The Role of the Litigation Friend and the Official Solicitor
When a parent is assessed as lacking capacity and there is no one available or willing to serve as a litigation next friend, the Official Solicitor should be contacted to seek her consent to act. The Office of the Official Solicitor and Public Trustee maintains a helpful website, which includes Standard Instructions for solicitors instructed by the Official Solicitor. These instructions clarify the respective roles and expectations of the Official Solicitor. Importantly, a Litigation Friend for Civil Litigation referral form must be completed before requesting that the Official Solicitor agree to act as litigation friend.

Determining Capacity
If there is concern that a parent involved in proceedings may lack the mental capacity to conduct those proceedings, this issue should be determined as a matter of priority and as early as possible. A parent who lacks capacity is considered a “protected party.” This means they cannot conduct litigation either as a litigant in person or through a solicitor; instead, a litigation friend must be appointed to act on their behalf.

A protected party is defined as “a party, or an intended party, who lacks capacity [within the meaning of the Mental Capacity Act 2005] to conduct proceedings.” The applicable test is found in Sections 2 and 3 of the Mental Capacity Act 2005, and these sections must be read alongside the overarching principles in Section 1(2), (3), and (4) of the Act.

Understanding Lack of Capacity
For the purposes of the Act, a person is considered to lack capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves due to an impairment of or disturbance in the functioning of their mind or brain. The impairment or disturbance may be permanent or temporary. Lack of capacity cannot be established merely by reference to a person’s age, appearance, or a condition or aspect of behaviour that may lead to unjustified assumptions.
In any proceedings, the question of whether a person lacks capacity must be decided on the balance of probabilities.

Criteria for Inability to Make Decisions
Section 2 of the Act states that a person is unable to make a decision for themselves if they cannot:
• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the process of making the decision; or
• Communicate their decision (whether by talking, sign language, or any other means).

A person is not considered able to understand relevant information if they cannot understand an explanation of it in a manner appropriate to their circumstances, such as using simple language, visual aids, or other means. The ability to retain information for only a short time does not prevent a person from being considered able to make the decision. Relevant information also includes the reasonably foreseeable consequences of making a particular decision or failing to do so.

Presumption of Capacity
The starting point in every case is the statutory principle (Section 1(2) MCA 2005) that a person must be assumed to have capacity unless it is established otherwise. It follows that a person must be presumed to have the capacity to conduct proceedings in which they are involved. Declaring that a party lacks capacity has significant legal consequences and must be based on sound legal grounds and proper evidence. Such a finding should only be made with great care, as it deprives a person of the right to bring or respond to litigation without the intervention of a litigation friend. The right to litigate is a basic right protected by English law and safeguarded by the European Convention on Human Rights; it should only be restricted in limited circumstances.

Assessment and Evidence
If the court has the benefit of an expert assessment on capacity, the situation may be clear. However, if a parent declines professional assessment, it is for the court to determine the issue based on the best evidence available. It is highly unusual for the court to make a finding on capacity without any medical or psychological evidence. While the court may have some evidence, it may not be recent. The court will generally seek more current information, considering this both proportionate and necessary, as an opinion regarding capacity in one set of proceedings does not determine the issue in another. Lack of capacity should not be assumed.

In reviewing the evidence, the court must first identify an impairment or disturbance of the mind or brain (“the diagnostic test”) and then determine whether, because of this impairment or disturbance, the protected party cannot make the decisions necessary to conduct proceedings (“the functionality test”).
The court will also consider whether the parent has recently engaged with mental health services or receives assistance from adult social services. However, some parents have minimal involvement with such services and may have declined support. The court may invite the GP or other relevant professionals or agencies to assist in determining litigation capacity.

If no expert report can be obtained and the individual refuses or does not attend a medical or psychological examination, the court must consider what other evidence is available to help make its finding and should give appropriate directions.

Participation Directions
If the parent in question chooses to be directly involved in the proceedings, participation directions should be considered. These allow for adjustments throughout the proceedings to facilitate the parent’s involvement.

Stella Young
Trinity Chambers

The post Working with Parents Who Lack Capacity in Care Proceedings appeared first on Trinity Chambers.

Proportionality lies at the heart of contemporary legal reasoning. Article 6 and Article 8 of ECHR provides the principle that the state can only interfere in a manner proportionate to the risk of harm. Article 6 of the ECHR guarantees the right to a fair trial. This includes the requirement that any limitations on this right must be proportionate to the legitimate aim pursued. Article 8 of the ECHR protects the right to respect for private and family life, home, and correspondence. Any interference with these rights by a public authority must be necessary in a democratic society and proportionate to the legitimate aim pursued, such as national security, public safety, or the economic well-being of the country.

What Is Proportionality?

Proportionality has been described as the ultimate rule of law.  At its core, proportionality asks whether the means used to achieve a legitimate objective are necessary and whether they impose an undue burden on the rights or interests of individuals.

Historical Development

The concept of proportionality has deep roots. Its intellectual origins are often traced to German (Prussian) administrative law, where it developed as a control on state power. In German administrative law, the Principle of Proportionality (Verhältnismäßigkeit) is a fundamental concept requiring that administrative actions be necessary, suitable, and proportionate in a narrow sense to the aims they pursue, ensuring that government measures do not use excessive means for their goals.

The Allgemeines Landrecht of 1794 granted the government the authority to exercise police powers to ensure public peace. However, it simultaneously restricted these powers to only those measures that were essential for achieving that goal. The article specified that the police were to “take the necessary measures for the maintenance of public peace, security, and order.” This would have marked the first textual basis for the requirement of proportionality. Note, that the American constitution went down the route of “balancing” as opposed to proportionality and there is an interesting article online titled “American balancing and German proportionality: The historical origins” by Moshe Cohen-Eliya* and Iddo Porat.

Proportionality in Care Proceedings

In B (A Child) [2013] UKSC 33 Lord Neuberger in the Supreme Court emphasised that a care order where the plan is for adoption is a proportionate response to the harm identified. Lord Neuberger described such an order as ‘a last resort’ and expressed the view that ‘before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support’.

In giving a dissenting judgment, Lady Hale in the same case said this on the topic of proportionality “Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it”.

She further went on to say (and this was pre- Re B-S) “Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34.”

