Family Law Week March 2015 - 1 March 2015 News 1 Articles Finance & Divorce Update February 2015 21 “Nowadays not all law can be simple law; but the best 26 law remains simple law” Schedule 1 to The Children Act 1989: Not Just for 29 NEWS Wags The Rise and Rise of Damages in Human Rights 32 French court prohibits parents naming Claims Something must be done – will a partial return to 38 child ‘Nutella’ Calderbank fit the Bill (or at least reduce it)? Mitochondrial Donation 42 A French family court has prohibited a couple from naming International Children Law Update: February 2015 45 their daughter Nutella after the hazelnut spread with cocoa. Surrogacy Law Update (February 2015) 51 The couple, from Valenciennes in northern France, had A Theory of Everything – Special Contributions in 55 sought to register the name following the baby's birth in Matrimonial Finance September 2014. The matter was referred to a family court Cases judge. Re M (Republic of Ireland) (Child's Objections) 59 The court ruled that "the first name Nutella, given to the (Joinder of Children as Parties to Appeal) [2015] child, is that of the commercial brand of a spread" and would EWCA Civ 26 cause "mockery or disobliging remarks". The girl has now In the matter of Capita Translation and Interpreting 60 been named Ella. Limited [2015] EWFC 5 Re S-W (children) [2015] EWCA Civ 27 62 Resolution concerned that Financial Arif v Anwar [2015] EWHC 124 (Fam) 63 Lancashire County Council v T & Others (Habitual 64 Remedies Working Group report Residence: Care Proceedings) [2014] EWHC 3321 focuses on high net worth cases NG v Sec of State for Works & Pensions and Another 65 (CSM) [2015] UKUT 20 AAC Resolution has welcomed the majority of the Re MM (A Child: Relocation) [2014] EWFC B176 recommendations in the final report of the Financial SC v YD [2014] EWHC 2446 (Fam) 67 Remedies Working Group (FRWG), but remains concerned that the report and its recommendations focus largely on the Northamptonshire County Council v AS and Others 68 needs of high net worth families, rather than the average [2015] EWHC 199 U-B (A Child) [2015] EWCA Civ 60 family court user. X & Another v Z & Another [2015] EWCA Civ 34 69 The report, which can be downloaded here, is divided into BD v FD [2014] EWHC 4443 (Fam) 71 four chapters: IS (A Minor) v DBS & Another [2015] EWHC 219 72 Ÿ Chapter I - Procedure Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam) 73 Ÿ Chapter II - Litigants in Person ZA v AS [2014] EWHC 2630 (Fam) 75 Ÿ Chapter III - Standard Orders in Financial Remedy Proceedings Re SSM (A Child )[2015] EWHC 327 (Fam) 76 Ÿ Chapter IV - Arbitration in Family Proceedings. Graham-York v York [2015] EWCA Civ 72 77 AB v TB (Temporary Removal to Jordan) [2014] EWHC 79 Jo Edwards, chair of Resolution, commented: 4663 (Fam) Re A (A Child) [2015] EWFC 9 80 "We welcome any move to make the family court more user-friendly, quicker to pass through and less expensive The Prospective Adopters v FB and Others [2015] 81 for court users, so we're pleased that the FRWG has taken EWHC 297 (Fam) on board some of our recommendations about Lindner v Rawlins [2015] EWCA Civ 61 83 appropriate streamlining. However, we still fear that the Dickson v Rennie [2014] EWHC 4306 (Fam) report's recommendations are most useful for cases G (A Child) [2015] EWCA Civ 119 85 involving wealthy litigants in contested proceedings. With more litigants in person coming before the courts JL v SL (No 1) [2014] EWHC 3658 (Fam) 86 JL v SL (No 2) [2014] EWHC 360 (Fam) 87 GENERAL EDITOR Family Law Week is published by A (Children) [2015] EWCA Civ 133 88 Re H (Children) [2015] EWCA Civ 115 Stephen Wildblood QC Law Week Limited Z-O'C (Children) [2014] EWCA Civ 1808 89 Greengate House Deputy Editor 87 Pickwick Road Claire Wills-Goldingham QC Re L (A Child) [2015] EWFC 15 90 Corsham Albion Chambers SN13 9BY Re A and B [2015] EWFC B16 91

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than ever before, we would have liked to have seen the The report covers the findings from two quantitative data Working Group to delve more deeply into the issues collection exercises: facing the average court user. Ÿ A survey of mediation practitioners with a Legal Aid "In our consultation response we raised the need for the Agency (LAA) contract to collect data on MIAM and judiciary and others in a position to help litigants mediation workloads for privately funded clients in the navigating the family courts alone to help these litigants snapshot months of November 2013 and March 2014 understand the value of good, independent legal advice This was supplemented by an in-depth survey which and the role it plays in resolving disputes and settling collected detailed case characteristics from a small cases. I feel that the report of the Working Group does number of clients. not fully address this issue, which will continue to grow, placing more strain on the overburdened court system. Ÿ A court file review of 300 cases (150 private law children We do feel that the Working Group's reticence to and 150 contested finance cases) started in five court reintroduce the "Calderbank" without prejudice offer is locations between April 2012 and September 2013 to a missed opportunity to encourage incentives to settle. examine the proportion of applicants, including those We welcome the opportunity to discuss these issues publicly and privately funded, using MIAMs and further with the Working Group and other family justice mediation before applying to court. This was stakeholders." supplemented by short interviews with ten court staff.

The Financial Remedies Working Group report is here. The report's conclusions include: Read Resolution's response to the consultation here. Ÿ Clients prefer separate MIAMs meetings, with 78% of all privately funded MIAMs being conducted separately. FGM in UK a bigger problem than Ÿ Privately funded mediation caseloads are weighted more towards property and finance and all-issues cases, realised compared to publicly funded mediation cases. Ÿ Referrals to MIAMs and mediations were mainly As the first prosecution for carrying out female genital through solicitors or self-referral, with self-referrals mutilation continues, returns from acute hospital providers slightly more common. An earlier report discussed how in England show that more than 500 new cases of FGM were mediators interviewed felt routes into mediation had reported in December 2014. changed post-LASPO and indicated that they had observed a substantial fall in the number of solicitor In the last three months of 2014 1946 newly identified cases referrals. of FGM reported nationally. Of these 47 concerned girls under the age of 18. In December there were 2,146 active Ÿ The indicated conversion rate of MIAMs to mediation is cases and 558 newly identified cases of FGM were reported around 66–76%. The survey suggests that this nationally. conversion rate is affected by certain characteristics of the clients involved, such as conversion being less likely John Cameron, head of the NSPCC helpline, was reported when couples attend MIAMs separately compared to as saying: together, and among younger rather than older clients.

"These new figures indicate that female genital Ÿ Responses indicated that where proceedings were mutilation is a bigger problem in the UK than we started, applicants appeared to have attended MIAMs thought and there are obviously children at risk of being and/or to have attempted mediation beforehand, in a subjected to this cruel and unnecessary practice right minority of cases. now." Ÿ There was also a substantial minority of cases in which Dr Dhanuson Dharmasena, a junior registrar at Whittington either the applicant had not attended a MIAM, or it was Hospital in London, being tried for carrying out FGM, and unclear whether they had done so, and the non- Hasad Mohamed for aiding and abetting the doctor. attendance was not explained.

For the official statistics concenring active and newly Ÿ There is a need for marketing and provision of MIAMs identified cases of FGM, see here. For a report on the trial, and mediation to cater at least in part for different see here. groups of potential litigants in children and finance cases. For example to younger (under 35), unmarried as well as married couples in children cases, and to Fall in solicitor referrals to MIAMs and somewhat older (over 35), divorcing couples in finance cases (though there may be overlaps between the two mediation confirmed by MoJ study types of cases).

National Family Mediation, the largest of provider of Ÿ There is a need for MIAMs and mediation to be family mediation in England and Wales, says that a new promoted as options some time after separation to deal Ministry of Justice report outlining the findings of a family with disputes over existing arrangements for children, mediation research programme, "doesn't tell us a huge as well as at the point of separation when new amount we didn't already know." arrangements may need to be made.

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Ÿ Prospective respondents as well as prospective minutes to reach its verdict. For The Guardian's coverage of applicants need to be willing to engage and explore the news story, click here. whether the process may be suitable for their cases. Alison Saunders said: Ÿ The frequency with which underlying issues of domestic violence and other safeguarding concerns were evident "It was right that we put this case before the court and in cases in the court file review appears to have on three separate occasions, once before trial and twice implications for MIAMs and mediation in children cases during the trial, the judge dismissed applications by the in particular. defence to stop the case, thereby agreeing that the evidence should be considered by a jury. Ÿ Of the 128 children cases in which such issues were indicated, a minority involved applicants either "The CPS does not choose which cases it is asked to attending MIAMs (16%) or formally claiming consider for prosecution and we must apply the same exemptions (20%). test to every case. We do not shy away from difficult cases, and where there is sufficient evidence and it is in National Family Mediation's Chief Executive Jane Robey the public interest we will prosecute. The evidence in said: this case meant a prosecution should be brought so that a jury could be allowed to consider the facts. We respect "The finding that self-referrals to MIAMs and the decision of the jury. mediations have become more common than referrals through solicitors confirms our own previously- "This will, of course, not affect our resolve to bring those published research. As we have previously stated, the who do commit FGM to justice where we have the source of referrals to family mediation have flipped on evidence to do so. Female Genital Mutilation is an their head since the legal aid cuts, and we now have invidious crime, and one which we remain determined more people coming to us of their own accord than those to prosecute. Today's verdict will not stop the important referred by a lawyer. work that we and the police are doing in encouraging victims to come forward and looking at new ways to "Interestingly the report refers to the need for help bring cases to court." respondents as well as applicants to be willing to engage with mediation. Whilst we frequently offer guidance to This was the first prosecution of FGM in the United applicants whose ex is initially unwilling to take part in Kingdom. There are three further cases currently with CPS mediation – and have published some online for consideration. The Service is aware of four other cases information – the government will need to continue to under investigation but not yet passed to the CPS for consider measures that would make it compulsory for consideration. In another 11 cases the CPS have decided the respondent to take part in mediation." there should be no prosecution and in one case the police have decided there could be no further action. The MOJ study is here. Care cases shorter where family court Say 'No' to FGM videos broadcast on advisers involved YouTube Hearings for children facing care proceedings would be Three videos have been broadcast on YouTube as part of a shortened if detailed assessments were made before the campaign to eliminate FGM in the UK. The videos have cases went to court, according to new research from been produced by SafeHands for Mothers. Each of the Northumbria University. videos is just 2 minutes in length. Although the Children and Families Act 2014 stipulates that A video bringing together professionals and faith healers is the majority of care cases should be completed within 26 here. weeks, delays often occur due to requests for assessments being made after the court proceedings have begun. This A video featuring young women is here. has led to some cases lasting from 53 to 88 weeks, placing significant stress on both the children and families involved, Finally a video featuring young men is here. as well as strain on their relationship with social workers.

Working with Liverpool City Council's Children's Services Director of Public Prosecutions team and the Children and Family Court Advisory and Support Service (Cafcass), researchers assessed the impact defends failed FGM prosecution that Family Court Advisers have on the duration of court cases for care and adoption proceedings. Alison Saunders, the Director of Public Prosecutions, has defended the decision of the Crown Prosecution Service to When Family Court Advisers worked with children and the prosecute Dr Dhanuson Dharmasena for submitting a local authority before proceedings began, the researchers mother to female genital mutilation and Hasan Mohamed found that court cases were shortened by almost three for aiding and abetting the doctor. The two accused were weeks in duration, reducing unnecessary delays for acquitted on the 4th February by a jury which took only 30 children in need of care.

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Dr Kim Holt, Head of the Department of Social Work and Non-party costs order made against Communities at Northumbria University, was approached to lead a review in Liverpool, following concerns from the Capita Designated Family Judge, HHJ De Haas QC, regarding delays for children in court cases. The President has ordered Capita Translation and Interpreting Limited to pay the costs of the local authority, Working with colleagues from Bradford and Manchester Kent County Council, in public law proceedings in respect Universities, Dr Holt analysed 26 cases in which children of two children of Slovak Roma origin, in which Capita who had experienced long-term neglect were facing court failed to provide an interpreter. The judgment is here. proceedings on their future care. To take part in the proceedings, the parents required the All cases had previous social services involvement for assistance of Slovak interpreters. By the time the application parental issues including alcohol and drug misuse, for costs was made, there had been six previous occasions domestic violence, crime, mental health and learning upon which Capita had failed to provide interpreters (either difficulties. Most of the children involved had been or were at all, or on time, or able to interpret the Slovak language). currently subject to child protection plans and some of their siblings had previously been removed from the family. On the seventh occasion (7 May 2014) by which time the case had been transferred to the High court and at which the Eleven of the 26 cases had the support of a Family Court issue was parental opposition to the making of adoption Adviser before the case went to court. The researchers orders, no interpreters attended, despite clear directions found that when the Adviser was involved the case lasted having previously been given. Accordingly, the President an average of 23.5 weeks. For those in the comparator group adjourned the hearing and directed Capita to provide a who did not have the service of an Adviser, the average statement explaining the circumstances of the default. timescale was 26.1 weeks. At the reconvened hearing (which did proceed) the local Dr Holt explained: authority (and, at that stage, those acting for the children) sought costs orders against Capita for the abortive hearing. "It is essential that the focus remains on the child in cases The President had, by then, received written submissions relating to their future care, rather than the competing from those seeking costs and a statement from Capita's agendas of the adults involved who are already Relationship Director. He gave further directions to enable individually represented. The Family Court Adviser Capita to consider the case against it and the application ensures that the child has an independent voice within was subsequently heard on 14 November 2014. child protection practice at the pre-proceedings stage. The factual background, including the circumstances of the "We have found a direct link to the early involvement of previous ineffective hearings, was not in dispute. Setting Advisers to shorter care proceedings in some of the cases these out in detail, the President noted the repeated failure reviewed. This means that the timeline for the resolution to provide interpreters and that, in respect of the 7 May of care proceedings for children who are awaiting hearing, the notification that no interpreters would be decisions about permanency would be significantly available was provided only the day before by way of a reduced if there is a robust mechanism for the "banal and formulaic" email apologising for "any completion of detailed assessments of the child and their inconvenience caused"; that this apparently complied with family prior to a case proceeding to court." an agreed protocol did not affect the President's view of Capita's liability. Dr Holt added: The explanations provided by Capita (both in its initial and "Social workers in Liverpool have confirmed that subsequent statements) for the "lamentable" situation, were increased time spent with families within the pre- that the interpreters (who were self employed) were not its proceedings stage meant they felt more confident when employees and that it could not compel them to take up an presenting evidence in court. They also reported that the assignment nor to honour one once accepted. Moreover, it Advisers were pivotal in cases where there was a high transpired that there were only 29 Slovak interpreters on level of risk. Capita's books nationwide. In the view of the President, the contractual arrangements between Capita and individual "There is unequivocal support that the Advisers were interpreters were matters for Capita and did not affect the able to provide a head start, with fewer requests for issues he had to decide. additional reports and more emphasis placed on the social work assessment. Given these positive findings What was of importance was the agreement between Capita the Ministry of Justice may wish to debate the potential and the Secretary of State for Justice, the terms of which had value of further involvement of Family Court Advisors been fully analysed in the case of Re Applied Language in the pre-proceedings stage." Solutions Ltd [2013] EWCA Crim 326, upon which Kent relied.

The argument put forward by the local authority had four stages, namely; (1) that Capita's failure to provide interpreters was a breach of the agreement with the Secretary of State, (2) that this situation came within the ambit of the court's powers to order costs against a non party pursuant to Section 51 of the Senior Courts Act 1981,

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(3) that the principles to be applied were those set out in the the decision in ALS. The issue considered in that case of applicable case law (most recently B v B ( Costs: Order whether or not there had been a beach of contract was against non party) [2013] EWHC 1956 (Fam) ) and, (4) that "quintessentially a function of the court" and there was no a proper application of the relevant principles should result question of the court invoking its jurisdiction to make costs in an order being made. orders without such a breach having been first established.

Quoting at length from passages in the ALS judgment, A costs order was to be made against Capita. An application which set out both the fundamental role of interpreters in for permission to appeal was made and duly refused. the provision of a "fair and just" system and the principle that a private company taking on the obligations of the For the judgment and summary by Katy Rensten of Coram State, was responsible for carrying out those obligations, the Chambers, from which this item is derived, please click President confirmed that such considerations applied with here. equal force in public family law proceedings as they did to the criminal justice system. Guidance launched to help children The obligation on the company was to provide interpreters for 100% of cases in which they were required and, in the benefit from pets in adoptive and absence of a force majeure affecting either the company or foster homes interpreter, the company could not rely on the failure of an interpreter as an excuse for non performance. The British Association for Adoption and Fostering (BAAF) has launched Dogs and pets in fostering and adoption, Accordingly, applying ALS, stage 1 of Kent's argument (the a good practice guide to help foster carers, social workers, failure of Capita to discharge its obligations under its adopters, special guardians and panel members develop agreement with the Secretary of State) was made out. proportionate policies in relation to dogs and other pets. The move comes after some fostering services and Turning to the second limb (and again relying on ALS), practitioners expressed confusion around best practice, and having noted that the failures were repeated and, taking implemented unhelpful and risk-averse policies. into account the obligations of the state and the wider public interest, that they were capable of amounting to "serious The guide highlights the physical and emotional benefits a misconduct", the President once again confirmed the pet can bring for looked after children, including promoting applicability of the principles to public family law and attachment in human to human relationships through indicated that he considered stage 2 (concerning the softening and switching. Softening is how the animal helps circumstances in which the court could consider ordering the child experience the foster home as a positive costs against a non party) was also made out. environment. Switching is where the child first develops a relationship with the animal first , and then recognising that As to the third issue, that of the principles to be applied the animal also trusts the carer, begins to trust them too. when considering non-party costs orders; the President quoted with approval from the applicable case law, Paul Adams, Foster Care Development Consultant, and including reference to it being the case that, ultimately, the author of the guide commented: test was whether it was just to exercise the power conferred under S51 SCA 1981 and that "exceptionality" was neither a "Dogs and other pets can provide a loyal, non- precondition nor a prerequisite. As Cobb J had held in B v B, judgmental and constant companion for fostered and the circumstances where an order might be applicable, adopted children, and help to promote attachment included those where the failures were "extensive" and had between humans. It is important that local authorities had a "profound effect on the conduct of the proceedings". develop measured policies to help foster carers, social workers, adopters and special guardians to manage Turning to the fourth stage (whether in the current their pets in adoptive and fostering contexts. We hope circumstances a cost order should be made), the President this good practice guide will help them to achieve this." agreed that Capita's failures were serious, serial in nature and indicative of systemic problems. They had been Caroline Selkirk, BAAF's new Chief Executive, said: extensive and had had a profound effect on the conduct of the proceedings. It was therefore just, in this case, to make "With one in four UK children growing up with a pet, it an order. is a shame for children in care to miss out, particularly when it is these children who could benefit the most The decision to make an order must be firmly rooted in the from the experience." precise circumstances of each particular case and it was not to be taken that Capita would be liable for "each and every" The guide was created with input from pet charity Blue failure to provide an interpreter, Slovak or otherwise. Nor Cross, and it incorporates the experience of adopters and should it be taken that similar liability would necessarily foster carers. extend to other private sector contractors - which might have very different agreements in place - that provided Tracy Genever, Education Manager at Blue Cross said: services to the courts. "There are so many benefits to having a pet in the family Dealing with the counter arguments put on behalf of Capita, and many children grow up considering their pet to be the submission that any failures were matters of commercial their best friend and close confidante. We are pleased contract and should be dealt with between Capita and the that help is now available which may enable more pet Secretary of State rather than the court, could not "escape"

www.familylawweek.co.uk Family Law Week March 2015 - 6 owners to foster and adopt children and more children 'At one stage the judge referred to the mother as looking to enjoy growing up with a family pet." "upset and bewildered". It is hard to see how she could have looked otherwise given the course the proceedings The guidelines are available to purchase from £9.95 on the were taking.' BAAF website. The judgment and summary by James Holmes of 1 Gray's Inn Square are here. Final care order without a full hearing appropriate only in exceptional cases Public Accounts Committee disturbed In Re S-W (children) [2015] EWCA Civ 27, the Court of that legal aid changes were not Appeal has allowed an appeal by a mother against a care evidence-based order which was made at a case management hearing. The Public Accounts Committee has criticised the changes Lady Justice King, giving the lead judgment in the Court of to civil legal aid in a report published on the 4th Fenruary. Appeal, said that whilst there are a number of conceivable circumstances in which a final care order might be made at The chair, Margaret Hodge MP, said that it is 'deeply the case management hearing such a course would be disturbing that the Ministry of Justice's changes to civil legal appropriate 'only occasionally and in exceptional aid were based not on evidence but on an objective to cut circumstances'. costs as quickly as possible'. She stated at paragraph 40: She said: '…. The PLO militates against such an outcome not least 'The Magistrates' Association raised concerns about the because: increase in the number of people representing themselves in court – known as litigants in person – i) It is listed within days of proceedings being issued, caused by the reforms, especially in cases involving often solicitors will only just have become involved and children. had only limited time to take instructions it follows that the evidence to be relied on by the parents at a full trial 'There has been a 30% rise in the number of cases is unlikely to be available, even in outline; starting in family courts in which both parties were representing themselves, and the number of contested ii) The Guardian is unlikely to have read more than the family cases reaching the courts rose from 64% in the Checklist documents served with the application and three months before the reforms to 89% a year later. The may well not have seen the decision making records Magistrates' Association told us that these cases with which are only disclosed on request; further, unless he litigants in person also take longer and place additional or she have been involved with the family in relation to pressure on the courts service. other children he or she is unlikely to have seen the parties or the children, a significant omission 'Moreover, the Ministry's approach to implementing the particularly where, as here, there are older children who reforms has inhibited access to mediation for family law have lived with a parent for many years; cases. Amazingly, it failed to foresee that removing legal aid funding for solicitors would reduce the number of iii) A "section 31A" CA 1989 care plan will not, in all referrals to family mediation. likelihood, be available.' 'Mediations for family law matters fell by 38% in the The President, Sir James Munby, said that 'vigorous and year after the reforms, rather than increasing by 74% as robust case management has a vital role to play in all family the Ministry expected. Referrals to the assessment cases, but ... the duty of the court is to deal with cases justly, meetings that determine suitability for family mediation having regard to any welfare issues involved. ... fell by 56%.' [R]obustness cannot trump fairness.' The report concludes that whilst the Ministry is on track to In this case, a transcript of the case management hearing meet its objective of making a significant reduction to revealed that within a matter of minutes, the judge had spending on civil legal aid, it is far from clear whether the made abundantly clear, in trenchant terms, his Ministry has achieved its other objectives of reducing the determination to conclude the case there and then by number of cases coming to court, targeting civil legal aid to making final care orders. The judge was fortified in his those who need it most, or delivering better overall value for approach, he told the parties, by the fact that the previous money in civil legal aid. week, an application for permission to appeal in relation to another final care order he had made at the CMH in a According to the PAC, the Ministry's approach to different case had been refused. implementing the reforms has inhibited access to mediation for family law cases. As the Committee has noted before, Lady Justice King noted that 'all the parties crumbled under mediation can be a cost-effective alternative to court for the judge's caustically expressed views, and as a resolving disputes in many cases, and the Ministry intended consequence, were unable to explain to the judge that the that more people with family law disputes would use situation was more complicated than the one the judge mediation instead of the courts. But mediations for family clearly saw, and expressed.' law matters fell by 38% in the year after the reforms, rather than increasing by 74% as the Ministry expected. Referrals She added:

www.familylawweek.co.uk Family Law Week March 2015 - 7 to the assessment meetings that determine suitability for representing themselves, they have an initial discussion family mediation fell by 56%. about what they need or want to do.

The Ministry knew that solicitors were the major channel 'This would provide a more comprehensive system of through which people were referred to mediation, but failed support and enable vulnerable people to access the to foresee that removing legal aid funding for solicitors domestic violence gateway to legal aid, and find out would reduce the number of referrals to family mediation. about all of the dispute resolution options available to In April 2014, the Ministry made mediation assessment them. It is also likely to result in a higher referral rate to meetings mandatory for couples seeking to go to court over mediation, as it would restore a major source point of disputes about children or finances, in an attempt to address access that existed before the cuts to legal aid. This this problem. However, the Committee also heard concerns would significantly reduce the number of litigants in from the Magistrates' Association that mediation firms may person using the courts, whose issues do not always have gone out of business as a result of the drop in work in require court time but who, without access to legal the year after the reforms. If this is the case, people may advice, invariably think that court is the only option.' have difficulty finding a mediation service to provide their mandatory mediation assessment. The report is here.

The report states that the Ministry's exceptional case funding scheme is being used far less than expected, with First reported domestic award of 1,520 applications received in the first year after the reforms against an estimate of 5,000 to 7,000, and only 69 cases damages for a child in care approved. The Ministry could not explain why applications proceedings were below expected levels but the legal aid providers consulted by the NAO said that the complexity of the Mr Justice Keehan's judgment in Northamptonshire County exceptional case funding scheme made it very difficult for Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam) has people to apply. highlighted the increasing willingness of the court to award damages where care proceedings have involved a breach of The National Audit Office identified a 30% rise in the any of the parties' human rights. number of cases starting in family courts in which both parties were LIPs. The NAO also identified an increase in In this case the local authority had made what Keehan J the number of contested family cases reaching the courts, called "egregious failures" at just about every turn of the with the figure rising from 64% to 89%. The Magistrates' case. They obtained a s20 consent without the assistance of Association told us that these cases with litigants in person a interpreter, did not issue care proceedings until nine take longer and place additional pressure on the courts months after the child (a newborn) had been service. accommodated, and delayed at every conceivable juncture with the filing of documents. At the conclusion of Jo Edwards, chair of Resolution, commented: proceedings the child was living with his grandparents in Latvia and was thriving. The local authority conceded 'The PAC's conclusion that the Government's cuts to breaches of the Article 6 and 8 rights of the mother and of family legal aid have significantly hindered access to the child. justice for many ordinary British people comes as no surprise to those of us who work with separating The parties agreed damages totalling £16,000. These families every day. comprised £12,000 for the child and £4,000 for the mother. In addition a payment of £1,000 was approved for the 'The PAC's report shows that family lawyers, far from maternal grandparents to assist them in their care of the fitting the stereotype of money-hungry solicitors child. pushing people towards expensive court battles, in fact played a key role in keeping family disputes out of court Having reviewed a number of authorities in which damages before the legal aid cuts were implemented. The rise in had been awarded against local authorities who had acted contested proceedings and drop in mediation numbers in breach of a child's and/or a parent's human rights, since the removal of family legal aid is no coincidence - Keehan J was satisfied that the damages offered by the local it confirms that timely and appropriate legal advice is authority were appropriate. crucial to helping separating couples manage conflict and costs during their divorce. The awarded damages were higher than previous domestic awards; see, for example, H (A Child - Breach of Convention 'The PAC has recommended that the Ministry review Rights - Damages) [2014] EWHC 38. the impact of the reforms and the ongoing issues that the cuts to legal aid are causing for access to justice in this The judgment also approved an award of damages without country. Resolution has long been pressing for a any reasoning as to causation. Indeed Keehan J's closing wholesale impact assessment. remarks state quite clearly that the existence of harm to the child, who received the bulk of the damages, was something 'Resolution proposes that funding be made available for which was not known now and would only become known initial legal advice in family cases. It may be a in the future: combination of services, so that people are able to receive help from a legal professional at the points in the "I trust that the events of the first 23 months of DS's life process where they need it most – so even if they end up will not have a detrimental impact on his future

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development and his emotional and psychological well financial remedy application but it will go into the ordinary being. There is a real risk they will do so." queue unless urgent.

Interestingly, this is the first reported domestic award of In time, civil partnership dissolution applications will also damages for a child in care proceedings. It is perhaps be required to be sent to the same centres, but the timetable surprising that no such claim was made in the earlier cases, for this is not yet confirmed save in relation to the North but this is clearly an area of law which is developing very East where civil partnership dissolution applications should quickly and no doubt many more such claims will soon be be sent to Durham, Bradford or Doncaster. before our courts. The Family Procedure Rules Committee will be considering Julie Stather, barrister, Westgate Chambers changes to the D8 petition form and Form A financial remedy form so that your clients can indicate where they An article by Julie Stather - The Rise and Rise of Damages in would prefer hearings to take place, and why, if one is Human Rights Act Claims - will be published by Family required. If there is any dispute over the venue for Law Week during this week. hearings, this will be dealt with in the usual way by a DJ at the divorce centre. Resolution updates members on There are no legal or other changes (no changes have been made or are currently proposed to primary or secondary divorce centre changes legislation) which affect the ability to issue urgent petitions at local hearing venues, for example, where there is a Resolution has reported that it has recently met with HM jurisdiction race, or other urgent applications. Courts and Tribunal Service (HMCTS) about current and future moves to central divorce centres. HMCTS have All family court venues that have DJs on site, including the indicated that they would be keen to work with Resolution Central Family Court, will continue to accept urgent to answer common questions and find solutions to any petitions and applications, and will retain the facility to problems arising as a result of the changes. issue. We have asked, on behalf of our members, that Resolution has input as to how this will work in practice. According to Resolution (and confirmed by HMCTS), the current plan is that each of the divorce centres will be fully However, concern has been expressed by some at the lack of operational as follows: progress, in particular, in respect of information to the public, plans for the Centre for London and urgent Ÿ North East, Durham, Bradford (and Harrogate), applications. Tony Roe, of Tony Roe Solicitors, who has Doncaster, operational from November 2014 submitted a series of Freedom of Information requests to the Ÿ Wales, Neath & Port Talbot, Newport (Gwent), Ministry of Justice about the plans for divorce centres, Wrexham, operational from January 2015 commented: Ÿ North West, Liverpool, operational from February 2015 Ÿ Midlands, Nottingham, Stoke-on-Trent, operational "In a previous FoI request response, the MoJ promised from February 2015 'consultation/communication with stakeholders'. We Ÿ South West, Southampton, operational from April 2015 have heard nothing more from the MoJ about any Ÿ London and South East, Bury St Edmunds, operational consultation so it is to Resolution's credit that it has met from October 2015. with and lobbied the HMCTS for more information.

The actual date from which to start sending petitions to the "In the response to our most recent (third) request there new centre may vary between courts, so practitioners are is nothing about consultation, and little about advised to look out for communications in and from your communication or guidance to the profession or public. local courts. To say that 'posters will be displayed in local courthouses' is woefully inadequate. Especially with a It is intended that the Central Family Court will remain a growing number of litigants in person, people need point of entry for financial remedy cases, and emergency or accessible and clear information without having to turn urgent divorce petitions. up at a court which will not issue their petition. The MoJ promising that it 'will ensure adequate local It is expected that the majority of financial remedy communications plans are in place prior to applications (i.e. those that do not require a hearing – implementation' ignores the fact that the new scheme is typically applications by consent) will be handled by DJs on in operation in the Midlands and North West this month. site at the divorce centres, though arrangements have been put in place to share work with other hearing centres where "Meanwhile, Bury St Edmunds is now the confirmed necessary. venue for the Centre for London and South East workload. However, the plans for London and the South Each of the divorce centres will operate on the basis of a East remain in development and it is not expected to be designated catchment area, but petitions from outside of the fully live until October at the earliest. catchment area will be accepted at other centres if a reason is given. This will be kept under review until any workload "The MoJ has told us that 'guidance on urgent changes have been assessed and understood. applications will be made available to all courts in due course'. We are yet to hear what this guidance will be, You can attend in person at one of the centres during particularly in view of the fact that in a number of counter opening hours to issue a petition with or without a

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courts, such as the Family Court at Reading, counters are 'At our rehoming centres we deal with some very open by appointment only." upsetting situations when pets are brought to us following relationship splits. It really is devastating for everyone involved - including the pet. One partner will Private law cases received by Cafcass sometimes bring a pet to us for rehoming without the continue to fall other's knowledge. 'Our pets are not just material goods; they are often at In January 2015, Cafcass received a total of 2,843 new the heart of our home lives so it is a good idea to agree private law cases. This is a 15% decrease on January 2014 on your pet's future in advance to make a difficult levels. situation easier. It makes sense to agree up-front who will keep your pet so that they don't get dragged During 2014 there were 35,896 new private law cases. This through the courts or end up in our re-homing centres.' compares with 47,898 in 2013, representing a fall of 25%.

The monthly figures are here. Three new members appointed to the Family Justice Council Care applications in January level with The Family Justice Council (FJC) has announced that a year ago Elizabeth Isaacs QC, Helen Morris and Sara McIlroy have been appointed by the Lord Chancellor, in consultation with In January 2015, Cafcass received a total of 887 care the President of the Family Division, to be members of the applications. This compares with 889 in January 2014. Council (FJC) for 3 years from 2 March 2015. The posts are unremunerated and subject to security clearance. In December 2014, Cafcass received a total of 918 care applications. This figure represents a 13% increase Elizabeth Isaacs QC practises at St Ives Chambers in compared to those received in December 2013. Birmingham and is a door tenant at 1 KBW and at Atlantic Chambers, Liverpool. Sara McIlroy is a barrister practicing In 2014 as a whole there were 10,894 applications, compared family law at 2-3 Hind Court Chambers in London. Helen with 10,838 for 2013. This represents an increase of less than Morris, a magistrate member, is Chair of the Staffordshire 1%. Family Panel.

The monthly figures are here. The FJC was established in July 2004 to promote an inter- disciplinary approach to family justice as an advisory non- departmental public body. It is chaired by the President of Law Society encourage use of ‘pet- the Family Division, Sir James Munby. The FJC encourages greater understanding and co-operation between the nups’ different agencies in the family justice system and its membership is multi-disciplinary. The Law Society has reminded couples that one-in-four divorces involves a dispute over pets and that therefore they Members include: family solicitors and barristers, judges, should draw up a pre-nuptial agreement in respect of their academics, psychiatrists, local authority lawyers, mediators, pet(s). A 'pet-nup' for sharing 'custody' of a pet and other social workers and Cafcass representatives. details including upkeep costs would provide peace of mind for both. The FJC monitors the effectiveness of the family justice system through consultation and research and acts as Research by leading pet charity Blue Cross has found that 'critical friend' by providing advice to the national Family over one in four divorces include a dispute over pets. Dogs Justice Board and the government. It advises on the reforms and cats are the most fought over pets followed by horses, necessary for continuous improvement and plays a key role rabbits and guinea pigs. in the modernisation of the family justice system.

Law Society President Andrew Caplen said:

'Solicitors are usually the first port of call for people who Government to introduce mandatory are divorcing so perhaps we are a little on the cynical reporting of FGM side – but we see the problems caused when relationships break down acrimoniously and it's usually The government is to introduce mandatory reporting of costly, stressful and emotionally draining for both FGM. parties. In December 2014 the Home Office issued a paper, 'Pets are part of the family so it makes sense to think 'Introducing mandatory reporting for female genital about their welfare.' mutilation: a consultation'. Its purpose was to enable the Government to scope and explore fully how to introduce a Alyson Jones, rehoming development manager at Blue mandatory reporting requirement for cases of female Cross, where many pets are rehomed following relationship genital mutilation (FGM). The consultation sought views breakdown, said: on:

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Ÿ what and who should be covered by the requirement; The English mother's will said that 'under no circumstances' did she wish her daughter, aged eight, and son, aged seven, Ÿ which agencies the requirement should apply to; to return to their Australian father. Prior to the woman's death from cancer, she had been Ÿ how the requirement would work in practice; and engaged in family proceedings against the father, of Aboriginal descent, concerning the children. Ÿ the sanctions which should be imposed for failure to comply with it. Mr Justice Roderic Wood stated that the mother had declared in her will: The consultation also sought views on introducing statutory multi-agency guidelines on FGM. "Under no circumstances do I wish my children to be returned to their biological father in Australia, as this The Home Office will now introduce a new mandatory would be extremely detrimental to their lives." reporting duty through amendments to the Serious Crime Bill. The proposed duty will: The father argued that they had been born and raised in Australia and that their habitual residence was in Australia. Ÿ Apply in cases of 'known' FGM (i.e. instances which are Nor had he consented to them moving to England to live. disclosed by the victim and/or are visually confirmed). Roderic Wood J said that there was no evidence that the Ÿ Be limited to victims under 18. children were told of the plans to keep them in England permanently and that they had believed that they were in Ÿ Apply to all regulated healthcare and social care England as a holiday. professionals, and teachers. The Guardian report is here. Ÿ Require reports to be made to the police within one month of initial disclosure/identification. Wife’s MPS application rejected Failure to comply with the duty will be dealt with via existing disciplinary frameworks. because interim budget exceeded standard of living of marriage In addition to the duty, the Government will include a measure in the Serious Crime Bill to provide multi-agency In BD v FD [2014] EWHC 4443 Fam Mr Justice Moylan has statutory guidance for front-line professionals, to which rejected a wife's maintenance pending suit application on they will be required to have regard. the basis that her interim budget manifestly exceeded the standard of living of the marriage. Court intervention was The summary of responses to the consultation is here. not required to ensure her interim needs were met.

The parties married in 2002 and separated in 2013. There are Civil partnership registrations four children of the family aged between 3 and 8. declined by 11% in 2013 The husband has non-trust assets of £49m and trust assets of £100m-£130m along with an income of £1.7m net per annum Civil partnerships in 2013 declined by 11% on the number and the wife has £2.9m being the value of her new home and registered in 2012. The number of civil partnerships formed £1.4m in cash and investments. in the UK in 2013 was 6,276, a decrease of 11% since 2012. Of the wife's £1.4m, £1m was transferred to her by the The mean age of men forming a civil partnership in the UK husband in the course of the separation and in a letter from in 2013 was 40.6 years, while for women it was 37.8 years. his solicitors dated 3 April 2014, he confirmed that he did These figures represent a small increase in mean ages when not expect the wife to use the sum of £1 million to fund her compared to 2012. legal costs or her living expenses. The number of civil partnership dissolutions granted in This was the wife's application for maintenance pending England and Wales in 2013 was 974, an increase of 20% since suit dated 10 July 2014. At the time of the application, the 2012. husband was voluntarily paying a global sum of £202,000 pa for the benefit of the wife and the children in addition to the The full statistics are here. wife's legal fees. The wife sought that sum to be increased to an "absolute minimum" of £280,000 pa but in essence, sought £392,000 pa, her interim needs budget. Children sent back to Australia despite mother’s wishes in will The wife's case was that without MPS at the levels she sought, she would not be able to meet her reasonable income needs. The Guardian reports that the High Court has ordered the return of two children to Australia despite a stipulation in The husband's case was that as a matter of fact (disputed by their deceased mother's will that they should not return the wife), the family lived on approximately £230,000 to there to live with her ex-husband. £265,000 pa including school fees of £40,000 pa. He

www.familylawweek.co.uk Family Law Week March 2015 - 11 produced evidence from his accountants setting out the and, most importantly, parents would be more likely to family's annual expenditure for 2011 to 2013 inclusive. His follow the court's orders. case was that the wife's own interim needs were £156,000 pa. Justice Minister Simon Hughes said: Moylan J found in favour of the husband in that global MPS should remain in the sum currently paid by the husband of 'I am determined that all cases involving children should £202,000 pa. be resolved quickly and wherever possible outside court.

