Family Law Week August 2015 - 1 August 2015 News 1 Articles Finance & Divorce Update July 2015 19 Is it time for no fault divorce? 28 Family Law Week’s Budget Briefing, July 2015 31 Greater Transparency in Children Proceedings: A Note of 34 NEWS Caution FGM and the Serious Crime Act 2015 38 Police must reassess their approach to All Change for London Family Lawyers: An International 40 child protection Perspective Three Years On: Same Question, Different Answer? ‘Is There 43 a Legal Right to Gay Marriage?’ Her Majesty's Inspectorate of Constabulary has said that in a time of changing communities – both real and virtual – the Children: Private Law Update (July 2015) 47 police service must reassess their approach to child Injuries to Infant with Bone Disorder: latest deliberations of 50 protection, or risk failing another generation. HMIC the High Court emphasises that protection of children is one of the most Malicious use of intimate images : the problem and some 54 serious and important responsibilities entrusted to the police practical and legal remedies service. Cases HMIC has published a series of three reports related to child Birmingham City Council v Sarfraz Riaz and Others [2015] 57 protection over the last 18 months: EWHC 1857 (Fam) Ÿ AC v SC [2015] EWFC B76 58 In harm's way: the role of the police in keeping children DN v HN [2014] EWHC 3435 (Fam) safe – a summary of findings from 21 inspections on the police response to child protection conducted over the Re A (A Child) [2014] EWHC 4836 (Fam) 59 last two years; K v D (Parental Conflict) [2015] EWFC 49 62

Ÿ Online and on the edge: real risks in a virtual world – Prest v Prest [2015] EWCA 714 63 findings from an inspection of how police forces deal Re R (A Child) [2015] EWCA Civ 674 65 with children who are being exploited via the internet; JB v MB [2015] EWHC 1846 (Fam) 66 and Re S (A Child) [2015] EWCA Civ 649 67 Ÿ Building the picture: an inspection of police information WW v HW [2015] EWHC 1844 (Fam) 68 management – an examination of how successfully police Re L (A Child) [2015] EWHC 1617 (Fam) share and cross check information in order to build a picture of criminality (this inspection is the result of Re A and B (Children) [2015] EWHC 911 (Fam) 69 findings in HMIC's 2013 report into police failings in Derby City Council v SK and Others [2015] EWFC 57 70 sharing and recording allegations related to Jimmy Re S (A Child) [2015] EWCA Civ 689 71 Savile). T (A Child) [2015] EWCA Civ 719 72 HMI Dru Sharpling, who led the inspections, said: Curran v Collins [2015] EWCA Civ 404 73 Guerroudj v Rymarczyk [2015] EWCA Civ 743 "Children must come first – there can be no compromise Re S-B (Children) [2015] EWCA Civ 705 74 when it comes to child protection. Getting it right most of the time can never be the explanation for failures that Re D (Children) [2015] EWCA Civ 703 75 have devastating consequences for the child, carers and GW v MW [2015] EWFC 56 76 families. A-S (Children) [2015] EWCA Civ 748 77 Re K (1980 Hague Convention) [2015] EWCA Civ 720 "Dealing with child protection cases can be enormously challenging and complex. There is no question of this, A and B (No 1) [2015] EWHC 1059 (Fam) 78 nor that there are officers out there who are dedicated A and B (No 2) [2015] EWHC 2080 (Fam) 80 and passionate in protecting children and bringing Y (A Minor: Wardship) [2015] EWHC 2098 (Fam) 81 perpetrators of abuse to justice. Y (A Minor: Wardship) [2015] EWHC 2099 (Fam) Re PD [2015] EWCOP 48 82 "HMIC found that where cases of child abuse and neglect London Borough of Redbridge v SNA [2015] EWHC 2140 are straightforward, they are almost always dealt with G (Child) [2015] EWCA Civ 834 83 WA v Executors of the Estate of HA & Others [2015] EWHC 2233 (Fam) GENERAL EDITOR Family Law Week is published by KG v LG (No 2) [2015] EWFC 64 85 Stephen Wildblood QC Re W [2015] EWHC 2039 (Fam) 86 Law Week Limited R v R [2015] EWCA Civ 796 Greengate House Deputy Editor 87 Pickwick Road Re P (A Child) [2015] EWCA Civ 777 87 Claire Wills-Goldingham QC Corsham Colleton Chambers Ilott v Mitson & Others [2015] EWCA Civ 797 88 SN13 9BY W-J (Children) [2015] EWCA Civ 788 89 Tel & Fax: 0870 145 3935 Re NH [2015] EWHC 2299 (Fam) 90

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promptly and efficiently. But often these cases are The reports say that the police service must focus complicated and unique, so the processes for dealing immediately on how it ensures it has the skills, capabilities with them have to adapt. This requires training officers and application it needs to improve. The number of cases of and equipping them with a different set of skills than is child abuse reported is increasing, and the opportunities the required for other types of police investigation. internet provides for abuse are now manifest. Dealing effectively with the wide range of circumstances where "In other areas of child protection, officers must have the children may need help – from online abuse to neglect, and confidence and the support they need to apply tried- physical beatings to sexual exploitation – requires a and-tested investigative techniques, regardless of the correspondingly comprehensive set of skills. fact that the offending is now taking place in the online space. Some of these skills, says HMIC, are clearly specialist (for instance, eliciting an account of abuse from a traumatised "The abuse and neglect of children is not new, but the child, or maintaining good quality information and scale of current and non-recent sexual abuse revealed by intelligence records at local and national levels); others are recent investigations has shocked the nation. Although simply reapplying basic investigative techniques to a new the police don't deal with these issues in isolation, they environment. For example, although the police are need to lead the way in tackling this societal scourge and confident in dealing with an identifiable and physical scene prioritise work, not according to workload, but with the of crime, such as a burglary, they generally do not welfare of the child as the priority. Future generations investigate cases in the virtual world as effectively – even will judge us according to the action we take now." though the basic principles of taking a snapshot of the scene of the crime, and considering who might be at risk, and so Although all forces have strategies and policies in place that on, are the same. are designed to ensure children are effectively protected and safeguarded (i.e. protected from further harm), and Overall, the findings from HMIC's child protection senior leaders are clear in the priority they place on this area inspections demonstrate an under-recognition and under- of policing, HMIC's inspections found that the plans estimation of risk. The reports warn that if the child articulated by senior officers have failed as yet to result in protection system is in some cases struggling to manage the consistently good services for children. current demands made of it, it will not cope with a greater number of cases which are likely to be uncovered in the On too many occasions HMIC found that investigations into future. child abuse or neglect were poor and plagued by delay, and the response to reports of offences against children – 2/7/15 ranging from online grooming to domestic abuse – was inadequate. Supreme Court to determine ‘ordinary HMIC concluded that pockets of excellent practice observed across all inspections were the result of dedicated and residence’ for deciding which LA owes professional individuals and teams, rather than a united, duties to individual understood and applied focus on protecting children at force level. Additionally, there is not enough done in forces On the 8th July the Supreme Court will deliver judgment in to find out the effects on children of police intervention, nor R (on the application of Cornwall Council) v Somerset County to understand their experiences when they come into Council. The Court will consider the proper approach to the contact with the police. This means that forces do not know determination of a person's 'ordinary residence' within the what works in protecting children or how successful or meaning, and for the purposes, of Part III of the National positive their impact is on children. Assistance Act 1948 ("the NAA"), where that person lacks capacity to decide where to live. The increasing numbers of cases involving child protection means that the police will have to adapt to a substantial new Local authorities have a wide range of duties to secure the challenge, with new ways of working. The old methods of provision of care and other types of assistance for certain policing, which relied on a target driven approach where children and vulnerable adults. Criteria have to be what mattered was what was counted – an approach which identified to determine which authority has the obligation. still permeates policing today – must be driven from the In a general sense it will be the authority with which the policing culture once and for all. Children must be placed at individual has the closest connection. Some test has to be the heart of what policing does next. adopted to reflect that general notion, and typically this is to ask where the person is ordinarily resident. The dedicated and extremely motivated individuals and teams HMIC says it encountered in its inspection work also In this case the Secretary of State was statutorily need and deserve better support – particularly as they deal empowered to resolve a dispute. The issue he had to decide sometimes on a daily basis with details and circumstances was where PH, a severely disabled person lacking capacity, which can be distressing and horrifying. Senior officers was ordinarily resident when he turned 18. He concluded must ensure they are working in an environment in which that it was in Cornwall which, if he is correct, will therefore they are valued and supported when carrying out have to cover the cost – currently estimated at some £80k a protection and safeguarding activity, which might be year – for providing the necessary care for PH throughout invisible to the public, but which they are doing on behalf of his life. Cornwall challenged that determination by way of children, and of the community at large. judicial review before Beatson J, as he then was, but were unsuccessful. The Court of Appeal allowed the appeal and

www.familylawweek.co.uk Family Law Week August 2015 - 3 declared South Gloucestershire to be the ordinary place of Cabinet-level minister or Cabinet sub-committee for residence at the relevant time. children.

The Court of Appeal judgment is here. The research report provides many examples, covering children's views on being respected, their experience of 2/7/15 violence, being in care, poverty, and how they are treated in school. Charities launch damning report on Louise King, Co-Director, Children's Rights Alliance for children’s rights in the UK England said: "Every child has a human right to a good start in life – an Children's charities have launched a damning report stating equal chance to do well at school, to be healthy, safe and that Government policies and spending decisions have cared for. But too many children are invisible to the failed to prioritise children. Based on the evidence in the Government: decisions on welfare, cuts to vital services, report, children's charities are asking the Government to put and children's day-to-day treatment all threaten children at the centre of decision-making, including in the children's human rights. We have made more than 170 forthcoming Budget. recommendations on how the lives of children can be improved, many of which are not about spending more New research for the coalition of charities in the Children's money, but putting children at the heart of Government Rights Alliance for England (CRAE), indicates that decision-making. Without this, the most vulnerable Government policy means: children will remain invisible." Ÿ millions of children continue to live in poverty Kate Mulley, Director of Policy and Campaigns, Action for Children, said: Ÿ spending on services for children and families has fallen to 2006 levels, despite increasing need "With decreasing local government budgets particularly affecting preventative services, we are concerned more Ÿ many vulnerable children are no longer entitled to help children will be put at risk of serious neglect and abuse with legal advice and representation costs, severely or taken into care. limiting their access to justice "We work with some of the country's most vulnerable Ÿ an increasingly hostile environment aimed at migrants children and their families. Our experience of getting means many vulnerable children are facing more help and support to families early can prevent situations restrictive immigration policies, cutting them off from from reaching crisis point. Spending on preventing access to justice and from basic services. harm to vulnerable children, rather than picking up the pieces when it's too late would change lives and save The report sets out how the UK Government breaches its millions in taxpayers money." obligations under the UN Convention on the Rights of the Child (CRC), because it is not fully considering how its Peter Grigg, Director of External Affairs, The Children's decisions affect children. Society said:

The report also finds that: "Migrant children continue to be hit by a range of harsh measures. Cuts to legal aid, alarmingly low levels of Ÿ reported child sex abuse has risen by 60% in the last four asylum support and changes that are making it even years, while arrests for child sexual abuse offences have harder for them to get critical housing, healthcare and fallen by 9% during the same time period other support are affecting their lives and well-being. Ÿ an approved restraint hold is permitted on children in "As we see from our frontline work every day, detention, despite serious medical risks Government measures are pushing many migrant children into poverty, homelessness and exploitation. Ÿ spending cuts have undermined both in-work and out- We urge the Government to take urgent action to reverse of-work support for families with children, and welfare this trend by following its commitments under the UN reform has had a disproportionate impact on under-18s Convention on the Rights of the Child. Migrant children are children in need - not immigration statistics." Ÿ the use of Taser on children has increased rapidly in recent years, without any specific training or guidance The CRAE's Civil Society submission to the UN Committee on this or detailed investigation into its physical or on the Rights of the Child is here. A summary of the Civil psychological effect on children Society report is here. The See it, Say it, Change it submission to the UN Committee on the Rights of the Child is here. Ÿ the UK continues to be the only country in Europe that recruits from age 16 to the armed forces – some of whom 2/7/15 have a reading age of just five years.

The CRAE says that children's low status is reinforced by the lack of senior political leadership on children: there is no

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Law Society guidance aims to help Keehan J grants ‘life-long’ reporting solicitors meet the needs of restriction order vulnerable clients Mr Justice Keehan has granted a life-long reporting restriction order in respect of a victim of child sexual The Law Society has published guidance for solicitors to exploitation in Birmingham. help them meet the needs of vulnerable clients. This includes clients with a range of physical and mental health Keehan J was concerned with the follow-up decision to problems including learning disabilities. Birmingham City Council and Safraz Riaz and others [2014] EWHC 4247 (Fam), in which the court concluded that The Law Society practice note on vulnerable clients has been a vulnerable 17 year-old woman, AB, had been a victim of issued in response to calls for support from law firms and child sexual exploitation ('CSE'). other significant partners, including Mencap. In Birmingham City Council v Sarfraz Riaz and Others [2015] Using case scenarios, the guidance aims to help solicitors to: EWHC 1857 (Fam), the issue was now whether the reporting restriction order ('RRO') to prevent the Ÿ identify vulnerable clients and their needs at an early identification of AB should continue past her 18th birthday stage and give her lifelong protection. Birmingham City Council and AB sought a lifelong RRO and the Press Association Ÿ communicate with them more effectively and Times Newspapers opposed such an order. Ÿ work with third parties, including advocates and carers AB's Article 8 right to respect for private and family life and the media's Article 10 right of freedom of expression were Ÿ help clients to achieve the best possible legal outcomes. both engaged. Further, s12(4) of the HRA 1998 requires the court to have particular regard for the importance of the The guidance uses the term 'vulnerable' to describe a range right to freedom of expression. of situations which could place a client at a disadvantage in accessing legal services, and focuses on: Noting the case of JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 and those of Thompson and Ÿ clients who have capacity to make decisions and provide Venables, Mary Bell, and Maxine Carr which are the only instructions, but who require support to use a solicitor's three reported decisions in which lifelong anonymity orders services and give instructions were made in favour of adults, it was clear that the granting of lifelong anonymity orders was "truly exceptional". Ÿ clients who lack mental capacity to make decisions for whom a range of statutory and other safeguards must be The court also considered the legislative position which followed permits lifelong anonymity to be granted to victims and witnesses in criminal proceedings who are under the age of Ÿ clients who are vulnerable to undue influence or duress. 18 when the proceedings commence and that anonymity is afforded to all victims of sexual abuse and victims of female Law Society president Andrew Caplen said: genital mutilation in criminal proceedings. "Vulnerable people face particular obstacles in accessing Keehan J considered that a lifelong RRO being made in justice, including getting help from a solicitor. We have favour of AB would have to be on the basis of the most produced this important guidance to support our compelling circumstances. members and to help their clients to get the legal advice and tailored support that they need." The court had evidence of AB's social worker and a psychologist about AB's continuing vulnerabilities, her Law Society research at the end of 2014 showed that nearly anxiety around media reporting and identification, and the two-thirds of firms (59 per cent) had provided legal services risk of further stress impacting her engagement in services to vulnerable clients in the preceding 12 months. Those and now her pregnancy. The local authority expressed solicitors working with vulnerable clients in that period concern that other young victims of CSE might be described one in five (21 per cent) of their clients as dissuaded from coming forward if they were worried about vulnerable. publicity and identification when they turned 18. The guidance for solicitors is supplemented by an easy read The judge carefully balanced the competing Article 8 and guide for clients, supporting them to access solicitors more Article 10 rights and concluded that there was no public easily. interest in identifying AB as a victim of CSE and there were compelling reasons why AB's history should be confidential The guidance is here. and private to her. Therefore, the judge was completely satisfied that the balance was decisively in favour of 2/7/15 granting the lifelong RRO sought.

For the judgment and fuller summary by Ariel Ricci of Coram Chambers from which this item is derived, please click here.

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4/7/15 The statement is intended 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 Local authorities to get £30m to allotted an appropriate share of the court's resources. speed up adoptions The revised version of the statement is here.

BBC News reports that in this week's budget, the Chancellor of the Exchequer, George Osborne, will pledge 3,000 children a year leave care £30m to speed up the matching of adoptive parents and children in care in England. The money is intended to cover before they are ready: Children’s the £27,000 fee usually incurred in finding parents beyond Commissioner an authority's own area. The Children's Commissioner for England is calling for The funding, to be included in Wednesday's Budget, will support to be extended to all children who leave care until cover the usually incurred by authorities to find parents they are 25 years old after nearly a third of care leavers who outside their local area. responded to the national survey of children in care felt that they had left care before they were ready to fend for George Osborne said: themselves. "We cannot sit by when so many children are waiting so Of the 2,936 children and young people who responded to long to find a stable, loving home, particularly when the survey, when asked whether they understood why they there are parents out there who want to adopt. It just came into care, more than half who answered said they did isn't good enough. not. If this figure was extrapolated to the general population of children in care, the number would be around 35,000 "So I want to do all I can to make sure that there are as children and young people. Additionally, only 46% of those few barriers as humanly possible between children in who responded to the question knew how to contact an care and their new parents." advocate, a service to which they are entitled. For the BBC News report please click here. As well as calling for all young people leaving care to be allowed to be supported through to young adulthood, the 5/7/15 results of the survey have prompted the Commissioner to recommend that:

Sarah Cove and Noel Arnold honoured Ÿ the views of children in care are systematically sought at LALY Awards and taken into account in all decisions made about them; Ÿ every child is guaranteed at least one continuing and Sarah Cove of Miles & Partners has been named Family consistent relationship with an adult, throughout their Legal Aid Lawyer of the Year at the 2015 LALY Awards. time in care and into adulthood; Noel Arnold, Director of Legal Practice at Coram Children's Legal Centre, received the corresponding award Ÿ children keep the same social worker for longer; in respect of children's rights. Both are members of Resolution. Ÿ every child is given a passport to therapeutic care to help them recover from past harm and build resilience and Public Law Project was presented with the award for emotional wellbeing for the future. Outstanding Achievement in recognition of its repeated success in challenging government cuts to legal aid last A high proportion of children and young people in care year. The LALY judges described these victories as 'bringing have a positive experience. Eighty one per cent of those a few chinks of light' to practitioners during what had been who answered felt they were living in the right place, with a challenging year. many who were in foster care and also those in children's homes valuing being part of a family. For the awards in full, please click here. Sarah, a young care leaver who helped to develop the 5/7/15 survey said:

"The results of the survey are about wanting to make Revised statement issued on the children and young people have a great life and not just conduct of financial remedy final about what they have experienced in the past. They want to have normal lives like everyone else and don't hearings before a High Court judge want to be different. The State of the Nation Report is part of changing their lives for the better." Mr Justice Mostyn has revised the statement of the 9th June 2014 relating to the efficient conduct of financial remedy Anne Longfield, Children's Commissioner for England, said: final hearings allocated to a High Court judge. It applies to hearings at the Royal Courts of Justice or elsewhere. "It is encouraging that many children and young people have positive experiences of care but there a number of

www.familylawweek.co.uk Family Law Week August 2015 - 6 things that would make their lives much better. It is unacceptable that some are not in place already: every New figures reveal divorce and child should know why they were taken into care and be involved in decisions about their care. cohabitation trends over last 12 years

"Some recommendations, such as extending the right to Latest figures from the Office for National Statistics show support to all care leavers until they are 25 years old, the marital status and living arrangements of people aged need investment but will prove to bring great benefits. 16 and over in England and Wales from 2002 to 2014. When a child reaches 18, a parent would not wave goodbye to them for good and close the door to them, so They reveal: we shouldn't do so for children in care, who more than Ÿ any of us, need a positive springboard for the future. In 2014, 51.5% of people aged 16 and over in England and Wales were married or civil partnered while 33.9% "We also need to do more to offer children the help they were single, never married. need to recover from their difficult past experiences. We Ÿ know that many children who leave care still struggle to Between 2002 and 2014 the proportions of people aged reach their full potential and helping them to overcome 16 and over who were single or divorced increased but their harmful experiences and build their resilience and the proportions who were married or widowed emotional wellbeing for the future will help them to do decreased. so." Ÿ The increase between 2002 and 2014 in the percentage of The State of the Nation report is here. the population who were divorced was driven by those aged 45 and over, with the largest percentages divorced 8/7/15 at ages 50 to 64 in 2014.

Ÿ In 2014 around one in eight adults in England and Wales Government loosens restrictions were living in a couple but not currently married or civil partnered; cohabiting is most common in the 30 to 34 age imposed on domestic abuse victims group.

The Government has loosened restrictions imposed on Ÿ More women (18.9%) than men (9.8%) were not living in victims of domestic abuse which were preventing them a couple having been previously married or civil from accessing legal aid in family cases, even when it was partnered; this is due to larger numbers of older accepted by the Government that a victim had suffered widowed women than men in England and Wales in violence. 2014.

Domestic abuse victims currently have to provide evidence Zoe Round, a divorce lawyer at Irwin Mitchell said: that abuse had taken place within the last twenty-four months in order to qualify for legal aid. A technical rule "The rise in older people divorcing has been a trend for the meant that when cases reach a final hearing, some victims past few years and reflects that fact that divorce is no longer lost funding in the middle of their case, because the the stigma it once was. In general, attitudes have changed evidence was now considered to be "out of date". towards relationships and divorce. The older generation have realised that they can separate, often amicably, and The change follows intense lobbying by the Law Society and still meet new people and lead a more enriched life rather other practitioner groups and means that victims of than staying in relationships which may be making them domestic violence are no longer at risk of being left stranded unhappy. Social Media are also helping to open up new at the door of the court without the support they need to get ways of finding others and developing new hobbies, justice in order to help break free from an abusive interests and partnerships. relationship. "People in their 30s are more likely to be cohabiting than Commenting on today's announcement, Law Society others partly because of attitudes to marriage but also President Andrew Caplen said: because finances have been squeezed for many during the past 6 years when traditionally they would have been "Legal aid is a lifeline for victims of abuse and access to paying for their weddings. What cohabitants need to justice is essential in these cases. The LASPO legal aid understand is that there is no such thing as a common law cuts have resulted in radical consequences for access to partner and that they may not have the rights they think justice with the worst impact affecting the poorest and they do in the event of any separation. 'Living Together most vulnerable sectors of society. Agreements' can help to set some boundaries in relationships. Sorting out break-ups for unmarried couples "We are pleased that the Government has fixed this can be costly because unlike divorce there is no unconsidered technicality - one which was causing straightforward legal framework to help decide how they serious injustice to some victims of abuse. But the over- may share assets after any potential split." strict tests required by the regulations still mean some survivors are excluded from accessing legal aid for The figures are here. family law disputes against an abusive ex partner or relative, and we hope the MoJ will continue to work 8/7/15 with us to resolve these problems."

8/7/15

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Coram Voice supports Children’s To improve the care journey Coram Voice recognised that it had firstly to identify what children and young people Commissioner’s call for help for care believed this was and a way to measure it. To do this the leavers charity worked with young people to develop a survey, 'Your Life, Your Care', that measures the quality of their Coram Voice has supported the Children's Commissioner' care experience and their sense of wellbeing. The aim is for recommendations to extend support for care leavers. this to become the 'go to' source of information on the quality of looked after children's care experience and Linda Briheim-Crookall, Senior Policy and Service wellbeing. Development Manager for Coram Voice, said: Coram Voice has run a successful pilot of the survey and "Today's State of the Nation report from the Children's now wants to get more local authorities on board to be able Commissioner is a great milestone in listening to what to demonstrate its potential. As part of the Bright Spots children want nationally in order to make care better. programme it is currently offering early adopter local authorities access to the Your Life, Your Care survey free of "As an advocacy organisation, Coram Voice supports charge. It also provides support and guidance around the report's recommendations to extend support for care disseminating the survey by building on the lessons from leavers and therapeutic care, systematically considering the initial pilot, to which it received a 40% response rate. children's views and maintaining the relationships that The results from the survey will be generated automatically are important to them." and local authorities will be able to view the answers via a dedicated portal. Through its Bright Spots Programme Coram Voice has been working with Bristol University and children and For more information about the Bright Spots campaign and young people over the past two years to improve the care the 'Your Life, Your Care' young people's survey, please journey for all looked after children. click here.

Linda Briheim-Crookall added: 8/7/15

"The report's finding that just over half of children did not understand why they came into care is clearly Legal Aid Agency Client and Cost worrying. Through our Bright Spots programme Management System re-designed literature reviews we found that younger children are more likely to have information about their past and A facelift for the Client and Cost Management System events in their lives withheld. Rather than protecting (CCMS) website is in place after an analysis of feedback them, lack of information caused confusion and self- from providers and chambers. blame.

"We really welcome the increase in advocacy to support What's new? children in child protection conferences, as this can help The homepage has more quick links taking you directly to: children understand and become more involved in Ÿ decisions early on. To improve children's experience, master class booking pages child protection advocacy services should be made Ÿ available in all local authorities and more should be tip of the week done with younger children to help them understand Ÿ the reasons for coming into care. the latest email update Ÿ "It is also really worrying that only 55% of children knew frequently asked questions how to get an advocate. Access to advocacy is essential Ÿ to help young people in care to talk about what is hints and tips important to them. It helps children and young people Ÿ to feel more in control by ensuring that they are system availability information. informed of why and how decisions are made, and involves them in decisions about their care. It also There is also a direct link to the Online Portal called 'LAA impacts on children's wellbeing and relationships – key Online – Portal Sign In'. issues highlighted in the report. Last year Coram Voice supported over 3,500 young people to understand their What's the same? rights and access their local advocacy service and calls to Whilst the content has been refreshed, the actual structure our Helpline are now free from all mobiles, meaning we of the website remains largely the same with tabs across the can help greater numbers of children. top of the home page. These direct you to key information.

"Half of the young people we provided community Quick guides and training resources advocacy support to felt that the advocacy improved These, says the LAA, are the areas which users access the their wellbeing and 43% felt it improved their most. So they have been focused on making it easier for relationships with the professionals and carers in their users to find the guidance they need. lives."

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Providers and advocates can now see the guides and Private fostering describes an arrangement that lasts for 28 resources relevant for them and they appear: days or more, where a child is cared for by someone who is not a close relative, for example, a grandparent, uncle, aunt, Ÿ alphabetically step parent or older brother or sister. By law, parents and carers must notify their local authority of any private Ÿ by category fostering arrangement.

Ÿ with content descriptions. The charities say that privately fostered children include trafficked children, unaccompanied asylum seekers, The training resources are on one page. These include runaways and teenagers estranged from their parents who information on: are sleeping on someone else's sofa.

Ÿ master classes, including our new recorded master Government estimates put the number of privately fostered classes children at above 10,000 in the UK. However last year local authorities were only notified of 1,560 new private fostering Ÿ Q&A sessions arrangements in England.

Ÿ library of past email updates. BAAF believes the shortfall in reporting is due to lack of awareness amongst the public and carers. Feedback The LAA says that it welcomes feedback on the website and Other key findings include: suggestions for future improvements to Ÿ [email protected] 56% of people claimed they had never heard of private fostering. For further information go to the CCMS website. Ÿ Awareness of private fostering was highest in older 9/7/15 people. 11% of over 55s correctly identified the term, compared with 8% 18-34 year olds.

Ÿ Awareness of private fostering was higher among Consultation on enforcement of family women than among men. 7.5% of men correctly financial orders: deadline extended identified the term private fostering in comparison with 11.4% women. The Law Commission has extended the deadline for its Ÿ consultation on the enforcement of family financial orders. Awareness of private fostering was highest in the North East and London. 13.2% of respondents in the North Please respond by 31 July: East were able to correctly identify the term, as were a further 12.7% in London. (a) by email to Ÿ [email protected] or Awareness of private fostering was lowest in Scotland. In Scotland, only 5% of respondents were able to (b) by post to: Rebecca Huxford, Law Commission, 1st correctly recognise the term, and a further 65% of Floor, Tower, Post Point 1.53, 52 Queen Anne's Gate, respondents who said they had never heard of private London, SW1H 9AG. fostering.

For the consultation paper please click here. For the To ensure that private foster carers and children receive the consultation overview please click here. For the support they need, BAAF and ECPAT UK are asking private consultation summary please click here. foster carers to notify their local authority of their situation. BAAF and ECPAT UK are also calling for professionals who 10/7/15 may come into contact with privately fostered children, in health, education, childcare, police, immigration and housing, to alert their local authority if they suspect a child Leading charities warn of over 10,000 is privately fostered. children at risk To view the data please click here.

A Survation poll commissioned by the British Association 10/7/15 of Adoption and Fostering (BAAF) reveals that 91% of the UK adult population do not know what private fostering is. BAAF and ECPAT UK, an anti-child trafficking charity, are concerned that more than 10,000 children may be at risk because carers and members of the public don't know they need to notify their local authority about private fostering arrangements.

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Supreme Court clarifies ‘ordinary adult woman whose disabilities meant she was incapable of choosing where to live had her ordinary residence with her residence’ for adult living with foster parents, because that was her "base". The Secretary of State parents applied this approach, which was challenged in this appeal.

In R (on the application of Cornwall Council) (Respondent) Cornwall Council judicially reviewed the Secretary of v Secretary of State for Health (Appellant); R (on the State's decision. The High Court dismissed its challenge. application of Cornwall Council) (Respondent) v Somerset The Court of Appeal disagreed, holding that PH's place of County Council (Appellant) [2015] UKSC 46 the Supreme ordinary residence as at his eighteenth birthday was South Court has determined a person's 'ordinary residence' within Gloucestershire, and further that the deeming provisions the meaning, and for the purposes, of Part III of the National did not apply to PH since each applied only for the purposes Assistance Act 1948 ("the NAA"), where that person lacks of their own Act. capacity to decide where to live. The Supreme Court has allowed the appeals by a majority Allowing the appeal by a majority of 4:1 (Lord Wilson of 4-1, and determined PH's ordinary residence at the dissenting), the Court held that that the ordinary residence relevant time to be Wiltshire. Lord Carnwath gives a of a person provided with accommodation, whether under judgment with which Lady Hale, Lord Hughes and Lord Children Act 1989 or the NAA, should not be affected, for Toulson agree. Lord Wilson gives a dissenting judgment. the purposes of an authority's responsibilities, by the location of that person's placement. Lord Carnwath considers that the Secretary of State's reasons for selecting Cornwall, which started not from This appeal concerns "PH", a young man with physical and assessment of the duration and quality of PH's actual learning disabilities, who was born in Wiltshire in 1986. He residence but from an attempt to ascertain his "base" by lacks capacity to decide for himself where he lives. Since reference to his family relationships, cannot be supported. 1991, PH has been living with foster parents in South There is no suggestion that PH's brief periods of staying Gloucestershire. In 1991 PH's parents moved away from with his parents at holiday times could amount to ordinary Wiltshire to Cornwall. PH occasionally visited them there, residence. [49] including at the end of 2004 just before his eighteenth birthday. Since he turned eighteen, PH has lived in two care Lord Carnwath further reasons that though attribution of homes in Somerset. The cost of PH's care is currently responsibility to South Gloucestershire may fit the language estimated to be £80,000 per year for the rest of his life. There of the statute, it runs directly counter to the statute's policy. is no dispute that he is entitled to support. The issue is The only connection with that county was PH's historic which local authority is responsible for providing PH's placement under a statute, the 1989 Act, which specifically support – South Gloucestershire, Cornwall, or Wiltshire? excluded the placement from consideration as ordinary This depends, under sections 24(1) and 24(5) of the National residence for the purposes of the 1989 Act. The policy in Assistance Act 1948, on where PH was "ordinarily resident" both the 1989 and 1948 Acts is that ordinary residence of a immediately before he attained majority. person provided with accommodation should not be affected, for the purposes of an authority's responsibilities, Wiltshire Council arranged PH's foster placement under the by the location of that person's placement. The purpose of Children Act 1989. Section 105(6)(c) provides that, in the deeming provisions in both Acts is that an authority determining a child's ordinary residence for the purposes of should not be able to export its responsibility for providing the 1989 Act, there shall be disregarded any period in which accommodation by "exporting" the person who is in need of the child lives in any place while he is being provided with it. It would be undesirable if, despite the similarity and accommodation by or on behalf of the local authority. At the purpose of these provisions, there is a hiatus in the time PH turned 18, the National Assistance Act 1948 section legislation. It could also have adverse consequences on local 21 obliged local authorities to arrange accommodation for authorities' willingness to receive children who need people over eighteen with disabilities who need care and specialist care from another local authority. [52-55] attention not otherwise available to them (the application of the 1948 Act has since been restricted to Wales). By section Lord Carnwath notes that in construing section 24 of the 24(5), a person provided with accommodation under the 1948 Act, the statutory context is critical. The relevant 1948 Act is deemed to continue to be ordinarily resident in provisions in each Act have the same function, namely the area in which he was ordinarily resident immediately allocating fiscal and administrative responsibility between before that accommodation was provided for him. Section local authorities. [57] PH was at the relevant time living 105(6)(c) and section 24(5) have been referred to as somewhere he had been placed by a local authority under "deeming" or "disregard" provisions. the 1989 Act. It would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily In August 2011, the three local authorities jointly referred resident in South Gloucestershire by reason of a form of the question of PH's ordinary residence to the appellant residence whose legal characteristics are found in the 1989 Secretary of State for determination, under section 32(3) of Act. One of those characteristics is that the foster placement the 1948 Act. The Secretary of State decided that Cornwall did not affect his ordinary residence under the 1989 Act's Council was responsible. He followed his own guidance on statutory scheme. [58- 59] It follows that PH's placement in determining ordinary residence, which draw on two South Gloucestershire by Wiltshire is not to be regarded as principal authorities: R v Barnet LBC, ex p Shah [1983] AC changing his ordinary residence. Until he turned eighteen, 309, and R v Waltham Forest, Ex p Vale (unreported, 11 for fiscal and administrative purposes his ordinary February 1985). In Shah, the House of Lords held that residence continued to be in Wiltshire, regardless of where "ordinary residence" connotes an abode voluntarily adopted they determined that he should live. [60] Therefore the for settled purposes. In Vale the High Court held that an appeal is allowed and in the declaration of the Court of

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Appeal references to South Gloucestershire are substituted "Experience with the Deprivation of Liberty Safeguards for references to Wiltshire. [61] teaches us that a one-size approach does not fit all. The system of Protective Care we are proposing could Lord Wilson, dissenting, reasons that at the relevant date provide meaningful safeguards to, as well as meeting PH and his family had all moved away from Wiltshire. [62] the needs of, those individuals who, due to mental South Gloucestershire is the result that the law clearly incapacity, cannot consent to their own care. compels on the established meaning of "ordinary residence", though public policy militates against it. [65-66, "The Deprivation of Liberty Safeguards have been called 68] Though he did not adopt it voluntarily, PH was happy "not fit for purpose". The reforms we are provisionally and settled there. [74] Parliament has not chosen to widen proposing would sweep away the DoLS and establish a the provisions in the 1948 Act so as to disregard an adult's new purpose for Protective Care – to provide previous placement as a minor under the 1989 Act. The appropriate care and better outcomes for disabled and majority's analysis that the "legal characteristics" of a older people and their families." minor's residence under the 1989 Act make it irrelevant to determining ordinary residence under section 24 of the 1948 For details of the consultation, please click here. Act makes the statutory disregards in section 105(6) of the 1989 Act and section 24(5) of the 1948 Act redundant. [70-71] 10/7/15

The judgment is here. Prest may return to Supreme Court Press Summary The solicitors for Michael Prest have indicated their client's 10/7/15 intention to appeal against the Court of Appeal's decision – in Prest v Prest [2015] EWCA Civ 714 – to uphold a judgment summons under section 5 of the Debtors Act 1869 Law Commission consults on in respect of non-payment of maintenance arrears. Deprivation of Liberty Safeguards The parties, who had four teenage children, separated in 2008 after 15 years of marriage. At the conclusion of the The Law Commission is consulting on the existing financial remedy proceedings, Moylan J found that the Deprivation of Liberty Safeguards (DoLS), and how they husband was, conservatively, worth £37.5m. The final can be replaced with a new scheme that achieves better, order, made in November 2011, provided that: more appropriate outcomes for people with care and support needs and reduces unnecessary burdens on local (a) the husband was to pay a lump sum (by way or councils and the NHS. The Commission is also considering property transfer) to the wife of £17.5m; and the safeguards that are necessary for those receiving care and treatment at home and in other family and domestic (b) pending discharge of the lump sum, the husband settings. was to pay periodical payments at the rate of 2% per annum on the amount outstanding in relation to the The Law Commission notes that the Mental Capacity Act lump sum. aims to protect people who lack mental capacity but need to be deprived of liberty in order to receive appropriate care On 29 July 2015, Mr Justice Moylan granted a judgments and treatment in hospitals and care homes. But the summons brought by the wife under s5 of the Debtors Act safeguards are not meaningful for disabled and older 1869, alleging non-payment of arrears. The judge imposed a people and their families, local councils and the NHS are penalty of 4 weeks imprisonment, but suspended that term struggling to meet their obligations under the law, and provided that the husband paid the arrears within 3 people who live in other settings – such as supported living months. The husband appealed. – are being left unprotected. The Court of Appeal was taken to three authorities which The DoLS were intended to provide a process for ensuring discussed the judgment summons process subsequent to its that people who lack capacity to consent to their care are amendment: Zuk v Zuk [2012] EWCA Civ 1871; Bhura v deprived of their liberty only if it is in their best interests. Bhura [2012] EWHC 3633 (Fam); and Mohan v Mohan [2013] Assessments of their capacity are made independently of EWCA Civ 586. Lord Justice McFarlane was clear that the hospital or care home, and decisions can be challenged "[e]ach of these authorities contain dicta which, with by appeal to the Court of Protection. respect, I consider should be treated with a substantial degree of caution." In the view of the Commission, the system is technical and cumbersome and, since a Supreme Court judgment McFarlane LJ continued: broadened the definition of "deprivation of liberty", it has placed increasing burdens on local authorities and health "[M]y reason for advising caution concerning this set of and social care practitioners. More importantly the DOLS observations is that they each suggest that, in the course are not meaningful for disabled and older people and their of the criminal process that is the hearing of a judgment families, and fail to protect their rights. summons, it is simply sufficient to rely upon findings as to the wealth made on the civil standard of proof in the Nicholas Paines QC, Law Commissioner for public law, said: original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a 'burden' on the respondent which can only be

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discharged if he or she enters the witness box and 6. The four-week prison sentence was not excessive proffers a credible explanation." when viewed against a backdrop of a default in payment of £320,000. While McFarlane LJ described the aim of the judges in those reported cases as laudable, he reminded himself that the Jeremy Posnansky, of Farrer & Co, solicitors for Mrs Prest, judgment summons process may result in the respondent said: serving a term of imprisonment. "The decision was largely on the facts, and it confirms The following requirements must be satisfied: the impeccable judicial findings which have been made against Mr Prest and about his persistent breaches of his (a) The fact that the respondent has or has had, since the obligations under orders of the court. This latest round date of the order or judgment, the means to pay the sum of regrettable litigation is consistent with what Mr due must be proved to the criminal standard of proof; Justice Moylan described in his original judgment in 2011 as Mr Prest's "abject failure to comply … with (b) The fact that the respondent has refused or neglected, orders made by the court during the proceedings " and or refuses or neglects, to pay the sum due, must also be his finding that Mr Prest "regards the proceedings as a proved to the criminal standard; game in which he has sought to manipulate the process to his advantage". My client has always hoped that Mr (c) The burden of proof is at all times on the applicant; Prest will simply comply with the court's orders and that and the litigation can at last be brought to an end."