In the case of H-W (Children) a Supreme Court case from 2022, Dame Siobhan Keegan gave the lead judgment. She said of proportionality :-

“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”

“The effect of a care order is to vest parental responsibility for the child in the local authority: section 33 Children Act 1989. Thereafter, the parents can exercise their parental responsibility only to the extent that the local authority determines. As this court explained in In re B, that intrusive power clearly engages the article 8 rights of the parents and children. It follows that a care order can only be made, even if the statutory threshold criteria under section 31(2) are met, if such an order is necessary in a democratic society for the protection of the child(ren)’s right to grow up free from harm. That means that the order can be made only if it is proportionate to the needs of the situation.”

What does ‘proportionate to the needs of the situation’ mean? This concept is similar to the issues addressed by Lady Hale in Re B. The importance of risk assessment by the courts, as seen in Re F (A Child) (Placement Order: Proportionality) and more recently Re T (Children: Risk Assessment) EWCA Civ 93[1], compels the court to consider the likelihood of harm and how it can be prevented or protected against. This assessment informs the court on whether making a care or placement order is indeed proportionate, given the identified risk factors.

Dame Keegen went on to quote from Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146; which in turn quoted from McFarlane LJ (as he then was) in In re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2013] 3 FCR 293:

“The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option …

‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’

As Dame Keegen stated “This is now rightly the accepted standard for the manner in which a contemplated child protection order must be tested against the requirement that it be necessary and proportionate”.

Presently, the test for proportionality seems to be well settled. However, as we know as practitioners, things change, and attitudes and opinions move with the times. Do you always feel that the decision of the court is proportionate?

William Green

Trinty Chambers.

1. (1)What type of harm has arisen and might arise?

(2) How likely is it to arise?

(3) What would be the consequences for the child if it did?

(4) To what extent might the risks be reduced or managed?

(5) What other welfare considerations have to be taken into account?

(6) In consequence, which of the realistic plans best promotes the child’s welfare?

(7) If the preferred plan involves interference with the Article 8 rights of the child or

of others, is that necessary and proportionate?”

The post May I introduce you to Proportionality: Balancing Rights and Responsibilities in Law appeared first on Trinity Chambers.

In the realm of family law, the thoroughness of risk assessments can significantly impact the outcomes of child welfare cases. This article delves into the critical role of Re F factors, the challenges faced by local authorities in addressing them, and the implications for ensuring that all care options are meticulously considered before reaching a final decision.

Judges have a multitude of factors to consider before determining what is in a child’s best interests. As practitioners, we have observed judgments becoming increasingly lengthy as courts strive to ensure all relevant factors, both statutory and case law-based, are considered.

The concept of risk is inescapable to decision-making processes, and professionals such as social workers, lawyers, and judges must always keep risk in mind.

The Court of Appeal has addressed risk and the court’s approach to risk assessment in several cases, clearly outlining the necessary approach.

Re F (A Child) (Placement Order: Proportionality)

In 2018, the Court of Appeal, in the case of Re F (A Child) (Placement Order: Proportionality), delivered a judgment by Lord Justice Peter Jackson. The brief facts are as follows: The mother, aged 33, had a challenging early childhood. She worked successfully as a beauty therapist on cruise ships for 12 years. However, in 2015, she faced serious difficulties due to a violent relationship, leading her to seek refuge. This triggered a pattern of binge drinking in response to anxiety. She then entered a relationship with the father, whom she met during counselling. Their relationship was marked by violence and the father’s drug use, including violence towards the grandmother.

The local authority first became involved following an incident in October 2016 and worked with the parents during the mother’s pregnancy. The parents separated after a violent incident in September 2017, shortly after Robbie’s birth. Two further serious incidents occurred in Robbie’s presence in December 2017, and the father was briefly sectioned after attempting suicide.

Concerned about the mother’s drinking and level of cooperation, the local authority initiated care proceedings in December 2017 and applied for Robbie’s removal to foster care. This application was refused by HHJ Wilding, and an interim supervision order was made instead. A written agreement between the mother and the local authority stipulated that the grandmother would move in, the mother would not drink, and Robbie would have no contact with his father. The mother continued to care for Robbie until 29 June 2018, by which time he was 11 months old.

Various assessments were conducted, including a parenting assessment, a psychiatric assessment, hair strand testing, a risk assessment of the father, and a Special Guardianship assessment.

The local authority’s final evidence sought for the child to remain in the mother’s care under a Supervision order. At the Issue Resolution Hearing, the Children’s Guardian requested an adjournment of the final hearing to allow for further alcohol testing of the mother and to seek CCTV evidence from a pub, relating to an incident where the parents were seen together with their child in a pub.

Testing of the mother showed excessive alcohol levels from December 2017 to June 2018. CCTV ultimately showed that the mother had consumed up to a litre of wine. Phone records also demonstrated that the mother and father had been in contact. In other words, it was proven that the mother had been lying to professionals.

The local authority changed its care plan and sought a care and placement order. This was supported by the Children’s Guardian. Ultimately, the trial judge made the orders as sought.

Lord Justice Peter Jackson stated: “In short summary, there is no complaint about the judge’s legal self-direction, his findings of fact, or his conclusion that the threshold for intervention was met. Further, he identified:

1. The type of harm that might arise.
2. The likelihood of it arising. But he did not sufficiently address:
3. The consequences: what would be the likely severity of the harm to Robbie if it did come to pass?
4. Risk reduction/mitigation: would the chances of harm happening be reduced or mitigated by the support services that are or could be made available?
5. The comparative evaluation: in light of the above, how do the welfare advantages and disadvantages of Robbie growing up with his mother compare with those of adoption?
6. Proportionality: ultimately, is adoption necessary and proportionate in this case?”

Lacking these components, the judge’s analysis did not, in my view, provide an adequate foundation for adoption in a case where the need for such a profound order is not immediately obvious. With the passage of time, a rehearing is unfortunately inevitable, and in view of the child’s age, we have given directions to expedite this.”

Re T (Children: Risk Assessment) EWCA Civ 93

Since the Re F case, several subsequent cases have addressed the Re F risk assessment criteria. The most recent, from 2025 is Re T (Children: Risk Assessment) EWCA Civ 93. In this case, the Court of Appeal allowed the appeal, finding that the judge had not properly applied the Re F analysis. The court highlighted several issues, including the failure to identify the degree and type of risk, the use of a linear assessment instead of comparing care options, and the neglect of welfare checklists.

