of the proceedings or any other person or for any other good reason (r 11.7(2)).

The Court is empowered however to require the person seeking to withhold disclosure to produce the document to the court and invite any party to make representations (see also r 11.9). Having considered the nature of the documents, the reasons provided for withholding the information and striking a balance between the competing rights of the parties the court must determine to what extent the application for non-disclosure should be granted.

The Court may also direct a person other than the respondent and the party to be protected to be served with the order e.g. the Police, Forced Marriage Unit and the UK Border Agency.

The proceedings will be heard in private unless the court directs otherwise.

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When an order is made in the absence of the respondent and without notice of the hearing, the terms of the order and the name of the respondent to whom it is addressed must be announced in open court at the earliest opportunity or at the next listed sitting of the court (PD10A, paras 3.1 and 3.2) Rule 11.12 deals with service of protection orders on the police.

In addition to the order itself a statement must also be provided confirming that the Respondent (and any other person whose breach of the order would be an offence) has been served with the order or otherwise informed as to its terms.

An application for a warrant of arrest is one of the options available to enforce a breach of a Protection Order (r 11.13). The Part 18 procedure applies. Such an application can be made by the person to be protected as a matter of right, otherwise permission of the court is required if the application is being made by a person other than the applicant or the party to be protected (FPR 11.13(2)).

The application will need to be supported by a sworn statement setting out:

a)

the interest or connection of the person applying for the warrant;

b)

a copy of the order;

c)

the terms that it is alleged have been broken; and

d)

how they have been breached.

Rule 11.14 deals with proceedings following an arrest.

Rule 11.15 deals with the enforcement of orders and undertakings. In essence an order must contain on its face the consequences of disobedience and an application for committal for breach of an undertaking must be made pursuant to Part 37.

The attendance of the arresting officer themselves will not normally be necessary unless the arrest itself is in issue (PD10A para 5.2) If the arresting officer is also a witness to the events leading to the arrest and their evidence regarding those events is required, arrangements will need to be made for the officer to attend at any subsequent hearing (PD10A para 5.2) PD10 para 6.1 provides that any application for bail by a person under arrest may be made either orally or in writing.

If in writing the application should contain the following:-

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•

The full name of the person making the application;

•

The address where the arrested person is currently detained;

•

The address where they intend to reside if bail is granted;

•

The amount of recognizance which the arrested person would agree to

be bound by; and

The basis upon which the application is made or any change in

•

circumstances since a previous refusal.

The application must be signed by the person making it or a person duly authorised on their behalf and served upon the person who obtained the injunction.

If bail is granted the person bailed must be given a copy of the bail notice (PD10A paras 6.2-6.5) If the contempt is proven, Rule 11.16 provides the court with power to adjourn for consideration of the appropriate penalty which is particularly useful in cases where the contemnor is showing genuine remorse and a period of time would be useful in gauging whether such contrition is maintained.

FPR 2010 r 11.19 deals with the taking of recognisances.

Re B & G (Children) (No.2) [2015] EWFC 3 Significant Harm In Re B & G (Children) (No.2) [2015] EWFC 3 in the Course of Care Proceedings the President of the Family Division gave guidance in cases where the issue of FGM is raised in the context as to its classification of “significant harm” within S31 Children Act 1989.

The President held that FGM was a criminal offence and an abuse of human rights.

It had no religious basis and was to be condemned in the same way that forced marriage was.

However, there was an issue in relation to FGM WHO Type IV, which bore some comparison with male circumcision. While Types I, II and III were more invasive than male circumcision, some forms of Type IV were less invasive. However, there was nothing in the case law to suggest that male circumcision, of itself, justified care proceedings.

It seemed that family law tolerated non-therapeutic male circumcision performed

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for religious or cultural reasons, but not FGM in any form. The question was how to accommodate that distinction in the context of s.31, under which the local authority had to prove that the child was suffering, or was likely to suffer, significant harm attributable to parental care which was not what it would be reasonable to expect of a parent.

Any form of FGM amounted to significant harm within the meaning of s.31. If FGM WHO Type IV amounted to significant harm, then so did male circumcision. It could never be reasonable parenting to inflict any form of FGM upon a child.

The President was of the view unless FGM in all its forms is treated as constituting significant harm, local authorities, other agencies and the family courts: ‘. . . may be very significantly hampered in their ability to protect vulnerable children, given that “significant harm” is the jurisdictional hurdle that has to be overcome not merely under s 31(2) but also under s 100(4)(b) of the Children Act 1989’ FGM involved physical harm without medical justification, and the fact that it might be a cultural practice did not make it reasonable.

The President therefore also had to tackle head on how to justify the law’s prohibition of all forms of FGM on the one hand and its tolerance of male circumcision on the other. In particular, he asked himself how this could be rationalised using the language of s 31 of the Children Act 1989.

The first question the President posed was whether FGM constituted ‘significant harm’ but male circumcision did not. His conclusion was that he could not logically distinguish one from the other.

Whilst FGM Types I, II and III are all much more invasive than male circumcision, some forms of FGM Type IV ‘are on any view much less invasive than male circumcision’ Whilst medical justifications are sometimes put forwards for male circumcisions, comparatively few are performed for therapeutic reasons. Many are performed for religious reasons (as in Judaism and Islam). However, large numbers of circumcisions are performed for reasons which ‘… are as much to do with social, societal, cultural, customary or conventional reasons as with anything else …’

Interestingly, he came to the conclusion that that too must amount to significant harm. To say otherwise, when male circumcision is more invasive than some forms of FGM Type IV would, the President reasoned, ‘seem almost irrational’ However the second part of the threshold test requires the court to find that the actual or likely significant harm is ‘attributable to the care given to the child, or

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likely to be given . . . not being what it would be reasonable to expect a parent to give …’. It is this statutory wording which led the President to rationalise the law as it currently stands in its differential treatment of girls and boys who have experienced some form of removal of and/or damage to their genitalia.

Male circumcision was often performed for religious or cultural reasons and was said by some to provide hygiene or prophylactic benefits. It was treated as being part of reasonable parenting and could not suffice to establish the threshold for the purposes of s.31.

The law in 2015 was ‘still prepared to tolerate non-therapeutic male circumcision performed for religious or even purely cultural or conventional reasons, while no longer being willing to tolerate FGM” Thus although FGM and male circumcision involve ‘significant harm’ pursuant to s 31(2)(a), the clear distinction between them is with respect to ‘reasonable parenting’ in accordance with s 31(2)(b)(i).

