2. In recent times, numerous Court of Appeal decisions have addressed the concept of proportionality. Often, this principle is subtly embedded within different terminologies. However, the recent case of Re N directly confronts the common understanding of proportionality

3. Lord Justice Peter Jackson delivered the Judgment, he being no stranger to proportionality. The facts of Re N were perhaps a little different to so many of the care cases that we deal with. To keep the reader engaged the following bullet points sets out the factual matrix.

4. So here are the facts:-

• L, the subject child, was a boy of 2 years of age.
• The mother was a 57 year old Japanese national. She was a professional person, who lived and worked in this country for a number of years.
• In 2015 her husband died.
• The mother had no support from family in this country. She decided to have a child, and L was born in October 2023 after assisted conception overseas.
• The local authority became involved upon L’s birth. Nursing staff at the hospital felt that the mother was unable to care for him independently, and required prompting in areas of personal care and feeding
• When L was 3 weeks old, he and his mother went to what was the first of three separate placements which lasted for the next 21 months. The mother agreed to these placements under section 20 Children Act 1989 and no statutory order was made in respect of L until the final order conferred parental responsibility on the local authority.
• The final hearing took place between 11th and 15th August 2025 before Recorder Magennis.
• At final hearing the mother contested that the threshold criteria had been crossed for the making of public law orders but note that this was not a matter subject to the appeal.
• The court at first instance found that threshold was crossed on the likelihood of harm.
• The court then went on to make a Care Order and a Placement Order. The court of appeal quotes heavily from the judgment at first instance, and it is, time permitting, worthy of a read.
• The mother appealed (note new solicitors). None of the trial counsel appeared in the Appeal hearing.

5. The court having set out the facts (in a lot of detail all of which was required) Lord Justice Peter Jackson then considered the principles. As he said, “unusual cases prompt a return to first principles”.

Bullet points of those principles follow:-

• In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, the Supreme Court confirmed that a care order can only be made if it is necessary in a democratic society for the protection of a child’s right to grow up free from harm, and proportionate to the needs of the situation.
• Y v United Kingdom (2012) 55 EHRR “ [F]amily ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
• LJ Peter Jackson referred to the case of Re F (almost a classic now) whereby he said “I suggested that in assessing the risk of future harm, the court should consider: the type of harm that may arise; the likelihood of it arising; the severity of the consequences if it arose; and what risk reduction or mitigation steps can be taken.
• Back to the analysis of the court, LJ Peter Jackson said as follows “In Re B, in a finding upheld by the Supreme Court, the trial judge had expressed himself satisfied that the threshold had been crossed, “not perhaps in the most extreme way that is seen in some cases but crossed it has been”. That, in my view, is the situation here. The mother’s characteristics, unusual for a parent facing care proceedings in this country, led a number of professionals to express real concern about her parenting and her often dismissive response to guidance. These observations, coming from a range of experienced observers, had to be taken seriously, but they were not the end of the matter. The critical next question was whether the risks to L in early childhood, assessed in the light of whatever support might be effective, were so great as to justify the permanent dissolution of this small family.” As already mentioned, the findings of threshold were never appealed but it is helpful to read what the court of appeal’s view was on the issue. In short, not the most serve but the Rubicon was crossed.

7. The following passage from Lord Justice Peter Jackson is worth remembering. “The case for adoption was illustrated by a large number of small incidents and the generally dismissive parental reaction. No doubt the professionals were right and the mother was wrong about many of those matters, but the court needed to maintain a sense of proportion and keep the bigger picture in view. Adoption on the basis of evidence of this nature was an improbable outcome and it required particularly compelling justification. Reasoning of that kind is not to be found in the evidence or in the judgment and the orders in this case cannot therefore be upheld.”.

8. So, the Court of Appeal allowed the appeal. But why and what were the conclusions we can take from this case. Again, hats off to the court for giving me some fuel for future submissions. This is what LJ Peter Jackson said :-

