Family Law Week December 2011 - 1 December 2011

News 1 report, the decision will provide clarity Analysis NEWS for countless couples who buy property together about whether and, if so, how Finance & Divorce Update 23 Jones v Kernott: Supreme Court their original agreements can be Autumn 2011 judgment to be delivered on reinterpreted by a court months or years Mesher Orders in Practice 26 Wednesday, 9 November later on the basis of what might be considered fair. Depending on the Jones v Kernott – Another 29 The Supreme Court will deliver its judgment, it may be that family lawyers helping of the witches' brew? judgment in Kernott v Jones on who specialise in this complex area will be advising clients that living together Wednesday, 9 November. The case was The Proceeds of Crime Act 32 heard in May 2011 by Lord Walker of agreements and declarations of trust are 2002 in Financial Remedy Gestingthorpe, Lady Hale of Richmond, essential if they are not to be prejudiced Proceedings Part 1. if the relationship breaks down." Lord Collins of Mapesbury, Lord Kerr of The Proceeds of Crime Act 37 Tonaghmore and Lord Wilson of 2002 in Financial Remedy Culworth. The judgment in the Court of Appeal can Proceedings Part 2. be read here. One step forward, one step 42 The issue which the Supreme Court will back: Jones v Kernott decide is "whether a court can properly An article by Rebecca Bailey-Harris and 45 infer an agreement by an unmarried John Wilson (Hang on a Minute! (Or is Alternative Methods of Family Dispute Resolution couple, who hold a property in equal Kernott the new White?)), can be read here. shares at the date of their separation, to Cases the effect that thereafter their respective beneficial interests should alter." In C (Children) [2011] EWCA 48 determining the outcome, the Supreme Norgrove Review criticises Civ 1230 Court will review the decision by the G v M [2011] EWHC 2651 ‘damaging delays’ in family (Fam) House of Lords in Stack v Dowden [2007] justice system A Local Authority v PB and P UKHL 17. [2011] EWHC 2675 (CoP) The Family Justice Review panel, under The judgment and Supreme Court's AR v AR [2011] EWHC 49 the chairmanship of David Norgrove, has 2717 (Fam) summary will be published on the announced a package of Jones v Kernott [2011] Family Law Week website as soon as recommendations aimed at tackling UKSC 53 they are available on Wednesday. Family delays in the family justice system and to Law Week will alert all of its email A v B [2011] EWHC 2752 50 make sure that children and families are (Fam) subscribers by email as soon as that has given the service they deserve. The been done. Review can be read here. BJ v MJ (Financial Remedy 51 OverseasTrusts) [2011] EWHC 2708 (Fam) Family Law Week is delighted to The key recommendations are: announce that an article setting out initial thoughts and possible implications of Ÿ D (Children) [2011] EWCA 52 A new six month time limit in Civ 1294 the judgment, written by leading care cases so delays are Cheshire West & Chester barristers Rebecca Bailey-Harris and significantly reduced Council v P [2011] EWCA Civ 1257 John Wilson QC, both of 1 Hare Court, Ÿ Enabling people to make their will be published on the Family Law own arrangements for their Z v Z (No2) [2011] EWHC 53 Week website very soon after the children when they separate, 2878 (Fam) judgment has been released. Re T v T (Occupation and only use courts when Orders, Brussels I and necessary Protective Measures) Alison Hawes, a partner with irwin Ÿ Overhauling the family justice [2010] EWHC 3776 (Fam) Mitchell, empahasised the importance of system so that agencies and the forthcoming judgment. professionals work together A and L (Children) [2011] 54 EWCA Civ 1205 with greater coherence to "In the context of the government saying R (SA) v Kent County improve the experience and Council [2011] EWCA Civ they will not act on the Law Commission 1303

LB of Tower Hamlets v BB 55 Family Law Week is published by GENERAL EDITOR [2011] EWHC 2853 (Fam) Stephen Wildblood QC Law Week Limited W (A Child) [2011] EWCA 56 Greengate House Deputy Editor Civ 1362 87 Pickwick Road Claire Wills-Goldingham A London Borough v O and Corsham Albion Chambers Others [2011] EWHC 2754 SN13 9BY (Fam) Tel & Fax: 0870 145 3935 R (AS) v London Borough of 57 Croydon [2011] EWHC 2091 (Admin) www.familylawweek.co.uk Family Law Week December 2011 - 2

outcomes for children and system for children and children when parents divorce. This is families. families the most comprehensive and far- Ÿ More judges who are reaching review of the family justice These recommendations follow the specialists in family law to system since the Children Act in 1989. independent review panel findings hear cases from start to finish The final review has now been formally that the current system of family justice to ensure consistency and presented to the Ministry of Justice, is under huge strain. The panel confidence in the system Department for Education and the concluded that rising caseloads Ÿ A simplified court structure Welsh Government for consideration. coupled with incoherent organisation making it easier for people and processes are causing damaging using the courts to know The Review can be read here. delays for children and families. It where to go takes on average over a year for an Ÿ More child focus and better outcome in a care case. The backlog of training for professionals to Professional groups welcome cases in the public law system means make sure children's views the key proposals of the that there are around 20,000 children are heard. waiting for their futures to be decided. Family Justice Review Changes to public law (protecting David Norgrove, chair of the Family children and taking them into care) to The Bar Council, Law Society, Family Justice Review, said: deliver more quickly for children: Law Bar Association and Resolution have all welcomed the main proposals 'Our package of Ÿ A six month time limit for all contained in the final report of the recommendations to the cases, save in exceptional Family Justice Review, chaired by Government and the judiciary circumstances David Norgrove. However, all of these will make the current family Ÿ Less reliance on unnecessary bodies have also questioned whether justice system more effective. expert witnesses and reports the vision set out in the Review is We need to eliminate the Ÿ Refocusing the courts on the achievable if the Legal Aid, Sentencing shocking delays in the system. core issue of determining and Punishment of Offenders Bill whether the child should go enters the statute book in its current 'This is why we are into care. form. The Bill has recently completed recommending legislation to its passage through the House of ensure that child protection Changes to private law (arrangements Commons. cases must not be allowed to about children and money following take any more than six months, separation), to create a simpler service By contrast, Families Need Fathers save in exceptional for families who are separating, aimed considered the proposed reforms circumstances. at helping them and their children inadequate to address 'the deep-seated focus on reaching a safe, joint problems at the heart of the family 'We also propose better ways agreement, if possible, without going justice system'. for parents to be helped to keep to court: the focus on their children as The responses are set out in detail they separate, with information, Ÿ A single online and phone below. education and mediation, and help service to make it court action only if all that fails. simpler for people to decide Bar Council and the Family Law Bar Association the most appropriate way The Bar Council and the Family Law 'Every year 500,000 children forward and increase clarity Bar Association (FLBA) have and adults are involved in the of understanding welcomed the key proposals of the family justice system. They Ÿ Use of Parenting Agreements Family Justice Review, contained in the turn to it at times of great stress and a new 'child final report published today. They and conflict. It must deliver the arrangements order' to bring have, however, voiced concerns about best possible outcome for all the together arrangements for its ambitious vision of the future of children and families who use children's care after family justice in the face of drastic it, because its decisions directly separation, focusing on the proposed cuts to family legal aid. affect the lives and futures of all child rather than 'contact' and those involved, and have 'residence' The Bar Council and FLBA have repercussions for society as a Ÿ Increased provision of pointed out that the report is published whole.' mediation to prevent cases as the Legal Aid, Sentencing and going to court unnecessarily. Punishment of Offenders Bill The panel recommend: completes its passage through the The panel declined to recommend a House of Commons almost completely A simpler system to deliver an presumption of shared parenting intact, moving on to the Lords improved service: arrangements. complete with provisions to remove private family law, almost in its Ÿ The creation of a Family The independent panel was appointed entirety, from the scope of legal aid. Justice Service to make sure to review the whole of the family agencies and professionals justice system in England and Wales, Stephen Cobb QC, Chairman of the work together to make looking at all aspects of the system FLBA, said: positive improvements in the from court decisions on taking children into care, to disputes over contact with

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"The final report of the Family On 16 November, Stephen Cobb QC been in need of reform. But at Justice Review rightly places will join David Norgrove on the panel the same time, the Legal Aid, children and families at the of the second 'Bar Debate', the topic of Sentencing and Punishment of centre of its ambitious which is 'Broken Britain, broken Offenders Bill will remove legal proposals for reform. It is a families: what next?', where the aid provision for the vast lengthy and detailed document, Review's recommendations and the majority of family law cases, to which the FLBA will respond legal aid cuts will be discussed in more meaning that some of the most more fully in due course. We detail. vulnerable families, and their are pleased with many of its children, will struggle to access recommendations which, if Resolution the professional legal advice implemented, should reduce Resolution likewise considers that and support they need, even if the scandalous delays which publication of the final report by the the processes are simplified." currently exist in the family Family Justice Review Panel presents a justice system. major opportunity for progressive Meanwhile, Resolution stated that reform of family law – but progress findings from a survey by Citizens "The FLBA supports the could be seriously undermined by the Advice and Resolution further creation of a more effective Government's controversial plans to highlighted the pressing need for the family justice service, and cut family legal aid. Government to amend the Bill. supports proposals for family judges to have greater Resolution said that while the detail of Law Society leadership and management the report needed careful scrutiny, the The Law Society has said, in response responsibility for their courts. overall direction of the panel's to the review of family justice which it Judicial continuity in family recommendations could mean that describes as the most comprehensive cases, for which the FLBA family law processes become more and important since 1989, that radical lobbied hard during this streamlined and easier for parents and and sustained change to the family review, is to be a key feature of children alike. justice system could not come soon new case management culture. enough. David Allison, Chair of Resolution, "If we take one key message commented: Law Society Chief Executive Desmond from these proposals, it is the Hudson said: proposed eradication of delay "As an association committed to in the resolution of disputes the constructive resolution of "Children are at the heart of concerning children. In this family problems, we welcome family justice and their welfare respect, the Family Justice the Family Justice Review as a should be paramount. Today's Review is right to be concerned springboard for progressive delays in public law cases by the inevitable rise in the reform that makes family law fit amount to a national disgrace - number of unrepresented for purpose in the 21st century. many children in particular are litigants who will populate the being failed by the system. The family courts if the legal aid "Long and complicated legal report's recommendations will proposals are implemented as processes are emotionally and need study and action by all drafted. financially draining for parents parts of the system - judges, and distressing for children. lawyers, social workers, "While the Review Panel points Any moves to make family law guardians and by the to various strategies to assist less combative, such as the Government too, because many parties in resolving disputes report's emphasis on alternative of these changes will need away from the courts, or to dispute resolution methods are resourcing. Even in this assist them while to be encouraged." straightened times, the unrepresented in the courts, the Government has to find the panel rightly reflects that these Nevertheless, Resolution believes that money. initiatives 'are by no means a the publication of the final report the full answer' to what we believe day after the Legal Aid, Sentencing and "Legal aid cuts will lead to more will be a very serious problem. Punishment of Offenders Bill leaves people going to court the House of Commons demonstrates unrepresented, and family "The Review rightly recognises the fragmented nature of the courts slowing down even the vital role that family Government's approach to family law. further. More people will have barristers and solicitors play in The negative effect of the legal aid completely unrealistic the speedy resolution of cases. changes – not least the inevitable rise of expectations of the process This will, however, count for the number of people representing because they haven't had a little if the Government pursues themselves in court (litigants in family solicitor's advice. these cuts. In that event, the person) – is an area of particular pool of talented family lawyers concern raised in the report. "The report's overall aims will be significantly diminished should attract wide ranging at the expense of children, David Allison said: support. We share its families and the family justice recognition of the need for system." "The Family Law Review is a radical and lasting change watershed moment for family within family justice. law, something that has long

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"Despite the huge commitment the improvements we've made Nagalro shown by many of those in our work with children and Nagalro, the professional association working in family justice, the ensure they get the best possible for court guardians and independent system is failing. Cases are service in the timeframes which social workers, has welcomed the taking too long, causing harm to they need. Care application commitment to tackling the damaging children and families." figures for October have delays which are endemic within the already topped 800, making it system. Association of Lawyers for Children the highest October we've ever The ALC proposes to issue a recorded and highlighting the In particular it welcomes: considered response to the final report urgent need for all of us in the Ÿ later this month. The Chair of the system to work together more The support for the 'tandem Review Panel, David Norgrove, has effectively and more rapidly on model' of independent legal agreed to speak at its annual behalf of children. We support and social work conference in Manchester on 11th the panel's calls for the representation for children November 2011. development of a more within the FJR report responsive and child-focused although we strongly oppose In the meantime the ALC has been system and will play our full in-house legal representation pleased to note that the Review has part in its development. for children. again asserted the need to place Ÿ The decision to recommend children at the heart of whatever "We are already working on a against a legal presumption changes are to be made, and that the number of projects that any new around shared parenting. Ÿ tandem model of a child's family justice system would be The FJR recommendation to representation by a solicitor and proud of. These include incorporate the UNCRC into children's guardian has been funding around 15,000 parents domestic legislation which is confirmed as the best way to ensure onto parenting programmes so a key requisite to hearing the that a child's voice is properly heard in far this year to help them voice of the child in the proceedings involving state resolve their disputes out of proceedings. Ÿ intervention. The Association is also court, and the establishment of The commitment to glad to see that a number of a Police National Computer interdisciplinary training and recommendations which it proposed, unit at our National Business induction for family court in order to reduce delay, have been Centre to ensure that we receive professionals. Ÿ accepted, e.g. an end to parallel vital information on the safety The recommendation to scrutiny by an adoption panel of and welfare of children more consider amending s34 whether adoption is in a child's best quickly than ever before. In the CA1989 to include an interests, where a plan of adoption is West Midlands, we are working assumption of reasonable already being considered by a court. with Coventry and contact between siblings. Ÿ Warwickshire local authorities The Review's endorsement of Cafcass on a project to try to divert some the need for more research Cafcass has welcomed the panel's care applications from court, into the contribution of proposals for a more child-focused and and to ensure that in those cases Independent Social Work faster family justice system. which do have to go to court, expert witnesses to the work there is less delay as a result of of the family courts. Anthony Douglas, Chief Executive, the detailed preparation work said, between Cafcass Guardians and However, the association warns that local authority social workers. the recommendations risk dismantling "We welcome the panel's constitutional protective mechanisms emphasis on the needs of "We are also joining forces with for children by substantially reducing vulnerable children in these the local judiciary and Suffolk the level of judicial oversight of local cases and on the focus it has County Council on a project authority decision making, leaving given to tackling the corrosive with parents who have lost their children more vulnerable to wrong effect of delay on their lives. In children through care decisions being made on the basis of particular, we welcome proceedings to help them make insufficient proposals for a time limit in the changes needed to prevent evidence. public law cases and the any of their future children development of a child's being taken into care. Whilst the The association also notes that the arrangement order in private panel is clear that there is no report is silent about Cafcass and ducks law cases, so that in both types magic solution to the pressure the key question of whether Cafcass's of case the child's deadline takes we are all under, each of these new 'proportionate' operating model precedence over bureaucratic initiatives shows that the meets the statutory criteria necessary to processes. Change has already system can change positively ensure that children receive the service begun but, as the panel through the stronger working and protection they need. Services to recognises, it must accelerate. together model it is proposing children, it says, have already been and by ensuring our combined substantially pruned back in both "With significant numbers of resources are used to help public and private law. It is of new children needing children in the most effective particular concern that Cafcass' key professionals' help every day way." performance indicators conceal the fact our top priority is to maintain that many children are not being seen.

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from introducing further delay. Association of Directors of Children's We acknowledge that there is All of these are positive and sensible Services significant work to do to suggestions, BAAF believes, but they Responding to the release of the report, increase the judiciary's trust in do rely to some extent on another area Matt Dunkley, President of the local authority social work and of difficulty identified in the Review, Association of Directors of Children's vice versa and are committed to that of trust. Courts, social workers and Services, said: working with leaders of the Guardians all have a duty to put the judiciary locally and nationally welfare of the child first, but each part "ADCS welcomes this report to find ways of increasing our of the system appears not to trust the and believes its full mutual understanding and others to work together in the interests implementation will make a improved partnership working. of the child. Changing this is not major difference to the lives of We agree that this must include something that can be achieved children and families who find improved training and overnight. It is also important to note themselves in the family justice professional development for that trust has to be achieved in the system. The critique is fair, all those involved in making the context of making fundamental life including of local authority system work, and should build changing decisions about the future practice, and we also believe the on the ongoing work of the care of children where there is recommendations are the right Social Work Reform Board with disagreement and conflict ones. We need to give such a local authorities to improve the underpinned by a hope that things complex report careful quality of social work training, might change for the better. Systems consideration but for our part supervision and management. that work best when they are based on we are determined to assist A change in culture does not trust are also systems that are fully with implementation. require legislation and can and influenced by the fear of making the must begin immediately ? it is wrong decision and being held to "We have heard much recently the duty of all those involved in account for this. about the delays faced by the system to make it work in children requiring adoption the interests of children and BAAF notes that the report identifies and this report provides a clear young people." that "there is no further money to be and thorough explanation of had", so all the recommendations rely some of the reasons for delays British Association of Adoption and on change within the existing budgets in making these decisions. Fostering and on savings that the changes will Many of the proposed changes The British Association of Adoption hopefully make. There is much to be require primary legislation and and Fostering (BAAF) has said that the welcomed in this report, and some we urge government to publication of the Norgrove Review in areas where the potential savings in continue its commitment to National Adoption Week is a timely time risk reducing the protection of the improving services for children reminder that the deficiencies of the child's interests, but it is a call for a in care by bringing this adoption system are not restricted to major change in the mindset of all legislation into being as soon as the actions of local authorities and involved in the system to deliver possible. adoption agencies. The courts play a significant and dramatic changes. major role in the delays experienced by "In order to reduce delays it is children in moving on from their birth BAAF believes that if these necessary that all parts of the families to alternative permanent recommendations are accepted and Family Justice System have a placements. The length of time taken to there is a real will to engage in proper clear and consistent complete care proceedings has reform rather than headline grabbing understanding of their increased since the Review started 'quick fixes', this review could be the respective roles and work and now stands at an average of start of a real improvement in the responsibilities. The system over a year. One thing on which there experience of children caught up in the must make the best use of the is no dissenting voice is that this is an care and adoption system. different expertise available to it unacceptable state of affairs. in a culture of trust and mutual The Association hopes that the respect ? that means judges With regard to the headline Government will respond quickly to deciding, based on principles of recommendation that care proceedings this report and that it will issue a clear law and standards of evidence, should be completed within six timetable for the introduction of these who should have responsibility months, BAAF said that robust case much-needed reforms. for a child's care and social management by better trained and workers, who know the experienced judges of a single family British Association of Social Workers individual child and have court, consistently implementing and BASW too has welcomed the Family expertise in child development, enforcing a revised Public Law Outline Justice Review but warns against deciding the more detailed is one way in which the courts will be budget-driven policy. arrangements for a child's care. reducing delay. Experts will only be instructed when absolutely necessary, The Association has praised the 'many "The respective roles of local and those who are instructed will be positive elements' of the Family Justice authority social workers, the monitored for quality and how quickly Review final report whilst also court appointed guardian and they deliver their reports. Social warning against aspects which it any expert witness must be workers will be better trained in describes as 'over cautious' ' tokenistic' clarified to prevent duplicated assessment and court skills in line with and ' budget-driven'. or contradictory assessments the Munro report on social work.

www.familylawweek.co.uk Family Law Week December 2011 - 6 Commenting on the report, BASW provides the best outcomes for of duty on behalf of the review, chief executive Hilton Dawson said: families and children and gives and we implore the government people the chance to make their to reconsider this before "There are elements in the own decisions about their proposing legislation." report that we welcome, but future if they choose to overall it takes a somewhat mediate." In the view of FNF, the panel failed to cautious approach. We would appreciate that shared parenting and hope that the development of a Children's Society the right to a meaningful relationship unified family justice service Bob Reitemeier, Chief Executive of The with both parents is not a question of will make the system easier to Children's Society, said: time, but of involvement in the child's navigate for both children and physical, educational and emotional families. We also support calls "A radical overhaul of the development. for a robust legal framework, family justice system is long designed to work in tandem overdue. For too long, it has Ken Sanderson commented: with the reforms to child functioned as an incoherent, protection practice disjointed system that does not "The reduction of shared recommended by Professor meet the best interests of the parenting or a meaningful Eileen Munro and with the child. Delay in decision making, relationship to time alone in the work of the Social Work Reform a lack of understanding of child report is a complete Board." development and a culture that misunderstanding of the issues. often works against children Shared parenting is not about Striking several notes of caution, rather than for children has led an equal share of time; it is Nushra Mansuri, BASW professional to poor outcomes. The about ensuring the full officer, said: government should not delay in involvement of both parents in moving to reform the system so a child's life, with both parents "Allowing budgetary issues to that in every case the child's having an equal say in areas dictate what happens in cases concerns are at the heart of the such as education and health, as involving vulnerable children is decision making process." well as routine and leisure time. risky and unacceptable. We The adoption of these proposals oppose tokenistic target setting Families Need Fathers would continue to deny in the current climate of By contrast to most responses, Families thousands of children the full austerity and cuts. It is just not Need Fathers consider that the involvement of two loving realistic, and will only ever be recommendations made in the final parents following family feasible when social workers report are inadequate to address the breakdown, and to do so would are given the right level of deep-seated problems at the heart of be a betrayal of yet another resources. the family justice system, and are generation of children in this unlikely to improve outcomes for country in family law. "Coupled with planned cuts to children or their families. legal aid, this will demoralise "The UN Convention on the already beleaguered front line It believes that the report fails to Rights of the Child provides social workers who are toiling provide for children maintaining children with the right to a around the clock to deal with meaningful relationships with both meaningful relationship with increased caseloads. We are also parents and their wider family both parents following family concerned that a potential over following family breakdown. breakdown. This is not a reliance on mediation in private challenge to child welfare, but law could lead to children in Ken Sanderson, CEO of Families Need an enhancement of it to ensure such cases getting a poorer Fathers, commented: that children are fully service. supported financially and "Sadly, I believe that the report's emotionally. The denial of this "Sadly, this appears to be less focus on 'making parental by the Review is an opportunity about creating a child-centered responsibility work' is far too lost, and we urge the system, and more to do with optimistic when it comes to Government to properly cost cutting and devaluing improving long-term outcomes address this issue before professional practice." for children and their families. proposing future legislation." National Family Mediation." The problem is not that parents are inadequately aware of what National Family Mediation parental responsibility means; Resolution / CAB survey National Family Mediation has the crux of the matter is that it is highlights need for the welcomed the enhanced role of all too easy for one parent to mediation in the Family Justice Review. simply ignore this and omit the Government to amend legal other from their child's life, with aid plans Jane Robey, CEO of National Family a justice system which is unable Mediation, said: and unwilling to take firm Findings from a survey by Citizens action to prevent this. The Advice and Resolution have further "We welcome the Family Justice absence of any firm highlighted the pressing need for the Review and the enhanced role recommendations to strengthen Government to amend the Legal Aid, for mediators. Our mediators children's rights to a Sentencing and Punishment of receive the best training in the meaningful relationship with Offenders Bill. country and are experts in their both parents, and their wider field. We believe mediation family, represents a dereliction www.familylawweek.co.uk Family Law Week December 2011 - 7

Breaking up is never easy is based on secure the best possible CAB evidence gleaned from helping "Under current plans, there will experience and outcomes for with 168,000 cases involving be very little chance that people the families and children who separation, divorce, children and child will be able to find free become involved with the support. It points to a growing advice specialist legal advice, and their Family Justice System." gap in family law problems and warns situations are likely to mediation cannot take the place of legal deteriorate, leading to more In recognition of the importance of advice when families break up. public spending when things judicial leadership in relation to become so serious that the making the court process more efficient Findings from a survey by Citizens police or social services get while ensuring all parties' rights are Advice and Resolution of nearly 1,000 involved. The government is in properly protected, the President of the such cases found that over half (54 per danger of replacing a system Family Division, with the concurrence cent) needed to be referred to a family whereby problems can be of the Lord Chief Justice, has with law solicitor, and over 60 per cent were solved at an early stage at low immediate effect appointed Mr Justice eligible for legal aid under the current cost with one where only Ryder to take up the new post of Judge rules. expensive legal advice will be in Charge of Modernisation of Family available in emergency Justice. Sir Ernest Ryder was closely Almost two-thirds (65 per cent) of situations, by which time involved in the preparation of the those seeking advice from a CAB on significant damage will already Public Law Outline in 2007. family issues were women. Most (83 have been done, especially to per cent) were aged between 25 and 54, children." and more than half (56 per cent) had Siblings miss out on dependent children. She added: adoption, warns BAAF The research suggests that eight out of "Our bureau network is almost New UK-wide research reveals that ten clients needing help from a family certain to see an increase in adoption agencies are struggling to law solicitor and eligible for legal aid family breakdown enquiries as find homes for sibling groups. A under the current rules will no longer a result of legal aid changes – an general reluctance to adopt groups of qualify if the planned cuts go ahead. It increase which at present we brothers and sisters who need to stay warns that Citizens Advice Bureaux have neither the resources nor together means that these children may will not be able to fill the gap left by expertise to deal with. It's miss out on permanent homes, the cuts to family legal aid. therefore vital that the British Association for Adoption & relationship between family Fostering (BAAF) has warned. The report coincides with publication justice and advice services is of the conclusions of the government's strengthened and developed to The research, which was conducted Family Justice Review. ensure appropriate expertise in amongst local authorities and the sector to deal with family voluntary adoption agencies across Citizens Advice Chief Executive breakdown issues. The Family England, Wales, Scotland and Gillian Guy said: Justice Review provides a real Northern Ireland, was undertaken as opportunity to bring together part of National Adoption Week (31st "Every year half a million adults dispute resolution with family October – 6th November 2011). BAAF and children are involved in the welfare and money advice to is concerned that these children, family justice system, and for a tackle some of the most difficult alongside children aged 5 and over, high proportion the CAB is their issues arising from relationship and children with disabilities, may not first port of call for advice on breakdown." find a 'forever family' if more adopters issues involving divorce, do not come forward. separation, child support and child welfare. Mr Justice Ryder appointed Key research findings include: as judge in charge of "Family problems can be Ÿ 91% of adoption agencies said financially and legally complex modernisation of family that there is a shortage of as well as emotionally charged, justice families willing to adopt and the people we see very sibling groups often need specialist legal help Sir Nicholas Wall, the President of the Ÿ 80% of adoption agencies from family lawyers as well as Family Division, has welcomed the admitted it has become CAB advice. Our research findings of the Family Justice Review, harder to find families for points to a growing advice gap chaired by David Norgrove. sibling groups within the last in relation to family problems. 10 years Mediation and other services The President said: Ÿ All of the agencies asked told can offer an alternative to legal BAAF that they need more aid in some cases, but legal " The Family Justice Review people to come forward and advice and representation, Panel .... has taken great care to adopt harder to place money advice and good quality examine all aspects of cases children. general advice on family issues involving children. I recognise are essential to mitigate the the need for all agencies to work BAAF says that these figures reinforce worst effects of family together to reduce delay and the concerns highlighted by the recent breakdown. improve their practices to statistics released by the Department

