Thank you to all those who attended the annual Chelmsford Legal Walk!
In the Absence of a QLR
A Qualified Legal Representative (‘QLR’) is a person appointed to cross-examine another party where one party is a litigant in person and there are allegations of domestic abuse. The assistant of a QLR prevents the alleged perpetrator from being able to cross-examine the alleged victim as well as preventing alleged victims from having to ask questions to the alleged perpetrator. This came into force after section 65 of the Domestic Abuse Act 2021 introduced new protections including a ban on direct cross-examination in domestic abuse scenarios. This is now contained under Part 4B of the Matrimonial and Family Proceedings Act 1984 (‘MFPA’) and applies to proceedings commenced on or after 21 July 2022. The MFPA contains automatic (section 31R, 31S and 31T) as well as discretionary (section 31U and 31V) grounds for prohibition of cross-examination.
A QLR is defined by section 31W(8)(b) of the MFPA as a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act) in family proceedings. Practice Direction (‘PD’) 3AB of the Family Procedure Rules 2010 (‘FPR’), paragraph 5.3 states “A satisfactory alternative means to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party.”
QLRs are funded by the government, are low waged and do not allow for travel expenses. QLRs are available solely for the purpose of cross-examination, they cannot advise a party and they do not have legal professional privilege. It is well known that there is a shortage of QLRs. This shortage has caused adjournments, wasted costs and a need for guidance in cases where a QLR is not available.
A View from The President’s Chambers: 10 July 2023
The Right Honourable Sir Andrew McFarlane (President of the Family Division) acknowledges the “frequent and widespread” difficulty of finding a sufficient number of advocates to act as a QLR in cases. In paragraph 17 he suggests that where a QLR is not found within 28 days, the court should list for directions and direct that some summary information is provided by HMCTS about the difficulties, however it is a matter for the individual judge or magistrates to decide in each individual case. Where a QLR is not found within 28 days, he notes that courts should apply the overriding objective laid down in the FPR to deal with cases ‘expeditiously and fairly’, ‘dealing with a case in ways which are proportionate to the nature, importance and complexity of the issues’ and ‘ensuring parties are on an equal footing’. In paragraph 19 he states that terminating the appointment of a QLR allows an opportunity to explore other options such as instructing an advocate. If a QLR is discharged, short reasons for doing so should be recorded in the court order.
The Judgment: Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22, [2024] All ER (D) 99 (Feb)
In this instance, the court directed for a QLR to be appointed in accordance with Part 4B of the Matrimonial and Family Proceedings Act 1984, after more than 120 different communications by email or telephone in an attempt to find a QLR, none were available. [3] The Judge considered a further adjournment but knew it was unlikely a QLR would be found. Therefore, the Judge decided to question the two parties in place of a QLR.
Despite PD 3AB of the FPR stating the court conducting cross-examination on behalf of a party is not a satisfactory alternative to a QLR, it is an option to be considered in the interests of justice under common law. This outcome enables cases to continue without delay. However, there is a balance to be struck. The Judge remarked the difficulties of asking the questions to both parties. [28] In K and L (Children: Fairness of Hearing) [2023] EWCA Civ 686 where, during the cross-examination of a party by the opposing advocate, the judge asked over 200 questions and ‘in effect took over the cross-examination’. The consequence for the overall fairness of the hearing was described by Baker LJ:
“By intervening on such a scale, and in such a challenging manner, the judge ran the risk (in Jonathan Parker LJ’s phrase in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at paragraph 146) of so hampering her ability properly to evaluate and weigh the evidence before her as to impair her judgment and thereby render the trial unfair.” [54]
The President gave guidance in scenarios where there is not a QLR available:
The President also gave some practical points to consider when appointing a QLR or not:
Sir Andrew McFarlane concluded:
“Whilst it is to be hoped that, in time, the continued training programme and the ability to claim travel expenses will increase the availability of QLRs, there will inevitably remain some cases where there is no alternative but for the court to ask the questions itself. Unsatisfactory though that process plainly is, in such cases it will be necessary in order to deliver a just, fair and timely conclusion to proceedings. Where that is the case, the advice in this judgment is intended to assist the court in navigating the tricky path between ensuring that the opposing case is put fully, fairly and properly, but doing so without entering the arena.” [42]
Holly Parker
Trinity Chambers
4 April 2024
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The abolition of Section 21, Housing Act 1988 has been in the works for some time now. Although the date on which it will officially be abolished has not been announced yet, it is anticipated to be later in 2023. In April 2019, the government announced that private landlords will no longer be allowed to evict their tenants at short notice, without good reasons for doing so. In March 2023, the Minister for Housing and Planning indicated that the bill would be brought forward by the autumn.
What is Section 21?
Section 21 of the Housing Act has been in force since 1989. It essentially gives landlords the power to evict a tenant and repossess the property without establishing fault on the tenant’s part. It is often referred to as the “no fault” ground for eviction, as the tenant does not need to be at ‘fault’ in any way to trigger a Section 21 notice. Landlords are still required to give at least 2 months’ notice to their tenants (although a longer notice period may be required where the tenancy is a contractual periodic tenancy), but they do not need to provide a reason for terminating their tenancy. If a tenant does not move out, the landlord can make an application to court for possession. Assuming all the correct procedures have been followed and the tenant has no defence, the Court will make an order for the property to be re-possessed by the landlord; usually within 14 days.
Who does it apply to?
Section 21 applies to private landlords and tenants who have entered into an Assured Shorthold Tenancy Agreement, either where the fixed term has come to an end, or where the tenancy can be regarded as a periodic tenancy.
Changes:
Once Section 21 is officially abolished, private landlords will not be able to evict tenants and re-possess their property on a ‘no fault’ basis. Landlords will have to rely on Section 8 if they want to re-possess their property, as this requires there to be a legal ground for eviction. There are several legal reasons a landlord could rely on to evict a tenant and re-possess the property under Section 8, these include:
There are other grounds set out in the Housing Act which give private landlords the power to evict tenants, but there must be reasonable grounds to do so.
It is also understood that the government will be making various amendments to the existing Section 8 grounds, as set out in the Renters Reform Bill 2023.
What does this mean, going forward?
The abolition of Section 21 is likely to be well received by tenants, providing more security for them in the long term.
For landlords, the changes are likely to cause difficulties without the ‘safety net’ of the Section 21 route. They must establish a ground for eviction and use Section 8 of the Housing Act.
We are delighted to announce that Mika Pine has joined Trinity Chambers. Mika has been a family barrister practising in the region for many years and will be well known to many local solicitors.
Specialising in family law, Mika accepts instructions in all areas surrounding family breakdown from domestic abuse and injunctive relief, to arrangements for children, care proceedings and finances on divorce.
For more information or to instruct Mika, please contact the clerks via clerks@trinitychambers.com.
Re D (Costs of Appeal: Application to Vary or Revoke Order) [2023] EWHC 1244 (Fam) – The Honourable Mr Justice Cobb
This case concerns an application to vary/revoke a costs order made in concluded proceedings; however, in the author’s opinion is interesting in that the background involves re-opening a fact-finding hearing.
The background to this case is (paragraph 2) within the CA 1989 proceedings at first instance, a District Judge had made a factual finding in 2015 that the father had sexually abused D on a number of occasions. Francis J concluded that “there was a serious procedural irregularity in the proceedings in the lower court” and a “serious risk” that the decision was wrong (see [2020] EWHC 1167 (Fam) at [77]). He remitted the substantive CA 1989 application to me for re-hearing. He described the case as “a wholly exceptional case”; I agree. At that time of allowing the appeal, Francis J did not deal with the question of costs of the appeal as (he later observed): “so much would depend upon the findings made by the High Court Judge who was to conduct the re-hearing”.
Paragraph 3 – I conducted a new fact-finding hearing over a number of days in the spring of 2021, delivering a lengthy and detailed judgment on 14 May 2021. On the evidence, I did not find that the father had sexually abused his daughter. I made a wide range of findings about both parents, notable among them is that:
“The mother allowed her pre-existing feelings of hostility towards the father, playing out against a backdrop of difficult ‘life stresses’, to influence and determine to an ultimately insupportable degree her assessment, and reporting, of what her daughter had said to her. Very soon she was caught up in what she genuinely perceived was an ‘horrendous’ (her word) situation in which professionals were actively validating her concerns, and advising her to protect her daughter from abuse.”
(Paragraph 5) Following the re-hearing the case was remitted back to Francis J on the issue of costs he dealt with this on paper and circulated a draft judgement on 3 November 2021 the mother responded to the draft judgement on 25 November 2021 stating:-
“I fully accept the Court has a wide discretion and is ultimately entitled to find that I should be required to pay a sum of money towards the Father’s costs, however, I am unclear as to why I should be considered liable for half of the costs incurred by the Father during the time that the Guardian opposed the Father’s appeal as I did between November 2018 and January 2020.
I understand that in Mr Justice Francis’ Judgement I should have changed my position in light of the support from the Guardian (as of 6th January 2020) and I accept this decision”.
(Paragraph 6) The finalised judgment on costs was in fact handed down on 19 January 2022 (“the costs judgment”) and on that day Francis J ordered that the mother should pay one-half of the father’s costs of the appeal. This was assessed at c.£76,000. Francis J gave the mother 24 months to pay (payment is therefore due by 18 January 2024) and directed that no interest was to accrue on the award in that period. After the delivery of the costs’ order and judgment, the mother contacted Francis J (by e-mail to his clerk) on 21 February 2022 in these terms:
“I feel I must make the Court aware that I am at a loss in how I pay for this costs award. I have no available resources in order to meet this costs award to the father, this whole case has cost me, including the costs award, in excess of £200,000. My lifesavings have gone and I am in debt from the ongoing proceedings, all funds which have been allocated to the ongoing proceedings. Following your costs award made to the [father], I simply cannot afford to pay this sum of money in its entirety and after discussing the options available to me, I am left with the dire potential outcome of having to pursue bankruptcy if I cannot raise the funds”.
In January 2023 the mother applied to vary the order for costs initially she used the wrong procedure however the case proceeded on the basis that the court could exercise its power under rule 4.1(6) of the Family Procedure Rules 2010 (‘FPR 2010’) to “vary or revoke” this costs order if it was considered appropriate.
In dealing with this matter at paragraph 18 the Learned Judge posed himself the following Questions for determination:-
iii) Should this application for variation or revocation have been remitted to Francis J?
The Learned Judge then recites portions of the judgement from which it is evident that the mother says in terms that she has not savings and no resources to pay a costs order.
At paragraph 22 the Learned Judge says _”where a party alleges that a decision of the court is wrong, or unjust because of a serious procedural or other irregularity, then the proper course would be to seek permission to appeal[9] that decision; if successful on one or other argument, the appeal will be allowed: rule 52.21(3) Civil Procedure Rules 1998 (‘CPR’). Permission will only be granted where (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard (rule 52.6 CPR).”
At paragraph 23 In this case, the mother has argued that the costs order was made without proper regard to her financial situation and was unfair in penalising her for opposing an appeal when, for an extended period during the litigation, the Children’s Guardian had taken a similar position.
There follows consideration of the legal position so far as the extent of the powers and in particular whether they apply to final orders – at paragraph 35 the Learned Judge concludes Neither counsel addressed these issues before me at any length (or at all), and the hearing had proceeded on the basis that rule 4.1(6) FPR 2010 did indeed provide a route to a potential remedy for the mother. However, it is important that the parties recognise the somewhat contentious jurisdictional platform on which the mother’s claim was in fact positioned.”
Thereafter at paragraph 39 he says:-
In light of these authorities, I apply the following principles to this application:
and/or
iii) In exercising that discretion, a court should, in my judgment, have clear regard to the following principles:
At paragraph 49 the Learned Judge says – although I find that I have jurisdiction under rule 4.1(6) FPR 2010 to vary or revoke the order, I am not, however, satisfied that the mother has established a proper basis to enable me to do so. In short, she has not demonstrated in my judgment a sufficient change in circumstances since the order was made (or other basis identified in §39 above) which would enable me, in the exercise of my discretion, to revoke or vary the costs order.
The decision rejected the mother’s arguments as follows:-
Firstly, inability to pay – whilst Francis J did not have detailed financial information he was aware of the parties’ respective financial circumstances; and
Secondly, rise in cost of living, whilst there had been a rise it affected both parties “who are now relatively worse off”; and
Thirdly, impact on welfare of D – Francis J was aware that I found the mother to be a “temperamental” and “emotional” woman. I accept that the costs order may well have aggravated the mother’s stresses, however I do not accept that the imposition of the costs order has so materially increased those stresses that:
It is the author’s view that this case provides and interesting analysis of the court’s power to revoke or vary an order including a final order and the exercise of that power.
It is a power which for the reasons set out in the judgement will only be used sparingly but in certain cases it may be the better a preferable route to appeal, as there is no need to establish that the judge at first instance was wrong.
It also appears that it may be of general application when considering the making of applications for costs order at the conclusion of Children Act Proceedings generally.
Miss Jo Ashwell
Trinity Chambers
26 May 2023
Facts – the wife’s solicitors prepared a trial bundle (the husband was in person) they had inadvertently put before the court a bundle containing the husband’s without prejudice offer without any reference to him and without any discussion of it at any time.
The error appears to have been caused by the fact that this was an updated version of the FDR bundle which had not had the “without prejudice” correspondence removed. The trial judge relied on the contents of the without prejudice offer in his judgement though neither party had referred him to it and counsel for the applicant had only referred to open offers.
The respondent appealed Sir Jonathan Cohen dealing with the appeal at paragraph 17 said “it is necessary to touch on the law in relation to without prejudice documentation. Privilege is, of course, the privilege of the client and not of the solicitor or legal advisor. Privilege cannot be waived by solicitors on their own. The without prejudice rule governs the admissibility of evidence and is founded upon both the public policy of encouraging litigants to settle their differences rather than litigate them to a finish and the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence. That well-established principle has been approbated by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280.
He went on to say at paragraph 23 – I have great sympathy with the judge. He was, in effect, handed a booby-trapped bundle containing a document that should not have been there. He was not given the help by the lawyers that he should have been given when he came to ascertain what the husband’s offer actually was but it does seem to me that faced with the sudden discovery, as he was, when preparing his judgment of a without prejudice offer, it was not open to him simply to rely on that. He should have referred the matter back to the parties to discuss what course he should take, whether he should continue with the case himself, or how else he should proceed.
The Learned Judge went further and delayed publication of his judgement until the conclusion of the matter saying “I shall embargo publication of this judgment until after the rehearing of the case. I have asked the Family Division Liaison Judge to allocate a judge to take over its management and disposal. It would be too awful to contemplate a further hearing being compromised by the new trial judge reading this judgment.”
Though not dealt with in the bundle it seems inevitable that the solicitor preparing the bundle will be responsible for the wasted costs of the first trial and possibly further claims from their client in respect of the delay it caused and the impact on her and the children.
Jo Ashwell
Trinity Chambers
26 May 2023
Unregistered experts in family proceedings: Re C (“parental alienation”: instruction of expert) [2023] EWHC 345 (Fam)
Introduction
This anticipated judgment from the President of the Family Division provides guidance in relation to the instruction of unregistered experts.
Within the substantive proceedings, parental alienation had been found to have taken place and the President took the opportunity to comment on how the court should approach allegations of this nature.
Background
Proceedings were commenced in respect of the parties’ two children, aged 11 and 13, shortly after the parents separated in 2014. Final orders were made in 2015 and provided for the children to live with the mother and spend time with the father. In 2018, contact between the children and their father broke down, leading the mother to apply to suspend contact and the father to cross-apply to enforce the earlier order.
In March 2020, an order was made providing for substantive interim contact between the children and their father and provision for a child and adolescent psychiatrist or psychologist to be jointly instructed to:
It is worth noting that the order did not specify the required discipline for this expert as between psychologist and psychiatrist.
The parties jointly instructed Ms A shortly after the hearing. Her report concluded that the mother had alienated the children against the father, with the elder child now being severely alienated and the younger child being on the same trajectory. At an oral hearing shortly after this report was received, the court removed both children from the mother’s care and ordered that they were both to have limited contact with her pending final hearing.
At the final hearing in February 2021, HHJ Davies made a number of “significant” adverse findings against the mother in the context of parental alienation. Orders were made for both children to live with the father and, following a period of no contact to allow them to adjust to the change in arrangements, contact with the mother was to develop in a structured way. In reaching this decision, the judge considered three separate limbs, namely:
The mother applied for permission to appeal. Her grounds of appeal were in part based on a claim that the judge had not adequately considered her criticisms of Ms A, who she did not consider qualified to give expert evidence and who, as a result, should not have been relied upon. Permission was refused by Peel J on 1 September 2021.
In April 2022, the mother applied to re-open the issues that had been determined at the final hearing in June 2021 and issued a Part 25 application for permission to instruct a further expert, Professor Wang, in support of her position. In addition to being put forward as a proposed expert, Professor Wang sent an unsolicited letter to the court setting out his views about Ms A. This application to instruct Professor Wang was dismissed.
At the subsequent hearing to consider the mother’s application to re-open the findings, court applied the three stage test set out in Re E [2019] EWCA Civ 1447, and refused the application. In addition, relying on her own assessment of the case and on the recommendation of the guardian that the children needed a period of stability to settle into the arrangements, the judge imposed a s. 91(14) bar.
The court also ordered the mother to pay £20,000 towards the father’s costs of the application to re-open the findings. The judge gave a number of reasons for her decision to make this order, which included the fact that the application had no prospect of success, that the “new” matters raised were neither new nor relevant, that the mother was aware that costs were at issue (the father having raised it at the previous hearing) and that, considering all the circumstances of the case, it was not reasonable for the mother to take “another bite of the cherry.” She also took into account the effect that such an order would have on the mother’s opinion on the justice system and of the possible impact on the relationship between the parents before concluding that it was appropriate in the circumstances.
The appeal
The mother appealed against the decision not to re-open the findings on the basis that:
Permission to appeal was granted by Peel J, not due to any real prospect of success, but “for some other compelling reason;” that it was in the public interest for the court to consider the general approach to the instruction of unregulated psychologists as experts in the Family Court and to the specific approach taken to Ms A’s instruction in this case.
The court gave ACP permission to intervene on the limited basis that they were to “offer an independent analysis and account as to the core qualifications, skills and expertise required in order to be able to undertake an expert assessment in private law proceedings.”
Outcome of the appeal
Re-opening findings of fact
The court dismissed the application to re-open the findings.
The President stipulated that the guidance on which the mother sought to rely was just guidance, and it did not therefore render unqualified an individual who was previously thought to be qualified to act as an expert in this context.
In addition, the court held that the judge had been right not to place weight on the letter from Professor Wang. The application to instruct Professor Wang was dismissed, and the letter itself was not evidence within the proceedings. In such circumstances where a document was sent, unsolicited, to the court, placing reliance on it would have left the judge open to a charge of abuse of process. The mother sought to rely on reference to new “information” in Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285, which the President did not consider to take the mother’s case any further; the letter was nothing more than an expression of an opinion, regardless of how qualified the person holding that opinion might be considered to be.
In any event, the judge considered that the trial judge had had a perspective and insight into the case which was wholly different to that of the appeal court. She had made her own findings on the basis of the evidence, and had not relied unduly on the evidence of either the guardian or of Ms A. He considered the soundness of the findings made to be demonstrated in the initial decision by Peel J to refuse permission to appeal on the basis that the application was totally without merit.
The President held that, once the wider issues in relation to which permission had been granted had been dealt with, the judge’s initial decision remained “unopen to challenge” and this led the application to be dismissed.
The mother also appealed the s. 91(14) order, asserting that it lacked proportionality in circumstances where there was no history of unmeritorious applications and that s. 91A had no application in circumstances where the judge did not find there to be a risk of harm to the children.
Dealing with the latter point first, the court held that the distinction made between “risk of harm” and “potential damage that will be caused” (which was the phrase used by the judge) was purely a semantic one and that it was clear that the judge was applying the provision. The President also noted that, following Re A (A Child: Supervised Contact) (s 91(14) Children Act 1989 Orders) [2021] EWCA 1749], there was no longer a need to establish exceptional circumstances when deploying s. 91(14).
Secondly, it was considered to be incorrect to say that there was no history of unmeritorious applications; the first attempt to appeal was held to be without merit and the subsequent application, which was the focus of this appeal, had been dismissed.
The court therefore held that there was no proper basis for challenging the s. 91(14) order as the judge had properly considered all the relevant factors in reaching his decision.
Costs
The costs order was also subject of the appeal. The skeleton argument on behalf of the mother submitted that her conduct had not been unreasonable, that even if it had been, a costs order should not automatically follow and that taken together with the s.91(14) order, the costs order would have a chilling effect on the mother’s ability to act in the best interests of the children going forward.
The court held that the costs appeal was “unarguable” and could only be dismissed. The President emphasised that the mother’s numerous attempts to appeal decisions constituted unreasonable conduct and noted that this was the first occasion on which the father had sought costs, in the context of long and protracted litigation.
Guidance on unregulated psychologists
Having dealt with the substantive appeal, the President considered the approach to unregulated psychologists in family proceedings.
He started by considering the “circular procedural definition” of an expert as someone who “provides expert evidence for use in proceedings.” This provides an element of flexibility and the question as to whether a proposed expert is entitled to be regarded as an expert remains one for the individual court, applying the principles articulated by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6.
While certain categories of psychologist (such as “clinical psychologist”) have protected titles, the generic label is not protected. The President deemed this “open-house” nature of the term to be “unhelpful and potentially confusing.” This was not considered to be a matter for the court. Instead, it falls to the psychological profession and ultimately Parliament to consider whether a stricter definition ought to be imposed. Therefore, the court must work within the current scheme and keep its eyes open to the need for clarity as to the expertise of any expert proposed.
To that end, when considering the matter of instruction of an expert, clarity as to the qualification and experience of a given expert is paramount. The President recommended that HCPC registration, or chartered status in the British Psychological Society provided a reliable method of authentication and that they could should identify this in each individual case. Where a proposed expert is unregistered, the court should look more carefully at the evidence for the purported expertise and may be assisted by a short statement from the proposed expert as to their expertise. In addition, it was considered sensible practice for the court to indicate in a short judgment why it is appropriate in any individual case to instruct an expert who is unregistered.
Parental Alienation
While he did not address the matter in detail, the President did take the opportunity to provide comment on parental alienation. He made clear that “parental alienation” represents a process of manipulating children against one parent using “alienating behaviours”. It is therefore a question of fact for the judge rather than a syndrome to be diagnosed.
The court sought to emphasise a particular passage from the ACP skeleton argument, stating that it deserved to be understood and accepted:
“‘Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.’
Thus, the focus of the court should be on identifying “alienating behaviours” and considering the impact that this behaviour may have had on the relationship between the child and his or her parent, rather than determining whether the label “parental alienation” would be appropriate.
Conclusion
This helpful judgment therefore provides guidance as to the approach to be taken by the court when instructing an expert and the potential difficulties that can arise when doing so. Furthermore, the President provides comment on the focus for the court when parental alienation is at issue and offers a worked example of two less common orders under the Children Act; s. 91(14) orders and costs orders.
Sophie Shardlow
Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348
This appeal followed a fact-finding hearing in care proceedings, in relation to a child (“A”) who had suffered a number of serious injuries. In allowing the appeal, King LJ provided useful clarification as to the proper approach to be taken in cases where the perpetrator of non-accidental injuries is unclear.
Background
A was one of four children born to the mother and the father. She and her twin were born very prematurely (between 28 – 31 weeks’ gestation) at the start of 2021. Once the children had been discharged from hospital, the father returned to work, leaving the majority of the care for all four children to be undertaken by the mother.
In the early hours of the morning on 3 April 2021, the father found A struggling to breathe and with limited consciousness. He administered CPR and called an ambulance, which it was acknowledged by all parties had saved her life. When A was admitted to hospital, she was found to have the following injuries:
It was noted that, whilst the various injuries were very different in nature, they were all types of injuries which are seen to be borne out of frustration and loss of control by a parent.
The fact-finding hearing
At the fact-finding hearing, the trial judge made a number of findings against the parents, which can be summarised as follows:
The Father appealed the findings made against him. The mother did not do so, and therefore the appeal proceeded on the basis that the mother had deliberately inflicted the final, life-threatening injury on A. The issues before the court were therefore:
The law
It is important to bear in mind that the concept of a pool of perpetrators only arises where the allegation cannot be proved against a single individual in the normal way.
The approach to be taken in such cases where there is a pool of possible perpetrators was set out by Peter Jackson LJ in Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575. King LJ considered that the proper application of this guidance required the court to ask themselves:
What did the court decide?
The court granted the appeal on all grounds (with Laing LJ dissenting) and the case was remitted for rehearing.
When considering who had caused the injuries to A, the court held that the trial judge had erred in his application of Re B in two respects. Firstly, he had failed to consider step two above, which requires the court to ask itself whether they can identify the actual perpetrator on the balance of probabilities. This meant that he had failed to consider whether there was adequate evidence to prove that the mother was the sole perpetrator. Secondly, he had applied step three incorrectly, considering whether there was sufficient evidence to exclude the father from the pool of possible perpetrators, rather than considering whether there was sufficient evidence to include him within it, thus placing the father within the pool of perpetrators without sufficient evidence to do so.
The trial judge had made further findings, namely that (in the event that he was not the perpetrator), the father had colluded with the mother, had failed to protect A and had failed to maintain an open mind as to the risks that the mother posed to the child. King LJ observed that there was less strength in an appeal against these findings and that the court would not have allowed an appeal on these grounds alone. However, in view of the impending rehearing, to dismiss the appeal in relation to these findings would “tie the hands” of the tribunal hearing the case and therefore, the court allowed the appeal on these grounds as well.
Laing LJ disagreed, and in her dissenting judgment considered that the trial judge had properly followed and applied the relevant steps.
The relevance of strain
King LJ also provided comment on two further issues, the first of which is the ongoing relevance of the concept of “strain” within proceedings of this kind.
This phrase originates from the judgment of Peter Jackson LJ in Re B, where, with reference to Re D (Children) [2009] EWCA Civ 472, he stated that the judge should “seek, but not strain” to identify the actual perpetrator on the balance of probabilities.
This comment was made following a stream of case law in this area, starting with Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181. In this case, Wall LJ set out the importance of identifying a perpetrator; as is widely accepted, it is in the public interest for those who cause serious non-accidental injuries to be identified, and children who have suffered injuries have the right to “know the truth about who injured them when they were children, and why.”
The standard of proof in such cases is the normal civil standard and neither the seriousness of the allegation nor the seriousness of the consequences will change that. This was set out by Baroness Hale in Re B (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2008] UKHL 35 who, in so doing, disapproved a growing trend towards considering a higher burden of proof for more serious allegations.
However, Lord Hoffman’s concurring judgment was misunderstood in some courts as imposing a requirement on the court to determine the actual perpetrator in all circumstances. It was this misunderstanding which led to the appeal in Re D (Children) [2009] EWCA Civ 472, following which Wall LJ explained that “judges … should not strain to identify the perpetrator of non-accidental injuries to children.”
This direction was therefore borne out of a series of clarifications as to the proper exercise to be undertaken by the court in uncertain perpetrator cases. In view of this context, King LJ concluded that, in future cases, the judges should no longer direct themselves on the necessity that they avoid strain in identifying a perpetrator. The test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. In circumstances where he or she cannot do so, then, in accordance with Re B, he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.
Summaries of the Law
The second issue that was considered was the utility of appending agreed summaries of the law to a judgment.
Attached to the judge’s trial judgment was a lengthy document which summarised the applicable law and which had been agreed by all the parties. The court acknowledged the use of such a document for a Circuit Judge with a busy list, however made the following observations:
In this instance, the judge made no further reference to the law, other than to incorporate the agreed document and thus it remained unclear how the law had been applied to these individual facts.
Conclusion
This case therefore provided important clarification on the proper approach to a fact-finding hearing when there is a pool of possible perpetrators. It also provided a helpful consideration of the ongoing value of the idea of “strain” and the utility of appending lengthy summaries of the law to judgments.
Sophie Shardlow
On 19th October 2022, the Supreme Court handed down its much-anticipated judgment in Guest and another v Guest. Here the court addressed the proper basis for awarding remedies in cases of proprietary estoppel.
Background
“One day my son, all this will be yours”. These words were spoken on numerous occasions and repeated over the years from a father to his son. The son relied on this promise of inheritance spending thirty-two years working and living on the family farm, expecting, one day, to inherit the farm from his father. However, the relationship broke down to such an extent that not only do they now find it impossible to work together but they cannot live within close proximity of one another. The son had no alternative but to leave, find alternative work and rent accommodation for himself and his family elsewhere. Meanwhile, the father cut his son out of his will.
The facts of Guest and another v Guest differ somewhat from the typical example of this kind of case in that the father has two sons as well as a daughter. Therefore, it was not the whole of the farm that was promised but only a sufficient (but undefined) part to enable him to operate a viable farming business on it after the death of his parents.
The trial judge concluded that, until the falling out in 2014, the son was consistently led to believe that he would succeed to the farming business and inherit a substantial share of the farm. As to the remedy, the judge described his task as being to exercise a ‘broad judgemental discretion in an endeavour to do what is necessary to avoid an unconscionable result or, alternatively, to identify the minimum equity to do justice.’ The appropriate ‘clean break’ remedy was deemed to be an immediate lump sum payment to the son comprising:
The amount payable to the son was £1.3 million. Permission to appeal was granted only on the question of the remedy. The parents argued that the judge was wrong to fashion a remedy based on the son’s expectation of inheritance and should instead have awarded compensation based either on the extent to which the value of the farm had increased as a result of the son’s contribution or his loss of opportunity to work elsewhere.
Principles of proprietary estoppel
Underpinning this remedy is the principle that equity will not let A resile on a promise made without ensuring that B does not suffer detriment because of B’s reliance on it. The aim is thus to prevent detriment to B in the circumstances that have arisen. The estoppel is premised on the doctrine that equity is concerned to prevent unconscionable conduct, and it is that factor which determines whether an award should be made.