Again, Lord justice Peter Jackson giving judgment stated as follows:-

“Accordingly, the court had to address these questions in relation to each of these

children:

(1) What type of harm has arisen and might arise?

(2) How likely is it to arise?

(3) What would be the consequences for the child if it did?

(4) To what extent might the risks be reduced or managed?

(5) What other welfare considerations have to be taken into account?

(6) In consequence, which of the realistic plans best promotes the child’s welfare?

(7) If the preferred plan involves interference with the Article 8 rights of the child or

of others, is that necessary and proportionate?” and;

“A structured analysis of this kind, adapted to the facts of the individual case, is of benefit to those who make decisions and to those who are affected by them. The analysis need not be lengthy, but it ensures that undue weight is not given to one factor, however

notable, and that other important factors are not overlooked. It must be remembered

that risk assessment is about the realistic assessment of risk, not about the elimination

of all risks. Likewise, the assessment of actual or likely harm is not the same thing as

an all-round welfare assessment. Unfortunately, as the parents have argued, several necessary questions were neither asked nor answered in the present case. The all-important concluding section of the judgment falls well short of justifying such far-reaching decisions. There was no effective risk assessment, and consequently no proper welfare evaluation, comparison

of the options, or consideration of proportionality”.

Conclusion

The Re F factors are often not fully addressed in local authority final statements. Consequently, these points are sometimes raised for the first time during cross-examination at the final hearing, which is far from ideal. Social workers frequently rely on matters of ’emotional harm’ but fail to specify how this harm will be caused, its impact on the child, and the preventive measures that can be taken. These factors can often be linked with the concept of ‘care with support.’ It might be crucial that these points are addressed during cross-examination and in closing submissions to ensure the court has a comprehensive understanding of the measures that can be implemented. This ensures that all options are properly considered before reaching a final decision.

William Green

Trinity Chambers

The post Risk Assessment – A Safeguard to Fairness appeared first on Trinity Chambers.

Trigger warning: Mentions of sexual abuse

In this article, I discuss the law and procedure around applications to remove an unmarried father’s parental responsibility (PR).

Firstly, I will outline the initial statutory hurdles. Thereafter, I will walk through how the Court decides whether to terminate PR. This will include a discussion of the general principles, the test to be applied and any other relevant considerations. I will then provide a brief commentary on the relevant procedure and a short conclusion.

At the outset, I must stress that solicitors should manage their client’s expectations. In practice, it is unusual for these orders to be granted.

Statutory Hurdles  

As the introduction suggests, PR can be removed in the case of unmarried fathers[1]. Indeed, s. 4(2A) Children Act 1989 makes clear that anyone who acquired PR under s. 4(1) can have it removed by court order. But, does your case fall under the latter subsection?

In short, if your client’s ex-partner acquired PR:

1. by registering their name on the child’s Birth Certificate,
2. through a PR agreement, or
3. by court order

then your case is within the ambit of s.4(1).

Once you have double-checked that your client has PR for the child, they will be in a position to remove the father’s PR[2].

If you navigate these initial obstacles, you still have to advise your client on their prospects of success. Which begs the question, will the Court find in your favour?

How the Court Decides Whether to Terminate PR

General Principles

As you would expect, the welfare of any child will be paramount[3]. Interestingly, whilst the welfare checklist at s.1(3) Children Act 1989 is not a mandatory consideration, the courts may find it to be a useful analytical framework in these applications[4]. Though no one factor in this checklist will have priority [5]. The Court will also have to consider whether making no order at all would be better than making one[6]. Do note, as the applicant, you bear the burden of proof[7] and the removal of PR must be justifiable and proportionate[8].

Respondent fathers may argue that they benefit from a presumption that PR should be continued. This is a common misconception. It is the welfare of the child that creates presumptions as to parental involvement, not the parenthood of the father[9]. In any event, s.1(6) Children Act 1989 submissions could be made to offset any ‘presumption’.

As the Court considers these general principles, they will also ask themselves, ‘if the unmarried father did not have PR, would we grant it to him?’. If the answer is no, PR will likely be removed[10].

Immediately below, I loosely outline how the Court would go about answering this question…

Would the Court Grant PR?  

Currently, the case law suggests that a combination of Re H and Re S considerations will guide the Court when determining whether to grant PR[11]. However, the Re H considerations will be the focus here, as they tend to be explicitly addressed in prominent decisions regarding the termination of PR[12].

As per Re H, the Court should assess:

• The degree of commitment the father has shown towards the child;
• The degree of attachment that exists between the father and the child; and
• The father’s reasons for applying for PR (naturally, this might not always be relevant).

Lastly, the Court would have to consider s.1(2A) Children Act 1989, which states that there is a presumption parental involvement will benefit the child. However, this must be understood in conjunction with the general principles outlined in the previous section.

Commitment

What constitutes a lack of commitment? Although this is a fact-sensitive question, the Court has said that the following can indicate a lack of commitment:

• infrequent contact[13]
• a failure to apply for orders designed to reinstitute the relationship[14]
• not taking steps since convictions to address offending behaviour[15]
• engaging in behaviour which is entirely antithetic to continued safe and consistent involvement in a child’s life[16]
• failing to pay child maintenance[17]
• sexual abuse, which can wholly undermine any commitment[18].

Attachment

Much like commitment, each case will turn on its own facts. However, I would suggest examining the frequency and duration of contact. But perhaps most importantly, you should ask, how well does the child know their father and what is their view of them? If there has been little contact and the child views their father as a stranger, this will strengthen your application.

Interestingly, in D v E, there was no evidence of attachment and there was likely no memory of the father ‘by reason of the termination of contact consequent upon the father’s sexual offending’[19].

Other Relevant Considerations

Though not exhaustive, it may be useful to consider if the following case law aids your application:

CW v SG – in accordance with res judicata, convictions should be accepted as evidence of underlying facts. Unless there are exceptional circumstances[20].

A v D – the Court considered the effect a father retaining PR would have on the mother. They concluded that compelling the mother to engage with the father would be intolerable, lead to profound instability and inevitably cause deterioration in child arrangements[21].

