Family Law Week June 2012 - 1 June 2012

News 1 NEWS Legal Aid Bill receives Royal Analysis Assent Finance & Divorce April 15 Criminalisation alone will not Update 2012 stop forced marriage, says The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) Court of Protection Update 20 Demos has received Royal Assent and is now an (May 2012) Act of Parliament. A new publication by the think-tank Parental Orders in Cases of 23 Demos argues that the ending of forced International Surrogacy: This means that the various changes to Practical Considerations marriage requires an holistic approach, the scope, eligibility and other aspects of involving community engagement and the legal aid scheme are now law. They Using insolvency to 26 focusing on prevention rather than are due to be implemented on 1 April discharge financial order prosecution. Criminalisation alone, it obligations: the blank 2013. canvas remains says, will not be enough. The Legal Services Commission will be Children: Private Law 28 Ending Forced Marriage examines the replaced by the Legal Aid Agency, which Update (May 2012) history of the Government's fight against will be an Executive Agency of the the practice in the UK, drawing on case Ministry of Justice. Cases studies of initiatives run in A County Council v M and F 32 Commonwealth countries by the The enacted legislation can be accessed [2011] EWHC 1804 (Fam) Department for International here. E (A Child) [2012] EWCA Civ Development (DfID) and the Foreign and 537 Commonwealth Office (FCO). It finds that the reason these schemes are Geary v Rankine [2012] 33 Court of Appeal decides firm is EWCA Civ 555 successful is their holistic approach to the entitled to its costs following problem. suspension of its retainer Cawdery Kaye Fireman & 34 Taylor v Minkin [2012] Drawing on these findings, the report EWCA Civ 546 recommends that the Forced Marriage The Court of Appeal, sitting with the Senior Costs Judge as an assessor, has W (Children) [2012] EWCA 35 Unit (FMU) should be given a deeper, Civ 528 wider presence, with representatives allowed an appeal by a firm of solicitors Yates v Yates [2012] EWCA across the UK engaging with local against an order of Cranston J. In Cawdery Civ 532 communities and a requirement on Kaye Fireman & Taylor v Minkin [2012] public servants to understand and assist EWCA Civ 546 the Court decided that C (A Child) [2012] EWCA Civ 36 where solicitors in matrimonial 535 the unit's mission. In terms of I-A (Children) [2012] EWCA international action, the Government proceedings refused to carry out work Civ 582 should build on its successful strategy of until outstanding fees, or an amount on 37 engaging Commonwealth partners and account, were paid, the refusal W-B (A Child) [2012] EWCA constituted a suspension of the retainer Civ 592 persuade core countries to coalesce Lilleyman v Lilleyman around defined actions and targets. until payment was made. It did not [2012] EWHC 821 (Ch) Finally, there should be greater amount to a repudiation of the contract 38 integration between the FMU, FCO and so that no fees were payable. Lilleyman v Lilleyman [2012] EWHC 1056 (Ch) DfID so that lessons learned from D (A Child) [2012] EWCA effective overseas initiatives can be The court heard that the respondent, Mr Civ 627 applied at home. Tackling forced Minkin, was involved in matrimonial S (A Child) [2012] EWCA Civ marriage requires a relentless focus on litigation with his wife, from whom he 617 had separated. prevention as well as prosecution. B (A Child) [2012] EWCA 39 Civ 632 To download a copy of the publication, An estimate of fees in the sum of £3,000 + VC v GC [2012] EWHC please visit the Demos website. VAT was given to Mr Miskin and he paid 1246 (Fam) £2,000 on account. The firm then sent the Re JS [2012] EWHC 1370 client a retainer letter saying "our overall (Fam)

Kim v Morris [2012] EWHC 40 GENERAL EDITOR Family Law Week is published by 1103 (Fam) H (A Child) [2012] EWCA Stephen Wildblood QC Law Week Limited Civ 714 Greengate House Deputy Editor 87 Pickwick Road L (Children) [2012] EWCA 41 Claire Wills-Goldingham QC Corsham Civ 721 Albion Chambers SN13 9BY Aspden v Elvy [2012] EWHC 1387 (Ch) Tel & Fax: 0870 145 3935 A Local Authority v DS 42 [2012] EWHC 1442 (Fam) www.familylawweek.co.uk Family Law Week June 2012 - 2 charges and expenses for this matter Pressure on the fostering are likely to be £3,500 plus VAT. I will The full judgment can be read here. system is ‘alarming’ , says try and keep costs down as much as possible, hopefully to £3,000 plus the Fostering Network VAT." Mr Minkin signed the retainer Conservative backbenchers letter. A child comes into care and needs a urge the government to defer foster family every 22 minutes across The proceedings became more legislation on same-sex the UK, the Fostering Network has complicated than originally envisaged. marriage revealed. The firm sent Mr Minkin an interim invoice. It advised him of his right to a The national press has reported that, in The charity says that this alarming detailed assessment of the bill. The bill the wake of the Conservative Party's figure highlights the growing pressure was for £5,472.50 and gave credit for reverses in local authority elections last on the care system and the scale of the the £2,000 paid on account. week, the government is coming under challenge facing fostering services pressure to defer the introduction of already struggling with a shortage of After various communications what are regarded by its supporters as foster carers. concerning the outstanding sum, the less popular reforms. This includes the firm emailed Mr Minkin to give notice legalisation of same-sex marriage. It points out that last year more than that it would not either obtain a 24,000 children came into care and counsel's opinion or launch directly In March 2012 the Home Office needed fostering, an increase of 17 per into the proposed proceedings "until launched a public consultation which cent compared to 2008. The total we are up to date on fees and have set out the government's proposals to number of children who are fostered money on account". enable same-sex couples to have a civil has risen for five years in a row. marriage. In the Court of Appeal, Ward LJ, giving Figures from Cafcass have shown a the lead judgment and referring to the The key proposals of the consultation record number of applications for care firm's email, said were: orders in recent months in England, suggesting the pressure on foster care Ÿ '[N]ot being prepared to act until To enable same-sex couples to have is set to continue unless more people money is paid shows a willingness a civil marriage i.e. only civil come forward to foster. to act when there is money on ceremonies in a register office or account. This is clear language of approved premises (such as a hotel). The Fostering Network says that an Ÿ suspension as the Master correctly To make no changes to religious estimated 8,750 new foster families are held and I regret that I marriages. This will continue to needed across the UK in 2012 alone, fundamentally disagree with only be legally possible between a and ahead of this year's Foster Care Cranston J.'s view that "the man and a woman. Fortnight (starts Monday 14 May) it is Ÿ language of these emails is redolent To retain civil partnerships for urging more people to become foster of termination, not suspension". I same-sex couples and allow couples carers. do not see it that way. The message already in a civil partnership to is, "I will not do any more work convert this into a marriage. Robert Tapsfield, chief executive of the Ÿ until you pay up": the message is Civil partnership registrations on Fostering Network, said: not, "I will not do any more, religious premises will continue as goodbye". The continuing is currently possible i.e. on a "More than 24,000 children who correspondence shows that the voluntary basis for faith groups and came into care last year were parties did not proceed upon the with no religious content. fostered. That means a foster home Ÿ basis that it was all over between Individuals will, for the first time, be has to be found every 22 minutes. them.' able legally to change their gender without having to end their "This figure highlights the Accordingly there was no repudiation marriage. overwhelming need for more of the retainer. people to come forward to foster. The consultation document can be read With more foster families, children In due course Mr Minkin told the firm here. in care will have a better chance of that he had lost confidence in his finding the stability and security solicitor and that he did not propose to The Queen's Speech takes place on they need to go on and achieve their issue further instructions. The firm Wednesday, 9th May. potential." wrote to the court stating that they were no longer instructed. To read the response to such reports of For more information, visit Lynne Featherstone, the Equalities www.22minutes.org.uk. Of this withdrawal of instructions Minsiter, please click here. Ward LJ said:

'The client's termination of the contract absolves the solicitor from any further performance of the contract but it does not absolve the client from paying the costs properly incurred to that date.'

www.familylawweek.co.uk Family Law Week June 2012 - 3

On family breakdown, the government obtain information from parties Equalities Minister says that will seek to ensure that children retain already involved Ÿ same-sex marriage a continuing relationship with both requiring parents in dispute to parents if it is in the children's best consider mediation as a means of legislation will be enacted by interests. settling that dispute rather than 2015 litigation by making attendance at a Parents will be given the opportunity Mediation Information and Despite reported pressure from to take flexible leave in order to share Assessment Meeting a statutory Conservative backbench Members of child care responsibilities. prerequisite to starting court Parliament, the Liberal Democrat proceedings Equalities Minister has stated on her Legislation will also give parents more Ÿ freeing up judicial time by allowing constituency blog that the government choice and control over support for legal advisers to process is set to proceed with its plans for children with special educational uncontested divorce applications. same-sex marriage. needs. It follows the Government's response The Queen's Speech, setting out the The government proposes to in February 2012 to the final report of government's legislative plans for the undertake consultation over the the independent Family Justice Review next session of Parliament, will be proposed changes. published in November 2011. delivered on Wednesday, 9th May. The Speech contained no reference to Adoption On her blog, the Minister says: same-sex marriage. The key measure is: Ÿ "In the aftermath of a tough set of For details of the 19 Bills and Draft Bills stopping local authorities delaying election results for both announced in the Queen's Speech, go an adoption to find the perfect Conservatives and Liberal to the BBC News website. match if there are suitable adopters Democrats – I couldn't help but available. The ethnicity of a child notice a few naysayers popping up and prospective adopters will come in the media and uttering dire DfE sets out key features of second, in most cases, to the speed warnings about a government that Children and Families Bill of placing a child in a permanent needs to concentrate on core issues home. rather than same sex civil marriage. The Department for Education has set The proposal was set out in the out the key features of the Children "For goodness sake – it's not either Adoption Action Plan published in and Families Bill announced in the / or. March 2012 – part of wider reforms to Queen's Speech. The Bill is expected to speed up and overhaul the system for be introduced early in 2013. "The economy is clearly the No 1 prospective adoptive parents and priority – but the Coalition can children. The main elements of the forthcoming multi-task! Bill include: Shared Parenting "There will be no u-turn on equal Ministers intend to strengthen the law Family Law marriage – we are committed as a to ensure children have a relationship The key measures are: government to legislate by 2015." with both their parents after family separation, where that is safe and in the Ÿ creating a time limit of six months child's best interests. by which care cases must be New Children and Families completed The Government believes that this will Bill announced in Queen’s Ÿ making it explicit that case encourage more separated parents to management decisions should be Speech resolve their disputes out of court and made only after impacts on the agree care arrangements that fully child, their needs and timetable The government will introduce a involve both parents. Children and Families Bill in the have been considered Ÿ focussing the court on those issues current parliamentary session. The Bill The Government will consult shortly which are essential to deciding will legislate upon aspects of the on how the legislation can be framed to whether to make a care order Family Justice Review and the Action ensure that a meaningful relationship Ÿ getting rid of unnecessary processes Plan for Adoption. is not about an equal division of time in family proceedings by removing but the quality of time that a child the requirement for interim care and Changes to adoption rules will spends with each parent. prioritise the need to find a child a supervision orders to be renewed every month by the judge and permanent placement over race This was announced as part of the instead allowing the judge to set the considerations. The government will Government's response to the length and renewal requirements of liaise with the welsh government independent Family Justice Review in interim orders for a period which he concerning the extension of changes to February 2012. The review published or she considers appropriate, up to the principality. There will be a six its final report in November 2011. the expected time limit month deadline for the completion of Ÿ care cases. requiring courts to have regard to the impact of delay on the child when commissioning expert evidence and whether the court can

www.familylawweek.co.uk Family Law Week June 2012 - 4

Office of the Children's parents were not charged with any Islington v Al Alas and Wray [2012] Commissioner criminal offence. EWHC 865 (Fam) - which set out the The key measures are: expert evidence in detail, please click It was established that the baby was here. Ÿ strengthening the Commissioner's vitamin D and calcium deficient and remit – with new overall function to that he had undiagnosed rickets. Social "promote and protect children's services applied for a care order and Ministers to give evidence to rights" as set out in the United asked the court to decide whether the Parliamentary inquiry into Nations Convention of the Rights of baby's injuries were caused non- the Child accidentally. children missing from care Ÿ widening the Commissoner's remit to include the functions of the The court heard conflicting medical Following the widely publicised Children's Rights Director in Ofsted evidence about the effect of rickets and imprisonment of nine men involved in Ÿ granting new powers to carry out also heard very positive evidence of the a sexual grooming network which assessments of the impact of new parents' care of their child. The judge exploited vulnerable teenage girls, the policies and legislation on children's ruled that the local authority had not Parliamentary inquiry into children rights and underline existing duties satisfied the court that the injuries were missing from care will hear evidence on government and public services caused non-accidentally. from two government ministers. to publish formal responses to Commissioner's reports Acknowledging the heartache that had Tim Loughton, the Minister for Ÿ giving more independence from been suffered by the parents, the judge Children and Families and Lynne ministers and report directly to commented that further research is Featherstone, the Minister for Parliament – with Parliament needed on the effects of vitamin D Equalities and Criminal Information, playing a stronger role in deficiency and rickets in children, will give evidence to the final session of scrutinising the Commissioner's echoing comments made by the judge the Parliamentary Inquiry on May 10. performance in the family proceedings following The inquiry is being held by two All- Ÿ granting future Commissioners a Jayden Wray's death. Party Parliamentary Groups (APPGs) – single six-year term of office. the APPG for Runaway and Missing The mother's solicitor, Kevin Skinner of Children and the APPG for Looked Special Education Needs Goodman Ray, said: After Children and Care Leavers. The key measures are: "After the miscarriage of justice The Children's Society says that figures Ÿ replacing SEN statements and suffered by Jayden's parents, it is suggest that hundreds of girls in Learning Difficulty Assessments sad and frustrating to have other children's homes are being sexually (for 16- to 25-year-olds) with a clients going through a similar abused by organised networks of men. single, simpler 0-25 assessment experience just because their child England's children's homes, which care process and Education, Health and is suffering from a relatively for 1,800 girls, have recorded 631 Care Plan from 2014 common medical condition. To be incidents of girls being sold for sex Ÿ providing statutory protections accused of abusing a child is during the past five years, including comparable to those currently terrible for any parent. 187 during the past 10 months. associated with a statement of SEN to up to 25 in further education – Although the Judge thought it was The charity adds that running away or instead of it being cut off at 16 appropriate to undertake an going missing from home is a key Ÿ requiring local authorities to publish investigation within the court indicator that a child might be involved a local offer showing the support proceedings and made no criticism in sexual grooming and children in available to disabled children and of the local authority, court care are three times more likely to run young people and those with SEN, proceedings of this sort are away than children living at home. and their families devastating. If any good can come When they go missing, they place Ÿ giving parents or young people with from these cases, we need to make themselves in great danger of being Education, Health and Care Plans sure that everyone involved in physically or sexually abused. the right to a personal budget for protecting children has an open their support mind and the knowledge and Anne Coffey MP, Chair of the APPG Ÿ introducing mediation for disputes experience to know the difference for Runaway and Missing Children and trialling giving children the between non-accidental injury and and Adults said: right to appeal if they are unhappy the consequences of an untreated with their support. condition. "In previous evidence sessions we have heard harrowing evidence of I would certainly back the Judge's what happens when children go Parents cleared of child call for more research on the impact missing from care and the physical abuse in new rickets case of rickets on children to avoid the and sexual abuse they encounter. misery of court proceedings We are looking forward to hearing wherever possible." from the two ministers about what A couple has been cleared of child the government and other agencies abuse in care proceedings which were For a fuller report please visit The can do to help protect the most brought when an X-ray of a leg injury vulnerable children in our land. showed that a 5 month old baby had Guardian's website. In order to read suffered multiple fractures. Unlike the the judgment in the care proceedings case involving baby Jayden Wray, the concerning Jayden Wray - LB of

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"We know that Children in care are Tim Loughton, the Children and The Department says that the figures three times more likely to run away Families Minister, announced in reveal wide variations across the than children living at home and December 2010 the Government's country and between neighbouring that missing is a key indicator in intention to remove the requirement on areas. sexual abuse. Ofsted to conduct annual assessments of local authority children's services, The Government is now opening "Far too many children who run "as soon as a suitable legislative discussions with the areas of highest away or go missing from care opportunity can be identified". concern, probing the specific issues become victims of sexual and each one faces and assessing the plans physical abuse and exploitation. Ofsted currently carries out a review in place to improve performance to One child in this situation is one every year of the overall performance ensure they will work. If ministers are child too many. Every child who of each local authority in England as not satisfied they will issue formal has to appear in court as a victim of regards the delivery of children's improvement notices – setting out sexual exploitation is a failure of the services. It then awards each authority specific targets, measures and system to prevent harm. a performance rating in respect of the timetables to speed up the adoption matters reviewed. process. "The Rochdale experience clearly demonstrates the need for local The Department for Education says The scorecards are a key plank of the agencies to work together and that across local authorities there has Government's tougher approach to share information. It is imperative been a concern that the children's addressing underperformance in the that professionals are aware of the services assessment is essentially a adoption system – set out in the Action strong links between going missing bureaucratic exercise that adds little Plan for Adoption published in March. and child sexual exploitation so understanding of children's services in A new assessment process is intended that they are able to identify the an area over and above the individual to reduce bureaucracy and the delays signs early and prevent absue from inspections that underlie it. which put off potential adopters and taking place. Based on the Government sees it as making little slow down the finding of loving homes comprehensive evidence submitted contribution to driving service for children. to the Inquiry, we will provide improvement. Ending the annual practical recommendations that can children's services assessment will It came after just 3050 children in care, make a real impact on the lives of create cost savings to Ofsted of including just 60 babies, found new thousands of the very vulnerable approximately £1.6 million per year. homes through adoption last year, the children who run away from care lowest since 2001. every year." Adoption scorecards show Children's Minister Tim Loughton said: The inquiry comprises of four oral the extent of delays across evidence sessions including one "The scorecards are not the be-all focussing on child trafficking, others England, says DfE and end-all or the final say. We are on issues around runaways. A report is not asking local authorities to speed set to be published in the summer. The Department for Education has up adoptions to the exclusion of Senior representatives from the Local announced that the first ever local everything else – but many more Government Association and the authority adoption scorecards, based areas need to strike a much better Association of Directors of Children's on figures from 2009 to 2011, show balance between quality Services will also give evidence at the there are widespread delays placements and the risk of long- final session of the Inquiry. throughout the adoption process. term damage to children by leaving them with uncertain futures. The inquiry is supported by The The Department says that hundreds of Children's Society and The Who Cares? children are forced to wait an average "The scorecards are a trigger for Trust. of 20 months from entering care to urgent, detailed discussions to moving in with their adoptive parents analyse what the problems are in – six months slower than the timetable areas of highest concern. Government legislates to end set out in national guidance, according to official figures published today. Ofsted’s annual assessment "There may be clear underlying reasons for delays – low numbers of of Children’s Services They show 80 local authority areas potential adopters; the speed of have met the interim thresholds (of 21 local courts; high numbers of ethnic The Government has laid the draft months from entering care to adoption minority, sibling groups and older Legislative Reform (Annual Review of and matching a child to a family within children in care, which are all Local Authorities) Order before seven months of a court order being historic barriers to securing long- Parliament. If approved by made). term adoption. Parliament, the Order will effect the repeal of the legislation requiring But the other 72 did not meet one or "Our work over the next few weeks annual children's services assessments both of these key measures – which will be to get to the bottom of the to be conducted – that is, section 138 of will be lowered gradually to 14 months precise problems in each local the Education and Inspections Act 2006 and four months respectively within authority area." – before Parliament breaks for summer four years. recess on 17 July. The Government Adoption Advisor, Martin Narey, said:

www.familylawweek.co.uk Family Law Week June 2012 - 6 improvement. Two thirds of marriage can be constructed and "Over the last few months, and in councils are hitting their targets if communicated in the current visits to more than twenty local the family court process - a matter climate. authorities, I have been encouraged out of councils' control - is taken out by the way the seriousness of of the equation. Ofsted recently "Join us at this critical time as we adoption delays has been taken on confirmed that the average length consider how marriage can be best board and the determination of of the court process is 14 months promoted and protected – for this struggling and well performing and in some cases it can take up to generation and the next. authorities to improve. 20 months. In addition, all councils have been rigorously inspected by "We hope to follow the colloquium "We now have a growing and Ofsted over recent years and only with an evening event in the House serious backlog of children cleared three are currently under notice to of Lords at which a presentation for adoption by the courts but for improve for their services to looked will be made on the issues whom there are too few potential after children. Last year no surrounding the Government's adopters. These scorecards adoption services were judged to proposed redefinition of marriage." demonstrate the reality that if be inadequate. delays in almost every aspect of the The speakers were due to include Sir adoption process are not tackled "The Government can also be Paul Coleridge, Christina Odone, the urgently, the list of those in need of reassured by Ofsted that whilst Daily Telegraph columnist and Phillip the loving home every child councils will always seek to find a Blond, the founder of ResPublica. deserves will continue to grow." placement which best fits a child's racial, religious and cultural According to the Telegraph, on backgrounds, these factors are not a Thursday, 10 May, Amper&and, the Local authority bodies barrier to placing a child with a company which manages hospitality at condemn adoption family. The Law Society, told the organisers that the booking was being cancelled scorecards "Councils simply cannot risk and the deposit refunded because the shifting their focus from the quality programme did not fit with its The Local Government Association, of placements to the speed of diversity policy. This was said to be on Association of Directors of Children's placements." the basis that it espoused an ethos Services and the Society of Local which is opposed to same-sex marriage. Authority Chief Executives have jointly condemned the adoption Law Society refuses to host Andrea Williams, director of Christian scorecards issued by the Department marriage conference Concern, which is a member of the for Education. World Congress of Families is reported because of its content to have said that the company's Speaking unanimously for the sector, decision arises from a fundamental all three bodies said: The organisers of a conference misreading of the Equality Act. She concerning marriage, due to be held at added: "Councils are passionate about The Law Society in London on 23 May, helping children and take their have been forced to cancel it after the "This colloquium was intended to responsibilities towards those in company which organises hospitality be a genuine open debate on the their care extremely seriously. The for the Law Society decided that the issues, constructing a case for adoption scorecards have the programme breached its diversity marriage in the public sphere, and potential to cause unnecessary and policy. they seem to be closing it down." avoidable concern in communities where there shouldn't be any, and The conference, organised by the The Law Society was said to be helping may put prospective adopters off. World Congress of Families in the organisers to identify an alternative Children waiting for adoption will partnership with Christian Concern, venue. However, Andrea Williams has not benefit from government was called One Man. One Woman. said that the organisers are not looking struggling to get its act together. Making the case for marriage, for the for another venue and have asked the good of society. Law Society to honour the contract "The data fails to provide a sound between them. basis for comparison across local The website for the conference said of authority areas. For example, one it: For the full report, see the Telegraph council's Ofsted-rated outstanding website. adoption service looks like a poor "Marriage continues to be in the performer in the score card – this is news. Both its nature and its role in simply not credible. We have society are under scrutiny. Yet engaged constructively with DfE much of the debate is marked by and are therefore even more confusion and contradiction. The disappointed that our shared Government itself speaks of the improvement agenda is value of marriage but undermined by a misleading use of simultaneously seeks to redefine it data. and undermine it.