(d) The respondent cannot be compelled to give Collyer Bristow LLP, solicitors for Mr Prest, said: evidence. "Given the current value of the former matrimonial Notwithstanding his observations on the legal context, Lord home, which can be conservatively valued at between £7 Justice McFarlane rejected each of the husband's six and £9 million, it is reasonable to assume that Mrs Prest grounds of appeal: has now received close to the original lump sum award of £17.5 million. The maintenance provisions that 1. The judge's decision to refuse and adjournment, so as flowed from the award were due to reduce as the to further investigate the husband's ill-health, did not properties were sold or transferred to Mrs Prest. deny him a fair trial. It was a case management decision for the judge, who approached the matter properly, "There is no argument that Mr Prest has always considered the material, heard oral submissions and maintained Mrs Prest and the children to a very high allowed a renewal of the application late when fresh standard. What is confirmed by today's ruling, evidence became available. however, is that, whilst making payments for their maintenance, he failed to do so in the prescribed form. 2. The fact that the same judge had previously conducted a fact finding process as to the husband's "In the absence of reaching a fair and amicable finances (based on the civil standard of proof) did not agreement with Mrs Prest, Mr Prest feels he has no create a real risk, or even a real perception of risk, that choice but to appeal today's ruling as there are still the judge would take improper account of those unresolved questions that arise from the judgments of previous findings. Mr Justice Moylan in the High Court, the Supreme Court in 2013, and the current enforcement proceedings." 3. Moylan J did not take account of those previous findings, nor did he apply the incorrect standard of The judgment and summary by Thomas Harvey of 1 Hare proof. The structure of the judgement drew a clear Court from which this item is partly derived, are here. distinction between those previous findings, which were confined to the section of the judgment entitled 12/7/15 'Background', and the later section headed 'Evidence'. 4. There was no evidence that the wife had acquiesced or Private law cases received by Cafcass encouraged the husband to pay certain outgoings rather than honour his maintenance obligations under the a third up on a year ago order. It was not acceptable for the husband persistently to fail to discharge his responsibility under a court order, In June 2015, Cafcass received a total of 3,466 new private whilst at the same time choosing to make payments on law cases. This is a 33% increase on June 2014 levels. The his own terms. If the court were to condone such number of cases received over the last three months is 16% conduct, it might substantially undermine the authority above that for the corresponding period last year. and reliability of such orders. The figures for recent years are here. 5. The fact that the husband's application to vary the periodical payments order remained outstanding was 13/7/15 not a factor that should have impeded the judge from proceeding with the judgment summons.

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Care applications received by Cafcass reliable information to monitor the lives of care leavers over increase by a quarter on a year ago time. Support for care leavers comes mainly through local In June 2015, Cafcass received a total of 1,104 care authorities but the quality and cost of services vary widely, applications. This figure represents a 25% increase says the NAO. Ofsted inspections of care leaver services compared to those received in June 2014. have found that two-thirds of services inspected require improvement or are inadequate. Local authorities have no In the last three months care applications received by information on 17% of their 19-21 year-old care leavers even Cafcass have increased by 16% compared with the though they are often vulnerable. Local authorities spent on corresponding period of a year ago. average £6,250 for each care leaver in 2013-14, ranging from an estimated £300 to £20,000. The NAO's analysis shows The month-by-month figures for recent years are here. there is minimal correlation between local authorities' reported spending on care leavers and the quantity and 13/7/15 quality of their services.

Amyas Morse, head of the National Audit Office, said: Support system for care leavers is not "Addressing the poor life outcomes of young people working: National Audit Office leaving care is a longstanding problem. The cost of their not moving into adulthood successfully is high. The The system for supporting young people leaving foster or government has made a commitment to improve the residential care in England to live successful independent support for these young people but the outcomes for lives is not working effectively, according to the National many have been deteriorating over the last seven Audit Office. This is despite the fact that there is a clear legal years.The government knows the scale of the challenge. framework and an inspection regime in place. The numbers Stronger central and local leadership is urgently of care leavers in employment, education and training have required to get a grip on this problem." deteriorated since 2007-08. Linda Briheim-Crookall, Senior Policy and Service The NAO's latest report – Care leavers' transitions to Development Manager for Coram Voice, contributor to the adulthood – notes that in 2013-14, over 10,000 young people report, said: aged over 16 left care, an increase of almost 50% since 2003-04. Moreover, 33% of those aged 16 or over who left "Today's report highlights that the safety net in place for care did so before their 18th birthday. The government care leavers, whereby local authorities are legally wants to ensure that care leavers get the same care and required to offer support in education and support that their peers would expect from a reasonable accommodation, is failing to catch countless young parent, such as help finding a job or setting up home. people as they journey into independent living. However, those leaving care may struggle to cope with the transition to adulthood and may experience social "A significant number of the young people we support exclusion, unemployment, health problems or end up in with advocacy have emotional difficulties which can be custody. Care leavers have had these problems for a long exacerbated by their precarious situation of leaving care time. unsupported. As NAO's report highlights, government data currently collected on care leavers includes Only half of children in care have emotional health and education, training and employment, and behaviour that is considered normal and this poses accommodation, yet no data collected includes additional challenges when adapting to life after care. In important information on wellbeing. We believe this is 2013, 50% of young people were still living with their serious omission and call on Government to include parents at the age of 22. But young people in care have to data on these outcomes as a matter of urgency. leave by their 18th birthday and some have to live independently as soon as they leave care. "As the report finds, the lack of a single repository for good practice in supporting care leavers is a further The cost of not moving into adulthood successfully is likely challenge which all those working with young care to be high to both care leavers and the public. The principal leavers face. Coram Voice's response, our current Bright outcome measure is the number of care leavers not in Spots project, aims to help local authorities improve the education, employment or training (NEET). In 2013-14, 41% care journey for children. Included is a survey, 'Your of 19-year-old care leavers were NEET compared with only Life, Your Care', which was informed by young people 15% of their age peers. According to the NAO, the lifetime and which will measure the quality of their care cost of the current cohort of 19-year-old care leavers being experience and their sense of wellbeing. NEET would be around £240 million, or £150 million more than if they had the same NEET rate as other 19-year-olds. "We have run a successful pilot of the survey and now want to get more local authorities on board to be able to In 2013 the government published the Care Leaver Strategy, demonstrate its potential. Young people in care and setting out how it planned to improve support for care leaving care rely on government to parent them as they leavers. In the same year the Department for Education are without the family support networks so many of us introduced its Staying Put policy to help care leavers stay take for granted. We must do all we can to help ensure with foster carers until the age of 21. These were positive that they are not let down." steps but it is too early to assess their effect and there is no

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Emma Smale, Head of Policy and Research of Action for "A change in law isn't in itself enough to end this Children and Chair of the Alliance for Children in Care, barbaric practice. I'd urge anyone who suspects that a said: child is at risk of FGM to contact police immediately."

"This report is a damning indictment on the care system. For an article by Nkumbe Ekaney QC and Charlotte It is incredible that 1 in 3 teenagers leave care before they Proudman concerning the changes in the law, please click are 18. This means young people who have often had here. traumatic experiences are living independently at an age when most of their peers are still living with their 17/7/15 parents. "Action for Children is clear that it is time to renew our Resolution ‘disappointed' at efforts for children in care and care leavers. We need a stronger shared understanding of what care is for to unapologetic MOJ response on legal improve the lives of care leavers. Providing practical aid cuts support is not enough. We know that care can provide the stability that children need, but without much Resolution has expressed disappointment at the "bullish greater focus on promoting emotional wellbeing and and unapologetic" response from Government to the resilience to recover from traumatic experiences and critical report from the Justice Select Committee on the navigate the challenges of living independently, young legal aid cuts. people will continue to struggle." Resolution has consistently worked to raise awareness of The report is here. the impact of the legal aid cuts on the people who use the family justice system, from increased numbers of litigants in 17/7/15 person through to many domestic violence victims being unable to access legal support due to restrictive evidence requirements. Bedfordshire Police obtain first FGM protection order Resolution chair Jo Edwards comments: "We're disappointed to see the bullish and unapologetic Bedfordshire Police has secured the first ever female genital response from Government to the criticism rightly mutilation (FGM) protection order under changes levelled at the Ministry of Justice by the Justice Select introduced by the Serious Crime Act 2015. Committee report on LASPO. The response fails to The changes which came in to force today allow authorities acknowledge at all the seriousness of the problems to seize the passports of people who they suspect are caused by the legal aid cuts and the very significant planning on taking girls abroad for mutilation. Breaching impact on families struggling with separation. the order is a criminal offence. "As practitioners, we see daily the problems caused by Detective Chief Inspector Nick Bellingham from the Public the legal aid cuts, and fully agree with the Justice Select Protection Unit said: Committee's assessment that an urgent and comprehensive review needs to be undertaken. While "This legislation is a really positive step forward in the there have been some welcome concessions recently, fight against this horrific, cruel crime, and we're pleased such as widening the domestic violence evidence to have been able to enforce it today by issuing a requirements, much more needs to be done, quickly, to protection order. With schools breaking up for the protect access to justice for the vulnerable. summer holidays today, we will continue to use this legislation where needed to prevent young girls who we "Suggesting that the exceptional case funding scheme is believe may be at risk from being taken out of the operating as parliament intended ignores the many country. This is child abuse, and we will do everything cases in which funding has been refused, despite judges' in our power to ensure that children are kept safe and strong protestations to the contrary. The government that those responsible are caught." cannot continue to resist suggestions that there should be a full and immediate impact assessment of the The order was made at a court in Bedfordshire, and reforms. We strongly advocate, at the very least, that the prevents the travel of two young girls who police believe Government take heed of the Committee's may have been at risk of being taken to Africa and mutilated. recommendation that legislation be drafted to protect vulnerable people from being cross-examined by the FGM is a procedure that sees the partial or total removal of person who abused them, which is tantamount to a the external female genital organs for non-medical reasons. perpetuation of the abuse. That this situation, long It is estimated that more than 20,000 girls under the age of legislated against in the criminal courts, should continue 15 in the UK are at risk of FGM each year, yet very few cases to exist in our family justice system is a travesty." are reported. 17/7/15 DCI Bellingham added:

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MoJ plans to close 91 courts DfE consults on the changing use of special guardianship orders The Ministry of Justice has launched a consultation into the proposed closure of 91 courts across England and Wales. The Department for Education has launched a consultation into the changing use of special guardianship orders. Her Majesty's Courts and Tribunals Service operates 460 courts and tribunal hearing centres across England and Research by Jim Wade on children made subject to an Wales. The estate costs taxpayers around half a billion Special Guardianship Order (SGO) between 1 January 2006 pounds each year, and at present, the MoJ says that it is and 31 March 2011, published by DfE in 2014, found that the underused. Last year over a third of all courts and tribunals introduction of SGOs had been well received by were empty for more than fifty per cent of their available practitioners who saw it as an important pathway to hearing time. permanence for some children, and that the risk of disruption of SGO placements was low. The research did This consultation puts forward proposals that aim to reduce find concern, however, that children living with special surplus capacity by closing those courts and tribunals that guardians, like adoptive children, can have ongoing issues are unused or underused, or that are considered as simply due to previous abuse or neglect, and many families were unsuitable for the services we need to provide from them. struggling with unmet needs with little or no ongoing support. The consultation covers the proposed closure of: Ÿ The DfE's engagement work with local authorities, indicates 57 magistrates' courts a gradual shift in the use of SGOs, for example with more Ÿ being awarded to much younger children and concerns that 19 county courts the assessment process for special guardianship is in some cases not sufficiently robust. Ÿ 2 crown courts Ÿ Local authorities are also concerned that the threshold is 4 tribunal hearing centres lower for placing children with relatives - and others who Ÿ may become a special guardian but who have no existing 9 combined courts. link with the child - than for other forms of permanence. Another message from engagement work with local The specific courts are set out within the document. authorities is that special guardianship is not consistently perceived as a permanence option for children – with The buildings being consulted on represent 16% of hearing special guardianship sometimes being regarded as a rooms across the estate which are, on average, used for only temporary measure until a child can be returned to his or a third of their available time. That is equivalent to fewer her parents. than 2 out of 5 days in a week. There are also views that some special guardians might The majority of these courts are not used for at least two need more support to become a special guardian or to thirds of their available time, and one in three are not used sustain the special guardianship relationship; this is three quarters of the time. consistent with the findings in the Wade research, so the DfE wants to look at how needs are identified and how they The MoJ states that it will still be the case that, after these are being met. changes, over 95% of citizens will be able to reach their required court within an hour by car. This represents a The DfE wants to work with partners through the Review to change of just 1 percentage point for Crown and understand the reasons behind the changes. It will use the magistrates' courts and 2 percentage points for County Review to help inform any potential changes to the law and Courts. The proportion of citizens able to reach a tribunal guidance. The Review will be overseen by an Expert within an hour by car will remain unchanged at 83%. Advisory Group representing practitioners, local authorities, academics, representative organisations and a To ensure that access to justice is maintained, even in more judicial observer. rural locations, we are committed to providing alternative ways for users to access our services. That can mean using The consultation closes at 5pm on 18 September 2015. civic and other public buildings, such as town halls, for hearings instead of underused, poorly-maintained The consultation document is here. permanent courts. 19/7/15 The consultation includes a summary of the initial assessment of the impact on travel times.

The consultation closes on 8th October 2015.

The consultation document is here.

19/7/15

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Award of all couple’s assets to wife Fee for issuing divorce proceedings to upheld on appeal increase to £550

The Court of Appeal has upheld an order that all of a The Ministry of Justice has announced that it intends to couple's £550,000 assets should be awarded to the wife. increase the fees for issuing divorce proceedings from £410 to £550. It had originally proposed an increase to £750. The couple separated in 2011. Following separation Essam Aly moved to Bahrain and failed to pay any child The MoJ says in its latest response to the consultation on maintenance to his wife, Enas, in respect of their two court fees that it has considered the concerns raised during children. At first instance, HHJ Mark Rogers awarded to the the consultation and decided not to increase fees by 80% as wife the proceeds of sale of the former matrimonial home of originally proposed. Instead it will press ahead with 'a more £250,000 and savings of £310,000. affordable' increase of about a third. There will be a fee remission for the most vulnerable, such as women in low Lord Justice McFarlane said in the Court of Appeal that the wage households. wife's case was that he had effectively "abdicated responsibility" for her and his children. The same fee applies to applications for a decree of nullity or, in the context of civil partnership, for a dissolution order He added: or nullity order.

"Looking to the future, there was no expectation that she There will also be, amongst other changes, a general uplift could look to him for any future payment of of 10% to a wide range of fees in civil proceedings. maintenance and it was therefore necessary for her to achieve an award representing effectively most of the The response document is here. capital assets. 23/7/15 "The judge had in front of him a case where he was entitled to hold there was no realistic expectation of getting any further maintenance out of the husband." Rights of Women celebrates 40 years The Court upheld the award. of campaigning and legal support

For a fuller details of the case, please see The Telegraph. Rights of Women has celebrated its 40th anniversary. To celebrate four decades of campaigning on legal issues and 19/7/15 helping women through the law, the charity has produced a commemorative booklet. It can be read or downloaded here. Home Office consults on statutory The booklet reproduces the original memorandum guidance on FGM recording that in 1975 a group of women legal workers felt that there was a need for some sort of organisation to help The Home Office has launched a consultation, seeking women find their way around the law. A conference was views on the content and detail of new statutory guidance held and it was decided to work towards setting up a on FGM to be commenced towards the end of 2015. women's legal resource centre which would provide help and information on the law and legal services for individual This consultation is specifically focused on ensuring women and for women's organisations. There was also a statutory guidance captures the full range of advice and realisation of a need to campaign for a better deal for support to frontline professionals and organisations who women as both consumers of, and workers in, the law. have responsibilities to safeguard and promote the welfare of children and protect and support adults from the abuses Today Rights of Women has a team of women lawyers who associated with FGM. deliver a range of services aimed at helping women through the law supported by over 40 volunteer women solicitors The consultation is open to the public. The Home Office is and barristers. RoW's specialist legal advice services and particularly interested to hear from health care publications provide thousands of women with information professionals, the police, the judiciary, teachers, social about the law and their legal rights each year. The workers, criminal justice practitioners, survivors of FGM, organisation also continue to campaign on key legal issues organisations representing victims/survivors, community affecting women including family law and domestic groups and leaders, safeguarding professionals, front line violence, women's access to justice and the rights of workers, service providers, NHS organisations, schools and vulnerable migrant women. governors, regulatory bodies, and local authorities. The commemorative booklet is here. If you would like to The consultation runs for ten weeks from 22nd July 2015. get involved with Rights of Women, you can find out how to do so here. The consultation document is here. The draft multi-agency statutory guidance is here. 23/7/15

23/7/15

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Nearly a thousand children in care "High quality, stable placements and support are critical to ensuring children in care have the best outcomes in repeatedly forced to move school life. It is deeply worrying but perhaps, not surprising, that the Centre for Social Justice found that over 1,000 Almost a thousand children in care have attended three or children in care attended three or more schools in a more schools within a single academic year, according to single academic year. new figures obtained by the Centre for Social Justice. The CSJ says that the data shows shocking instability for "Our own State of the Nation report on children in care hundreds of vulnerable young people across England. and care leavers published earlier this month found that 39.6% had moved placements between one and three In some local authorities, nearly one in ten children in care times over the previous two years. Many placement moved schools on average once a term or more, with some moves will also involve a child moving to another students attending five schools or more in one academic school. Sometimes placements break down and there is year. Among students in their critical GCSE year, more than a need for a child to move to other care arrangements 10 per cent of students in the worst five local authority areas but when this happens, much more must be done to moved schools on average once a term or more, with almost maintain their schooling so that their education is not a third of students attending three schools in their GCSE disrupted." year in Milton Keynes. For the data collected by the CSJ, please click here. Alex Burghart, Policy Director of the CSJ, commented: 23/7/15 "These figures are truly shocking and reveal an unacceptable level of disruption to the lives of vulnerable children in care. Separated migrant children put at risk "Children are taken into care in order to give them a because of cuts to legal aid second chance. Too often they have had a dysfunctional family life and so the care they receive should be the The Children's Society has found that the removal of legal absolute best possible. aid for most immigration cases means that thousands of children, including those in local authority care, are at risk "Care leaders should want the same outcomes for of being sexually abused or exploited because their children in care as they would want for their own immigration status cannot be resolved. children. No parent would like to see their children moving schools three or four times in a year. This will The charity is calling on the Government to make sure that inevitably have a terrible impact on their education and children with immigration cases, who in the UK on their their chances of finding work when they leave." own can, once again, get legal aid. Without it, it is said, huge numbers of children are being left to fend for themselves: As laid out in its January report, Finding Their Feet, the CSJ many are having to gather witness statements, evidence recommends the wider adoption of 'scorecards' to clearly set about their past and risk having to represent themselves in out outcomes for children in care in each local authority. court. The indicators laid out in the report include prevalence of early and repeat parenthood; the number able to 'stay put' Large numbers of these children have grown up in the UK with foster carers after their 18th birthdays, the number after being sent to this country to live with friends or going on to apprenticeships and higher education, the relatives, or have been left on their own after their parents number of schools children have been to (particularly in died or they were abandoned. crucial exam years), the number of foster carers they have had, and the number of social workers. The Children's Society notes that the cut to legal aid has also resulted in a significant drop in the number of specialist By reporting outcomes in a clear, transparent way, the CSJ immigration lawyers. Cut Off From Justice: The impact of argues that councillors in these local authorities can build excluding separated migrant children from legal aid found up an accurate picture about whether care leaders are that, across the UK, free regulated services which deal with meeting the needs of these vulnerable, young people. appeals and representation have been reduced by almost 50%, while overall immigration advice services have been A disrupted education adds to the series of challenges faced cut by at least 30% since the Legal Aid, Sentencing and by children in care. Despite representing less than one per Punishment of Offenders Act came into force in 2013. cent of young people, care leavers make up one quarter (24 per cent) of the adult prison population, 11 per cent of Consequently, even those children who are still entitled to young homeless people and 70 per cent of sex workers. legal aid, such as those seeking protection from persecution Those leaving the care system are now twice as likely not to or who are known to have been trafficked, may be unable to be in education, employment or training (NEET) at the age get the legal support they need due to a lack of free services of 19 than the rest of the population, while more than half of in their area. care leavers struggle to secure somewhere safe to live when they leave care. For some of those who are in local authority care, too often decisions about what, if any, legal support they can get is Anne Longfield, Children's Commissioner for England, said: being left up to financially-strapped local authorities and social workers, although they often lack the necessary expertise. The Children's Society found that only one local

www.familylawweek.co.uk Family Law Week August 2015 - 17 authority had a formal policy on what they should do to Mrs Marshall refused access to the property to her husband support children with legal services in the absence of legal or to valuers. In November 2014 she was held to be in aid. contempt of court, her arrest was ordered and bailiffs were instructed. They too were refused access. The Children's Society has applied for a judicial review to challenge the Lord Chancellor's refusal to re-instate According to the Evening Standard, in the Court of Appeal immigration legal aid for unaccompanied children Mrs Marshall challenged the original order and a further following its removal under Legal Aid, Sentencing and order for costs in the sum of £75,000 made against her. Punishment of Offenders Act. She told the court: Justice Secretary Michael Gove's announcement that he will review legal aid is an important opportunity to make sure "[Y]ou are going to throw me out on the street. The order that children who are here on their own can, once again, get is dishonest. ...?[I]t has been obvious from the start that this vital support. this was about punishing me in some way."

Matthew Reed, Chief Executive of The Children's Society, Ann Hussey QC, of 1 Hare Court, representing Mr said: Marshall, told the court:

'The Government's announcement that it will look again "Mrs Marshall admits to game-playing and this court at legal aid is a vital opportunity to make sure that the should not indulge her further. Mr Marshall has thousands of vulnerable children in this country who continued to meet the mortgage and outgoings on the are being denied a legal voice are once again given this property. This has caused inevitable financial strain. The critical support. Without legal aid, they are being denied former matrimonial home should have been sold by the equal justice they deserve. This is putting many in now and both parties re-housed and launched on a new danger and is harming their well-being and future life." opportunities. It is crucial the Government restores this lifeline to all children who are here on their own so none McFarlane LJ, giving the judgment of the Court, said: of them is cut off from justice.' "It is absolutely plain that there is no merit at all in any Kamena Dorling, who manages Coram Children's Legal of the appeals that she seeks to bring." Centre Migrant Children's Project, commented: Accordingly, Mrs Marshall's appeal was dismissed and 'Since drastic cuts to legal aid in April 2013, we are McFarlane LJ said that the order must be enforced. Mrs seeing thousands of children and young people unable Marshall was ordered to pay £5,000 towards the costs of the to enforce the rights and protections that the law appeal. provides to them. Without legal support, they cannot navigate the complex legal processes they face, which Alex Carruthers, divorce lawyer and founding partner of have life-changing consequences. Hughes Fowler Carruthers, noted:

'We are calling on the Government to listen to the "Often the family home has strong emotions attached to growing number of parliamentary bodies and other it but it also holds the majority of the family wealth. organisations which have expressed their deep Selling it can be essential but heart wrenching. concerns, and look again at the provision of legal services for children. We cannot leave children to "Divorces often bring out the baser instincts in navigate a complex legal system all on their own.' individuals, no holds barred protection of one's home being one." For a summary of the report, please click here. Hazel Wright , a partner with Hunters incorporating May, 23/7/15 May & Merrimans commented:

"Judges are at a loss to know how to enforce court orders Wife must leave house she turned into without threatening prison. But prison is expensive for a ‘fortress’ the State, and not going to solve the disobedience. "If the judgement requires a house to be sold, it is time to A wife who was said to have turned her £2m into a 'fortress' use the civil courts' powers of eviction via bailiffs rather has been told by the Court of Appeal that an order that the than threaten prison. Combining the powers of the civil house be sold and the proceeds of sale shared with her courts and the family courts is more cost-effective and former husband must be enforced. quicker."

According to a report in the Evening Standard, at financial The Evening Standard report is here. remedy proceedings following divorce it was ordered in December 2013 that the house should be sold and proceeds 24/7/15 divided by the parties, Therese St Clair Marshall and Nicholas Marshall, in order to achieve a clean break.

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Judge grants FGM protection order established 'permanent' new relationships, many were setting a time limit on maintenance regardless of their against father of three girls finding partners.

Mr Justice Holman has issued a female genital mutilation She described the situation as amounting to "a North-South protection order against a father of three girls of six, nine divide" in how maintenance was awarded. and 12 years of age. The mother of the girls, who had herself been subject to FGM, gave evidence that the father had been "In the past, there was almost an expectation that wives subjecting her to pressure to have the procedure performed would receive maintenance on top of any share of joint on their daughters. marital assets until they remarried.

FGM protection orders were introduced by the Serious "However, what we've seen in the last 18 months or so is Crime Act 2015. Recently Bedfordshire Police secured the something of a sea change with more fixed term first ever FGM protection order. maintenance orders being struck when divorce settlements are originally made. Zimran Samuel, barrister of 42 Bedford Row (instructed by Adelle Banks of Hudgell & Partners), who acted for the "Even those courts who are not putting such time- girls' mother, said: limited arrangements in place appear more willing to entertain arguments about ending maintenance when "Having these orders in place has given the mother of the divorced women have been in what they regard as the three girls a huge amount of comfort. Following a 'permanent cohabitation' - an unmarried partnership forced marriage she was herself subjected to Type 2 lasting more than 12 months. FGM. This involved the total removal of the clitoris and the labia minora. She has never recovered from the "Previously, we had seen variations between procedure physically or emotionally. She deserves a maintenance provision between courts in the cities and huge amount of praise for having the courage to take those in the provinces. Now, it seems to be that strong steps to protect her daughters from what she differences between London and the rest of the country went through. are stark, and that is spurring more wives to try and have their divorces heard in the capital if at all they can." "In this case the children's passports have been removed and port alerts have also been put in place to stop the Ms Jones' comments are based on analysis of more than 900 children leaving the country. The mother of the children cases handled by JMW over the past three years and the has also been given a significant amount of support and additional experiences of family law colleagues from across assistance from local police. the country.

"FGM Protection Orders can be accompanied by a range They follow the publication of statistics by the Ministry of of restrictions if necessary to protect girls at risk. In this Justice showing a drop in the number of maintenance particular case Mr Justice Holman has made orders awards. The figures revealed that the proportion of preventing the children's father from going to their successful orders made either with or without being home or to their school." contested had fallen by more than 11 per cent from 2013 to last year. For an article concerning the changes to the law concerning FGM introduced by the Serious Crime Act 2015, please click Ms Jones said that the contrast between experiences of here. women divorcing in and outside London appeared to enhance that city's global reputation as being relatively For a full report in The Guardian, please click here. 'wife-friendly'.

26/7/15 She suggested that prompted more of a contest between spouses to determine where divorces would be heard, adding that the process only increased the delay, cost and Maintenance ‘North / South divide' tension involved in bringing their marriages to a close. encourages rush to London She added:

Provincial opposition to the idea of providing women with "Divorce is a horrible experience for the vast majority of indefinite spousal maintenance is fuelling an increase in individuals and drawing that out only makes for the women seeking to have their divorces heard in London, likelihood of greater friction between husbands and according to Manchester firm JMW Solicitors. wives.

JMW has claimed that while many cases dealt with in "However, whereas the men concerned object to the London continued to involve continuing maintenance, there notion of supporting their ex-wives indefinitely, the had been an increase in 'fixed term' arrangements awarded women are eager to secure the best possible terms from by courts outside the capital. their point of view and will do what they can to achieve them." Catherine Jones, a Partner in the Family department at JMW, said that whilst a growing number of courts appeared 27/7/15 willing to terminate periodical payments after women

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ARTICLES

Finance & Divorce Update July 2015

Edward Heaton, Principal Associate and Jane Booth, Associate, both of Mills & Reeve LLP

This update is divided into:

1. News in brief

2. Case law update

NEWS IN BRIEF

Property boom leading to divorce settlements being re-opened The improving economy and the increasing value of assets, such as property and shareholdings, have triggered an increase in couples seeking to re-open settlements, especially those settlements that were never formalised by a court order. High Court figures show the number of applications effectively to re-open settlements has doubled in the last year from just under 14,700 to more than 29,000. This is dramatically higher than the number during the economic downturn when the value of property and other assets, such as pension investments, was weaker and applications only totalled 3,600.

You can read more here

40% of divorce petitions returned due to mistakes Alarmingly, HMCTS has indicated that 40% of divorce petitions are being returned to solicitors unissued due to fundamental flaws in drafting or procedure. These include failure to include issue fees, lack of signatures and missing or incorrect information.

To read more, see here

Are dads treated fairly? Recent research from the University of Warwick and the University of Reading (funded by the Nuffield Foundation) has concluded that fathers involved in private law children disputes are not discriminated against by the Family Court along gender lines. The project examined 200 contact and residence cases from five areas that took place in a six month period in 2011. Researchers looked at the type of applications that came to court, the role of the court in adjudicating such disputes and the different types of timeshare arrangements reached by parents during the court process.

The key findings were:

• the court plays a necessary role in adjudicating private child law disputes and should remain available as a viable option for parents;

• the court shows no indication of gender bias in contested cases about where a child should live;

• the court actively promotes as much contact as possible, even in cases of proven domestic violence, which was often combined with welfare concerns or strong opposition from older children; and

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• 12% of the sample of private child care disputes involved non-parents such as grandparents or other relative carers. In such cases, private law orders were being used as an alternative to public law proceedings.

For further details click here

The full report can be found here

Divorce processing centres update – and the new FRU and High Court certificates HMCTS and members of the judiciary have provided further information on the operation of the new divorce processing centres and the Financial Remedies Unit (FRU), which will hear complex as well as local cases at the Central Family Court. This includes:

• an updated Q&A document and a list of the divorce and financial remedy hearing centres. The Q&A document confirms that work is currently being undertaken to amend the Form A to include a box to state the applicant's preferred hearing venue. The divorce petition is likely to be amended in the same way by the early autumn, with a box added to indicate the applicant's preferred court if a hearing is necessary;

• a divorce application checklist; and

• confirmation that, from 20 July 2015, all London work will be transferred to Bury St Edmunds.

Munby P has approved the new certificate of complexity which must be completed for complex financial remedy proceedings that are issued directly at the Central Family Court. Cases from areas that are local to the Central Family Court may also be heard there, but should be issued at the divorce centre for London and the South East in Bury St Edmunds.

The statement on the efficient conduct of financial remedy hearings before High Court judges has also been revised. Whilst much of the original statement remains the same, the guiding principles of allocation have been amended meaning 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. Such allocation is rarely likely to be proportionate unless the net assets exceed £7.5m". The key points are as follows:

• the statement sets out how to determine whether the governing principle is satisfied, particularly with regard to the value of the overall net assets (which should exceed £15m) or overall net earned income (which should exceed £1m). For lower value cases (those where the overall net assets are under £15m but over £7.5m), a substantial allegation and/or issue, or a novel and important point of law, needs to be certified. Examples include non- disclosure, substantial assets held offshore, reliance on a nuptial agreement or significant third party interests;

• if deemed appropriate, there is potential for a final hearing date to be fixed at the First Appointment;

• Financial Dispute Resolution hearings will be listed with a time estimate of one day unless the parties certify (with written reasons) why a lesser period is sufficient and the FDR judge gives written permission; and

• the revised statement also incorporates an updated certificate with the list of potential allegations / issues arising. "Expert accountancy evidence will be required" has been removed. A certification section has been added.

CASE LAW UPDATE

Gadhavi v Gadhavi [2015] EWCA Civ 520 Financial remedy proceedings came before HHJ O'Dwyer in December 2013. The parties had enjoyed a long marriage (1978 -2008) before separation. Their assets were as follows:

• £300,000 in the former matrimonial home, net of costs of disposal;

• Comparable net income; and

• A small pension.

Therefore, the case fell entirely into "needs" territory.

The issue in the case was property in which the husband may or may not have had an interest in India. HHJ O'Dwyer weighed up the evidence and concluded [paragraph 28 of the original judgment] that:

"The finding I make, therefore, is intended to be a finding that accurately reflects the reality of the position: that there are in the mother's name funds which have been originally almost entirely provided by the husband from the

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family income of Mr and Mrs Gadhavi in this country. These funds are available to the husband by reason of his position in the household and he is able to cause them to be paid or distributed as he may deem appropriate. I have stopped short of finding, however, that the husband has a definable property interest as understood under English law but I am satisfied that it is a resource available to the husband should he so choose."

As a consequence, HHJ O'Dwyer ordered a sale of the former matrimonial home and the wife to receive the first £200,000 of the £300,000. The remaining balance was to be divided equally. The judge found that each party required £200,000 to meet their respective housing needs, and that the husband could, if he so chose, access funds from India.

The husband appealed on two grounds:

1. the court should not have taken into consideration the property in India; and

2. even if that resource was available to him, its value was never quantified. Ground1

Lord Justice Ryder determined that the actual issue for him to consider was "whether the judge fell into an error of fact or law in coming to the conclusions (a) that the husband was the head of the family in India and (b) in that position the husband was able to request that monies be made available to him or that the property be sold and, (c) that as a consequence, the property should be treated as a financial resource available to the husband".

Ryder LJ considered the principles arising from Thomas v Thomas [1995] 2 FLR 668 at paragraph 678, and TL v ML [2005] EWHC 2680 at paragraphs 86 and 88. He concluded that HHJ O'Dwyer had not erred in law or fact in concluding that the Indian property was a financial resource for the purposes of section 25(2)(a) MCA 1973.

Ground 2 The appeal was allowed. There was no valuation adduced in relation to the Indian property that would satisfy the requirement of FPR 2010 which replicate rule 2.61(D)2(b) on the 1991 rules.

The matter was to be remitted to HHJ O'Dwyer "for an urgent hearing at which directions as to valuation evidence must be made. The matter must then be set down for a rehearing on the question of valuation upon which the quantification of the terms of the new order will depend".