In relation to FGM the second limb of the s 31 test is plainly satisfied. The same, however, is not the case in the law’s approach to male circumcision.

‘It is at this point in the analysis . . . that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits.

Be that as it may, “reasonable” parenting is treated as permitting male circumcision’.

The President therefore concluded that although both involve significant harm, family law draws a clear distinction between FGM and male circumcision. FGM in any form will suffice to establish the s 31 threshold; male circumcision without more will not.

FGM can never be a feature of reasonable parenting, whereas society and the law treat male circumcision as an aspect of reasonable parenting.

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The Welfare Analysis In terms of the implications within care proceedings generally, much would depend upon the type of FGM and the other threshold and welfare issues.

Where FGM was the only threshold factor, there would be no statutory basis for care proceedings in relation to any male siblings. That could give rise to very real difficulties, and local authorities and judges were probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption. Local authorities had to be pro-active about taking measures to prevent FGM, and the court had to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM. Furthermore a girl found to have suffered FGM is unlikely to be subjected to further FGM (although any female siblings who had not yet been subjected to it would be at risk of FGM).

‘No generalisations are possible. Much will obviously depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings, and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case. Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.. . . The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.’

Expert Evidence There was a dearth of medical experts in the area of FGM, and specific training was highly desirable. For forensic purposes, the WHO classification of FGM should be used.

Wherever feasible, referrals for examinations should be made to one of the specialist FGM clinics. If that was not possible, consideration had to be given to having a suitably qualified safeguarding consultant paediatrician to carry out the examination and record it with colposcope so that the images could be reviewed by an appropriate expert. There had to be clear and detailed notes of any examination.

Conclusion The FGM civil protection measure will strengthen the protection for victims or potential victims of FGM and help prevent FGM from happening in the first place.

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Victims, potential victims or third parties, including teachers, carers, social workers, local authorities or friends, who believe there is a real risk of FGM taking place will be able to apply to the court for an order and are furthermore under a duty to notify the police if it appears that an act of FGM appears to have been carried out on a girl under 18 (FGM Notification) The powers provided for in the statute are similar to the powers exercised under applications for a Forced Marriage Protection Order as are the provisions for their breach either under the civil or criminal route.

Breach of an order is a criminal offence and can also be enforced by way of committal and warrant of arrest Anyone who has parental responsibility for a girl who has been mutilated when she was under 16, and is in frequent contact with her, or who has assumed responsibility for such a girl, will be potentially liable if they knew, or ought to have known, that there was a significant risk of FGM being carried out, but did not take reasonable steps to prevent it from happening.

Changes are also being introduced to grant victims of FGM lifelong anonymity from the time an allegation is made to help them report this highly personal offence to the police.

The provisions for the female genital mutilation (FGM) protection order are part of the government’s wider work to tackle FGM, with victims, communities and professionals.

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Chapter 9 September 2015

Financial Order proceedings in the High Court Introduction Mr Justice Mostyn (with the authorisation of the President of the Family Division) has released recently released a revised ‘Statement on the Efficient Conduct of Financial Remedy Hearings Allocated to a High Court Judge whether Sitting at the Royal Courts of Justice or Elsewhere’.

The purpose of the Statement is to provide a set of standards and procedures to enhance efficiency in the disposal of financial remedy cases allocated to be heard by a High Court Judge, and to ensure that such cases are allotted an appropriate share of the court’s resources.

The Statement includes allocation criteria and the methods by which cases should be transferred, and provides guidance on financial proceedings cases that are to be allocated to a judge of the High Court by way of self-certification along with the certificate itself.

Every such case allocated must be the subject of a Pre-Trial Review held before the allocated Trial Judge approximately four weeks before the Final Hearing.

Where the parties seek the allocation of the proceedings to a High Court judge they must complete and file a certificate in the form annexed to the Guidance, stating concisely the reasons for certifying that the application is suitable for determination by a Judge of the Family Division.

The completed certificate must be filed with the Clerk of the Rules not less than 21 days before the date fixed for the First Appointment in the Family Court.

Certification and Allocation The governing principle is that a case should only be allocated for hearing by a High Court judge if it is exceptionally complex or there is another substantial ground for the case being heard at that level and that allocation to that level is proportionate.

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Such allocation is rarely likely to be proportionate unless the net assets exceed £7.5m.

In determining whether the governing principle is satisfied the following are relevant considerations:

(1)

The overall net assets exceed £15m; and/or

(2)

The overall net earned annual income exceeds £1m.

In a case not falling within (1) or (2) above but where the net assets are said to exceed £7.5m:

(3)

There is a serious case advanced of non-disclosure of assets.

(4)

Substantial assets are held offshore either directly or through the medium

of trust or corporate entities and there may be issues as to the

enforceability of any award.

Substantial assets are held in trusts which are said to be variable nuptial

(5)

settlements.

(6)

Substantial assets are held through the medium of unquoted corporate

entities and detailed expert valuation evidence will be required.

(7)

A serious, carefully considered and potentially influential argument is

being advanced of

a. compensation,

b.

non-matrimonial property, or

c. conduct.

(8)

There are serious, substantial third party claims to the assets otherwise

subject to the dispositive powers of the court.

There is a serious, carefully considered and potentially influential issue as to

(9)

the effect of a nuptial agreement.

(10) The application involves a novel and important point of law.

Where the net assets do not exceed £7.5m, allocation to a High Court Judge is only likely to be proportionate where the application involves a novel and important point of law.

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Case Progression The individual High Court Judge will conduct all future hearings apart from the FDR wherever possible.

If the allocated Judge deems it appropriate, the date for the final hearing may be fixed at the First Appointment.

The FDR will be listed with a time estimate of one day unless:

•

The parties certify giving written reasons that a lesser period is sufficient;

and

•

Obtain the written permission of the FDR Judge for the reduced time

estimate.

•

The PTR will be set 4 Weeks before the Final Hearing.

The PTR At the PTR a Final Hearing template must be prepared which must:

•

Allow a reasonable and realistic time for judicial reading and delivery of

Judgement;

•

Must not normally allow longer than one hour for opening; and

•

Not allow for any evidence in chief unless expressly authorised at the Pre-

Trial Hearing.