As the judgment of the Supreme Court sets out, there are two methods of achieving this aim. The first is to compel A to perform the promise (or award a sum of money calculated to put B into as good a position, as best money can do it, as if A’s promise had been performed). The other is to award a sum of money calculated to put B into as good a position, as best money can do it, as if B has not relied on A’s promise: in other words, to compensate B’s reliance loss. Since both methods will in principle achieve the aim of preventing detriment to B, if on the facts both are practicable the court should adopt whichever method results in the minimum award necessary to achieve that aim.
Or as Lord Briggs put it: ‘the issue which has divided academic opinion is as to the purpose of the equitable remedy. Is it to give effect to B’s expectation, so that B receives what he’s been promised? Or is it to compensate B for the detriment suffered in reliance on it, or is there some different purpose?’
The Court of Appeal
The appeal was heard on three grounds: 1. That the judge was wrong to hold that the appropriate approach to relief was to base the remedy on the son’s subjective expectations; the judge should have gone no further when granting relief than was necessary to avoid an unconscionable result and/or considered what the parents must, in all the circumstances, be taken to have intended in order to avoid and unconscionable result; 2. The relief granted went beyond what was necessary to avoid an unconscionable result, or, in so far as different, the minimum equity to do justice; 3. In so far as any equity is ‘anticipatory’, such that in the current circumstances it would be unconscionable for the parents not to make provision for the son, such equity can be satisfied by the making of a declaration or by the grant of injunctive relief.
The Court of Appeal applied the methodology used in Davies v Davies [2016] EWCA Civ 463. In this case, Lewison LJ suggested that ‘a useful working hypothesis’ was to apply ‘a sliding scale by which the clearer the expectation, the greater the detriment and the longer the passage of time during which the expectation was reasonably held, the greater would be the weight that should be given to the expectation.’ The Court of Appeal found that, although the assurances given to the son were given in broad, descriptive terms, there was no uncertainty of a kind that would assist the appellant parents.
The Supreme Court
The parents further appealed to the Supreme Court. Their argument was that the amount the son was to receive under the order was more than the amount of the detriment suffered and more than the net value of the contribution he made to the farming in excess of what he was paid.
In Jennings v Rice [2002] EWCA Civ 159, Lord Justice Walker put it this way: ‘The essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result, and a disproportionate remedy cannot be the right way of going about that.’ There is no equitable power to give B more than A promised.
In giving the son 40% of the value of the farm now, the trial judge accelerated the date upon which the parent’s promise was to be enforced, as they may have many years to live. There should have been a discount for early receipt. As a clean break had already been achieved, it would not have been unconscionable to place the farm on trust. Thus, the parents should be entitled to choose between two forms of relief: the first being a clean break, as set out by the trial judge, but discounted for early receipt. The second being a reversionary interest under a trust of the farm, with the parents having a life interest in the meantime.
Comment
In this case, given the fact that both parents were still alive, an allowance should have been made for acceleration. For example, if the parents were to fall ill or require care services later in life, the promise made to the son would have precluded them from using some of their assets to pay for this. In re-assessing the detriment suffered by the son, the court chose to estimate his reliance loss. The objective was to place the son, so far as money can do it, in as good a position as if he had not built his career on the promises made by his father. Given the typically high capital values of farmland, it was likely the land would be worth far more than any value of detriment in this case. The parties both sought a clean break, and the son was awarded £610,000 as equitable compensation.
The judgment in Guest and another v Guest illustrates the importance of checking, prior to granting a remedy, that the remedy will not be out of proportion to the value of the detriment suffered by the claimant.
Adam Jones
FACTS
Sharon Horohoe (W) and Ciaran Horohoe (H) married in 1994 but in 2010 decided to go their separate ways. They had accrued a number of sizeable assets over the past two decades and in 2012 they negotiated an agreement, with the help of a family friend, as to how their assets were to be divided.
This agreement involved W receiving the former matrimonial home and a number of rental properties, whilst H would receive the remaining rental properties and two companies through which he operated as a carpenter and property developer. At the time, the parties believed that the companies held no monetary value, though did not get any valuations.
The agreement was drawn up into a document. W did take this document to a solicitor who advised her not to enter into the agreement without proper valuations, however she chose not to proceed with the agreement in any event.
Over the next few years the properties were transferred, with W receiving properties with a total value of circa £1.82 million, and H £1.14 million.
In 2019 W petitioned for divorce and made an application for financial remedies pursuant to the Matrimonial Causes Act 1973. She claimed that the agreement reached between the parties some 7 years earlier was neither fair nor binding, particularly given that the total pot was now worth over £10 million. H’s companies had expanded considerably since the negotiations and W now sought a further £5 million capital contribution from him. W also claimed that H had ‘cheated’ her at the time of separation and provided erroneous valuations for his company.
W made play on the fact that the document containing the agreement reached in 2012 included the following terms;
‘This proposal has been prepared following meetings with both parties independently and is of course, still open for further discussion amongst the parties pending final agreement’.
W’s argument was that these words negated the possibility that the document could possibly record a final agreement.
DECISION
Holman J found that a binding agreement had been reached between the parties;
‘I am quite satisfied that the agreement was freely entered into by both parties. They were both of full and mature age, and full capacity, and of similar and good intelligence. As I have already commented, of the two, the wife was more numerate. Neither was in a dominant position, and neither exploited their position to gain an unfair or unreasonable advantage over the other’ [91].
As to the wording of the document drawn up in 2012, Holman J agreed that at the time that the agreement was written, either party could have initiated further discussion and if they had done so, that very document would not have contained a final agreement. However, neither party did so, and in fact both parties began implementing the terms of the agreement over the following years. Holman J did not consider it necessary to date when the agreement became final, save to say that it happened prior to W’s financial remedy application.
Despite holding that there was indeed a valid concluded agreement between the parties, different considerations applied to the treatment within the agreement of H’s company and its assets.
H’s contention in 2012 that the company was essentially worthless was incorrect. It was concluded that at the time of separation, the value of the company was in fact at least £1.5 million, of which W ought to have received a half share.
However, Holman J did not agree with W’s contention that H had ‘cheated’ her when he expressed that there was no value to the company in 2012. Instead, he concluded that H was genuinely mistaken as to the company’s true value. Given the fact that W had no real involvement in the company for several years at the point of separation, Holman J found that she was justified in trusting H’s belief in the company value, and therefore W had not failed in respect of not getting a proper valuation.
Holman J did note that at the time of the agreement, the company’s value was volatile and unpredictable, and this played a part in W receiving a greater share of the property. He therefore considered a fair share of the business at that point to W to be £600,000.
Although the rest of the agreement was to stand, for the reasons given above, H was ordered to pay W a further lump sum of £600,000 to remedy any unfairness she faced as a result of the mistaken valuation.
Lessons Learnt
The case acts as a caution to parties who attempt to reach agreements without fully exploring the worth of the assets involved. Had W undertaken a proper analysis of the company’s value at the time, she would have ended up with a greater share of the pot, and would not have been engaged in lengthy litigation years later. It also serves as a reminder of the court’s willingness to uphold agreements reached between parties, even if the court may have come to a different conclusion had they been the decision makers at the time.
Sophie Cole
On the 21st July 2022 Sections 65 and 66 were introduced into the Domestic Abuse Act 2021 and apply to the family and civil courts in England and Wales. The effect of these provisions is to prohibit perpetrators and alleged perpetrators of abuse from cross-examining their victims in person and vice versa in specified circumstances.
The provisions are not retroactive, and as such shall only apply to proceedings which are brought on or after the 21st July 2022. In instances where cross-examination is required, the court may appoint a qualified legal representative who shall conduct the cross-examination instead of the prohibited party. Qualified legal representatives can include barristers, solicitors and CILEX practitioners.
It is widely acknowledged that cross-examination by a perpetrator can potentially diminish the quality of the evidence that a victim gives in court. Furthermore, it can also be a method of perpetuating forms of abuse against a victim, which in turn can cause them further trauma and distress. It is anticipated that the implementation of these measures shall help to protect vulnerable victims whilst they give evidence in court whilst also ensuring that their Article 6 rights are not compromised.
Hannah Scott
Mr Justice Peel and His Honour Judge Hess, with the authority of the President of the Family Vision, have published an amended document titled “Overall Structure of the Financial Remedies Court and the Role and Function of the Lead Judge”. The document represents one of the constitutional documents of the Financial Remedies Court.
The amendments are new paras 12(iii) and (iv) which appear between 12 (ii) and old 12(iii). They provide: first, for prospective new FRC judges to receive such training and sitting in as may be required by the National Lead Judge of the Financial Remedies Court and the Judicial College; second, that once authorised to sit in a FRC zone, a new FRC judge shall be entitled to hear financial remedies cases in any other FRC zone; and third, that a fee paid judge authorised to sit in the FRC shall be entitled to carry that authorisation over into a full time judicial appointment.
The amendments have been carried out to clarify training requirements and the scope of FRC authorisation.
For the document “Overall Structure of the Financial Remedies Court and the Role and Function of the Lead Judge”, click here.
Supreme Court remits care proceedings for re-hearing following proportionality failings
H-W (Children) No 2 [2022] UKSC 17
On 15 June 2022, the Supreme Court gave judgment in an appeal concerning ‘the proportionality of care orders made in relation to three children and appellate review of those orders.’ Dame Siobhan Keegan gives the judgment, with which all the other members of the Court agree.
Facts
The Mother (first appellant) has 6 children, including C (aged 14), D (aged 11), E (aged 9) and F. The second appellant was the mother’s partner, who is also F’s father. This case had a long history of Local Authority involvement, primarily due to the mother suffering from domestic abuse in the past and concerns of neglect. Proceedings were issued with the Local Authority seeking to take C, D and E into its care, placing them into separate foster homes and for F to be adopted. The catalyst for proceedings was domestic abuse concerns, perpetrated by the children’s older brother, A, who is described in the judgment as a ‘troubled young man.’
The Local Authority’s application for an Emergency Protection Order to remove C, D and E was refused and a non-molestation order was made against A, preventing him from entering the family home. It was expected that the Mother would ensure A did not enter the family home or be unsupervised around the children.
First instance decision
The Judge at first instance made findings that E had been sexually assaulted by A, but that this was not reported to social services until a few days later. Therefore, it was found that the appellants failed to protect the children and delayed reporting the assault. Care orders were made in respect of C, D and E on 26 July 2021 after a six day hearing and the decision regarding F was postponed. These proceedings included evidence from 10 witnesses, including the guardian who noted that the Mother had a “blind spot in respect of A”.
Court of Appeal
The first instance decision was upheld on 7 October 2021 by a majority (Peter Jackson LJ dissenting).
“The tension between the majority and the minority in the Court of Appeal emerges from the foregoing passages. Jackson LJ raises the adequacy of the proportionality review actually undertaken by the judge and questions whether or not all options were fully considered. The majority, whilst respecting this view, have focussed on their view of the limits of the appellate review and the deference to be afforded to the judge who heard and saw the witnesses and had conduct of the case for some time.” [31]
“Both of these perspectives are understandable in family law terms and of course raise issues as to the correct approach to be taken on appeal. All of the appeal judges refer to the profound effects of decisions taken to remove a child into public care. In this case three children who have never been outside parental care may be removed and one very young child may face adoption. Hence, it is imperative to scrutinise with care the decision made in relation to their future” [32]
Supreme Court
Grounds of appeal
“In outlining the contours of these appeals it is important to state that the appellants do not seek to challenge the primary factual findings made by the judge. They do not argue that his assessment of the risk of harm to the children in their mother’s care was wrong. Rather, they say that the judge erred in failing to consider the proportionality of the orders he made by balancing the risk of harm to the children in the care of their mother with the harm the children would suffer should they be removed from her care and from each other, to separate placements with limited contact with their family and against their clear wish to stay at home.” [6]
The Supreme Court unanimously allowed the appeal and remitted the case for a re-hearing.
Reasoning
The Court found that the first instance Judge had erred in law by failing to make a proper assessment in reaching his decision.
“The judge’s treatment of the facts and the evidence was thorough. He undoubtedly directed himself that his orders were required to be proportionate. However that is not the end of the matter. The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be reduced for each child. Nor is there any comparison of the harm which might befall the children if left at home with the harm which would be occasioned to them if removed, and separated not only from the parents but from each other.” [60]
“It follows that the decision was insufficiently founded on the necessary analysis and comparative weighing of the options. In the absence of the evaluative analysis which is required this appellate court cannot determine whether the orders made were proportionate and necessary. That being so, it was premature to ask, as Lewison LJ did, whether the order was one which he could say was right or wrong.” [61]
Pietra Asprou
The Marriage and Civil Partnership (Minimum Age) Act 2022 has received Royal Assent, increasing the minimum age of marriage and civil partnerships in England and Wales from 16 to 18 years. The Act makes these changes by amending the Marriage Act 1949 and Civil Partnership Act 2004.
Prior this Act, individuals aged 16 or 17 could enter into a marriage or civil partnership with parental or judicial consent. The new Act raises the age with the aim of combatting child marriage – statistics reveal that in 2018, 147 individuals aged 16 or 17 were married in England and Wales, however this only includes registered ceremonies.
The amendment is in accordance with the UN Committee on the Rights of the Child’s recommendation that no one should be able to marry before they reach the age of 18, even with parental consent. Additionally, the UN Sustainable Development Goals require all countries to “eliminate all harmful practices, such as child, early and forced marriage and female genital mutilations by 2030.”
Further, the Act makes it an offence if a person:
‘carries out any conduct for the purpose of causing a child to enter into a marriage before the child’s eighteenth birthday (whether or not the conduct amounts to violence, threats, any other form of coercion or deception, and whether or not it is carried out in England and Wales)’
The Bill can be viewed here.
Summary
In a bid to clarify any prior misunderstandings, the Court of Appeal has provided guidance as to when fact-finding hearings in private family law proceedings are required when allegations of domestic abuse are raised. The case of K and K [2022] EWCA Civ 468, which was handed down on the 8th April 2022, highlights that the court is not obliged to hold a fact-finding hearing in every case where domestic abuse is alleged. The decision, which follows on from the seminal case of Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, instead makes it clear that the court ought only to embark on a fact-finding hearing if “the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”[para 8]. Moreover, the court has also sought to emphasise in its judgment “the importance of the requirement in rule 3.3(1) for the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate”[para 34].
Facts
The father and mother married in 2005 and later separated in August 2017, during which time they had three children together. The father was having regular unsupervised contact with the children until disagreements occurred between the parents. This prompted the father to make an urgent C100 application which complained of parental alienation and sought to formalise weekend and holiday contact with his children. The urgent nature of the application was due to the fact that Christmas was approaching thus enabling him to successfully by-pass the MIAM. The mother subsequently filed a C1A form alleging minor allegations against the father, but which did not object to his unsupervised contact with the children. A safeguarding letter produced by CAFCASS prior to the FHDRA later raised allegations of rape and the court was invited to conduct a fact-finding hearing. Save for two issues, the judge found each of the allegations proven against the father, and the father subsequently appealed. The father submitted that the judge had not considered parental alienation and that the factual findings failed to “take into account the bigger picture.”[para 2]
Non-court dispute resolution
The court notably referred to it as “unfortunate”[para 6] that the parties did not attend a MIAM and that had they done so the “issues between the father and mother that concerned the logistics of the father’s contact might have been speedily resolved before the inevitable trauma caused to the family by the fact-finding process”[para 6]. The court went further to state that “the father ought to have been required to engage with the MIAM process”[para 35] which is a requirement pursuant to Section 10 of the Children and Families Act 2014. Furthermore, in relation to the FHDRA, the court highlighted how its “essential purpose is as an opportunity for judicially led dispute resolution” [para 37] and emphasised the importance of “proper consideration being given to the possibility of non-court dispute resolution at the FHDRA”[para 40]. The reasoning of the court reflects the importance of engaging in non-court dispute resolution and how the “trauma”[para 6] of the fact-finding process in this case may have been avoided had the parties endeavoured to reach an early settlement on the issues.
Fact-finding hearings
The court echoed the decision laid out in Re H-N by highlighting that the judge ordering a fact-finding hearing should identify “at an early stage the real issue in the case in particular with regard to the welfare of the child”[para 8]. The court reinforced this point by referencing FPR PD12J in its judgment which provides that “[t]he court must ascertain at the earliest opportunity … whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child.”[para 8]=
Furthermore, the court helped to clarify the position by stating that the main things a court should consider when deciding whether to order a fact-finding hearing are:
“(a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order,
(b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child,
(c) whether fact-finding is necessary or whether other evidence suffices, and
(d) whether fact-finding is proportionate.”[para 66]
Outcome
The court held that the appeal ought to be allowed and the case is to be remitted to a Circuit Judge to decide on whether a fresh fact-finding hearing is required in light of the principles laid out in Re H-N and this judgment. The court based its decision on inter alia the failure to engage in non-court dispute resolution and a lack of focus afforded to the children’s welfare when deciding both to undertake a fact-finding hearing and whilst considering the allegations.
To conclude, this guidance ought to be welcomed as an attempt to clarify the position relating to fact-finding hearings when domestic abuse is alleged. It also serves as a strong reminder that attempts to engage in non-court dispute resolution and focussing on a child’s welfare are of paramount importance in the context of private family law proceedings.
The full judgment can be found here.
Hannah Scott
Sir Andrew McFarlane, President of the Family Division, has issued new guidance for judges and magistrates in respect of fact-finding hearings in Private law children proceedings. The guidance stresses the importance of determining allegations of domestic abuse only in circumstances where these are relevant to and necessary for the Court’s decision regarding the welfare of the child.
The end of the “blame game” for divorce proceedings?
On 6 April 2022, the Divorce, Dissolution and Separation Act 2020, which reforms the divorce process to remove the concept of fault, came into force. The implementation of this Act was long-awaited and will now introduce no-fault divorces to England and Wales.
This piece of legislation:
These developments will apply to the dissolution of civil partnerships too.
The benefit of this piece of legislation is that it will end the need for couples who decide to separate to apportion blame for the breakdown of their relationship and move towards what is now known as a “no-fault” divorce.
Previously, divorce law required one party to show unreasonable behaviour, adultery, or desertion. If none of these reasons could be proved, the separating couple would face years of living apart before they could be granted a divorce. At the time, it did not matter whether the couple had made the mutual decision to separate.
The update to the law now means that one spouse, or the couple jointly, can apply for a divorce by simply stating that their marriage has broken down irretrievably.
This development will be particularly beneficial to victims of domestic abuse, who have previously faced being trapped in their abusive relationship by their partners who have been able to contest the divorce.
The divorce applications can be made online, which avoids the postal delays.
The Act also introduces a new minimum timeframe of 20 weeks between the start of proceedings and when individuals may apply for a conditional order of divorce. This allows a period of reflection, or alternatively a period of getting other affairs in order (children, finances, and property), before the decision is finalised.
After six weeks has elapsed from the date of the conditional order, an application can be made for a divorce or dissolution final order, unless the parties are in the process of resolving financial matters.
Rachel Norgate
Please refer to the below Practice Message, dated March 2022, from Her Honour Judge Gordon-Saker, Lead Judge of the FRC for NES BCH.
Practice Message from the NES BCH Financial Remedies Court March 2022
The President of the Family Division has issued guidance regarding liaison between courts in England and Wales and British Embassies and High Commissions abroad.
Please find a link to download the guidance here. This replaces the previous version dated April 2016.
On 20 January 2022, the Family Division of the High Court (Cobb J) gave judgment following a five-day fact-finding hearing. In these Children Act proceedings, both parties made cross-allegations of domestic abuse. The proceedings were remitted by the Court of Appeal to the High Court following the conjoined appeals in Re H-N [2021] EWCA Civ 448, where this case was known as B-B.
Facts
The parties began their relationship in August 2015 and have one child, Jane. The mother said in her witness statement that this was her first serious relationship and that she had ‘no real understanding of what it was like to be in a relationship, what to expect from a partner and what was normal’. The Parties separated in May/June 2017 and the evidence of both parties reveals they had a volatile relationship from the outset.
Jane lived with her mother and did not see her father for large periods of time. Both parties issued Children Act proceedings in July 2018 and directions were made for a fact-finding hearing in respect of the parties cross-allegations. Between July 2018 and August 2019, the matter was listed for trial and adjourned on approximately five occasions.
This was the seventh time this case had been listed for a fact-finding, following judicial unavailability, legal aid difficulties and additional allegations made by the mother.
The Allegations
“18. The mother alleges that during the relationship the father abused alcohol, cannabis, and cocaine and that, on one or more than one occasion, he forced her to take cocaine; that he controlled her financially, relying on her income to support him; that he was repeatedly verbally, physically and sexually abusive towards her; that he was controlling in a number of ways, that he wanted to know where she was at all times and that he was unsupportive, unfaithful (conducting relationships with other women) and in many respects irresponsible.
Judgment
At the start of his judgment (para 7), Cobb J emphasised the importance of ‘strict adherence to orders’ and ‘efficient management of family hearings’, following what he termed ‘casual adherence’ to the court-ordered directions by the solicitors for the mother. Cobb J referred to the paragraphs 43-47 of the President of the Family Division’s ‘Road Ahead’ guidance, which were reprised in Re H-N at paragraphs 56-57.
It was also noted:
“13. Fact-finding in cases concerning alleged domestic abuse are almost always time-consuming and challenging for judges and magistrates; the responsibility placed on the lay and/or professional judiciary to conduct a fair, thorough and above all a considerate and respectful hearing is indeed “weighty”, particularly where the factual issues are often complex, emotions are invariably raw, and the stakes are so high. The exercise in which I have been engaged, as many judges up and down the country daily are involved, is “neither an easy task nor a precise science”. It is right that these challenges are fully recognised by those who have a responsibility for resourcing the family justice system. I recognise that I have been afforded the indulgence of time (five days) to hear this case, and have been fortunate that both parties have been ably represented. I am more than conscious that many judges, coping with extensive and difficult lists, have much less time for these hearings, and must manage the challenges which arise in dealing with unrepresented parties. For all these reasons I wish to emphasise the imperative for judicial continuity in cases of domestic abuse.”
Approach to fact findings
In paragraph 6 of his judgment, Cobb J states that the hearing and preparation of his judgment highlighted the following [emphasis added]:
“i) The benefit of considering the evidence relevant to each different form of alleged domestic abuse in ‘clusters’: thus, it was useful to ‘cluster’ the evidence which went to the issue of alleged physical abuse; separately I considered the evidence of the allegations relevant to sexual abuse, separately emotional abuse, separately financial abuse and so on. Inevitably, the evidence relevant to each form of abuse overlapped in places, but in looking at the evidence by reference to the different forms of alleged abuse, a picture was built up of the nature of the relationship under scrutiny, and it was easier to see whether patterns of behaviour emerged. This may not have been so apparent had the matters been looked at by reference to individual / free-standing items on a Scott Schedule. I accept the Court of Appeal’s view that it is the cumulative effect of individual incidents within each of those clusters of abuse-type, and of each type of abuse on the other, which give the clearest indication of the experience of abuse;
iii) The need for flexible arrangements to ensure that participation directions (rule 3AA FPR 2010) truly meet the needs of the parties and the case; the increased use of ‘hybrid’ hearings over the last 18 months (for all types of hearing in the family court) provides a useful template which worked well in this case;
vii) That an abusive relationship is invariably a complex one in which the abused partner often becomes caught up in the whorl of abuse, losing objective sense of what was/is acceptable and unacceptable in a relationship. Like many abused partners, the mother in this case became immunised to the emotional volatility of the damaging relationship which she saw as normal and acceptable; like many abused partners, she clung to what she knew.”
General principles of law (paras 24-30)
Cobb J provided a summary of the general principles of law surrounding allegations of domestic abuse in paragraph 26 of his judgment [emphasis added]:
“i) The burden of proof lies, throughout, with the person making the allegation. In this case, both the mother and the father make allegations (in some respects overlapping) against each other on which they seek adjudications.
iii) It is not for either parent to prove a negative; there is no ‘pseudo-burden’ on either to establish the probability of explanations for matters which raise suspicion;
vii) Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation; it is for the party seeking to prove the allegation to “adduce proper evidence of what it seeks to prove”;
viii) The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence. I must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the person making the allegation has been made out to the appropriate standard of proof;
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”
“The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established” ([62] Re R).
A point which I myself considered in F v M [2019] EWHC 3177, in a judgment which was referenced with approval in Re H-N (see §69/70).
xii) At all times, I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010.”
Evidence
The court found the mother to have been ‘naïve, unworldly, and in the circumstances a vulnerable young woman’. Cobb J noted that when giving evidence, the mother was ‘very confused over the dates, and the sequence, of certain events’. Cobb J did not share the view of the father that this was because the mother was lying but believed this could be attributed to genuine confusion, ‘possibly because of the passage of time since the events occurred, and possibly because of the intense emotional and possibly psychological turmoil associated with them’.
“38. Although her distress was and is almost certainly rooted for the main part in the fact that she has been required in this fact-finding hearing to relive her experiences in her relationship with the father, its breakdown and its aftermath, her distress was not in my finding all attributable to the father. I am satisfied that she was truly intimidated by the family court process, and in all likelihood carried with her considerable distress from her earlier experience of a family court hearing (August 2019) in which the judge threatened the removal of her child, and whose utterances essentially founded her successful appeal to the Court of Appeal”
Nonetheless, Cobb J did not accept the mother’s evidence in entirety, for example he found that the mother minimised her use of drugs and alcohol. However, he stated:
“43. Having indicated in the previous four paragraphs the features of the mother’s evidence which I have found less than satisfactory, I confirm that it is not of course at all uncommon for witnesses to tell lies, and I know that I must look at each aspect of the evidence carefully; lies told on some but not all issues should not cause the rejection of their entire testimony (see what I said above at §26(x)). I find that the mother’s minimisation of her drinking and drug-taking was probably caused by embarrassment. It may be that she realised the hypocrisy of criticising her own mother for excess drinking. Further, it seems likely that she thought that it would serve materially to discredit her in the eyes of the court; perhaps she did not wish to acknowledge that conduct to her own family who she knew were to take part in this hearing. I find that other aspects of her false testimony were motivated by a wish to demonise the father before the court, to bolster her case.”
The court found the father to be ‘an articulate and ostensibly self-disciplined man, whose evidence was polished and clear.‘
“51. During his evidence, he was anxious to score forensic points about the mother’s lack of credibility, and I was increasingly convinced that he did so in part to distract the court from assessing his own evidence and his account of himself. While the ‘defence’ of asserting and maintaining bald denials to matters raised against him is not always easy, I found him to be unconvincing in this exercise. Moreover, he showed minimal empathy in his evidence, for the mother who, on any view, was obviously very distressed; he was brazenly self-justificatory in his explanations of his own behaviour. He showed little insight or contrition in relation to the incidents which had led to the disciplinary process in his prior employment which I consider below.”
Findings
The mother’s allegations
The mother invited the court to consider the father’s disciplinary history at work as probative evidence of the allegations, however the court declined to find this evidence as determinative of the issues in the case. Although it was noted that they ‘lend support for the contention that the father is a man who has a history of inappropriate attitudes towards vulnerable females, and of crossing personal boundaries with such vulnerable people.’
The court considered the mother’s allegations under five subject headings: emotional control/coercion, physical abuse, infidelity, financial control, and sexual abuse.
Emotional control/coercion
“66. I am satisfied on the evidence that the father did indeed repeatedly allege that the mother suffered from bipolar disorder; I further and significantly find that there was no clear medical evidence that she did suffer such a condition…I find that the father made this purported diagnosis in an attempt to characterise her to third parties as mentally unstable and/or unreliable; I find that it was immensely disparaging and undermining of the mother, damaging to the mother’s self-confidence and self-esteem, and caused her to doubt her own mental health (“he made me believe that I was mentally unwell …Dr. Proudman’s use of the term ‘gaslighting’ in the hearing to describe this conduct was in my judgment apposite; the father’s conduct represented a form of insidious abuse designed to cause the mother to question her own mental well-being, indeed her sanity.”
Physical abuse
There was insufficient material to make findings of physical abuse, although the father was found to have taken advantage of the mother’s vulnerability and manipulated the events when she was intoxicated at a barbecue.
Infidelity
The mother alleged that the father had degraded her by being unfaithful. Although this was not proved, Cobb J stated that the father had ‘a chauvinistic attitude to the mother and to their relationship’ which he found ‘underpinned much of his attitude, and his lack of sensitivity, towards her.’
Further it was found,
“72. It seems likely, on the evidence that I have seen and heard, that the father had sexual relations with the mother in 2018 after he had commenced a relationship with a woman who is now his fiancée; this was at a time when the mother was still craving a resumption in her relationship with the father (and she had no relationship with anyone else). I find that the father knew that the mother wished to rekindle the relationship, and by having sexual intercourse with her at this time he wrongly led her to believe that he still had feelings for her. This also illustrates the father’s lack of moral code and his capacity to prey on those who he sees as vulnerable.”
Financial control
“76. I am satisfied that the father was thoughtless and uncaring about taking money from the mother but am not satisfied that he abused her financially to the extent that she claims. However, I do note that during a period in which the father was making no financial contribution for the upbringing of Jane and indeed was in arrears, he made at least two trips to Uganda, ostensibly for family events. Contemporaneous social media messaging suggests that the father was planning to enjoy, while in Uganda, “a few weeks of absolute degeneracy… breaking the laws of decency one party at a time…”. Though he claims that his family funded the trips, this provides a very strong clue about the father’s financial irresponsibility, his lack of empathy for the mother, and his general absence of moral integrity.”
Sexual abuse
“82. Although the mother’s account of sexual abuse is in some respects lacking in detail, is in some respects inconsistent with what she told the police, and is plainly inaccurate on dates, I am satisfied on the evidence which I have received that:
iii) The father at times expected the mother to give him oral sex; materially, he told me that he knew that she did not enjoy this experience, but he regarded it as a ‘treat’ for himself;
The Father’s allegations
The father’s allegations involved verbal abuse, physical abuse and controlling behaviour of the mother, in particular that the mother used contact as a form as control.
“84. Verbal abuse: It is of note that the mother does not deny that she has at times been verbally abusive to the father during arguments, but asserts that she was only ever acting in a retaliatory way; she accepted that she had shouted at him so as “to defend myself”. I am not persuaded that the mother ‘abused’ the father verbally any more than he ‘abused’ her in this regard. Both parents were verbally abusive to each other at times, and it would be wrong for me to ascribe blame to one rather than another.