Re P – suggests that where a father has clearly forfeited PR, the Court will be more likely to terminate it. Moreover, if there is nothing in the bundle of responsibilities that the father could exercise now or in the future for the child’s benefit, the Court may be inclined to terminate PR[22].

Procedure

The rules which govern applications to terminate PR are the same as those which govern s.4 Children Act 1989 applications for PR[23]. This means that Part 12 of the Family Procedure Rules will apply[24]. As such, the respondent’s identity may vary depending on which of the circumstances outlined under FPR 12.3 are relevant. Regardless, you will have to fill out both a C1 and a separate FM1 form.

In accordance with FPR 12.32, respondents must file and serve on the parties an answer to the application within 14 days, beginning with the date on which the application is served.

It should also be noted that PR cannot be terminated if it was granted by order at the same time a child arrangements order (CAO) was made in favour of the father, and the latter is still in force. Moreover, if a CAO stating the child should live with the father is discharged and a new CAO directing different living arrangements has been established, the father will still have PR. Unless and until the s.4 order is terminated[25].

Conclusion

Applications to terminate PR are seldom granted and solicitors should explain this to their clients to manage expectations.

Those with PR themselves can apply to remove an unmarried father’s PR in certain circumstances. When determining whether to grant the application, the welfare of the child will be of paramount importance. Nevertheless, the Court will still consider various other principles. The success of an application will likely turn on the answer to the question ‘if the unmarried father did not have PR, would we grant it to him?’ To answer this question, the Court will assess the level of commitment and attachment the father has demonstrated towards their child.

Hopefully, this has been a useful outline of the relevant law and procedure around termination of PR. All cases will turn on their own facts and so this brief article should not be regarded as legal advice. Prospective applicants should always consult legal professionals before taking action.

In the event you have any further questions, feel free to contact our clerks, who will bring your queries to my attention.

Matthew Jahanfar

1^st Six Pupil at Trinity Chambers, Essex

[1] Halsbury’s Laws of England, Children, Chapter 2, Sub-Chapter 5 (ii), 147. Acquisition of parental responsibility; parental responsibility orders and agreements.   

[2] Subject to certain restrictions, see s.4(3) Children Act 1989. Interestingly, with leave from the Court, a child themselves can apply to remove the PR of an unmarried father.  

[3] s.1(1) Children Act 1989.

[4] D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [31]; Re D (Withdrawal Responsibility) [2015] 1 FLR 166 at [12].    

[5] Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166 at [12]-[13].

[6] s.1(5) Children Act 1989; Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [964].   

[7] CW v SG (Parental Responsibility Consequential Orders [2013] 2 FLR 655 at [22].    

[8] D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [52].

[9] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [964]; Re D (Withdrawal of Parental Responsibility) [2015] 1 FLR 166 at [14]. 

[10] Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 at [1053]; D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].

[11] Re M (Parental Responsibility Order) [2014] 1 FLR 339 at [15]; Re H and another (minors) (adoption: putative father’s rights) (No 3) [1991] 2 All ER 185 at [189]; Re S (Parental Responsibility) [1995] 2 FLR 648. 

[12] For example, Re P [1995] 1 FLR 1048 at [1052]; D v E [2022] (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].   

[13] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [936]; Re J (parental responsibility) [1999] 1 FLR 784 at [788].  

[14] D v E (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].

[15] Ibid.

[16] Ibid.  

[17]  Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [936]; Re T (a minor) (parental responsibility: contact) [1993] 2 FLR 450. Do note, that the fact the father also treated the mother with hatred and violence did not assist his case.

[18] CW v SG (Parental Responsibility: Consequential Orders) [2013] 2 FLR 655 at [59].

[19] (Termination of Parental Responsibility) [2022] 1 FLR 582 at [53].

[20] CW v SG (Parental Responsibility: Consequential Orders) [2013] 2 FLR 655 at [47].

[21] [2013] EWHC 2963 (Fam) at [27].

[22] Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 at [1053]-[1054].  

[23]Family Procedure Rules Part 12, ‘Interpretation and Application of this Part’, 12.1(1)(b) and 12.2 ‘private law proceedings’ at (b).

[24] Ibid.   

[25] Butterworths Family Law Service, Children, 3A, Chapter 3D, Unmarried parents at [964].

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When individuals, (whether with members of their family, friends, partners or business partners) own land or property together, disagreements can arise leading to legal disputes. Those disputes can result from the use of the land or property including the occupation; the ownership (interest) of the land or property;  or whether it should be sold.

In the event of sale there can be disputes over the conditions of sale, the division of the proceeds of sale and whether there should be adjustments to the sale proceeds due to unequal financial contributions .

What does the Act do?

 This Act provides the court with the following powers:

• To make an order relating to the exercise by a Trustee of their functions;
• To exclude or restrict the Beneficiaries’ entitlement to occupy the land or property;
• To declare the nature of a person’s interest in land or property;
• The court can order a sale of land (or part of it) or property;
• The court can order the land or property to be mortgaged, exchanged or partitioned CPR 40.16-40.17;
• The court can make compensatory (financial) awards s .13(6) and S 14(2);
• The court cannot transfer property but in certain circumstances can give one party the first opportunity to bid on a land/ property which is the subject of an order for sale s. 14(2).

 What is a Trust of Land?

A Trust of Land is when land or property is owned by 2 or more people. Trustees hold the legal title and the beneficial interest is the right to enjoy occupation of the land or property or receive an income from it, this is shared amongst the Beneficiaries.

A Trust essentially outlines how that land or property is held.  Who owns the land or property; in what shares; what are the rights of the owners and what are their responsibilities and obligations. This can be set out expressly in an Express Trust or be Implied by the way the land or property was acquired, this is known as an Implied Trust.

Who can apply?

An owner or person with an interest in the property may apply.

What are the considerations?