www.familylawweek.co.uk Family Law Week December 2011 - 8 for Education which identified that the It is unacceptable for local Ÿ The MoJ predicts only 4,000 to number of children adopted from care councils still to be imposing 10,000 additional requests for had dropped to 3,050 – a decrease of these barriers. If there is a family mediation a year after 5% from 2010. loving family, ready and able to the cuts – despite adopt a child, issues of ethnicity withdrawing legal aid from David Holmes, Chief Executive of must not stop this from 255,000 family law cases, BAAF, said: happening. I cannot stress including child contact and enough how determined we are financial agreements. "The number of children to bring about radical reform of Ÿ The number of cases that will coming into care is increasing the whole adoption system, lose legal aid has risen from and a number of these children which has not worked in the 568,000 in the legal aid green will need to be adopted. It is interests of children in care for paper last year to 645,000 in worrying that the number of too long. It is not helpful when the Bill now before potential adopters coming myths such as this are given Parliament. But the claimed forward for those children who continued credibility in your saving to taxpayers has risen typically wait the longest – columns. by only £1m, from £279m to including sibling groups, £280m. No explanation is children aged 5+, and children Tim Loughton MP given for the fact that the cost with disabilities – is decreasing. Minister for Children and of the additional cases that Families" will be lost appears to be "For example, 75 sibling groups under £1.50 each. of three or more children, on the Adoption Register currently There are ‘major flaws’ in the In the second report, There is a better need to be adopted together. Government’s legal aid way, the Law Society sets out We desperately need adopters proposals which it says will: for those children. If costings, claims The Law prospective adopters do not Society Ÿ Save £360m without consider taking on brothers and removing legal aid for civil sisters who need to stay The Law Society has published two cases and family law for together, those children may reports to highlight major flaws in the hundreds of thousands of never find a forever family. government's legal aid proposals. Its vulnerable people. analysis shows that the projected Ÿ Increase productivity in "We strongly urge anyone savings are based on false assumptions courts. considering adoption to make and will incur further costs. The Ÿ Lead to more efficient that initial enquiry. Adoption is Society has proposed an alternative prosecutions. a great way to create, extend or plan to save the required £350m. Ÿ Make better use of complete a family – you could technology. transform a child's life for ever." In Missing Millions, the Law Society's Ÿ Apply penalties for wasting new analysis of the detail behind the court time. £350 million worth of savings claimed Ÿ Restrict fees of the highest- Tim Loughton responds to by the Ministry of Justice (MoJ) claims paid advocates to more Daily Mail’s ‘myths’ over that: sustainable levels and limit claimable travel expenses. inter-racial adoption Ÿ Most of the claimed savings have so little data or evidence The Law Society claims that its Children's Minister Tim Loughton has underpinning them that there alternative proposals provide at least written to the Daily Mail responding to can be no confidence they will £10m more in savings than the two articles stating that rules are in be achieved. Government says is required. place about inter-racial adoption. The Ÿ The MoJ admits that it does letter states: not have evidence to support its position in 15 separate Child Support Agency seizes "Dear Sir, statements in the impact record payment from father’s assessments published with You are quite wrong to suggest the Bill. bank account that adoption rules on ethnicity Ÿ The same impact assessments remain in place, and it's include 30 admissions by the A record-breaking single payment of concerning to see a further story MoJ that it is speculating on £108,000 has been forcibly deducted on this in your paper yesterday the likely effects of its from a father's bank account in (2 November). There are no proposals. settlement of outstanding child rules which bar white parents Ÿ When asked by the Justice maintenance. from being matched with a Select Committee to assess the black or mixed-race child, or cost of the legal aid cuts to The Child Support Agency says that black or mixed-race parents other Government the man had failed to pay any being matched with a white departments, the MoJ replied: maintenance for his daughter for more child. New guidance I "It is not possible to quantify than 16 years, refusing to respond to published in February could not accurately these wider costs." letters and calls from the CSA. Using have been clearer on this point. powers requiring banks to open up the

www.familylawweek.co.uk Family Law Week December 2011 - 9 accounts of indebted parents, years, the value of the Thundersley Lord Walker and Lady Hale: The investigators found enough money in a property increased and in 2006 Mr principle recognised in Stack v single deposit account to repay his Kernott indicated that he wished to Dowden is that where people purchase entire debt. The amount was frozen to claim a beneficial share in it. In a family home in their joint names the allow the man time to appeal and later response, Ms Jones, in 2007, applied to presumption is that they intend to own seized. the county court for a declaration the property jointly in equity also [15]. under section 14 of the Trusts of Land The starting point is different in cases In another case a mother from London, and Appointment of Trustees Act 1996 where the property is bought in the whose ex-partner refused to pay for his that she owned the entire beneficial name of one party only. child for eight years, has received more interest in the property. By 2008 the than £20,000 taken from his bank property was valued at £245,000. The presumption of joint beneficial account via a lump sum deduction ownership arises because (i) order. The county court judge noted that the purchasing property in joint names house was first purchased to set up a indicates an "emotional and economic With an estimated £3.7 billion owed in family home. It was bought in joint commitment to a joint enterprise" and unpaid child maintenance, Ministers names and a presumption arose that (ii) the practical difficulty of analysing have emphasised their determination they intended to jointly share the respective contributions to the to crack down on parents who fail to beneficial ownership of it as well. Up property over long periods of support their children. until 1993 there was no evidence to cohabitation [19-22]. rebut that presumption. Ms Jones claimed however that in the 14 and a The presumption may be rebutted by Supreme Court unanimously half years following there was evidence that it was not, or ceased to allows appeal in Jones v evidence that their common intention be, the common intention of the parties had changed. Mr Kernott had ceased to to hold the property jointly. This may Kernott make contributions towards the more readily be shown where the running of the house and had made parties did not share their financial The Supreme Court has unanimously only very limited contributions resources [25]. In the absence of clear allowed the appeal in Jones v Kernott towards the support of their children. evidence of intention, a question arises [2011] UKSC 53 and restored the order Furthermore it was mostly during that as to when the court can infer such of the county court. Lord Walker and latter period that the value of the intention and when the court can, Lady Hale gave the lead judgment. property had increased. instead, impute an intention. An Lord Collins agreed with Lord Walker inference is drawn where an actual and Lady Hale and added some The judge held that their common intention is objectively deduced from reflections of his own. Lord Kerr and intention had indeed changed. In the dealings of the parties; an Lord Wilson agreed in the result but reliance upon the decision of the House imputation is one attributed to the reach it by a different route. of Lords in Stack v Dowden [2007] parties by the court [26-27]. The search UKHL 17, [2007] 2 AC 432, he held that is primarily to ascertain the parties' This case concerns the correct approach once the initial presumption of joint actual intentions, expressed or inferred to calculating beneficial interests in beneficial ownership is displaced and but if it is clear that the beneficial property where the legal title to the there is no further clear evidence as to interests are shared but impossible to property is held in joint names by an the division of shares in the property it infer a common intention as to the unmarried couple but there is no falls upon the court to infer or impute proportions in which they are shared, express statement of how it is to be an intention to the parties as to the the court will have to impute an shared. division of the property that they, as intention to them which they may reasonable and fair people, would have never have had [31]. Facts intended. He decided that Mr Kernott Ms Jones and Mr Kernott met in 1981. was entitled to only a 10% share. The following principles apply: (i) the They had two children together. In starting point where a family home is 1985 they purchased a house in Mr Kernott appealed to the High Court bought in joint names is that they own Thundersley, Essex in their joint arguing that it was wrong for the court the property as joint tenants in law and names. The price paid was £30,000 with to infer or impute a change of common equity; (ii) that presumption can be a £6,000 deposit paid exclusively by the intention and further wrong for the displaced by evidence that their proceeds of sale from Ms Jones's judge, in effect, to substitute a division common intention was, in fact, previous home. No declaration was that he considered to be fair as between different, either when the property was made as to how the beneficial interest the parties. Mr Nicholas Straus, QC purchased or later; (iii) common in the property was to be held. The sitting as a High Court judge dismissed intention is to be objectively deduced mortgage and upkeep on the house his appeal. Mr Kernott appealed to the (inferred) from the conduct and was shared between them. In 1986 they Court of Appeal which, by a majority dealings between the parties; (iv) jointly took out a loan of £2000 to build (Jacob, LJ dissenting), allowed his where it is clear that they had a an extension. Mr Kernott did some of appeal. different intention at the outset or had the work himself. changed their original intention, but it Reasons for the judgment in the is not possible to infer an actual The relationship deteriorated and in Supreme Court intention as to their respective shares, 1993 Mr Kernott moved out. From that References in square brackets are to then the court is entitled to impute an point onwards Ms Jones lived in the paragraphs in the judgment intention that each is entitled to the Thundersley property with both share which the court considers fair children. In 1996 Mr Kernott bought his having regard to the whole course of own house in Benfleet, Essex. Over the

www.familylawweek.co.uk Family Law Week December 2011 - 10 dealing between them in relation to the property; and (v) each case will turn on its own facts; financial contributions Today, around 18 years after they split and following are relevant but there are many other factors which may months of deliberation on the issue, judges at the Supreme enable the court to decide what shares were either intended Court have ruled that 10 per cent is a fair share for Mr or fair [51]. Kernott.

On the facts of this case the county court judge held that the Steve Kirwan, chair of Resolution's Cohabitation parties' intentions as regards the Thundersley property had Committee, said that the decision of the Supreme Court in changed after their separation. It was a "…logical inference the case was to be welcomed, not only because of the that they intended [Mr Kernott's] interest in Badger Hall outcome for Ms Jones – one which most would regard as Avenue should crystallise" in 1995, when they took the being a "fair" outcome for her – but also because it enabled house off the market, cashed in an insurance policy, so that the court to provide further clarification of the rather Mr Kernott was able to buy a house in his own name [48]. confusing guidance in the earlier decision of Stack v The calculation of their shares on this basis produced a Dowden. result so close to that produced by the judge that it would be wrong for an appellate court to interfere. Mr Kirwan said that, although the decision was a unanimous one, the reasons adopted for reaching it were Lord Collins agrees with Lord Walker and Lady Hale, not, which itself underlines the complexity of the law in this holding that the differences in reasoning set out below are difficult area, with two of the judges taking the opportunity "largely terminological and conceptual and are likely to to criticise Parliament for a continued failure to reform the make no difference in practice." [58]. law affecting couples that live together.

Lord Kerr holds that the divergence in reasoning might, in Alison Hawes, a partner and family law specialist at Irwin practice, make a difference [67]. The question concerns how Mitchell, said: far the court should go in seeking to infer intention and when it is justified in imputing it. It is preferable to give "The bottom line is that couples should not assume effect to the parties' intentions where possible but the courts that the legal pieces of paper that show co-ownership should not be reluctant to recognise when it is not and to of a property are the end of the story. impute an intention accordingly. In agreement with Lord Wilson it is not possible to infer the intention in this case but "The careful analysis of the couple's relationship and the division that the judge made is a fair one as between the dealings means that the court has taken the view it is parties and should stand. fair to adjust the 50/50 shares from when the property was first bought many years ago, so that Lord Wilson considers that on the facts of this case, it is the man has only 10 per cent because of what has impossible to infer the intentions of the parties and the court happened in the intervening years. can only impute to the parties an intention that the house be held in fair proportions along the lines of those set out by "The judgment makes it even more important that the county court judge [89]. couples who live together have a clear simple declaration of trust explaining how they want to own Supreme Court Press Summary the property; and a living together agreement that shows what their intentions are.

Practitioners welcome Jones v Kernott "If they break up or there is a change in circumstance judgment – one of them perhaps is made redundant and does not pay the mortgage – then if they want certainty it Practitioners have welcomed the Supreme Court's would be sensible to go back to their living together clarification in Jones v Kernott [2011] UKSC 53 of the House agreement or declaration of trust and make sure that of Lords' decision in Stack v Dowden. However, in the it says what they want it to. absence of reform of the law affecting cohabitants' property rights, it is all the more important that couples record their "Taking these simple precautions, a bit like making a intentions formally and review those arrangements in the will, is going to save thousands of pounds in legal light of subsequent changes in their circumstances. fees, and uncertainty whilst lawyers and judges look at diaries, receipts, and the history of the couple's The case concerned the rights of Leonard Kernott and relationship and financial transactions over periods Patricia Jones and their entitlement to a £245,000 Essex of months or years. house they bought for £30,000 in 1985. Since the pair separated in 1993, Ms Jones has lived with their two "Some commentators will say that the court is being children at the property and paid the mortgage paternalistic – that if a couple want a court to independently. intervene and do what is 'fair' then they can get married because the divorce courts have a wide The county court and High Court have both previously discretion. Others will say that couples who live agreed that Mr Kernott was entitled to just 10 per cent of together need the protection of the court where there value of the property on the basis of the couple's financial is no clear legal agreement, to help reach 'fair' arrangements during the time they were apart. However, decisions." the ruling was then overturned by the Court of Appeal, which ordered a 50/50 share on the basis of the original agreement.

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LSC Family tender process – notification important risk factors in cases of abuse and neglect. The starts 11 November 2011 NSPCC has published new research that shows that nearly 200,000 babies across the UK are in families affected by these problems. Tender applicants for new family and family and housing contracts starting early in 2012 are to start being told The NSPCC is asking everyone to help prevent abuse and whether they have been successful. neglect of babies by pledging their support for the campaign on the All babies count website. The site is aimed at NSPCC The tender process was run in September and initial supporters, parents, professionals working with children, analysis indicates that 92% of applicants have been awarded and anyone else who is passionate about the welfare of a contract and that the number of contracts awarded will be children. at 94% of the current number of family legal aid contracts. The website contains information around the issues facing babies in the UK, research that, the Society says, shows why The first notification letters will be sent on Friday 11 early intervention is so important and news on how the November 2011. Notification of unsuccessful tenders will be campaign is developing. sent first. Dr Andrew McCulloch, Chief Executive at the Mental Where there is a right of appeal, the appeal procedure and Health Foundation, said that the Foundation welcomed the deadline will be set out in the notification letter. For further NSPCC report highlighting the heightened risk to babies in information on rights of appeal please see the 'terms and families where mental health problems, substance misuse conditions of tender' in the 'information for applicants' on and domestic violence exist. However, he added that a the Family tender page of the LSC website. parent having a mental health problem does not make them a bad parent or necessarily put a baby at risk. Many parents From Wednesday 16 November to Friday 18 November the with mental health problems provide an excellent and LSC will be sending out letters to applicants whose tenders loving home environment for their babies and young and/or individual bids have been successful. These letters children. will also include information about verification of their tender and next steps. It is important that applicants follow Andrew McCulloch said: any instructions given in these letters. "Clearly we need to identify families where risk is All notification letters will be sent to applicants through the high and offer quick and appropriate support. Some message boards in the LSC's secure eTendering system. parents with mental health problems will struggle, Applicants should check the message boards in the Pre- and can feel isolated and unsupported. Help must be Qualification Questionnaire (PQQ) and Invitation To easily accessible for them. Tender (ITT) regularly to ensure that they do not miss any important messages. "The NSPCC report provides extra impetus for the Coalition's call for an increase in the number and If applicants have not received notification of the outcome skills of Health Visitors. We want the Government to of their tender by Monday 21 November, they should establish the promotion of infant and family mental contact the LSC through the message boards. health as a key priority for Health Visitors.

"In addition, we believe everyone should have Care application demand remains at very parenting education so their children can develop high level healthy attachment. Every parent should have access to the advice and support to enable them to maintain Cafcass has reported that care application demand has good health, good relationships at home, and their remained at a very high level. The figures for October have baby's wellbeing. And every parent should know recently been released. Between April and October 2011, how to access that support." Cafcass received 5,798 new applications. This figure is 10.1% higher when compared to the same period last year. Applications received between May to October this year Further responses to the Jones v Kernott have been the highest ever recorded by Cafcass for these judgment individual months. The figures for August 2011, of 888 care applications were the second highest ever recorded for a The Law Society President John Wotton has welcomed the single month by Cafcass. March 2011 was the highest figure ruling, saying: ever on record at 895 applications. "This judgment moves the law forward because it allows courts to reach a view about what the parties NSPCC launches ‘All babies count’ campaign intended, and what a fair outcome should look like. However, the meaning of 'fairness' in cohabitation The NSPCC has launched its 'All babies count' campaign to law is not the same as fairness in marriage. Today's highlight the vulnerability of babies and to call for better verdict only goes so far in providing cohabiting and earlier support for new parents. couples with clarity about what will happen to The NSPCC stresses that babies are eight times more likely shared property on a relationship breakdown. The to be killed than any other age group in childhood. Factors fact is that successive governments have failed to such as domestic violence, mental health problems, and legislate on the rights of unmarried couples living drink and drug dependency among parents are known to be

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together, despite the Law Commission's proposals Majority of local authorities provide good for reform, which we have supported. services for local children and young people "Many cases could still end with what most people Ofsted has published the outcomes of the 2011 annual would consider an unfair outcome. The confused children's services assessments for local authorities across state of the law continues to cause stress, litigation England. It shows that the majority of authorities are and costs – and hence ultimately is damaging for providing good or better children's services, with 28 families and children. authorities providing excellent services for children in their area, eight more than last year. "It is crucial that couples who are thinking of buying a property and living together take legal advice from This year 25 authorities have improved their overall a solicitor to reduce the likelihood of potential performance, with 11 improving from performing problems later. Solicitors are highly experienced in adequately to performing well. dealing with house purchases and helping people properly set up their financial arrangements. A The individual inspection reports can be downloaded here. solicitor will help to avoid unforeseen problems, about legal rights in a relationship generally, and can discuss how rights might change as a relationship develops, such as children or marriage." Leading experts on cohabitation claims question whether Jones v Kernott offers Resolution said that the Supreme Court decision highlights much-needed clarity and identify the the urgent need to reform the law affecting couples who live judgments’ consequences together. Although one in six couples in the UK currently live together without being married, huge numbers of In Jones v Kernott: another helping of the witches' brew? , people face distress, injustice and hardship because of out- published by Family Law Week, Rebecca Bailey-Harris and of-date laws surrounding cohabitation combined with the John Wilson QC, both of 1 Hare Court, question whether the "common law" marriage myth. Those affected include judgments of the Supreme Court Justices in Jones v Kernott children who were not party to their parent's decision not to [2011] UKSC 53 have delivered the clarity for which family marry. law practitioners have long hoped.

David Allison, Chair of Resolution, said: In their timely analysis of the judgment and its implications, they argue that the judgments raise both jurisprudential and "Whilst we welcome today's judgment, the fact that practical difficulties. it has taken four different hearings in four different places to determine the outcome highlights that the In joint names cases in particular, the authors argue that the law for cohabitants is a mess and is in urgent need of Supreme Court's reasoning is problematical in respect of the reform. process for rebutting the presumption of equal beneficial ownership. "Despite the "common law" marriage myth, it is possible to live together with someone for decades They conclude in respect of such cases: and even to have children together, and then simply walk away without taking any responsibility for a "What will be the practical repercussions in joint name cases former partner's welfare. That is simply wrong. where there is no express declaration of trust? This is not the first occasion on which the highest court has preached the "The current situation for people who live together rhetoric of the strength of the presumption of equal often creates injustice and hardship, and the law fails beneficial ownership, and warned of the dangers of to reflect the way people are choosing to live their litigation. But there seems no more prospect of reality lives." matching rhetoric after Jones v Kernott than there was after Stack v Dowden. With the quantification of 90%/10% Resolution is calling for new laws for couples who have restored, and the process of imputing intention legitimised, lived together for five years or more – or for less time in there is surely considerable incentive for joint registered cases of exceptional hardship. For cohabiting couples with owners in cases where there is no express declaration of children, the law would offer protection regardless of how trust to 'have a go' at arguing in court that the interests are long they have lived together. other than equal. Good for the work of legal practitioners for years to come, but quite the opposite result to that The association says that these couples would have an supposedly intended." automatic right to apply for certain financial orders if they separate. If a couple wished to opt out of this provision, they The article can be read in full here. could do so by way of a written agreement. Such a law would prevent injustice by allowing the courts to recognise a cohabiting relationship and decide on an outcome that is fair and reasonable.

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Master of the Rolls calls for priority to be given to women and ethnic minorities in The Court of Appeal concurred with the view of Black J. She had been entitled to find that the local authority placed A judicial appointments with her grandmother pursuant to s.23(2) and A therefore remained a looked after child. The appeal was consequently The Daily Telegraph reports that the Master of the Rolls, dismissed. Lord Neuberger of Abbotsbury, has called for the use of section 159 of the Equality Act 2010 to allow the Judicial The Court of Appeal then went on to consider the structure Appointments Commission to prefer women or ethnic and wording of the old Section 23, and the earlier authorities minority candidates over white men where there are two dealing with the interpretation of that section, particularly otherwise equal applicants. in Re H (A Child) (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629. In this case, the Court of Appeal Lord Neuberger acknowledged that judges were split over had decided that s.23(6), Children Act places local the problem and that some female judges feared that such a authorities under a duty to enable a looked after child to live change might cause some to argue that their appointment with a person to whom he is related or otherwise closely had been conferred only because of their gender. connected. Once this is achieved, the looked after child ceases to be provided with accommodation by the local The newspaper quotes the comment of Baroness Hale of authority and therefore ceases to be a looked after child. Richmond, the only female justice in the Supreme Court, to a parliamentary inquiry that she believed the current The unanimous view of the Court of Appeal was that this system was not "remotely satisfactory". was probably an incorrect interpretation. They preferred an interpretation, also suggested by Black J at first instance, The article can be read here. that s.23(1) sets out the duty to provide accommodation to looked after children, s.23(2) sets out the ways in which the provision of accommodation might be achieved, and s.23(6) Grandmother caring for granddaughter wins simply imposes a duty to try to place the child with a battle with Kent CC to be paid as foster relative or friend. carer Commenting on the Court of Appeal's decision, Nigel A grandmother who has battled for 6 years with Kent Priestley, partner of Ridley & Hall, who acted for the County Council to be paid the same rate as a foster carer for grandmother, commented: looking after her granddaughter, has won her case in the Court of Appeal. Kent County Council has said that it has "Local authorities across the country have been no plans to appeal. waiting for this decision. We're delighted with the outcome. The County Council argued that they had R (SA) v Kent County Council [2011] EWCA Civ 1303 no duty to the child even though their fingerprints concerned the financial provision required to be made by were all over the case. Kent holds itself out as a Kent County Council to the grandmother of a child, A. A model authority but it has been left with egg on its had gone to live with her grandmother due to the local face. It put forward the radical suggestion that it had authority's concerns about the parenting she was receiving no significant financial duty to a child they had from her mother. The local authority contended that this placed with a relative. They denied that she should came about as a result of a private arrangement between the be treated as a "looked after" child. The judge grandmother and A's mother, was therefore a private rejected this argument. The Court of Appeal agreed fostering arrangement, or it was a placement under s.23(6), with her." Children Act, and A was not a looked after child. Therefore, the local authority only needed to make discretionary The grandmother said: payments to the grandmother under s.17, Children Act and there was no duty to pay a fostering allowance to the "I am no different from the thousands of grandmother. The grandmother who has now retired to grandparents and other relatives stepping in to care look after the child was receiving £63.56 a week for her care for children because there is a shortage of foster – over £80 per week short of the average for foster parents parents and carers. who at the time were receiving about £146.23 weekly. "We shouldn't have to find ourselves battling with Black J (as she then was) at first instance had found that all the local authority for support. I was asked by the discussions about A going to live with her grandmother local authority to step into the breach. I have given were initiated by the local authority. The local authority's up a great deal to care for my granddaughter. ongoing involvement in the placement was consistent with it being a placement in which the local authority had taken "I put myself out and expected the local authority to the lead. Crucially, the local authority had never indicated do the same but they did not." to the grandmother that they would expect her to make financial provision for A without help from themselves. The Grandparents Association has welcomed the judgement. Lynn Chesterman, the Chief Executive of the Black J had therefore held that the presence of the Association, said: grandmother did not mean that the local authority could side-step its duty to accommodate A under s.20(1), Children "Too often, as in this case, grandparents are Act 1989, a duty owed to A because her parents were unable struggling to cope financially - living on a pension to care for her. and bringing up children. They simply do not have

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enough money to live on. I hope that Kent has learnt and whether children are able to express their views its lesson – and that other Councils start taking their through professionals. responsibilities seriously." The Panel's particular concern was with delays in public The judgment and Sally Gore's case summary can be read family law, with 20,000 children on the waiting list. It felt here. too that too many people go to court to resolve private family law disputes.

Child Support Agency performance holds He said that there is a lack of clarity and lack of trust steady between different agencies in the family justice system – it can't, he said, really be described as a 'system'. There is very little feedback or learning from past mistakes. The latest Child Support Agency figures (as at the end of September 2011) show that just over 876,000 children were The Panel recommended that a Family Justice Service be set benefiting from child maintenance payments at the end of up to bring coherence to the system. It also recommended September, up by 7,400 on the previous quarter. 678,300 that an enhanced IT system should be set up, and that there cases were paying maintenance out of 872,000 cases with a needed to be stronger leadership within the judiciary. child maintenance liability. This represents a maintenance Specialist judges should hear cases from start to finish. outcome rate of 77.8%. This is an increase from 77.6% at June 2011. A series of recommendations focus on culture change, with delays in public law cases partly caused by a search for The Agency continues to make extensive use of its powers certainty which is not attainable. There should be tighter of enforcement. More than 1,000 properties owned by criteria for the use of expert evidence. parents with child maintenance debts have now been referred for possible seizure and sale. Orders for Sale have On the controversial issue of shared/equal parenting rights, been obtained in 150 cases. the Panel decided not to recommend that such rights should be enshrined further within legislation because Almost £2.5 million has been deducted from parent's bank international evidence suggests that it would cause accounts since new powers were introduced in 2009. The confusion and higher rates of litigation. first half of 2011-12 saw a sharp increase in the number of accounts targeted for possible action. The Panel instead recommended that contact with both parents should be ensured when it is in the best interest of a child, and this view should be promoted through education Bar Council hosts debate on the proposed and other processes. changes to the family justice system Dr Maggie Atkinson stressed that for the most part, Britain The Bar Council discussed the changes facing the family is not broken. There are around 12m children in England justice system in a Bar Debate at Gray's Inn on Wednesday, and Wales and, for most, families are a good place for 16th November. children to be. Nevertheless, some children are facing immense challenges, and even settled families still need "Broken Britain, broken families: What next?" was the support. There were, she said, worrying signs of fracture in second debate in the bi-annual series which aims to provide some communities, as evidenced by the unrest in the a platform to discuss high profile and mainstream issues of summer. The latest employment figures too are a cause for public importance relating to the law and justice system. concern, with many young people unemployed, some with children of their own. She believed that there had been a The panel of leading experts who addressed an invited general failure to tackle the issues that lie behind child audience comprised: poverty. The Children's Commissioners will be watching emerging patterns to see if they amount to "a perfect storm". Ÿ John Coughlan CBE, Member of the Family Justice Review Panel The Office of the Children's Commissioner for England has Ÿ Stephen Cobb QC, Chairman of the Family Law recently released a short film on the family justice system, Bar Association calling for the system to assign greater notice to the rights of Ÿ Dr Maggie Atkinson, the Children's Commissioner children. While the OCCE believes that the UN Convention for England, and on the Rights of Children is central to this, the 1989 Children Ÿ Ruth Bond, Chair of the National Federation of Act actually trumps Article 3 of the Convention. Women's Institutes. Dr Atkinson referred the audience to Deborah Orr's recent Peter Lodder QC, Chairman of the Bar, moderated the article in The Guardian, in which she argues that the family debate. courts are for children. To that, Dr Atkinson offered a loud " hear, hear". John Coughlan emphasised that every recommendation received by the Family Justice Review Panel was carefully Ruth Bond explained that the NFWI is the largest women's listened to. The Panel considered that the Children Act organisation in the UK, with more than 211,000 members. It remained a strong piece of legislation; the envy of many has always focused on widening horizons for women and is other jurisdictions. However, there was some concern re: a campaigning force. In that role the federation has been whether the welfare principle is being applied in practice, campaigning for years on violence against women, and a mandate was passed on the preservation of the legal aid

www.familylawweek.co.uk Family Law Week December 2011 - 15 system in the 90s. The Legal Aid Bill thus combines both "It is considerable surprise that so many applicants for the campaigning efforts. tender failed in what was a non-competitive bid. There were none of the quality criteria and panel membership issues She believed that the Family Justice Review has great that distinguished firms in the failed 2010 tender. It is potential for improving the family justice system, but the understood that almost all failures relate to technical issues LASPO Bill sits uncomfortably alongside it and puts the but it would be terrible to lose fundamentally good firms reform agenda at real risk. The NFWI's research into from public service on the basis of simple errors. There were domestic violence victims' experience of the legal aid system many questions in the bid which appeared unnecessary found that women suffering domestic abuse tend to require when the LSC already had such information in respect of advice in many areas of the law due to their wide the criteria. Hopefully these issues can be resolved sensibly circumstances e.g. in housing and immigration as well as through the appeals process. The Bravo system again seems family law. It also found that such women do not feel safe to have been an unnecessarily frustrating hurdle. We in mediation, and that legal aid is a "lifeline" for DV victims. obviously send messages of sympathy and support to those Many of them said that they would probably be dead now who work in and rely upon organisations that have failed." if they hadn't received legal aid. The Legal Services Commission said: A copy of Ruth Bond's speech is available here. "Over 93% of applicants completed the tender Stephen Cobb QC acknowledged the extent of the cuts process successfully and contracts have been offered which are being applied widely and deeply across a range to 2,268 offices – which equates to 96% of the current of public services. But he maintained that there are certain number of family contracted providers. principles and standards (and services) in society which cannot or certainly should not be sacrificed on the altar of "We made it clear throughout that the process was fiscal control. based on self certification and so assessment of tenders has been made based on the information He said that without access to justice, by which he meant supplied to us. Before the tender process opened we effective access – for broken families and children – wider highlighted the importance of applicants accurately society would pay a high price. completing their tenders and the consequences if this was not done. He emphasised that the family justice system should not be an 'optional extra', but should be a system which behoves "The tender process was a much simplified one – every Government to supply in proper shape for the benefit applicants only had 3 questions to respond to in of all its citizens. relation to family selection criteria. We assessed all tenders in accordance with responses provided and It was, he explained, the most vulnerable members of have treated all applicants equally and in line with society who especially needed support, protection and our legal obligations. effective safeguarding, including access to a fully functioning healthy justice system. "In 131 of 134 procurement areas across England and Wales the tender exercise has secured five or more He believed that the Family Justice Review's proposed family legal aid providers, ensuring that there reforms and recommendations would be worth nothing continues to be good access to services for clients." unless they attracted support for their implementation. There needed to be a financial investment in order to deliver The Legal Aid Practitioners Group has urged any members its objectives. He feared that the Legal Aid Bill, if who have been unsuccessful to contact the Group. It can implemented in unamended form, would undermine many recommend consultants who are experienced at dealing of the Panel's key recommendations to the detriment to the with appeals. most vulnerable.