“93. Control: The father complained that the mother would constantly monitor his whereabouts and be demanding of him; I have seen the phone records which shows that she often tried repeatedly to phone him while he was at work; she texted him often in increasing state of agitation requiring his attention. The mother was forced to accept this, and further accepted that on occasion she threatened to harm herself; she described this as a Cri de Coeur. I find that the mother did indeed become paranoid about the relationship. She was desperate to cling onto the relationship, albeit that it was – as she now sees in hindsight – a thoroughly dysfunctional and unhealthy one.”
Conclusions
The court was clear that each incident alleged was treated as a part of a wider pattern of alleged domestic abuse:
“94. I have been careful to consider the evidence relevant to each specific incident to which my attention was brought; but I have treated the incidents not as ‘free-standing’ events but as part of a wider pattern of alleged abuse or controlling or coercive behaviour. In this judgment, I have not sought to deal with every argument or detail of the case; it has not been possible to do so. I proceed, as the Court of Appeal contemplated I should, on the basis that the court should consider whether a pattern of coercive and/or controlling behaviour can be demonstrated on the evidence, and have not merely focused on any singular particular factual incident (see Re H-N §31).”
Cobb J concluded that the evidence clearly revealed a ‘power imbalance’ in their relationship and that the father was manipulative of the mother, which tapped into her vulnerability, causing her severe anxiety, depression and trauma.
Further, Cobb J noted that in light of his findings, he must consider the impact the abuse has had on the mother and Jane. Following this, the court should then determine what orders should be made for the protection and welfare of the mother and Jane, keeping in mind paragraph 4 of PD12J.
Pietra Asprou
Lord Wolfson QC (Parliamentary Under-Secretary of State for Justice) has confirmed his approval of amendments to existing Practice Directions supplementing the Family Procedure Rules 2010, made by the President of the Family Division under powers delegated to him by the Lord Chief Justice. Full details of these amendments can be found in the Practice Direction Update Document here.
The Practice Direction Update Document amends various Practice Directions and inserts one new Pilot Practice Direction as detailed below:
a. Divorce, Dissolution and Separation Act (DDSA 2020) consequential amendments:
i. Practice Direction 2C – amended terminology to Practice Direction 2C which are consequential to the introduction of the new Part 7 of the Rules.
ii. Practice Direction 5A – updated amendments to Practice Direction 5A in reference to amended/new application forms as part of the work to implement the DDSA.
iii. Practice Direction 6A – amendments to Practice Direction 6A to provide further information on email service to support the amended Part 6 of the Rules.
iv. Practice Direction 7A – amendments to Practice Direction 7A to provide more information to support Part 7 of the Rules.
v. Practice Direction 2A, 6C, 7B, 7C and 9A – updated terminology amendments.
b. Practice Direction 36M. This Practice Direction underpins HMCTS’s system to enable family public law applications (for example for care orders) to be made and progressed online. This Update amends PD36M to mandate use by Local Authorities in the remaining family court locations (of which there are two) from 28 February 2022, as agreed by the senior judiciary. It also extends the pilot until 31 October 2022.
c. Practice Direction 36V. This pilot Practice Direction modifies existing rules and Practice Directions to reflect the existence of the mediation voucher scheme and amends the pilot expiration date to 30 September 2022.
d. Practice Direction 36W. This pilot Practice Direction makes provision for email notifications of forced marriage protection orders and female genital mutilation protection orders to be sent by the court to a centralised police email address once the order has been sealed. The Update will extend PD36W until 1 October 2022.
e. Practice Direction 36Z. This Practice Direction provides the legal underpinning for the Private Law Reform Investigative Approach Pilots. This update amends a few minor errors and omissions from the pilot Practice Direction introduced in PD Update No. 1 of 2022.
f. New Pilot Practice Direction 36ZA. This Pilot Practice Direction underpins a pilot that has been established with the North Yorkshire police to test an improved process for notification of non-molestation orders and occupation orders with powers of arrest attached.
Please see the message from Mr Justice Mostyn, regarding amendments to the standard orders, reproduced from the Courts and Tribunals Judiciary website below:
I make this announcement with the authority of the President.
On 6 April 2022 the Divorce Dissolution and Separation Act 2020 comes into force. Among many other things, this makes changes to the terminology used in divorce, dissolution, nullity and separation proceedings so that, for example, a petition is replaced by an application, a decree nisi by a conditional divorce order and a decree absolute by a final divorce order.
This has necessitated changes to be made to Orders Nos 1.1, 1.2 and 2.1.
Amended versions of these orders are attached to this notice. They take effect on 6 April 2022. Also attached is a zip file of Volume 1 of the standard orders in their up-to-date form.
The revised orders assume that the case in question is either one of divorce or dissolution of a civil partnership. Thus, they refer to “the final [divorce] / [dissolution] order” and “the conditional [divorce] / [dissolution] order”. If the case is one of nullity those references should be altered to “the final nullity order” and “the conditional nullity order”. If the case is one of judicial separation the references should be altered to “the judicial separation order”. If the case is one of a separation order under section 56 Civil Partnership Act 2004 the references should be altered to “the separation order”.
All further amendments will await the full review of the standard orders, the work on which is now underway, the consultation period having concluded on 28 February 2022.
The amended orders may be downloaded from the Courts and Tribunals Judiciary website here.
On 18 February 2022 the President issued a Memorandum in respect of guidance on electronic bundles. A copy of this has been reproduced below.
Further information is available on the Courts and Tribunals Judiciary website, including links to the general guidance which was issued in November 2021 and the supplementary guidance which was issued in December 2021.
Summary
This case involves a long-running matrimonial dispute between former husband and wife. The background to the dispute can be found in the 2017 judgment here. Mr Justice Mostyn handed down judgment for this matter on 19 January 2021, and the headline events are set out at paragraphs 3 i) to xiv) of his judgment.
At the PTR on 21 December 2021, which was held remotely through Microsoft Teams, the wife sought permission to be assisted by a McKenzie friend. The Judge allowed this and allowed the McKenzie friend to address the court, as the wife was unable to attend herself due to suffering from mental illness.
This raised the question of whether the wife had lost the capacity to conduct the litigation as she was self-representing.
If the wife had lost the capacity to conduct the litigation, then, under the Family Procedure Rules (FPR), r.15.2, she was required to have a litigation friend to conduct the proceedings on her behalf and under FPR, r 15.3, the proceedings had to be stopped until the question had been determined, and, if capacity had been lost, the appointment of the litigation friend had to be made.
In this matter the key issues for determination were:
Legal framework
The McKenzie friend acting on the wife’s behalf detailed the wife suffering from severe stress, depression, sleep deprivation, trauma, panic attacks and potential self-harm. The wife had a consultation with a consultant psychiatrist, Dr Bell, to help the Court determine the above issues.
It became clear at the start of the hearing that there was nobody put forward to be a litigation friend on the wife’s behalf if she was deemed not to have capacity. This would mean the Official Solicitor would have had to have been instructed if necessary.
Section 2 and 3 of the Mental Capacity Act 2005 detail the test for incapacity:
2- People who lack capacity
3- Inability to make decisions
Furthermore, it is stated in Court of Protection Practice 2020 at 1.340, that the analytical process when determining a question of capacity is in three stages as follows:
In this case, the wife was presenting with mental illness which was preventing her from engaging in the proceedings.
In Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch) Norris J laid down at paragraph 36 the evidential requirements which should be met should a medical reason for an adjournment be advanced:
Dr Bell gave oral evidence and he concluded that the wife would have the capacity to make the relevant decisions if, and only if, she had the benefit of legal advice and representation. He did not think the wife would be capable of navigating the legal complexities of each scenario without it. He considered that by acting alone the wife would be disabled by her medical condition from being able to make the necessary decisions [paragraph 22].
The classic test for capacity to conduct litigation is found in the decision of the Court of Appeal in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511. At paragraph 75 Chadwick LJ held:
“…the test to be applied….is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a … litigation friend.”
Baroness Hale DPSC in Dunhill v Burgin [2014] UKSC 18, [2014] 1 WLR 933 at paragraph 17 stated:
“Equally, of course, those words [of Chadwick LJ at [75]] could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendant’s argument, the claimant’s capacity would depend on whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right.”
The capacity to conduct proceedings cannot depend on whether the party receives no legal advice or good or bad legal advice. A party capable of making necessary decisions with the benefit of legal advice have the capacity whether they benefit from the advice or not.
Decision and the future
All parties accepted that the criteria to adjourn on medical grounds were met [paragraph 39], and the Judge granted the adjournment on the basis that it would be singularly unfair and potentially traumatic and damaging to the wife’s core health status were the case to proceed on Thursday [paragraph 40].
The variation applications will be re-fixed on a date convenient to Counsel, and this adjournment should allow sufficient time for the wife’s new legal representatives to undertake their preparation for the next hearing.
The outcome in this matter demonstrates that the Court is required to keep the parties’ ability to participate fully in proceedings under constant review, particularly when they are not legally represented.
The full judgment can be found here.
Rachel Norgate
P v Q (Financial Remedies) [2022] EWFC B9
On 10th February 2022, the Central Family Court (HHJ Hess) gave judgment following a four day final hearing in financial remedies proceedings. The wife’s legal costs totalled £169,604 and the husband’s reached £87,775.
The judgment provides important guidance on the treatment of family loans, which according to HHJ Hess, “raise some questions of law which are not uncommon in financial remedies cases.”
FAMILY LOANS
“19. I now turn to an issue which has created a good deal of argument and ill feeling between the parties: the extent to which assets affected by the respective transactions between each party and members of their own family should be included on the asset schedule.
i……
ii….”
The husband’s loan
Initially, the wife asserted that the husband had given his sister £25,000 to which she was not entitled to and should be inserted back into the asset schedule. Following the husband’s evidence, the wife withdrew this assertion and HHJ Hess commented that this was the correct approach to take. The wife also contended that the husband took similar action in relation to his father and this was rejected by the court.
However, the wife also claimed that the husband’s mother in 2010 “generously advanced £150,000 to each of her three children to assist them with their respective housing costs”. No documents were created to establish the terms of this advance and no demand for repayment was ever made. No discussions were had about the circumstances in which repayment would or might be expected, although the husband’s sister had returned some of the money of a voluntary basis.
“In her written statement of 22nd December 2021 the husband’s mother wrote:-
“The agreement with all three of my children was that these were loans within the family, to facilitate their housing improvements, and on the understanding that this is my money that I choose to use to fulfil the needs of individual family members as they arise. The bottom line is that when I am no longer able to look after myself (I am now 76) they would repay the money in a reciprocal, supportive, manner.””
In oral evidence, the husband’s mother said that “she could not envisage any circumstances in which she would pursue the loan debts due from her children to a court by way of litigation and, if they remained unpaid, she would simply rearrange her will to reflect that any child who had not made any repayment had had the benefit of the unredeemed loan.”
The parties disputed over the status of the money advanced and in June 2020, without a request from his mother and without reference to the wife, the husband paid his mother £150,000 asserting it to be the repayment of the loan. The husband argued that this money had gone and should not appear on the asset schedule. The wife stated that the payment was “a cynical manipulative device to remove £150,000 from the asset schedule so that it did not have to be divided 50:50 with the wife on sharing principles.”
The wife’s loan
In October 2004, before the parties had met, the wife received €30,000 from her father to fund her MBA studies. There is a document which recorded the arrangement stating it was an “interest free loan” for which “a date for repayment has not been set.” The arrangement included the term that “as long as the father does not demand any extraordinary urgent repayment, the daughter will repay the loan back at her own discretion”. The wife did not make any repayment and the father never demanded one. The wife did not mention this potential liability in her Form E in December 2020 and it appeared for the first time as an issue in 12 January 2022, with the wife stating that “she had completely forgotten about this liability”. The wife said that she did not expect her father to pursue the debt, but she felt that he could, and she raised the issue in light of the points the husband asserted in relation to the transaction with his mother.
JUDGMENT
Gift or loan?
“19. [emphasis added]:
(viii) The first question is whether these advances should be regarded (in strict legal terms) as gifts or loans. As a matter of general principle, for an advance of money to be a gift there must be evidence of an intention to give – the animus donandi. In neither instance in this case has either party produced persuasive evidence of such intention in the respective advancing parent and I am inclined to accept what the husband’s mother told me and what is contained in the 2004 document. On the face of it, both these transactions are loans which could, in theory, be enforced.”
Hard or soft?
“19.
(ix) In the family court, however, that is not the end of the matter because the inclusion or exclusion of a technically enforceable debt in an asset schedule can depend on its softness/hardness. This is perhaps an elusive topic to nail down, but it falls for determination in the present case as in many others.”
In consideration of various authorities: M v B [1998] 1 FLR 53; W v W [2012] EWHC 2469; Hamilton v Hamilton [2013] EWCA Civ 13; B v B [2012] 2 FLR 22; Baines v Hedger [2008] EWHC 1587; and NR v AB [2016] EWHC 277, and an article by Alexander Chandler: taking the bank of mum and dad to court [2015] Fam Law 1505, HHJ Hess derived the following principles:
“19.
(x) (a) Once a judge has decided that a contractually binding obligation by a party to the marriage towards a third party exists, the court may properly wish to go on to consider whether the obligation is in the category of a hard obligation or loan, in which case it should appear on the judges’ computation table, or it is in the category of a soft obligation or loan, in which case the judge may decide as an exercise of discretion to leave it out of the computation table.
(b) There is not in the authorities any hard or fast test as to when an obligation or loan will fall into one category or another, and the cases reveal a wide variety of circumstances which cause a particular obligation or loan to fall on one side or other of the line.
(c) A common feature of these cases is that the analysis targets whether or not it is likely in reality that the obligation will be enforced.
(d) Features which have fallen for consideration to take the case on one side of the line or another include the following and I make it clear that this is not intended to be an exhaustive list.
(e) Factors which on their own or in combination point the judge towards the conclusion that an obligation is in the category of a hard obligation include (1) the fact that it is an obligation to a finance company; (2) that the terms of the obligation have the feel of a normal commercial arrangement; (3) that the obligation arises out of a written agreement; (4) that there is a written demand for payment, a threat of litigation or actual litigation or actual or consequent intervention in the financial remedies proceedings; (5) that there has not been a delay in enforcing the obligation; and (6) that the amount of money is such that it would be less likely for a creditor to be likely to waive the obligation either wholly or partly.
(f) Factors which may on their own or in combination point the judge towards the conclusion that an obligation is in the category of soft include: (1) it is an obligation to a friend or family member with whom the debtor remains on good terms and who is unlikely to want the debtor to suffer hardship; (2) the obligation arose informally and the terms of the obligation do not have the feel of a normal commercial arrangement; (3) there has been no written demand for payment despite the due date having passed; (4) there has been a delay in enforcing the obligation; or (5) the amount of money is such that it would be more likely for the creditor to be likely to waive the obligation either wholly or partly, albeit that the amount of money involved is not necessarily decisive, and there are examples in the authorities of large amounts of money being treated as being soft obligations.
(g) It may be that there are some factors in a particular case which fall on one side of the line and other factors which fall on the other side of the line, and it is for the judge to determine, looking at all of these factors, and maybe other matters, what the appropriate determinations to make in a particular case in the promotion of a fair outcome.”
CONCLUSION
In applying the above principles, HHJ Hess concluded that both of the family loans were at the soft end of the scale. In the case of the debt owed by the wife to her father, HHJ Hess found that it was unlikely the wife would be required to make any repayment, particularly as she had forgotten about the loan until January 2022. Regarding the husband’s debt, his mother was also unlikely to ever demand repayment and it was regarded by them as an advance on the husband’s inheritance.
Further, HHJ Hess found:
“Having heard and read the evidence I am satisfied on a balance of probabilities that the husband’s primary motivation in making the payment of £150,000 to his mother in June 2020 was because he was concerned that the wife would share half of it if he did not do this. I do not accept that he had any significant sense of an obligation to make the payment at this point, either legally or morally.
I do not think it would be right for me to raise the husband’s debt to his mother to hard debt status simply because he has repaid it. To do that would be to reward and encourage manipulative behaviour and would, to my mind, be unfair.
My decision is that both of these debts were very soft and, for me to do fairness between the parties, the consequence of that is that I should not include the wife’s debt to her father on the asset schedule, but should re-credit the £150,000 to the husband’s side of the schedule.”
Pietra Asprou
Child maintenance appeals
Section 4 of the Child Support Act 1991 (the Act) enables individuals with the care of any qualifying child or a non-resident parent, to apply for a maintenance assessment with respect to that child. Since 2012, such applications have been dealt with by the Child Maintenance Service (CMS). This article discusses the procedure of appealing a CMS assessment to the social entitlement chamber of the First-Tier Tribunal under section 20 of the Act.
BACKGROUND
Persons with care or non-resident parents can challenge the majority of CMS decisions on grounds of fact or law. Section 20 of the Act lists the decisions which may be appealed:
Mandatory reconsideration
Prior to issuing an appeal a ‘mandatory reconsideration’ must be sought – a request for a revision of the decision within 30 days of its receipt. If an appeal is made without this request, the appeal will be treated as a request for mandatory reconsideration.
If the party is not satisfied with the reconsideration, they may apply for an appeal to the First-Tier Tribunal and a copy of the mandatory reconsideration notice must be sent with the notice of appeal.
PROCEDURE
The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 establish the necessary procedure. Namely, effect must be given to the overriding objective, cases must be dealt with fairly and justly, and all parties must aid the Tribunal in furthering the objective and cooperate.
Preliminary matters
Applications for appeal are made by completing a SSCS2 Form. The form requires information concerning:
Time limits
Appeals must be received by the First-Tier Tribunal within one calendar month of the date on which the mandatory reconsideration notice was sent to the appellant (rule 22 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008).
Requests can be made for this time limit to be extended up to one year after the expiration of the last date for appealing via the SSCS2 Form. Reasons for delay must be provided. Any objections from the CMS and other party to extending the time limit will be welcomed before the Tribunal decides whether to admit the appeal.
Once appeals have been admitted, HMCTS will provide formal acknowledgment and notice will be given to the CMS and the other party. The CMS must respond to the appeal within 42 days of receiving the notice of appeal and this response will be provided to all the parties and the Tribunal. The response should attach a copy of any written record of the decision being challenged and copies of all CMS documents which are relevant to the case. The appellant and any other party are provided the opportunity to make written submissions and supply further documentation in reply to the CMS response.
Disclosure
There are no stringent rules regarding what/when evidence may be disclosed for the hearing. HMCTS guidance states that:
If the appellant opts not to take part in the hearing, they will be advised to send any further evidence in support of their appeal within 28 days of being informed that the CMS have sent their response.
Practice Direction 12G of the Family Procedure Rules allows a party to communicate information relating to proceedings held in private to the First-Tier Tribunal dealing with an appeal made under section 20 of the Child Support Act 1991. This means that information concerning previous Children Act proceedings, although held in private, may be disclosed in support of an appeal.
TRIBUNAL POWERS
Usually a hearing will be listed to determine the appeal, unless the appeal has been struck out or each party has consented to proceed without a hearing and the Tribunal considers this to be appropriate. Hearings are held in public unless the Tribunal directs otherwise.
Case management powers
The Tribunal has the power to:
Determining the appeal
In making its decision, the Tribunal cannot consider any issue not raised by the appeal, which means an issue raised by one of the parties before or at the hearing. The Tribunal may raise issues itself if it is in the public interest to do so. According to section 20(7)(a) of the Act, the Tribunal must not take into account any circumstances which were not obtained when the CMS made its decision. This means that the Tribunal cannot consider changes of circumstances after the date of decision, however it can consider evidence created after the decision if it relates to circumstances during the relevant period.
The First-Tier Tribunal may allow or refuse the appeal. If the Tribunal allows the appeal, they can either make their own decision or remit the case back to the CMS with directions. If they remit the matter, the substitute decision is still considered to be one made by the Tribunal. This has the effect that an appeal against a decision made on an appeal to the First-Tier Tribunal, whether made by the Tribunal themselves or upon remission by the CMS, lies only to the Upper Tribunal.
The Tribunal has no powers as to costs but may dispose of proceedings by way of a consent order if it considers it appropriate. Decisions may be given orally at the hearing but a written decision notice should be issued as soon as reasonably practicable after the hearing. This notice should include details of any right to appeal and the time limit for doing so.
FURTHER APPEAL
An application may be made for permission to appeal to the Upper Tribunal if it is alleged that the First-Tier Tribunal erred in law. Such applications may be made within one month of the latest date on which the First-Tier Tribunal sends to the person making the application the relevant decision notice, a notification of amended reasons or a notification that an application for the decision to be set aside has been unsuccessful. The First-Tier Tribunal may review its own decision if it is satisfied there has been an error or law, clerical mistakes or other accidental slips. Further, the Tribunal can set aside its own decision where it is in the interests of justice to do so and the necessary conditions are satisfied.
Pietra Asprou
Standard Orders
The working party under the leadership of HHJ Moradifar considering the Standard Family Orders Volume 2 (Children and Other Orders) has at the request of Mr Justice Mostyn undertaken a preliminary review of all Volume 2 orders to identify those orders which require urgent, immediate, update and amendment which cannot await the outcome of the overall review. They have identified the following:
These revised orders, together with the zip file containing Volume 2 in its up-to-date form, are available on the Courts and Judiciary website here.
The FRC Efficiency Statement dated 11 January 2022 requires the use of the assets and Income template ES2 at the First Appointment (para 11), the FDR (para 13) and the final hearing (para 21). In our Notice dated 11 January 2022 (as placed on https://www.judiciary.uk/announcements/notice-from-the-financial-remediescourt/ on 12 January 2022) we explained that the FLBA had drafted ES2 and we expressed gratitude to them for doing so.
The feedback that has been received since ES2 was promulgated has generally been highly positive although there have been some teething problems, and in some instances a misunderstanding as to how it should be compiled and used. The FLBA money and property subcommittee has therefore kindly produced guidance on the correct use of ES2, with an attached example. (Click Here)
We are happy to endorse this advice which seems to us to be sensible and helpful. We consider that it should be followed unless it is impractical not to do so.
MOSTYN J
HHJ HESS
1 February 2022
In this case Mostyn J examines the law relevant to a wife’s application to continue proceedings for financial remedies in circumstances where the respondent husband died before any order was made on her application.
Summary
The parties married in Pakistan in 1981 and separated in 2006. The Husband obtained a divorce in Pakistan in 2012. The wife believed significant sums were accumulated during the marriage. In August 2017 the wife was given leave to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984, which can enable spouses, in certain circumstances, and when there is a connection to England and Wales, to obtain remedies, including financial remedies, following an overseas divorce. On 18 January 2021, aged 81 the husband died. The wife aged 74 wanted to pursue her application.
The key issue for determination was:
Whether an unadjudicated claim under Part III survives the death of a spouse and can be continued against their estate?
Legal analysis
The case was heard on the 21st July 2021 in the Family Division of the High Court before Mostyn J who handed down his judgment on the 2nd July 2021. Counsel for the wife argued that the authorities under Part II of the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependents) Act 1975 do not bind the Court as they relate to different statutes. Therefore, the above issue for determination has never been considered before and the Court has before it a blank canvas. The Judge rejected this, concluding that Part II jurisprudence is clearly applicable to this Part III application, and as such, the preceding House of Lords and Court of Appeal jurisprudence is binding. It, therefore, followed that a financial claim under Part III following an overseas divorce expires with the death of the respondent, much the same as a claim under Part II would following a domestic divorce.
Although Mostyn J announced early on within his judgment that the Court of Appeal case of Sugden v Sugden [1957] P 120 was binding on him [23], the remainder of the judgment focused on why he thought this decision was wrong. The three key reasons he disagreed with Denning LJ’s judgment are as follows:
“1. A fair textual interpretation of s.1 of the 1934 Act leads to the conclusion that post-divorce ancillary relief is recognised as a cause of action and is not excluded from the scope of the section;
“2. The nature of the claim, especially where it is framed as a sharing claim, is not a mere spes that discretion will be exercised in the claimant’s favour. It is (or may be) a valuable claim, with objective solidity which is in many ways less speculative than a personal injury claim or a claim for an injunction; and
“3. Post-death relief has been awarded following the set-aside of a financial remedy order at the suit of the payer where the payee has died shortly after the making of the order. In this scenario it will be seen that the court, without any inhibition, exercises the statutory discretion under s.25 of the Matrimonial Causes Act 1973. This can only be explained if the right to apply to set aside the order and to seek a full rehearing is a cause of action within the scope of s.1 of the 1934 Act.”
Mostyn J considered the case law which exercised the discretion specified under Part II:
Barder v Barder (Caluori Intervening) [1987] 2 FLR 480,
Smith v Smith (Smith and others Intervening) [1991] 2 FLR 432,
Reid v Reid [2004] 1 FLR 736 and
WA v The Estate of HA (Deceased) and others [2015] EWHC 2233 (Fam), [2016] 1 FLR 1360.
In these cases, one of the parties had died shortly after the order was made, rather than before it was made. Therefore, the matters had already been adjudicated and were considered a cause of action.
Decision and the future
The Judge dismissed the wife’s application and concluded that the law, particularly the Court of Appeal case of Sugden, does not allow for an unadjudicated claim under Part III to survive the death of a spouse, and so the claim could not be continued against the husband’s estate.
As he and the Court of Appeal are bound by Sugden, the Judge allowed, however, a leapfrog application for leave to appeal to the Supreme Court.
It is yet to be seen whether the wife will appeal the decision, despite encouragement from the Judge and the obiter observations by Mostyn J, that there is a clash on the authorities between cases where the death has occurred shortly before trial, and those where death has occurred shortly after trial [68].
If this case or a case with a similar factual matrix does reach the Supreme Court and they agree with Mostyn J, this could have wide-reaching implications for divorce litigation. It could, in theory, permit spouses to continue financial claims against their ex-spouse’s estate, even after their death. This would or could remedy the clash which Mostyn J concluded was illogical, arbitrary, and capable of meeting out great injustice [68].
The full judgment can be found here.
Rachel Norgate
On the 10th of December 2021 the Court of Appeal (Dame Victoria Sharp (P), Lady Justice King and Lord Justice Warby) heard an appeal against the decision of Lieven J sitting in the High Court that a fact-finding judgment in Children Act proceedings should be published with the names of the father and the mother included. The father, a former MP, was the appellant and argued that the interests of the child made it necessary that he, the mother, and the child should not be named and there should be additional redaction of some of the details.
Facts
The mother is Kate Griffiths MP, the father, Andrew Griffiths. Their relationship ended and they divorced. The father was dropped by his constituency party after revelations that he had sent over 2,000 sexually explicit texts to two female constituents. The mother put herself forward as the candidate for what had been the husband’s constituency and was selected and elected.
In the course of proceedings regarding the father’s contact with the child of the marriage Mrs Griffiths made allegations against Mr Griffiths. At the end of the fact-finding hearing HHJ Williscroft found that Mr Griffiths had abused and physically hurt his wife when drunk. She found Mr Griffiths had undermined his wife’s self-esteem, threatened her with violence, coerced her into sexual activities she found unpleasant and had raped her when she was asleep.
On 26 November 2020, HHJ Williscroft gave judgment on the application. In February 2021 two journalists, Ms Tickle and Mr Farmer, applied to HHJ Williscroft for an order releasing the judgment to them. This application was supported by Mrs Griffiths, the child’s Guardian and the organisation Rights of Women.
High Court
Lieven J heard the applications on the agreed basis her task was to strike a balance between the rights that favoured publication and the right of the child to respect for its privacy and family life applying the principles set out by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47.
Lieven J identified four factors which favoured publication under Article 10 ECHR
Lieven J also noted the mother’s rights included her right to speak to whomsoever she pleased about her experiences. Anonymity would interfere with those rights and the court should be slow to allow itself to be used as a means of allowing one parent control over the other. Lieven J considered the mother’s rights were bolstered by the “very unusual” fact the Guardian also supported publication. She held there is a “significant public interest” in fully informed, open discussion and debate about domestic abuse that would act to redress some of the erosion of public confidence in the family justice system which usually only receives publicity when something has gone wrong.
The applications were granted. The judgment could be published with “only relatively modest redactions”. The child was not to be identified by name, sex, or date of birth but the names of the mother and father could be included.
Court of Appeal
The father was granted permission to appeal the High Court decision and asserted that the whole judgment should be published, unredacted save that all the names in the judgment should be anonymised.
The father argued two main points:
Point 1. The father’s counsel argued the true construction of s97 prohibits the courts authorising the publication of anything likely to identify a child unless it is satisfied the welfare of the child requires publication. This was not only a complete change of position by the father but before Lieven J, the father had expressly conceded this approach was wrong. Several of those appearing argued the father should not be allowed to rely on this new argument. The Father accepted that he would therefore need to first persuade the Court that he should be given permission to rely on this new argument. Having heard the father’s arguments on the merits de bene esse, the Court refused to allow the father to rely on this ground of appeal.
Point 2. The Court dismissed the appeal holding that Lieven J was ‘clearly right’. The Court of Appeal will not interfere with such evaluative exercises unless it is satisfied the judge erred in principle or reached a conclusion which was wrong – neither had occurred here:
‘The father’s criticisms of Lieven J’s decision amount to little more than disagreement with the conclusions at which she arrived.’
The Court found Lieven J had correctly followed the balancing exercise in Re S and the father’s criticisms of the balancing exercise she had undertaken were unconvincing. Decisions of this kind are inevitably case-specific:
‘ The critical factors in this case included (1) the father’s decision not to invoke any Article 8 rights of his own but to rely exclusively on the rights of the child; (2) the very young age of the child; (3) the Guardian’s professional assessment, in favour of publication; (4) the mother’s support for publication; and (5) the extent and nature of the information about the father that was already in the public domain. We do not think it can fairly be argued that Lieven J’s conclusion, in the unusual circumstances of this case, was wrong. On the contrary, we consider that she was clearly right.’