Under Section 13

Section 13 relates to who can occupy the land or property. One or more of the Beneficiaries rights to occupy can be excluded or restricted. Conditions may be imposed on the Beneficiaries who are in occupation, such as discharging the mortgage or other expenses relating to the land or property. Conditions can be imposed on Beneficiaries to compensate the Beneficiary who has been excluded or whose occupation is restricted.  When determining issues of the court will have regard to:

1. The intention of the person/s who created the Trust;
2. The purpose for which the land or property is held;
3. The circumstances and wishes of each of the beneficiaries who are entitled to occupy the land or property

Under Sections 14 and 15

Section 14 relates to the exercise of the Trustees of their functions and the Court’s declaratory powers as to the nature and extent of a person’s interest in the land or property. The court can order the sale and regulate how the property is to be sold. On sale it can make adjustments to the proceeds to reflect financial contributions.

Section 15 outlines the relevant matters that the court takes into account:

1. The intention of the parties;
2. The purpose for which the land or property is held;
3. The welfare of any minor who occupies or might reasonably be expected to occupy the land or property as his home;
4. Any creditor’s interest in respect of any beneficiary.
5. Section 15 inevitably considers two types of claims:

In applying the considerations under section 15 the court inevitably considers two types of claim:

Resulting Trusts (where the non-owner makes a financial contribution to the purchase of the land or property); or

Constructive Trusts, where parties have  formed a ‘Common Intention’ that the non-owner will benefit from shared ownership and that the non-owner has acted to his detriment as a consequence.

Further the court can assess property rights of a party through Proprietary Estoppel, where one party relied on the promises of shared ownership from the owners and acted to their detriment on the basis of that promise.

Procedure

It is important to know and understand the procedure. There are very strict rules on the timing of proceedings, the information that must be disclosed and considerations to alternative ways of resolving the dispute. The costs consequences can be very serious for breaches of Court Directions or the CPR. It is noteworthy that the court has the power to order costs on an indemnity basis plus interest as well as an additional amount CPR 44. 3 (1) (2).

It is also important to bear in mind the Pre-Action Conduct and Protocols (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct) noting paragraph 6 requires the claimant to set out concise details of the claim giving the defendant a reasonable time (14 days in most straight forward cases) to respond and para 8 requires the consideration of negotiation or other form of ADR.

Overview

It is important to note that these applications often run alongside applications for financial relief for minor children under Schedule 1 of the Children Act 1989.

Further there are other potential remedies for an engaged couple, where is it possible to claim a share or an enhanced share of land or property under the Matrimonial Proceedings and Property Act 1970 Section 37

The number of TLATA claims is increasing, the area of law can be complicated and there are many ‘trip hazards’ that can cause serious consequences to the outcome in any case. When purchasing land or property or making a financial contribution it is important to protect yourself from litigation. A Declaration of Trust or Ownership Agreement will offer protection and updating any such Trusts or agreements in the event of a change of circumstances.

In the event of a claim it is important to establish a clear litigation structure in order to achieve the best outcome.

Tina Harrington

The post Trusts of Land and the Appointment of Trustees Act 1996 – A Brief Overview appeared first on Trinity Chambers.

Relocation is a significant decision to make by any parent, especially when considering the likely impact it will have on their children. Children will have to adapt to a whole new environment, often going long periods of time without seeing familiar faces. This is not to mention the challenges of having to make new friends and changing their routines away from activities deep rooted well within their communities.

The courts approach this decision the same way; they see it as one of the more consequential decisions within the realm of parental responsibility, which require consultation with any other holders of parental responsibility. Those who relocate children, without consent or an order from the court, do so at their own risk. As we know from BB v CC (Residence Order) [2018] B78, the court has the power to order children to be returned and can do so on a summary basis, if this is appropriate in meeting the child’s welfare as highlighted in R (Internal Relocation: Appeal) [2016] EWCA 1016. Nevertheless, such applications to relocate within the UK will be dealt with either by way of a specific issue order to permitting the move or a prohibited steps order preventing it.

The framework to this area of practice is governed by the welfare principle in Section 1(1) of the Children Act 1989 (“the Act”), which brings it in line with its external counterpart. In this respect, the welfare of the children is referred to as the ‘only authentic principle’ and the court’s paramount consideration as discussed by Thorpe LJ at paragraph [141] in K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793. This involves a holistic and multi-faceted balancing exercise, which is completed by way of reference to the welfare checklist in Section 1(3) of the Act.

Accordingly, while the legislative framework governing this realm of family practice is simple and uncomplicated, its application to the relevant circumstances in each case can be difficult. Perhaps, additional challenges arise in predicting the outcome of cases, since all will depend on the objective application of the welfare principle to a subjective set of facts, which vary from case to case. Nonetheless, as emphasised by Ryder LJ at paragraph [29] in F (International Relocation Cases) [2015] EWCA Civ 882, judges may be assisted in this exercise by adopting a ‘balance sheet’ approach. This will allow judges to weigh the relevant factors in each case against one another, with the objective of determining the best possible option to meet the welfare of the child moving forward.

The Court of Appeal cleared up the long-misconstrued presumption, where previous authorities had been mistakenly interpreted to impose a supplementary requirement of exceptionality when refusing applications to internally relocate. This was clarified by Black LJ at paragraph [53] in the leading case of C (Internal Relocation) [2015] EWCA 1305, emphasizing that previous authorities could not be interpreted as such. Black LJ stressed that the courts will be hesitant in preventing a parent from exercising their right to choose where to reside in the UK unless the welfare of the child so requires. However, this was not because of an additional requirement of exceptionality, but rather for the reason that the welfare analysis leads to such a conclusion. This provides notable clarity to the approach on internal relocation, bringing the legal test wholly in line with external counterpart. Consequently, much of the analysis prescribed in external/international relocation cases such as K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793 and Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 apply to internal relocation cases too. For further guidance on such analysis, please do refer to our article titled ‘Children Act: International Relocation’ for the sake of avoidance of repetition.

Nonetheless, this does not prevent the courts from drawing on the guidance provided in previous authorities. Judges and practitioners across the board will find the guidance in Payne v Payne [2001] All ER (D) 142 (Feb) useful, where at paragraph [40], Thorpe LJ provided insight into the forensic exercises the courts will have in mind when considering applications to relocate; (i) is the applicant’s application genuine and realistic?; (ii) is the respondent’s opposition to the application genuine and what is the extent of the detriment suffered by the them?; (iii) what would be the impact on the applicant if their realistic application is refused?; (iv) the outcome of the questions in (ii) and (iii) are then brought into the overriding review of the child’s welfare as the court’s paramount consideration. Nonetheless, Thorpe LJ also stated at paragraph [41] of Payne v Payne that he did not wish to diminish the significance that the Court of Appeal has steadily placed on the emotional and psychological wellbeing of the child’s primary carer. Yet, this should be purely taken as judicial guidance and does not change the fundamental legal principle, which is the that the welfare under S.1(1) of the Children Act 1989 is the court’s paramount consideration.