•

The parties’ Statements must only obtain evidence and should not contain argument or other rhetoric.

If a direction for a discussion between experts has not previously been made then this matter must be raised at the Pre-Trial Review pursuant to FPR Rule 25.16.

At the Pre-Trial Review a direction should be made which ensures that the provision of an agreed Statement of Issues should be produced to be determined at the Final Hearing.

Attached to the Statement of Issues must be the following:

•

An agreed Schedule of Assets on which any non-agreed terms must be

clearly denoted; and

An agreed Chronology on which any non-agreed events again must be

•

clearly denoted.

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On no account should there be competing Asset Schedules and Chronologies.

It is worth commenting that such a view, whilst not expressly wet out, should mirror those cases proceeding in the Family Court. Why should there not be filed a composite (and wherever possible) agreed Case Summary, Schedule of Issues, Asset Schedule and Chronology in all cases before the Court?

The Court bundle must be compiled pursuant to FPR PD27A. A specific direction at the PTR will be required if the bundle is to exceed the limit of 350 pages, if this is the case then it is suggested that a revised maximum limit is set (e.g. 750, 1000, 1250, 1500 etc) rather than an open ended “permission is granted to file a Court bundle in excess of 350 pages” Only those documents which are relevant to the Hearing and which it is necessary for the Court to read or which will actually be referred to during the Hearing must be included unless at the Pre-Trial Review a specific direction has been given to the contrary.

A separate bundle of all authorities relied on must be prepared and which must not exceed 10 authorities.

Skeleton Arguments must:

•

Be concise and not exceed 25 pages;

•

Be printed on A4 paper in not less than 12 point font and 1.5 line spacing;

•

Both define and confine the issues of controversy;

•

Be set out in numbered paragraphs;

•

Be cross-referenced to any relevant documents in the bundle;

•

Be self contained and not incorporate by reference material from

previous skeleton Arguments; and

Not include extensive quotations from documents.

•

Where it is necessary to refer to an authority a Skeleton Argument must first state the proposition of law the authority demonstrates and then identify the part of the authority to support the proposition but without extensive quotations from it.

If the Skeleton Argument is intended to exceed the limit of 25 pages a direction to that effect should be sought at the Pre-Trial Review.

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At the Final Hearing the parties are expected to adhere to the Hearing template.

If advocates unreasonably fail to comply with the requirements of this Statement they risk an Order being made disallowing a proportion of their fees.

Conclusion Although this only applies to High Court Financial cases it is anticipated that there may come a time where an amended version is also brought into effect in relation to financial cases in the Family Court where the time estimate for the final hearing is likely to exceed 3 days. Watch this space!

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Chapter 10 October 2015

PUBLICITY IN FINANCIAL PROCEEDINGS – DIFFERING PERSPECTIVES There seems to be a differing approach developing in the Higher Courts in relation to the issue of publicity in Financial Cases.

Luckwell v Limata (2014) EWHC 536 is an example of a financial case being heard in open court.

The head note records the following: ‘There was no presumption that financial remedy proceedings should be heard in private; r 27.10 of the FPR 2010 provided no more than a starting point, and the question whether a given case should or should not be heard in public was entirely in the discretion of the court. Only if the public were able to see and hear for themselves how proceedings unfolded in the court room, what the oral evidence and arguments actually were, and indeed how the judge comported himself, was there true transparency, open justice and public accountability.’

“The principle that courts normally sit in public underpins the rule of law in a free and democratic society. Historically, courts sitting at first instance to hear financial cases after divorce have almost always sat in private. But there has recently been a strong shift towards greater transparency. That is evidenced by, amongst other sources, r 27.11 of the FPR 2010 to which I have referred, and by the very recent Practice Guidance: Transparency in the family courts; Publication of Judgments [2014] 1 FLR 733, issued by the President of the Family Division on 16 January 2014 and coming into effect on 3 February 2014 (before the start of the hearing in this case). At para 2 of his Practice Guidance the President states: “… there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system …” Whilst greater publication of judgments will make for greater transparency, publication of the judgment alone suffers from the limitation, or even defect, that the public can only read what the judge chooses to say. It is only if the public are able to see and hear for themselves how the proceedings unfold in the court room, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability. Mere publication of

74

a judgment does not achieve that. It is curious, to say the least, that precisely the same financial case may be conducted under full public gaze on appeal and yet in private at first instance. It is true that it is normally only at first instance that witnesses have to give oral evidence, but as witnesses have to give evidence publicly in most other situations, including often in intimate detail as to their sexual lives or their financial affairs, it is not obvious why they should be treated with greater protection in a financial remedy case.” (Holman J) In Rapisarda v Colladon (2014) EWHC 1406 the court was required to determine whether the reporting restrictions in the Judicial Proceedings (Regulation of Reports) Act 1926 s.1 (1) (b) applied generally in financial remedy proceedings.

The proceedings themselves had been considered in open court in the context of applications by the Queen’s Proctor to dismiss a large number of divorce petitions and to set aside decrees of divorce, both nisi and absolute, obtained in consequence of a conspiracy to pervert the course of justice.

The issue was whether s.1 (1) (b), which restricted the publication of judicial proceedings in relation to, inter alia, the dissolution of marriage and the nullity of marriage, applied generally in financial remedy proceedings.

The Judicial Proceedings (Regulation of Reports) Act 1926. Section 1 (headed ‘Restriction on publication of reports of judicial proceedings’) provides as follows:

(1)

It shall not be lawful to print or publish, or cause or procure to be printed or

published

(b) in relation to any judicial proceedings for dissolution of marriage . .

any particulars other than the following, that is to say:

(i) the names, addresses and occupations of the parties and

witnesses;

(ii) a concise statement of the charges, defences and counter-

(iii) submissions on any point of law arising in the course of the

charges in support of which evidence has been given;

proceedings, and the decision of the court thereon;

(iv) the summing-up of the judge and the finding of the jury (if

any) and the judgment of the court and observations made by

the judge in giving judgment . . .

75

Section 1(2) imposes penalties for contravention of the Act. Section 1(4) of the Act provides that: Nothing in this section shall apply (B) to the printing or publishing of any notice or report in pursuance of the directions of the court Accordingly the President held as follows: The aim of the Act was to strike a balance between the principle of open justice and the need to curb reports from the divorce court for the protection of public morality. Section 1 (1) (b) was couched in terms designed to prohibit the publication of material which was scandalous, indecent, disgusting, salacious or titillating. It was clear that the purpose of s.1 (1) (b), as indeed of the Act as a whole, was the protection of public morality and public decency.

