A brief summary of the essential family law news and cases from the last week:
NEWS Russian billionaire succeeds in having wife’s MFPA Pt III claim dismissed
If claim allowed, there would be 'no limit to divorce tourism'. Full story: Family Law Week. See Potanin v Potanina, below.
First registrations of opposite-sex civil partnerships set for New Year’s Eve
Civil Partnership (Opposite-sex Couples) Regulations 2019 approved by Lords. Full story: Family Law Week. You can find the Regulations here.
Concerns raised about Calderbank offers being used to assess litigation conduct
Reservations have been expressed about plans to change the rules for determining costs at the end of family proceedings. Full story: Law Society Gazette.
CASES Potanin v Potanina [2019] EWHC 2956 (Fam) (08 November 2019)
Application by husband to set aside grant of leave to wife to apply for financial relief pursuant to Part III MFPA 1984. Application granted. Full report: Bailii.
H (Children: Relocation), Re [2019] EWHC 2881 (Fam) (30 October 2019)
Application by father for permission to relocate children to the Netherlands. Full report: Bailii.
TY (Preliminaries To Intercountry Adoption) [2019] EWHC 2979 (Fam) (07 November 2019)
Application by maternal aunt to adopt nephew, issued three days before his 18th birthday. Full report: Bailii.
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When Do I Know It’s Time to Contact an Insolvency Practitioner?
An insolvency practitioner can provide essential support, guidance and advice when you are facing financial issues, whether as a business or an individual.
However, what might not be clear, is when the right time is to contact an insolvency practitioner.
It is important to understand that an insolvency practitioner is not simply a financial emergency service, that you call in only when all other avenues appear closed to you.
The common misconception surrounding this service is that is only applies as a last resort.
Insolvency Practitioner Advice Has Value
The role of an insolvency practitioner includes giving expert advice. This advice can be helpful at various stages, not just when a company is considering liquidation, or an individual is facing difficult debts.
Advice has value.
Consequently, there are certain situations where an insolvency practitioner can offer advice where companies are still solvent.
For example, where a business is facing temporary cash flow problems, or where a creditor is threatening it with legal action, an insolvency practitioner may provide professional advice which can make a difference to the outcome.
Serious financial situations do not all need to end in liquidation.
The lesson is to act earlier rather than later.
A proactive, approach to seeking professional advice early on can mean a wider range of potential options to help a business find the best possible solution given the circumstances.
These options may include:
Company restructure
Sale of assets to help bring in cash
Selling the business as a going concern.
These may ensure the business’s survival. However, even if these options are not explorable, then having the support of an insolvency practitioner is still essential if the business goes into voluntary liquidation.
Issues can suddenly arise that put you on the back foot financially, such as an unexpected bill, or a key customer or supplier themselves becoming insolvent.
Other issues can affect businesses, such as market downturns or wider economic changes.
Practical Support from an Insolvency Practitioner
Whatever solution a business or individual requires, whether it is some form of corporate recovery or business insolvency, or a personal insolvency, the insolvency practitioner is there to provide practical support and help.
An insolvency practitioner can negotiate with creditors professionally, to help restore confidence in the company.
They can also intervene on a client’s behalf in dealing with HMRC and navigating the often complex paths of rules and regulations.
A Question of Timing and Protection
Should a company need to go into liquidation, the question of timing is crucial. It can make a huge difference to directors, employees and creditors.
An insolvency practitioner will look at this strategically. The swifter the action, the more likely it is that there can be a more positive outcome.
They can provide advice on the best time to wind down a business, which will work for the individuals involved but also help satisfy creditors by maximising the available funds for them.
An insolvency practitioner is there to help protect you and your business when you face financial issues, obstacles and difficulties.
You do not need to wait until these things seem too colossal or overwhelming. If something financial is gnawing away at you, get in touch now.
Irwin Insolvency have been established for many years as insolvency practitioners, delivering expert advice on both personal and corporate insolvency. For more information, call 0800 009 3173 or send an email to mail@irwinuk.net.
Increasing demand for family mediation is recognised this week with a grant award to England and Wales’ leading provider of the service.
National Family Mediation (NFM), a registered charity which delivers mediation services in over 500 community locations, has received the award from Therium Access, the not-for-profit arm of Therium Group Holdings Limited, one of the world’s leading providers of litigation, arbitration and specialty legal finance. (www.theriumaccess.org).
The grant will enable NFM to employ an additional call handler to provide early advice and arrange mediation for families going through divorce or separation.
NFM’s CEO, Jane Robey, said: “Demand for our call handlers has increased significantly over the past year. They do a fantastic job, and each call to our office represents a family needing assistance to manage their separation.
“We are delighted with this grant award, which will help us provide an even more responsive service to support separating families through our telephone helplines.