• “In the first place, this was a case of the kind referred to in Re B where “the feared harm has not yet materialised and may never do so”. Despite the presence of another adult, the mother had been L’s primary carer for nearly two years, during which no harm, still less significant harm, had come to him. That factor had to be taken into account when the court was considering future risks. However, the recorder made no reference to it in the passage cited” AND “In L’s case, even if he came by additional accidents due to his mother’s inattention to risk, there is no reason to believe that the consequences of individual events would be worse for him than for any other child. In accepting the ISW’s assessment of risk, the recorder unduly elevated the significance of this element of the welfare checklist.”
•  “The second difficulty concerns the recorder’s approach to possible measures of support. It is true that the mother had reacted poorly to direct parenting advice. At the same time, her case was that she wanted to work, and that she would employ a nanny or childminder. L is already at an age when he could be at a nursery and in due course he will go to school. The recorder did not explore the obvious possible benefits of these foreseeable arrangements, but instead simply accepted the view of Ms Harold that effective support (i.e. 24/7) could not be offered: see [89] at paragraph 19 above. However, there was no reason to think that round-the-clock support was needed or would be needed indefinitely, or that the mother, who had voluntarily accepted extensive limitations on her freedom of action for nearly two years, would not abide by reasonable conditions in future, whatever she might personally think of them.”
•  “The mother’s lack of insight into professional concerns was relevant, but its significance very much depended on the nature and validity of the concerns themselves, and on the extent to which effective protection might depend on insight, as opposed to other measures.”

9. I think Re N is a helpful reminder to all practitioners that a linear approach to cases is not helpful. Too often we are faced with evidence of risk of harm that just gets over the threshold criteria. In cases involving young children, with no support networks, how often are parents faced with care plans for adoption? Often there is a gaping hole in the analysis, where the Re F factors are forgotten or marginally considered but given the cold shoulder. Or else, we get the inevitable oral evidence from the social worker that “ the parents will need to have 24 hour supervision” As quoted above “the court needed to maintain a sense of proportion and keep the bigger picture in view.” Although the facts of Re N are unusual, I am pleased that the Court of Appeal had an opportunity to deal with a case like this whereby the feared harm had not happened and might not materialise.

William Green
Trinity Chambers.

The post Re N (A Child Placement Order: Proportionality) [2025] EWCA Civ 1541 appeared first on Trinity Chambers.

The post Clarifying Matrimonial and Non Matrimonial Property, the Standish Case 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.

A short while later, Ms Mahil refused to complete the purchase having rescinded the contract. The seller accepted her refusal as a repudiatory breach of contract. The land was later sold at a second auction and the seller brought proceedings in respect of the shortfall between the price agreed and that subsequently obtained. Ms Mahil alleged that she was induced into the contract by misrepresentation, and that there was a failure to disclose a defect in the title to the land.

A defect in title

As the Ms Mahil was leaving the auction, she was approached by a representative of Stoughton Parish Council who presented her with a copy of a letter stating that it would not be possible to build on the land. Far from being ripe for development, the land was registered with Harborough District Council as local green space and protected from development. The day after, Ms Mahil’s sons downloaded the legal pack and discovered an overage clause. The clause provided for payment to the Co-operative Limited of 50% of any increase in land’s value attributable to obtaining planning permission.

At first instance

Although the auctioneer made no express reference to the overage clause, the legal pack did provide pertinent information: it contained the deed of covenant along with the draft contract containing the requirement for the purchaser to enter into the covenant. The legal pack was readily available on the auction website and catalogues were available at the registration desk on the day of the auction. Signs were prominently displayed encouraging people to read the legal packs. The auctioneer also mentioned the need to read the legal packs before bidding. The Claimant had not read the legal pack and had bid blindly. At first instance, it was held that the starting point was caveat emptor. As regards the planning opportunities, the judge found that a reasonable man would consider there was ‘still opportunity for the land to be developed.’ Six grounds of appeal were granted, the first two are discussed below.

On appeal

Caveat emptor

The Appellant argued that equity requires the vendor to disclose all known defects, and the disclosure must be put in the purchaser’s mind. Furthermore, the vendor cannot rely on contractual terms which deem the buyer to have had knowledge of the defect. The appeal judge turned to Farqui v English Real Estate [1978] WLR 963 in which it was stated that: ‘it has long time been the view of equity that if there is a defect in the title and the vendor knows that there is a defect — and in the present case there can be no question but that the vendor knew there was a defect — then it is the duty of the vendor to disclose the same fully and frankly in the particulars or in the conditions, or at any rate in some place where the purchaser’s attention will be drawn to it..’ The Appellant also relied on a passage in Chitty (33^rd edn) which set out that a contract for the sale of land are not uberrimae fidei in the sense that the vendor has to make to the purchaser a full disclosure of all material facts. It was held that the judge at first instance failed to properly apply the equitable principle of disclosure and wrongly took into account the maxim of caveat emptor which does not apply to defects in title. It was held that the references in the brochure, and by the auctioneer, to the need to read the legal pack were not enough to comply with the duty of disclosure.