Section 1(1) (b) however also applied to financial remedy proceedings although it was almost impossible to believe that the application of s.1 (1) (b) to financial remedy proceedings was an outcome that Parliament had intended. It was difficult to understand how the protection of public morality and public decency, or indeed any other public interest, was facilitated by subjecting the reporting of proceedings in open court of the kind in the instant case to the restraint imposed by s.1(1)(b).

Pending any review of the Act, which the court urged Parliament might wish to consider with an appropriate degree of urgency, the only legitimate means of avoiding the impact of s.1(1)(b) were those allowed by the express provisions of s.1(4).

It was clear that neither s.1 (4) (a) nor s.1 (4) (c) could avail the media generally. As to s.1 (4) (b), the language was quite general and excluded from the ambit of the Act the printing or publishing of “any notice or report in pursuance of the directions of the court”. Section 1(1)(b)(iv) plainly left the judge free to include or exclude from his judgment whatever material he thought fit, and in that sense he had a discretion which was fettered only by the dictates of the judicial conscience.

So too, s.1 (4) (b) conferred a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” was quite general and was neither defined nor circumscribed. It embraced any direction of the court, whether a direction that something was to be published or a direction that something might be published. Likewise, the other words in s.1 (4) (b) were quite general and were neither defined nor circumscribed. Although the word “report” would no doubt include such things as a medical or other expert report to the court,

76

whose publication the judge then authorised, there was nothing in the Act to limit it to such documents.

Accordingly, the word “report” was apt to include a report of the proceedings. It followed that s.1(4)(b) recognised a discretion to make a direction authorising the media’s publication of a report of the whole of the proceedings, as opposed to the concise statement allowed by s.1(1)(b)(ii) of the charges, defences and counter charges in support of which evidence had been given.

On the assumption that s.1(1)(b) did apply to financial remedy proceedings, the court expressed its view that judges might in future wish to consider whether to exercise discretion in such cases under s.1(4).

In Cooper-Hohn v Hohn [2014] EWHC 2314 the case had attracted widespread media attention due to the extent of the assets and the fact that this was likely to be the largest divorce settlement in history in the courts of England and Wales.

The hearing was being held in private but accredited members of the press had been present in court. An application was made on behalf of the media seeking permission to report an account of the proceedings as they unfolded on a day-today basis.

The wife adopted a position of neutrality on the reporting issue aside from seeking a restriction of reporting of the identities of the children, their school and home addresses. The husband also sought to prevent reporting of the identities of the children and of commercially sensitive and confidential material relating to his business but no formal application was made.

The husband and wife were both protective of their private lives and although their work had made them public figures, they did not have a ‘celebrity’ level of notoriety.

Prior to the commencement of the proceedings the husband had the wife and both of their respective legal and non-legal advisors signed a stringent and wide-ranging confidentiality agreement imposing confidentiality of all information supplied for the purposes of the financial proceedings.

The Court noted that FPR 27.11(3) permitted accredited members of the press to attend private financial remedy proceedings unless they are excluded, but they require the permission of the Court to see Court documents referred to during the proceedings. However, neither that rule nor Practice Direction 27B provided explicit assistance on the extent to which the press could report what was heard in court.

In this case Roberts J was unclear whether the Judicial Proceedings (Regulation of Reports) Act 1926 applied to financial remedy proceedings.

77

The judge held that there was an implied duty of confidentiality between the parties and the court and that there was a fundamental distinction between a published judgment which sets out the court’s reasons and conclusions on the issues arising in the case and the contemporaneous publication of what takes place in a private hearing.

Moreover there was a core privacy which attached to the special class of financial remedy proceedings which were actually held in private and designated as such under FPR 27.10. If that were not the case it would lead to the complete emasculation of that core privacy if the press were held to have an unfettered right to report in full anything and everything which they heard during the course of the hearing in advance of the judge reaching any conclusions which might subsequently be recorded in a formal judgment, anonymised or not.

However there isn’t a blanket restriction on reporting and a balance must be struck.

The judge therefore had to weigh up the Article 10 European Convention of Human Rights 1950 (“ECHR”) rights of the media and the Article 8 ECHR rights of the parties.

The judge was also concerned about the husband’s Article 6 ECHR rights should he feel constrained in giving his evidence to the court for fear that an account of everything he said would be available almost instantaneously for public consumption without any judicial filter.

Whilst the principle of open justice remained as relevant in the Family Division as it did in others, the courts had consistently recognised that financial remedy cases heard in the Family Division involving very real and legitimate expectations of privacy and confidentiality for the family fell into a special category.

There was a real concern that fear of publication might constrain the husband’s ability to provide full and frank disclosure in the proceedings. There was also the possibility that his evidence would touch upon several areas of commercially sensitive information which would impact not only upon his own business but also that of third parties who would not have the opportunity to make representations to secure their own positions.

The husband had a legitimate expectation that confidence would be respected in what were essentially private proceedings.

There was also the broader public interest of encouraging full and frank disclosure to be given, which is crucial to the resolution of financial remedy claims supported as it is by the implied undertaking that information disclosed to the purpose of financial remedy proceedings should not be used for other purposes (see Clibbery

78

v Allan [2002] EWCA Civ 45). It should be remembered, however, that such implied undertaking binds the parties and not the media as the media is not a party to the proceedings.

In conclusion the policy considerations which had been unaffected by the rule changes in the FPR 2010 represented an entirely justifiable interference in the Art 10 rights of the media which was entirely proportionate to the issues at stake.

The large sums involved did not of themselves make the case of public interest, but the special contribution argument did.

Those rights might, in any event, be met in due course by the handing down of an unanonymised judgment. Breaching the confidence attached by the parties and the court to the financial disclosure would not assist the public at large or enhance public understanding of the family justice system.

The balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, insofar as it related to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, fell firmly in favour of privacy in relation to financial matters being maintained.

Contrast this however with Fields v Fields [2015] EWHC 1670 where at the outset of the hearing in Holman J exercised discretion under Family Procedure Rules 2010, r 27.10 to direct that the bulk of the hearing, including delivery of judgment, should be in public.