The father’s application for permission to appeal to the Supreme Court was refused as was his application for a stay pending an application to the Supreme Court for such permission. The applications were late, involved a further change of position, had no real prospect of success, and would represent a misuse of the court process.
Pietra Asprou
Mostyn J (National Lead Judge) and HHJ Hess (Deputy National Lead Judge) have today issued a Notice in relation to the conduct of Financial Remedy work. That Notice, together with a number of important documents appended, is available by following the links below.
There are a number of significant changes outlined in the documents which all those practising in this field will want to be familiar.
The documents include standard templates for composite schedules of issues and schedules of assets.
The documents are:
FRC Notice dated 11 January 2022
FRC Efficiency Statement dated 11 January 2022
FRC Primary Principles dated 11 January 2022
Template ES1: Composite Case Summary (Word format)
Template ES2: Composite asset and income schedule (Excel format) and
The guidance supplements the general guidance on electronic bundles for all courts issued by the Senior Presiding Judge, the President of the Family Division and the Judge-in-charge of Live Services on 29 November 2021, which is available here.
The Family Justice Council held its 14th Annual Debate and panel discussion in London which was live streamed via Microsoft Teams to audiences at home – a first for the event.
The Cafcass Prioritisation Protocol
Why has prioritisation become necessary in Essex, Suffolk and Norfolk?
Prioritisation is intended as a way of averting operational collapse and being transparent with families and courts. Demand in private law and the way Cafcass is organised in Essex, Suffolk and Norfolk has worked effectively over the years. However, a combination of the backlog created in the early stages of the pandemic, the growing delays in disposing of cases and the way work is organised in the area means that the caseloads of family court advisors (FCAs) have increased to unsafe levels and this is now undermining the capacity of managers and supervisors to oversee the quality of practice and decision-making. Cafcass is holding 22% more open and active cases and it is no longer possible to allocate all private law cases safely within normal timescales.
What happens when it is no longer possible to ‘allocate cases within normal timescales’?
The Assistant Director for the service area informs the local judiciary and partners of the problem in advance of the final decision to ‘activate prioritisation’, with the intention of agreeing any additional measures that may help to prevent prioritisation. This commitment to liaison and discussion can take up to 7 weeks before the final decision is made.
What does prioritisation mean for the courts?
Cafcass accepts the orders of the courts in the normal way, undertakes an additional risk assessment and decides which cases are prioritised for allocation and which cases can be held in the ‘allocation hub’. The court is informed about which cases we intend to hold in the Hub. The proposed timescale for filing is included in the Safeguarding Letter, along with a request to extend the filing date. Cafcass provides the courts with a weekly update of the cases held in the Hub.
What cases will be held in the Hub?
Public law cases are allocated in the normal way, as are private law cases deemed urgent or where there are concerns about the welfare of the child. Only the less urgent private law cases will be held in the Hub. The Hub is managed by a social work Practice Supervisor and a Business Service Officer.
How will families be informed and kept informed?
Children and families will be informed by letter and provided with a single point of contact to seek advice, make representations and send in any additional information. We communicate with families every 4-6 weeks. We will do everything we can to allocate their case sooner.
How will cases held in the Hub progress to allocation?
Cases are allocated sooner as active cases are closed and the capacity of FCAs to take new cases increases. Cases may also be allocated sooner based on additional information or alerts. Cafcass will write to the relevant court when this happens. Reports on cases held in the Hub will take up to 26 weeks to file and further extensions will only be requested in exceptional circumstances.
How does prioritisation end?
The data on pressures (FCA caseloads, the numbers of cases held on duty, the average days it takes to allocate cases, the cases held by service managers and practice supervisors, the proportion of cases held by agency staff and the quality of work) is reviewed monthly. At the first signs that things are returning to normal and look sustainable, the Assistant Director will liaise with the DFJ and a review meeting will be held in Cafcass to discuss de-activating prioritisation and closing the Hub.
What can be done to prevent prioritisation in future?
Within the constraints of available resources, the following joint measures will assist in preventing the need for prioritisation: clearing the backlog of cases; reducing requests for s7 reports; agreeing more focused s7 reports; reducing requests for additional experts; reducing delay and associated levels of addendum reports; and reducing requests for FCAs to attend hearings. In addition, Cafcass is committed to reviewing recommendations for s7 reports, narrowing the issues to be explored in s7 reports and improving the efficiency of our allocation processes.
The President of the Family Division, Sir Andrew McFarlane, has published his report on transparency in the family courts. Following a consultation and the appointment of a transparency review panel, he has concluded that there needs to be a ‘major shift in culture and process to increase the transparency of the system.’ The report makes various recommendations, aiming to strike a balance between increasing public confidence in the Family Justice System, and maintaining the anonymity of families and children who turn to it for protection.
Background
When appointed three years ago, the President promised to undertake a full review of transparency. In February 2020, an invitation to submit evidence was issued, particularly in relation to the balance between confidentiality and public transparency. The review was paused in November 2020 due to coronavirus and later resumed in early 2021. The report is the product of written statements and short evidence sessions.
What is transparency and should it be enhanced?
The President explains that to see transparency as a single question is a ‘trap’.
‘A trap, and one into which I and, I suspect, many others may have fallen when first approaching this issue, is to see ‘transparency’ as raising a single question, ‘should the Family Court be open to the public and/or press’, to which there would be a single binary answer of either ‘yes’ or ‘no’… There are in fact many ways that the Family Court can be more open, and provide more information about what takes place there, without altering the current restrictions on reporting and attendance’
Further, a key theme throughout the President’s report is the benefit of enhancing transparency:
“Through open justice, the workings of the justice system are held up to public scrutiny by hearings being open to the public and/or by permitting media reporting of the proceedings. The work of the Family Court is of significant importance in the life of our society, yet, as is plain, the current limited degree of openness does not permit effective public scrutiny.”
According to the President, despite the best intentions of those involved, the current arrangements are not satisfactory in providing ‘at least an adequate degree of openness’ for various reasons:
These considerations lead the President to draw the conclusion that the court must ‘regard openness as the new norm…there needs to be a major shift in culture and process to increase the transparency of the system.’
Recommendations
Although the President does not shy away from stressing the need for greater openness, he is clear that this must not be at the expense of the interests of children. Media representatives must be able to attend and report publicly on hearings however, reporting should still be subject to clear rules on maintaining the anonymity of children and family members. The President proposes the creation of a Transparency Implementation Group (TIG), which will support him in actioning the following:
These rules will enable journalists and legal bloggers to attend Family Court proceedings and report on their events subject to the following:
2. Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR r 12.75(1), PD12G and PD14E
This communication would be limited to discussion of the case and informing the journalist/blogger of details of proceedings.
3. The publication of judgments
The President explains that, in the majority of cases, there will not be a legitimate reason for the public to be provided with detailed accounts of child abuse and how to withhold this information requires consultation. He suggests that either this information is removed from published judgments and replaced with a brief factual summary, or the sensitive information is provided in an annex which is not published with the judgment.
Judges are asked to publish anonymised versions of at least 10% of their judgments annually. Due to the practical restraints on judges, the President will encourage the establishment of an Anonymisation Unit within HMCTS.
4. A ‘standard reporting permission order’ for use in FRC proceedings
Mr Justice Mostyn and His Honour Judge Hess have undertaken work to enhance transparency in financial remedy proceedings which the President supports.
5. The need to establish a relationship of trust and confidence to ensure the reporting of family proceedings is reliable and well informed
The President intends to create a Media Liaison Committee comprised of journalists, media lawyers and judiciary, aiming to enhance journalists’ understanding of the Family Court. It is also suggested that MPs be invited to the Court to develop their understanding as they regularly receive complaints about the operation of the Court.
6. A scheme of compulsory data collection at the end of cases
The President believes data collection will aid in understanding decisions, including by the recognition of patterns and issues, which will lead to improved outcomes. In the longer term, data collection can focus on what happens to children after final orders are made.
7. Court listings should be made available in advance to journalists/bloggers
This aims to help journalists/bloggers understand what cases may be of interest and recognise the nature of proceedings.
8. The creation of a Family Court online resource
This development would explain the work of the Family Court, how cases are dealt with, options for dispute resolution and how to make applications.
9. Providing the public with access to an annual report on the operation of the Family Court
This report would include data setting out case numbers, categories of proceedings and outcomes, in addition to an annual audit on the progress of the various transparency initiatives to be launched.
Conclusion
The TIG will take forward the proposed changes, but the President has insisted that he will remain closely involved. The proposals will also be subject to consultation concerning the detail and not the overall direction of travel, which was the subject of the Review.
Pietra Asprou
The High Court was asked to detemine whether a child should receive vaccinations for coronavirus and winter flu. Poole J considered the legal principles and concluded that the same approach should be undertaken as with other standard/routine vaccines, providing guidance on s.33(3)(b) of the Children Act 1989, as well as the inherent jurisdiction and Gillick competence in these circumstances.
Facts
C is a boy of nearly 13 years old. He is subject to a care order made in 2015. C wished to be vaccinated with the coronavirus and winter flu vaccines and his wishes were supported by his Guardian, the Local Authority and C’s father. C’s mother strongly objected to his being vaccinated.
The Local Authority’s position was it was in C’s best interests to receive the vaccinations and as it held parental responsibility for C under s.33 of the Children Act 1989 it had the right to exercise its parental responsibility and arrange for C to be vaccinated. However, the Local Authority made an application to the High Court for confirmation of its authority for three reasons:
Local Authority powers under s.33 of the Children Act 1989
In discussing s.33, Poole J referred to the principles in Re H and M v H and PT [2020] EWFC 93. However, Poole J noted that Re H and M v H and PT differed from the case before the court as they concerned vaccinations which had been recommended for children in the routine immunisation schedule. Further, the cases did not involve a 12 year old expressing clear views on the proposed vaccinations.
In considering these principles, Poole J concluded that the exceptions to the general power in s.33 do not apply to this case and the Local Authority could arrange and consent to C receiving the vaccinations under s.33(3)(b). Although “a local authority should not use s.33(3)(b) to override the wishes or views of a parent in relation to serious or grave matters with profound or enduring consequences for the child…The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter.”
Overarching principles
Poole J confirmed that a “local authority with a care order can decide to arrange and consent to a child in its care being vaccinated for Covid-19 and/or the winter flu virus notwithstanding the objections of the child’s parents, when
Nonetheless, Poole J cautioned that “s.33(3) of the Children Act 1989 does not give a local authority carte blanche to proceed to arrange and consent to vaccinations in every case,” as
Poole J notes that in the majority of cases involving looked after children, no application will need to be made by the Local Authority to the court regarding the provision of such vaccinations under national programmes, even if there are parental objections.
Further matters
National vaccination programmes and children
Despite the information put before it, the Court concluded that it was inappropriate for it to determine the merits of whether national vaccine programmes for children are in their best interests. Poole J concluded that Re H does apply to both the coronavirus vaccine for 12-15 year olds and the winter flu vaccine for 7-11 year olds.
“The court can be satisfied, without the benefit of expert evidence, that the decisions to include the vaccinations in national programmes are based on evidence that they are in the best interests of the children covered by the programmes…administering a vaccine gives rise to a risk of harm to a child. Not giving a vaccine gives risk to a risk of harm to a child. Voluminous evidence establishing the extent and balance of risks and benefits needs to be obtained before a decision is made to roll out a national programme of vaccination for children.”
Gillick competence
Regarding the views of C, Poole J stated that an assessment of C’s Gillick competence is not necessary as there is no conflict between his views and the local authority. If a case arises where a child refuses a vaccination, the questions of “whether the local authority with parental responsibility could override the child’s decision and whether the issue should be brought before the court” would arise – it is not confirmed how the court would approach these questions.
Inherent jurisdiction
The court noted that in the circumstances before the court it was unnecessary for it to exercise the inherent jurisdiction. However, if it had been necessary, the Poole J stated that he “would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings.”
Pietra Asprou
The Senior Presiding Judge, President of the Family Division and Judge-in-charge of Live Services have issued new guidance on electronic court bundles. A copy of the guidance note is reproduced below.
This general guidance is intended to ensure a level of consistency in the provision of electronic bundles for court hearings (but not tribunal hearings) in a format that promotes the efficient preparation for, and management of, a hearing. It is subject to any specific guidance by particular courts or directions given for individual cases. It updates and replaces previous guidance published in May 2020.
Filename: The filename for a bundle must contain the case reference and a short version of the name of the case and an indication of the content of the bundle – eg “CO12342021 Carpenters v Adventurers Hearing Bundle” or “CO12342021 Carpenters v Adventurers Authorities Bundle”.
Email: If the bundle is to be sent by email, please ensure the file size is not too large. For justice.gov e-mail addresses the maximum size of email and attachments is 36Mb in aggregate. Anything larger will be rejected. The subject line of the email should contain the case number, short form case name, hearing date and name of judge (if known).
Uploading bundles: Bundles should be sent to the court in accordance with the court’s directions. Where the bundle would otherwise be sent by email (rather than being uploaded to a portal) but is too large to be sent under cover of a single email then it may be sent to the Document Upload Centre by prior arrangement with the court ʹ for instructions see the Professional Users Guide.
Ordinarily the applicant is responsible for preparing the court bundles. If the applicant is unrepresented then the bundles must still if at all possible, comply with the above requirements. If it is not possible for an unrepresented litigant to comply with the requirements then a brief explanation of the reasons for this should be provided to the court as far in advance of the hearing as possible. Where possible the litigant in person should suggest a practical way of overcoming the problem. If the other party is represented then that party should consider offering to prepare the bundle.
There is guidance available freely available on the internet on how to use software to create bundles. See, for example, this YouTube video, prepared by QEB, and this video prepared by St Philips Chambers.
Lord Justice Haddon-Cave
Senior Presiding Judge
Sir Andrew Mcfarlane
President of the Family Division
Mr Justice Johnson
Judge-in-charge of Live Services
15 November 2021
Standard Orders: Non-molestation order
Order No. 10.1 (Non-molestation order) is amended to include in paragraph 1 the respondent’s date of birth, the omission of which has caused occasional identification problems and unnecessary automated alerts from the Police National Database.
The application form FL401 requires the applicant to provide the respondent’s date of birth.
The amended order takes effect immediately.
Please see a link to the amended order here. Zip files containing volumes 1 and 2 of the standard orders in their up-to-date form are also available via the Courts and Tribunals Judiciary Website.
On 16 October 2021, The President of the Family Division, Sir Andrew McFarlane, considered some of the issues that are of current interest in the Family Justice System in an address at the FLBA National Conference in Manchester. A summary of the President’s views relating to the issue of remote working and whether it is ‘here to stay’ is set out below.
The Future of Remote Hearings
HHJ Stuart Farquhar (Lead Judge of the Kent, Surrey & Sussex Financial Remedies Court (FRC)) was asked by The Honourable Mr Justice Mostyn earlier in 2021 to convene and lead a committee (consisting of a geographically diverse collection of judges at all levels of the judiciary and practitioners).
The committee was to consider in depth and report on the role of remote courts in the post-pandemic environment (Part 1) and the procedures of the Financial Remedies Court (Part 2).
Please find links to Parts 1 and 2 of Report of the Farquhar Committee below.
Report of the Farquhar Committee Part 1
Report of the Farquhar Committee Part 2
In E v L [2021] EWFC 60, Mostyn J dealt with a financial remedies application for a short and childless marriage. In his judgment, Mostyn J provides clear guidance on whether a childless or short marriage justifies a departure from the equal sharing principle and gives information on the valuation of business assets. This article focuses on the principles adduced from the judgment concerning the relationship between short/childless marriages and the sharing principle.
Facts
W made an application for financial remedies following a marriage which lasted approximately two years and resulted in no children. W was a housewife, who had previous experience modelling and as a proprietor of a lingerie, nightwear, and swimwear company. Contrastingly, H had reached the “pinnacle” of his career as a successful production manager for live music events, maintaining interests in numerous companies.
The difference between the positions of the parties was “extraordinary”, as W sought a lump sum of £5.5m and H believed £600,000 was appropriate. Mostyn J noted that this difference was “the product of imprecision within the case-law combined with intransigence and dogmatism by the parties in the pursuit and defence of the claim.”
H’s position was that the “short childless marriage” of the parties does not warrant the application of the equal sharing principle but raises a case where W “should be confined to very conservatively assessed needs.”
Childless marriage
Counsel for H addressed the issue of whether a childless marriage requires a departure from the equal sharing principle in his skeleton argument:
“There is a consistency of judicial reservation about the sharing principle applying to assets generated over a short childless marriage that sings out from [the] authorities…We say that the factual matrix of this case is a paradigm example of a case where the sharing of marital acquest, if indeed there is, on proper analysis, any acquest, is unjustified. This is a husband who, in his autumn years, through this marriage continued in a business in which he has worked for the whole of his adult life. The foundation of that business, the continuation of that business during this short, childless marriage had nothing to do with the joint endeavours of the parties.”
In reaching his decision on this point, Mostyn J referred to various cases including XW v XH [2019] EWCA Civ 2262 and Miller [2006] UKHL 24, insisting that childlessness was not the reason for upholding the unequal division of assets in the latter. In consideration of the case law, Mostyn J concluded that the fact a marriage is childless is irrelevant to whether the equal sharing principle should be departed from, warning that attempting to evaluate the quality of a marriage or arrangements made within it, will “almost inevitably trigger subconscious discriminatory practices”.
Mostyn J cautioned: “In my judgment for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs.”
Short marriage
The next point to consider was whether the short duration of a marriage justifies a departure from the sharing principle. With reference to GW v RW [2003] 2 FLR 108, in which he appeared, Mostyn J referred to various judicial hints that a short-marriage exception might apply in a small minority of cases. However, Mostyn J confirms that no distinction should be made between accrual of assets over a short marriage and accrual over a longer marriage, stating:
“I now figuratively hold my hand in the flames and recant. There is absolutely no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period. As Lord Nicholls pointed out, the statutory factor of the duration of the marriage will be reflected in the nature of things by the fact that in a short marriage the accrual will almost inevitably be less than in a longer marriage.”
Mostyn J did admit however, that there is a rare exception to this when non-family assets are generated by one spouse alone during a short marriage and those assets have been kept separate, with both spouses being financially and independently active, as acknowledged in Sharp v Sharp [2017] EWCA Civ 408. It was stressed that this is a rare exception, as a case where there can be non-discriminatory unequal sharing of matrimonial property earned in a short marriage is “as rare as a white leopard.”
Decision
Taking these principles into account, Mostyn J insisted “there is no good reason, at all, to depart from equality in the division. This case is not a white leopard.” W was awarded a lump sum of £1.5m on a clean break basis, providing her with 50% of the marital acquest.
Implications
There are two main principles which can be adduced from this judgment, and which will be of significance for financial remedy proceedings concerning short childless marriages:
The full judgment is here.
Pietra Asprou
The President of the Family Division, Sir Andrew McFarlane, has issued a memorandum setting out the approach for drafting orders in the Family Court, in order to mitigate a number of problems. Please click here for more information.
Although there is no Practice Direction in force dealing with the drafting of orders specifically, the President has warned that this may need to be considered if the principles in the memorandum are not observed. A summary of these are set out below:
Summary of principles
This guidance comes with with the warning that unless it it is followed he will issue a Practice Direction similar to CPR PD 57AC issued by the Business and Property Courts. Attached to the memorandum is an optional template for the guidance of litigants in person acting in non-complex private law welfare cases.
This blogpost was published by The Transparency Project
First, the context:
June 2020: The Ministry of Justice published the ‘Harm Report’, a 200-page document detailing criticisms of the way family courts minimised issues of domestic abuse in proceedings relating to children; the lack of adherence to the procedure rules and guidance on handling of domestic abuse; allowing cross examination of a complainant by an alleged perpetrator etc. A reform implementation plan was announced by Government.
January 2021: The Court of Appeal dealt with appeals in four separate cases and gave guidance in Re H-N [2021] EWCA Civ 448 all family courts on cases about children’s welfare that feature issues of domestic abuse. This judgment made several references to specialist judicial training on domestic abuse, implying that all judges and magistrates had, at that point in time, undertaken relevant training in the ‘modern’ approach since the four cases were originally heard in 20192020 ‘This bespoke Family training feeds in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post.‘ [para 68]
Between January 2019 and April 2021, the Domestic Abuse Bill, now the Domestic Abuse Act 2021, was drafted and passing through Parliament. We explained the relevance of the Act to family cases here.
It is unlikely that anyone with an interest in the family justice system was unaware of these developments.
However, in November 2020, a hearing took place in Hastings Family Court where Deputy District Judge Watson failed to follow the fundamental principles then in place, but instead applied ‘outdated attitudes’. This has just been revealed by a new publication of a judgment, Re A, from a circuit judge in that court, HHJ Ahmed, who upheld an appeal by the mother of seven-year-old A, earlier this month. The information about the November hearing shows that not all judges were as fully aware as the President had assumed just two months later in Re H-N.
The hearing in November 2020 had included evidence from the mother about alleged abuse toward her by the father. HHJ Ahmed concluded that that the Deputy District Judge (DDJ) had failed to follow the correct procedure, as outlined below. HHJ Ahmed also cited the current definition of domestic abuse under s 1 of the Domestic Abuse Act 2021 and (section 3) that a child who sees, hears or experiences the effect of such abuse is also a victim – although that part of the 2021 Act was not in force at the date of the earlier hearing. However, the terminology in sections 1 and 3 of the 2021 Act do reflect the ‘modern’ approach and is very similar to the definition of domestic abuse in the longstanding guidance for family court judges (Practice Direction 12J), as confirmed by the President in Re H-N. Children who have been exposed to abuse of adults in their household have been legally recognised as potentially at risk of harm since 2005. That is why such allegations need to be investigated by the family court, before a decision about children’s welfare can be made. This is all set out in the Family Procedure Rules and Practice Directions.
HHJ Ahmed described a ‘constellation of failures’ by the DDJ including:
1. The mother had claimed that the father ‘took hold of mother’s hand and broke it’. The DDJ had wrongly evaluated this in terms of a charge of criminal assault. Criminal concepts of guilt and defence have no relevance or function in family courts, according to a case from 2018 where McFarlane LJ declared that the purpose of finding facts in family courts was to establish facts that were relevant to the child’s welfare and that no reference should be made to the criminal law.
2. The DDJ had referred to an absence of violence as suggesting that there had been no abuse, ignoring any possible psychological harm the mother may have suffered. It is not clear how breaking the mother’s hand is consistent with there being an absence of violence.
3. The DDJ had referred to the incident of the fractured hand as ‘highly situational’ without explaining what he meant by this. He had referred to the parents being on holiday at the time, although the decision to go on holiday together was not relevant to what took place during the holiday.
4. A separate allegation was made by the mother that the father had, in A’s presence, shouted at and been verbally abusive to C, who was an older child (aged 16) of the father. The DDJ had ‘condoned’ this behaviour by the father.
5. The DDJ had not identified the mother as a potential vulnerable witness in order to consider special measures she may need to be able to give evidence.
6. He had allowed the father to cross examine the mother to the extent that she had cried in the witness box.
HHJ Ahmed also referred to the mother being restricted in the evidence she could give about the effect on her of the father’s behaviour because the court had allowed her to raise only four individual instances during their relationship. The judge said this meant it was difficult for her to show a pattern of behaviour over time. This restriction appears to have been imposed at an earlier stage than DDJ Watson’s hearing.
It isn’t stated what the application about A was, nor what DDJ Watson’s order was, nor whether he made any findings at all. We are told that his order has been revoked and the matter has been sent back to the Family Court to consider a fact-finding hearing before a different (more senior) judge. Journalist and TP member Louise Tickle has commented on the judgment on twitter:
Some months ago, Louise submitted a Freedom of Information question to the Judicial College, asking about the extent to which the judiciary have indeed received training in the ‘modern’ law on domestic abuse, but was told that the College is not subject to the Freedom of Information Act. That question remains unanswered.
It is very rare for information to reach the public domain about Family Court cases where a finding of fact on domestic abuse should have been considered. We therefore don’t know how typical these ‘outdated attitudes’ by judges who simply ignore the court rules are. The President stated in Re H-N that appeals are rare, but he also acknowledged the seriousness of the consequences for children who are involved in cases where there has been no proper consideration of the evidence.
ELECTRONIC BUNDLES
(Practice Direction 54A, §§ 4.5 and 15; Practice Direction 54B, §1.3)
Electronic bundles must be prepared as follows and be suitable for use with all of Adobe Acrobat Reader and PDF Expert and PDF Xchange Editor.
1. A bundle must be a single PDF.
2. If the bundle is filed in support of an urgent application (i.e., an application made using Form N463) it must not exceed 20mb, and (unless the court requests otherwise) should be filed by email
3. If the papers in support of any claim or appeal or non-urgent application exceed 20mb, the party should file:
a. A core bundle (no larger than 20mb) including, as a minimum, the Claim Form and Grounds or Notice of Appeal and Grounds, or Application Notice and Grounds; documents regarded as essential to the claim, appeal, or application (for example the decision challenged, the letter before claim and the response, etc.); any witness statements (or primary witness statement) relied on in support of the claim, appeal or application; and a draft of the order the court is asked to make; and
Such bundles should be filed using the Document Upload Centre: see the separate HMCTS “Professional Users Guide” for detailed information about the Document Upload Centre.
4. All bundles must be paginated in ascending order from start to finish. The first page of the PDF will be numbered “1”, and so on. (Any original page numbers of documents within the bundle are to be ignored.) Index pages must be numbered as part of the single PDF document, they are not to be skipped; they are part of the single PDF and must be numbered. If a hard copy of the bundle is produced, the pagination on the hard copy must correspond exactly to the pagination of the PDF.
5. Wherever possible pagination should be computer-generated; if this is not possible, pagination must be in typed form.
6. The index page must be hyperlinked to the pages or documents it refers to. 7. Each document within the bundle must be identified in the sidebar list of contents/bookmarks, by date and description (e.g., “email 11.9.21 from [x] to [y]”). The sidebar list must also show the bundle page number of the document.
8. All bundles must be text based, not a scan of a hard copy bundle. If documents within a bundle have been scanned, optical character recognition should be undertaken on the bundle before it is lodged. (This is the process which turns the document from a mere picture of a document to one in which the text can be read as text so that the document becomes word-searchable, and words can be highlighted in the process of marking them up.) The text within the bundle must therefore be selectable as text, to facilitate highlighting and copying.
9. Any document in landscape format must be rotated so that it can be read from left to right.
10. The default display view size of all pages must always be 100%.
11. The resolution on the electronic bundle must be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another.
12. If a bundle is to be added to after the document has been filed, it should not be assumed the judge will accept a new replacement bundle because he/she may already have started to mark up the original. Inquiries should be made of the judge as to what the judge would like to do about it. Absent a particular direction, any pages to be added to the bundle as originally filed should be provided separately, in a separate document, with pages appropriately subnumbered.
For guidance showing how to prepare an electronic bundle, see (as an example) this video prepared by St Philips Chambers, which explains how to create a bundle using Adobe Acrobat Pro https://st-philips.com/creating-and-using-electronichearing-bundles/
Any application filed by a legal representative that does not comply with the above rules on electronic bundles may not be considered by a Judge. If the application is filed by a litigant in person the electronic bundle must if at all possible, comply with the above rules. If it is not possible for a litigant in person to comply with the rules on electronic bundles, the application must include a brief explanation of the reasons why.
31 May 2021
New orders and documents are being issued in private law proceedings with a view to speed up the passage of some cases. Where allegations of harm are made more information will be sought and a second gatekeeping review conducted with the aim is of identifying the harm alleged . In this way reports can be ordered and whether a fact finding hearing is needed can be considered sooner.
The waiting list for FHDRA’s is 4 to 6 months, and the safeguarding will often not being done until near the hearing date.
At the first gatekeeping two documents will be sent out to the parties with the order. At the second gatekeeping the legal advisor can then, with the benefit of the safeguarding letter (which has to have been sent by day 25 of allocation) and the parties’ responses decide whether to direct for example a section 7 report before listing the case in a PD 12J list, where the parties will be in attendance. At that hearing a decision can be made about whether to have a fact finding hearing and if not make other directions.
The documents sent out at the first gatekeeping will be either:
a. Private Law Appendix 1 order, or
b. Private Law appendix 2 order (Allegations of Harm) with:
The letter out to parties with the second gatekeeping paragraph; and
The Applicant’s allegationss of alleged harm; or
The Respondent’s allegations of alleged harm.
If there is a second gatekeeping an Appendix 3 order will be made and sent out.
Unfortunately the system, though aims to fast track “harm” cases by recognising them early, does not appear to do that. The schedules of allegations are apparently not being sent out and the reports are not being commissioned early. The delays in listing persist and do not appear to being reduced.
The full text of Mostyn J’s announcement is found here.
The links at the foot of the announcement will take you to the archive of Zip files. Unfortunately the links cannot be activated directly from this website.
The partes married in 2011 and separated in 2016. In August 2016 H issued a divorce petition and in October 2016 W issued her application for financial remedy orders by means of a Form A. The case continued through the normal hearings to a final hearing and at all stages the parties reminded the court there had not been a decree nisi. The case was lited for a 2 day hearing on the 24th and 25th January 2018. On the first day it was pointed out to the court there was still no decree nisi. At the start of the of the second day of the hearing before the deputy district judge she stated (according to the transcript) “I am sorry I am late..…but I can say that I have dealt with the issue of decree nisi at this point” [8]. This clearly gave the parties grounds to believe there had been a decree, indeed in her judgment the DDJ reaffirmed “the decree nisi was pronounced by me on day 1 of the trial” [12].
In fact the hearing took 4 days finishing on the 8th October 2018 when judgment was reserved. Due to illness and other complexities arising, including the DDJ being given a full time appointment on another circuit, judgment was circulated in draft on 18th March 2019. In the draft the DDJ stated “The decree nisi was pronounced by me on day 1 of the trial, given that this had not previously been attended to, and without which this court would not have jurisdiction to hear this case.” The parties were in agreement the decree nisi was not made on the 24th January 2018. It was not until 10th June 2019, some 18 months after the hearing began, that the judgment of the district judge was perfected and handed down and a financial remedy order was made on that day.