Liaw v Lee (Recognition of divorce) [2015] EWHC 1462 (Fam) This was a case which considered the recognition of overseas divorce proceedings. Both parties were acting in person. Mr Justice Mostyn refused recognition under s.51(3) Family Law Act 1986 of a Malaysian decree nisi and absolute as the husband had filed a "knowingly false" and secret petition in Malaysia.

The case is highly fact specific but, by way of background, the parties married in Singapore in 2001. They had a daughter in December 2005. They lived in various jurisdictions but the final matrimonial home was in London. The parties separated on 3 November 2010. The wife issued a petition for divorce in the Clerkenwell and Shoreditch County Court on 23 November 2010. It was based on the husband's conduct and, in accordance with the usual practice, the behaviour was very lightly pleaded. The wife merely referred to frequent lengthy arguments.

The English petition was served on the husband and he signed the statement of arrangements for the child. On 11 April 2011, the court wrote a letter to the wife saying that the allegations of behaviour were insufficiently pleaded. However, the petition was not dismissed. The wife had the option either to (i) ask that her petition be listed for a hearing under the old procedure, or (ii) amend her petition to plead the husband's behaviour more strongly. She did neither.

On 15 November 2013, the wife emailed the husband's solicitor in Malaysia asking what his address was for service of the divorce and related papers. On 30 January 2014, the wife filed an amended petition in the Clerkenwell and Shoreditch County Court. The petition alleged desertion by the husband for at least two years.

On the 9 December 2013, the husband had taken steps to "obtain a high-speed and completely secret divorce in Malaysia" stating, in the petition, that "there are no proceedings continuing in any country outside Malaysia which are in respect of the marriage or capable of affecting its validity or subsistence". This was not true. Mr Justice Mostyn indicated that "had the truth been stated it is reasonable to suppose that the court in Malaysia would have adopted a very different course". The husband swore an affidavit in which he did not ask for an order for substituted service. He simply asked for service to be waived.

On 1 April 2014, the husband had also applied for the waiting period before decree absolute to be reduced to nothing. The application had been granted and decree nisi made absolute on the same day. Mr Justice Holman found that "the effect of the abridgement was that the wife was deprived of the hiatus during which she could have applied to set aside the decree nisi and to defend the proceedings, or alternatively to seek that they be stayed in favour of this jurisdiction as the one where proceedings were already pending and which was the forum conveniens."

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The husband had not informed the wife of these events until 19 August 2014, when he had emailed the Decree Absolute to the wife's hotmail address.

Meanwhile, the wife (being unaware of this) had successfully petitioned for an English divorce, Decree Nisi being granted on 1 September 2014. Her Form A had been lodged in July 2014.

Mr Justice Mostyn explained that he had "no hesitation in concluding that the wife was not given reasonable notice of the Malaysian proceedings or a reasonable opportunity to participate in them. She was given no notice or opportunity at all. The divorce in Malaysia was given in default of her appearance. She was not served in sufficient time and in such a way as to enable him to arrange for her defence. She has not accepted the Malaysian decrees at all let alone unequivocally".

Mr Justice Mostyn deplored the actions that the husband had taken and, on the facts, refused to recognise the Malaysian divorce. The stay on the English proceedings was lifted and the wife was granted Decree Absolute and was free to pursue her financial claims in this jurisdiction.

Davison v Davison & Ors [2015] EWCA Civ 587 This was a wife's appeal against a financial remedy order involving complicated tax issues. Matters were made more complicated by the death of the original trial judge, Mrs Justice Baron, between the final hearing and the appeal.

Background The husband had died on 2 September 2011. His estate was the first respondent in the appeal. The second and third respondents were BVI companies, who owned the parties' former matrimonial home ("The Farm"). The Ivy Trust, a Jersey based discretionary trust, was the sole shareholder of the BVI companies.

The husband had purchased The Farm in about 1973 in his and his first wife's joint names but, when the husband and wife had subsequently met in about 1989, the property had become occupied and owned solely by the husband.

The husband and wife had subsequently married on 16 November 1994 and The Farm had become the family home. There had been two children of the marriage, which had come to an end by July 1999.

In about 1993, the husband had permitted the illegal tipping of waste on land at The Farm. He denied receiving any financial benefit for this but HMRC did not accept his position. Stop notices and enforcement notices were served on him by the council. Baron J found, at first instance, that the husband had transferred The Farm to offshore entities to avoid enforcement. After a number of complex transactions, The Farm had finally ended up being owned indirectly by the trust.

Baron J found that the husband had been the settlor of the trust and that, until the start of the financial remedy proceedings, there had been no nominated beneficiaries.

Baron J's judgment Baron J had found that:

a) the illegal tipping and subsequent enforcement actions had reduced the value of The Farm by between £1.5million and £3.2million gross;

b) the trust was a nuptial settlement capable of variation, and could provide the wife with a lump sum of £756,000 plus maintenance arrears and costs, all to be paid by 23 April 2010;

c) if the lump sum was not paid, The Farm was to be sold; and

d) the husband had been guilty of litigation misconduct which had caused both substantial delay and an unjustifiable increase in the costs incurred.

The costs at trial had amounted to over £500,000 against assets of no more than £3.2million and against which potential tax of £2million had to be offset. The husband had been unhelpful to Baron J in trying to compile a schedule of assets to accommodate a realistic figure of the tax he owed to HMRC.

Baron J had further found that:

a) there should be no deduction for any tax referable to the income received from allowing the tipping. (If that income had not been received, as the husband had maintained, then no tax would be due, and the calculations would be unaffected. If it had been received, it would be for the husband to pay the tax, interest and penalties.);

b) there should be a deduction in respect of tax and interest due in respect of legal income received by The Farm (from which the wife had benefited). Related penalties were added back to the husband's side of the schedule as they had been incurred as a result of his "deliberate actions";

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c) there should be a deduction of £1.09million to cover CGT and corporation tax on the sale of The Farm. A figure for CGT had only been provided very late in the day. The husband's solicitors had produced an in-house note indicating that £1.09million might be a combined figure for CGT and corporation tax. Baron J believed that the husband would try to reduce this figure to the minimum. If the tax payable was less than £1.09million, any surplus would be paid to the parties 45/55% in favour of the husband.

The figure of £756,000, which Baron J concluded was to be paid to the wife, represented 45% of the assets. This was, of course, a short marriage of only 4 years and, although there were children, all of the assets had been owned by the husband prior to the marriage. Baron J's reasoning was that, had it not been for the husband's actions in relation to tax, there would have been a further substantial sum available for distribution between the parties. If that sum was added back in, the wife's award would have been about 26% of overall assets, which Baron J concluded would have been fair, given the length of marriage.

The husband neither appealed nor complied with the terms of the order. The Farm was sold and the wife received her lump sum.

Issues relating to implementation Baron J had made it very clear, in her judgment and her order, that her intention had been to ensure that, if the tax payable on The Farm proved to be less than £1.09million, the wife would benefit from the surplus in the same proportion as had been determined to be fair in relation to the overall division of assets.

When the husband had failed to pay the lump sum, The Farm had been sold. The trustees had negotiated with HMRC in relation to the outstanding tax to crystallise the figure due to the wife.

HMRC had produced a schedule, divided into seven sections, showing outstanding tax of £2,290,917. None of the seven sections, however, had represented the CGT that had been anticipated by Baron J in her order. As the husband had died, no CGT or corporation tax had in fact become payable. Instead, an IHT charge had been assessed by HMRC at £393,653 on the lump sum received by the wife as a result of the money having been brought onshore and paid to her in the UK.

A compromise had been reached between HMRC and the trustees in the sum of £850,000 in full and final settlement of all taxes, interest and penalties, but this had failed to specifically take into account the IHT charge, although it was subsequently included in the compromise order filed at court on 23 January 2013.

The compromise order had not apportioned the amount between the various liabilities but had made specific reference to "any inheritance tax due under Part 3 of the Inheritance Act 1984 arising from the making of any payment to any person pursuant to the order of Baron J dated 23 October 2009 in the ancillary relief proceedings"'.

The hearing before Moor J Moor J was asked to interpret the relevant part of Baron J's order and to assess what, if any, sum was due to the wife. Counsel for the wife suggested the following:

i) start with a figure of £2.29million (the amount due excluding the IHT charge);

ii) using HMRC's schedule, deduct the categories of tax which Baron J decided should be the husband's sole responsibility;

iii) express the resulting total of tax to be deducted as a percentage of £2.29million;

iv) apply the resulting percentage to £850,000, producing a figure which could be deducted from the £1.09million

v) award the wife 45% of the difference.

Moor J felt uneasy that he did not know to what extent HMRC were accepting that the £850,000 should be spread proportionately across the different items. He concluded that the wife had a clear claim for an additional payment of £108,000. This represented 45% of the difference between £1.09million and £850,000. In arriving at this conclusion, he did not take into account the tax which Baron J decided the husband should be responsible for, and he also did not included the wife's IHT liability.

The Appeal The wife appealed. She submitted that, on a strict interpretation of the judgment, she should receive 45% of £1.09million, as no CGT was due. However, she accepted that this would not produce a fair outcome to the trust.

An alternative approach was to argue that, as no CGT was payable, the relevant paragraph in the judgment had no role to play and the wife should receive no additional payment. This would mean that the wife shared responsibility for the tax which Baron J had decided should be H's liability. Moor J agreed that neither approach would reflect Baron J's intended outcome.

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King LJ disagreed with Moor J's conclusion that the only appropriate approach was to deduct the £850,000 from the £1.09million and award the wife 45% of the difference. In her view, Moor J had fallen into error in declining to attempt an apportionment exercise in relation to the figures on the HMRC schedule.

Kind LJ did not go into detail about the calculations put before the court by the wife, but awarded the wife an uplift of £212,467. Allowing for a payment on account of £108,000 (together with interest of £35,933), a further payment was due to the wife of £104,467 plus interest.

Kaur v Randhawa [2015] EWHC 1592 (Fam) This case concerned an application for general enforcement of a lump sum. A third party debt order was sought over the husband's brother's bank account. The wife also sought the husband's committal to prison but that application was adjourned generally.

On 11 October 2013, an order was made by DJ Hess requiring the husband to pay to the wife a lump sum of £80,000 by 5 February 2014. In default, the order provided for a property to be sold and gave directions for the sale, including provision for the joint instruction of estate agents and conveyancers. The sale proceeds were to be applied to discharge the mortgage, to meet the costs of sale, to pay to the wife the lump sum and any interest with the balance being paid to the husband.

The property in question was held in the names of the husband's late parents. They had left the property to him in their wills. Although their estates had not been fully distributed by the time of the order, the property was unquestionably the husband's, beneficially, and that was why the order was framed in the way that it was.

The wife said that, by 5 February 2014, the husband had not paid any part of the lump sum. The husband said that he had met the wife at a Pizza Express in Slough and had paid to her £40,000 in cash which she had previously agreed would be in satisfaction of her entitlement under the order. He said that she had agreed to the cash payment so as not to disturb her benefits and had agreed that her "charge" over the property being lifted. The wife denied this and said that the last time that she had met the husband had been in 2011.

The husband's case was that he had borrowed the £40,000 from his brother. He said that his brother had gone with him to meet his wife, as had another person who would act as a witness. He said that he had taken photographs of him handing over the money on his telephone but that he had since the telephone in question. He had not obtained a receipt, despite his brother having advised him to do so, and he had Facebook messages which would prove that the wife had received the money.

The husband's brother said that he had had £40,000 in his safe or alternatively he had withdrawn it from a casino. He said that he had accompanied the husband to Slough but had not seen him hand over the money and could not remember if anyone else had accompanied them.

Mostyn J had no hesitation in rejecting the evidence of the husband and his brother. He said "I am certain it is false. Not only is it implausible in the extreme but it is not corroborated by contemporaneous documentary evidence or subsequent events".

Significantly, when the husband had spoken to the wife's solicitor on 12 February 2014, he had said that he "was not going to comply with the order". He had not mentioned that he had paid the wife £40,000 in cash two months earlier, and Mostyn J found it "inconceivable that he would not have mentioned this if it had happened".

The wife's solicitors had taken steps to enforce the order. On 22 May 2014, the property had been sold by the husband and his brother. £281,295.75 had been received by the husband's brother into a Lloyds account. This sum had unquestionably been the husband's money. His brother had either been a nominee or a bare trustee for him. Over the following week, the husband's brother had transferred just over £130,000 into another Lloyds bank account, leaving a balance of £150,000. A freezing order had been made on 24 September 2014 capturing £110,000. A further £40,000 of the sale proceeds had therefore disappeared.

The husband's brother had transferred £70,000 of the £130,000 into the husband's Santander account in various transactions. The husband maintained that this money had been spent, largely on gambling. The husband's brother said that the balance had been withdrawn as cash via a casino and given to the husband. The husband said that he had received it but that it, too, had been spent, largely on gambling. The husband and his brother maintained that the sum of £110,000 that was frozen belonged to the brother because they had agreed, prior to the sale, that the husband owed him £100,000.

Mostyn J rejected the husband's explanation as being entirely fictitious. He made a final third party debt order against Lloyds bank in respect of £108,854.28, being the £80,000 lump sum and £8,454.28 statutory interest from 5 February 2014 to 2 June 2015. The balance of £20,400 related to the wife's capped costs under her legal aid certificate of £17,000 plus VAT.

Mostyn J made an indemnity costs order against the husband and his brother as a result of their disgraceful conduct. This entitled the wife's solicitors to relinquish their legal aid certificate and be paid on a private basis.

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Mostyn J also directed that the judgment and the court bundle be sent to the DPP for consideration as to whether proceedings for perjury should be brought against the husband and his brother.

Fields v Fields [2015] EWHC 1670 (Fam) This is financial remedy case where there were significant assets but the parties had not been able to settle without having to resort to a public hearing. The case threw up issues about the parties' respective needs, the needs of the children and the treatment of performance payments and businesses with a minimal value but with the potential to be a "bonanza" in the future.

Background The husband was an American lawyer aged 59½. The wife was Russian who had become a British citizen. She was 42½. The parties had two children, a son aged 7 and a daughter aged 5. The parties had been in a relationship for about 9½ years with the effective breakdown of the marriage being in April 2011.

Although the parties had a wealth of approximately £6million, both leading counsel agreed that it was a "needs based" case. The asset schedule, which was substantially agreed, showed so-called liquid assets of about £3,285,000 after provision for all the legal costs. Mr Justice Holman described it as "so-called" because the figure included the equity in the Manhattan apartment of about £727,000, but the husband did "not wish to sell that apartment and in [Mr Justice Holman's] view should not be required to do so". The so-called illiquid assets were valued in the asset schedule at a further £2,952,000. These included the wife's flat in Moscow and some shares in a company called Immunoscience. The husband's gross income was $2.1million per annum (about £1,377,000). The husband was entitled to tax relief in respect of court ordered payments of alimony to his wife or former wife (but not to his children), so his net income would be influenced by the actual level of such payments.

The parties accepted that there would be insufficient resources for the wife to re-house herself and the children appropriately if the assets were shared equally, so the wife needed to receive more. Mr Justice Holman indicated that he should give "first (although not paramount) consideration to the welfare of the two children while they remain minors" and that he "must strive to reach an overall outcome which is fair to each party and to their children".

Mr Justice Holman expressed dismay that the case had not been settled as he felt there was more than enough to provide adequately for each party. The parties had, at the time of the hearing, already spent £1million on legal costs. Mr Justice Holman declined to hear the reasons why the marriage had broken down because "the marriage ended, and it no longer matter[ed] why or in what circumstances".

Both parties suffered from ill health which was a factor in the case. The wife had a range of health issues and disabilities such that she sought a flat rather than a house as she could not easily cope with stairs. She was unable, realistically, to work and she needed considerable help from nannies and staff as she could not lift her children and objects (such as cases and bicycles). The parties' daughter also had specific health and educational requirements, such that a full time nanny was required in addition to the wife as the primary carer. Mr Justice Holman indicated that "the financial contribution of the husband [was] self-evident. The caring contribution of the wife not only require[d], but deserve[d], to be equally recognised and weighted". Mr Justice Holman did not accept that the W should be expected to work or generate a marginal income.

Mr Justice Holman assessed the wife and children's housing needs as requiring a lift, more than one bathroom, and a relatively central London location. She would require not less that £2,550,000, inclusive of SDLT and moving costs. The wife had £1,352,000, so the husband was ordered to pay a lump sum of £1.2million. The husband already owned his flat in New York and would have no SDLT or equivalent tax to pay.

Mr Justice Holman found that the wife's budget (at £400,000 p.a.) was very high, but it was set against what was spent during the marriage. Due to the wife's age, Mr Justice Holman accepted that she had a need for "stockpiling" to meet her future needs as she was likely to outlive the husband, and the children would still be in their minority. Mr Justice Holman explained that this provision should be "saved and in some way ring-fenced, so that it [would be] available for future needs and [could] be identified and taken into account if or when the husband's income drop[ped] and he [sought] to reduce the level of periodical payments or discharge them altogether". Mr Justice Holman further indicated that "investing the element of stockpile in a mortgage would, in [his] view, be an acceptable and indeed wise way of saving and ring-fencing it".

Mr Justice Holman found that, within the wife's budget, at least £80,000 p.a. was directly referable to the children, including costs of nannies, private medical insurance, medical expenses and therapy costs for the daughter etc. The children had an available income from the Parfenova Trust which was sufficient to meet their school fees in addition to paying £80,000 p.a. to the wife.

Mr Justice Holman indicated that the stockpiled annual amount should be £100,000, enabling the wife to build up a fund of £1million over ten years plus any return on the funds incrementally invested over that period.

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Mr Justice Holman explained that there should be global periodical payments of £370,000 per annum (£270,000 assessed as the wife's current needs and expenses plus the £100,000 stockpile). This included £25,000 p.a. for each child (in addition to their own incomes from the Parfenova Trust). Mr Justice Holman was satisfied that, after making those payments, the husband would have sufficient net income to meet his own needs.

Mr Justice Holman found that it was neither necessary nor justifiable for the wife, in addition to the above periodical payments, to share in any performance fees which the husband might later receive from his business.

The parties agreed that any later "bonanza" from Immunoscience would be equally shared.

The wife was to transfer her interest in the New York flat to the husband, and they were both to retain their current shares.

M v M [2015] EWFC B63 This case related to a 22 year marriage and a period of 4 years between separation and the commencement of divorce and financial remedy proceedings. HHJ Wildblood QC had to determine (i) the extent to which a lump sum order should be made in W's favour, despite a financial agreement having been reached between the parties and implemented post separation and (ii) how the parties' pensions should be deal with, a potentially complicating factor being W's ill health.

The parties married in 1986, when H was 42 and W was 29. They separated in 2008, by which time all of the children of the family (including one daughter and two further children from H's prior marriage) were grown up.

By agreement, the former matrimonial home was sold in 2008 and the proceeds were divided in approximately equal shares, enabling the parties to buy new homes and move on with their lives.

W took legal advice for the first time in 2013 and filed both a petition for divorce based on 5 years' separation and an application for a financial remedy in October of that year. In early 2014, however, W was diagnosed with ovarian cancer. The initial prognosis was, to use the Judge's terminology, "gloomy". By the time of the final hearing, however, it had improved, although it remained very likely that W's life expectancy had been greatly reduced.

By the time of the hearing, it had been nearly six years since the sale proceeds from the former matrimonial home, and the parties' respective circumstances had changed considerably. H had been made redundant and, at the age of 70, had (it was agreed) no earning capacity. He had, therefore, taken a lump sum from his pensions and was drawing down pension income. W had also been made redundant, on two occasions, and had then had to stop work due to ill-health. She too, therefore, had no earned income. The parties' capital positions, come the time of the hearing, were very different from each other, however, due to W's greater expenditure (in respect of which the Judge was not critical).

W's case was not presented on a needs basis but rather on an entitlement (sharing) basis. It was W's position that, since separation, H had had recourse to significant amounts of capital (£459,365) and that she had a claim to a lump sum of £124,767 in respect of that capital and on the basis of unpaid maintenance (which should have been "sought, offered or ordered" during the period of separation). In relation to the pensions, W initially sought a pension sharing order of £538,479 before reducing that amount to £403,530 by the time of closing. This equated to 50% of the cash equivalent values, excluding W's state pension entitlement (W being unlikely to live to receive it). W did not wish to invest in annuities as she wanted to take advantage of the recent pensions changes to enable her to leave her pensions to her children.

By the time of closing, it was H's position that he should make a lump sum payment to W of only £25,000 and that there should be a pension sharing order of £250,000, which could be quantified, in broad terms, in any one of three different ways:

(i) by equalising pension funds but applying a significant discount for H's pre-marital accrual;

(ii) by equalising pension incomes with W taking an enhanced annuity and drawing her state pension; or

(iii) by equalising pension incomes based on a reduced life expectancy for W of 10 years.

The Judge was clear that neither party had felt that financial matters had all been resolved in 2008. They had just wanted to move on with their lives, and neither of them had wanted to deal with any other issues at the time.

The Judge recorded a number of legal principles in respect of which the parties were in agreement. These included, among others, the following:

(i) "No claim between (ex) spouses is statute barred however in exercising its discretion the court may take into account any delay as one of the circumstances of the case";

(ii) "Where need is less than sharing the latter will prevail in the distributive award"; and

(iii) "No person can be discriminated against on the grounds of disability."

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In relation to the last of the above points, whilst the Judge was clear that no person should suffer discrimination on the grounds of disability ("to say otherwise would be outrageous and illegal"), the Judge also referred to the court's obligation to consider any disability within the context of the discretionary exercise demanded by s25 Matrimonial Causes Act 1973. In a case to be determined on the basis of sharing rather than needs, however, there was no reason for there to be any discount or uplift based on disability. On the issue of delay, the Judge quoted H's counsel's submissions:

"There is clear authority to the effect that a party cannot come before the court after a delay of this length and seek to be treated as if they had brought their application promptly…the issue must be whether a party was given the impression (as H was) that [he] could carry on with his financial affairs without facing the challenge now made."

The Judge ordered a lump sum payment of £25,000. This represented 50% of savings held by H at the time of separation. In respect of the rest of the capital to which H had had recourse, W had already received a compensatory payment in relating to the pension lump sum and the sale of some shares, the severance payment that H had received had been applied to cover liabilities and living expenses (without there being any suggestion of reckless expenditure) and W had no entitlement to any post separations share gains made by H.

In relation to the pensions, the Judge found that the appropriate way forward was to "look at a fair division of cash equivalent values and then to consider whether the income effect of that solution need[ed] to be adjusted in fairness and with a particular reference to need". Accordingly, he ordered that there be a pension sharing order in W's favour of £291,575. This amount had been calculated to include a discount of around £40,000 in recognition of H's pre-marital accruals and was, the Judge was satisfied, sufficient W's needs. It would then be a matter for W to determine how she applied her pension funds.

15 July 2015

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Is it time for no fault divorce?

David Marusza, barrister, Harcourt Chambers

Dorinda. But how can you shake off the yoke? your divisions don't come within the reach of the law for a divorce.

Mrs. Sullen. Law! what law can search into the remote abyss of nature? what evidence can prove the unaccountable disaffections of wedlock? Can a jury sum up the endless aversions that are rooted in our souls, or can a bench give judgment upon antipathies?

(The Beaux Stratagem, 1707, Act V, sc. IV, George Farquhar)

The divorce law of England and Wales is complicated and costly. Quite apart from the requirement of pleaded petition setting out which of "five facts" from s.1(2) of the Matrimonial Causes Act 1973 is relied upon in support of the ground for divorce, the initial and subsequent Court fees (let alone lawyers' fees) are considerable and bureaucratic.1

This article seeks to pose some simple questions. Should the law of divorce in England and Wales be simplified and made less costly? Does it require judicial oversight by a judge? Is it fit for the twenty-first century?

History Before turning to the present situation, we might usefully turn to some historical background for the sake of perspective.

No fault divorce, or at least divorce by consent, either by the husband or both parties, and indeed a desire for simplification of divorce law is not a new phenomenon. As early as 1644, John Milton, poet and statesman, and himself a party to an unhappy marriage, had cause to question the niceties of Canon Law on the subject in his pamphlet, On the Doctrine and Discipline of Divorce:

And it is a lesse breach of wedlock to part with wise and quiet consent betimes, then still to soile and profane that mystery of joy and union with a polluting sadnes and perpetuall distemper; for it is not the outward continuing of mariage that keeps whole that cov'nant, but whosoever does most according to peace and love, whether in mariage, or in divorce, he it is that breaks mariage least; it being so often written, that Love only is the fulfilling of every Commandment.

Milton's appeal was to charity. He asked why did Canon law make bind ill-suited spouses together (in the polemical language of his age) like:

"two carcasses chained unnaturally together ; or, as it may happen, a living soul bound to a dead corpse"

And still later, in the Restoration period, in the coda to George's Farquhar's 1707 play, The Beaux Stratagem (in which one couple release each other from their marital vows, while another wed on stage) it is possible to sense frustration with the inflexible and complicated matrimonial law of the time:

Twould be hard to guess which of these parties is the better pleased, the couple joined, or the couple parted; the one rejoicing in hopes of an untasted happiness, and the other in their deliverance from an experienced misery. Both happy in

www.familylawweek.co.uk Family Law Week August 2015 - 29 their several states we find, Those parted by consent, and those conjoined. Consent, if mutual, saves the lawyer's fee. Consent is law enough to set you free.

It was not until the Matrimonial Causes Act 1857 that divorce was available to ordinary people; before that it had been a matter for men, and had required an Act of Parliament, and was hence not a low-cost affair. Many a reader will be familiar with the passage from Thomas Hardy's, The Mayor of Casterbridge where Michael Henchard, unhappily married to his wife, becomes drunk, and purports to sell her to a sailor at a Dorset cattle market. Such an incident reflects real reports, for instance this from a contemporary article:

'Selling wife. At Buckland, nr. Frome, a labring [sic] man named Charles Pearce sold his wife to a shoemaker named Elton for £5, & delivered her in a halter in the public street. She seemed very willing. Bells rang.' 2

Fortunately, a raft of legislation simplified and brought the law, albeit haltingly, up to date, including legislation in 1923, allowing the wife to petition on the ground of adultery, and in 1937, permitting divorce on the grounds of drunkenness, insanity and desertion.

In 1969, the Divorce Reform Act, piloted through the Commons by Leo Abse MP with the assistance of Alec Jones MP, who sponsored the private members bill, introduced divorce on the basis of two years' separation and the consent of the respondent.

Current law The present basic law is contained in the Matrimonial Causes Act 1973 s. 1:

1 Divorce on breakdown of marriage

(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years' separation") and the respondent consents to a decree being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as "five years' separation").

(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to [section 5] below, grant a decree of divorce.

(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.

(6) Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section.

The section applies to same sex married couples by virtue of ss. 1, 11 of and Schedule 3 to the Marriage (Same Sex Couples) Act 2013.

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There is only one ground for divorce – that the marriage has broken down "irretrievably". However, this does not amount no "no fault divorce" as with the exception of two years' separation and consent, there is a flavour of fault to all of the five facts. Most practitioners would agree that a client desperate to divorce is unlikely to be happy with the prospect of quietly waiting out two years, not least as interim remedies ("ancillary relief"), including periodical payments may be required much sooner. It is, therefore, rather more common to rely upon "unreasonable behaviour."

In 1996, there were attempts, stemming from a Law Commission report, to include no fault divorce within Part II of the Family Law Act 1996. These were stymied at the time by opposition on the government benches. The proposals were not pursued by the then Lord Chancellor, Lord Irvine of Lairg.

Baroness Hale and the President of the Family Division, Sir James Munby, have recently both spoken out in favour of a simplified no-fault divorce mechanism. The BBC reported on 29 April 20153 the President stating that "no fault" would "bring some intellectual honesty to the system". He was critical of the "ritual" of a "bureaucratic, administrative process, albeit one conducted by a district judge". He cited the law of other countries where streamlined processes permitted divorce by "what one might describe as the register of births, marriages and deaths."

Baroness Hale has recently given interviews to the Evening Standard and the Times related to no fault divorce on the basis of a declaration of divorce and a one-year period until final decree.

The present system is costly, cumbersome, and a poor use of Court time. Quite how it can be (in the words of FPR 1.1) "allotting an appropriate share of the court's resources" for District Judges to be considering petitions (which are sometimes regrettably lengthy documents) as "box-work" is questionable. Moreover, as many commentators have pointed out, quite literally "fault-finding" as a prelude to mediation or contested proceedings in relation to financial remedy proceedings, or the often inevitable Children Act proceedings, can be in the interest of saving time and limiting the more litigiously inclined of clients, is hard to see. It is far more likely to be deeply counter-productive and store up a reservoir of grievances where they might not otherwise have existed.

As an aside, it does not help that a litigant in person or lawyer navigating their way through the process is now directed to Part 7 of the FPR 2010 (as amended) on the "Procedure for Applications in Matrimonial and Civil Partnership Proceedings" which adopts terminology absent from the 1973 Act and is different from that of the current Court Forms (litigants in person will look in vain for "an application [form] for a matrimonial order" when they actually need a "D8 Divorce/dissolution/(judicial) separation petition.").

The present law is expensive, bureaucratic and unduly complex. It does not improve outcomes for litigants. It has the potential to engender resentment and further strife where none is needed. In the writer's view, it is in dire need of modernisation.

------

1 £410 for the issue of a petition, £95 for amendment, and £155 for an application for Decree Nisi (Family Proceedings Fees Order 2008). It is difficult to view this as any more than either revenue raising or policy-based deterrent.

2 Winfield, Christine, "Factual Sources of Two Episodes in The Mayor of Casterbridge (Nineteenth-Century Fiction 25 [1970], 224-31. [p. 328]).

3 BBC news website.

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Family Law Week’s Budget Briefing, July 2015

Richard Holme, Partner, Creaseys Chartered Accountants

This is the second Budget for 2015 and has been described as an "Emergency Budget". Much of it is carried forward from the March 2015 Budget which, being before the Election, could not all be enacted at that time. Income Tax The Chancellor announced a further increase in the tax-free Personal Allowance which will rise from £10,600 to £11,000 next year. This is a further step towards the Government's target of £12,500. The abatement of the Personal Allowance will continue at £1 for every £2 of an individual's income above £100,000 and taxpayers will then begin to suffer an effective marginal income tax rate of 60%.

Whilst the rates of income tax remain unchanged (with the exception of dividend income: see below), the point at which individuals will begin paying income tax at the higher rate (40%) will rise next year from £42,385 to £43,000. Around 130,000 people will no longer be taxed at the higher rate as a result of this increase.

The Chancellor also confirmed that the pre-election promise to "lock" the main rates of income tax, national insurance and VAT for the next five years will be legislated in due course. Inheritance Tax . . . relaxations . . . for some As anticipated, George Osborne has announced today that for deaths from April 2017, there will sometimes be less inheritance tax to pay on the family home provided this is left to a close relative (defined as children or grandchildren). This will be phased in fully by 2020. Up to £1m may be left tax free by a married couple in certain circumstances rather than the existing £650,000 nil rate bands. There is potentially therefore a tax saving of £140,000 or so for certain married couples. However, this increased nil rate band is tapered if an individual's total estate is more than £2m (this means a marginal 60% inheritance tax rate on certain estates!).

There is some provision for those who "downsize" their house on or after 8 July 2015.

No increase in the nil rate band of £325,000 (per individual) has been announced, meaning that there is no rise for the eighth year running . . . and we are told, until at least April 2021.

As ever, careful planning is needed to mitigate inheritance tax for families and with continuing consultation on the tax effective use of deeds of variation (which vary wills after death) it is vital that individuals take steps to ensure that their wills are not only in line with their wishes but are tax effective. There are a plethora of reliefs from inheritance tax for business and agricultural property, for example, but the conditions are tightly worded and enforced and merit the taking of accountancy advice.

A spouse separating will need to look to consider changing their will at an early stage, to reflect future priorities. It is only when they divorce that provision in a will for a past spouse becomes invalid. Property income

Finance costs With effect from April 2017, relief will gradually be withdrawn for interest paid on borrowings related to property letting by individuals. This will be implemented as follows:

Ÿ For 2017/18 only 75% of the interest will be fully relieved.

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Ÿ For 2018/19 only 50% of the interest will be fully relieved.

Ÿ For 2019/20 only 25% of the interest will be fully relieved.

For these years, the balance of finance costs incurred will obtain relief at basic rate only, and from 5 April 2020, relief will be available only at basic rate for all finance costs. Full interest relief will remain available for the letting of property which qualifies as furnished holiday accommodation.

This change provides a further incentive for property letting to be carried out through companies in future, where full relief is given for the interest, and tax is payable at 20% on net income, reducing in line with the rate changes also announced today, rather than at personal tax rates of up to 45%. We have advised a number of clients on this possibility already. The detailed rules will result in some complicated calculations where losses/interest are carried forward.

Rent-a-Room For many years, an individual who receives income from the letting of one or more rooms in their only or main residence, has been able to receive up to £4,250 of such income free of tax. This limit was today increased substantially to £7,500 with effect from 6 April 2016. There are detailed rules where more than one person is entitled to the income, or where the income is in excess of the exempt amount.

This is a generous increase, and provides an alternative for those who might otherwise be thinking of down-sizing to release capital for investment.

Wear & Tear Allowance Landlords who have let their accommodation furnished are able to claim an allowance to cover the cost of providing furnishings. The allowance is 10% of rent received less expenses suffered by the landlord which would normally be paid by the tenant. This is a very convenient and easy to operate method of obtaining relief for these costs, although one could consider it somewhat arbitrary. The relief will not be available from 6 April 2016, and will be replaced by a relief which relates more directly to the replacement of furnishings.

Whilst this proposal should result in a fairer relief, in that deductions will only be available where expenditure is incurred, and will be proportionate to that expenditure, it will result in more detailed calculations being required.

Non-domiciles The Government has announced that from April 2017, anyone who has been resident in the UK for more than 15 of the last 20 years will be deemed to be domiciled in the UK for all UK tax purposes (income tax, capital gains tax and inheritance tax). This will mean UK resident non-doms will be subject to UK income tax on their worldwide income and gains from their 16th year of residence and to UK inheritance tax from the same point on their worldwide assets (one year earlier than under the current rules).

Capital Gains Tax . . . no changes Despite rumours of a mooted increase in the rate of capital gains tax, no changes were announced by the Chancellor. Rates therefore remain at 18% for gains made by basic-rate taxpayers, 28% for higher/additional rate taxpayers and 10% for those claiming Entrepreneurs' Relief.

Spouses and civil partners are treated as separate individuals for capital gains tax purposes; however any transfer of an asset between the two is treated as a no gain/no loss disposal. For couples separating, any disposals made in the year of separation are treated as a no gain/no loss transaction. Disposal made in subsequent years following separation are deemed as made at market value.

No changes were announced in respect of relief on the sale of an individual's main residence. Remember, spouses and civil partners are only allowed one tax-free main residence between them. Individuals and couples who own two or more residences still have the right to elect which of these is to be regarded as their 'only' or 'main' residence for capital gains tax purposes.

Introduction of a National Living Wage Those aged 25 and over will be pleased to hear that they will now be entitled to a minimum wage of £7.20 per hour from April 2016 following the introduction of a new National Living Wage. This is set to reach £9 per hour by 2020, this compares with the current National Minimum Wage of £6.50 for those aged 21 and over.

Companies In a move which will please businesses, the Chancellor announced further decreases in the Corporation Tax rate for company profits. Since 1 April 2015, companies pay Corporation Tax at a flat rate of 20% and this will fall to 19% in 2017 and 18% in 2020.

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Companies can reduce the amount of Class 1 National Insurance contributions they pay for their employees through what is called the 'Employment Allowance'. George Osborne announced that from April 2016, employers will now be able to claim up to £3,000 (a 50% increase). A small number of employers are not eligible for the allowance and this includes employing someone for personal, household or domestic work e.g. a gardener.

Dividends Many individuals have chosen to divert consultancy or other activities through a single purpose company which will enjoy low corporate tax rates which, as the Budget announced, will reduce to 19% and then 18% over the next 10 years from the present benign 20%. In addition, dividends might be paid to a number of family members (eg spouses, adult children) who benefit from a zero rate of tax on dividend income of up to £36,000 (assuming they have no other income). Mindful of this, the Chancellor has announced that from April 2016, individuals will be able to receive only £5,000 of dividend income free of tax and that beyond this, higher rates of up to 38.1% will arise! In addition he has announced a review of the IR35 system of taxation designed to tighten up the current rules for personal service companies.

The use of companies to shelter income continues to be a good idea but the payment of dividends and the spread of shares around the family in closely held companies will need to be reconsidered with dividend payments being possibly advanced before April 2016. Rather than impose National Insurance on dividends as has been suggested, this is a way of increasing the tax take on profits distributed as dividend. The single purpose company continues to be highly tax effective where profits are entirely retained within it.

The Chancellor confirmed that dividends held in ISAs and pensions will continue to be tax free.