Applying, F v F (Ancillary Relief: Substantial Assets) [1995] 2 'However when they do come to court they should be FLR 45, M v M (Maintenance Pending Suit) [2002] 2 FLR 123, resolved in a civilised way so that children don't suffer. TL v ML & Ors (Ancillary Relief: Claims against Assets of Unambiguous and conclusive DNA tests will prove Extended Family) [2006] 1 FLR 1263 and G v G (Child parentage and help to end acrimonious and Maintenance: Interim Costs Provision) [2010] 2 FLR 1264, the embarrassing court battles." judge made the following observations: The west of England pilots also explored whether alcohol and drug tests could be restricted without a Ÿ On a broad assessment for the purposes of this interim means test to cases where their findings were hearing, the annual sum sought by the wife of £392,000 determinative in family court cases.' very substantially exceeded the marital standard of living. He found that whilst that standard is "not These results were inconclusive, so the Children and Family necessarily a ceiling", there would need to be some Court Advisory and Support Service (Cafcass) will test and "specific, powerful, justification" for that standard being develop a new model for delivering drugs and alcohol exceeded on an interim basis. testing over coming months which is both affordable and provides the courts with the certainty they need. Ÿ The purpose of an interim hearing is to ensure that one party has sufficient resources to meet their "immediate" The funding for DNA testing in private family law cases interim needs and to meet them in a way which does not follows the introduction last year of the biggest reforms to prejudice their longer term position or place them at a the family justice system for a generation. These have placed significant disadvantage, for example if the wealthier children at the heart of every case and have cut to 29 weeks party was seeking to erode the resources located in this the time which care cases are taking. jurisdiction when enforcement might be an issue. David Nicholson, Director of DNA Legal commented: Ÿ The court must ask itself whether on a broad assessment, there is a need which manifestly requires the court's 'The opportunity to support families at a time when they intervention. He found that in this case, the court's are deeply afraid, a time when they do not know what intervention was not justified. the future holds is the reason that DNA Legal was established. We've seen that nearly all individuals were Ÿ The application was a disproportionate use of the very willing to participate in the testing, they want to parties' and the court's resources in circumstances where take responsibility and understand the support testing the combined costs of £80,000/£90,000 exceeded the can provide.' lower amount sought by the wife and was equivalent to some 50% of the difference between the parties positions on the higher amount sought by the wife. Family Drug and Alcohol Court to be For the judgment and more detailed summary by Lily nationwide Mottahedan of 1 Hare Court (from which this item is derived) please click here. The Family Drug and Alcohol Court (FDAC) which helps families blighted by drug and alcohol misuse get back on track and stay together is to be extended nationwide as a DNA tests to be available in all private result of government backing worth £2.5 million. family law proceedings The FDAC was described by the Centre for Justice Innovation as 'one of the most successful examples of DNA tests in family courts will be provided across England problem-solving court innovation in England and Wales in from later this year, Justice Minister Simon Hughes has recent years.' It works with parents, social workers and announced. substance misuse professionals to combat addictions in families and, where possible, keep them together. Where From September all family court judges in England will be this isn't possible, the Court aims to make swift decisions in able to order DNA tests to determine a child's parentage. order to find children a permanent loving, stable home with minimal disruption. This follows two pilot schemes in Taunton and Bristol which were set up following anecdotal evidence that The Court also ensures parents see the same judge courtroom arguments led to delays in divorce cases, throughout the course of the proceedings, establishing a particularly where parentage was in question. relationship built on trust, and offers fast access substance misuse services as well as help with housing issues, Findings from the pilots suggest the tests mean judges could domestic violence and financial hardship. be more confident when making decisions about children

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Currently operating across London as well as following divorce or separation – will be able to have their Gloucestershire, Milton Keynes and Buckinghamshire, the views heard when decisions are made that will affect them. money will be used to launch Family and Drug Alcohol Courts in new areas of the country including Coventry, Speaking to the group of the 24 young people who promote Kent and Medway, Plymouth, Torbay and Exeter, and West the voices of children and young people in the family justice Yorkshire – extending this vital service to vulnerable system, Simon Hughes set out changes to make it easier for families across the country. children and young people to communicate their views in court proceedings. Children and Family Minister, Edward Timpson, who spent ten years as a family barrister, said: These options include meetings, letters or pictures or by way of a third person in addition to their Children and "I know from my years at the Bar that when it comes to Families Court Advisory and Support Service (Cafcass) supporting our most vulnerable and troubled families, officer or social worker. there isn't a one-size-fits all approach. Families need tailored and personalised support to help them stay Simon Hughes also announced the government's support together and thrive. for out of court dispute resolution services, such as family mediation, to be more child inclusive. "Since 2008, the Family Drug and Alcohol Court has thrown an invaluable lifeline to hundreds upon Justice Minister Simon Hughes said: hundreds of families, helping parents shut the door on destructive behaviour and making sure everyone is "For too long, children and young people have struggled working towards the best possible outcome for the child to have their voices heard during the family court – a safe and stable family. process. Although they are often at the centre of proceedings, the views of children and how they feel are "Extending the Court's work further will deliver real, often not heard, with other people making vital life-changing results for families across the country and decisions for them. I look forward to seeing how the scheme develops over the coming months." "I've been really impressed with Family Justice Young People's Board (FJYPB) and the arguments which its District Judge Nick Crichton said: members put forward. This is why I have taken steps to make sure that children and young people from the age "FDAC is a problem solving court. In the FDAC, we of 10 will be able to express their views in cases which have seen some parents demonstrate a remarkable affect them. capacity to change in response to our more constructive, empathetic approach. Harnessing the fairness and "Young people are some of the most vulnerable in authority of the court has shown that it is possible to society, and it is vitally important that we make sure break the cycle of drug and alcohol misuse. Importantly, they are at the heart of the family justice system." FDAC has the support of parents themselves, which is crucial to its success. Thanks to the DfE and Last year there were 90,000 children involved in new cases government's investment, more parents and their in the family courts. The government believes that the children will be able to access FDAC across the country." voices of children and young people should be heard when decisions are made that affect them. Under new proposals An independent evaluation by Brunel University found that this will change, and in particular all young people aged 10 FDAC families had a higher rate of stopping substance and above will have a greater opportunity to have their abuse than people who had been through normal care voice heard. proceedings, with 40% of mothers stopping, compared to 25%. Nineteen-year-old Bethany Shepherd, a member of the In 35% of cases, FDAC mothers stopped misusing and were FJYPB has been through the family justice system and said: reunited with their mothers, compared to 19% who had been through ordinary care proceedings. "In my case, I had to wait 4 years before my voice was heard and I was considered to be too young to know my To read a recent article about the Court, written by Esther own mind or listened to individually and simply just Lieu and Sarah Jennings, with a contribution by District lumped together with my younger sister. Judge Julie Exton of the Gloucestershire FDAC, please click here. "This is far too long and meant that I spent much of my childhood fighting just to have my voice heard. The work being done currently on the voice of the child is Children to be more clearly heard in really encouraging to see and is definitely a step in the decisions about their future right direction for family justice." A range of initiatives will help make communication easier, Children will have a greater say in family court cases, including facilities for children and young people to Justice Minister Simon Hughes announced as he addressed communicate with a judge by way of letters or pictures. the Family Justice Young People's Board. Also Cafcass are working on various resources such as a 'Court Gaming App' (which will help explain the court Children involved in any type of family case – whether to system to a young person) as well as welcome packs and remove them into care or disputes about child arrangements paper-based guides.

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only 12 per cent of advisers reported being unaffected by the The plans announced today are expected to complement changes that came into force from April 2013. The findings, reforms to guidance on judges seeing children which are from Citizens Advice's new report Victims of domestic being considered by a judge-led working group set up by abuse: struggling for support?, suggest the Government is the President of the Family Division, Sir James Munby. failing to deliver on its assurances that legal support for domestic abuse victims is protected. Appeal lodged against DV legal aid The survey of over 300 bureaux advisers finds: ruling Ÿ Almost 1 in 4 of advisers who responded cite issues with gathering evidence as a major barrier to resolving issues Rights of Women is seeking to appeal against the High in domestic abuse cases Court judgment last month rejecting the challenge by the Public Law Project, on its behalf, to the lawfulness of Ÿ A third of all advisers report fewer victims of domestic Government changes to legal aid as they affect victims of abuse proceed with legal action because of the legal aid domestic violence. changes

Rights of Women had claimed that the new rules are Ÿ A fifth of advisers saying the legal aid changes are a preventing victims of domestic abuse from getting legal aid barrier find victims are unable to afford the necessary for family cases, even when it is clear there has been financial contributions when they are offered legal aid, violence, or there is an ongoing risk of violence. The charity and 1 in 5 also reported more domestic abuse victims has argued that this is not what parliament intended. self-representing.

The judgment of Mrs Justice Lang is here. Gillian Guy, Chief Executive of Citizens Advice, said:

Emma Scott, director of Rights of Women, commented: "Domestic abuse victims must not be a test case for downsizing justice. When victims seek our help, more "Despite acknowledging the weight of evidence we advisers than not report legal aid restrictions presented that the domestic violence evidence criteria endangering the outcome of the victim's case. The creates a bar to family law legal aid, Mrs Justice Lang's Government's assurance that it will protect access to judgment means that 40% of women continue to be legal aid for domestic abuse victims is not standing up. unable to access the kinds of legal remedies which enable them to find safety from violent relationships. We "Legal aid restrictions are currently forcing victims of will continue to campaign to ensure that women abuse to shoulder intolerable extra burdens at their most affected by violence have access to safety and justice and vulnerable moments. To require someone who has fled are very pleased to have the continued support of our an abusive home to make a financial contribution legal team at the Public Law Project and Landmark because of assets they share with their abuser is clearly Chambers and the backing of the Law Society in senseless. The evidence victims of abuse now need in pursuing an appeal against this decision." order to protect their children or separate from their abuser is also often completely impractical, and A Law Society spokesperson said: threatens to keep victims in harm's way.

"The Law Society is supporting this appeal. The over- "That we have a Government committed to stamping strict tests required to bring evidence to satisfy the out domestic abuse in all its forms is hugely broader statutory meaning of domestic violence are not encouraging. Ensuring all victims of abuse can access what parliament intended. Legal aid is often the only the support they need through legal aid and from way that those who suffer at the hands of abusers can specialist services must be made a priority to fulfil this bring their case before the Courts. Without legal aid commitment." women are being forced to face their perpetrators in court without legal representation. Victims of domestic Under the changed legal aid rules it is up to victims to prove violence should not be excluded from accessing legal aid they have been subjected to severe or sustained domestic for family law disputes against an abusive ex partner or violence to get access to legal aid. Currently accepted relative because of these unrealistic regulations." evidence includes authorities already being aware that the victim is at risk of serious harm or murder, physical evidence examined by doctors, or the prior involvement of Legal aid changes limit justice for social services, which can be impossible for abuse victims victims of domestic violence whose day-to-day lives have been controlled. Even in cases where the victim can meet the evidence Changes to legal aid have affected the support that six in ten required to qualify for legal aid it is often restricted due to advisers helping victims of domestic abuse can provide, the assets or income of the victims, Citizens Advice research finds new research from Citizens Advice. finds. Victims who have left an abusive home can be trapped in a 'catch-22' situation, unable to return to the The survey of advisers across the Citizens Advice Bureaux home to access their financial assets and pay for legal network finds restricted access to legal aid is one of the assistance, but ineligible for legal aid because they have a biggest barriers to support for victims of domestic abuse in joint bank account or home ownership. England. In their work helping victims of domestic abuse

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Frontline bureaux workers reported facing a debilitating allegation, if there is evidence to support it, is that "X lied" mix of reductions to both legal aid availability and specialist or "he did Y". services for victims. Only 4 in 10 advisers report adequate specialist support for victims with differing needs, with The need to establish the link between male victims and those with English as a second language amongst those facing the biggest barriers. facts relied upon in a threshold document and the conclusion that the child has Citizens Advice is calling for a re-examination of the suffered, or is at risk of suffering, evidence currently needed to secure legal aid in a case of significant harm domestic abuse. The burden of evidence is currently too Sometimes the linkage will be obvious, as where the facts high for many victims and especially difficult for victims of proved establish physical harm. Sometimes the linkage may non-physical abuse, including victims of financial and be less obvious where the allegation is only that the child is emotional abuse. at risk of suffering emotional harm or, as in this case, was at risk of suffering neglect. In this case, an important element For details of the appeal lodged by Rights of Women against of the local authority's case was that the father "lacked a judgment refusing its challenge to the legal aid changes, honesty with professionals", "minimised matters of please click here. importance" and "is immature and lacks insight of issues of importance". This did not however naturally feed through into a conclusion that A was at risk of neglect. The local President reminds practitioners of authority's evidence and submissions must set out the importance of fundamental principles argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. in care applications The President highlighted the judgment of Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337, para 7, in a judgment In A (A Child) [2015] EWFC 11, the President of the Family agreed by both Arden and Ryder LJJ: Division dismissed an application for a care order and placement order in respect of a young boy, A, and was "No analysis appears to have been made by any of the highly critical of the local authority, Darlington Borough professionals as to why the mother's particular lies Council. The President carefully explored the factual basis created the likelihood of significant harm to these upon which the local authority asserted the threshold children and what weight should reasonably be criteria were met, and upon which they made their case as afforded to the fact of her deceit in the overall balance." to welfare, and took the opportunity to remind practitioners of three fundamental principles which are, in his view, increasingly overlooked. The temptation of social engineering and the need to recognise the Fact-finding and proof inevitable diverse and unequal It is for the local authority to prove, on a balance of standards of parenting probabilities, the facts upon which it seeks to rely. Findings of fact must be based on evidence and not on suspicion or The President reminded judges and practitioners of the speculation (Re A (A Child) (No 2) [2011] EWCA Civ 12). If judgment of Hedley J in Re L (Care: Threshold Criteria) [2007] the local authority's case is challenged on some factual point 1 FLR 2050, para 50: it must adduce proper evidence to establish what it seeks to prove. Whilst reliance is often placed upon material to be "Society must be willing to tolerate very diverse found in local authority case records or social work standards of parenting, including the eccentric, the chronologies which is hearsay (often second or third-hand barely adequate and the inconsistent. It follows too that hearsay) a local authority which is unwilling or unable to children will inevitably have both very different produce the witnesses who can speak of such matters first- experiences of parenting and very unequal hand, may find itself in great difficulties if a parent not consequences flowing from it. It means that some merely puts the matter in issue but goes into the witness- children will experience disadvantage and harm, while box to deny it. others flourish in atmospheres of loving security and emotional stability. These are the consequences of our It is a common feature of care cases that a local authority fallible humanity and it is not the provenance of the state asserts that a parent does not admit, recognise or to spare children all the consequences of defective acknowledge something or does not recognise or parenting. In any event, it simply could not be done." acknowledge the local authority's concern about something. If the 'thing' is put in issue, the local authority must both Further, the President expressly approved the judgement of prove the 'thing' and establish that it has the significance His Honour Judge Jack in North East Lincolnshire Council v G attributed to it by the local authority. In this respect the & L [2014] EWCC B77 (Fam) where he said: President also drew a clear distinction between evidence required to prove an assertion and the assertion of fact. It is "The courts are not in the business of providing children the latter which should be pleaded in the formulation of with perfect homes. If we took into care and placed for threshold and schedule of findings sought. Allegations that adoption every child whose parents had had a domestic "X appears to have" lied or colluded, that various people spat and every child whose parents on occasion had have "stated" or "reported" things, and that "there is an drunk too much then the care system would be allegation" should not be used. The relevant allegation is not overwhelmed and there would not be enough adoptive that "X appears to have lied" or "he reports"; the relevant

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parents. So we have to have a degree of realism about Ofsted's Single Inspection Framework prospective carers who come before the courts." is flawed, says Association of The President then moved to consider the particular facts of Directors of Children’s Services the case concerning A. He was highly critical of the social worker(s) and children's guardian and the absence of any Alan Wood, President of the Association of Directors of proper assessment of the father and analysis of the facts Children's Services, has said that findings from Ofsted's which underpinned the local authority's case. When the Single Inspection Framework so far are 'not credible'. facts were properly explored the local authority failed to prove a significant number of them and the facts material to He said: threshold. The President concluded that the local authority was too willing to believe the worst of the father and that "Ofsted's Single Inspection Framework (SIF) is less than whilst the father might not be the best of parents and might one third of the way through its cycle and the findings be a less than suitable role model that was not enough to to date suggest that the services of around three quarters justify a care order let alone adoption. The President of authorities are not yet good enough. These results are therefore ordered that A should be placed in the care of his just not credible when we compare the performance of father. our safeguarding system with those European counterparts. The fact that no single authority has been Finally, the President drew attention to the decision of the rated as 'outstanding' overall or that only four of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, 260+ subgrades awarded to date are outstanding defies and the recent decision of Keehan J in Northamptonshire belief, in any inspection system you would expect each County Council v AS and Ors [2015] EWHC 199 (Fam) of the four grades to appear in a standard model of which highlighted the inappropriate use of s.20 Children representation. That is why I believe that the current Act 1989 by some local authorities, including the applicant framework is flawed and why we are in discussions authority in this case. with Ofsted about the catalogue of concerns surrounding the SIF." For the judgment and case summary by Alison Easton of Coram Chambers from which this item is derived, please click here. Children’s Society urges child protection changes to Serious Crime Marriage tax allowance scheme open Bill for registrations Teenagers ager 16 and 17 are more likely to be abused or A scheme to offer tax allowances to some married couples neglected than any other age group, but are given the least and civil partners is open for registration. protection, according to new analysis by The Children's Society. The allowance is available to those whose income is less than £10,600 in the 2015 to 2016 tax year. In such According to the charity, almost 25,000 teenagers aged 16 circumstances they may be able to reduce their husband, and 17, the equivalent of one in 50, are at risk of abuse or wife or civil partner's tax by up to £212. neglect, a higher proportion than any other age group. They may suffer emotional, physical or sexual abuse or their The new Marriage Allowance will permit a person to caregiver may fail to provide them with medical help or transfer of their personal allowance to their partner. This is adequate food or clothing. the amount of income people can receive before paying tax. Despite being most at risk of cruelty and neglect, 16 and Marriage Allowance will be available later this year. 17-year-olds are not given the same legal protection as Registration can be made now. younger children. Existing child cruelty laws allow prosecutions to be brought for neglect, ill treatment and A person will be able to claim Marriage Allowance if all the abandonment but only until the child is aged 15. following apply: The Children's Society has released these figures to urge the Ÿ He or she is married or in a civil partnership. Government to make changes to the Serious Crime Bill, which includes changes to the law on child abuse and Ÿ He or she has an annual income of less than £10,600 - neglect, when it is debated on Monday, 23 February 2015. including pensions, savings and investments. The charity says that its call is backed by parents in England, Ÿ That person's spouse or civil partner has an annual with 4 in 5 parents (82%) of school age children, saying they income of between £10,601 and £42,385. thought the law should protect older teenagers.

Ÿ Both persons were born on or after 6 April 1935. The Children's Society is calling for Child Abduction Warning Notices, used by police to disrupt the contact To register, please click here. between children and harmful adults like drug dealers or sexual predators, to be applicable to 16 and 17-year-olds. Currently, they can only be used to protect vulnerable children aged 15 and under, unless they are in local

www.familylawweek.co.uk Family Law Week March 2015 - 16 authority care. It is also calling for child cruelty and neglect no longer able to get this financial support to fight their laws to apply to 16 and 17-year-olds. case. Yet legal aid does remain available for mediation – a further advantage in pursuing disputes this way that Lily Caprani, Strategy and Policy Director, said: is also 'undersold' by the Government."

'It is nonsensical that children aged 16 and 17 are at most The written parliamentary answer by Simon Hughes is risk of abuse and neglect, and yet aren't given the same here. legal protection as younger children. Victims of cruelty and abuse can experience devastating mental and physical harm that can blight the rest of their lives. In the ‘Discoverer’ of shaken baby syndrome eyes of the law, they are children until they are 18 yet the law does not sufficiently protected from abuse and expresses concern over flawed cruelty. evidence

'We are urgently calling on the Government make it a The paediatric neurosurgeon Dr Norman Guthkelch, whose criminal offence for a parent or guardian to abuse or work 40 years ago was one of the most important early neglect any 16 or 17 year old who lives with them, and pieces of research that tended to connect head injuries in for Child Abduction Warning Notices to apply to 16 and young children to violence, has signed an open letter 17 year olds. expressing concerns over links between claims of shaken baby syndrome (SBS) and miscarriages of justice. 'Time is running out. This is the Government's last chance before the election to protect vulnerable 16 and Dr Guthkelch is one of 35 signatories of a letter which states 17 year olds from abuse and neglect and keep them safe.' that it can be shown in many instances that the evidence of the prosecution experts alleging death or serious injury from SBS is demonstrably flawed. It continues that the scientific basis for the assertion that these injuries are the Seven grandparents a day seek court consequence of deliberately inflicted violent shaking is order to see grandchildren highly contentious. Dr Guthkelch is quoted as saying: "We've assumed the Simon Hughes, the Justice Minister, has confirmed in a cause of shaken baby syndrome on the basis of a few cases." written parliamentary answer that last year there were He considers that the sample size of his original seven applications a day by grandparents for a court order observations was too small to support the generalised to see a grandchild after the divorce or separation of the conclusions that are being made in SBS allegations. child's parents. In 2011 he endorsed research done by Dr Evan Mathses In 2013/24 there were 2,517 applications for child contact which he described as "a most important contribution to orders or child arrangements orders. The figures for understanding" of SBS. For details of that research, click here. 2012/13 and 2011/12 were 2,649 and 2,319 respectively. The open letter is here. National Family Mediation has responded by saying that the government must shoulder blame for the lack of For an article by David Bedingfield of 4 Paper Buildings information and education about alternative approaches to which charts the recent history of scientific research into settling family disputes. serious non-accidental head injuries suffered by babies and the response of the family and criminal courts in England Jane Robey, CEO of National Family Mediation, said: and Wales, please click here. "The fact is that grandparents have no automatic right to be part of their grandchild's life. House of Lords approves ‘three-person "Making an approach to court should be used only as a IVF’ last resort by anxious grandparents. Our worry is that the huge majority of the 2,517 grandparents applying for The House of Lords has approved the Human Fertilisation court orders in 2014 knew nothing about the alternative and Embryology (Mitochondrial Donation) Regulations options available to them. The family court system is a 2015. The regulations will come into force on the 29th huge expense to the taxpayer, and Government must October 2015. bear its share of the blame for the lack of information and education about alternative ways to resolve family The Human Fertilisation and Embryology Authority will disputes, including family mediation. now develop a licensing framework through which applications can be considered from clinicians wanting to "The Government says it wants to keep family disputes offer the two techniques set out in the regulations. out or court wherever possible. It can certainly talk the talk, but it needs to do more to walk the walk. The regulations set out how the HFEA must issue a specific licence to carry out mitochondrial donation treatment "Our experience is that, since changes to legal aid two beyond any existing permission a clinic has to conduct IVF years ago, many grandparents who would previously or other treatment. In considering applications, the have qualified for legal aid to take the case to court, are regulations require the HFEA to assess the existing staff

www.familylawweek.co.uk Family Law Week March 2015 - 17 expertise, skill and experience at the clinic, as well as its equipment and general environment. The Evening Standard reports that, following the couple's separation in 2006, the couple's £1.3 million home was Each application will be decided on a case by case basis and ordered to be sold and the proceeds divided. Mrs Wright in accordance with the latest scientific advice. An HFEA was awarded a £450,000 mortgage-free house in committee will determine whether individual patients and Newmarket plus stabling for her horse and her two families have a particular risk of an abnormality in their daughters' ponies. mitochondrial DNA; and whether there is a significant risk that a child born with that abnormality will have, or will Mr Wright, 59, was also ordered to pay her and the children develop, a serious physical or mental disability, a serious £75,000 a year in maintenance and school fees. Of this Mrs illness or another serious medical condition. Wright received £33,200 a year as personal maintenance.

In the course of the House of Lords debate Lord Deben Last year Mr Wright sought to have the maintenance proposed an amendment which would have blocked the payments reduced because he was concerned that this regulations. Much of the debate related to the legal position. would be unaffordable after his retirement at 65. Judge Lord Deben said: Lynne Roberts ordered that the personal maintenance payments should cease, subject to a tailing-off over a five- "I believe that we should obey the law and it is quite year period leading up to Mr Wright's retirement. She said clear that there is considerable disagreement—I put it that there was no good reason for her not to seek work simply like that—about whether this action is legal following the separation. under European law." Lord Justice Pitchford, hearing Mrs Wright's appeal against Baroness Scotland of Asthal, the former Attorney General, that order, said that divorcees with children aged over agreed that there were concerns about the legality of the seven should work for a living and that she should "just get regulations. She said: on with it" and seek a job like a number of other women with children. "Everybody agrees that we have to get this right and having worked so hard and so long, and knowing of the Elizabeth Hicks, a Partner at Irwin Mitchell's London pain that many have already spoken about, what a cruel office, said the decision highlights how the way such thing it would be to do this and then say that the legal matters is handled is shifting. basis upon which it was founded was flawed. The noble and learned Lord, Lord Hope, is right that if in the final "This recent decision seems to illustrate the sea change analysis the arguments we articulate and which go in the way the Family Court are now looking at spousal through the Select Committee are not sufficiently sound, maintenance. It is the latest in the line of authorities the only way in which the sagacity and value of these where single Judges have made it plain that spousal legal principles can be tested would be in a court." maintenance is no longer a meal ticket for life.

However, Lord Mackay of Clashfern, the former Lord "The fact that it is a decision on Appeal gives it greater Chancellor, noted: weight. It is important to remember that the Matrimonial Causes Act 1973 makes it plain that the "The only place it can be settled is in a court of law, either court must look at bringing a married couples' financial the domestic courts of the United Kingdom or, if claims against each other to an end at the earliest necessary, the Court of Justice of the European Union in possible opportunity. This decision shows that the Luxembourg. In a sense, if that is a real point, the sooner courts are now making this more of a reality." the regulations are passed the better so that they can be tested." The judgment is not yet available. The Evening Standard report is here. The amendment was defeated by a majority of 232 and the regulations approved. Challenge to ban on heterosexual civil records the debate here Hansard . partnerships to proceed For an article, written by Professor Nils Hoppe and Katy Rensten of Coram Chambers, analysing the issues raised in The High Court has granted permission for a couple who the House of Commons debate, including the legal wish to challenge the ban on heterosexual civil partnerships arguments, please click here. to pursue their application.

Rebecca Steinfeld and Charles Keidan, who wish to register Maintenance cannot be ‘a meal ticket their union as civil partnership rather than marry, have instituted judicial review proceedings. for life’ Mrs Justice Laing granted the couple a protective costs The Court of Appeal has rejected the challenge of Tracey order to limit their liability for the government's legal costs Wright, the ex-wife of racehorse surgeon Ian Wright, who in the event that their case is unsuccessful. They have sought to challenge a decision which would see her future launched an appeal for contributions to their costs via maintenance from her former husband significantly crowd-funding website GoFundMe. reduced.

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For a report in the Jewish Chronicle, please click here. 'there is, and can be, absolutely no excuse for [practitioners] not being completely familiar with the Practice Direction and its contents and complying Referrals to children’s services rise by meticulously with its requirements.' more than 10% He added in the present judgment:

There were 657,800 referrals to children's social care in 'Yet here we are, more than six years on, and almost England in 2013-14 – an increase of 10.8% compared to the fifteen years after the original Practice Direction, previous year when there were 593,500 referrals. Data continuing to experience, and experience far too collected for the first time, on the source of referrals, shows frequently, serious default in complying with the that nearly a quarter of referrals were from the police. requirements of PD27A.'

397,600 children were in need at 31 March 2014 – an increase Practice Direction 27A states that, unless the court has of 5.0% from 378,600 at 31 March 2013, although the longer- directed otherwise, parties can submit a bundle of no more term time series does fluctuate. than 350 sides of text.

In respect of those children abuse or neglect were identified Approving comments made by Mostyn J in J v J 2014] as their primary need in 47.2% cases. This is the most EWHC 3654 (Fam) and Seagrove v Sullivan [2014] EWHC common primary need, followed by family dysfunction at 4110 (Fam), criticising the professions' failure to comply 18.6%. This has remained broadly similar to the previous with PD27A, he warned: year. 'This practice must stop and I have taken practical steps There were 142,500 section 47 enquiries carried out in 2013- to stop it. From now on, counter-staff at court offices will 14. This is an increase of 12.1% on 127,100 last year. be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be 48,300 children were the subject of a child protection plan at lodged, and to require whoever is trying to lodge them 31 March 2014. This is an increase of 12.1% on 43,100 at 31 to take them away. If witness bundles are sent by post, March 2013 and an increase of 23.5% since 31 March 2010. or by DX or delivered by couriers who refuse to take them away, they will, unless a judge has specifically The statistical release by the Department for Education is directed that they are to be lodged, be destroyed here. without any prior warning necessarily being given. They will not be delivered to the judge and will not be taken into the courtroom by court staff.' President deprecates filing of The judgment and summary by Michael Jones of 15 excessive court bundles Winckley Square Chambers are here.

The President has warned practitioners that court officials will refuse witness bundles and, if sent by post, will have them destroyed unless a judge has directed that they be ‘Tough’ new inspection regime for lodged. children’s homes from April 2015

In Re L (A Child) [2015] EWFC 15, Sir James Munby was A new inspection framework to improve standards in hearing care proceedings involving three children. A father children's homes will take effect in April, Ofsted has of one of the children is Slovenian and does not speak or confirmed. read English. The court ordered that it was necessary for the court bundle of 591 pages to be translated into Slovene. The The new framework, published alongside Ofsted's cost was estimated at £23,000. An application was made to consultation responses, is intended to contribute to and refused by the Legal Aid Agency on the basis that improving standards in children's homes across the translation of all the documents would not be of benefit to country. Ofsted says that it puts the experiences of the most the father. vulnerable children at the heart of how homes are regulated and assessed. Sir James expressed no surprise at that decision. Following consultation with children's social care He quoted from his judgment in in Re X and Y (Bundles) professionals, the majority of the responses supported [2008] EWHC 2058 (Fam): Ofsted's proposals.

'Th[e] continuing failure by the professions to comply The consultation received 85 written submissions, with their obligations is simply unacceptable. Enough is supported by a number of well-attended regional events. enough. Eight years of default are enough. Eight years Ofsted consulted directly with children and young people are surely long enough for even the most casual about a number of specific issues, and piloted the new practitioner to have learned to do better.' inspection framework in nine children's homes.

And: From 1 April 2015, the inspection framework will include the following:

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Ÿ a judgement grade of 'requires improvement' that high risk of harm go to an A&E department because of their replaces the current judgement of 'adequate' where injuries – some as many as 15 times. homes require improvement to reach the benchmark of 'good' SafeLives is calling on every professional, like GPs, midwives, social workers, police and A&E staff, to ask Ÿ a judgement structure that takes into account the overall about domestic abuse every time they are worried, so that experiences and progress of children and young people families can get safe sooner. living in the home, with particular focus upon how well children and young people are helped and protected Diana Barran, SafeLives' chief executive, said: (key judgement); and the impact and effectiveness of leaders and managers "This is yet more shocking evidence that we could stop domestic violence far earlier than we do. Every Ÿ new evaluation criteria for the grades of 'outstanding', conversation with a professional represents a missed requires improvement' and 'inadequate' based upon opportunity to get victims and their children the help 'good' as the benchmark they need.

Ÿ if a children's home is not protecting children or "Time and time again no-one spots domestic abuse, even promoting their welfare, it will automatically be graded when victims and their children come into contact with 'inadequate' overall many different public agencies. It's not acceptable that victims should have to try to get help repeatedly. This Ÿ inspectors will take a risk-assessed approach to homes leaves victims living in fear and danger – and risks that have been judged inadequate, with the timing and life-long harm to their children. nature of the next visit based on concerns raised, their severity, and impact on children and young people. This "Every professional should help victims feel safe enough replaces the current policy to return for a full inspection to say what is really going on at home. That's why we're within 6 to 8 weeks. calling on every professional to ask about domestic abuse, every time they're worried - and to know the Debbie Jones, Ofsted's National Director for Social Care, right thing to do if victims tell them." said: SafeLives holds the UK's largest database of domestic abuse "Our new inspection framework aims to ensure that the cases, with more than 35,000 entries since 2009. SafeLives' most vulnerable children in our society are being well data shows that families live with domestic abuse for 2.7 cared for and protected. It will assess whether children's years on average. In the last year before they get effective homes are providing the best possible care, while help: improving children's life chances and helping them to successfully manage their lives as young adults. Ÿ 85% of victims were in touch with public services like the police, their GP or A&E – on average 5 times each. "We want to see homes that know and understand the And this is an underestimate as it does not include difference they are making in children and young contact with other professionals, like social workers or people's lives. It is critical that those with the most housing associations. complex needs are supported to have positive experiences and make progress. We want to celebrate Ÿ Three-quarters of victims reported the abuse to the those homes that are able to make this difference. We police. recognise that children and young people may have a range of different starting points but that will not stop us Ÿ 23% of high-risk victims and one in ten medium-risk having high aspirations for them." victims went to an A&E department because of their injuries. the new inspection framework is here. The consultation responses are here. According to the charity there are 100,000 victims at high risk of murder or serious injury in England and Wales. Of the estimated 130,000 children living with domestic abuse, Professionals miss five opportunities more than 60% experience direct harm in addition to the damage done by witnessing the abuse of other members of to stop domestic violence their family.

Victims are living with domestic abuse for far too long, SafeLives has produced a short, practical guide for non- despite repeated opportunities to get them help, according specialists including GPs, nurses and midwives, teachers, to new SafeLives statistics . family support workers and drug and alcohol services. The guide will help professionals identify victims, ask the right Research published by national domestic abuse charity questions and act on the information. It is available here. SafeLives shows that victims suffer domestic violence on average for nearly 3 years before getting the help they need For an executive summary of the report, please click here. – and some will suffer more than 50 incidents in that time. For the full report, click here.

Worryingly, more than 85% of victims are in contact with professionals – on average five times – in the year before they get effective help. And almost a quarter of victims at

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Order prohibiting involvement of emotionally damaged by potentially hostile reactions children in political activities set aside from members of the public; ii) By way of order, that neither parent is to involve the A father who is a UKIP candidate has won an appeal against two youngest children actively in any political activity. a prohibited steps order that he should not involve his children in political activities. The father, in his application for permission to appeal the order, complained about the procedure adopted by the In Re A and B (Prohibited Steps Order at Dispute district judge, the lack of formality, the lack of notice, the Resolution Appointment) [2015] EWFC B16, HHJ absence of any examination of the factual basis, or the Wildblood QC, sitting in the Family Court at Bristol, heard necessity, for the order. that the order was made by a district judge at a dispute resolution appointment involving five children. The HHJ Wildblood QC, hearing the appeal, set out a number of prohibited steps order related to the two youngest children, difficulties relating to the case, including the lack of notice both under ten years of age. The father is the primary carer concerning the issue, the lack of opportunity to contest the of two of the older children and is a parliamentary mother's contentions concerning the children's candidate for the United Kingdom Independence Party. The involvement, the possible invasion of the Article 8 rights of mother is the primary carer of the three younger children father and children and the definition of the order itself. and holds different political views from those of the father. Each child spends significant amounts of time with the The judge determined that the decision of the district judge parent who is not the primary care of that child. was procedurally irregular and could not stand. He therefore gave permission to appeal and allowed the appeal. The order stated (inter alia): He directed that there be a rehearing of the issues that had been raised in the appeal before him. i) By way of preamble, that the court held the view that it is inappropriate for young children to be actively The judgment is here. engaged in political activities as they may be

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ARTICLES

Finance & Divorce Update February 2015

Jessica Craigs, senior solicitor of Mills and Reeve LLP

This month's Finance & Divorce Update is divided into two parts:

1. News in brief

2. Case law update

NEWS UPDATE

President opens new family court centre in East London On 22 December 2014 Sir James Munby, President of the Family division opened a new family court in Canary Wharf.

The 12 courtroom centre will deal with family work, including divorce, child contact, adoption and local authority child protection cases. It has been specially designed and equipped to support video-linked hearings in four of the courts for the benefit of vulnerable witnesses.

Sir James Munby said:

"The opening of the East London Family Court marks another vital step in the changes to the way family cases are dealt with in London. It will improve access to family justice for Londoners. I congratulate all who have worked so hard to bring it to fruition."

Baroness Deech criticises current system Baroness Deech, chair of the Bar Standards Board repeats her concerns that divorce law should be tougher on women. The Telegraph reports that the independent peer in the House of Lords believes that the current law sends out a "bad message" to young women namely that careers are unnecessary and they could just "find a footballer".

Baroness Deech is currently steering a private member's bill through the Upper House that would make prenuptial and postnuptial agreements binding. In 2014, the Law Commission proposed that pre-nuptial agreements become legally binding (subject to certain criteria).

Click here for the full article

Sir Paul Coleridge proposes tax breaks for long marriages The Telegraph reports that Sir Paul Coleridge proposes tax breaks at 'milestone wedding anniversaries' for married couples.

He is quoted as saying: "Increasing the tax allowance at five years, 10 years and so on would do two things – it would make clear staying together does not cost the state a penny while splitting up does and it would send a message to couples to stay together."

Research published previously by Sir Paul's foundation concluded that children whose parents were not married were twice as likely to suffer a family break-up as those whose parents were married.

Likely venue for the London and South East Centre: Bury St Edmunds The Ministry of Justice has provided more information about centralisation for divorce processing in England and Wales. When asked about the London and South East Centre, the reply was as follows:

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'Bury St Edmunds has been identified as the likely venue for the London and South East Centre but consultation has not been completed. If the current proposal is accepted implementation will not commence until 2015 because the Bury St Edmunds building is being refurbished and is currently unoccupied. Building works are expected to be completed in March 2015.

Bury St Edmunds was proposed as the divorce centre for the South East and London following a thorough review of the HMCTS estate, London and South East workload and resource availability. The Bury building was the most cost effective option, is a sufficient size and provides the greatest scope to improve the service delivered to court users.'

DWP reports child maintenance payments at an all-time high The number of absent parents who are now paying towards the cost of their children through the Child Support Agency (CSA) has hit an all-time high, thanks to tough enforcement rules now in place.

Nearly 9 out of 10 of non-resident parents within the CSA system are now contributing towards child maintenance to support their children, with help from the CSA.

Last year 184,090 active Deduction from Earnings Orders were in place, taking a total of £330 million directly from wage packets to help pay for the upbringing of children.

Click here for the full article

CASE LAW UPDATE

Y v Y (Financial Remedy - Marriage Contract) [2014] EWHC 2920 (Fam) An application by the wife for financial remedy orders involving the extent to which the wife was entitled to a full share of the marital acquest owing to a marriage contract the parties entered into under French law.