On 17th April 2020 Recorder Salter delivered a reserved judgment on 3 applications by both parties to the divorce. Namely, an application by the husband (H) for a stay of execution against the financial remedy order, an application by H to vary the periodical payments contained in said order, and an application by the wife (W) for a declaration that a decree nisi was granted on 25 January 2018. This last question was central to the proceedings and as the Recorded found that no such decree nisi was pronounced on that date accordingly the financial order was a nullity. Thus H’s applications were redundant. The appeal in question therefore turned on whether decree nisi had in fact been pronounced on 25 January 2018.
This appeal came before Cohen J on 22nd October 2020 who found there were a number of procedural hiccoughs:
(1) the judge did, it is now clear, sign a certificate of entitlement on 25 January, very probably just before going into court;
(2) what the judge said was that the matter, the issue, had been “dealt with.” She did not say that the decree nisi had been pronounced;
(3) no notice of the decree hearing had been given to either party;
(4) no determination had been made as to whether or not the decree should not be pronounced in public in the usual way and I mention this only because it is plain that what happened if a decree was pronounced was that it happened in private;
(5) there was no listing of the decree nisi;
(6) there is no tape on which a decree nisi can be heard to be pronounced;
(7) there is no record of the decree nisi anywhere on the file either that it be listed or heard or pronounced;
(8) no decree nisi was ever sent to the parties.
Cohen J stated while it was possible to adjust or abridge formalities by judicial decision, they could not simply be overlooked [26]. He found it remarkable that neither party had questioned the lack of such a certificate and procedural steps thereafter [27]. He added it was “deeply unfortunate” that the parties had between them spent in excess of £100,000 over 4 years. He made it clear that absent a fundamental change of circumstances or a clear error by the judge a like order would be made by the court and possibly at an abbreviated hearing. He recognised “that it is deeply unsatisfactory for the parties, four years after financial remedy proceedings were commenced, not to have a final order but, in my judgment, that is where they are.”[40]
The full judgment can be accessed here.
In an order made after a fact-finding hearing in care proceedings Jones J directed: “R” should not be provided with a physical copy of the judgment or of written submissions made but should instead receive a summary of the findings and a redacted version of the judgment with explicit sexual references removed.
The order was made under “extreme circumstances” [2] whereby R, the adult brother who intervened in care proceedings relating to his two sisters, was found to be a “predatory paedophile” who had raped his sister. The trial Judge therefore made the above order “to protect the children from sensitive information including allegations of sexual abuse being misused or potentially being circulated amongst paedophiles within the prison”[5]. The trial Judge recognised, using the words of Munby J in Re B, that it “is an exceptional course to restrict a litigant’s access to documents”. The judge then accepted the burden to restrict disclosure is a heavy one [20] and stated there is “obviously a legitimate public interest in protecting the children…from details of what has occurred from becoming widely shared”, particularly where such distribution was for “sexual gratification”, amounting to “degrading treatment” contrary to their Article 3 rights [20].
R appealed on several grounds, namely: the Judge had given too much weight to the perceived risks of unlawful dissemination of the material and too little to R’s future need to access material for proceedings in prison, and in any event the court did not have the power to prohibit the disclosure in issue. Jackson LJ held that the Judge had conducted a “conspicuously careful balancing exercise” which led to a “sound” conclusion [22]. R had been provided with “everything he needs to understand the Judge’s decision” [22]. Jackson LJ highlighted the guidance of Baroness Hale in Re A (Family Proceedings: Disclosure of Information) [2012] at [31-32] when considering a subject’s Article 3 rights. He also stated that a party does not “own documents filed on his behalf so that he cannot be deprived of them” [25].
The full judgment can be accessed here.
The health trust made an out of hours application which sought to remove a woman (GH), who was in obstructed labour, from her home to hospital in order to deliver the baby by Caesarean. GH had suffered depression, anxiety and acrophobia which operate to the extent that she had not left the house since 2017 [6]. Although GH had previously indicated that she would go to hospital if necessary, on the evening of the application she declined the advice to go to hospital, after going into labour 72 hours earlier [2].
MacDonald J agreed with Keehan J in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor) [2014] EWCOP 30 that there is a heavy burden on Trusts to engage in early and thorough planning in cases of this nature, in order to prevent the need for urgent application to the out of hours judges [5]. However, in this instance he accepted that this was an appropriate circumstance for an out of hours application. Until late that afternoon GH was assessed to have capacity with respect to decisions about managing her pregnancy and had agreed to hospital if necessary. It was only later in the day that it became clear that GH’s anxiety and agoraphobia “had become the dominant feature in her decision making” [5].
In considering GH’s capacity to make decisions pursuant to the section 15(1) of the Mental Capacity Act 2005, MacDonald J stated that “GH simply does not acknowledge the risk of serious injury or death or accept…it is relevant to her as long as she remains in her “safe space” [31]. This demonstrated that GH’s agoraphobia had overwhelmed her ability to use and weigh information as required to agree to be admitted to hospital and undergo an emergency operation.
As to determining the question of best interests under section 4(1) of the act, having balanced the risks of increased anxiety, MacDonald J gave considerable weight to her previous willingness to go to hospital. Which in MacDonald J’s view established that GH wanted for her and the baby to stay alive, which satisfied him that it was in GH’s best interest to be conveyed from her home [33]. To this end, MacDonald J authorised use of reasonable restraint, but echoed his own statement in Cambridge University Hospitals NHS Foundation Trsut v BF [2016] that this was a “grave step indeed to” compel a patient to undergo medical treatment [41].
The full judgment can be accessed here.
The judgment concerned a father’s (F) application for indirect contract with his children, B aged 16 and (K) aged 14, both of whom had been in the care of the local authority since 2013. At the conclusion of these care proceedings an order pursuant to s.34(4) of the Children Act 1989 was made, granting the local authority leave to refuse contact with the father [4]. The father was deported from the UK in 2017, received a lifetime ban on re-entry, and had also fathered another child (ED) with LM, the half-sister of the two children [8].
The local authority’s statement in response to F’s application recorded how extremely fearful both children were of their father, whereby K feared his father finding and killing him, and B would not travel independently for the same reason [16]. The extent of such a fear was shown by the fact that the existence of F’s application could not be revealed to the children for fear of traumatising them [17]. The statement “could not have been more clear as to the perceived lack of merit of the father’s application” and as such the local authority applied for summary dismissal of the application [20].
Mostyn J pointed out that notwithstanding the complete absence of any rule, in FPR Part 12 to 14, that permits striking out or summary dismissal on the ground of a lack of prospect of success [21]. Munby LJ, in Re C (Children) [2012] EWCA Civ 1489 at [14], confirmed that in cases relating to children the court has wide powers to dismiss on summary application where a case is “if not groundless, lacking enough merit to justify pursuing the matter.”
Mostyn J dismissed the application on the above grounds, based on the fact that the Gillick-competent children made it clear they would “unambiguously refuse to engage in any form of contract with him” [27]. Secondly, the order made under 34(4) did not relieved the local authority of its duty to promote and maintain contact between child and their family (Sch 2, para 15(1)). Thus, F’s application was premature, the correct course of action would be send a letter for his children to the local authority, who would then make a decision in light of the aforementioned duty as to whether to hand it on [30]. The local authority could only refuse if the promotion of contact was objectively and reasonably not practicable or consistent with the children’s welfare.
The full judgment can be accessed here.
In March 2020 Cohen J made a final order in a long-standing financial remedy proceeding which provided that the husband (H) pay the wife (W) £64 million to include a lump sum by instalments of £49 million. The lump sum was to be in three instalments: the repayment of the £12 million mortgage on the matrimonial home (which was to be transferred to W mortgage free); a payment to W of £30 million within 6 months of the order and a further payment of £12 million within 18 months of the order. The timescale of these payments was proposed by H during negotiations.
H applied to the Court of Appeal for permission to appeal which was refused on 18th August 2020. H failed to pay any of the lump sum and transfer the property mortgage free. On 28th September 2020 H applied to vary the order both as to quantum and as to time for payment on the basis the pandemic was a Barder event. He filed a statement (his 11th) which claiming there had been an “enormous reduction” in his personal wealth, as a large proportion of his assets were held in countries, or “underpinned by businesses”, which were among “the hardest hit globally during the course of the crisis” [14]. As such, H argued that the “entirely unforeseen and unforeseeable course of events” had “fundamentally undermined the fairness of the award” [15]. H was unable to fully quantify the “enormous reduction”. In support of his application H merely relied on a statement of his “understanding of the current position”, which concentrated on the macro-economic situation arising from Covid-19 [16]. H also sought the revaluation of all the assets in the case, an exercise which would take 6 months to complete and cost between £300,000 and £400,000.
Cohen J held that it was not proper to accede to H’s application to vary the quantum on macro-economic grounds [26]. It was for H to provide prima facie evidence and he had not. He had given no indication of what he says he is worth nor what he can pay and when. While no doubt the pandemic had affected industries which formed part of H’s wealth, H provided no documentation containing trading figures or valuations [26].
Cohen J also stressed that the major stock market indices had rebounded to pre-pandemic levels, meaning that any valuation requested by H, done at a significant cost, “would inevitably be even more speculative than that done in pre-Covid time” [30].
The full judgment can be accessed here.
The Law Society Gazette reported on 30th March 20121 the Court of Appeal judgment in a groundbreaking case that is expected to inform the way family courts treat allegations of domestic abuse and coercive and controlling behaviour.
Two months after hearing four linked appeals related to family proceedings involving the welfare of children, Family Division President Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde published a 47-page judgment.
The appeal court was last asked to give general guidance on the approach to domestic abuse in child contact cases two decades ago. Practice Direction 12J was subsequently issued, setting out what the family court is required to do in cases where it is alleged or admitted that the child or a party has experienced domestic abuse or that there is a risk of such abuse.
The appeal court said PD12J remained fit for purpose – the challenge related to its proper implementation. The court offered ‘pointers’ to those implementing the Domestic Abuse Act and any subsequent revision of PD12J. These include asking, in every case where domestic abuse is alleged, both parents to describe in short terms, either in a written statement or orally at a preliminary hearing, the overall experience of being in a relationship with each other.
The Scott Schedule is a schedule or table used in family court proceedings to set out the allegations in dispute. The court said there was ‘effective unanimity’ among the dozen oral submissions heard during the appeal ‘that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid’.
The judges concluded that ‘the process before this court has undoubtedly confirmed the need to move away from using Scott Schedules’.
The court said it was ‘fundamentally wrong’ for the family court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based on criminal law principles and concepts. ‘Family courts should avoid analysing evidence of behaviour by the direct application of the criminal law to determine whether an allegation is proved or not proved. A further example can be drawn where the domestic abuse involves violence. The family court may well make a finding as to what injury was caused, but need not spend time analysing whether in a criminal case the charge would allege actual bodily harm or grievous bodily harm’.
The court allowed the appeals in Re B-B, Re T and Re H-N and dismissed the appeal in Re H. The judges stressed that none of their decisions established ‘new law’.
In concluding remarks, the judges said: ‘Each of these appeals are examples in differing ways of the importance of the modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household. Training together with a proper application of PD12J largely ensures that such errors are the exception rather than the rule, but that that is the case does not lessen the impact on those individuals affected when things do go wrong.’
The judgment states that the appellant mothers had legal aid. The respondent fathers were represented by solicitors and counsel acting pro bono.
The judges said: ‘The court wishes to express its gratitude to all those who have acted pro bono which has also included many of the interveners. As a consequence of their willingness to act without payment, this court has had the inestimable advantage of hearing submissions made from all perspectives.’
Sir Andrew McFarlane, the President of the Family Division, has announced on the 24th February 2021 that the Financial Remedies Courts pilot project has now been completed. Financial Remedies Courts will now be included in the permanent structure of the Family Court in all 18 zones of the Family Court system in England and Wales.
The Financial Remedies Courts will deal with all financial remedy applications, whether arising from divorce, or under the Children Act 1989, Schedule 1, or under the Matrimonial and Family Proceedings Act 1984, Part 3. It will also deal with all applications for enforcement of financial remedy orders. The Presifdent is hopeful that in due course legislation will be passed which will allow the Financial Remedies Courts to hear applications under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and the Inheritance (Provision for Family and Dependants) Act 1975.
The zones and membership of the courts are set out in a helpful organogram published by the Ministry of Justice. The key governing constitutional documents of the FRCs are the Good Practice Protocol and the document “Overall structure of the Financial Remedies Courts and the role and function of the lead judge”, both dated 7 November 2019.
The full announcement the Courts and Tribunals Judiciary website.
The child in question (T) became the subject of care and placement proceedings in 2015. Mr H was not named on the birth certificate but a paternity test confirmed that he was T’s father and he was therefore joined to the care proceedings. Mr H was refused permission to appeal placement orders made in April 2016 and adoption orders made in April 2017. Mr H then applied for declaration of parentage, aiming to secure an amendment to the original birth certificate.
MacDonald J was satisfied that the court has a jurisdiction, pursuant to s.55A(1) of the Family Law Act 1986, to grant to a birth parent a declaration of parentage following the lawful adoption of a child. He concluded that it was possible to read “any person” to include a birth parent in the position of Mr H whose child was subject to an adoption order (s.46 Adoption and Children Act 2002). Macdonald J was further satisfied that s.55A(5) FLA 19896 allowed the court to refuse to hear a preliminary issue on the grounds it is not in the child’s best interest for the application to be determined . In this instance, the adoptive parents thought it important that the child know her full life story and they had no objections to Mr H’s name on the birth certificate. Therefore, MacDonald J declined to refuse to hear the application and listed that for a final hearing.
Full judgment, click here.
These proceedings concerned W, a 10-month-old child, born on 19 February 2020. Three days prior to his birth, his mother (M) notified the local authority that she intended to relinquish W for adoption and that she did not want the father, or any member of the wider families to be told of the birth or adoption proceedings. On 3 September the local authority applied for an order, under FPR Part 19 and rule 14.21, endorsing its decision not to disclose W’s existence to his father, and an order to the same effect in relation to non-notification to the maternal grandparents. The Child’s Guardian opposed the application.
In dismissing the application, Peel J set out a number of “lessons for the future in non-notification cases” [48-54]. Peel J was highly critical of the “utterly unacceptable delay” [43] in making the application 7 months after birth, comparing it to the judgment in A, B and C [2020] EWCA Civ 41 In that case the Court of Appeal emphasised the urgency required in making a part 19 or Rule 14.21 application and concluded that an application made after 4 months was “belated” [48]. Further, Jackson LJ stated at paragraph 86 of A, B and C that decisions relating to non-notification should be taken “at a very early stage.” In the current case Peel J stressed that a “Local Authority should ensure that it explains carefully and sensitively, to a mother every stage”, of the non-notification procedure, “setting out the competing factors and considerations” [48].
At paragraph 22, Peel J included a summary, from A, B and C [86-88], of such principles which the local authority should “closely adhere to” when making decision as to whether a putative father or relative should be informed of a child’s existence. It was stated that while the welfare of the child is an important factor, it was not the “paramount consideration” and other factors such as the likelihood of a family placement being realistic alternative to adoption and Article 8 rights had to be considered. It was stressed that where there is a “family life” under article 8 “the maintenance of confidentiality is…highly exceptional” [22].
For the full judgment click here.
The need for fact finding arose in relation to the father’s (F) application for contract with his 6 and 3-year-old children who lived with their mother (M). The case was transferred to the High Court following a successful appeal overturning a case management decision to exclude similar fact evidence in relation to a second relationship. As a result of this Court of Appeal Decision, the court also heard about the father’s subsequent relationship with a 40-year-old woman and her 2 children.
In the instant case Hayden J stated that considering both cases together “illuminate the sinister, domineering” behaviour that would “not have been fully appreciated had the cases been severed” [5]. Following a detailed analysis of the allegations of controlling and coercive behaviour in which it was found M was “subjected to a brutalising, dehumanising regime by which F subjugated her and was profoundly corrosive of her autonomy” [64].
In concluding that F was a “profoundly dangerous young man…to women … and children” [101] Hayden J considered the definitions provided by section 76 Serious Crime Act 2015 and FPR 2010 PDJ12J [105-109]. He said that an “overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour” [108]. Hayden J stressed that there will frequently be clues, hints, indicators and triggers in what people report which might stimulate wider forensic curiosity and precipitate investigations of greater subtlety and nuance [112].
The full judgment can be accessed here.
In June 2017 it was agreed that the 5 children, aged 4 to 11, should live with their maternal aunt, Mrs Z and uncle, Mr Y. In December 2018, a Child Arrangements Order was made in favour of Mrs Z and Mr Y. When the matter was transferred to the Family Court sitting in Manchester, Salford City Council applied for care orders. The biological mother sought a s8 PSO, prohibiting the proposed special guardian, Mrs Z, from giving effect to her intention to have the children initiated into the Roman Catholic Church. The mother contended that the children had been brought up in the Pentecostal faith. While in the care of Mrs Z the children attended a Roman Catholic church, spiritual trips and pray the rosary every evening. As such, the children considered themselves Roman Catholic and displayed crosses around their necks to social workers.
Mrs Z contended that it was difficult to enrol the children in a local Roman Catholic school because of their lack of Catholic Baptismal Certificate and the fact they could not take communion left them feeling left out of the community [31]. The mother contended Special Guardianship Regulations 2005 required the children to be brought up in the context of the parent’s religious beliefs [29].
MacDonald J dismissed the application for a s8 order saying while the 2005 Regulations “make plain that information regarding the children’s religious and cultural upbringing is important” and must be included in the report to the court [46] he was not satisfied that the Regulations intended to “ensure the approach of the special guardian…aligns with that taken prior”. The purpose was to identify the children’s welfare needs with respect to their religious and cultural upbringing. MacDonald J stressed that the conclusion reached in this instance was “not to pronounce judgment on the relative merits” of each denomination, but merely a matter of the children’s welfare [85].
For the full judgment, click here.
A care order was first made in relation to L in 2016 after his mother’s death; his father disputed paternity and did not have parental responsibility. L suffers from Autistic Spectrum Disorder, Post Traumatic Stress Disorder, and significant issues with regulation of emotions.
Following a series of failed foster placements, L was moved to a residential placement in January 2019. From this point L was subjected to a number of regimes “that may have amounted a deprivation of his liberty, including high levels of supervision and physical restraint” [11]. This included 2:1 supervision in January 2019 which was subsequently increased to 3:1 in November of that year. L moved to his current placement on 28 January 2020, with 2:1 supervision shortly afterwards, yet an application for an order authorising the deprivation of L’s liberty was not issued by the local authority until 28 August 2020.
Although MacDonald J authorised the deprivation of L’s liberty, he strongly reiterated the “vital” requirement that “all local authorities adhere strictly to the proper legal procedures where a child is to be deprived of his or her liberty in a placement”. As such, Lambeth “failed entirely to take the steps required” to ensure L’s deprivation of liberty was lawful at his current placement. MacDonald pointed to the requisite steps as summarised by Sir James Munby in Re A-F (Children) [2018] EWHC 138 (Fam) which must be “applied with rigour notwithstanding the current accepted difficulties in finding appropriate placement for children with complex needs”. In plain, neither the ongoing public health crisis, nor the emergency nature of a particular case were valid reasons for failing to follow the process set out in Re A-F.
The full judgment can be accessed here.
In a private law dispute the father of two children, aged 6 and 4, sought a specific issue order for their inoculation with the MMR and all other normal childhood vaccinations to include vaccinations for overseas travel and Covid-19. The mother questioned the efficacy of such vaccines [22], for her children in particular and alleged “experts” had concerns about ingredients of the MMR vaccine and their link to autism and Alzheimer’s.
With respect to vaccinations “for possible future travels”, MacDonald J held that it was not appropriate to make an order with “respect to travel vaccinations that may or may not be required in some unspecified point in the future” [3]. This was too speculative as to what vaccines might be necessary according to the “destination identified”.
MacDonald J also declined to a decide the Covid-19 vaccine issue given the “very early stage reached” in the vaccination programme. It is unclear what the official guidance on whether children will receive a vaccine and what vaccine that would be. However, MacDonald J stressed that “it was very difficult to foresee a situation in which a vaccination against COVID-19 approved for use of children would not be endorsed by the court” [4].
As for inoculation against MMR, MacDonald J granted a specific issue order authorising the administration of vaccinations in accordance with the NHS Vaccination Schedule applying Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664. Scientific evidence and Public Health England guidance establishes it “is generally in the best interest of otherwise healthy children” [40]. For a parent to assert otherwise they would have to adduce “credible peer review research” and a reputable “jointly instructed expert” [46] rather than “junk science” (Sedley LJ in Re B (Welfare of Child: Immunisation) [2003] EWCA Civ 1148.
For the full judgment click here.
To all Financial Remedies Practitioners
Nicholas Mostyn
Edward Hess
5 February 2021
Footnotes
A Recap
If a party believes that the disclosure given by the disclosing party is inadequate a party may apply for an order requiring specific disclosure under CPR rule 31.12(1).
CPR rule 31.12(2) provides that an order for specific disclosure is an order that a party must do one or more of the following things:
The wording of the CPR is clear in that an application for specific disclosure can only be made against ‘a party’ and, therefore, an order for specific disclosure against a respondent will only be effective if the document required is in their possession or control (CPR rule 31.12(2)).
A document will be in control of a party if:
As such, when documents belonging to a party are being held by a third party those documents are subject to be disclosed under Part 31 by virtue of the party having a right to possess those documents. However, documents held by a third party will fall outside the scope of Part 31 if those documents belong to the third party North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 Per Toulson LJ at [40].
Non-Party Disclosure
In the event that the applicant requires disclosure and inspection of a document held by a third party, and the disclosing party does not have control of the document by having a right to possess it, in most circumstances the most appropriate course of action would be to make an application for non-party disclosure under CPR rule 31.17.
The court may make an order for non-party disclosure if:
It is important to note that a court will not make an order for non-party disclosure unless both criteria are satisfied. Even if both criteria are satisfied, the court still has a discretion to decide whether it ought to order disclosure from a non-party.
In IC v RC [2020] EWHC 2997 (Fam) Knowles J considered when an order may be amended under the slip rule (rule 29.16(1) FPR) in circumstances where the husband argued that the order ceased to have effect.
In this case, a financial remedy consent order was approved by the court requiring the husband to pay periodical payments to the wife during their joint lives. The husband argued that he had a reduction in his income and, therefore, applied to vary the order. The wife made a cross-application to enforce the order. At the final hearing, it was accepted that the husband’s income had lowered. The order for periodical payments was varied to reflect the husband’s reduced income.
The husband was unrepresented and so counsel for the wife drafted the order that was later approved and sealed by the court. The order provided that one trigger for the end of periodical payments was the ‘applicant’s remarriage’. The husband later re-married and stopped paying. He stated that he understood the order to mean that the periodical payments would stop at his remarriage. The wife issued an application to correct the order under the slip rule. The order was corrected by the court to read ‘the respondent’s remarriage.’
The husband later instructed direct access counsel to apply for permission to appeal (out of time). He argued that the court had no power or jurisdiction to amend the order under the slip rule, as the order ceased to have any effect following his remarriage.
Knowles J held that the slip rule was applicable, and therefore amendments to an order can be made, at any stage in proceedings to ensure that the order properly reflects what the court intended. The reasoning behind the decision being that the words ‘at any time’ in rule 29.16 applies equally to orders that are no longer in existence. It was noted that if the court accepted the husband’s submission, he would benefit from the order in a manner not intended by the court which would be ‘profoundly unjust to the wife’ (at [34]).
This judgment also highlights the dangers of simply referring to the parties as the ‘applicant’ or ‘respondent’. An individual’s party status may change throughout proceedings as occurred in this case where the wife was the original applicant for financial remedies but the husband subsequently became the applicant when he applied to vary the order.
Daniel Proctor
06.01.20
W (Children: Reopening/Recusal) [2020] EWCA Civ 1685
This case came to the Court of Appel on a mother’s application to appeal a decision to set aside findings of fact, concerning her allegation that the father perpetrated domestic abuse against her, because of appearance of judicial bias.
During the fact-finding exercise, conducted in April 2020, DJ Wylie made six of the findings sought, gave directions for further evidence and listed a final welfare hearing. Recorder Searle sought to relist it before DJ Wylie, following two adjournments owing to unavailability of CAFCASS, but discovered she had recused herself due to a “family connection” to a party. No further information was provided.
On the 17th July 2020 HHJ Dugan set aside the findings of DJ Wylie, concluding that there was an appearance of bias which “infringed” the “test of bias” [16]. The parents were unaware of the details of the “family connection” cited by DJ Wylie in recusing herself.
On the 21st July 2020 the mother’s solicitor wrote to the court asking three questions which were answered by DJ Wylie on the 29th July 202 in a response sent to the court office:
Unfortunately these responses were not sent to the parties until the 7th November 2020. The mother had obtained permission to appeal on the 23rd October 2020 and the matter was listed to be heard by the Court of Appeal on the 3rd December 2020.
The mother sought an appeal on a number of grounds [21] including that
Additionally, she argued the process prevented her from advancing an argument that there was no apparent bias as she was not given a proper explanation of why the District Judge recused herself.
Lord Justice Peter Jackson, giving the judgment of the court, held that HHJ Duggan’s “unexpected” decision to set aside the findings was “both wrong and unfair” [40] for several reasons:
For the full judgment, click here.
Warrington Borough Council v TN (Care Proceedings: Comity) [2020] EWFC 79
In a case concerning care proceedings relating to an 8-year-old child (JN) born in the UK to Lithuanian parents, MacDonald J restated that participants, in such proceedings involving more than one jurisdiction, must “give appropriate weight to the principle of comity as it pertainsto judicial and social care arrangements” [37].
JN came to the attention of the local authority when it was informed that the mother was convicted of “people trafficking” and was subsequently at risk of a significant custodial sentence. In addition, there were welfare concerns due to the child’s exposure to domestic abuse and gaps in her education. After serving a two-year custodial sentence, the Home Office agreed not to deport the mother until the Family Court decided if it was in the interest of the child to accompany her.
The main issues in this instance related to a dispute between the parties about the extent to which the court needed confirmation of the safeguarding measures that would be taken by Lithuanian authorities. Such authorities repeatedly made it clear that it would set out what steps it deemed appropriate upon the child’s arrival in Lithuania, whereas the Children’s Guardian was for some time unable to agree to JN’s relocation without details of what support would be made available.
Macdonald J held that while the English court had “no jurisdiction to compel the Lithuanian State Child Rights Protection and Adoptions service to take a particular course of action” [14]. Given that the principle of comity does not derive solely from Council Regulation 2201/2003, but also in the common law (see Buck v Att-Gen [1965] Ch 745 at 770), it still applies [26]
For the full judgment click here
Re H (Step-Parent Adoption) [2020] EWFC 86
This case concerns an application for the adoption of a 17-year-old girl (H) under s.46 Adoption and Children Act 2002 by her stepfather. Born in Thailand, H and her mother have lived in the UK since 2011 with the stepfather and their two younger children. H’s birth father was never married to her mother, he was named on the birth certificate but did not acquire parental responsibility. The Thai authorities were unable to trace him.
Cobb J set out the Thai legal framework with regards to “legitimation” and “parental power” (parental responsibility is not a term used in the relevant Thai statute) [9-14], which is largely similar to s.4 Children Act 1989. Aside from the fact that naming the father on the birth certificate does not of itself grant legitimation to a father who was not married to the mother. Under Thai law the stepfather was also able to adopt H as there is the required age gap of at least 25 years and H consented to the adoption, as required by a Thai child over 15.
Cobb J held that the father’s consent was not required as he did not appear to have parental responsibility for H (s.52(6) Adoption and Children Act 2002). Had the father’s consent been required, Cobb J stated he would be “contented…to dispense with it on the ground that he could not be found” (s.52(1)) or on the grounds that H’s paramount welfare required such a dispensation per s.52(2) [18].
The full judgment can be accessed here.
An application for the adoption of A, the child of the applicant’s cousin, was made when A was 17, she reached her majority in September 2020. Born in St Lucia, A was brought to England in 2002 by Z at the request of the parents to bring her up alongside her four children. A’s parents signed a deed akin to a document delegating parental responsibility under s.2(9) Children Act. Since then, A has remained in Z’s care and obtained a residence order to counteract her father’s wish, expressed during a 2010 visit, that she return to St Lucia.
As a non-agency adoption, s.44(3) Adoption and Children Act 2002 dictated that a notice of intention to adopt must be given to the local authority “not more than two years…before the date on which the application for adoption is made. In this instance, Z spoke to the local authority about the proposed adoption in June 2018 but applied to adopt in May 2020. This application was returned to the court, owing to a number of errors and in incomplete sections. A second application, supported by the adoption social worker, was made in August.
Keehan J held that it was “manifestly in the welfare best interest of A” for the adoption order to be made in favour of Z, whom A “considers to be her mother” [48]. Applying a purposive reading of s.44(3) Keehan J found that the failure to comply with s.44(3) of the 2002 act was a purely “technical failure” with which the local authority took no issue [13]. Alternatively, A’s Article 8 rights required him to “read down” s.44(3), as to “deny A the transformative benefits of an adoption order such an outcome would be nonsensical and affront to public policy” [50].
Full judgement here.
The Supreme Court has announced that it has declined to hear a case in which a transgender man who had given birth to a child sought judicial review of the decision that had was registered as the “mother” on the birth certificate.
Mr McConnell argued for a declaration that, by virtue of his gender recognition certificate, under domestic law he was to be regarded and entitled to be registered as the child’s “father”. Alternatively, if domestic law required his registration as “mother”, he sought a declaration of incompatibility per s.4 of the Human Rights Act on the ground that the domestic law was incompatible with his or the child’s article 8 and 14 European Convention rights.
In the view of the Supreme Court the aforementioned assertions did not raise arguable points of law which should be currently considered given that the cases were the subject of judicial decision and reviewed on appeal.
To access the Court of Appeal judgment, click here.
This important case was heard by Pepperall J in the Administrative Court. The case was brought by the Public Law Project in conjunction with the Law Society Access to Justice Committee The Court held that victims of domestic abuse who jointly hold property with their abuser must not automatically be denied legal aid. In reality such capital is trapped, meaning that the LAA may exercise its discretion, pursuant to 31(b) Civil Legal Aid Regulations 2013, to grant legal aid in such cases.