Changes for students Lower income students planning on going to University will no longer receive maintenance grants from September 2016. Currently students from families with annual incomes of £25,000 or less receive a grant of £3,387 a year.

This will be replaced by a maintenance loan, specifically for lower income students, which will only be repayable once the individual begins earning more than £21,000 a year. Whilst the maintenance grant will be scrapped, students will be able to claim as much as £8,200 through the new maintenance loan.

Child tax credits Those starting a family after April 2017 will now only be entitled to child tax credits for their first two children. Furthermore, the income threshold for tax credits will also be reduced from £6,420 to £3,850. Multiple births, for example triplets, will be excluded from this change.

Better news was announced for working families however who can now claim up to 30 hours of free childcare for three and four year olds, up from 15 hours.

Welfare As anticipated, widespread reform of the welfare system was announced in a move to save around £12bn. Some of the measures announced in the Budget statement include:

Ÿ A freeze on working-age benefits for the next four years, excluding maternity payments.

Ÿ No automatic housing benefit for 18-21 year olds.

Ÿ Benefits capped at £20,000 (£23,000 in London) from £26,000.

Pensions As previously proposed in the Conservative manifesto, the Chancellor announced that the £40,000 Annual Allowance for pension contributions will be reduced for those with incomes of over £150,000 including personal and employer's pension contributions and over £110,000 excluding pension contributions. For every £2 of income over £150,000 the Annual Allowance will be tapered by £1 to just £10,000 for those with incomes of £210,000 or more.

The tapering of the annual allowance will have effect from 6 April 2016 but legislation to align all pension input periods with the tax year and other transitional rules that may affect all taxpayers making pension contributions will be effective from today and thankfully it has been confirmed that unused Annual Allowance from the previous three years can be carried forward in the normal way. It is important for separating couples to nominate the correct beneficiaries to receive any death benefits on pension or life policies.

With acknowledgement to Matt Boggis, Creaseys.

8/7/15

www.familylawweek.co.uk Family Law Week August 2015 - 34

Greater Transparency in Children Proceedings: A Note of Caution

Tom Wilson, pupil barrister, 1 Garden Court Family Law Chambers

The recent case of Rebecca Minnock has received considerable public attention, not only because of the dramatic nature of the mother's actions, but also because His Honour Judge Wildblood QC specifically enlisted the help of the Press to locate Ms Minnock and her son Ethan. After she presented herself to the authorities, HHJ Wildblood delivered further judgments in public, including one dated 15 June 2015, in which he said:

'I would wish to pay an immense tribute to the press for the way that they have reported this case. Journalists have a difficult but important job to do as the eyes and ears of our society and that job comes with the demands for near instantaneous reporting in the modern electronic world. It has been a privilege and very rewarding for me to witness how swift, balanced and informed that reporting has been. The press organisation has been instrumental in securing the return of Ethan. Thank you.'

Proponents of greater transparency in the family justice system will point to this episode as illustrative of the important role that the Press can play in family proceedings and the need to promote open justice. Chief among proponents of greater transparency is the President of the Family Division who, on 17 August 2014, released a consultation proposing significant reform to reach this goal. This article examines the arguments in favour of reform and sounds a note of caution to those pushing for greater transparency in the family justice system.

The argument for reform In recent years, there has been a growing consensus that the law should be reformed to ensure greater transparency in proceedings concerning the welfare of children. Arguments in favour of reform tend to centre on a simple paradox: it is those attributes of the family justice system that may justify stringent restrictions on public access that also give rise to a compelling, legitimate and irrefutable public interest in its effective operation. For example, in Re J (A Child) [2013] EWHC 2694, the President stated that:

'…with the state's abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.'

This sentiment is equally applicable, perhaps to a slightly lesser extent, in relation to private law proceedings, where a court may make draconian orders prohibiting contact or transferring residence altogether.

The President has repeatedly emphasised the need to "open up" the family courts in order to protect against miscarriages of justice and promote public understanding of the family justice system. In Re B (A Child) [2004] EWHC 411, for example, Munby J (as he then was) stated:

'…we must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.'1

The President further stated, in his first 'View from Chambers', that:

'I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.'2

Similar sentiments were echoed by the former occupier of the office. Writing extra-judicially, Sir Nicholas Wall stated that:

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'…the fact that the court sits in private enables decisions to be taken without media scrutiny – thus social workers, local authorities and expert witnesses amongst others – indeed, anyone occupying public office, are unaccountable to the media, and thus to the public.'3

The justification for privacy – A need for caution The traditional justification for excluding transparency from children proceedings is best espoused by Viscount Haldane in Scott v Scott [1913] AC 417. In such proceedings, the court 'is not sitting merely to decide a contested question', but is exercising its jurisdiction 'in the interest of those whose affairs are in his charge'. In other words:

'In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction.'4

While the language employed by Viscount Haldane is noticeably outmoded, the sentiment remains relevant. In proceedings concerning children, 'the affairs are truly private affairs; the transactions are transactions truly intra familiam'5. For the child, information surrounding such proceedings will inevitably be intimate, and relate inextricably to their emotional and psychological development. As Dr Sturge notes, there is a very real public interest in protecting children from the inevitable trauma of knowing that their details are "out there"6.

In Re C (A Child) [2015] EWCA Civ 500, McFarlane LJ suggested that this extends beyond the child, and includes the psychological impact to a parent:

'Even though the reader may not be able to identify the father from the anonymised version, the father would know that his personal information was out there and to that extent Article 8 does not lead as night follows day to a decision as to publication.'7

The force of this argument can be gleaned from the important research of Dr Julia Brophy. During a 2010 study - The views of children and young people regarding media access to family courts - Dr Brophy surveyed more than 50 children involved in family proceedings and concluded that:

'Children fear 'exposure': they are afraid that personal, painful and humiliating information will 'get out' and they will be embarrassed, ashamed and bullied at school, in neighbourhoods and communities.'8

Dr Brophy was commissioned by NYAS and the ALC to conduct further research in response to the President's Practice Guidance on transparency ("the 2014 study") . Again, the children interviewed were adamant in their opinions:

'They argue the family court is not a public court for good reason, that they have rights to privacy and dignity and that this move represents a failure of Parliament and the family justice system to consider their views, needs, experiences and long term welfare.'9

When asked to discuss the impact of publicity on a child subject to family proceedings, those interviewed by Dr Brophy were equally clear:

'Young people were unanimous about how a young person might feel, reading about their case in a newspaper; even if the child or young person's name did not appear in the story, they would be deeply affected. They described feelings of anger, sadness and depression, embarrassment, shame, guilt, and humiliation.'10

One such example is the response of a 17-year old girl who had been through care proceedings. She stated:

'When I read things about why I was in care I felt a lot of self-blame and guilt…it's hard to describe…I think across the board you may not have known the [full] detail of what your parents did to you, later when you read about it, you think: "it's my fault" – even though it's not.'11

Dr Brophy's study also concluded that 'children and young people said that the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will "cherry pick" bits of information'.12 This belief is not confined to children. His Honour Judge Bellamy has expressed similar concern, both judicially and extra-judicially. In Re K (A Child: Wardship: Publicity) [2013] EWHC 2684 (Fam), HHJ Bellamy stated that 'there continues to be a tendency for journalists to publish reports about cases based only on the invariably tendentious accounts given to them by aggrieved parties'.13

HHJ Bellamy cited such an example in Re L (A Child: Media Reporting) [2011] EWHC B8. As noted in his judgment, the journalist Christopher Booker published two articles criticising the actions of the court and local authority. In these articles, Mr Booker suggested that 'faint bruising' to the child's arm led to 'over-zealous and unjustified actions of social workers' who removed the child from the parents' care. In fact, it was the child's 'floppy arm', resulting from 'a spiral fracture of his

www.familylawweek.co.uk Family Law Week August 2015 - 36 left humerus' and six 'metaphyseal fractures', that led to the removal. Some may argue that greater transparency would have avoided such inaccuracy. However, as HHJ Bellamy made clear in his judgment, despite Mr Booker being entitled as an accredited member of the press to attend the fact-finding hearing and the handing down of judgment, he did not do so.14 Mr Booker appears to have adopted the same approach to the recent case of Rebecca Minnock, as explained by the Transparency Project. Arguably, it is such journalism which warrants the restrictive nature of the current law.

Nevertheless, many argue that freedom of the Press necessarily affords a degree of latitude to journalists to report stories in a particular manner. The European Court of Human Rights has consistently reiterated that 'journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation'15 and this principle consistently finds itself embodied in English family law. For example, in 1975, Latey J stated that freedom of speech 'means freedom not only for the statements of opinion of which we approve, but also for those of which we most heartily disapprove'.16 In 1994, Hoffmann LJ stated that:

'Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest…Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right-thinking people" regard as dangerous or irresponsible.'17

More recently, Munby P reiterated that:

'The publicist…may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving.'18

However, grand statements of principle are insufficient to justify the potential risk to a child's welfare posed by irresponsible journalism. Cases such as Re K and Re L, outlined above, demonstrate this. Similarly, in Re H (Freeing Orders: Publicity) [2005] EWCA Civ 1325, it was widely publicised that that children were removed from their parents' care on the basis of the parents' low intelligence. In fact, one child had already suffered significant harm as a result of the parents' inability to provide adequate parenting, and there was a risk of the same occurring to the sibling. The children involved in such cases will inevitably grow up with a chequered picture of their history. It is therefore clear that the mantra of freedom of expression and public interest cannot be viewed in isolation. As HHJ Bellamy stated (in a paper to the Association of Lawyers for Children):

'…it is the responsibility of the senior judiciary to articulate clearly the issues of high principle. But when it comes to the debate about opening up the Family Courts, we should not allow high principle to blind us to the actuality of how Press freedom is exercised and to the consequent risks for children and families. Put shortly, we should not confuse ideals and expectations with reality and experience.'19

Unfortunately, reality and experience suggest that the press cannot always be relied upon to behave in an appropriate way. Some may argue that, should a journalist overstep the bounds of appropriateness, they may be subject to defamation proceedings or even criminal sanction. However, such remedies are inevitably after-the-event and, in the internet age where social media is ubiquitous, are inadequate to prevent the damage that may be done by publicising the intimate details of family cases.

What of anonymity? A logical response to many of the above concerns is to ensure a rigorous regime of anonymity. Since the President's Practice Guidance, a far greater number of judgments have been published in anonymised form. Undoubtedly, this is a positive move, benefitting not only those within the profession but also those seeking to improve the public's understanding of family proceedings. This is, however, not without issue. A significant risk comes from 'jigsaw identification'. This is the process whereby, despite attempts to anonymise a judgment, the child or family involved are identifiable by piecing together details of the case that are in the public domain. Again, Dr Brophy's research has concluded that this is a very real concern for children:

'Details of the area where a family live, the location of the court, the school attended, ethnic and religious details, harm children may have suffered in the care of a parent, health problems and problems at school and conditions in the home from which they were removed were all details which young people said could lead to the public identification of a child.'20

Dr Brophy quotes one of the interviewees, a 16-year-old girl who had been through the family justice system:

'…for example from an area [detail] someone will find a way of identifying [the family] people find ways…the media always try and find a way to expose something, if that happens – not just the media but others who pose a risk to children and vulnerable children in particular…they find a way of identifying a child who may be vulnerable to inappropriate attention.'

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This is clearly a credible concern, and one that is shared in some corners of the judiciary. In Z County Council v TS [2008] EWHC 1773 (Fam), ITV Wales applied for the relaxation of reporting restrictions surrounding care proceedings in order that it could broadcast a documentary revealing the mother's identity. Hedley J refused the application on the basis that the child 'lives in a rural community where, because of the comparatively unusual nature of his disability, he is more likely to be identifiable than if he lived in a massive conurbation'. As a result, the court refused the disclosure of 'any person that not only would identify…[the child]…but might reasonably in this case lead to his identification'.21

Moreover, a recent appeal illustrates the practical difficulties involved with anonymising judgments. In Re C (A Child) (2015]) (referred to above), the mother sought permission for the judgment to be published and her representatives prepared a heavily anonymised version of the judgment in which initials bearing no resemblance to the parties' names were attributed to them and in which both the town involved and the father's nationality were changed. Nevertheless, McFarlane LJ noted that:

'Despite the great deal of care that was taken by those conducting the anonymisation process, it is however of note that the process was not foolproof, in that at paragraph 9 of the judgment as currently anonymised the boy's first name appears in full.'22

As McFarlane LJ concluded, 'no system is entirely watertight and it seems to me that the judge was entitled to have regard to that factor.'23 What next? None of the above is intended to suggest that reform is not needed or that greater transparency is inappropriate. Very few would argue that the law as it stands is without the need for reform. Arguments made by those in favour of transparency are powerful ones, and the importance of freedom of expression and open justice cannot be underestimated. However, before any further reform is contemplated, the President is urged to consider the very real concerns raised by the children interviewed during Dr Brophy's studies. In a jurisdiction based exclusively on promoting the welfare of children, we should be concerned less with ensuring that the general public have a greater knowledge of how the family justice system operates, and more with ensuring that the welfare of the most vulnerable children is protected in an age of instant communication and social media. ______

Footnotes:

1. [101]. 2. [2013] Fam Law 548, 549. 3. [2012] Fam Law 1463. 4. At 437. 5. ibid. 6. Dr Claire Sturge, 'Transparency in Family Proceedings' [2006] Fam Law 409. 7. [28]. 8. Para 10.7 of the 2010 study. 9. p.53 of the 2014 study. 10. p.32 of the 2014 study. 11. p.32 of the 2014 study. 12. Para 10.7 of the 2010 study. 13. [37]. 14. [186]-[187]. 15. Bergens Tidende v Norway (2001) 31 EHRR 16, [49]. 16. Re X (A Minor) [1975] 2 WLR 335. 17. R. v Central Independent Television Plc [1994] 3 W.L.R. 20. 18. Re J (A Child) [2013] EWHC 2694 (Fam). 19. p.10. 20. p.29 21. ibid, [9]; [11]. 22. [6] 23. [33]

9/7/15

www.familylawweek.co.uk Family Law Week August 2015 - 38

FGM and the Serious Crime Act 2015

Nkumbe Ekaney QC of Albion Chambers and Charlotte Proudman, barrister, of Mansfield Chambers

Female genital mutilation (FGM) now forms part of our political and public consciousness. The inadequacy of the legal response to the thousands of girls and women from the UK mutilated every year has finally become a major consideration of legal practitioners.

While the data on the incidence of FGM in the UK are limited, estimates by Equality Now and City University show that in England and Wales 103,000 women and girls aged 15-49 are living with the consequences of FGM and another 10,000 under the age of 15 have undergone FGM or are at risk of FGM . Although FGM was made a specific criminal offence in 1985, there have been no successful prosecutions.

The House of Commons Home Affairs Committee's report on FGM published on 25 June 2014 recommended a national action plan, which would involve "strengthening the law on FGM, principally to ensure the safeguarding of at-risk girls, but also to increase the likelihood of achieving successful prosecutions" (paragraph 22).

Five key legislative changes on FGM were introduced into the Serious Crime Act 2015, which was given royal assent on 3 March 2015. In this article we attempt to provide an overview of the legislative changes.

1. Offence of FGM: extra-territorial acts The Female Genital Mutilation Act 2003 (2003 Act) was originally concerned with acts done by UK nationals or permanent UK residents to girls or women who are UK nationals or permanent UK residents. Perpetrators and victims who were habitually resident in the UK (but not UK nationals or permanent UK residents) were not covered by the legislation. The Bar Human Rights Committee of England and Wales (BHRC) noted in its report on FGM that "the UK's legal obligations extend to all children within its jurisdictions – therefore UK organisers of such mutilations should face prosecution, irrespective of the child's status" (page 3).

The Serious Crime Act amends sections 1 to 3 of the 2003 Act so that it applies to UK nationals and habitual residents rather than only to UK nationals and permanent UK residents. A UK resident is someone who is habitually resident in the UK.

The Act does not however address those who have a short and temporary stay in the UK. No provision is made, for instance, for the situation in which a woman travels to the UK for a short period, visits an NHS doctor who discovers that the woman has been subjected to FGM and intends that her daughter(s) should also be exposed to the procedure.

2. Anonymity for victims of FGM A new section 4A and Schedule 1 have been inserted into the 2003 Act and provide for injunctions prohibiting the publication of any matter that could lead the public to identify the alleged victim of an offence under the Act. The prohibition lasts for the lifetime of the alleged victim. The power to waive the restrictions is limited to the circumstances necessary to allow a court to ensure that a defendant receives a fair trial (Article 6 ECHR) or to safeguard freedom of expression (Article 10 ECHR). The rationale is that anonymisation will encourage women and girls to report FGM offences committed against them, and to increase the number of prosecutions.

3. Offence of failing to protect girl from risk of genital mutilation A new Section 3A offence of failing to protect a girl under the age of 16 from risk of FGM is introduced into the 2003 Act. A person is liable for the offence if they are responsible for a girl at the time when an offence is committed against her and when FGM has actually occurred.

The term "responsible" covers two classes of person: first, a person who has 'parental responsibility' for the girl and has 'frequent contact' with her, and, second, any adult who has assumed responsibility for caring for the girl in the manner of a parent, for example, grandparents who might be caring for the girl during the school holidays.

There are two possible defences: the first is that the defendant did not think that there was a significant risk of the girl being subjected to FGM and could not reasonably have been expected to be aware that there was any such risk. The second defence is that the defendant took reasonable steps to protect the girl from being the victim of FGM. The defendant will have to adduce sufficient evidence for the matter to be considered by the jury; it would then be for the prosecution to demonstrate to the criminal standard of proof, namely beyond reasonable doubt, that the defence had not been made out. We envisage that this provision may lead to more difficult prosecutions given the wide parameters of the two defences.

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4. Female genital mutilation protection orders Section 5A is inserted into the 2003 Act which introduces new Schedule 2 into the 2003 Act. The schedule provides for FGM Protection Orders. The orders can be made to protect a girl against being subjected to FGM. An order can be made to protect either a girl or woman at risk of FGM. FGM protection orders are modelled on forced marriage protection orders introduced by the Forced Marriage (Civil Protection) Act 2007. The terms of such an order can be broad and flexible and enable the court to include whatever terms it considers necessary and appropriate to protect the girl. These include, for example, provisions requiring a person to surrender his or her passport. In addition, the BHRC supported the establishment of a central coordinating institution of an anti-FGM Unit equivalent to the Forced Marriage Unit in the Foreign and Commonwealth Office. While the coalition government pledged to introduce an anti-FGM Unit last year, no unit exists yet.

[The first FGM protection order was obtained by Bedfordshire Police on the 17th July. Click here for details.]

5. Section 74: Duty to notify police of FGM A new section 5B of the 2003 Act (when the section is implemented) places a duty on persons who work in a 'regulated profession' in England and Wales, namely healthcare professionals, teachers and social care workers, to notify the police when, in the course of their work, they discover that an act of FGM appears to have been carried out on a girl who is under 18. The term 'discover' would refer to circumstances where the victim discloses to the professional that she has been subject to FGM, or where the professional observes the physical signs of FGM. The section does not apply to girls or women who might be at risk of FGM or cases where professionals discover a woman who is 18 or over has endured FGM.

We believe that this provision is deficient in a number of respects. First, there appears to be a contradiction in legislation in that FGM is a criminal offence according to the 2003 Act for adults and minors and consent is not a defence, and yet, professionals do not have to report adults who have had FGM. Second, vulnerable 18-year-old women who could be at risk of FGM, or indeed sisters who could be at risk of FGM, might not receive appropriate support because professionals have no duty to report cases involving adult women to the police. Third, we suggest that if there was a duty to notify police of FGM even when the woman is an adult, this could lead to a conviction of 'failing to protect a girl from risk of FGM'. For example, a healthcare professional discovers that a woman of 18 years or more who was born in the UK has been subjected to FGM, her parents could be guilty of an offence of failing to protect her from FGM; however, according to the new section 5B offence, the healthcare professional has no duty to report the offence, thus no prosecution is likely to ensue. Finally, the deficiency of this offence reflects the failure of the state's responsibility and commitment to preventing and protecting adult women from violence. Indeed, the BHRC's report on FGM found that "the UK has been in breach of its international law obligations to protect young women and girls from mutilation" (page 1).

Further recommendations and legislative changes were identified in the House of Commons Home Affairs Committee's report and the BHRC's report: for example, the need to examine whether section 1(2)(a) of the 2003 Act provides a loophole for FGM to be performed under the guise of female genital cosmetic surgery on the basis that the surgery is 'necessary for physical or mental health' reasons, and the introduction of a legal requirement for mandatory training and reporting for frontline professionals in regulated professions. Without a successful prosecution in the next few years, further legislative changes may well be on the political agenda. ______

Nkumbe Ekaney represented the father in B and G (Children) (No 2) [2015] EWFC 3, in which the court had to consider within care proceedings whether a gilr had been subjected to FGM and, if so, what the implications should be for her and her sibling's future.

Charlotte Proudman was a member of the Bar Human Rights Committee's working group on FGM.

15/7/15

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All Change for London Family Lawyers: An International Perspective

Stuart Clark, Associate, The International Family Law Group

A number of changes to the administration of family justice in London come into force this month, July 2015, and the key words for London family court users are "centralisation" and "complexity."

The changes predominantly affect divorce and financial matters and the allocation of work. As English solicitors predominantly undertaking cases with an international element, where complexity is never too far away, my firm has particular need to be aware of the effect on our day-to-day dealings with the courts. We often have much work in the Central Family Court (the family court in London) but the changes to the administration of divorce and financial matters in London and the South East may limit the matters which will now physically and geographically take place in that Court. There will be a requirement that a matter is sufficiently "complex" for it to be heard in the Central Family Court. The High Court has its own gateway, also with reference to complexity, although with a subtly different meaning, as I explore below.

The Bury St Edmunds Divorce Centre President of the Family Division Sir James Munby has rightly and beneficially been driving the family courts toward centralisation for many months now. For London and the South-East this means that all divorce and financial matters will be handled administratively by the Bury St Edmunds Divorce Centre. The movement of work from London and the South East has been taking place gradually over the last few months and it is anticipated it will be completed by October 2015. The aim is for the more efficient running of divorce and family matters and for great consistency. The divorce centre will aim for a turnover of correspondence within 48 hours of receipt (although recent figures suggest that turn over at Bury St Edmunds is at least 6 days). We all hope that this is successful (I was involved in a similar centralisation of magistrates' courts within a county in the past and whilst the first few weeks and months of that experience are best described as chaotic, the upshot was a more efficient system). We live (and file our papers) in hope!

On Monday 20 July 2015 it became the turn of the (London) Central Family Court to move to Bury St Edmunds. Any new divorce or financial application issued on or after that date at the Central Family Court will be administered by the Bury St Edmunds Divorce Centre. Existing filed matters will continue to be handled by the Central Family Court.

Any new petitions and Forms A will need to be sent to Bury St Edmunds for issuing. As international practitioners well-used to jurisdiction races and running (often literally) to First Avenue House we were concerned that petitions and Forms A will be sent to Bury St Edmunds and will have to await their turn in the queue, notwithstanding the urgency. Help is at hand: the panel in charge of centralisation has stated that local courts, including the Central Family Court, have said that counter staff will (still) issue petitions and Forms A on-site if there is a matter of urgency, for example in a jurisdiction race or if a section 37 injunction application is imminent. Crucially, practitioners will be trusted and taken at their word on matters of urgency. Recent experience suggests that this will occur at the Central Family Court although a colleague has recounted difficulties issuing on-site in a court in Hampshire over Christmas 2014 when he was told that it would be "unfair" for the petitioner to steal a march in the interests of securing jurisdiction. Let us hope that this was an isolated incident.

Once a petition and Form A are issued at Bury St Edmunds the proceedings will be allocated a court within London and the South East to handle contentious suit hearings and any hearings in the financial proceedings. The petitioner or applicant can nominate their court of choice within the area and in default the court will allocate based on the court closest to the post code of the petitioner or applicant (although some vagueries remain as to whether this will be according to proximity as the judicial crow flies or proximity based on local authority or borough).

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Crucially, the petitioner or applicant cannot nominate the Central Family Court unless the matter is sufficiently complex. The idea is to have the Central Family Court held up as a centre of excellence and venue for only the most complex of cases.

So, what is complexity? A complexity certificate has been released for practitioners to complete when seeking to issue at the Central Family Court and it provides a checklist of issues. For the Central Family Court, a matter will be sufficiently complex if the assets are worth over £10million. If the asserts are worth under £10million one of the following must apply:

1. There are complex asset or income structures;

2. There are issues of non-disclosure;

3. Assets were or are held through offshore trusts / settlements / otherwise offshore or overseas / through family/unquoted corporate entities;

4. There are sufficiently valuable family assets, trusts and/or corporate entities;

5. Expert accountancy evidence will be required;

6. Arguments as to either contributions or conduct will be run;

7. There are issues of illiquidity of assets;

8. There are arguments regarding matrimonial and non-matrimonial assets;

9. There are other complex or novel issues of legal argument.

There is also a catch-all for any other reason why the matter should be allocated to the Central Family Court and it is suggested that the urgency of issue of a petition and/or Form A will be a gateway for matters being held at the Central Family Court. However, the first appointment judge may move the matter away from that court if there is otherwise no distinct complexity. The fact that one or both of the parties are based overseas and require access to a family court in central London may also provide reason to plead "complexity." Unfortunately the convenience of practitioners is not sufficient reason.

In international cases one or numerous of the criteria are likely to apply. But we should be aware that the court will be on the look-out for practitioners abusing the system for their own convenience and "complexity" should be pleaded sparingly to ensure only those cases where the expertise of the Central Family Court is required are handled in that court.

The High Court The High Court brought in its own complexity certificate on 1 July 2015. Mostyn J sent a circular effective on 1 July 2015 providing guidance for the efficient conduct of financial remedy work in the High Court. It is an important note for practitioners operating in the High Court and demands close-reading.

Unless a judge has directed that the matter be heard by the High Court, practitioners will need to self-certify a matter to be sufficiently complex so as to warrant hearing by the High Court. The complexity certificate will need to be lodged with the Clerk of the Rules at the High Court at least 21 days prior to the first appointment and it will then be considered by the judge in charge of the money list (currently Mostyn J) who will decide whether the matter is sufficiently complex and then allocate the matter to a judge to handle all hearings in the matter (save for the FDR and interlocutory hearings where judicial continuity is not possible or would unduly delay matters).

Whether a matter is sufficiently complex is based on the net assets and the issues in the case. The certificate provides for brackets of £10m-£15m, £15m-£25m, £25m-£50m, £50 plus or "Other" – presumably sub-£10m in which case there will need to be further compelling reasons for the matter being placed before the High Court. The other "complex" issues are in checklist form again and are as follows:

1. There are issues of non-disclosure;

2. Assets were or are held through offshore trusts / settlements / through family/unquoted corporate entities;

3. There are sufficiently valuable family assets, trusts and/or corporate entities;

4. A nuptial agreement is relied upon;

5. Assets are held offshore;

6. Arguments as to either contributions or conduct will be run;

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7. There are issues of illiquidity of assets;

8. There are arguments regarding matrimonial and non-matrimonial assets;

9. There are other complex or novel issues of legal argument.

There is a large degree of overlap with the Central Family Court complexity certificate and, absent further guidance, practitioners will need to decide whether the matter is sufficiently complex for the High Court. In deciding whether a complex matter is worthy of the High Court over the Central Family Court, perhaps the best (but self-serving) guidance is to continue what experienced practitioners have always done: "you know it when you see it". That said, the guidance from Mostyn J warns of the consequences for practitioners who wrongly certify a matter in the High Court and the judge at first appointment can re-allocate downward and make appropriate orders as to costs. More so than with the Central Family Court, certification is to be done at your own risk and sparingly.

Reciprocal Enforcement Further changes are in the pipeline for reciprocal enforcement. Forthcoming changes made via The Civil Jurisdiction and Judgments (Maintenance) and International Recovery of Maintenance (Hague Convention 2007 etc) (Amendment) Regulations 2015 will mean the administration of maintenance enforcement both domestically and cross-border will be handled in three Maintenance Enforcement Business Centres in England and Wales. Matters in Wales will be handled in Bridgend, Bury St Edmunds will handles matters in England, except for London. London matters will be handled by the London Maintenance Enforcement Business Centre. The statutory instrument is before Parliament and is due to be brought in on 31 July.

22/7/15

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Three Years On: Same Question, Different Answer? ‘Is There a Legal Right to Gay Marriage?’

Andrew Commins, barrister, St John's Chambers, Bristol

Introduction In 2012 I wrote an article with the title 'A Legal Right to Gay Marriage?' I questioned whether international and regional human rights laws provided for the right to same-sex marriage. I answered this question with a 'no'.

Nevertheless, the trend towards recognition of same-sex marriage – at least in the West – has continued apace1. As I write today, 18 countries globally allow same-sex marriage and, by the end of this year, that number will rise to 212. I differentiate in the analysis between the permission to marry and the right to enter into a civil union or a civil partnership; a legal association that 'falls short' of marriage, as it is commonly understood. However, this ongoing march in many countries towards equal marriage-rights faces a similarly strident and vociferous counter-approach. For example, Vladimir Putin's United Russia Party recently unveiled a 'Straight Pride' flag as the campaign to criminalize the propaganda of same-sex behaviour is maintained. In 2014 the Gambian Parliament adopted legislation for a new offence of 'aggravated homosexuality', which is punishable on conviction with imprisonment for life. Uganda's President Museveni recently assented to the Anti-Homosexuality Act of 2014 imposing life sentences on people found guilty of repeated gay sex and custodial terms for promoting homosexuality.

Now in 2015, three years after my initial article, I thought it time to update my conclusions. This decision was, in part, motivated by two significant and recent events: firstly, the United States' Supreme Court's decision that the US Constitution provides for a federal right to same-sex marriage and, secondly, the European Court of Human Rights' (ECtHR) recent judgment (21 July 2015) in the case of Oliari & Others v Italy 3.It is the European case that I will seek to analyse in this article. Mr Oliari and his partner, Mr A, applied in 2008 to the local Italian authorities for the relevant marriage banns. Italian law did not permit same-sex marriage nor same-sex unions of any kind and their application was rejected. They appealed through the domestic courts. Some seven years later, the ECtHR held that the applicants' right to a private and family life pursuant to Article 8 of the European Convention on Human Rights (ECHR) had been violated. The Italian Government had 'failed to fulfil their positive obligation to ensure that the applicants [had] available a specific legal framework providing for the recognition and protection of their same-sex union'4 .

Global developments It is impractical to list all the legal and constitutional decisions globally over the last three years that have affected same-sex marriage rights. However, the short inventory below highlights the key developments.

April 17 2013: The Parliament of New Zealand legalized same-sex marriage by a vote 77-44

May 18 2013: President Francois Hollande signed the same-sex marriage bill into law

July 17 2013: Royal assent given to the Marriage (Same Sex Couples) Bill, legalizing gay marriage in the United Kingdom

November 28 2014: The Finnish Parliament approved a bill to enable same-sex marriages (105-92 votes)

January 1 2015: Luxembourg laws legalizing same sex marriage came into force

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January 6 2015: Same-sex marriage became legal in Florida

March 4 2015: The Slovenian Parliament approved same-sex marriage laws (51-28 votes)

May 22 2105: The Republic of Ireland became the first country to approve same-sex marriage and its constitutional protection by means of a popular referendum (62% yes 38% no)

May 26 2015: Greenland's Parliament approved same-sex marriage laws by a unanimous vote 27-0 (law comes into force on 1 October 2015)

June 26 2105: The Supreme Court of the United States of America ruled in favour of a federal right to same sex marriage.

Oliari & Others v Italy, the European Court of Human Rights (ECtHR)

The applicants in this case argued that:

1. Recognition in law of one's family life and status was crucial for the existence and well-being of an individual;

2. The State's margin of appreciation – i.e., the space for manoeuvre granted to national authorities to fulfil their obligations under the ECHR – was narrow, due to the fact that the 'discrimination' in legal protection was based solely on the sexual orientation of the individuals involved;

3. In view of the positive trend towards the recognition of same-sex couples in Europe, the ECtHR should impose on States a positive obligation to ensure same-sex couples have access to an institution which is more or less equivalent to marriage;

4. The decision did not involve striking a balance with the rights of others; the case simply related to the rights and duties of partners towards each other;

5. The ECtHR should avoid being reduced to an 'accountant' of majoritarian domestic views but should act as the guardian of the ECHR and its underlying values (i.e. the ECtHR should not just decide cases by reference to an individual country's national bias against, or in favour, of the recognition of homosexual rights);

6. The lack of recognition of their union affected and disadvantaged the applicants in many specific and concrete ways – for example, rights to inheritance and taxation benefits, pension provision, housing, access to medical records and rights to maintenance;

7. Any argument that the lack of recognition of same-sex unions was aimed at protecting the family 'in the traditional sense' was flawed: such an approach was contrary to the Court's evolving case law and 'in radical contrast with the demands of pluralism, tolerance and broadmindedness, without which there was no democratic society'.5

The Italian Government submitted that:

1. The ECHR did not oblige national authorities to provide for same-sex marriage or other same-sex unions;

2. The matter should be left to the national authorities to decide. The individual State was 'the only entity capable of having cognisance of the 'common sense' of its own community, particularly concerning a delicate matter which affected the sensitivity of individuals and their cultural identities'6;

3. The ECtHR's 'power' to impose an obligation on a State to recognise same-sex unions could not be dictated by the behaviour of other States. In any event, developments in other Council of Europe countries had been relatively recent and were the result of an internal and individual process of social maturation;

4. The Italian State was in a process of debating Bills dealing with the recognition of civil unions and 'this intense activity in the past thirty years showed an intention on the part of the State to find a solution which would meet with public approval, as well as corresponding to the needs of the protection of a part of the community'7;

5. Same-sex couples wishing to give a legal framework to various aspects of their community life could enter into cohabitation agreements regulating, inter alia, testamentary rights, housing and residence and the allocation and ownership of assets.

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Interveners (for example, ILGA, the International Lesbian, Gay, Bisexual, Trans and Intersex Association) argued as follows:

1. Even assuming that the ECHR did not yet require equal access to legal marriage for same-sex couples, it was (at least) indirect discrimination based on sexual orientation to limit particular rights or benefits to married different- sex couples but to provide no means for same-sex couples to qualify;

2. Differences in treatment based on sexual orientation were analogous to difference in treatment based on race, religion and sex, and could only be justified by particularly serious reasons.

The ECtHR decided as follows:

1. Article 8 ECHR not only protects individuals from arbitrary State interference but may impose on States certain positive obligations to protect the rights enshrined in Article 8;

2. Private cohabitation agreements in Italy fail to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed partnership;

3. The necessity for same-sex couples to 'refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple....already amounts to a not-insignificant hindrance to the applicants' efforts to obtain respect for their private and family life'8;

4. Official national statistics show that there are around one million gay people living in Central Italy;

5. In the absence of marriage, same-sex couples have a particular interest in having the option of entering into a form of civil union or registered partnership;

6. The case concerned the general need for legal recognition and the core protection of the applicants as same-sex couples rather than certain supplementary rights or consideration of the exact status conferred by recognition of same-sex couples. To the extent that the question in hand focused on core rights of the individual, the State's margin of appreciation was narrow;

7. The world was showing a rapid development towards the legal recognition of same-sex couples;

8. Official surveys of the Italian public's attitude demonstrated a popular acceptance of homosexual couples and support for their recognition and protection;

9. The Italian Constitutional Court had highlighted the problem in the current legal system of having no available legal union for same-sex couples but had left the decision to Parliament: indeed, the President of the Constitutional Court had highlighted his regret at the inaction of the Italian Parliament in light of the Court's determination that 'same-sex couples [have] a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union'.

Therefore, for all the reasons highlighted above, 'in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants' momentous interests.....and in the light of domestic courts' conclusions on the matter which remain unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions'9.

Updated conclusions Oliari v Italy ('Oliari') is undeniably an important decision. The Italian State had failed timely and appropriately to enact legal protection for same-sex couples. Public opinion, judicial pronouncements and the relegation of basic rights left Italy with a narrow, if non-existent, margin of appreciation: and it had failed, therefore, to act in accordance with its duties under the ECHR. There were no obvious social or moral arguments raised by the Government in opposition to the very basic principle of recognising same-sex unions. For all those reasons, the rights of the same-sex couple to recognition of their union prevailed.

However, the territorial reach of this decision outside the Italian State may be limited and, probably, should not be overestimated. Oliari does not impose an obligation on all Member States of the Council of Europe to recognise same-sex unions, let alone demand access to marriage for same-sex couples. Indeed, the court in Oliari reiterated its view that, despite the gradual evolution of States on the matter of same-sex marriage (11 out of 47 Council of Europe States now permit equal marriage), there remains no obligation on States to grant access to marriage to same-sex couples10.