"Councils acknowledge that there is "We are bringing together experts variation in performance across the from different spheres of public life country and want to work with the to consider how an integrated, Government to help support compelling case for authentic www.familylawweek.co.uk Family Law Week June 2012 - 7

Cafcass records highest ever surrounding the accuracy of the care demand statistics for While the National Audit Office says estimated collectable amount. that the 2010-11 accounts properly April present the amounts received and paid, The report can be downloaded from the C&AG has qualified his opinions this page. Care application demand has remained on the regularity of receipts and at a very high level. During April 2012 payments because of the level of error Cafcass received a total of 748 in maintenance assessments. He has Prime Minister announces applications which is the highest ever also given adverse opinions on the trial of free parenting classes number recorded by Cafcass for April. truth and fairness of the outstanding maintenance arrears (reported in note 6 for all parents of children During 2011-12, Cafcass received to the account). His report recognises, under five 10,218 new applications. This figure is however, that significant 11% higher when compared to the last improvements have been made by the The Prime Minister has outlined a financial year. Applications received Commission to the information range of support that is to be offered to between May 2011 to February 2012 available on child maintenance arrears. parents. It will include: during this year have been the highest The accounts have been qualified in Ÿ ever recorded by Cafcass for these terms of regularity because of the free parenting classes to all parents individual months. January 2012 saw errors made in the calculations of of children aged five years and the highest ever number of care maintenance assessments. Some under in three trial areas; Ÿ applications recorded in an individual payments have been based on incorrect a new digital service for parents-to- month, with 916 applications. assessments and some have been paid be and new parents, providing at the wrong rate. The best estimates regular emails and texts with timely Click here to view the care statistics for irregular receipts and payments for information as their pregnancy graph. 2010-11 are £10.2 million develops and their child grows; Ÿ overpayments and £13.9 million expert organisations to deliver underpayments. relationship support for first time Refugee children struggle to parents in four trial areas of the access legal advice, says The C&AG has also given adverse country from this summer. Coram Children’s Legal opinions on the truth and fairness of Centre note 6 to the account, the outstanding Free parenting classes will be offered to child maintenance arrears, which the all parents of children aged five years Commission reports to be £3.748 billion and under in three trial areas – New research by the Coram Children's at 31 March 2011. These figures do not Middlesbrough, High Peak in Legal Centre, reported by Children and give a true and fair view because of the Derbyshire and Camden in London. Young People Now, has found that level of error in the underlying case professionals are having difficulty data. The best available estimates of the Parents will be able to use vouchers, arranging legal advice for children cumulative errors indicate that the available from Boots stores, children's seeking asylum. This is partly because reported arrears at 31 March 2011 centres, health visitors and of the decision of many law firms to contained overstatements of £219 professionals who have contact with close their legal aid immigration million and understatements of £316 families to pay for the classes. The departments. million. NCT, Coram, Save the Children, and the Fatherhood Institute are among According to the Navigating the Since the Commission took over those who are delivering classes. System report, 59 per cent of responsibility for the statutory child professionals said it is becoming maintenance schemes in November The announcement coincides with the increasingly difficult to find legal 2008, it has made significant publication of a survey which reveals representatives to refer children's cases improvements to the information that a majority of the British public onto. In consequence children are available on child maintenance arrears. believes parents should automatically being forced to travel long distances to Errors in the underlying case data, receive information on accessing access legal representation. which were previously unknown, have parenting classes. therefore now been made visible. The For more details, please go to the C&AG is obliged therefore to give an The Family Tracker survey, website of Children and Young People adverse opinion on the reported commissioned by the Family and Now. arrears. The opinions on arrears do not Parenting Institute and carried out by reflect a deterioration in the accuracy of YouGov, questioned 2483 adults in data; rather increased transparency of April 2012. It shows that 57 per cent of CMEC’s Client Funds errors that have accumulated since the parents either agree or strongly agree Account cannot be signed off inception of the statutory child that all parents should automatically because of the level of error maintenance schemes. receive information on how to access high quality classes about parenting. Amyas Morse, the Comptroller and The Commission estimates that £0.54 This rises to 65 per cent among parents Auditor General ,has again again billion (14 per cent of the total) of the of 0-4s. unable to give a full sign off to the outstanding balance is likely to be Client Funds Account of the Child collectable. However, given the level of Up to £5 million has been made Maintenance and Enforcement error in the underlying arrears data, available for the trial between March Commission. there is significant uncertainty 2012 and March 2014. This includes

www.familylawweek.co.uk Family Law Week June 2012 - 8 funding for redemption of parenting new IT system which is already late. To January 2004 and December 2005 both class vouchers and an independent meet the current timetable critical children lived with their mother but evaluation. testing will have to be undertaken in retained substantial contact with the parallel with development work, appellant, spending most weekends Relate, The Tavistock Centre for mirroring poor practices that have and half of all school holidays with Couple Relationships and the contributed to the failure of a number him. The appellant applied for CTC but Fatherhood Institute will deliver of government IT projects. Each month HMRC determined that the mother relationship support sessions for first of delay will increase the Commission's had main responsibility for the time parents to support them with the costs by at least £3 million and may children and the appellant's transition to parenthood in four areas delay planned income from fees. application was rejected. The CTC was of the country – York and Leeds, North Unless the Commission delivers paid solely to the mother. Essex, Hackney and City of London, further efficiencies it will not have the Islington and Westminster – from this contingency needed to delay The HMRC now accepts that the summer. implementing the system until it works. legislative scheme indirectly discriminates against men. The key In conclusion, the Committee believes issue was whether that discrimination Public Accounts Committee that the Commission's cost reduction was objectively justified. considers CMEC cost plans are high risk in that they rely heavily on the introduction of fees on The Supreme Court unanimously reduction plans high risk parents rather than achieving genuine decided that the discrimination was savings. Forecasting how parents will justified. The House of Commons Public react to fees is difficult. Whilst ensuring Accounts Committee has published a parents accept proper responsibility for Baroness Hale, delivering the Report on the Child Maintenance and the cost of care for their children is unanimous judgment of the Court, said Enforcement Commission's cost important, it would be unfortunate if that the scheme in this case is geared reduction plans and has concluded that an unintended consequence of this towards reducing "child poverty". The they are high risk. initiative was more child poverty with current definitions of child poverty rely extra costs to the taxpayer. Parents lack upon household income, which means The Committee said that the Child confidence in the system, and the that targets will be easier to meet if Maintenance and Enforcement Commission needs to demonstrate that support is given to single households Commission faces significant, all too it has a service which is worth paying rather than split. However, the state is familiar and recurring challenges: fees for. entitled to conclude that children will parents are frustrated with the in fact be better off if CTC is distributed standard of support received from the To read the report, please click here. in this way rather than divided Commission, and too often fail to get For the Comptroller and Auditor between two households with modest any or the right amount of General's concerns about CMEC's means. That method is also simpler maintenance from non-residential Client Funds Account, please click here. and less expensive to administer, parents; maintenance payments thereby maximising the funds totalling some £3.7 billion are available for distribution. It was an outstanding, but the Commission Supreme Court decides that integral part of the move to combine estimates that only £1 billion of this is child tax credit system, tax allowances and social security collectable; and costs remain high. benefits into a seamless tax credit whilst discriminatory, is system. In the opinion of the Committee the lawful Commission faces further significant The Court also considered it to be challenges in introducing its new child The Supreme Court has decided in reasonable for the state to regard the maintenance scheme. In particular, it Humphreys v The Commissioners for way in which it delivers support for will need to respond to substantial cost Her Majesty's Revenue and Customs children and families as a separate reductions and successfully implement [2012] UKSC 18 that whilst child tax issue from the way in which children a new system of charging fees to credit indirectly discriminates against spend their time. Baroness Hale said parents who choose to use the men, the discrimination is justified. that it was perhaps unfortunate that Commission's services. . The the courts making orders about where Commission needs to deliver Under the Child Tax Credit children are to live no longer have the acceptable standards of service at a Regulations 2002, CTC in respect of power to make consequential orders reasonable cost. The new child each child is payable to only one about benefit sharing, where maintenance scheme should improve person, even where the care of the child appropriate. However, the no-splitting efficiency, but further changes are is shared between two or more rule is a reasonable rule for the state to needed to streamline existing persons. Entitlement to CTC depends adopt and the indirect discrimination processes. on who is deemed responsible for the in this case is justified. child. Regulation 3(1) provides that The Committee was concerned about where a child lives with two or more The judgment of the Supreme Court the Commission's cost reduction persons in different households, the can be read here. plans.The Commission has to deliver person having "main responsibility" for cost reductions of £117 million by 2014- the child is treated as being responsible. 15 and its plans are currently £16 million short of this target. Its cost The appellant in this case was the reduction plans depend in part on a father of two children. Between

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Petra Nordqvist, have interviewed brought against the decision of the Government policies fail to heterosexual and lesbian couples, and Inner House. tackle family breakdown, also grandparents of donor conceived children, about their experiences. The appellant's submissions were warns Centre for Social confined to three points. First, it was Justice The research team is now analysing all argued that the sheriff had failed to the data collected from the research address his mind to the appropriate Efforts to strengthen the family have interviews with families of donor- legal framework, specifically section 11 fallen victim to a "political tug of war" conceived children. of the Children (Scotland) Act 1995 and in the Coalition Government, the case law providing guidance as to according to The Centre for Social You can find out about progress with its application. Secondly, it was argued Justice in its annual report of progress the project by viewing a brief video (2 that the sheriff's findings could not in repairing "Broken Britain". mins) by Dr Nordqvist. Just click here. reasonably warrant the conclusion which he reached. Thirdly, it was The independent think-tank refers to a Professor Smart has produced a short argued that the sheriff had failed to act string of policy failures and omissions video (8 minutes) specifically about judicially, and that his decision should in the Government's approach to parenting agreements between lesbian not therefore be allowed to stand. In tackling family breakdown. It couples and gay donor fathers that regard, counsel contended that highlights the dangerous lack of concerning donor conceived children, remarks made by the sheriff betrayed a progress being made in introducing the court's attitude to them when the lack of objectivity and impartiality. transferrable tax allowances or in agreements break down and what eliminating the couple penalty in the sociological research (including this The Court said that it was apparent welfare system. project) can contribute to these ideas. that the sheriff had in mind the correct To see her video, please click here. test. His findings demonstrate that he The report also accuses ministers of treated the welfare of the child as the repeating the mistakes of the previous paramount consideration, and Labour administration by making Supreme Court upholds considered whether it was in the child's childcare and parental leave their chief judgment denying contact in best interests that an order for contact pre-occupations. It suggests that should be made. The Court also differences between Conservative and Scottish children case concluded that, in the light of his his Liberal Democrat politicians are findings, the sheriff had a reasonable responsible for a "frustrating lack of In NJDB v JEG and another (Scotland) basis for his conclusion that contact coherence in tackling the tragic [2012] UKSC 21, the Supreme Court – would not be in the child's best breakdown of family life". comprising Lord Reed, who delivered interests. the lead judgment, Lord Hope, who More broadly, it warns that last gave a brief, concurring judgment, In support of his third argument, summer's riots underline the urgency Lady Hale, Lord Clarke and Lord counsel submitted that the sheriff had of the social challenges facing the Wilson – dismissed a father's appeal made critical remarks about the country. against an order denying him contact appellant and the counsel who with his son, S. represented him, which were Criticism of the Government's record expressed in inappropriate language. in safeguarding the family is one of the The mother was the first respondent key features of the CSJ's annual "report and the second respondent was a The Court believed that the characters card" marking ministers' performance solicitor who was appointed as curator of the parties were however relevant, in tackling the drivers of social ad litem to S in respect of these to some extent at least, to determining breakdown. proceedings. whether the order sought would be in the best interests of the child. They To read the report, please click here. Following the end of their relationship, were also the subject of a great deal of the appellant and first respondent evidence. It was therefore appropriate engaged in protracted family for the sheriff to make findings in that ‘Relative Strangers’ project proceedings to determine the issue of regard. contact with S. The order giving rise to analyses wider family issues the appeal was set out in an of donor conceived children Although a judge must be careful, Lord interlocutor of Stirling Sheriff Court. In Reed said, to strike the appropriate a previous interlocutor the appellant balance between plain speaking and For the last eighteen months The had been granted parental rights and appropriate restraint, it is only Morgan Centre for the Study of responsibilities with respect to S, as exceptionally that the language used Relationships and Personal Life at the well as contact. The sheriff recalled the by a judge can give rise to an issue of University of Manchester has been previous interlocutor and withdrew all law which might vitiate his decision. In conducting a research project exploring contact between the appellant and S. the present case, the Supreme Court how heterosexual and lesbian couples could not detect an error of law in who conceive using donor sperm, eggs On appeal to the Court of Session, the relation to this matter. or embryos, negotiate telling parents Inner House varied the sheriff's and relatives about their decision to interlocutor so as to restore the The Supreme Court commented on the use a donor. appellant's parental rights and duration of the proceedings and the responsibilities, but otherwise refused costs incurred, observing that: As part of this project the researchers, the appeal. The present appeal is led by Professor Carol Smart and Dr

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Ÿ traditional pleadings are not Ÿ Guardians believed local providing information to necessarily the best means of authority care applications court. identifying the issues in such cases were more appropriately and noting the recommendations of timed than in 2009. In two Alongside the research is the the Report of the Scottish Civil thirds of cases Guardians felt publication of five years' worth of Courts Review; that the care application was individual local authority care Ÿ further consideration might be timed appropriately, a application data, including both given to the structure of a sheriff's marked increase from the numbers and rates (per 10,000 judgment proceeding on a proof; level of just over half the children) of care applications. Fourteen and cases, found in our previous local authorities showed a net decrease Ÿ the Scottish courts should make use survey. This increase was in the number of applications per of their existing case management matched by a similar drop in 10,000 children over the five years from powers. the number of applications 2007-08 to 2011-12 while in 2011-12, 53 seen as being 'late'. local authorities experienced either a Ÿ In the vast majority of cases decrease or no change in the New research from Cafcass (85.4%), Guardians believed application rate. shows that local authorities that the local authority's care application was the only The study will be repeated in three are making care applications viable action to keep children years' time to assess whether progress earlier safe and that there was no is being maintained. other alternative to court Cafcass has published new research proceedings. The report can be read here. repeating a study conducted in 2009 Ÿ This study, when compared into the rise in care applications with the 2009 study, has following the death of Baby Peter found that local authorities Munro welcomes child Connelly. Since 2007-08 Cafcass has are making applications at an protection reforms but says witnessed a 62% increase in the earlier stage of their numbers of local authority care involvement with children. In that pace needs to be applications. In 2011-12, the number of this study 19.8% of children accelerated applications topped 10,000 for the first had not been previously time ever. Alongside the research is, for involved with children's Professor Eileen Munro, author of the the first time, the publication of five services at the time of the Government's review of the child years' worth of individual local application, almost double the protection system, has said that a authority care application numbers 11.5% seen in the 2009 study. "culture change" was underway in the and rates. Only 9.1% of children had child protection system but outlined an been continuously involved urgent need to now accelerate reforms Anthony Douglas, Chief Executive with children's services for to create a more child-centred system. said: more than five years, a quarter of the 36.1% seen in In a progress report on reforms to the "Following on from the Baby Peter the 2009 study. This suggests child protection system, she has said tragedy there was an upsurge in that local authorities are reforms had reached a "watershed care applications which is still taking action earlier to keep moment" but, while progress is moving being sustained three years on. For children safe. in the right direction, it now needs to vulnerable children today this Ÿ There is a greater prevalence move faster with more prescription defining study gives encouraging of neglect in this sample than and bureaucracy stripped away so signs that court applications to the 2009 study, and the social workers are able to focus on protect them are now more timely children subject to Child giving children and young people the and being made at an earlier stage Protection Plans (under the help they need. of a local authority's involvement category of neglect) have been with their family. It shows that known to local authorities for Professor Munro added that social cases where children are suffering less time than was previously workers must be confident to use their from neglect are being brought the case. This suggests that judgment instead of applying rules more quickly to court and that, in neglect is now being acted that do not match a specific child's the large majority of cases, Cafcass upon more quickly, and needs. Guardians believed that the local applications in which neglect Professor Munro highlights the authorities' actions were the correct is a feature are being made an following progress in her report: ones." earlier stage than was the case Ÿ three or more years ago. The removal of fixed assessment The study surveyed more than 200 Ÿ Care applications from timescales. The experience of the Cafcass Guardians in relation to 247 London boroughs were trial authorities who were granted care applications, involving 401 identified by Guardians as exemptions from these statutory children, made in November 2011. being more appropriately timescales has been positive. They timed than those from outside report that the additional flexibility According to Cafcass, the key findings London (75.5% appropriately has encouraged better, more are: timed), and most likely to thoughtful working practices, and meet the requirements for better and clearer consideration of priorities.