Full judgment click here.
Following the breakdown of the relationship, GR continued to occupy and possess a joint interest in the three-bed family home in London worth £650,000 and subject to a mortgage of £302,000. GR was unable to meet mortgage payments having no assets at her immef=diate disposal. GR remained the children’s primary carer and the house, which was is in walking distance of their school, met their housing needs. GR applied for civil legal aid to fund private family-law proceedings in respect of the custody of the couple’s two children and a dispute as to their jointly owned property.
The Legal Aid Agency refused GR’s application as it assessed her disposable capital at £65,278, comprising of her interest in the home and the balance of her account. The LAA rejected an appeal which contended that the property should have been valued at nil because GR could neither borrow against the asset nor sell it. GR argued that the LAA Director had failed to exercise her discretion to disregard the value of the property.
On 1st December 2020, Sir Andrew McFarlane issued an addendum to the Practice Guidance: Placements in Unregistered Children’s Homes in England or Unregistered Care Home Services in Wales.
The Practice Guidance outlines the steps that must be followed in circumstances where an application is made to the court to exercise its inherent jurisdiction for an order to authorise the deprivation of liberty of a child.
In summary, those are:
The addendum creates the additional step that the court must include in any order approving the placement of a child in an unregistered placement, a requirement that the Local Authority should immediately notify OFSTED (England) or the Care Inspectorate (Wales) and provide them with a copy of that order and judgment of the court.
Daniel Proctor
Trinity Chambers
2nd December 2020
Practice Guidance: https://www.judiciary.uk/wp-content/uploads/2019/11/PG-Placements-in-unregistered-childrens-homes-in-Eng-or-unregistered-care-home-services-in-Wales-NOV-2019-1.pdf
Father Refused Permission to Join Care Proceedings
These care proceedings came before HHJ Middleton-Roy in November 2020. They concern a boy K (9 months old) who is presently living with his mother aged 17 in a specialist foster placement. David O’Brien of Trinity Chambers, acting on behalf of the Mother (“M”), successfully resisted an application by the Father (“F”) to be joined as a party to the care proceedings involving his son, K. The application by F was opposed by the Children’s Guardian, the applicant local authority (“LA”) being neutral.
Background
It was accepted by all that M was a vulnerable young person. M claimed that K was conceived as a result of rape perpetrated by F. In any event, M was 15 and F was 19 at the time and therefore M could not have legally consented. F denied raping M and asserted that M lied about her age and identity. M also alleged that she was subjected to physical domestic violence by F whilst she was pregnant. M believed F to have an extensive criminal record.
F was arrested and questioned by police before being released on bail. During the investigation, F’s paternity of K was confirmed by way of DNA test. The parties were subsequently made aware that no criminal charges were going to be brought against F.
Care proceedings were brought by the LA and F received notice of the proceedings pursuant to Family Procedure Rules 2010 (“FPR”) Practice Direction 12C. However, he did not have an automatic prima facie right to be joined as a party to the proceedings because, without parental responsibility (“PR”), he did not fall within the scope of FPR, rule 12.3. F therefore made a formal application to be joined to the proceedings.
The application
At a contested hearing, counsel for F argued that he should be allowed to participate in the care proceedings involving his son. Although it was conceded that no family ties existed between F and K, it was asserted that this was due to M denying F the opportunity to be involved in K’s life. It was submitted that for the court to make the correct decision in K’s best interest, it needed all the facts and information before it which would include input from F, who put himself forward as a potential carer for K alongside his mother (the paternal grandmother).
Mr O’Brien on behalf of M asserted that it would cause significant harm to M if F were allowed to participate as a party to the proceedings. Counsel argued that, given the history between M and F, this could undermine the current foster placement of M and K. Furthermore, the case authority indicated that F could not rely on Article 6 and 8 ECHR protection where he did not have PR or no family ties existed, and the latter required more than “mere biological kinship”. It was also submitted that even if F was excluded as a party, this would not prevent the LA from undertaking the relevant viability assessments.
The judgment
The judge relied primarily on the decisions in:
A Local Authority v B (Dispensing with Service) [2020] EWHC 2741 (Fam) (19 October 2020).
In A v B, MacDonald J held that the starting point is that a father should be able to participate in proceedings concerning his child. The court should start with full participation then consider partial participation and then, only as a device of last resort, the father’s exclusion from the proceedings. The court’s task is to identify the nature and extent of the harm in contemplation but there is no requirement that a significant physical risk be demonstrated. Authorities in the Strasbourg ECHR jurisprudence also put a high bar on excluding a parent with parental responsibility.
The court accepted that there had been no findings in relation to the allegations of rape or domestic violence. There was little by way of disclosure from the police. This notwithstanding, the court in this case was satisfied that F’s involvement did pose a risk of harm to M, and that M’s current placement could be “destabilized” due to her vulnerability. F did not have PR nor did he have a family life with K for the purposes of Article 8 ECHR. F therefore had no protection under Article 6 ECHR. Nevertheless, the judge felt that a balance had to be struck with a high degree of justification. The judge also expressed concern that safeguarding measures would not be appropriate or effective in the circumstances.
The judge was content that, at this point in time, the balance was tipped in favour of F being excluded from the proceedings. He did, however, direct that it be stated on the face of the order that:
As per the dictum of Hedley J in Local Authority v M & M & Ors (Rev 1) [2009] EWHC 3172 (Fam) (07 December 2009), it followed that this decision will have to be kept under review and it should be the responsibility principally of the solicitor for the child to restore this matter should circumstances change.
James F. Hankinson
Trinity Chambers
25.11.2020
Re P (Discharge of Passport Order) [2020] EWHC 3009 (Fam)
The proceedings before Cobb J [read here] concerned a 2½ year old child.
Cobb J identified a number of issues for the court to deal with. Namely, there was a dispute over jurisdiction as the parties did not agree on whether the child was habitually resident in Bulgaria or the UK. Secondly, there was an outstanding application by the father for the discharge of a passport order obtained by the mother without notice.
As for the latter issue, Cobb J held that the passport should immediately returned to the father. The father was directed to execute all necessary documents and travel consent to ensure the mother and child were able to return. Cobb J stated that, “a passport order is a potent order, with significant implications, whose use should be tightly controlled”. As such, a passport order should only ever be made for a finite period of time, likely for a period of six months before it expires unexecuted as in this instance. Moreover, a passport order should not be made where the sole purpose is to coerce a party into a given action.
Cobb J concluded that a passport order, “even on a temporary basis…is a very significant incursion into the individual’s freedom and personal autonomy.” As such, an order of this kind should “rarely if ever be more than a very temporary measure.”
Moutreuil v Andreewitch & Anor (Contempt: Sentence) [2020] EWHC 3085 (Fam)
Mr Justice Cobb considered [read full report here] the appropriate sanction for “flagrant” breaches of a freezing injunction, whereby 562 withdrawals were made from the shared account of an unmarried couple of 20 years. The circumstances of the case resulted in a 6-month term of imprisonment, suspended for 12 months.
In reaching this conclusion Mr Justice Cobb set out in detail the applicable legal principles to the application of sanctions [paras 7-10]. The court took into account that it was not the female partner’s wish to see her partner receive a custodial sentence, accepting such a sentence as a last resort. The breaches were deliberate, repeated and over an extended period of time. Such breaches had left the funds materially depleted, depriving the family of funds set aside for family therapy. Furthermore, the male partner had, only at a very late stage, admitted his wrongdoing nor accepted responsibility for the beach. The female partners costs were ordered to be paid by the male partner on an indemnity basis.
MG v AG (Appeal Out of Time: Relief from Sanctions) [2020] EWFC B49
Judgment before Mr Recorder Salter [read here]. An application by the ex-husband for permission to appeal out of time against an order for him to pay a lump sum of £3 Million, as well as monthly payments of £4,750 to his wife. He argued that he could not afford the terms of the order owing to the fact that the judge had merely taken half the value of his shareholdings in two private companies and provided no evidence-based justification as to how he could raise the lump sum.
The wife argued that the appeal was not only out of time, but the evidence presented at trial had indicated that the husband had planned to sell his business interests, rather than to rely on dividends to satisfy the lump sum.
Mr Recorder Salter carried out an extensive review of the law and found that due to the fact the delay in this instance was so “serious and lacking any good explanation” against a background of unexplained intentional delay, that he had no hesitation in denying relief from the sanctions. In turn, the application for permission to appeal was also dismissed.
The President of the Family Division, Sir Andrew McFarlane:- “This report [read here] brings together the various lines of thinking of recent years aimed at finding a better way to achieve good co-parenting between separated parents. It is an important and impressive document.
“It should be a matter of concern for society in general to achieve better co-parenting between separating couples. It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves. This figure is both startling and worrying. Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.
“The number of these private law applications continues to increase, and the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.
“For as long as I can recall, going back to Sir Nicholas Wall’s work on ‘Making Contact Work’ and indeed before that to the philosophy behind the Children Act 1989, 30 years ago, concerted efforts have been made to achieve a major societal shift away from seeing issues about ordinary child care arrangements as involving ‘rights’ or requiring legal redress. The Family Solutions Group are to be commended for mounting a strong case for major change; the courts can only do so much, any major change requires widespread engagement and support. The themes of this report should therefore be of interest to all.”
WS v KL [2020] EWHC 2548 (Fam)
A father’s appeal against an order allowing a mother to relocate two young children to Hong Kong was granted by Knowles J who found the judge had failed to carry out a proper welfare analysis or a proportionality assessment of the available options.
The parents and the children were born in Hong Kong. They had moved to the UK in 2016. The father had become concerned the mother would unilaterally take the children back to Hong Kong and applied for a prohibited steps order. The mother replied with an application to relocate to Hong Kong. The CAFCASS officer supported the mother’s application.
At appeal it was found that the judge’s decision was fundamentally flawed. He had failed to analyse both why the mother’s option was better for the children than the father’s or the welfare factors relating to all the available options. There was no consideration of the children remaining in the UK with both parents residing here, with little attention given to the father’s shared care application. The absence of a child-focussed, proportionate and holistic evaluation of each parent’s option for the care of these two children meant it was difficult to discern why the judge had reached his conclusion.
Trinity Chambers
Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44
HHJ Wildblood QC (the DFJ for Avon, North Somerset and Gloucestershire) released his judgment as a warning to parties and lawyers against unnecessary interim private law applications which amount to ‘wasteful’ litigation which is an ‘inappropriate use of limited court resources’. The Judge warned parties and lawyers that criticism and sanctions would follow when FPR 2010 r1.2e was ignored.
‘Judges at this court have an unprecedented amount of work. We wish to provide members of the public with the legal service that they deserve and need. However, if our lists are clogged up with this type of unnecessary, high conflict private law litigation, we will not be able to do so.
He went on to stress that private law litigation should not be brought to the family court unless ‘it is genuinely necessary to do so’, whereby differences cannot be settled away from court through means such as mediation.
The substantive case which prompted this warning involved an order for disclosure made by a Legal Adviser for 5 years of a mother’s medical records. HHJ Wildblood QC held that such an order was disproportionately invasive of the mother’s right to respect of her private life.
Trinity Chambers
The ABA has put together their guide to maintaining health, wellbeing and reduce stress during quarantine/lockdown/self-isolation or just working at home.
https://www.americanbar.org/groups/litigation/committees/mental-health-wellness/articles/2020/tips-boost-wellness-manage-stress-quarantine/
Rothchild v De Souza [2020] EWCA Civ 1215
The Court of Appeal dismissed an appeal of an order made by Mr Justice Cohen following financial remedy proceedings. The appellant husband (H) contended that Mr Justice Cohen, having stated his reasoning was on a ‘needs’ basis, had only taken account of the wife’s needs and rather his decision was based on H’s litigation conduct. Although litigation conduct can be taken into consideration (per s.25(2)(g) MCA 1973), H argued the judgment failed to quantify the financial effect of such conduct in the final award to the Wife.
The Court of Appeal held (after an extensive review of the development of the case law on litigation conduct and whether costs orders are always the appropriate remedy) that Cohen J had made it clear, as he was entitled to do, that H’s conduct had been taken into account after the needs of the children and their primary carer. As for awarding H with less than was required to meet his needs; the Court of Appeal clearly stated that within financial remedy proceedings, litigation conduct can justify awarding less than their needs (R v B and others [2017] EWFC 33, per Moor J).
Lord Justice Moylan echoed his observation in Moher v Moher [2020] Fam 160 at para 114, that financial remedy judgments should clearly lay out how the award was calculated. While this does not require a quantification upon each finding of litigation conduct, a reasonably structured analysis was encouraged.
Particularly relevant to practitioners, the court confirmed that orders for costs are not always the appropriate remedy for litigation misconduct. In this case the “destructive litigation” and consequent reduction of the available assets should not and could not be remedied by an order for costs, and with regards to distribution of matrimonial assets first consideration is given to the welfare of minors.
Claimant’s Succesful Application for Order for No Order for Costs – Defendant’s Unreasonable Behaviour
In this case the Claimant issued a Part 8 claim seeking a declaration that she had a beneficial interest in the property of her cohabitee, who died intestate, as well as issuing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Claimant sought to inspect the original deed. After the Claimant received the deed, following delayed responses from the Defendant, the Claimant discontinued her claim but made an application to disapply the rule as to costs when a Claimant discontinues.
The general rule where a Claimant discontinues their claim is that they will be liable for the Defendant’s costs incurred on or before the date on which the notice of discontinuance was served on the Defendant (CPR 38.6).
However, the court must also consider CPR 44.2 which requires the court to have regard to ‘all of the circumstances, including the conduct of the parties’. In order to depart from the regular rule in CPR 38.6, the Claimant should show a change in circumstances which was brought about by ‘some form of unreasonable conduct on the part of the defendant’ (Brookes v HSBC Bank Plc [2011] EWCA Civ 354).
The change in circumstances in this case, it was held, was brought about by the unreasonable behaviour of the Defendant by not engaging properly with the Claimant in pre-action Correspondence. Specifically, it took the Defendant 18 months after the initial request to produce the deed for the Claimant’s inspection. Further, despite requesting the addresses of the second and third defendant’s in this matter, the first defendant failed to disclose this information. As such, the Claimant’s application for no order as to costs was successful.
Daniel Proctor
Trinity Chambers
21.10.20
CENTRAL FAMILY COURT
STANDARD DIRECTIONS ALL TRIALS TAKING PLACE ENTIRELY IN COURT OR “HYBRID”
“The following directions shall apply to this hearing: –
1. This trial is taking place in court.
2. In proceedings where all parties agree the trial shall be conducted remotely, they should inform the court accordingly and submit a draft order.
3. The judge will rule on taking evidence or other remote participation during the hearing.
4. Any party seeking to call evidence or otherwise participate remotely must ensure that witnesses and individuals concerned can access Skype or another video platform agreed by the judge.
5. All participants are expected to observe Government rules on social distancing current at the time of the hearing and to co-operate with members of staff attempting to enforce such rules or guidelines.
6. Any party intending to attend the Central Family Court with personnel other than the following must inform the Central Family Court Office of the fact before the day of arrival and seek the permission of the judge:
a. The parties themselves;
b. One legal representative or McKenzie Friend;
c. Witnesses;
d. An interpreter;
e. An intermediary;
f. In the case of a corporate party, one representative of the corporate body (for example, in the case of a local authority the social worker may attend, but a team manager may not also attend without the permission of the judge).
7. Parties shall supply a list of these attending to the Central Family Court Office by email no later than 24 hours before the hearing.
8. Parties shall make all reasonable efforts to comply with any time given for arrival at the Central Family Court on the day of the hearing.
9. Parties are warned that the listing time for a case may be staggered. Parties should not assume that a case will be listed at 10 a.m.
10. Parties may be allocated a conference room or rooms and, if so, shall utilise those rooms and not any other conference rooms.
11. Parties should leave the court building promptly after concluding all business (which includes any necessary drafting or orders or advice to clients etc.)
Volume 1 of Standard Orders [Financial and Enforcement Orders] has been republished incorporating all amendments to 8th September 2020. The previous Volume 1 (as at 29 July 2019 )is not to be used and should be deleted.
Volume 2 of Standard Orders [Children and Other Orders] remains current. It may be updated in the future.
Neutral Citation Number: [2020] EWCA Civ 1070
Case No: B4/2020/0705
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT COVENTRY Her Honour Judge Watson
CV19C01519
Royal Courts of Justice Strand, London, WC2A 2LL
Date: 12 August 2020
Before
LORD JUSTICE DAVID RICHARDS
LORD JUSTICE HICKINBOTTOM
And
LORD JUSTICE PETER JACKSON
———————
N (Children: Interim Order / Stay)
———————
Jonathan Sampson QC and Adelle Eveleigh-Winstone (instructed by Kundert Solicitors LLP) for the Appellant Mother Aidan Vine QC and Sanjay Patel (instructed by Coventry City Council) for the Respondent Local Authority Gemma Bowes (instructed by Hammons Solicitors) for the Respondent Father Abigail Turner (instructed by Jackson West Solicitors) for the Respondent Children by their Children’s Guardian
Hearing date: 29 July 2020
———————
Approved Judgment
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10:30am on Wednesday, 12 August 2020. Judgment Approved by the court for handing down.
Lord Justice Peter Jackson:
N (Children)
1. On 6 May 2020, the Family Court approved the removal of three children from their mother and their placement in local authority foster care under pre-existing interim care orders. The removal was opposed by the parents and it was not supported by the Children’s Guardian. At the end of the hearing, which took place by video conference, the judge was asked by counsel for the mother to grant a short stay to allow for an urgent application to be made to this court. This was refused and the children were taken into foster care that evening.
2. At the end of the appeal hearing we informed the parties that the appeal would be allowed so that the children, who have not had face to face contact with their mother for three months during the current health restrictions, would return to her care on the following day. My reasons for agreeing with that decision appear below. At the end I restate the practice in relation to the granting of short term stays.
The background
3. The parents come from Afghanistan. The mother speaks no English. The father works as a taxi driver. There are three children: two boys aged 12 and 5, and S, a girl aged 7. S has global learning difficulties. The family came to the attention of the local authority in November 2019, when the older boy came to school with a mark on his face, saying that he had been slapped by his father. He also spoke of being hit on other occasions, including with a cloth belt. A neighbour reported that the mother had visited her for help in March 2018 after being assaulted by the father.
4. The children were taken into police protection on 8 November 2019 and placed together in foster care, where they remained for a week. An application for interim care orders was made. The local authority plan was for the children to stay in foster care pending assessments, but at a hearing before a Circuit Judge on 15 November 2019, it agreed that the children should be returned to their mother on the basis of a working agreement. The parents accepted that the interim threshold under s. 38 Children Act 1989 was crossed, and an order was made under s. 38A of the Act excluding the father from the home.
5. A further hearing took place before a District Judge on 18 December, when the local authority sought the removal of the children on the basis that S had told her teacher that she had been shopping for shoes with her father. The father produced a receipt for the shoes, showing that they had been bought while S was at school. The removal application was not pursued.
6. On 20 February 2020, the local authority made a without notice application requiring the surrender of the family passports on the basis that S had told her teacher that the family was going abroad on holiday and that it was secret. The parents, who denied any such plan, surrendered their passports and a hearing on notice took place on 28 February.
7. On that occasion, when the matter came before Her Honour Judge Watson, the local authority again sought the removal of the children. It relied on a number of features, including: S telling an assessor that she sees her daddy every day and that she had hurt her leg in his taxi, her comments about the holiday, and a report from a neighbour that the father was at the family home on 18 February. The application, opposed by the Guardian on the basis that the evidence was insufficiently clear to justify removal, was withdrawn, again with judicial endorsement. The importance of compliance with the orders were emphasised to the parents.
The local authority’s further application
8. The local authority applied again for the children’s removal at a hearing on 27 April 2020. Its care plan provided for indirect contact only due to the lockdown, and thereafter supervised contact with the mother twice a week. The evidence relied upon this time was: the social worker having seen a pair of adult sandals in the garden of the family home and S asking what time her father was coming over; the mother saying through an interpreter during an assessment that the father had removed a games console from the oldest child as he was using it too much; S saying during a social work visit on 20 April that she had been to the park on Sunday and daddy took them in his taxi.
9. The hearing, which was again before HHJ Watson, sitting as a Deputy High Court Judge, could not take place that day for lack of time and of an appropriate interpreter. It was adjourned to a one-day remote hearing on 6 May 2020. The parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses. However, when adjourning the matter, the judge directed that the only witness to give evidence would be the social worker. The parents were directed to file sworn statements which the judge stated that she would take “at face value.” She also made clear that she would need to have “robust” evidence from the social worker. She also noted that the Guardian, who was unable to attend the adjourned hearing, did not support the removal of the children on the basis of the evidence filed. We were told that the impression left on the parties was that the local authority’s evidence was going to be scrutinised to see whether it was capable of sustaining its revised care plan.
10. The parents filed detailed statements in which they denied every alleged breach of the working agreement or the exclusion order. For example, the mother said that she had “much more problems to think about than a holiday”. She agreed that she had spoken to the father about the eldest child using his computer too much and that the father had told her to remove it, which she did: he did not remove it himself. Likewise, she did take the children to the park, but with another adult, and not with the father. Whenever S sees a taxi she thinks it is her father driving it.
11. At the hearing on 6 May 2020, the social worker gave evidence for 3½ hours, not limited to the three latest allegations, but ranging over alleged breaches going back to December 2019. The mother’s advocate was at something of a disadvantage in that the remote hearing was being interpreted to the mother by an interpreter connected via the judge’s laptop and there was no ready means of taking instructions during the hearing. During the course of the evidence, the solicitor for the father applied for him to be allowed to give evidence, at least in relation to the games console. The judge refused, confirming that she had read the father’s statement and understood that he disputed what the social worker said. During closing submissions, the request was repeated for the parents to be allowed to give evidence if the judge was considering removal of the children.
12. After submissions, the judge adjourned for a short period and then delivered her decision. The hearing ended at 5.40 pm. Counsel for the mother sought permission to appeal and a stay; both were refused. The children were taken from their home sometime later that evening.
13. The main proceedings are currently listed for a substantial fact finding hearing on 23 September 2020.
The judge’s decision
14. The judge set the scene, noting that the safety of the children was dependent on the exclusion order and the written agreement. She set out at some length the local authority’s case and remarked that the ability to monitor during the stressful period of lockdown was limited. She reminded herself that the court was only entitled to make an order for removal where it was both necessary and proportionate and that there was no more drastic step than to take children from their mother and place them with strangers. She continued:
“10. Both [parents] deny the exclusion order has been breached. It is submitted that the children have not been in the unsupervised care of their father, nor have the children seen their father in the family home. It is said on behalf of the parents, supported by the Guardian, that the social worker has brought the case to court on two earlier occasions and the local authority has not pursued removal of the children notwithstanding having concerns that there had been breaches of the safety agreement and that the evidence supporting removal on this occasion, the third occasion the matter comes to court, is insufficient to pass the test of necessity and proportionality that I have referred to.
11. I do not agree with that analysis of the current situation. I look at a pattern of behaviour which begins with the events leading to the first attendance at court and brings us right through to the three specific concerns that have been raised in March/April of this year. It is that pattern of behaviour which builds up a body of circumstantial evidence which individually could be ignored, but together demonstrates a concerning persistent pattern of breaches of safety agreements, flouting a court orders and failure to implement the safety plan put in place for the protection of the children.”
The last sentence contains the core reason for the resulting decision.
15. The judge reminded herself that S has global developmental delay, but found that she was not a child who lies, but who recalls accurately and literally what she has seen, heard or experienced. She then reviewed a series of events and allegations preceding the current application, stating that she was setting out this background chronology from the social worker statement because it showed “a developing pattern of concerns” that were the background to three specific incidents which brought the matter back to court yet again.
16. As to the first allegation, the sandals seen in the garden on 14 April, the judge accepted that this could be explained as being one of a number of belongings left by the father in the home, “but the pattern of behaviour continues because it was S who said in the presence of the social worker, “what time is daddy coming over?””
17. As to the mother’s reference to the games console on 17 April, the judge described this as “another indication, this time from mother, that father was in the family home.” She referred to differences in the parents’ denials, but said that she was entitled to have reasonable grounds to believe that the father had been in the home after lockdown.
18. The judge then turned to the events of 20 April, saying that they caused her the greatest concern that there had been a significant breach of the exclusion order and safety plan. The social worker said that S had said that she had been to the park with daddy and that he had taken them in the taxi and that it was on Sunday; it was the reaction of the other family members, contradicting S, that made her realise that it was a recent incident. The next day she asked S about it at school, but S only giggled and laughed and would not engage with the conversation. The judge said that the court had reasonable grounds to believe that S was telling the truth about a visit to the park with her father in breach of the exclusion order.
19. The judge then concluded in this way:
“28. The risks to the children are that they could be subjected to further physical chastisement or that there could be a repetition of domestic violence and that the risks posed to S and her two brothers set out at the start of this judgement cannot be managed.… I am also satisfied that there is very significant emotional and psychological harm to the children being asked to cover up or to mislead social workers about events that have happened.
29. If father took the children to a park some way from their home as S said there would be less risk of being seen by the authorities.
30. In summary, I cannot be satisfied that if the children remain in the family home that the exclusion order will protect them in the way that was intended when it was made. It is therefore both necessary and proportionate for the children to be removed into foster care until the assessments have been completed and the ability of mother to protect children from harm, has been adjudicated upon.
31. I have set out the pattern of evidence upon which I rely at this interim stage before the factual matters have been fully aired and evidence called. It is, indeed, a holding order which preserves the security and safeguarding of the children, whilst the assessments are completed.”
During the discussions that followed, the judge further said this:
“Clearly, I am satisfied that the pattern of evidence in this case gives the court reasonable grounds to believe that the matters as are set out in the judgment have been established to the standard that is required at this interim hearing.”
20. Counsel for the mother, Ms Adelle Eveleigh-Winstone, sought permission to appeal and a stay of removal so that an application could be made to this court, saying that it would be far more destructive for the children to be removed and then returned a few days later, particularly after they had been removed at the end of last year. The judge responded:
“The difficulty I have with your request that I suspend the operation of the removal is that there are grave risks and concerns to the children in respect of breached exclusion orders and, of course, in this case there is also the additional risk that there has been prohibited steps put in place to prevent the children from being removed from the jurisdiction and the removal of the passport. It would be incredibly difficult for the children to be taken out of the jurisdiction at this time, but they could, of course, be taken away and taken to another part of the country and they would not be easily found in the current circumstances. I am afraid that I’m going to refuse you permission to appeal and I’m also going to refuse your application for a stay of the removal order for the reasons I have set out.”
21. During the hearing, the mother and children were at home, together with the interpreter.
Mr Sanjay Patel, representing the local authority, very fairly suggested that it might be appropriate to have the matter listed for further directions on the following afternoon to allow the parents’ representatives to take instructions. The judge did not take up this suggestion, saying that it was a matter for the local authority as to when it implemented its interim care order. At this point Ms Eveleigh-Winstone had not even been able to take her client’s instructions following the decision because communication with the interpreter came to an end when the judge rose. As a result, an application to the out-of-hours judge in this court was not possible before the children were removed.
22. It is then a matter of regret that the appeal took considerably longer to be heard than is normal. The application for permission to appeal was filed on 11 May, but it was not accompanied by a request for a stay and a transcript of the judgment was not received until 29 May. There was also an application to amend the grounds of appeal. Permission to appeal was granted by King LJ on 29 June 2020 and the matter was listed for hearing in vacation.
The appeal
23. On behalf of the mother, Mr Jonathan Sampson QC, leading Ms Eveleigh-Winstone, distilled the grounds of appeal in this way:
(1) The judge’s decision to hear evidence only from the social worker and not from the parents rendered the hearing unfair. She did not take the parents’ evidence “at face value” as she had said she would, but instead gave no weight to it and made adverse findings of fact without hearing from them.
(2) In consequence, findings were made without disputed matters being tested. That was particularly inappropriate where the language barrier gave rise to a potential for misunderstanding between the family and the social worker and where such reliance was being placed upon comments made by a child with global developmental delay.
(3) The judge should have heard evidence from the Guardian about the level of risk and the proportionality of removal, particularly as the Guardian did not support removal, and where face to face contact during the pandemic was not at the time practicable. More broadly, paragraph 30 was an insufficient balancing-up of the relevant welfare factors, even making allowance for the fact that this was an oral judgment.
(4) In adopting a ‘reasonable grounds to believe’ test, the judge applied the wrong standard of proof. That test applies to the establishment of the threshold, not to fact-finding at the welfare stage.
24. Mr Sampson referred to a number of recent decisions of this court that emphasise that fundamental principles of substantive law and procedural fairness are unchanged in the current circumstances. He accepted that a party has no absolute right to give evidence, but argued that where the issue centres on disputed facts it is inappropriate to refuse to hear evidence in rebuttal. He referred to the decision in Re S (a child) [2018] EWCA Civ 2512, a successful appeal from the interim removal of children on the basis of serious adverse findings that were made without hearing readily available evidence from the parent concerned. He also reminded us of the line of authority on Article 6 from the European Court of Human Rights on the question of equality of arms, of which the decision in Dombo Beheer B.V. v. The Netherlands (Application no. 14448/88) is an example. It was there said at paragraph 33 that:
“The Court agrees with the Commission that as regards litigation involving opposing private interests, “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.
It is left to the national authorities to ensure in each individual case that the requirements of a “fair hearing” are met.”
It was, therefore, Mr Sampson submits, remarkable that the judge decided to hear from the social worker, but not from the parents.
25. For the father, Ms Gemma Bowes, supported the appeal. He was willing to be bound by an order under the Family Law Act 1996 to achieve the effect of the exclusion requirement in the interim care order, if this is required to facilitate the children being returned to their mother’s care.
26. The Guardian was neutral on the appeal. Ms Abigail Turner confirmed to us that the position at the hearing had been that the Guardian did not consider that the evidence adduced by the local authority justified the removal of the children. It had been a surprise to the Guardian that the court had moved to making such an order in the light of the expectations raised at the pre-trial hearing.