A copy of Stephen Cobb QC's speech is available here. The President will deliver the Law Reform Committee’s Annual Lecture

Surprise expressed at the failure rate in the The Law Reform Committee's Annual Lecture is being held LSC family law tender on Tuesday, 29th November. This year the topic is "Changing the Culture – The Role of the Bar and Bench in The Legal Services Commission has announced that 93% of the management of cases involving children" and will be those who bid for the new family law contracts have been given by the President of the Family Division, the Rt. Hon. successful. The new contracts will replace those that had Sir Nicholas Wall. been due to expire in November 2010, but were extended following the Law Society's successful judicial review of the The lecture will take place in Inner Temple Hall at 5.30 p.m. family tender process. and will be followed by a drinks reception.

However, surprise has been expressed that there should To reserve your place, which is free and by ticket only, have been so many failures in a non-competitive tender. please contact Wendy McLaughlin on 020 7611 1431 or by email to [email protected] . David Emmerson, principal of Family Law Consulting and chair of Resolution's Legal Aid Committee, commented:

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Information Commissioner warns lawyers In Z v Z (No2) [2011] EWHC 2878 (Fam) the parties were about safeguarding sensitive information French. W was aged 50 and H aged 53. Theirs was a 14-year marriage with a period of 4 year cohabitation (subject to one six month period of cohabitation). They had 3 children aged A Scottish advocate breached the Data Protection Act after 14, 12 and 9. In June 1994 they entered into a marriage failing to encrypt a laptop containing sensitive personal contract in accordance with French law. In July 1994 they data which was later stolen, the Information married and lived in Paris and moved to live in England in Commissioner's Office has said. August 2007. In February 2008 they commenced a 3 month trial separation. Before leaving, H signed a letter to W. In The laptop was stolen from the home of Ruth Crawford QC July 2008 H told the children that the parties had separated in 2009 when she was away on holiday. It contained which marked the end of the marriage. In July 2008 W personal data relating to a number of individuals involved issued a petition in England. In a contested jurisdiction in eight court cases the advocate had been working on. This dispute, reported as Z v Z [2010], Ryder J held that the included some details relating to the physical and mental parties were both habitually resident in this jurisdiction on health of individuals involved in two of the cases. The the date on which the Wife presented her petition. device has not been recovered; however, most of the information compromised would already have been There were assets of £15,088,419. Moor J held that this was released as evidence in court papers. undoubtedly a case for equal division of assets absent the French agreement. The issue was whether the marital The ICO's enquiries found that, whilst Ms Crawford had contract took the case out of 'sharing'. There was no dispute some physical security measures in place at the time of the that the agreement was entered into freely and with full theft, she failed to ensure that either the device or the understanding of its implications. No formal advice was sensitive information stored on it was appropriately given by the two notary witnesses and there was no formal encrypted. disclosure. This did not matter as W knew exactly what the agreement entailed and each party new the financial She has now agreed to put the necessary changes in place to position of the other. ensure this type of incident does not happen again. This includes locking away any personal information stored at On the evidence, it was held that the agreement had not her home and following any future data protection been altered and it followed that both parties knew that the guidance issued by the Faculty of Advocates or her stable. agreement was still operative. Ken Macdonald, Assistant Commissioner for Scotland said: The terms of the letter H wrote before leaving were far more generous than could ever have been obtained from a court, "The legal profession holds some of the most given that, if taken at face value, the letter provided that H sensitive information available. It is therefore vital should pay the W one-half of all his net earnings past and that adequate security measures are in place to keep future without time limit (other than any redundancy information secure. payment) as well as maintenance of up to €200,000 p.a. The Edgar guidelines were held to be relevant here: there was no "As this incident took place before the 6 April 2010 legal advice; and H was under significant pressure. It was the ICO is unable to serve a financial penalty in this held that the letter did not constitute a good reason for instance. But this case should act as a warning to departing from the terms of the agreement. other legal professionals that their failure to protect personal information is not just about potentially Moor J upheld the agreement but stated that it might have being served with a penalty of up to £500,000 – it been very different if the agreement had also purported to could affect their careers too. If confidential exclude maintenance claims in the widest sense, but the information is made public, it could also jeopardise agreement did not do so. W was awarded 40% of the assets the important work they do in court. which was held to be a suitable departure from equality to reflect the agreement. "The ICO would also like to assure the legal profession that any information reported to this To read the judgment and Alfred Procter's fuller summary, office will not be disclosed unless there is specific please click here. legal authority for us to do so. Therefore all breaches should be reported to our office as soon as practically possible." Children’s Commissioners call for urgent The ICO has produced guidance on the security measures reassessment of impact of Coalition’s that organisations should have in place when storing Spending Review on vulnerable children’s personal information electronically. needs

The four UK Children's Commissioners have called for an High Court upholds French pre-nuptial urgent reassessment of the impact of the Coalition agreement Government's Spending Review on the needs of vulnerable children. Mr Justice Moor has enforced a French pre-nuptial agreement made in 1994 in financial remedy proceedings in In a joint report to mark the International Day of the Child, the High Court. the Commissioners outline serious concerns at the high levels of persistent poverty across the UK. They highlight

www.familylawweek.co.uk Family Law Week December 2011 - 17 the need for children to be given priority in national and system. A reply to this letter has not yet been received. The local budgets so that vital children's services are protected. full text of the letter is set out below.

The report also examines progress made in five areas – participation, children with disabilities, child poverty, "Dear Mr Loughton children seeking asylum and juvenile justice – against the UN Convention on the Rights of the Child, an "We are writing to draw your urgent attention to the internationally binding minimum standard for all children harmful impact the rapid loss of independent social and young people that was ratified by the UK Government work (ISW) experts in the family court arena is twenty years ago. having on vulnerable children. It is estimated that there are between 4,000 and 5,000 Independent Speaking on behalf of the four Commissioners, Keith Social Workers (ISWs) currently practising in Towler, Children's Commissioner for Wales, said: England and Wales. Between 2.500 and 3,000 of them work in child protection and yet their position within "We, as independent children's champions, have a duty to the child protection system and their contribution to hold UK Government and its devolved administrations to the work of the family courts has been outside the account. We are in constant dialogue with our respective remit of both the Munro and the Family Justice governments to ensure the rights, needs and best interests Reviews. Consequently, the considerable of every child are upheld. professional resource offered by this large sector of highly qualified and experienced child protection "Whilst there are developments to be proud of, we continue practitioners, whose expertise is so badly needed, to see some of our society's most vulnerable being denied a has been largely overlooked in discussions in childhood. At the heart of our concerns are the high levels relation to practice and policy development. of persistent poverty across the UK. Unfortunately, as a result of an accumulation of dis-incentivising factors there has been a steady "We fully acknowledge the considerable challenges facing haemorrhage of some of the best independent expert governments on all levels and that tough decisions have to social workers who are being systematically forced be made but we are deeply concerned that without out of the system at a time when they are most assessing the impact of the severe cuts we've seen at all needed. This cannot be in the interests of vulnerable levels of government, we're in real danger of pushing more children and it appears out of tune with the families into poverty." government's commitment both to speeding up decision making processes and to retaining This midterm report comes half way through the experienced social workers in front line child Convention's reporting cycle, which requires UK protection services. Government, as the State Party, to report on progress to the UN Committee on the Rights of the Child every five years. "This is all the more counterproductive at a time The UK last reported to the Committee in 2008. when the recommendations of the Social Work Task Force and the Munro Review have highlighted the To read the report, please click here. To read the evidence need to improve both the career progression for front supporting the report, please click here. line social workers and the scope for social workers to exercise much greater autonomy in the proper exercise of their professional judgement. The need is Growing number of over-60s seek divorce all the more pressing as family courts continue to operate under enormous pressures, with The Daily Telegraph reports that a growing number of unacceptably long delays for the children and British couples are divorcing in their 60s. Whilst divorce families concerned. rates have steadily fallen among all other age groups, the United Kingdom is experiencing a rising number of, what "This situation is of serious concern since, until this the newspaper terms, "silver separations". year, it has frequently been the holistic ISW expert's analysis that courts have turned to first when According to the most recent figures, more than 11,500 reaching decisions in complex family cases. The over-60s were granted a divorce in a year – a rise of 4 per specific expertise that ISWs bring relates to their cent in two years. assessment of the capacity of parents and the risks to children. These are key issues for the judge to For more details, see the Daily Telegraph report. determine. It is the ISWs particular skills in these areas which enable them to put other expert's reports within a parenting context for the court. Children’s Minister warned of effects of loss "One key problem is that ISW expert evidence of independent social work expertise straddles the socio-legal interface between the DfE and the MoJ, with neither department taking Officers of Nagalro, the Confederation of Independent responsibility for the budget or the wider practice Social Work Agencies and the British Association of Social and policy implications. Instead, the financial Workers have written to the Children's Minister, Tim agenda has driven policy, with scant consideration Loughton, to draw his attention to the harmful impact of the implications for either the children involved or caused by the loss of ISW expertise in the family justice the lack of joined up thinking. The Justice Select Committee was highly critical of the results on the

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funding feud and lack of cross departmental co- but significant failures in the Council's procedures ordination in their report on Family Legal Aid and administrative approach to the investigation." Reform published 7 July 2009. The Ombudsman found serious flaws in the Council's "The net result has been that the messages from both approach to investigating the girl's allegations. The Council the DfE and the MoJ have been immensely had failed to properly resolve an earlier informal child discouraging and dismissive of the value of highly protection investigation. It then took further action, not trained and experienced welfare professionals. because of renewed child protection concerns, but because Many of the country's most experienced and highly a reference request from another authority meant the girl regarded child protection social work experts are needed to be informed of the earlier investigation. leaving this field when they could be proactively involved in mentoring and helping to 'grow' the next There were significant problems in the subsequent generation. Practitioners feel that the considerable investigation, including a failure to produce and implement ISW contribution to the child protection system is a clear investigation plan, inappropriate questioning, a not only overlooked and undervalued but is being failure to promptly pursue reasonable lines of enquiry and actively discouraged and disparaged. We hope that a failure to properly record evidence and decisions. this is not the intention and have attached a briefing paper [ the briefing papwer has not been The Council took steps to accommodate the girl without reproduced] which we hope will be helpful. properly considering alternative options, and sought her mother's agreement after the girl had already been told by "We would like to meet you as a matter of urgency in officers she was to be removed and taken home to collect her order to clarify the government's thinking on these belongings. The Council failed to explain the full crucial issues and to explore the place of the ISW circumstances when asking the complainant to agree to the expert witness in child protection within the family accommodation and failed to properly record the extent of courts and the wider child protection system. her agreement. It did not provide necessary information about the arrangements for the accommodation and failed "Yours sincerely to respond properly to her comments that she withdrew her Ann Haigh, Chair, Nagalro, The Professional consent to the accommodation. Association for Children's Guardians, Family Court Advisers and Independent Social Workers The Council asked the complainant to consent to the girl Mark Willis, Chair, Confederation of Social Work visiting her father, but failed to conduct a proper risk Agencies assessment. The Council did not produce clear contact plans Hilton Dawson, CEO, British Association of Social and delayed making a referral for a parenting assessment. It Workers (BASW)" also imposed restrictions on the complainant's care for her other daughter in an unreasonable manner.

Council’s handling of child protection The complainant suffered distress, inconvenience and investigation was seriously flawed, says outrage as a result of the Council's failures, as well as incurring legal costs and having to take time and trouble to Local Government Ombudsman pursue her complaint.

Local Government Ombudsman, Dr Jane Martin, says in a The Ombudsman found maladministration and newly issued report: recommended that, to remedy the injustice, the Council should: "the complainant has been caused an understandable sense of outrage by an investigation which led to a Ÿ apologise to the complainant significant interference in her family life, but without Ÿ pay her £7,741.08 for her legal fees (It should be always treating her fairly or affording her the noted that the Ombudsman does not normally important procedural safeguards intended for consider it necessary for complainants to have alleged perpetrators." legal representation to bring a complaint and it is unusual for the Ombudsman to recommend that A mother complained that the London Borough of Bexley legal costs are reimbursed. However, the legal fees failed to respond appropriately to allegations of abuse made were not incurred in bringing a complaint to the against her by her daughter. Ombudsman, but rather for the complainant to obtain advice and representation before the Panel The Ombudsman says: that considered the final stage of the Council's complaints procedure) "Councils have a vital role in safeguarding children, Ÿ pay her £5,000 in recognition of her distress, which often requires that hard decisions are made in outrage, inconvenience and time and trouble, and difficult circumstances. Child protection Ÿ instruct an independent family counsellor to make investigations have a profound effect on families and detailed proposals for family it is important councils follow proper administrative counselling/reunification, to include any procedures so that investigations are fair. necessary pre-counselling and advice as to how best to seek the girl's involvement in the process, "The problems I have identified in this complaint do all of which the Council should arrange and fund. not concern the professional judgement of officers,

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Tackling child sexual exploitation must be a must be treated as such, with the perpetrators priority, says Minister pursued more vigorously. We need to make going to court much easier for the young victims and their families. It is worrying that many incidents go A new action plan published by the Department for unreported because victims are unwilling to come Education calls on all local areas to take urgent action to forward. stop the sexual exploitation of children and young people. "We can only succeed if we address every aspect of Children's Minister Tim Loughton has warned of failure by the problem. The action plan is a big step forward local agencies to recognise and deal with the problem of and looks at sexual exploitation from the perspective child sexual exploitation in many areas of the country. of the young person, analysing what can go wrong and what should happen at every stage." He said tackling child sexual exploitation must be a priority and Local Safeguarding Children Boards (LSCBs) must now The Department believes that the plan outlines a compelling act to establish the severity of the problem in their areas, case for local areas to act quickly and for parents, and make sure they are tackling it effectively, and put in place frontline professionals who come into contact with potential robust preventative strategies. victims and perpetrators, to intervene at the earliest possible opportunity to stop the crime escalating. The Tackling Child Sexual Exploitation Action Plan aims to bring together actions by the Government and partners to Victims of child sexual exploitation often suffer long-term protect children from this largely hidden crime. These physical and psychological damage that can affect all the include: family and needs long-term care. According to the Department, research by Barnardo's shows that there is an Ÿ Work with the Association of Chief Police Officers, estimated potential saving of £12 for every £1 spent on health professional bodies, and the Social Work providing the intervention. Reform Board to make sure child sexual exploitation is properly covered in training and To raise awareness among frontline professionals who work guidance for frontline professionals. in child protection, the Department for Education says that Ÿ LSCBs to prioritise child sexual exploitation and it will: undertake robust risk assessments and map the extent and nature of the problem locally. Ÿ Publish a new, short, step-by-step guide on what Ÿ Support organisations like Rape Crisis, and local professionals should do if they are worried that a sexual assault referral centres, to improve services child is being sexually exploited. It will emphasise for young victims. It will also look at raising the strong links between child sexual exploitation awareness by improving sex and relationships and children running away from home or care. education in schools and helping parents know This will be published in spring 2012. what tell-tale signs to look out for. Ÿ Work with Ofsted on how their new guidance for Ÿ The police, the Crown Prosecution Service, judges inspectors can consider child sexual exploitation and magistrates to fully support young witnesses and the contact a child has with different services and victims, and increase the use of 'special as they journey through the system. measures' in court to ease the stress and anxiety of Ÿ Help spread examples of good practice in criminal proceedings on young people. monitoring, tackling, and preventing child sexual exploitation between local areas. The Department says that sexual exploitation of children under 18 can involve gangs or individuals giving gifts like The Government plan also emphasises the need for the money, food, drugs or alcohol in exchange for the victim criminal justice system to come down hard on perpetrators performing sexual activities. Or it can happen through and make sure victims and their families get the right grooming using technology, for example being persuaded support. The action plan brings together commitments from to post sexual images on the internet or phone. The young the Home Office, Ministry of Justice and the Crown people are often lured into this and trapped through very Prosecution Service, including: heavy intimidation and controlling tactics. Ÿ A new sentencing regime, including mandatory Tim Loughton said: life sentences for anyone convicted of a second very serious sexual or violent crime. "This country has to wake up to the fact that children Ÿ The Ministry of Justice will provide more than £15 are being sexually abused in far greater numbers million over the next three years to voluntary than was ever imagined. It could be going on in sector groups which provide support to victims. every type of community and in every part of the Ÿ In group or gang related cases, trial judges should country. think about how to minimise the trauma for witnesses by considering whether there is need for "Too many local areas have failed to uncover the true repeat cross-examination in the witness box. extent of child sexual exploitation in their Ÿ The Ministry of Justice is actively considering communities and failed to properly support victims whether s.28 of the Youth Justice and Criminal and their families. Evidence Act 1999, which provides for pre-trial video-recorded cross-examination can be made to "Child sexual exploitation is child abuse, it is not work in practice. good enough that some local areas don't recognise it as an issue. This is an extremely serious crime and

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Hilary Willmer, Chair of the Coalition for the Removal of England are subjected by street gangs and loosely Pimping (CROP), welcomed the action plan and said: formed groups."

"CROP particularly welcomes the recognition that whole families suffer the devastating consequences Justice Secretary says that judiciary is in of child sexual exploitation and need support. CROP need of modernisation and diversification hopes that there will also be recognition of the significant positive potential of many parents to be Sweeping new proposals that will reform the diversity of included as active partners in the safeguarding of judicial appointments have been announced by the Lord children." Chancellor and Justice Secretary Kenneth Clarke. Sheila Taylor, director of the National Working Group for The principle of appointment on merit will remain, says the Sexually Exploited Children and Young People, said: Ministry of Justice, the fundamental basis of policy. But the changes will provide better access to judicial careers, enable "I welcome this urgent call to action by the clear career progression and extend flexible working Government. There are pockets of good, innovative arrangements to encourage applications from previously practice but most local authorities have no one to untapped talent pools. co-ordinate such work and no one to look at the bigger picture. This must change, if no one is putting A wide ranging consultation seeks views on whether, when the pieces together, children's desperate situations considering two candidates of genuinely equal ability, there will continue to be missed. should be a presumption in favour of selecting the person from an underrepresented group. "The report rightly addresses the need for local agencies and voluntary organisations to work Announcing the consultation, Kenneth Clarke said: together to tackle child sexual exploitation; for more training to raise awareness among professionals; and 'An effective justice system is a cornerstone of a for the courts to recognise the impact of the legal civilised society. The independent-mindedness, process on victims." wisdom and sound good sense of our judiciary have made it a byword for integrity, independence and Sue Berelowitz, Deputy Children's Commissioner for excellence the world over. England, said: 'The calibre of our judges should never be "For the first time ever we see the coming together of compromised - their role is too important. government departments, agencies and independent Candidates should always be assessed on merit. But bodies, like the Office of the Children's swathes of talent are going untapped. Ability is not Commissioner, with the voluntary sector to make confined to certain narrow sections of society, in tackling child sexual exploitation a top priority. We certain racial, social or other groups. The more have a collective responsibility to uncover the true widely we search, the more likely we are to find the extent of these horrific acts that our children and best candidates. Becoming a judge must be, and young people right now are facing alone. must be seen to be, open to everyone with the right skills and qualities. "We have a social and moral imperative to protect every boy, girl and family from the very darkest side 'As senior judges themselves have recently said, the of English society. Today the Government is to be judiciary is an institution in need of modernisation- applauded for standing shoulder to shoulder with us and diversification. This consultation looks at how to tackle child sexual exploitation. No longer must we can begin to achieve these modernising reforms. we let our young people suffer at the hands of those that seek to manipulate and abuse them. No child 'I am especially concerned to open up the judiciary to should have to experience the horrific sexual and those with caring responsibilities. It should no longer violent acts that too many of our young people are be the case that an able woman who seeks a post in being forced or coerced into right now, right across the senior judiciary is at a disadvantage because she England. Be in no doubt girls and boys are being chose to pause her career to have a family.' exploited and abused by men, women and boys up and down the country. We must not fail them The Ministry says that lack of diversity among judges can anymore. have a negative impact on the experience of people who use the courts, and limits the range of life experiences that "Working with Government we will ensure our judges can draw upon. It adds that figures show that 13.7%, collective knowledge is increased and be a of senior judges are women and 3.1% are from Black and continuing and active partner in the fight against Asian groups, compared to 51% and 12% of the wider sexual exploitation. Our two-year Inquiry into Child population. Sexual Exploitation in Gangs and Groups (CSEGG) is being conducted under the Children's The consultation builds upon a range of schemes that have Commissioner's unique powers in the Children Act already been put in place following the Neuberger Report to 2004. In doing so, we will throw serious light on the encourage young legal professionals to consider a judicial scale, scope and nature of the sexual exploitation, career and to offer support to those from less traditional victimisation and abuse to which girls and boys in backgrounds.

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Other changes being consulted on will improve the clarity, The law firm Pannone has reported that increasing numbers transparency and openness of judicial appointments; and of businesses are covering some or all the legal bills incurred provide value for money to the taxpayer. by employees separating from their partners.

Changes being considered include: Vicki McLynn, a Senior Associate at Pannone, says that she has witnessed an increase in small firms adopting a Ÿ Extending salaried part-time judicial roles to the "paternalistic" approach over the last three years as they High Court and Court of Appeal. have tried to weather the worst of the economic conditions. Ÿ The selection panels for both the Lord Chief Justice and the President of the UK Supreme Court should She said that smaller businesses had acted partially because not be chaired by a judge, but by an independent they were more exposed to the impact which divorce might lay person instead. have on their overall performance. Ÿ The Lord Chancellor's powers for judicial appointments below either the High Court or "They notice the effect which a divorce can have on Court of Appeal should be transferred to the Lord someone's productivity far more than a much larger Chief Justice. company would. Given the current economic Ÿ Limiting fee paid judges to three five-year terms. climate, they can ill afford such distractions, Ÿ Reducing the number of Judicial Appointment especially if the individuals involved are senior and Commissioners. important to a business's fortunes. Ÿ Restricting the Judicial Appointment Commissions involvement in the selection of judicial office "We have seen a marked increase in the number of holders who do not require a legal qualification. small firms funding initial advice sessions or legal Ÿ Allowing the Lord Chancellor, rather than the costs up to a certain figure. In certain cases, Prime Minister, to make recommendations on companies have considered someone so vital to their appointments directly to the Monarch. viability that they have paid entire legal bills.

"More than doing someone a favour which allows Child protection registers increase in Wales them to sort out their private life while keeping a career on-track, it represents a gesture of The latest National Statistics on social services for children commitment and support from the firm which, in produced by the Welsh Government have been released. turn, generates reciprocal loyalty from the staff concerned." The main findings for the year ending 31 March 2011 are: Ms McLynn said companies with which Pannone had dealt Ÿ There were 2,900 children (including unborn over employee divorces often weighed up the cost of children) on child protection registers at 31 March providing some measure of legal support against their 2011. This was an increase of 6 per cent compared profitability. to 31 March 2010 and represents a rate of 46 children per 10,000 population aged under 18. "The more bitterly-contested divorces can take up to Ÿ There were 1,500 boys, 1,400 girls and 10 unborn 18 months to conclude and that can amount to a children on the registers at 31 March 2011. 45 per significant drain on employee's ability to concentrate cent of children on child protection registers were on their work. aged under 5. Ÿ The highest number of registrations was shown in "The firms with which we have had dealings are categories involving neglect (47 per cent) and the quite pragmatic. They regard any contribution to an lowest in categories of sexual abuse (7 per cent) employee's bills during a divorce as money well (note that registrations may state more than one spent if it helps maintain the volume and quality of category of abuse). work done. Ÿ 3,700 children were added to registers during the year ending 31 March 2011, an increase of 10 per "Furthermore, If they have paid to train a member of cent from the previous year. The number of staff, they consider it a way of protecting their children removed from the registers during the investment. They don't want essential personnel to year increased by 13 per cent to 3,600. go to another company for higher wages largely to help meet the cost of a divorce. That would mean For more information, please click here. losing experience at a time when firms both large and small need all the skills they can muster to stay in business." More small firms are offering staff financial divorce support

More small British companies are helping staff pay for divorces in an attempt to retain personnel needed to combat the economic challenges.

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Council warns of the mounting cost of The legislation gives courts the power to issue protection independent expert reports in family orders to those at risk which, if breached, may incur a prison proceedings sentence of up to two years. Greater help will also be made available for victims of Community Care reports that the increasing number of forced marriages, and existing powers to annul such unions court orders requiring independent expert reports in family have been strengthened. court proceedings is taking a financial toll on local authorities. In England, there are plans to consult on criminalising forced marriage. The online service says that in East Sussex, judges' demands for external parental assessments have contributed to a rise John Fotheringham, vice convener of the Law Society of in legal costs for the children's services department from Scotland's family law committee, has said the legislation £1.9m (2009-10) to £2.2m (2010-11). will help lead a culture change but must be accompanied by education to ensure that the problem of forced marriage is Liz Rugg, the council's assistant director of children's reduced in the long term. services, told Community Care: Fotheringham said: "The courts are very keen on assessments being an independent process. Just the external assessment costs an "We are very pleased this legislation has been average of £7,500, but there's also the additional cost of the enacted as although the incidence of forced marriage delay that process causes. Any child in a foster placement in Scotland is low, the impact of each individual case during the court proceedings has to stay there that much can be devastating. longer while we commission an independent assessor." "It is an important piece of legislation which will However, only last week Nagalro, the Confederation of have the capacity to address the issue but we are Independent Social Work Agencies and the British clear the law alone will not be sufficient to reduce Association of Social Workers wrote a letter to the instances of forced marriage. A proactive approach Children's Minister, Tim Loughton, to draw his attention to of educating potential perpetrators, potential victims the harmful impact caused by the loss of independent social and also those who may be in a position to spot the work expertise in the family justice system. danger signs on behalf of that victim, will be crucial in efforts to prevent it. Proper resources need to be available to educate children from an early age that The Law Society of Scotland welcomes forced forced marriage is wrong and that in addition to marriage legislation legal remedies, support is available for victims and potential victims. The seriousness of the The Law Society of Scotland has said that Forced Marriage phenomenon is emphasized by the fact that in (Protection and Jurisdiction etc) (Scotland) Act 2011 which Scotland, a breach of a forced marriage protection comes into effect on Monday, 28 November, sets out that order will be a crime - not just a potential contempt forced marriage is unacceptable and will strengthen the of court as it is in England." position for those who refuse to marry without giving their consent.

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death and that, in any event she was entitled to provision ANALYSIS from the estate as his widow.

Finance & Divorce Update Autumn 2011 The hearing was concerned with the interim arrangements: whether the wife should be able to occupy the matrimonial home pending final determination of the case and whether she should receive a lump sum of £25,000 by way of interim relief. Dismissing the wife's applications, Mann J held that the wife was likely to lose her probate claim, had provided no real evidence and the circumstantial evidence produced was unlikely to demonstrate that the deceased lacked testamentary capacity at the time he made his new will. Whilst the I(PFD)A claim was far more arguable, the court would only make an order for interim relief if the wife was "in immediate need of financial assistance". Here, the wife was an unreliable witness (she had refused to answer Joanna Grandfield, barrister with Mills & Reeve, reviews questions about her financial circumstances when giving the latest key matrimonial finance cases from the summer evidence, failed to disclose property ownership in Russia and early autumn. and bank accounts and had given evidence that was wholly inconsistent with her witness statement). The wife had set The Autumn update deals with decisions from the summer out only a "thin case on need". The Judge considered that and early Autumn and includes cases dealing with somewhat esoteric points involving interim relief under the "it behoves an Applicant in an application under s 5 Inheritance Provision for Family and Dependants) Act 1975; to proffer to the court and to the other side discharge of committal orders; treatment of personal injury convincing evidence of the case that there is awards in applications for financial remedy; the impact of immediate financial need. Mere statements of fact payment of arrears in child maintenance on state benefits; are not necessarily going to be sufficient and on the and non-disclosing husbands. facts of this case they are certainly not sufficient" [30].