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Ÿ Ofsted's revised child protection "As BASW's widely publicised Association of Directors of Children's inspection framework. This rightly survey of 1,100 social workers Services: Balance needs to be struck focuses on the impact and showed last week, social workers between streamlined guidance and effectiveness of help and protection are dealing with unmanageable effective direction to assist working for children, young people and their caseloads, rising amounts of together families. administration and plummeting Responding to the publication of Ÿ The report has found many morale. An alarming 85% of social Professor Munro's progress report into encouraging examples of services workers have experienced cuts to child protection, Debbie Jones, working together and with social services over the past year, 88% President of ADCS said: services to provide better believe lives are being put at risk understanding of children's needs. and 54% say their caseloads are "Professor Munro set central and Ÿ Important improvements are now simply unmanageable. local government a significant already being made to initial challenge when she recommended education, in selecting the right "Regrettably, we are in danger of a change in the practice and culture people and training the next fiddling while Rome burns. in child protection services. generation of social workers. Directors have relished that Ÿ The Government has taken steps to "It is welcome that pilots on the challenge and there is significant appoint a Chief Social Worker and removal of fixed assessment innovation across the country as local authorities are now starting to timescales have been positive, but managers and frontline staff decide recruit Principal Social Workers to such gains pale in comparison how to make the most of the new their teams. against deep cuts to support staff freedom to use their professional and rocketing levels of demand for discretion and shape services The report calls for faster progress in child protection workers, as care around children and young people. the following areas: numbers rise inexorably. There is a lot to learn in this new world and Directors will value the Ÿ A reduction in statutory "Without giving social workers the offer of support from the Children's guidance so that there is more resources on the ground to do their Improvement Board to share scope for professional and jobs, we are simply taking one step learning as implementation local autonomy. There has forward and two steps back. progresses. been a delay in implementing these changes, due to the need "BASW unreservedly welcomes the "Promoting and supporting for proper public initial progress and will go on professional judgment is at the consultation. Once this has pressing for Professor Munro's heart of these reforms – social been removed services should important work to be adopted in workers and managers are inspired be better placed to work full, but policymakers must by the possibilities for improving together to offer improved recognise that this work is in real their practice. The Department for early help. danger of becoming an irrelevance, Education must provide the Ÿ The Government needs to unless direct action is taken framework within which this can encourage better immediately to help rescue take place, including being braver understanding between frontline practitioners. about the need to reform serious services as reforms take place case reviews, assessment and in health and policing. "That's why, in addition to the long guidance. The guidance itself is Ÿ The importance of term need for better resourcing, only a beginning, creating the space implementing all the BASW is calling for three measures for professional development of proposed reforms together in to be taken now to at least stop the frontline professionals and the full. situation deteriorating further, building of a culture in which social placing children at ever more risk: workers can act in the best interests To read Professor Munro's progress of children and young people. report, please click here. 1 Immediate measures to reallocate local authority "The environment in which these British Association of Social Workers: administrative staff from less changes are happening add to the "Situation is getting worse, not better" critical roles challenge: children's services Commenting on Professor Eileen departments are dealing with Munro's progress report into the 2 Place a moratorium on any consequences of not only the review of the child protection system, further cuts to social work Munro review, but also the social BASW chief executive Hilton Dawson, allowances or the introduction work reform programme, the said: of any new charges, which are family justice review and changes savagely undermining morale to the education, policing and "BASW has always supported health systems, not to mention Professor Munro's important work, 3 Ensure that Ofsted and CQC reduced resources. Bringing and welcomes the incremental prioritise in all inspections the partner agencies together to shape progress evident in this update, but risks of high caseloads and take services in this changing context the sad reality in child protection steps to uncover bullying". requires clear expectations on the services is that the situation is roles and responsibilities of every currently getting worse, not better. To read BASW's survey, please click agency described in joint guidance. here. There is a balance to be struck between streamlined guidance that

www.familylawweek.co.uk Family Law Week June 2012 - 12

allows for professional discretion require solicitors to undertake colleagues found that reports by and guidance that says too little preparatory work earlier in the independent social work expert about joint working to help process to reduce delays in the witnesses assisted the court and did professionals work together more experts beginning work. not cause delay. effectively. This is not an easy task and is better to get right than to "We recognise that minimum "Reports to courts by expert rush to meet a fixed timetable. This standards are necessary for expert witnesses are not determinative. is a long term project that will witnesses in the family court. We The case is instead determined by require significant commitment are working with the Department the judge or magistrates on the from ministers, directors and of Health, health regulators and the whole of the evidence presented to frontline staff to maintain the Family Justice Council to establish them. No-one claims that all clinical momentum created by Professor minimum standards that judges diagnoses presented to the court Munro's rigorous report." should expect from all expert are 100% infallible, just as they are witnesses. We are exploring how not in everyday clinical practice. and whether we can implement the However, there is presently no LSC produces FAQ document family justice review evidence that children are routinely concerning LASPO changes recommendation that meeting taken into care through minimum standards should be a 'incompetent psychologists and requirement for public funding. We other experts' as stated in this press The Legal Services Commission has will also consult key stakeholders report." published an FAQ document on proposed minimum standards, concerning the changes which will be which we hope to have in place introduced by the Legal Aid, later this year." Sentencing and Punishment of Ofsted seeks to raise Offenders Act. The changes will be standards in foster care with The BBC, reporting the debate, stated implemented on 1 April 2013. that 'fewer decisions about the care of improved inspection regime children will be made on the advice of The FAQs reflect queries received at poorly qualified experts in the family As Foster Care Fortnight 2012 comes to Provider Reference Groups and from courts under government plans'. an end this weekend, Ofsted has providers and representative bodies in published an explanation of how its relation to the legal aid reforms. Julie Doughty of the Law School, latest revisions to the inspection of Cardiff University, who was a member fostering services places are intended The FAQ document can be read here. of the team which published in 2011 an to focus even more firmly on the Evaluation of the Legal Services welfare and safety of children and Commission pilot on Alternative young people. Justice Minister announces Commissioning of Expert Witnesses, rule changes concerning commented: Better inspection arrangements expert witnesses in family From April, after consulting with proceedings "Rather than new standards, it children and young people, foster appears that the Minister is carers and professionals, Ofsted made referring to ongoing work by the further improvements to its In a parliamentary debate on 24 May arrangements for inspecting the Jonathan Djanogly, Minster for Justice, Family Justice Council in consolidating good practice built fostering services that local authorities in response to a question by John and independent agencies provide. Hemming MP, said: on Practice Direction 25A attached to the Family Procedure Rules 2010 One of the key changes is that and implemented from April 2011. inspectors focus much more on the "We are introducing early changes views and experiences of those using to the court rules through This includes the recent issue of standards for overseas expert the service and on the progress secondary legislation. The main children and young people make. elements are raising the threshold witnesses and current consultation on consistently embedding the Ofsted has also introduced new online for the court to permit an expert to questionnaires to gather the views of be instructed; requiring expert requirements of the Practice Direction. children, young people, birth relatives witness evidence to be necessary, and foster carers as well as other rather than reasonably required; interested parties. and in family proceedings "Contrary to an assertion in the BBC report, the Family Justice concerning children, there will be a Ofsted says that its trained social care list of factors that the court must Review panel was not itself critical of the quality of reports by inspectors talk to social workers, staff, explicitly consider in deciding children, young people and foster whether to permit an expert to be psychologists. This is presumably a reference to the media coverage of carers to find out whether children and instructed. Those factors include young people in foster care have been the impact on the child of a delay research by Professor Jane Ireland. However, as this study is yet to be placed in suitable placements within and undergoing an assessment, the good time and whether they are being cost, and whether the information published in full, it is premature to make any claims based on it. looked after properly and making could or should be provided by one progress. They also look at the impact of the parties, such as the local Meanwhile, as Mr Hemming himself notes in the debate, the on children from the training and authority. We will also require the support that agencies provide to foster court to exercise better control over recent publication of an empirical study by Dr Julia Brophy and carers. They read case files and the questions put to the expert and examine other evidence but they do not

www.familylawweek.co.uk Family Law Week June 2012 - 13 visit foster carers' homes as this is an predict every harmful situation, given guidance concerning the prior inspection of the fostering service while meeting the ever growing authority by the Legal Services provider not individual foster carers. demands of a target-led profession. Commission (LSC) in relation to expert Inspectors have to report honestly and evidence. clearly, ensuring that the judgements "Professor Eileen Munro, who is they make are fair and reliable and leading the government's review The case itself concerned the delay and based on clear evidence and promote on child protection procedures, has ultimate refusal by the LSC to grant the best interests and well-being of identified that uncertainty is part of prior authority for the instruction of an service users. child protection work, saying only independent social worker to perform this week, 'we cannot know for sure a parenting and risk assessment of Focusing on the child what is going on in the privacy of parents. The ISW was requesting a rate Ofsted says that it inspects the quality family life, nor can we predict with of £50 per hour, whereas the current of services and whether the placements certainty what will happen'. rate set by the Community Legal made are stable, appropriate and of Services (Funding)(Amendment No 2) benefit to children and young people. It "At the time of Peter Connolly's Order 2011 restricts payment to an ISW also looks at what safeguards are in death, Haringey Council's systems working out of London at £30 per hour. place to ensure that unsuitable people and management were under- do not have unsupervised contact with resourced, and staff were The President said that it was for the children and young people. The overburdened and not supported judge to decide whether particular inspectors check that leaders and as they should be. Sadly, social expert evidence was required. The managers are monitoring the quality workers in Haringey knew that the purpose of the President's guidance and impact of the services, are environment they were working in was to speed up the process of experts continually striving to improve them was inappropriate, but they did not being properly instructed, should the and making sure that effective raise the alarm in the way the court direct it. He did, however, point partnerships have been forged with all public would have hoped. The out that if a lawyer takes the view that those involved with the children and ability of social workers to blow the the LSC has acted with Wednesbury young people. whistle on bad practice remains unreasonableness, or their decision can stymied by a culture of fear, and be struck down for any other public At the end of the inspection, inspectors where openness and transparency law reason, then the remedy is judicial give feedback to service providers is frowned upon as a risk to the review. about their initial findings including image of a local authority. the strengths and weaknesses that they In his guidance, the President states have found. They discuss the "This is still a worry for social that the words "the cost thereof is requirements that services need to workers today, in our recent survey deemed a necessary and proper fulfil and recommend how they can of over 1000 social workers, half disbursement on [a named improve further. said they were afraid to speak out individual's] public funding certificate" for fear of repercussions. We also should no longer be used, as they do know that 4 years on from the Peter not bind the LSC. Rule 25.1 of the ‘Baby P’ social workers lose Connolly case, social workers are Family Procedure Rules 2010 will employment appeal dealing with unacceptable shortly be amended to insert caseloads and huge amounts of "necessary" for "reasonably required". Commenting on news that 'Baby P paperwork that keeps them away If the court is persuaded that expert social workers' Gillie Christou and from actually visiting vulnerable evidence is necessary, it should say so Maria Ward have lost their appeal children, and their morale is in a judgment or preamble of an order against an employment tribunal ruling plummeting. 88% of social workers and should identify the issues on that they were fairly sacked, Hilton surveyed told us they feel lives which the expert should report. Should Dawson, chief executive, British could be put at risk as a the LSC refuse to grant prior authority, Association of Social Workers, said: consequence of the current cuts to then it should likewise set out its social work services. reasons accordingly. He stresses in "This is a case that should strike conclusion that courts should fear into the heart of every social "Social workers should be familiarise themselves with Part 25 of worker. supported and applauded for the the FPR and Practice Direction 25A, in job they do, not be personally particular paragraph 4.3(h) (soon to be "Social workers are trained exposed and thrown to the lions revised) which provides that anyone professionals attempting to do their when mistakes are inevitably wishing to instruct an expert needs to best for children under very made." explain to the court why the expert stressful circumstances, but when evidence proposed cannot be given by things go wrong their mistakes are the Social Services undertaking a core magnified and the results more President delivers guidance assessment or by the Children's tragic than in most areas of work. on seeking prior approval by Guardian in accordance with their LSC of expert evidence in respective statutory duties. "When social workers make serious family proceedings mistakes, they should face the The President also highlights the need appropriate sanctions, but no-one for courts to keep to the strict In A Local Authority v DS [2012] should lose sight of the fact they are timetables set down by the PLO, and EWHC 1442 (Fam), the President of the working in an extremely that the instruction of an expert should Family Division, Sir Nicholas Wall, has pressurised system, expected to not, unless it is avoidable, hold up the

www.familylawweek.co.uk Family Law Week June 2012 - 14 progress of a case. He also points out that the LSC is under extreme pressure due to the number of applications for prior authority which have risen from 216 in November 2011 to 1840 in March 2012.

For a much fuller summary of this judgment, written by Chris McWatters of Garden Court Chambers, and for the judgment itself, please click here.

Family Law Week will be publishing next week an article by Chris McWatters about the implications of this judgment and undertaking judicial review proceedings against the LSC following refusal of authority.

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ANALYSIS Self-represented Litigants Increasingly, family lawyers are dealing with cases where Finance & Divorce April Update 2012 the other party is a self represented litigant. This issue was highlighted in Lesley Pendlebury Cox's article "Litigants in Person: It doesn't have to be like this" (click here for the article) Some of the issues arising in such cases have been addressed in The Law Society's new practice note. Click here for further details and for the link to the full text which includes specific advice for family law cases.

The rise of the SRL is echoed by The Observer reports that divorce reforms are leading to a two tier system with wealthier couples trying arbitration and the less wealthy resorting to DIY divorces: http://www.guardian.co.uk/lifeandstyle/2012/apr/22/c ourts-chaos-diy-divorce

Mediation Information and Assessment Meetings A Resolution member survey suggests that MIAMS are not working: http://www.resolution.org.uk/news- list.asp?page_id=228&n_id=177

Case law update This Update deals with cases involving capitalisation of maintenance where a lump sum has been paid to discharge the mortgage, trusts of the family home, civil partnership dissolution, dealing with third party claims, shareholders' agreements, costs, piercing the corporate veil and property regimes and add backs.

Yates v Yates [2012] EWCA Civ 532 This case considered capitalisation of maintenance in circumstances where the wife had received a lump sum to discharge the mortgage, but had not done so.

A consent order provided for:

Joanna Grandfield, Associate (barrister), Anna Heenan, - the husband to pay a lump sum to the wife intended, in solicitor and David Salter, Joint Head of Family Law at part, to discharge her mortgage; and Mills & Reeve LLP analyse the latest key financial - the husband to make periodical payments to the wife for remedies cases. three years with no bar to extension.

News in brief The wife did not discharge the mortgage and invested the This section of the update highlights some of the news items money in a bond that produced no income. that will be of particular interest to practitioners who advise on divorce and financial remedy cases. The wife successfully applied to extend the term of the periodical payments order to 15 years. The payments were Marriage Statistics capitalised by reference to her monthly income needs, The Office of National Statistics shows a 3.7% increase in the including her mortgage payment. number of provisional marriages in 2010 (these statistics are based on information recorded when marriages are The husband argued that the mortgage payments should registered as part of civil registration. The statistics are have been excluded from the wife's budget. The Court of finalised when the majority of marriage returns have been Appeal noted, obiter, the guidance in Fleming v Fleming received from register offices and the clergy): [2003] EWCA Civ 1841 that term orders should only be http://www.ons.gov.uk/ons/dcp171778_258307.pdf extended exceptional circumstances. The court reduced the wife's budget by the amount of her mortgage payments and Forced Marriage the revised total formed the basis for the Duxbury Demos has published a report on ending forced marriage: calculation. She could not look to the husband to meet her http://www.demos.co.uk/publications/endingforcedmar mortgage payments where she had elected to invest the sum riage in a bond that provided no income instead of discharging the mortgage. Divorce Reform Sir Nicholas Wall backed the introduction of no fault divorce during his conference address at the Resolution conference. Click here for the News story and a link to the full text of the speech

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Thompson v Hurst (unreported) 30 March 2012, CA attempts to rely on judicial creations. It was self-evident that This case provides guidance on the parties' beneficial L should retain the London flat as it pre-dated the interests in a property bought in one party's sole name on partnership and was necessary for his work. Likewise, G the advice of their mortgage advisor. should retain Pine Cottage, which was his pride and joy. This lead to two equal considerations: H was a local authority tenant of the property. T moved in and they had two children. They intended to buy the 1. Whether fair sharing required a balancing payment to property jointly but, because of T's financial position, they reflect the difference in value between the two properties; were advised they would not be able to secure a joint and mortgage. H paid the mortgage and all outgoings. T 2. What funds were necessary for each of the parties to live contributed £100 a week for the children and outgoings. T comfortably in their homes. was awarded a 10% share at first instance. L was self-sufficient with a substantial pension. G's position The Court of Appeal held that there was no scope for the was far less secure. The need for a pension share was legal presumption that the parties had intended to be joint obvious and that aspect of the first instance award was tenants at law or in equity. In the circumstances, it could not upheld. be assumed that, even if the parties had bought the property in joint names, they would have agreed to be joint beneficial The disparity in the property values should be reflected and owners. There was an intention that T should have had a G was entitled to enjoy a comfortable standard of living beneficial interest and there was no reason to depart from without financial anxiety. The only basis for the judge's the judge's quantification of that interest. award of £577,778 was that it was the sum necessary to bring G award to £1.6m after the transfer of Pine Cottage Lawrence v Gallagher [2012] EWCA Civ 394 (Thorpe and and the pension share. Moses LJ and Ryder J) 29 March 2012 This is the first reported case dealing with the financial The value of the London flat had increased far more than implications of the dissolution of a civil partnership. Pine Cottage because of the rise in the London property Arguments that this was a "dual career" case were rejected. market. The judge's award did not explain why a 55:45% asset division was fair in light of this and her approach was L (47) was a city analyst and G (54) an actor. Including too theoretical. She should have assessed the appropriate cohabitation, their relationship lasted 11 years and 7 lump sum on the basis that G would receive Pine Cottage months. The parties' assets totaled £4.175m, including a and the pension share. This would have resulted in a much London flat (£2.4m) and Pine Cottage (£900,000). lower lump sum of £350,000 whether based on needs or sharing. L bought and refurbished the London flat prior to the relationship and redeemed the mortgage from his own The judge had misunderstood the nature of L's bonus resources during the relationship (although he scheme. The deferred shares were not capital but income. subsequently remortgaged it). Pine Cottage was owned There was no principled reason to award G 45% of this. 62%:38% in favour of L according to a declaration of trust. Fisher Meredith LLP v JH and PH (Financial Remedy: L's income was £200,000 per year. Until March 2010, when Appeal: Wasted Costs) [2012] EWHC 408 (Fam) (Mostyn J) G obtained a leading role in the West End, L had paid him 16 February 2012 interim maintenance of £1,000 per month. G put his pension This case considers who bears the responsibility for joining into drawdown in December 2008, receiving £5,000 in cash a third party to financial remedy proceedings . and monthly payments of £79.99.He also derived an income through bed and breakfast at Pine Cottage. Fisher Meredith LLP (FM), the wife's solicitors, appealed against a wasted costs order made against them in financial At first instance G was awarded £1.6m (42%)comprising remedy proceedings. Pine Cottage, a pension share of £200,000 (approximately 1/3 of L's pension), and a lump sum of £577,778.The judge The husband was allocated a third of the shares in the also awarded G 45% of L's deferred shares when they came Company three years before he married the wife. In his s 25 into payment. affidavit, the husband said that he was purely nominee for his uncle and/or his uncle's brothers. This was the first time On appeal, Thorpe LJ rejected L's argument that the London he had asserted he was not the legal and beneficial owner of flat was not a partnership asset. He cited paragraph 22 of the shares. Lord Nicholls' judgment in Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186 and observed that the Shortly before the parties separated the husband transferred matrimonial home was an exception to the usual his shares to his uncle's wife (PH). On the wife's application categorization of matrimonial and non-matrimonial for a s 37 injunction to reverse this transfer, PH was joined property. Similarly, this was not a "dual career" as a party. Nobody joined the uncle to the proceedings and relationship. "[T]his couple clearly intermingled and he declined FM's invitation to intervene. combined their available income and capital to enjoy a high standard of living by their own design." Two days before the final hearing the PH's solicitors disclosed 123 pages of heavily redacted documents. The Thorpe LJ advised judges to consistently apply the s 25 wife's solicitors sought an adjournment. The husband and criteria to the facts rather than "new approaches often PH agreed, but claimed that FM should pay their costs expressed in newly minted phrases." The present case was because FM had been negligent in failing to join the "comparatively simple", but complicated by the parties' beneficial owners of the shares to the proceedings.

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a. Initially endowed with 30% of the issued Company shares; Mostyn J cited paragraphs 35-37 of his judgment in TL v ML b. In July 2001, the husband transferred a further 18% of the [2005] EWHC 2860 (Fam) and observed that, in those Company shares into the trust; passages, he had not addressed the question of whose c. The husband's children from his first marriage were obligation it was to join third parties to proceedings. He excluded as beneficiaries. drew a distinction between two types of case: 2. Peyton Place, the matrimonial home, was purchased in 1. The claimant is saying that a property held in the name of joint names in 1994 and then settled by both parties into the a third party is the property of the respondent; and "irrevocable" Peyton Place settlement in 2003. The 2. The respondent says that the property to which he has beneficiaries included the parties, their children and their legal title is beneficially owned by a third party (this was the children's children. The parties had beneficial use and type of case currently under consideration). enjoyment of the property.

In case 1 there is a clear obligation on the claimant to join the 3. In October 1998, SCI Amandier was incorporated in third party at an early stage. In case 2, Stack v Dowden [2007] France. The wife had 90% of the shares and the husband 1 FLR 1858 established the starting point is that if an asset is 10%. A property (L'Amandier) was purchased and in one party's name then it belongs to him both legally and renovated. In 2004, the husband transferred additional land beneficially. In such cases "the duty to bring the claim of the to the SCI and transferred his shares to the parties children; non-legal third party before the court lies primarily and equally on the respondent to the application and on the 4. In July 2003, the parties and the 1996 family trustees drew non-legal owner, and not on the claimant." up a share agreement (the "Share Agreement"). The Company shares were reclassified into A, B and C shares This was not to say the Claimant could not take this step if which were assigned as follows: she wished and whether she did so would depend on how her claim was phrased. Mostyn J gave two examples: a. Wife: 52% A shares; 51% C shares b. Husband: 52% B shares; 49% C shares 1. W and H have £500,000 and there is no dispute that they c. 1996 family trust: 48% A and B shares are joint beneficial owners (Pool A). There is also £500,000 in H's name which he says is owned by his uncle (Pool B). W The agreement prevented: does not need to join the uncle as if the court decides Pool B belongs to H then W could receive her full award from Pool i. the sale or transfer of shares outside the existing A without needing to involve the uncle. shareholders or other trusts settled in similar terms to that in 1996; 2. If Pool A was only £100,000 and Pool B was £900,000 then, ii. the wife's removal as a director; assuming the same outcome, W can only collect £100,000 iii. the making of gifts or payment, save earned from Pool A and may need to deal with uncle's claim if she remuneration, to the husband's elder children; brought enforcement proceedings against Pool B. Therefore It also specified a salary to be paid into the parties' joint it may be better for W to involve the uncle from the outset, account each year. although she is not obliged to do so. 5. In April 2008, a property was purchased in the wife's Here the wife was not under a duty to join the third party name in Chelsea for £2m. An additional £470,000 was spent and therefore FM were not negligent. on improvements. 48% of the property was settled in trust for the benefit of the husband and wife's children. F v F [2012] EWHC 438 (Fam) (Macur J) 5 March 2012 In this case, the judge considered and rescinded a The husband also made a gift of shares worth £2.477m into shareholders' agreement between the parties. the wife's name during negotiations concerning the Share Agreement and the Peyton Place Settlement and gifts of The judge commented on the parties' failure to comply with over £8m to his elder children. The judge felt these the Pre-Action Protocol, the FPR 2010 or the spirit of demonstrated the husband's attitude to financial planning Practice Direction 25A and said it was unsurprising that the and his past generosity to the wife. FDR had been unsuccessful. It was agreed that the 2003 settlements were post-nuptial This was the husband's third marriage and there was a settlements subject to variation by the court. There was an thirty-year age difference between the parties. The marriage issue between the parties as to whether the Share lasted 18 years and the parties had three children. The Agreement was also a maintenance agreement under husband also had four adult children from his first Matrimonial Causes Act 1973 s 34(2) which could be varied marriage. The husband founded Franklin Plc (the in accordance with Granatino v Radmacher [2010] UKSC "Company") in 1971. This was the "origin and continuing 42. mainstay of the family wealth." The wife became a non- executive director of the Company in 1996. The Share Agreement made no express provision for arrangements if the parties lived separately. The wife There were various trusts/settlements including: argued it survived divorce/separation and was a maintenance agreement as it was not expressly brought to 1. The "irrevocable" HF Family Settlement created in 1996 an end and was "irrevocable" save by joint agreement. The for the benefit of his family of which the wife, and later her husband argued that it could not survive separation as it sister, was appointed a trustee. referred to the parties' joint bank account.