Parents are often under severe scrutiny throughout these applications. This is clearly not the intention of the court, which will only examine parents and their behaviour in respect of the effect such behaviour may have on the future welfare of the children. Justice Lieven DBE highlighted in the recent case of The Father v The Mother [2023] EWHC 1454 (Fam) that advocates should keep in mind the considerations raised by the Court of Appeal in K v K [2022] EWCA Civ 468. She stated at paragraph [5] of The Father v The Mother that “The Court is not there to consider what went wrong in the parent’s relationship (limited or extensive) in the past, save strictly to the degree it impacts on the decision concerning the child in the future. Equally, cross-examination about past failings (by both parents) is very unlikely to aid better future relations in the best interests of the child. If the family justice system is to have the slightest chance of dealing with cases in a timely and productive manner and to assist families in decision making concerning their children, then we all have to focus on the real issues and try to adopt a problem solving approach rather than a largely adversarial one.”

When making a decision on the potential for a child to relocate, the court will ultimately have to consider the parent’s right for respect for private and family life under Article 8 ECHR. This was recently referenced in The Father v The Mother [2023] EWHC 1454 (Fam), where Justice Leiven considered that, when the court is asked to undertake a global and holistic evaluation of the best interests of the child, the wishes and feelings of the parents, as well as how those will impact the child, will be of great importance. This is not to mention that the court will also be tasked with balancing the Article 8 rights of each parent against the other. However, this will ultimately be a proportionality exercise, whereby any interference with Article 8 rights will be weighed against the welfare interests of the child in each set of circumstances before the court, which again is the court’s paramount consideration.

As previously mentioned, this article is merely intended to provide an overview of the fundamental principles and judicial guidance on this topic. It cannot be stressed enough that this is a highly fact sensitive area of practice and consultation with specialists should be sought at the earliest possible opportunity, even before issuing, to maximise the likelihood of success on your application to relocate. Should you wish to seek legal advice, please do not hesitate to contact our clerks, who will connect you with one of our remarkable team of barristers.

Adham Sleem

The post Internal Relocation Aligned with its External Counterpart appeared first on Trinity Chambers.

I blinked twice in disbelief. This subject. This case name. I checked the calendar, but it was not the first of April. It is a dog case called FI v DO, doubtless with a twinkle in the eye.

This was an application for financial remedy issued by H in 2023. In 2024 he issued a further application – for shared care of a golden retriever identified only as N.

The financial remedy issue is familiar territory to many practitioners: the sale of the family home and the division of net proceeds, the Court taking account of the needs of the children who lived with W.  Neither were able to rehouse in purchased accommodation from the proceeds of sale. Not a big money case.

H sought a declaration as to ownership of the dog and a shared care arrangement. W said she did not think it was in the dog’s best interests to spend time with H given H’s behaviour. That behaviour was when H was visiting the grave of a previous dog when (he claimed) he saw N (the dog) running off the lead. In cross examination he admitted that the dog had been with W’s mother (but that he had more right to the dog) and the dog had initially run off from him before he got her back. He said that he always kept a collar and lead in his car and that this was definitely not a planned event. He said he had a need for the dog for his mental health and the children need not be told about the dog-duction.

‘At times it seems to me that I was in the realms of a Children Act application which featured a dog when the W was cross examined about the dog’s welfare and shared care arrangements,’ DJ Crisp observed.

RK v RK [2011] EWHC 3901 (Fam) was argued, though the dog in that case was not the primary focus of the litigation. In that case Moylan J determined the ownership of the dog on the determination of the primary carer.

DJ Crisp followed this logic: it was not who had paid for the dog or even who had cared for the dog previously, but the fact that W had provided care of the dog from separation for 18 months. ‘The dog’s home is with the wife, and she should stay there,’ she concluded

Pets can represent substantial investments in financial terms and are also valued members of our families. As treasured and pampered family members, we want to argue that their welfare is a relevant concern in proceedings. People can be more passionate about their dog, cat or canary than about many things. We love our pets.

In this case, the decision about the dog did take account of her welfare. Consideration was given to the person who provided care and the quality of that care. The W provided a safe home and that is where the dog belonged. This is treating the dog as more than a mere chattel, though that remains the legal category for now. Perhaps this is opening a dog’s door to a new assessment of welfare.

Andrew Bailey

The post For the Love of Dog appeared first on Trinity Chambers.

Then it happens; the notice of hearing arrives from the Court and you discover that in fact your FDR has been listed in three, four, five or perhaps even six months.  Your client is distraught at the thought of the emotional and financial costs of a further half year without resolution.  You console them and explain that while it is not in any way ideal, the extra time will let you prepare everything in forensic detail.  The client sees the wisdom in your advice and, putting their disappointment behind them, throw themselves into getting everything you ask for.

Catastrophe strikes.  On the eve of the FDR, you receive the dreaded e-mail / order which reads ‘due to judicial unavailability the FDR is vacated’.  The cycle begins anew.

Or perhaps you do not receive a cancellation notice and your FDR remains listed.  You turn up at Court with your client and Counsel with the intention of doing all you can to settle the case.  Unfortunately, your case is in a busy list.  Despite the best efforts of both Counsel following the Judge’s indication it does not prove possible to settle the case on the day.    This will mean that, unless the parties are able to settle the case between themselves, you will need a final hearing.  Almost inevitably this will require a time estimate of one or more days and given it may have taken six months for an FDR listing, a considerable period will no doubt lapse before the final hearing.

Now, perhaps the above tale of woe is a little far-fetched, however there is no doubt that the issues at the various stages of proceedings as described do happen.   There is, however, a way to avoid such risks.

A private FDR (pFDR) follows a similar format to a Court FDR, save that instead of a Judge, the parties appoint an Evaluator who acts in the role of a Judge.  The Evaluator receives the papers and then over either a half day or a full day session, endeavour to assist the parties (who attend with Solicitors and/or Counsel as they would at Court) to reach settlement.  Evaluators are experienced financial remedy practitioners who often also sit as Judges.