‘The family courts must be more transparent and there is no good basis for making and exception in financial cases . . . Accredited journalists are, in any event, entitled to be present even when the court is sitting in private, subject to strict and limited exceptions. To permit the presence of accredited journalists, but then tightly to restrict what they can report, creates a mere illusion of transparency.’

This case as it progressed had attracted considerable publicity, which the parties found distressing. Holman J regretted that distress, but stated that it could not override the importance of court proceedings being, so far as is possible, open and transparent: ‘There is considerable current, legitimate public interest in the way the family courts daily operate, and that cannot be shut out simply on an argument that the affairs of the parties are private or personal. Precisely because I am a public court and not a private arbitrator, I must be subject to public scrutiny and gaze. But the exposure is very avoidable by the parties themselves.’

79

‘For reasons which I have explained in my judgment in Luckwell v Limata [2014] EWHC 502 ............... there is, in my view, a pressing need for more openness in divorce financial remedy proceedings. I will not repeat those reasons but incorporate them into this judgment by reference. The family courts must be more transparent and there is no good basis for making an exception of financial cases. Such cases are heard in public on appeal to the Court of Appeal and the Supreme Court and the law reports and press reporting are riddled with considerable intimate and financial detail of many financial cases on appeal. Accredited journalists are, in any event, entitled to be present even when the court is sitting in private, subject to strict and limited exceptions. To permit the presence of accredited journalists, but then tightly to restrict what they can report creates a mere illusion of transparency. For these reasons I decided at the outset of the hearing to exercise the discretion under Family Proceedings Rules, rule 27.10, to direct that the bulk of the hearing (including now the delivery of this judgment) should be in public.

As I said in Luckwell v Limata ........: “Protection of commercially sensitive or other confidential information of third parties may raise special considerations.” This is reflected also in para 5.4 of the Practice Direction 27B on “Attendance of media representatives at hearings in family proceedings” and the reference there to “price sensitive information (such as confidential information which could affect the share price of a publicly quoted company).” A part of the evidence and submissions in this case did involve consideration of information of that kind. At those points of the hearing I did, for reasons which I gave and without any resistance by the journalists who were present at the time, exclude not only any public but also the press. With these exceptions, this has been an entirely open and transparent hearing. Press attended almost all the hearing and a very small number of members of the public attended short parts of it.’

The most recent word on the subject highlighting the division in opinion can now be found in DL v SL (2015) EWHC 2621 In that case Mostyn J held that the principle of open justice has deep roots, but publicity is not an absolute. There are some types of case, in which the subject matter could be classified as “private business”, where the ECHR art.8 right to privacy would almost always trump the art.10 right to freedom of expression. This was so even where the rules provide for a hearing in public.

Ancillary relief proceedings are quintessentially private business, and are protected by the anonymity principle. A number of considerations pointed to that conclusion: First, the Family Procedure Rules 2010 r.27.10 provided that the proceedings would usually be heard in private. The fact that the media could attend pursuant to r.27.11 80

did not alter the fact that the hearing was in private.

Second, ancillary relief proceedings obliged the parties to disclose personal and private information, and that information could not be used save for the purposes of the proceedings.

Third, the International Covenant on Civil and Political Rights 1966 art.14 created a presumption against public judgment in matrimonial disputes.

Finally, the Judicial Proceedings (Regulation of Reports) Act 1926 applied to ancillary relief proceedings as well as to the suit for divorce.

There is an unhelpful divergence of approach in the Family Division as to whether ancillary relief proceedings should be heard in private or in open court. Holman J routinely listed such cases in open court, holding that r.27.10 created no presumption that they should be heard in private.

However the instant court disagreed: r.27.10 created a strong presumption that the hearing would be in private, and that presumption was not to be derogated from without some compelling reason.

Rule.29.12, which provides that third parties cannot read documents on the court file without permission, is premised on the proposition that financial proceedings are to be heard in private. If they were heard in public, CPR r.31.22(1) would apply to allow for access to the documents for proper journalistic purposes.

The current divergence of approach is unhelpful. The Court of Appeal needs to consider it and devise and promulgate a common approach.

The message to litigants is clear. Pending clarification from the Court of appeal, depending on which Judge you appear before, particularly in the High Court, the question of transparency is a potential fly in the ointment of high profile parties keeping their personal affairs out of the public gaze.

The only way to avoid this risk entirely is to agree to adopt Family Law Arbitration as a way of adjudicating financial disputes where confidentiality of process is guaranteed as opposed to the court based system: “Where Parties are agreed that their case should be afforded total privacy, there is a very simply solution; they sign an Arbitration Agreement. Arbitration has long been available in Proceedings such as these. Recently arbitration has also become available in financial remedy Proceedings by virtue of the much to be welcomed scheme promoted by the Institute of Family Law Arbitrators. In those Proceedings also privacy can now be guaranteed�.

81

(W V M (2012) EWHC 1679) “If a case really cannot be settled, there are now sophisticated and specialist out of court mechanisms for private arbitration, including that provided by the Institute of Family Law Arbitrators. The advantages of arbitration include convenience (the parties can choose their own place and date), probably earlier resolution, probably costs savings, and certainly complete privacy.�

(Fields v Fields [2015] EWHC 1670)

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Chapter 11 November 2015

Re A (A Child) [2015] EWFC 11 is a case which has had just as profound implications as Re B [2013] UKSC 33 and Re B–S [2013] EWCA Civ 1146 In it, when addressing the issue of threshold for making a care order, the President made the following important observations: Proper Evidence It is for the local authority to prove, on the balance of probabilities, the facts upon which it seeks to rely.

This means adducing proper evidence, preferably direct evidence, and not simply making assertions, factual assumptions or assuming the accuracy of what is recorded: ‘findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation.’

Accordingly the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove.

Much material to be found in local authority case records or social work chronologies is hearsay. Whilst hearsay evidence is admissible in family proceedings, a local authority which is unwilling or unable to produce the witnesses who can speak of matters first-hand, may find itself in difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. “a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time

84

is taken up by cross-examination directed to little more than demonstrating that noone giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

The linking of facts to be proved to the issue of significant harm There is also the need to link the facts relied upon by the local authority with its case on threshold.

The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts.

That is the need to demonstrate why facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. “It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.”