Background The parties were both French nationals who contracted their marriage under French law, opting for the separation de biens regime. As a matter of law, if the divorce proceedings were being determined in France, the contract would be binding.

The marriage lasted 22 years with Decree nisi in May 2013. The parties married in June 1991 after two years pre-marriage cohabitation. Three children were born during the course of the marriage. Two of the children were, by the time of the hearing adults and one, 15 years old.

The husband was 50 and the wife, 49. They began their relationship at the beginning of 1989. Within 6 months they had moved in together and were sharing a flat in Paris. Having married in June 1991 (when the wife was in the early stages of pregnancy), they spent a further four months in Paris before the husband moved to London in connection with his employment as a banker. Their son was born some three months later and the wife left France to join the husband in London. The current family home in West London was purchased at the end of 1998.

London was the family home throughout the course of the marriage. However, they retained significant elements of their French heritage and identities. Each of the children had a French education. The parties remain domiciled in France; H has a significant number of property investments in France and submitted tax returns to the French IRS; their family connections in France remained strong, and they retained an extended network of social ties within that jurisdiction.

The husband's case was that the wife's financial claims at the end of this marriage should be considered squarely within the context of a contrat de mariage into which the parties entered some 48 hours before their wedding in France ("the marriage contract"). It was a contract which contained a specific election by this couple of a property regime known as séparation de biens. Under French law, a marriage contract, once notarised, is absolutely binding on the spouses once the marriage is celebrated, save in very limited respects (none of which applied in this case). Its terms follow the spouses both during the subsistence of their marriage and in the event of its dénouement. In the absence of a specific election, spouses are deemed to have chosen the default regime of community property. If they do not wish to adopt that regime, they are obliged to enter into a marriage contract in order to adopt one of the alternatives defined in the French Civil Code.

In these proceedings, the husband argued that the choice of marital regime by the parties ought to be treated in the same legal context as a prenuptial agreement. Accordingly, in this jurisdiction, he contended, the marriage contract should be given central and magnetic prominence in determining the division of assets, excluding any assets accrued during the marriage. The wife sought a full share of the marital acquest.

At paragraphs 21 to 66 of her judgment, Mrs Justice Roberts provides the factual background to the parties' relationship and the circumstances when they entered the marriage contract.

At paragraph 67, Roberts J sets out her findings of fact in relation to the marriage contract. The judge concluded that when the wife signed the formal contract two days before their wedding, she understood that the contract would govern how the parties would arrange their financial affairs during the marriage. The wife's case that the marriage contract was sprung

www.familylawweek.co.uk Family Law Week March 2015 - 23 on her by the husband for the first time two weeks before the wedding was rejected. However, Roberts J found that the wife did not have a full understanding of the legal implications which would flow from a divorce at the time that she signed the marriage contract, nor the rights which she might be giving up in that event. In particular, the wife had no proper or informed understanding that "were the marriage to founder many years down the road and regardless of what their circumstances might be at the time, she would be confined to a financial outcome which resulted in a significant divergence of equality between the parties".

The existence of the contract was a relevant factor regardless of the wife's appreciation of the terms of the agreement. The judge grappled with the weight to be attached to the agreement. Reviewing the authorities, including Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, Roberts J considered it was difficult to see how " 'a full appreciation of [an agreement's] implications' (per Radmacher) will not, in almost every case, involve both a full understanding on the part of both parties as to (i) the nature and effect of the terms, and (ii) of the circumstances in which its implementation in a jurisdiction other than that in which it is made will, or might, affect the scope of any legal award or remedy which otherwise be available to one of the parties in the event of divorce. That does not mean that parties will need to seek advice on all possible permutations; such a result would be plainly absurd." On the facts of this case, the wife did not have all the information which was likely to have been material to her decision and/or that she intended that the agreement should govern the financial consequences of the marriage coming to an end.

Consequently, Roberts J concluded that the weight the court could legitimately attach to the existence of the marriage contract and the operation of its terms during at least part of this couple's marriage was to give full recognition to the principle that, with a cross-check as to the wife's needs, the non-matrimonial property owned by either of the parties should be excluded from any entitlement to share.

McHugh v McHugh [2014] EWCA Civ 1671 Court of Appeal's determination in financial remedies appeal as to the extent of the appellate court's jurisdiction where permission to appeal has only been granted on limited grounds

Background The parties' matrimonial finances were resolved at a final hearing before a District Judge. H's application for permission to appeal was refused by the District Judge, and by the Circuit Judge on the papers. Upon the application being renewed at an oral hearing, HHJ Caddick granted permission to appeal, limited to two grounds: the treatment of W's inheritance and the order for immediate sale of the family home.

Following the hearing of the appeal, H applied for permission to appeal to the Court of Appeal. One of the grounds was that evidence had not been given under oath. H was granted permission by Sir Robin Jacob who suggested that the appeal ought to be allowed by consent with an order for expedited retrial. When W refused to consent, the question as to the Court of Appeal's jurisdiction to hear the appeal arose.

It was held by the Court of Appeal that where permission to appeal is given on limited grounds it is not open to an appellant, nor another judge/court, to broaden the grounds. FPR 2010 PDA 30A para 4.21 is plain:

"4.21 If the appeal court refuses permission to appeal on remaining issues at or after an oral hearing, the application for permission to appeal those issues cannot be renewed at the appeal hearing (see section 54(4) of the Access to Justice Act 1999)"

Permission to appeal could be set aside where there was a compelling reason to do so. Lack of jurisdiction was a compelling reason (Athletic Union of Constantinople v NBA (No2) & Ors [2002] EWCA Civ 830). Permission to appeal was therefore set aside.

B v B [2014] EWHC 4545 (Mrs Justice Roberts) Cross-appeals by an appellant husband (H) and respondent wife (W) against parts of a raft of final orders made by DDJ Airey in the Central Family court on 2 July 2014.

The relevant parts of the order of DDJ Airey were as follows:

• The sale of the FMH (with specific provisions about "lotting" and the time of sale).

• Liabilities to be met from the sale proceeds with the balance being divided equally between them.

• Proceeds of sale from another property to be divided equally between the parties.

• Cash held in various bank accounts to be divided equally.

• Pension funds divided equally.

• Spousal periodical payments in favour of W on a joint lives basis at the rate of £6,500 per month.

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• Specific reference (by recital) in respect of the W retaining her contingent interest in her mother's property which came to her as part of the testamentary provision made by her late father under his Will.

At appeal, the total liquid assets available for division (excluding pension) had diminished to less than £90,000 if the FMH did not secure planning permission. Even if the permission was granted, the available liquid assets were unlikely to exceed £577,000. H appealed prior to the receipt of a sealed order. He challenged:

• The quantum of periodical payments;

• The retention of W of the inheritance;

• The sole conduct of the sale of the FMH (by W); and

• The division of the bank accounts resulting in a lump sum payment of £10,700 to W.

W issued a Respondent's notice whereby she sought to challenge the equal division of the balance of the net proceeds of sale of the FMH. She sought an uplift to reflect the finding made by the DDJ that H had a mortgage capacity of £340,000. She also sought to secure a periodical payments award of £100,000 in her favour. Finally, she indicated that she would be applying for permission to adduce fresh evidence in the appeal in relation to H's failure to comply with the lump sum orders.

Background The husband and wife were both aged 53 at the time of the final hearing. They had been married for 30 years and had two adult children, the younger of whom, aged 19 at the time of the final hearing, was still in university education and living with W. H had, for a significant part of the latter years of the marriage, worked in Dubai, where he had enjoyed a tax free income and various allowances. Although part of their married lives together was spent in Dubai, W returned to make her home with the children in England. H indicated throughout the trial that he wished to return to this jurisdiction to work as soon as it was financially viable for him to do so.

H's salary was £87,714 per annum and he was also paid an allowance in respect of accommodation (£38,000 per annum) and car expenses (£9,500 per annum). At least for the last two years, H had received a non-contractual discretionary bonus which had in the past year been £55,000. W had for many years been a mother and homemaker, albeit in recent years she had been involved in a local catering business which supplied her with an income of £6,000. The DDJ held H to have an "income or earning capacity" of £170,000 and W of £10,000 per annum.

The DDJ held that that the case turned fundamentally on an appreciation of the parties' respective needs and found there to be no reason for a departure from equality in relation to capital (including pensions) and income. He acknowledged that income of £82,000 per annum was less than W's needs but held that it was a fair amount.

Both parties sought permission to appeal and their applications came before Roberts J.

H sought to challenge a number of aspects of the order, but the only point on which he would be successful was in respect of periodical payments. Roberts J granted permission to appeal only on two grounds. First, that the DDJ had erred in treating H's housing and car allowances paid by his employer as income available to him to meet other outgoings, including spousal maintenance and second, that by treating all elements of H's remuneration package as available income, error in finding H had an earning capacity of £170,000 net per annum.

Roberts J commented that she would not necessarily have held the outcome to be inappropriate in a case where a husband had a conventional net income of £170,000 per annum. However, she held that the DDJ had failed to address the issue of liquidity and/or affordability in terms of cashflow and the element of H's income which would be available for discretionary spending and meeting W's income award. The DDJ had not tested the fairness of his award by notionally deducting the housing and car allowances from H's otherwise disposable monthly income.

On the subject of the treatment of H's bonus, Roberts J summarised the applicable principles contained in the cases of H v W [2013] EWHC 4105 (Fam), AR v AR (Treatment of Inherited Wealth) [2012] 2 FLR 1 and noted in particular the dicta of Eleanor King J (as she then was) in H v W:

'39. The proper approach would be for the District Judge to calculate a total figure for maintenance which covers what he finds to be her ordinary expenditure together with such sum as would provide for what Moylan J described as additional, discretionary, items which will vary from year to year and which are not reflected in her annual budget. Having carried out this exercise the court will then make a monthly order to be paid from salary at whatever rate the District Judge feels to be fair, and the balance to be expressed as a percentage of the net bonus up to a stated maximum each year.' and that of Moylan J in AR v AR:

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'[71] … in my judgment the court's task when addressing this factor is not to arrive at a mathematically exact calculation of what constitutes an applicant's future income needs. It is to determine the notional annual income which, in the circumstances of this case, it would be fair for the wife to receive. Further in a case such as this the wife is entitled to have sufficient resources to enable her to spend money on additional, discretionary items which will vary from year to year and which are not reflected in her annual budget …..'.

Roberts J held that, disregarding the housing and car allowance resulted in the fair level of maintenance to be paid by H to W being £42,000 per annum, plus 25% of H's net bonus receipts in any one year, and therefore substituted this amount for the original amount of £78,000 per annum.

Roberts J refused permission to W to appeal the award in respect of capital. She argued that the equal division had not enabled her to purchase a suitable home. She was not satisfied that there were sufficient prospects of W succeeding in persuading the court that an equal division was unfair. Both parties would have to recalibrate their expectations in respect of the accommodation they could afford.

W also sought permission to appeal the DDJ's refusal to order security for the periodical payments. She had sought a charge over £100,000 of the proceeds of sale of the FMH as security. Roberts J refused permission to appeal, holding that the DDJ had an "unfettered discretion" as to whether or not to accede to W's request for security and he had given reasons for rejecting her application.

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“Nowadays not all law can be simple law; but the best law remains simple law”

Christopher Hames and Dorothea Gartland, both of 4 Paper Buildings, and Nina Hansen, partner of Freemans Solicitors

The title of this article is derived from the words of Wilson LJ as he then was at §53 of his judgment in P-J (Children) [2009] EWCA Civ 588 [2010] 1 WLR 1237] and was cited by Black LJ with approval in her judgment (at §13) in Re M (Republic of Ireland) (Children's Objection) (Joinder of Children as Parties) [2015] EWCA Civ 26.

The decision from the Court of Appeal in Re M looks afresh at the child's objections defence under Article 13 of the Hague Convention 1980 and gives clear guidance on how to approach this in all cases at first instance.

From now on consideration of a child's objections defence is definitively the straightforward two part approach: 1) a gateway test in respect of objections and then 2) the exercise of the court's discretion, taking into account the relevant factors in each case.

The facts of the appeal Four children were taken by their mother from the Republic of Ireland to England without their father's consent in May 2014. The father issued Hague proceedings for the summary return of the three youngest children. At first instance no application was made for any of the children to be joined. The mother's defence was put forward under Article 13(b) on the basis of a grave risk of harm to her if return was ordered and / or in the alternative on the basis of the children's objections.

The judge ordered the children's return on the basis that neither defence had been made out. The two eldest children (aged 16 and 12) then sought permission to bring an appeal against this decision and were given permission to do so by Black LJ. The substantive appeal hearing was in November 2014.

At the appeal the Court was dealing with two issues: 1) the substantive challenge to Mrs Justice Roberts' return order; and 2) the procedural question relating to joinder of children as parties for the first time in the Court of Appeal.

Black LJ gives the judgment of the Court which also comprised Richards and Ryder LJJ. The appeal against the return order was successful. What follows is an all-encompassing judgment considering the law over the last two decades in relation to the issue of a child's objections under the Convention. The judgment is here.

The second part of the judgment deals with the issue of joinder of children as parties at the appeal stage of proceedings. This is a matter that last year the Court of Appeal, comprising Black, Richards and Vos LJJ, in Re H (Jurisdiction) [2014] EWCA Civ 1101 explained it wished to address in an appropriate case (see §11-§14 of that judgment).

The traditional approach to the child's objections exception Black LJ explains that traditionally the approach in England and Wales is to break the matter of objections down into two stages: the "gateway stage" and the discretion stage. If a judge finds a) the child objects to being returned, and b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views, then the gateway stage is passed. The court then moves on to consider different factors in weighing up how to exercise its discretion.

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Having carefully considered the views of the House of Lords in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 and in Re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55,Black LJ explains that it is now settled law that since Re M once a ground for opposition to return has been made out, the court moves onto the discretion stage and that there is no requirement that a case be "exceptional" (cf §40 Re M). Once objections are established, the discretion stage that follows is at large for the judge.

In respect of the gateway stage Black LJ explains that the following matters are now firmly established:

i. Whether a child objects to being returned is a matter of fact.

ii. There is no fixed age below which a child's objections will not be taken into account.

iii. A child's views have to amount to objections (preferences are not objections and 'preferences' are a useful way of summarising views falling short of objections).

iv. The objection has to be to returning to the country of habitual residence.

v. Objections themselves are not determinative.

The Re T approach is unhelpful Black LJ expressly disapproves of the Court of Appeal's alternative approach to consideration of a child's objections as set out in Re T [2000] 2 FLR 192 (and more recently in Re K [2010] EWCA Civ 1546). This approach is described by her as a 'highly technical, structured, approach'. The appendix to this judgment sets out the approach in Re T and a link is provided to the appendix here.

The judgment of Wilson LJ (as he then was) in Re W [2010] EWCA Civ 520 is cited as supporting the simpler approach to objections and §22 of the judgment is cited in full with Black LJ concluding "that Wilson LJ was, at the very least, distancing himself from the Re T approach."

How the court should approach the child's objections exception in practice from now on Black LJ states at §76:

"The starting point is the wording of Article 13 which requires, as the authorities which I would choose to follow confirm, a determination of whether the child objects, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and what order should be made in all the circumstances."

The Court emphasises that an over-intellectualised or overly prescriptive approach when giving consideration to the "gateway stage" in a child's objections case is being discouraged. Four short examples of how to approach the gateway stage are given which envisage the relevant child's objections not being established:

i. Where it is established that a child is merely parroting the views of a parent and does not personally object at all;

ii. Where because of age or stage of development, the child does not have the level of understanding looked for before reaching a conclusion that the child has a degree of maturity appropriate to take account of his/ her views;

iii. Where the objection may not be an objection to the right thing;

iv. Where the objection may not be an objection at all, rather a wish or a preference.

The case at first instance had proceeded with what Black LJ describes as a "careful exploration in cross-examination of whether the children's objections were the product of influence or manipulation by the mother". The judge at first instance did not find this to be so.

The principal error in the first instance judgment was in ascribing the views of the children to a return as preferences rather than objections given the circumstances in which they had communicated their views to the Cafcass officer. The appeal court found that the children in this case were clearly objecting to a return and were of an age where their views should be taken into account.

Black LJ explains that this was a case in which the children's objections to return were inextricably linked with their strong feelings about their father. The judge at first instance had found that the protective measures available to the children and mother in Ireland would be sufficient. Black LJ disagreed with this in particular, having regard to the second appellant child in the proceedings and his visceral fear of his father. In Black LJ's view the protective measures available "might well not address the children's fears quickly enough or at all." (§123).

In summary, Black LJ concluded that the first instance judge had not given sufficient weight to the children's feelings (which were clearly objections), about a return to Ireland in a case where those feelings 'weigh heavily' against a return when going on to exercise judicial discretion. The youngest child in the proceedings, I, was only 6 years old and Black LJ

www.familylawweek.co.uk Family Law Week March 2015 - 28 does not determine her position in the context of her objections but instead does so on the basis that if none of her brothers are returning then to force her to do so would place her in an intolerable situation (§137).

The joinder of children as parties to an appeal This case was unusual in that the issue of the children's joinder was not considered at first instance at all. It was only at the appeal stage that the two eldest children made the application to appeal against the return order for the three youngest siblings before Black LJ.

The Court of Appeal emphasises that as a result of this decision, practitioners should not expect "that an application for children to be involved in proceedings, either as appellants or respondents, for the first time in the Court of Appeal will be received sympathetically." (§156).

At first instance rule 12.3(1) of the FPR 2010 applies, and in Hague proceedings this can include: "any other person who appears to the court to have sufficient interest in the welfare of the child." The Court did not determine whether or not rule 16.2(1) FPR 2010 (which provides: "The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so.") applies only to the joinder of children who are the subject of proceedings, and so it falls to be dealt with on another day.

In respect of a party seeking permission to appeal when they were not a party to the proceedings below pursuant to CPR 52.1(3)(d) the case of George Wimpey Ltd v Tewkesbury Borough Council [2008] 1 WLR 1649, as referred to by Lord Wilson at §11 of In the matter of LC [2014] UKSC 1 [2014] AC 1038 (Re LC), is cited here with approval.

However as Black LJ explains, in Re LC in the Supreme Court and in Re D in the House of Lords, Lord Wilson and Baroness Hale dealt with the participation of children as parties to abduction proceedings at first instance. This case therefore is the first time the Court of Appeal has expressly considered the issue of joinder of children at an appeal stage under the CPR 1998 (as the FPR 2010 do not apply).

Whereas rule 16.2 of the FPR is based on a best interests test in order to determine whether or not a child should be made a party to proceedings, Black LJ explains that there is no equivalent provision in the CPR and suggests therefore that, whilst not strictly applicable, regard can be had to Practice Direction 16A of the FPR and the analysis of it offered by Lord Wilson on Re LC at §§50 onwards is adopted in full, thereby ensuring best interest considerations are included in any decision concerning a child's party status at the appellate stage.

The other key difference between the FPR and CPR is that there is no equivalent provision under the CPR for the court to require or permit a guardian to be appointed for a child. The Court's view is that in general practice in this type of case, the appointment of a litigation friend for a child should provide adequate protection under CPR 21.

The key difference between representation of a child via a litigation friend rather than by a guardian is that the litigation friend cannot provide a welfare assessment. However as Black LJ concludes the judgment, giving an opinion with which we agree, in the vast majority of cases, the appointment of a litigation friend (many of whom are amongst the most experienced solicitors at this type of work) will adequately protect and meet the child's interests on appeal as happened on appeal in this case.

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Schedule 1 to The Children Act 1989: Not Just for Wags

Anita Mehta, barrister of Crown Office Row, Brighton

Whenever applications pursuant to Schedule 1 to the Children Act 1989 ("Schedule 1") are mentioned, many of us immediately think of footballers, the millionaire's defence, and fleeting relationships but what of families with unmarried parents who have modest assets?

Most unmarried parents seeking provision for their children are unlikely to be familiar with Schedule 1 and so, their minds are more likely to turn to the Child Maintenance Service ("CMS"). Any lingering confusion as to whether there was an overlap of CMS and the Court's jurisdiction to order child support payments was clarified by Holman J in Dickson v Rennie [2014] EWHC 4306 (Fam) in which Holman J held that the Court's power to order top-up maintenance is only available where the CMS has assessed that the payer's income exceeds the maximum maintenance assessment of £3,000 gross per week.

Schedule 1 applications, however, are not restricted to periodical payments. In addition to the Court's power to make an order for periodical payments or secured periodical payments, the Court has the power to order a lump sum, transfer and settlement of property. The Court's power also extends to making orders for periodical payments and lump sum for children over the age of 18 in full time education or where special circumstances i.e. disability exist.

According to the recent Office for National Statistics data released last week, the fastest growing family type over the last decade is cohabiting couples both with and without dependant children. Further, the types of families in which dependant children live have changed significantly over the last decade. In 2004 11% of children lived in such families which rose to 14% by 2014, whereas over the same period the percentage of children living in a married couple family fell by 3% to 63%. It has been beyond the writer's reach to persuade any Court Centres to provide statistics for applications made pursuant to Schedule 1 in recent years. Therefore, anecdotally, the writer would suggest there does not appear to have been similar growth in the number of Schedule 1 applications to match the growing number of families where parents do not have recourse to the Matrimonial Causes Act 1973.

Published judgments on Schedule 1 applications have, traditionally, concerned big money cases where the father's assets hugely exceed needs. However, there are now examples where the Court has considered applications where the father does not have sufficient assets to comfortably meet both his own needs and those of the child. A conundrum that Courts are, of course, very familiar with in cases where the parties have been married.

Though not listed as a factor on the checklist that the Court has to consider in an application under Schedule 1, it is well established that a child's welfare has an important role to play in the Court's determination. Lord Justice Thorpe made this clear in Re P (Child: Financial Provision) [2003] EWCA Civ 837 when he said, 'I would only wish to amplify by saying that welfare must be not just 'one of the relevant circumstances' but, in the generality of cases, a constant influence on the discretionary outcome'. Has the time come for lawyers to take a more robust view of the possibilities of a Schedule 1 application? Is there greater scope than previously thought for Courts to be asked to prioritise a child's needs over those of their parents?

Cases: the wider application of Schedule 1 In DE v AB [2011] EWHC 3792 (Fam) at the time of the hearing before the District Judge the mother was earning £60,000 per annum plus commission but was reliant on Job Seeker's allowance by the time of the appeal. The mother's home had equity of £98,000 but she had liabilities of £111,385 i.e. she was in debt to the tune of £13,385. The father had previously been a city trader but had been made redundant in 2004 with a redundancy package of £952,000. After a three-year sabbatical, and some rather grand spending, all he had was the equity in his home of £358,000. The District Judge calculated the father's earning capacity to be around £100,000 per annum.

On appeal, Baron J, sitting in the High Court, upheld an award of £250,000, in reversion, for a housing fund. Baron J found that the figure awarded as a housing fund was 'completely unappealable' but she reduced the lump sum awarded to be paid

www.familylawweek.co.uk Family Law Week March 2015 - 30 towards the mother's debts to £40,000. Thus, the father paid £290,000 which was 81% of his assets, to the mother albeit only about 11% was transferred outright. Whilst that percentage is not unheard of in applications under the Matrimonial Causes Act 1973, this order was made pursuant to Schedule 1.

Whilst this case had a twisted tale with further appeals and hearings, the most important aspect, for these purposes, was that the mother later established that the father had sold an enterprise through a company for £111,000 before the original proceedings but had failed to disclose it. As a result, the father was ordered to pay a further lump sum of £80,000; of which £20,000 was for provision for the child, the £45,000 lump sum was restored with interest and the mother's costs of that appeal of £11,000. The overall percentage is therefore around 79% not including the costs awards.

This case is the best example the writer can find of a reported authority of a Schedule 1 application where a high proportion of a father's assets was ordered to provide for a child. The District Judge found at trial that neither of the parents could afford to maintain their homes and they would have to be sold eventually anyway but the effect of the order meant that the father would be compelled to sell his home. Thus, it is a clear example of the Court putting a child's need for secure housing above the parent's needs.

A further example of an order under Schedule 1 being made in a non- big money case is Re M-M (A child) [2014] EWCA Civ 276. In this case, the mother owned her own home and had been caring for the child on state benefits in the UK as a single parent. Thus, the mother's claim was not to provide a house but for a lump sum which would include payment of her significant credit card debts and repairs to her home. The father worked for an investment company in Geneva and as a result was outside of the jurisdiction of what was the Child Support Agency. The Court made orders in respect of periodical payments but the part of the order that is of interest for the purposes of this article is how the Court dealt with the claim for the lump sum. The father owned his own property subject to a mortgage and had £137,000 in a bank account and a further £60,000 in a long-term investment. The father had subsequently married and at the time of the hearing had three young children with his wife.

The Court of Appeal heard cross-appeals from the parents in respect of the first instance decision. The Court upheld the order of a lump sum of around one-third of the father's available capital to clear the mother's hard debts:

'34. The judge was required to have some regard to the husband's financial resources and the standard of living of his family and the three children who live with him. Equally, his capital resources had a limit to them. In exercising her discretion, and in seeking to achieve an outcome which was fair, just and reasonable, the judge had to balance these factors. She did so by targeting the entirety of her order at the credit card debt with no additional payment of a lump sum directly to the mother. The payment made, however, represented almost exactly a third of the capital that was readily available to the father at the time.'

Inevitably, the order would impact on the lifestyle the father would be able to provide for the children of his marriage as his case was that he occasionally had to dip into his capital. Whilst this order may appear not to be as extreme an example as DE v AB, on this occasion the Court was balancing the competing needs of children. Moreover, as the money was a lump sum to repay the mother's debts (unlike a housing fund) it obviously would not revert to the father in the long term. The writer suggests it is another example of the Court prioritising the needs of the child over the parent.

These cases are an example of a lump sum and settlement of property being made where assets are more modest and do not exceed needs. The point is the size of the award takes into account the father's resources (unless the father has so much money that they can utilise the millionaire's defence) and authority tells us that the father's standard of living is relevant to the size of the award. Thus, in more modest cases, it is argued, orders can still be made but no doubt the nature and size of the award will reflect the more limited pot that is available.

Practical guidance An order pursuant to Schedule 1 can be made against a 'parent' on the application of a parent, guardian, special guardian or any person in whose favour a residence order is in force. 'Parent' is defined as being the biological parent or other persons who are parents by operation of the law. Of course, though the circumstances may be rare in cases of more limited means, nothing would preclude a formerly married parent from bringing an application. At present, an application is made using Form A1 and then parties are required to complete Form E1. However, the indication from the President and the recommendation contained in the Final Report of the Financial Remedies Working Group are that there should be a unified procedure for all financial remedies, so practitioners are likely to see the introduction of a new Form in due course.

The Court's discretion in deciding whether and how to exercise its powers is guided by a six-point checklist set out at section 4(1) of Schedule 1 which has parallels with, but is narrower than, s.25 of the Matrimonial Causes Act 1973. The Court must have regard to "all the circumstances of the case" including:

(a) the income, earning capacity, property and other financial resources which each person mentioned in sub- paragraph (4) has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

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(c) the financial needs of the child;

(d) the income, earning capacity (if any), property and other financial resources of the child;

(e) any physical or mental disability of the child;

(f) the manner in which the child was being, or was expected to be, educated or trained.

Thorpe LJ sets out the approach to these applications in big money cases in Re P. The Court will make a broad-brush assessment to determine the quantum of the claim: 'it is not for the court to specify the precise amounts of each category of the claim, but to take an overall sum to make provision for the components that are referred to'. That approach also appears to be good law for cases involving more modest assets despite May LJ's obiter comment in Re P that Thorpe LJ's expressions were unlikely to apply to cases where the available assets were smaller. Certainly, Baron J considered the District Judge was correct to take a broad-brush assessment of need without auditing the claim in DE v AB.

In big money cases, Re P prescribed that the Court will first consider the appropriate home for the child; usually the order will be that the home reverts to father when the child reaches their majority. The Court will then consider the appropriate lump sum required to furnish and equip the home and the cost of a family car before considering the budget the mother requires in maintaining the home and meeting other external expenses.

In the types of cases this article is concerned with, there may still be the possibility of an order for settlement of property with the mother supplementing the property purchase with her own funds or a mortgage. In DE v AB the mother was not precluded from supplementing the housing fund of £250,000 by way of a mortgage so long as father's investment was not put at risk. The customary use of mortgage capacity and property particulars in financial remedy cases can be adopted. Note, that if the mother chooses to cohabit or marry it would be unlikely to disrupt a settlement of property so long as the child still lived with the mother, although it would have an affect on any income provisions as per Singer J in F v G (Child: Financial Provision) [2004] EWHC 1848 (Fam).

Despite the use of a broad-brush assessment, in respect of lump sum provision in cases where the assets are more limited, the writer would suggest obtaining evidence in support of more expensive items of expenditure. The Court may make more than one lump sum order or an order for payment of a lump sum by way of instalments but lump sum Schedule 1 orders cannot be used to supplement child support by the backdoor. The lump sum can be claimed for liabilities or expenses reasonably incurred, in connection with a child, before the making of the order.

No doubt part of the reluctance to pursue these claims in cases where resources are limited is the risk of costs. The general rule for Children Act 1989 applications that there is no order as to costs does not apply to Schedule 1 proceedings. Thus the most important practical guidance is to protect your client's position on costs. See KS v ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam) for guidance on costs in Schedule 1 cases. Mostyn J indicates the starting position 'In Schedule 1 proceedings the Court should in my opinion start with a 'clean sheet'' and reminds practitioners 'that protection in respect of costs can be achieved by making a Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586, (1975) FLR Rep 113 offer'.

Note that there are now standard orders specifically for Schedule 1 applications.

Conclusion In light of recent social and demographic trends, property rights of unmarried couples and child maintenance has been the focus of much comment and debate. This article has sought to demonstrate that Schedule 1 has far wider reach than big money cases. These orders are part of the Family Court's welfare arsenal after all and so perhaps the time has come for practitioners to become more robust and challenging with these applications to assist clients in meeting the needs of their children.

The writer thanks Camilla Wells of Crown Office Row, Brighton for her assistance with this article.

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The Rise and Rise of Damages in Human Rights Claims

Julie Stather, barrister, Westgate Chambers

The world of family law is becoming more litigious. The Human Rights Act of 1998 which caused so much consternation to practitioners when it first became law turned into what was widely regarded as a damp squib. However, the squib is now rather more incendiary. The recent decisions in H (A Child - Breach of Convention Rights - Damages) [2014] EWHC 38 and Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam) highlight the increasing willingness of the court to award damages where care proceedings have involved a breach of any of the parties' human rights. This article examines the route to bringing claims for damages for alleged breaches of human rights in public law proceedings, some examples of cases where awards have been made, and the likely quantum of damages in the event that they are awarded.

The procedure for bringing a claim under the Human Rights Act 1998 Perhaps the best judicial guidance as to how to launch a claim for a breach of human rights was given by Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam). In that case the mother sought, amongst other things, a finding that the local authority's care plan for adoption was unlawful, and an order compelling the local authority to conduct concurrent searches for a long term foster placement and an adoptive placement. The mother's case was that the current care plan, and the manner in which arrangements were being made to implement that plan whilst proceedings were ongoing, constituted a breach of her Convention rights. Those applications were transferred to the High Court whilst the substantive proceedings remained in the family proceedings court (as it then was). Munby J, on dealing with the application, took the opportunity to provide guidance for what he saw as the likely increase in parents seeking to rely on Convention rights in care cases. He identified four possible jurisdictions in which such a claim could be launched:

1. The statutory jurisdiction under Part IV of the Children Act 1989, under which the three tiers of court at that time (the family proceedings court, the county court, and the Family Division of the High Court) all had identical powers.

2. The inherent jurisdiction recognised by s100 of the Children Act 1989 which would normally be exercised by the Family Division of the High Court.

3. The supervisory jurisdiction by means of judicial review exercised by the Administrative Court.

4. The jurisdiction under sections 7 and 8 of the Human Rights Act 1998 to grant relief where a public authority has acted unlawfully as defined by s6(1) of that Act.

The judgment dealt succinctly with the statutory and inherent jurisdictions, stating that neither gave the courts power to compel a public authority to exercise its discretion to put into place a particular care plan. As to judicial review, Munby J indicated that this was a possible route but that it would achieve little in that the Administrative Court had the power to quash an unlawful care plan, but not to substitute its own care plan (Re L (Care Assessment: Fair Trial) [2002] EWHC 1379 (Fam)). The Administrative Court under judicial review was said to be a remedy of last resort, a blunt tool whose effect was only to direct local authorities to reconsider the care plan. Later in the judgment Munby J refers to Re C (Adoption: Religious Observance) [2002] 1 FLR 1119 in which Wilson J refuses an application for judicial review stating that the likelihood of a local authority's declining to act on a court's views about a proposed care plan was very low (the last instance having been in Re S and D (Children: Powers of Court) [1995] 2 FLR 456), and that it is only at the point of impasse, of outright refusal of the local authority to amend a care plan, that judicial review should be contemplated.

The fourth option, a claim under the Human Rights Act 1998, was approved by Munby J as being the appropriate method of seeking the relief sought by the mother.

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The statutory scope of the protection and remedies which implement the Convention rights in UK legislation is made very clear in the 1998 Act.

Section 7(1) sets out the parameters of the protection of the Act:

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s6(1) may-

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act."

Sections 6(1) and 6(6) of the Act define an unlawful act as an act or failure to act which is incompatible with a Convention right.

Section 6(3) defines a public authority against which proceedings can be brought as including a court or tribunal.

Finally, s8 sets out the remedies for a breach of the Convention rights:

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may only be awarded by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including - (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour the order is made.

(4) In determining - (a) whether to award damages, or (b) the amount of the award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."

Returning to Re L [2003], Munby J began his guidance on claims under the 1998 Act by considering the manner in which they should be brought before the courts. In essence he states that the timing of the application determines the place of issue. Where proceedings are ongoing (ie at any point before the making of the final order), an application should be made under s7(1)(b) within those proceedings. He made clear that any court including, as in this case, the FPC as it then was, has jurisdiction to hear the application and indeed must hear that application to fulfil its own duty as a public authority not to breach the applicant's Convention rights. Here again Munby J relied on Wilson J in Re S and D [1995] drawing the analogy between a judicial review application being brought separately to the substantive application in that case, with the possibility in this case of making a separate application under the Human Rights Act whilst the case is still live. Quite apart from the delay occasioned by running two separate applications (that point now being of crucial importance in the 26 week world), Wilson J in Re S and D [1995] made the point that to bring proceedings merely to consider the "bare lawfulness" of an issue was wrong when the real function of the court was to consider the welfare of the child based on the full merits of the case. These comments are, of course, limited to situations in which the remedy sought is a change of care plan either in whole or in part, and do not assist on the issue of damages, but they have made it abundantly clear that where a case is ongoing, any subsidiary applications should be brought within those proceedings.

Where the proceedings have ended and a final order has been made, the court has jurisdiction to hear separate claims issued under the 1998 Act by virtue of s7(1)(a). In discussing which is the appropriate court or tribunal for the purposes of s7(1)(a), although such claims could have been brought in the county court or High Court as they then were, Munby J relied on the then President (Butler-Sloss P) in C v Bury Metropolitan Borough Council [2002] EWHC 1438 in advising that they should be heard in the Family Division of the High Court and preferably by judges with experience of sitting in the Administrative Court.

Munby J then concludes his judgment in Re L [2003] with a list of procedures to encourage good practice and minimise delay. These are summarised as follows:

1. Claims under the 1998 Act should be heard within the proceedings, whichever court that may be in. There is no need for any separate or free-standing application.

2. The raising of a human rights argument is not sufficient for the case to be transferred from the then FPC or county court. Only genuinely novel or complex human rights points will require to be dealt with in the High Court.

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3. Human rights points should be raised at the earliest opportunity. If a transfer to the High Court is required, the transfer of the whole case (rather than that issue alone) should take place as soon as that need is identified.

4. Where a claim under the 1998 Act is issued after the substantive proceedings have concluded, this should be issued in the High Court.

5. The inherent jurisdiction is not the appropriate vehicle by which to argue human rights claims.

As early as 2002 therefore, Munby J was setting out that claims under the 1998 Act should be handled in the most simple, streamlined and time efficient manner: arguments should be raised at the earliest opportunity and heard within the substantive proceedings. The input of the High Court was reserved for those few cases involving novel points which required the entire case to be transferred across, and for cases in which a separate 1998 Act claim was brought after the making of the final order.

Damages for breaches of Convention rights The first reported instance of damages being litigated in the UK courts is in the Court of Appeal in V (A Child) [2004] EWCA Civ 1575. In that case the breach was a failure of the social worker to set out clearly for the parents before the birth of their child what was expected of them. This was argued as a claim under Articles 6 and 8 at first instance, and the judge, having found the breach of Article 6 made out, went on to award damages of £100 to each parent. He arrived at that sum because he found that the outcome of the case was likely to have been the same whether or not the breach had occurred, but he awarded nominal damages to mark the fact of the breach. The local authority appealed the decision, and Thorpe LJ in the leading judgment labelled it "truly startling". The Court of Appeal held unanimously that the entire proceedings needed to be assessed for fairness when considering whether they were compliant with Article 6, and that examining an act or omission in isolation to see whether it constituted a breach was wrong. The appeal was therefore successful in that there was found to be no breach and therefore no damages were awarded. Holman J in that case warned that courts should pay very close attention to the provisions of s8 of the 1998 Act before considering the award of damages, because the restrictions set out within that section render the occasions upon which monetary sums are appropriate to meet the justice of the case "very rare indeed".

In Re C (A Child) [2007] EWCA Civ 2 damages were considered and found not to be necessary to provide just satisfaction of the claim. In that case a mother and child had been placed together under a final care order in a foster placement. There was an agreement that the child would be removed only in the case of an emergency or in the event of a general failure to progress in which case clear warnings and opportunities for change would be given. Sadly progress was not made, and although a written warning was given, the situation continued to deteriorate until the placement reached breaking point. At that stage the local authority held an in-house meeting at which it was decided to terminate the placement, and the child was removed the following day without warning to the mother and when she was not present (although it is important to note that her solicitors had been informed). The mother made an application for, amongst other things, the discharge of the care order. That application was dismissed by the county court, and in closing submissions the mother's counsel sought to rely on breaches of Article 8. The judge, whilst critical of the local authority, held that the mother was not entitled to relief under the 1998 Act because she had not issued a claim nor had she complied with the Family Proceedings Rules.