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The judge observed that under MCA s 34(2) "financial arrangements" meant "provisions governing the rights and - The 1996 settlement was to be varied to provide for the net liabilities towards one another when living separately." This proceeds of sale to be divided two-thirds to the wife and only covered agreements made with the expressed or one-third to the husband and reinvested in separate clearly implied purpose of governing the parties' financial properties. affairs including in the event of separation. It did not cover - The present trustees were to remain. those which would do so only if certain terms of the - The husband was to pay the wife a lump sum of £0.75m agreement were re-constituted. and transfer any remaining interest in the Chelsea property and L'Almandier to the wife. The judge could not find any implicit purpose that it should - The share agreement was totally rescinded and so the endure separation. The three transactions that took place in wife's shares resurrected to the husband. It was for the 2003 were part of a comprehensive reorganization of the board to decide whether the wife would remain a director. family's financial affairs and the process should be considered as a whole. The Peyton Place settlement Excluding pre-marital property this left the wife with 45% provided for each party to have a life interest and right of of the total marital assets or 36% of the total. residence in the property and so could not cover the separation of the parties. Whilst this analysis of the Grubb v Grubb [2012] EWCA Civ 398 (Thorpe and Gross agreement did not rely on an examination of the parties' LJJ and Ryder J) 1 March 2012 intentions at the time of making the agreement, the judge Thorpe LJ warns of the dangers of litigation! found the wife had not given any thought to its status on divorce/separation and the husband did not understand it The husband challenged Moylan J's summary assessment of to survive divorce. the wife's costs following his judgment at first instance. The Court of Appeal had given permission to appeal and the The wife asked the judge to attach weight to the parts of the parties were ordered to file Form H's, other statement of agreement that benefitted her and to vary those that did not. costs and detailed bills of each party's costs. The Judge commented that "[f]air outcome in this case demands that it should stand in its entirety or fall The parties agreed the wife's fees, but the husband altogether." The acrimony between the parties, which nevertheless requested the documents to check the wife had endangered the company and thereby the 1996 trust, made not been overcharged. This was not part of the compromise. variation necessary. Thorpe LJ declined to order this. The documents would be of no financial use to the husband as he was now bound to The judge then considered several disputed issues of fact: pay the costs. There was no indication that the wife was unhappy with the level of her costs. Thorpe LJ commented: 1. The valuation of the husband's pre-marital wealth an the extent to which it should be isolated from the marital "I have every sympathy with Mr Grubb. To be involved property to be divided; in ancillary relief litigation is a dire prospect for any The husband's pre-marital wealth was significant and could husband or wife. The level of costs that are charged not be ignored. The Company had been the central plank of nowadays in London by specialist solicitors and the parties' finances throughout the marriage and the wife barristers seems to many, both within and without the had not played any significant role in it. profession, to have reached very high levels; certainly unacceptably high levels in comparison with other 2. The treatment of the husband's dispositions to his elder major capitals in which ancillary relief claims are children; litigated, admittedly under different systems of justice." These were not dispositions with the intention of defeating or reducing the wife's claim, nor did they found any "add- Prest v Prest & Others [2012] EWCA Civ 325 (Thorpe and back" argument. Rimer and Patten LJJ) 16 February 2012 The husband and a number of companies, which had been 3. The valuation of the life interests in Peyton Place; joined as interveners because they all seemed to be trading The wife had argued these should be reduced because Mrs vehicles for the husband, sought permission to appeal. N, who lived in the property, might be able to claim proprietary estoppel. No-one had obtained a witness Permission was granted on several different grounds, the statement from her and the single joint expert had not most significant of which concerned piercing the corporate spoken to her. The wife had failed to discharge the burden veil. Thorpe J commented, "There is a real point of substance of proof on this issue. It was very difficult to value the life which this court must decide, and that is which of the two interests here as there was no established methodology. streams of first instance authority we should validate on the perennial question in ancillary relief proceedings, when and 4. The valuation of the existing shareholdings in the in what circumstances does the judge pierce the corporate Company; veil?" The Company's value was taken to be £17.5m, of which £10m was treated as pre-marital wealth. Permission was also granted in respect of the husband's argument that Nigerian customary law regulated his shares 5. The valuation of the wife's maintenance needs. in his main trading company. He was allowed to adduce the The wife's budget was unrealistic and without foundation. judgment of the Nigerian court on this issue, which had Her needs were £300,000, which would reduce as the been delivered since the first instance judgment. children got older. This meant a Duxbury fund was £4.974m. Finally, permission was given to challenge the form of order The assets were to be divided as follows: used by the judge, which made the lump sum order at the

www.familylawweek.co.uk Family Law Week June 2012 - 19 same time as a transfer of property order. Case law prohibits this if the sole purpose of the transfer of property order is to King J found that the wife was not a forum shopper. ensure implementation of the lump sum order. Although the marriage was in difficulty at the time of the move to England, both parties regarded it as continuing. It Permission to appeal was conditional upon: made sense to relocate when the London flat was free and both children were starting school in September. The 1. the husband paying the wife's historic and assessed costs; husband had done all he could to forum shop by seeking 2. the husband and companies securing the wife's appeal advice from two sets of English solicitors, considering a costs; and protective petition and failing to file an acknowledgment of 3. the husband continuing to make the payments set out in service. a previous order. King J considered Radmacher and commented that neither GS v L [2011] EWHC 1759 (King J) party had considered or discussed divorce at the date of the The parties married in 1999. The wife was 41 and the agreement: the primary motivation was to give the wife husband 43. They had two children aged 9 and 10. The financial protection if the husband died. Further, there was husband was a banker. The wife a homemaker who was no common understanding between the parties about what highly educated and had worked before the children were it was intended to achieve. The wife sought financial born. The total assets were around £4m and included a security and would not have conceded the London flat was London flat (purchased in 1999 and worth £1.135m now) a anything other than matrimonial property. The husband property in Madrid (£1.419m) and the husband's pension sought to exclude his pre-acquired assets. (£384k) As the Spanish legal experts were unclear about the impact In 2002, after relocating to Spain, the parties purchased the of the unusual agreement, neither party could have a full Madrid property and signed two documents: appreciation of what it meant under Spanish law. The only intention that could be inferred was that both parties 1. The equivalent of a declaration of interest where the intended, subject to the 16.88% interest in the Madrid property is held as tenants in common, which provided that property, that all assets acquired after the agreement would the wife held 16.88% and the remainder was held equally be shared equally. between the parties; and The assets, with the exception of the husband's pension, 2. A document providing that all future assets would be were required to meet the parties' needs. The pension was held under a matrimonial property regime known as accrued entirely before the marriage and was excluded in its "Sociedad de Gananciales." entirety. The wife was awarded £600,000, representing maintenance of £31,000 per annum for 5 years. Whilst she In 2006 the husband was made redundant and the wife would seek work her role as the children's primary carer, returned to work. Both parties sought legal advice about lack of recent work experience and the Spanish economy divorce, the husband from English and Spanish lawyers. would make this difficult. A longer term of maintenance was inappropriate in view of the acrimony between the The husband found work in England in 2009.The rest of the parties. The remaining assets were divided equally. family followed later that year when the tenant of their London flat gave notice. The children were intended to start On the issue of costs the wife sought: at English prep schools in September 2010. 1. Exclusion of costs from the asset schedule – she had paid The husband sought Spanish advice about issuing a more towards hers and so would effectively be protective divorce petition in Spain. The wife petitioned in contributing to the husband's. England in November 2009 and the husband failed to file an This was rejected. It would effectively treat costs as an acknowledgment of service. The wife also brought addback requiring detailed consideration of the husband's proceedings for leave to remove the children to Spain. The spending. husband did not tell the wife he had met with Spanish employers and negotiations on this issue continued after he 2. An addback relating to the husband's overspending. had agreed his contract. The whole family relocated to Spain King J considered the criteria in Vaughan v Vaughan [2008] in 2010. 1 FLR 1108 were not met and declined to order this.

The wife sought an equal division of assets plus an 3. Her costs for the leave to remove element of the additional sum equating to ten year's spousal litigation. maintenance/a joint lives maintenance order to reflect the As they were separate proceedings, the court could only uncertainty in the Spanish job market. The husband sought make provision for costs by finding that the order in relation to ring-fence £1.49m on the basis of the community of to costs had been a pragmatic decision to resolve the case property agreement, or, failing that pre-acquired wealth. and detailed consideration was needed to "add back" the wife's costs of those proceedings. The husband's failure to At the start of the hearing the husband argued the child and inform the wife of the Spanish job offer was unfortunate but spousal maintenance should be determined in accordance not "wanton" such that it should be penalised. with Spanish law (which he conceded during the hearing would be unfair) and he accused the wife of forum- shopping. The wife accused him of running up costs because of his misguided approach to litigation and sought an 'addback'.

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Court of Protection Update (May 2012) Hedley J attempted to cut thorough the precedential difficulties by setting out some of the factors which would point to a person having capacity. The person should have an understanding of the mechanics of sexual relationships and that sexual relations may lead to pregnancy. They should also have a rudimentary knowledge of the health risks associated with sexual relations and that those risks can be reduced by taking precautions such as condoms. Importantly a person's moral understanding of sexual relations should not form part of the test for capacity. Hedley J specifically rejected the call from counsel for H to formulate a test for an understanding of this aspect of sexual relations. An emotional understanding, however, is crucial to the test for capacity:

'It remains in my view an important, some might argue Sally Bradley, Barrister, of 4 Paper Buildings analyses the most important, component; certainly it is the source recent decisions in the Court of Protection relating to of the greatest damage when sexual relations are abused. capacity to consent to sexual relations, DNA testing and The act of intercourse is often understood as having an statutory wills. element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge This edition of the Court of Protection Update looks at remains: can it be articulated into a workable test? recent case law in the following areas: Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my Ÿ Capacity to consent to sexual relations judgment one can do no more than this: does the person Ÿ DNA testing whose capacity is in question understand that they do Ÿ Statutory Wills. have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is Capacity to consent to sexual relations really possible to go over and above an understanding In A Local Authority v H [2012] EWHC 49 (COP), Mr Justice of the physical component.' Hedley was asked to determine whether or not a 29 year old woman (H) had capacity to consent to sexual relations. The Applying his formulation to H's case, Hedley J had no case is worth noting for its application of the recent hesitation in finding that H lacked capacity to consent to authorities on this issue, in particular the decision of Wood sexual relations. She understood that she had a choice to say J in DCC v LS [2010] EWHC 1544 Fam (reviewed here) and no to sex but found it very difficult to exercise that choice. DBC v AB [2011] EWHC 101 (COP) (reviewed here). She had no understanding of the health risks of sexual relations. This was particularly harmful in her case given The consultant psychiatrist instructed in the proceedings to the amount of sexual partners she had had. At the time of assess H found that she had mild learning difficulties, the proceedings, H was being accommodated by the local atypical autism and an IQ of 64. She had a long history of authority and was under one-on-one supervision. The sexualised behaviour which had led her to be placed on the accommodation clearly amounted to a deprivation of H's child protection register, though no statutory intervention liberty, though this was justified on a best interests basis. had ever taken place. H was clearly vulnerable to sexual exploitation. In 2003, a man was convicted of attempting to The law in this area is complex and, as Hedley J remarked, rape her and she had engaged in sexual activity with a this judgment 'may have deepened rather than dispelled the number of different men. In 2009, H sought refuge with a legal fog'. Hedley J's checklist of factors could provide a man called R who informed the local authority about H's practical way forward, but it leaves open some of the behaviour and vulnerability. She was interviewed by the questions raised by the House of Lords in R v C Anthony local authority and told them that she had had sex with [2009] 1 WLR 1786, in particular the importance of the several men at the same time, often much older than her, person's understanding of the consequences of their actions and had attempted to have sex with a dog. She was rather than simply the nature of the sexual act. Hedley J admitted to hospital in November 2009, where she stated that he looked forward to a case on this issue reaching remained until August 2011. the appellate courts.

The case came before the Court of Protection for DNA Testing declarations as to H's capacity to consent to sexual relations. In LG v DK [2011] EWHC 2453 (COP) the President gave In reviewing the previous authorities, Hedley J stated: guidance on the circumstances in which the court can order DNA testing of incapacitated adults for the purposes of 'Counsel are agreed that the judgments are as between establishing paternity. This case represents the first time themselves not capable of reconciliation.....What then is that this issue has been raised and fully argued in the Court this court to do? Clearly I cannot avoid expressing a of Protection. There are a number of authorities which view with the attendant risk of yet further confusion. consider the question of taking DNA samples from children, Yet it cannot be any part of my role, nor would I regard see for example Re E (A Minor) (Parental Responsibility) myself as equipped to attempt it, simply to subject those [1994] 2 FCR 709 and Re L (Paternity Testing) [2009] EWCA five judgments to critical analysis and then solemnly Civ 1239, [2010] 2 FLR 188, but no reported cases prior to pronounce as between them.' this one dealing with incapacitated adults.

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The President's decision was based on two factors. First, the The case concerned an 84 year old man, DK, who suffered fundamental difference between taking bodily samples from dementia. DK was found to lack capacity and resided from incapacitated adults as opposed to children. In the case in a nursing home. LG, the senior partner in a firm of of children, if the person with care and control of the child solicitors, had been appointed in 2008 as his financial does not consent, the court can override their objection if it deputy. The matter was returned to court by LG after she is in the child's best interests. In the case of incapacitated found references to a daughter in DK's papers. The adults, the person whose consent is to be overridden is also daughter was identified as BJ, a woman in her early fifties. the person who is to be tested; they are one and the same The question before the court was whether or not it would person. The authorities in respect of children were therefore be in DK's best interests for him to provide a bodily sample distinguishable on their facts. Secondly, the words of section for the purposes of establishing BJ's paternity. BJ was not a 21(4) are unqualified: party to proceedings, but her evidence was that her mother and DK had a brief relationship in 1959 as a result of which 'If the court were to take the view, for any reason, that it she was conceived. She was brought up understanding that was in the interests of the person lacking capacity to DK was her absent father. Her mother changed her surname undergo a DNA test, it would be strange if the court did by deed poll to K. not have the jurisdiction to consent to such a sample being taken.' Section 21 (4) of the Family Law Reform Act 1969 states as follows: In DK's case, the question of whether there should be a DNA test was adjourned to allow for the execution of a statutory (4) A bodily sample may be taken from a person who lacks will. The judge accepted that there was a strong likelihood capacity (within the meaning of the Mental Capacity Act that the will would leave much of DK's property to BJ in any 2005) to give his consent, if consent is given by the court case, whether or not he was her biological father. DNA giving the direction under section 20 or by – testing may therefore be disproportionate.

(a) a donee of an enduring power of attorney or lasting The President also considered whether applicants seeking a power of attorney (within the meaning of that Act), or determination of parentage should apply in a court other than the COP for a declaration of parentage under section (b) a deputy appointed, or any other person authorised, by 55A of the Family Law Act 1986. In view of the President's the Court of Protection, decision that a free standing power to take a DNA sample exists under section 21(4), absent any other application with power in that respect. which gives the COP jurisdiction, an application under section 55A would be unnecessary. The matters which the court must take into account in determining whether or not to order a DNA sample to be Statutory Wills taken in these circumstances are the best interests criteria set Section 18(1) MCA 2005 gives the Court of Protection out in section 4 of the Mental Capacity Act 2005. Counsel for jurisdiction to make a statutory will on behalf of someone the Official Solicitor argued that section 21 was the only who lacks capacity. D v JC and Others Case Number means by which the court could order a DNA sample to be 11757467 concerned an application by the daughter (D) of JC taken from a person lacking capacity. The court could not for an amendment of his existing statutory will, in which use its powers under section 15 MCA 2005 to make she was not included, to grant her an equal share of JC's £3.5 declarations, under section 16 MCA 2005 to make decisions million estate alongside his three other children, A, B and C. or under the inherent jurisdiction to order the taking of D had been adopted and brought up in a different family DNA samples. The Official Solicitor argued that, as no under a different name. In 1991 she made contact with her specific application had been brought in the COP mother and siblings. She did not renew contact with JC, proceedings in respect of parentage, the court could not use recognising that it would be too disruptive for him. JC was its powers under section 20 of the Family Law Reform Act 89 at the time of the application and suffered from dementia. 1969 to order a DNA test as there were no 'civil proceedings' The Official Solicitor was asked to represent JC and to trigger the use of section 21. concluded that he did not have testamentary capacity.

The President rejected the Official Solicitor's argument in D argued that the fact of her adoption should not mean that respect of jurisdiction: she be treated any differently from her biological siblings. JC had effectively abandoned responsibility for all four '...... I find myself unable to accept the argument that, as children at an early stage in their lives; the legal severance a matter of jurisdiction, the COP lacks the jurisdiction to of the parental relationship brought about by the adoption give a direction for, and to consent on DK's behalf to, the order did not have any greater effect than the actual taking of a bodily sample as the proceedings are severance in the case of the other children. In the currently constituted. Having thought anxiously about circumstances, an objective bystander would consider that the matter, I have come to the conclusion that, as a a four-way division rather than a three-way division was matter of jurisdiction, section 21(4) of the 1969 Act does the right thing to do. give the court the power to consent to the taking of a bodily sample from a person lacking capacity D's application was, unsurprisingly, opposed by A and B (C notwithstanding the absence of a specific application played no part in the litigation). They argued that her claim within the COP proceedings putting the parentage of an was essentially based on moral rather than legal individual in issue.' foundations. A, B and C were JC's children in the eyes of the law and D was not. In any case, JC had no relationship

www.familylawweek.co.uk Family Law Week June 2012 - 22 whatsoever with D, so it was doubtful whether there was in medical research. We have, as Lewison J rightly fact any moral justification for D's application. observed, an interest in how we will be remembered, whether on a tombstone or through the medium of a will Senior Judge Lush considered the existing authorities on or in any other way. In particular, as he points out, we statutory wills. Any authority predating the MCA 2005 is no have an interest in being remembered as having done longer good law as it does not specifically apply the best the "right thing", either in life or, post mortem, by will.' interests test now required under the Act. Prior to the MCA 2005 coming into force, the judge simply 'stood in the shoes D's application was refused. JC was obviously not interested of the testator' and made the will that the testator would in being remembered for having 'done the right thing'. have made at the time. This was no longer an appropriate Indeed, the judge found that he would probably relish being approach to take. However, the balance sheet approach remembered for having done the wrong thing in respect of recommended by Thorpe LJ in Re A (Medical Treatment: his children. His own views, as far as they could be Male Sterilisation) [2000] 1 FLR 549, weighing up each interpreted, were that no one should have his money. In aspect of the best interests checklist in turn, was also not these circumstances, there was little or no best interests particularly helpful in applications concerning statutory justification for JC's will being amended to include D. The wills. There would usually be one factor in the best interests refusal of D's application, was also based on a recently checklist of magnetic importance in reaching a decision. published Law Commission Report, Intestacy and Family Provision Claims on Death (Report Law Com No 331), The best interests criteria which the courts are now required which makes clear that there are no plans to change the law to apply include matters which may only apply after the in respect of adopted children's rights of inheritance. The person's death, as Mr Justice Munby made clear in Re M, factor of magnetic importance in this case was that D had no ITW v Z and others [2009] WTLR 1791: relationship whatsoever with JC. Although the other children's relationships with him were strained and distant, 'Best interests do not cease at the moment of death. We there was nevertheless an established relationship. have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for

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Parental Orders in Cases of International parenthood provisions and transfers parental responsibility Surrogacy: Practical Considerations for the child to the commissioning couple. Section 54 contains a number of provisions which must be satisfied before a parental order can be made: fulfilling these provisions can create enormous problems. Equally the actual process of applying for a parental order, which is governed by Part 13 of the Family Procedure Rules 2010, can also throw up unexpected, costly practical problems.