In this case there was very little analysis of the factual underpinning of the local authority’s case such that the local authority’s case was a “tottering edifice built on inadequate foundations.”

They had failed to link the facts relied upon with their assertions that the child was at risk of suffering neglect and that adoption was the appropriate outcome.

“An important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”, but the local authority’s presentation failed to explain, let alone to explain in any convincing fashion, why the conclusions it would have me reach indeed follow from the asserted facts.”

“The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough

85

adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.” (North East Lincolnshire Council v G & L [2014] EWCC B77) “It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child .......... It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.

Many children, unhappily, have parents who are far from being good role models.

But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.”

Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.

“I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption.

We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove (this child) permanently from his father’s care.”

Future Impact of the Decision In Re J (A child) (2015) EWCA Civ 222 the judge made care and placement orders.

The judgment itself was largely a verbatim recital of sections of the local authority chronology and parenting assessment and no account was given of the oral evidence. The mother, supported by the father, appealed On Appeal the Court held that the judgment represented a wholly inadequate evaluation of the important issues that fell for determination. The local authority analysis had been summarised as follows: “[M and F] have demonstrated no positive change since the initial removal of J

86

from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [F’s] substance misuse ... Many of the local authority’s concerns relate to the lack of maturity of the couple”.

That analysis raised the question whether the local authority’s concerns, even taken at their highest, were sufficient to support a finding that it was necessary for the child to be placed permanently away from his parents and adopted. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. He then had to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that the child was likely to suffer significant harm in the care of either or both parents. Finally, it was necessary for the threshold findings to identify the category of significant harm likely to be suffered by the Child. None of that had been done.

Furthermore it was necessary for the local authority to link the facts it relied upon with the conclusion that the child has suffered, or is at risk of suffering, significant harm - this was particularly necessary when the link is not obvious, such as in cases of neglect or emotional harm.

The threshold document should have stated: “what the nature of the local authority case is; what the essential factual basis of the case is; what the evidence is upon which the local authority relies to establish its case; what the local authority is asking the court, and why” in a short, concise document.”

The ‘findings’ did not identify what significant harm the judge found the child to have suffered, nor was the type of significant harm that the Child was likely to suffer.

This case exhibited many of the shortcomings that were highlighted in Re A (A Child) [2015] EWFC 11 and the court wished to endorse and underline all the points of principle made and the salutary warnings given by the President of the Family Division in that case. It was a judgment that needed to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. Advocates and courts were dealing in these cases with the futures of children, often very young and therefore very vulnerable.

They were also dealing with the futures of parents who might be imperfect but who often dearly loved the child at the centre of the litigation. Separating parents and child by placement and adoption orders had only to take place if it was proved, on proper evidence that “nothing else [would] do.”

87

Comment The Judgement from the Court of Appeal also highlights and summarises the following principles that can be gleaned from Re A above and other established authorities:

•

In an adoption case, it is for the local authority to prove, on a balance

of probabilities, the facts on which it relies and, if adoption is to be

ordered, to demonstrate that “nothing else will do”, when having regard

to the overriding requirements of the child’s welfare.

•

If the local authority’s case on a factual issue is challenged, the local

authority must adduce proper evidence to establish the fact it seeks

to prove. If a local authority asserts that a parent “does not admit,

recognise or acknowledge” that a matter of concern to the authority

is the case, then if that matter of concern is put in issue, it is for the local

authority to prove it is the case and, furthermore, that the matter of

concern “has the significance attributed to it by the local authority”.

•

Hearsay evidence about issues that appear in reports produced on behalf

of the local authority, although admissible, has strict limitations if a parent

challenges that hearsay evidence by giving contrary oral evidence at a

hearing. If the local authority is unwilling or unable to produce a witness

who can speak to the relevant matter by first hand evidence, it may find

itself in “great, or indeed insuperable” difficulties in proving the fact or

matter alleged by the local authority but which is challenged.

The formulation of “Threshold” issues and proposed findings of fact must

•

be done with the utmost care and precision. The distinction between a

fact and evidence alleged to prove a fact is fundamental and must be

recognised. The document must identify the relevant facts which are

sought to be proved. It can be cross-referenced to evidence relied on

to prove the facts asserted but should not contain mere allegations (“he

appears to have lied” etc.)

It is for the local authority to prove that there is the necessary link between

•

the facts upon which it relies and its case on Threshold. The local authority

must demonstrate why certain facts, if proved, “justify the conclusion

that the child has suffered or is at the risk of suffering significant harm”

of the type asserted by the local authority. “The local authority’s

evidence and submissions must set out the arguments and explain

explicitly why it is said that, in the particular case, the conclusion [that the

88

child has suffered or is at the risk of suffering significant harm] indeed

follows from the facts [proved]”.

It is vital that local authorities, and, even more importantly, judges, bear

•

in mind that nearly all parents will be imperfect in some way or other. The

State will not take away the children of “those who commit crimes, abuse

alcohol or drugs or suffer from physical or mental illness or disability, or

who espouse antisocial, political or religious beliefs” simply because those

facts are established. It must be demonstrated by the local authority, in

the first place, that by reason of one or more of those facts, the child

has suffered or is at risk of suffering significant harm. Even if that is

demonstrated, adoption will not be ordered unless it is demonstrated

by the local authority that “nothing else will do” when having regard to

the overriding requirements of the child’s welfare. The court must guard

against “social engineering”.

When a judge considers the evidence, he must take all of it into account

•

and consider each piece of evidence in the context of all the other

evidence, and, to use a metaphor, examine the canvas overall.

•

In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section 1(4) of

the Adoption and Children Act 2002. The judge must also treat, as a

paramount consideration, the child’s welfare “throughout his life” in

accordance with section 1(2) of the 2002 Act. In dispensing with the

parents’ consent, the judge must apply section 52(1) (b) as explained in |

Re P (Placement Orders, parental consent) [2008] 2 FLR 625.

89

Chapter 12 December 2015

EVIDENCE AND THE THRESHOLD CRITERIA S 20 Consent – Its use and Abuse Section 20 of the Children Act 1989 provides: ‘(7) A local authority may not provide accommodation under this section for any child if any person who –

(a) has parental responsibility for him; and

(b) is willing and able to –

(i)

provide accommodation for him; or

(ii) arrange for accommodation to be provided for him, objects.

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.’

Section 20 does not give any “decision-making power” over a child, nor does it confer parental responsibility on a local authority.