“NFM is grateful to Therium Access for recognising the value of early advice, good quality information, and mediated agreements.
“The work we do impacts upon the whole of the family legal process. It keeps people out of the court system in a pre-emptive way by providing them alternative means to resolve disputes. This enables them to reach settlements in a more streamlined, simpler, non-confrontational way.
“Legal aid cuts mean we support many more people who are self-funding, with no access to professional legal advice. Early support and guidance can transform the separation journey undertaken by these people, helping them reach just and fair settlements.”
A brief summary of the essential family law news and cases from the last week:
NEWS Judge criticises council for breaching duty of disclosure when making streamlined application for authorisation of deprivation of liberty
A council has been criticised by a Court of Protection judge for breaching the duty of full and frank disclosure when it made an application under the streamlined procedure for authorisation of a deprivation of liberty. Full story: Local Government Lawyer.
President of the Family Division: Guidance as to reporting in the Family Courts
The President of the Family Division, Sir Andrew McFarlane, has issued the latest guidance for reporting in the Family Courts. Full story: Courts and Tribunals Judiciary.
CASES S (A Child: Adequacy of Reasoning), Re [2019] EWCA Civ 1845 (31 October 2019)
Appeal following fact finding hearing in care proceedings. Appeal allowed, on the basis that the judge's conclusions as eventually expressed were inadequately reasoned. Full report: Bailii.
NY (A Child), Re [2019] UKSC 49 (30 October 2019)
Appeal by mother against order made under inherent jurisdiction requiring her to return child to Israel. Appeal allowed. Full report: Bailii.
FRB v DCA [2019] EWHC 2816 (Fam) (28 October 2019)
Application by wife to strike out husband's claim for damages in respect of W's deceit in maintaining that he was the father of W's child. Full report: Bailii.
Begum v Ahmed [2019] EWCA Civ 1794 (28 October 2019)
Appeal against refusal of application to make inheritance claim out of time. Appeal allowed. Full report: Bailii.
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Lord Wilson gives the judgment of the Supreme Court
BACKGROUND TO THE APPEAL
This appeal concerns a father’s application for an order for the immediate return of his daughter from England and Wales to Israel. The issue raised is whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children (‘the inherent jurisdiction’).
The child’s parents are Israeli nationals who married in 2013. She is their only child and is now aged almost three. Her parents lived at first in Israel but moved to London in November 2018. There the marriage broke down. The father returned to Israel, but the mother refused to do so, and remained in London with the child. The father applied under the Convention, which is set out in Schedule 1 to the Child Abduction and Custody Act 1985 (‘1985 Act’), for a summary order for the child’s immediate return to Israel. The allegation underpinning his application was that, on 10 January 2019, when the marriage broke down, the mother had wrongfully retained the child in England.
The High Court granted the father’s application. On appeal, the Court of Appeal ruled that it had not been open to the judge to make an order under the Convention and set his order aside. It held that there had been no grounds for concluding that the mother’s retention of the child in England had been wrongful, and so the Convention had not been engaged. However, it then referred to passing observations made by the High Court judge to the effect that, if he had found that the child had been habitually resident in England, he would have reached the same decision to order the child’s immediate return under the inherent jurisdiction as he had under the Convention. Relying on those observations, the Court of Appeal made a summary order for the child’s return under the inherent jurisdiction. The mother appealed to the Supreme Court.
JUDGMENT
On 14 August 2019, the Supreme Court unanimously allowed the appeal and set aside the Court of Appeal’s order. Owing to the urgency of the decision, a judgment giving reasons was not issued at that time. Lord Wilson now gives the unanimous judgment of the court setting out its reasons.
REASONS FOR THE JUDGMENT
The appeal raises two questions. First, was the inherent jurisdiction available to the Court of Appeal in principle? Second, if so, was the exercise of it flawed? The answer to both questions is “yes” [2-3].
Inherent Jurisdiction Available
The mother argued that the inherent jurisdiction had not been available to the Court of Appeal on the grounds that a summary order (i.e. an order made without a full, conventional, investigation) for the child’s return outside the Convention could only have been made as a ‘specific issue order’ under the Children Act 1989 (‘the 1989 Act’) [26]. A specific issue order is an order made to decide a question connected with any aspect of parental responsibility for a child: had it been appropriate on the facts to make such an order here, it would have been open to the Court of Appeal to do so [27-28].
Before the introduction by the 1989 Act of specific issue orders, summary orders for the return of a child abroad could be made under the inherent jurisdiction [29-30]. Such orders continued to exist alongside orders under the Convention after it was introduced into domestic law by the 1985 Act, since differences between the inherent jurisdiction and the Convention mean that an order for a child’s return may, in some circumstances, be required under the former, but not the latter, legal framework [31]. But did the 1989 Act do away with the inherent jurisdiction to order a child’s return [32]?