Since the court was effectively pre-empting the final Smith v Smith [2011] EWHC 2133 (Ch) (Mann J) 8 July 2011 decision when deciding on an interim award, a stronger This case emphasizes the need for an applicant to make a case was needed. strong case if he or she is to be granted interim relief under the Inheritance (Provision for Family and Dependants) Act In so far as interim occupation of the matrimonial home was 1975. concerned, rather than enter into a legal debate as to the jurisdiction for making such an order, Mann J assumed that The widow, who was Russian, married the deceased in the power was available and highlighted that a very clear 1991. Shortly after the marriage the deceased made a will and immediate need to occupy, or at the very least a very leaving the bulk of his estate to the wife. good reason why an interim right of residence should be given would need to be shown. The Judge held that the The matrimonial home throughout the marriage was a wife's life was in Russia and it was unlikely that she wanted property in London owned in the deceased's sole name. The to make the matrimonial home her actual home. Whilst she marriage was in difficulties by 2003,as a result of which the would therefore have to incur hotel expenses in pursuing wife signed a statutory declaration confirming that there her substantive claim, the wife had not demonstrated an was no relationship and that she considered herself and the inability to pay those expenses. The Judge also took into deceased to have separated. The wife returned to Russia the account, having seen the wife give evidence, the defendant's same year, allegedly to care for her terminally ill mother, concerns that, once the wife gained occupation of the and remained there save for occasional visits to England to matrimonial home it would be exceedingly difficult to get visit the deceased. During one of these visits the wife her to leave. commenced divorce proceedings (having done so at least twice previously), which she failed to pursue, allegedly at the request of the deceased. Two years later, in 2005, the Kremen v Agrest [2011] EWCA Civ 1014 deceased made a new will leaving all of his property to This is the latest installment of complex litigation involving other members of his family. He died in 2009, leaving an a variety of proceedings in a number of jurisdictions and estate worth £525,000. which involved a number of third parties. On this occasion, the wife sought permission to appeal an order made by The wife challenged the will on the grounds of the Holman J discharging a committal order that had been deceased's lack of testamentary capacity and propounded made against her husband by Mostyn J almost a year earlier. the earlier will. She applied for the right to occupy the matrimonial home and a £25,000 lump sum in the An interim maintenance order requiring the husband to pay alternative. In response, the defendants claimed that this £8,000 per month to the wife and to discharge school fees was a "fossil marriage" which was effectively over from was made within her application for financial relief under 2003, if not before. In those circumstances, it was argued, it Part III of the Family and Matrimonial Proceedings Act was both understandable and justifiable that the wife 1984. The husband failed to pay the sums due resulting in should be cut out of the will. The wife disputed that the the wife's application to enforce and the husband's marriage was completely over by the time of the deceased's application to vary (which was subsequently dismissed). The husband then failed to pay £10,000 on account of arrears

www.familylawweek.co.uk Family Law Week December 2011 - 24 of maintenance ordered by a District Judge at a subsequent provision to attend by lawyer or alternative means (e.g. hearing. The wife issued a judgment summons, which video link) application came before Mostyn J on 17 April 2010. The Judge made a number of findings about the husband's Black LJ granted the wife permission to appeal. financial conduct towards the wife and granted an order for committal in respect of £10,000 on account of the arrears, suspended until 14 May 2010. The order was to be KW v Lancaster City Council & Secretary of State for Work and discharged if the husband paid the £10,000 and £100 issue Pensions [2011] UKUT 266 (AAC) free for the judgment summons before that date. Again, the This decision of the Upper Tribunal is included in brief to husband failed to pay and in the early summer of 2010 a remind practitioners that clients need to be alive to the warrant for his arrest was issued. Since the husband impact of payment of arrears of child maintenance on remained outside the jurisdiction, the warrant could not be benefits paid for the period to which those arrears relate. In executed. The husband unsuccessfully appealed the the instant case, the mother received housing and council committal order. tax benefit since she was not in receipt of financial support from the father of her child. The Child Support Agency On 15 November 2010, the husband unsuccessfully applied eventually managed to extract a lump sum from the father to discharge the committal order on the basis that the of arrears in child maintenance totaling £34,408.64, over £10,000 had been paid from other funds, namely the £23,000 of which was paid directly to the mother. proceeds of sale of the former matrimonial home which were held in court and of which arrears of maintenance As a result of that payment, the Local Authority successfully totaling £164,000, as well as maintenance of £32,000 being applied to recover the relevant benefit payments made to that which would be due to the wife between October 2010 the mother during the period to which the arrears related, and the final hearing listed in February 2011, had been paid totaling just under £15,000, arguing that the benefits paid to the wife. were now rightly classified as overpayments (albeit payments made through no fault of the mother) and were The final hearing of the wife's application under Part III recoverable. MFPA was listed to take place in February 2011. Immediately before that hearing, the husband through a Once the adjudication had been made that they were McKenzie friend made a further application to discharge the recoverable, the Local Authority then needed to exercise its committal order on the basis that his human rights were discretion in deciding whether or not to actually seek being violated since he could not come to the country to recovery of the overpayments. That decision was not represent himself without being arrested. The wife, who subject to any right of appeal but could in principle be had been expecting her Part III claim to be dealt with only challenged by way of Judicial Review. The DWP provides to be met with an application for discharge of the committal general guidance on the point in the HB/CTB order, requested an adjournment. Holman J refused that Overpayments Guide which includes [at 4.7.11] request and discharged the committal order so as to enable the husband to attend the substantive hearing, since he "A recoverable overpayment may be recovered at the considered the husband had a justifiable fear that he would LA's discretion. If an LA has a blanket policy of be arrested if he attended the hearing and that the husband recovering all recoverable overpayments, the policy was entitled to have the order discharged as a matter of law would be open to legal challenge". on the basis that the £10,100 had been paid and as a matter of discretion since the sums involved were of little Whether the discretion is to be exercised or not depends on significance in the context of this case and it would be better the facts of each individual case. (indeed necessary) for the husband to attend the substantive hearing . The wife appealed on the following bases: Mansfield v Mansfield [2011] EWCA Civ 1056 1 The Judge had effectively acted as an appeal court over This case is included for the guidance it provides in terms of Mostyn J's order in allowing the husband's application to be the treatment of personal injury awards in financial remedy considered without appearing himself or instructing a cases. The husband received damages of £0.5M in a lawyer (his McKenzie friend had no rights of audience). personal injury claim in 1998, before he and the wife had met. The parties subsequently began a relationship and 2 The Judge was wrong to interpret the payment of monies cohabited for 8 months before marrying in September 2003. to the wife as having satisfied the debt thereby entitling the Separation occurred in April 2008, making the marriage one husband to be discharged from custody under section 5 of of 6 years including the period of cohabitation and during the Debtors Act since the payment ordered from the funds which twins were born, who were 4 years old by the time of in court were not intended to discharge that liability nor did the hearing. it in fact discharge the liability since it was a sum equivalent to the debt but not payment of the debt. The husband invested his damages award in two properties, a flat, from which he received rental income and 3 The proceeds of sale paid into court were not, in fact, the a bungalow specially adapted to meet his needs and which husband's money and so could not amount to payment of became the matrimonial home. the debt. At first instance the District Judge considered that the wife 4 It was not in fact the committal order that was preventing had a mortgage capacity of £42,000 and that the husband the husband from attending court but his own actions in should pay a lump sum of £285,000 to the wife so as to breaching the maintenance order and/or failing to make enable her to meet her housing needs. If the lump sum had not been paid within 3 months, the matrimonial home was

www.familylawweek.co.uk Family Law Week December 2011 - 25 to be sold and the wife receive the greater of £285,000 or The consent order was implemented only for the wife 63% of the gross sale price. subsequently to discover that the husband had sold an investment property in Risca in which he had disclosed no The husband's first appeal was unsuccessful and the interest in the financial proceeding for £1.3m. As a result, husband appealed to the Court of Appeal. Giving the lead the wife successfully applied to set aside the consent order judgment, Thorpe LJ noted that the district judge had on the grounds of the husband's non-disclosure in 2009. considered the leading case in the area, Wagstaff v Wagstaff During the proceedings which ensued, the husband was [[1992]1 All ER 27 5 and correctly applied the first limb of evasive in his disclosure to the point of a suspended the guidance found therein in noting that the fact that the committal order being made to ensure his compliance. available capital came by way of compensation did not exclude it from the court's consideration. However, the The final hearing took place over five days in July 2010 District Judge had erred in omitting during which the husband asserted that the purchase of the Risca property had been undertaken by the parties' son, "to apply the second and important qualifying part Harry, using damages for personal injury awarded to him of the guidance, namely that each case must be as a child and which were received by him when he turned looked at on its facts, and in may instances the 18. At first instance, the Judge held that Harry had been a application of the general sharing rule must be bare nominee for the husband and, whilst some of his tempered to reflect the particular needs of the damages had been used to fund the purchase, those monies recipient and the very nature of the acquisition of the had subsequently been repaid. The Judge also concluded capital, namely by way of compensation for personal that a large number of other property transactions injuries" [15] undertaken by the husband alone, through nominees and with money advanced formally or otherwise through That misdirection entitled the court to revisit the terms of friends or funded by borrowings from commercial lenders the order. had been comprehensively lied about by the husband. The Judge concluded that as a result of the husband's persistent However, the court felt unable to interfere with the first determination to conceal the true financial picture it was instance judge's conclusions that £285,000 was the sum impossible to come to any final conclusions as to his required to meet the housing needs of the wife and children, financial position and ordered the husband to pay the wife whose needs are of course primary under the express a further lump sum of £384,000. That award was based on language of the statute. That said, special reflection of the providing the wife with a one third share in the profit on the origin of the family capital and the special purposes for RIsca property and a half share of the profit on another which it was provided, as emphasized in Wagstaff would property and took into account not only the assets properly be given in the making of a Mesher order in respect demonstrated to be in the husband's hands, but also of one third of the equity in the wife's new property. This substantial expenditure of £300,000 which must have been would be fair since the wife's need for a substantial share of made by the husband but which had not been disclosed. the limited available capital rested upon her function as the primary carer. That need would end on the majority or The husband was granted permission to appeal by Hughes conclusion of tertiary education of the children when, LJ but only on the basis that the first instance judge had coincidentally, the husband's need for a return of the capital made two relatively minor errors which nonetheless made was likely to be increased since the ordinary process of the overall conclusion challengeable, namely: aging was likely to accentuate his disabilities. 1 In taking as his starting point for the calculation of the profit on the Risca property the Judge had not Hutchings-Whelan v Hutchings [2011] EWCA Civ 1048 allowed for the substantial payments of interest on (Hughes LJ) 15 August 2011 informal loans from friends which the husband had This case involved an application for permission to appeal paid. by a non-disclosing husband who was unhappy with the outcome of a final hearing. The husband applied for 2 The judge appeared to have had evidence as to the permission to appeal the order of His Honour Judge C husband's costs in refurbishing two properties Masterman. The parties separated in 2000, after a 20 year before him yet considered that the costs relating to marriage in which three children all of whom were now one property were "not in evidence" and made no adults, were born. Financial proceedings were issued and allowance for the other at all. culminated in an order made by consent in 2004, which provided for the wife to receive a lump sum of £176,000 on payment of which the former matrimonial home was to be transferred into the husband's sole name. The order also provided for the property to be sold so as to pay the lump sum to the wife in the event that it went unpaid.

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Mesher Orders in Practice consideration to the welfare of any child of the family under 18 years of age4. Additionally, it does not cause any destabilising effect upon the child or the child's carer by forcing a sale of the home at a time that will undoubtedly have been emotionally stressful. The postponement of the sale at a time when the finances of the parties may be significantly stretched has the benefit of delaying incurring immediate moving costs and other costs associated with the sale of the property. A Mesher order may also remove the costs involved when transferring the property from joint names 5 to the receiving party and the preparation of the charge to be placed against the property.

'Negative equity' has not been a major feature within the housing market for some years but unfortunately, the Richard Tambling, barrister, One Garden Court, reviews economic slump of recent years has contributed to the the legal and practical issues arising in financial remedies resurrection of the problem. In cases dictated by needs and, cases where Mesher orders may be the appropriate in particular, housing of carer and the children, a Mesher solution. order may, in appropriate (and perhaps the most dire of) circumstances allow for a deferred sharing of the When Ormrod LJ made his obiter remarks in the Court of matrimonial home. The delay to the sale of the property Appeal in Harvey v Harvey [1982] 1 All ER 693 stating, may allow sufficient time for the market to recover and allow the parties to recover some equity from the property "This is another case which illustrates very aptly the at a later date. The terms upon which the order is made, proposition which has been stated many times in this might be such that the quantification of the proposed shares court, that the effect of making a Mesher v Mesher reflects the liability (and risk) that the party remaining in the order is simply to postpone the evil day and to avoid property with the care of the children will have in later facing the facts now." 1 years. However, this must be balanced against the contribution of the party leaving the property in respect of he neatly summed up the obvious and main practical effect his or her delayed receipt of their share of the former of making a Mesher v Mesher and Hall [1980] 1 All ER 126 2 matrimonial home. order: the delayed sale of (invariably) the former matrimonial home. In B v B (Mesher Order)6, the court did not adopt the Mesher solution but took the view that the husband was in As undesirable as it is to have the parties left waiting for the a position where he was more likely to be able to generate passage of time before the property that is the subject of the capital than the wife because she would be looking after the Mesher order is sold, or a party's share realised, nonetheless child of the family. The court held that to order otherwise the Mesher order still plays some part on the financial would cause inequality in the outcome. The advantage to remedies' stage. the Husband in obtaining the Mesher order would be comparatively modest when contrasted with the Wife The Mesher order is a postponement of the exercise of a having to re-house herself when the trigger event occurred, trust for sale of a property followed by division of the placing a considerable financial burden upon her at that proceeds of that sale when the youngest child of the family time. reaches, commonly, 18 years of age. The order the court made in Mesher was for the former matrimonial home to be A Mesher order also has the disadvantage of keeping the held on trust for sale for the parties in equal shares and for parties linked until their youngest child reaches majority, the house not to be sold for as long as the child of the family whereas, a transfer of the property and a charge in favour of was under the age of 17 or until further order. The wife the other party is a little closer to obtaining the ideal of a remained living in the home and was required to pay for the clean break. A Mesher order need not be disastrous if the outgoings and half of the capital repayments but otherwise parties maintain a reasonable relationship. A Mesher order lived in the property rent-free. will require the parties to maintain some communication about, and reach agreement as to, such issues as structural The percentage share of the proceeds of sale is usually fixed repairs, building insurance and mortgage repayments. It is when the order is made but this need not be the case, where, only fair, for example, that the spouse who will be seeking for example, one party's disability makes the future difficult to realise their half-share from the equity should also be to predict. 3 The Mesher order is, in many ways, similar to required to contribute towards the upkeep of the property the often used, deferred charge mechanism save that the and contribute towards structural repairs. Mesher order operates to hold on trust for sale the net proceeds of sale for later division. The deferred charge is One of the major criticisms of Mesher orders is that the where one party has the property transferred to him or her parties are left in a state of uncertainty as to whether or not and the other party has a charge in their favour which is they will be able to rehouse themselves once the proceeds of only realisable upon certain 'trigger' events, such as, for sale do eventually available7. For the party having to wait example, the youngest child of the family reaching 18 years for their share of the matrimonial home whilst not having of age. the benefit of occupation of the property, a Mesher order has a distinct disadvantage. That party is kept out of their One of the advantages of the Mesher order is that it satisfies share of the property for a number of years and may be in the statutory requirement that the court is to give first some difficulty obtaining secure accommodation or the

www.familylawweek.co.uk Family Law Week December 2011 - 27 means of acquiring accommodation because of their husband appealed and the Court of Appeal allowed his restricted access to their share of the property in the appeal stating that the husband should be entitled to his meantime. For the party facing the prospect of selling their capital once the wife had completed her child caring duties. home once the youngest child turns 18, Thorpe LJ The district judge's order was reinstated. The husband's summarised the Court of Appeal's view of Mesher orders, share remained at 45% with the Court of Appeal accepting when in Dorney-Kingdom v Dorney-Kingdom 8 where he that the slight disadvantage the wife would experience and stated, hence the departure from equality was fair in the circumstances. "… the form of Mesher order has been criticised in a number of decisions in this court for producing a Mesher orders will not avoid a sale of the property just harsh situation in which the primary carer, having because one party has particularly strong emotional ties discharged her responsibility to the children, is then with the property14. This is particularly so where the party left in a position when she is unable to rehouse wishing to retain the property could rehouse in less herself as an independent person, probably at a expensive accommodation and allow the other party access relatively vulnerable stage of life." to their share of the property.

In the circumstances where a Mesher order is appropriate, The trigger events in a Mesher order are usually expressed the quantification of the share of the proceeds of sale need as the youngest child of the marriage reaching 18 or further not be equal and may be adjusted to take into consideration order. The term 'further order' allows a party to apply for the financial difficulties which, for example, the party caring the date of the sale to be brought forward provided that it for the children will face when the time comes for the does not alter the intention or body of the order when it was property to be sold. In Dorney-Kingdom9 (above) Thorpe first made. In Thompson v Thompson15, a Mesher order was LJ observed that while one approach (as sought by the made and included the words 'or further order'. The wife husband) was to have particular regard to what the wife's applied to the court to bring forward the date of the sale in housing needs would be at the stage at which she completes order that she could move with the children of the marriage the discharge of her responsibility to the children, that and her new partner to a different area. The husband another way of approaching the quantification was to opposed the move because it would change the children's consider to what extent the wife may have to draw upon her schools and his contact with them. He argued that the court own alternative resources to maintain the property. This had no jurisdiction and that if allowed the order would was particularly so because the property was not only for substantially vary the original order. At first instance, the her benefit but also for the benefit of the parties' children. court dismissed the wife's application but the Court of While the wife was to be in receipt of CSA payments, the Appeal upheld her appeal declaring that the court had likelihood was that for her to maintain the property she jurisdiction and could entertain an application for sale would either have to borrow from commercial lenders or before the prescribed event provided the object was to give from her family.10 Thorpe LJ summarised the approach to effect to the spirit and construction of the original order. quantification as: The Mesher order once agreed or ordered by the court "So I think it is relevant to look not only to the requires careful drafting and necessitates consideration of a probable cost to the wife of rehousing herself at the number of issues. For example, provision will need to be end of the children's dependency, but also to the made for the proposed occupier of the property to be extent to which she may have had to reduce her entitled to occupy it to the exclusion of the departing spouse other capital assets to maintain the property to the and in addition, whether or not occupation rent is to be date of notional future sale." 11 paid16. Suitable provision must be made in relation to matters such as which party is to be responsible for making Great care is required when determining the shares and the repayment and/or interest elements of any mortgage, trigger events in a Mesher order to avoid criticism of routine maintenance, decorative repairs and upkeep, discrimination 12 between the parties. This point is well payments for buildings insurance and any essential illustrated by the case of Elliot v Elliot 13 where the district structural repairs that may develop. judge ordered that the matrimonial home be sold, another property purchased with the proceeds for the use of the wife In the event that the occupier of the property wishes to sell and the two children and that upon purchase the wife was the property and purchase another, provision will need to to execute a charge in favour of the husband for 45% of the be made in the order for such an event and for the costs of equity. The charge would be redeemable upon the death or sale to be provided for. The new home will ordinarily be remarriage of the wife, cohabitation by the wife, the wife held on the same terms as the previous home. Provision vacating for more than three months, the wife selling the should be made in the order directing how any gain or property, the youngest child reaching the age of 18 or shortfall should be dealt with. Consideration should also be completing full time tertiary education, whichever was the given to, and provision made for, the occupier to purchase later, or further order of the court. The judge also ordered the other spouse's interest in the property and there will that the husband was to make periodical payments at a need to be provision for the valuation of the property and nominal rate to the wife during their joint lives. The judge treatment of the costs of sale. based the percentage division on the fact that the wife was at a long-term disadvantage because she was to be deprived A Liberty to Apply provision should always be included in of an entitlement to a widow's pension. Both parties a Mesher order to enable the parties to restore the matter to appealed to the circuit judge who struck from the order the court in respect of any issues or disputes about the provision for redemption of the charge upon the youngest implementation and timing of the order. child attaining 18 years or completing full time tertiary education and also the nominal periodical payments. The

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An analysis of the tax position in respect of Mesher orders [5] Although it may be necessary to convey the property is beyond the scope of this article. Suffice to say that, careful into joint names if it is held in one party's sole name. thought should be given to the capital gains tax and [6] [2003] 2 FLR 285 inheritance tax. implications. Also, payment of occupation [7] Mortimer v Mortimer-Griffin [1986] 2 FLR 315 rent to the outgoing spouse may lead to an income tax [8] [2000] 2 FLR 855 liability for the recipient. [9] Ibid [10] Ibid at 863 Where is the Mesher order now? Cursory legal research [11] Ibid demonstrates 17 the continued use of the Mesher order in [12] Clutton v Clutton [1991] 1 All ER 340 appropriate cases but its use no longer creates quite the [13] [2011] FCR 477 same level of debate as it did in the 1970s and 1980s. Even [14] Sawden v Sawden [2004] 1 FCR 776 in its most recent incarnation in Mansfield v Mansfield 18 in [15] [1985] FLR 863 the Court of Appeal, the Mesher order appeared in more of [16] Brown v Brown [1982] 3 FLR 161 a supporting role rather than taking centre stage. [17] James v James [2010] EWCA Civ 445; Johnson v Johnson Nevertheless, it still has its part to play in suitable cases on [2009] EWCA Civ 1530; I v I [2008] All ER (D) 303 to name the financial remedies' stage. but a few. [18] [2011] EWCA Civ 1056 [2011] 3 FCR 187 where the appeal was concerned with the extent to which the judge in ______ancillary relief proceedings should reflect the origin of the family assets, in this case a substantial damages award from [1] Harvey v Harvey [1982] 1 All ER 693 at 698 a personal injuries claim. The Court of Appeal held that, the [2] Mesher v Mesher and Hall [1980] 1 All ER 126 exceptional factor in the case, namely the origin of the [3] Sakkas v Sakkas [1987] Fam Law 414 Fam D family capital or the vast majority of the family capital, [4] Section 25(1) Matrimonial causes act 1973 made it suitable for a Mesher order.

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Jones v Kernott – Another helping of the has in recent years chosen for development of the law on the witches' brew? ascertainment of beneficial interests in a family home. The constructive trust is now the more appropriate vehicle than the resulting trust for determination of beneficial interests in a family home registered in joint names – save – perhaps – where the couple are also business partners (per Lord Walker and Lady Hale at para [31].

The common intention constructive trust is of central importance to both joint name and single name cases.

The starting point for analysis is, however, different in the two categories of case. The claimant whose name is not on the title has the burden of establishing some sort of implied trust (normally a common intention trust) in order to demonstrate that the beneficial interests are held differently from the legal title. The claimant whose name is jointly on the register starts (in the absence of an express declaration of trust, and subject to the (rare) application of the resulting trust presumption e.g. where domestic partners are also business partners: see para [31]) with the presumption of a beneficial joint tenancy.

Joint names cases Where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage but without any express declaration of trust, there is a presumption that they are joint tenants both in law and in equity, i.e. that they are entitled to equal shares. The presumption of joint beneficial ownership is supposedly Rebecca Bailey-Harris and John Wilson QC, both of 1 difficult to rebut, and challenges to it should not be Hare Court, analyse the implications of the much mounted lightly or unadvisedly (see paras [19] – [22]). This anticipated Supreme Court judgment in Jones v Kernott. presumption replaces that of resulting trust in the particular context of a family home (see paras [23] – [25]). No opinion Introduction is proffered on whether the resulting trust remains The long-awaited judgment of the Supreme Court is with appropriate 'in other contexts' (para [53]). us, but does it delight or disappoint? It is trite law that a presumption can be rebutted by The appeal was unanimously allowed and the judgment of evidence of a contrary intention, as is stated in para [25]. The HHJ Denman restored. Ms Jones has a 90% beneficial presumption of equal beneficial ownership is thus interest in the disputed property, and Mr Kernott 10%. rebuttable by demonstration that the parties had a different Unfortunately, the unanimity of outcome does not reflect common intention as to the quantum of their respective unanimity of reasoning. Contrary to expectations, the shares in a property, either at the time of acquisition or at a Supreme Court did not deliver a single judgment. There are later date. Their intentions as to their respective shares may four judgments: Lord Walker and Lady Hale (the change over time, i.e. the common intention constructive lengthiest), Lord Collins, Lord Kerr and Lord Wilson. Lord trust can be ambulatory in nature. Kerr makes a valiant attempt to summarise the areas of agreement and disagreement between the Justices. The Supreme Court's reasoning is problematical in respect of the process whereby the presumption of equal beneficial It must be said that the judgments raise a number of ownership can be rebutted. In order to demonstrate the difficulties, both jurisprudential and practical, some of problem, it is necessary to outline the stages of the process which this brief article will attempt to highlight, as well as which the judgments set out. identifying the general propositions of law which emerge. The court's first task as set out in the judgments is General propositions jurisprudentially uncontroversial. The court must first Readers are reminded that Jones v Kernott is a case where endeavour to ascertain the parties' actual intentions as to the there is no express declaration of trust in respect of the quantum of their respective shares, to be deduced/inferred property in dispute, whether in Form TR1 or other written objectively from conduct, i.e. words and/or other conduct. document. Where a property is in joint names, disputes The court is exhorted to make its best efforts at this inference about the parties' respective beneficial interests will stage and not to shrink from making findings on disputed inevitably become less common over time, because of the evidence: see paras [36] and [72]. The Supreme Court operation of Form TR1 from 1 April 1998 (subject to the adopted a broad-brush approach to the conduct from which proviso that the TR1 is not always properly completed: see intention as to the proportion of the parties' shares can be Stack v Dowden para [52] and Jones v Kernott para [18]. inferred. Each case will turn on its own facts. Financial contributions are relevant but there are many other factors The Supreme Court emphasised that the constructive trust which may enable the court to decide what shares were based on common intention is the tool/vehicle which equity intended. Examples (non-exclusive) of the sort of evidence