The mother appealed the substantive decision not to discharge the care order and issued various applications including one under the 1998 Act for an order compelling the local authority to return the child to her care under a rehabilitation plan, or to grant such other relief as it thought to be just. The Court of Appeal refused permission to appeal and transferred the remaining issues, including the 1998 Act application, to the High Court. The applications were heard by Hedley J. He determined that whilst the removal of the child had been essential, there had indeed been a significant procedural breach in making the decision to abandon the rehabilitation plan without the input of the mother. He then went on to consider what the remedy should be and concluded that the declaration that there had been a breach was sufficient to deal with the mother's claim justly. He stated that his reasoning was "partly" that the concept of damages did not "sit easily" with the welfare jurisdiction of family law, and therefore no monetary compensation was required to provide just satisfaction of the claim. The mother appealed the decision not to award damages, and Thorpe LJ gave the leading judgment in the Court of Appeal. He used his judgment to set out the type of breaches for which damages may be awarded. He relied on the report of the Law Commission No 266, Cm 4853 entitled "Damages under the Human Rights Act 1998" presented to Parliament in October 2000 in which the Strasbourg approach is set out at paragraph 6.159 onwards:

"In a number of cases, violations of Article 8 have been concerned with the taking of children into care by public authorities. In these cases, it is the manner of the decision, rather than the justification for the decision to place the children into care, which is the subject-matter of the dispute. For example, the Court has found violations of Article 8 on account of the undue length of proceedings, or for insufficient involvement of the parents in the decision-making process. As has been noted, these cases seem to form a distinct category. The applicants, who are usually the parents of the children in question, have generally been successful in recovering substantial damages. In making such awards, the Strasbourg Court has acknowledged the considerable distress and in some cases the loss of opportunities suffered, and has shown a greater willingness to speculate than in other types of case. The Court has been prepared in some cases to compensate the applicant for a 'loss of relationship' with his or her child."

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Thorpe LJ was clear that the breach was purely procedural in that the mother had not been involved in the decision making process, and it was a breach that he could not categorise as significant given that the evidence strongly suggested that the mother did not have the capacity to participate at the material time. In his consideration of damages, Thorpe LJ added that the mother's emotional difficulties and suffering were likely to be been caused by the fact of the removal itself rather than the fact of not being involved in the decision making, and that it was impossible to state that any injury to her wellbeing was caused by the lack of involvement. Indeed many of her concerning presentations were evident prior to the removal and in fact were contributory factors in the decision to remove. Having reached those conclusions, he found that the declaration of a breach of rights was sufficient to meet the justice of the case and that an additional financial reward was not therefore necessary. Wilson LJ, concurring with Thorpe LJ, stated that there was no loss of real opportunity occasioned by not being involved in the decision making process as the outcome was highly likely to have been the same, and that it was impossible to apportion any part of the mother's anguish to that lack of involvement, given her considerable emotional difficulties at that time.

In Coventry City Council v C, B, CA, CH (neutral citation CA (A Baby) [2012] EWHC 2190 (Fam) ) damages for breaches of Article 8 were approved by the court, having been negotiated by the parties before the commencement of the hearing. This is one of the first recorded decisions of a domestic court in which damages have been awarded, and unfortunately there is very little in the judgment about the reasoning. The claim for damages was made because the mother's consent to s20 was obtained after a very difficult and life-threatening birth and after she had been given morphine. The preamble to the agreed order set out that s20 consent should not have been sought when it was, and that removal was not in any event proportionate to the risks which existed at the time. It must therefore follow that the actions of the local authority were unlawful. The local authority admitted breaches of Article 8, the parties agreed the quantum of damages to provide just satisfaction of the claim in line with s8(3) of the 1998 Act (the amount not being specified in the judgment), and the court specifically approved the settlement of the claim.

The judgment in the recent decision in H (A Child - Breach of Convention Rights - Damages) [2014] EWFC 38 sets out in full the application of the 1998 Act to the new family court system, and examines in detail the issue of damages and quantum. The judgment was given by HHJ Bellamy sitting as a Deputy High Court Judge. The case concerned the removal of a child from hospital under s20 from parents with learning disabilities. The unfortunate circumstances of the removal were compounded by the fact that the case was beset with significant delay on the part of the local authority (by way of example, proceedings were issued almost a whole year after the birth), and by the later overwhelmingly positive assessment of the parents. When the matter came before the court the threshold was agreed, as was a twelve month supervision plan with rehabilitation to the parents. The local authority admitted 14 breaches of Articles 6 and 8 which can be summarised as follows: its failure to explain to the parents the legal nature of the child's placement out of their care and the consequences of not agreeing to it; its lack of examination of the parents' ability to understand and give consent to an agreement for the child to be removed; its allowing significant delay and uncertainty in the assessment process; and its allowing the child to be cared for away from her parents against their expressed wishes, without an order of the court, and thereby depriving at least the father of the experience of living with his child for the first year of her life. The local authority made these concessions, which became declarations of the court, and the disposal of the matter was agreed. All that was left for the court to decide was the issue of whether damages should be payable to the parents in just satisfaction of their claim. The local authority objected on a number of grounds which HHJ Bellamy dealt with in turn:

1. It was said that the relatively newly established family court did not have jurisdiction to award damages. HHJ Bellamy relied on Munby J in Re L [2003], Wall LJ and Holman J in Re V (A Child) [2004], and Hedley J in CA (A Baby) [2013] for authority that claims, including those for damages, under the 1998 Act should whenever possible be brought within existing proceedings under s7(1)(b) of the 1998 Act. He then relied on s31E of the Matrimonial and Family Proceedings Act 1984 (as inserted by para 1, Schedule 10 to the Crime and Courts Act 2013) which provides that:

(i) "(1) In any proceedings in the family court, the court may make any order:

(a) which could have been made in the High Court if the proceedings were in the High Court, or

(b) which could have been made in the county court if the proceedings were in the county court."

(ii) Clearly, the county court can award damages in civil proceedings, and HHJ Bellamy therefore found that the Family Court had power to award damages.

2. The local authority attempted to argue that the applicants had not followed the process set out in the Civil Procedure Rules 1998, but HHJ Bellamy dismissed this on the basis that the parents had followed the correct procedure as set out in Rule 29.5(2) of the Family Procedure Rules 2010 which provides that the parties must inform the court in writing of their claim under the 1998 Act and the relief sought. In this case the applicants had issued a C2 form in compliance with Part 18 of the FPR 2010 and this was found by HHJ Bellamy to be the correct procedure.

3. Reliance was placed by the local authority on s7(5) of the 1998 Act which provides that any claim under s7(1)(a) of the Act (ie a freestanding claim) must be brought within one year of the act complained of, or within such period as the court considers just having regard to the circumstances subject to any rule providing a stricter time limit. This argument failed owing to the earlier finding by the judge that this claim had rightly been issued under s7(1)(b) (which does not time-bar applications) and was therefore not relevant.

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4. Finally, the local authority argued that the award of damages was not justified in this case. Attention was drawn to older authorities which set out that in most cases the making of a declaration provided just satisfaction for a claim under the 1998 Act, but HHJ Bellamy relied on the more recent decision in CA (A Baby) [2013] in which the agreement reached between the parties for damages to be paid was expressly approved by the court. The judge commented that the assessments of the parents could have begun a year earlier, and that whilst they had been having contact, that was "far removed from the joys of full-time, unsupervised care of one's own child". He stated that the parents' loss of time with their daughter was "unnecessarily lengthy and deeply distressing" and that in addition to the agreed declarations, an award of damages was necessary to afford just satisfaction to the parents. In assessing quantum the judge was mindful of the delay occasioned by the local authority, the fact that when the parents were assessed it was very positive and the separation of parents and child for over a year. However, a particularly important feature of this case was that it was argued that the impact on the parents of the proceedings, the separation and the delay were identifiable and had been a direct cause of a deterioration in their well-being. This argument was, on behalf of both parents, supported by evidence from experts that the increase in the stress under which they found themselves had led to a deterioration in their physical symptoms. HHJ Bellamy awarded each parent £6,000 in just satisfaction of their claims.

It would seem that the feature of this case which distinguishes it from the earlier authorities is that the harm occasioned to the claimants was definable. In CA (A Baby) [2013] the court was not called upon to determine damages – it merely approved an agreement between the parties – but in the other cases in which damages have been sought, the court has felt unable to define any feature of the claimants' suffering as being caused by the breach (for example in Re C (A Child) [2007] it was held that the mother's presentation had at least in part been evident before the removal, and that any decline in her presentation was caused by the fact of the removal rather than the breaches which the court declared to have occurred). Therefore, at the time of HHJ Bellamy's decision it seemed that being able to prove causation was an essential feature, and expert evidence on the point was clearly invaluable.

Quantum There has until very recently been a paucity of awards of damages in the domestic courts. the damages of £100 awarded at first instance in V (A Child) [2004] were perhaps testing the waters and in any event the overturning at appeal of the declaration meant that quantum was not considered at a higher level. The quantum of damages in CA (A Baby) [2013] was not reported, damages were not held necessary to provide just satisfaction in Re C [2007], and therefore by the time of the hearing in H in 2013 much of the guidance placed before the court was from Strasbourg. Most claims pursued to the European Court of Human Rights have relied on delay and lack of involvement in the decision making process and have been made under Articles 6 and 8, with on occasion a claim under Article 13. Examples of awards are: £8,000 in R v United Kingdom [1988] ECHR 11, £12,000 in W v United Kingdom [1988] ECHR 12 (Articles 6 and 8), £10,000 to each parent in TP and KM v United Kingdom [2001] 2 FLR 549 (Articles 8 and 13), €12,000 per parent in P, C and S v United Kingdom [2002] 2 FLR 631 (Articles 6 and 8), and €15,000 to the parents jointly in Venema v The Netherlands [2003] 1 FCR 153 (Article 8).

However, on 30 January 2015 Mr Justice Keehan handed down his judgment in Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam). In this case the local authority had made what Keehan J called "egregious failures" at just about every turn of the case. They obtained a s20 consent without the assistance of a interpreter, did not issue care proceedings until nine months after the child (a newborn) had been accommodated, and delayed at every conceivable juncture with the filing of documents. At the conclusion of proceedings the child was living with his grandparents in Latvia and was thriving. The local authority conceded breaches of the Article 6 and 8 rights of the mother and of the child. The breaches admitted by the local authority and recorded by the court were:

1. The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

2. Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child's article 6, 8 and 13 rights.

3. The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child's and mother's article 6 rights.

4. The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child's welfare and the child's and mother's ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child's future welfare and development. Such failures were in breach of the child's article 8 rights.

5. The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child's and mother's article 6 rights and prejudicial to their article 8 rights.

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6. The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children's Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child's and mother's article 8 rights.

The parties had also agreed damages totalling £16,000. These comprised £12,000 for the child and £4,000 for the mother. In addition a payment of £1,000 was approved for the maternal grandparents to assist them in their care of the child. Having reviewed a number of authorities in which damages had been awarded against local authorities who had acted in breach of a child's and/or a parent's human rights, Keehan J was satisfied that the damages offered by the local authority were appropriate.

This is interesting on a number of levels. Firstly, it is far higher than previous domestic awards; most notably it is very similar on the facts to the H [2014] decision of HHJ Bellamy in terms of the local authority breaches and the timescales involved. Secondly, it approves an award of damages without any reasoning as to causation, which does not follow the line of previous authorities where a link between the breach and some manifestation of physical or mental harm to the claimants was set out clearly. Of course any separation must cause harm, but the previous authorities seemed to suggest that just satisfaction for a claim of that nature could be provided by a declaration of the court in the absence of harm which could be clearly identified as being caused by the breach. Whether the judgment does not set out causation because the principle of damages was agreed is unknown, but there is certainly nothing in the judgment to reflect evidence of psychological harm to the mother or child, or any physical manifestation of such harm. The lack of such evidence was fatal to the claim in C [2007], whilst the existence of such evidence was central to the reasoning in H [2014]. Indeed Keehan J's closing remarks state quite clearly that the existence of harm to the child, who received the bulk of the damages, was something which was not known now and would only become known in the future:

"I trust that the events of the first 23 months of DS's life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so."

Finally, and perhaps most interestingly, this is the first reported domestic award of damages for a child in care proceedings. It is perhaps surprising that no such claim was made in the earlier cases, but this is clearly an area of law which is developing very quickly and no doubt many more such claims will soon be before our courts.

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Something must be done – will a partial return to Calderbank fit the Bill (or at least reduce it)?

Tom Wilson, pupil at 1 Garden Court Family Law Chambers

A number of recent Family Finance decisions have seen a sustained assault on the current costs regime. In J v J [2014] EWHC 3654 (Fam), Mostyn J appealed to law-makes to 'stop saying something must be done and actually do something'. 1 This article proposes that what should be done is a partial re-introduction of the Calderbank offer.

The Problem The problem facing family finance lawyers is a simple one. In cases that fail to settle, whether 'big money', 'medium money' or 'needs-based', pursuing the matter to a final hearing inevitably increases costs exponentially. In many cases, the legal costs can represent a substantial proportion of the matrimonial pot thereby leaving much less for redistribution between the parties.

The effect of this problem is apparent in a number of recent cases, but is perhaps most notoriously so in the case of Evans v Evans [2013] EWHC 506 where the costs of litigation reached £2.7million, out of a total assets pot of approximately £40m. Moylan J noted that 'the level of costs incurred in this case has now been said to be unacceptable and disproportionate by three judges'. 2

Two recent cases further highlight the pervasive nature of this problem. Chai v Peng [2014] (Fam) was a decision in a further maintenance pending suit application in which the Wife's costs for the one-day hearing were £55,000. Holman J described the likely costs of a final hearing as 'mind-boggling'. 3 In J v J, the parties spent £920,000 litigating over assets totalling £2,885,000. Mostyn J criticised the 'grotesque leaching of costs' 4 and noted the 'disfiguring impact of excessive costs' 5.

This problem is not confined to financial proceedings following divorce. Seagrove v Sullivan [2014] EWHC 4110 concerned applications under TOLATA and Schedule 1 Children Act 1989. There was only one principal asset, worth approximately £1million. The parties accrued £1.3million in legal costs, described by Holman J as a 'truly absurd amount of money'. 6 His Lordship's opinion, clearly encompassing all forms of family financial litigation, is neatly expressed in the opening sentence of his judgment:

'Despite numerous attempts to rein it in, the scale, intensity and cost of family financial litigation remains often out of control and completely disproportionate to the issues at stake.'

Where Next: Fixed Costs and Cost Capping? In J v J, Mostyn J engaged in an extensive discussion regarding the state of the current costs regime. Quite firmly, His Lordship proposes two fundamental reforms. The first is fixed pricing for cases:

'In my opinion a litigant should be able to demand a fixed price for each of the three phases of an ancillary relief case namely (1) Form A to First Appointment, (2) First Appointment to FDR and (3) FDR to trial.' 7

The second is cost capping:

'The second measure that needs to be taken is for the court in ancillary relief proceedings to be able to impose at the very beginning of the case a costs cap on what may be charged by the lawyers to their client for each of the three phases of the case. Naturally this cap would be variable if circumstances change but the change of circumstances would have to be a big one for a variation to be allowed.'

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The merits of these proposals have already been analysed by Ashley Murray in his article 'Excessive costs and J v J: a practitioner response', published in the January 2015 edition of Family Law. This article does not seek to rehearse the analysis to be found there. However, three brief comments can be made.

Firstly, family finance cases are inherently unpredictable. As the parties prepare to make the significant transition from one stage of their lives to the next, circumstances change that demand more or less work than expected. The parties are subject to a duty of ongoing disclosure and assets may become disclosed that fundamentally increase the matrimonial pot. Unexpected arguments may arise concerning the nature of certain property, the housing needs of the parties or other elements of the claim. All such attributes of family finance litigation render the advent of cost capping arbitrary and unfair. Moreover, as Murray observes:

'If fee caps are placed on the three phases of the progress of a financial remedy case and those amounts are to be recovered both by the diligent and indolent, they are no reflection of the ability or industry engaged. Financial remedy is not an art of speed alone but of due care of the client's interests. The profession is not made up of an intellectual elite moving from case to case, but in most instances hard working professionals with a variety of skill levels, who invariably do not bill their clients for every hour spent.'

Second, it was suggested that such arbitrariness can be mitigated by permitting applications to be made to increase the cap. With the greatest of respect, it is submitted that such a course would rapidly increase the level of satellite litigation. Would the other party have a right to oppose any application? What change of circumstances would be considered 'big'? Presumably, the answer to such a question would require a detailed examination of the conduct of proceedings to date. Paradoxically, this would see litigation costs spiral upwards.

Finally, inordinate delay is not an unimaginable consequence. It is presumed that such an application would be heard by a judge later precluded from conducting any final hearing. It would be sensible for this to be the same judge who conducts the FDR; otherwise two judges would be precluded for finally determining the matter. While this may be perfectly possible in the Family Division, many smaller courts may struggle to list such applications before the appropriate judge in a timely way. Delaying proceedings is not only contrary to the overriding objective, but may well lead to yet further costs being incurred.

An Alternative Proposal: A Partial Return to Calderbank? It is now incumbent on the writer to propose an alternative solution. It is argued that Rule 28.8 should be removed from the FPR 2010 and the Rules amended so as to render without prejudice offers admissible when determining the matter of costs. To be clear, it is not proposed that there should be a return to a presumption that "costs follow the event", nor is it suggested that either the old Rule 2.69 FPR 1991 or current CPR 36 should be introduced into the current costs regime so as to prescribe the usual outcome where a Calderbank offer is beaten. It is simply proposed that such without prejudice offers be included as one of the matters to which the court may have regard under Rule 28.3(7) FPR 2010 when considering whether to make an order as to costs.

By way of a short summary, a Calderbank offer was expressed to be "without prejudice except as to costs". Other than at FDR hearings, such offers were inadmissible throughout the proceedings until after determination of the application. Following determination, such offers could be examined by the court so as to consider whether the litigation had been unnecessarily or unreasonably protracted by one or other of the parties. If a party had refused to accept a Calderbank offer and ultimately the determination was less advantageous to them than the said offer, then that party was at risk of being liable for not only their own legal costs, but also those of the party who had made the offer. In many ways, it was similar to the current regime in Rule 36 of the Civil Procedure Rules.

Crucially, until April 2006 when Rule 2.71 was introduced into the Family Procedure Rules 1991, the Calderbank regime was coupled with a presumption that costs followed the event and therefore a costs order would routinely be made. Rule 2.71 introduced the "no order as to costs" presumption, which is maintained in Rule 28.3(5) FPR 2010.

The Calderbank regime was subject to a significant degree of criticism. In GW v RW (Financial Provision: Departure from Equality) [2003] EWHC 611 Fam, Nicholas Mostyn QC (as he then was) famously articulated a widely-held concern as follows:

'…it seems to me that the present system in effect forces the parties to engage in a mandatory form of spread betting. The parties are required to guess the outcome of the case and to take a position. If they have guessed correctly then they win a large amount; if they have not then they lose. But there is one significant difference to a spread bet. With a spread bet the amount the gambler wins or loses is the difference between the result and the position-maker's spread. If he has bought and the result is higher than the top of the spread he wins; if it is lower he loses. If he has sold and the result is lower than the bottom of the spread he wins; if it is higher he loses. The closer the result is to the position-maker's spread the smaller the amount the gambler wins or loses. The orthodox Calderbank theory in ancillary relief proceedings is however different in that it does not reflect the closeness of the litigant's call. Instead, the mere fact of beating his guess by even a tiny amount entitles the maker of the offer to call for payment of the entirety of his costs from 28 days after the date of his offer. Similarly if his guess is a fraction less than the result, then the other party can call for all her costs to be paid by the maker of the offer. So it can be seen that vast sums can swing on even the smallest failure to guess accurately. And there is no premium for guessing really well.' 8

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In the face of such trenchant criticism, what can be the justification for reintroducing without prejudice offers that are admissible for consideration at any application for costs?

The most powerful justification is a simple one; such offers encourage early settlement and incentivise negotiation. Under the current regime, it is all-too-easy for a recalcitrant litigant to ignore or delay early attempts at settlement safe in the knowledge that there will be no consequence. Pursuant to FPR 9.17(3), the parties are of course under a duty to provide the court with evidence of all proposals and responses not less than seven days before the FDR, but there is no consequence for the recalcitrant party should he fail to respond or only make entirely unreasonable proposals. The judge conducting the FDR will, of course, give the appropriate indication, but this has no meaningful effect as the matter progresses to final hearing.

Of course, it is possible for the proactive litigant to make an open offer at any stage in the proceedings, but there are clear disadvantages of doing so at an early stage. For example, settlement offers often incorporate a degree of concession that may well prejudice a party's position should it be made in open correspondence. As a result, there is no effective sanction for uncooperative parties.

Conversely, were negotiations to take place in the context of an explicit recognition that the parties' negotiating positions will be taken into account in any determination as to costs; there would be a clear and effective sanction for reluctant parties. Moreover, it would render the FDR a more effective process because it is hoped that more realistic offers will have been made at an early stage, enabling the FDR judge to provide an insightful indication as to the path to settlement.

Some may argue that simply including such offers as a factor to which the court may have regard when considering costs does not go far enough. It may be argued that the procedure set out in CPR 36 is far more effective at incentivising settlement because it strictly prescribes the consequences of failing to beat one's position in negotiations. This is true. However, such an approach goes too far and returns matrimonial proceedings to the regime of 'spread betting' so firmly criticised in GW v RW. The proposal suggested represents a middle ground, encouraging early settlement while recognising the need for the court to retain discretion to justice to the parties.

Mostyn J, in as recent a judgment as J v J, articulated a further widely-held objection to the Calderbank procedure:

'Some quarters are calling for the Calderbank principle to be reintroduced (and it is true that the current rules permit it to be used for certain proceedings other than the final hearing of an ancillary relief claim). For my part I will fight its reintroduction to the last ditch. In my opinion it would be retrograde and unconscionable to allow a carefully crafted disposition to be turned upside down by virtue of a without prejudice letter produced after judgment has been given.'

Clearly, a concern that the making of a costs order will effectively undermine the reasoning behind the substantive determination is a valid one. In the determination of a financial remedy application the court will have examined all of the circumstances by reference to the s.25 factors and arrived at a decision that redistributes assets accordingly. In the overwhelming majority of such applications, this determination will be focused on meeting the needs of the parties as they transition from one household to two. It is inevitable that subsequently imposing an additional and often significant liability on one of the parties undermines the reasoning behind the courts' determination.

However, the current FPR retain a judicial discretion to do exactly that. The circumstances in which it is appropriate may be limited, and there may be a presumption against it, but the Rules clearly envisage such an order as being necessary. If litigation misconduct is considered sufficiently severe to warrant such an order, why should a failure to proactively engage in reasonable negotiations not be considered equally severe? The parties are under a specific duty to negotiate and to conduct proceedings in a proportionate manner, and there is a clear public interest in encouraging them to do so. As Holman J remarked in Seagrove v Sullivan:

'But litigation within the courts has to be the subject of much more rigorous discipline and structure, precisely because the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court's resources are allocated to any one case. The same judges have to deal also with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people…

…The cost of running these courts is not inconsiderable. I cannot specify what the daily cost is, for I do not know, but the state has to provide and pay for the judge, the court staff, the "back office" staff, the provision of the courtroom, the maintenance of the courtroom and all the other associated costs. It is obvious that the daily running costs of a court and courtroom such as this run into several thousands of pounds. Multiply that by eight and one can see at once that there is an expectation that this state, which as we all know is struggling still to rein in the deficit following the recession, should expend completely disproportionate amounts on resolving issues and disputes of this kind.'

Given this public interest, there is an obvious justification for imposing more punitive sanctions than currently exist for failing to engage actively in seeking a settlement. It is argued that one must accept the impact that such a sanction will have on the substantive determination, but enable the court to do justice in the individual circumstances by having regard to both the effect of a costs order and the positions adopted by the parties during negotiations.

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Conclusion: Will It Solve the Problem? A degree of realism must be retained. The proposed amendment is a minor one. It will not prevent all easy-to-settle cases from reaching a final hearing nor will it encourage the most recalcitrant of litigants from refusing to engage in settlement discussions. However, it is hoped that the partial reintroduction of Calderbank offers would effect a significant culture change in family finance litigation. The knowledge that the position one adopts during negotiations may, indirectly, have an impact on the overall distribution of assets will encourage litigants to engage in meaningful settlement discussions. If such discussions are unsuccessful, the court may have regard to the parties' positions and, if there has clearly been unreasonableness, make a costs order reflecting this. However, the court would retain a significant degree of discretion, governed both by the presumption of "no order" and the continued requirement to have regard to 'the financial effect on the parties of any costs order' (FPR 28.3(7)). It is hoped that such parameters will prevent undue hardship and assuage the concerns held by many.

______

1 [13] 2 [203] 3 [7] 4 [16] 5 [18] 6 [56] 7 [13] 8 [88] 9 [48]-[49]

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Mitochondrial Donation

Professor Nils Hoppe and Katy Rensten, both of Coram Chambers

As practitioners of family law know only too well, the questions of what constitutes a 'family' and who are 'the parents' are constantly evolving, both in relation to the legal and to the genetic landscape: that this is a fast changing area of law, where regulation follows hard on the heels of scientific development, could not be better illustrated than by the recent parliamentary debate on mitochondrial donation.

On 3rd February 2015, following a lively debate in the House of Commons on the draft Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 (the Regulations), the Regulations were passed with 382 in favour and 128 against. The brevity of the debate (some 90 minutes) was the subject of criticism and caused consternation amongst MPs who had voted "against", with comparisons being drawn with the matter that immediately followed (a debate on rural broadband connections) which was scheduled for the rather longer period of three hours.

Mitochondrial donation has received significant attention in the press recently and it is unfortunate that a great deal of the reportage appears to be have been influenced by points of principle, which take their impetus from feelings of uncertainty or religious conviction.

In order to understand the implications of the Regulations and to dispel any misapprehensions, it is vital to understand their remit, the regulatory target, and the objections made against them.

The Regulations provide for the licensing of an innovative assisted reproduction technique (ART) called mitochondrial donation, in which a defective part of the mother's mitochondrial DNA is replaced with intact donor material.

Mitochondria are found in most cells and, amongst other control functions in relation to cell development and cell fate, they generate the chemical energy needed to keep the cells going. This is why they are occasionally referred to as the cells' 'battery packs'. The technique in question is only available during the course of using ART, such as in-vitro fertilisation (IVF) and is aimed at couples where the mother is likely to pass on an existing defect, leading to a mitochondrial disorder in her child. Mitochondrial disorders are varied but in many cases lead to significant impairment for the child, at an early stage, and in many cases, a very early death. One in 6,500 children is born with such a serious mitochondrial defect that can lead to death in early infancy.

The proposed Regulations would enable the Human Fertilisation and Embryology Authority (HFEA) to license individual treatment centres to make this intervention available to appropriate couples. The alternative choices thus far for these couples are to have no biological children at all or to take the risk of having a child with such a disorder. Mitochondrial donation provides for a procedure where they can have biological children without the risk of passing on the defective mitochondria.

The Regulations propose two forms of licensable mitochondrial donation: pronuclear transfer (PNT) and maternal spindle transfer (MST). The 2012 Nuffield Council on Bioethics Report summarises the technologies succinctly:

"PNT involves using very early (one day old) embryos. MST uses unfertilised eggs. Both techniques would create embryos in which the nuclear genetic material of the intended parents is re-housed along with healthy mitochondria from a donated egg. This could come from either an unrelated donor or a maternal relative with healthy mitochondrial DNA. A maternal relative's healthy donated mitochondria would be identical to any healthy mitochondria the

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intended mother had, effectively permitting her to pass on what she may regard as 'her family's' mitochondrial DNA to her child." (Nuffield Council Report 2012, vii.).

This summary of the technique already hints at two important objections raised against it: the destructive 'use' of an ovum and the alteration of the cells' germ line.

It is, first, important to realise that a great many of the objections raised against the proposed Regulations belong in the category of 'slippery slope' type arguments, usually taking the form of 'This is a dangerous road to take...', 'Whatever next?' , or 'If we allow this, we'll allow X [usually something unpleasant] next'. Given that they evade empirical proof entirely, it is difficult to see how such objections should have any place in a reasoned debate. Similarly, objections which are made 'on principle' are usually difficult to engage with in any appropriate way, as the principle being invoked is often not defined and is employed as simply another way of saying 'I am just against this'.

That said, there are a number of valid objections which ought to be addressed in more detail. Broadly, although some of these issues are intertwined, they can be segmented into (1) safety concerns, (2) ethical concerns, and (3) consistency with EU law. Within the confines of this article, it would be difficult to do justice to the past and current debate in legislature and literature, so what follows can be only a brief outline discussion of the objections and the main counterarguments.

Firstly, it has been suggested that the evidence base for the safety of this intervention is too 'thin' to justify making the technology widely available. It is very much worth bearing in mind that no medical intervention is entirely safe, so what this question boils down to is the usual balancing exercise between risk and benefit that imbues all of biomedical practice. In presenting the Regulations, Jane Ellison MP quoted Frances Flinter, a professor in clinical genetics at Guy's and St Thomas' NHS Trust, as saying:

"There has been more scientific review of this proposed process than any other medical technology."

Whether this brief statement is entirely correct might be open to discussion, but what is clear is that the sentiment expressed is one of approval with the breadth of the scrutiny which this technology has undergone. No risks have been identified at this stage which outweigh the significant benefits of counteracting the near certainty of a fatal disease in a child born with a mitochondrial disorder. In line with the usual vigilance that accompanies innovative or established medical interventions, safety data will be continuously surveyed and scientifically assessed as the intervention becomes more routine.

Secondly, there are also a number of ethical and philosophical objections to the treatment. One is that, the technology is not, in fact, aimed at curing mitochondrial disease but instead at replacing the sick child with a healthy child – in other words, rather than removing the disease from a defined individual, it is creating an altogether new individual who just happens not to have this disease. The extremely complex philosophical points about individuality and personhood to which this gives rise are impossible to encapsulate in these few lines. Suffice it to say that any selective procedure during ART (such as a choice based on morphology to determine which embryo to implant and which to discard) is also a decision which alters the person that is the product of such a procedure. The genuinely interesting question here would actually be why a scientifically informed interference with the 'raw material' is more problematic than a subsequent discarding of a morphologically undesirable embryo.

An additional issue which is raised is that the proposed procedure relies on the depletion of two ova (the creation of an embryo using one ovum, and then the rehousing in the second ovum). This part of the procedure was wholly incorrectly characterised by Fiona Bruce MP in the Commons debate, in which she made repeated reference to the 'destruction of at least two human embryos [...] to create a third'; this is simply wrong. A donor ovum is, nonetheless, required for this procedure and some might object to the 'utilisation' of an ovum in this way, in the same way as they would object to sperm donation, IVF in general or indeed blood transfusions or organ donation.

Other objections which are offered under the heading 'ethics' tend to be little more than expressions of general uneasiness about a novel technology which interferes with the course which budding life takes. It has, rightly, been pointed out that the very same objections were raised when IVF was first debated. In particular, the fear that this type of technology might lead to designer babies seems to be aimed not so much at the technology than at those who use the technology, and for what purpose. In other words, what ought to be the subject of regulation is the context in which the technology is deployed rather than an outright prohibition of the technology itself. That is exactly what the Regulations propose to do.

Thirdly, the question of interfering with the creation of life ties in with the objections raised in relation to EU law. Whether or not the Regulations are compatible with EU law was a matter raised vociferously by Robert Flello MP who made reference to Art. 9(6) of the EU Clinical Trials Directive (2001/20/EC), which stipulates:

"[...] No gene therapy trials may be carried out which result in modifications to the subject's germ line genetic identity."

It is without doubt the case that the replacement of mitochondrial DNA interferes with the subject's germ line genetic identity, though not in the way envisaged by the drafters of the Directive. The nuclear DNA remains unchanged and this is where the individual's identity and phenotype are encoded. Nevertheless, this norm can be taken as a clear indication against this type of modification in the context of gene therapy trials. At the same time, the licensed provision of IVF

www.familylawweek.co.uk Family Law Week March 2015 - 44 treatment including mitochondrial replacement to individual parents does not, in any way, constitute a clinical trial (as is clear from Art. 2 of the Directive).

Additionally, curative treatments are already being offered under the NHS which lead to a modification of the subject's germ line, such as lymphoma treatments and, generally, chemotherapy. It is clear that the legislator's objection was not to interventions which alter the germ line per se, but to experimentation aimed at altering the germ line as a primary effect. The objection that the Regulations fall foul of the Clinical Trials Directive is therefore, in the authors' view, misguided.

It seems to the authors of this article regrettable that the Commons debate surrounding the Regulations was driven, by and large, by non-scientific objections. In particular, the regular recourse to 'slippery slope' arguments significantly devalued the quality of the debate. What is all too often overlooked is that ethical arguments are available to both those for and against. Merely having one or more ethical argument on one's side does not unhinge the debate in its entirety – the exercise will be one of balancing the arguments on either side.

Mitochondrial donation is a proven technique which will enable couples to make the best possible attempt at conceiving children without avoidable diseases. To force couples to have no biological children or to acquiesce to the risk of having children who suffer greatly and die early, despite having at our disposal the means to prevent this, falls considerably short of our moral obligations.

It is imperative that such important developments, placed as they are at the intersection of multiple complex ethical and legal issues, are given the serious and measured consideration they deserve, in order that the law that evolves in the wake of the science, is the best that can be achieved.

Nils Hoppe is professor of life sciences regulation at the University of Hannover and an associate tenant at Coram Chambers. His work focuses on the regulation of innovative health technologies, genetics and genomics, and biobanks. Katy Rensten is a barrister at Coram Chambers specialising in both public and private law children cases.

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International Children Law Update: February 2015

Jacqueline Renton, barrister, 4 Paper Buildings

Introduction In this article, I shall focus on the following areas:

Ÿ Habitual residence Ÿ Enforcement of foreign orders Ÿ Hague Convention 1980 proceedings

- Article 20 defence - Costs

Ÿ Wardship – hearing the child

Habitual residence LC v RRL & Others [2014] EWHC 8 is the final chapter in the Hague litigation involving four children who were retained in England during Christmas 2012 having been relocated to Spain 5 months previously on the agreement (as the court found) of both parents. [Please click here for a fuller background to the case and the Supreme Court's determination: In the Matter of LC (Children) (No 2) [2013] UKSC 221.] As a consequence of the Supreme Court's decision, the proceedings were remitted to the High Court where Wood J had to determine whether, inter alia, the children were habitually resident in Spain at the time of the retention. Wood J made findings in relation to the children's state of mind at the time of the removal to Spain based on evidence that was not before the original trial judge (Cobb J). Wood J concluded that all of the children remained habitually resident in England at the time of the retention, and accordingly there was no 'wrongful retention' within the meaning of article 3 of Hague Convention 1980. It is particular important to note that the judge concluded that even the youngest child (aged 4 at the appropriate time) was not habitually resident in Spain at the point of retention in light of the fact that he was part of an elder, tightly bonded sibling group and the group had shared experiences of life in Spain as compared to life in England. As a consequence of this determination, the mother's Hague Convention 1980 application was struck out, and she was also prevented from pursuing her application for a return of the children through the Spanish courts under articles 11(6)-(8) of BIIR.

[In the alternative, and in any event, Wood J also found that: (a) article 13(b) / harm defence was established on the basis that a return of the three younger children to Spain would involve them being separated from their eldest sibling, T, which would be intolerable for them all and (b) having determined that he was permitted to examine once again the article 13(b) / objections defence, the middle two children objected to a return to Spain within the meaning of article 13(b).]

In Re R (A Child: Habitual Residence) [2014] EWHC Civ 1031, the Court of Appeal upheld the appeal of the mother against a habitual residence declaration made by Parker J. The father was Scottish. The mother was Italian. The family had lived in England prior to their separation in 2009. In August 2009, the mother was granted permission to relocate the child (and her older sister) to Kenya. Shortly thereafter the mother and children returned to this jurisdiction, and the mother was then granted permission to relocate the child (and her older sister) to Italy in July 2010. The mother and child subsequently lived in Italy from July 2010 onwards. In January 2011, the mother was diagnosed with cancer and received chemotherapy. On 31 August 2013, the mother and child arrived in England with two suitcases. The father subsequently issued proceedings seeking residence (as it was then called) of the child. On 12 October 2013, the mother returned the child to Italy. There had been a long running dispute between the parties over the former matrimonial home. In 2012 an order had been made for the property to be sold. That order had not yet taken effect. In the property proceedings, the father contended that the mother permanently lived in Italy so that the house could be sold and the mother contended that she permanently lived in England as to avoid the house being sold (a reversal of their positions to the family court).

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At first instance, Parker J declared that the child had become habitually resident in England and Wales between 31 August 2013 and 12 October 2013 as a consequence, primarily, of the mother's clearly documented intention to remain living in England and Wales on a permanent basis during the said period of time. Parker J did not hear oral evidence from either party before making such a declaration as a consequence of neither party seeking such a course of action to be taken.

The Court of Appeal upheld the mother's appeal and remitted the proceedings to the High Court for a fresh determination as regards the issue of habitual residence on the basis that:

Ÿ Parker J placed too much weight on the documentary evidence which set out the mother's asserted intention. The documentation had not been placed into context. The parties' positions as regard the property proceedings were relevant and needed to be evaluated.

Ÿ Parker J's evaluation of habitual residence was too narrowly focused. Parker J did not properly evaluate the links that remained in Italy, despite having recognised that the child was fully integrated into life in Italy up until 31 August 2013.

Ÿ Parker J did not properly assess the mother's reasons for returning the child to Italy on 12 October 2013, the mother having booked return tickets on 14 September 2013.

In Re H [2014] EWCA Civ 1101, the Court of Appeal gave guidance concerning the 'rule' that where there are two parents with parental responsibility, one parent cannot change a child's habitual residence unilaterally. In this case, the parents and children travelled to Bangladesh in May 2008. In August 2008, the father returned to England alone. Between 2009 and 2012, the father visited the children in Bangladesh on three occasions, last seeing the children in November 2012. The father instigated proceedings in Bangladesh and those proceedings concluded in a way that was unsatisfactory to him. On 4 February 2013, the father issued proceedings in the High Court for a return of the children to England. The mother did not participate in the proceedings, but it was clear from the Bangladeshi proceedings that she claimed that the father had abandoned her and the children in Bangladesh in 2008. The father claimed that the English court had jurisdiction on the basis of habitual residence (and in the alternative, parens patriae).

At first instance, Jackson J determined that the court had no jurisdiction. In respect of habitual residence, Jackson J stated that even if the children had been unlawfully retained in Bangladesh, the children had ceased to be habitually resident in England due to the passage of time that had elapsed. In the alternative, the judge considered that on the facts of this case it was inappropriate to exercise the parens patriae jurisdiction given that the courts of Bangladesh had already been seised of welfare issues and there was nothing to stop the father from litigating once again in Bangladesh.

The Court of Appeal concluded as follows:

Ÿ The aforementioned 'rule' should be consigned to history in light of earlier Supreme Court decisions of In the matter of A (Children) [2013] UKSC 60; In the matter of KL (A Child) [2013] UKSC 75 and In the Matter of LC (Children) (No 2) [2013] UKSC 221. It is clear from In the matter of A [2013] that there has been a general inclination to encumber the factual conceit of habitual residence with supplementary rules provided that an approach can be found which prevents a parent undermining Hague Convention 1980 and jurisdictional provisions under BIIR. A factual enquiry, tailored to the circumstances of the case, is the appropriate course of action.

Ÿ The English court retained jurisdiction under article 10 BIIR. Article 10 BIIR was not limited to cases where both counties were EC signatories: Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10. As a consequence, it was unnecessary to consider the issue of the parens patriae jurisdiction.