The benefits are many.  The Evaluator only has your case, not four or five others as a Judge would and so they will be able to focus for the entire day on your issues without distraction.  Other than the broad framework of the session (half day or full day) there are no timing restrictions.  Evaluators will have read all of the papers in advance and so will be fully appraised with each of the issues on which the parties will need assistance.  Importantly, the parties can schedule a pFDR when they want and with the Evaluator they want, rather than having to take pot luck with a court listing.

It is correct to say that Evaluators will charge a fee, which is usually split equally between the parties unless they agree otherwise.  Although at first glance this would seem to be adding costs, in fact, when considering the life of proceedings, a pFDR is often much less expensive overall.  Settlement rates are higher than settlement rates in traditional Court FDRs and so any costs post a successful pFDR are minimal.  In that sense, the Evaluator’s charges are likely to be insignificant when set against the costs of a fully contested final hearing.

Here at Trinity Chambers, we have a number of experienced pFDR Evaluators who all practise in financial remedy proceedings and all of whom hold or have held judicial office.  Our team are therefore familiar with financial proceedings from both sides and will do their utmost to bring a successful resolution to your case.  We have superb facilities at Chambers and can host pFDRs, alternatively out Evaluators are happy to travel to a location convenient to the parties.  We also do not believe in a fixed fee structure and are always happy to discuss tailoring our services to the client’s requirements and budget.

If you would like to find out more about our pFDR services or our Evaluators, please contact Keith Wilmore, Chambers’ Head Clerk, who will be delighted to assist.

David Stevens

The post Recapping the Benefits of Private FDRs appeared first on Trinity Chambers.

Limitations of S24A MCA

Section 24A MCA expressly empowers the court to order a sale of property (s.24A(1)), however, the order cannot take effect unless the divorce or nullity has been made final (s.24A(3)). This is, save for one singular exception; when a Legal Services Payment Order (“LSPO”) application is made under s.22ZA, an application for an order for sale may be made to bolster the primary interim application.

Why might an interim order for sale be necessary?

There are a number of reasons why interim orders for sale might be both necessary and attractive. Parties embroiled in protracted ancillary relief proceedings might not yet have an FDR or final hearing in sight, and liquid assets may be limited. Practically speaking, the case law tells us there needs to be a good reason to order a sale on an interim basis, such as the need to pay pressing debts or legal fees. Factually, the former matrimonial home (“FMH”) might be the only asset available for distribution, and both parties cannot continue to litigate without funds being made available from it. This can be distinguished from an interim order for sale in support of a LSPO application, which aims to assist the financially weaker party.

Difficulties may arise when the residing spouse refuses to move out. At best there may be a genuine housing need, and at worst they might be attempting to frustrate the process by non-engagement with a formerly agreed sale. In these instances, the court is required to consider not only whether an interim order for sale can be made, but also whether the property can be delivered up with vacant possession.

The Routes

Mostyn J in BR v VT [2015] EWHC 2727 (Fam) says there are 3 routes by which interim orders for sale can be made;

1. Through section 17 of the Married Women’s Property Act 1882 (“MWPA”), as clarified by section 7(7) of the Matrimonial Causes (Property and Maintenance) Act 1958; or
2. An order made under sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”); or
3. Under The Family Procedure Rules (“FPR”) 2010 rule 20.2(1)(c)(v).

FPR

The court can make an interim order “for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly“.  Relevant property is defined as “property (including land) which is the subject of an application or as to which any question may arise on an application“.

It should be noted that there is dispute at High Court level as to whether the route under the FPR creates jurisdiction to make an interim order for sale at all; Mostyn J in BR v VT says it does, but Cobb J in WS v HS [2018] EWFC 11 disagrees. The issue was considered further by Cobb J in S v S [2018] EWFC 11 (from paragraph 38), who says it “will not, and cannot, engage a jurisdiction which does not exist” (paragraph 43) and “even if, contrary to my conclusion, FPR r 20.2 operated to give a court a free-standing power to order sale…it would not have given the court the power to order the delivery up of vacant possession” (paragraph 51).

TOLATA

This route depends on both spouses having a beneficial interest in the property;

At paragraph 2 of BR v VT, Mostyn states:

Under section 13(1) of TOLATA “trustees may exclude the entitlement of a beneficiary to occupy land and this power may be exercised by the court by an order under section 14.” In Miller-Smith v Miller-Smith [2009] EWCA Civ 1297 at para 16 Wilson LJ explained that the conjunction of sections 13 and 14 “enables the court in effect to order that a beneficiary should give vacant possession of land”.

MWPA

Section 17 of the MWPA expressly confirms the power to order a sale;

“In any question between husband and wife as to the title to or possession of property, either party … may apply…to any judge … according as such property is in England … and the judge … may make such order with respect to the property in dispute, and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit”

However, despite the FPR suggesting the court can order a sale for “any…good reason”, that TOLATA “enables the court in effect to order that a beneficiary should give vacant possession of land”, and that the MWPA maintains a judge can make any order “as he shall think fit”, Mostyn says the issue of vacant possession requires further consideration.

The argument here is that to make an order for vacant possession is to make an order terminating the rights of occupation of one party. As a result, as prescribed in BR v VT, Mostyn says that the application should be supported by undertaking the exercise required by section 33 of the Family Law Act 1996 (“FLA”); for the making of an Occupation Order.(1)

Family Law Act 1996

Whilst this approach may seem like a common sense one, it is not without issues. S33 covers those who have legal and beneficial interest a property (s33(a)(i)), or those who have home rights only (s33(a)(ii)), but the powers available to the court are different depending on the type of interest. Where a respondent has home rights only, ‘and the applicant is the other spouse or civil partner, [the court has the power to] restrict or terminate those rights’ (s33(3)(e)). However, for respondents with legal and beneficial interest, the court can only ‘prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house’ (s33(3)(d).

On the face of it, it therefore seems that where one party owns a property in their sole name, and the other has home rights only, the court can make an interim order for sale with vacant possession by terminating the home rights. The case law in this area is fairly settled.