With effect from 6 April 2010, the HFEA (Parental Orders) Regulations 2010 applied s.1 of the Adoption and Children Act 2002 to all applications for parental orders. This means that the child's welfare throughout its life is now the court's paramount consideration when considering whether or not to make a parental order. Though this refinement to the Act has undoubtedly given the court some flexibility in order to Gwynneth Knowles QC of Atlantic Chambers, Liverpool, overcome some of the problems thrown up in this complex provides a guide through the legal difficulties often area of law, it may not come to the rescue in every difficult created by international surrogacy arrangements. case.

Introduction Biological Connection: Section 54(1) Infertile and/or gay couples are increasingly looking A parental order may only be made with respect to a child abroad and taking advantage of developments in if that child is genetically connected to at least one of the reproductive medicine in order to create a family of their applicants. It is thus necessary for the court to have some own. New fertility techniques have led to what can only be evidence that this is indeed the case: a DNA test result described as a boom in gestational surrogacy. Gestational together with documentation from the fertility clinic surrogacy creates an embryo with an egg or sperm from the clarifying, for example, that either the sperm or the egg (or commissioning parents (or from a donor egg and/or sperm) both) belonging to one (or both) of the commissioning and this embryo is then transferred into the uterus of a couple was used to create the embryo. genetically unrelated surrogate. This form of surrogacy offers infertile or gay couples the chance to have a child to Status of the Applicants: Section 54(2), (4) and (5) whom at least one of them is biologically connected. Both applicants must be over the age of 18 when the order is made and be husband and wife or civil partners or two However a combination of the high costs of such surrogacy persons living as partners in an enduring family in the UK, the extremely limited number of willing relationship who are not within prohibited degrees of surrogates, and the legal restrictions on commercial relationship to each other. When both the application and surrogacy in the UK has helped to create a global market in the order are made, the child's home must be with the international surrogacy worth, on one recent estimate, applicants. about six billion dollars annually. Unlike international adoption, which is subject to strict regulation both in the In most cases these status provisions will be easy to satisfy United Kingdom and abroad, international surrogacy is and evidence. In the case of Re A and Another v P and Others entirely unregulated at an international level. Certain [2011] EWHC 1738 (Fam), Theis J made a parental order in countries such as India and the Ukraine promote a case where the commissioning father had died after the themselves as destinations for gestational surrogacy by parental order application was made but before the final providing good quality low cost medical care and by giving hearing of that application. Whether the court would be able legal protection to commissioning parents. to interpret these status provisions so positively in cases where the commissioning parents have separated or English law is not so accommodating and couples face divorced prior to a final hearing or before an application has formidable obstacles in being recognized as the legal been made remains to be seen. The effect of s.54(2) which parents of a child born abroad via gestational surrogacy. excludes an application by a single person would appear to This article will examine some of those obstacles with prevent one commissioning parent applying for or reference to the, as yet, limited case law on this issue and obtaining a parental order even if they were biologically will make some practical suggestions for those involved in connected to the child. this kind of litigation. All references to legislation are to the Human Fertilisation and Embryology Act 2008 (HFEA) Timescale: Section 54(3) unless otherwise stated. An application for a parental order must be made within 6 months of the child's birth. Hedley J in Re X and Y (Foreign Parenthood: English Law Surrogacy) [2008] EWHC 3030 Fam, [2009] 1 FLR 733 noted In cases of gestational surrogacy, the woman who gives that there is no power to extend the time limit and that this birth to a child is regarded in English law as the child's may cause problems where immigration issues have led to mother even if she is biologically unrelated to the child delay. In the case of Re K (Minors: Foreign Surrogacy) [2010] (s.33). If she is married, her husband is to be treated as the EWHC 1180 (Fam), [2011] 1 FLR 533 the application had child's father unless it can be shown that he did not consent been made even though the children had not been granted to the surrogacy arrangement. entry clearance to the UK. Hedley J was not satisfied that, in those circumstances, he had jurisdiction over the children However commissioning couples can apply under s.54 for a but did not dismiss the application there and then. It would parental order which extinguishes the presumed seem prudent in cases where there may be problems with

www.familylawweek.co.uk Family Law Week June 2012 - 24 the child's entry into the UK for couples to issue their were born. However agreement on the appropriate court application whether or not the child concerned is actually in form had to be obtained by the applicants and this was done the jurisdiction and then to invite the court to adjourn prior to the making of parental orders. Additionally pending a decision on entry by the UK Border Agency. estranged husbands of surrogates can create problems. In Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), Domicile: Section 54(4) [2008] 1 FLR 1047 the surrogate's estranged husband was Both at the time of the application and at the making of the the child's legal father as there was no evidence that he had order, either or both of the applicants must be domiciled in not consented to her treatment. His unwillingness to reply the UK or the Channel Islands or the Isle of Man. Domicile to any correspondence meant it was impossible to gain his was considered by Theis J in Z v C (Parental Order: Domicile) agreement to a parental order. McFarlane J commented [2011] EWHC 3181 (Fam) who described it as one of the that, where a prospective surrogate is a married woman mandatory requirements giving the court the jurisdiction to who has separated from her husband, all reasonable steps make a parental order. The commissioning parents were should be made before the surrogacy process begins to two Israeli nationals who moved to the UK in 2008 in what establish that the husband does not consent to the proposed was designed to be a permanent relocation. They had twins surrogacy arrangement. born in November 2010 who were conceived as a result of a gestational surrogacy arrangement in India. It appears that Thus, satisfying the agreement test requires: the applicants were wrongly advised by both the surrogacy agency in Israel and by the UK Border Agency that the a) agreement at the right time; children should make their application for entry to the UK b) agreement from those to whom English law gives from their country of nationality rather than from the parental responsibility; country of their birth. The applicants did as they were c) agreement to be in the form prescribed by the Family advised but the children were refused entry clearance to the Procedure Rules 2010 namely as in Form A101A (Practice UK. An appeal to the Immigration Tribunal was successful Direction 5A); and but the Secretary of State challenged this decision in the d) such agreement, if executed outside the UK, to be Upper Tribunal. His appeal was rejected and entry witnessed in accordance with the requirements of Rule clearance for one year was permitted to the twins but the 13:11(4) of the Family Procedure Rules 2010, for example by issue of whether the applicants fulfilled the domicile a notary public or by a British Consular official. requirement under the Act remained in doubt. Theis J ruled that, on detailed examination of the facts, one of the It is imperative that the commissioning parents have applicants was domiciled here from the time he arrived in reliable contact addresses for the surrogate and/or her 2008 and that the court thus had the jurisdiction to make the husband or that the surrogacy clinic abroad has these and parental order. can facilitate the obtaining of agreement in the correct form. Should such efforts fail, a detailed statement of facts setting This case highlights above all the need, before the child's out the history and the efforts made to obtain agreement birth, for commissioning couples to obtain good quality must be filed with the court (Family Procedure Rules 2010 immigration advice from a specialist solicitor. This is Rule 13.10(2)(b)). particularly important for couples who do not have UK nationality and who have been resident in the UK for a Payments: Section 54(8) comparatively short period of time prior to the child's birth. Unless authorized by the court, no money or other benefit In the case of Re G (Surrogacy: Foreign Domicile) [2007] (other than for reasonably incurred expenses) should have EWHC 2814 (Fam), [2008] 1 FLR 1047 the applicants were been given or received by either of the applicants for or in Turkish nationals who were not domiciled in the UK and consideration of (i) the making of the order, (ii) any whose child had been born via a surrogacy arrangement in consents/agreement required by s.54(6), (iii) the handing the UK. The court was unable to make a parental order as over of the child to the applicants, and (iv) the making of the domicile requirement had not been satisfied and instead arrangements with a view to the making of the order. The gave the applicants an order for parental responsibility court has the power to authorize payments in excess of under s.84 of the Adoption and Children Act 2002 so that reasonable expenses retrospectively. they could adopt the child in Turkey. This solution may not be available in every problematic case. The provisions of s.54(8) have preoccupied courts due to the tension between sanctioning payments for what is in effect Consent: Section 54(6) and (7) commercial surrogacy (something not permitted under The court must be satisfied that both the woman who English law) and the reality that, if this is not done, the child carried the child and, if she is married, her husband, have concerned will almost inevitably suffer as he may have no freely and with a full understanding of what is involved carer in the jurisdiction with parental responsibility for him. agreed unconditionally to the making of the order. Such The tension has eased with the importation of the s.1 agreement is ineffective if given by her less than six weeks welfare test from the Adoption and Children Act 2002 into after the child's birth. The court has the power to dispense the court's deliberation on both whether to make a parental with the agreement of the surrogate and/or her husband if order and on whether to authorize excess payment. those persons cannot be found or are incapable of giving Nevertheless Hedley J emphasized in Re L (A Minor) [2010] their agreement. EWHC 3146 (Fam), [2011] 1 FLR 1423 that the court should continue carefully to scrutinize applications for Significant problems in obtaining the necessary agreements retrospective authorization under s.54(8) in order to ensure can arise as agreements which are valid in India or in the that the applicants were not effectively buying a child Ukraine for example will almost certainly be invalid in this overseas. country. In Re X and Y (Children) [2011] EWHC 3147 (Fam) apparent agreements were signed in India after the children

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In reality, as Hedley J himself acknowledged in Re X and Y The Rules contain traps for the unwary such as the (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR requirement to serve the application on the surrogate and, if 733, it is difficult to imagine a set of circumstances in which, relevant, her husband (Rules 13.3 and 13.6). This means where the child's welfare demands it, the court would proper translation of these documents and an address to refuse to make a parental order no matter what sums were send them to – the requirements of service outside the paid to the surrogate or to the clinic. The case of Re X and Y jurisdiction in Rule 6 and Practice Direction 6B must also be (Children) [2011] EWHC 3147 (Fam) provides an example of carefully observed. the types of payment made in an Indian surrogacy case and also of the confusion which may arise when applicants have Reference has already been made to the form of to seek clarification months after the event from the agreement/consent and how that should be executed. surrogacy clinic about the sums of money actually spent. In Again translation and possibly court-approved amendment that case it was unclear what the surrogates actually of Form A101A may be required especially if retrospective received and what the monies paid to them actually covered. authorisation of payments is likely to be an issue.

Commissioning couples should be advised to obtain a Conclusions detailed breakdown from the clinic not only of its costs but Judges in the Family Division have sought to emphasise the also – since clinics usually handle this aspect as well – a legal difficulties that international surrogacy arrangements breakdown of precisely what monies are paid to the can create and the need for commissioning couples to take surrogate and what those monies are for. A statement from advice from those skilled in this area as to the problems that the surrogate confirming those monies have been received may arise and how they can be addressed. Wider public by her is also an important piece of the payments jigsaw. interest in and publicity about international surrogacy may go a little way towards highlighting the need for specialist Family Procedure Rules 2010: Part 13 advice but is more likely to encourage the increasing The requirements in the Rules are strict because of the number of couples travelling abroad for what some authors transformative effect of a parental order on the legal have accurately but heartlessly described as "reproductive relationship between the child and the applicants, very tourism". much akin to the making of an adoption order. Compliance is time-consuming and costly and relies above all on If this article has one message, it is for commissioning continuing contact with the surrogate and probably the couples to get specialist legal advice before travelling surrogacy clinic. This may be difficult to achieve in practice. abroad for treatment – negotiating the legal and What follows is a signpost to some obvious but often immigration pitfalls once the child is born is a receipe for overlooked issues. heartache, expense and delay.

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Using insolvency to discharge financial order settled as far as is possible with, usually, X amount of pence obligations: the blank canvas remains accepted in the pound for the debts. Section 279(1) of the 1986 Act sets out that the bankrupt will be discharged automatically one year after the commencement of the bankruptcy and section 281(1), subject to certain specific exceptions, sets out that the bankrupt will be released from the bankruptcy debts upon discharge. One of the exceptions is as above, sub-section 5, whereupon the bankrupt shall not be released from 'any order made In family proceedings' – 'except to such extent and on such conditions as the court may direct'.

This latter provision is not given any further definition in the statue and no specific guidance is given to the court as to how such discretion should be given effect. There is also, apart from using comparable principles (for example, arguing the burden is entirely upon the applicant to demonstrate that they should be released from an Byron James, Barrister, 14 Gray's Inn Square explores the, obligation, Re Schmacher (1907) 23 TLR 336), no specific as yet, unfettered and undefined discretion of the court to guidance in the case law; that is, until the recent case of discharge a party from obligations under orders made in Hayes v Hayes [2012] EWHC (Ch) Chancery Division family proceedings following bankruptcy, following the (23.03.12) (unreported presently) per Judge Pelling QC. recent Chancery Division case of Hayes v Hayes In Hayes, the parties were formerly husband and wife The world is going bankrupt, and in turn everyone in it; not whom had been through acrimonious divorce and financial morally, as a rule, but financially, literally, legally. remedy proceedings. A costs order had been made against the Husband, which remained unpaid. The wife sought to Bankruptcy is a form of ostracism, casting people out from bring about the bankruptcy of the husband by way of positions of responsibility and seizing the meagre remains petition, despite the fact that the 1986 Insolvency Rules did of their possessions. Of course, for the most part, it only not at the time, allow a petition to be brought on such seriously affects those with something significant to lose grounds. The petition was brought before rule 12.3 of the and those with something significant to lose rarely go Insolvency Rules 1986 was amended by rule 44 of the bankrupt; vultures arguing over who gets to suck the bones Insolvency (Amendment) Rules 2005 to read: dry for the longest. If, like a giant game of Monopoly, the whole world is going to go bankrupt, save for the Bank '[the following are not provable] any obligation (other which always finds new ways of taking money off you than an obligation to pay a lump sum or to pay costs) ('what? speeding?? another fine?? But I'm a top hat…!'), are arising under an order made in family or domestic we not going to have to find a new form of bankruptcy? A proceedings or any obligation arising' super-bankruptcy beyond the normal at present, perhaps some form of karmic retribution whereby the super- The purpose of the amendment to the provision being to bankrupt come back in a future life as Redknapp's make lump sum and costs orders made in family accountant or Lohan's personal assistant. proceedings provable debts in the bankruptcy, with the intention of providing another form of enforcement to the Family lawyers edge around the parameters of what is often former spouse. The husband did not oppose the petition perceived to be the complexities of the Insolvency Act 1986. and it was subsequently made; the change to the rules as There are some tricks and traps which everyone knows, above occurring shortly after the bankruptcy. The validity from Haines v Hill to Avis v Turner, but as insolvency of the petition was later challenged by the husband by way becomes more and more relevant to the concerns of private of an application to annul the petition; but this was clients, so too will more scope arise for argument dismissed because it was held to be unfair to annul the concerning, as yet, unexplored aspects of the 1986 Act. One bankruptcy where it would have been open to the wife to such provision is section 281(5) of the 1986 Act which present a new petition under the new legislative regime. confers discretion on the Court to release a discharged The husband therefore remained bankrupt and, a year later, bankrupt from a debt arising from a family order: was discharged from the bankruptcy. Thereafter, the Wife served (several) statutory demands on the husband Effect of discharge following his discharge for the amount due under the costs […] order and interest accrued thereon. (5)Discharge does not, except to such extent and on such conditions as the court may direct, release the bankrupt The Registrar at first instance was asked by the husband to from any bankruptcy debt which— be released from the family related debt upon the basis that […] section 281(5) of the 1986 Act gave the court the requisite (b) arises under any order made in family proceedings or discretion to do so. The Registrar considered there were under a maintenance calculation made under the Child several points of dispute in relation to the specific operation Support Act 1991 of 281(5) including the consequences of the release from the relevant debt, the significance of the time elapsed since the The effect of going bankrupt is to allow the assets held by debt was incurred and the significance of the husband's the bankrupt to be distributed amongst creditors by an impecuniosity. appointed Trustee in Bankruptcy. Negotiations will be had between the Trustee in Bankruptcy and creditors and debts

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When the matter later came before Judge Pelling QC on before one does succeed. Judge Pelling QC appeared to be appeal, he agreed with the Registrar's assertion regarding hinting to as much with reference to a 'future time' when the lack of authority concerning the court's discretion to the husband's lack of ability to pay, by earning capacity in order a release from a debt under section 281(5). As a result this case, could provide an appropriate basis for an of this lack of statutory guidance and lack of authority application. The specifics of when this future time would specifically on point, it was held that the court had an be and what precisely would need to be demonstrated by unfettered discretion to discharge debts under this the husband were not expanded upon, the blank canvas provision. Judge Pelling QC did however stress the 'default therefore remains. position' that family orders had to survive the discharge of a bankrupt and remain subject to an order of the court The recognition in the judgment of Judge Pelling QC of the requiring the discharge of the debt; bankruptcy procedure importance of maintaining obligations under family should not be used as a mechanism under which orders, the 'default position, will be reassuring to obligations conferred by family orders were avoided, there beneficiaries under such orders trying to reclaim monies is a distinction between family and commercial liabilities. owed to them. However, it will only be when the exact parameters are defined of how one breaks clear of the The consequence of discharging the debt, in accordance 'default position' when one will be really able to state how with the wishes of the husband, would make the debt preferentially family orders are to be treated in the forever unenforceable. It could not be redeemed even if the Chancery Division. The fact remains that any provision husband's circumstances changed dramatically, this even within a financial order will be balanced against others, a if his income and/or capital positions were to increase lump sum will usually be due in consideration for significantly. The total debar on future enforcement of the something else, a transfer of shares in a company or for an family order could therefore become disproportionately interest in a property; if one half of the transaction takes harsh as the beneficiary to the original order would place, without the other, and the other is then later set aside forevermore be prevented from taking advantage of such in the Chancery Division, does that not have the effect of a change in circumstances: a change in circumstances rendering the entire deal unfair? If a wife is to transfer argument would be put forward by the bankrupt party shares in the 'family ' limited company for a lump sum, and which would guillotine any future change in circumstance the lump sum is never paid and, later on, the obligation to argument. There must therefore be an extremely high pay is discharged under the 1986 Act, upon what basis threshold for the bankrupt to overcome in relation to his does the husband retain the shares in the company? ability to ever again be in receipt of sufficient funds; given Clearly, in such situations, one is dealing with a bankrupt that most bankrupts, at the point of discharge, will be very who has gone beyond pleading just impecuniosity to be poorly off, something exceptionally must be required released from the obligation, someone unlikely to be beyond the impecuniosity expected of a bankrupt. holding onto anything of real value, but the fact remains Therefore, in the present case, it was held as wrong to hold that this provision gives the Chancery Division the power the question of the (limited) extent of the husband's present to effectively render a financial order unfair many years earning capacity as a 'springboard' to discharging the debt. afterwards. To what extent will this be part of the Chancery Judge Pelling QC did not however rule out there being Division's consideration when the time comes? 'some future time' when a lack of ability to pay, for example by way of earning capacity, could lead to This little known provision is something worth keeping in discharge. the legal back pocket; it is certainly something which one should advise clients of the existence of and, in case of a The Registrar's decision to hold it not being appropriate to client who is going/has been bankrupt and who is still discharge the debt was therefore upheld. being pursued for such a debt, something worth exploring: do they have the potential to break clear of the default A reported case in which a debt has been discharged under position of maintaining obligations under family orders? this provision of the 1986 Act remains, presently, at large, There is a blank canvas, let's get creative… although it is fair to assume it is only a matter of time

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Children: Private Law Update (May 2012) The father's appeal was essentially directed to the judgment and the conclusions drawn as to the future relationship rather than to the resulting order. The father sought to attack the contact order on the basis that it did not provide for staying contact.