Misrepresentations

As to the land’s ‘excellent scope for development’ and it being ‘a superb investment opportunity, it was held that the learned judge erred in finding that a reasonable person would have reached this conclusion given that four-fifths of it could not be built on. It was held the judge at first instance failed to grapple with the difference between what the Respondent believed to be true and the opinion stated. Whilst he was entitled to find that the Respondent held the view that he did, no reasonable person could have honestly equated that view to ‘excellent scope’ even pointing to the need for planning permission.

Comment

The case raises the important issue of a vendor’s duty of disclosure and the point at which compliance with that duty is met. Full and frank disclosure, in this case, meant that the overage clause should have been specifically brought to the buyer’s attention. It was not enough to refer to the need to read the legal pack before bidding; the Appellant was entitled to assume the duty of disclosure had been complied with and that as a result there would be no unusual defects revealed in the legal pack. The incautious approach to bidding blindly at an auction, having failed to have made proper enquiries as to the land and incumbrances will not relieve the seller of its duty of full and frank disclosure. As Cotter J put it: ‘the vendor is bound to give the purchaser full, frank and fair information, or a fair and proper opportunity to gain such information, about any defect.’

Let the seller beware!

Adam Jones

The post A not so superb investment opportunity – SPS Groundworks & Building Ltd v Mahil [2022] EWHC 371 (QB) appeared first on Trinity Chambers.

The hearing which is the subject of this appeal took place in September 2023 which was listed as a combined fact-finding hearing and final hearing. At that hearing, the Judge decided as a preliminary issue that a fact-finding was not necessary to determine the welfare issues having undertaken an analysis within the context of PD12J and K v K [2022] EWCA Civ 468 (‘K v K’), also referencing the President’s guidance dated 5 May 2022. The Judge also made a joint lives with order, including M to have a gradual progression to spending six nights a fortnight with her father in term-time and to spend half the holidays with each parent.

Permission to appeal was granted on Grounds 2-5. Ground 5 subsequently fell away as there was no longer a place at the school which the mother wished M to attend.

• Ground 2: “The judgment omitted marital and significant aspects of evidence which would have supported findings of domestic abuse and coercive and controlling behaviour” (and went on to list examples)
• Ground 3: “It was a legal error for the court to determine that the mother’s case as to domestic abuse “taken at its highest” would have no effect on the welfare decision because the father was already having overnight contact”
• Ground 4: “In determining child arrangements, the court did not place enough weight on the child’s sex in light of the father’s comment that it “would depend on the circumstances” if she came to him to say that her future husband would not register her marriage or expected a certain level of cleanliness in the home. The father’s prejudicial views are harmful for the child.”

The appeal judge was satisfied that the judge cited the relevant extracts from PD12J, section 1-4 Domestic Abuse Act 2021 and drew on the President’s guidance and relevant case law, namely, Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, Re B-B [2022] EWHC 108 (Fam) and K v K.

In dismissing the appeal, his conclusions included:

“The Judge rightly did not dismiss or diminish the significance of domestic abuse and its effect on its victims, but emphasised that he had to have regard to its relevance and impact on the particular facts of this case” [53].

“The Judge was perfectly entitled to bring into account, and indeed rely upon, the fact that the mother had agreed to overnight contacts some eighteen months before the hearing against the backdrop of the allegations she had made.  She had indeed later suggested an increase in the number of nights.  The Judge rightly acknowledged that domestic abuse can still play out in the court setting, and can directly affect the victims in the way in which they present their cases and potentially even agree to outcomes with which they are not instinctively content.  The Judge, on these facts, satisfied himself that this was not such a case” [54].

“The Judge set out detailed reasons for concluding that a ‘joint lives with’ order was appropriate in this case; his reasoning is, indeed, entirely in line with the reasoning contained in the judgment of Poole J in the recent case of AZ v BX [2024] EWHC 1528 (Fam)” [55].

The Law

This case provides a useful reminder to practitioners of the principles to consider in cases where there are allegations of domestic abuse and whether there should be a fact-finding hearing to determine those issues. The appeal judge helpfully provides principles from the case law at [47] and confirms the judge was faithful to the following principles:

1. “Not every case requires a fact-finding hearing even where domestic abuse is alleged (Re H-N at [8]);
2. It is important for judges to hold firm to the notion that “[e]very fact-finding hearing must produce something of importance for the welfare decision” (Re H-D-H at [21]);

• There is a “need for advocates to focus on those issues which it is necessary to determine to dispose of the case, and for oral evidence and/or oral submissions to be cut down only to that which is necessary for the court to hear” (Re B-B at [6](iv));

1. “Decisions about the scope of fact-finding are core case management decisions with particular consequences for the length and cost of proceedings, the impact of the litigation on parties and others, and the allocation of court time” (Re H-D-H [2021] EWCA Civ 1192 at [3]);
2. The function of the family court judge in resolving issues of fact is different from that of the criminal court judge: see Re R[2018] EWCA Civ 198 at [62] and Re H-N at [66]-[74]. The Judge in this case was right not to be distracted by the submission on behalf of the mother that any decision about whether to hold a fact-finding hearing should await a charging decision from the CPS (see the Judge’s comment which I have reproduced at §13(ix) above).”