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There is no doubt, however, that the Oliari decision adds to the pressure on Member States to regularly and actively consider whether legally recognised same-sex unions are compatible with, and attuned to, domestic law, constitutional interpretations, public opinion and progressive developments in other Member States; and further, to act accordingly if these influences require such action.

Nevertheless, the decision is arguably still to be made on a State-by-State basis, at least until the vast majority of Member States provide legal recognition of same-sex unions and, thereby, generate a significant and unimpeachable consensus which the ECtHR can no longer overlook. Take, for example, the situation in Russia. By 2008, 72% of the Russian population identified as Orthodox Christians. Surveys in 2013 demonstrated that almost 75% of Russians considered that homosexuality should not be accepted by society. Recent polls (in 2015) indicated that 80% of respondents did not support same-sex marriage. 41% of respondents to the same poll said that the State should 'eradicate homosexuality as a phenomenon and prosecute gays and lesbians'. A recent YouTube clip of two men (who were not gay or partners) walking hand-in-hand through the streets of Moscow and facing verbal and physical abuse is a unique – but perhaps indicative – example of current public opinion. The Russian legislature has enacted laws banning gay propaganda. There is strong support for the maintenance and development of 'traditional family values'.

If a case similar to Oliari, therefore, was brought against the Russian Government, the ECtHR would, it seems, be required to take into account the particularities of public, judicial and legislative opinion. The Russian state's margin of appreciation would arguably be broader than that of Italy given the broader community's views. How the ECtHR would react to such a strongly-held competing public and State opinion on the status of same-sex relationships is difficult to predict. Would the basic need of the proposed applicants to protection of their 'core' rights still prevail? Only time will tell. With each decision of the ECtHR imposing positive obligations on Member States and with every independent State decision to offer some level of legal recognition to same-sex unions, the arguments in favour of discrimination weaken. In Oliari, the Court was willing to substitute its own judgment in place of the national authority's and, despite the inordinate delays associated with ECtHR judgments, it did so in advance of the Italian Parliament. This decision was, in large part, in recognition of public, judicial, constitutional and legislative support for the principle of some level of legal protection for same-sex unions. The Court may not be so bold where the weight of such opinion is entrenched on the other side of the divide. ______

Footnotes: [1] Twenty-four countries out of the forty-seven member states of the Council of Europe have already enacted legislation permitting same-sex couples to have their relationship recognised as a legal marriage OR as a form of civil union or registered partnership. [2] When the laws in Solvenia, Finland and Ireland come into force. [3] Application Nos. 18766/11 and 36030/11 [4] Paragraph 185 [5] Paragraph 120 [6] Paragraph 123 [7] Paragraph 126 [8] Paragraph 171 [9] Paragraph 185 [10] Paragraph 192

24/7/15

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Children: Private Law Update (July 2015)

Alex Verdan QC, 4 Paper Buildings

In this update I will consider the following areas:

Ÿ Section 91(14) orders

Ÿ Permission to extend time for filing notice of appeal

Ÿ Part 25 applications for expert evidence

Ÿ Permission to apply for child arrangement orders.

Section 91(14) orders Generally seen as the weapon of last resort, a number of recent Court of Appeal decision have emphasised that such applications demand great care.

In Re S-B (Children) [2015] EWCA Civ 705, the Court of Appeal was concerned with a mother's appeal against an order for indirect contact, and a s. 91(14) order. The s. 91(14) order, it was argued, was wrong because it did not specify which applications the mother was prohibited from bringing. King LJ clarified that such orders should specify what is prohibited and say something to the effect that no application under any provision of the Children Act 1989 may be made in respect of either child.

In Re T (A child: Suspension of Contact: Section 91(14) CA 1989) [2015] EWCA Civ 719, the Court of Appeal was again quick to ensure, in light of the statutory intrusion on a party's right to bring proceedings, that such an application is dealt with fairly and justly. The court below had suspended all contact between the father, who did not attend the hearing, and E aged 4½ and made an order under s 91(14) for 5½ years. Although the father had notice of the hearing, the Court of Appeal found that the court must be satisfied of the following when making such orders:

1. The parties are fully aware that the court is seised of an application, and is considering making such an order

2. The parties understand the meaning and effect of such an order

3. The parties have full knowledge of the evidential basis on which such an order is sought

4. The parties have had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to made in writing and on notice.

The Court of Appeal added that these fundamental requirements obtain whether or not the parties are legally represented. It is suggested that it is even more critical that these requirements are observed when the party affected is unrepresented.

As a side note, the judgment also clarified that in-court conciliation at a FHDRA does not of itself disqualify judges from continuing involvement with the case, particularly as information shared at such a hearing is expressly not regarded as privileged (PD12B FPR 2010 para 14.9).

In K v K [2015] EWHC 1064 (Fam), the President was concerned with a case where the father had made numerous applications concerning the parties' children, M aged 18 and J aged 16, and also in respect of the parties' financial remedy proceedings. There had been three sets of Children Act proceedings over the course of two years, which concluded with

www.familylawweek.co.uk Family Law Week August 2015 - 48 dismissals of the father's applications, the court finding them to be devoid of merit. The court made a section 91(14) and accompanying Grepe v Loam (1887) 37 ChD 168 order; a corresponding order preventing the father from bringing financial applications.

Application to extend the time for appealing in family cases relating to children In Re H (Children) [2015] EWCA Civ 583, the Court of Appeal was concerned with the following issue: when considering an application to extend the time for appealing in a family case relating to children, what regard, if any, should be had by the judge to overall merits of the proposed appeal?

This case concerned care proceedings, but has important implications for all children practitioners. In care proceedings, the court had ordered that three of the four children remain in the father's care under supervision orders, and care and placement orders be made in respect of the fourth child. The father initially sought permission to appeal out of time without reasons for the delay, which was refused on the papers. When the prospective adopters issued an application for adoption some 8 months later the father again sought to appeal the initial decision.

In considering the appeal, the Court made clear that pursuant to FPR 2010, PD 30 A, para 5.4:

'If an extension of time is required for filing the appellant's notice the application must be made in that notice. The notice should state the reason for the delay and the steps taken prior to the application being made.'

Given the father was some 8 months out of time it was necessary for him to apply to extend the time for compliance pursuant to FPR 2010, r 4.1(3)(a). The court must consider rules 4.5 and 4.6 which provide for sanctions to have effect unless the defaulting party obtains relief from the court.

The Court found that the case was exceptional and, in considering all the circumstances pursuant to FPR 2010 r. 4.6 (1), the merits of the appeal were very strong, which warranted a relief from sanction.

McFarlane LJ concluded by saying that it is not the purpose to suggest that the approach in family cases should differ from that applied in ordinary civil jurisdiction; however, clearly where a case has striking merit, and the consequence of an order is at the highest level of intervention, regard will be had to this.

Part 25 applications for expert evidence In Re C (A child) (Procedural Requirements of a Pt 25 Application) [2015] EWCA Civ 539, the Court of Appeal was dealing with the father's appeal of an order originally made by the magistrates' court that the father 'submit to a full psychological assessment', which provided that the expert instructed should be court accredited, a letter of instruction was to be agreed, and the costs shared equally. There was no Part 25 application. The order was appealed to a circuit judge and was dismissed.

In a lengthy judgment, which sets out the statutory framework and procedure in bringing an application for permission to instruct an expert, Ryder LJ and Aikens LJ emphasised that section 13 of the Children and Families Act 2014 and Part 25 FPR 2010 now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is duty of all family law practitioners and the court to learn, mark and digest these provisions and ensure they are applied rigorously.

The Court of Appeal further made clear that the mandatory order that the father should subject himself to a psychological assessment, a form of medical procedure, was unlawful.

This example demonstrates that the court will not tolerate misguided or ill prepared applications for expert evidence.

This judgment also provides a helpful reminder of the court's duty, as set out in the Crime and Courts Act 2013, when conducting a hearing with a litigant in person. The recommended practice is that litigants in person are sworn at the outset of the hearing, so that their representations can be used as evidence. They should be asked to set out their case, and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and set these out at the beginning or end of the statements they are invited to make.

Applications for permission to apply for a child arrangements order In Re A (A child – Application for leave to apply for a child arrangements order) [2015] EWFC 47, the court was concerned with A, a 9 year old girl. A was conceived by donor insemination with sperm from a known donor. At the time of conception the biological mother was in a same-sex relationship with H. The mother was diagnosed as suffering from serious mental health problems and was detained under s. 3 of the Mental Health Act 1983. A continued to be cared for by H pursuant to a residence order made by consent. H subsequently formed a relationship with M, a female to male

www.familylawweek.co.uk Family Law Week August 2015 - 49 transsexual. H and M then separated. M asserted that he had taken a dominant role in caring for A during their relationship. M applied for permission to make an application for a child arrangements order, which was opposed by the mother, who believed A had suffered whilst being cared for by M.

HHJ Bellamy considered the provision at s. 10(9) Children Act 1989, and Re B (A Child) [2012] EWCA Civ 737 and importantly that the leave provision does not contain a test, only factors for the court to consider. Moreover, whilst the child's welfare was not paramount, it was still relevant.

In granting M permission to make an application for a child arrangements order, the court decided that M had become a psychological parent, and that A would benefit from the extensive range of adult relationships available to A.

29/7/15

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Injuries to Infant with Bone Disorder: latest deliberations of the High Court

Zimran Samuel, barrister, 42 Bedford Row

In Cumbria County Council v Q (Injuries to Infant with Bone Disorder) [2015] EWFC 59 Mr Justice Peter Jackson heard evidence over a 7 day final hearing in a case involving an infant with vitamin D deficiency induced rickets who had suffered multiple fractures, including a skull fracture.

The case, which attracted coverage in the mainstream media, concerned two boys H (aged 5) and O (aged 1). From the outset of the final hearing it was agreed between the parties with the judge's approval that both children should live with their paternal grandparents under the auspices of a special guardianship order.

The live issue for the judge was one of causation arising from injuries sustained by O. O was brought to hospital at the age of 5 months with a fractured skull and three older fractures. The account given was that he had fallen off a sofa. The medical opinion before the court was that this would be a highly unlikely explanation for the skull fracture but for the fact that O may have been suffering from vitamin D deficiency rickets at the time, leading to his bones being more susceptible to fracture.

In summary O sustained the following injuries:

(1) A right linear parietal skull fracture

(2) Associated overlying bruising and soft tissue swelling

(3) A subdural collection in the same area

(4) A transverse fracture of the left distal radius (above the wrist)

(5) Fractures to the 7th and 8th left lateral ribs

(6) A 4mm by 5mm bruise on the low extremity of the anterior surface of the right thigh just above the knee.

The judge noted that in contrast to H, O was not an easy baby. He had feeding difficulties and episodes of choking which led to admissions to hospital.

The local authority contended that the evidence overall supported the conclusion that the injuries to O were inflicted by the mother, by her partner Mr H, or by both of them. The mother and Mr H denied that they knowingly caused any injury to O, but said that if the injuries were inflicted, the other must have been responsible. The children's birth father took a neutral position on this point, as did the children's Guardian.

Mr Justice Jackson considered oral and written evidence from several family members. In addition to nine medical professionals, the judge considered extensive expert medical evidence from several professionals including:

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Ÿ Mr Peter Richards, consultant paediatric neurosurgeon, John Radcliffe Hospital

Ÿ Oxford Professor Stephen Nussey, Professor of Endocrinology, consultant endocrinologist, St George's Hospital Medical School

Ÿ Dr Kathryn Ward, consultant paediatrician, Airedale General Hospital

Ÿ Dr Andrew Watt, consultant paediatric radiologist, Royal Hospital for Sick Children, Glasgow

Ÿ Dr Stavros Stivaros, consultant paediatric neuroradiologist, Royal Manchester Children's Hospital (RMCH)

Ÿ Dr Sarah Dixon, consultant paediatrician, RMCH

Ÿ Professor Zulf Mughal, consultant in paediatric bone disorders, RMCH

Ÿ Professor Sally Kinsey, consultant paediatric haematologist, The Leeds Teaching Hospitals.

Metabolic abnormality Examining the metabolic abnormality, the judge noted the abnormal findings within O's skeletal survey which was characterised by osteopenia, splaying and cupping of the ends of the bones and sclerotic metaphyseal lines.

In relation to the features that suggest partially treated rickets the judge observed:

a. Vitamin D is responsible and necessary for stimulating the placental transfer of calcium and phosphorous to the foetus in order to increase healthy bone formation and stimulate growth. About 80% of the transfer occurs in the third trimester. Following birth, the child becomes entirely dependent on other sources of vitamin D primarily through exposure to sunlight and diet. O was a child who had difficulty feeding from birth. Further support for O having rickets arose from the fact that the mother had recently been diagnosed with vitamin D deficiency during her current pregnancy and, on this occasion, in line with national guidelines, had been prescribed a vitamin D supplement. Despite the 2010 Guidelines from the Royal College of Obstetricians and Gynaecologists, the mother was not provided with a vitamin D supplement when pregnant with O.

b. The radiographs from December 2014 and those from April 2015 (which showed an improvement in the abnormal appearances) were more consistent with a diagnosis of healing rickets than a genetic condition such as a bone dysplasia.

Jackson J concluded that it was likely that O was suffering from a metabolic bone disorder at the time he sustained the fractures to his skull, ribs and radius. It was not possible to be sure of a diagnosis, but on the balance of probabilities it was likely that he was suffering from partially treated vitamin D deficiency rickets. When making this finding the judge noted:

c. A diagnosis of osteogenesis imperfecta had been discounted.

d. The biochemical findings were non-specific in formulating a specific diagnosis.

e. The normal vitamin D test results might be explained if there was a period of adequate vitamin D intake prior to admission on 3rd December.

f. The clinical findings were also non-specific but would support a diagnosis of rickets potentially associated with a past history of intrauterine or subsequent vitamin D deficiency.

g. There was no inherent or underlying haematological disorder present that would dispose O to spontaneous bleeding or bruising or to excessive bleeding or bruising following trauma.

h. None of the presenting injuries were likely to be birth related.

Bone strength Jackson J found that it was likely that the metabolic bone disorder would have reduced generally the tensile strength of O's bones and predisposed him to fracture more easily following trauma. Jackson J stated (para 56.11 - 56.14):

"(11) The exact forces required to break a bone in a child with normal bones are not known. Opinions based on experience of the population as a whole conclude that significant force outside that found in normal handling and childhood mishaps is required. These broad assumptions cannot be applied in the case of a child with a bone disorder.

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(12) It is not possible to quantify the degree by which the tensile strength of O's bones would have been reduced. The radiographs from December 2014 provide a snapshot of the appearances of the bones at that point. It is not possible to say whether at an earlier date the appearances would have been even more marked and the tensile strength of the bones even further reduced, though the trajectory of improvement seen in the May radiographs allows for this possibility.

(13) Notwithstanding the presence of a metabolic bone disorder, some external force would have been required in order to cause the fractures. They would not have occurred spontaneously.

(14) On a spectrum ranging from a child of normal skeletal strength to a child with a severe skeletal fragility, O is likely to have fallen somewhere in the middle. An event which caused him to sustain a fracture would have been a memorable incident of some sort."

Approach to fact-finding After carefully examining the likely mechanism and possible timing of the injuries, it was clear that the medical evidence alone did not mandate any particular conclusion. In a child with normal bone strength, injuries of this kind would be highly unlikely to arise accidentally. The presence of the bone abnormality limited the conclusions that the court could draw from the nature of the injuries. The court however went on to consider other evidence including lies and inconsistencies in the evidence of the mother and Mr H.

In doing so the court underlined the approach to fact-finding set out in the judgment of Mr Justice Baker in Devon County Council v EB and WD and ED, JD and TD [2013] EWHC 968 (Fam) at paragraphs 53 to 64. The burden of proof remains upon the local authority and the standard of proof is the balance of probability.

In this case, where the mother had admitted to telling a number of lies, Jackson J reminded himself of the guidance in R v Lucas [1981] QB 720, [1981] 73 Cr App R 159. People tell lies for many reasons. The fact that they lie about one thing does not mean that they must be lying about everything. The court must take care when drawing inferences and must consider why a particular lie was told.

Conclusions Having considered all the evidence, medical and non-medical, Jackson J reached the following conclusions in relation to O's injuries (para 75.1- 75.3):

"(1) This is an exceptional case. In a child with a normal metabolism the almost inevitable conclusion would be that these fractures, and in particular the broken ribs and wrist, would be likely to be the result of violence or at least of rough handling. Likewise, it would normally be extremely unlikely that such serious injuries as a skull fracture and a subdural haemorrhage would result from such a low fall. Taken together, the medical picture would point strongly to inflicted injury.

(2) However, the fact that O was probably suffering from rickets means that conclusions that might have been drawn in a normal case would be unreliable and unsafe in this case.

(3) None of the injuries is of the kind that is particularly suggestive of inflicted injury."

Whilst noting the volatility within the mother's relationship with Mr H, the judge found that they were not colluding to conceal occasions when they knew injuries were inflicted.

Specific injuries With regard to the specific injuries the judge found (para 75.10):

"I cannot identify with certainty when and how the fractures to the wrist and ribs were caused. I cannot exclude the possibility that they were caused by violent or rough handling, but I do not think it probable. Given O's particular vulnerability and very young age I consider it more likely, indeed probable, that these injuries were caused in another way. They may have been sustained on one of the occasions suggested by the mother and Mr H, or on a similar unrecorded occasion. To take an example, it is entirely possible that some or all of these fractures occurred when H fell on top of O. It is also entirely possible that the rib fractures were caused by Mr H in the stress at the moment when he was trying to prevent O from choking. All these were occasions when O was in real distress. Given his likely bone condition, injuries may have occurred without carers realising.

It is less probable that the fracture to the arm occurred as a result of a medical procedure, but it cannot absolutely be discounted.

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The only candidates for the causation of the head injury are the described fall from the sofa, or an undisclosed accident, negligent or otherwise, or a concealed assault. I cannot exclude the second and third possibilities, but taking account of all the evidence I find that on the balance of probabilities the injury occurred in the manner described by Mr H.

There is no basis upon which I can find that the small bruise to O's knee was an inflicted injury. Although Dr Ward was suspicious, she in the end had to concede that her suspicion was purely speculative."

In conclusion, Jackson J found that the local authority had not proved its case that O's injuries were inflicted injuries. He did however approve the local authority's decision to put the matter fully before the court.

Comment There is no research on the level of force needed for an infant with O's diagnosis to sustain fractures. The judgment of Jackson J draws attention to the complexities and uncertainties within those cases in which children with bone disorders are suspected of being subjected to non-accidental injuries. In this case other welfare issues prevented the court from sanctioning the children's return to their mother. However, there will no doubt be cases in which children with a diagnosis of rickets have been removed from their parents in the context of suspicious fractures. The medical evidence in this uncertain field will be crucial to the determination of the welfare outcome in those exceptional cases.

30/7/15

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Malicious use of intimate images : the problem and some practical and legal remedies

Ariel Ricci, barrister at Coram Chambers, Julie Pinborough, Founder and Director of the Queen Mary Legal Advice Centre and Frances Ridout, Deputy Director of the Queen Mary Legal Advice Centre.

A brave new world Our lives are dominated by smartphones, which change the way we communicate and, importantly, the way we commence, conduct and end relationships. It is commonplace for relationships to form through dating applications and for communication during a relationship (of any level of seriousness) to include taking or sharing photos or videos. The vast majority of people have smartphones that can instantly take high quality digital photographs and videos. Then with a single finger swipe, photos and videos can be shared with an intimate partner, friends, or the public using Twitter, Instagram, WhatsApp and Snapchat to name but a few.

This creates a new dynamic to how friendships and relationships are conducted and increases the scope for abusive, controlling or vengeful behaviour. Lawmakers around the world are scrabbling to play catch-up with technology.

What is "revenge pornography"? Some take issue with the phrase "revenge porn", as it does not fully and accurately reflect the growing problem of sharing sexually explicit images without the subject's consent, often with the aim of causing embarrassment, shame or distress.

The Queen Mary Legal Advice Centre refers to it as SPITE –"Sharing and Publishing Images To Embarrass", although this less shocking phrase has not yet grabbed headlines. The reality is that there is still a category of distribution that is neither for revenge nor for embarrassment but can arise from thoughtlessness, or may be influenced by the desire for control, or by financial motives. Sometimes the images themselves would not, if viewed in a different context, be considered "pornographic". Whilst "revenge porn" is an inaccurate term for this growing problem, it is now a convenient short-hand in common usage.

Sharing intimate images without consent (or threatening to do so) might be done by a current or ex-partner, but there have been reports of image sharing by friends, ex-friends, acquaintances, dates, one-night-stands, or even strangers (if images are obtained by hacking). Intimate photos shared on dating websites between strangers can re-surface years later or innocuous photos can be manipulated and distributed.

In 2014, Israel became the first country to specifically outlaw so-called "revenge porn", followed by Australia, Canada, Japan, New Zealand and a number of American states. England and Wales followed suit and in April 2015, s.33 of the Criminal Justice and Courts Act 2015 came into force, which criminalises "disclosing private sexual photographs and films with intent to cause distress".

The most obvious example is a couple who take or share intimate images. This may start as consensual image sharing with someone they trust, but can later turn sour with an angry ex-partner publishing the images online. Sometimes the images are accompanied by personal information, such as name, address, telephone number, or workplace details and encourage contact from strangers. This might include creation of profiles on social media sites, dating sites, or pornography sites purporting to be the pictured individual, leading to unintentional harassment by unwitting third parties. Another example involves a new 'fake' social media profile being created of the victim; the 'fake' profile invites the victim's friends and family to connect and inadvertently view intimate images and videos.

Another disturbing method includes creating sexually explicit material by photo-shopping someone's face with another person's body and then sharing the new images. Any image is vulnerable to abuse. Troublingly, the new legislation does not cover images that have become sexual by virtue of being combined with other images.

The images might be published to deliberately humiliate or degrade the subject, or to manipulate ("if you do x, I will send this photo to your family"), or to extort money or other favours by blackmail. A number of websites that encouraged posting explicit photographs and demanded payment from the subject for their removal have subsequently been shut down. Recently in America, a 28 year-old was sentenced to 18 years' imprisonment for running a website that charged hundreds of dollars to remove nude images and personal information posted by others.

What is the extent of the problem and upon whom does it impact? The scope for abuse is limitless and its effects can be devastating. It impacts upon both men and women and people of all ages, from secondary school students (the youngest reported victim in the UK was 11) to pensioners. Equally, the issue is

www.familylawweek.co.uk Family Law Week August 2015 - 55 not confined to specific classes or socio-economic backgrounds. The problem is just as prevalent amongst professionals and high powered executives as it is amongst students, the unemployed or low-skilled workers.

In some relationships, there might be a pattern of abuse that includes physical, emotional or sexual abuse. Combined with other forms of abuse, a threat to share images might not be treated as seriously as other abusive behaviour, whether by police, support agencies or the victim. In other scenarios, it might be isolated and be the only abusive behaviour complained of. Provided the individuals are, or have been, intimate partners or family members, this behaviour falls within the definition of "domestic violence" in accordance with Practice Direction 12J as it can constitute "controlling, coercive or threatening behaviour".

Amongst teenagers, images are often quickly and routinely shared and deleted using applications such as WhatsApp or Snapchat. There is an increasing pressure amongst teenagers to prove they are sexually active. It is easy to be pressured into taking photographs (or allowing photographs to be taken) that are shared amongst peers, creating opportunities for a vast network of cyber-bullying. Once viewed and deleted (in the case of Snapchat, images are deleted automatically within seconds), there may not be any remaining evidence of the offending behaviour; nonetheless the emotional damage and humiliation remains. Furthermore, whilst some individuals might think that sending intimate images through Snapchat is "safe" because the images automatically delete; they may not realise that , it is quite possible for the recipient to take a screenshot of the photo or retreive the image and distribute it.

In a criminal case earlier this year, an 18 year old young woman was found guilty of posting footage on Facebook of her best friend having intercourse. The footage was taken during a night out and published after the friends fell out. Due to the ease with which information is shared, many young people do not yet appreciate the consequences of sharing images without consent – this includes the impact on the victim and risk to themselves of a criminal conviction.

Where an individual is married or otherwise in a long-term relationship and is having an affair, a jilted lover may seek to cause maximum damage by sharing images with that person's spouse, partner, employer, friends or family. Similarly, if a partner cheats or otherwise causes hurt, there might be a desire to seek revenge through online humiliation or sharing images with employers or colleagues anonymously.

Young or vulnerable teenagers who have been groomed or been victims of child sexual exploitation may feel unable to seek help or advice out of fear that images taken of them will be shared with friends or families. The scope for manipulation and coercion due to shame, fear and humiliation should not be underestimated. There are cases where photographs taken during periods of childhood abuse are years later distributed (or threatened to be distributed) causing victims to re-live the painful memories and undergo a different variant of abuse.

Because victims will often blame themselves for taking, allowing to be taken, or sharing images, they may feel unable to seek help or support. The problem is likely to be widespread, yet the full extent of it is not yet known or understood.

It is evident that society is yet to view those subjected to revenge pornography as victims. For example, at Glastonbury this year, Kim Kardashian endured the humiliation of an intimate image of a sexual act with an ex-partner being waved on a flag during her husband's performance. This was commonly viewed in a number of media spheres as amusing rather than a criminal offence.

How does it relate to family law? Due to the widespread nature of the issue, it is likely to become pervasive within family law. As a recent example, the case of RC (mother) v AB (father) [2015] EWHC 1693 (Fam) was a private law application for leave to remove from the jurisdiction and the behaviour of the parents was explored.

Amongst other things, it was found that the father arranged for a friend to post on Instagram an explicit and intimate photograph of the mother, accompanied by an offensive message directed to her, ending with the words "bring back my child". He had also led the mother to believe that he might publish an intimate video of them having intercourse taken years earlier. Cobb J found these incidents, amongst others, to be harassing and done deliberately and knowingly to hurt her – he gave leave for his judgment to be disclosed to the Metropolitan Police.

In family proceedings, the issue might arise in the following ways:

• injunctions - applications for non-molestation orders or protection from harassment orders to prevent sharing intimate images, threats to share intimate images, or creating online profiles to impersonate the victim and encourage unwelcome advances by third parties.

• private law proceedings – as part of a fact-finding exercise to determine the extent of controlling, manipulative, or harassing behaviour during a relationship or following separation to the extent that it is relevant to child arrangements.

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• public law proceedings – where vulnerable teenagers or young people are victims of sharing (or threats to share) intimate images or a subject child sharing intimate images and being charged/convicted of a criminal offence.

• financial remedy proceedings – sharing intimate images or posting information on social media platforms can have a direct impact on an individual's current or future employment might become a relevant conduct issue, or the ownership of sexual photographs or videos might become disputed property.

• in any proceedings, allegations may arise of threats to release intimate photos or videos as a means to manipulate or coerce an individual into taking or ceasing a particular course of action.

How does one ensure images/videos are removed? If this arises for a client, their likely first priority will be the removal of the images from public platforms. The National Revenge Porn Helpline has links with online platforms and can provide assistance and advice about getting images removed. Twitter, Facebook, Reddit and a number of other social media sites have banned nude photographs being posted without the subject's permission and have policies for swift removal. Recently, Google announced that it will facilitate swift removal of non-consensual images from internet searches (though they are unable to remove it from the original website), which can be particularly useful to reduce the impact where it is proving difficult to get an image removed from the website directly.

What remedies are available for victims? Victims are advised to take screen shots of the images before removal or deletion to support further action being taken if necessary. Depending on the circumstances, the actions may be a criminal offence and should be reported to the police; however, for immediate protection, it may be appropriate to apply for an injunction.

Non-molestation orders can be applied for if the victim and the perpetrator are "associated persons" or, if not, a protection from harassment order might be an option. The wording of the proposed order will need to reflect the precise behaviour that it is sought to prevent. Simply prohibiting an individual from contacting or harassing an individual is unlikely to be specific enough and thought should be given to the order prohibiting an individual from publishing/sharing personal information, intimate images, or impersonating the victim on online platforms. Orders should be specifically tailored to ensure they clearly prevent the behaviour complained of reoccurring.

If the images were taken by the subject themselves, they may own the image and have remedies (including for injunctions and delivery up) under copyright law. The Queen Mary Legal Advice Centre offers free legal advice and assistance to victims about their legal remedies.

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CASES

Birmingham City Council v Sarfraz Riaz and Others [2015] EWHC 1857 (Fam)

Mr Justice Keehan was concerned with the follow-up decision to Birmingham City Council v Safraz Riaz and others [2014] EWHC 4247 (Fam), when the court concluded that a vulnerable 17 year-old woman, AB, had been a victim of child sexual exploitation ('CSE').

The issue was now whether the reporting restriction order ('RRO') to prevent the identification of AB should continue past her 18th birthday and give her lifelong protection. Birmingham City Council and AB sought a lifelong RRO and the Press Association and Times Newspapers opposed such an order.

AB's Article 8 right to respect for private and family life and the media's Article 10 right of freedom of expression were both engaged. Further, s12(4) of the HRA 1998 requires the court to have particular regard for the importance of the right to freedom of expression.

The case of JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 was noted, when the Court of Appeal considered it appropriate to make an anonymity order in respect of children and protected parties in civil proceedings for settlement approval hearings held in public. Whilst the public undoubtedly have an interest in open justice, the public interest can usually be served without the need for disclosure of the claimant's identity.

The court also noted that there are only three reported decisions in which lifelong anonymity orders were made in favour of adults involved in court proceedings, which were the well-known cases of Thompson and Venables, Mary Bell, and Maxine Carr. It was clear that the granting of lifelong anonymity orders was "truly exceptional".

The court also considered the legislative position, which permits lifelong anonymity to be granted to victims and witnesses in criminal proceedings who are under the age of 18 when the proceedings commence and that anonymity is afforded to all victims of sexual abuse and victims of female genital mutilation in criminal proceedings. Whilst the local authority argued that the same considerations should apply to victims of CSE in civil proceedings, the press argued that the court should be cautious before seeking to fill a lacuna left by Parliament.

Keehan J considered that Parliament has given a high priority to young victims and witnesses in criminal proceedings and to the victims of sexual offences and FGM and that the approach of the courts in the light of JXMX has advanced to protect the Convention rights of litigants in civil proceedings. A lifelong RRO being made in favour of AB would have to be on the basis of the most compelling circumstances.

The court had evidence of AB's social worker and a psychologist about AB's continuing vulnerabilities, her anxiety around media reporting and identification, and the risk of further stress impacting her engagement in services and now her pregnancy.

The local authority expressed concern that other young victims of CSE might be dissuaded from coming forward if they were worried about publicity and identification when they turned 18. On behalf of AB, it was submitted that exceptional circumstances existed which required the protection of lifelong anonymity, including that any reporting would impact her when she should be concentrating on and engaging with assistance about the birth and future planning about her child.

The press organisations stated that a lifelong RRO is unnecessary as the represented press organisations did not intend to publish anything to identify AB without her consent and they were concerned that such an order would be an extraordinary, exceptional and unjustified extension of the court's jurisdiction.

Keehan J accepted the high importance accorded to the principles of open justice and that it is plainly in the public interest for the media to be able to report on proceedings in cases of CSE, as the public have the right to know how local authorities, child protection services, the police and the courts deal with such cases. For this reason, the previous judgment was given in public and the respondents were identified.

However, the judge could not see the public interest in identifying AB as a victim of CSE. If in the future she wishes to make it known that she was a victim of CSE, that must be a matter for her and her alone. Whilst it was accepted that the represented press organisations do not wish to identify AB without her consent, this approach would not bind or reflect the approach of others. The court accepted that publicity about AB as a victim of CSE would be likely to have a serious deleterious effect on her emotional and psychological well-being.

The judge carefully balanced the competing Article 8 and Article 10 rights and concluded that there was no public interest in identifying AB as a victim of CSE and there were compelling reasons why AB's history should confidential and private to her. Therefore, the judge was completely satisfied that the balance was decisively in favour of granting the lifelong RRO sought.

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There is a high public interest in supporting the victims of CSE to come forward and co-operate with authorities. Whilst the issue of lifelong RRO in possible future cases of CSE injunctions will have to be considered on their own merits, there was a real risk that refusing to grant a RRO in this case might deter other young victims of CSE from coming forward.

Summary by Ariel Ricci, barrister, Coram Chambers

AC v SC [2015] EWFC B76

At the FDR, the parties came to an open agreement in relation to some of the issues in the case. The agreement (which was recorded on the face of the order) provided, inter alia, that the husband would pay maintenance including spousal maintenance for 5 years with a bar on extending the term. On the basis of the agreements reached, the Deputy District Judge narrowed down the issues for determination at a final hearing.

At the final hearing (where the husband acted in person), notwithstanding the prior agreement, the District Judge held, inter alia, that he was not in a position to be sure that the wife would become self-sufficient and as a result there should be no term for the spousal maintenance.

The husband's appeal was only in relation to the term of the spousal maintenance payments – he sought an order that the payments cease in 5 years with a bar on extending the term, as per the agreement originally reached at the FDR.

The hearing before HHJ Wildblood QC started as a contested hearing of the application for permission to appeal and of the appeal. After only a few minutes of argument it became clear that permission would have to be given and the appeal allowed on the basis that the District Judge had failed to take into account an essential matter, namely the agreement. Faced with the inevitability of the appeal being allowed, the appeal was compromised with the wife agreeing to a term order with a s.28(1A) bar.

Despite the appeal being compromised, in the circumstances of this case the Judge did not consider it sufficient or correct for the appeal to be merely allowed by consent. The Judge stated that "things went hopelessly awry" at the final hearing. He held that:

• The District Judge had failed to take into account the highly relevant factor that an agreement (held to be a 'contractual agreement' per Thorpe LJ in Rose v Rose [2002] 1 FLR 978) had been reached on the term of the maintenance order and that as a result his analysis of the issue was plainly inadequate. Agreements that are reached within financial remedy proceedings are important and a departure from them has to be explained and justified on substantial grounds. The departure had neither been explained nor justified.

• There had been a failure to receive any evidence about why the agreement had been made and why the court should now depart from it. In particular the wife was not asked about why she had agreed to the 'term' at the FDR but now sought to resile from it.

• The express definition at the FDR of the issues to be litigated at the final hearing had wrongly been ignored when the final hearing took place.

Summary by Oliver Woolley, barrister, 1 Garden Court Family Law Chambers

DN v HN [2014] EWHC 3435 (Fam)

The wife ('W') applied under Part 7 CPR 1998 for a mandatory interlocutory injunction to require a husband ('H') to pay £8.49million (plus interest and fees) to complete the purchase of a property.

Financial remedy proceedings commenced in 2013. One of the principal assets was the FMH (valued at approximately £55million). H wanted to sell the FMH, and W agreed on condition that H would fund the purchase of an alternative home for her and the children ('the Property'). The application before the court concerned the purchase of the Property. W pleaded an agreement made in February 2014 ('the February Agreement') which included provisions that the parties would purchase the Property, that H would pay £10million towards the purchase price, and that the payments H made would be treated as on account payments towards the settlement reached or ordered within the financial remedy proceedings.

A FDR took place in the financial remedy proceedings in June 2014 and W's claims were settled as set out in an exchange of letters between solicitors ('the Xydhias Agreement'). The settlement included that H would pay W a lump sum of £33million with the sum of £10million (paid in respect of the Property purchase) being part of that sum.

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An issue arose as to the form of security to be provided for the balance of a lump sum to be paid. Moylan J considered it clear from the exchanges between the parties that both understood the Xydhias Agreement remained a binding agreement, even if they could not agree the form of security, which would then be determined by the court.

Contracts were exchanged on the Property, but H said he would not provide the monies required for completion of the purchase of the Property until the terms of the financial remedy order were agreed. This appeared to be based on a concern that W had indicated she might seek to renege from the Xydhias Agreement, but the court did not consider H had any rational basis for believing this.

W submitted the application was brought pursuant to private law claims in contract and/or trust, and not under the MCA 1973 or in support of / directly in connection with her financial remedy proceedings. W submitted the February Agreement and the Xydhias Agreement were distinct.

H did not accept that the February Agreement was mutually exclusive to the overall settlement of the financial remedy case. H submitted that the remedy being sought (effectively specific performance) was not open to W because she was seeking to enforce one element of a financial remedy agreement when such agreements were not amenable to enforcement under contract or trust law.

The primary question for Mr Justice Moylan was whether W's application was an attempt by her to enforce one element of a financial remedy agreement made in the course of financial remedy proceedings (if so, it would be bound to fail because normal contractual principles would not apply), or whether it was an application to enforce a distinct agreement. The judge came to the conclusion the February Agreement was a sufficiently distinct agreement. It did not form part of the compromise because when it was reached there had been no compromise of W's financial remedy claims. The subsequent compromise of those claims which incorporated reference to the payment of £10million in part satisfaction of H's overall liability did not in any way undermine that conclusion. Moylan J did not consider the February Agreement so linked to the process leading to the compromise of the financial remedy clams that to enforce it as a contract would undermine the Xydhias principles, or the manner in which parties seek to resolve financial remedy claims.