In allowing the appeal the Court of Appeal held that:

Ÿ The trial judge was wrong to apply a 'general rule' to all disputes between two female parents and the identified male parent. Ÿ The judge was wrong to rely on non-specific research and existing 'alternative family' authorities as binding. Ÿ All cases were fact specific with the only principle being the 'paramountcy' one. Ÿ The refusal to contemplate staying contact for 3-4 years was plainly wrong. Alex Verdan QC of 4 Paper Buildings considers several Ÿ Consideration should be given to the role that each adult recent important judgments covering a range of private can play in the child's life and whether orders are law issues concerning children available that may assist in addressing particular difficulties. In T v T (Joint Residence) [2010] EWCA Civ In this review I will focus on recent material covering the 1366 a shared residence order was made in order to try following topics: to alleviate anxiety about arrangements should the biological mother die. By addressing such anxieties it Ÿ Same sex parents may be possible to create a climate which in time will Ÿ Relocation accommodate more generous contact. Ÿ Declaration of parentage Ÿ Section 91(14) Children Act 1989 The matter was remitted to a Family Division judge for Ÿ Permission to Appeal consideration of all factors relevant to the welfare balance. Ÿ Domestic violence and contact. The court is to further 'assess the immediate future in the light of the immediate past'. Same Sex Parents A v B and C [2012] EWCA Civ 285 The Court of Appeal specifically declined to give any In this case the appellant was the biological father of the distinct guidance which distinguishes these types of cases child, a 2 year old boy. The respondents were the biological beyond the universal and overriding principle of mother and long term lesbian partner. The parties were all paramountcy and welfare but provided the following key gay. The respondents decided they wanted a child and the observations: appellant offered to father the child by artificial insemination. The mother was from a religious family, and Ÿ the role of the father in a child's life will depend on what decided to marry the appellant in order to create a is in the child's best interests at each stage of the child's conventional family. However, it was always intended that childhood and adolescence; the child should live in the mother's household with her Ÿ as with any other child, the father/child relationship (in partner, and that they would be the primary carers with the alternative family cases) may turn out to be close and father taking on a secondary role. fulfilling for both sides, or it may be no more than nominal, or it may be something in between; The parties' relationship broke down when the father Ÿ whilst it is generally accepted that a child gains by having sought overnight staying contact and holidays. The two parents, it does not follow from that that the addition respondents did not agree, stating that it was not what they of a third is necessarily disadvantageous; had agreed originally and would be an intrusion on the Ÿ such cases were difficult and the court would benefit family unit. The father made a contact application. The from a bespoke expert's report; respondents made an application for a residence order and Ÿ consideration should be given to joining the child as a specific issue order to limit the father's exercise of his party to the proceedings to ensure that adult concerns parental responsibility. and considerations did not dominate the debate which should centre on welfare; The court refused to direct the instruction of independent Ÿ the court should be cautious before attaching great expert evidence from Cafcass or a psychiatrist and allowed weight to the adults' plans and agreements for a child both parties to use research papers. made before the child was born; Ÿ the concept of 'principal' and 'secondary' parent put After a four day hearing including oral evidence from the forward by Hedley J in ML and AR v RWB and SWB (sub three parties, the Circuit Judge, sitting as a judge of the High nom P and L (Minors)) [2011] EWHC 3431 (Fam), (2012) Court, decided that father's visiting contact be moderately Fam Law 13 was specifically not endorsed as it has the increased. However, it was made clear that the father's role danger of demeaning the father who was significant in in the child's life should be secondary, and the father was the child's life even though in care terms he may have a not to have any staying contact for the foreseeable future, secondary role; meaning at least 3 to 4 years. Ÿ the primary purpose of contact was to promote the welfare of the child and its level should be decided accordingly and not by reference to reflect the role that

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has been agreed by the parties or discerned from their In this case the biological father sought to have a declaration conduct, as suggested by Hedley J in ML and AR v RWB of parentage in respect of twins. The mother and the and SWB [2011] EWHC 3431; 'psychological' father opposed. HHJ Meston QC made the Ÿ the label 'sperm donor' was not appropriate in cases declaration of parentage but ordered that it 'would not take where the father was known, as opposed to anonymous, effect and that the Registrar General would be notified only as it was capable of conveying the impression that the when the children themselves know the truth.' father was giving his child away and that was misleading. The father appealed on the basis that the order conflated with the question of public record registration with welfare For a more detailed an analysis of this case and lessons that issues. The judge had sought to reduce the risk of the can be learnt for practitioners please see Alternative children accidentally discovering the truth of their Families and Children: A review of the recent case of A v B parentage. This was in direct conflict with the statutory and C by Alex Verdan QC and Charles Hale. provision at section 55A(7) FLA and r. 8.22 FPR 2010.

Relocation The mother argued that the judge below had exercised his Z (A Child) [2002] EWHC 139 (Fam) discretion appropriately having regard to the overriding This case concerned an application by the mother for a objective, and r. 4.1(3) of the then FPR 1991 (as they then residence order in respect of the parties' daughter (Z) and were) that the court has power to extend or shorten the time for permission to relocate from England to Australia. for compliance with any rule, which liberated the judge from the restriction of statute that the Registrar General be The Belgian father did not consider that the courts of notified of the declaration by the court within 21 days. England and Wales had jurisdiction after a holiday to Furthermore, his decision was in the interests of the children Belgium when the father failed to return (Z) to England. and it was within his generous ambit to make such decision. However, it was declared that the courts of England and In allowing the appeal Thorpe LJ in considering the judge's Wales were first seised and the father did not seek to appeal decision making said 'four months in 2010 was perhaps this declaration. towards the margin of the exercise of the discretion, but four years a year later is in my view plainly wrong.' There were The mother wanted to go to Australia because her family no public policy reasons for not making the declaration. lived there, she had job offers and secured a school place for Z, and was feeling increasingly isolated in this country. She In dealing with judge's interpretation of the rules, Thorpe LJ offered regular skype contact twice per week for up to two said: hours and direct contact under supervision in Australia and England. 'Any discretion that may arise from the Rules must be exercised with an eye to the statutory context in which The father opposed the application on the basis that he recourse is being had to the powers conferred under the would not see enough of Z if at all, and sought a return to Rules. Here that statutory context is Part 3 of the Family Belgium. The father was not present for the hearing as he Law Act 1986. I do not see how it could be said to be was fearful of activating a passport order. He made an consistent with that statutory context to defer application for an adjournment so he could attend by video notification to the Registrar General for a period such as link, and for the judge to recuse herself on the basis of the judge permitted here. I would prefer in those perceived bias and the father's impression that the court did circumstances not to express a view as to the extent, if at not want 'personal contact' to occur. Pauffley J refused the all, to which the general powers of the Family Procedure father's applications. Rules can be used to extend the time prescribed by Rule 8.22(2) of the Family Procedure Rules for the purposes of The judge in considering Z's welfare needs had regard to the Section 55A(5).' [27] events surrounding Z's unlawful retention by the father in Belgium which involved highly stressful circumstances H (A Child) [2012] EWCA Civ 281 with the police securing a return, and decided that her This case concerned a child (C) aged 3 years. The biological needs would be best met by a residence order to the mother. father, Mr W, made applications for parental responsibility The judge further considered the guidance in Payne [2001] and contact orders which were opposed by the mother and EWCA Civ 166 and K v K [2011] EWCA Civ 793. She found her husband (Mr and Mrs H). Mr H was unable to have the mother's motivation to be genuine, her proposals were children and it was proposed that Mr W be the couple's realistic and were not driven by a desire to defeat the sperm donor. However, Mr W and Mrs H went on to form father's relationship with Z. It was of further importance a relationship and C was conceived naturally. that should the mother's application be refused the mother would be 'utterly shattered' and there would be a potential Over the course of a three day hearing, having heard oral for deterioration in the mother's mental well-being. evidence, the district judge found that contact between C and Mr W would be incompatible with maintaining stability Declaration of parentage for C within the family unit with Mr and Mrs H and would F (Children) [2011] EWCA Civ 1765 inevitably cause upset. Accordingly, Mr W's applications This appeal concerned whether the court could defer the were dismissed and a declaration of paternity under s 55A registration of a declaration of parentage pursuant to Family Law Act 1996 made instead. section 55A(7) Family Law Act 1986, notwithstanding r.8.22(2) Family Procedure Rules 2010 which requires that Mr W appealed the decision and the circuit judge, also the Registrar General must be notified of the declaration by hearing evidence, found that the district judge's decision an officer of the court within 21 days. making process had been plainly wrong and set aside the

www.familylawweek.co.uk Family Law Week June 2012 - 30 orders. The circuit judge made orders for direct contact with In allowing the appeal, Thorpe LJ concluded that the judge, Mr W and that C be joined as a party to proceedings. when considering the child's welfare, should have given the father an opportunity to come to his senses and to adjourn Mrs W appealed. In considering the appeal, McFarlane LJ the matter for 24 hours. The judge was plainly wrong to found that the district judge had failed to carry out a proper proceed to dismiss the father's applications. 'The proper welfare investigation, placing too much weight upon the course was to draw him back into the proceedings and not potential for instability in the family should contact be put a barrier on his further engagement with the system.' ordered. McFarlane LJ further considered that the circuit judge had been correct to allow the appeal against the Thorpe LJ made clear that there is 'abundant authority to decision below but had fallen into the same trap as the say that the court must be cautious in making these district judge by ordering contact without going through a prohibitions. They should be properly advanced by full welfare evaluation process. application supported by evidence, and the person who is sought to be prohibited must be given every opportunity to McFarlane LJ, in allowing the appeal and remitting the respond to the application.' [9] matter to be heard by a high court judge, said the following: The section 91(14) order was set aside. It was further 'The starting point for these courts is that children will proposed that the father give an undertaking to issue an normally benefit from having a full and meaningful application for contact, the treating psychologist files a relationship with both of their parents as they grow up. supplementary report, a new guardian prepare a report and …….Whilst the original reasons that Mrs H and Mr W the matter be listed for directions in the father's application. first talked about the conception of a child was through artificial insemination, the child was born as a result of a Application for permission to appeal full relationship and there was a need for the Judge AV v RM [2012] EWHC 1173 (Fam) below to have approached Mr W's and C's relationship This case concerned the parties' cross applications for by giving that priority and then balancing it against residence and contact. The district judge made a shared other issues in the case.' [18] residence order. The mother applied for permission to appeal arguing the district judge was plainly wrong, that Section 91(14) Children Act 1989 there had been bias as the district judge had visited the Re M (A Child) [2012] EWCA Civ 446 mother's home during the hearing. This was an appeal from the making of a section 91(14) order. Moor J sought to clarify the law in relation to applications This case concerned the father's applications for contact and for permission to appeal. parental responsibility orders in respect of M, an eight year old. During the course of the hearing the father 'lost his Appeals are governed by the Family Proceedings Rules self-control and, as the judge put it in the note of the 2010, pursuant to rule 30.3(7): judgment we have, ranted at the injustice of the system and at the performance of the guardian.' The father then applied (7) Permission to appeal should only be given where – to withdraw his applications. The judge refused and the father left the court. (a) the court considers that the appeal would have a real prospect of success; or In giving judgment that judge concluded by saying: (b) there is some other compelling reason why the appeal should be heard. 'The father does not seek indirect contact or put forward proposals for supervised contact. I had not made up my The judge's attention was drawn to the decision of Mostyn J mind about contact or about parental responsibility in NLW v ARC [2012] EWHC 55 in which he said: prior to him leaving court, and I am not inclined to make an order. 'I would suggest that the concept of a real prospect of success must mean, generally speaking, that it is 'The preamble can record what has happened and incumbent on an appellant to demonstrate that it is more provide for indirect contact. The Mother has parental likely than not that the appeal will be allowed at the responsibility and as a basic human right the father has substantive hearing. Anything less than a fifty-fifty the right to receive some information about [M]. The threshold would of course, by linguistic definition, ball is in mother's court as to how much information he mean that it is improbable that the appeal will be does receive. I have not granted parental responsibility. allowed and in such circumstances it would be hard to say that any appeal had a real prospect of success; 'Mother has suffered within the proceedings. The view rather, it could only be said as a matter of logic that it of the expert and the children's guardian is that there had a real prospect of failure.' [8] should be no further proceedings for a period of 2 years. I am satisfied that the welfare of the child and the Moor J made clear that judicial gloss such as this must not mother requires this. The order is proportionate and be placed on the words of statute or the rules. The dictum of justified and it is acknowledged that it is a draconian Brooke LJ in the Court of Appeal decision of Tanfern Limited order. I make this section 91(14) for 2 years to expire on v Cameron MacDonald [2000] 1 WLR 1311 was the correct 28.02.2013. By this time [M] will be 10½ years old. Any approach to adopt to permission applications: application for leave is to be served on the Court and the Court is to give notice to mother.' 'Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason

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why the appeal should be heard (CPR 52.3(6)). Lord (a) the effect of the domestic violence which has been Woolf MR has explained that the use of the word of 'real' established on the child and on the parent with whom the means that the prospect of success must be realistic child is living; rather than fanciful [see Swain v Hillman The Times, 4th November 1999; Court of Appeal (Civil Division) (b) the extent to which the parent seeking residence or Transcript No. 1732 of 1999].' [21] contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a The test for permission to appeal is exactly the same in the process of violence, intimidation or harassment against the Court of Appeal and no gloss should be placed on the words other parent; of the Family Procedure Rules; ie 'real' means that the prospect of success must be realistic rather than fanciful. (c) the likely behaviour during contact of the parent seeking contact and its effect on the child; Domestic violence and contact Re W (Children) [2012] EWCA Civ 528 (d) the capacity of the parent seeking residence or contact to This case concerned the father's application for a variation appreciate the effect of past violence and the potential for of an interim contact order for unsupervised contact. The future violence on the other parent and the child; mother opposed this, relying upon a history of domestic violence. Following a fact finding judgment where HHJ (e) the attitude of the parent seeking residence or contact to Yelton had made a number of findings of domestic violence, past violent conduct by that parent; and in particular the mother applied for a psychological assessment of the whether that parent has the capacity to change and to father and a section 7 report before the court considered behave appropriately. varying contact. The judge refused the mother's application and ordered that the father could have unsupervised Although the Court of Appeal found that a judge is not contact outside the contact centre. required slavishly to recite the authorities and practice directions, it emphasised that the court must bear them in The mother appealed, arguing that in refusing the mind and apply them correctly when reaching a decision. application: The factors at PD 12J should be considered in every case where a finding of domestic violence is made. (i) the judge did not have the necessary evidence before him to determine what was in the children's best interests; Black LJ found that the judge's approach had not been (ii) the judge erred in not giving the mother an opportunity sufficient and he had not properly considered the factors at to explain the effect of the father's conduct on her and the PD 12J as a result of the following: children; and (iii) the judge's approach was not in accordance with Ÿ The case was a two-stage hearing in which findings of Practice Direction 12 J Family Procedure Rules ('residence fact would first be made and then contact considered in and contact orders: Domestic Violence and Harm'), and the light of the findings made. Re L (Contact: Domestic Violence) [2000] 2 FLR 334. The Ÿ The impact of events and how they affected the mother mother further referred the court to Re Z (Unsupervised and children was to be examined in light of the findings Contact: Allegations of Domestic Violence) [2009] EWCA Civ made it was not the focus of the fact finding hearing. 430. In that case the Court of Appeal stressed that the Ÿ Both parents would need the opportunity to give further practice direction must be followed in cases involving evidence in light of the findings before a decision was allegations of domestic violence; made about contact. (iv) The judge had not weighed the seriousness of the Ÿ The judge failed to consider whether to order a Cafcass domestic violence and the risks involved and the impact on report as specified under paragraph 16 of Practice the child against the positive factors of contact. Direction 12J. Ÿ The judge was not equipped to make a decision on Specifically the judge had not considered the five factors at contact as this juncture without extra professional paragraph 17 of Practice Direction 12J: expertise.

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to appeal , arguing that the order was plainly wrong, that CASES there had been an impression of bias created by the District Judge visiting the mother's home during the hearing and A County Council v M and F [2011] EWHC that the order was contrary to the recommendation of 1804 (Fam) Cafcass. The application for permission to appeal was transferred from the County Court to the High Court. S was found unresponsive by his mother. Medical attention was quickly summoned and S received intensive treatment. Moor J considered the circumstances in which the Court This was unsuccessful and he was pronounced dead almost should allow permission to appeal. He referred Family 30 minutes after arriving at hospital. The autopsy showed Procedure Rules 2010 r30(7), which provides that 23 separate injuries on his body. The injuries were not the "Permission to appeal should only be given where –"(a) the cause of death which remained medically unexplained. court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why The injuries included a torn frenulum, bruises to the ears, the appeal should be heard." bruises on the palms and backs of the hands. The injuries to the ears and hands were highly unusual and outwith the He commented with disapproval on the decision in NLW v experience of experts in the case. The histological experts ARC [2012] EWHC 55 where Mostyn J had held at agreed that the injuries were caused prior to death: the paragraph 8 that an application for permission to appeal injuries to the palms and frenulum 4-12 hours before death, should only be allowed where the appeal is more likely than and those to the ears and knuckles about 3 days before death. not to succeed at the substantive hearing. Moor J held that, instead, the appropriate test was that set out by the Court of Mostyn J found that (some) injuries were inflicted by the Appeal in Tanfern Limited v Cameron MacDonald i.e. that father recklessly taking the child in a 'bike-buggy'. He "the prospect of success must be realistic rather than thought it 'extremely improbable' that either parent fanciful" (per Brooke LJ at paragraph 21) and that no further deliberately harmed the child. There was no explanation for 'gloss' should be placed on it than that. the other injuries. Mostyn J was prepared on the balance of probabilities to find that the parents had not deliberately Moor J also declared a need for a Practice Direction as to abused, neglected or murdered S. He felt unable to go any how the High Court should deal procedurally with an further and give findings on the cause of the injuries. In application for permission to appeal, noting that at the coming to this conclusion Mostyn J considered the case law moment the system is not uniform. on burden and standard of proof. In particular Summary by Thomas Dudley, barrister, 1 Garden Court - That it was for the local authority to prove that the injuries Family Law Chambers were non-accidental. The parents did not have to prove that there was a natural cause for the injuries. E (A Child) [2012] EWCA Civ 537 - Following Popi M [1985] 1 WLR 948, in rare cases the burden of proof may come to the judge's rescue: he is not This was an appeal by the mother of LM against a decision bound to make a finding on the parties' accounts but can say that LM should be adopted. The appellant had had three that the party with the burden of proof has failed to older children, all of whom had been adopted. However, discharge it. earlier in the proceedings the prospects of LM being cared for long-term by his mother had been good. This was - It was not correct to take a 'Sherlock Holmes' approach largely due to her new relationship with a new partner, T, ('whenever you have eliminated the impossible, whatever who was able to provide her with considerable assistance remains, however, improbable, must be the truth'). and input.

Per Curiam: However, the partner had two children of his own, C and L, (1) There is a need for further medio-legal consideration on from a previous relationship. They were the subject of a the reliance on histological evidence in such cases. Very joint residence order to both of their parents. Her Honour little research exists on babies. Judge Swindells had been involved in both the case of LM and the case of C and L. (2) Mostyn J was 'surprised' by the Guardian's neutral and objective stance to the findings. He expected her role at least In November 2011, T, concerned by the care that C and L to be akin to counsel to a Statutory Inquiry: assisting the were receiving from his former partner, did not return them court in exploring the scientific evidence and suggesting to her care after contact but placed them in the care of his what findings could properly be made. mother, their paternal grandmother. This came to the attention of HHJ Swindells on 1 December 2011 at a Summary by Ayeesha Bhutta, barrister, Field Court directions hearing in LM's case. Although there was no Chambers criticism of T for deciding not to return the girls to their mother, the judge expressed anxiety about their placement with his mother instead of with him, it having been AV v RM [2012] EWHC 1173 (Fam) previously agreed that if their mother could not care for them, T would assume responsibility for their care. In private law proceedings concerning residence and contact, the District Judge at first instance had ordered that The judge adjourned the hearing in LM's case to the the children primarily reside with their father under a following day when there was also a directions hearing in shared residence order. The mother applied for permission the case relating to C and L. On this occasion, the parties

www.familylawweek.co.uk Family Law Week June 2012 - 33 agreed that the girls should remain with their paternal on the basis that Mr Rankine was a sole trader, they showed grandmother pending a s.37 report but HHJ Swindells no evidence of sharing of profits, there was no evidence of refused to support such a plan. She put what was described Mrs Geary being held out as a partner to the outside world, by the appellant mother in this case as 'extreme and there was no joint bank account and the business had unjustifiable pressure' on T to assume primary care for his carried on for a period of many months when the parties daughters which he subsequently agreed to do. had separated. Additionally, even on Mrs Geary's evidence, Mr Rankine had been controlling and angry when she had This led to the appellant in this appeal moving out of her asked him for money and he had kept the business in her home to allow T to care for C and L. sole name to protect her from potential bankruptcy should the business fail, both of which factors Lewison LJ took to The issue in this appeal was the complaint that HHJ contradict the notion that she became a partner. Swindells should have looked at the future of all three children together in the round, that in failing to do so she Lewison LJ held that perhaps in an extreme case conduct erroneously took the decision with the inevitable could override express intention, but he did not find the consequence that LM would not be able to grow up in his conduct in this case to override the parties' express mother's care. The appellant argued that this could only be intention. In any event, he further held that the freehold achieved by consolidation as this was the only way for the property was not necessarily property of the partnership. expert in the case to have access to the vital information in the private law proceedings for the purposes of the Lewison LJ then addressed Mrs Geary's TOLATA claim, i.e. assessment in the public law proceedings. The judge was that she held a beneficial interest in the property under a also criticised for the 'pressure' that she put on T. constructive trust, created by the parties' common intention. Mrs Geary accepted that at the time of the purchase of the The Court of Appeal refused the appeal. Counsel for the guest house there was no common intention that she should appellant at first instance had urged the judge against have a share, however she claimed that the parties' common consolidation of the two matters and the judge had ensured intention had changed, so as to give her an interest in the that she heard both cases on the same day. It was therefore property. 'impossible' to criticise her case management decision. Lewison LJ observed that the burden which fell on Mrs As for the criticism that the judge had applied improper Geary, of establishing a "common intention constructive pressure on T, there had been no such criticism from T in the trust" was more difficult to discharge where the property private law proceedings; indeed, he had expressed was an investment rather than a home. He reviewed the gratitude to the judge for showing him where his priorities relevant paragraphs of the Supreme Court decision in Jones should lie. Her experience of the T case gave her legitimate v Kernott [2011] UKSC 53, quoting in particular paragraphs grounds for querying the arrangements that T had made. It 51 and 52. He observed that the search is to ascertain the was important to note that nobody had sought to appeal in parties' actual shared intentions, whether express or to be the T case. The appeal therefore failed on all grounds. inferred from their conduct. To this rule two exceptions exist: (1) where there is a presumption of resulting trust, Summary by Sally Gore, barrister, 14 Gray's Inn Square which may arise where the partners are business partners as well as domestic partners and (2) where it is clear that the beneficial interests are to be shared but it is impossible to Geary v Rankine [2012] EWCA Civ 555 divine a common intention as to the proportions in which they are to be shared, in which case "each is entitled to that Mr Rankine and Mrs Geary entered into a relationship in share which the court considers fair having regard to the 1990. They had one child, born in 1992. In 1996 Mr Rankine whole course of dealing between them in relation to the purchased a guesthouse ("Castle View") with £61,000, property" (Oxley v Hiscock [2005] Fam 211 para 69). without mortgage, entirely with his own funds. It was originally intended that it would be run by a manager rather Lewison LJ held the presumption of resulting trust would than either of the parties, but in due course Mr Rankine work against Mrs Geary since Mr Rankine had put up all the managed the business himself and Mrs Geary also became money for the business. involved in the business. The parties separated in 2009. Mrs Geary claimed (1) that she had acquired a beneficial interest In this case, as the property was registered in Mr Rankine's in the Castle View property and (2) that she and Mr Rankine sole name, there was a two stage test: firstly the claimant has had been partners in the guest house business. At first to demonstrate that she should have any interest in the instance the Circuit Judge had rejected both claims. property at all and if she succeeded in that, the level of that interest then fell to be determined. Lewison LJ stressed that Mrs Geary appealed to the Court of Appeal. Lewison LJ a common intention had to be common to both parties, so gave the main judgment in the Court of Appeal, with which Mrs Rankine had to demonstrate that Mr Rankine had Etherton and Thorpe LLJ agreed. intended that she had a beneficial interest in the property, either expressly or from his conduct. Lewison LJ rejected On the partnership claim, Lewison LJ accepted submissions Mrs Rankine's challenge to the Circuit Judge's finding that made on behalf of Mrs Geary that a family or quasi-family Mr Rankine had not changed his intention so as to intend relationship was not incompatible with the relationship of that she should have an interest. Mrs Geary's own evidence business partners and that a partnership can be founded on had been that Mr Rankine refused to "recognise her" until an agreement inferred from conduct. However he held that she divorced her previous husband (which she only did in the Circuit Judge had been correct to find that Mrs Geary 2002) and she had accepted that when she asked Mr had not become a partner. In support of this conclusion he Rankine what security there would be for her, he was either referred to the fact that the business accounts were drawn non committal or had said the business should remain in his

www.familylawweek.co.uk Family Law Week June 2012 - 34 sole name. Mrs Geary's case, in Lewison LJ's view, had CKFT not entitled to its further fees, but it had to repay the amounted to saying that there was a common intention that money paid by the client on account to that point. the business be run together, but it was an "impermissibly leap" (paragraph 22) to go from that to a common intention That decision was upheld on appeal to Cranston J. that the property in which the business was run would belong to both parties. Messrs CKFT appealed to the Court of Appeal.