27. In response, Mr Aidan Vine QC, leading Mr Patel, argued that the judge had a wide discretion as to what if any oral evidence she heard, provided the hearing was fair. It is not accepted that the judge made findings of fact, nor was she required to do so at an interim hearing. She was required to make an assessment of risk, and it was not necessary for evidence from the parents to be heard for that purpose. Their likely denials would add little. She expressly considered necessity and proportionality, and concluded that interim removal was justified. Read as a whole, the judgment carefully describes the basis for the judge’s decision that the risk matrix had changed and that the children could no longer be safe from their father in their mother’s care. This court should not interfere with that exercise of discretion. Finally, Mr Vine stated in his skeleton argument that the local authority’s case is that the children had “revealed further relevant information in foster care about the threshold events and whether their father continued to live at home”. He submitted that if the appeal succeeds the case should be therefore be remitted for a rehearing.
Conclusion
28. The power to make interim orders in cases involving children allows the court to regulate matters that cannot await the final hearing. Common examples are interim contact orders in a private law case or interim care orders in a public law case. When exercising interim powers the court is inevitably acting on incomplete information and often has to act with urgency. The principles of child welfare, family rights and procedural fairness will apply in the context of the provisional nature of the court’s task.
29. Here, the interim threshold was accepted to have been crossed and the court was making an interim welfare decision. The issue for the judge was the balance of risks and benefits for the children of remaining in their mother’s care. She correctly directed herself as to the test for removal at an interim stage. The fact that the children were already subject to interim care orders on the basis of a placement at home did not alter that.
30. A court considering an interim application in proceedings concerning children is required to undertake a level of investigation that is appropriate to the issues that need to be decided and sufficient to enable it to make a fair and effective evaluation of the advantages and disadvantages for the children of making or not making the interim order. Acting within the framework of the relevant substantive and procedural law, the court has a wide and flexible discretion as to how its investigation and evaluation should be conducted at the interim stage. Depending upon the case and the issues to be decided, the decision may well be properly taken without hearing any oral evidence: the question will be whether it is necessary to hear some, probably limited, oral evidence to enable a fair and effective evaluation to be made.
31. It is understandable that the judge did not feel able to deal with the issue before her on submissions only and that she needed to hear some evidence. However, once she had decided to do that, fairness required that in this situation she should hear from both the accuser and the accused. There will be cases, for example where the court needs to hear and evaluate professional opinion, where it will be proper to hear from witnesses from one side only. This was not such a case. The investigation was a factual one into events where the parents were primary witnesses. It is no answer to say that the court would not have been helped by hearing their denials. They were not making bare denials but giving possible explanations for much of the evidence brought against them and, at least on paper, those explanations were not self-evidently implausible and deserved proper consideration. However, instead of taking them at face value (whatever that might be taken to mean), the judge largely left them out of account. The investigation that was carried out was therefore not fair and effective.
32. As to the process of evaluation, there was insufficient consideration of all aspects of the children’s welfare. The judge was entitled to regard compliance with the working agreement and the exclusion order to be a matter of real significance, but it does not minimise the harm that has been and may be caused to these children to say that the case was not at the upper end of the scale of seriousness and that the welfare evaluation could not depend upon risk alone. In my view the judge’s characterisation of the risks as ‘grave’ was not in keeping with the evidence and her evaluation of the children’s welfare was at a level of generality that was inadequate to underpin an order for their interim removal. Nor did she factor in that the evidence that she did hear was, truth be told, a relatively flimsy basis for such a disruptive order. Though mindful of the limited role of this court, I consider that the test for interim removal could not reasonably have been met on the evidence that the judge received.
33. We allowed the appeal for these reasons. It is unnecessary in the circumstances to enter into a discussion of Mr Sampson’s fourth ground of appeal.
34. In making our order we did not overlook the local authority’s request for a rehearing on the basis that further information had come to light. However it did not identify the information or seek to file any further evidence. In the circumstances, we considered that the proper order was one that allowed for the immediate return of the children to their mother. Upon being informed of our decision, the local authority sensibly agreed with the suggestion that the best form of order was the one that existed before the removal of the children, and the parents were also content. We therefore maintained the interim care orders on the basis that the children would return home on the following day, with the s. 38A exclusion order in respect of the father remaining in full effect and subject to a written agreement with the mother.
35. I would emphasise that the outcome of this interim appeal cannot influence the final outcome of these proceedings, or bind the court in relation to any future interim application that may be made by any party.
Short term stays
36. A short term stay to enable an application to be considered by an appeal court before an order is put into effect is to be distinguished from a stay pending a decision on permission to appeal or a stay pending appeal. Applications for stays of the latter kind will be considered in accordance with the principles set out in Hammond Suddart Solicitors v Agrichem International Holdings Ltd. [2001] EWCA Civ 2065. By contrast, a short term stay is a purely practical remedy, distinct from the decision about permission to appeal. The correct approach for the court to take to an application of this kind was described by Wilson LJ in Re A [2007] EWCA 899 at [27], where he confirmed that the judge should always give serious consideration to allowing an applicant “a narrow opportunity” to approach this court so that the opportunity for a successful appeal is not unfairly eroded:
“27. When a judge considers that a significant change in the arrangements for a child needs to be made in effect forthwith and learns that there is an aspiration to appeal to this court, he should in my view always give serious consideration to making an order which affords the aspiring appellant a narrow opportunity to approach this court for further, temporary, relief before his order takes effect. No doubt the welfare of the child remains paramount; but, subject thereto, the judge needs to consider whether a refusal to afford a narrow opportunity for such an approach unfairly erodes the facility for effective appeal. If he decides to afford it, he can do so either by directing that the change in the arrangements should occur only at the end (say) of the following working day or by directing that the change should occur forthwith but that execution of his order be stayed until the end (say) of the following working day. The difference seems to me to be immaterial. When, however, a judge declines to take either of these courses, there remains the facility for the aspiring appellant to approach this court by telephone and no doubt usually on notice to the other party.”
Wilson LJ then set out the arrangements that then prevailed.
37. The current arrangements are that this court can be contacted during working hours on civilappeals.registry@justice.gov.uk between 9.00 am and 4.15 pm and out of hours through the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer the matter on to the Duty Clerk. Urgent applications should whenever possible be made within court hours. Unless already filed, the applicant or the applicant’s representative will be required to give an undertaking to file the necessary application form and court fee. Instructions may then be given for the transmission of essential information by email so that the application can be considered by a judge, who may decide to grant a stay, for example until the end of the following working day, to enable further documents, such as a note of the judgment and draft grounds of appeal, to be sent to the court for consideration of the merits of a further stay.
38. In this case, I consider that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers. The reasons given by the judge fell short of justifying refusal. The nature of the risks involved in the children remaining at home for a further very short period can be measured by the fact that the court itself had sanctioned them remaining there between 27 April and 6 May for procedural reasons. Further, as the judge herself acknowledged, there was no real risk to the children being taken out of the country and, bearing in mind that the family had not disappeared in the previous six months when it could have done, the prospect of internal flight was hardly likely either.
Lord Justice Hickinbottom
39. I agree.
Lord Justice David Richards
40. I also agree.
INTRODUCTION
1. We have reached a juncture in the Family Court’s journey through the COVID 19 crisis when it is both possible and necessary to take stock and to consider the road ahead. It is possible to do this because, in contrast to the early weeks, there is now a bedrock of experience of remote working. This experience, both positive and negative, was in large part described and teased out in the enormously valuable and impressive report published by the Nuffield Family Justice Observatory The Nuffield Family Justice Observatory on remote hearings in the Family Court in early May is necessary to look at the road ahead because any earlier rose-tinted thoughts that ‘this will all be over by July’ have sadly evaporated and it is now clear that, whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come.
2. In preparing this document, which seeks to establish a broad framework for the Family Court by attempting to chart the road ahead over the next six months or more, I have been greatly assisted by the NFJO Report, detailed feedback on that report from each Designated Family Judge [‘DFJ’] and Family Division Liaison Judge [‘FDLJ’], HMCTS, CAFCASS and CAFCASS Cymru, the FLBA, Resolution, the Law Society, the ALC and others. In addition I have been given invaluable support by Baker LJ and Judd J, who have led a small judicial group tasked with looking in detail at the ‘recovery’ period for the Family Court; their detailed internal report describing their own wide-ranging consultation brims with helpful insight and practical wisdom.
OVERARCHING THEMES
3. Before turning to matters of detail, I will deal with some of the overarching themes which underpin the framework described in this document.
The Road is Long
4. The most crucial change that must now be understood across the board by all involved in delivering Family Justice relates to the timescale before the court may return to full and ordinary operation.
5. In the early weeks of the COVID crisis most contested fact-finding or final welfare hearings were adjourned (unless they could proceed, for example, with minimal oral evidence). It was no doubt hoped by many that normal working would resume relatively soon and the delay in resolving the contested issues would not be great. It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021.
6. We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties. More positively, experience of remote hearings in the past two months has identified steps that can be taken to reduce the potential for unfairness (a number are listed at paragraph 49 below and more are set out at paragraph 5.19 of MacDonald J’s Guide to the Remote Family Court, enabling cases to proceed fairly when previously they may have been adjourned.
The Volume of Traffic is High
7. Save for a dip in the first weeks of lockdown, the volume of applications being made to the Family Court in both private and public law children cases has continued at pre-COVID rates. Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen. It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge.
8. It is well known that, prior to COVID 19, the Family Court was already attempting to process an unprecedented level of applications relating to children. President’s Private Law Working Group Report: and President’s Public Law Working Group Report
9. The reality to be faced is that the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources in sub-optimal court settings.
The Child’s Journey Must Not be Delayed
10. It is part of the DNA of all professionals working in Family Justice and embodied prominently in statute that delay in decision making is likely to prejudice the welfare of a child who is subject of court proceedings [CA 1989, s 1(2) and ACA 2002, s 1(3)]. There is a statutory requirement for public law cases to be completed in 26 weeks [CA 1989, s 32(1)].
11. In the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. A short adjournment to meet the needs for fairness and due process might not unduly compromise the need to achieve a final outcome for the child. Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child’s welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process.
12. Whilst a court is not required to hold the child’s welfare as the paramount consideration when making case management decisions, the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Making a timely decision as to the child’s further care is in essence what each case is about. The child’s welfare should be in the forefront of the court’s mind throughout the process.
The Road Ahead: Work in Progress
13. The fourth theme to stress is that, inevitably, much of what is described here in terms of future working is aspirational, untried and is likely to depend upon the ability of a range of agencies and professionals to deliver resources or to work in ways which will be new. In line with the experience of the past 10 weeks, different courts, judges and professionals will be more, or less, able to deliver change as a result of a range of factors including work-load, staffing and judicial resources, technology and (increasingly) the availability of courtrooms that are compatible with the strictures of social distancing. As has been the case during the past three months, much will depend upon continued communication and cooperation between each agency involved in the delivery of family justice; the importance of collaborative working, both locally and nationally, cannot be overstated.
14. The Family Court will now be moving from working almost totally via remote hearings to a situation where at least some, and increasingly more, hearings will be either fully attended by all parties or ‘hybrid’ (where some of the parties attend and the remainder engage with the court process remotely). This change in working practice will develop over time and is very much work in progress. It will in part depend upon the availability of a COVID-safe working environment in courtrooms and court buildings. Such resources will be in short supply and may fall to be shared with the criminal, civil and tribunal jurisdictions.
15. Even if attendance at court increases, it is plain that a good deal of the day to day work of the court will still have to continue to be undertaken remotely during the coming months.
The Road Ahead: Signposts not Directions
16. The overwhelming view of the judiciary and legal profession is that the Family Court does not need any further directive or proscriptive guidance on case management at this time. It is thought that the President’s Guidance issued on 19 March, coupled with the joint letter from the three Heads of Jurisdiction on 9 April and subsequent clarification through the appeal process and otherwise has achieved a workable and settled understanding that allows each judge, magistrate or legal adviser the discretion to make bespoke case management decisions on a case by case basis. I agree with this overwhelming view. Further, given that the court’s capacity to undertake a greater proportion of work via fully attended or hybrid hearings will undoubtedly change and develop differently in each court-centre and over time, it does not seem possible to contemplate directive guidance that would help rather than hinder that process.
17. The only change to the previous guidance that is now necessary is to revise subparagraph (g) in the Heads of Jurisdiction letter to judges dated 9 April which read:
“(g) In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
This passage should now read:
“(g) In all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. 5 Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.”
18. Save for the change to previous guidance set out in paragraph 17, this document intends to describe the framework within which the Family Court must operate for the foreseeable future. Its aim is to identify the basic priorities and ground rules and to offer a checklist for case management decision making. Given the potential for local resources to change and improve over time, this framework is intended to be supportive rather than restrictive so that the court system can be agile in reviewing how it undertakes its work as the road ahead becomes clearer and the resources or options available may improve.
PRACTICAL MATTERS
Court Buildings and Courtrooms
19. During June court buildings that have been ‘suspended’ or ‘staffed only’ are being reopened so that, by early July, the full Family Court estate should be open for public use once more, albeit that the impact of social distancing will substantially reduce capacity.
20.HMCTS has worked hard to develop and implement a risk assessment process
[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/885607/HMCTS_Organisational_Risk_Assessment_v1.0.pdf]which has allowed the system to identify a limited number of courtrooms as being appropriate for attended, socially distanced, hearings.
Each open court room will have a limit on the number of people who can attend a hearing, and the safe space for each attendee will have been marked out with vibrant tape. The number allowed in each courtroom is small and, in addition, there will be a limit on the total number of people who can be in the public areas of the court building at any one time in order to meet the Public Health requirements.
21. The call on these limited number of courtrooms will be substantial and will come from across the board from civil (inc Business and Property), crime and tribunals as well as the Family jurisdiction. HMCTS are working hard with the judiciary to 4 6 identify and secure additional temporary courtroom space outside the court estate (for example in conference centres, university or local authority facilities).
Remote Platforms
22.We have all learned a great deal about the various technical options that are available to facilitate a remote hearing. It is clear that there is a hierarchy between these various platforms in terms of their ease of use and effectiveness. But it is also clear that, because of work undertaken urgently by the various providers, additional features are added to one or other from time to time which may alter their place in the hierarchy so that it is not possible to issue firm guidance that one or other platform should always be used (as many respondents to the recent consultation earnestly sought).
23.The situation changes from week to week. Zoom cannot currently be supported by the judiciary and HMCTS, even though many users regard it as the most effective platform. The Cloud Video platform [CVP] favoured and provided by HMCTS, which has much more functionality than Skype for Business, is being prepared for widescale use across the jurisdictions. It is already being used in a number of criminal courts and, from the week commencing the 8th of June, it will be rolled out to Family Court centres. Microsoft TEAMS, which is the successor platform to Skype, is available for use by many judges.
24.Despite the necessarily moving picture that I have described, it is nevertheless possible to provide the following very firm steer:
a. In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or an email based process.
b. Telephone hearings may be well suited to short case management or review hearings, they are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance.
c. Where a suitable video platform is an available and viable option, video, rather than telephone, should be used for the conduct of a remote hearing.
d. It is not a good use of a judge’s time for the judge to be responsible for dialling in each participant for a BT Meet Me hearing. HMCTS has accepted that the task ought to be undertaken by staff and they are working hard to achieve this in all courts.
e. Experience has shown that BT Meet Me Dolby Plug-In (which channels the phone call through the judicial computer) is preferable to the basic BT Meet Me service and it should be used where available when a hearing is to take place over the telephone.
f. The two video platforms currently supported by HMCTS are Skype and CVP; of these two CVP is more effective than Skype and should be used where it is available.
25.There have been regional training sessions for judges and court staff, supplemented by daily national awareness sessions and the issuing of staff guidance in respect of CVP. The HMCTS held three training sessions per day for three weeks commencing on 20 April 2020 to support the roll out of CVP during which nearly 1500 members of staff and judges attended.
26.Where possible, courts should inform the parties which remote platform is to be used for any hearing at least 3 days prior to the hearing.
Support for Lay Parties
27.The NFJO Report demonstrated the difficulty that some lay parties have understandably encountered when attempting to take part in a remote hearing. In the early days of lockdown there was often no option but for a lay party to join a hearing down the phone or over the internet from their home, without any direct real-time contact with their legal team. Easing of the lockdown requirements, development of our common understanding of social distancing, and the gradual reopening of facilities, together with technical workarounds to maintain an open line between lawyer and client during a hearing, have opened up options for enhancing the support that can be given to lay parties. This progress will undoubtedly continue and will mean that some hearings that were adjourned in the early days on the grounds of fairness may now proceed remotely.
28.In all cases active thought should be given to arranging for a lay party to engage with the remote process from a location other than their home (for example a solicitor’s office, barrister’s chambers, room in a court building or a local authority facility) where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary.
29.The ability for interpreters to undertake their role without unduly interrupting a hearing is plainly a cause of difficulty. Where the process is conducted over an audio or video link, and the interpreter (who is not in the same location as their client) must interpret over the same common link, there will need to be a pause for interpretation after every single sentence or phrase. Even at a hybrid or open hearing, the interpreter must sit at least 2 metres from the client and cannot whisper the interpretation as is usually the case. The need for this stop-start process adds considerably to the length of any hearing. Where possible attempts should be made to provide a workaround, such as interpretation over a separate open phone line with the interpreter and client using earpieces, or typed interpretation over linked computers or email.
30.More generally, in circumstances where the majority of cases must now proceed remotely or semi-remotely, every effort should be made to accommodate and enhance the ability of lay parties to engage fully in the court process.
31. I am very grateful to the Transparency Project who have this week published a simple, nationally available, ‘Remote Court Hearings Guidance Note’ to assist lay parties and litigants in person by explaining what a remote or hybrid hearing in the Family Court may involve. The attention of all lay participants should be drawn to this most useful document.
The Family Judiciary (including Lay Justices) working in Court or at Home
32.The majority of Family judiciary have thus far worked from their homes. As the FJO Report indicates this has, for some, not been an altogether welcome or effective arrangement; for others, the change has been accommodated more easily. In the coming weeks, as all court buildings return to ‘open’ status, and the lockdown restrictions are gradually lifted, it is expected that many judges who have been based at home will return to working in a court building. In a message to the Judiciary dated 4 June 2020, the Lord Chief Justice has said:
“We must continue to look after our own and our families’ health. Some judges will need to continue to shield themselves or a family member. Others will need to isolate if they have coronavirus or have been in close contact with someone who has. In general, though, it is proving to be more efficient for judges to work from a court building, even when hearing cases remotely, where they can be better supported by staff, have space, access to the papers and none of the intrusions of working from home. Judges should aim to work from a court building where it is safe and efficient to do so.”
33.From now on the fee-paid judiciary (deputy district judges, recorders and deputy High Court judges) will be called upon in significant numbers to augment to the judicial resources available in the Family Court. This will be possible, in part, because of the higher number of sitting days allocated to Family for 2020/21 and because during the past two months we have ‘under-sat’ by not using many fee-paid judges. It will be possible for the fee-paid judiciary to work remotely, where this is appropriate and can be supported by sufficient court staff.
34.Lay magistrates play a crucial role in the Family Court, supported by experienced Legal Advisers. They are keen to contribute as much as possible as we tackle the problems caused by the pandemic. I am very pleased that steps are being taken to ensure that they can continue to hear cases and will now do so in increasing numbers.
Lawyers and other Professionals Unable to Come to Court
35.HMCTS has worked closely with professional bodies representing solicitors and barristers to explain and develop the extensive measures that have been, and will continue to be, undertaken in court buildings to comply with advice from Public Health England/Wales. Professionals who are not in recognised vulnerable groups will be expected to attend at court where required.
36.Those professionals who, unfortunately, are required to shield or in some other vulnerable group, are entitled to expect that the judiciary will be sympathetic to their situation and, will take all reasonable steps to make arrangements for the hearing to proceed which take account of their difficulties. Where, however, it is not possible, despite all best endeavours, to accommodate the absence of a professional who must avoid coming to a court building then, unless the interests of the child, fairness and justice can be met in another way, the court hearing should proceed in their absence, with any necessary arrangements being made to cover for the absent professional.
ADR
37.In all Family cases, regard should always be had to alternative means of dispute resolution. At a time when it is clear that the court will struggle to cope with the volume of cases in a restricted working environment, it is all the more important that parties, legal advisers and the judiciary should have express regard to all forms of non-court dispute resolution (in accordance with rule 3.4 FPR 2010) including mediation, conciliation or arbitration. There will be many private law children cases or financial remedy case that may be resolved by one or other of these alternative means.
38.All judges and practitioners are urged to familiarise themselves with these options and be prepared to identify those cases which may be suitable for one or other form of ADR.
WELL BEING AND COMMUNICATION
39.In the past two years those working in the Family Justice system have done much to raise awareness of, and address, pressing issues relating to individual and collective well-being. I have heard it said more than once that ‘with COVID all thoughts of well-being have gone out of the window’. To my mind, whilst such a statement may well have been apt during the early period, it could not be more wrong now that we are engaged on the long haul back to normality. In the present circumstances there is an enhanced need to consider well-being. The FJO report demonstrated some of the additional pressures and points of stress that remote working has placed on the professions and the judiciary. In terms of well-being, these must not be ignored. Steps must be taken, either in planning a hearing, or more generally locally in working practices, to identify strategies for reducing stress and maintaining personal and professional well-being.
40.Many DFJ’s have established regular virtual meetings with representatives of the local professional court users (for example a weekly ‘breakfast club’ or ‘tea’) where common problems can be aired and there can, more generally, be a useful channel of communication as to how things are going. I am keen to encourage these or similar initiatives. In this regard, each LFJB has a role to play and should be active in developing and promoting good practice in their area.
THE KEY MESSAGE:
Time Management – a significant change needed
41. The key message when describing The Road Ahead concerns ‘time management’.
42.Drawing the matters referred to above together, the following is clear:
i. The current restraints (or variants of them) are likely to obtain for many months to come;
ii. The volume of work in the system is very high;
iii. The Family Court was not coping with the pre-COVID workload and radical steps aimed at changing professional culture and working practices were about to be launched when the pandemic struck;
iv. The ability of the system to process cases is now compromised by the need to conduct most hearings remotely;
v. Whilst there will be some capacity for the courts to conduct faceto-face hearings, the available facilities will be limited;
vi. Remote hearings are likely to continue to be the predominant method of hearing for all cases, and not just case management or short hearings;
vii. Delay in determining a case is likely to prejudice the welfare of the child and all public law children cases are still expected to be completed within 26 weeks;
viii. Adjourning cases indefinitely or for a period of many months will not, therefore, be an option.
43.If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.
CASE MANAGEMENT
44.Clear, focussed and very robust management of cases will be vital in the coming months. The case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings.
45.Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them.
46.Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court.
47.It is important at this time to keep the ‘overriding objective’ as set out in Family Procedure Rules 2010, r 1.1 in mind:
“The overriding objective
1.1
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
In these times, each of these elements is important, but particular emphasis should be afforded to identifying the ‘welfare issues involved’, dealing with a case proportionately in terms of ‘allotting to it an appropriate share of the court’s resources’ and ensuring an ‘equal footing’ between parties.
48.In keeping with the overriding objective and the elements highlighted in paragraph 47, judges should (after canvassing the point with the parties) consider whether giving a short judgment will be sufficient and proportionate in any particular case. In a short judgment the court will not be expected to set out a detailed recital of the evidence, save for those key elements which support the court’s findings and decision. There should not, however, be any reduction in the content and scope of the judge’s description of their analysis and reasoning.
49.Regard should also be had to the following:
COVID Case Management Checklist:
A Narrowing the Issues:
i. What issues are or can be agreed?
ii. Which of the remaining issues in the case is it necessary for the court to determine?
iii. Can those issues be determined without an oral hearing?
iv. If not, for which issues is an oral hearing necessary?
v. What oral evidence is necessary to determine those issues?
vi. The time estimate for each witness (including cross-examination) is to be reduced to the likely minimum necessary for the court to determine the issues to which it relates.
B Hearing Format:
i. Can the issues be determined fairly and justly at a fully remote hearing (having regard to the measures set out at C below)?
ii. Is it necessary to conduct all or part of the hearing with some of the parties in attendance at court [‘a hybrid hearing’]?
iii. Where a remote or hybrid hearing is to be held, it should be undertaken by video link, unless the court determines that a telephone hearing will be sufficient or a video link is not available;
iv. Where a telephone hearing is to take place, it should be undertaken via BT MeetMe Dolby Plug-in, if available;
v. Consideration should be given to access to the hearing by media or legal bloggers [FPR 2010, r 27.11, PD27B and PD36J];
vi. Where in ordinary circumstances arrangements would be made for a child to meet the judge, the court should strive to establish a means by which the judge and the child may ‘meet’, albeit that this may, in some circumstances, have to be via a video link rather face-to-face;
vii. The court should give at least 3 days notice of the platform that is to be used for any remote or hybrid hearing.
C Optimising Fairness of Remote Hearings:
i. The court should consider what options are available to support lay parties and enhance their ability to engage in a remote hearing. The options may include:
a. Attendance at a venue away from the party’s home (for example a room at court, solicitor’s office, counsel’s chambers or a local authority facility);
b. Arranging for at least one of the party’s legal team to accompany them (whilst observing the need for social distancing);
c. Establishing a second channel of communication between the lay party and their lawyers (for example by email, communication app or telephone during the hearing);
ii. Cases should be clearly timetabled with a start and planned finish time – where a witness template has been completed by the advocates and approved by the judge, it must be complied with save in exceptional circumstances;
iii. Regular short breaks should be provided in a hearing of any length;
iv. The overall length of the hearing should be reasonable, taking account of the need for breaks and of the acknowledged additional pressure of engaging in a remote court process;
v. Prior to the start of the hearing, all advocates should have communicated with their clients and with each other in an advocates meeting;
vi. All participants should be logged in and ready to start at the appointed hearing time;
vii. Advocates should ensure that they are available not only for the proposed length of the hearing but also for a reasonable period thereafter to de-brief their client and communicate with other advocates over the drafting of the order and any ancillary matters;
viii. At the start of each hearing the judge should make a short statement explaining the ground rules for the remote hearing;
ix. The judge should ensure that there is a means for a party to give instructions to their advocate during the hearing;
x. Where the hearing involves a litigant in person the judge should ‘check in’ regularly with any litigant in person to ensure that they are hearing, understanding and following the proceedings;
xi. At all times a remote hearing should be conducted with the degree of seriousness and respect that is evident at a fully attended hearing;
xii. The court should consider how best to arrange for the involvement of any interpreter or intermediary in the hearing;
xiii. The court should ensure that lay parties have access to the electronic bundle (unless this is not necessary, for example by reason of the hearing being an interim hearing where a party is represented and not required to give evidence).
BEST PRACTICE: FJO Report Section 6
50.In addition to the specific matters set out in the checklist at paragraph 49, regard should be had to the Best Practice suggestions that are helpfully set out in Section 6 of the FJO Report
CONCLUSION:
The ‘Can Do’ Mentality
51. The task ahead for the Family Court in the coming months is a daunting one of continuing to strive to make correct and timely decisions for children and families, in a just and fair manner, despite very severe restrictions on ordinary working. It is impossible not to have been profoundly impressed by the endeavour of all involved in the past 10 weeks, be they staff members, professionals, lay parties or judiciary, in working so hard and so effectively to deliver an outcome in as many cases as possible. A ‘can do’ approach has been evident at all turns despite the very real difficulties that have been thrown up by the current crisis.
52.I am confident that this positive, problem solving, approach will continue to be seen throughout the period ahead in the Family Court, however long it may be. The song ‘He Ain’t Heavy’, which starts with the words ‘The road is long’, includes the phrase ‘We’ll get there’. If, in the context of Family Justice, ‘there’ means a return to more ordinary working, I am sure that we will get there – even though the road will undoubtedly be long.
Sir Andrew McFarlane
President of the Family Division
9th June 2020
In the current unusual circumstances caused by Covid-19 we have all had to think of new ways of working. During the last nine weeks I have been conducting MIAMS appointments and Mediation sessions via ZOOM and I have to say this has been a success. Two notable benefits are:
The fact clients conduct these meetings in the comfort of their own homes, I think reduces the level of anxiety they inevitably feel in having to deal with very difficult issues surrounding their relationship breakdown.
Another benefit of conducting mediation remotely means clients do not have to travel into chambers and mediation appointments can be conducted outside office opening hours. So more flexible arrangements around the clients timetable i.e. when the children have been put to bed for example or at weekends.
Ongoing benefits of mediation
The vast majority of claims and family disputes are suitable for mediation, from small value disputes which do not justify the expense of litigation, to high value disputes which require speedy, confidential and commercial solutions.
A mediation can be held at any time, both before and after court proceedings have been issued. However, it is normally sensible to wait to have a mediation once the full nature of the dispute is clear and a proper investigation of the issues has been made by both parties.
Mediation is statistically a very successful way of settling disputes. The fact that the parties are attending a mediation focuses minds on settlement and also the strengths and weaknesses of the case. If a mediation leads to a settlement it can save time and reduce costs for both parties which would otherwise be incurred through the court action.
In my experience, even if the parties don’t settle the dispute at the mediation, it unlocks the deadlock and a settlement can usually be achieved a short while later.
Please remember during these difficult times mediation is still readily available. Mediation is a useful tool at all times and can be a viable and effective alternative to court proceedings.
DAVID O’BRIEN (Accredited Mediator)
Trinity Chambers
29th May 2020
Inheritance (Provision for Family & Dependants) Act 1975:
Six-Month Deadline and Standstill Agreements
The Inheritance (Provision for Family & Dependants) Act 1975 (‘the Act’) permits certain applicants to bring a claim against a deceased’s estate where no ‘reasonable financial provision’ has been made for them, be it under a will or on intestacy.
Under the Act, the six-month time limit starts running from the moment probate has been granted and any claim must be brought within this period. Claims not commenced within six months will require the court’s permission to be brought, in accordance with section 4 of the Act.
The recent decision of Mr Justice Mostyn in Cowan v Foreman and others [2019] EWHC 349 (Fam) highlights the importance of adhering to the six-month time limit. Further, notwithstanding that standstill agreements may seem desirable because they extend the potential window for pre-action preparation and/or negotiation, parties should be cautious to enter into these in light of Mostyn J’s criticism.