Ÿ Limited argument was heard as to whether or not there was power to decline to exercise an article 10 BIIR jurisdiction on forum conveneins ground and accordingly the court refused to determine this issue. However, the court went on to exercise its jurisdiction and conclude that the application should be summarily dismissed with 'no order' being made as regards the child's welfare. The passage of time that had elapsed was a significant evidential feature in this regard. There was no solid reason in the interests of the children to continue the proceedings. The court referred to Re C (Children) (Residence Order: Application Being Dismissed at Fact-Finding Stage) [2012] EWCA Civ 1489.

Enforcement of foreign orders The use of Brussels II Revised Regulation 2003 to enforce foreign orders has become increasingly common over the years. Such applications are sometimes made in preference to the commencement of Hague Convention 1980 proceedings, and sometimes are free standing applications.

In MD v AA & Another [2014] EWHC 2756 (Fam), Jackson J considered a free standing enforcement application by a father who sought to enforce a custody order in his favour in respect of the parties' child. The order was made on 27 November 2013 by the Romanian Supreme Court. The parties were both Romanian and had been involved in litigation in Romania since November 2007, albeit the child had lived in England with the mother for his entire life, save for the first two months. At the time of the hearing before Jackson J, the child was nearly 8. The mother challenged enforcement of the order on various grounds: (1) procedural challenge to the way in which the order was registered by the Central Family Court; (2) article 23(a) – public policy; (3) article 23(b) – the child was not given an opportunity to be heard; (4) articles 23(c) and (d)

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– service issues. Unusually for enforcement proceedings, the child had been joined at the PTR by Jackson J, albeit the Child's Guardian's role was limited to making legal submissions on his behalf (no welfare enquiry was undertaken for the purpose of the enforcement proceedings, although there was a limited welfare investigation under article 20 of BIIR undertaken so as to determine interim care arrangements for the child pending the conclusion of the enforcement process).

In his judgment, Jackson J determined as follows:

Ÿ Procedural challenge – the task of the District Judge faced with a BIIR registration application is to apply Part 31 rules and the Practice Direction with a broad appreciation of the nature and effect of BIIR procedures and the possible grounds of non-recognition under article 23. The court is not a 'rubber stamp' but should exercise care when considering registration. If there are fundamental shortcomings in the registration process, then they should be corrected prior to the order being registered. However, only fundamental shortcomings in the registration process should lead to an order not being enforceable; other matters of non-compliance will not necessarily be fatal. A pragmatic approach should be taken to shortcomings that are not fundamental so as to ensure fairness to both parties: Re D (Brussels II Revised: Contact) [2007] EWHC 822 (Fam) and ET v TZ [2013] EWHC 2612 (Fam). A defective registration can be cured by subsequent order of a District Judge or by the High Court on Appeal. In this case, there were two registration processes, the latter taking place to cure some of the defects of the first process. Jackson J set aside the orders made in the first registration process. However, he upheld the orders made in the second registration process – the procedural effects had no practical effect, and it would be pedantic and unfair to the father to prevent his order being enforced on the ground.

Ÿ Article 23(a) – Jackson J did not refuse enforcement on this ground. Enforcement of the order would not lead to a situation that was so ridiculous in terms of the welfare of the child that it would offend public policy. The child has a substantial relationship with the father and the mother did not raise any concerns as regards the father's ability to parent the child. A high threshold is inherent within article 23(a): Re L (Brussels II Revised: Appeal) [2013] 1 FLR 430 and Krombach v Bamberski (Case C-7/98).

Ÿ Article 23(b) – Jackson J refused to enforce the order on this ground. He determined that an English court faced with such an application (peremptory change of lifelong carer, country and language) would as a minimum seek a report from a court social worker that would consider, amongst other things, the child's perspective on such a monumental change of circumstances. Such a report would be fundamental. As a consequence, the child (aged 5 at the relevant time) not being heard in this case amounted to the establishment of article 23(b). In reaching this decision, Jackson J considered the growing importance in domestic and international law of the need for the child to be heard. Ÿ Articles 23(c) and (d) – Jackson J refused to enforce the order on both of these grounds. He found that the other did not know about the documents that had been served, despite service having taken place in accordance with Romanian domestic law. In reaching this conclusion, Jackson J relied on the meaning of article 23(c) considered by Mostyn J in MD v CT [2014] EWHC 871 (Fam).

Permission to appeal has been granted by the Court of Appeal in respect of this case as regards all grounds on which Jackson J refused to enforce the order. An appeal hearing is due to take place in March 2015.

Since November 2012, it has also been possible to recognise and enforce foreign orders in the English court under 1996 Hague Child Protection Convention. In Re P (Recognition and Registration of Orders under the 1996 Hague Child Protection Convention) [2014] EWHC 2845 (Fam), Moylan J (in his capacity as one of two judges from England and Wales registered to the International Hague Network of Judges) provided a partial guide to the procedure for recognition or registration of an order made in another contracting state under 1996 Hague Child Protection Convention. Moylan J stressed a 'light touch' in the application of the procedural rules for recognition and registration, especially given the increasing number of litigants in person. Some procedural formalities can be easily dispensed with where an application follows a direct request for assistance from a Judge of the International Hague Network of Judges, the Network being founded on mutual respect, trust and co-operation.

Enforcement of foreign orders is also possible under the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children 1980. Suffice to say, this Convention is rarely used but was so used in AA v TT [2014] EWHC 3488 (Fam). In this case, Holman J determined an application by a father to enforce a custody order dated 26 November 2013 in his favour from a Turkish court. The father was Turkish. The mother was English. The parties had two children who were born in England. The parties lived in England initially and then moved to Turkey in 2009. Their relationship subsequently broke down. Both parties made allegations of domestic violence against the other party (those allegations never being determined by any court). In September 2011, the parties divorced in Turkey. In June 2012, the mother was granted a final custody order in relation to the children from the Turkish court. In September 2012, the mother married her second husband and subsequently removed the children without the father's consent to England.

The father promptly commenced Hague Convention 1980 proceedings for the summary return of the children to Turkey. The mother sought to defend the proceedings on the basis of an article 13(b) objections and article 13(b) harm defence. A report from Cafcass made clear that both children wished to return to Turkey. At the final haring, the mother made clear that she also wished to return to Turkey on the basis that the father put in place adequate safeguards / protective measures

www.familylawweek.co.uk Family Law Week March 2015 - 48 to meet her article 13(b) harm defence. The father refused to do so and went on to withdraw his Hague Convention 1980 application, having made clear that he would seek custody of the children in Turkey.

Subsequent to the final hearing, the children and mother remained in England with the father having one direct contact only in the 18 months that then passed until his enforcement application. The father pressed ahead with his custody application in the Turkish court. The mother engaged with the father's application and attended various hearings. During the Turkish proceedings, the father claimed that the mother was living in Turkey with her new husband and had left the children in England to be cared for the maternal grand-mother. [In the English proceedings, this was denied by the mother who claimed that her marriage had come to an end as a result of her being unable to return safely (on her case) to Turkey and that she had remained living with the children in England, save for various short periods of time between 2012 – 2013 when the children were left in the care of her parents in Turkey, and 1 fortnight in Ireland. The mother did not make these points to the Turkish court.]

In November 2013, the Turkish court ordered that guardianship (custody) of the children be transferred from the mother to the father (this being the order that the father then sought to enforce in the English court). In his judgment, Holman J determined as follows:

Ÿ The reasoning of the Turkish court was fundamentally based on a mistaken consideration of the facts of the case. Indeed, within the course of the English proceedings the father accepted that the mother's version of events as regards care arrangements for the children was the real truth.

Ÿ The order should not be enforced pursuant to articles 10(1)(a) and (b) of the Convention.

Article 10 (1) Recognition and enforcement may also be refused on any of the following grounds:

(a) if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed;

(b) if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child..."

Ÿ The basis on which Holman J concluded that articles 10(1)(a) and (b) were established was as follows:

o The children (aged 12, 9 and 7) have lived continuously in England since September 2012. They have been interviewed three times including by a psychologist and social services expert in Turkey who concluded that their behaviour and psychological state had been adversely affected by violent behaviour, they displayed behavioural problems, were close to their mother and frightened of their father. When the children were first interviewed by Cafcass they stated that they preferred to live in Turkey safely with the mother and were very frightened of, and resistant to the idea of living with, the father. When interviewed for the second time, they were clear that they did not wish to live in Turkey and complained about their father calling him "horrible".

o As a consequence of the above, to remove the children from the mother and from the environment in which they had been living for over two years, in light of a judgment based on an utterly mistake foundation or premise, was manifestly incompatible with the fundamental principles of English law.

o Further, given the passage of time that had elapsed and the children's views, it was manifestly contrary to the welfare of the children to enforce the decision.

o As regards the exercise of discretion once the article 10 threshold has been crossed, Holman J refused to exercise his discretion in favour of enforcement making clear that to enforce the decision would be utterly contrary to the welfare of the children to the point of being inhuman.

Hague Convention 1980 proceedings

Article 20 defence In SP v EB and KP [2014] EWHC 3964 (Fam), Mostyn J determined that the parties' child (14½) should not be returned to Malta. In doing so, Mostyn J found that an article 20 / human rights defence was established, together with an article 13(b) / objections and article 13(b) harm defence. This is the first case ever in this jurisdiction where an article 20 / human rights defence has been successfully established.

The full background to the case is summarised in the Court of Appeal decision of Re KP [2014] EWCA Civ 554. The child was wrongfully removed from Malta to England by the respondent mother on 12 June 2013. A final hearing took place in September 2013. That hearing led to a successful appeal in the Court of Appeal in May 2014. As a consequence of the successful appeal, the case was remitted to the High Court for a re-trial. The new final hearing came before Mostyn J in

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November 2014. By this time, the child had been in the jurisdiction for nearly 18 months. The Child's Guardian was clear that she was very settled in England, technically habitually resident in England and that it would be unthinkable that she should be forced to return. Throughout the Hague proceedings in England, the father had at no stage issued proceedings in Malta.

In determining the article 20 / human rights defence, Mostyn J stated as follows:

Ÿ A return would violate the child's right to family life under article 8 of ECHR 1950 (the law report erroneously refers to article 6 of ECHR 1950), and article 7 of CFREU 2000. The child's family life extended to her direct family, new home, society of friend and education.

Ÿ The non-return of the child also violates, or potentially violates, the applicant father's equivalent right to an aspect of family life – the society of his daughter – but it is well established that if the same family rights of a parent and child are in competition the child's rights will prevail: Yousef v The Netherlands [2003] 1 FLR 210.

Ÿ An article 20 defence can only be established exceptionally as otherwise it would risk undermining the purpose of the Hague Convention 1980 and scope of articles 11(6) – (8) of BIIR, in particular. However, in this case the prolonged delay coupled with the father's total inaction in Malta throughout the course of the Hague litigation takes the case beyond the threshold of exceptionality.

Ÿ The exercise of discretion is theoretical as a result of the article 20 defence being established.

Ÿ This case was never appealed. It remains to be seen to what extent respondents in Hague cases will use this judgment to plead article 20 / human rights defences where before they may not have tried.

Costs CL v MB [2014] EWHC 927 (Fam) is a recent judgment from Hayden J dealing with the issue of costs order in Hague Convention 1980 proceedings. The father issued Hague Convention 1980 proceedings seeking the summary return of the parties' child to Israel. The mother contended, in her defence to the proceedings, that article 3 was not engaged as the child was habitually resident in England and Wales. The mother succeeded at first instance. The father attempted without success to appeal to the Court of Appeal. In parallel to the English proceedings, were proceedings in Israel that were pursued up to that country's Supreme Court. Hayden J remarked that the Israeli litigation had been 'entirely futile'. The mother sought her costs against the father in respect of the Hague Convention 1980 litigation.

Hayden J awarded the mother half of her costs and remarked as follows:

Ÿ The High Court has the power to award costs in first instance cases brought under the Hague Convention 1980: EC-L v DM (Child Abduction: Costs) [2005] EWHC 588 (Fam). In each case where a costs application is made there should be an inquiry into the merits. The usual order is no order as to costs, but where a party's conduct has been unreasonable or there is a disparity of means, the court can consider whether or not to make a costs order in accordance with normal civil principles.

Ÿ There is no presumption of 'no order' for costs either at first instance in Hague cases, or more general children cases. 'Reprehensible behaviour' or an 'unreasonable stance' are markers for an adverse costs order: Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36.

Ÿ The court should consider all the circumstances of the case before making a costs order. The court should have regard to CPR rule 44.2(4) and (5). The court's discretion is not circumscribed by rule 28.1 FPR 2010 / rule 44.3 CPR 1998.

Ÿ The father's litigation conduct in Israel was not directly relevant to the court's consideration of costs in the English jurisdiction, but it is relevant in relation to the father's mindset and general approach to litigation in respect of the child.

Ÿ The father's personality – the judge having found him to be 'dogmatic, occasionally capricious, highly opinionated and a bully' – was irrelevant to the court's consideration of costs, but his personality had clearly influenced his litigation conduct.

Ÿ The evidence as regards habitual residence, when closely analysed over trial, was not finely balanced but clear.

Wardship – hearing the child In Re S (A Child) (Abduction: Hearing the Child) [2014] EWCA Civ 1557, the Court of Appeal allowed an appeal against an order for a summary return of the parties' child (7) under the inherent jurisdiction. The child was born in England but then shortly thereafter returned to Russia to live. The parties subsequently separated and the Moscow court was then seised of cross residence applications. The Moscow court remained seised at the time of the Court of Appeal hearing, albeit the proceedings were suspended pending a psychological assessment of the child and parents. Approximately 3 years earlier the mother had entered into a new relationship with a man who is a political activist in Russia. The mother's partner

www.familylawweek.co.uk Family Law Week March 2015 - 50 came to England in April 2014, and subsequent criminal charges were laid against him in Russia. The other's partner's asylum claim remains pending to date. Two days after the mother's partner arrived, the mother and child came to this jurisdiction. The mother was pregnant with her partner's child at that time and subsequently gave birth to his child in London. The mother stated that she initially intended on returning to Russia after giving birth, but then later took the view she would remain in England with the child. The mother did not make her own asylum application as she understood she could be a dependent on her partner's asylum claim. In due course, the mother commenced litigation in this jurisdiction, and then the father commenced his own application for the summary return of the child in wardship to Russia.

Hogg J ordered the child's return to Russia on a summary basis. At first instance, there was no consideration of the child's wishes and feelings or the welfare of the child from her perspective. This issue was the main focus of the mother's appeal.

The Court of Appeal allowed the appeal and remitted the case for fresh consideration to the High Court. Ryder LJ (giving the lead judgment) stated:

Ÿ In the exercise of the inherent jurisdiction, the need for the court to consider whether or not the child should be heard is just as important as it is in Hague Convention 1980 proceedings. The court must focus on the individual child in the particular circumstances of the case – see Re J (A Child) (Custody Rights: Jurisdiction) [2006] UKHL 40. Although the welfare checklist under s.1(3) of Children Act 1989 does not apply directly to inherent jurisdiction proceedings, the factors in that checklist can be applied analogously to such proceedings and are determinative of good practice as regards ensuring that there is access to justice for the subject child/ren.

Ÿ Hogg J failed to consider whether or not the child should be heard. This issue was not raised by anyone at first instance. Hogg J had wrongly been left to think that the issue had been raised and determined at an earlier hearing.

Ÿ Upon remittance, the High Court will have to determine whether it is necessary for the child to be heard. The child's age – 7 years old – was not a bar to her being heard of itself; her age is similar to that of a number of children who recently have been heard in Hague Convention 1980 proceedings as a consequence of decisions of the Court of Appeal and Supreme Court.

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Surrogacy Law Update (February 2015)

Andrew Powell, barrister, 4 Paper Buildings

Since the last surrogacy update the most important case in the world of surrogacy has been the President's decision in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam). The decision has been welcomed by commissioning parents, academics and lawyers as constituting a common sense approach to some of the more rigid aspects of the statutory framework that governs surrogacy in this jurisdiction.

This update will look at Re X in detail and consider what we can expect from future cases in light of this landmark decision.

Re X The main issue that arose in Re X concerned an application for a parental order made out of time. Section 54 (3) of the Human Embryology and Fertilisation Act 2008 stipulates that the application must be made within 6 months of the child being born. The application in Re X was made over 2 years after the child's birth.

In exploring whether it was open to the court to employ rules of statutory interpretation essentially to "read down" the provision, the President observed:

"The starting point is clear and remains essentially unchanged from that identified Dharmaraj v Hounslow London Borough Council by Lord Penzance in Howard v Bodington (1877) 2 PD 203 and most recently re-stated by Sir Stanley Burnton in Newbold and others v Coal Authority [2013] EWCA Civ 584, [2014] 1 WLR 1288. I must consider section 54(3) having regard to and in the light of the statutory subject matter, the background, the purpose of the requirement (if known), its importance, its relation to the general object intended to be secured by the Act, and the actual or possible impact of non-compliance on the parties. The question, as posed by Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, is, Can Parliament fairly be taken to have intended total invalidity? As Toulson LJ put it in [2011] EWCA Civ 312, [2011] PTSR 1523, Is any departure from the precise letter of the statute, however minor, to be fatal? And the assumption, as Sir Stanley observed, must surely be that Parliament intended a "sensible" result." (per Sir James Munby at para 52)

The President later opined:

"Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical." (Per Sir James Munby at para 55)

The President concluded that section 54(3) did not have the effect of preventing the court from making a parental order merely because the application is made after 6 months. However, the scope of the President's reasoning did not end there. His lordship also concluded that if his reasoning in respect of a straightforward application of the principle enshrined in Howard v Bodington (1877) 2 PD 203 (i.e. what is the consequence if there is a failure to comply with the strict letter of the statute?) was incorrect, the court was entitled to make an order after 6 months having regard to the ECHR.

Saliently, the President stated:

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"I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks." (Per Sir James Munby at para 65)

What can we expect post Re X? Plainly each case will be fact specific; there doesn't appear to be a general rule. Just because an application is made out of time, there is no guarantee a parental order will be made. The scrutiny exercised by the court in these applications will be just as intense – arguably more so where the court is invited to "read down" statutory provisions and depart from the literal meaning of a statute.

Should we expect a flurry of applications being made following Re X? Well, what we can certainly expect is that where applications for parental orders are made out of time, there are likely to be other ancillary issues that the court will have to grapple with. For example, consent may be an issue that the court has to address where a considerable period of time has lapsed since the commissioning parents entered into the surrogacy arrangement.

In the most recently reported case to emerge since Re X where an application was made out of time, the court had to deal with exactly that issue.

In AB v CD (Surrogacy: Time Limit and Consent) [2015] EWFC 12 the court was invited to make a parental order in circumstances where:

(i) The Respondent surrogate mother (who lived in India) had not had notice of the application and consequently did not have the opportunity to say whether she consented to the making of an order;

(ii) There was some uncertainty as to whether the surrogate was married at the time of the embryo transfer;

(iii) The application for a parental order was made over 3 years after the birth of the children; when the statutory provisions require it to be made within six months.

In AB v CD the applicants entered into a surrogacy agreement at a clinic in India. The applicants were both born in the UK but had spent time in Australia. Their intention when they began exploring surrogacy as a possibility was always to return to this jurisdiction. They requested a single surrogate so that AB, whose gametes were used to create the embryo, would automatically be the biological and legal parent. The applicants were informed by the clinic that the surrogate was divorced. There was, however, no legal documentation to support the claim, save for a statement from the surrogate contending that she was divorced. The surrogacy agreement was signed by the surrogate with a thumbprint, with no supporting evidence suggesting that the document had been translated to the surrogate.

The surrogate subsequently gave birth to twins in October 2011 and the applicants and the twins returned to Australia. Proceedings commenced in Australia and the applicants were granted parenting orders, to confer and recognise the applicants' legal relationship with the twins.

Eventually, the applicants decided to return to this jurisdiction. Initially, they made a joint application here to adopt the twins. That application was stayed following the President's decision in Re X and the applicants subsequently made an application for a parental order.

Great effort was made by the liaison manager at the fertility clinic to ascertain the surrogate's whereabouts which proved unsuccessful. The surrogate therefore had no notice in respect of either application before the High Court in the UK (i.e. the initial adoption application and the parental order application).

Theis J observed:

"39. I have carefully considered the position of the surrogate mother in this case and whether she may be prejudiced by allowing this application to proceed, particularly in circumstances where she has had no notice of the application. The reality is, on the information the court has, any prejudice she may suffer is minimal. She has had no direct involvement with the applicants or the children since 2011, the evidence points towards her having moved on in her life. She co-operated with the Australian proceedings in 2012 which, not unreasonably, she may have regarded as the end to her involvement in any litigation concerning the children. The tenor of what she said within those proceedings is that she did not anticipate having any future role in the children's lives. She did not appear willing to co-operate with attending appointments with SCI in late 2013, and the more recent evidence demonstrates she is not contactable at all.

40. Turning to consider the applicants and the children, they will suffer, adopting the language used in Re X, 'immense and irremediable prejudice' if this application is stopped in its tracks. The applicants legal relationship with the children would be significantly different than what they had intended. There are positive benefits to the applicants and the children in allowing this application to proceed. They issued their application very promptly once they were made aware of the decision in Re X. Prior to that they had (wrongly) assumed they would not have been able to make the

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application whilst living outside the jurisdiction and once in the jurisdiction were advised, prior to Re X, that they needed to make their application within six months of the birth, namely before April 2012.

41. I am therefore satisfied, in the circumstances of this case, that despite the delay in issuing the application the requirement under s 54 (3) is met."

In respect of the consent and notice issues that arose, the court found that it was more likely than not that at the time of treatment, the surrogate was still married, which would make her husband the legal father of the children. However the court went on to find that the surrogate's husband did not consent to the surrogacy arrangement, and thus, his consent was not required under s54 (6) of the HFEA 2008.

It was submitted on behalf of the applicants that the affidavit sworn by the surrogate in 2012, more than 6 weeks after the birth of the twins, which was used in the Australian proceedings, could satisfy the s54(6) criteria. Theis J disagreed. Her ladyship took the view that:

i) it was an affidavit that was used in a different context;

ii) it did not convey what s 54(6) requires, namely consent 'with full understanding of what is involved' acknowledging that the person giving consent will no longer be treated as a parent; and

iii) the requirement for consent needs to be considered in the context of the HFEA 2008 which expressly provides an exception to this requirement for consent where the person cannot be found or is incapable of giving agreement.

Theis J concluded that the applicants had taken all reasonable steps to obtain the surrogate's consent and therefore her consent was not required on the grounds that she could not be found.

Finally the court went on to consider the welfare issues and was satisfied in the circumstances that a parental order should be made in respect of the twins.

General points Theis J raised three general points in the exposition of the judgment which should be noted. Her ladyship observed that commissioning parents should be encouraged to:

(a) Promptly make applications for parental orders after the birth of the child, even if they are not present in the jurisdiction, providing at least one of them is domiciled in this jurisdiction (s 54(4)(b). It is only a parental order that provides lifelong security for the child, as it recognises the commissioning parents as the legal parents of the child with all the positive benefits that flow from it. Without that order their legal relationship with the child is best described as precarious; in most cases without such an order being in place, the surrogate mother (and her husband, if she is married) remain the legal parents of the child.

(b) Take steps to ensure there are clear lines of communication with the surrogate mother, and her husband if she is married, to facilitate the giving of consent after the expiry of six weeks from the birth (as required by section 54(6) and (7)). This should ideally include meeting the surrogate mother.

(c) Ensure there are coherent records regarding any sums paid under any agreement, in particular those that are paid to the surrogate mother.

Once again, we see the court giving would-be commissioning parents a reminder of the importance of taking appropriate steps when thinking about possible surrogacy arrangements.

It might be said that Re X should be regarded as a turning point in respect of the law relating to surrogacy in this jurisdiction. What it has certainly done is to re-galvanise the wider socio-legal debate about surrogacy law in general.

The overarching message exemplified by the recent surrogacy debate in the House of Commons in October last year, is that it remains the case that Parliament will always consider the welfare of any child born as a result of a surrogacy arrangement, as the court's paramount concern. Jane Ellison, the Parliamentary Under-Secretary of State for Health observed:

"Surrogacy is, obviously, an emotive issue, and it is good that we have had such a calm debate. It is recognised by all that it is not an easy area in which to make progress, but a case has been made that the time has come to examine it, not least because of the complexity of the international situation....

"...The law is aimed at striking a balance in protecting the rights of the surrogate mother and her family, the child, and the commissioning couple. The overall aim is the safeguarding of the child's welfare, which should be kept as a paramount consideration. There is consensus about that, I think."

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Statutory reform is highly unlikely in the near future with an election weeks away. But it is plain that it is an issue which has gained a great deal of cross-party support. However, in the meantime, we must wait and see what other parts of the s54 criteria are challenged in the courts, and how far the courts are prepared to read down the statute.

Developments in the ECHR Outside of cases decided in this jurisdiction, of relevance more generally, is a recent case in the ECHR. In Paradiso and Campanelli v Italy (application no. 25358/12), an Italian surrogacy case, the ECHR ruled that a de facto family life existed between the commissioning parents and the child (thereby engaging Article 8), even where the child had spent only 6 months with the commissioning parents.

The case concerned the placement in local authority care of a 9 months old child, who had been born in Russia following a gestational carrier arrangement, where it subsequently emerged that the commissioning couple had no biological relationship to the child. As a result the child was under a guardianship order and placed in a children's home. The commissioning parents were not informed of the location of the child or permitted contact. The child later received a new identity.

In respect of the applicants' complaint regarding the removal of the child, the court held that a de facto family life existed between the couple and the child. However, the finding of a violation of Article 8 did not oblige the Italian authorities to return the child to the commissioning parents, given that since 2013the child had been with a foster family, with whom he had developed emotional ties. The applicants received a total of 30,000 Euros in damages (€20,000 in respect of non- pecuniary damage and €10,000 in respect of costs and expenses).

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A Theory of Everything – Special Contributions in Matrimonial Finance

Joshua Viney of 1 Hare Court

Introduction Oscar fever is still in the air. Two of the leading films of the past year have been the two biopics 'A Theory of Everything' and 'The Imitation Game'. Both films have brilliant portrayals of their respective subject matters – Stephen Hawking (played by Eddie Redmayne) and Alan Turing (played by Benedict Cumberbatch). The relevance of this is that both Hawking and Turing are/were geniuses. Everybody knows that they are geniuses, they know it, we (the audience) know it and the filmmakers know it. But how do we know it? You can point to their intellect (undoubtedly high) or their achievements (undoubtedly impressive) or their view of the world and their subject matter (arguably unique). But which of these stakes them out as 'geniuses', is it one particular aspect or is it a mixture of all three? Was Turing a genius before he broke the Enigma code or was his genius confirmed subsequent to its breaking? Ultimately, do we simply know geniuses when we see them?

The significance of the above discussion is that in matrimonial finance it is possible to depart from equality in the division of the matrimonial assets where one spouse has demonstrated that their contribution to the marriage has been a special contribution. The spouse may seek to demonstrate this through a number of ways. In seeking to clarify the legal test for a special contribution two issues have remained stubbornly unclear, perhaps for legitimate reasons, namely what level of skill/effort or genius is required and what degree of assets counts as 'exceptional'? To date judges have effectively adopted the approach of 'we know it when we see it' and have stayed away from providing anything more prescriptive.

The Law Fresh from the case of White v White [2000] UKHL 54 a special contributions argument arose and was approved in the Court of Appeal in Cowan v Cowan [2001] EWCA Civ 679. Here the total net assets were approximately £11.5 million. This had been accumulated off the back of the husband's plastics business. Of note, was the husband's development of bin liners, which Thorpe LJ termed 'genius'. A relevant consideration for the purposes of this article was Mance LJ's warning at paragraph [161]:

'The exercise of special skill and effort raises yet further and different considerations. I start by recording my conviction that there is no sensible basis for restricting consideration to cases of "stellar contribution", as Miss Baron submitted. Ultimately, there is probably one continuous spectrum, extending from the entirely ordinary to the "stellar". For convenience, it is useful to speak of any acquisition of wealth that is achieved by more than ordinary skill and effort as "special", and I would certainly wish to discourage over-refined analysis of the precise extent to which skill and effort may have been "special". The underlying idea is that a spouse exercising special skill and care has gone beyond what would ordinarily be expected and beyond what the other spouse could ordinarily have hoped to do for himself or herself, had the parties arranged their family lives and activities differently. The first spouse's special skill and effort is special to him or her, and the individual's right to the fruits of an inherent quality of this nature survives as a material consideration despite the partnership or pooling aspect of marriage. For my part, I think that this consideration is a material one to which weight can and should be given in appropriate cases.' (emphasis added)

A more restrictive approach than Cowan was embraced by the Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685. Here the assets were approximately £20 million and were generated from the sale of the husband's company. Bodey J stated:

'[69] I agree that it is not possible to define once and for all, by way of some formulaic label, the precise characteristics of the fortune-maker (or fortune-making) required in the paradigm case such as this, in order that when the proposed distribution of the resources is checked against the "yardstick of equality", the fully contributing homemaker should receive a lesser share of the wealth than the fortune-maker.

[70] However, those characteristics or circumstances clearly have to be of a wholly exceptional nature, such that it would very obviously be inconsistent with the objective of achieving fairness (i.e. it would create an unfair outcome) for them to be ignored.' (emphasis added)

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The test as espoused bears a comparison to the test in conduct cases. Bodey J's formulation was adopted by the House of Lords in Miller; McFarlane [2006] UKHL 24.

Following this, a special contribution argument raised its head once more in Charman v Charman (No 4) [2007] EWCA Civ 503. Here the total assets amounted to approximately £131 million. Coleridge J at first instance accepted the husband's special contribution argument, awarding the wife only 36.5% of the assets. The husband appealed this decision and the Court of Appeal noted that it would be unlikely that there would be a departure from equality greater than 66.6 % - 33.3%.

More recently special contributions has been considered in two cases - SK v TK [2013] EWHC 834 (Fam) and Cooper-Hohn v Cooper-Hohn [2014] EWHC 4122 (Fam).

In SK v TK the husband was a technology entrepreneur. The net assets were approximately £18 million. Whilst the husband had created some technology early on in his career the majority of his work had been in the management of his business. One aspect of the husband's case was a special contributions argument. Moor J dismissed this stating:

'[44] Nevertheless, I am quite satisfied that, applying the authorities, this does not amount to a "special contribution" such as to amount to a good reason for departure from equality. It would not be accurate to describe him as a "genius". Equally, whilst the extent of his business success is rare and something to be applauded, it cannot be said to be "exceptional". I did not in any way get the impression that it was something that it would be inequitable for me to disregard.

[45] I realise that the quantum of the fortune amassed by a businessman is only one feature. I am certainly not intending to lay down a rule that it is impossible to make a "special contribution" if the assets are below £20 million. It is however a factor that the Husband's business success has not been so great as to generate truly vast wealth. He has been very successful. Whilst he is to be applauded for that, it is quite impossible to say that his contribution in this regard gets close to justifying a greater share of the wealth than that of the wife who contributed herself in an equally valuable way to the best of her ability.' (emphasis added)

In Cooper-Hohn v Cooper-Hohn the husband was a financial investor and had been incredibly successful generating assets of between $1.35 - $1.6 billion and a charitable foundation of $4.5 billion. The husband sought a departure from equality partly on the ground of special contribution. Roberts J considered the case in exceptional detail and found that a departure from equality was justified. At paragraph [282] she asked herself the following questions:

i. Can it properly be said that he is the generating force behind the fortune rather than the product itself?

ii. Does the scale of the wealth depend upon his innovative vision as well as on his ability to develop those visions?

iii. Has he generated truly vast wealth such that his business success can properly be viewed as exceptional?

iv. Does he have a special skill and effort which is special to him and which survives as a material consideration despite the partnership or pooling aspect of the marriage?

v. Would it, in all the circumstances, be inequitable for me to disregard that contribution?

She answered each of these with a 'yes'. She then went on to ask at paragraph [283] whether:

'Is it necessary for the purposes of 'special contribution' for me to find that the husband possessed the quality of 'genius'?'

Roberts J did not state whether it was necessary but went on to consider the question in any event stating:

'There are various definitions of the word 'genius' but all seem to suggest that, in order to qualify for this sobriquet, a person must have some exceptional natural capacity or intellectual or creative power or other natural ability which finds reflection in the exercise of an exceptional skill in a particular area of activity. Applying that definition to this husband, I take the view that he qualifies as a financial genius in his particular field of financial investment. If he does not, who could?'

Analysis Whilst the tests Roberts J gave herself above would be helpful in a similar case one cannot help but conclude that a similar case will be rare. Roberts J asked herself when considering whether Mr Cooper-Hohn qualified as a genius 'if he does not, who could?'. Quite. This was a truly exceptional case; the assets were larger than all of the reported previous special contribution cases combined. This was, with respect to Roberts J, a situation where she could feel more than comfortable in the 'I know one when I see one' approach.

The difficulty lies in cases where judges and practitioners are less clear; cases closer to the facts of SK v TK, for example. For such cases, in attempting to apply Roberts J's rhetorical questions, the following remain undeveloped in relation to question (iii) and (iv):

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- What is exceptional wealth?

- What is a special skill and/or genius?

Perhaps unsurprisingly, the courts have expressed great discomfort at providing an analysis of these two areas. Highlighted above were the comments of Mance LJ and Bodey J, repeated here respectively for ease of reference:

'I would certainly wish to discourage over-refined analysis of the precise extent to which skill and effort may have been "special".'

'I agree that it is not possible to define once and for all, by way of some formulaic label, the precise characteristics of the fortune-maker (or fortune-making) required in the paradigm case such as this'

Taking each issue individually:

Exceptional Wealth Moor J in SK v TK made it clear that he was not 'laying down a rule' that assets below £20 million could not be a special contribution. This will be addressed further below. However, what was clear from his judgment was that:

'the Husband's business success has not been so great as to generate truly vast wealth'.

What then is 'truly vast wealth'? Clearly, in the mind of Moor J, it is more than £20 million. One might highlight at this point that the man on the Clapham omnibus might raise an eyebrow at that conclusion. Nevertheless, this is an area where more certainty and an 'anchoring figure' could be helpful for both practitioners and judges. The possibility of an anchoring figure, £50 million for example, would be arbitrary, but no less arbitrary than the unpredictable process of 'I know it when I see it'.

Returning to Moor J stating that assets below £20 million may still evoke a special contribution argument, this no doubt must link to the question of 'genius' and the manner in which the £20 million was created. For example, were the £20 million to be generated over a markedly short period off the back of a parties' genius that may be a special contribution. Imagine for a moment if Mark Zuckerberg, the subject of another 'genius' biopic and Oscar Winner 'The Social Network' were to have been married and divorced in the early days of Facebook; he may have had a strong argument for special contribution (although his fictitious wife in this scenario may have sought the help of the Winklevoss twins).

Genius The question of genius is patently more difficult to analyse. As Bodey J recognised there can be no formulaic label to sort the genius from the talented. However, if we are to rely on the 'I know it when I see it' approach this will inevitably be influenced by the scale and history of the party's achievements. This was the underlying factor in both of the recent decisions of SK v TK and Cooper-Hohn v Cooper-Hohn.

It is therefore likely that the future of special contributions will be fought on what constitutes exceptional wealth.

A Final Point This article has assessed the current approach to special contributions but a background feature whenever one considers special contributions is whether it should exist at all. In truth, an assessment of whether special contributions should justify a departure from equality is beyond the remit of this article. However, to simply ignore the protestations of several members of the judiciary is blinkered. Wilson LJ memorably stated in Charman:

'[80] The notion of a special contribution to the welfare of the family will not successfully have been purged of inherent gender discrimination unless it is accepted that such a contribution can, in principle, take a number of forms; that it can be non-financial as well as financial; and that it can thus be made by a party whose role has been exclusively that of a home-maker. Nevertheless in practice, and for a self-evident reason, the claim to have made a special contribution seems so far to have arisen only in cases of substantial wealth generated by a party's success in business during the marriage.'

One of the wife's arguments in Cooper-Hohn, who not only raised the parties' children but also significantly contributed to the parties philanthropic activities, was 'what more could I do'? This was neatly considered in paragraph [273] of Roberts J's judgment:

'It is really the third point which goes to the heart of the case which is being advanced on behalf of the wife. Given the extent of her involvement with the Foundation (which I have already described earlier in this judgment); her obvious devotion to and prioritisation of the family's needs – a family of four children which included triplets; her role as homemaker and co-ordinator of all the children's social and other needs; what more, asks Mr Pointer, could she have done? What more should she be expected to have done in order to qualify for equal treatment with the husband in terms of financial outcome? As he rightly reminds me, she was not simply a 'working' wife; she was a wife who was

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fully engaged in fulfilling her role in the joint objective which had underpinned the marriage from its very inception. Her role in the Foundation demanded of her the skills and qualities which would have been needed in any CEO at the top of an organisation. Until the time came when the 'job' grew too big for any one individual, she performed that role without remuneration and entirely for the benefit of the beneficiaries of its grants and programmes. I thought it slightly churlish on the husband's part to say, as he did, that he did not seek to control the amount of time which she spent at work and she more or less devised her own working programme around the needs of the home and the children. I am quite satisfied that there was not a spare moment of this wife's waking day when she was not actively engaged either in discharging her role in the home or working for the Foundation. I heard, and accept, her evidence that her day would often start in the early hours to coincide with calls which needed to be made in different time zones. She was frequently still working in her study at home after midnight when the children no longer needed her attention.'

Despite the above, as already discussed Roberts J did depart from equality on the basis of the husband's special contribution. Nevertheless, when reading paragraph [273] one is left with the sense that perhaps this could have been the case where the wife's quite clearly stellar non-financial contribution to this family and her endeavours in the families' philanthropic ventures could have been reflected.

Conclusion The law is left in a difficult position, practitioners and their clients more so. The Court of Appeal in Charman considered that it would be 'dangerous' for them to identify any figure as a guideline threshold for a special contribution, Sir Mark Potter stating at paragraph [88]:

'However laden with qualification, the guideline might discourage a court from discerning special contribution in the generation of wealth below the threshold in circumstances, however rare, in which it should properly do so. The greater concern, however, is the obverse risk that it might encourage a court to discern special contribution in the generation of wealth above the threshold in circumstances in which it should not properly do so. While the law recognises the concept of a special contribution in the generation of wealth, there is no doubt that, following the decision of this court in Lambert, approved and developed in Miller, it keeps the concept in very narrow bounds. We would not wish a party's claim to have made a special contribution to succeed by reference to something interpreted as effectively a presumption deriving from our identification of a threshold figure.'

Whilst there clearly are dangers in providing a guideline figure it is self evident that the scale of the wealth is the key (but not sole) consideration in special contribution cases. This was acknowledged in the subsequent paragraph [89] in Charman:

'the greater the wealth, the greater is the extent to which it is unmatched and to which it calls for an unmatched, or unequal, division under the sharing principle.'

Practitioners are therefore left in a position where there is very little guidance about the most important factor in a special contributions case. The law is crying out for an overhaul. Sir Mark Potter's warnings in Charman relate to the situation where the manner in which a set figure of wealth has been generated is overlooked. However, recent precedents shows that judges are considering how the parties' wealth is accumulated, not just the size of the wealth.