Appeal dismissed. Ward LJ gave the lead judgment of the Court of Appeal. He held that the solicitor had suspended (and not terminated) Summary by Thomas Dudley, barrister, 1 Garden Court the retainer by email of 20th August 2009, in which he had Family Law Chambers said that he would neither issue possession proceedings, nor obtain a counsel's opinion until he had money on account. Ward LJ took the view that Cranston J had been Cawdery Kaye Fireman & Taylor v Minkin wrong to hold that this amounted to termination of the [2012] EWCA Civ 546 retainer, since the solicitor had in Ward LJ's judgment shown a willingness to recommence work when there was Cawdrey Kaye Fireman & Taylor ("CKFT Solicitors") had money on account. represented the Claimant in proceedings brought by his wife for non-molestation and occupation orders. At the Ward LJ then had to decide whether the firm was entitled to outset CKFT had sent their retainer letter and terms of suspend its retainer as it did on 20th August, in accordance business, dated mid July 2009, and it had been headed "Non with its terms of business. In order for the retainer to be Molestation and Occupation Order", but there was no other suspended on the grounds of non-payment of an overdue indication of what it was undertaking to do. They gave the account, the non-payment had to be "without reasonable client an estimate of the costs of £3,000, but had stated that justification". Ward LJ held (contrary to the views of the was not a definitive estimate as the total costs were not costs judge and Cranston J) that the non payment was possible to predict as the litigation may become more indeed without reasonable justification. Firstly, the client's complex than originally envisaged. complaint that the bill exceeded the estimate could not stand in the face of the fact that the terms of business, The occupation order proceedings indeed became more accepted by the client, made it clear that an estimate could complex than had been envisaged, largely due to the wife be varied from time to time and was a guide only. An letting out the former matrimonial home to tenants and Mr unexpected complication in the litigation did not entitle the Minkin indicating that he wanted to seek possession of the client to refuse to pay a bill which was payable on property. presentation. Secondly, he had been informed of his right to challenge a bill (by court assessment) and he did not CKFT presented a bill for payment on 30th July 2009, which exercise his right to do so. Further, he could not reasonably was £1,445 in excess of the original estimate. In a reply to the expect the firm to wait for payment until they had a costs client's query as to why the bill was at the level it was, they order against the wife. explained that it had been caused largely by an increase in work due to the tenants moving into the FMH. CKFT stated The retainer having justifiably suspended by the solicitors that that the firm needed to be paid as matters proceeded. on 20th August, Ward LJ then considered how it was The client expressed concern at the lack of progress with the terminated. He held that the retainer was terminated by the possession proceedings against the tenants, but CKFT client when on 1st September he had sent an email maintained that if he wanted the firm to continue acting for expressing a lack of confidence in the firm and, crucially, him then he would need to make arrangements to meet the containing the words "I would have liked to continue to interim fees. work with you…" [emphasis added]. That was analogous, in Ward LJ's view, to Lord Sugar telling an apprentice The client maintained his unhappiness with the firm's lack "You're fired". of action and that he had made it clear that he did not have much money from the start. After following the firm's Stanley Burton and Elias LLJ agreed. Elias LJ commented complaints procedure he provided no further instructions that Mr Minkin was justified in raising a concern about the and then applied for a detailed assessment of the two bills bill, but once a cogent explanation for it exceeding the under section 70 of the Solicitors Act 1974. estimate had been given, he was not justified in continuing not to pay, especially as he could have, and did not, At first instance the Master had decided that although the challenge the fees. Elias LJ held that if the appeal were not solicitors were contractually entitled to render interim allowed it "…would compel a solicitor to carry on working accounts payable immediately and that they were entitled for a client even though there may be very little prospect of to suspend work if the Respondent delayed payment payment." without reasonable justification, the client in this case had reasonable justification under the terms of business for Appeal allowed. delaying payment in that the first bill exceeded the estimate. Summary by Thomas Dudley, barrister, 1 Garden Court The matrimonial proceedings had not concluded and that Family Law Chambers was what the estimate was intended to cover. The client had also complained promptly about the first bill. The Master held that this meant the firm had no right to suspend work and therefore in doing so had wrongfully terminated their retainer in a repudiatory breach of contract. Not only was

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W (Children) [2012] EWCA Civ 528 attitude to his past violent conduct and capacity to change and behave appropriately." On 3rd August 2011 at the conclusion of a fact-finding hearing, HHJ Yelton had made a number of findings of fact Black LJ held that the judge was not required "slavishly to of domestic violence by the father, including physical recite authorities and principles in his judgment" but it did violence and harassment over a considerable period of time. have to be "clear from the judgment that he has had them in Following that judgment he refused the mother's mind and has applied them correctly…" (paragraph 17). In application for a psychological assessment and a section 7 this case she held that notwithstanding that the Circuit report from Cafcass. He adjourned until 5th August 2011, on Judge had referred to a number of relevant considerations which occasion he heard submissions as to interim contact (i.e. that his findings were serious, that there was a need for (which at the time was restricted to a contact centre for 2 caution until the father had proven her could behave hours, twice per month) and loosened the restrictions on himself and that the mother needed reassurance of the interim contact to enable the father to take the children same) overall his approach had not been sufficient. She held outside of the centre and listed a review hearing on 6th that the effect on the mother of the violence was "something December 2011. The mother appealed. which needed to be examined again in the light of the findings" (paragraph 18) since it had not been the focus of On appeal it was argued on behalf of the mother that in the fact-finding hearing, which was simply to establish past refusing a welfare report and/or psychological assessment events. The father also needed a chance to respond to the the judge deprived himself of evidence which was findings and give evidence as to how his future attitude necessary in determining the children's best interests, that would be different, so "[t]he parents both therefore needed the Judge had not given the mother a fair opportunity of the opportunity to give further evidence before decisions explaining the effect of the father's conduct on her and the were made about contact" (paragraph 18). Furthermore, the children, that the Judge had not conducted a proper Judge had been obliged by Practice Direction 12, paragraph balancing exercise between positive factors and the negative 16, to order a Cafcass report "unless it is not necessary to do implications of the father's conduct and that the Judge had so in order to safeguard the child's interests". The Judge's not correctly applied Practice Direction 12J to the 2010 failure to order a Cafcass report might not have been fatal Family Procedure Rules ('Residence and Contact Orders: had he taken an alternative route to furnish himself with the Domestic Violence and Harm'). relevant information he could have obtained from such a report, which in this case could – possibly even more Black LJ gave the lead judgment of the Court of Appeal., effectively – have been done by a psychological assessment. with which Sir John Chadwick and Thorpe LJ agreed. She Black LJ commented that the father's "problem behaviour" referred to the well known authority of Re L (Contact: had been longstanding and concluded that the reason for it Domestic Violence) [2000], in which the Court of Appeal may have been more complex than the Judge had thought. said that the seriousness of the domestic violence, the risks involved and the impact on the child had to be weighed The appeal was therefore allowed. Black LJ indicated that against positive factors, if any, of contact and that the ability the instruction of a psychologist to assess "the entirety of the of the ability of the offending parent to recognise his past case" was appropriate (paragraph 20) and (subject to further conduct, to be aware of the need to change and to make submissions) possibly a Cafcass report as well. genuine efforts to do so would be likely to be an important consideration in the balancing exercise. She also noted that Summary by Thomas Dudley, barrister, 1 Garden Court in the case of Re Z (Unsupervised Contact: Allegations of Family Law Chambers Domestic Violence) [2009] EWCA Civ 430 in which Wall LJ made clear that the practice direction does represent good practice and judges are not entitled "to take shortcuts which Yates v Yates [2012] EWCA Civ 532 either run the risk of compromising the welfare of children or which fail to follow accepted practice". She quoted By the first financial remedy order the wife's financial directly from Practice Direction 12J, paragraphs 26 and 27, claims were disposed of except for periodical payments which set out the matter which should be considered in expressed to run for three years with no s.28(1)(a) bar. every case. She held at paragraph 15 that: The wife received a lump sum of £978,000 designed partly "Harm which the child has suffered as a consequence of to enable her to discharge the mortgage in the sum of violence that has been established and harm that the £451,000 on the matrimonial home. Instead, she child is at risk of suffering in the future must be remortgaged in the sum of c£100,000 and invested the considered, and the court must only make an order for advance in the purchase of a non-income bearing bond. contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom The wife applied to extend the term seeking a capitalised the child is living can, as far as possible, be secured sum of £1.3m. The husband argued that it was meant to be before, during and after contact. Also in every case, the a three-year term and if it were to be extended and court has to consider the conduct of both parents quantified in capital terms the case advanced by the wife towards each other and towards the child, and in was plainly excessive. particular the effect of the domestic violence on the parent and child, the motivation of the parent seeking At first instance, the District Judge set the wife's monthly contact, the likely behaviour of that parent during budget at £4,000 resulting in an annual need of £48,000. He contact and the effect on the child, his capacity to deducted £10,000 to reflect her earning capacity. The net appreciate the effect of past violence and the potential figure of £38,000 he then quantified on a straight line 12-year for future violence on the other parent and child, and his calculation to produce approximately £450,000.

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The wife appealed to the Circuit Judge challenging the extension of 3 years to 15 years. The Mother appealed the finding made by HHJ Green.

The extension made by the District Judge rested on facts that Thorpe LJ followed a course which he described as he had found as to the understanding of the parties at the "contrary to authority that appeals can only be brought date of the negotiation in 2006. The findings were not against orders and not judgments" (paragraph 10) and interfered with. struck out the paragraphs of the judgment in which HHJ Green had made the finding against the mother. He The straight line 12-year multiplier was also challenged by described HHJ Green's having made the findings at the end the wife. The Circuit Judge properly substituted a Duxbury of the final hearing as procedurally unorthodox and that the calculation which reduced the payer's liability substantially. mother's right to a fair trial had been breached since she had no forewarning and nobody had known that the judge was Furthermore the wife asserted that the District Judge had contemplating any revisionary findings as to past events in wrongly taken account of the continuing mortgage the final hearing judgment. The importance of striking out repayments at the rate of £500 pcm and finally asserted that the offending paragraphs of the judgment was that, unless the judge had included within the quantification of the done, the mother's relationship with the child's carers and wife's needs at £480,000 a year substantial expenditure in indeed her contact with the child might have been adversely respect of the children - impermissible because there were affected. child periodical payments and accordingly the net result was double counting. The wife failed before the Circuit Appeal allowed. Judge on these two points. Summary by Thomas Dudley, barrister, 1 Garden Court The wife appealed to the Court of Appeal. In respect of the Family Law Chambers first point, it was held that if a recipient of a lump sum twice the size of the mortgage on the matrimonial home elects to hold back capital made available for the mortgage discharge I-A (Children) [2012] EWCA Civ 582 in order to invest in a bond that bears no income, she cannot look to the payer thereafter for indemnity or contribution to After a 12 year old girl made assertions that she had been the continuing mortgage interest payments. The circuit sexually touched by her stepfather, public law proceedings judge had assumed that the refinanced mortgage resulted in were commenced, and the stepfather left the family home to an income-bearing investment but this was not the case. prevent the local authority seeking to remove the girl and her sister. In respect of the second point, it was held the District Judge was making an assessment of the wife's needs qua ("in the A fact-finding hearing came before HHJ Norrie in Brighton capacity of") wife and had not included any element of child County Court during the course of which evidence was expenditure in his assessment of the wife's needs. The heard from social workers, a police officer and the girl's appeal on the second point failed. mother and stepfather. The judge, in summary, found for the local authority, and rejected the parents' case. Appeal allowed on the first point. The capital sum payment by the husband for the termination of periodical payments Counsel for the stepfather appealed the judgment on to wife was reduced by £58,000. account of its failure to mention, let alone critically weigh up, the evidence of the respondent parents. The judge was Summary by Alfred Procter, barrister, 1 Garden Court asked in line with approved practice to reconsider the overlooked points, which led to the judge providing an additional judgment which recited in summary form the C (A Child) [2012] EWCA Civ 535 stepfather's evidence but without any analysis of it, and without any mention of the evidence of the mother. At the conclusion of a fact-finding hearing in care proceedings in Peterborough County Court, HHJ De Mille, The stepfather's counsel duly amended the appellant's had found that the child had suffered non accidental injuries notice, but it was not until some months later that a whilst in the care of the parents, that neither parent could be permission listing was given and permission was given to ruled out as possible perpetrators and that the parent who appeal. By the time the matter came before the Court of was not the perpetrator must have known of the injuries Appeal, the stepfather had been out of the family home and and had failed to protect. having supervised contact for almost two years.

The final hearing had to be conducted by a different Judge Thorpe LJ considered the criticism of the judgment forceful – HHJ Green – due to the retirement of HHJ De Mille. and stated that there was no evidence other than the words During the hearing both parents were cross examined by of the child that the stepfather had abused her sexually. He the solicitor for the Guardian about the events on 14 June noted that the girl had made allegations of domestic 2009, the day on which C had suffered the last of the injuries violence against her in the home, and of sexual victimization considered by Judge De Mille. Giving judgment at the end of her by boys at her school, both of which had been of the hearing, HHJ Green then made a finding that in fact retracted, and that she was prone to fantasy in many other the injury on 14th June had been caused by the mother and instances of things she is said to have reported. In the light not the father, although the Judge did not go so far as to find of these weaknesses, Thorpe LJ considered that the judge's this to be the case in respect of all of the injuries suffered by failure to focus closely on the evidence of both the mother the child. This finding did not, however, make any and the stepfather was such a fundamental failing that her difference to the final order made by the Judge. conclusion and order were unsustainable. He did not

www.familylawweek.co.uk Family Law Week June 2012 - 37 consider that the judge's additional judgment made up for the deficiencies in the original judgment and therefore The decision subject to appeal was that the father's prompt allowed the appeal and set aside the findings made by the application following A's removal meant that on the judge. relevant date, she remained habitually resident in England and Wales. The Court of Appeal expressed some sympathy Etherton LJ agreed with this view and added that each of for the Recorder hearing the case in relation to how the the specific allegations should have been put to the application had been presented. Whilst he had been correct stepfather in cross-examination so that he had a possibility to identify that the relevant question was that of the of refuting them in part or in whole. This was not done, and 'relevant date', he had erred in his conclusion because the the judge considered that the burden of proof had not been original proceedings had concluded in 2009. discharged. The 'relevant date' for the father's later application to vary Summary by Gillon Cameron, barrister, 14 Gray's Inn this order was the date of that application (s.7(c) Family Law Square Act 1986). Consequently, all of the proceedings following the final order in the original proceedings were without jurisdiction. The appeal was therefore allowed, the orders W-B (A Child) [2012] EWCA Civ 592 made after March 2009 were set aside and the order of March 2009 remained in force. This was an appeal by a mother in private law proceedings. The parents were separated and the father had been having Summary by Sally Gore, barrister, 14 Gray's Inn Square contact until the mother removed the child, A, to Scotland without the father's knowledge or consent. The father issued proceedings in the Southend County Court and the Lilleyman v Lilleyman [2012] EWHC 821 (Ch) mother was eventually traced and the proceedings continued in Southend. This ultimately led to an order for The husband (aged 64 at death) and wife (aged 66 at trial) residence to the mother and a contact order to the father. were married for 2 ½ years (following cohabitation of c. 1 ½ These proceedings concluded in 2009. A and her mother years) before the husband's death. Both had been married had remained living in Scotland throughout the previously. The estate was worth c. £6m, of which £5m was proceedings and so they had become habitually resident represented by shareholdings in three private companies. there. The estate was left by the husband almost entirely to his sons, save in relation to chattels and small gifts and of Some 15 months later, the father issued further applications limited and conditional rights of occupation given to the to vary the original contact order and for its enforcement. wife in respect of the former matrimonial home and a The enforcement application was doomed to fail as an order holiday home. The husband had also set up an annuity for to punish a breach of a contact order could not be made the wife of some £378 pcm. Save for her occupation rights, against someone who was not habitually resident in the wife had assets of c. £400,000 and an income of c. £11,000 England and Wales and the contact application was pa. concluded by consent. The wife argued that reasonable provision under the The father then made a further application in June 2011 for Inheritance Act should include a substantial share of residence and to vary the consent order. At a two-day matrimonial property in excess of her reasonable needs. The hearing, the question of jurisdiction was raised on behalf of defendants argued that provision should be limited to the the mother for the first time. The Family Law Act 1986 deals latter only. with matters of jurisdiction between the respective constituent parts of the UK. The key to determining Briggs J considered the law and authorities, particularly jurisdiction in this case was to consider the child's habitual Cunliffe v Fielden [2006] and Miller v Miller [2006] For the residence on 'the relevant date'. The relevant date is defined purpose of the divorce cross-check, His Lordship assessed in s.7(c) Family Law Act 1986: the matrimonial property at £1,475,000, including £250,000 of increase in value of the company shares. His Lordship "the relevant date" means in relation to the making or assessed the wife's housing need as met by a full life interest variation of an order – in the estate's share of the matrimonial home, which could be rolled over to another property if her needs changed. Her (i) Where the application is made for an order to be made or income requirement was £31,770 pa, which on Duxbury varied, the date of the application (or first application, if terms would require a payment of £235,000 from the estate. more are determined together) and On the facts of the case, however, a life interest for the wife (ii) Where no such application is made, the date on which was unattractive, not least because it did not bring about a the court is considering whether to make or, as the case may clean break between the wife and the sons, and an outright be, vary the order. transfer of the FMH to her would be fairer. Taking into account all the relevant circumstances, his Lordship ruled However, Section 41 of the same Act provides that where a that the wife should receive some £500,000 from the estate child has acquired habitual residence in another part of the (roughly 8% of the total value), to include the estate's half UK because they were removed without the consent of interest in the former matrimonial home and (at the wife's everyone entitled to determine where they reside, they election) either the estate's half interest in the holiday retain the habitual residence of the part of the UK from property or a equivalent lump sum. The estate was also which they were removed for a period of 12 months from required to transfer a third property to the wife, on the basis the removal. that the court considered this to be beneficially the wife's in

www.familylawweek.co.uk Family Law Week June 2012 - 38 any event, but if not, as reasonable provision under the that the literal construction would produce absurdities, for Inheritance Act. example, that it could not have been the intention of the legislature to provide via section 105(6) that Surrey would Summary by Stephen Jarmain, barrister, 1 Garden Court therefore have the financial burden of the child throughout Family Law Chambers her minority. Ward LJ and Elias LJ dismissed the appeal.