However, where the property is held in joint names, or rather the parties both have legal and beneficial interest, the court can only restrict those rights, not permanently terminate them. In RA v KS [2023] EWFC 102, Recorder Allen, KC came to this exact conclusion and refused to order a sale for a jointly owned property, not the FMH, of which H was in occupation.

Jointly Owned Property

In Miller Smith v Miller Smith [2009] EWCA Civ 1297, the court dealt with W’s appeal against an interim order for sale with vacant possession under s.14 TOLATA. The property was the FMH, of which H and W were joint owners, where W was still living. W argued that the order was premature pending the outcome of ancillary relief proceedings. Wilson LJ agreed that whilst it is more desirable to resolve at the final stage, it looked unlikely that W would have achieved a transfer into her sole name at the conclusion (inter alia), and the appeal was dismissed. The Court of Appeal therefore seems to create a remedy for joint owners under TOLATA.

Whether s33 FLA should be subsequently considered for joint owners under TOLATA is another point of contention. Wilson LJ in Miller Smith confirmed that TOLATA contains an inherent power to order a sale with vacant possession (paragraph 16), and nonetheless, s15 TOLATA requires the court to undertake an evaluative exercise of matters to which the court is to have regard in determining an applications under s14 (paragraph 17). Mostyn J in BR v VT disagrees with Miller Smith, and suggests that whichever route is pursued, the evaluative exercise in s33 should be undertaken, even though, as noted by Recorder Allen in RA v KS, BR v VT dealt with sole ownership and “fail[s] to provide guidance where the respondent has a proprietary interest”. Further, it should follow that joint owners using TOLATA would inevitably become caught in the trap of s33(3)(d) FLA, which cannot permanently terminate the rights of a party with legal and beneficial interest.

Whilst it is not fully clear on what basis Mostyn’s differs, it is now trite law that all applications must be supported by consideration of s33(6) factors. Cobb J (WS v HS at paragraph 59) agrees(2) that whilst the court in Miller Smith had felt able to bypass the s33 exercise for an application under TOLATA, there remains caution against recommending this approach. Cobb J confirms the necessity of considering both threshold and discretionary criteria in matrimonial proceedings, as “by an order under TOLATA…the court lays down only one piece of the jigsaw, namely that the home be sold, without its being able to survey the whole picture by laying down the others”. He makes clear that there are dangers in viewing applications in isolation of the holistic s25 MCA factors, and “courts will be slow to take any interim step which may pre-empt the exercise of the wide discretion at final hearing; it is only then that all the pieces of the ‘jigsaw’ come together.” (paragraph 61).

Conclusions

Ostensibly, it is arguable that the MWPA and TOLATA provide the safest routes for those seeking interim orders for sale with vacant possession, at least until the FPR dispute is resolved. The MWPA, and the respective supporting case law, offers promise for sole owners seeking to evict a spouse with home rights, and an application under TOLATA is the better option for joint owners, although not without difficulties where the High Court and Court of Appeal disagree. Despite the differences between Mostyn and Cobb, practitioners may take solace in the available jurisprudence, which offers scope to argue your case no matter its facts. What is crucial, however, is that “it is important for the applicant for an order to assert his/her case specifically and clearly as to the respondent’s ‘rights’” (WS v HS at paragraph 53).

Case Law

1. BR v VT [2015] EWHC 2727 (Fam)
2. WS v HS [2018] EWFC 11
3. S v S [2018] EWFC 11
4. RA v KS [2023] EWFC 102
5. Miller Smith v Miller Smith [2009] EWCA Civ 1297

(1) Practitioners should note the different sections of Part IV of the FLA regarding Occupation Orders, as other sections may be more relevant to their application. For example, section 35 relates to former spouses with an interest where Decree Absolute or Final Order has been pronounced, and section 36 relates to cohabitees. The evaluative criteria and the balance of harm test remain the same, but the powers available to the court do not.

(2) There is more disagreement between Cobb J and Mostyn J as to whether the main application should be supported by a formal FLA application. Mostyn J says that the court could make a ‘supplementary order under para 1 of schedule 4 removing the rights notice’ (paragraph 24). Cobb J in WS v HS says that owing to the draconian nature of occupation orders, reserved for exceptional cases (paragraph 53(ii)), it is best practice to make a formal application under the FLA. Further, Cobb J argues that the distinctly procedural FPR route would need to attach to an actual application (paragraph 54).

Sophie George-Moore

The post Interim Orders for Sale in Financial Remedy Proceedings appeared first on Trinity Chambers.

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 Court has to tread a narrow path between, on the one side, ensuring the witness’ evidence is adequately tested by the points that the other party wishes to raise, but, on the other, ensuring the judge does not enter the arena or be seen in any way to be promoting the case of one side or the other.” [29]

• “A further need for caution may arise from the need for the judge to avoid taking an important point on behalf of one party which that party has not themselves raised.” [34]

• “Fairness should require the Court to be very open with the parties as to the process to be adopted by explaining what is to happen, step by step, at the start in straight forward terms.” [35]

• To “put the party’s case ‘fully, properly and fairly’. This requirement, alongside the countervailing one for the court to avoid entering the arena, is what makes the judicial task a tricky one… the court must not edit, neutralise, or otherwise defuse the questions that a party seeks to have asked so as to minimise their potential value.” [38]

The President also gave some practical points to consider when appointing a QLR or not:

• “Whilst there is value in the QLR attending court for the ground rules hearing so that they may meet the party on whose behalf they will be asking questions, where this is impractical, and where holding the hearing remotely means that a QLR who could not otherwise act can be appointed, it should be acceptable for the QLR to attend the ground rules hearing remotely;

• The default position for the full hearing should be for the QLR to be in attendance at court, rather than joining remotely, as the overall effectiveness and fairness of the process is likely to be diminished if they are not in the courtroom;

• In all cases (whether there is a QLR or not) at the ground rules hearing, or earlier, the court should direct that the prohibited party should submit a clear statement shortly stating the allegations, facts or findings that they seek to establish;

• In all cases, the prohibited party should be required to file a written list of the questions that they wish to have asked prior to the main hearing. The list should go to the QLR, or to the court if there is no QLR, but not to the witness or other parties. This process should not prevent the prohibited party from identifying additional questions that may arise during the hearing.” [41]

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

The post In the Absence of a QLR appeared first on Trinity Chambers.