Moylan J was satisfied to a high degree of assurance that W would establish her right to enforce the February Agreement at trial. When balancing the likely consequences if he did not make the order sought or if he did, Moylan J considered he risked causing a very substantial injustice if he did not make the order because of the likely financial consequences for W and the parties collectively (which included a potential loss of £1.8million by way of CGT and it being very likely the deposit of £1.6million would be forfeited). He did not see that H would suffer any financial prejudice or injustice at all if he made the order sought by W.

Moylan J ordered H to pay the sum required to complete the purchase.

Summary by Victoria Flowers, barrister, Field Court Chambers

Re A (A Child) [2014] EWHC 4836 (Fam)

Introduction Moylan J determined the rehearing of a father's application for direct contact with his daughter ("M") and limited him to indirect contact only. He held that any order for direct contact would not be in M's best interests as it would 'serve to continue the discord and conflict' between the parties in the absence of 'any reasonable or sufficient prospect of direct contact actually taking place'. This, Moylan J concluded, would be detrimental to her welfare.

Background At the outset of his detailed judgment, Moylan J noted that the case had:

"a longer history of court proceedings than any I have encountered during my career as a barrister and a judge."

At the date of judgment (13 June 2014), the mother and father were aged 50 and 62 respectively. They began a relationship in 1991 and M was born in 1999. They separated in 2001.

The mother suffered from long-standing mental and physical health problems. These issues were, on occasion, exacerbated by her abuse of alcohol and/or illicit substances.

The parties had been engaged in continuous proceedings since 2001. The father's case was that not long after M's birth, the mother (aided and abetted by her parents) had consistently sought to prevent him having a meaningful relationship with M. The mother maintained that she wanted M to have a normal relationship with her father.

Over the 6 year period between 2006 and 2012, no fewer than 81 court orders were made. In summary (see paragraphs [14] – [20] of the judgment for a full summary):

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2003 – 2006: This 3 year period was characterised by the mother's resistance to contact resulting in its continued suspension and reinstatement. Multiple court orders were made and numerous CAFCASS reports commissioned.

In 2006, M made allegations that her father had sexually abused her. A five day hearing resulted in a finding that the alleged abuse did not occur. A guardian was appointed for M who observed successful contact with the father on two occasions.

February 2007: An incident occurred at the father's house that resulted in the mother being charged with possession of a bladed article. She was later admitted to a psychiatric hospital and was subject to community and restraining orders. The father was granted a residence order at the end of this month and M lived with him happily until November 2007.

Dr Hall (a chartered clinical psychologist) recommended in September 2007 that M return to her mother's care. This was approved by the guardian.

2008 & early 2009: The mother did not regularly make M available for contact and multiple further hearings were required. A number of the orders made were backed by penal notices.

The mother suspended contact in March 2009 after M returned from contact with a bruise on her leg. The father admitted to having pinched her to stop her from hurting him. The father was charged with common assault. At the trail in November 2009 a District Judge decided that no criminal offence had been committed. After this M's position on contact hardened and she refused to attend unless it was supervised.

February 2010: Dr Hall prepared a further report and advised that M should not be forced to take part in contact sessions against her wishes. This recommendation was adopted by the Guardian and ordered by the court. A s.91(14) order was made to last until October 2012.

The case returned to court shortly thereafter and an order was made for the father to have supervised contact with Core Care. A final hearing was listed and Dr Weir (a consultant psychiatrist) was instructed.

August 2011: An order was made for the father to have unsupervised contact. M failed to attend and the case returned to court in September. The Judge ordered M to go with her father for the day. The next day, the mother brought the matter back before the court complaining that M had suffered distress because of what had happened previously.

October – November 2011: A final hearing took place before HHJ Goldsack QC on 17 October 2011. It was adjourned part-heard until November. Contact was ordered in the interim, but was largely unsuccessful. During this period, a new guardian was also appointed as the previous one had fallen ill. A further s.37 report was ordered. Shortly before the adjourned hearing, the new guardian also developed health problems and HHJ Goldsack QC appointed NYAS as guardian for M. Judgment was given on 9 October 2012.

HHJ Goldsack QC's Judgment HHJ Goldsack QC ordered that contact should be limited to indirect contact only on the basis that 'there is no way at present to enable father to have meaningful [direct] contact with M' as 'she simply will not attend'. In coming to this conclusion he gave 'considerable weight' to M's views which he accepted were her own. He concluded that 'all possible options' had been explored and that the proceedings had become 'a part of the problem' and were 'likely to cause damage, or further damage, to the child concerned'.

The father appealed to the Court of Appeal.

Court of Appeal The Court of Appeal held that the proceedings (taken as a whole) infringed the procedural requirements which formed part of the rights protected by Article 8 ECHR with:

"...the result that family life rights of M and her father to have an effective relationship with one another have been violated."

Giving the lead judgment, McFarlane LJ held that:

"No facts have been established to support a finding that, in terms of Article 8(2), it was necessary or proportionate to refuse contact to protect the health or the right or freedoms of others."

In particular, McFarlane LJ was critical of the trial judge's failure to explain why he had placed so much emphasis on M's views in making his welfare decision - despite the warning of the expert:

"In this regard, given that he was basing his decision very much on M's wishes and feelings, it was also incumbent on the judge to face up to Dr Weir's clear evidence that M's views should not be used as a principal basis for decision-making and explaining why he was disagreeing with the expert on this key point."

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McFarlane LJ also harboured concerns about what he called 'deficits in the judge's analysis'. He considered that a number of the judge's core findings were incompatible with one another – namely that:

a. He did not accept M's stated reasons for her wishes and feelings;

b. The mother's hostility towards the father had influenced M; but

c. M's views were her own.

In the absence of any explanation of how these apparently incompatible findings were to be reconciled, McFarlane LJ found that the trial judge had not exercised his discretion appropriately.

In conclusion, McFarlane LJ held that he was:

"…sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Article 8 rights of both M and her father and also by the deficits in the judge's analysis which I have now identified, to conclude in the words of CPR 52.11(3), that the outcome is 'unjust because of a serious procedural or other irregularity'."

Re-hearing The re-hearing was listed before Moylan J. There were 3 directions hearings at which the following was ordered:

i. FPR r 16.6 was satisfied and M was hence competent to be separately represented and to conduct proceedings without a guardian or litigation friend;

ii. However, CAFCASS were to appoint a guardian – not for the purpose of representing M, but to provide the Judge with independent advice in relation to what orders would promote M's welfare;

iii. An expert (Dr Berelowitz) was directed to produce a further expert's report (in place of Dr Weir who had by this time retired); and

iv. The costs of this report were to be met by the Legal Aid Agency given the history of the proceedings and the Court of Appeal's findings.

Historic evidence In the first part of his judgment, Moylan J reviewed the historic expert evidence which he considered 'provides the framework' for his decision. In particular, Moylan J highlighted:

i. the mother's long history of significant mental health problems;

ii. the impact of these difficulties on her ability to care for M and on her relationship with the father;

iii. the strength of M's attachment to her mother;

iv. the weight given to M's wishes and feelings; and v. M's increasing resistance to contact with her father.

In his specific review of Dr Weir's written evidence, Moylan J commented that he was 'robustly critical of the mother and expressed his concern for M's welfare'. He noted that, in Dr Weir's opinion, 'M's expressed wishes and feelings were not true but were a screen to protect her from feeling disloyal to her mother'. Finally, Moylan J sets out the paragraph from the last of Dr Weir's reports where he expresses the opinion that:

"…the passage of time, the concurrent increase in M's age and the lack of contact are relevant, as all make it less likely that a resumption of contact can be achieved without M's co-operation."

Evidence at the hearing

Dr Berelowitz Moylan J dealt with Dr Berelowitz's evidence at some length considering it of 'particular significance' to his decision. He summarised Dr Berelowitz's evidence thus:

"…he says that there are a number of factors present in this case which make it impossible for M to enjoy a relationship with her father…With regret, Dr Berelowitz has concluded that, in this case, he can identify no solution. In his opinion, it is 'almost certainly impossible to rebuild something here'. He cannot see direct contact happening."

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The factors which in Dr Berelowitz's view delivered a 'knock-out blow' to contact successfully taking place were:

a. the level of discord to which M had been exposed;

b. the mother's opposition to contact;

c. the mother's view that the father must have done something sexually inappropriate to M in 2006; and that

d. M's views were now likely to be her own.

The guardian The guardian recommended that no order for direct contact was made. Her evidence was that such an order would be unworkable in the face of M's resistance. Any order made would not ensure that direct contact occurred, but would instead simply 'perpetuate the conflict and uncertainty for M'. She too expressed the view that M's wishes and feelings were now likely to be her own.

M M's position at the hearing was that she did not want any direct contact with her father. Moylan J observed that if an order for contact were made, she would not go.

Moylan J's Judgment Moylan J made the following findings:

a. there was no real prospect of direct contact being established under a court order sufficient to counteract or overwhelm the factors which were causing M harm;

b. whilst M was living with her mother, she would not be able to develop, or sustain, a proper relationship with her father. It would be too emotionally difficult for her to do so;

c. the views being expressed by M were now her own;

d. the fact that she had enjoyed contact in the past did not reflect the current position;

e. it was inevitable that if an order for direct contact were made, M would refuse to attend;

f. if enforcement proceedings were commenced, M would consider these the responsibility of her father and would 'dig her heels in'; and

g. the obstacles to direct contact taking place were hence 'insuperable'.

On this basis, Moylan J held that:

"…I consider the only order which is consistent with M's welfare is an order for indirect contact. It would not, in my view, be in M's best interests for me to make an order for direct contact. This would serve merely to continue the discord and conflict without any reasonable or sufficient prospect of direct contact actually taking place and would be detrimental to her welfare."

Moylan J hence confined his order to indirect contact only. He considered that such an order was:

"…a necessary and proportionate interference with the right which M and her father have to enjoy a proper family relationship. It is necessary and proportionate because an order for direct contact would be detrimental to her welfare and more detrimental than the consequences of my making no such order."

Summary by Joshua Viney, barrister, 1 Hare Court

K v D (Parental Conflict) [2015] EWFC 49

This was the final hearing in private law Children Act proceedings concerning two children, J and E, aged 12 and 10. The case is characterised by a number of unusual features, including the level of acrimony between the parents, described by the judge throughout the judgment but in particular in his summary of the evidence of the CAFCASS Officer in the case. She described both parents as being "intent on destroying each other" and stated that "the ante is being upped ever 5 minutes" (para. 5).

The Children Act proceedings took place against a backdrop of equally acrimonious, and extremely costly, financial remedy proceedings which are still ongoing. The judge takes the unusual step of commenting on some of the family's

www.familylawweek.co.uk Family Law Week August 2015 - 63 financial arrangements (including the fact that although the family is "100% British it has no intention of paying tax here" (para. 7)) and the exceptionally high legal costs that both parties had incurred in both sets of proceedings.

The father is resident in Dubai and had formed a new relationship and had a third child, about whom he had never spoken to the children who were subject to these proceedings.

A further unusual feature of this case is that the mother had commenced a relationship with her solicitor (whose name and firm are redacted from the published judgment) shortly after she instructed him. As the father had defaulted on the order for maintenance made at an interim hearing in the financial proceedings, the mother had not paid any of her legal fees and her solicitor had, in fact, been providing financial support to her and the children. The solicitor had referred himself to the SRA, and the father's solicitors had also referred him.

The judge also gives several instances of dates on which the father had hoped or expected to spend time with the children but the mother and her solicitor had made alternative arrangements. The solicitor had also employed a private detective to follow the father, and the mother, her solicitor and the detective had dined together the night before the mother gave evidence in the final hearing.

In the judgment, Peter Jackson J makes findings in relation to two incidents of domestic violence perpetrated by the father against the mother (one in 2012 and one in 2013).

The CAFCASS evidence was that the children were resilient but vulnerable because of the tension between the parents and found transitioning between them difficult. They wanted to see their father (although J's expressed wish was that he did not) but the circumstances had made them anxious about doing so. They were particularly anxious about the violence perpetrated by the father and about their mother's financial situation, for which they blamed their father. There was no evidence that the father intended to remove them from the jurisdiction. The recommendation was that they should live with their mother and spend time with their father but without this involving any foreign travel for the time being to allow for a period of 'healing'.

The judgment is also critical of the father for leaving the mother and the children in a situation in which they were struggling financially. The children were aware that their school fees had not been paid. He is also criticised for not having been apologetic for certain aspects of his behaviour in the financial and Children Act matters.

The mother is also criticised for withdrawing her cooperation with supporting the children's relationship with their father and for allowing them to become too involved in the parental dispute. She is described as having become 'proprietorial' about the children.

Having applied the welfare checklist, the judge makes an order that the children live with their mother and spend time with their father in line with the recommendations of CAFCASS, but taking into account the practical limitations of the father's circumstances which limit his ability to have face to face contact with the children in this jurisdiction. He also orders both parents to attend a Separated Parents Information Programme, makes a family assistance order, and prohibits both from removing the children from the jurisdiction for a 12-month period without the permission of the other parent. The mother's application for all of the father's contact to be supervised is dismissed.

The judgment ends with the judge offering firm words of advice about the impact of the financial proceedings on the children and about the propriety, in the circumstances of this case, of the solicitor continuing to act for the mother whilst they remain in a relationship.

Summary by Sally Gore, barrister, Fenners Chambers

Prest v Prest [2015] EWCA 714

Facts The parties, who had four teenage children, separated in 2008 after 15 years of marriage. At the conclusion of the financial remedy proceedings, Moylan J found that the husband was, conservatively, worth £37.5m. The final order, made in November 2011, provided that:

(a) the husband was to pay a lump sum (by way or property transfer) to the wife of £17.5m; and

(b) pending discharge of the lump sum, the husband was to pay periodical payments at the rate of 2% per annum on the amount outstanding in relation to the lump sum.

On 29 July 2015, Mr Justice Moylan granted a judgments summons brought by the wife under s5 of the Debtors Act 1869, alleging non-payment of arrears. The judge imposed a penalty of 4 weeks imprisonment, but suspended that term provided that the husband paid the arrears within 3 months. The husband appealed.

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Judgment summons: the legal context The case of Mubarak v Mubarak [2001] 1 FLR 698 identified the difficulties involved in adapting the judgment summons procedure to the requirements of the ECHR. As a consequence of the decision in Mubarak the relevant court rules were amended, and are now set out in FPR 2010, r33.14.

The Court of Appeal was taken to three authorities which discussed the judgment summons process subsequent to its amendment: Zuk v Zuk [2012] EWCA Civ 1871; Bhura v Bhura [2012] EWHC 3633 (Fam); and Mohan v Mohan [2013] EWCA Civ 586. Lord Justice McFarlane was clear that "[e]ach of these authorities contain dicta which, with respect, I consider should be treated with a substantial degree of caution."

McFarlane LJ continued:

"[M]y reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to the wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a 'burden' on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation."

While McFarlane LJ described the aim of the judges in those reported cases as laudable, he reminded himself that the judgment summons process may result in the respondent serving a term of imprisonment. The following requirements must be satisfied:

(a) The fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b) The fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due, must also be proved to the criminal standard;

(c) The burden of proof is at all times on the applicant; and

(d) The respondent cannot be compelled to give evidence.

The appeal Notwithstanding his observations on the legal context, Lord Justice McFarlane rejected each of the husband's six grounds of appeal:

1. The judge's decision to refuse and adjournment, so as to further investigate the husband's ill-health, did not deny him a fair trial. It was a case management decision for the judge, who approached the matter properly, considered the material, heard oral submissions and allowed a renewal of the application late when fresh evidence became available.

2. The fact that the same judge had previously conducted a fact finding process as to the husband's finances (based on the civil standard of proof) did not create a real risk, or even a real perception of risk, that the judge would take improper account of those previous findings.

3. Moylan J did not take account of those previous findings, nor did he apply the incorrect standard of proof. The structure of the judgement drew a clear distinction between those previous findings, which were confined to the section of the judgment entitled 'Background', and the later section headed 'Evidence'.

4. There was no evidence that the wife had acquiesced or encouraged the husband to pay certain outgoings rather than honour his maintenance obligations under the order. It was not acceptable for the husband persistently to fail to discharge his responsibility under a court order, whilst at the same time choosing to make payments on his own terms. If the court were to condone such conduct, it might substantially undermine the authority and reliability of such orders.

5. The fact that the husband's application to vary the periodical payments order remained outstanding was not a factor that should have impeded the judge from proceeding with the judgment summons.

6. The four-week prison sentence was not excessive when viewed against a backdrop of a default in payment of £320,000.

Summary by Thomas Harvey, barrister, 1 Hare Court

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Re R (A Child) [2015] EWCA Civ 674

The father sought to appeal a determination of Hayden J made in public law proceedings that the child, S, had been habitually resident in England and Wales throughout her life. S was born in 2010 in Morocco to an American mother, who had lived in England since the age of 13, and a Moroccan father. Shortly, after her birth, the mother travelled to England and fraudulently registered the birth in Kent. Thereafter, she returned to Morocco with S for periods of time.

In reaching his conclusion based on the premise that S's habitual residence was dependent on her mother's, Hayden J analysed the evidence of the parties during a four day fact-finding hearing. The advocates agreed that the fact-finding hearing itself had been a most difficult exercise. The judge found that both parents had been "plainly dishonest" at times during their evidence.

In relation to the mother, Hayden J found that having left England in 2006 she did not lose her habitual residence here. The mother had led a peripatetic lifestyle and had not integrated in Morocco. She regarded the UK as home. No party had sought to argue that the child was not habitually resident in Morocco in 2013 when the mother removed her from there. However, Hayden J found that she had been habitually resident in England throughout her life.

In seeking to appeal Hayden J's decision, the father argued that:

"1. The judge's finding that the mother and child were, and had at all times been, habitually residence in the UK was manifestly contrary to the weight of the evidence and "perverse".

2. The judge's finding as to habitual residence was contrary to any recognised authority.

3. The judge, in his summary of the case, misstated the position of the mother and of the Children's Guardian."

At the hearing, the father's representatives had accepted that ground 3 took the matter no further. The principal contention was that the judge had failed "to consider the daily reality for the child and, in this case, to ask the question "what was the daily reality for S in particular, in the period March 2013 to October 2013 when she was received into public care?"". The father submitted "that it was simply not possible to hold that "in all ways and everywhere" S was "at all times" habitually resident in England and Wales. Such a conclusion, submitted Mr Feehan, was absurd."

The mother and the Guardian argued that the conclusions reached by the judge were open to him on the facts of the case as he found them to be.

McFarlane LJ, delivering the judgment of the Court of Appeal, recorded a number of passages relating to the facts as well as the summary of the law set out in Hayden J's judgment. His Lordship was critical of the scope of the finding made by Hayden J that the child had been habitually resident in England and Wales throughout her life, when all that was necessary for the purposes of the proceedings was a finding that the child was habitually relevant in this jurisdiction at the relevant time. McFarlane LJ states that in a case such as this where the mother (with the child) had led a peripatetic lifestyle and the evidence could have justified a finding that the child was habitually resident in this jurisdiction at the relevant time, the wide-ranging finding made prevents the Appeal Court from taking the alternative route. Thus, if the judge was wrong the matter would have to be remitted for determination.

On the evidence, the key question was whether the mother had lost her habitual residence in this jurisdiction between November 2011 and March 2013. The court was not persuaded that the further question of S's actual integration in England after her arrival in March 2013 fell to be given serious consideration on the facts of this case.

In dismissing the father's main argument, McFarlane LJ states that:

"When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The 'social and family environment' into which a child might be integrated may include both positive and negative factors. These will not be irrelevant."

In this case, where the child's habitual residence was dependent on the mother's, the court was entitled to focus the factual enquiry on the mother. Further, the fact that no party had sought to argue against the child's habitual residence being fixed in Morocco prior to November 2013, did not preclude the court from reaching a different conclusion on the facts.

Whilst the headline points of this case, at least at first blush, would make it "hard to see how an individual who has not lived permanently in the UK since 2006, and who returns in 2013 without any fixed or permanent abode, can be said to have been habitually resident here throughout that period. Equally, the conclusion that a young child who has only visited the UK for short periods prior to March 2013 was, in fact, habitually resident here 'throughout her life' is, if looked at on the same headline basis, hard to accept. But to approach this case simply in headline terms is to miss the subtlety of, and the complications within, the evidence."

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When paying regard to the underlying details of this case and full respect is afforded to the substantial advantage that Hayden J as the trial judge had in this complicated case, his conclusion that the mother had retained her habitual residence in England and Wales cannot be said to be perverse. Hayden J's decision was upheld.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

JB v MB [2015] EWHC 1846 (Fam)

H was aged 52 and W 50. They began living together in 1990, married in 1997 and separated in late 2006/early 2007. There were 2 children of the marriage, aged 16 and 13. W petitioned for divorce in 2011 but did not, at that time, apply for financial remedies, and H in due course commenced financial proceedings in December 2013.

The principal asset in the case was H's 70% shareholding in a company, Z Ltd. The company had, at a directions hearing on 30th March 2015, applied to intervene in the proceedings. Mostyn J dismissed that application, noting that the purpose of FPR r.9.26B(1)(a) had not been simply to enable a third party to put themselves on a better footing to advocate its point of view. That could, Mostyn J held, be done by the husband and witnesses from the company. Mostyn J did, however, permit Counsel on behalf of the company to attend the final hearing "so that [counsel for the husband] can be prodded if [counsel for the company does] not think that he is saying the right things."

H was a systems analyst by training and, the year before the parties began their cohabitation, set up the enterprise which was to become Z Ltd with two other shareholders. The company originally developed insurance administration systems, and then in 1995 developed the first website on which users could purchase motor insurance in real time. At the point at which the parties separated, H's 70% shareholding in the company was, according to the instructed single joint expert ("SJE"), Mr Dodge, worth £1.9m pre-tax. It had an annual turnover of £1.8m with profit of £477K.

From about 2010, however, the progress of Z Ltd increased rapidly on the back of H's creation of a specific product for the insurance industry. By the time of trial, H's shareholding in the company was, according to the SJE, worth between £7.4m and £8.5m, net of tax. H and the other shareholders' evidence was that, since February 2011, the company had a strategy of reducing dividends paid in order to invest its current profits year by year into research and development, to make the company a more valuable commodity with a view to eventual sale.

W had worked as a PA when the parties met and by 1997 was earning £30K per annum. She ceased working after the elder child was born and did not return to work until after the parties' separation, when she found work as a school receptionist, earning just over £1K per month.

The final hearing of W's application for financial remedies came before Nicholas Cusworth QC, sitting as a Deputy High Court Judge. He had to consider the extent to which H's shareholding in Z Ltd could fairly be said to fall outside the matrimonial assets.

Nicholas Cusworth QC provided (at paragraphs 11 to 21) a summary of the recent case law relating to the issue of post-separation accruals and particularly post-separation increases in the values of assets which were held by one party but at the time of separation were matrimonial in nature, including the cases of N v F [2011] EWHC 586 (Fam), K v L [2011] EWCA Civ 550, Rossi v Rossi [2006] EWHC 1482 and Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) and noted the tension between those decisions where a precise differentiation between the matrimonial and non-matrimonial assets is employed, and those which involve the court adopting a more "intuitive" approach.

Nicholas Cusworth QC noted that H's shareholding had been held originally as a matrimonial asset but his post-separation efforts and inspiration had added significant value. Nicholas Cusworth QC quoted the dicta of Mostyn J in JL v SL (no. 2) [2015] EWHC 360 (Fam), where he said:

"41. …for those assets which were in place at the point of separation. They remain matrimonial property but the increase in value achieved in the period of separation may be unequally divided. I emphasise may. Obviously passive growth will not be shared other than equally, and there will be cases where on the facts even active growth will be equally shared...

42. On the other hand there will be cases where the post-separation accrual relates to a truly new venture which has no connection to the marital partnership or to the assets of the partnership. In such a case the post-separation accrual should be designated as non-matrimonial property and save in a very rare case should not be shared."

In this case it was held that there had been a greater degree of "continuum" than H had admitted, that re-investment of the post-2011 profits into the company had to be treated as having included W's share in those profits, and the delay between the parties' separation and the instigation of proceedings had in part, been orchestrated and sanctioned by H in order to enable him to trade with the full value of the shareholding which was an undivided matrimonial asset. However, W's award needed to reflect the fact that the increase in the value of the shareholding post-separation had been unmatched economic endeavour by H over a number of years, as opposed to only or even largely passive growth.

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Both sides argued that the court should award a simple percentage figure to express W's interest in the current value of the shareholding, and Nicholas Cusworth QC accepted that the court had to perform an exercise in "lawless science". He attributed to W 20% of the value in the shareholding – 5% less than she had argued for and 10% more than H had argued for. In addition to her share in other matrimonial assets, W's award based on the "sharing" principle therefore came to some £2.336m (see paragraphs 43 to 47), which was just short of 25% of the total asset pot in the case.

Nicholas Cusworth QC then considered whether such sum would meet W's needs, based on the figures she provided for income and capital needs (see paragraphs 48 to 51) and he considered that it did. A sum equivalent to the value of 20% of H's shareholding in Z Ltd would be paid to W upon the company's eventual sale. The sale was envisaged to take place within 4 years, but the court noted that there would have to be liberty to apply in respect of the timing of the payment in the event that the company was not sold in that timeframe).

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers

Re S (A Child) [2015] EWCA Civ 649

This was an appeal against an order of HHJ Oliver granting an adoption order in respect of the child S to a step-father and terminating the child's contact with his father. There were cross-applications before HHJ Oliver: the step-father seeking an adoption order and the father seeking direct contact.

The father had last seen S in 2008. The mother married the child's step-father in that year. In 2010 there was a recommendation for direct contact. The father's application for contact had been issued on 12 December 2010, and he attempted to pursue his application through three different county courts. The delay was caused in part by the need to search for the mother's address and her non-attendance at hearings. By 2013, a CAFCASS officer had recommended indirect contact. S's reaction to indirect contact was "something not far short from antagonism". The issue of whether the child had been alienated from the father by the mother had not been determined.

At a case management hearing, HHJ Oliver determined an application for separate representation of the child. The advocates at the hearing had erroneously proceeded on the basis that the same test for joinder applied under the father's application for contact and the step-father's application for an adoption order. The judge determined that separate representation was not required as the parents would give evidence about the matters in dispute. The father's solicitors soon informed the court that under Part 14, FPR 2010 the child was an automatic party to the step-father's free standing adoption application. At a further case management hearing convened to consider the procedural error, the judge removed the child as a party to the proceedings.

Ryder LJ, delivering the judgment of the Court of Appeal, considered that in removing the child as a party, the court had elided the two tests: FPR 16, which provides for discretionary joinder and FPR 14, pursuant to which joinder is automatic unless the court is satisfied that it is not necessary. Ryder LJ states as follows:

"…That was wrong with the consequence that the protections afforded to the child by being a party to adoption proceedings were removed despite the proceedings involving a proposal for a fundamental change in the child's status i.e. the removal of the father's parental responsibility by adoption."

There were extensive negotiations between the parties which led to purported consent orders being submitted to the court and retracted. This also led to a fragmented and rushed final hearing at which the Family Court Adviser who reported on contact was sent away having given some evidence. The FCA had recommended indirect contact between the father and the child. By agreement, the mother and step-father were not cross-examined. The judge relied on the assessment of the Slough Borough Council's social worker who reported in relation to the application for adoption, and who gave evidence. The social worker was a colleague of the mother prior to and during the assessment. A real issue arose about the perception of bias. The local authority had instructed an independent social worker to assess the step-father, but used the mother's colleague in assessing the father.

Ryder LJ considered that the social worker's report was a quality piece of work. However, it contained an omission, "…namely whether and to what extent the history of the case demonstrated that the father had been alienated from S and, if so, was that by the alleged conduct of the mother".

Ryder LJ considered that the judge permitted a procedure that was flawed and irregular to the extent that it was unfair, for the following reasons:

"… because a) the court was misled about the involvement of the child and his representation in the adoption application and, given the issues in question namely adoption with no contact, it was inadvisable at the very least to discharge the child's guardian and remove the child as a party: it removed the child's voice from the process; b) the limitation in the oral evidence that was heard, albeit caused by an agreement between the parties that cannot have been right, created a procedure within which the father's case was not put in any sufficient way, if at all, so that the process was unfair; c) the evidence of the local authority social worker while apparently coherent and professional, did not deal with the issues of history relating to the mother and was compiled by a professional

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colleague of the mother so as to give rise to an unacceptable perception of bias; and d) the court did not deal with the significant issues of fact that had arisen about why contact had not occurred in the past and why the child' mother had not engaged with the previous proceedings."

The matter was remitted for hearing outside of the family justice area concerned.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

WW v HW [2015] EWHC 1844 (Fam)

The High Court was concerned, in this case, with an application made by H under the MCA 1973 against W, his former wife. The background to this application was a pre-nuptial agreement signed by H and W on 13 June 2002, following signature of which the parties married on 4 July 2002. The pre-nuptial agreement had been proposed by W in light of her significant inheritance, which was valued at £27m at the date of the judgment.

Towards this end, both parties agreed fully and frankly to disclose their financial circumstances. W disclosed assets of over £16m (with further inheritance prospects) and income. H purported to disclose his financial circumstances as follows: his share in the parties' home (put at 10%), £600,000 in cash, £580,000 in business assets and income (which included £80,000 in royalties). H was neither forced to sign the agreement nor did so without the benefit of legal advice.

Nicholas Cusworth QC, sitting as a Deputy High Court Judge, found that H had disclosed "untrue" income figures, vastly overstating his income with the intention "deliberately to mislead" W as to his financial status in order ensure their marriage would proceed. The judge found that H had further sought improperly to fix W with sole liability for unpaid tax and HMRC penalties in respect of a joint decision taken by H and W as to the treatment of a commission earned by W and paid to H's company for tax minimisation purposes.

Taking into account the decision of Radmacher v Granatino [2010] UKSC 42 and the judge's preference for W's evidence to that of H, the court was left to consider how the fact of the parties' pre-nuptial agreement impacted on the exercise of the court's discretion under the MCA 1973. Placing particular weight on H's conduct as detailed above, the judge found that all factors identified in Radmacher militated in this case in favour of the agreement being given effect and of significant weight being attached to it.

The judge went on to find that it would be fair to hold H to the terms of the pre-nuptial agreement unless his needs dictated a different outcome. The judge stated that the level at which a party's needs should be assessed, if not met by an agreement which might otherwise be binding on them, depended on all the circumstances of the case but amongst which the agreement "may feature prominently as a depressing factor".

On these facts, the judge granted H a housing fund of £1.7m, subject to terms of the pre-nuptial agreement providing for a lifetime grant and reversion of the property to W's estate following H's death. The parties were also found to have acquired all property jointly and in accordance with the terms of the pre nuptial agreement. The judge finally held that a one off balancing payment of £215,000, taking into account H's conduct, would be sufficient for the purposes of H's income in all the circumstances.

Summary by Anita Rao, barrister, Field Court Chambers

Re L (A Child) (Jurisdiction: Private Fostering) [2015] EWHC 1617 (Fam)

Russell J was concerned with jurisdiction in public law proceedings in respect of L, an 8 year old Romanian girl. L lived in Romania all her life until she came to live in England with the Vs by agreement with her father (her sole surviving parent), though he later withdrew his consent. The father asserted that L was habitually resident in Romania and also sought a transfer of the proceedings under Article 15 of Brussels IIR.

In 2013, L's father placed her in the care of the Vs and signed a declaration allowing them to bring her to the UK for at least 12 months. The Vs informed the local authority that L was living with them because her mother died and her father could not care for her. During a statutory assessment, it came to light that L's older sisters made allegations that their father sexually abused L and her sisters in Romania.

Some months later, after the father had been informed of the investigations, the father travelled to the UK and tried to remove L from the Vs care. The police were called and L was taken into police protection and shortly thereafter, the father returned to Romania. L was placed with the Vs under an ICO after it became apparent that L wanted to remain with them and did not want to return to Romania.

Habitual residence Ms Justice Russell summarised the case law in respect of habitual residence, with reference to:

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• C v M Case C-376/14 PPU – habitual residence is a factual test that takes account of all the circumstances of the case

• A v A & Another (Children: Habitual Residence) [2013] UKSC 60 – habitual residence is "the place which reflects some degree of integration by the child in a social and family environment"

• Mercredi v Chaffe [2012] Fam 22 – the environment of a young child is determined by the reference persons that are looking after a child

• Re LC (Reunite-International Child Abduction Centre Intervening) [2014] 1 FLR 1486 – the child's perception of her circumstances is relevant to the facts of integration

When proceedings commenced, L had been living with the Vs for over a year. The court had, by virtue of the private fostering assessment, a detailed account of L's circumstances. She attended and enjoyed school and church and had friends. She had a mutually affectionate relationship with the Vs, wanted to remain in their care, identifies herself as living with them and considered them her "parents". There was a large degree of integration of L into the social and family environment of the V family in this jurisdiction.

Although the father initially agreed to L living in England with the Vs, he had later changed his mind; however, this did not alter the degree of integration of L into her own social and family environment. Following the father's return to Romania, there was difficulty in locating and communicating with him and it was several months later that he sought to challenge L's habitual residence. This lack of action could be seen as abandonment.

Russell J concluded that L was habitually resident in England and therefore the Family Court has jurisdiction to make decisions about her future welfare.

Article 15 transfer The court referred to the three stage test for Article 15 transfers as set out in AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517. It was noted that the Romanian authorities had not made any application for a transfer.

Whilst L has a particular connection with Romania, the Romanian courts would not be better placed to hear the case. Although the alleged sexual abuse that formed part of the local authority's case took place in Romania, a number of relevant witnesses were in this country, including L, Mrs V and the social worker. With witnesses in both jurisdictions, either jurisdiction created some practical difficulties. However, based on the evidence currently available, the case could more easily be heard in England.

Finally, a transfer is not in L's best interests. This would cause delay and it was not clear where L would go in the interim. She could not be placed with her father, who is alleged to have seriously sexually abused her. There was nowhere identified to receive L and no-one that could care for her whilst the Romanian authorities picked up the case and commenced proceedings. The court declined to transfer the case as this would not be in the child's best interests.

Summary by Ariel Ricci, barrister, Coram Chambers

Re A and B (Children) (Surrogacy: Parental Orders: Time Limits) [2015] EWHC 911 (Fam)

The subject children were born following gestational surrogacy agreements entered into in the USA in 2006 and 2008. The applicants, having sought legal advice in the USA, complied with all requirements in that country and orders were made confirming that they were the legal parents of both children. British passports were obtained for the children and the applicants travelled to the UK with the children. The applicants stated that they were not aware of the need to apply for orders in the UK to ensure they had the same legal parental status as they had obtained in the USA.

In 2012, having read an article in a newspaper, the applicants realised that in this jurisdiction they were not the legal parents of the children and accordingly sought advice. They initially made applications for adoption orders, having been informed that they had exceeded the six month time limit to make an application for parental orders under s.54(3) Human Fertilisation and Embryology Act 2008 ("HFEA 2008"). Following The President of the Family Division's decision in Re X [2014] EWHC 3135 that the time limit was a directive rather than a mandatory deadline and that the court had the power to extend it where the facts demanded, the applicants were given permission to apply for parental orders.

The gestational surrogate and her husband, as respondents, took no part in the proceedings save to confirm that they supported the making of parental orders. The children were joined as parties and their Guardian strongly supported the making of parental orders as opposed to adoption orders.

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Ms Justice Russell found at the outset that all requirements within HFEA 2008 were met save for s.54(3) and s.54(8). In considering s.54(8) and whether retrospective authorisation of payments made should be granted, Ms Justice Russell referred to case law, and reminded herself that when a child's welfare demands a parental order is made, it can only be refused on public policy grounds. She did not consider that any public policy reasons applied in this case and ultimately granted such retrospective authorisation of payments.

Ms Justice Russell then considered s.54(3) and the six month time limit. She considered whether it was right in this case that the principle in Re X [2014] be followed. She also considered that she must weigh public policy concerns against the welfare of the subject children. In light of case law in relation to s.54(8) Ms Justice Russell considered that the paramountcy principle of the children's welfare must be applied unless the case was one of a clear abuse of public policy.

It was accepted that the sole reason the applicants did not apply within the six month time limit was because they did not realise that the legal parental status obtained in the USA was not recognised in the UK. Ms Justice Russell also accepted that the applicants only became aware of this fact in 2012 upon reading a newspaper article.