However, Stanley Burton LJ disagreed with Ward LJ and Lilleyman v Lilleyman [2012] EWHC 1056 considered that it was in the best interests of the child that (Ch) the child and the mother (herself a child) remain the responsibility of the same local authority, i.e. Surrey. It was common ground that the wife was entitled to her costs from the estate from the date of issue of proceedings to Appeal dismissed. 17 August 2011. However, by virtue of the fact that a more Summary by Richard Tambling, barrister, 1 Garden Court advantageous offer had been made to the wife on 27 July 2011, expressed to be open for acceptance for 21 days, His Lordship was required to consider who should pay the defendants' costs since that date, taking into account the S (A Child) [2012] EWCA Civ 617 provisions of Part 36 (14). Considering all the circumstances of the case, including the failure by the defendants to After a fact-finding hearing within private law contact concede that the will had not made reasonable provision for proceedings (where findings had been made against the the wife, their unreasonable pursuit of a claim for a father) a section 7 report on the issue of contact was ordered. beneficial interest in a property found to be beneficially The report recommended supervised contact and the owned by the wife and the fact that the wife's evidence on mother and father entered into a consent order for the most of the factual issues was preferred at trial, the wife's supervised contact between the father and the child. obligation to pay the defendants' costs since 17 August 2011 was limited to 80%. The court acknowledged that this An addendum section 7 report was ordered to consider the would nevertheless have a significant effect upon the progress of contact but a different Cafcass Officer was provision she received. appointed to complete the report. Before supervised contact commenced, the second officer had written to the court His Lordship concluded by expressing "a real sense of expressing her concern about supervised contact and that in unease" at the disparity in the costs regimes enforced as her opinion it should not commence until the father had between Inheritance Act cases (where the civil regime produced evidence that he had successfully engaged with a applies) and financial relief proceedings, with the emphasis therapeutic project and had accepted responsibility for his on open offers and limited shifting of costs, allowing the inappropriate behaviour. court to take into account the parties' costs liabilities when considering reasonable provision. As a result of the divergence of opinion, at a direction hearing, the Cafcass officers were directed to meet to try and Summary by Stephen Jarmain, barrister, 1 Garden Court resolve the differing opinions. The officers each stood by Family Law Chambers their initial opinions.

At the following directions hearing, after hearing D (A Child) [2012] EWCA Civ 627 submissions on behalf of the mother that the court should hear oral evidence form the officers and the submissions on The Court of Appeal were concerned with Kent County behalf of the father that supervised contact should start Council's appeal as to whether Kent or Surrey County immediately, the judge ordered that the contact should Council were the designated local authority in a care order commence. made in Kent's favour. The child was born in Kent and was taken into police protection and placed in foster care under In allowing the mother's appeal, the Court of Appeal held an interim care order granted to Kent. The child remained that the decision by the judge was not a case management with foster parents in Kent. The mother remained living in one and that the judge should have heard from the Cafcass Kent. officers before deciding the issue. The Court of Appeal noted the very unusual circumstances of the case that the However, the mother was a child in care and in the care of judge had been faced with and the competing arguments Surrey but had been placed in Kent with foster parents via made on behalf of the parents including on the issue of delay. the Independent Fostering Agency but Surrey remained fully responsible for the mother. Appeal allowed.

The Court of Appeal had to consider sections 31 and 105 in Summary by Richard Tambling, barrister, 1 Garden Court considerable detail because it was Kent's case that a literal construction of the sections caused section 105(6) to mean exactly what it says and that therefore the subject child's grandmother being ordinarily resident in Surrey and the mother still being a child meant that Surrey were the designated local authority.

Both the Family Proceedings Court and His Honour Judge Caddick disagreed with Kent's case and Ward LJ reflected

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B (A Child) [2012] EWCA Civ 632 VC v GC [2012] EWHC 1246 (Fam)

This was an appeal by a grandmother in private law The parties moved to France in June 2001 and married in proceedings concerning her grandchild, B. The respondent July 2001. S was born in April 2004 (now aged 7). M and S to the appeal was the child's mother and the appellant's went to England on 14 June 2009 (with the agreement of F) daughter. The child had spent most of her life living with where they remained living. her mother at the home of the maternal grandmother. However, the mother had recently left the property. There F filed for divorce in France on 28 April 2011 seeking was some dispute as to whether she was living with a custody of S. On 23 June 2011 M applied for a residence boyfriend, about whom allegations were made about his order in England. Various hearings in both France and lifestyle or, as asserted by the mother, she was living with a England followed. In summary, on 19 July 2011 M obtained friend. The grandmother had prevented the mother from an interim residence order in England and on 2 September taking B with her when she left the property and had 2011 F obtained the equivalent of an interim residence order subsequently applied for a residence order. The mother in France. On 14 October 2011 the French High Court made a cross-application for a residence order and the dismissed M's appeal against the transfer of residence of S matter came before Her Honour Judge Plumstead at a short to F. The English courts transferred the matter to the High hearing at which a social worker was also present. Court.

The judge made an order that there would be a residence F accepted that S was habitually resident in England, but order in favour of the mother when she has been allocated submitted that the English court should apply the exception suitable accommodation for herself and the child (such in Article 12(1)(b) and stay the English proceedings accommodation to be approved by social services) and it allowing S's future to be determined by a court other than was against this order that the grandmother appealed. that of her habitual residence, namely France.

It was clear from the transcript of the hearing that the judge In order to apply the exception, the court had to be satisfied had made her intentions clear almost from the outset of the that: hearing, proceeding from the starting point that the child should be with her mother unless the mother was not able (a) The jurisdiction of the court had been accepted expressly to care for her. The judge had been made aware that the or otherwise in an unequivocal manner by the holders of social worker would be recommending a 12-week parenting parental responsibility; assessment of the mother, whilst B remained in the care of the maternal grandmother. However, when the judge (b) That that happened at the time the court was seised of enquired of the social worker as to whether the local the matter; authority would have any concerns about B's welfare if she were to reside with her mother in supported (c) That it was in the superior interests of the child. accommodation that was not shared, she had been told that there would not be any concerns. Mrs Justice Eleanor King reviewed the authorities and concluded that the starting point was that the court of Although the Court of Appeal recognised that the judge's habitual residence was best suited to determine issues of instinct may eventually turn out to be the right outcome, parental responsibility in relation to S. The authorities were they were of the view that she had reached this conclusion clear that acceptance of jurisdiction did not have to be in without sufficient evidence and without hearing full oral writing and subsequent acts and contact could illuminate argument. They also expressed concern that she had the quality of the acceptance at the time the court was overridden the social worker's proposed suggestion that seised. However, even putting F's case at its highest, M did there should be an assessment before B moved to live with not unequivocally accept French jurisdiction. The learned her mother. The fact that the social worker had not objected Judge further held that even if she was wrong in relation to when the judge presented him with a fait accompli was not unequivocal acceptance, she was nevertheless clear that the the same as his offering a considered view that it was what best interests of S were met by any welfare hearing and was best for the child. Thirdly, the decision had been made consideration by a court of the appropriate exercise of PR at a hearing that had only been intended to deal with being conducted in England. interim contact and consequently nobody had come prepared to argue this issue. Summary by Victoria Flowers, barrister, Field Court Chambers This led the Court of Appeal to conclude that the order must be discharged and an earlier residence order made in favour of the grandmother as a 'holding' order would remain in Re JS [2012] EWHC 1370 (Fam) place. The Court of Appeal directed that a s.7 report be undertaken in addition to the s.37 report ordered by HHJ Over fifteen days, Baker J heard a fact-finding hearing Plumstead. An order for contact between B and her mother during care proceedings brought by the local authority. The was also made, pending a forthcoming directions hearing in local authority sought findings that the intracranial injuries the County Court. suffered by the child were inflicted by his parents when he was fifteen weeks old. The police had still to reach a Summary by Sally Gore, barrister, 14 Gray's Inn Square conclusion to their investigation at the time of judgment in the fact-finding hearing.

The issues to be determined before Baker J were whether the injuries sustained by the child were inflicted non-

www.familylawweek.co.uk Family Law Week June 2012 - 40 accidentally, if that were the case then who was responsible to England. The husband claimed to live in Singapore and for inflicting them and was there more than one incident also to be domiciled there. that gave rise to the injuries. Evidence included that of six leading experts in their fields in relation to the type of injury Parker J had to consider, inter alia, the FPR 1991 and FPR the child had suffered as well as evidence from the parents 2010 and give detailed consideration to Biggs v Biggs and and family members and substantial written evidence Wheatley [1977] before concluding that leave for the decree including transcripts of police interviews with the parents. to be made absolute should be refused, that there was no power for the wife to supplement her petition and therefore The judgment is notable for how it succinctly summarises that the decree nisi be rescinded and the petition dismissed. the law in relation to the evidence and the approach of the court. The judgment also helpfully summarises, in a Summary by Richard Tambling, barrister, 1 Garden Court straightforward fashion, the court's approach to medical evidence in this type of case. H (A Child) [2012] EWCA Civ 714 Of particular note is Baker J's general observations on subdural haematomas and retinal haemorrhages and the This was an appeal by a father against a decision that was review by Baker J of the medical opinion. made in private law proceedings concerning his seven-year old son, W. The decision of the Judge at first instance had Baker J concluded that the father was responsible for the been to shorten the father's weekend staying contact. The injuries and found that the father had perpetrated the contact had originally been from after school on Friday to injuries by shaking the child. Baker J went on to find that school on Monday and, in accordance with the the mother had failed to protect the child from the father recommendation of W's NYAS Guardian and W's own and had therefore contributed to the harm suffered by the wishes and feelings, Her Honour Judge Raeside had child. reduced that contact so that it started on a Saturday morning instead of after school on Friday. Summary by Richard Tambling, barrister, 1 Garden Court The father's first ground of appeal concerned a discussion that had taken place between all three counsel in the case Kim v Morris [2012] EWHC 1103 (Fam) and the Judge prior to the hearing at which the decision being appealed had been made. This had been a short Parker J has to consider whether an unopposed decree nisi discussion in Court on a counsel only basis at which the of divorce on the wife's petition granted in 2006 ( based on Judge had agreed that the parties could have further time the husband's adultery) followed by over four years of for discussion and the hearing would be dealt with on reconciliation and cohabitation should be made absolute submissions. The father complained that this discussion and if not whether the decree should be rescinded. In the had breached his Article 6 rights. However, having event that the decree nisi were to be rescinded then Parker J considered the agreed note of this hearing prepared by had to consider whether the wife should have permission to counsel, and endorsed by the Judge, the Court of Appeal file a supplemental petition or whether the petition should were satisfied that nothing improper had taken place. be dismissed. The second ground of appeal was that the Judge should not The wife is of South Korean origin and was born in the USA have followed the recommendation of the Guardian and and has US nationality. She had no enduring links with this reduced the weekend contact. This judgment quotes from jurisdiction at the time of the hearing. The husband was the Guardian's report which included the expression of W's born in England and lived and worked in this jurisdiction wishes and feelings, and the Guardian's conclusion that and has British nationality. The parties married in Seoul in these were W's own wishes and feelings and not those of his 2003. The parties lived and were habitually resident in mother. England during the marriage. The wife issued a divorce petition in 2006 and relied on the parties' habitual residence The Court of Appeal concluded that the Judge had not erred in England. Decree nisi was granted unopposed in April in following this recommendation. They rejected the father's 2006. By July 2006 the parties had reconciled and resumed submission that she had not properly considered the effect cohabitation at their home in Essex. In 2008, the husband of a change in the established pattern of contact. Thorpe LJ, took up a job with a financial institution in Singapore and giving the judgment in this case, observed that he was in no moved to live there and the wife joined him shortly doubt that these matters were borne in mind by the judge, afterwards. They sold their home in England and had not and were implicitly implied, though not explicitly, in her lived here since. It remained unclear as to when the final conclusion. separation took place. The wife took a job in Hong Kong in August 2010 and the parties spent little time together Summary by Sally Gore, barrister, 14 Gray's Inn Square thereafter. It was the wife's case that the husband abusively told her to get out of the house in December 2010 and the husband's case that the wife finally told him that she did not wish to remain married to him in late 2010 or early 2011. The judge found that though the parties were not physically under the same roof after August 2010, their post decree nisi cohabitation and reconciliation was to be regarded as having continued uninterrupted for over 4 years. The wife's position at the hearing was that she had no plans to return

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L (Children) [2012] EWCA Civ 721 risk of significant harm to the children if the parties remained in the house together, and that the order was only H and W had been married for 20 years and were the made for a relatively short period of time, Black LJ was not parents of twins aged 8. HHJ Yelton made an occupation persuaded that he erred in the exercise of his discretion by order requiring H to vacate the FMH forthwith and remain excluding H. The appeal was dismissed. away for 3 months, and a shared residence order (the children to live primarily with W and spend frequent time In concurring, Aikens LJ commented that he too had found with H). H appealed. this a "very anxious" case. He said that given the draconian nature of orders that can be made under section 33(3), it will Before HHJ Yelton it was common ground that the often be incumbent upon a judge to consider whether a fully relationship between H and W had become very poor. He fledged occupation order should be made. saw and heard audio and video tape exchanges between the parties. No recent violence was alleged. He found that the Summary by Victoria Flowers, barrister, Field Court children were badly affected by the arguments and feelings Chambers between the parties. He decided that this was not a section 33(7) FLA 1996 case as although the children were likely to suffer significant harm if the parties did not separate, the Aspden v Elvy [2012] EWHC 1387 (Ch) harm was not attributable solely to H's conduct but to that of both parents and their presence in the home together. The parties met in 1985 and in 1986, the claimant, Mr. Aspden purchased Outlaithe Farm for £70,000. It H submitted, inter alia, that HHJ Yelton should not have comprised a farmhouse, a number of outbuildings, a made an occupation order as it was too draconian a derelict barn and 6 acres of land. The claimant was response to the situation in the home, and gave no registered as sole proprietor. Cohabitation began shortly consideration to a less draconian order. He was critical of afterwards and there were two (now adult) children from the HHJ Yelton's approach to fact finding and submitted the relationship. The defendant, Ms. Elvy ran a cattery and that the shared residence order should not have specified dog kennels from the outbuildings. The claimant worked as that the children should live primarily with W. a manager for a business but after suffering a heart attack had not worked since. The Court of Appeal dismissed H's appeal, Black LJ giving the lead judgment. The parties separated in late 1995/early 1996. In January 2006, the claimant transferred the Barn to the defendant. Black LJ was clear that there is nothing in section 33(6) FLA The claimant remained living at the farmhouse until it was 1996 to limit the discretion to make an occupation order to sold in January 2008. The net proceeds of sale were cases where there has been physical violence. Even in sufficient to discharge creditors and for the claimant to respect of section 33(7), which deals with significant harm, receive a significant sum from the proceeds of sale. He physical harm is not required. There is equally no authority moved into a caravan on part of the land within the that a spouse can only be excluded from the home if curtilage of the barn. reprehensible conduct on his or her behalf is found. Steps were taken to convert Outlaithe Barn into a Black LJ was not persuaded on the submissions about fact dwellinghouse. There was a conflict of evidence during the finding, noting that one must be practical about what is trial as to whether it was a joint enterprise or whether the likely to be possible in a busy county court list. conversion was by the defendant. It was common ground that the claimant did some of the work but there was a In respect of the occupation order, Black LJ recorded that it dispute as to how far the work was for the benefit of was important to recognise that HHJ Yelton's finding went Outlaithe Barn. It was common ground between the parties beyond the sort of harm that children inevitably suffer when that the claimant made substantial financial contributions to a marriage is breaking down, having found that they had the cost of the conversion works but the extent of the suffered significant harm (the threshold for local authority contribution was disputed. Much of the case focussed upon intervention in Part IV Children Act 1989). Given this the dispute as to the costs of the works and how they were finding, it was not surprising that the judge determined he funded. The works cost £90,000 and the claimant claimed to had to intervene, and in determining how to intervene he have paid the majority of the sum whereas the defendant was right to consider who should have care of the children. claimed it had been significantly less. The claimant's case If one parent had to be chosen as the primary carer, Black LJ was that there was a common intention that the parties did not think HHJ Yelton was open to criticism for choosing would marry and cohabit whereas the defendant stated that W on the facts of the case (W had given up her academic the payments were gifts in recognition of her contributions career to be at home full-time whereas H had a senior to the family and in respect of her interest in Outlaithe Farm. position which, whilst giving him considerable flexibility, The claim was pursued on the basis of a constructive trust meant that he had to go abroad from time to time). and/or proprietary estoppel. The defendant contended that she was the absolute owner of Outlaithe Barn and denied Black LJ noted that in her view it would have been that any proprietary estoppel arose. appropriate for there to be express consideration of alternatives to the full exclusion order but it seemed that In arriving at his conclusion, His Honour Judge Behrens alternative solutions had not been put to HHJ Yelton. reviewed the law and in a very helpful summary, considered recent authority and summarised the legal After anxious consideration, bearing in mind particularly principles to be applied to the case. that HHJ Yelton had seen the parties, heard the tapes and formed a view of the case which included that there was a

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It was held that Outlaithe Barn was held by the defendant anyone wishing to instruct an expert needs to explain to the on shares of 75% to her and 25% to the claimant. The judge court why the expert evidence proposed cannot be given by held that there had not been express discussions about the the Social Services undertaking a core assessment or by the claimant acquiring an interest in the property and that the Children's Guardian in accordance with their respective common intention of the parties (objectively ascertained) statutory duties. during their whole course of dealing was that the claimant should acquire an interest in the property of 25%. The President also makes some general points. He highlights the need for courts to keep to the strict timetables Summary by Richard Tambling, barrister, 1 Garden Court set down by the PLO, and that the instruction of an expert should not, unless it is avoidable, hold up the progress of a case. He also points out that the LSC is under extreme A Local Authority v DS [2012] EWHC 1442 pressure due to the number of applications for prior (Fam) authority which have risen from 216 in November 2011 to 1840 in March 2012. Apparently the LSC intends to process In A Local Authority v DS [2012] EWHC 1442 (Fam), the standard applications in 8 days, and urgent applications in President of the Family Division, Sir Nicholas Wall, gives 3 days. He further stresses the importance of a court giving guidance on the question of prior authority addressed to the reasons in the direction for the instruction of an expert, as Legal Services Commission (LSC) in relation to expert well as setting out reasons for the expert's time frame as to evidence. how long is required to prepare the report. If the LSC rejects the expert's time frame, and the LSC's refusal is manifestly The case itself involves the five-month delay and ultimate unreasonable, then there may be grounds for judicial review refusal by the LSC to grant prior authority for the of the decision. instruction of an independent social worker (ISW) to perform a parenting and risk assessment of parents in the At paragraph 54, the President proposes a possible form of proceedings. This is because the ISW was requesting a rate order for the instruction of an expert, depending on the facts of £50 per hour, whereas the current rate set by the of the case: - Community Legal Services (Funding)(Amendment No 2) Order 2011 restricts payment to an ISW working out of a) The proposed assessment and report by X (as set out in London at £30 per hour. paragraph 2 of this order) are vital to the resolution of this case. The President chooses not to rule on whether the ISW should be instructed, in particular whether Article 5(2)(e) b) This case is exceptional on its facts. Community Legal Services(Funding) Order 2007 applied in relation to whether "exceptional circumstances" applied in c) The costs to be incurred in the preparation of such report enabling the Legal Services Commission to pay the ISW at a are wholly necessary, reasonable and proportionate higher rate, or whether the ISW was qualified to perform a disbursement on the funding certificates of the publicly risk assessment, which is paid at a higher rate in any event. funded parties in this case. His view is that the trial judge is better equipped to make such a decision, and that his own role is to give guidance to d) The court considers X's hourly rate of £y and the both family courts and the LSC in respect of prior authority, estimated costs of the assessment report to be reasonable in in order to speed up the process of experts being properly the context of (his) qualifications, experience and expertise. instructed, should the court direct it. He points out that the LSC has the legal power to refuse to fund the instruction of e) The field in which X practises, and the particular expertise an expert, regardless of the decision of the court, as well as which (he) brings to bear on cases involving (subject) are to lay down limits on the level of experts' fees. However he highly specialised. There is no realistic prospect of finding also points out that if a lawyer takes the view that the LSC an alternative expert with the necessary expertise at a lower has acted with Wednesbury unreasonableness, or their fee. decision can be struck down for any other public law reason, then the remedy is judicial review. f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an In his guidance, the President states that the words "the cost application for prior funding approval would be wholly thereof is deemed a necessary and proper disbursement on outside the child(ren)'s timescale(s) [a named individual's] public funding certificate" should no longer be used, as they do not bind the LSC. Rule 25.1 of the The order should also be buttressed by reasons as set out in Family Procedure Rules 2010 will shortly be amended to his guidance. insert "necessary" for "reasonably required". The court will therefore need to be persuaded that the instruction of an Attached to the judgment is a document provided by the expert is necessary for the resolution of the case. If the court LSC setting out the current position on applications for prior is so persuaded, it should set out either in a brief judgment authority. or on the preamble of an order that the instruction of an Summary by Chris McWatters, barrister, Garden Court expert is necessary, and set out its reasons. The court should Chambers also identify the issues on which the expert should report. Should the LSC refuse to grant prior authority, then it should likewise set out its reasons accordingly. He stresses in conclusion that courts should familiarise themselves with Part 25 of the FPR and Practice Direction 25A, in particular paragraph 4.3(h) (soon to be revised) which provides that

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