It should be seen as a short-term measure pending the commencement of care proceedings.

S 20 Agreements are not valid unless the parent giving consent has the capacity to do so.

Consent to the removal of a child under s 20 has to be properly informed. “the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”” Re W (Children) [2014] EWCA Civ 1065 Furthermore where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.

90

In WILLIAMS v HACKNEY LONDON BOROUGH COUNCIL (2015) EWHC 2629 the parents had not been fully informed of matters relating to the terms of the agreement and its effect, as they should have been.

They were not informed of their right to take their children away from local authority accommodation. They were not told to take independent legal advice. The parents were in effect compelled to sign the agreement. Their agreement or acquiescence was not fairly obtained.

Re CA (A Baby) (2012) EWHC 2190 offers the following guidance:(a) every parent had a right, if capacitous, to exercise their parental responsibility

to consent under s.20 to have their child accommodated by the local

authority and every local authority had the power under s.20(4) so to

accommodate, provided that it was consistent with the child’s welfare;

(b) every social worker obtaining consent was under a personal duty to be

satisfied that the person giving consent did not lack the required capacity;

(c) the social worker had to actively address the issue of capacity, take into

account all the prevailing circumstances and consider the questions raised by

the Mental Capacity Act 2005 s.3, and in particular the mother’s capacity to

use and weigh all the relevant information;

(d) if the social worker had doubts about capacity, no further attempt should be

made to obtain consent on that occasion, and advice should be sought from

the social work team leader or management;

(e) if the social worker was satisfied that the person did not lack capacity, they had

to be satisfied that the consent was fully informed. That involved questioning

whether the parent fully understood the consequences of giving such a

consent, whether they fully appreciated the range of choices available and

the consequences of refusal, and whether the parent was in possession of

all the facts and issues material to the giving of consent; (f) if not satisfied that

the answers to those questions were all “yes”, no further attempt should be

made to obtain consent on that occasion, advice should be sought and the

social work team should further consider taking legal advice if thought

necessary; (g) if satisfied that the consent was fully informed, the social worker also had to be

satisfied that the giving of such consent and the subsequent removal was both

fair and proportionate;

91

(h) in considering that, it might be necessary to ask what the current physical and

psychological state of the parent was, whether they had a solicitor, whether

they had been encouraged to seek legal advice and/or advice from family or

friends, whether it was necessary for the safety of the child for them to be

removed at that time, and whether it would be fairer for the matter to be the

subject of a court order rather than an agreement;

(i)

if, having done all that and, if necessary, having taken further advice, including

where necessary legal advice, the social worker considered that a fully

informed consent had been received from a capacitous mother in

circumstances where removal was necessary and proportionate, consent

could be acted upon;

(j)

local authorities might want to approach with great care the obtaining of

s.20 consent from mothers in the aftermath of birth, especially where there was

no immediate danger to the child and where it was probable that no order

would be made.

This guidance however is not intended to cast doubt on or discourage the use of s.20 consent from capacitous parents in circumstances where it is perfectly proper to seek agreement to immediate post-birth accommodation.

In addition in Re N (CHILDREN) (ADOPTION: JURISDICTION) (2015) EWCA Civ 1112 the guidance was supplemented as follows: “i)

Wherever possible the agreement of a parent to the accommodation of their

child under section 20 should be properly recorded in writing and evidenced by

the parent’s signature.

ii)

The written document should be clear and precise as to its terms, drafted

in simple and straight-forward language that the particular parent can readily

understand. iii)

The written document should spell out, following the language of section 20(8),

that the parent can “remove the child” from the local authority

accommodation “at any time”.

iv)

The written document should not seek to impose any fetters on the exercise of

the parent’s right under section 20(8).

v)

Where the parent is not fluent in English, the written document should be

translated into the parent’s own language and the parent should sign the

foreign language text, adding, in the parent’s language, words to the effect

that ‘I have read this document and I agree to its terms.’

92

Great caution should also be exercised in using S20 in cases where complex medical evidence may become involved. Serious consideration should be given to issuing proceedings promptly as there is no framework for the parents to be involved in those investigations with no access to legal advice.

(Medway Council v M, F and G (2014) EWHC 308) In Re W (Parental Agreement with Local Authority) [2014] EWCA Civ 1065 the local authority had concerns about the mother’s ability to care for her two children, and warned her that it might bring care proceedings unless she agreed to their placement with the paternal grandmother pending further assessments.

The children lived with the grandmother from July 2012.

In November 2012 the mother signed a written ‘agreement’ to their remaining in the grandmother’s care ‘whilst further assessments are completed’.

The agreement declared that it was ‘not a legal agreement however; [sic] it may be used in court as evidence if needed’.

In December 2012 the local authority cancelled a full assessment but did not wish the mother to resume care and in May 2013 she issued proceedings for a residence order.

The court viewed with considerable concern the way in which the local authority embarked upon its original intervention and its subsequent conduct.

Whatever might have been the true legal status of the ‘agreement’, it was treated by the authority as enabling it in effect to control the mother and her children, without the need to commence care proceedings and without, from its perspective, exposing it to the various obligations which arise in relation to a child who is or has been ‘looked after’ in accordance with s 20 of the Children Act 1989. It would be matter of concern if ‘back door’ care proceedings such as this were to become prevalent.

In Northamptonshire County Council v AS and Ors [2015] EWHC 199 a child, then aged 15 days old, was on 30 January 2013 placed with foster carers by the local authority, his mother having agreed to him being accommodated pursuant to section 20.

It was not until 23 May 2013 that the local authority made the decision to initiate care proceedings and not until 5 November 2013, some nine months after he had been taken into care, that the local authority issued care proceedings.

93

Keehan J described the delay as astonishing and extraordinary.

He considered the ‘lamentable’ failures of the local authority and stated that ‘the Family Court will not tolerate a party, let alone a public body charged with the care of so very young a child, ignoring court orders’.

The failures of the local authority included:

•

Accommodating a 15-day-old child with the mother’s purported s 20

consent but without the use of an interpreter; the mother being of Latvian

origin. ‘I question how effective that consent was when it was sought

without the mother having the benefit of an interpreter.’

•

Appointing a young and inexperienced social worker to deal with a case

involving a very young baby, and then not offering any support to the

social worker in the proceedings despite the need for this support being

identified.