Surely the problems in relation to special contributions are surmountable. One possible route may be to have an anchoring figure in place which can then be a centre point for the arguments about how a certain figure in any case was reached. If it is below or above the anchoring figure then the arguments will centre on that.

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CASES

Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26

Background to the proceedings The proceedings concerned three children: J (13), T (11) and I (6). On the application of their father ("F"), Roberts J ordered their return to the Republic of Ireland after they were brought to the UK by their mother ("M") on 12th March 2014. W resisted the return of the children under art 13b of the 1980 Convention and the child's objections exceptions.

There was an older brother, D, who was 16 at the time of the proceedings before Roberts J. Due to his age he was not subject to the Hague Convention proceedings, but after the event he and J consulted a solicitor and applications were made on their behalf to the Court of Appeal for permission to appeal which was granted to D and to M.

The issues in the case There were two issues to be decided: (1) the substantive challenge to Roberts J's return order; and (2) the procedural question relating to the joinder of children as parties for the first time in the Court of Appeal.

The law Black LJ, giving the lead judgment, considers in detail the proper approach to the children's objections exception at paragraphs 10 to 77. In particular she provides a comprehensive review of the domestic jurisprudence in the field stretching back over the past two decades. She states that in such cases speed is of the essence.

The traditional approach to children's objection exception cases in England and Wales is to break the matter down into stages: the gateway stage (a. the child objects to being returned, and b. the child has attained an age and degree of maturity at which it is appropriate to take account of his/her views) and the discretion stage. This was not challenged before the Court of Appeal. The leading case is Re S (A Minor)(Abduction: Custody Rights) [1993] 2 WLR 775. However Black LJ warns that the older case law should be read, keeping in mind later developments, particularly Art 11 of Brussels IIa, the House of Lords decision in Re D (A Child)(Abduction: Rights of Custody) [2007] 1 AC 619 and also Re M and another (Children)(Abduction: Rights of Custody) [2007] UKHL 55.

Re M has two particularly important features for these purposes: (1) that when it comes to the exercise of discretion once a ground for opposition to return had been made out, there was no additional test of exceptionality, and (2) the discretion that arises is at large.

In respect of the gateway stage of the children's objections exception, Black LJ sets out the following as "tolerably well" established principles:

(1) Whether the child objects to being returned is a matter of fact.

(2) There is no fixed age below which a child's objections will not be taken into accounts; however the younger the child is the less likely it is that he/she will have the necessary maturity.

(3) It must be an objection and nothing less.

(4) The objection must be to returning to the country of habitual residence as opposed to to returning to particular circumstances in that country (this may be difficult to separate in practice).

(5) The child's objections are not determinative.

Black LJ then considers a feature which require more discussion, namely the inconsistency in approaches to the gateway stage: the Re T approach (technical, structured, requiring the court to go into considerable detail as to the circumstances in which the children object) as against the more basic approach (a much simpler exercise at the gateway stage, with the detail of the case being considered if and when it comes to determining whether return should be ordered).

After consideration of the authorities, the judge disapproves the approach in Re T, calling it unhelpful. Instead, she states at paragraph 76 how the law should work in practice: the starting point is the wording of Article 13. Thereafter what is relevant to make the necessary decisions will vary from case to case. This is not intended to be prescriptive or to create a new test.

The outcome in this case F was Irish, M was British. They married in 1996 and lived their married life in Southern Ireland where the children were born and raised. By November 2013 the marriage was over but the family remained in the family home until 12th March

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2014 when M brought the children to England without giving any notice to F. M alleged that there had been a significant history of domestic violence. The children reported to the CAFCASS officer that they were scared of F and did not want to go back to him, and that they were settling well in England. Roberts J reminded herself that she should in such cases take allegations at face value, found that the the children were frightened of returning to F, but found that M had failed to make out her Article 13b defence (grave risk of harm to the children) particularly in light of the safeguards available. She was not satisfied that the children's objections were objections in Convention terms and therefore made a return order.

The Court of Appeal found that the judge at first instance was wrong, the children's objections were objections in Convention terms in light of the CAFCASS officer's evidence. This was one of those cases where the children were unable to separate their feelings about returning to Ireland from their feelings about F. Black LJ also found that the children had attained an age and maturity making it appropriate to take their views into account.

Moving then to discretion, Black LJ states that the judge at first instance's consideration was much too narrow and that in light of the material before it, the Court of Appeal could exercise its discretion. Weighing all the circumstances of the case and the relevant factors, the Court of Appeal allowed the appeal and dismissed F's application for the return of the children to Ireland.

Joinder of children as parties to an appeal Black LJ sets out that it is imperative that consideration as to appropriate parties is given at the earliest possible stage.

There was no dispute that children could in principle bring their own appeal, despite not being parties in the court below, and that they could be joined as parties for the first time at the appeal stage. Where the question of the participation of a child appears for the first time at Court of Appeal stage, this is governed by the CPR 1998, although the welfare considerations and Practice Direction 16A are relevant. Litigation friends are likely to be required.

Summary by Kyra Cornwall, barrister, 1 Hare Court

In the matter of Capita Translation and Interpreting Limited [2015] EWFC 5

The application, which arose out of public law proceedings in respect of two children of Slovak Roma origin, was for Capita (a company engaged to provide interpreting services to HMCTS) to pay the costs of the local authority, Kent County Council.

To take part in the proceedings, the parents required the assistance of Slovak interpreters. By the time the application for costs was made, there had been six previous occasions upon which Capita had failed to provide interpreters (either at all, or on time, or able to interpret the Slovak language).

On the seventh occasion (7 May 2014) by which time the case had been transferred to the High Court and at which the issue was parental opposition to the making of adoption orders, no interpreters attended, despite clear directions having previously been given. Accordingly, the President adjourned the hearing and directed Capita to provide a statement explaining the circumstances of the default.

At the reconvened hearing (which did proceed) the local authority (and, at that stage, those acting for the children) sought costs orders against Capita for the abortive hearing. The President had, by then, received written submissions from those seeking costs and a statement from Capita's Relationship Director. He gave further directions to enable Capita to consider the case against it and the application was subsequently heard on 14 November 2014.

The factual background, including the circumstances of the previous ineffective hearings, was not in dispute. Setting these out in detail, the President noted the repeated failure to provide interpreters and that, in respect of the 7 May hearing, the notification that no interpreters would be available was provided only the day before by way of a "banal and formulaic" email apologising for "any inconvenience caused"; that this apparently complied with an agreed protocol did not affect the President's view of Capita's liability.

The explanations provided by Capita (both in its initial and subsequent statements) for the "lamentable" situation, were that the interpreters (who were self employed) were not its employees and that it could not compel them to take up an assignment nor to honour one once accepted. Moreover, it transpired that there were only 29 Slovak interpreters on Capita's books nationwide. In the view of the President, the contractual arrangements between Capita and individual interpreters were matters for Capita and did not affect the issues he had to decide.

What was of importance was the agreement between Capita and the Secretary of State for Justice, the terms of which had been fully analysed in the case of Re Applied Language Solutions Ltd [2013] EWCA Crim 326, (hereafter referred to as "ALS") upon which Kent CC relied.

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The argument put forward by the local authority had four stages, namely; (1) that Capita's failure to provide interpreters was a breach of the agreement with the Secretary of State, (2) that this situation came within the ambit of the court's powers to order costs against a non party pursuant to Section 51 of the Senior Courts Act 1981, (3) that the principles to be applied were those set out in the applicable case law (most recently B v B ( Costs: Order against non party) [2013] EWHC 1956 (Fam) ) and, (4) that a proper application of the relevant principles should result in an order being made.

Quoting at length from passages in the ALS judgment, which set out both the fundamental role of interpreters in the provision of a "fair and just" system and the principle that a private company taking on the obligations of the State, was responsible for carrying out those obligations, the President confirmed that such considerations applied with equal force in public family law proceedings as they did to the criminal justice system.

The obligation on the company was to provide interpreters for 100% of cases in which they were required and, in the absence of a force majeure affecting either the company or the interpreter, the company could not rely on the failure of an interpreter as an excuse for non performance.

Accordingly, applying ALS, stage 1 of Kent CC's argument (the failure of Capita to discharge its obligations under its agreement with the Secretary of State) was made out.

Turning to the second limb (and again relying on ALS), having noted that the failures were repeated and, taking into account the obligations of the state and the wider public interest, that they were capable of amounting to "serious misconduct", the President once again confirmed the applicability of the principles to public family law and indicated that he considered stage 2 (concerning the circumstances in which the court could consider ordering costs against a non party) was also made out.

As to the third issue, that of the principles to be applied when considering non party costs orders; the President quoted with approval from the applicable case law, including reference to it being the case that, ultimately, the test was whether it was just to exercise the power conferred under s.51 SCA 1981 and that "exceptionality" was neither a precondition nor a prerequisite. As Cobb J had held in B v B, the circumstances where an order might be applicable, included those where the failures were "extensive" and had had a "profound effect on the conduct of the proceedings".

Turning to the fourth stage (whether in the current circumstances a cost order should be made), the President agreed that Capita's failures were serious, serial in nature and indicative of systemic problems. They had been extensive and had had a profound effect on the conduct of the proceedings. It was therefore just, in this case, to make an order.

The decision to make an order must be firmly rooted in the precise circumstances of each particular case and it was not to be taken that Capita would be liable for "each and every" failure to provide an interpreter, Slovak or otherwise. Nor should it be taken that similar liability would necessarily extend to other private sector contractors - which might have very different agreements in place - that provided services to the courts.

Additional arguments as to the impact of the profit motive upon remuneration of interpreters by Capita (and thus the willingness of interpreters to work for the company) were adjudged - whatever the factual merit - to have no bearing on the instant case. Capita's arrangements were a matter for the company whereas the key question for the court was simply whether or not it had fulfilled its obligations.

In respect of discussion as to whether the obligation to provide an interpreter was in any way qualified by the need for there to have been "reasonable notice"; this was a matter for another day when the point arose.

Dealing with the counter-arguments put on behalf of Capita, the submission that any failures were matters of commercial contract and should be dealt with between Capita and the Secretary of State rather than the court, could not "escape" the decision in ALS. The issue considered in that case of whether or not there had been a beach of contract was "quintessentially a function of the court" and there was no question of the court invoking its jurisdiction to make costs orders without such a breach having been first established.

As for the suggestion that the jurisdiction to make adverse costs orders extended only to circumstances where there was a direct obligation to the court under legislation, whilst it was acceptable up to a point, there was nothing in any of the authorities to suggest that this was exhaustive and, in the President's judgment, it was plainly not.

Finally, the contention that the particular failure on the 7th May 2014 did not justify the order sought could not gainsay any of the other points made.

Accordingly, a costs order was to be made against Capita. An application for permission to appeal was made but refused.

Case summary Katy Rensten, barrister, Coram Chambers

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Re S-W (children) [2015] EWCA Civ 27

Background to the proceedings The proceedings concerned three children, aged 14 ('ES'), 11 ('LW') and 10 ('AW'), with the local authority having been involved with the family since 2006 due to concerns of general neglect, parental drug and alcohol abuse and the mother's inability to separate from a violent partner. The children were not removed from the home until November/December 2012. LW and AW were placed with their paternal grandmother and ED with his maternal grandmother. ES and AW have remained living with their respective grandparents, but LW by the time of case management hearing had been in 14 different placements.

In February 2014, the mother had been told that there was the potential for LW to return to her care. During a pre- proceedings meeting on the 19 March 2014, it was decided that the mother would be assessed as a potential carer for all the children, a decision which led to a parenting assessment being filed on the 4 July 2014. That assessment was not positive and ruled out rehabilitation of all the boys to their mother. Notwithstanding that conclusion, in light of LW's continued instability, distress and fervent desire to go home, active consideration continued to be given to some sort of placement which would allow LW to be with his mother.

The proceedings Despite the longstanding concerns about the family, the local authority did not issue care proceedings until 18th July 2014. Upon the issuing of care proceedings a Guardian was appointed, who filed an initial evaluation, which raised three significant matters:

i) she had not seen the children, each of whom was expressing a desire to live with their mother and ES was already 14 years old;

ii) she had grave concerns for the welfare of LW and the need for the local authority to explore all available options for him; and

iii) she wished to have the opportunity to read a wide range of documents including the social work records.

Prior to the listed case management hearing, an advocate's meeting was held at which the advocates had agreed on a course of action including hair strand testing on the mother. Interim care plans were available for the hearing which were all out of date and misleading.

At the hearing the court had in addition to the Guardian's analysis, the parenting assessment, a statement from the mother and a report from the social worker. All parties believed that the matter was going to be listed for an early IRH, but within in a matter of minutes of attendance before the judge, the judge made clear, in trenchant terms, his determination to conclude the case then and make final care orders. In the face of the judge's expressed views, the parties were unable to dissuade him from this course of action. The judge gave neither a judgment nor reasons prior to making final care order in relation to all three children.

The appeal King LJ, giving the lead judgment, considers the various circumstances in which a court could make a final order without a full hearing (at paragraphs 39 to 41.) King LJ however comments that whilst there are a number of conceivable circumstances in which a final care order will be made at the case management hearing such a course will be appropriate only occasionally and in exceptional circumstances. King LJ further states at paragraph 40:

'…. The PLO militates against such an outcome not least because:

i) It is listed within days of proceedings being issued, often solicitors will only just have become involved and had only limited time to take instructions it follows that the evidence to be relied on by the parents at a full trial is unlikely to be available, even in outline;

ii) The Guardian is unlikely to have read more than the Checklist documents served with the application and may well not have seen the decision making records which are only disclosed on request; further, unless he or she have been involved with the family in relation to other children he or she is unlikely to have seen the parties or the children, a significant omission particularly where, as here, there are older children who have lived with a parent for many years;

iii) A "section 31A" CA 1989 care plan will not, in all likelihood, be available.'

King LJ, also comments on the key feature of the family justice reforms, specifically that the courts are ensuring by using "vigorous and robust case management", that, wherever possible, delay is minimised and the statutory 26 week requirement is achieved, and that the CMH is essential in making sure that the case is in proper order to enable it to be

www.familylawweek.co.uk Family Law Week March 2015 - 63 ready for disposal within the 26 weeks. King LJ did however warn of the danger which lies when, as in this case, vigorous and robust case management tips over into an unfair summary disposal of a case.

The President, further emphasised at paragraph 52 – 57:

'52. Vigorous and robust case management has a vital role to play in all family cases, but as rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to "deal with cases justly, having regard to any welfare issues involved". So, as my Lord has emphasised, robustness cannot trump fairness. …. 55. Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG, paras 27-28. But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays due regard to two fundamental principles which apply as much to family cases as to any other type of case.

56. First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard: see Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, paras 28-29. As I observed (para 55):

"The fact, if fact it be, that the circumstances are such as to justify intervention by the State, … does not absolve the State of its duty nonetheless to act fairly. It is not enough for the State to make a fair decision: the State must itself act fairly in the way in which it goes about arriving at its decision."

A parent who wishes to give evidence in answer to a local authority's care application must surely be permitted to do so.

57. Secondly, there is the right to confront one's accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so.'

Summary by James Holmes, barrister, 1 Gray's Inn Square

Arif v Anwar [2015] EWHC 124 (Fam)

This judgment concerned the trial of two preliminary issues:

1. The issue of a beneficial interest in a property; and 2. The "dealings" issue.

By an order dated 21 March 2013 (reported at [2013] EWHC 624 (Fam) Norris J had directed that these issues should be determined in matrimonial proceedings.

Background W petitioned for divorce on 11th June 2011. H was made bankrupt on his own petition on 6th October 2011.

H was living in the 8 bedroomed FMH at 68a Burkes Road, Beaconsfield ("the Property"), with his son (Raziz Rehan, the second respondent), his son's wife and their child. The property was valued at £1.75m. W was living in a small rented flat with the child of the marriage. Raziz was claiming a 50% interest in the property as well as monies owed to him by H as the result of certain dealings, the result of which claims would be to reduce the size of any surplus in the bankruptcy and therefore the size of any surplus in the estate sufficient to make some provision for W.

The Beneficial Interest Issue The Judge commented that standard disclosure was ordered on the Beneficial interest issue was not conducted with care by H or Raziz, with much disclosure missing or being produced very late. The oral evidence of all parties was significantly coloured by what that party saw as being in his or her best interests. H and Raziz were determined that W should not receive anything. The Judge therefore took a cautious approach to resolving factual issues.

The Property was transferred from H to W in 2001 and she executed a declaration of trust in 2003 stating that she held the Property in trust for H, agreeing that she would at his request and cost transfer it to him. In March 2011 H requested that W transfer the Property to him, presenting a TR1 transferring it to H and Raziz, "on trust for [H]". W refused to sign and petitioned for divorce.

In 2006, Raziz was said to have contributed £500,000 towards the renovation of the Property in return for a 50% share. There were several different but broadly consistent accounts given which were also said by the judge to be consistently vague, but H also gave two inconsistent accounts of this in that he also contemplated engineering a charging order or creating a secured loan. W disagreed.

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There were two documents that arose in disclosure which caused the Judge some concern: the '2001 Declaration' which was prepared on H's business notepaper, recording that H's late first wife held the Property on trust for H and that H wished to gift the beneficial interest to Raziz when he reached 21, and the '2006 Declaration' recording that H was gifting his entire beneficial interest in the Property to Raziz and, H and W's son, in equal shares.

The Judge made the following findings:

1. The Judge found that the 2001 Declaration was ineffective, and therefore found that the 2003 Declaration (signed by W) was correct according to its terms.

2. On the question of whether an agreement was made by H and Raziz in 2006 that Raziz should have a half share, the Judge stated that if an agreement is to have legal effect, it must survive appropriate scrutiny which, where the parties involved are disagreeing, can usually be effected within a trial. However, where the parties are in agreement and it is being challenged from the outside, the general policy is that interests in land should follow the necessary formalities. On the basis that H and Raziz had a common desire to preserve for themselves what they could, the Judge could not place a great deal of reliance on their evidence. He therefore found that in mid-2006 there was an agreement, but the precise position of the ownership would be sorted out in the future.

3. The Judge therefore considered whether there was an alternative of entitlement by operation of a proprietary estoppel available and found that there was.

4. As to the question of Raziz's contribution, the Judge considered the evidence and found that on £280,000 of it could be attributed to Raziz.

5. On that basis, he awarded Raziz a 25% share in the Property. The need to make estimates on the figures made it inappropriate to attempt precise accounting.

6. The 2006 Declaration was therefore found not to effect some settlement of H's retained interest in the property.

The Dealings Issue Raziz also claimed that H owed him further sums from the repayment of borrowings on a further property by Raziz when H was liable for such borrowings. Since the borrowings appeared to have been properly applied originally, this argument would only succeed if Raziz could demonstrate that those borrowings had already been paid off by him, and that the remaining borrowings represented money taken for H's personal benefit.

At the OS v DS hearing the Judge had therefore made careful directions for the examination of various transactions. Unfortunately, this was less useful than hoped due to the limited and late disclosure, and also due to the fact that each and every transaction would have to be considered. A hearing of the issue was not the appropriate vehicle within which to conduct a trust account. However, the Judge did proceed to make some findings and found that there was no claim against H.

Case summary by Kyra Cornwall, barrister, 1 Hare Court

Lancashire County Council v T & Others (Habitual Residence: Care Proceedings) [2014] EWHC 3321 (Fam)

The case concerned five children aged 6 months to 10 years. The family had, until the children's removal to Ireland, always lived in Lancashire, where the children had attended local schools.

The local authority had had considerable involvement with the family. The children had been placed on child protection plans in 2010 following an incident in which one of the children sustained injuries caused by the mother. The mother was cautioned and asked to leave the home by the local authority. The local authority remained concerned about the father's ability to care for the children.

Following the birth of the youngest child, the mother returned to live with the father and the children. An incident between the parents on 15 June 2014 saw the mother leave the family home at the instigation of the local authority. On 8 July 2014 the local authority commenced care proceedings.

It subsequently emerged that the father had removed the children from the family home in the early hours of the morning on 10 July 2014 and travelled with them to Ireland.

On 15 July 2014 interim care orders were granted to the local authority. The order declared that the children were habitually resident in England and Wales. The father subsequently challenged the declaration of habitual residence and the case was transferred to the High Court for consideration of this sole issue.

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The local authority argued that the children were habitually resident in England and Wales on 15 July 2014 and that they had not become habitually resident in Ireland. They further submitted that the father only left England when he did to avoid the care proceedings he knew were about to commence. The mother supported the father's contention that the children were now habitually resident in Ireland. She suggested that the father had discussed such a move since 2002. The father contended that the critical issue was not whether the children had become habitually resident in Ireland, but whether they had ceased to be habitually resident in England. The father pointed to a number of steps he had taken to show that the children were now integrated in Ireland to a sufficient extent to make them habitually resident in that country. The father also raised in his written submissions that the proceedings should be transferred to Ireland under Article 15 of Council Regulation 2201/2003 (Brussels II Revised). The guardian supported the local authority's position. She noted that if the father had indeed planned such a move he would have made some prior arrangements.

Moylan J, after stating that declarations of habitual residence should not have been made without notice to the parents and certainly when no attempt to give notice had been made, found that the children were habitually resident in England and Wales on the relevant date.

An analysis of the applicable principles is summarised at paragraphs 53 – 54 of the judgment.

Moylan J asked himself "taking into account all the relevant circumstances of the case, where, to quote from Mercredi v Chaffe, is the place which reflects some degree of integration by each child in a social and family setting?" He rejected the evidence of the father, concluding that the move had been carried out with the sole purpose of disrupting the care proceedings which were just about to be commenced by the local authority. The steps taken by 15 July had been insufficient for the children to lose their "long established" habitual residence in England. He noted that as the father may move again to avoid future care proceedings, neither he nor the children could be said to be settled in Ireland.

The father's claim under Article 15 of Brussels II Revised was rejected as being without merit: none of the requisite grounds under Article 15(3) were met. Even if the children do now have Irish nationality, Moylan J concluded that the courts in Ireland were not better placed to hear the case than those in England.

Summary by Frances Harris, barrister, 1 King's Bench Walk

NG v Sec of State for Works & Pensions and Another (Child support: receipt of benefit) (CSM) [2015] UKUT 20 AAC

The father successfully appealed a decision of the First-tier Tribunal in respect of the date upon which his liability to pay child support for his daughter ceased. The father's case at first instance was that his daughter had finished full-time education on a date earlier than asserted by the mother and the mother had fraudulently claimed child benefit during this period.

The appeal succeeded because it was accepted that there had been an error on a point of law. The appellate tribunal (the Upper Tribunal), which has an inquisitorial jurisdiction, identified that the First-tier Tribunal had concluded that it was bound by HMRC's decision as to the end date of the child benefit award and that accordingly the HMRC decision determined the child support decision. This was not the correct test. The proper test is set out in JF v Secretary of State for Work and Pensions (SSWP) [2014] AACR 3 (also known as CCS/506/2012), namely it is not whether child benefit had actually been paid but if child benefit was "properly or lawfully payable".

In considering this issue it was accepted that the father had no way to challenge the HMRC decision on child benefit even though it had a direct bearing on his child support liability. Therefore, the First-tier tribunal should have considered whether to invite HMRC to be joined as a party or whether the Agency (previously the Child Maintenance and Enforcement Commission) should have been directed to obtain further specified information from HMRC on the issue.

The Upper Tribunal made no observations on the facts of the case but set aside the decision of the First-tier tribunal and remitted the case to be re-heard by a different First-tier Tribunal.

Case summary by Alison Easton, barrister, Coram Chambers

Re MM (A Child: Relocation) [2014] EWFC B176

The background Both parties were born in South Africa and are South African nationals. They formed a relationship in 1998 and despite several breaks in their relationship they decided in 2004 to move to the UK to pursue better job opportunities. In 2006 the relationship broke down and the mother returned to South Africa however in 2008 they reunited and she returned to the UK to marry the father. The relationship deteriorated and on 12 August 2013, two weeks after M was born, the father left. Following separation the father continued to see M on a daily basis; he informed the mother that he was staying with, and

www.familylawweek.co.uk Family Law Week March 2015 - 66 taking M to, his parents (who lived in the UK). However, unbeknownst to the mother, the father had been in a relationship with a work colleague, Ms G, since March 2013, and he was in fact taking M to her house (where he too was living).

The mother sought the father's permission to take M to South Africa for Christmas 2013, which he agreed to on the basis she sign the divorce papers. On her return, contact was reinstated; however on 8 February 2014 the mother discovered the father's relationship with Ms G (in addition to being told by her mother that he may have a nine year old daughter in South Africa). In response to this news the mother boarded a plane to South Africa, taking with her M and most of her belongings.

The father obtained an order from the High Court for the return of M to the United Kingdom, which the mother complied with on 28 February 2014. Following the mother's application to permanently relocate to South Africa (opposed by the father) and the fathers' application for contact to move to overnight (opposed by the mother) a s.7 report was ordered and the matter came before the HHJ Pearl on 13 – 17 October 2014.

Findings The court heard evidence from both parties, the Cafcass officer and the maternal grandmother. The court made the following relevant findings:

Ÿ The mother returned to the UK in 2008 with the sole reason of marrying the father but always intended to return to South Africa to bring up her children [37]. Ÿ The father had hidden his relationship with Ms G from the mother for 10 months and he hid the fact of Ms G's pregnancy from the mother and the court for five months [20].

Ÿ The father had been dishonest with the mother and the court about his finances, stating he could not afford to pay for M's swimming lessons (£138) when he had recently received £49,000 from his employer (unbeknownst to the mother). He stated he could not afford to travel to South Africa to visit M however the court found that he had exaggerated the likely costs of such a trip and understated his means [43, 45 – 47].

Ÿ The mother's criticisms of the father were a 'necessary part of the litigation'; however the court was satisfied that she (and her mother) were more than capable of not denigrating the father to M and would in fact promote a positive image of the father [48 – 54, 70].

Ÿ In the event permission to relocate was granted, the mother would comply with any visiting arrangements and facilitate contact (indirect and direct) between M and his father [55 – 57].

Ÿ There were no concerns as to the mother's ability to parent M, nor any concerns in respect of the mother's mental health (aside from long – term depression which the court was satisfied was under control) [35].

Ÿ The mother was likely to be in a stronger financial position in South Africa where she would have better job prospects, a pension and beneficial share in property [37].

Ÿ Were the application granted, the mother and M would be surrounded by her immediate and extended family and friends which would provide a supportive and familial environment in South Africa whereas there was no good reason for her to remain in London for either family or career reasons [59 – 60].

Ÿ The abduction of M by the mother in February 2014 was an impulsive one-off which was not part of a pattern of the mother's behaviour and she did not present an on-going risk to M by possible impulsive behaviour [64]'

Ÿ The risks of marginalisation were not inevitable and there was a realistic prospect of M having a meaningful relationship with his father. Visits three times a year were affordable and indirect contact every other day was possible [70, 74].

Decision The decision was made with the welfare of M as the paramount consideration. The definitive case governing the court's approach was Re F (Relocation)[2012] EWCA Civ 1364 (with Payne v Payne [2001] EWCA Civ 166 being for guidance purposes only). On the basis of her findings, HHJ Pearl granted the mother's application and refused the father's application for overnight contact stating that it would not promote M's welfare [80].

The judge considered that a mirror order was not strictly necessary but noted with approval the mother's suggestion that both parties prepare undertakings not to denigrate the other in front of M. Finally the judge criticised the father's ex parte application for the return order in February 2014, noting that it fell far short of the duty to set out all the facts and matters in an open and honest way [78].

Summary by Esther Lieu, barrister, 3PB

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SC v YD [2014] EWHC 2446 (Fam)

The father sought to impugn the decision of the judge to admit the agreement as evidence and submitted that the document was a privileged offer of settlement. At the time the parties entered into the agreement neither of the parties had obtained legal advice and the document was not signed by the mother.

The father submitted that the decision to allow the agreement to be included as evidence for the purposes of the forthcoming final hearing was a misapplication by the Deputy District Judge of the law to the facts of this particular case. The mother contended that the judge was perfectly entitled to reach the conclusions he did, that his decision could not be said to be plainly wrong, and that the application for permission to appeal should be dismissed given that there was no real prospect that the substantive appeal would succeed were permission to be granted. There was no other compelling reason, according to the mother, why the appeal should be heard.

Roberts J held that the question which must be answered, in the context of the application, was whether the Deputy District Judge was wrong to reach the conclusion which he did as to the admissibility of the agreement in terms of his application of the law to the facts of this case.

Roberts J stated that the issue often, as here, lay in the determination as to whether or not a particular document or statement attracts the protection of privilege.

The judge considered the case of Bradford & Bingley v. Rashid [2006] UKHL 37, and Lord Hope's comments where he established at [23] that:

"The question is whether the letters in issue were written in an attempt to compromise actual or pending litigation and, if so, whether it can be inferred from their terms and their whole context that they contained an offer in settlement for which the party who made the offer can claim privilege."

From the decision of the Court of Appeal in Barnetson v. Framlingham Group Limited [2007] EWCH Civ, 502, the judge drew the following principles:

(1) The critical question for me is where to draw the line between protecting the public policy interest which is served by allowing a party (here the father) to attempt to compromise future litigation by making offers of settlement and wrongly preventing the other party (here the mother) from putting her case at its best.

(2) That question has to be answered by a consideration of all the surrounding facts. In other words, the 'highly case sensitive question' requires a 'highly case sensitive' response.

(3) For these purposes the subject matter of the dispute between the parties is the feature of central relevance to determining 'proximity' rather than the point on the time line leading up to the commencement of litigation when the document for which privilege is claimed was produced.

The judge reached the following conclusions:-

(1) At the time when the father delivered to the mother the draft agreement in February 2013, neither of the parties could be said to have been seeking to compromise actual or pending litigation;

(2) It followed that, at the time and in the light of all the surrounding circumstances, it could not be said that there was between them a real dispute which was then capable of compromise in the sense of the test laid down by the House of Lords in Rashid.

For these reasons, whilst the judge accepted that the extempore judgment produced by the Deputy District Judge may not have been as full as it might have been had time permitted further elucidation, Roberts J held that the Deputy District Judge could not be said to be either wrong or plainly wrong on the application of the correct principles of law to the facts as he found them to be. For this reason, the judge found that there was no real prospect that an appeal would succeed, nor was there any other compelling reason why the appeal should be heard and accordingly, permission was refused.

Case summary by Joseph Moore, barrister, 1 Garden Court Family Law Chambers

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Northamptonshire County Council v AS and Others [2015] EWHC 199

On 30.1.2013, at 15 days old, DS was accommodated by the local authority under s 20 Children Act 1989. The Latvian mother was not assisted by an interpreter, and the judge questioned the validity of her consent to this move. The local authority decided to begin care proceedings on 23.5.2013, and eventually issued on 5.11.13. The matter was transferred to the High Court due to jurisdictional issues (the maternal grandparents lived in Latvia and the paternal grandmother in Spain), and the local authority's failure to initiate proceedings promptly and then to comply with orders of the court. On 1.4.2014, Mr Justice Keehan ordered the local authority to file and serve evidence to explain their failings. The judge said the resulting letter from the Director of Children's Services made for 'very depressing reading'. He noted that eight different social workers had been allocated to DS during the course of the proceedings and stated that this was 'deeply worrying'.

On 7.10.2014, a final hearing was listed before Mr Justice Keehan. The local authority had filed and served its final evidence and care plan very late and without applying for an extension of time. In his judgment, Mr Justice Keehan said this had caused 'a wholly unnecessary and harmful delay in the planning and placement of the child'. He recorded that the authority had failed: to assess the mother and grandparents; to carry out proper and consistent care planning for DS; and to obey court orders as to filing and serving assessments, reports and statements.

The local authority proposed that DS should go to Latvia on 17.10.2014 to be cared for by his maternal grandparents under a Special Guardianship Order ('SGO'). However, the October hearing could not be effective as a final hearing as the authority had failed to file a comprehensive SGO support plan.

Accordingly, Mr Justice Keehan gave directions for further evidence to be filed and served by the local authority addressing 'its further failures and inadequacies in planning for DS and in complying with court orders.' A hearing was listed on 19.12.2014 and the Assistant Director/Director of Northamptonshire County Council was ordered to attend to explain: why the local authority shall not be liable to pay the respondents' wasted costs (unless the directions had been complied with in full and on time); to deal with any outstanding issues arising from the respondent's Human Rights Act claims; and to answer any outstanding questions by the parties or the court as to the conduct of the proceedings.

In response to the evidence then filed by the local authority, the judge stated: 'It is extremely unfortunate that after so many egregious errors made by this local authority in respect of this child, it continued to act in the same vein right up until the closing stage of these proceedings. I do not consider the explanations put forward by the service manager to be at all adequate. She attempted to defend the wholly indefensible.'

At the final hearing in December, DS was placed with his maternal grandparents in Latvia. In advance of that hearing the children's guardian had formally notified the local authority of her intention to issue proceedings in respect of the local authority's multiple breaches of DS's human rights contrary to Article 6 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms ('ECHR'). The mother also issued proceedings against the local authority on a similar basis. The local authority admitted its liability for both claims at the final hearing and agreed to pay damages totalling £17,000.

The judge concluded:

'The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. … Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority. The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case.'

Summary by Sara Hunton, Barrister, Field Court Chambers

U-B (A Child) [2015] EWCA Civ 60

The mother sought to appeal a refusal to order that E (aged 14) be summarily returned to Spain pursuant to the Convention on the Civil Aspects of International Child Abduction ('the 1980 Convention').

For eleven years, E lived with his mother in Spain and regularly visited his father in England. He visited his father during the 2014 summer school holidays for what was intended for be a month-long visit, but he did not return at the end of the visit. The mother applied for an order that he be returned to Spain. At first instance, the judge refused to order E's return on the basis that E objected in accordance with Article 13 of the 1980 Convention.

Application to adduce further evidence The mother applied for permission to adduce further evidence in the appeal, including a further statement of matters arising after the final hearing. The mother argued that this evidence significantly undermined the basis on which the judge made his decision as it established that E had been drawn into a plan by his father to retain him in England, that E had

www.familylawweek.co.uk Family Law Week March 2015 - 69 been influenced by his father, and that E had not given an accurate picture of his life to the Cafcass Officer. The court declined to admit the further statement as it was far from unequivocal in its import and it did not compel a re-evaluation of the Cafcass Officer's more broadly based and neutral expert assessment.

Application for E to be joined E, who had not been a party in the court below, applied to be joined to the appeal. The court declined to join E as a party, though read the material provided on his behalf. It was not desirable or necessary for E to be joined at this late stage and issues as to how a child's views should be ascertained and conveyed to the court, and whether he should become a party, need to be considered much earlier on, preferably at the outset of the first instance proceedings. Although there may be exceptions, it should not be expected that the Court of Appeal will be sympathetic to applications for party status that surface for the first time in the appeal proceedings.

Decision on substantive application At first instance, the judge was impressed by the evidence from the experienced Cafcass Officer, who was alive to risks around influence and manipulation. On the evidence, the judge concluded that E's views amounted to an objection "almost akin to a refusal" and that he must listen carefully to E's views. The judge worked "meticulously" through the factors that counsel for the mother invited him to consider as part of the balancing exercise. This led to the judge accepting that E's views were based essentially upon real experiences and not accept that E's views had been coloured by pressure or manipulation by the father. In the light of E's clear affection for his mother, the judge was concerned that a forced return to Spain might lead E to rebel and turn his relationship with his mother into a difficult one, which would not be in his best interests.

The Court of Appeal noted that weighing the various pieces of evidence that contribute to an overall picture of a child's view so as to determine whether or not they amount to an objection is very much a matter for the trial judge, who has heard evidence from the Cafcass Officer. The judge was entitled to find that E objected in the circumstances – it was noted that the test in the 1980 Convention is "objects" not "refuses".

It was that the judge failed to analyse whether or not E's views had been formed in the "bubble of respite". The court noted that this concept can be relevant insofar as it indicates the context in which a child's views are expressed, but it is not a separate test to be applied when determining whether the child's objection has been established. In this case, the judge was acutely aware of the features that might be making life in England more appealing for E than a return to Spain.

It was further argued that the judge failed to exercise his discretion properly and failed to explain the reasoning process by which he concluded that the factors in support of a return were outweighed by those in support of a non-return. The Court of Appeal noted that a vital part of the process under the 1980 Convention is speed and it must be realistic about what can be achieved in the time allowed on the material available within the constraints of this summary process. It is sometimes not easy or possible to explain why one factor outweighs another. Sometimes a judge is able to articulate why a particular factor carries the day, but sometimes all a judge can do is place the factors on one side or the other of scales and say which way he considers the scales tip. The Court of Appeal were satisfied that the judgement allows one to be satisfied that the judge had the relevant features in mind and balanced them in a way that was open to him.

The Court of Appeal is always reluctant to interfere with the exercise of a discretion by a judge and there was no cause to do so in this case – the appeal was accordingly dismissed.

Summary by Ariel Ricci, barrister, Coram Chambers.

X & Another v Z (Children) & Another [2015] EWCA Civ 34

In care proceedings concerning children whose mother had been murdered by their "psychological" father (X), X asserted that he was also their biological parent. Despite this, he refused to undergo DNA paternity testing.

In an effort to establish paternity, the children's guardian applied for disclosure of two sets of DNA profiles that were in the possession of the police, the first having been acquired from the crime scene and the second (post mortem) from the mother.

At first instance the President had determined that, although it was apparent that the use of material obtained under Part V of PACE for anything other than the "criminal law enforcement purposes" specified in Section 63T of PACE was prohibited, there was no such prohibition in respect of materials obtained under the auspices of the search and seizure powers set out in Part II of PACE. Having so decided he then exercised the discretion that he had determined the court possessed to order disclosure of the DNA profiles.

X and the Commissioner of the Metropolitan Police appealed.

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It was accepted that if the Commissioner had, in actual fact, no power to disclose the disputed DNA profiles other than for criminal law enforcement purposes, the court could not exercise its inherent jurisdiction to permit an action that had been expressly prohibited by statute.

It was also noted that the issues were formulated rather differently before the appeal court than they had been at first instance.

The three issues for the Court of Appeal were: (i) if the true construction of Part II of PACE did actually prohibit use for other than criminal law enforcement; (ii) if the operation of S6 HRA 1998 excluded any judicial discretion to order disclosure other than for those purposes, and (iii) if it did not, whether the President's order for disclosure was a "perverse conclusion".

Before turning to consideration of the matter in hand, the court (in a judgment led by the Master of the Rolls) set out in detail the statutory framework under both past and existing legislation in relation to the collection and retention of biometric data and bodily samples.

The court then scrutinised the President's judgment, noting his conclusion that in the instant case, there was in fact no application for any "Part V" samples and that the strictures imposed by section 63T were not therefore applicable. Further, he had then concluded that there was no prohibition in either Part V or II against disclosure of the materials that were actually being sought; namely copies of the DNA profiles of blood from the crime scene. The President had then gone on to conduct a careful balancing exercise of the competing public and private interests involved in whether or not disclosure was appropriate and had concluded that the interests of the children were compelling.

The Court of Appeal then went on to consider the first issue it had identified; that of the construction of Part II of PACE.