Consideration was given as to whether parental orders or adoption orders were the appropriate form of order to be made in this case. Ms Justice Russell accepted that a number of the consequences of both orders were the same. However, she considered that there were important and significant differences. Only parental orders fully recognised the children's identity as the applicants' natural children rather than giving them an artificial status of adopted children. In this case the children's biological father was the applicant father and the applicant mother played a full part in the process of their conception, having selected the egg donor. These were considered to be fundamental aspects of their identity which would not be reflected in adoption orders. Ms Justice Russell further considered that an important aspect of parental orders was the ability to register the births in the UK as opposed to adoption certificates only.

Ms Justice Russell concluded that although the time that had elapsed far exceeded the six month time limit provided for in s.54(3), parental orders best fitted the children's needs and welfare throughout their lives, both retrospectively as well as for the future.

Accordingly, parental orders were made.

Summary by Laura McMullan, barrister, Coram Chambers

Derby City Council v SK and Others [2015] EWFC 57

All three children had been subject to care proceedings in Poland, which had concluded under final orders by which a Guardian was appointed in order to supervise the mother's exercise of her parental responsibility. The mother had then left Poland with the children and relocated to England in 2014. The father of the youngest child had already relocated to England; his parental responsibility had been suspended by the Polish courts. The fathers of the elder two children had had their parental responsibility removed by the Polish courts and their whereabouts were unknown.

The local authority issued care proceedings in March 2015. The matter was listed before Mr Justice Keehan in order to determine jurisdiction, namely:

Ÿ Whether there were ongoing proceedings relating to parental responsibility in Poland, which would consequently mean that the Polish court maintained jurisdiction as the court first seized, pursuant to Article 19 of BIIa;

Ÿ Whether the mother had removed the children from Poland and/or retained them within this jurisdiction in breach of the custody rights of any person or body, thereby making the removal/retention unlawful;

Ÿ Whether any person or body with rights of custody had acquiesced in the removal/retention;

Ÿ Whether the children had acquired habitual residence in England, thus giving the Court jurisdiction pursuant to Article 8 BIIa;

Ÿ Whether, in the event of no habitual residence being discerned, the Court could acquire jurisdiction pursuant to Article 13 BIIa.

Mr Justice Keehan found that, upon the information provided by the Polish courts, there were no ongoing proceedings relating to parental responsibility in Poland, which could impact upon the English court having jurisdiction pursuant to Article 19 BIIa. He was also satisfied that the removal/retention of the children in England was not unlawful and that, even if he was incorrect on this point, he was satisfied that the bodies with choate or inchoate rights of custody in Poland, namely the Polish court and/or court appointed Guardian, had acquiesced in the removal/retention.

The judge was satisfied that the children had acquired habitual residence within England and Wales and that, if he was wrong on this point, the court would have jurisdiction under Article 13 BIIa in any event.

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The judge finally considered Article 15 and declined to make a request for the transfer of the proceedings, or any part of them, to Poland, making it clear that any future decision in relation to Article 15, could be dealt with by the trial judge.

Summary by Michael Jones, barrister, 15 Winckley Square Chambers

Re S (A Child) [2015] EWCA Civ 689

This was an appeal against an order that the father should have indirect contact only with the child, YS (born 4.10.07). The CAFCASS officer recommended direct contact to be supervised indefinitely. The father was assessed as posing a small risk of harm to the child. The father did not seek to argue against long term supervision.

The issues that arose on the appeal were:

(i) whether the judge adequately reasoned his decision to depart from the CAFCASS recommendation; and

(ii) whether the outcome was determined by an apparent adherence to some principle that long term supervised contact was not in the best interests of the child.

In 2009 the father was convicted to 30 months imprisonment for two offences of downloading pornographic images of children. He was also placed on the Sex Offenders Register. The images related to adolescent girls.

The mother had continued to facilitate contact in prison following the father's conviction. The child had also had contact with the father after his release, both in the mother's home and the father's own home. The mother subsequently stopped contact, alleging that the father had been unreliable, but not on account of his conviction.

Within the proceedings, a risk assessment of the father identified that he could pose a significant risk of sexual abuse to "older female minors" but there was no evidence of paedophilia. The risk he posed to YS was characterised as "small" in the context that "there is no parenting circumstance" where it could be said that the risk posed by a parent was nonexistent".

A contact centre which could cater for the child's evolving needs and provide supervised contact indefinitely was identified. The father was willing and able to pay for the services of the centre. The CAFCASS officer considered that there should be direct contact provided it was supervised by a trusted adult or family member.

The CAFCASS officer was on long term sick leave when the final hearing came to be heard. Her replacement was unable to assist the court. The judge refused the mother's application for another CAFCASS assessment on account of delay.

In giving the judgment of the Court of Appeal, Lady Justice King found that, reading the totality of the the judgment, it appeared "that the father's application was refused largely, if not entirely, because in order for such face to face contact to take place, supervision would be necessary in the long term". The judge appeared to be saying that because supervision would be necessary for longer than an introductory period, that in itself militated against direct contact. In dismissing the CAFCASS Officer's recommendation, the judge simply said that "I do not think that [the officer] really addressed that in the future".

Before the Court of Appeal the mother accepted that there was no general proposition that there should be no direct contact if the welfare of the child required contact to be supervised over a long period of time. Drawing on examples from public law proceedings, Lady Justice King stated that there were cases where long term supervision remained in the interest of the child. The principle applied no less in private law proceedings where there is no local authority involvement because parents can protect their children. Whilst long term supervision will rarely be a realistic option due to ever decreasing resources, it does not mean that such a route should not be deployed in an appropriate case to enable a child to have a relationship with the absent parent.

Before the court concludes that there should be no direct contact on account of 'disturbance' to the mother and the child, there should be direct evidence of the nature and extent of such disturbance. In this case there was no evidential basis or judicial analysis to anchor such a finding.

The father's case that the judge had failed to give adequate reasons for departing from the CAFCASS recommendation or rejecting the father's application for direct contact was accepted. In so far as the rejection of the father's application seemed to be based on a principled objection to long term supervised contact that approach was wrong in law.

The father's appeal was allowed and the matter remitted for rehearing.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

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T (A Child: Suspension of Contact: Section 91(14) CA 1989) [2015] EWCA Civ 719

On 3 July 2014 HHJ Hughes QC suspended all contact between the father ('F') (who did not attend the hearing) and child ('E') (then aged 4½) indefinitely, and an order under section 91(14) CA 1989 prohibiting F from making an application for contact or any section 8 CA 1989 order without the leave of the Court until December 2019 (when E would be 10). There was a lengthy history to the proceedings and E had been the subject of litigation for virtually all of her life. Since May 2011 she had been a party to the proceedings.

The Court of Appeal, in a judgment prepared by Cobb J, allowed F's appeal and remitted the matter to a Judge of the Family Division for rehearing.

Although being rightly satisfied that F had notice of the hearing (even if only informal notice), his absence was a significant factor which contributed to two material errors which fundamentally undermined the integrity of the Judge's conclusions:

1. She made findings of fact on documentary material of which F had no notice, and on which he had had no chance to make representations; and

2. She made substantive orders fundamentally affecting his relationship with E, and his access to the court, having previously told him that she would not 'hear the hearing' of any such substantive application.

As to the suspension of contact, whilst the Court of Appeal recognised that any experienced family judge was well aware of the contents of the welfare checklist and can be assumed to have had regard to it whether or not it was spelled out in a judgment, they simply found no reference in the judgment to E's best interests causing them to question whether they were given any or any sufficient weight or prominence. It appeared to the Court of Appeal that judicial condemnation of F's litigation conduct (however well deserved) assumed an inappropriately pivotal significance in the judge's decision- making. Where an issue of such fundamental importance as the cessation of contact arose, the Court of Appeal expected a Judge to acknowledge and weigh in the balance the important Article 8 ECHR rights of the parent and child, reflected by some or all of the factors discussed in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521. The absence in the judgment of consideration of any such factors was all the more glaring given that in a judgment delivered only a few months earlier HHJ Altman had expressed the view that if proceedings ended with an order for no contact this would not appear to be in the interests of the child.

As to the section 91(14) order, given the significant implications of the statutory intrusion into a party's ordinary ability to access justice, it was imperative that the Court was satisfied that the parties affected:

1. Were fully aware that the Court was seised of an application, and was considering making such an order;

2. Understood the meaning and effect of such an order;

3. Had full knowledge of the evidential basis on which such an order was sought;

4. Had had a proper opportunity to make representations in relation to the making of such an order; this may of course mean adjourning the application for it to be made in writing and on notice.

Those fundamental requirements obtained whether the parties were legally represented or not and it was, the Court of Appeal suggested, even more critical that they were observed when the party affected was unrepresented.

The Court of Appeal considered that in the circumstances, having regard to the deficiencies in the procedure, the insufficiency of a proper explanation of the rationale for the making of the order in the best interests of the child, and the absence of explanation as to the reason for its duration (in light of observations in previous case law, there was perhaps an even greater need for the Judge to explain the necessity and proportionality of a 5 ½ year long embargo in respect of an application concerning a child aged only 4 ½, and to give F an opportunity to make representations as to the duration of the order), HHJ Hughes QC's s.91(14) order was wrong and could not stand.

The judgment also includes comments on judicially-assisted conciliation, and the Court of Appeal emphasised that the facilitation of in-court conciliation at a FHDRA (or any other hearing in a private law children case) does not of itself disqualify judges from continuing involvement with the case.

Summary by Victoria Flowers, barrister, Field Court Chambers

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Curran v Collins [2015] EWCA Civ 404

Ms Curran, the Appellant, and Mr Collins were in a relationship between 1977 and 2010. They cohabited from 2002 to 2010, but never married. During the relationship, three properties were purchased and a dog kennels business was established. The properties were all held in Mr Collins' sole name.

It was Ms Curran's case that there was an agreement or understanding that she should have a half share in the properties. Ms Curran claimed that she had made significant financial contributions.

As the properties were all held in Mr Collins' name, Ms Curran bore the legal burden of proving that she was entitled to a share. There was no express agreement and hence Ms Curran had to show common intention and that she had acted to her detriment.

Her Honour Judge Marshall QC presided over the trial at first instance and dismissed Ms Curran's claims. Ms Curran appealed on five grounds. In rejecting all five grounds, the Court of Appeal set out three insuperable reasons why Ms Curran's appeal failed.

First, Ms Curran's failure at trial largely turned on Her Honour Judge Marshall QC's view of the facts. There was no basis for setting aside any of the findings of fact made by Her Honour Judge Marshall QC.

Second, not only did the parties have no express agreement about sharing ownership of the properties, but it was found that Mr Collins had made it expressly clear that the property purchases were his alone.

Third, Ms Curran was found not to have acted to her detriment in reliance on any common intention or at all.

Summary by Patrick Paisley, barrister, 1 Garden Court Family Law Chambers

Guerroudj v Rymarczyk [2015] EWCA Civ 743

The parties, G and R, had lived together as a couple since 2006, both of them initially being in work. Back problems prevented F from working from c. 2010, and from 2013 he began receiving employment and support allowance. In August 2011 the parties entered into a joint secure tenancy with the Oxford City Council for a ground floor flat - important in light of G's back problems - at £80 per week.

The relationship broke down in mid-2013, the parties remaining together, each accusing the other of violent behaviour. G offered R £1,500 to move out, and R changed jobs and began working shifts for a modest wage of £8.50 per hour.

G applied for a non-molestation and occupation order, and then each party cross-applied for a transfer of tenancy.

At trial in June 2014, HHJ McIntyre considered the written and oral evidence of the parties. The judge found that G's back condition was "a very significant factor" in the grant of the tenancy from the city council. The judge expressed sympathy for R's position that she was being penalised for being hard-working, R having argued that G, who would continue to receive benefits, would not experience difficulty in finding alternative affordable accommodation.

The judge gave a short ex tempore judgment in favour of G. The decisive point, for the judge, was that, considering paragraph 10 of Schedule 7 to the Family Law Act 1996 G would be able to compensate R, but R would not be able to compensate G (§ 8). The judge directed transfer of the tenancy and payment of compensation (as offered) in just over three weeks, but also gave the parties what was in effect liberty to apply, as he was "evidently unhappy about whether he had been given enough information about the prospects of either party obtaining alternative accommodation" (§ 10).

R availed herself of this provision, and wrote (only) to the court setting out the results of enquiries she had made.

The court listed a further hearing just over one month after the first hearing, and set aside the original decision.

G was granted permission to appeal the decision by Macur LJ. The Court of Appeal unanimously dismissed the appeal because "the Judge in this case had (just) enough to go on" (§ 21). Specifically: -

1) G argued that R's letter omitted any evidence from the council itself, and consequently should not have activated any jurisdiction under the liberty to apply. This argument was rejected, because the appellant, despite being represented, had not raised this at the second hearing.

2) The argument that the evidence / submissions at the second hearing contained "nothing that justified changing" the first decision failed. Reference had for the first time been made to the Housing Act 1996, and to how G would therefore qualify for priority housing. Reference was also made to R's not qualifying for social housing and to the unaffordability for R of private rents.

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3) G argued that the evidence before the Judge did not compel the conclusion that he would indeed be classed as "vulnerable" within the meaning of s 189 (1) (c) Housing Act 1996, and hence as being in priority need. This argument was rejected because the appellate court was of the view that no local authority would be likely to give assurances until a situation of "threatened homelessness" had arisen, and in any event the local authority would be unlikely to provide any such assurance to a third party (§ 20). A court deciding a transfer of tenancy will often have to proceed on the basis of an "educated judgment", and "[i]t was not unreasonable to conclude that, having treated [G] as (in effect) a priority once, the Council would do so again" (§ 21).

4) G had had the opportunity to file further evidence and even to apply for an adjournment but had not done so (§ 23).

5) Criticism of the weight accorded by the lower court to G's "difficulties in managing his finances" was unjustified, as the appellate court was "not satisfied that [G's] impecuniosity was in fact a substantial factor in the second decision" (§ 24).

6) There was no need for the Judge formally to have referred to the power it had to direct compensation (this time from R to G) when R was not in a position to pay such compensation, and hence the court could not "properly have exercised" this power (§ 25).

The Judge "had to make a difficult decision on the balance of hardship", but there was "no error of law in the way that he struck the balance" (§ 26). The one criticism made was that "it would have been better …if [the Judge] had simply adjourned the hearing and kept his counsel as to any provisional conclusion that he might have reached" (§ 26).

Summary by Gwyn Evans, Barrister, Tanfield Chambers

Re S-B (Children) [2015] EWCA Civ 705

The Mother appealed against the child arrangements order made in relation to her two children: R (15) and M (rising 12). The order had provided that:

(a) F was to make the children available to receive indirect contact from M on a fortnightly basis; and

(b) there be an order under s.91(14) of the Children Act 1989, prohibiting the mother from making any further applications without the permission of the court until August 2018.

Background M and F separated in 2008. Following separation the children lived initially with M. In May 2012 the children went to a local police station and complained that M had mistreated them. From that time onwards, the children had lived with F and refused to see M.

The children had been the subject of unremitting litigation since 2008, as well as being subject of the additional scrutiny that accompanies a twelve month family assistance order.

Contact M did not accept that the views expressed by the children were their own. The judge at first instance concluded that neither of the children wished to have any direct contact with M, and accorded weight to those views in the order that he made. King LJ dismissed M's appeal, finding that the judge's conclusion was "almost inevitable" from the evidence before him.

S.91(14) Children Act 1989 King LJ approved the trial judge's conclusion that the welfare of the children required not only that the litigation should come to an end, but that they should be reassured that it could not be reactivated without the permission of the court.

M asserted that the order was too broad in that it prohibited "any further applications". King LJ agreed that a counsel of perfection would have specified which applications were prohibited. She suggested the wording, "no application under any provision of the Children Act 1989 may be made in respect of either child…". However, she dismissed M's appeal and concluded that the children needed the protection of the permission filter in relation to any applications which M may bring under the Children Act 1989 for a substantial period of time.

Summary by Thomas Harvey, barrister, 1 Hare Court

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Re D (Children) [2015] EWCA Civ 703

The case concerned two children (D and A) aged 4 and 6 who, following earlier public law proceedings, had been placed with prospective adopters. An older child of the mother's (P) had already been adopted by them.

During the course of the care proceedings a paternal aunt and uncle ("Mr and Mrs M") had undergone initial assessment as potential carers. Although this had concluded that they could not meet the needs of these children, they were subsequently positively assessed in separate proceedings in respect of a further child born to the mother (B), for whom they became special guardians.

The mother sought leave to oppose the adoption application in respect of D and A. She wanted D and A to be placed with the M's under special guardianship orders.

The application for appeal against refusal of leave (which was 'rolled up' with the permission hearing) was based not on any criticism of the trial judge's approach to the law, but on the weight which she had given to various factors in the case, namely:

- Disproportionate weight given to potential visa difficulties arising from the particular circumstances of the case

- Placing too much weight on the therapeutic consequences of the children not remaining in their adoptive placement

- Placing too little weight on the benefits of a family placement

- Breach of Article 6 and 8 rights.

Her judgment had, nevertheless, to be read in the light of her having been invited to consider the test to be met as having three stages (change of circumstance, solidity of prospects of success and adverse welfare impact if leave granted). Although all these factors were to be considered as part of the two stage test cited in the authorities (change of circumstance and if so, should leave be granted) they were often intertwined.

The trial judge had accepted that, albeit very late in the day, Mr and Mrs M coming forward was a change of circumstance. As to the "solidity" of the prospects of success, there was some, by virtue of B being placed with them, but B was a very different child without the history and issues of D and A.

Although not definitive as to whether or not she was satisfied as to the 'solidity' aspect, the judge had considered this and had then gone on to consider the welfare element. She had taken a 'balance sheet approach', looking at the potential benefits to the children of retaining ties with their birth family but noting that the adoptive placement was also a family placement insofar as the link to sibling P was concerned. The judge accepted the local authority's view that a move from the adopters would undo the therapy they had had and would cause damage. As to the potential for difficulties arising from the adoptive families movements between the USA and UK, these were a concern but it was not known if they would actually materialise. Having considered all these factors, the judge had dismissed the application on welfare grounds.

Black LJ did not consider that the trial judge had been wrong.

The first ground was fundamentally flawed as it failed to recognise that both the placement with the M's and the adopters were family placements. It was not a tenable approach to treat the relationship between the siblings (D, A and P) as less important that one they might form with other relatives ((Mr and Mrs M)).

As to the second ground, on the facts (including the wider information available from the earlier proceedings, the doubts raised by Mrs M herself and written evidence from the social worker and adopters) the judge was not wrong in her conclusion about the challenges Mr and Mrs M would face and the likely problems for the children if placed with them or of the impact of a move from a stable and consistent placement. It was unsustainable to argue (as the mother had) that the only way to assess the impact of the proposed change was to grant leave to allow for a fuller exploration. Although the bar for s.47(5)) applications should not be too high, the process was not a re run of the placement application but an adjunct to the adoption process. This was an experienced family judge who was entitled to bring her own expertise to bear on the materials before her.

The judge had not given too much weight to the issue of visas for the children and the disruption this might cause. She had not, as argued, failed to follow the authorities that required very careful consideration of a refusal of leave on a welfare basis once the solidity of other grounds had been made out.

The final ground in respect of Articles 6 and 8 added nothing and had rightly not been amplified.

Although the trial judge had not allowed the 'short term' welfare consideration to justify refusal of leave, it had been the structure of the judgment (in which she had progressed from the issue of solidity to welfare) that had persuaded Black LJ to grant permission. Taken as a whole however, the judge had had the correct factors in mind to determine the second question of whether, circumstances having changed, leave should be granted.

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The judgment had been given extempore and might therefore have been structured differently had she had the luxury of more time to prepare it. Ultimately though, read in its entirely, the judge had conducted the correct evaluation.

Accordingly, read as a whole, the judge's reasons for refusing the application were cogent and compelling and the appeal should therefore be dismissed.

Summary by Katy Rensten, barrister, Coram Chambers

GW v MW [2015] EWFC 56

This was an application by the father (GW) in respect of two children: J, aged six, and B, aged three. The respondent was the mother (MW). The father had applied on 27th November 2014 to enforce a contact order that was made on 2nd December 2013 by District Judge Bowman. The issue for the court was whether the court had jurisdiction to determine the application and whether the terms of the contact order were enforceable.

The father was British and the mother American. The parents met in 2004 in Spain and began a relationship which developed to cohabitation. In 2008 J was born in Spain. In March 2010 the parents were married in Gibraltar. In May 2012 B was born in Spain. By 2012 the family spent substantial periods of time in both Spain and England and had created a business in Spain. The parties separated in 2013

The mother made an application to the court in 2013 in relation to the children which resulted in the order of 2 December 2013. Neither of the parents was represented at that hearing and the resultant order was not expressed in a satisfactory way. The order provided, in general terms for permission for the mother and the children to move to Spain until 1 August 2015 when the children were to be returned to the jurisdiction, contact with the father was envisaged every three weeks and a provision that the children remained habitually resident in England and Wales.

After the making of the order the mother and children moved back to Spain on 29 December 2013 and the children had not thereafter returned to England. There had been very limited direct contact with the father but regular Skype communication. It was common ground that the children should be seeing the father regularly.

In June 2014 the father issued an English divorce petition. The mother issued a cross-petition. The mother had no right of abode in this country. She had a right of abode in Spain as a result of a visa that expired in 2016.

The first question for consideration was whether the court had jurisdiction to entertain the father's application. The mother asserted that the children were not habitually resident in this jurisdiction within the meaning of Article 8 of the Council Regulation (EC) 2201/2003. The father asserted that the children were habitually resident, remaining so by virtue of the 2013 order and other features of the case. He also submitted that jurisdiction has been prorogued in favour of the English courts under Article 12.

Jackson J considered the decisions in Re A [2013] 3 WLR 761; Re H ( jurisdiction) [2014] EWCA Civ 1101 and AR v RN (Scotland) [2015] UKSC 35 on 22 May 2015. He recognised that a relevant factor in considering the issue of habitual residence in this case was the question of the parental intention and the terms of the court order but reiterated that the court had to look at the actual factual situation and not substitute legal concepts or hypothetical ones for the reality; Parents should be alert to the reality that the court's grasp cannot exceed its reach. Jurisdiction will exist if, and only if, the Council Regulation so provides.

Jackson J determined that the time at which the court was seised with the matter for the purpose of establishing habitual residence was in November 2014 when the father's present application was issued.

His Lordship found that at that time the children were not habitually resident in the UK The reality for the children was that they had reintegrated into their social and family environment in Spain and even though the order showed that their presence in Spain was not intended to be permanent, it had the necessary quality of stability at the time the English court became seised. They were small children, heavily dependent on their mother's existence and way of life.

The parental intentions as recorded in the order of December 2013 were relevant but were diluted by the breakdown in arrangements contemplated by that order, the discord between the parents, the long and somewhat unexplained absences of the father, and the bringing of the divorce proceedings which, whether they were anticipated or not, were likely to have prejudiced the mother's ability to obtain a visa to come to live in England. Jackson J noted that in this regard it was unclear if the mother could even live in this country.

Jackson J rejected the submission that there had been a prorogation to this court of jurisdiction in this matter and accepted that the mother had not done anything that amounted to an acceptance within the meaning of Article 12. Her participation in divorce proceedings did not amount to that (see Bush v Bush [2008] EWCA Civ 865 [paras. 12, 53 and 32]. Therefore, as the children were not habitually resident in England and Wales the court has no general jurisdiction in respect of them.

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The second question was whether there was an enforceable order and Jackson J concluded that because of the terms and drafting of the order it was not an order that could be enforced.

Summary by Alison Easton, barrister, Coram Chambers

A-S (Children) [2015] EWCA Civ 748

HHJ Marston conducted a fact-finding hearing in relation to L. The most significant finding was that L's mother had deliberately attempted to drown her son. Crucial to this finding was a 999 call made by the mother on the evening that the child was harmed. In that call the mother claimed that the child had fallen in the water and drowned. A number of doctors, experts and the court (and the Court of Appeal) listening to the recording. The experts considered the recording inconsistent with the mother's account as for the first nine minutes of the call L could be heard babbling and there were no audible signs of respiratory or other distress. After a short period of silence sounds of distress were heard in the last 5 minutes of the call. When the paramedic attended 15 minutes after the call was made L was not breathing. The paramedic administered treatment which saved L's life.

The court found that the mother had deliberately drowned L nine minutes after the 999 call began as that was the only explanation for what could be heard on the recording.

The mother appealed, arguing that the judge failed to consider the wider circumstances of the case, ventured into speculation and placed reliance on a 'dogmatic' expert.

The Court of Appeal listened to the 999 recording at the heart of the case. They agreed that the judge reached a conclusion properly open to him – that L was not drowned at the start of the call. The judge was entitled to conclude on the evidence that the mother was the perpetrator. The judge's conclusion was 'unassailable. Unusually the Court of Appeal went further and Munby P said that he was convinced that the judge was right.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers

Re K (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720

Background M, F and E (11) were all Lithuanian, and E had lived in Lithuania until the summer of 2014. From 2011 onwards she had lived with F (having previously lived with both of her parents, apart from a period while F was in prison). M had been allowed regular weekend contact with E, until M decided to move to England in October 2012.

In 2014 F agreed to E spending the summer in England with M. In August 2014, there was a confrontation at M's flat when F arrived to take E back to Lithuania. The detail of what occurred was hotly disputed, but following police involvement E was interviewed by social services. Between that interview and her meeting with the CAFCASS officer, her stance towards returning to Lithuania changed significantly.

First instance decision At first instance, M accepted that E was wrongfully detained. It was agreed between the parties that E had attained sufficient age and maturity for her views to be taken into account, and that she now stated that she wanted to remain in England. F argued that this should not prevent her return to Lithuania, in the circumstances of the case (Article 13). M further argued that there would be a grave risk that return would expose R to physical or psychological harm or otherwise place her in an intolerable situation (Article 13(b)).

Hogg J only received oral evidence from the CAFCASS officer, whose report had stated that E's objections were 'rational, and have strength and conviction'. Hogg J determined that, contrary to the conclusions of the CAFCASS officer, E's feelings were the result of 'deep influence over a lengthy period by the mother and her team' (paragraph [34]) and that it was 'by no means certain that those [E's] objections are valid' (paragraph [35]).

On this basis Hogg J concluded that E's views were not determinative, and that they should not prevent her return to Lithuania

In relation to the Article 13(b) issue raised by M, Hogg J found that not to be made out on the basis that the CAFCASS officer had concluded there was some good parenting from F when he had had care of E, and that M had failed to substantiate the allegations she made against F.

The appeal The core of M's appeal rested on whether the judge had taken E's views into account appropriately, and whether the judge had erred in her treatment of the CAFCASS officers findings. The three chief grounds were:

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1. Hogg J had failed to use the proper test for assessing E's objections and therefore to give proper weight to relevant considerations.

2. The views of the CAFCASS officer should have been determinative in relation to E's objections.

3. The judge had dismissed M's Article 13(b) objection without sufficient caution.

Ground 1:Proper Test of E's objections M argued that Hogg J had failed to mention the key cases of Re M (Children)(Abduction: Rights of Custody) [2007] UKHL 55 and Re M (Republic of Ireland) (Child's objections) [2015] EWCA Civ 26. Further, she argued that the judge had placed too much emphasis on influence over E's objections as a factor.

The Court of Appeal decision was given by Black LJ, with whom Arden and Lewis LJJ agreed. The Court held that there was no need for a judge to mention every item of case law that they had considered. It could be assumed that the judge had had the case in mind, unless the contrary could be demonstrated.

The Court also held that the issue of influence had been used by the judge to asses the weight to be given to E's objections. As it was a relevant consideration, this was an entirely proper way to evaluate it, and it confirmed that the judge had considered E's views. The Court also concluded that Hogg J had considered a range of issues outside of E's objections, including the good parenting E had previously received from F, M's refusal to allow contact while E was in her care, and comments F had made during recent Skype sessions (paragraph [50]).

In the circumstances of the case, it was right for Hogg J to have placed significant weight on the issue of influence, as long as other factors were considered in relation to E's opinion, and outside of it.

Ground 2:The views of the CAFCASS officer should be determinative M argued that the court could not dismiss the findings of the CAFCASS officer, especially in the situation were Hogg J had declined to make detailed findings as to what occurred during the August 2014 altercation (and therefore had no grounds for disputing the findings of the CAFCASS officer).

Black LJ held that Hogg J was not bound by the CAFCASS officer and nor were his views determinative of issues within his expertise, despite not making findings of fact. This was especially so given the summary nature of Article 12 proceedings. The judge had clearly considered independent evidence, such as police reports, in coming to her determination. The judge was right to criticise the officer for attributing blame and describing what happened in colourful terms (paragraph [46]). Specific findings are not needed to do this. The Judge was also right to approach the CAFCASS officer's evidence with caution when he had gone beyond recognising that it was impossible to determine who was at fault (paragraph [46]).

Ground 3:Dismissal of the Article 13(b) objection The Court of Appeal held that a court did not need to consider whether there would be a grave risk if the allegations were true (Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27) in circumstances where the evidence allows a judge to confidently discount the possibility that the allegations will give rise to risk.

It was for M to raise evidence of the allegations against F, and she had failed to do so sufficiently. As Hogg J highlighted, in leaving E in F's care since 2011, she had acted inconsistently with the allegations made. The Court of Appeal could only overturn such a decision if it was not one open to the court below to make, and that was not the case.

Conclusion Hogg J was not bound by the findings of the CAFCASS officer, and was entitled to place significant weight on the influence placed on E's own objections in circumstances were other considerations had been taken into account. The case was therefore remitted to the Family Division for consideration of how to manage E's return to Lithuania.

Summary by Joshua Viney, barrister, 1 Hare Court

A and B (No 1 - Fact finding judgment) [2015] EWHC 1059 (Fam)

Background A and B were the commissioning parents of twin girls C and D, aged 3. They were married in 1992. C and D were born to them pursuant to a surrogacy arrangement in India in December 2011. They returned with A and B to the UK in March 2012.

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The parties' relationship broke down in April 2012 and they ceased living together in May 2014.

In May 2014 A applied for a non-molestation order against B and a child arrangements order. B cross-applied for a child arrangements order. The applications were made against the context of an alleged assault by B against A and of consequent police involvement.

A lost her legal aid entitlement during the Child Act proceedings but by the time of this hearing she was being represented on a pro bono basis.

It came to light within the Children Act proceedings that there had been no application by A and B for a parental order. As a matter of English law, C and D's legal parents remained their birth mother (the surrogate) and her husband in India. The matter was transferred to the High Court and the children made wards of court.

A and B applied for a parental order out of time, following the decision in Re X (A Child) (Surrogacy: Time Limits) [2014] EWHC 3135.

Fact finding exercise Directions had been made to a fact finding to determine A's allegations of violence against B. B also made allegations pertaining to the historic and current state of A's mental health, some of which was accepted by A.

Theis J heard the oral evidence of the parties over two days and considered written and oral submissions. She directed herself to the legal test in relation to fact finding hearings, namely that A carries the burden of proof on the balance of probabilities (Re B [2008] UKHL 35) and findings of fact must be based on evidence rather than speculation, per Munby LJ, as he then was, in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817.

Theis J performed a fact specific analysis of the evidence in relation to each allegation in her judgment. Overwhelmingly, she found that A was unable to prove her allegations on the balance of probabilities, though she did find A exhibited vulnerability to stressful situations and indicated (at para 98) that the influence of B's behaviour towards A in light of her specific vulnerabilities may warrant further exploration at the welfare stage of the final hearing.

Parental order application The application had been made more than 6 months after the children's birth, contrary to s.54(3) HFEA 2008, though the applicants intended to rely on the decision of Re X (A Child) (Surrogacy: Time Limits) [2014] EWHC 3135.

A and B satisfied some of the criteria for a parental order under s.54 Human Fertilisation and Embryology Act 2008 ("HFEA 200"). Theis J identified the outstanding factual issues that were yet to be established in support of their application, namely:

(i) whether the children had their home with the applicants at the time of the application and the time of the order (s.54 (4) (a) HFEA 2008); and

(ii) whether at least one of the applicants can establish a domicile of choice in this jurisdiction (s.54 (4) (b) HFEA 2008); and

(iii) whether the surrogate mother and her husband consent to the making of the order or whether their consent could be dispensed with as they could not reasonably be found (s.54 (6) and (7) HFEA 2008); and

(iv) whether payments were made other than for expenses reasonably incurred that require the court's authorisation under s.54 (8) HFEA 2008; and

(v) whether a parental order is in the lifelong welfare interests of each of the children (s.1 Adoption and Children Act 2002).

The application for a parental order fell to be decided in a separate hearing, on which judgment has been given separately ([2015] EWHC 2080 (Fam)). However, Theis J identified at this stage that this case serves as an illustration of the difficulties that can occur when commissioning parents do not make prompt applications for parental orders to secure their legal position in relation to any child born as a result of a surrogacy arrangement.

Summary by Charlotte Hartley, barrister, 1 King's Bench Walk

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A and B (No 2 - Parental Order) [2015] EWHC 2080 (Fam)

The commissioning parents, A and B, applied for a parental order in relation to two girls C and D, twins aged 3. The surrogate mother and her husband were the respondents to the application, although they had taken no active part in the proceedings or active involvement with the children since their birth.

Theis J had previously heard oral evidence from the parties in the course of a fact finding hearing and found that the majority of the allegations made by A against B were not established to the required standard (judgment reported at [2015] EWHC 1059 (Fam)).

Relevant issues In order to make a parental order as sought the court needed to be satisfied that the criteria in s.54 Human Fertilisation and Embryology Act 2008 ("HFEA 200") were met.

Theis J identified the particular matters that needed to be addressed at paragraph 5 of the judgment.

The submissions of the parties in relation to those issues are set out at paragraphs 42 – 52.

Another matter which arose during the hearing was whether the surrogate and her husband had been properly served with the application in accordance with rule 13.6 FPR. A discussion is at paragraphs 53 – 62 of the judgment. It was concluded that in the circumstances of the case the rules of service could, in part, be dispensed with.

Decision The main summary of the judge's analysis and reasons begins at paragraph 63 of the judgment.

Re X had made it clear a purposive construction can be given to the time requirement in s 54(3) and, that in any event, it was possible to 'read down' the provision to give effect to the Convention rights engaged, in particular Article 8.

As to whether it could be said that the children's 'home' was 'with' the applicants at the time of the application and at the time when the court was making the order as required by s 54 (4) (a) assistance could also be derived from Re X.

Theis J found that the court could, and should, purposively construe the provision, because: first, there was nothing that militated against the court doing so; secondly, to not do so could have detrimental long term consequences for the children and the applicants, which was precisely what the section set out to prevent; thirdly, there was nothing on the particular facts of this case that indicated such a course would be detrimental to the welfare of the children; fourthly, although the parents had separated, they remain married. The evidence indicated that despite the differences between them they both remained committed to the children, and; fifthly, the time B spent with the children was limited by circumstances and not due to a lack of commitment.

In any event, Article 8 was undoubtedly engaged, and the statute could be 'read down' to achieve the same result.

In relation to the issue of domicile, both applicants had lived in this jurisdiction most of their lives; they were born as British Citizens, came here as young children and had not lived anywhere else or returned to their country of birth. It was therefore clear they had both discharged the evidential burden on them.

In relation to the issue of consent, the documents signed by the surrogate mother and her husband clearly signified that they had fully understood the effect of a parental order. There was no evidence to indicate that the giving of the consent was conditional on any payment being made.

In relation to the question of payments, the court was hampered by the lack of detail. Theis J emphasised the importance of the need for commissioning parents to, at the very least, meet the surrogate mother or establish an effective line of communication and have some understanding of the financial arrangement. The court was nevertheless satisfied that the requirement had been met in this case.

Welfare The final issue considered by Theis J was whether a parental order was in the lifelong welfare interests of each of the children (pursuant to s.1 Adoption and Children Act 2002). Following the Guardian's analysis, it was considered that the other available options (a child arrangements order, special guardianship order or adoption order) would not meet the welfare needs of the children. Even though the court shared the Guardian's concern about the emotional needs of the children being met by the applicants, that did not mean their lifelong welfare needs would not be met by a parental order being made.

Summary by Helen Pomeroy, barrister, 1 King's Bench Walk

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Y (A Minor: Wardship) [2015] EWHC 2098 (Fam)

An application was made by a local authority for a 16 year old male, Y, to be made a ward of the court. He had grown up in a family in Britain in which the male members had been committed to waging jihad in Syria. Y's brothers were both killed in 2014 whilst fighting in Syria. A friend who had lived in the family home was also killed in Syria and his brother was seriously injured but later returned to continue fighting. Y's uncle was detained in the Guantanamo Bay Detention Centre which had attracted attention nationally and internationally, and in particular in Y's home town.

The local authority was concerned that Y may wish to follow his brothers' behaviour and that his mother would be unable to put in place protective measures to prevent Y travelling abroad.