In Cowan, the wife of the deceased delayed bringing her claim against the estate by 13 months, due to a standstill agreement between the parties. Mr Justice Mostyn remarked that, if standstill agreements are common practice, then they should come to an end. “It is not for the parties to give away time that belongs to the court. If the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock a snook at the clear Parliamentary intention.”
The decision emphasises the importance of bringing a claim under the Act promptly and that the preferred course of action is for parties to issue and proceedings to be stayed, if necessary. The court will not look kindly on those who seek to take the timetable into their own hands, unless exceptional circumstances apply. As a general guide, Mostyn J remarked in Cowan that “absent highly exceptional factors, in the modern era of civil ligation the limit of excusable delay should be measured in weeks, or, at most, a few months.”
Emily Quinn
Trinity Chambers
May 2020
| Neutral Citation Number: [2020] EWHC 1233 (Fam) | ||
| Case No: ZC19C00356 |
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
| Insert Court Address | ||
| 15/05/2020 |
The Honourable Mr Justice Williams
____________________
Between:
A Local Authority |
Applicant |
|
| – and – The Mother Father 1 Father 2 The Children |
Respondents |
|
| -and- The Maternal Grandmother The Paternal Grandmother |
Interveners |
____________________
(Covid-19 – Fair Hearing – Adjournment)
Mr William Tyler QC and Mr Tim Parker (instructed by the Local Authority Legal Dept) for the Local Authority
Ms Elizabeth Isaacs QC and Mr Mark Rawcliffe (instructed by Dawson Cornwell) for the Mother
Mr Mark Twomey QC and Ms Siobhan Kelly (instructed by TV Edwards) for Father 1
Ms Trisan Hyatt (instructed by Faradays Solicitors) for Father 2
Ms Tina Cook QC and Ms Joy Brereton (instructed by Powell Spencer and Partners) for the Paternal Grandmother
Mr Cyrus Larizadeh QC and Ms Lucy Cheetham (instructed by Goodman Ray) for the Maternal Grandmother
Mr Darren Howe QC and Ms Sally Stone (instructed by Creighton and Partners) for the Children
Hearing dates: 12th May 2020
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
i) that K died as a consequence of cardiac necrosis caused by the deliberate administration or accidental ingestion of cocaine by or whilst in the care of
a) her mother, the first respondent, and or
b) her father, the second respondent, and or
c) her paternal grandmother, and or
d) her maternal grandmother
ii) that one or more of those four individuals alternatively failed to protect her from the administration or accidental ingestion of cocaine
iii) that the children were exposed to emotional abuse as a result of domestic violence perpetrated by the father upon the mother.
i) the mother was agreeable to the hearing proceeding remotelyii) the position statement for the father and his submissions made no reference to his having a medical condition which required him to shield or self-isolate or otherwise take additional precautions but did request assistance with hardware to enable better participation in a remote hearing.
iii) The paternal grandmother was experiencing symptoms similar to Covid 19 but wished the hearing to continue and her team were exploring her capability to participate remotely given her laptop had been seized by the police
iv) the maternal grandmother wished to continue albeit she would only be able to participate by phoning into the hearing as she did not have the hardware necessary to participate in an audio-visual manner.
I should emphasise that this was in the very early days of the court, the legal profession and litigants’ experience of the delivery of justice remotely. Arrangements had been made for the trial bundle (comprising some 7 ½ thousand pages of material) to be provided digitally by Caselines.
i) Mother:
M has a laptop and suitable internet connection enabling her to participate and join in the fact-finding hearing remotely as required. It is M’s wish to attend as much of the hearing as possible. She doesn’t wish to delay the case.
However, in light of the growing experience of advocates in remote hearings and in light of the most recent guidance by MacDonald J in respect of the Remote Family Court (version 4), the proposal set out in the position statement on behalf of the paternal grandmother is endorsed, namely that at the conclusion of the expert evidence the advocates should be permitted to take stock address the court further as to the efficacy of the hearing proceeding remotely thereafter. At this stage the position on behalf of M in respect of whether it is appropriate or fair for the lay and professional (non-expert) parties to give evidence remotely is reserved; however, her legal team intend to review her instructions about lay and professional (non-expert) evidence at the conclusion of the expert evidence.
ii) Father:
The real issue would be whether the evidence of the main respondents should be taken directly in court and it was likely to be the fathers position that it should be.
iii) Local Authority
We note that no party is suggesting that the hearing cannot fairly begin as planned, but that it would be sensible to review matters at the conclusion of the expert and/or expert and professional evidence.
iv) Maternal Grandmother
She wanted the hearing to be completed as quickly as possible and wished to give evidence by Zoom telephone
i) the issue of deliberate administration of an overdose level of cocaine to K was not supported,ii) the ingestion of cocaine on more than one occasion (save in trace amounts by living in a contaminated environment) was not supported
iii) the window within which K may have ingested cocaine had narrowed to a likely window of after nursery on 3rd April through to the visit to the GP at about 6 PM on 4 April, with a possibly most likely window of after nursery on the third April through to about 9 AM on 4 April,
iv) the most likely causes of death were either an unknown cause or cocaine ingestion leading to cardiac necrosis and subsequent heart failure.
v) The presence of cocaine in the hair strand samples of the maternal grandmother and on items at her property was most likely as a result of contamination and she had played no role in caring for K within the likely window.
i) the seriousness of the issues involved even after the amendments to the threshold were such that a fair hearing could only take place for the mother if she were able to attend court in person with the judge able to see her give evidence. The same held good for the testing of the evidence of the father and paternal grandmother. The mother wished to see her legal team face-to-face prior to giving evidence and such was essential in order to do justice to her case. Although the mother had a laptop and suitable internet connection this was no substitute for face-to-face conference and evidence giving. She also wished to have the support of her legal team during the process of giving evidence.ii) The mother wished the father’s evidence as to domestic abuse, drug use and what happened to K on 4 April to be tested with the father in court with her present.
iii) The mother did not believe a fair hearing could take place unless her leading counsel was also able to attend a hearing in person. Ms Isaacs, being in a category required to shield until 30 June (as per current government advice) could therefore not attend a hearing within the next two months. The mother could not contemplate attending court without Ms Isaacs.
iv) the mother had had contact with the maternal grandmother who has been told by her GP that she has Covid – 19 (albeit has not tested for it) and thus is required to self-isolate for 14 days. The mother believed that the contact took place on 1 May and so she could not attend a hearing in person until at the earliest 15 May
v) it was proposed that the matter be adjourned part heard to the first available date after 30 June.
The court’s approach to the hearing of evidence in the current circumstances
“e. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted
remotely;
f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”
8. I have been assisted by counsel at the hearing this afternoon, who have explained that at the hearing on 3 April all parties, and the judge, effectively accepted that this hearing would now have to go ahead and be conducted remotely. I was told that all parties and the court had been influenced by the publication, shortly before 3 April, of advice produced by Mr Justice MacDonald on the conduct of remote hearings which gave an account [at paragraph 2.2.1] of a number of remote hearings that had been successfully accomplished in the early days following the lockdown. It would seem that those involved in this case read that advice as indicating that all hearings must now proceed as remote hearings and, I was told, the discussion during the hearing was about how the remote hearing would be conducted and not whether it should be heard remotely. If that was the understanding of MacDonald J’s document, it was a misunderstanding. MacDonald J’s document is firmly aimed at the mechanics of the process; it does not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely. Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.
“It is a type of hearing which, certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the Family Court. I make that observation in the narrow context of this being an allegation of FII. That category of case is a particular form of child abuse which requires exquisite sensitivity and skill on the part of the court.”
24 The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.25 Turning to the particular case now before the court, although I am extremely aware of and sensitive to the position of this young girl and the negative impact that a decision to adjourn will have on her wellbeing and the potential for it to cause her emotional harm, I am very clear that this hearing has to be adjourned. I make the decision also being aware of the impact that this will have professionally on all of those who have had this fixture booked in their professional diaries for a long time and who are now ready for the hearing to take place. That cannot be a factor that weighs very significantly in the decision-making process but it is one of which I am aware.
26 The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent. I also consider that there is a significant risk that the process as a whole would not be fair.
27 The observations that I have made in the preceding paragraph apply equally to the options for dividing the hearing process up that have been helpfully suggested by Mr Taylor as, with each option, the judge would not have the opportunity to engage fully with the parent during the whole of the hearing as would be the case in a courtroom.
28 Given the wealth of factual detail that is to be placed before the court in relation to this mother’s actions over the last three or four years, for her to have a full real-time ability to instruct her legal team throughout the hearing, not just by a phone call at the end of each witness’s evidence, seems to me to be a prerequisite for her to be able to take an effective part in a fair process at the trial of issues such as this.
29 For those shortly stated basic reasons, I consider that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crisis. It follows that, irrespective of the mother’s agreement or opposition to a remote hearing, I would hold that this hearing cannot properly or fairly be conducted without her physical presence before a judge in a courtroom. Now that the mother is in fact opposing the remote hearing, the case for abandoning the fixture is all the stronger.
3. Against that background we wish to stress the following cardinal points with the utmost emphasis:i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.
ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case
.
iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.
“It follows, applying the principles set out above and the guidance that has been given, that:i) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;
ii) The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;
iii) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.
9. The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:
i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
iii) Whether the parties are legally represented;
iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?
viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
10. It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
“[23] One important factor in a decision whether to proceed, particularly in a fact finding case, is the question of whether the judge will be in a less good position to judge whether or not the witnesses are telling the truth if the case is conducted remotely. This was clearly an issue of particular concern to the President in Re P at [26] where he refers to the benefits of seeing the witness in court. The issue of the weight that a judge should give to the demeanour of witnesses is an intensely complex one and has been the subject of considerable judicial debate. ….
‘41. No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.
[24] Mr Goodwin and Mr Verdan also referred me to the fact that it is by now fairly common in Family and Criminal courts for lay witnesses of fact to give evidence remotely by video link where those witnesses are considered to be vulnerable. The procedure for doing so is dealt with extensively in PD3AA. It therefore must follow that the giving of evidence in this way does not undermine the fairness of the process either for the individuals concerned or other parties. I do however inject a note of caution here. If it were a case that a vulnerable witness were likely to be subject to complex cross examination, perhaps with references to a large number of documents, it is highly likely that they would have the assistance of an intermediary to assist them in managing the process. Therefore, the fact that evidence is given remotely is not itself sufficient to necessarily protect that witness.[25] There is also a balance to be struck. One of the reasons that vulnerable witnesses often give evidence remotely is to protect them from the stresses of the courtroom. It may therefore be that a compromise is made for that category of witness, in order to balance fair process with the interest of the individual. However, as Mr Goodwin argued, it may also be the case that the vulnerable witness is more likely to give truthful and complete evidence if allowed to give it remotely, rather than in the witness box. So the benefit is not simply to the witness, but also potentially to the judicial process.
[33] On the issue of remote hearings more generally, and the interpretation of Re P in particular, I propose to say little in this judgment. Ironically, although the case has come before me primarily because it was thought that the judge may have fallen into error in her application of Re P, it is clear that she did not do so. The decision in Re P is expressly tied to the small number of cases in which allegations of Factitious or Induced Illness [‘FII’] are made. Paragraph 24 in Re P is of more general, obiter, application and the judge was correct in referring to it.[34] At present, in accordance with the Guidance that has been issued and the decisions handed down last week in the Court of Appeal in the cases of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge. The Family Justice Observatory’s speedy research into remote hearings in the Family Court will inform a review of the current situation and indicate whether the present guidance needs to be revised. It is not therefore the place to add to the learning on remote hearings in this judgment. The decision in the present case should be seen as an ordinary appeal, where the issue happens to be a remote hearing, but where the appeal has turned upon a failure of process and an error in approaching the issue of welfare.
The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
Whether the parties are legally represented;
The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
The scope and scale of the proposed hearing. How long is the hearing expected to last?
The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
Conclusion
i) The issues on which the remaining evidence is to be given are not complex but they are of very considerable importance both to the mother, father and paternal grandmother and to the children and wider family. The outcome of the evidence may have profound implications for the possibilities of rehabilitation and thus for the family life of the children and the parties.ii) The absence of very much contemporary documentary evidence, digital fingerprints, or other corroborative evidence places a considerable focus on and premium on the oral evidence of the parties. Whilst it can be tested remotely, where it is of such importance and where there is the lack of other evidence against which to measure it. the giving of evidence in a court setting in the presence of the judge in my view has an advantage both to the party and to the court. This arises not only from the evidence actually given but also from the interplay between the party and their team and the dynamic that may be observed as between the parties. Thus, on the particular factors which are present in this case I consider that giving evidence in person has a material advantage over remote evidence giving. If giving evidence in person can be facilitated within a reasonable time period that should be facilitated in order to deliver a fair hearing.
iii) I thus do not consider that it is appropriate to continue with the hearing later this week and next week. Although a safe court environment can be provided the mother cannot participate in person as she has been exposed to a person diagnosed with Covid 19. Even were she prepared to attend court in those circumstances, I would not permit her to do so given the risks to herself and to others. The father may be reluctant to attend this week and next but he and his team could attend if I so required them. The paternal grandmother and her team can and indeed urge me to allow her to attend to give her evidence. Were I to allow the father and paternal grandmother to attend in person but to restrict the mother to giving evidence by remote means, on the facts of this case, I do not consider that I would be allowing the parties to participate on an equal footing. The mother inevitably would feel a sense of grievance that she was participating in a manner which she felt was less likely to present her evidence effectively.
iv) The mother, the father and the paternal grandmother can attend a court hearing in June. A safe court environment will then be even more sophisticated or developed for the parties, the lawyers and the court staff. All can then give their evidence in person with the advantage that brings in this case. The difficulty in June is that Ms Isaacs will not be able to attend in person. That I accept will have some impact on how the mother’s case is presented. It is likely to impact on how the mother feels at court, it will mean that interactions between the mother and Ms Isaacs will not be immediate but will be filtered via Mr Rawcliffe and a remote application, and it will mean that Ms Isaacs’ physical presence in court to cross examine the father and the paternal grandmother will be replaced by a remote presence: albeit on screen this may be as prominent, if not more so than being physically present. I accept that this amounts to some interference with how the mother and her legal team would choose to exercise their fair trial rights and objectively is likely to have some impact on the presentation of the mother’s case; however this does not mean that a fair trial cannot be delivered. A party’s subjective perception of what amounts to a fair hearing is not determinative. A fair hearing sets a minimum standard but how it is delivered is not fixed and may vary from one case to another. Some cases involve several leading counsel on each side, others proceed fairly with litigants in person on one side and leading counsel on the other. A fair hearing can be achieved in such circumstances and I am satisfied it can be achieved here.
v) Balanced against the mother’s article 6 rights are the article 6 rights of the other parties to a fair trial within a reasonable time. All, including the mother have emphasised their desire for the case to be resolved as soon as possible. The agreement of a party to proceeding either remotely or in a hybrid hearing does not relieve the court of the responsibility to determine whether a fair hearing can take place any more than the opposition of a party relieves the court of that obligation. The Guardian is concerned at any delay and would prefer to have proceeded immediately from the point of view of the children and achieving a rapid resolution of the case. The paternal grandmother also sought an early resolution by continuing with this hearing. The local authority likewise. I have concluded that whilst desirable such a rapid approach would be a significant interference with the mother’s rights to a fair hearing and would (along with various other obstacles) prevent a fair hearing and that would outweigh the limited delay involved in adjourning to June which would constitute a hearing within a reasonable time. There is thereafter (as between June and September) also a balance to be struck between interfering with the children’s rights to a fair hearing within a reasonable time and the mother’s rights to a fair hearing within a reasonable time. Whilst the particular components engaged from each party’s perspective may differ a balance still must be struck.
vi) There is no perfect solution to this clash of rights. Any solution is an imperfect solution with some interference with the rights of one or another party; primarily article 6 but also article 8 rights in particular in terms of how rapidly resolution can be achieved for the medium to long term future of the children. A delay until September will, if Ms Isaacs is then able to attend in person, ensure the fullest compliance with the mother’s article 6 rights; the minimum standards will be well exceeded. However, such a delay will infringe upon the children’s rights to a fair hearing within a reasonable time. I accept that a delay of 3 months is a significant one and will cause harm to the children. It is not a reasonable time to adjourn from now until September if some alternative earlier hearing can be achieved without infringing the mother’s rights to an extent that outweighs the delay caused infringements of others’ rights. A hearing in June will protect the children’s article 6 right to a fair hearing within a reasonable time but will infringe to some degree on the mother’s competing rights. However, I do not consider that the inability of Ms Isaacs to attend will prevent the mother receiving a fair hearing. The personal presence of leading counsel is one part of the framework which contributes to a fair hearing. It is a desirable part, but in my view it is not essential to the provision of a fair hearing. The combined effect of the rest of the framework; that provided by the court, that provided by the mother’s representation and to an extent the representation of the other parties all play their part in making the hearing fair. Inevitably in some cases leading counsel is prevented from playing the expected role – part of junior counsel’s role is to take on that role. In fact, in this case Ms Isaacs can continue to play a role and in my view (and experience in this case so far) an effective role by remote participation. Some adjustments may be necessary to allow the most effective communication within the mother’s team but this on my experience to date is manageable.
vii) Having given anxious consideration to these imperfect solutions that which in my evaluation reaches the best balance is to adjourn the hearing until June to enable the mother to participate in person at that hearing albeit without the physical presence of her leading counsel. That hearing can be a fair one to the mother and to the other parties. That will then enable the facts to be determined which will lead to a final welfare hearing in September and will avoid a further 3 to 4-month delay, which acceding to the mother’s submissions would inevitably require; and that assuming Ms Isaacs was then able to attend. If she was not then able to attend would the matter require further adjournment?
LATER
How to avoid the Family Court Queue Part 1 : Family Law Arbitration
Even without Covid-19, the queue for Final Hearings in family cases has just been getting longer and longer.
There is an answer – stop guessing what a Judge at Court might decide and let a ‘private judge’ actually decide your case instead.
Under the Institute of Family Law Arbitrators (Court Approved) scheme a jointly appointed Arbitrator can determine financial or children cases in a way that becomes a binding decision (almost always) enforceable in the Courts.
Arbitrators are highly experienced lawyers who are specially trained and qualified by the IFLA and the Chartered Institute of Arbitrators.
The Parties just need to agree on 3 simple things first –
1. Do they want to save time and money by going to Binding Arbitration ? (to which any rational answer should be yes)
2. Who the Arbitrator is ? (all profiled on the IFLA website ifla.org.uk)
3. What they want the Arbitrator to decide (the whole case or just some of it)
There are also costs considerations to take into account, including possible costs consequences if a party unreasonably refuses an offer of arbitration.
The Financial Scheme covers all applications under –
The Children Scheme covers –
• Any issue between parents or other persons holding parental responsibility or a sufficient interest in a child’s present or future welfare
• Where a child should live including shared living arrangements
• Visiting arrangements including holiday time to be spent with a non residential parent
• Education
• Disputes concerning routine and non life threatening medical treatment
The IFLA website contains an incredibly helpful Guide to Arbitration http://ifla.org.uk/divi/wp-content/uploads/Public.pdf together with the Forms the parties will both need to sign to start the process.
Richard Balchin is a Barrister & IFLA Arbitrator at Trinity Chambers
I’ll deal with the three most consequential.
The full SI is available here http//www.legislation.gov.uk/uksi/2020/135/contents/made
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Rule 5.7 – Now in force
Unilateral Communications with the Court
Background
Court staff and Judges have been increasingly bothered by sometimes voluminous emails from Litigants in Person and Solicitors that look rather like they were written to be ‘kept secret’ from the other side. Those days are now, at long last and probably in theory rather than in practice, hopefully over.
The new FPR Rule 5.7 provides that:-
5.7.—(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives.
(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.
(3) A party is not required under paragraph (1) to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.
(4) A written communication required under paragraph (1) to be copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity.
(5) Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.
(6) In addition to returning a communication under paragraph (5), where a party fails to comply with paragraph (1) the court may, subject to hearing the parties, exercise its case management powers under Part 4.
It is worth noting :
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Rule 9.27A – from 6 July 2020
Open Offers for Financial Remedy Cases
Background
The days when the parties could keep their Open Proposal ‘up their sleeves’ until shortly before the final hearing (14 days before the final hearing for the applicant and 7 days thereafter for the respondent in accordance with FPR rule 9.28) is being replaced by a requirement that each party state their open position 21 days after the date of the FDR appointment (unless the court directs otherwise).
Meaning that Open Offers to settle will be admissible and relevant to the issue of costs under FPR rule 28.3(7)(b) as justifying a departure from the normal “no order” principle – and that the earlier in the litigation process they are made – then the greater the amount of costs that may be payable under any order which directs that such costs shall be recoverable from the date upon which an open offer is made.
The new FPR Rule 9.27A provides that:-
9.27A.- (1) Where at a FDR appointment the court does not make an appropriate consent order or direct a further FDR appointment, each party must file with the court and serve on each other party an open proposal for settlement—
(a) by such date as the court directs; or
(b) where no direction is given under sub-paragraph (a), within 21 days after the date of the FDR appointment.
(2) Where no FDR appointment takes place, each party must file with the court and serve on each other party an open proposal for settlement—
(a) by such date as the court directs; or
(b) where no direction is given under sub-paragraph (a), not less than 42 days before the date fixed for the final hearing.”
It is worth noting :
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Rule 9.27 – from 6th July 2020
Cost Estimates
The parties will be required to file and serve not only a Form H setting out their costs incurred to date (as they do now), but also:-
Richard Balchin MCIArb is a Family Barrister and IFLA Arbitrator at Trinity Chambers
Can the Court take judicial notice of impact of the Covid-19 crisis on agreed/SJE valuations?
A recent decision of HHJ Booth in S v. H [2020] EWFC B16 has been seen by some as giving support for the argument that the answer is yes. In the context of an argument that he should take judicial notice of the effect of the crisis when considering the estate agents’ particulars which had been produced in support of a party’s claimed housing need, HHJ Booth was referred to the decision in Piglowska v. Piglowski [1999] 3 AER in which Lord Hoffman cautioned against such an approach but HHJ Booth said:
“I have had cited to me by Mr Maxwell-Stewart a passage from Piglowska v Piglowski [1999] 3 All ER 632 House of Lords, where Lord Hoffmann deprecated the use of taking judicial notice of the cost of accommodation when evidence could be put before the court. In 1999 there was not available on the internet, as it had not then been invented, the sort of information that is readily available at the click of a mouse in 2020. Whilst it is plainly desirable that the court should have evidence, in proper form, it seems to me there must be some practical dilution of Lord Hoffmann’s stern words.”
So, one could argue that a Judge today can properly undertake their own research in considering whether they should accept such evidence. That is what follows from a “dilution of Lord Hoffman’s stern words”. But whilst the comments of HHJ Booth may be seen as support for that argument in the context of a “battle of estate agents’ particulars”, it is submitted that it is unlikely his comments or his decision in the case will persuade a Court that it can replace the view of an SJE valuation of assets.
John Brooke-Smith Trinity Chambers 13th May 2020
There is a common misconception that an applicant cannot obtain a non-molestation order against their ‘in-laws’, ie against a partner’s or former partner’s family members.
In fact, under the Family Law Act 1996, some in-laws are classed as relatives and therefore can be subject to a non-molestation order if they behave in an abusive or harassing way.
Section 63 of the Family Law Act says that a person’s relative can be ‘(a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse, former spouse, civil partner or former civil partner‘ or ‘(b) the brother, sister, uncle, aunt, niece, nephew or first cousin (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person’s spouse, former spouse, civil partner or former civil partner’ [emphasis added].
Section 63 also adds that relatives include ‘in relation to a person who is cohabiting or has cohabited with another person, any person who would fall within paragraph (a) or (b) if the parties were married to each other or were civil partners of each other.’
This means that an applicant can obtain a non-molestation order against their partner or ex-partner’s family members if they are, or have ever been, married, in a civil partnership, or cohabiting.
Section 63 does not, however, include the family members of boyfriends, girlfriends, ex-boyfriends, or ex-girlfriends who have never lived together – even if the couple have a child together.
Where a non-molestation order is not available, an applicant can always seek an injunction under the Protection from Harassment Act 1997. The two remedies have different rules and procedures so it is important to apply for the right order.
If you are being abused or harassed and need a court order for protection, Trinity Chambers are here to help.
Jessica Hunter Trinity Chambers 11th May 2020
Discusses the uses of the “slip rule” and in particular the proposition that the “The ‘Slip Rule’, rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.”
Per Lord Justice Underhill paragraph 23
“The essential distinction to bear in mind in considering the application of the slip rule, in any of its legislative formulations, is between the case where the order in question does not express what the Court actually intended at the moment of promulgation and the case where it does express what the Court intended at the time but it subsequently appreciates that it should have intended something different: see, most recently, para. 18 of my judgment in AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208, [2019] 1 WLR 3065 (p. 3071C). As I say there, how the distinction applies in a particular case may not always be straightforward, but the concept is clear. The proposition which the UT drew from the case to which it referred and from the White Book commentary, namely that the slip rule “cannot be used to change the substance of a judgment or order”, is perfectly apt as a reference to the second of the two classes of case that I have mentioned; but it appears from the UT’s actual decision that it understood it to mean that the slip rule could not be used in a case where the correction would produce a decision with the opposite effect to that promulgated. With all respect, that is simply wrong. In the case of a simple failure of expression – most obviously a straightforward slip of the pen – the error can and should be corrected even if it alters the outcome (as initially expressed) by 180°.”
In the instant case it was clear from the judgement that Judge Sullivan intended to allow the appeal however in error the formal notice of decision recorded that the appeal was dismissed; Underhill LJ confirmed that it was not necessary for this error to be the subject of an appeal and an application under the “Slip Rule” should have been made.
Miss Josephine Spratt-Dawson
Trinity Chambers
9 May 2020
This case reminds practitioners of the perils of not following the guidelines for interviewing minors and in the context of acting for an accused the potential value in obtaining a witness statement from any intermediary who was present at the interview.
In the instant case it would appear that the intermediary’s concerns formed part of the transcript of the interview. However, it cannot be assumed that an intermediary will have voiced all their concerns at the time and it is a line of enquiry that would appear worth considering.
As a matter of practice in my view it is always a useful exercise to listen to or view the actual interview rather than rely on the transcript as the absence of lack or narrative or free recall may not be obvious from the transcript and equally it may not be as easy to observe a child as tired or distracted from the written word.
The relevant passages are set out below – the findings of sexual abuse were set aside.
Per Lord Justice McCombe
“45. “…There were a number of features of those interviews which demonstrated a failure to comply with the applicable Guidance. They will be apparent from what I have said already. Of course, failure to comply with the Guidance will not always render evidence obtained incapable of establishing acts of sexual abuse: see Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773, per Hughes LJ (as he then was) at [34] – [35] and [40] – [42], cited by McFarlane LJ (as he then was) in Re J (A Child) [2014] EWCA Civ 875 at [73] – [75]. However, deficiencies of this type can be very significant and, in this case, in my judgment, they were just too numerous to be overcome in order to sustain this single finding in the context of the serial sexual abuse that had been perpetrated by W and the Mother against all these children in the immediately preceding 11 week period. For my part, I accept Mr Roche’s submission that the value of the evidence about this single alleged act of abuse, elicited at a very late stage of a long interview and only as a result of a distinct prompt about a conversation with S, was also reduced to vanishing point.
“46. The transcript and the recorded interview do not sit easily with the judge’s description of X’s statement being clear and spontaneous. Such information as was obtained arose from directed questioning of a distracted and tiring child. There is no narrative or free recall or any details that might make it possible to understand when and in what circumstances such an event might have occurred. This is of particular significance where the possible allegation is so strikingly similar to abuse that the child was in fact recently suffering on a number of occasions at other hands.”
Josephine Spratt-Dawson Trinity Chambers
9 May 2020
The Court of Protection was asked to consider whether the patient, P, lacked capacity to make decisions regarding clinically assisted nutrition and hydration (‘CANH’). If P was found to have lacked capacity, the court was asked to consent on P’s behalf to the withdrawal of CANH, which would lead to her death.
P took a heroin overdose in 2014, suffering cardiorespiratory arrest and a severe hypoxic brain injury. The diagnosis was initially one of a vegetative state and was subsequently revised to that of a minimally conscious state. P was discharged from hospital into a rehabilitation unit where she was tracheostomy-dependent, tube-fed and completely immobile. P had disordered sensory input; no significant functional movement and any experience of pleasure or pain could not be determined. The unit opposed the withdrawal of CANH whereas members of P’s family were in support of withdrawal. The Official Solicitor submitted that P’s wishes, and feelings could be ascertained with sufficient certainty and should prevail over the presumption of preserving life where they were clearly against being kept alive in her current situation.
The application was not opposed by any party to the proceedings, however, in light of differing views expressed by the staff caring for P and the neutral position adopted by her treating clinicians, the matter was brought to the court. This was in accordance with the guidance issued in An NHS Trust v Y [2018] UKSC 46 where the Supreme Court clarified that there is no requirement to go to court to seek approval for the withdrawal of CANH provided that (a) the provisions of the Mental Capacity Act 2005 have been followed, (b) the relevant guidance has been observed and (c) there is agreement as to what is in the best interests of P. Where there is a disagreement as to a proposed course of action or where the approach is finely balanced, an application to the court should be made.
Macdonald J was satisfied that P lacked capacity to make decisions about her medical treatment and about the withdrawal of CANH. He determined that CANH was not in P’s best interests and that the court should withhold its consent for ongoing CANH, upon an end of life care plan being approved by the court. He was satisfied that, on the balance of probabilities, prior to becoming incapacitated P expressed a “clearly and firmly held view that she would not want to be kept alive in circumstances in which she now finds herself”.
Practitioners should be aware that the presumption of the sanctity of life is not absolute and that the court will give due consideration to dignity and to patients’ expressed views, to permit a “carefully managed, palliated and dignified end”.
Emily Quinn
Trinity Chambers
10th May 2020
Tel: 01245 605040
Email: clerks@trinitychambers.com