In respect of Part II (which governed material seized on premises) Section 19 (conferring powers of seizure), Section 21 and Section 22 (regulating the retention and use of materials seized) were applicable. Section 22 set out, in positive terms, the permitted uses for such material but contained no express prohibitive terms. The issue was whether the true construction of Section 22 was equivalent in effect to that of Section 63T (which did expressly prohibit such usage for materials obtained pursuant to Part V).

To reach a conclusion on this question, it was necessary to begin by looking at the case of S and Marper v UK (2009) 48 EHRR 50 in which (on an application for destruction of retained DNA and fingerprint samples) the following had been determined:

- That the retention of such data amounted to an interference with Article 8.

- That if mere retention was an interference, it followed that disclosure must also be.

- That, in respect of whether such interference could be justifiable, the law had to provide adequate clarity as to the discretion within which the data could be used and adequate protection against `arbitrariness.`

- That the retention of such data met the legitimate aim of the detection and prevention of crime and therefore met the test of necessity within a democratic society.

- But that, in terms of proportionality, the blanket and indiscriminate retention permitted at that time under PACE was disproportionate.

The effect of Marper was that domestic legislation to bring the relevant sections of PACE into compliance with the ECHR was required; this came in the form of the Protections of Freedoms Act 2012 which repealed and replaced Part V but left Part II unaffected.

The Court then gave consideration to the domestic law interpretation of Sections 22(1) and (2) of PACE:

- The only distinction between Part V and Part II data was that the former was taken from a person and the latter from a place (usually the crime scene).

- Where Part II data could be linked to an individual, it was for practical purposes, indistinguishable from Part V data.

- That being the case, the fact that Part II data was obtained indirectly from the scene rather than directly from the person could not be a rational basis for the differential treatment of each set of data.

- Parliament could not have intended such a discrepancy (allowing one set of data, but not the other, to be used beyond the sphere of criminal proceedings) and the court should be slow to impute to it any intention to produce legislation the effect of which would be arbitrary and irrational.

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Given that the enactment of POFA 2012 was intended to bring domestic law into line with Convention requirements, to avoid absurdity and to reflect that intention, Section 22 should be construed consistently with the scheme of Part V, as meaning that DNA retained under Part II, retained for the purposes of criminal law enforcement, may not be used for other purposes.

The next stage was for the court to give consideration to the construction of Section 22(1) and (2) as compatible with article 8 ECHR:

- Section 3 HRA provided that primary legislation must as far as possible be read and effected in a manner compatible with Convention rights.

- Unless Section 22 was read and given effect as if it contained the same restrictions as Section 63T it would fall foul of both the requirement that the law should not be arbitrary and that that it must be sufficiently precise and certain.

- If it did not meet these requirements then it would not be in "accordance with the law".

- The field of DNA data management required a high degree of certainty and precision. Section 22 contained no express or implied provision for uses beyond criminal law enforcement. If it were construed as permitting any such `wider purposes` it would then lack the clarity and precision required to render it `in accordance with the law`.

Accordingly, if section 22 meant the police could retain and use DNA or other biometric material for purposes beyond criminal law enforcement, it would violate article 8 and thus be unlawful.

The Court of Appeal was, however, satisfied that the provisions in section 22 could be construed in a manner that was compatible with article 8 (and thus lawful), either by construing it as containing an implied general prohibition on the use of Part II biometric data for purposes other than criminal law enforcement or, by reading into Section 22(1) words providing for such a general prohibition.

Thus, the Master of the Rolls concluded that, by either applying a purposive domestic law approach or by interpreting the relevant provisions in accordance with Section 3 HRA in a manner compatible with article 8, the true construction of section 22 did not permit the retention or use of biometric material seized under Section 19 for any purpose other than criminal law enforcement.

It therefore followed that the disclosure sought could not be permitted as the Commissioner of the Metropolitan Police did not have the statutory power so to do.

As the matter could be concluded on this basis, there was no need for the court to consider the other issues raised.

Both Lord Justice Beatson and Lord Justice McFarlane concurred, with Lord Justice McFarlane adding an observation (for the avoidance of doubt) that nothing in the judgment was intended to have any impact on the by now well established protocols and arrangements for cooperation between the family and criminal justice systems in respect of any Part II material other than biometric material.

Summary by Katy Rensten, barrister, Coram Chambers

BD v FD [2014] EWHC 4443 (Fam)

The parties married in 2002 and separated in 2013. There are four children of the family aged between 3 and 8.

The husband has non-trust assets of £49m and trust assets of £100m-£130m along with an income of £1.7m net per annum and the wife has £2.9m being the value of her new home and £1.4m in cash and investments.

Of the wife's £1.4m, £1m was transferred to her by the husband in the course of the separation and in a letter from his solicitors dated 3 April 2014, he confirmed that he did not expect the wife to use the sum of £1 million to fund her legal costs or her living expenses.

This was the wife's application for MPS dated 10 July 2014. At the time of the application, the husband was voluntarily paying a global sum of £202,000 pa for the benefit of the wife and the children in addition to the wife's legal fees. The wife sought that sum to be increased to an "absolute minimum" of £280,000 pa but in essence, sought £392,000 pa, her interim needs budget.

The wife's case was that without MPS at the levels she sought, she would not be able to meet her reasonable income needs. In particular, she submitted:

• The court should not take into account the £1m she already had as a sum available to meet her income needs:

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o Owing to the promise made by the husband in his 3 April 2014 letter and;

o The fact that she was seeking to sell her present home and buy a property worth £5.5m in Surrey and needed to deploy the £1m towards that purchase.

• That as the husband withdrew his agreement to meet her legal fees in a letter on 22 September 2014 she may need to deploy her some of her funds towards her legal costs.

• That her budget is reflective of the standard of living of the marriage and that where the wife is seeking additional sums for holidays and other expenditure it is in circumstances where she no longer has use of the husband's estate and trust assets.

The husband's case was that as a matter of fact (disputed by the wife), the family lived on approximately £230,000 to £265,000 pa including school fees of £40,000 pa. He produced evidence from his accountants setting out the family's annual expenditure for 2011 to 2013 inclusive. His case was that the wife's own interim needs were £156,000 pa. In particular, he submitted:

• The wife's case is manifestly exaggerated and unrealistic: the maintenance sought by the wife is so far in excess of the standard of living during the marriage that it is unprincipled and unreasonable. He referred to particular items of the wife's budget.

• The application does not stem from any need nor is it made because the husband is keeping the wife short of funds and;

• That it is a litigation tactic seeking to establish a high benchmark in respect of the wife's long-term claims.

Moylan J found in favour of the husband in that global MPS should remain in the sum currently paid by the husband of £202,000 pa.

Applying, F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, M v M (Maintenance Pending Suit) [2002] 2 FLR 123, TL v ML & Ors (Ancillary Relief: Claims against Assets of Extended Family) [2006] 1 FLR 1263 and G v G (Child Maintenance: Interim Costs Provision) [2010] 2 FLR 1264, the judge made the following observations:

• On a broad assessment for the purposes of this interim hearing, the annual sum sought by the wife of £392,000 very substantially exceeded the marital standard of living. He found that whilst that standard is "not necessarily a ceiling", there would need to be some "specific, powerful, justification" for that standard being exceeded on an interim basis.

• The purpose of an interim hearing is to ensure that one party has sufficient resources to meet their "immediate" interim needs and to meet them in a way which does not prejudice their longer term position or place them at a significant disadvantage, for example if the wealthier party was seeking to erode the resources located in this jurisdiction when enforcement might be an issue.

• The court must ask itself whether on a broad assessment, there is a need which manifestly requires the court's intervention. He found that in this case, the court's intervention was not justified.

• The application was a disproportionate use of the parties' and the court's resources in circumstances where the combined costs of £80,000/£90,000 exceeded the lower amount sought by the wife and was equivalent to some 50% of the difference between the parties positions on the higher amount sought by the wife.

Summary by Lily Mottahedan, barrister, 1 Hare Court

IS (A Minor) v DBS & Another [2015] EWHC 219 (Fam)

The proceedings concerning the child, who is nearly 15 years old, had a very lengthy history in the Israeli courts and in this jurisdiction. The parties were in dispute over whether the Israeli courts should exercise jurisdiction over the welfare of the child pursuant to an agreement (and later orders) between them, or whether the English court now had jurisdiction as the child was habitually resident here. There were ongoing hearings in the Israeli courts to which both the mother and the child had been summoned.

Having taken a view contrary to the Israeli court regarding whether the child should attend a hearing there, Sir Peter Singer appealed for judicial cooperation.

The child had been living in England since 2010 when the mother, after a second application, was granted permission to relocate by the Jerusalem Court for Family Matters. The permission was, however, subject to review by that court which the parties agreed should retain jurisdiction for welfare issues on the basis that the child would be regarded as continuing to have her habitual residence in Israel throughout a five-year period, until 2015. At the same time, as required, the mother

www.familylawweek.co.uk Family Law Week March 2015 - 73 obtained mirror orders in this jurisdiction containing provision for the child's contact with her father, and which recited that the State of Israel should be considered the child's habitual residence for five years.

Difficulties between the parties continued after the mother and child moved to London. In 2012, the Israeli District Court recognised that the child was living in England permanently and ordered in accordance with the parties' agreement that the Israeli court should retain jurisdiction for a year longer than previously directed, until May 2016. The mother was directed to obtain a further mirror order, but did not do so.

In January 2014, the mother failed to attend hearings in the Israeli courts following the father's complaints that he was being denied contact. The mother made a cross-application in those courts alleging that contact was harming the child. However, the mother attended a further hearing in February 2014, and the child saw a social worker in Israel. The contents of the social worker's report had not been disclosed to the High Court.

The parties' positions were further polarised after the February hearing. The child having instructed her own solicitor, she was made a ward of the High Court on issuing her own application in April 2014. The father responded by seeking anti-suit injunctions against the mother and the child in the Israeli Court. The Israeli judge found that the mother was behind the English proceedings and granted the injunctions. The father, then, sought a dismissal or stay of the English proceedings.

The jurisdictional issue was left undetermined as the father accepted that the child was habitually resident in this jurisdiction, and agreed a structure to enable immediate supported contact to take place, and a child and adolescent psychiatrist instructed. The agreed order is set out at paragraph 28 of Sir Peter Singer's judgment.

Further, a letter to the Israeli judge was written by the learned judge with the parties' agreement, and a letter of instruction to a Dr CR was agreed. The father disengaged from the English proceedings thereafter. In the meantime, there were further hearings in the Israeli Courts, and the father applied to have the mother committed. The mother did not attend a hearing to which she was summoned together with the child. Costs orders were made against her. The Israeli Court refused the mother's application to attend a forthcoming hearing via video-link. The child was also ordered to attend.

Having determined that the child remained a ward of court, Sir Peter Singer concluded that the issue of whether the child should attend the Israeli court's hearing was a matter for the English Court. The judge ordered that neither parent should remove the child from England and Wales, nor from the day-to-day care of her mother, without the court's permission unless it be for the purpose of such visits to her by her father in this country, to be subject to such arrangements for the presence of a third party and any other reasonable safeguards, as she and her father between them should agree.

Putting the issue of jurisdiction on hold, the judge proceeded with the expert's assessment despite the father's lack of participation, having determined that the relevant issues for the child were:

"…what views she genuinely holds and what it would take to ameliorate their negative impact on her perception of her father and on that contact. In parallel with that it would obviously, I suggest, be instructive to ascertain, in relation to each of her parents, not why they think and behave as they do but rather what could be done to help them to react better to each other and more insightfully in relation to their daughter."

The judge concluded "that the better course is to repeat my request for cooperation in a judicial moratorium to allow the assessment to proceed".

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

Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam)

Background Summary On 4 July 2014 without notice orders were made on the mother's application for a return of Isabella to this jurisdiction. The same order was made on 15 July, repeated on 31 July 2014 and again on 7 August, the father being present at all three hearings. The matter returned to court on 15 August 2014 and the orders repeated, again with penal notices attached. The first hearing of the mother's committal application was heard on 20 October 2014 and adjourned to 17 November; the respondents were ordered to attend that hearing and penal notices were attached to that requirement. Thereafter followed further hearings and the filing of evidence (including by the father) in respect of the committal application, before being heard in open court by The Honourable Mr. Justice Cobb on 4 February 2015.

Committal proceedings in the absence of the respondents Counsel for the applicant mother invited the court to proceed in the absence of the respondents. Cobb J reminded himself of the following facts [4]:

i) Committal proceedings are essentially criminal in nature and the court should proceed in the absence of the accused with great caution;

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ii) Findings of fact are required before any penalty can by imposed and the presumption of innocence applies;

iii) The penalty of imprisonment for a proven breach of an order is one of the most significant powers of a judge exercising the civil/ family jurisdiction;

iv) Articles 6(1) and 6(3) ECHR are actively engaged, entitling the respondent to, inter alia, a 'fair and public hearing' and to 'have adequate time and the facilities for the preparation of his defence.'

With regard to the above factors, alongside the guidance in R v Jones, R v Purvis [2001] QB 862, Cobb J set out a checklist of considerations which, he suggests 'may be a useful checklist in all such cases' [5]:

i) Whether the respondents have been served with the relevant documents, including notice of this hearing;

ii) Whether the respondents have had sufficient notice to enable them to prepare for the hearing;

iii) Whether any reason has been advanced for their non-appearance;

iv) Whether by reference to the nature and circumstances of the respondents' behaviour, they have waived their right to be present;

v) Whether an adjournment would be likely to secure the attendance of the respondent or facilitate their representation;

vi) The extent of the disadvantage to the respondents in not being able to present their account of events;

vii) Whether undue prejudice would be caused to the applicant by any delay;

viii) Whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondents'

ix) The terms of the 'overriding objective' under rule 1.1. FPR 2010

The written evidence before the court included a detailed chronology of hearings and orders, a transcript of a hearing at which the respondents were present, statements of service, and correspondence from the father in which he acknowledges receipt of particular documents. The court adjourned the application to commit the paternal grandmother as it was not satisfied that it would be safe to proceed in her absence [11, 45]. Applying the facts to each of the checklist factors in respect of the father, the court concluded that it would be safe to proceed in his absence but held that were any of the alleged breaches proved, sentencing would be adjourned to allow the father to make representations [18].

Particulars of alleged breach In approaching the determination of the alleged breaches of the orders of 8 August 2014 and 15 August 2014 Cobb J referred to the judgment of Munby LJ (as he was then) in Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others [2010] EWCA Civ 1253:

"(1) The first task for the judge hearing an application for committal for an alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, this, a question of law.

(2) The next task for the judge is to determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it. To adopted Hughes LJ's language (in Re A), Could he do it? Was he able to do it? These are questions of fact. (3) The burden of proof lies throughout on the applicant: it is for the applicant to establish that it was within the power of the defendant to do what the order required, not for the defendant to establish that it was not within his power to do it. (4) The standard of proof is the criminal standard, so that before finding the defendant guilty of contempt the judge must be sure (a) that the defendant has not done what he was required to do and (b) that it was within the power of the defendant to do it."

With these criteria firmly in mind, Cobb J considered the evidence and concluded that he was satisfied, to the required standard, that the orders were clear, properly served, explicit on their face as to the potential consequences of breach and that the father had understood his obligation to comply. He was therefore found to be in breach of the orders of 8 August and 15 August 2014 having not returned or caused the return of Isabella to England and Wales by 14 August 2014, 22 August 2014, any later date, or at all [38, 41].

Disposal of determination of the alleged breach by the father of a Tipstaff passport order, determination of the penalty for the proven breaches by the father of the relevant orders, and the application to commit the paternal grandmother were adjourned to 9 March 2015. The order to return Isabella was repeated [25, 44].

Summary by Esther Lieu, barrister, 3PB

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ZA v AS [2014] EWHC 2630 (Fam)

These were cross-applications for financial orders which, unusually, were brought under the Matrimonial and Family Proceedings Act 1984 as the parties had divorced overseas, although both parties agreed that the case should be dealt with in the same way as if it were brought under the Matrimonial Causes Act. The applicant wife (W) was from Qatar and the husband (H) from Pakistan. The parties were both qualified doctors and had met during postgraduate studies in Edinburgh. Both parties made allegations of serious financial impropriety against the other.

During the course of the marriage, the parties had purchased a number of properties in both the UK and abroad. The judgment sets out in some detail the circumstances in which each property was acquired and the source of the funds used.

An important aspect of the case related to a property that the couple were building on land purchased in Qatar. W's case was that she called a family meeting in 2004 because she was concerned that H might withdraw his financial support and that her sister, N, agreed to take over the loan repayments and finance the remaining building works. She said it was agreed that W would transfer the property to N for QAR 1 million (including the sister's payment for the loan and building works), and that this was the market value of the property at the time. However, the property was not transferred to N at that stage. It was noted that W had not told the court in Qatar about this agreement during an application for maintenance.

The parties separated in June 2005, H having remarried in February 2004, although W and the children did not become aware of this until later. There were further disputes between the parties about whether H had paid W maintenance.

In 2007 W executed a contract to transfer the property in Doha to her sister, although the court found that H was not told about this until 2012.

H admitted forging W's signature in order to cash in two endowment policies. The judge also found that he had misled the court in respect of the proceeds. A crucial issue in these proceedings was ownership of the Doha property.

W's case was that her sister, N, had turned against her and would not cooperate with a valuation of that property. It also came to light that the property had been rented out to a school shortly before the trial. The judge, however, detected no animosity between the sisters during the hearing.

The judgment then goes on to detail the values of assets that were agreed, the open offers, the parties' respective cases and the applicable law as well as a description of the evidence (written and oral) in the case.

The judgment finds that neither party, nor the key witnesses, were particularly truthful. Of the parties, H was slightly more truthful but only because the majority of his misdemeanours had been uncovered long before he went in the witness box and he had no choice but to admit them.

The judge then details his findings in relation to the Doha property (Building X), commenting that W faced a number of difficulties in her contention that she had transferred a property now worth over £1million to her sister for £160,000 and a life interest, which was worthless in any event now that her sister had decided to exclude her and keep the property for herself. He details eleven different aspects of the case in relation to this property (at para 74) which lead him to conclude that the court was being "seriously misled as to the true position" (para. 73).

The judge concluded that although the family meeting in 2004 had taken place, W had not sold the Doha property to her sister at this time. There was no reason why she would have done so. He found that, as they were a family who clearly had the means to help each other out, it was more likely that another family member had been paying the loan on the property and this is why the sister had not produced her bank statements. Whilst the judge found that the transfer document had been drawn up in May 2007, this was to defeat H's claim for half of the value of the property. In essence, Moor J concludes that W's case in relation to this property was fabricated and that it remained a resource that was available to W.

The judgment also details the judge's findings on other matters in dispute. His overall conclusion was that W had the Qatar property which she could either live in or use to generate an income. She also had a generous pension that would provide for her income needs and which would also enable her to borrow money to discharge a mortgage if required. H did not have this capacity. W also had significant debts and no other substantial resources. H had no pension provision but good earning capacity at present. He intended to work until he was 70 as he had a new wife and three young children. He needed a property in this country which could be achieved by transfer of the parties' property in Putney to him. The judge concluded that the house in St John's Wood would be sold when the parties' youngest child finished university. Until then W and the children could live there. The property was valued at £735,000 of which approx £500,000 (68%) would go to H to provide him with a pension. The balance would go to W which she could use as a deposit on a London flat which she could supplement with a mortgage. This would leave her with debts but she had the Doha property at her disposal. The existing child maintenance was reduced to £1,000 per month for the youngest child until she finished her undergraduate degree. Although the court had made serious findings, both parties had approached the litigation on the basis that there should be no order for costs. Summary by Sally Gore, barrister, Fenners Chambers

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Re SSM (A Child )[2015] EWHC 327 (Fam)

Mostyn J refused a father's application for leave to oppose an adoption order made pursuant to section 47(5) of the Adoption and Children Act 2002 and made an adoption order.

The application by prospective adopters for an adoption order and the father's application for leave to oppose the order were heard together. The court, applying the best interests criterion in section 1(2) and the enhanced checklist in section 1(4) of the 2002 Act, concluded that the father did not have a substantial and solid prospect of opposing the making of the adoption order, and further determined that nothing short of an adoption order would meet the needs of this child, so it was in the child's best interests that such an order be made.

The mother had been found at an earlier stage in proceedings not to have capacity. The Official Solicitor did not advance a case on her behalf.

Inevitably this exercise involved a fact-specific analysis of the father's circumstances and the child's interests, both individually and within the context of his sibling group. The matter was decided on the basis of submissions and no oral evidence was heard. The legal principles applied were stated from, inter alia, the 2002 Act and the leading appellate authorities: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069; Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153; and most recently Re B-S (Children) [2013] EWCA Civ 1146 [2014] 1 WLR 563. It was stated where Re B-S had clarified or disproved of the earlier authorities.

Applying section 47(5) and (7) of the 2002 Act to a case where a child had been placed for adoption under a placement order, the statute imposed a threshold condition of "a change in circumstances since the placement order was made" before a parent may be granted leave to oppose the making of an adoption order.

Mostyn J stated in his judgment at paragraph [16]:

"Obviously the words 'a change in circumstances' are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order." (Emphasis added.)

Considering the meaning of the phrase 'change of circumstances' within the context of other family proceedings (such as the variation of maintenance in financial remedy proceedings before statutory changes defined the meaning specifically within such applications), Mostyn J concluded at paragraphs [18-9]:

"changes which were foreseen or foreseeable at the time of the agreement did not fall within the [meaning and]...where a provision talks of a change of circumstances it is talking about an unexpected change in the basic facts and expectations on which the court founded its original decision."

Demonstrating a change of circumstances is but the first of a two-stage test. If a change in circumstances has been proven the court must next exercise its "discretion" whether to grant leave to oppose the adoption order. This will not automatically follow from a change in circumstances. While sometimes the nature of the facts that are found will to all intents and purposes determine the exercise of the supposed discretion [20], Mostyn J was keen to stress that, in many cases, "[E]ven where an unexpected change in the basic facts and expectations that underpinned the original order have been proved, it would nonetheless be contrary to the child's best interest for leave to oppose to be granted," [22]. Such variance would be the inevitable consequence of the correct application of the best interests principle pursuant to sections 1 (2) and (4) of the 2002 Act.

Mostyn J, citing Sir James Munby P in Re B-S (Children) [2013] EWCA Civ 1146 [2014] 1 WLR 563 described the process at the second stage "as one of judicial evaluation rather than as one involving mere discretion" (Sir James Munby P's emphasis). The correct principles to apply in the exercise of that discretion are set out at paragraph 74 of B-S, though the court should also have regard to Re B [2013] 1 WLR 1911 per Lady Hale at paragraph 198 and Re R (A Child) [2014] EWCA Civ 1625 per Munby P at paragraph 44.

On the facts of this case, the father advanced several alleged 'changes in his circumstances', of which the court found that one qualified to engage the discretionary exercise. The statute requires that any other alleged changes advanced must play no part in the discretionary stage, once rejected at the first stage [29]. In conducting the best interests analysis on the specific facts of this case, the court concluded it would be contrary to the child's welfare for leave to be given, and accordingly the adoption order should he made.

Mostyn J had indicated previously that if an adoption order were made he would abridge time and other formalities to permit an application for post-adoption contact to be made. However, the parties had agreed to post-adoption contact taking place twice per year plus inter-sibling contact continuing so no such application was made following the making of the adoption order.

Summary by Charlotte Hartley, barrister, 1 King's Bench Walk

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Graham-York v York [2015] EWCA Civ 72

The Decision at First Instance The Appellant, Miss Graham-York, had lived with the late Norton York, from 1976 and his death in 2009. They had lived at 17 Marlborough Road from 1985, a property that had been purchased in Norton York's sole name in 1982. Upon his death, the Appellant had continued to live in the property, although it remained in the late Norton York's name. She had no or no significant income.

On 8th January 2011, the Building Society issued proceedings against Norton York's son as the representative of his estate, Adrian York (the first respondent), for mortgage arrears arising after the death of his father, amounting to c.£58k in January 2011. The Building Society therefore sought judgment in respect of the entire indebtedness secured by the mortgage (c.£450k) and an order for possession. Adrian York and the Appellant are not on good terms. He did not contest the claim so judgment was given for the entire mortgage and Adrian York was ordered to give the Building Society possession of the property on or before 9th March 2011.

At this point, the Appellant applied to be joined to proceedings, resisting the claim of the Building Society for possession and bringing a third party counterclaim asserting a beneficial interest in the property. She claimed a common intention constructive trust which took priority over the mortgage since she was already in residence by 1990 when the mortgage was secured on the property and she was not a party to it.

The matter then came before HHJ Dight on 13th September 2013, when an order was made for possession in favour of the building society and for the property to be sold. Directions were given for a trial, the subject of which was not set out. The date for possession was to be fixed after trial. No appeal was brought in respect of this.

On 3rd December 2013, the matter came for trial before HHJ Diana Faber. She determined the issues to be the Appellant's beneficial interest, whether the Appellant was entitled to be subrogated to the rights of the Barclays Bank charge from 15th October 1982 and whether the Appellant was entitled to defer the date for possession. The Judge found that the Appellant had a 25% beneficial interest in the property, directing possession by 8th March 2014. The proceeds of sale were to be applied in payment of the costs of sale, in payment all sums due to the building society, 25% of the remaining balance to the Appellant. The remaining 75% was to be paid into court pending contested probate proceedings between Adrian York and the Appellant.

The Appeal The Appellant appealed on two issues:

1. The Judge erred in finding that her interest was not equal to that of the late Norton York; and

2. The Judge erred in finding that her share should be paid to her after the repayment of the mortgage owed by the late Norton York.

There was no evidence as to the value of the property, the only evidence being an offer to purchase the property in 2011 for £1.2m. The outstanding mortgage at the date of the hearing, inclusive of most of the Building Society's costs, was £632,681.67, i.e. more than 50% of the supposed value. Adrian York claimed that the property was now worth £1.75m. There were further issues of whether Norton York's estate would be required to indemnify the Appellant in the event that her interest was diminished by satisfaction of the mortgagee's claim.

The First Issue – Quantifying the Appellant's beneficial interest Adrian York did not challenge the Appellant's beneficial interest from the first instance decision. The Building Society was unconcerned with the valuation of her interest since its position was that it was entitled to recoup all indebtedness from the proceeds of sale of the property. The Appellant argued that she should receive 50%.

The Judge at first instance made the following findings:

1. The relationship between the Appellant and Norton York was one characterised by the Appellant's vulnerability and Mr York's proclivity for violence and controlling nature;

2. All of the witnesses were unreliable;

3. The Appellant worked from 1976 to 1985 as a singer and although the Judge could not make findings as to the amount of her earnings, these were found to have been given to Norton York;

4. The property was purchased in Norton York's sole name in 1982 with a mortgage of which the Appellant had knowledge;

5. The Appellant's income from 1976 to 1985 materially assisted in the purchase of the property;

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6. The property was remortgaged in 1990 on an interest only basis and the Appellant had knowledge of this fact;

7. After 1985 the Appellant's earnings were limited so that even if she did make a contribution post 1985, this did not amount to much;

8. Norton York had a number of business interests in which the Appellant had no involvement;

9. No findings were made as to the income generated by Norton York;

10. There was no express agreement as to the beneficial interests but since the Appellant's income contributed to the family income before and at the time of the purchase, a common intention could be inferred in line with para 61 of Stack v Dowden;

11. The interest should therefore be 25%.

It was submitted by the Appellant that the Judge had wrongly assumed that Norton York's contribution had been substantial when there was no evidence of this fact. It was also submitted that the Judge ought to have regarded the Appellant as having contributed as much as she reasonable could, from which a finding of equal beneficial interests ought to have followed, relying upon para 69 of Stack v Dowden. The Court of Appeal disagreed, stating that this paragraph relates to joint names cases and that this was not a case in which natural love and affection can be said to have been at the forefront of the relationship.

In respect of the extent of Norton York's contribution, Adrian York contended that if the Appellant's contribution was so small then it must follow that the remainder was contributed by Norton York. This was supported by the Appellant's own statements that the business had support the family. The Appellant therefore argued that if no common intention could be divined as to the respective interests then fairness should guide what reasonable parties must be taken to have intended. He relied on four factors for equality:

i. the initial financial contribution to the purchase of the property;

ii. the length of the cohabitation;

iii. the contribution by bringing up the daughter,;

iv. the Appellant's financial contribution both pre- and post-1985.

The Court of Appeal comments that this was a violent and abusive relationship, but that the findings are unusually sparse in a case of this type.

The most authoritative modern guidance for a case such as this was jointly delivered by Lord Walker and Lady Hale in Jones v Kernott [2011] 1 AC 776, in particular the Supreme Court guidance in sole name cases, found at paragraphs 51 - 52 of that judgment. This was just such a case as envisaged at paragraph 31 of that judgment.

The Court of Appeal in this case holds at [22] that the court is not concerned with redistributive justice. It is not the court's role to redistribute property interest in a matter which might amount to appropriate compensation. The Appellant is "entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property". The whole course of dealing in relation to the property only is what confines the enquiry as to fairness.

The Judge at first instance was therefore held to have focused on the relevant consideration.

Moore-Bick LJ then sets out some potential traps in approaching such a case:

1. There is no starting point of equality in sole name cases (Oxley v Hiscock at [38]);

2. The suggestion of equality being the only fair outcome in a case such as this, in light of the substantial contributions by the woman Oxley, is quite hopeless;

3. The judicial evaluation of the "fair share" is not one in which there is only one right answer, therefore the appellate court should only interfere if the outcome falls outside the ambit of reasonable decision making;

4. The length of the cohabitation should not be permitted to lead the argument astray.

A 25% share was held to be within the ambit of reasonable decision making. The appeal was therefore dismissed on the first issue.

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The Second Issue- The Equity of Exoneration The argument that the Appellant was not bound by the mortgage fell outside the scope of the appeal. The only relevant ground was on the order at first instance, which effectively reduced the Appellant's beneficial interest from 25% to 12.5%. The building society pleaded that the Appellant's interest was only in the proceeds of sale after repayment of the mortgage. The Appellant joined issue with this.

There were two questions:

1. Was the Appellant bound by the mortgage? This was resolved by concession by the Appellant that she had no overriding interest.

2. Out of whose share of the property should the mortgage be discharged? If this had been pleaded by the Appellant, she would have had to show that all or some of the debt was for Norton York's benefit only and/or his business interests. If so there would be the possibility that she could claim to be exonerated in equity by the principal debtor, Norton York.

It was only after the Judge's first judgment in draft form was made available to the parties on 24th January 2014 that the Appellant raised for the first time a reliance on an alleged equity of exoneration. This was developed on written submissions, to which nothing was added at the handing down of the judgment on 19th February 2014, although some argument was had. It was too late to raise this issue, since the Judge had not been invited to make any findings at trial as to the destination of the mortgage proceeds.

The Court of Appeal did not agree that the equity of exoneration was unavailable to the Appellant because she was not a party to the mortgage, but the Appellant was found not to have discharged the onus on her to prove this. It seemed that the mortgage proceeds were used for the Appellant and Norton Rose's joint benefit.

The appeal was dismissed on the second issue also.

Summary by Kyra Cornwall, barrister, 1 Hare Court

AB v TB (Temporary Removal to Jordan) [2014] EWHC 4663 (Fam)

This was the father's application for a specific issue order allowing him to take the parties' children (a boy and girl aged 12 and 10 respectively) to Jordan for the purposes of a summer holiday. That application necessarily sought the discharge of a pre-existing prohibited steps order preventing the father from removing the children from England and Wales.

The mother was born in Afghanistan. The father was born in Kuwait into a Palestinian family, but moved to Jordan as a small child. Both parties are Sunni Muslims. The father has a large family network in Jordan. The father's case was that a visit to Jordan would be in the children's best interests both so they could meet their paternal family and also because celebrating Ramadan and Eid in a Muslim country would be an important experience for them.

Re A (Prohibited Steps Order) [2013] EWCA Civ. 1115 was cited as the most helpful authority on the applicable law. The court must consider the issue of risk broken down into three related elements:

a) the magnitude of the risk of breach of the order if permission is given;

b) the magnitude of the consequence of breach if it occurs; and

c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.

The father's evidence that he had no intention of keeping the children away from England or their mother was accepted.

The judge was assisted by expert evidence as to the nature of Jordanian law. In summary, the expert's conclusion was that it was possible for the children's legal position in Jordan to be protected to a large but not complete extent. However, in reality the main safeguard for the children would be the court's assessment of the credibility of the applicant.

The father had proposed the following safeguards: 1) declarations about the children's habitual residence and this court's jurisdiction over them; 2) undertakings from the father about his commitment to return the children; 3) provisions to assure the Jordanian court that the father's acceptance of said requirements were freely given and would not be affected by any changes in circumstances; 4) a bond of £2,500, and; 5) a small sum to fund the mother's legal costs in Jordan.

The judge found that he was positively satisfied that the advantages to the children of visiting Jordan outweighed the risks to their welfare. The risks in this case were not only the risks of retention, but risks arising from the children being deprived of any experience of their Middle Eastern background, not only now but for most of the rest of their childhoods. Summary by Helen Pomeroy, barrister, 1 King's Bench Walk

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Re A (A Child) [2015] EWFC 9

Background The hearing arose in the context of care proceedings in respect of Kacey's sister 'A' who was born in April 2013, 13 months after Kacey. The girls' mother separated from their father in September 2013. On 10 April 2014 the mother left the girls in the care of her boyfriend Connor Gibson ('CG') when she went to work. The mother left the house at 07:30, at 09:53 an ambulance was called (by CG) and Kacey was found to be unconscious and gravely ill. She died as a result of severe haemorrhage and bleeding to her brain on 12 April 2014. On examination she was also found to have suffered over 40 bruises all over her body, in addition to severe internal bruising to her organs and haemorrhage to her liver.

Findings The questions to be determined by Holman J were:

i) Whether Kacey's mother had caused any of the injuries to Kacey;

ii) Whether CG's actions on 10 April 2014 were so out of character that the mother "had no reason whatsoever to think that she could not safely leave her children in CG's care";

iii) To consider some small bruising found on A. i) Injuries to Kacey On the first day of CG's trial he pleaded not guilty to the murder of Kacey but guilty to her manslaughter. In his first statement (dated 8 August 2014) by inference he implicated the mother; however at sentencing he assumed full responsibility for all of the injuries (save for one older bruise). It was said on his behalf that his care of the children had up to that point been exemplary and that it was entirely reasonable of the mother to have left the children in his care. He was sentenced to nine years' imprisonment. Less than a month after sentencing CG prepared a statement for these proceedings (dated 30 October 2014) in which he denied causing any injuries other than those caused by shaking her, a position he repeated in a statement dated 6 January 2015. He stated that he had only accepted responsibility for all the injuries during the criminal trial as he was scared of being convicted of murder.

The written and oral evidence of the medical expert was that there was no evidence to suggest that the abdominal injuries were caused by anyone other than the same person who caused the fatal injuries to the head. This was not challenged by counsel for CG and in evidence before Holman J CG expressly accepted responsibility for all the injuries (save for an older bruise) and expressly stated that the mother was devoid of blame. The mother denied causing the injuries in any way and Holman J found that CG caused them all at a time when the mother was at work and not present in the home [19 -20]. ii) Failure to protect Holman J then considered events prior to 10 April 2014. In particular he considered the parties' evidence about the following incidences and factors:

Ÿ Both the mother and CG described how Kacey had not warmed to CG straightaway and would not cooperate with him [21];

Ÿ On 20 February 2014 CG informed the mother that Kacey had pulled out a clump of her own hair. The mother, despite having never seen Kacey do this before, accepted CG's account. The judge found that CG had done it himself, calling it a cruel and sadistic act, and found it 'striking' that the mother never saw the clump of hair (which would have been sizeable). However he accepted that on the night in question the mother was preoccupied and he could not criticise her, at that stage, for not being more questioning of CG [22-24].

Ÿ Five day later CG found Kacey playing with the dog food bowl. He shouted at her, picked her up by the ankle and carried her, hanging upside down, into the room her mother was. CG had carried Kacey like that once before and the mother had expressly forbidden him from doing it again fearing that Kacey could be injured. The mother left (taking the girls with her) and later over the course of a text message conversation, said to CG "… if this is too much for you, u need to let go before it gets worse or summert." [25 - 28].

Ÿ On 2 April CG sent the mother a text message informing her that whilst in his care A had fallen out of her bouncer and suffered a nose bleed, and saying "Every time I look after one of them, they get hurt. I don't wanna do it anymore." The mother's response failed to take his comment (referred to by Holman J as a 'cri de coeur') seriously, and later replied "… if we av a kids they will be black n blue. x" [31]

Ÿ On 7 April the mother collected the girls from CG's care and noted a 'dirty bruise' on the inside of Kacey's right knee which she thought was an unusual place for a bruise. Holman J was unable to say how this bruise was sustained but stated its significance arose from being the last in a series of events that took place just three days before the attack on 10 April 2014 [32].

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Holman J warned himself against viewing the preceding events 'through the prism of the fatal assault' of the 10 April 2014 and reminded himself that the essential question was the reasonableness of the decision of the mother to entrust the children to CG that day. There was an "inescapable causal connection between the mother's decision to entrust the children to his care that day and the harm"; that decision was in itself an aspect of the care given to the children, and the reasonableness of that decision had to be viewed objectively against the growing number of reasons from which the mother should objectively have thought that she could not safely leave her children in the care of Connor Gibson. The level of care provided in making that decision was not, Holman J concluded, what it would be reasonable to expect a parent to give and the threshold criteria under s.31(2)(a) and (b)(i) of the Children Act 1989 were made out [40 – 42]. iii) Injuries to A Both the mother and CG denied harming A and the expert medical opinion was that there was insufficient evidence that the marks on A had been caused by someone either intentionally or by accident. Holman J held that he was not satisfied for the purpose of the s.31 threshold criteria that at the time of the commencement of these proceedings A herself was suffering or had suffered any actual physical harm at all attributable to the care given to her, whether by Connor Gibson or by the mother.

Summary by Esther Lieu, barrister, 3PB

The Prospective Adopters v FB and Others [2015] EWHC 297 (Fam)

The case concerned an application for the adoption of "E, the youngest of five children born to the mother and the father's only child. E's parents both had problematic social histories including, in the mother's case, significant alcohol misuse characterised by periods of abstinence followed by relapse.

There had been local authority involvement stretching back over 16 years, during the course of which the family had led a chaotic lifestyle arising from the impact of the mother's alcohol problems and domestic abuse (perpetrated by the father of one of the older children, all of whom had different paternity).

In 2008, two of the older children, DB and CB, spent 6 months in foster care. Although the mother sought help and they were returned to her care, she subsequently relapsed.

Further problems ensued after she formed a relationship with E's father in 2010. There were incidents of significant domestic violence, with the father breaching a restraining order and both parents breaching various written agreements with the local authority, the purpose of which was to protect the children by keeping the parents apart.

In July 2013, the local authority issued care and placement applications in respect of E (and subsequently, following concerns expressed by the trial judge, in respect of DB and CB). E was made subject to an interim care order and placed in foster care, where he remained until placed with prospective adopters following the making of final orders by HHJ Edwards in September 2013.