The mother argued that para 1.1 of Practice Direction 12D, supplementing the Family Procedure Rules 2010, showed that the 1989 Act did have that effect: for it instructs that the inherent jurisdiction should only be invoked where the issues ‘cannot be resolved under the 1989 Act’ [33-36]. However, practice directions have no legal authority to the extent that they state the law incorrectly [37-38]. There is no statutory basis for the instruction in para 1.1, and the case-law indicates that an order can be made under the inherent jurisdiction even where a specific issue order would also have been available [39-43]. Therefore the instruction in para 1.1 goes too far. However, if an order is available by both routes and a party chooses to invoke the inherent jurisdiction, the judge will need to be persuaded early in the proceedings that that choice was reasonable [44]. Nor does the court accept the mother’s argument that an application for a summary specific issue order requires a different inquiry from an analogous application under the inherent jurisdiction. The same approach is required under both frameworks, as both are based on the principle that the child’s welfare is paramount [45-50].
Exercise of Inherent Jurisdiction Flawed
The Court of Appeal did not inquire into whether the child’s welfare required a summary order for her return, as it considered that the High Court had made that determination and had not erred in doing so [51]. Yet the judge had not made a determination under the inherent jurisdiction [52]. Nor could his determination under the Convention stand as one under the inherent jurisdiction: for the Convention, unlike the inherent jurisdiction, is not based on the paramountcy of the child’s welfare [53].
The fact that the father had not invoked the inherent jurisdiction did not prevent the Court of Appeal from making an order under it. But it did place a duty on the Court of Appeal to ask whether the mother had had sufficient notice of its intention to use the inherent jurisdiction to allow her to seek to oppose it [54]. The Court of Appeal should also have considered eight further questions before making its order under the inherent jurisdiction, including whether the evidence before it was sufficiently up to date, and whether the High Court judge had made findings sufficient to justify the order [55-63]. Its failure to consider any of these questions is what led the Supreme Court to uphold the appeal [64].
References in square brackets are to paragraphs in the judgment, which can be found here.
A brief summary of the essential family law news and cases from the last week:
NEWS District judge ‘sarcastic and shaking with rage’ in flawed family hearing
The Family Court has overturned a district judge’s care ruling after finding she ‘crossed the line’ during the hearing, creating a hostile atmosphere and alienating everyone appearing before her. Full story: Law Society Gazette. See C (A Child) (Judicial Conduct), below.
Children in care warning from justice commission in Wales
Children's interests are being neglected in court cases that decide who looks after them, a major report has warned. Full story: BBC News.
Assessing risk of harm to children and parents in private law children cases
Progress update on the public call for evidence on how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. Full story: Ministry of Justice.
Government confirms councils' duty to support domestic abuse victims
Councils will have a statutory duty to provide safe accommodation for victims of domestic abuse and their children from 2021, the government has confirmed. Full story: Children & Young People Now.
CASES C (A Child) (Judicial Conduct) [2019] EWFC B53 (16 October 2019)
Appeal against care and placement orders. Appeal allowed. Conduct of district judge in court below criticised. Full report: Bailii.
G (Children) [2019] EWCA Civ 1779 (09 October 2019)
Appeal by local authority against an order discharging a care order in respect of six children. Appeal allowed. Full report: Bailii.
C (A Child) [2019] EWCA Civ 1777 (22 October 2019)
Care proceedings. Appeal by mother from an order reversing a decision to reopen a finding of fact. Appeal allowed. Full report: Bailii.
To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.
A brief summary of the essential family law news and cases from the last week:
NEWS The Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019
These Regulations are made in order to address failures of retained EU law to operate effectively and other deficiencies in retained EU law arising from the withdrawal of the UK from the European Union. Statutory Instrument.
Queen’s Speech: Johnson puts law and order issues at forefront
Crime and justice policies [including divorce reform] were placed at the centre of the government’s agenda today as the Queen’s Speech set out its legislative priorities. Full story: Law Society Gazette.
‘One lawyer is enough’: family judge issues court guidance
Solicitors with cases being heard at Central Family Court have been told they do not always have to turn up with their barristers. Full story: Law Society Gazette.
CASES C (A Child) (Schedule 2, Paragraph 19, Children Act 1989) [2019] EWCA Civ 1714 (17 October 2019)
Appeal by Local Authority against refusal to give the court's "approval" to the Local Authority arranging for child to live in Scotland in a residential home in which he had been placed. Full report: Bailii.
O (Committal: Legal Representation) [2019] EWCA Civ 1721 (17 October 2019)
Appeal against committal, following breach of order made in family proceedings. Appeal allowed, on basis that appellant wished to be represented, but was not. Full report: Bailii.
RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)
Application by father to transfer care of 12 year old child to him. Application granted, following finding that mother had alienated child from his father. Full report: Bailii.
To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.