Case management

Notably, there was significant case management prior to the hearing in September 2023, the original application brought by the father in December 2020:

• FHDRA on 29 April 2021 – DDJ Butler determined that a fact-finding was necessary
• 15 July 2021 – Recorder Glancy KC confirmed this decision
• 7 March 2022 – Fact-finding could not proceed as documents had not been filed as ordered. Notwithstanding this, DDJ Morris held that the application did not warrant a fact-find.
• DRA on 23 May 2022 – no variation to the directions regarding the nature of the final hearing.
• Final hearing on 3 November 2022 – abandoned due to counsel illness. DJ Cassidy directed “this matter ought to be resolved by way of combined fact-finding and final hearing” (DJ Cassidy confirmed this at another hearing on 5 January 2023).

As Mr Justice Cobb rightly acknowledged, where there are disputed allegations of domestic abuse, they are particularly difficult at the case management stage as these decisions will have significant implications for the future conduct of the hearing [57]. He also outlines “judicial continuity is key in domestic abuse cases; judges should always consider retaining a case listed before them which contains allegations of domestic abuse” [57]. In this case, we saw a multitude of hearings, a lack of judicial continuity, bad luck as a result of counsel illness and non-compliance with court orders all which contributed to significant delay.

The approach to be taken where appropriate is as follows:

“Judges in the Family Court when presented with a private law case involving allegations of domestic abuse where the issue of fact-finding arises, should press the parties or their advocates, as both DDJ Morris and this Judge properly did, by asking them directly at a case management, or later: “why do I need to determine this issue / these issues in this particular case?”; “what difference would it make to the welfare decision/outcome in this case in respect of this child even if I were to find the allegation proved?”.  It is important to maintain focus on the individual circumstances of the particular case (Re H-D-H at [21]-[23]).  In some cases, like this one, the decision not to hold a fact-finding hearing will leave unresolved some adult disputes between the parties, i.e., about their behaviour towards each other.  So be it.  If those issues are not relevant to the determination of the application, then court time should not be dedicated to their resolution” [59].

Tara Dunne

Pupil Barrister at Trinity Chambers

30 August 2024

The post A v K (Appeal: Fact-Finding: PD12J) [2024] EWHC 1981 (Fam) – An Appeal against a decision not to hold a fact-finding appeared first on Trinity Chambers.

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

The post KOUKASH V KOUKASH Neutral Citation Number: [2022] EWHC 1001 (Fam) Beware the “booby trapped bundle” appeared first on Trinity Chambers.

On 10^th 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

The post Keeping it in the Family – HHJ Hess gives guidance on family loans in financial remedies proceedings appeared first on Trinity Chambers.

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 21^st July 2021 in the Family Division of the High Court before Mostyn J who handed down his judgment on the 2^nd 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

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On the 10^th 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

• The open justice principle
• The father’s role as an MP and Minister
• The inconsistency between public statements the father had made in 2018 and the findings in HHJ Williscroft’s judgment
• The public interest in showing the workings of the Family Court in such a case where a powerful man was held to account of the abuse he carried out on his female partner

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:

1. Lieven J’s approach was wrong in law as she misinterpreted and misapplied section 97 of the Children Act 1989.

1. Lieven J’s analysis of Re S was flawed, her approach was ‘wrongly biased’ or weighted in favour of publication and against the interests of the child’

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

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Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)

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:

• C’s mother held strong objections to C being vaccinated
• Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 held that a Local Authority with a care order can arrange and consent to a child in its care being vaccinated when in the best interests of the child. However, this has not been applied in regards to the coronavirus or winter flu vaccines
• If the Local Authority is incorrect in its explanation of its power under s.33, it seeks permission to apply for a declaration under the High Court’s inherent jurisdiction that it is in C’s best interests to have the vaccinations

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

• such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency
• the child is either not Gillick competent or is Gillick competent and consents, and
• the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare.”

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

1. the statute cannot be relied on regarding ‘grave’ decisions, as explained above
2. pursuant to s.33(4), Local Authorities must make ‘individualised’ welfare decisions concerning the child prior to arranging vaccination

• there is always the option for objecting parents to make an application to invoke the inherent jurisdiction and perhaps an injunction under section 8 of the Human Rights Act.

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

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