www.familylawweek.co.uk Family Law Week December 2011 - 30 which might be relevant in drawing inferences of intention (and a fortiori one which is supposed to be strong) be as to quantum of shares are given at para [69] of Stack v rebutted not by evidence but by the court filling the black Dowden, to which express reference is made. hole in the evidence by its own determination of what is fair? This is surely highly unconventional. What is the point If the search of actual intention inferred from conduct is of having a presumption at all, if it can be rebutted not only uncontroversial, differences between the Justices by evidence of the parties' actual contrary intention but also nevertheless arose on whether, on the facts of Jones v Kernott, by the court's own determination of what is fair? Perhaps it was possible to draw appropriate inferences as to a this is not what the Justices meant; but it appears to be what change over time in the parties' intentions as to the quantum is being said. of their beneficial interests in the property. Lord Walker and Lady Hale (with whom Lord Collins agreed) were able There are wider issues here. Is the Supreme Court to draw the inference at paras [48] - [49] of an actual change unwittingly creating one law of property/constructive trust in intention on the proportions in which the beneficial for the jointly owned family home, and another for all other interests were held. Lord Kerr (para [76]) and Lord Wilson contexts? Further, it is trite law that the court's jurisdiction (para [89]) were not. in TOLATA proceedings is essentially declaratory in nature, i.e. to declare what the parties' existing proprietary interests It is the next stage of the process set out by the Supreme are. Does not the imputation process come very close to Court which must give rise to serious questions. It is altering the parties' property rights (from equal ownership) common to the Justices that where the court is unable to in accordance with what the court considers fair? infer the parties' actual common intention as to the proportion of their shares from the evidence, it then has to The judgments are eloquent in urging the courts to be robust proceed to determine what shares are fair, having regard to at the inference stage. But what will happen in practice in the whole course of dealing between them in relation to the the ordinary – and overburdened – county courts around property. This is the process of imputing an intention to the the country? Will there not be an understandable parties. Lord Collins, Lord Kerr and Lord Wilson's temptation for a judge faced with a large quantity of judgments readily employ the term 'impute'. Lord Walker disputed evidence to short-circuit the inference stage and and Lady Hale do not use the term expressly in the move straight on to that of imputation? This may in the eyes important para [51(4)], but do so elsewhere: see e.g. paras of some beholders introduce fairness in an area where [31] and [33] - [34] The 'whole course of dealing… in relation Parliament's inaction is the responsible for social injustice, to the property' should be broadly interpreted, enabling a but it is certainly not orthodox trust law. similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions What is the ratio decidendi of Jones v Kernott? According to through the process of inference. Thus the non-exclusive list Lord Walker and Lady Hale (with whom Lord Collins of considerations found in para [69] of Stack v Dowden agreed), there was evidence from which could be inferred should be considered at this stage too. an actual change in the parties' intentions away from equal ownership, and the inference those two Justices drew as to Lord Kerr emphasised the dichotomy between the process the parties' intention as to proportions was so close to the of inferring intention and that of imputing intention. There result produced by the trial judge that it would be wrong for is a strong demarcation line between attributing an the appellate court to interfere. Lords Kerr and Wilson were intention to the parties and inferring what their intention unable to draw inferences of intention from conduct but was 'in fact' (para [73]), and 'it is necessary that there be a reached the same result by the process of imputation. well-marked dividing line between the two' (para [75). Indeed Lord Kerr at para [74] questioned the 'aptness' of What will be the practical repercussions in joint name cases imputation, which has an exercise 'wholly unrelated to the where there is no express declaration of trust? This is not the ascertainment of the parties' views', but considered that it first occasion on which the highest court has preached the was not now practicable to discard it. By contrast, Lord rhetoric of the strength of the presumption of equal Collins considered that in the present context the difference beneficial ownership, and warned of the dangers of between inference and imputation 'will hardly ever litigation. But there seems no more prospect of reality matter…and...what is one person's inference will be another matching rhetoric after Jones v Kernott than there was after person's imputation' (para [65]). Lord Walker and Lady Stack and Dowden. With the quantification of 90%/10% Hale were slightly less robust at para [34]: 'the difference in restored, and the process of imputing intention legitimised, practice may not be so great'. That a single judgment to there is surely considerable incentive for joint registered which all the Justices could 'sign up' did not emerge may owners in cases where there is no express declaration of perhaps be attributed – at least in part – to differences about trust to 'have a go' at arguing in court that the interests are the conceptual and practical distinction between inference other than equal. Good for the work of legal practitioners for and imputation which could not be resolved. years to come, but quite the opposite result to that supposedly intended. Note further that Lord Walker and It is a pity that Lord Kerr did not develop his scepticism Lady Hale at para [50] appeared to sound the death-knell to further. On reflection, the notion that the presumption of the process of equitable accounting in cases where the joint beneficial ownership arising from joint registration can shares of beneficial interests themselves change over time. be rebutted by anything other than evidence of actual intention is highly questionable. According to the Supreme A further interesting question arises from the ambulatory Court, imputation is a process of last resort where there is nature of the common intention constructive trust as no evidence of the parties' actual intention to hold the recognised by the Supreme Court. Consider the situation property otherwise than as equal owners in equity. But in where there is a valid and unchallengeable TR1 or a deed that situation, surely the presumption should simply hold, declaring the nature and proportions of the couple's since it is not rebutted by evidence? How can a presumption beneficial interests in a property. The conventional wisdom

www.familylawweek.co.uk Family Law Week December 2011 - 31 is that that an express declaration of trust (assuming there is judgment of Lord Walker and Lady Hale, to be read in no vitiating factor when it is drawn up, giving rise to the conjunction with para [51] (3) and (4), that the imputation remedy of rectification) is conclusive of the parties' process can only be undertaken by the court in single name beneficial interests: see e.g. Goodman v Gallant [1986] Fam cases at the quantification (i.e. the second) stage. 106, Stack v Dowden at para [49]. Of course, the beneficial interests can thereafter be altered by a fresh deed (or other Thus intention to share beneficial ownership of property in written documentation). But can they be altered by evidence a single name case is to be approached only by the process of agreement not expressed in writing, given effect to by the of drawing inferences from conduct (verbal or other). The subsequent operation of an ambulatory constructive trust? Supreme Court offered no guidance on the range of conduct This is a difficult question. At first blush it would appear from which inferences can be drawn. The law is thus left clear that written documentation should be required; see unclear. We can be no more categorical than Warren J was Law of Property Act 1925 s 53(1)(b). But s 53(2) of the 1925 able to be in Thomson v Humphrey [2009] EWHC 3576 Ch at Act 'saves' the operation of a constructive trust from the [94]: requirement of writing. Does it therefore permit the operation of a post-acquisition ambulatory common 'Although the law may have moved on from Lloyd's intention trust? Such a result may 'feel wrong', but may Bank plc v Rosset and Another [1991] 1 AC 107 and need to be tested in litigation. The question, put simply, is: although it is not possible to lay down a clear line can an express written declaration of trust subsequently be between what is and is not sufficient, I am clear that altered through the vehicle of a common intention the matters relied on in the present case cannot give constructive trust? rise, in any sense, to the intention that the claimant should have an interest in [the property]' Single name cases The Supreme Court acknowledges that it was not dealing Practitioners will be none the wiser in giving advice as to the with a case of registration of property in a sole name. Does kind of evidence (apart from express representations and it however provide any enlightenment in obiter dicta on clear financial contributions to property) on which a how such cases are to be approached? See call for successful claim can be mounted in respect of sole- clarification by Gardner and Davidson in (2011) LQR 13 at registered property. 15, quoted at para [16]. What of the second stage enquiry in sole name cases – i.e. The answer is – unfortunately – 'not much'. the quantification of the parties' respective interests once the court has found that they intended to share beneficial As noted above, there is a reiteration of the conventional ownership notwithstanding the sole legal title? The wisdom that the burden is on a claimant who is not a judgment of Lord Walker and Lady Hale makes clear at registered owner to prove her case. There is however no para [52] that the approach to quantification is the same in employment of the language of presumption in this context, single name cases as in joint name cases. First the court must only starting point. Quaere whether there is in reality any endeavour to deduce their common intention as to the difference. proportions of their respective shares objectively from the evidence (the inference process). If that proves impossible The Supreme Court appears to accept that at the first-stage from the evidence, the court will then have to proceed to enquiry of whether the parties' intended to share beneficial imputation in exactly the same way as at the quantification ownership, there is no scope for the process of the court stage in joint name cases. imputing to the parties an intention which they never had. This is evident from Lord Collins' judgment at paras [62] – [63] and [66]. It is also evident from para [52] of the

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The Proceeds of Crime Act 2002 in Financial Act (Commencement No. 5, Transitional Provisions, Remedy Proceedings Part 1. Savings and Amendment) Order 2003 (SI 2003/333). This article focuses on PoCA. Further, some cases, decided under corresponding provisions of the old legislation, are of great assistance in interpreting PoCA.

Key Concepts Confiscation contains numerous concepts which will not necessarily be familiar to the family law practitioner. The following concepts are key to understanding confiscation proceedings and will be explained in context below:-

• property • the distinction between benefit and recoverable amount • the distinction between recoverable amount, available amount and realisable property • criminal lifestyle • the distinction between general criminal conduct and particular criminal conduct • the statutory assumptions In the first of a two part Article, Christian Jowett and Rhys • the relevant day Taylor, barristers at Temple Chambers, offer insights for the • tainted gifts family lawyer into the law and practice of confiscation proceedings and their impact on financial remedy The definition of 'property' applies throughout. Property is proceedings. all property and includes money, all forms of real or personal property, things in action and other intangible or Confiscation proceedings are uncharted waters for many family incorporeal property: s.84(1) PoCA. Property is: practitioners but a working knowledge of the relevant legal and procedural framework is essential. Applications for a financial • held by a person if he holds an interest in it: s.84(2)(a) PoCA remedy may be made in circumstances where one of the parties is, • obtained by a person if he obtains an interest in it: or may become, subject to a confiscation order. The competing s.84(2)(b) PoCA claims for matrimonial property between a confiscation order and • transferred by one person to another if the first one a financial remedy application, can appear confusing. In this transfers or grants an interest in it to the second: s.84(2)(c) article, we will try to dispel at least some of the mystery. PoCA.

Part One of the article sets out the key concepts and procedural Property is 'free property' unless specifically excluded: s.82 aspects of confiscation. Part Two, which will be published in PoCA. Realisable property is any free property held by the Family Law Week next week, explains the approach where defendant, or by the recipient of a tainted gift: s.83 PoCA. confiscation orders and financial remedy proceedings compete for the same matrimonial property. Making a Confiscation Order S.6 PoCA sets out how a confiscation order is made. The What is a Confiscation Order? parties to the proceedings are the prosecutor and the A confiscation order requires a defendant to pay a sum fixed defendant. Third parties have no right to be heard (although by the Crown Court. It is a personal order. It confers no they may be called to give evidence). proprietary interest upon the state in any of the defendant's assets. Two conditions must be satisfied. 'Although "confiscation" is the name ordinarily given to this • The first condition (s.6(2) PoCA) is that a defendant is process, it is not confiscation in the sense in which either (a) convicted of an offence or offences in proceedings schoolchildren and others understand it. A criminal caught before the Crown Court, or (b) committed to the Crown in possession of criminally-acquired assets will, it is true, Court for sentence in respect of an offence or offences, or (c) suffer their seizure by the state. Where, however, a criminal committed to the Crown Court in respect of an offence or has benefited financially from crime but no longer possesses offences under s.70 PoCA with a view to a confiscation the specific fruits of his crime, he will be deprived of assets order being considered. of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained. • The second condition (s.6(3) PoCA) is that the prosecutor "Confiscation" is, as Lord Hobhouse of Woodborough asks the Crown Court to proceed under s.6 PoCA, or the observed in In re Norris [2001] UKHL 34, [2001] 1 WLR court believes that it is appropriate for it to do so. 1388, para 12, a misnomer.': R v May [2008] UKHL 28, [9]. If these two conditions are satisfied, then by s.6(1), the The Applicable Legislation Crown Court must proceed under s.6 PoCA to make a The confiscation regime is set out in Part 2 of the Proceeds confiscation order; it has no discretion to refuse to do so, of Crime Act 2002 ('PoCA'). This came into force on 24th unless the victim has taken, or intends to take, civil action March 2003. Prior to PoCA, confiscation was provided for against the defendant, in which case there is a power, but by the Drug Trafficking Offences Act 1986 ('DTOA') and the not a duty, to make a confiscation order: s.6(6) PoCA.1 Criminal Justice Act 1988 ('CJA'). The old legislation will continue to apply where the offence, or any of the offences, was committed before 24th March 2003: Proceeds of Crime

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In R v May (above), the House of Lords set out the approach separate occasions of an offence constituting conduct from which the courts should take. Making a confiscation order which he has benefited: s.75(3)(b) PoCA. under s.6 PoCA involves the Crown Court making three distinct assessments. These are (s.6(4) and (5) PoCA): The relevant benefit for the purposes of a course of criminal activity is set out in s.75(5) PoCA. It is (a) benefit from • whether the defendant has benefited from his criminal conduct which constitutes the offence, (b) benefit from any conduct; other conduct which forms part of the course of criminal • if so, what is the value of the benefit he has obtained; and activity and which constitutes an offence of which the • the recoverable amount. defendant has been convicted, and (c) benefit from conduct which constitutes an offence which has been or will be taken Criminal conduct is conduct which constitutes an offence in into consideration by the court in sentencing the defendant England and Wales, or would constitute such an offence if for an offence mentioned in (a) or (b). it occurred in England and Wales: s.76(1) PoCA. (3) Criminal Lifestyle: Period of Six Months Step 1: Benefit The defendant will have a criminal lifestyle if the offence is A person benefits from conduct if he obtains property as a committed over a period of at least six months, and the result of or in connection with the conduct: s.76(4) PoCA. defendant has benefited from the conduct which constitutes We have already seen the wide definition of 'property'. the offence. Benefit can include, for example, a pecuniary advantage: s.76(5) PoCA. References to property or a pecuniary Here, relevant benefit is set out in s.75(6) PoCA. It is (a) advantage obtained in connection with conduct include benefit from the conduct which constitutes the offence, and references to property or a pecuniary advantage obtained (b) benefit from conduct which constitutes an offence which both in that connection and some other: s.76(6) PoCA. has been or will be taken into consideration by the court in sentencing the defendant for this offence. In deciding whether the defendant has benefited from conduct, and deciding his benefit from conduct, the court Assessing the Benefit: Criminal Lifestyle must take account of conduct occurring up to the time it If the defendant has a criminal lifestyle, the court must makes its decision, and take account of property obtained decide whether he has benefited from his general criminal up to that time: s.8(1) and (2) PoCA. conduct: s.6(4)(b) PoCA.

Criminal Lifestyle General criminal conduct of the defendant is all his Before the court can assess the defendant's benefit from his criminal conduct, and it is immaterial whether conduct criminal conduct, it must decide if he has a criminal occurred before or after the passing of PoCA, and whether lifestyle: s.6(4)(a) PoCA. This is very important, as it will property constituting a benefit from conduct was obtained bear directly on how that benefit is assessed. before or after the passing of PoCA: s.76(2) PoCA.

One of three conditions must be satisfied before a criminal Assessing the Benefit: Criminal Lifestyle: The lifestyle will be found: s.75(1) PoCA. Assumptions If the court decides that the defendant has a criminal (1) Criminal Lifestyle: Specified Offence lifestyle, it must make the following four assumptions for The first is straightforward. The defendant will have a the purposes of (a) deciding whether he has benefited from criminal lifestyle if the offence (or any of the offences) is his general criminal conduct, and (b) deciding his benefit specified in Schedule 2 of PoCA: s.75(2) PoCA. from the conduct:

The remaining two conditions concern the circumstances of • any property transferred to the defendant, at any time the offence itself. In both of these situations, the offence will after the relevant day2, was obtained by him as a result of not satisfy the criteria for a criminal lifestyle to be found his general criminal conduct and at the earliest time he unless the defendant obtains a 'relevant benefit' of not less appears to have held it: s.10(2) PoCA; than £5,000: s.75(4) PoCA. • any property held by the defendant at any time after the (2) Criminal Lifestyle: Course of Criminal Conduct date of conviction was obtained by him as a result of his The defendant will have a criminal lifestyle if the offence (or general criminal conduct, and at the earliest time he appears any of the offences) constitutes conduct forming part of a to have held it: s.10(3) PoCA; course of criminal activity. • any expenditure incurred by the defendant at any time • Conduct will form part of a course of criminal activity if after the relevant day was met from property obtained by the defendant has benefited from the conduct and, in the him as a result of his general criminal conduct: s.10(4) proceedings in which he was convicted, the defendant was PoCA: and convicted of three or more other offences, each of three or more of them constituting conduct from which he has • for the purpose of valuing any property obtained (or benefited: s.75(3)(a) PoCA. assumed to have been obtained) by the defendant he obtained it free of any other interests in it: s.10(5) PoCA. • Alternatively, conduct will form part of a course of criminal activity if the defendant has benefited from it and However, the court must not make a required assumption in the period of six years ending with the day when those in relation to particular property or expenditure if it is proceedings were started (or, if there is more than one such shown to be incorrect, or there would be a serious risk of day, the earliest day), he was convicted on at least two injustice if the assumption were made: s.10(6) PoCA. If the

www.familylawweek.co.uk Family Law Week December 2011 - 34 assumption is not made, the court must state its reasons: The available amount is the aggregate of the totals of the s.10(7) PoCA. values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total In Whittington [2010] 1 Cr.App.R.(S.) 83, the Court of Appeal amount payable in pursuance of obligations which then held [13-15] that it is for the prosecution to prove the have priority, and the total of the values (at that time) of underlying facts to which the assumption is to be applied. tainted gifts: s.9(1) PoCA. Note that the burden has now The prosecution must prove those facts on the balance of passed to the defendant. probabilities (s.6(7) PoCA), unless this requires proof of criminal offences, in which case, the standard of proof is the If the court decides the available amount, it must include in criminal standard: R v Briggs-Price [2009] 1 AC 1026, HL. the confiscation order a statement of its findings as to the So, for example, it would be necessary for the prosecution to matters relevant for deciding that amount: s.7(5) PoCA. prove that property was transferred to the defendant, and then, and only then, can it be assumed that this property Tainted Gifts was obtained by him as a result of his general criminal A defendant is to be treated as making a gift if he transfers conduct. property to another person for a consideration whose value is significantly less than the value of the property at the time Assessing the Benefit: No Criminal Lifestyle of the transfer: s.78(1) PoCA. The property given is to be If the defendant does not have a criminal lifestyle, it must treated as such share of the property as is represented by the decide if he has benefited from his particular criminal following fraction (s.78(2) PoCA): conduct: s.6(4)(c) PoCA. the difference between the two values set out in s.78(1) Particular criminal conduct of the defendant is all his PoCA criminal conduct, which, by s.76(3) PoCA: the value of the property at the time of the transfer

• constitutes the offence or offences concerned; The definition of 'tainted gifts' depends upon the court's • constitutes offences of which he was convicted in the same decision as to criminal lifestyle. proceedings as those in which he was convicted of the offence or offences concerned; If the court has decided that the defendant has a criminal • constitutes offences which the court will be taking into lifestyle, or no decision has been made, then a gift will be consideration in deciding his sentence for the offence or tainted if it was made by the defendant at any time after the offences concerned. relevant day: s.77(1) and (2) PoCA. A gift will also be tainted if it was made by the defendant at any time and was of Step 2: The Value of the Benefit property which was obtained by the defendant as a result of If a person benefits from conduct, the value of the benefit is or in connection with his general criminal conduct, or which the value of the property obtained: s.76(7) PoCA. If a person (in whole or part and whether directly or indirectly) obtains a pecuniary advantage as a result of or in connection represented in the defendant's hands property obtained by with conduct, he is to be taken to obtain as a result of or in him as a result of or in connection with his general criminal connection with the conduct a sum of money equal to the conduct: s.77(3) PoCA. value of the pecuniary advantage: s.76(5) PoCA. If the court has decided that the defendant has no criminal PoCA contains detailed provision for deciding value at any lifestyle, a gift will be tainted if it was made by the time of property then held by a person. The basic rule is that defendant at any time after the date on which the offence the value of property held by a person is its market value at concerned was committed, or, if his particular criminal that time: s.79(2) PoCA. This is subject to s..79(3) to (5) conduct consists of two or more offences and they were PoCA. S.79 PoCA needs to be read in conjunction with the committed on different dates, the date of the earliest: s.77(4) further definitions provided for the value of property and (5) PoCA. obtained from conduct (s.80 PoCA) and the value of a tainted gift (s.81 PoCA). A gift may be a tainted gift whether it was made before or after the passing of PoCA: s.77(8). Step 3: Recoverable Amount If the court decides under s.6(4)(b) or (c) that the defendant The Court's Approach to Making a Confiscation Order has benefited from general or particular criminal conduct, it In May (above) at [48], the House of Lords set out a series of must (a) decide the recoverable amount, and (b) make an broad principles to be followed in making confiscation order (the confiscation order) requiring him to pay that orders. This is fundamental, and worth repeating in full: amount: s.6(5) PoCA. (1) The legislation is intended to deprive defendants of the Recoverable Amount Equal to Benefit benefit they have gained from relevant criminal conduct, The recoverable amount is an amount equal to the whether or not they have retained such benefit, within the defendant's benefit from the conduct concerned: s.7(1) limits of their available means. It does not provide for PoCA. confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit Available Amount and Recoverable Amount gained is the total value of the property or advantage However, if the defendant shows that the available amount obtained, not the defendant's net profit after deduction of is less than the benefit, the recoverable amount is either the expenses or any amounts payable to co?conspirators. available amount or, if the available amount is nil, a nominal amount: s.7(2) PoCA. (2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from

www.familylawweek.co.uk Family Law Week December 2011 - 35 relevant criminal conduct? (ii) If so, what is the value of the If the prosecutor asks the court to proceed under s.6 PoCA, benefit D has so obtained? (iii) What sum is recoverable or the court considers that it is appropriate to proceed under from D? Where issues of criminal life style arise the that section, the court may at any time order the defendant questions must be modified. These are separate questions to give it information specified in an order, for the purpose calling for separate answers, and the questions and answers of obtaining information to help it carry out its functions: must not be elided. s.18 PoCA. If a defendant fails to comply, the court may draw such inference as it believes appropriate: s.18(4) PoCA. (3) In addressing these questions the court must first establish the facts as best it can on the material available, The prosecution must give the court a statement of relying as appropriate on the statutory assumptions. In very information within a period ordered by the court: s.16(1) many cases the factual findings made will be decisive. and (2) PoCA. This statement will set out whether the prosecutor believes that the defendant has a criminal (4) In addressing the questions the court should focus very lifestyle, whether he has benefited from his general or closely on the language of the statutory provision in particular criminal conduct and, if so, what that benefit is: question in the context of the statute and in the light of any s.16(3) and (5) PoCA. In a criminal lifestyle case, the statutory definition. The language used is not arcane or prosecutor must include information relevant to the making obscure and any judicial gloss or exegesis should be viewed of an assumption under s.10 PoCA, and for the purposes of with caution. Guidance should ordinarily be sought in the enabling the court to decide whether it must not make such statutory language rather than in the proliferating case law. an assumption: s.16(4) PoCA.

(5) In determining, under [PoCA], whether D has obtained If the prosecutor gives the court a statement of information property or a pecuniary advantage and, if so, the value of and a copy is served on the defendant, the court may order any property or advantage so obtained, the court should the defendant to indicate, within the period it orders, the (subject to any relevant statutory definition) apply ordinary extent to which he accepts each allegation in the statement, common law principles to the facts as found. The exercise of and so far as he does not accept such an allegation, to give this jurisdiction involves no departure from familiar rules particulars of any matters he proposes to rely on: s.17(1) governing entitlement and ownership. While the answering PoCA. If the defendant accepts to any extent an allegation in of the third question calls for inquiry into the financial the statement of information the court may treat such resources of D at the date of the determination, the acceptance as conclusive of the matters to which it relates answering of the first two questions plainly calls for a for the purpose of deciding the issues under s.16(3) or (5) historical inquiry into past transactions. PoCA: s.17(2) PoCA. If the defendant fails in any respect to comply with any order under s.17(1) PoCA, he may be (6) D ordinarily obtains property if in law he owns it, treated under s.17(2) PoCA as accepting every allegation in whether alone or jointly, which will ordinarily connote a the statement of information apart from any allegation in power of disposition or control, as where a person directs a respect of which he has complied with the requirement, and payment or conveyance of property to someone else. He any allegation that he has benefited from his general or ordinarily obtains a pecuniary advantage if (among other particular criminal conduct: s.17(3) PoCA. things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor No acceptance given in a statement under s.17 PoCA that contributors to an offence, rewarded by a specific fee and the defendant has benefited from conduct, or in response to having no interest in the property or the proceeds of sale, an order under s.18 PoCA which amounts to an admission are unlikely to be found to have obtained that property. It that he has benefited from criminal conduct is admissible in may be otherwise with money launderers. evidence for proceedings for an offence: s.17(6) and s.18(9) PoCA. Time for Payment and The 'Default Period' The amount to be paid under the confiscation order must be Restraint paid upon the making of the order: s.11(1) PoCA. However, The Crown Court may make an order (a restraint order) if the defendant can show that he needs time to pay the prohibiting any specified person from dealing with any amount ordered to be paid, the court making the order may realisable property held by him: s.41 PoCA. order payment within a specified period, not exceeding six months, starting on the day the order is made: s.11(2) and A restraint order may apply to all realisable property held (3) PoCA. Within that period, the defendant may apply to by a person, whether or not it is described in the order, and the Crown Court for the period to be extended for a period to realisable property transferred to the specified person not exceeding twelve months from the date on which the after the order is made: s.41(2) PoCA. The restraint order confiscation order is made; the court may grant the may also be subject to exceptions, for example, for living application if there are exceptional circumstances: s.11(4) expenses: s.41(3) PoCA. and (5) PoCA. However, the court may only make a restraint order if one At the time of making the confiscation order, the judge will of the conditions set out in s.40 PoCA is satisfied: s.41(1) fix a default period of imprisonment to be served if the PoCA. order is not satisfied: s.35 PoCA and s.139 Powers of Criminal Courts (Sentencing) Act 2000 ('PCC(S)A'). The restraint provisions (ss.41 to 47 PoCA) must, however, However, the default periods set out in s.139 PCC(S)A are be read in full. maximum terms, and the court retains a discretion as to the actual term fixed: R v Spencer [2010] EWCA Crim 2870. Reconsideration, Variation and Discharge of Confiscation Orders Making the Confiscation Order: Procedure

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PoCA includes various provisions in which confiscation are not required to inquire into means: s.35(3) PoCA. orders may be reconsidered, varied or discharged. These Nonetheless, there are several methods of enforcement, include: culminating in committing the defendant to prison. The confiscation order continues to have effect so far as any • reconsideration where no order was made: s.19 PoCA other method of enforcement is concerned, even after a term • reconsideration of benefit where no order was made: s.20 of imprisonment has been served: s.38(5) PoCA. PoCA • reconsideration of benefit where an order was made: s.21 Part Two of this article will deal with the interface between PoCA confiscation orders and third parties in the matrimonial • reconsideration of the available amount where an order context. was made: s.22 PoCA • variation of the order where the available amount is inadequate: s.23 PoCA ______• discharge of the order where the available amount is inadequate: s.24 PoCA [1] Cases in support of the mandatory nature of proceeding • discharge of the order where a small amount is under s.6 PoCA are R v Farquhar [2008] 2 Cr.App.R.(S.) 104, outstanding: s.25 PoCA CA and R v Morgan; R v Bygrave [2009] 1 Cr.App.R.(S.) 60, CA. There remains a limited jurisdiction to stay such Magistrates' Court Enforcement proceedings as an abuse of process: R v Paulet [2010] 1 The Magistrates' Court enforces the payment of confiscation Cr.App.R.(S.) 82, CA. orders, as if the amount ordered to be paid under the order were a fine imposed upon the defendant: s.35(1) and (2) [2] The "relevant day" is the first day of the period of six PoCA. This reinforces the position that the confiscation years ending with the day when proceedings for the offence order does not confer upon the state any proprietary interest concerned were started against the defendant, or if there are in the available assets. However, certain of the magistrates' two or more offences and proceedings for them were started powers with respect to enforcing fines do not apply. They on different days, the earliest of those days. cannot dispense with immediate payment, remit fines, and

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The Proceeds of Crime Act 2002 in Financial order: it is personal not proprietary. It obliges the defendant Remedy Proceedings Part 2. to pay a fixed sum. Consequently, it does not of itself affect third party interests. Such interests are, of course, relevant to the defendant's available amount. The defendant may assert that assets are not available to him because they are, in fact, the property of a third party. The third party may (or may not) give evidence; he or she may not even know of the confiscation proceedings. The court may, of course, find that these assets are part of the available amount and not subject to the third-party interest. However, this finding goes only to the amount the defendant has to pay. The third party's interest is not extinguished at this stage.

2: Enforcement Receivership The position is different if an enforcement receiver is appointed at the enforcement stage. Here, third party proprietary interests in realisable property will be at risk, as the court will decide what property may be used to enforce the order. However, a third party may claim a beneficial interest in this property by way of constructive or resulting trust. Alternatively, in applications under the Matrimonial Causes Act 1973 ('MCA') the third party may seek to acquire an interest in this property via a property adjustment order.

An enforcement receiver may be appointed under s.50 PoCA. The court may confer upon the receiver various powers, including the power to take possession of the realisable property, and to realise it in such manner as the court may specify: s.51(2)(a) and (c) PoCA.

The distinction between the recoverable amount and realisable property is important here. The recoverable amount is the amount the defendant is required to pay under the confiscation order. Realisable property is any free property held by the defendant, or by the recipient of a tainted gift: s.83 PoCA. The enforcement receiver will deal with the realisable property: the free property held by the defendant, in order to obtain the recoverable amount.