The father agreed to the orders sought and, although the mother opposed (seeking an adjournment to attempt rehabilitation) she did not appeal.

In January 2014, E was placed with the applicant prospective adopters. In March 2014, they issued the application for an adoption order. The mother sought and obtained permission to oppose. She had, by that point, separated from the father, undertaken relevant work around abusive relationships and had achieved abstinence from alcohol, such that the judge hearing the application was satisfied that the mother had evidenced a change of circumstances and that her prospects of success were more than "just fanciful". Although the father had agreed to the previous orders, he too opposed the adoption. Both parents also sought direct contact with E in the event of an adoption order being made.

Various unsuccessful applications were made by the mother during the course of the proceedings; these were for further assessments, for an "expert" report in relation to the operation on the proceedings of the United Nations Convention on the Rights of the Child and for the applicants to give oral evidence.

Late on in the proceedings, by which time the matter had been transferred to Mr Justice Moor, CB (by then aged 15) successfully applied to be joined as a party, alleging that there had been a failure to take into account the views of the siblings when making the placement order.

In his judgment, before turning to the factual evidence that emerged during the final hearing, Moor J set out the relevant law, the submissions made on the law on behalf of the mother and the issues arising in respect of DB and CB.

Within his digest of the relevant provisions and cases, he reminded himself of the need to consider the child's welfare throughout its life, of the test that is required for dispensation with parental consent, of the draconian and irrevocable nature of an adoption order and of the stringency of the welfare test set out in both Re B and Re B-S.

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He also highlighted the recent provision (inserted as section 51A of the ACA 2002 by section 9 of the Children and Families Act 2014) whereby (leave to make such an application being required) the court may order the adopter(s) to provide contact.

The submission made on behalf of the mother; that the law in Wales was different from that in England in that the UNHCR had been incorporated into Welsh Family law, was without merit. Whatever the duties imposed upon the Welsh legislature and executive to have regard to the Convention under measures enacted in Wales in 2011, family law was not devolved to the Welsh Assembly and the court was not making policy, it was applying the ACA 2002.

Also incorrect was the submission made in relation to the views of the child (which could be obtained in a variety of ways). The court, of course, had to have due regard to these, but the contention that the decision of the trial judge was void ab initio because the voice of E's siblings was not heard by her and thus there had been a failure of natural justice, was not correct. The order was not void: it had not been appealed or set aside and was a valid placement order.

As to the arguments advanced for both the mother and CB that the voices of CB and DB had not been properly heard and the impact, if any, on this application, Moor J heard from CB herself. She did not disagree that she had not wished to speak to the social worker or guardian, but felt they had not approached her in "the right way". Although crediting CB for the courage it took for her to come to court, Moor J rejected any suggestion of culpability in her failure to engage on the part of the guardian or social worker. As for DB (then 9) her views had been successfully obtained.

It was regrettable that a comment made about DB's position in the Child Assessment Report did not give the right impression about her viewpoint and that the Guardian's analysis failed to deal specifically with DB's and CB's view (as it should have pursuant to section 1(4)(f)ACA 2002) but this did not affect the order. It was clear that HHJ Edwards was very concerned about their position and although there should have been greater consideration of the issue when it was before her, it did not invalidate the order. Moreover, any flaw that there may have been had been cured by CB having been given party status in the adoption application and by the issue having been fully aired before Moor J.

In terms of the evidence, E was settled in a positive placement with prospective adopters who had protected E notwithstanding the anxiety provoked in them by these proceedings.

Although both parents undoubtedly loved E and whilst the father had some insight into the impact on E of removal from the applicants, the mother did not appreciate the "devastating effect" it would have.

The mother had made changes which were to her credit but, in reality, these just returned her to the position she had been in 2008 when she had taken the same steps to secure the return to her care of CB and DB. Given her behaviour since then, her dishonestly in the past about her contact to the father and her lack of insight, there was clearly still a substantial risk of relapse both in terms of alcohol and re-engagement with the father. Moreover, the changes made were too late; she had not heeded earlier warnings and even before the placement order was made it was clear that these would not be within E's timescales.

In respect of the father, his assertions that he had turned over a new leaf were unconvincing.

The paramount concern of the court was E's welfare throughout his life. Bearing in mind all the evidence he had heard, Moor J concluded: first that the case as to the risks inherent on any return to mother were very considerable and, second, that the effect on E of being uprooted at this stage would be devastating. The impact on E, placed alongside the findings in respect of the mother made the position overwhelming. Accordingly, E's welfare did require dispensation with parental consent and no order other than adoption would do.

In respect of CB and DB, even if HHJ Edwards had placed more emphasis on their views, she would have reached the same conclusions.

Finally, in respect of the mother's submission that, even if adoption orders were made, she should have contact amounting to a shared care type arrangement, Moor J rejected this utterly as being inconsistent with the adoption order he intended to make. Notwithstanding the research and case law to which he had been referred, this was not one of the circumstances where open adoption was appropriate. Although this would be a blow for CB and DB as well as the parents, in the specific circumstances, only adoption would provide stability and direct contact was not something he should impose upon the applicants.

Summary by Katy Rensten, barrister, Coram Chambers

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Lindner v Rawlins [2015] EWCA Civ 61

The husband and wife were married for 18 years prior to the wife leaving the family home. Both petitioned for divorce on the grounds of unreasonable behaviour. The wife alleged that the husband was violent towards her and a fact-finding hearing in concurrent Children Act 1989 proceedings found her allegations made out.

The husband alleged that the wife engaged in multiple same-sex relationships for money and had a relationship with one named woman who was a friend of the wife. The wife denied these allegations. To support his case the husband sought and obtained outline police records relating to an incident of criminal damage made by the wife's friend against the husband.

The husband then sought an order from the court that the police disclose a copy of the statement made by the wife's friend to the police. This application was refused by the judge on the grounds that it would not assist the husband in establishing his allegations.

The Court of Appeal dismissed the husband's appeal against this order noting that:

(1) Under FPR r 21.2 'disclosure' is limited to the person stating that a document exists or existed. To see the document, inspection would need to be sought.

(2) The husband had failed to notify the police of his application. Whilst this might not be fatal to an application for disclosure it was to an application for assessment.

(3) Disclosure should be ordered only if it was necessary to dispose fairly of the application or to save costs. 'Necessary' in this context has the same meaning as in Re H-L (2013) EWCA Civ 655.

(4) The first instance judge was entitled to conclude that the disclosure was not necessary, in particular when looked at against the 'voluminous' other evidence relied upon by the husband. The Court of Appeal would be slow to interfere with such a case management decision.

The Court of Appeal also observed that the appearance of the husband in person (the wife was not represented and did not attend) created considerable difficulties for the court. The husband approached the appeal on a mistaken legal basis. The judges had to divine the relevant documents from the large number filed and to research the law taking time that could little be spared.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers

Dickson v Rennie [2014] EWHC 4306 (Fam)

In this case Holman J had to decide whether, in order for a so-called "top-up" order for child periodical payments to be made (s 8 (6) Child Support Act 1991), is it necessary for the Child Maintenance Service (CMS, formerly the Child Support Agency) actually to have made a maximum assessment?

Background The two parents of a 9 ½-year-old girl were arguing over the court's jurisdiction, and over quantum of "top-up" child maintenance. In previous proceedings in 2007, when the child was aged 2 ½, District Judge Walker had made findings that the father, who was living in Jersey, was a "person of significant wealth", assessing his net income as being £130k pa. There was "no suggestion whatsoever" that the CSA 1991 was engaged, each party accepting the court's jurisdiction to make that order. The court ordered a house to be settled upon trust for the child, and child periodical payments of c. £3.3k pcm (index-linked). In the years since 2007, the father promptly discharged all child periodical payments due from him.

Change in circumstances The mother gave birth to another child with her new partner in April 2011, and the father applied to vary downwards the child maintenance, before subsequently consenting to a dismissal of that application, and agreeing to pay the mother's legal costs.

In March 2014, the father applied to what was now the Child Maintenance Service (CMS), for a maintenance assessment. His gross income was found to be c. £20k pa — a "stark and startling" difference from the previous figure. This resulted in a maintenance calculation of just £1.4k pa, although the father was in fact paying c. £12k pa voluntarily.

The mother's applications The mother applied, in person, to the family court, it being unclear precisely what for, as both the court and the mother lost the paperwork. In any event, during the ensuing proceedings the mother sought to enforce arrears and also sought a lump sum payment. When the mother finally instructed lawyers, her counsel argued for a "full restoration" of DJ Walker's order. Holman J inferred that this must therefore be treated as an application under s 8 (6) CSA 1991. The mother had also

www.familylawweek.co.uk Family Law Week March 2015 - 84 applied to the County Court in Southampton for judgment summons for the relatively small sum of c. £3.9k, a live issue in those proceedings being the "effective date" of the CSA calculation. Holman J invited the mother to reflect upon the wisdom of such an application when substantial voluntary overpayments were being made by the father.

Jurisdiction of the Family Court Although the father was not habitually resident in the jurisdiction, the CMS had accepted his argument that he was "employed by a company of a prescribed description registered under the Companies Act 2006" (s 44 (2A) (c) CSA 1991), and it had assumed its statutory jurisdiction. The court expressed its surprise that this argument was being run for the first time some seven years after the initial proceedings. The mother was in any event appealing to the First Tier Tribunal within the statutory appellate structure, arguing that the company was not a company "of a prescribed description" because the father, the sole director, owned 99.8% of the issued shares, and the company was but a vehicle for the father to be paid for work in the UK. Quantum was also being appealed.

"Top-up" jurisdiction for child maintenance Section 8 of the Child Support Act 1991 (CSA 1991) circumscribes the role of the courts in deciding child maintenance. [N.B. this act trumps the provisions in the MCA 1973 and Children Act 1989 s 15 / Schedule 1 save in certain circumstances (e.g. where an existing maintenance order has been made less than one year earlier - s 4 (10) (aa) CSA 1991)]. The combined effect of s10 CSA 1991 and § 3 (1) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 (SI 1992/2645) is that from the effective date of a maintenance calculation made pursuant to CSA 1991, any existing court order ceases to have effect. Furthermore, if the CMS has jurisdiction to make a maintenance calculation with respect to qualifying children, then no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and the non-resident parent (NRP) (s 8 (1) & (3) CSA 1991).

An exception to this rule is if the NRP's income exceeds a certain defined threshold (s 8 (6) CSA 1991) – previously £2,000 per week net, and currently £3,000 per week gross (the other exceptions concern children with disabilities and orders for the fees payable for education or training). The mother asserted that the family court had a stand-alone jurisdiction to ascertain the level of the father's income under s 8 (6) CSA 1991.

The key issue here was whether it was necessary for the Child Support Agency actually to have made a maximum assessment. The court was referred to comments of Charles J in CF v KM (Financial Provision for Child: Costs of Legal Proceedings) [2010] EWHC 1754 (Fam) [2011] 1 FLR 208. Holman J stated that it was clear from a reading of § 4 and 5 of the judgment in CF v KM that the matter remained undecided. Charles J had concluded that the point was "arguable", but had noted that the point had been neither raised at, nor considered prior to, that hearing. Holman J stated that the observations of Charles J in CF v KM (supra) at § 4 were "plainly entirely obiter". It was "crystal clear" that s 8 (6) had to be referring to income that had been assessed or calculated according to the statutory scheme. Patently "section 8 (6) is not intended to provide some form of disguised 'appeal' just because it is, or may be, arguable, or even demonstrable that the NRP's income exceeds the maximum figure" (§ 31). It would be "completely adventitious" for s 8 (6) to permit such a challenge only where it was arguable that the maximum income figure had been reached, but not otherwise.

The drop in the mother's maintenance income from the father was described as a "devastating blow", which the court could do "absolutely nothing" to remedy. The correct avenue for redress was the mother's forthcoming appeal to the First Tier Tribunal.

The lump sum application had three limbs.

(1) Lump sum order – building works The small element to cover building works required to repair the home in which the child lived, and which been settled on trust in the 2007 proceedings, was agreed subject to provision of receipts, no decision therefore being required.

(2) Lump sum order – debts and alleged maintenance arrears The second element "to cover the shortfall in maintenance to date" was disallowed, the court finding a "striking" correlation between the mother's debts and "the so-called 'arrears'" of maintenance. Entertaining such an application "would be very blatantly to flout the barrier or shutter erected by Parliament between the functions of the CMS and the court" (§ 38).

(3) Lump sum order – costs of appeal in separate First Tier Tribunal proceedings The third element was for provision for costs of the appeal to the First Tier Tribunal. In that the First Tier Tribunal is unable to award costs, the amount attributable to preparation of the costs schedule for that hearing was disallowed (§ 39).

The court (applying Re S (Child: Financial Provision) [2004] EWCA Civ 1685, [2005] 2 FLR 94, and CF v KM (supra)) limited provision for costs to the "reasonable and ...proportionate" sum of £10,000 (c. two-thirds of the sum claimed), as pursuit of the appeal was "very much in the overall interests of this child" (§ 40). The mother was required to account to the father for the costs, refunding any unspent sums.

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Capitalisation of child maintenance? Finally, the application to capitalise projected maintenance to the end of the child's tertiary education was rejected, in light of the impending tribunal proceedings, on grounds of "lack of clarity as to what the ultimate legal levels of maintenance are", in addition to any jurisdictional matters (§ 42).

Concluding judicial remarks The court was critical of the "folly with which intelligent parents ... can allow themselves to be sucked into a vortex of litigation in which the sums expended in legal costs" (being c. £60k) lose all proportion to the amounts in issue" (less than £100k child maintenance over ten years, plus the lump sums) (§ 35). Holman J concluded his judgment by stating "this is a court of law, not of morals. [T]he current legal obligation of this father is apparently a very low one... but there are, in fact, moral and parental issues engaged in this situation, as well as legal issues". Holman J begged the parties to reach a fair and sensible negotiated outcome of the other proceedings in the First Tier Tribunal and in the County Court.

Summary by Gwyn Evans, barrister, Tanfield Chambers

G (A Child) [2015] EWCA Civ 119

J, a six year old boy, had been in foster care since August 2012, when care and placement orders were made by a Deputy District Judge (DDJ). The mother later applied for leave to apply to revoke the placement order, which was refused by a Circuit Judge (CJ) in September 2014. The mother was granted leave to appeal the CJ's refusal.

Macur LJ noted that the threshold criteria in the original proceedings were "more than satisfied"; however, it was not clear as to the basis on which the DDJ made care and placement orders as no transcript of the August 2012 judgment was available. Significantly, the transcript was not available to the CJ who considered and refused the mother's application in September 2014, nor did the CJ have the agreed threshold document.

The only note of the August 2012 judgment was a "note of final hearing" prepared by counsel for the local authority for his instructing solicitor. This was not a full note of the judgment, but a summary of the judge's conclusions and a subjective assessment of the hearing and its outcome by counsel and had not been approved by the DDJ. However, the note was before the CJ, who relied upon it.

A transcript of the CJ's judgment was available. The CJ correctly summarised the test for leave to apply to revoke a placement order as being a two stage test – first to consider whether there has been a sufficient change of circumstances and if so, to then consider whether to exercise her discretion to grant leave.

In respect of the first point, there were significant disputes of fact between the mother and the local authority, but no oral evidence was heard and there was no indication if the CJ accepted the factual basis of the mother's submissions. Despite this, the CJ concluded that she was not satisfied that there had been a change of circumstances as defined in Re P (Adoption: Leave Provisions) [2007], so did not go on to consider whether to exercise her discretion.

The mother appealed this decision and appeared before the Court of Appeal in person. When granting permission, three arguable points were identified: (1) the CJ set the bar too high and was wrong to find there had been no relevant change in circumstances, (2) the CJ was wrong to proceed on the basis that the local authority's disputed allegations were true, and (3) in assessing whether there had been a change of circumstances, J's circumstances should have been taken into account in that the adoption panel refused to approve the match between J and his identified adopters.

Apart from the issues in the grounds of appeal, there procedural concerns about the hearing before the CJ. It was wrong to proceed in the absence of a transcript of the DDJ's judgment or the threshold document and wrong to accept counsel's unapproved note as a sufficient substitute, despite the intention of avoiding delay. This approach led to an attempt to reconstruct the evidence based on the social worker's and guardian's reports. Even if it was possible to satisfactorily reconstruct the evidence, the CJ would have been incapable of forming a valid judgement about the change in the mother's circumstances without making findings on the disputed facts. The CJ's decision indicated she implicitly found against the mother.

Further, no gloss should be added to the words of the statute to set additional requirements for the change in circumstances and thereby set the bar too high. Issues as to the sustainability of the change and the impact it would have on the child should be considered at the discretion stage.

The appeal was allowed on the basis of the first and second grounds of appeal, the CJ's order was set aside and it was directed that the mother's application be heard by a different judge.

Macur J made obiter comments that, depending on the facts of the case, the child's change of circumstances (such as a failure to place for adoption in a timely manner) may be relevant. It is unlikely that there will be many situations where the change in the child's circumstances alone would be sufficient to open the gateway, but the court should not disregard

www.familylawweek.co.uk Family Law Week March 2015 - 86 such changes, whether good or bad, if it is also charged with evaluating the sufficiency of the nature and degree of the parent's change of circumstances. Finally, shortly before going into court, an uninvited statement by J's social worker was sent to update the court on family finding for J. Although this practice is increasingly common, it is entirely inappropriate to send in further evidence without using the normal procedure to apply for permission to admit fresh evidence.

Summary by Ariel Ricci, barrister, Coram Chambers.

JL v SL (No 1) [2014] EWHC 3658 (Fam)

In this case there were three grounds of appeal namely that:

1. The judge had erred in not properly reflecting the non-matrimonial origin of part of the pool of assets to be divided between the parties;

2. The judge had erred by providing for a step down in spousal maintenance payable to the wife when the parties' two children complete university;

3. The judge had erred in not providing for the spousal maintenance to be index linked.

Mostyn J immediately determined that the third ground of appeal was not arguable. Neither party had raised the issue of whether the spousal maintenance should be index linked at the final hearing. Nevertheless District Jude Reid had determined the matter. This was a decision termed by Mostyn J to be "squarely within her remit of her discretion."

In relation to the first ground, W argued that she received money from her mother as inheritance from her late father in two tranches: £100,000 in 2009 and £365,000 in September 2010. The latter payment was made just 10 months before the end of the parties' marriage and at a time in which the judgment records that the wife believed the husband was forming a relationship with another woman.

The wife had placed £190,000 of the inheritance into her husband's bank accounts. The remaining money had been invested. District Judge Reid had determined that the money had been made as a "gift to the family" and as such formed part of the matrimonial assets to be divided between the parties.

However, on close inspection of the transcript of the final hearing, Mostyn J disagreed. He accepted the wife's explanation that the motive for placing a portion of the monies with the husband was to ensure that he would have access to funds if the wife died prematurely in circumstances where other funds were locked up in investments. However, Mostyn J noted that "the fact that there had been some mingling of monies… does not mean that the non-matrimonial source of the monies in question is destroyed as a relevant consideration."

He considered paragraphs 14 and 15 of his judgment in N v F [2011] 2 FLR 533, noting that while N v F deals overtly with 'pre-matrimonial property' "everything I said there applies with equal force to property inherited during the course of a marriage."

He also examined the law in relation to inherited assets, particularly as set out in Robson [2011] 1 FLR 751; K v L [2011] EWCA Civ 550; and AR v AR [2011] EWHC 2717 Fam, accepting that "in certain circumstances gifted and inherited property may fall outside the matrimonial bequest and therefore not be treated in the same way, absent the existence of need and compensation."

Mostyn J set out the following propositions to be treated as good law "that inherited wealth should be treated differently from the matrimonial property depending on:

1 its source;

2 its nature, particularly whether it is a particularly valuable or personal item;

3 the duration of the marriage and for how long the wealth has been enjoyed by the parties, and the more and the longer it has been enjoyed, the less it should be ring fenced;

4 the extent to which the non-matrimonial property has become mixed with matrimonial property, to the extent that identifying its separate current value is difficult; and

5 if invested in the former matrimonial home, the extent to which this home has become treated as a central item of matrimonial property."

In light of his assessment of the law and the evidence available at the final hearing, Mostyn J allowed the appeal in relation to the first ground.

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In relation to the second ground, in light of his decision in relation to the division of the parties' assets which would result in the wife having a greater sum to invest, Mostyn J ruled that the decision in respect of spousal maintenance was also erroneous (although perhaps less in the wife's favour than the husband's).

Mostyn J noted that in such circumstances preferably an appeal court should exercise the statutory discretion anew rather than ordering a retrial.

However, there had been two significant events since the last judgment:

a) The husband's company, which he had argued to be valueless at the final hearing, was sold for £1.1 million. This resulted in the husband receiving £580,000 net;

b) The husband had recently been made redundant. He had received a payment of £100,000 and was now seeking new employment at the age of 52.

As a result of the two significant events, which raised important questions including in relation to the prospects of re-employment by the husband, Mostyn J was not in a position to exercise his discretion anew at this appeal hearing. He directed that the matter should be reheard by him on a later date.

Summary by Frances Harris, barrister, 1 King's Bench Walk

JL v SL (No 2) [2014] EWHC 360 (Fam)

About four months prior to this judgment Mostyn J allowed the wife's appeal from the final order of District Judge Reid (sitting at the PRFD as it was then known) on the basis that the district judge has erred in her treatment of an inheritance received by the wife of £465,000 shortly before the separation.

Upon allowing the appeal, Mostyn J had been unable to proceed to exercise the statutory discretion afresh because of two significant events that had occurred since the making of the final order: (1) the company which had been employing the husband had been sold and he received £1.1m gross (£586,334 net) from the sale of shares in the company; at the final hearing the husband had stated the shares were worthless and (2) shortly thereafter the husband was made redundant and he received £100,000 as a termination payment.

Having allowed the appeal, the judge directed an SJE report concerning the husband's future employment prospects.

The parties agreed to proceed on the basis of the district judge's findings concerning their respective needs. The judge heard evidence about the husband's knowledge of the takeover of his company at the time of the final hearing and found that "this was a clear and indefensible case of non-disclosure". The judge expressed that, had he not set aside the order on appeal, he would have done so on the basis of non-disclosure.

Having surveyed the case law on the definition of 'fairness' the judgment deals with the following two principles:

1. Matrimonial and non-matrimonial property Mostyn J cites the Court of Appeal's decision in K v L [2011] 2 FCR 597 and concludes that "it is hard to envisage a case" in which a party might establish a claim to share non-matrimonial property (as opposed to having a sum awarded from it to meet needs). He identifies from the authorities two divergent approaches on how to express the existence of non- matrimonial property in the ultimate division of assets. The first approach is to adjust the percentage from 50%, this the judge describes as "quintessentially intuitive" and risks being described as a "lawless science". The alternative approach is to determine the partition between matrimonial and non-matrimonial property and to divide equally the matrimonial property and to exclude completely from sharing the non-matrimonial property.

The judge goes on to emphasise that whilst equal sharing of the matrimonial property would be the norm it is not a rule and he provides the following examples of exceptions:

a) Although the matrimonial home will normally be designated as matrimonial property (in accordance with the speech of Lord Nicholls in Miller & McFarlane) in the case of Vaughan v Vaughan [2008] 1 FLR 1108 an unequal division of the matrimonial home was justified by virtue of unequal contributions to its acquisition.

b) If pre-marital or non-matrimonial property has become 'part of the economic life of the marriage' the extent to which it will be characterised as matrimonial will depend on questions of duration and mingling. Mostyn J quotes his judgment in N v F [2011] 2 FLR 533 in which he approaches the existence of pre-marital property which has been subject to mingling by excluding the original sum of £2.116m brought into a 16 year marriage but not any growth on the sum (and before making any necessary adjustment for needs);

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c) The doctrine of Special Contribution

2. Post-separation accrual The judge describes assets in this category as "a hybrid creature'. He distinguished two types of post-separation accrual:

a) Continuum cases - assets which were in place at the point of separation will remain matrimonial property but the increase in value achieved post separation may be unequally divided (although he emphasised that passive growth will be subject to equal sharing);

b) New venture cases - where the post separation accrual relates to a truly new venture in which case it should be designated as non-matrimonial property.

In the same way as with non-matrimonial property generally, Mostyn J criticises the approach whereby the court adjusts the overall percentage of division on an intuitive basis to reflect post separation accrual (as he infers was the approach adopted by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam). Instead he proposes that the court should first determine the share of matrimonial property before post separation accrual (usually subject to equal sharing) before going on to determine the share of the post separation growth (usually subject to unequal sharing).

On the present facts the judge decided that both the Wife's inheritance and the husband's post separation windfall were non-matrimonial (the husband's windfall came from shares in a new company from a job he took 11 months after separation). He therefore approached the discretionary exercise by awarding the parties equal shares of the matrimonial property and he then assessed their respective needs having accounted for the non-matrimonial property to which each was entitled. On that analysis no further adjustment proved necessary to meet needs.

In light of the husband's non-disclosure the judge ordered him to pay all of the wife's costs from the proceedings at first instance (£85,000). He had already made a costs order upon allowing the appeal at the previous hearing.

Summary by George Gordon, barrister, 1 King's Bench Walk

A (Children) [2015] EWCA Civ 133

Successful appeal from a peremptory dismissal of an application for DNA testing by a 13 year old child on the basis she had been deprived of a fair hearing

The 13 year old child, through her children's guardian, applied for a direction for DNA testing in support of her application for a declaration of parentage under section 55A of the Family Law Act, 1986. The application was summarily dismissed by the judge who described the application as "appalling" and "nonsense."

The Court of Appeal highlighted the importance of, and the right of, children to know the identity of their biological father and the recent affirmation of this by the President in Re Z (Children) [2014] EWHC 1999 Fam. Para 5.

The Court of Appeal accepted that the submission that the hearing amounted to a serious procedural irregularity was unanswerable and criticised the "unrestrained and immoderate language" used by the judge "which can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent". The case was remitted the case for re-hearing before the designated family judge for Liverpool, Her Honour Judge De Haas, Queen's Counsel.

Summary by Alison Easton, barrister, Coram Chambers

Re H (Children) [2015] EWCA Civ 115

The proceedings concerned children aged 14 and 12, and commenced in the private law arena during which a judge made observations about the way in which the father had undermined the children's relationship with their mother. The parties were subsequently given permission to jointly instruct clinical psychologist Dr Gough to carry out an assessment of the parents and the children.

Dr Gough's view was that the children had suffered significant harm and were continuing to suffer emotional abuse. She advised therapeutic work for the mother and the children, and that, to protect the children from further emotional harm, the current contact arrangements be suspended with the father having only supervised contact for a period.

Dr Gough was extremely concerned about the impact of her conclusions on the father's psychological state. There was concern for the children if the report were filed, as it was due to be, when they were staying with their father. The guardian's solicitor applied without notice, and a hearing took place at which Dr Gough gave evidence about how the father might react. She expected at a minimum he would place the children under great psychological pressure and, in

www.familylawweek.co.uk Family Law Week March 2015 - 89 addition, there was a risk that his response would be to commit suicide, possibly involving the children in this. The judge delayed service of the report until the children would be back with the mother and ordered the report to be served on the parties at court.

The case subsequently moved into the public law arena and at a later date ICOs made on the basis the children remain at home with their mother. After a lengthy final hearing Her Honour Judge Robertshaw made care orders (the children lived with their mother and had limited supervised contact with their father).

HHJ Robertshaw accepted Dr Gough's assessments of the family as "sound, accurate and reliable" and found her evidence to be well reasoned, balanced, truthful and cogent. She found that the father had become transfixed with the idea that the mother was alienating the children from him, and was intent on destroying their relationship with their mother and ensuring they live with him. The Judge recognised the level of contact proposed by the LA for the father was low (once a month for approximately 6 to 9 months whilst the children and their mother continued therapy). She concluded that if the children were not subject to care orders, if they moved to live with the father or if contact was unsupervised or at a greater level at that time, the harm they had suffered would continue and be compounded, the progress they had made be undone, the therapeutic process be undermined, the mother's parenting capacity adversely affected and undermined, and the children's relationship with their mother harmed.

The father appealed to the Court of Appeal on a number of grounds. His main argument revolved around HHJ Robertshaw's treatment of Dr Gough's evidence which he submitted had been allowed to assume disproportionate importance. It was argued that the only way he could effectively challenge Dr Gough's conclusions was by adducing his own psychiatric/psychological evidence so he should have been permitted to commission a further assessment and to adduce a report from a psychiatrist who had examined him for his employers.

Lady Justice Black (with whom King LJ and Sir David Keene agreed) considered that HHJ Robertshaw was entitled to refuse the father permission to instruct another expert. Sometimes a further expert does have to be instructed notwithstanding that it will be disruptive for the children but this was not such a case, and the refusal to permit the instruction of another expert did not prevent the father from challenging Dr Gough in cross-examination (at length).

A particular concern of the father's was Dr Gough's view of his suicidal thoughts and their potential implications for the children but the value of any new report on the father alone would inevitably have been limited by the difficulty that the psychologist would have faced in giving a convincing view as to the risks at the time of Dr Gough's assessment. It was suspected that the most that could have been achieved would have been an assessment of the state of affairs at the time of the new psychologist's examination, and it would have been open to the father to have sought a further consultation with Dr Gough to obtain an updated opinion.

One could well see why the judge did not admit the report from the psychiatrist who had examined the father for his employers. HHJ Robertshaw's explanation was not faulted where she said that he had not been involved with the proceedings, had seen none of the documentation, his examination of the father was not focused on the matters subject to these proceedings, and he did not consider his examination in the light of concerns about the children, the mother or the father's behaviours.

The Court of Appeal was not persuaded by complaints made about the without notice hearing and its procedure.

It was not accepted that the way the judge considered Dr Gough's evidence in her judgment was window dressing or rationalisation of her long held view of the case. Moreover Dr Gough's view and the judge's own conclusions were consistent with and supported by other features.

The judge produced a most thorough judgment, drawing together all the strands of the evidence, which included not only the matters which told against the father but also those which counted in his favour including the very important fact that the children wished to see their father far more frequently and extensively, and missed him. It was quite clear the judge's decision was not based upon an unquestioning acceptance of Dr Gough's evidence.

Summary by Victoria Flowers, barrister, Field Court Chambers

Z-O'C (Children) [2014] EWCA Civ 1808

This was a successful appeal against the decision of HHJ Wilding to make supervision orders in respect of a 7-year-old girl and a 15-month-old boy.

The underlying concern had been one of long-term neglect which was said to be the result of a lack of parenting capacity and low motivation. At trial the local authority sought care orders for both children, planning for the elder child to remain living with grandparents and for the younger to be adopted. The trial judge had had three pieces of written evidence before him: (i) a psychological assessment which concluded that motivation could not be measured, but that the father had a capacity to compensate for the mother's need for support, and that there was a possibility that the parents could "enhance their parental skills to a level that would allow good enough parenting"; (ii) a negative parenting assessment which

www.familylawweek.co.uk Family Law Week March 2015 - 90 appeared to have been compiled without the authors having had sight of much relevant material; and (iii) the report by the children's guardian who had been appointed late and had only met with the parents once and observed contact once.

At an interim review hearing counsel for the mother had sought a direction for the instruction of an independent social worker to complete a parenting assessment. Counsel had argued that the court would otherwise be left with a serious deficit in the evidence. This application had been refused by a District Judge, who instead provided for a family group conference to explore the issue of further support. That conference never took place.

At trial the judge found fault with the negative parenting assessment and thus with the guardian's report which had relied on it. As the Court of Appeal described, the judge was left with only the psychological report and the oral evidence of the parents on which to base his welfare judgement. Though he made a number of adverse findings the judge largely accepted the evidence of the father about his motivation, bolstered by the positive comments in the psychological report. On this basis the judge determined that the local authority had not made out their case that "nothing else would do" and made a supervision order, requiring the care plan to be changed to one of rehabilitation to the parents' joint care, for both children. The guardian appealed, supported by the local authority.

In a lead judgment delivered by King LJ the Court of Appeal allowed the appeal on the basis that,

"[…] the judge, having discounted the welfare evidence filed, was, as was recognised at trial by counsel, left without essential evidence to enable him to carry out the welfare evaluation. Without parenting assessment evidence in the broadest sense the judge was left without the material he needed with which to compare the benefits and deficiency of each realistic option" (para 57)

In particular, the judge had failed to fully consider the welfare implications for the older child, separately from those of the younger. The implication was that further evidence should have been sought, irrespective of delay. King LJ noted with approval that when seeking the independent social worker report counsel for the mother had relied on Re NL (A Child) (Appeal: Interim Care Order: Facts And Reasons), and Pauffley J's observations that, "Justice must never be sacrificed upon the altar of speed". The matter was remitted to the designated family judge for the area for consideration of further assessments.

Finally, the Court condoned the judge's approach of asking counsel for the local authority and the guardian at the hearing of their application for permission to appeal whether they sought clarification on any particular issue, in line with the comments made in Re A & L (Appeal Fact Finding) [2011] EWCA Civ 1205, [2012] 1 FLR 134 by Munby LJ (as he then was). The Court did not however accept counsel for the mother's submission that their negative reply precluded them from raising such issues on appeal.

Summary by Marlene Cayoun, barrister, 1 Garden Court Family Law Chambers

Re L (A Child) [2015] EWFC 15

This case related to an initial order from a district judge, in respect of the translation of a court bundle for the benefit of the father of the subject child. K, the father of L was Slovenian and could not read nor speak English. The order contained a schedule of documents to be translated; the scheduled documents ran to 591 pages extracted from a court bundle which at that stage contained 989 pages. The quoted rate of £0.102 per word is less than the rate – £0.108 – prescribed by the Legal Aid Agency (LAA), whilst the cost of translating the 591 pages transpired to be in excess of £23,000. So on average each page cost about £38 to translate. The LAA refused to grant prior authority.

The President reiterates the content of PD 27A:

"Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text."

He noted that the size of the court bundle on this case was over 2½ times the permitted limit and that no judicial approval had been sought to exceed this in accordance with PD27A Para5.1. The President referred to the judgments in Re X and Y (Bundles) (2008) EWHC 2058 (Fam) where he had expressed the following sentiments:

"The continuing failure by the professions to comply with their obligations is simply unacceptable. Enough is enough. Eight years of default are enough. Eight years are surely long enough for even the most casual practitioner to have learned to do better."

Munby P stressed that PD27A requires the preparation and lodging of a core bundle and, by design, does not acknowledge the concept of a "core bundle" (a concept which has recently be criticised by Mostyn J in J v J). The President stated:

"A judge, exercising the power conferred by para 5.1, may of course, in an appropriate case, direct that there is to be a single "core" bundle accompanied by other bundles arranged in accordance with directions given by the judge. But

www.familylawweek.co.uk Family Law Week March 2015 - 91

unless a judge has specifically directed, using the expression, that there is to be a 'core bundle', the expression is not to be used: the obligation on the parties is to prepare a PD27A-compliant 'bundle'."

The judgment makes clear that the practice of failing to comply with PD27A must stop and that practical steps are now being taken to do this. From now on, counter-staff at court offices will be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be lodged, and to require whoever is trying to lodge them to take them away. If witness bundles are sent by post, or by DX or delivered by couriers who refuse to take them away, they will, unless a judge has specifically directed that they are to be lodged, be destroyed without any prior warning necessarily being given. They will not be delivered to the judge and will not be taken into the courtroom by court staff.

The judgment also refers to the court's power to specify a maximum length of experts' reports and any other documents prepared for the proceedings, such as skeleton arguments and position statements. In respect of further breaches of PD27A, the President stated that from now on:

i) Defaulters can have no complaint if they are exposed, and they should expect to be exposed, to public condemnation in judgments in which they are named.

ii) Defaulters may find themselves exposed to financial penalties of the kind referred to by Mostyn J in J v J.

iii) Defaulters may find themselves exposed to the sanction meted out by Holman J in Seagrove v Sullivan, where the Judge adjourned the case to the following day so that a PD compliant bundle could be prepared.

In respect of the issue of translation of the documents in this case, the President identified a number of documents, which needed to be translated:

Ÿ Threshold document

Ÿ Initial social work statement (selected parts)

Ÿ Parenting assessment of the other father (selected parts)

Ÿ Final statement of the social worker (selected parts)

Ÿ Mother's statements (selected parts)

Ÿ Statement by the other father

Ÿ Care plan for L

Ÿ ISW report on the other father (conclusion only)

Summary by Michael Jones, barrister, 15 Winckley Square Chambers

Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) [2015] EWFC B16

This was an appeal by a father against a prohibited steps order that was made at a dispute resolution appointment following a report from CAFCASS. The father is a parliamentary candidate for the UK Independence Party and the order prohibited the father from involving the two youngest children of the family from being involved in political activity on the basis that hostile reactions from members of the public could be emotionally damaging to them.

Unusually, HHJ Wildblood QC states at the outset that he is not a member of any political party, that any political interests in the case passed him by, and that he decided the case solely on the basis of the applicable law, this being chiefly section 1 of the Children Act.

The appeal was put on the basis that the district judge was: a) plainly wrong to make the order she did relating to political activity; and b) that her approach to the case had been procedurally flawed.

The CAFCASS report that was before the district judge made only passing reference to political activity and this was in fact a reference to the mother being concerned about the father involving the children in UKIP activities.

The father was not aware prior to the hearing that the matter was being raised and there was no evidential material relating to any risk of harm to the younger children from involvement in political activities.

www.familylawweek.co.uk Family Law Week March 2015 - 92 Having summarised the relevant parts of the transcript These difficulties were that the father had had no notice that from the hearing before the district judge, HHJ Wildblood the issue would be raised, and adjudicated on before the QC concludes that there was no formal judgment given on hearing, the mother's contentions were contested and the the issue of the prohibited steps order, there was no father did not have any opportunity to answer them, the evidence, and the underlying facts were disputed. The CAFCASS report had not raised this as an issue that father wished to advance full arguments but was cut short required intervention; such an order should only be made by the judge who made what she described as a 'neutral for reasons relating to the paramountcy of the children's order' (prohibiting either parent from involving the welfare and making a 'neutral' order did not correct this; younger two children in political activities). where a prohibition is necessary, consideration should be given to limiting the time of the prohibition whereas this In allowing the appeal, the judge recognises that discussions order was made indefinitely. A further concern was that the take place in court to narrow issues in the case and that issue led to the father's Article 8 rights being engaged and judges do make orders without hearing oral evidence. He this was not examined. Although oral evidence is not makes it clear that he is not intending, in this judgment, to always necessary, there must be a satisfactory basis for give general guidance on the conduct of Dispute Resolution making the order. The judge was also concerned that the Appointments or to criticise this practice. order did not make plain the consequences of any disobedience, the duration of the order or the activities that Whilst emphasising that judges have a discretion to deal were prohibited. with cases as they see fit, and must do so in a proportionate manner (r 1.1, Family Procedure Rules 2010), The appeal was therefore allowed. and recognising that in a case such as this, with two litigants in person, hearing oral evidence may be Summary by Sally Gore, barrister, Fenners Chambers unrealistic in any case, the judge outlines his difficulties with this particular hearing.

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