•

Failing to issue proceedings promptly. The child was accommodated in

January 2013, the decision to issue was taken in May 2013, but the

proceedings were not actually issued until November 2013.

Failing to manage the proceedings and file evidence promptly.

•

“The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to (S20) provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

The accommodation of [the child] under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.”

94

In Medway Council v A and Others (Learning Disability: Foster Placement) [2015] EWFC B66 the judge felt ‘obliged to consider and make serious criticisms of the social work’ in this case which had involved a vulnerable mother, a matter of days after the birth, signing a s 20 agreement.

The parents believed the agreement covered just a two week period in mother and baby foster placement (when it actually lasted for 40 days before proceedings were issued) and the social worker accepted that concerns over the Mother’s cognitive functioning had been raised by the hospital.

The judge called the local authority’s conduct ‘wholly unacceptable’ and stated her concern that ‘most significantly, the use of s 20 agreements result in vulnerable adults coping with such circumstances without legal advice or representation.

In SR (A child: Habitual Residence) [2015] EWHC 742 disapproval was passed on the use of s 20 for lengthy periods where there is obvious potential for jurisdiction to be an issue.

In GLOUCESTERSHIRE COUNTY COUNCIL v S (2015) two boys aged five and three (X and Y) had been in foster care since September 2013.

Care proceedings were issued some two years later. The foster carers were prepared to offer X and Y a permanent home.

Although it appeared that the parents might agree to that, there was as yet no agreement about the orders to be made. The local authority proposed that the foster carers should be special guardians for the children; they had been assessed as suitable applicants for such orders.

It was held that the local authority’s conduct in delaying the issue of proceedings and allowing the protracted use of accommodation under the Children Act 1989 s.20 was unacceptable.

Not knowing for two years where they would be living, who would be caring for them, where they would be going to school, with whom they could make friends and when decisions would be made about them was bound to have a profound effect on X and Y’s emotional welfare. It was inevitable that they would form attachments to their current carers and do so without knowing whether those attachments would persist.

Over the past two years when X and Y had sought comfort or reassurance about the future, nobody would have been able to tell them what the future held. Schools did an excellent job when that type of issue arose, but the burden it placed on teachers was immense. It was difficult, for instance, for schools or nurseries to protect

95

the emotional welfare of children in these circumstances. Discussions or projects at school about families, holidays or future plans were made more difficult. The foster carers had given the children committed and excellent care. The burden on them must also have been immense, as they also had to be able to plan their lives. For two years, they had not known whether to plan as a family with X and Y or not.

In Re T (A CHILD) sub nom MEDWAY COUNCIL v (1) M (2) T (BY HER CHILDREN’S GUARDIAN) (2015) a mother and daughter applied under the Human Rights Act 1998 s.7(1)(b) for declarations and damages in relation to the alleged unlawful accommodation of the daughter under the Children Act 1989 s.20.

In February 2013, when the daughter was aged five, the mother was detained in hospital with a serious mental disorder. In the absence of anyone else with parental responsibility, the local authority put the daughter in emergency foster care.

After two weeks, it facilitated contact but the daughter reacted badly to her mother’s ill-health and refused further contact. The local authority made no more contact arrangements.

At a looked-after children review in June, it was confirmed that the mother did not have capacity to give s.20 consent and care proceedings were recommended. The local authority decided there was no need to issue proceedings, as it could make decisions relating to the child under s.20.

In August, the mother was discharged from hospital into bed and breakfast accommodation. The local authority obtained a written s.20 consent from her despite concern that she had little understanding. It was noted that a mental health capacity assessment was needed; none was done.

A further s.20 consent was obtained in October. It was noted that decisions were needed about the daughter’s long-term care, but no steps were taken.

In May 2015, when the daughter had been in care for more than two years, care proceedings were issued and an interim care order obtained.

The mother and daughter submitted that in the absence of parental consent, the s.20 arrangements were unlawful. They also maintained that care proceedings should have been started as soon as possible.

The local authority argued that it had lawfully discharged its duty under s.20(1) (c) and had been permitted to do so in an open-ended manner pending a determination as to whether and when the mother would recover. It relied on R. (on the application of G) v Southwark LBC [2009] UKHL 26 to argue that the absence of consent was irrelevant; what mattered was that there had been no objection.

96

It was held as follows: (1)

The local authority conceded that between the mother’s discharge from

hospital in August 2013 and the early part of 2015 it had poorly managed the

case: it had failed to establish the mother’s capacity or to consider the

daughter’s legal status; it had delayed involving the court; it had not explored

the issue of permanence and had allowed the case to drift; and it had

neglected parental contact. It had been alerted in June 2013 to the need to

take legal proceedings and could not deny that the accommodation from

that point was unlawful).

(2)

Southwark was not authority for an objection-based lawful accommodation

under s.20, Southwark distinguished on the ground that it concerned a young

person’s consent to his own accommodation, not parental consent. Without

the mother’s informed, capacitous and freely-given consent, the local authority

had had no lawful basis on which to accommodate the daughter without

obtaining an order under the Act. It could not subvert the parts of the Act

which safeguarded families from unregulated, unilateral actions that interfered

with their family life; the wording of s.20 made no provision for any “emergency”

or “discretionary” powers which would override that.

(3)

In emergency situations, it might be reasonable in rare cases to wait a day or

two before issuing care proceedings to review the parent’s progress in hospital.

The period should be less than 72 hours.

(4)

The local authority had not acted in bad faith but had displayed a shocking

misunderstanding of the law and the limits on the exercise of its power. That was

compounded by an ignorant and arrogant disregard for the advice provided

by the looked-after children review process. The rights of both mother and

daughter under ECHR art.6 and art.8 had been violated. In future the local

authority was required to consistently and rigorously apply a number of reforms.

(5)

A declaration was not just satisfaction. The unlawful removal of a child was an

egregious breach of one of the most fundamental human rights, and it had

been exacerbated by a persistent failure to bring the breaches to an end.

The length of the breaches was unusually and unacceptably long, which

should be reflected in the award. The court reproduced a table of awards

made in previous authorities. The just and appropriate award was £20,000 each

to the mother and child.

97

Conclusion Note the following salutary warning to all Local Authorities: “From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice .......... can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.�

Re N (CHILDREN) (ADOPTION: JURISDICTION) (2015) EWCA Civ 1112

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