Perhaps unsurprisingly, there is a tension in PoCA as to the exercise of the enforcement receiver's powers. The powers must be exercised with a view to allowing a person other In the second of a Two Part Article, Christian Jowett and than the defendant or a recipient of a tainted gift to retain or Rhys Taylor, barristers at Temple Chambers, offer insights for the family lawyer into the law and practice of recover the value of any interest held by him: s.69(3)(a) confiscation proceedings and their impact on financial PoCA However, they must be exercised without taking remedy proceedings. account of any obligation of the defendant or a recipient of a tainted gift, if the obligation conflicts with the object of Part One of this article dealt with the basic concepts relevant to satisfying any confiscation order that has been or may be the making of a confiscation order. Part Two looks at the interface made against the defendant: s.69(2)(c) PoCA. between confiscation orders and third parties in the matrimonial context. Importantly, the third party has a right to be heard at this stage: In re Norris [2001] UKHL 34 at [16]. It is also not an The Matrimonial Context abuse of process for a third party to seek to assert such an In the matrimonial context, the ability of third parties to interest even if that third party has given evidence at the protect their proprietary interests depends upon the stage of Crown Court and, as in Norris, been disbelieved: Norris proceedings: [23-26].

1. making the order; or How will those powers be exercised? How will the courts 2. enforcing the order by enforcement receivership. strike the balance?

1: Making the Confiscation Order Subsisting legal and beneficial interests. Third parties cannot be parties to proceedings for the The position is comparatively straightforward where issues making of a confiscation order. This initially appears unfair. of subsisting beneficial ownership arise. Third parties may have proprietary interests, which they would want to protect. However, it must be remembered H v CPS [2007] EWHC 1291 (Admin) that at this stage, the third party's interests are in fact simply This case concerned the DTOA and MCA. In March 2002, not affected. The fundamental point is the nature of the the defendant husband and former wife separated. The

www.familylawweek.co.uk Family Law Week December 2011 - 38 former matrimonial home was sold. The former wife which in general I acknowledge, to supplement received £133,562 from the sale to purchase a new house for presently existing statutory provisions to achieve herself and their children to live in. The defendant husband what the prosecution want to achieve in violation of had nothing to do with finding or choosing it. However, it Mrs Gibson's rights under Article 1 of Protocol 1 of was bought in their joint names, and with a joint mortgage, the European Convention on human Rights. because the former wife could not otherwise have raised a Although, in the language in that Article, the result sufficient mortgage. contended for might be in the public interest, it would not be subject to conditions provided for by In December 2003 the defendant husband was arrested for the law. I decline to invent such conditions judicially. drug trafficking offences. A restraint order was made in October 2004. He was convicted in 2005, and confiscation Financial Remedy Applications proceedings took place which were compromised in respect The position is clearly different if an application is to be of the new house on the basis that the defendant's equity made for a property adjustment order where the wife does was £45,000, and that the agreement could not bind the wife. not already own any legal or beneficial interest, or the The wife then sought a variation of the restraint order. application concerns the half share not legally and beneficially owned by her already. Here, Holman J found that the former wife was the sole owner of the house. His Lordship found that, whilst the defendant 'when making a confiscation order, the Crown Court husband had contributed to its purchase a portion of his must disregard what a former wife may obtain in share of the former matrimonial home, that contribution other proceedings over and above any interest which was by way of gift or payment to, and for the benefit of, the she holds at the time of the confiscation order is wife and/or children on the basis of a clean break. The made. The mere right of the wife to apply for relief Court therefore found that the defendant husband's under MCA 1973 does not amount to "an interest" beneficial interest was nil, so there was nothing upon which falling within the terms of section 69(3)(a) of POCA: the confiscation order could 'bite'. This is a good example of see section 84(2)(f). At that stage, the Crown Court ordinary property law principles being applied in respect of has no regard to, and makes no allowance for, any a confiscation order. possible adverse consequences for a former spouse and her child when deciding the amount to be Gibson v Revenue and Customs Prosecution Office [2008] confiscated': Webber v Webber [2006] EWHC 2893 EWCA Civ 645 (Fam) per Sir Mark Potter P at [44] (obiter). In May 1999, the defendant husband was convicted of drug trafficking, in respect of an offence committed between 01st Under the DTOA, it had been held in respect of a property October 1996 and 27th March 1998. A confiscation order was adjustment order that 'the right to apply, and the made in the sum of £5,430,671-00, although his benefit was application itself, do not of themselves confer any property in excess of £38 million. rights on the party making the application': HM Customs and Excise & ANR v MCA & ANR, A v A [2002] EWCA Civ 1039, The confiscation order figure included the equity in a [9] per Schiemann LJ. property which was in the joint names of the defendant husband and former wife. They had bought it I 1990 and it Key principles was registered in their joint names. Several cases, under both the old legislation and PoCA, have addressed how the courts will deal with concurrent Proceedings took place in the High Court to enforce the PoCA and MCA applications. The key case here is HM confiscation order. The former wife was joined to those Customs and Excise & ANR v MCA & ANR, A v A [2002] proceedings, claiming that she was the beneficial owner of EWCA Civ 1039 Schiemann J held that: half of the equity in the matrimonial home. Applying the principles set out in Stack v Dowden [2007] UKHL 17, Mr • Neither MCA nor PoCA takes priority over the other, and James Goudie QC, sitting as a Deputy High Court Judge, parity between the statutes prevents injustice [43]; found that the former wife was the beneficial owner of 50% • It is not axiomatic that enforcing a confiscation order is of the equity. more in the public interest than making a property adjustment order [44]; and However, at least from 1993, the defendant husband had • Both statutes confer a discretion, the exercise of which proceeds of crime on a huge scale. Between 1993 and 1998, depends on the facts of the individual case [43]. large cash sums were paid into accounts from which mortgage payments and payments in respect of How will the court exercise its discretion? endowments were made. Mr Goudie found that at least The court is therefore confronted with a balancing act. There from 1993, tainted money was to be taken to have been used are numerous decided cases, such as: to fund the payments, and that the wife had guilty knowledge. Mr Goudie then found that, as a matter of • HM Customs and Excise & ANR v MCA & ANR, A v A public policy, the taint of which the wife had guilty [2002] EWCA Civ 1039 knowledge should be taken into account against her. • CPS v Richards & Richards [2006] EWCA Civ 849 • H v CPS [2007] EWHC 1291 (Admin) The Court of Appeal disagreed. May LJ held that the wife's • Stodgell v Stodgell [2009] EWCA Civ 243 share was not realisable property, regardless of knowledge and taint: However, exercises of discretion are essentially fact-specific. Nonetheless, several basic principles can be distilled from 21. There is thus, in my judgment, no identifiable the above authorities. In exercising the discretion to make a power in the court, supported by a public policy

www.familylawweek.co.uk Family Law Week December 2011 - 39 property adjustment order, the following factors may be employment. If the Appellant is right, and [DTOA] relevant (although not exhaustive): 1994 excludes MCA section 24, Mrs. A will lose her home, and she is likely to be dependent on the public • The Court should be careful to ensure that the applicant is sector for housing. If, as is likely, her health is genuinely innocent and the injustice real (A, [76-79], per affected (she suffers from agoraphobia which she has Schiemann LJ); managed to overcome) by the loss of her home, she will become dependent on state benefits. • Whether the applicant had knowledge of the defendant's criminal activities (A, [36] [47-48], per Schiemann LJ); 48. In short, if the Appellant is right, a substantial injustice will be done to Mrs. A in order to garner the • Whether the property was purchased with the proceeds of sum of £29,360 into the coffers of the State. I cannot crime or is tainted (A, [36] [47-48], per Schiemann LJ); regard that, on the facts of this case, as a proportionate outcome, or one which is in the public • Whether the property was preserved by the defendant's interest. criminal conduct (Stodgell, [10] per Hughes LJ): CPS v Richards & Richards [2006] EWCA Civ 849 • Where assets are tainted with the proceeds of crime and This case concerned the MCA and DTOA. The parties' subject to confiscation, in most cases they should not relationship began in 1994. The defendant husband became ordinarily be distributed, as a matter of public justice and involved in drug-trafficking, and was convicted in the policy; but the court is not deprived of jurisdiction to make Netherlands in 2004. The Dutch court could therefore such distribution, and circumstances may exist where such proceed to make an 'external confiscation order' in respect order is justified (Richards, per Thorpe LJ [26]). of his assets in this country.

The leading financial remedy / ancillary relief cases in detail. In the High Court, Bennett J found that all family assets HM Customs and Excise & ANR v MCA & ANR, A v A (other than a gift) were the proceeds of drug trafficking. His [2002] EWCA Civ 1039 Lordship found that "the wife knew that the husband was This case concerned the DTOA and MCA. The former wife involved in criminal activities and that she really knew that of the defendant sought a property adjustment order in from the word go". It was therefore the case that the family respect of the entirety of the equity in the former assets comprised tainted money which the wife new was matrimonial home, and two endowment policies. The tainted, and that the whole of the family assets were former matrimonial home had been acquired in July 1989, susceptible to confiscation. His Lordship, then awarded a and the endowment policies supported a subsequent re- lump sum of £39,250 out of the net proceeds of sale of the mortgage. The defendant, by around November 1996, had family assets to the wife under the MCA. become involved in drug trafficking. The divorce petition was filed on 03rd June 1997 and decree nisi granted on 20th The Court of Appeal allowed the prosecution's appeal. June 1997. Form E in support of the application for ancillary Thorpe LJ held that: relief was filed on 03rd December 1998. Meanwhile, on 09th July 1998 the defendant was convicted in respect of the 25. This court in Re MCA clearly anticipated, in a importation of cannabis in August 1997. On 04th December case such as this, assets should not be distributed see 1998, a confiscation order was made, ordering him to pay paragraph 13 quoted above. In the instant appeal the £47,868-22. A receiver was appointed, who subsequently whole of these tainted assets should be subjected to applied for the former matrimonial home and the two confiscation procedures and simply not distributed endowment policies to be included in the realisable to satisfy any ancillary relief order. We had property. The MCA and DTOA proceedings were joined. wondered, at one stage, whether the judge could have met the policy objection by making the order in It was accepted that no part of the equity in either the house favour of the untainted child under Section 23(1)(f) or the policies was acquired with the proceeds of crime, and of the 1973 Act but that is clearly open to the same that the couple had separated before the husband began his objections that no assets available should be drug trafficking. There was a finding of fact that she was not distributed where, to the knowledge of the applicant only innocent of any involvement in drug trafficking, but seeking relief, they were derived from drug she also lived in a house and enjoyed the benefit of policies trafficking. all untainted by drug trafficking. 26. Where assets are tainted and subject to Schiemann LJ considered this finding of critical importance confiscation they should ordinarily, as a matter of [37]. His Lordship concluded that: justice and public policy, not be distributed. This is not to say that the court is deprived of jurisdiction 47. Above all, in my judgment, the assumption that under the 1973 Act nor to say that no circumstances the provisions of [DTOA] 1994 exclude the operation could exist in which an order would be justified; an of section 24 MCA 1973 is capable of leading to an example of a seriously disabled child living in injustice which parity between the statutes would specially adapted accommodation was mooted in prevent. It is for this reason that I regard the facts set argument. It is to say that, in most cases, and out in paragraph 36 above as being so important. certainly in this one, the fact that the assets are Mrs. A is entirely innocent of any drug trafficking. tainted is the decisive factor in any balance. The error The property in which she lives was not purchased of the judge lay in thinking that the requirement to with the proceeds of drug trafficking and is conduct a balancing exercise meant that in every untainted. Her beneficial interest is entirely genuine. case, all factors are relevant. In cases such as this the She is not in good health and has only modest knowledge of the wife, throughout her married life,

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that the lifestyle and the assets she enjoyed were property adjustment order on adjusting the available derived from drug trafficking is dispositive. amount under the confiscation order, if such application is made by the defendant or the prosecutor pursuant to s.23 H v CPS [2007] EWHC 1291 (Admin) PoCA (Webber, [46], per Sir Mark Potter P). The facts of this case have already been outlined. However, Holman J went on to consider what the position would have Alternatively, if a confiscation order has not yet been made, been if the defendant husband had retained some beneficial the Crown Court must have regard to the property interest in the house. His Lordship considered that whilst it adjustment order when determining the available amount could not have been said as clearly as could have been said (Webber, [46], per Sir Mark Potter P). in A v A that there was no taint at all in the funding of the house, the facts were nowhere near as far towards the other Finally, it is worth noting that the claimant wife in related end of the spectrum as Richards. There was no drug financial order and PoCA proceedings appears to stand on trafficking or criminal behaviour whatsoever during the a more favourable, footing to "commercial" third parties. In marriage. Nor was there any evidence or suspicion that the SFO v Lexi Holdings plc (in administration) and M [2008] former wife had the least knowledge of any criminal activity EWCA Crim 1443 it was held that a restraint order could not on the part of the defendant. There had, and continued to be varied prior to the making of a confiscation order unless be, a very significant contribution by the former wife. The this did not conflict with the satisfying of the confiscation criminality came many months after the parties' agreement order. This meant that commercial third party creditors at the time of acquisition. Even if there may have been some would have to wait and see if the defendant retained any taint in that some of the interest payments were made with assets after the order was satisfied. At paragraph [73] the the proceeds of crime, the former wife was unaware of this, Court of Appeal contrasted this approach to the balance and the amount of payment was no more than the which is struck by the competing public policy objectives of defendant ought to have been paying to maintain his PoCA and the MCA, stating that that cases involving a children. The husband had been deprived of his property. financial remedy were a "special situation." Public policy did not require any part of the house to remain available for satisfaction of the confiscation order. In Jurisdiction and procedure. exercising the court's overall discretion, such beneficial Prior to PoCA, in relation to restraint and enforcement interest as the defendant retained would be transferred to proceedings, if ancillary relief proceedings were pending, it the wife. was possible (and convenient) for cases where there were enforcement or restraint proceedings, and concurrent Stodgell v Stodgell [2009] EWCA Civ 1243 ancillary relief proceedings, for cases to be dealt with by a This case concerned the MCA and DTOA. The defendant single High Court Judge with appropriate expertise. This husband and former wife married on 1997. The marriage was because the High Court had jurisdiction over both sets broke down in 2003, and the parties divorced in 2004. of proceedings. Throughout the marriage, the husband traded as an art dealer. He had been fraudulently evading tax for many However, PoCA has changed this. In Webber v Webber years. He was charged with cheating the revenue in 2006, (CPS intervening) [2006] EWHC 2893 (Fam), Sir Mark and a restraint order was made. On 20th November 2007, a Potter, P., held that: confiscation order was made in the sum of £900,453. The defendant's assets were not less than the benefit. However, 49. I have no doubt that the procedure adopted pre- by the time of the High Court hearing before Holman J, the POCA whereby, in relation to restraint and available assets were insufficient to meet the order. Holman enforcement proceedings, if ancillary relief J stayed the wife's application for ancillary relief until the proceedings were pending, the matter was dealt discharge of the confiscation order. with by a single High Court Judge with appropriate expertise, was a thoroughly sensible, convenient, The Court of Appeal dismissed her appeal. The wife was not and cost-saving procedure. However, it is equally complicit in her husband's crime; she was entirely innocent. clear to me that, the sole jurisdiction to deal with all However, Hughes LJ held [9 and 10] that whilst non- matters of restraint, confiscation, and enforcement complicity on the crime is a necessary condition for the wife now resides in the Crown Court (save that the High to succeed in ancillary relief, it was not sufficient. In this Court is the venue for applications made by the case, it was not critical that two properties were not enforcement authority for recovery orders pursuant acquired from crime. Rather, it was critical that they could to section 243 POCA). not have been and could not be preserved without the non-payment of tax and penalties. The issue of appropriate venue for the disposal competing PoCA and MCA applications is a matter of concern. It What happens to the confiscation order if a property should be noted in the case of T v B v RCPO [2008] EWHC adjustment order is made? 3000 (Fam) the President of the Family Division accepted If a property adjustment order is made, the position in that he had the jurisdiction to sit as a Crown Court judge confiscation proceedings will depend upon whether a when hearing family proceedings. However, on the facts of confiscation order has yet been made. that case his Lordship declined to do so.

If a confiscation order is in force, the defendant is not When considering what directions are required to justly relieved of his personal obligation to satisfy it, and the object dispose of these cases there is very useful guidance in the of the confiscation legislation is not defeated because, in case of W v H (HM Customs & Excise Intervening) [2006] 2 default of payment, the defendant becomes liable to serve FLR 258, where Munby J (as he then was) sets out a an additional period in prison (A, [46], per Schiemann LJ). comprehensive list of directions which should be sought by However, the Crown Court must have regard to the the parties to such applications. However, this case was

www.familylawweek.co.uk Family Law Week December 2011 - 41 decided prior to PoCA and so the directions concerning wife cannot be a party when the confiscation order is made. transfer to Family Division judge who is also a nominated She can join in at its enforcement, and has a right to be administrative judge would no longer apply, given the reheard on matters which were determined in the decision in Webber (although note that a not dissimilar confiscation proceedings, even if she appeared (and was result may be possible via the T v B approach of a Family disbelieved) as a witness at that stage. There are also Division judge agreeing to sit as a Crown Court judge, or interesting case management issues, in ensuring that both indeed a Crown Court judge who is also a nominated family jurisdictions know what is happening in the other. Cases judge). involving a confiscation order which have a negative impact on family finances are also likely to result in the wife Conclusion successfully invoking the issue of 'conduct' in the financial The interaction between confiscation proceedings and remedy proceedings. financial remedy applications is highly fact sensitive. The different legislation does not always sit easily together. The

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One step forward, one step back: Jones v Hall Avenue, Thundersley, Essex in joint names. The Kernott conveyance did not contain a declaration of trust and neither party sought or was offered advice as to the implications of buying a property jointly.

The parties and their two children (born in 1984 and 1986) lived at the property as their family home from 1985 until their separation in 1993 when Mr Kernott vacated the property. At that time, a joint insurance policy was surrendered and the proceeds divided equally, enabling Mr Kernott to put down a deposit on a new property in his sole name.

Having left, Mr Kernott made no further financial contribution to the household and bought his own home. Ms Jones took responsibility for the mortgage, the endowment policy premiums, all of the household bills and supported the children with little or no financial support from her former partner. In May 2006, more than twelve years after their separation, Mr Kernott sought to realise his half share of the bungalow, which remained in the parties' Alexander Chandler, barrister, 1 Garden Court analyses joint ownership and in March 2008 he purported to sever the Supreme Court judgment in Jones v Kernott and the joint tenancy. evaluates the extent to which it clarifies the law applicable to the determination of cohabitation disputes. It is worth interjecting at that point that, if the parties had signed a declaration of trust (which since 1998 is provided Decision for in the standard Land Registry Form TR1), such a In Jones v Kernott, the Supreme Court unanimously declaration would have conclusively declared their shares allowed Ms Patricia Jones' appeal and declared that she was save in the event of fraud or mistake (Pettitt v Pettitt [1970] entitled to a 90% share of the property she jointly owned AC 777; Goodman v Gallant [1985] EWCA Civ 15). Their with Mr Leonard Kernott in Thundersley, Essex. original financial contributions and issues of subsequent common intention constructive trust would have been That a dispute over a property worth £245,000 with irrelevant. Had Ms Jones and Mr Kernott signed up to an relatively few factual issues can involve three reported express declaration, it is suggested that the court's powers appeals (Jones v Kernott [2009] EWHC 1713; Kernott v Jones to declare that their interests were other than equal could [2010] EWHC Civ 578; Jones v Kernott [2011] UKSC 53) and only have arisen from conducting an account in accordance significant dissenting judgments at both the Court of with sections 12 to 15 of TOLATA (see Murphy v Gooch Appeal and Supreme Court, speaks volumes about the [2007] EWCA Civ 603). current state of law in the Trusts of Land and Appointment of Trustees Act 1996 ("TOLATA") . Lead judgment of Lord Walker and Lady Hale While the Supreme Court agreed that Ms Jones' appeal i) Acknowledged the controversy that had arisen from Stack should succeed, they did not speak with one voice and the v Dowden [2007] UKHL 17, which this appeal provided an Justices divided 3:2 on the question of whether the court opportunity for some clarification paras [1-2]. However, the was inferring the parties' intentions or imputing what it correctness of Stack v Dowden (which many practitioners objectively considered fair: would dispute) was not in issue: "[69] The areas of disagreement appear to be these: (a) is "…counsel have not argued that Stack v Dowden was there sufficient evidence in the present case from which the wrongly decided or that this court should now depart from parties' intentions can be inferred? (b) is the difference the principles which it laid down. between inferring and imputing an intention likely to be great as a matter of general practice?", per Lord Kerr ii) While 'at a high level of generality' there is a single regime relating to family homes, there is a different starting Lord Walker and Lady Hale inferred that the parties' point between jointly owned properties (presumption of intentions had changed on separation whereby '…the equal beneficial ownership) and solely owned properties logical inference' was that Mr Kernott's share crystallised at (presumption of sole beneficial ownership) para [16] – that point para [48]. Lord Collins concurred with this which was not simply a matter of following the mantra that reasoning para [55]. '…equity follows the law'. Rather it arises for substantial reasons including By contrast, Lords Kerr and Wilson concluded that it was in fact "…impossible to infer that the parties intended that a) the '…strong indication of emotional and economic their shares in the property be apportioned as the judge commitment to a joint enterprise' in a jointly owned considered they should be but that such an intention should property para [19] be imputed to them" (Lord Kerr, para [77]). b) the practical difficulty in many cases of unravelling the Facts parties intentions with regards the ownership of property Leonard Kernott and Patricia Jones met in 1980 and formed after a long relationship para [22] a relationship. In 1985 they bought a bungalow in Badger

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the common intention that their respective shares would iii) With regards the quantification of the shares of co- change. owners, the Stack v Dowden approach is confirmed, that the primary search is to ascertain the parties' actual shared 3) Their common intention is to be deduced objectively from intentions whether expressed or inferred from conduct: their conduct: "the relevant intention of each party is the intention which was reasonably understood by the other "…we accept that the search is primarily to ascertain party to be manifested by that party's words and conduct the parties' actual shared intentions, whether notwithstanding that he did not consciously formulate that expressed or to be inferred from their conduct." (para intention in his own mind or even acted with some different [ 31]) intention which he did not communicate to the other party" (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). iv) However, the court may (although not on the facts of this Examples of the sort of evidence which might be relevant to case) be 'driven to impute an intention to the parties which drawing such inferences are given in Stack v Dowden, at para they may never have had' in at least two exceptions i.e. 69. a) Firstly, where domestic partners are also business 4) In those cases where it is clear either (a) that the parties partners and the classic resulting trust approach may apply. did not intend joint tenancy at the outset, or (b) had changed However, this will be 'rare' in a domestic context since their original intention, but it is not possible to ascertain by disputes between cohabitees general involve a direct evidence or by inference what their actual intention consideration of the common intention constructive trust; was as to the shares in which they would own the property, "the answer is that each is entitled to that share which the b) Secondly, where it is 'impossible to divine a common court considers fair having regard to the whole course of intention as to the proportions in which they are to be shared' dealing between them in relation to the property": Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69. In v) The conceptual difference between imputation and our judgment, "the whole course of dealing … in relation to inference is clear, in that imputation involves the court the property" should be given a broad meaning, enabling a declaring an intention which neither party had but which similar range of factors to be taken into account as may be the court considers fair, whereas inference involves the relevant to ascertaining the parties' actual intentions. court divining the parties' unexpressed intentions from conduct rather than interposing its own view. However, in 5) Each case will turn on its own facts. Financial practice, '…the difference in practice may not be so great' contributions are relevant but there are many other factors para [34] which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)). vi) In Kernott v Jones, the parties' intentions changed. This was an example of what Lord Hoffman described in Stack v Judgment of Lord Collins Dowden as an "ambulatory constructive trust" (para [14]). Specifically, on separation, "a new plan was formed", when i) Lord Collins itemised three areas of controversy arising the life insurance policy was cashed in and Mr Kernott from Stack v Dowden bought a new property. "[59] There have been at least three causes of the "The logical inference is that they intended that his difficulties with Stack v Dowden. The first is that the interest in [the property] should crystallise then… it previous authorities were mainly concerned with a is clearly the intention which reasonable people different factual situation, namely where the would have had had they thought about it at the property was registered in the name of only one of time" (para [48]) the parties. Second, they did not in any event speak with one voice, particularly on that part of Stack v vii) The property was worth £60,000 in 1993 whereby Mr Dowden which has caused most difficulty, namely Kernott's half share was then worth £30,000 or whether in this part of the law there is any useful approximately 12% of its current value, a figure so close to distinction between inferred intention and imputed the decision of 10% that it would be wrong of the appellate intention: contrast Gissing v Gissing [1971] AC 886 court to interfere para [49]. with Lloyds Bank v Rosset [1991] 1 AC 107. The third reason is that (despite it being trite that it is wrong to viii) Revisiting Stack v Dowden (also see Lord Collins at para do so) Baroness Hale's speech has been treated as if [60]), the following checklist of factors is offered: it were a statute, and ambiguities in it have been exploited or exaggerated, particularly the passage at "[51] In summary, therefore, the following are the principles para 60 in which she has been taken as having applicable in a case such as this, where a family home is treated inferred intention and imputed intention as bought in the joint names of a cohabiting couple who are interchangeable, and the passage at para 61 in which both responsible for any mortgage, but without any express she approved, or substantially approved, the declaration of their beneficial interests. reasoning of Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69." 1) The starting point is that equity follows the law and they are joint tenants both in law and in equity. ii) Lord Collins interprets Baroness Hale's disapproval in Stack v Dowden of the court imposing what it considers fair 2) That presumption can be displaced by showing (a) that as relating to the first stage of any inquiry, i.e. whether an the parties had a different common intention at the time interest can be established, rather than to the second, which when they acquired the home, or (b) that they later formed quantifies the share (see para [63])

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account of all conduct which throws light on the Dissenting judgment of Lord Kerr question what shares were intended.' i) Lord Kerr agreed that the appeal should be allowed but That may be the preferable way of expressing what took issue with the assertion that the distinction between is essentially the same thought, for two reasons. inference and imputation was unlikely to matter in practice: First, it emphasises that the search is still for the "Indeed, it seems to me that a markedly and obviously result which reflects what the parties must, in the different mode of analysis will generally be required' (Lord light of their conduct, be taken to have intended. Kerr, para [67]) Second, therefore, it does not enable the court to abandon that search in favour of the result which the ii) Generally, the court should attempt to divine the parties' court itself considers fair" (my underlining) actual intentions: v) Lord Wilson disagrees with this last sentence (para [88]) "There is a natural inclination to prefer inferring an and confirms that where it is not possible to infer an intention to imputing one… but the conscientious quest to intention, the court will impute an intention to the parties discover the parties' actual intention should cease when it which involves a consideration of what the court considers becomes clear either that this is simply not deducible from fair (see para [68]). (It might be argued that Baroness Hale's the evidence of that no common intention exists' (Lord Kerr, opinion in Jones v Kernott also withdraws from the position para [72]) stated in Stack v Dowden (see Jones at para [33]) iii) The bare facts of Mr Kernott's departure in 1993 and his vi) On the facts of Jones, Lord Wilson prefers the approach acquisition of another property '…are a slender foundation taken at the first appeal by Mr Strauss QC sitting as a on which to conclude that he had entirely abandoned Deputy High Court judge ([2009] EWHC 1713): whatever stake he had in the previously shared property' (Lord Kerr, para [76]) "[89] … I regard it, as did Mr Strauss at [48] and [49] of his judgment, as more realistic, in the light of the evidence iv) Lord Kerr prefers to allow the appeal on the basis that before the judge, to conclude that inference is impossible this intention cannot be inferred but should be imputed but to proceed to impute to the parties the intention that it (para [77]). should be held on a basis which equates to those proportions" Dissenting judgment of Lord Wilson Conclusion i) Lord Wilson began by recalling the refusal by legislators to follow the recommendations of the Law Commission, i) In law, as in mathematics, it is often easier to state the noting the "…continued failure of Parliament to confer upon result than to 'show your workings' and explain how the the court limited redistributive powers in relation to the outcome was reached. property of each party upon the breakdown of a non- marital relationship" (para [78]). ii) While all of the five Justices of the Supreme Court agreed to restore the decision of the trial judge, the reasoning of the ii) Lord Wilson heralded the "…development of the law of majority was significantly different from the minority. equity, spear-headed by Lady Hale and Lord Walker in their speeches in Stack v Dowden… that the common iii) There seems to be consensus in the Supreme Court that, intention which impresses a constructive trust upon the where the intentions of the parties cannot be divined, the legal ownership of the family home can be imputed to the court can legitimately 'impute' an intention which did not parties to the relationship" (para [79]). exist. This is interesting for a number of reasons: firstly, it is at variance with Baroness Hale's expressed view in Stack v iii) The court's power to 'impute' an intention derived from Dowden at para [61]; secondly, the minority opinion of Lord Pettitt v Pettitt [1970] AC 777 (per Lord Diplock at 823) and Neuberger in Stack v Dowden sets out the contrary view at had been re-asserted by Chadwick LJ in Oxley v Hiscock para [127], that it is wrong in principle and departs from [2004] EWCA Civ 546, albeit: established principle;

"…its preference is always to collect from the evidence an iv) It is, however, noteworthy that the Supreme Court expressed or inferred intention, common to the parties, reached such different conclusions on the facts of this case, about the proportions in which their shares are to be held, i.e. three Justices found the events around the parties equity will, if collection of it proves impossible, impute to separation provided 'clear' evidence of a changed common them the requisite intention. intention; whereas Lords Kerr and Wilson considered these 'a slender foundation' and preferred to impute an objective iv) However, this approach, and the fall-back position view of what seemed fair. whereby a court could impute a 'fair' intention had been called into doubt in Lady Hale's judgment in Stack v v) While some points have been clarified (imputation, Dowden at para. [61], i.e. approval of Oxley v Hiscock approach to quantification), in other respects serious doubt remains, in particular as to how "…we believe that there is much to be said for the court should 'infer' or 'impute' common intention. One adopting what has been called a "holistic approach" step forward; one step back. to quantification, undertaking a survey of the whole course of dealing between the parties and taking

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Alternative Methods of Family Dispute wrong legal advice had been given about the likely outcome Resolution of the case in court. So the clients had gone blithely forward, rejecting realistic proposals for settlement, until, on judgment day, they received a painful education.