It was clear at the time of the hearing that Y's mother was depressed. Y was regularly leaving school and nobody knew where he was going or who he saw. It was also accepted that there was a plan for Y to go to Dubai on 4th April.

Mr Justice Hayden was concerned about the plan to travel to Dubai on the basis that Y was on police bail and the family's assumption that this bail would be changed on 2nd April was without supporting evidence. Hayden J was also concerned by the lack of evidence as to where the funds to travel had come from and that travel to Syria was easier from Dubai than it was from the UK.

Hayden J was referred to "Channel: Vulnerability assessment framework" used by the Sussex Police to guide decisions about whether an individual needs support to address their vulnerability to radicalisation. He commented that many of the features identified in the framework applied to Y. He considered that Y was susceptible to indoctrination and that there was real concern that he would be influenced by family and friends involved in extremism. Y was extremely vulnerable due to his family's radicalisation.

Hayden J found that the proportionality of making Y a ward of the court was clear.

Summary by Laura McMullen, barrister, Coram Chambers

Y (A Minor: Wardship) [2015] EWHC 2099 (Fam)

The local authority applied to renew wardship of a 16 year old, Y. The concerns were that Y had grown up in a family where there was commitment amongst the male members to wage jihad in Syria. Two of his brothers and a family friend had died as a result. Y's uncle was a detainee in Guantanamo Bay Detention Centre which was subject to significant media attention. The local authority remained concerned that Y would wish to follow his brothers to war.

Mr Justice Hayden, having heard the initial application for wardship, remained of the view that the mother was unable to effect any parental control over Y as she was overcome by grief for all that had happened to her family. Y failed to attend school regularly and had been involved in a number of serious criminal offences.

Y did not seek to discharge the wardship, albeit he was bemused by its existence. The mother did seek for it to be discharged. It was the professionals' view that they had achieved a constructive working relationship with Y and his mother since wardship had been in place. No party argued that wardship was misconceived in law or a distortion of s.100 of the Children Act 1989. However, Hayden J considered it appropriate to look at the applicability of wardship in these circumstances.

He noted that Re S (Wardship) Guidance in Cases of Stranded Spouses [2011] 1 FLR 319 provided guidance as to the applicability of the jurisdiction. Hogg J stated:

"Given the international element and the experiences of judges of the Family Division in dealing with cases of this type, child abduction and other international cases, the best vehicle for these types of cases is wardship."

Hedley J decision in Re K (Children with Disabilities: Wardship) [2012] 2 FLR 745 demonstrated the creative use of wardship which was reviewed and endorsed by the Court of Appeal in Re E [2012] EWCA Civ. 1773.

Mr Justice Hayden concluded that there was no doubt that the jurisdiction existed and that it was particularly appropriate to this sensitive situation, especially given that it appeared to be working effectively. He did not accept that the mother, as advanced on her behalf, had learnt how to ensure that Y would not travel. He considered that she was entirely unable to control Y's behaviour.

Hayden J considered that there was a significant risk of very serious harm to Y and accordingly the court was entitled to use the fullest measures at its disposal. wardship was continued.

Summary by Laura McMullen, barrister, Coram Chambers

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Re PD [2015] EWCOP 48

The court determined whether an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty must be joined as a party to the application.

The subject of the application ('PD') was a 21-year old woman who suffered from severe anorexia nervosa. The High Court of Ireland had made an order providing for her transfer from Ireland to a specialist unit in England and Wales for urgent treatment.

In Irish proceedings PD had been represented by her Father acting as a guardian ad litem. The Health Service Executive of Ireland ('the HSE') now sought an order from the High Court of England and Wales for the recognition and enforcement of the Irish order. The application came before Baker J on 19 June 2015 and was granted, even though the young woman was neither a party nor represented. Baker J listed a further hearing at which the court reconsidered the issue of whether it was necessary to join PD as a party.

The court began by noting that in The Health Service Executive of Ireland v PA and Others [2015] EWCOP 38 Baker J had considered the provisions of schedule 3 to the Mental Capacity Act 2005 in detail. Schedule 3 gives effect in England and Wales to the Convention on the International Protection of Adults signed at The Hague on 13th January 2000, creating obligations in respect of the recognition, enforcement and implementation of "protective measures" imposed by a foreign court (as defined in para 5(1)). Under para 19 the court is required to recognise a protective measure taken under the law of the country in which the adult is habitually resident, but the court may disapply this provision in relation to a measure if it thinks that the case in which the measure was taken was not urgent, that the adult was not given an opportunity to be heard, and the omission amounted to a breach of natural justice (paragraph 19(3)). In PA the court had been invited to consider whether 19(3) had a bearing on the opportunity which must be provided to the subject of a recognition and enforcement application (as opposed to the original application), but had declined to do so.

The court next considered the judgement of the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599 in which Black LJ had cited the ECtHR in Winterwerp v Netherlands (1979) 2 EHRR 387 (seminal in relation to the procedural guarantees required in deprivation of liberty cases). Black LJ had concluded that whilst she could "accept that, in theory, P need not always be a party to the proceedings if his participation in them can reliably be secured by other means" (para 60), she "would have held that in order that deprivations of liberty are reliably subjected to scrutiny and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings" (para 108). This was distinguished on the basis that the issue in that case had been party status in substantive domestic proceedings, whereas in Schedule 3 cases the nature of the court's enquiry was one of limited review.

Baker J cautioned that each case will turn on its own facts but concluded that, given the limited scope of the enquiry required of this court when considering an application under Schedule 3, it is not "indispensable" for that adult to be a party before this court on an application for recognition and enforcement of the foreign order where the adult has been a party and represented in the proceedings before the foreign court (paras 31 – 33).

Having regard to the importance of comity, Baker J said that "the court to which such an application is made [under Schedule 3 to the MCA 2005] must ensure that the limited review required by Schedule 3 goes no further than the terms of the Schedule require and, in particular, does not trespass into the reconsideration of the merits of the order which are entirely a matter for the court of origin" (para 37).

However, the court heeded some of the criticisms made by the Official Solicitor in relation to the precise nature of the order that the HSE sought to enforce and (at this review hearing) and amended it to address those criticisms. Further clarification on the process by which PD had been represented by her Father was sought from the Irish court. The court considered that, given the original urgency of the application the procedure employed, by which the order was made and reconsidered shortly thereafter when that urgency had abated, was appropriate in the circumstances.

Summary by Marlene Cayoun, barrister, 1 Garden Court Family Law Chambers

London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam)

The local authority had applied to invoke the inherent jurisdiction of the High Court to protect young people in their borough from a male, SNA, who they perceived presented a sexual risk. The authority sought an order preventing SNA from contacting (by any means), spending time with or approaching 'any female under the age of 18'.

In this application, the local authority relied heavily on the decision of Keehan J in Birmingham City Council v Sarfraz Riaz and others [2014] EWHC 4247 (Fam). In that case, orders in similar terms had been made against a group of males to prevent them from spending time with the subject child, AB, but also other (unidentified) females under the age of 18.

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G (Child) [2015] EWCA Civ 834

Private law Children Act proceedings had been ongoing since 2012, with there having originally been a shared residence order made, by consent of both parents, in relation to the subject child, an 8 year old girl. Proceedings to vary that order were then instigated by the mother on the basis of allegations of domestic violence perpetrated by the father towards the mother and of the father being "addicted" to gambling.

A CAFCASS officer visited the child at the mother's home and, following a conversation with both the mother and with the child, deemed the alleged domestic violence to be "plausible". On this basis he made a referral to the local authority to undertake a section 47 investigation and recommended that contact with the father be suspended pending the outcome of the said investigation. Contact was initially suspended and then, following a further hearing, re-instigated at a contact centre. A finding of fact hearing listed in order to determine the allegations made by the mother took place in October 2013 before HHJ Pearl, with the judgment being handed down in late November with no findings being made in relation to domestic violence. The matter returned to court in early January 2014 when an interim residence order in the father's favour was made by the same judge.

The mother sought to appeal against the orders of November 2013 and January 2014, with Ryder LJ adjourning the mother's application for permission to appeal to an oral hearing at which recordings of the relevant court hearings were to be provided.

The mother's counsel from the November 2013 and January 2014 hearings provided several witness statements setting out her own account of events within the hearings, in support of the mother's appeal. The mother complained that the judge had impolitely told her counsel off for being late in the first day of the finding of fact hearing and then proceeded to subject her to unfair criticism throughout the remainder of the hearing. The Court of Appeal make numerous references to the transcript of the finding of fact hearing and quote extensively from this; the Judge was noted to have made numerous intrusions into counsel for the mother's cross examination of the father and Black LJ states at paragraph 27, that "the transcript does not convey the degree of pressure put by the judge on (mother's counsel) at this point in proceedings". Black LJ further observed that the interventions in relation to the mother's counsel's cross-examination of the father differed in character from the sort of intervention in which a judge seeks clarification on a point or seeks to move matters along.

The Court concluded that the mother's complains that the hearing was unfair were made out. Although there was no criticism of the judge's evaluation of the evidence and judgment, Black LJ makes clear that a "careful and cogently written judgment cannot redeem a hearing in which the Judge intervened to the extent, as I have concluded was the case here, of prejudicing exploration of the evidence".

The matter was returned before a different judge to examine whether it was now necessary for new findings of fact to be made.

Summary by Michael Jones, barrister, 15 Winckley Square Chambers

WA v Executors of the Estate of HA & Others [2015] EWHC 2233 (Fam)

Background Moor J describes this case as having a tragic history. The Wife is an heiress who is described as being "fabulously wealthy". Prior to the marriage in 1997, the Husband and Wife entered into a Pre-Nuptial Agreement which prevented either of them from making claims against the other. Whilst both were represented at the time, it appeared clear to the court that the process leading up to the signing of the agreement was, at best, limited.

The parties and their three minor children lived on a very large estate worth in the region of £30 million. The property was purchased during the marriage in a dilapidated state. Whilst neither party undertook remunerated employment during the marriage, both made significant contributions.

The marriage broke down in 2014. The Husband took the breakdown of the marriage very badly.

Following separation the parties successfully negotiated a financial settlement whereby the Wife would make a lump sum payment to the Husband of £17.34 million in full and final satisfaction of his claims. The Pre-Nuptial Agreement did not figure significantly in the negotiations.

The order provided that the lump sum would be paid in two tranches of £8.67 million. The first to be paid within 14 days and the second to be paid within 14 days of the Husband's mother vacating the cottage that she occupied on the family's estate.

The first tranche was paid on time and the Husband then transferred funds to enable his mother to be rehoused. The second tranche was never paid, initially by agreement and later as a result of a stay imposed by Moor J. The reason for this

www.familylawweek.co.uk Family Law Week August 2015 - 84 was that 22 days after the making of the final order, the Husband committed suicide. His will left his entire estate to his three adult brothers.

The Appeal The Wife's Notice of Appeal relied on the case of Barder v Caluori [1988] AC 20, arguing that the fundamental basis of the consent order was that the lump sum was required by the Husband to meet his needs and that basis had been entirely invalidated by his death. The Wife sought for the entirety of the order to be set aside and for repayment of monies already paid.

In his judgment, Moor J provides a short resume of the principles derived from different authorities relating to three specific areas relevant to this appeal: (1) the Barder group of authorities; (2) authorities relating to the approach of the court to the three strands of award identified in Miller/McFarlane [2006] UKHL 24; and (3) Radmacher v Granatino [2010] UKSC 42.

In relation to the Barder group of authorities, Moor J cites Barber v Barber [1993] 1 FLR 476, a case in which the Wife died within 3 months of the final order, where the Court of Appeal held that it was appropriate to consider what order would have been made had the judge known that the Wife in that case only had 3 months to live.

In exploring the Miller authorities, Moor J accepts that the law is to the effect that assuming there is no claim for compensation, the court will award the applicant the higher of his or her sharing entitlement or needs requirement, generously assessed. As for the treatment of non-matrimonial property, Moor J refers to Charman v Charman (No 4) [2007] EWCA Civ 503, where it was stated that the sharing principle "applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality."

Having reviewed the authorities, Moor J asked himself the following questions:

(1) Was the Husband's death foreseeable (i.e. the Barder test)?

(2) If not, was his award a sharing award (and hence not susceptible to challenge) or a needs based award?

(3) If it was a needs based award, what order was now appropriate?

Moor J's conclusion in relation to the first question is that the Husband's death was not foreseeable. He makes that finding on the basis that the reports as to the Husband's mental health had become uniformly positive by September 2014 at the latest. Moor J states that the suicide of the Husband could not have been seen as a significant possibility by the court, the Wife or her advisors.

As to the second question, Moor J states that he was "quite satisfied that the Husband's claim was primarily needs based." In the course of negotiations there had been no claim by the Husband's lawyers to a sharing entitlement and in any event, in so far as there was a sharing claim, it would have undoubtedly been for less than the needs based claim (the majority of the assets were non-matrimonial), such that the needs based claim prevailed.

On the basis of his conclusions, the order was susceptible to being set aside pursuant to the Barder jurisdiction.

What order was now appropriate? Moor J asked himself: "If I had been sitting in court in November 2014, knowing that the Husband was to die in less than a month, what would my award have been?" He held that a nil award would have been simply wrong and that he would have had to have considered both sharing and needs:

- Sharing: Moor J held that a 1/3 share of the Wife's net share in the matrimonial home would have been appropriate, i.e. £5 million. Further, he held that the Pre-Nuptial Agreement would not have prevented such a sharing award; it had clearly been ignored in the negotiations and the parties could not pick and choose the extent to which the agreement was effective.

- Needs: Moor J rejected the argument that the Husband had no needs. For example, the Wife and Husband had taken on responsibility for the Husband's mother and she needed to be housed; it would not be reasonable, Moor J held, to expect that need to be funded from the Husband's own assets. Further, on account of the length of the marriage and the Husband's contributions, it was held that it would not be unreasonable for there to be an award to enable the Husband to make bequests. The judge concluded that an award of £5 million would not be out of kilter with a needs award.

The appeal was therefore allowed and the lump sum reduced from £17.34 million to £5 million.

Summary by Oliver Woolley, barrister, 1 Garden Court Family Law Chambers

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Counsel on behalf of SNA argued that the analysis of Keehan J in that case had been wrong in that the inherent jurisdiction could not extend to the protection of unidentified individuals.

The application in this case followed care proceedings in which SNA had been found to have systematically groomed, and eventually raped, his stepdaughter. He had refused to accept the findings against him and a consultant forensic psychologist had concluded that there was evidence of a 'deviant sexual interest and towards a sexual assault against pubescent and older pre-pubescent and adult females'. As SNA had denied the findings, there was no therapy that was thought likely to reduce the identified risk.

Hayden J, having considered the arguments, outlines the limits of the inherent jurisdiction (at [33]):

"The concept of the 'inherent jurisdiction' is by its nature illusive to definition. Certainly it is 'amorphous' (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as 'pervasive'. But it is not 'ubiquitous' in the sense that its reach is all- pervasive or unlimited. Precisely because it's powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there."

He goes on to state (at [36]) that "the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults".

He therefore concludes that to extend the scope of the inherent jurisdiction to children who are not known and are not subject to proceedings is outside the proper scope of its reach. However laudable the aims of child protection, it is for Parliament to devise the framework for protecting vulnerable children, with the role of the courts being to enforce that framework.

Whilst recognising that in reaching this conclusion he was contradicting the approach taken by Keehan J in the Birmingham case, Hayden J points out that Parliament has recently amended the Sexual Offences Act 2003 so that the criminal courts can make Sexual Risk Orders which provide the protection being sought by the local authority in this case. This remedy was not available at the time of the Birmingham case.

In this case, the local authority had recognised this but had sought orders from the High Court simply as an interim measure until the matter could be dealt with by the criminal courts. The undertakings that the judge had previously invited the Respondent to give did not, he concluded, fall either within the objectives of the applicable legislative framework or within the parameters of the powers of the inherent jurisdiction. He therefore discharged the undertakings.

Summary by Sally Gore, barrister, Fenners Chambers

KG v LG (No 2) [2015] EWFC 64

After cohabiting for 9 years then a marriage of 13 years, the husband and wife divorced. A consent order was approved by the court on 1 June 2010 which provided that the former matrimonial home, valued at around £3.25 million, would be transferred to the wife along with a lump sum of £4 million which was to be paid in instalments over about 8 years. The husband was also to pay annual child maintenance of £10,000 for each of their three children. This order resulted in the wife receiving almost half the husband's disclosed assets

Subsequently, the wife discovered that a trust set up by the husband's family benefitted the husband rather than the children, contrary to the husband's disclosure during the financial remedy proceedings. Indeed, the husband had received over £9 million from the trust since the divorce four years earlier.

Upon this discovery, the wife acted promptly and was granted permission to appeal out of time. Moor J considered the leading case of Livesey v Jenkins [1985] AC 424 and noted that the husband's non-disclosure of the details of the trust was material and that, as the wife did not have access to the trust deeds or accounts, she had been reliant upon the husband making full and frank disclosure in that regard. The wife was found to have acted promptly as soon as the trustees had informed her of the exact nature of the trust. The judge accordingly set aside the consent order.

Summary by Sara Hunton, barrister, Field Court Chambers

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Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039 (Fam)

Russell J was concerned with W, a 2½ year old girl, who was made subject of care and placement orders in September 2013. Mr and Mrs A (with whom W had been placed for 16 months) applied for an adoption order under s.46 of the Adoption and Children Act 2002 (ACA 2002).

W had three older full siblings (aged 11, 8, and 6) who remained living with their father during the original care proceedings. At the conclusion of the care proceedings, the older siblings remained with their father with supervision orders and W remained in foster care and care and placement orders were made. In December 2014, the father was granted permission to oppose the making of an adoption order and in May 2015, the Court of Appeal allowed the father's out of time appeal against the care and placement orders (see Re H [2015] EWCA Civ 583).

The decision for the court was whether the welfare of W was best met by reunification with her birth family or by being adopted by Mr and Mrs A. Russell J summarised the history of the proceedings in detail and concluded that the factual matrix leading to the final orders in the care proceedings was at the lower end of the threshold criteria necessary to make a care order enabling removal of a child from her parents and siblings.

The case law requiring a proportionate approach was rehearsed, including the decision of Re B [2013] UKSC 33 and subsequent cases. An adoption order could only be made if it is justified having given paramount consideration to W's welfare throughout her life and the provision of s.1 of the ACA 2002. The court can only make an adoption order if it is necessary – it is not enough to be better for this child to be adopted than to live with her birth family.

When balancing the options of W returning to live with her father and siblings and being adopted by Mr and Mrs A, the court noted that the As care of W had been of a high standard and it was accepted that W is settled, thriving, happy and healthy. However, Russell J concluded that, at the time of the original care proceedings, the decision for W to remain in state care with a plan for adoption was, at best, finely balanced. This was underlined by the Court of Appeal's decision to set aside the care and placement orders. Had the principles of Re B been followed in the original care proceedings, it was highly likely that W would have been placed at home with support.

There were undoubtedly risks in moving W from the As to her birth family, including that she would experience distress and perhaps suffer trauma for a period. However, this possible harm to W is likely to be short to medium term and is capable of being overcome with appropriate professional support. This was balanced with the likely considerable difficulties if W remained with the As and later tries to come to terms with the circumstances of her adoption and the knowledge that she alone of her siblings had been denied the opportunity of being brought up within her own family and that her adoptive parents were party to that denial. The difficulties that W would encounter as an adopted person where the Court of Appeal had set aside the placement order would affect her throughout her life and would impact her sense of belonging and identity.

Russell J concluded that the father is capable of supporting W through a distressing short-term transition and that the difficulties are not sufficient to deny W her place within her family of origin. The facts of this case do not amount to a situation where "nothing else will do". The fact that W has been with the As for 16 months and is settled may mitigate against a move in the short-term, but it cannot form the reason for W to remain in an adoptive placement when balanced against her welfare for the rest of her life. The local authority has an obligation in law to bring about reunification and to provide the help, support, advice and assistance necessary to so do.

Russell J considered it regrettable that the older siblings' views were not put before the court as their Article 8 rights were engaged and the court should have had regard to their wishes and feelings pursuant to s.1(4)(f)(iii) of the ACA 2002. In the absence of direct representations from the siblings, the judge assumed that they would want their sister to live at home with them and their father.

Summary by Ariel Ricci, barrtister, Coram Chambers

R v R [2015] EWCA Civ 796

The issue on this appeal was whether an order for the husband to pay interim maintenance to the wife circumvented Ukrainian sanctions legislation to which the husband is subject. The parties are Russian citizens. The wife who is resident in this jurisdiction made an application for interim maintenance to be paid by the husband to her bank account held in Russia by a Russian bank.

The Husband lives in Russia. He is subject to sanctions imposed by Council Regulation (EU) No 269/2014 ("the EU Regulation"). He is named in a schedule which was later adopted to those Regulations. The primary effect of the EU Regulation is that the husband's assets are "frozen" in the EU, and that no-one can "deal" with them in the EU and a person within the EU cannot participate in his dealing with them.

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Moor J ordered the husband to pay the wife interim maintenance to an account held by her with a Russian bank in Russia. On behalf of the wife it was argued that this order circumvented the prohibition contained in the EU Regulation. The lead judgment of the Court of appeal is given by Lady Justice Arden, who sets out the scheme of the Regulation from paragraphs 10 to 13.

On behalf of the husband it was argued that "by ordering payment in Russia so that the Wife can bring the funds into the EU free from the asset freeze imposed on the Husband, the court is participating in a circumvention of the prohibition". Had the court ordered the payment to be made into the wife's English bank account, this would have constituted a breach of the Regulation and the money paid would have been frozen. Thus, it was argued that on taking a step which the court would not normally take, with the object or effect of avoiding the restrictions in the EU Regulation, it circumvents the said Regulation.

The wife argued that the order of Moor J did not in itself transfer the funds such that it could be argued that it amounted to "dealing" contrary to the Regulation. As the order was not "dealing" with the funds, it was a valid order and not one that circumvented the Regulation. On the true interpretation of the EU Regulation and the UK Regulations, the making of a court order against a designated person for payment of a sum of money was outside the prohibitions on dealing with the frozen funds. In addition, Article 5 of the Regulation recognised two distinct stages in the making of an order and its enforcement.

Lady Justice Arden stated that the first guiding principle is that each set of Regulations must be construed as a consistent whole and in a way in which enables all the Articles or Regulations in question to have effect. Article 5 enabled the court to make an order even if it 'dealt' with funds as the competent authority (in the UK, HMRC) was empowered to authorise the use of frozen funds to meet claims. The second guiding principle is that both sets of Regulations should so far as possible be construed consistently with the EU fundamental right to effective judicial protection. There is no reason for the EU Regulation to take away the wife's right since funds and economic resources to which the EU and UK Regulations apply (see Article 17 and Regulation 1(2)) cannot be used for meeting the order unless the competent authority gives its permission for using those assets.

Under Article 9, a court order would only circumvent the Regulation if the order dealt with funds or economic resources and intended to achieve a dealing without a licence from HMRC. In accordance with Article 5, where a court order has been made the relevant condition is that the funds are "subject to" the court order. It was not necessary to determine the meaning of the words "subject to" as there was no suggestion by the husband that he would not pay the sum ordered.

The two-stage process involved in making an order and thereafter the requirement to seek a licence led the court to conclude that the making of a court order for the payment of money is a self-standing valid and effective act. As the order could have required the money to be paid in the UK without infringing the Regulation, it follows that there was no breach by requiring the payment to be made in Russia. There cannot be a circumvention of a measure by adopting a means which the EU Regulation permits. Lady Justice Arden took the view that it was unnecessary to express a view on the meaning of the word 'circumvent'.

Lord Justice Briggs agreed with the conclusion of Lady Justice Arden. However, His Lordship went on to consider whether Moor J's order did in fact circumvent the Regulations by adopting an "abnormal route" for the payment of the money. The payment of interim maintenance by a divorced Russian husband to his divorced Russian wife in Russia was outwith the scope or regulatory purpose of the sanctions regime created by the EU Regulation, unless it was effected by conduct, or with the use of funds or economic resources, within the Union. Further, it is no part of the scope or purpose of the EU Regulation to prohibit or regulate the making by EU judges of orders which they have jurisdiction to make about interim maintenance, or any other orders vindicating or protecting the rights of those entitled to seek their aid. Thus, the learned Judge concluded that there was no such circumvention when the court employed a lawful route to achieve a lawful objective.

Lord Justice Ryder, agreeing with Lady Justice Arden and Lord Justice Briggs, considered that the misunderstanding at the heart of this appeal was that what was ordered by the court below was 'abnormal' as distinct from a 'normal' route for the provision of interim maintenance as a financial remedy.

The husband's appeal was dismissed.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

Re P (A Child) [2015] EWCA Civ 777

The mother appealed an order of HHJ Hernandez refusing her permission to oppose the making of an adoption order in respect of her child F, aged 19 months at the time of the hearing. The issue was whether the judge was wrong in finding that the mother had not shown sufficient change to satisfy Section 47(7) of the Adoption and Children Act 2002.

Following a very difficult childhood, the mother, who is 34 years of age, had had four children previously removed from her care and had spent around 11 years in total in prison. F was the fifth of the mother's six children. F's foster carer, with whom he was placed from the time he was three days old, had been approved as an adoptive parent. The mother's child

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R was born shortly following her last release from prison. In care proceedings involving R an order had been made for Dr Kate Hellin to "review the many reports that had been prepared on the mother and see what, if any, therapeutic or professional input might break the cycle whereby the violent and uncontrollable outbursts, which had been a constant feature in her life from her own childhood, would once again prevent her from being safely able to care for a child".

At the time of the hearing involving F the programme devised by Dr Hellin had been running for a month. The local authority was considering re-uniting the child R with the mother. The judge concluded that there was evidence that the mother was trying to improve her relationship with those in authority but this had to be evaluated against a pattern of behaviour that had endured for 30 years. The judge concluded that the mother's engagement was "too uncertain and at too early a stage to amount to a material change of circumstances". In addition, in considering the likelihood of the mother successfully opposing the making of an adoption order, the Judge concluded that the mother was bound to fail in her attempt to care for F if she also had care of R. F was a child who had no attachment to the mother.

At the appeal Dr Hellin's latest report was available, and it was "most encouraging". The local authority and the guardian had agreed and the final care plan for R was that he be placed in his mother's care under the auspices of a final care order. R moved to live with his mother two months prior to the appeal hearing.

The grounds of the mother's challenge to the order of HHJ Hernandez are at paragraph 25. Inter alia, it was argued on behalf of the mother, that the hurdle was being set higher before leave was given to a parent where the foster carers were the proposed adopters. Lady Justice King disagreed and stated that " it is that the court has to weigh in the balance not only 'the likely effect on the child (throughout his life) of having ceased to be a member of the original family' (s1(4)(c)ACA202), but also the value to a child of a relevant relationship (here with the prospective adopter) continuing S1(4)(f)(i). Such an evaluation takes place in the context of all the facts found by the judge including the inevitable attachment of the child to its long term carer, a carer who may or may not have been the child's foster carer prior to becoming his or her approved proposed adoptive parent." The recent case of Re M'P-P (Children) [2015] EWCA Civ 584 was cited.

Each child's welfare had to be considered separately. The Court of Appeal found that the judge did not fall into error either in his analysis of the law or in his evaluation of the welfare evidence prior to dismissing the mother's application for leave. The judge had the inestimable benefit of having had the conduct of various proceedings involving the mother over a 3 year period. He had conducted the trial in March 2014 which had led him to the conclusion that adoption was necessary and proportionate in respect of F; in other words that the high level of justification needed to approve plans to permanently separate a child from his family of origin had been met.

Appeal dismissed.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

Ilott v Mitson & Others [2015] EWCA Civ 797

The appellant was in her 50s, did not own a property, and did not have a pension. She was residing in council accommodation and reliant on benefits. She was the only child of the deceased.

The deceased's estate had a value of £486,000 and in her will, the deceased left her entire estate to be divided between three charities (with whom she had no connection during her lifetime). The appellant and the deceased had been estranged for some 26 years.

In the first instance proceedings on 7 August 2007, DJ Million made an award of £50,000 in favour of the appellant. The award of £50,000 was intended to represent an annual income of £4,000.

On 3 March 2014, Parker J dismissed the appellant's appeal from that order. By an appeal to the Court of Appeal, the appellant sought sufficient funds to acquire a property worth £143,000, relieving her of a liability of £4,793 p.a.

The issue in the appeal was whether the order of DJ Million should have been set aside for error and if so, and the court decided to re-exercise is discretion, whether reasonable financial provision could and should be made for the appellant's maintenance which relieves her everyday living expenses without affecting her state benefits and if so, how much.

The appeal was allowed.

The Court of Appeal identified two fundamental errors in the judge's reasoning which led it to set-aside the order:

1. The Judge limited his award to an amount which equalled the appellant's state benefits on the basis that she has been able to live within her means for a long time and due to her lack of expectation. This is wrong in law applying Re Watson [1999] 1 FLR 878 at 890 where the court rejected the idea that a claimant has no need for the purposes of the 1975 Act if she has been living within her means: "…just because the person manages to live within his or her income does not mean that that income fulfils all his or her "needs" or "requirements" let alone "reasonable requirements".

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2. The Judge did not consider what the net effect of his order would be vis-à-vis the impact on the appellant's state benefits. Although this information was not provided to him, he should not have proceeded without it. The whole purpose of the order was undermined by the fact that the award of £50,000 would lead to a consequential loss in benefits which left the appellant in a worse off position than she would have been had the order not been made.

In the re-exercise of the court's discretion, the court considered the factors in s.3(1) of the Inheritance (Provision for Family and Dependants) Act 1975 and concluded that the applicant's needs were not met and her present income is not reasonable financial provision. The court made an award of £143,000, the cost of acquiring a property, together with the reasonable costs of acquisition of a property.

In addition, the court awarded her an option which she could exercise on notice to the respondents, to receive a capital sum of £20,000 out of the estate to supplement her state benefits without the necessity of an equity release. This produced a Duxbury income of £331 net per year for life. The court noted that this was a very small amount but it was due to the other factors which on the facts of this case weighed against her.

Summary by Lily Mottahedan, barrister, 1 Hare Court

W-J (Children) [2015] EWCA Civ 788

The case concerned an application to remove the youngest of four children (whose older siblings had all been placed with family members). The mother, although possessed of many positive features, had a personality disorder that led her to suffer from sporadic, unpredictable losses of control during which she became physically violent. The children had witnessed this and, on two recent occasions, had suffered minor injuries.

The local authority, having found that placing the mother and youngest child (T) with the grandmother, was not sufficiently protective and, having exhausted other family options, sought an interim care order with a plan to place T in foster care.

By reason of the positive aspects of the mother's care, the guardian (with the clear approval of the judge) wanted to "move heaven and earth" to find an appropriate form of residential setting to enable mother and child to remain together. Although, during the course of the hearing, the local authority tried (unsuccessfully) to identify such a placement, it nevertheless considered the risks too great and pursued the application.

The mother argued both that more time should be given to find a placement and that, even in the absence of this, the court should use the jurisdiction of the HRA 1998 to grant an injunction requiring the local authority to keep the mother and child together, leaving it to the authority as to exactly how to achieve that end.

In coming to his decision as to the making of the order, the judge did not have the option of such a placement before him. Confronted with this and having considered the risks and the welfare checklist and having applied the correct legal test, with a "heavy heart", he made the order sought.

The judge did, however grant the mother's application for leave to appeal, following which, underpinned by a strict regime of supervision, a series of short stays were granted until the matter could be heard on appeal.

During that period, investigations produced several potential placements.

By the time of the hearing, the grounds of appeal had narrowed to an argument that the Judge ought to have adjourned to allow more time for investigation and that, if a placement had been identified but refused by the local authority, he ought to have concluded that it was acting unlawfully and made a mandatory injunction to keep the mother and child together in that placement.

In respect of the request to adjournment, although this had not been made in plain terms, the Court of Appeal construed it in favour of the mother.

The judge had had to "face up" to matters as they stood before him. On the evidence, he was entirely justified in concluding that it was unsafe for the child to remain at home with the mother beyond the day on which he gave judgment. He was entitled to take account of the frightening aspects of the mother's care that meant that the older children did not want to return to her, that T was too young to be able to speak up and that the nature of the risk was such that it could not be foreseen or controlled. Regardless of the form that the application to adjourn had taken, it was hard to see how a different conclusion could have been justified on the basis of the judge's analysis.

With regard to the human rights aspect, at first instance, all that had been argued was that the court should injunct to prevent separation; an argument which could not have succeeded as there was no safe option. Ordering an injunction to

www.familylawweek.co.uk Family Law Week August 2015 - 90 prevent separation would have entailed the mother and child staying (unsafely) at home. It would have been impossible for the judge to make such an order.

The submission to the Court of Appeal was argued on a different footing, namely that the court should have granted a mandatory injunction predicated on the basis that the court had jurisdiction under the HRA 1998 to intervene where unlawful activity had occurred. Although prepared to "contemplate" the existence of such a jurisdiction, there was no reported case in which it had been deployed. Moreover, the argument had simply not been raised before the judge. The Court of Appeal would not entertain what was a "completely fresh" application.

On that basis, looking at the decision of the judge, all he was doing was making a short term welfare decision in a worrying case and, although important, his determination had been made carefully on the supporting evidence and the correct legal test and was unremarkable.

Accordingly, the appeal should be dismissed.

Summary by Katy Rensten, barrister, Coram Chambers

Re NH (1996 Child Protection Convention Habitual Residence) [2015] EWHC 2299 (Fam)

The London Borough of Sutton made an application for an order under the inherent jurisdiction of the High Court or Part IV of the Children Act 1989 in unusual circumstances, leading Mr Justice Cobb to make a preliminary adjudication on the jurisdiction of the court.

The application concerned NH, a 15 year old child, a dual national of Zimbabwe and Canada. In brief, it was found that he had lived an unsettled life; he had not attended any school for more than one year. For the last three years he had lived in Switzerland, though had been educated during that period in residential schools in both Zimbabwe and Germany. He had spent two months this year in residential care in Zurich.

On 25 April 2015, NH arrived in this jurisdiction, believing he was travelling here for a holiday. The following day his mother de-registered him as a resident in Switzerland despite the fact that he had an application to extinguish her parental responsibility pending, and that he was arguing for the right to remain in Switzerland. Her action rendered those proceedings 'obsolete'. On 28 April 2015, the mother arrived in this jurisdiction. Her intention was for NH to attend a therapeutic clinic and residential boarding school in Zimbabwe. NH was said to be adamantly opposed to this outcome and had no intention of complying with his mother's wishes. The mother argued that NH was beyond her control. It was noted that no independent observer had witnessed the challenging and aggressive behaviour in NH that the mother described.

On 8 May 2015, there was an incident between NH and the mother. NH alleged that he had been assaulted by his mother. The local authority commenced proceedings seeking to make NH a ward of the court. Roderic Wood J declined the application and made a time-limited interim care order using the emergency jurisdiction conferred on the court by the 1996 Hague Child Protection Convention.

The full background to the case is set out in paragraphs 10 to 21 of Cobb J's judgment. His Lordship records that, following liaison with the Swiss authorities, the parties and the court were informed that the latter were "unable to determine" NH's habitual residence in Switzerland. They volunteered the view that pursuant to the 1996 Convention the State of the child's presence had jurisdiction.

At paragraphs 22 to 24 Cobb J sets out his analysis of the applicable articles of the 1996 Convention. Whilst noting that the issue did not strictly arise in this case, Cobb J finds that under Article 5 of the 1996 Convention habitual residence is to be determined as at the date of the hearing.

In determining NH's habitual residence the learned judge took account, in particular, of his state of mind given his age and his mother's intention. NH had stated that his perception of home was Switzerland and had described Canada as "his nation". The mother argued that NH was habitually resident in Zimbabwe based on his birth there and her intention that he should return there.

Cobb J "unhesitatingly" rejected the mother's argument. Further, while taking into account NH's own views of his habitual residence, Cobb J found that this did not trump other factors just as the illegal immigrant who earnestly wishes habitual residence in a particular country cannot acquire it: see Baroness Hale in Re LC [2014] UKSC 1 at §59. At paragraph 37 of his judgment, Mr Justice Cobb sets out the evidence which he states "more powerfully" points to a conclusion that NH is not habitually resident in Switzerland. The most significant factor was, perhaps, the fact that the Swiss authorities did not regard NH as being habitually resident there.

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His Lordship found:

"39. It will, I consider, be a relatively rare case where it is impossible to establish a child's habitual residence; such a conclusion is likely to reflect a material level of rootlessness in a child, which is not common and may indeed be indicative of some interference with the child's emotional and/or physical welfare and development."

The court considered that on the facts of this case it had jurisdiction by virtue of Article 6(2); that is, a jurisdiction of necessity.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk

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