Third, lack of clarity in the law. Good lawyers sometimes have to confess that they are unable to predict the outcome of the case with any confidence; and unsurprisingly, the result is that all save the most generous settlement proposals are rejected. The law can be in a state of flux; see its current movement in relation to the circumstances in The keynote address by Lord Wilson of Culworth, a which a parent will be permitted to take a child to live Justice of the Supreme Court, delivered at a reception at abroad. Or the law may deliberately have been designed to The Reform Club on 29 November 2011 hosted by be fluid and discretionary. A prime example is our law of Collaborative Family Law financial provision following divorce; during the last decade dramatic new principles have been injected into it, Let me begin my expression of profound commitment for case by case, in order to reflect society's changing sensations alternative methods of the resolution of private family of fairness but it takes time for the courts clearly to work out disputes by suggesting, perhaps paradoxically, why a well- their ramifications. So sometimes good lawyers on each functioning court system needs to remain available for the side may reasonably offer to their clients a substantially judicial determination of some disputes following the different prediction of the result. breakdown of a family relationship. There will always be a residue of such disputes which can be resolved only in Fourth, a refusal, real or perceived, by one party to deal court. In my experience, born of working in the family honestly with the other. Of course I have in mind, in courts first as a barrister and then as a judge, day in day out, particular, a refusal to make full disclosure of his or her for 40 years, there are five main reasons why some private financial resources. Full mutual disclosure is the essential family disputes need to proceed all the way to the judge's foundation of any settlement of financial claims: if it is determination – indeed sometimes beyond in the shape of reasonably perceived to be absent, there is no escape from an appeal. proceeding to draw down, from within the court system, the ferreting qualities of the family lawyer and the worldly First, lack of legal advice. Parties often leave a relationship shrewdness of most family judges. with unrealistic expectations about their legal entitlements. It is one of the main functions of lawyers, albeit never an And fifth, the way in which, in the wake of the breakdown enjoyable one, to inject a note of realism into their clients' of a relationship, emotions of fear, mistrust, anger or aspirations. In the absence of unpalatable advice of that revenge can infect a person's ability to accept advice and to character, parties often continue to misappraise their rights proceed to settlement. The family lawyer is sensitive to the and to convince themselves that a judge will vindicate what reasons for such barriers to his client's acceptance of his they think. The result, of course, is always disappointment advice; and sometimes he has to conclude that, without and often disaster. The government's proposed withdrawal application of an unacceptable degree of pressure, he cannot of public funding of legal advice even for parties who have overcome them and that his client's emotional need requires no chance of being able to purchase it for themselves is - at simply that he should lay the case to best advantage before a superficial level – entirely understandable given the a judge. present economic emergency. But it would actually be a false economy. Without legal advice, more private family But the vast majority of disputes which follow the disputes would end up in court; without legal breakdown of a relationship, whether the parties were representation, the hearings of them would take longer; married, were civil partners or otherwise, are entirely and, without assistant legal navigators, the trial judges capable of consensual settlement rather than adjudication; would more often be blown off course so there would be and it is vital that all cases which can be settled should be more appeals. Applications for financial relief in which the settled. There are five main disadvantages to proceeding to parties' net assets total £100k, all usually tied up in a house, court. are far more difficult for a judge to resolve than those in which they total £10m. Tonight I publicly join the chorus of First, the cost. Take a financial case in which the assets are so many others with intimate knowledge of the family say £700k. In pursuing that case to judgment each party justice system who are urging the government to think nowadays may easily incur costs of £100k and so may again. together reduce the pool to £500k; such a ratio of costs to assets is unacceptable and its malign consequences are Second, wrong legal advice. During my 40 years I never likely to impact substantially upon both of them. formed the view that a family lawyer, whether solicitor or barrister, had deliberately given over-optimistic (or Second, the delay. Only when the assembly of a case for otherwise bad) advice in order to prolong the dispute and to final presentation is well under way will the court be willing enlarge his fees. Among the many public misconceptions to fix a date for the main hearing. But the date which it then about family justice, some fomented by one or two members fixes will be many months ahead and, if a long hearing – say of the press who occasionally appear impervious to five days – appears necessary, it will probably be more than evidence inconsistent with their pre-conceived agenda a year ahead. The lawyers will take such delay in their about it, the perception of the stereotypical family lawyer stride; but, for anxious parties, it must be an eternity. who cynically bumps up the costs is one of the most unfair. But I did encounter cases in which, unintentionally, the

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Third, the publicity. The press is now usually entitled to financial and other issues (and indeed, for example, in the attend what are still called private hearings of family generation of pre-nuptial agreements, nowadays likely to be proceedings; and, although its right to publish what it there held binding, in circumstances in which at the time of their learns remains circumscribed, the daily march into and out generation there may well be no issue at all). The platform of the court building by parties in whom the public has an necessary for the collaborative exercise is a high level of interest is intrusively tracked and assiduously reported. residual trust between the parties, who instruct specially trained collaborative solicitors to participate in meetings Fourth, the uncertainty. In family proceedings there is between all four of them across only one table. Hence the often a spectrum of legitimate outcomes even in Group's logo of four loose pieces of jigsaw able, or (on my circumstances in which the law is reasonably clear. The closer study) almost able, to fit together. But the unusual – point along the spectrum at which the particular outcome and, to my mind, the essential – feature of the collaborative falls will depend upon a variety of factors from which - I exercise is a written agreement on the part of all four of fear - one can never entirely banish the identity of the judge them at the outset that, were settlement not to be achieved, but which will certainly include the performance of the the respective solicitors would not continue to act for the witnesses and of their advocates on the day. parties in the contentious proceedings which lie ahead. The solicitors are therefore seen to have no interest in the And fifth, the emotional burden cast upon the parties by the continuation of the dispute; the parties have every interest hearing. They loved each other once and shared moments in not being obliged to disinstruct solicitors in whom they of utter happiness, physical and otherwise. Often indeed have confidence; and in the dialogue each can respond they remain joined in parenthood. Those of us lucky freely to the other's solicitor without suspecting that he is enough to have escaped divorce cannot, I suspect, fully collecting ammunition for use in court. appreciate the sickening unpleasantness for them of becoming locked in battle across a court. The Group also offers mediation, being of course a totally different exercise. It is family mediation to which the I have laid the ground for the central message to which I government is a belated convert; and presently it proposes referred at the outset which I wish to convey tonight. It is to fund mediation in circumstances in which it will not fund one of unalloyed support for the various other methods of litigation. Indeed new rules require the undertaking of at achieving resolution of family disputes which our hosts, any rate an assessment of the suitability of the parties for Collaborative Family Law, now offer and which they mediation before many applications to court may even now explain in particular on a new website which came on be issued. As President of the Family Mediators Association stream today and which I have visited. for the past 13 years, I have a profound commitment to family mediation and, prior to my appointment last May When I was at the family bar, there were only two methods which has thrown my plans into wonderful disarray, I was of achieving settlement. The first was by an exchange of planning soon to retire from the Court of Appeal and to ask letters between solicitors. No doubt this method is still the Association to train me as a family mediator. But it much in use – and often rightly so. But it is slow: for the might not have been easy for a reasonably decisive judge to dialogue must be interrupted by the solicitor's need at every transmute into a subtle facilitator. The mediator, who, if stage to take instructions and, perhaps, to consult counsel. provided from within this Group, would happen to be a And it is expensive: for his taking of such steps is costly, as lawyer but would not be acting as a lawyer, generally is his clever drafting of the next letter in the chain. The operates with the parties on their own, although it is wise second was by negotiations between counsel, almost always for them to have lawyers to whom they can turn for advice at the door of the court. This was – and remains – a between sessions. By deft handling of the discussions, he particularly poor means of achieving settlement. By that enables them to move to common ground, whereupon, with point almost all of the costs have been incurred; and the his help, they record an agreement which resolves – or at delays have been suffered. Yes, the settlements which I least narrows – the issues and which, like the product of a there secured for my clients achieved certainty and avoided successful collaborative exercise, can cover much more the unpleasantness for them of the contest otherwise about ground than can the contents of a court order. to begin. But in retrospect I consider that I failed to appreciate what an inappropriate moment it was for me to In 1996, after I had become a judge of the Family Division, ask them to take life-changing decisions about their future; provision was made for judges to conduct Financial Dispute and how unconducive to that exercise were the Resolution meetings. They were devised, in particular, by circumstances of a court corridor, of a judge waiting with a Lord Justice Thorpe and it will surely prove to be the most greater or lesser degree of patience, and of the conundrum inspired of all his contributions to our system of family (with which all advocates have to wrestle) that, were too justice. It is, again, a mechanism entirely different from much time to be invested in a negotiation which was anything which I have yet described. A judge who, were ultimately to prove unsuccessful, there might remain the meeting to fail to produce consensus, would be insufficient time for the judge to conduct the hearing. disqualified from playing any part in the ongoing proceedings, will conduct the meeting between the parties Collaborative Family Law offers various mechanisms of and their lawyers and, at the end of a discussion of all dispute resolution which, in most cases, will much better apparently relevant issues, he will offer – if he can – an serve the interests of the parties than those to which I have off-the-record prediction of the result of the proceedings in referred. In a way unfortunately the Group's new name the event that they were to continue to judgment; and the disguises the mechanisms which it offers other than that of more specific he can make it, the more helpful his prediction collaborative law; clearly, however, the collaborative will be – so long as it is correct! If, as is intended, his mechanism is at its centre. It was introduced into the UK prediction appears to them to be sufficiently authoritative, from the US about eight years ago and it has achieved an the parties are likely to wish to settle along the lines which astonishing level of success in the negotiation of substantial he has identified. But they face delays and costs prior even

www.familylawweek.co.uk Family Law Week December 2011 - 47 to their arrival before the judge at the FDR meeting; and I wish to understand more about the consequences which therein lies the relevance of the FDR meeting to the work of flow when a party, aggrieved by the arbitrator's the Group. For some of its members now offer "private determination, withholds consent to the court order, hearings". Beneath this title – a questionable one in that the reflective of it, which is necessary for making a financial FDR exercise before the judge is deliberately described as a agreement watertight. In principle, however, arbitration meeting rather than a hearing – lies another valuable would be likely to avoid – or lessen - a number of the mechanism for dispute resolution, very recently developed. disadvantages attendant upon proceeding to court, in A silk at the family bar or even a retired judge of the Family particular delay and publicity. I am glad to learn that Division will conduct with the parties and their lawyers a rigorous training, effected in conjunction with the Institute meeting analogous to the FDR meeting and in particular of Arbitrators, is a pre-requisite of a member's accreditation will offer, off the record, what is intended to be an as an arbitrator. For he will need to be as wise as the family authoritative evaluation of the likely result in court which judge whose outstanding judicial qualities are intended to will lead to a settlement along those lines. Those of the have been identified in the course of the appointments Group who offer this service can do so at short notice and system and who in many cases will have developed the art without the delays in the arrival of the parties at the FDR of wise decision-making by experience over the years. meeting; and they may be able to invest more time in pre- reading for it and in conducting it than is available to some I am honoured to have been asked to speak about what is at of the judges. present the hottest topic in family justice, namely the evolution of improved methods of the resolution in our But there is yet a different area in which the Group society of private family disputes. I have said enough to considers that some parties might benefit from a further and explain why the Group is right at the forefront of this more dramatic invasion into the territory of the judges. I evolution. But its current pace is astonishing. Might I refer to arbitration, namely the imposition by a member of prevail on the generosity of our hosts to invite us all to the Group of a result upon parties who have given their another party in a few years' time at which, perhaps more informed consent to be bound by it. I have not previously interactively, we can together survey its further encountered arbitration in the family field; but a few development? members of the Group propose to offer it as from next year.

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CASES Parallel proceedings under Schedule 1 to the Children Act 1989 were subsequently brought and a pre-trial review of C (Children) [2011] EWCA Civ 1230 the Schedule 1 proceedings is listed for later this year. Hedley J noted that if the applicant were to obtain her Decree of Nullity then extended remedies in ancillary relief Upon the making of final care orders in care proceedings, would then become available to her. the court also granted an injunction restraining M, the mother, from contacting her children (save for arranged While such an application for permission to file her Petition contact), approaching them while they were at school, or would ordinarily be heard without notice to the respondent, from going within 200m of their foster carer's home. the respondent was informed and was represented and attended the hearing. On a subsequent date M parked 40m from the foster carer's home for a number of hours, and then returned in the early Hedley J considered the relevant legal authorities that hours of the following morning with a baseball bat. Having should guide the court in such applications and read informed the police of her intention to do so, she then statements provided by the applicant and the note prepared smashed the car belonging to the foster carers, and the glass on behalf of the respondent. The learned judge gave leave in the front door of their home. There had also been two to the applicant to issue a Petition for Nullity without minor breaches of the order a month before. having to file a Certificate of Marriage. The court imposed no separate penalty for the two minor Hedley J stressed that he arrived at that conclusion based breaches, but imposed a custodial sentence of 2 months for solely upon the evidence of the applicant and that such an being within 40m of the home, and 4 months for the incident application should be based on the applicant's evidence where the property was damaged. The sentences were to alone because such applications were to be made without run consecutively. M admitted the breach, apologised and notice according to the rules. said that she would not do it again. She claimed to have been motivated by concern for her children. Summary by Richard Tambling, barrister, 1 Garden Court M appealed against the 6 month sentence. Her two children aged 11 and 13 were joined in the committal proceedings A Local Authority v PB and P [2011] EWHC The Court of Appeal held that although this was the first 2675 (CoP) occasion on which the court had come to sentence a breach, the breach was serious enough to merit an immediate D was a 49 year old man with significant learning sentence of imprisonment. The appeal turned on whether difficulties and behavioural problems who had been this was a manifestly excessive sentence. In sentencing for declared to lack capacity to litigate. Proceedings before contempt in a domestic situation, the court should have Charles J in the Court of Protection raised issues as to where regard to the fact that emotions run high and cloud good he should live, as to contact, and as to whether he would be judgment. It was also appropriate to consider the impact deprived of his liberty. upon the children and the carers. The court below had not expressly dealt with M's admission and contrition as D had lived with his siblings and parents and, following the mitigating factors. In any sentence imposed there needed to death of his father, he remained living with his mother until be an element of punishment and an element of coercion to September 2008 when he was removed from her care ensure that the order would be obeyed in future. When following concerns about hygiene and safety, and an proper allowance was made for i) M's admission, ii) her incident of alcohol-related domestic violence between his emotional state and iii) the fact that this was the first mother and her partner. custodial sentence, 6 months was too long. The appeal was allowed and a sentence of a total of 3 months was During the period of his interim care, he was moved to a substituted. The court indicated that it was most unusual couple of residential placements and by the time of the for the children to be joined as parties to such an application hearing, D was reported to be making significant for committal, and did not think that the joinder had been improvements and appeared to be happy at his placement. necessary. However the judge's concern with how the He also appeared to enjoy his regular unrestricted contact children might react to the committal application was a with his mother at the placement. proper one. The judge considered the level of care that D, whose sight Summary by Martina van der Leij, Barrister, Field Court had deteriorated such that he was effectively blind, would Chambers need in future. He considered that D would require one to one support throughout the day, and that his mother, despite the previous concerns about her home and drinking G v M [2011] EWHC 2651 (Fam) no longer being considered live issues, could not provide such support without significant help, support which the The applicant claimed to have gone through a valid local authority would not provide. The mother had not ceremony of Islamic marriage with the respondent on 11 attempted to challenge that decision by judicial review, and January 2007 at the respondent's flat in London. The parties therefore the choice for the judge was between D remaining and all of those involved believed the ceremony and thus at his placement or returning to his mother's care. The judge the marriage would be recognised as valid under English considered, in accordance with the position of the Official law. No Certificate of Marriage was issued as a result of the Solicitor, that it was far more likely than not that D's mother ceremony.

www.familylawweek.co.uk Family Law Week December 2011 - 49 would not be able to provide D with the level of supported during the marriage, setting the wife's housing need at care that was necessary to promote his best interests. £1.1m (including expenses and furnishings) and her income need at £115,000 pa. On the facts of this case, particularly Though her official position was that she accepted that D given the wife's age and the length of the marriage, the could not return to live with her, D's mother's evidence gave Duxbury tables would not provide a sufficient capitalised the judge the impression that she did in fact want his return, figure; the court was not bound by the tables and the and that she saw the interim overnight contact and daytime "objective is fairness and not certainty". A capitalised award contact at her home that she sought as a step on the way to of £3.2m was a proper reflection of all the circumstances of this goal. The judge found that D's mother underestimated the case, giving the wife a total (including her own assets) of the potential disruption that would be caused to D by the £4.3m. introduction of unsupported overnight contact in the context of his present settled regime. He considered that the In relation to the source of the wealth, Moylan J considered better way forward was a 6-12 month trial of unsupported the recent authorities, including Robson v Robson [2011] daytime contact, with overnight contact not being ruled out, and K v L [2011]. His Lordship considered that the but with the mother being given an opportunity to show husband's approach was overly rigid, and that fairness that she could develop a greater understanding of the required a broader approach to the application of the concerns surrounding it, prior to it commencing. The judge sharing principle to non-matrimonial property. However, listed a two-day hearing for a review of the contact position on the facts of this case, the sharing principle did not justify in 8 months' time. any additional or enhanced award above the wife's needs. The length of the marriage, the wife's contributions and the The judge finally concluded, in relation to the question of standard of living were all relevant to need but did not whether there may be a deprivation of liberty if certain justify any additional award. events in the regime of care were to take place, that it was not necessary or appropriate for him (on the basis that a Summary by Stephen Jarmain, barrister, 1 Garden Court judgment was pending in the Court of Appeal in the case of Family Law Chambers Cheshire West and Cheshire Council v P & M) to address the issue in judgment, but that in so far as there was a deprivation of D's liberty under the present regime it was Jones v Kernott [2011] UKSC 53 authorised as in his best interests. Background to the appeal Summary by Gillon Cameron, Barrister, 14 Gray's Inn This case concerns the correct approach to calculating Square beneficial interests in property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how it is to be shared. AR v AR [2011] EWHC 2717 (Fam) Ms Jones and Mr Kernott met in 1981. They had two The parties had been married for 25 years at the date of children together. In 1985 they purchased a house in separation. The husband was aged 66 and the wife 54. They Thundersley, Essex in their joint names. The price paid was had one child of their marriage, now aged 18, although the £30,000 with a £6,000 deposit paid exclusively by the husband had three children from his first marriage. The proceeds of sale from Ms Jones's previous home. No total wealth of the parties was some £21m-£24m, the source declaration was made as to how the beneficial interest in the of which was almost entirely by gift or inheritance from the property was to be held. The mortgage and upkeep on the husband's father (who had owned a successful house was shared between them. In 1986 they jointly took manufacturing business), largely during the marriage. The out a loan of £2000 to build an extension. Mr Kernott did husband was a farmer by trade, earning £100,000 p.a. in some of the work himself. addition to investment income of £300,000. He put his needs at £140,000. The wife had no earning capacity and at final The relationship deteriorated and in 1993 Mr Kernott trial put her needs at £136,000 p.a. moved out. From that point onwards Ms Jones lived in the Thundersley property with both children. In 1996 Mr The wife argued that the sharing principle should apply, Kernott bought his own house in Benfleet, Essex. Over the particularly taking into account the length of the marriage years, the value of the Thundersley property increased and and the fact that the inheritances were used by the parties in 2006 Mr Kernott indicated that he wished to claim a during the marriage. Consequently, she sought £7m, or 30% beneficial share in it. In response, Ms Jones, in 2007, applied of the assets, going beyond her asserted needs of £1.5m for to the county court for a declaration under section 14 of the housing and £140,000 as income. Trusts of Land and Appointment of Trustees Act 1996 that she owned the entire beneficial interest in the property. By The husband argued that in light of the source of the assets 2008 the property was valued at £245,000. the sharing principle should not apply: non-matrimonial assets were only to be invaded where needs require it, or The county court judge noted that the house was first where one of the exceptions identified by Wilson LJ (as he purchased to set up a family home. It was bought in joint then was) in K v L applied. The husband asserted that the names and a presumption arose that they intended to jointly wife's needs should be determined by reference to her share the beneficial ownership of it as well. Up until 1993 housing need and a capitalised Duxbury fund, rendering a there was no evidence to rebut that presumption. Ms Jones total award of £2.3m. claimed however that in the 14 and a half years following there was evidence that their common intention had Moylan J found that the parties enjoyed a very good changed. Mr Kernott had ceased to make contributions standard of living and that each had contributed equally towards the running of the house and had made only very

www.familylawweek.co.uk Family Law Week December 2011 - 50 limited contributions towards the support of their children. The following principles apply: (i) the starting point where Furthermore it was mostly during that latter period that the a family home is bought in joint names is that they own the value of the property had increased. property as joint tenants in law and equity; (ii) that presumption can be displaced by evidence that their The judge held that their common intention had indeed common intention was, in fact, different, either when the changed. In reliance upon the decision of the House of property was purchased or later; (iii) common intention is Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, to be objectively deduced (inferred) from the conduct and he held that once the initial presumption of joint beneficial dealings between the parties; (iv) where it is clear that they ownership is displaced and there is no further clear had a different intention at the outset or had changed their evidence as to the division of shares in the property it falls original intention, but it is not possible to infer an actual upon the court to infer or impute an intention to the parties intention as to their respective shares, then the court is as to the division of the property that they, as reasonable entitled to impute an intention that each is entitled to the and fair people, would have intended. He decided that Mr share which the court considers fair having regard to the Kernott was entitled to only a 10% share. whole course of dealing between them in relation to the property; and (v) each case will turn on its own facts; Mr Kernott appealed to the High Court arguing that it was financial contributions are relevant but there are many other wrong for the court to infer or impute a change of common factors which may enable the court to decide what shares intention and further wrong for the judge, in effect, to were either intended or fair [51]. substitute a division that he considered to be fair as between the parties. Mr Nicholas Straus, QC sitting as a High Court On the facts of this case the county court judge held that the judge dismissed his appeal. Mr Kernott appealed to the parties' intentions as regards the Thundersley property had Court of Appeal which, by a majority (Jacob, LJ dissenting), changed after their separation. It was a "…logical inference allowed his appeal. that they intended [Mr Kernott's] interest in Badger Hall Avenue should crystallise" in 1995, when they took the Judgment house off the market, cashed in an insurance policy, so that The Supreme Court unanimously allows the appeal and Mr Kernott was able to buy a house in his own name [48]. restores the order of the county court. Lord Walker and The calculation of their shares on this basis produced a Lady Hale give the lead judgment. Lord Collins agrees with result so close to that produced by the judge that it would Lord Walker and Lady Hale and adds some reflections of be wrong for an appellate court to interfere. his own. Lord Kerr and Lord Wilson agree in the result but reach it by a different route. Lord Collins agrees with Lord Walker and Lady Hale, holding that the differences in reasoning set out below are Reasons for the judgment "largely terminological and conceptual and are likely to References in square brackets are to paragraphs in the make no difference in practice." [58]. judgment Lord Kerr holds that the divergence in reasoning might, in Lord Walker and Lady Hale: The principle recognised in practice, make a difference [67]. The question concerns how Stack v Dowden is that where people purchase a family far the court should go in seeking to infer intention and home in their joint names the presumption is that they when it is justified in imputing it. It is preferable to give intend to own the property jointly in equity also [15]. The effect to the parties' intentions where possible but the courts starting point is different in cases where the property is should not be reluctant to recognise when it is not and to bought in the name of one party only. impute an intention accordingly. In agreement with Lord Wilson it is not possible to infer the intention in this case but The presumption of joint beneficial ownership arises the division that the judge made is a fair one as between the because (i) purchasing property in joint names indicates an parties and should stand. "emotional and economic commitment to a joint enterprise" and (ii) the practical difficulty of analysing respective Lord Wilson considers that on the facts of this case, it is contributions to the property over long periods of impossible to infer the intentions of the parties and the court cohabitation [19-22]. can only impute to the parties an intention that the house be held in fair proportions along the lines of those set out by The presumption may be rebutted by evidence that it was the county court judge [89]. not, or ceased to be, the common intention of the parties to hold the property jointly. This may more readily be shown Supreme Court Press Summary where the parties did not share their financial resources [25]. In the absence of clear evidence of intention, a question arises as to when the court can infer such intention and A v B [2011] EWHC 2752 (Fam) when the court can, instead, impute an intention. An inference is drawn where an actual intention is objectively This was a private law dispute between the parents of a deduced from the dealings of the parties; an imputation is three-year old child, M. The parents had separated before one attributed to the parties by the court [26-27]. The search M's birth and the mother had gone to live in Sweden. There is primarily to ascertain the parties' actual intentions, had historically been some involvement with social services expressed or inferred but if it is clear that the beneficial in Sweden following which the father sought contact with interests are shared but impossible to infer a common M through the Swedish courts. An agreement was reached intention as to the proportions in which they are shared, the as to the father's contact but this contact did not take place court will have to impute an intention to them which they and the father subsequently made applications for joint may never have had [31]. custody and to enforce the order made reflecting the earlier agreement. These applications were refused and the

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Swedish court decided that the father should not have The President also declined to take jurisdiction by means of contact with M. However, a welfare report by the local interim measure under Article 20 and he rejected the authority in Sweden on the issues of contact and custody argument that BIIR did not apply. The father's applications remained outstanding and is now due to be completed by for contact and parental responsibility were fully within 15 December 2011. BIIR and article 19.2 applied.

In late September 2011 M and her mother came to England. Case summary by Sally Gore, Barrister, 14 Gray's Inn The mother's case was that she was here temporarily to stay Square with her own mother. Prior to this, in August 2011, the father had made an application to the High Court under Council Regulation (EC) no. 2201/2003 (known as Brussels II Revised or BIIR) for an order that the Swedish Central BJ v MJ (Financial Remedy OverseasTrusts) Authority provide information as to the mother's [2011] EWHC 2708 (Fam) whereabouts. On 29 September 2011, the father made a without notice application that M should be made a ward of The husband (H) and the wife (W) are both 65. They married court. The father also sought parental responsibility for M. in 1980 and have one child, C, who is 25. H was the main Bodey J acceded to the application to make M a ward of breadwinner and is now retired. W was principally mother court and further on notice hearings were directed. and housewife. The family's wealth derived predominantly This judgment concerns the question of jurisdiction. The from H's former interest in ABC Ltd (ABC). In 1994 an IPO mother sought a stay of the proceedings in this jurisdiction of ABC was proposed and riches were on the horizon. In under paragraph 19 of BIIR on the basis that the Swedish anticipation of the floatation H and his two fellow court was already seised of the matter and that the Swedish shareholders made arrangements to mitigate tax on future social services had conducted a thorough investigation and capital gains which may accrue. These involved creation of they were satisfied that M was not at risk in the mother's two Jersey trusts (No.1 and No.2) and a company care. She offered various undertakings designed to reassure incorporated in the British Virgin Islands – Giloch the court of her intention to return to Sweden. Investments Ltd, later renamed Giloch Ltd (Giloch).

On behalf of the father it was argued that his application for No.1 Trust was a discretionary trust for a class of parental responsibility fell outside the Family Law Act 1986 beneficiaries comprising H as settlor, W as his spouse, their and consequently BIIR did not govern the jurisdictional child C (then aged 8), H's siblings, any employee of ABC question. He relied on Re S (Parental Responsibility: and the Charities Aid Foundation. Jurisdiction) [1998] 2 FLR 921. He also submitted that the mother and M had lost their habitual residence in Sweden. In August 2000, by a deed made in exercise of the trustees' Having regard to the mother's conduct, he argued that the power of appointment, the whole of the capital of the No.1 correct forum was England and Wales. Trust was re-settled to provide income to H for life (with power to appoint capital to him) and thereafter to W, as his It was accepted on the father's behalf that a lacuna existed spouse, for her life (with power to appoint capital to her), as a result of the grafting on of BIIR to the Family Law Act and thereafter their child, siblings and siblings in law and 1986 which placed applications for parental responsibility the Charities Aid Foundation. outside of the Act but he argued that this was the result of a drafting error. This required applications for parental In a letter of wishes in 2006, H stated that the trustees should responsibility to be considered within the terms of the Act look to H as the principal beneficiary during his lifetime and and, in the first instance, under BIIR. Accordingly, if Re S then W during her lifetime and then after their deaths C no longer applied, it was open to him to argue that the lis should benefit from the remainder. pendens rule did not apply as the proceedings now brought by the father did not involve the same cause of action as The purpose of the No.2 Trust was fiscal, and formed the those in Sweden. In the alternative, he argued that if the key element of the capital gains tax mitigation Swedish court was appropriately seised it should be invited arrangements. H and W and C are specifically excluded to transfer the proceedings to this jurisdiction under Article persons from the class of beneficiaries. The beneficiaries are 15 of BIIR and that, in any event, this court could undertake grandchildren, remoter issue, the Charities Aid Foundation, an enquiry into the circumstances of M's welfare based on siblings and siblings in law and employees of ABC. Article 20, BIIR. On the evidence the judge concluded that while the primary The President found that the Re S case no longer applied as objective of the arrangements was to avoid CGT there was a it pre-dated BIIR by a number of years. He preferred the clear collateral understanding between H and W that the arguments of the mother, that the Swedish court was seised trust arrangement was established to benefit all members of and it was up to that court whether to transfer the case the family, including C, and for future generations. under Article 15. The Swedish court had lawfully taken jurisdiction following M's birth and had to date retained it Advice from a tax specialist concluded that the value in notwithstanding M's previously stated intention not to Giloch could be elevated in a tax-efficient way to the No.1 return to Sweden. It was a matter for that court to Trust and made available to H and W. determine whether or not it retains jurisdiction. The only basis upon which the English Court might take jurisdiction Mostyn J held that the No.1 Trust was unquestionably a would be under s.2(3)(b)(ii) of the Family Law Act 1986 and post-nuptial settlement. H, W and C are all excluded from the evidence in this case came nowhere near the terms of the benefit of the No.2 Trust but it is an integral component that section. of the overall scheme. Mostyn J found that the three entities

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"viewed as a whole" constituted a variable post-nuptial D (Children) [2011] EWCA Civ 1294 settlement. The two subject children (ages not recorded in the Court of The overall trust assets (ignoring internal loans) comprised Appeal's judgment) had lived with their father in France about £4.31m, of which about £1.87m, was within the since August 2009 when their mother voluntarily came to jurisdiction. There was no evidence as to whether any order live in England. Prior to August 2009 the children had dealing with the £2.44m held outside this jurisdiction would resided in France in their mother's primary care. The mother be enforced by the Jersey Court. The trustees made an offer wrongfully retained the two boys following Easter holiday to W which showed that funds could, and would, be made contact in the UK. The father swiftly applied for their return. available to both parties. The mother raised a number of objections, the most significant being that the elder child objected to a return to In relation to recent gifts made by H to C, W made a case for France and was of sufficient maturity for those views to be add-back. Of this, Mostyn J said it is a process of taken into account. A CAFCASS Officer interviewed the penalisation which should be applied very cautiously and elder child and was impressed by his maturity. only where dissipation is demonstrably wanton. He was not satisfied that the gifts to C were to be characterised in this At the final hearing the father's primary position was that way. the children should return to his care in France; failing that, the children should return but remain in the mother's care. H's financial advisor had written to W stating that in the The father did not want the children to be separated. The event of filing for a divorce, '[H] would do all in his power judge found that the elder child had sufficient maturity to to draw the proceedings out for the longest period of time'. express an opinion and objected to a return. She exercised Mostyn J indicated that it was distinctly possible that H's her discretion to refuse the return order. The father appealed. conduct would have adverse cost consequences for him. Thorpe and Black LLJ allowed the appeal. The judge had This case was decided by considering the distributive failed to address the father's secondary case (that the principles of needs and sharing; the compensation principle children should return but in their mother's care). She had was not applicable. been led into misunderstandings of fact which tainted her discretion. Black LJ expressed her 'utmost sympathy' with Mostyn J held that all assets, including all the trust property, the judge. The difficulties which arose stemmed from: first, constituted matrimonial property and should, in principle, the hurried nature of the CAFCASS report leading to factual be shared equally. But the implementation of that equal errors and a failure by the officer to balance the factors in sharing should reflect the clear arrangement made during favour of a return; secondly, the change(s)s during the the marriage, assented to by W, to set up a trust ultimately hearing in the mother's position on whether she would to benefit C and future generations. return with the children; thirdly, the mother's opposition to contact with the father which only became apparent after The judge ordered that assets outside the trust be divided the judgement. The 'principled outcome' was a return of the equally, so that W would receive exactly half of those net children in the care of their mother. assets. The parties must attempt to decide the allocation, and in default of agreement a later ruling would be made. Summary by Ayeesha Bhutta, Barrister, Field Court The assets and liability referable to the business be shared Chambers equally on a Wells basis. There should be a 50% pension share in W's favour. The settlements be varied to provide that W be irrevocably deleted as a beneficiary of the No.1 Cheshire West & Chester Council v P [2011] settlement; £500,000 be extracted from the settlements and paid outright to W offshore; £750,000 be extracted from the EWCA Civ 1257 settlements and settled on W for life with remainder to C; the trustees to be independent and to have power to P, a 39 year old man born with cerebral palsy and Down's advance all the capital to W; a charge to be imposed on the Syndrome has a history of cerebral vascular incidents and former matrimonial home at Green Farm in favour of the presents with significant physical and learning disabilities. trustees of the new settlement for 58.037% of the net He lacks the mental capacity to make decisions as to his care proceeds of sale of Green Farm. This will be enforceable on and residence. He lived with his mother from birth to 2009 the earliest of (i) H's death, (ii) sale of the property or (iii) a when the local authority concluded that his mother's health further order of this court. On implementation of all of the had deteriorated to the point where she was no longer able above there will be a clean break in life and death. The order to care for him. On 4 September 2009 the court declared on would not be perfected until the stance of the trustees has an interim basis that it was lawful and in P's best interests to been ascertained. If the trustees signified that they will not reside at a local authority establishment pending final co-operate with his award then Mostyn J stated that he hearing. P moved to live at Z house. On 4 April 2011, Baker would deal with W's entitlement by way of offsetting J declared, pursuant to section 16 of the Mental Capacity Act against the assets. This would, of course mean that Green 2005, that it was lawful and in P's best interests that he Farm would be sold, and that all or most of the pension continue to reside at Z house. would be awarded to W. The question of whether P's circumstances at Z house Summary by Alfred Procter, barrister, 1 Garden Court involve a deprivation of liberty within the meaning of Article 5 does not go to the issue of the legality of the deprivation of liberty, for the order makes lawful anything that might otherwise be unlawful as involving a breach of Article 5. It does go to whether P is entitled to the important

www.familylawweek.co.uk Family Law Week December 2011 - 53 procedural protections of Article 5(4), and in particular, to Moor J held that this was undoubtedly a case for equal the ongoing reviews of his detention mandated by Article 5. division of assets absent the French agreement. The issue was whether the marital contract took the case out of Baker J had arrived at the conclusion that P was deprived of 'sharing'. There was no dispute that the agreement was his liberty because of the steps required to deal with his entered into freely and with full understanding of its challenging behaviour, in particular since P could not go implications. No formal advice was given by the two notary anywhere or do anything without support and assistance, witnesses and there was no formal disclosure. This did not and his behaviour required a range of measures, including matter as W knew exactly what the agreement entailed and at times, physical restraint. each party new the financial position of the other.

Munby LJ analyses Article 5, and a number of decisions of W said that on a number of occasions H had promised her the Strasbourg and domestic courts. Munby LJ held (with that he would not enforce the agreement and she argued the agreement of Pill LJ and Lloyd LJ) that Baker J's that it would be unfair to enforce it now. H denied this. conclusions were not capable of tipping the balance to Moor J refused to decide whether or not it could be possible constitute a deprivation of liberty. Baker J's approach did to vary such an agreement orally such that it would be not accord with that of Lord Bingham of Cornhill in unfair to enforce it. He recognised that Edgar v Edgar [1980] Secretary of State for the Home Department v E and considerations would be relevant to the test set out in another, and Lord Hope of Craighead in Austin and another Radmacher which is fairness. Moor J said that it was clear v Commissioner of Police of the Metropolis. The facts were that the burden on someone raising the argument that the far removed from cases such as HL v United Kingdom, DE agreement had subsequently been varied, whether orally or v JE and Surrey County Council, and London Borough of in writing, would be a heavy one. There would have to be Hillingdon v Neary. At Z house and outside it, P is living a the clearest possible evidence of such an oral agreement life which is as normal as it can be for someone in that before a court could even contemplate this as a reason not to situation. enforce an agreement. On the evidence, it was held that the agreement had not been altered and it followed that both Appeal allowed and a declaration substituted in parties knew that the agreement was still operative. appropriate terms to the effect that P's care plan at Z house did not involve a deprivation of liberty. The terms of the letter H wrote before leaving were far more generous than could ever have been obtained from a court, Summary by Alfred Procter, barrister, 1 Garden Court given that, if taken at face value, the letter provided that H should pay the W one-half of all his net earnings past and future without time limit (other than any redundancy Z v Z (No2) [2011] EWHC 2878 (Fam) payment) as well as maintenance of up to €200,000 p.a. The Edgar guidelines were held to be relevant here: there was no Both parties are French. W was aged 50 and H aged 53. legal advice; and H was under significant pressure. It was Theirs was a 14-year marriage with a period of 4 year held that the letter did not constitute a good reason for cohabitation (subject to one six month period of departing from the terms of the agreement. cohabitation). They had 3 children aged 14, 12 and 9. In June 1994 they entered into a marriage contract in accordance Moor J upheld the agreement but stated that it might have with French law. In July 1994 they married and lived in been very different if the agreement had also purported to Paris and moved to live in England in August 2007. In exclude maintenance claims in the widest sense, but the February 2008 they commenced a 3 month trial separation. agreement did not do so. W was awarded 40% of the assets Before leaving, H signed a letter to W. In July 2008 H told which was held to be a suitable departure from equality to the children that the parties had separated which marked reflect the agreement. the end of the marriage. In July 2008 W issued a petition in England. In a contested jurisdiction dispute, reported as Z v Summary by Alfred Procter, barrister, 1 Garden Court Z [2010], Ryder J held that the parties were both habitually resident in this jurisdiction on the date on which the Wife presented her petition. Re T v T (Occupation Orders, Brussels I and Protective Measures) [2010] EWHC 3776 There were assets of £15,088,419. W's open position was that (Fam) everything should be shared equally. W argued that it would be unjust to hold the parties to the French agreement. The Respondent husband was Lebanese and also a French Simply dealing with the capital position in this summary, W national, while the Applicant wife was an English national. sought £7.5 million and a further £250,000 as compensation They had been married for some 21 years before separating for loss of the Husband's French State Pension. in 2006, and had resided mainly in Paris. Divorce proceedings had taken place in France, but as a result of the H's open position was to argue that the French agreement wife's appeal against the French divorce order they excluded sharing of assets and, following the Supreme remained married at the time of the hearing. The French Court in Radmacher v Granatino, [2010], it was fair to hold the proceedings were ongoing. Additionally, there was a Wife to the Agreement. He argued that the Wife's case property in London; although it was common ground that should be dealt with on the basis of a pre-White v White the property was owned by a series of foreign companies, [2001] needs assessment. He quantified W's needs at £5.28 there was a dispute as to whether (a) it had ever been a million (approximately 35% of the assets) on a clean break "matrimonial home", (b) whether the husband was the basis. ultimate owner and (c) whether the husband had a right to occupy the property.

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The instant hearing concerned the husband's application for end of the judgment, the judge invited counsel to raise any the High court to stay its proceedings in light of the ongoing particular point which they thought he had got wrong. French proceedings. The Husband argued that in essence Representatives for the all parties apart from the mother the wife's application sought maintenance, and as such the raised issues. lis pendens provisions of Article 27 of Brussels I applied and Article 31 was not applicable; in the alternative, that the The mother appealed, her central complaint being that the proceedings were "related" under Article 28; and further, judgment was deficient in reasoning and analysis in so far her application could not be defined as a provisional, as it made a finding that she was directly involved in the protective measure under Article 31. In the alternative the sexual abuse of the children. The appeal was opposed by the husband sought to rely on Brussels IIR to obtain a stay. The local authority and father, with the guardian neutral. wife argued that an application for an occupation order is not an application for maintenance nor a related Munby LJ, giving the judgment of the Court of Appeal, proceeding, but rather an order preserving matrimonial noted that the practice to be adopted where there is concern home rights, and therefore Brussels I did not apply. about the adequacy of a judge's reasoning was set out in Furthermore Article 31 applied, and Brussels IIR was not English v Emery Reimbold, and Re T (Contact: Alienation: relevant. Permission to Appeal) and emphasised that it is the responsibility of the advocate, whether or not invited to do Moylan J considered in detail the facts surrounding so by the judge, to raise with the judge and draw attention ownership and occupation of the property before going on to any material omission in the judgment, any genuine to consider authorities concerning the definition of query or ambiguity which arises, and any perceived lack of "maintenance" under Brussels I, including Moore v. Moore reasons. [2007] and Van den Boogard v. Laumen [1997]; the approach of the courts to Article 28, including the decision of the He further noted that whether or not the advocates have Court of Appeal in Prazic v. Prazic [2006]; and the relevance raised the point with the judge, where permission is sought of Article 31, including Wermuth v. Wermuth [2003]. His from the trial judge to appeal on the ground of lack of Lordship was clear that the wife's application did not fall reasons, the judge should consider whether his judgment is within Brussels IIR, which deals (in relation to divorce defective for lack of reasons, and if he concludes that it is, he matters) only with the dissolution of matrimonial ties. In should set out to remedy the defect by the provision of relation to the arguments under Brussels I, Moylan J adequate reasons. reached the preliminary view that in fact Brussels I would not apply at all to the wife's application, as an occupation If neither of the above has been done, the court can either order was probably concerned with "rights in property proceed to deal with the appeal on the basis of the judgment arising out of a matrimonial relationship" and therefore was as it was, or remit the case to the trial judge for additional outside the scope of Brussels I; however, given that this reasons or clarification to be provided, usually with an issue was not fully argued, his Lordship did not rely on this indication of the distinct areas where clarification is reasoning in reaching his conclusion. Nevertheless, Moylan required. J found for the wife. She was right to assert that the causes of action in France and England were different: an It was also noted, however, that, given that a split hearing is application for an occupation order is not an application for merely part of the whole process of trying a case and not a maintenance, which is more concerned with "financial separate exercise, it is also open to a judge to revisit findings awards… which have the purpose of enabling one party to later in the case in the light of subsequent developments. provide for his or her needs". Furthermore, Article 28 did not apply as it was not at this stage clear whether the French In this case, it was ultimately considered appropriate by all court had an equivalent power to that of the English court parties to adjourn the appeal in order that HHJ Compston under the Family Law Act 1996; it had not therefore been could be invited to provide further reasons and clarification established that there was a risk of irreconcilable judgments. on a number of defined issues. In any event, occupation orders fall within the definition of "provisional, including protective measures" and therefore Summary by Gillon Cameron, barrister, 14 Gray's Inn the court had jurisdiction under Article 31. Accordingly, the Square husband's application for a stay was rejected, as was his subsequent application for permission to appeal. R (SA) v Kent County Council [2011] EWCA Summary by Stephen Jarmain, barrister, 1 Garden Court Civ 1303 Family Law Chambers This case concerned the financial provision required to be made by the appellant local authority to the grandmother of A and L (Children) [2011] EWCA Civ 1205 a child, A. A had gone to live with her grandmother due to the local authority's concerns about the parenting she was At a fact-finding hearing in the course of care proceedings receiving from her mother. The local authority contended relating to a 9 year old girl and her 5 year old brother, HHJ that this came about as a result of a private arrangement Compston found that both children had been sexually between the grandmother and A's mother, was therefore a abused by one or more of three adults, who were friends of private fostering arrangement, or it was a placement under the children's mother. The judge also found that the mother s.23(6), Children Act, and A was not a looked after child. had gone along with the abuse and cooperated with it. The Therefore, the local authority needed to make only hearing had lasted eight days, after which the judge invited discretionary payments to the grandmother under s.17, written submissions. These were elaborated upon during Children Act and there was no duty to pay a fostering oral submissions, after which judgment was given. At the allowance to the grandmother.

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LB of Tower Hamlets v BB [2011] EWHC Black J at first instance had found that all discussions about 2853 (Fam) A going to live with her grandmother were initiated by the local authority. She accepted the grandmother's assertion BB, an English resident, had been married in 2000 in that the arrangement for A to live with her arose from Bangladesh to MA, a Bangladeshi resident, whilst on discussions with the social worker and not from discussions holiday. MA came to London in 2001 and lived with BB with A's mother. The local authority's ongoing involvement until 2004. In 2007 MA filed for divorce on the basis of BB's in the placement was consistent with it being a placement in unreasonable behaviour. which the local authority had taken the lead. Crucially, the local authority had never indicated to the grandmother that Due to her various difficulties, BB had been known to the it would expect her to make financial provision for A local authority since she was 4 months old. She had a history without help from themselves. of making allegations, primarily towards her family, none of which had been substantiated. In 2010 an allegation was Black J had therefore held that the presence of the made by a support worker that BB had been assaulted by grandmother did not mean that the local authority could her mother in the family home, where BB was living. As a side-step its duty to accommodate A under s.20(1), Children result BB left the family home and was eventually placed in Act 1989, a duty owed to A because her parents were unable a specialist psychiatric ward for the hearing impaired. to care for her. Following closely the reasoning of the Court Authorisation was given to deprive BB of her liberty, but of Appeal in Southwark LBC v D [2007] EWCA Civ. 182, the that authorization subsequently lapsed due to disagreement duty was discharged by a placement under what was then between assessors as to BB's eligibility for detention and s.23(2), Children Act (rather than s.23(6)) and A was confusion as to which health service body was responsible therefore a 'looked after' child and the full fostering for BB. The matter therefore came before the court and in allowance should have been paid to her grandmother. July 2010 declarations were made that BB's placement at the specialist psychiatric ward was a deprivation of BB's liberty The Court of Appeal concurred with the view of Black J. She and that her interests would best be served by a move to a had been entitled to find that the local authority placed A specialist residential placement in Birmingham, known as with her grandmother pursuant to s.23(2) and A therefore Polestar, where she could have supervised contact with her remained a looked after child. The appeal was consequently parents. dismissed. At the instant hearing, there were two sets of proceedings before the court. The first was brought by the Official However, the Court of Appeal then went on to consider the Solicitor, who sought on behalf of BB a declaration (inter structure and wording of the old section 23, and the earlier alia) that it was in her best interests that the marriage to MA authorities dealing with the interpretation of that section, was either annulled or declared unrecognized in England particularly In re H (A Child) (Care order: Appropriate and Wales. In the second, the local authority sought (inter Local Authority) [2003] EWCA Civ 1629. In this case, the alia) declarations that BB lacked capacity to make decisions Court of Appeal had decided that s.23(6), Children Act about where she should live, her care and medication and places local authorities under a duty to enable a looked after with whom she should have contact. child to live with a person to whom he is related or otherwise closely connected. Once this is achieved, the In relation to BB's marriage, it was agreed by all the parties looked after child ceases to be provided with and by MA that the marriage should be annulled. Directions accommodation by the local authority and therefore ceases were therefore made to allow for MA's petition to proceed to be a looked after child. on the basis of annulment and for BB to issue an application for annulment. Ryder J also made a forced marriage The unanimous view of the Court of Appeal was that this protection order in favour of BB. was probably an incorrect interpretation. They preferred an interpretation, also suggested by Black J at first instance, Regarding the fact-finding issues, the court took the view that s.23(1) sets out the duty to provide accommodation to that although it was strictly unnecessary for the purposes of looked after children, s.23(2) sets out the ways in which the the hearing to determine the factual basis of the 2010 provision of accommodation might be achieved, and s.23(6) allegation, given the impact on the family and the simply imposes a duty to try to place the child with a consequences of the allegation the court should reach a relative or friend. Therefore, there are not two alternative conclusion as to the facts. Having considered the evidence, routes by which a child can be placed with a relative and Ryder J found that there was insufficient evidence to there is no distinction to be drawn between children placed support a finding that BB had been assaulted by her mother. under s.23(2) and children placed under s.23(6). On the welfare question, Ryder J was presented with three However, having considered the submissions made on options for BB: to remain in her current placement at behalf of the Secretary of State in particular as to whether Polestar; to return to the family home in London; or to move this Court was entitled to depart from the decision in Re H, to an alternative placement. His Lordship carefully the Court of Appeal found that it was not so entitled. considered and analysed the evidence from various sources, using the "balance sheet approach", and reached the view Summary by Sally Gore, Barrister, 14 Gray's Inn Square that there was currently insufficient evidence available to allow the court to reach a final conclusion on this question. A review would be necessary in six months, before which considerable further assessment should be undertaken. This should include a broad assessment of BB's needs and a comparison of those needs with available local services, with the options presented to the court as a benefits and

www.familylawweek.co.uk Family Law Week December 2011 - 56 detriments analysis. In the interim, and giving due carried out a full and proper evaluation of the background consideration to BB's right to a family life, it would be both and of the oral evidence. in BB's best interests and a necessary and proportionate interference with her liberty for her to remain at Polestar, Summary by Sally Gore, Barrister, 14 Gray's Inn Square most critically because of the positive developments she had made as a consequence of the expert assistance available there and currently unavailable to BB at the family home in A London Borough v O and Others [2011] London. EWHC 2754 (Fam) Summary by Stephen Jarmain, barrister, 1 Garden Court The sibling aged 9 months was the twin of a child that had Family Law Chambers died when only two weeks old in February 2011. Peter Jackson J heard the fact-finding hearing as to whether it was the mother, father or the five-year old who had caused the W (A Child) [2011] EWCA Civ 1362 death. The fact-finding hearing was heard over 13 days. The court heard evidence from inter alia, the ambulance This was an appeal by a mother against the decision of HHJ crew, doctors, the police, the parents and expert witnesses. Karsten QC to approve a care plan that her child, B, be adopted by family friends when the case on behalf of B's The child had died as a result of severe head injuries natural parents had been that a special guardianship order sustained at his home on an evening in February 2011. The would be the more appropriate legal framework in the mother returned home from shopping to find the twins circumstances. lying on the floor. One of the twins was gravely injured. The three children had been left in the care of the father. There was no dispute between the parties as to where the Neither parent accepted that they had caused the very child's permanent placement should be; all agreed that he serious injuries and they sought to blame the five-year old should remain with the family friends who by the time the child. case was heard by HHJ Karsten had cared for him for a number of years. While the judge had some concerns about some aspects of the mother's evidence he found that the father had caused The local authority and the family friends, Mr and Mrs N, the injuries and not the five-year old. wished the court to make a placement order so that B could be adopted by Mr and Mrs N. The child's guardian and the The conclusion of the police inquiry was that the mother child and adolescent psychiatrist instructed in the case, Dr could be excluded as the perpetrator but that neither the Holmes, had eventually come to support the mother's case father nor the five-year old could be excluded. However, that the placement should continue under a special the police further concluded that in the context of a criminal guardianship order and that adoption would not be an investigation there was insufficient evidence to prove it was appropriate outcome. one or the other.

The appeal focused on the mother's submission that the Of particular note, is the Coroner's inquest that took place judge had failed to give cogent reasons for his rejection of on 3/8/11 where neither party was represented and only the recommendations of the expert in the case and the limited evidence was taken from one of the experts (who child's guardian, and alternatively that he had made factual subsequently gave evidence in the care proceedings) and errors in explaining his judgment such that it was from one of the police officers. The Coroner recorded a fundamentally flawed. verdict of accidental death of the twin caused by the five- These arguments were unanimously rejected by the Court year old. The local authority had written to the Coroner of Appeal. The judge found that Dr Holmes had been informing him that a hearing was due to commence in the mistaken in his belief that, having heard the evidence of the High Court on 24/10/11 but no reply was received. prospective adopters, Mr and Mrs N would not promote contact without an order; he likewise rejected the criticism Peter Jackson J highlighted that the five-year old's position that HHJ Karsten had conflated the question of contact with was not represented at the inquest and that therefore the the question of the type of order to be made. HHJ Karsten process by which he was named in the verdict seemed took a different view of the evidence of Mr and Mrs N from unfair. The judge also highlighted the different functions of that taken by Dr Holmes. He had therefore given sufficient the Coroner and the family court. He further commented reasons for rejecting the view of Dr Holmes. that he hoped that in the circumstances that the Coroner's verdict could be rectified. The judge directed copies of the The Court of Appeal likewise rejected the criticism of the judgment to be sent to HM Coroner. judge for failing to follow the recommendations of the guardian. He had repeatedly tried to elicit from the Summary by Richard Tambling, barrister, 1 Garden Court guardian the reasons for her change of position, and in particular what it was in the evidence of Mr and Mrs N that had led her to alter her own views. He found that she had failed repeatedly to explain this adequately.

The judge had therefore acted properly and given a fully reasoned judgment as to whether, in his discretionary judgment, he reached conclusions that were different from those of the guardian and the child psychiatrist. He had

www.familylawweek.co.uk Family Law Week December 2011 - 57

R (AS) v London Borough of Croydon [2011] by the Supreme Court in A v LB Croydon [2009] 1 WLR EWHC 2091 (Admin) 2557, which decided that an age assessment was a decision of objective fact which, in disputed cases, could only be determined by the court on evidence and on the balance of AS, a minor, had claimed asylum in the UK having fled probabilities, ii) the relevant minimum standards required Afghanistan where his father and uncle had been of age assessment processes ("Merton compliant"), and iii) kidnapped. Having been placed in foster care, he was the correct process for the challenge to an age assessment referred to the LB Croydon for age assessment. Whereas the which would normally involve both the claimant and the assessment concluded he was then 15, AS stated that he was LA social worker giving evidence, if required by the judge. two years younger and challenged the assessment and two further reviews of it. By the official solicitor, AS now sought In this case, the court had been presented with a proposed judicial review in the High Court of the LB Croydon's settlement by the parties, accepting that the assessment decision, seeking to quash the assessment, and seeking a should be quashed and a declaration that AS was a year declaration as to his birth, and as to whether such older than assessed, a settlement that required court declaration was an order in rem and therefore conclusive of approval under CPR 21.10. The judge accepted that he his age such that it was binding unless set aside. should do this, and further considered that the LA assessments had not been Merton compliant. The judge quoted from a policy statement from the Royal College of Paediatrics and Child Health that "age The judge then proceeded to consider whether the determination was an inexact science" and that the most declaration was an order in rem. He considered the relevant appropriate approach is "to use a holistic evaluation, case law, including the decision of PM v Hertfordshire incorporating narrative accounts, physical assessment of County Council, and concluded that the declaration, being puberty and growth, and cognitive and behavioural and one as to the claimant's date of birth and status as a child, emotional assessments" undertaken by social workers with was a declaration in rem. relevant training. Summary by Gillon Cameron, barrister, 14 Gray's Inn The judge also noted, amongst other matters: i) the means Square by which an age assessment could be challenged, as set out

www.familylawweek.co.uk Family Law Week December 2011 - 58

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