A brief summary of the essential family law news and cases from the last week:
NEWS New pilot scheme announced for easier court entrance for legal professionals
The Ministry of Justice has announced a new pilot scheme for practising legal professionals which will allow for them to get direct entrance to courts without the need to be searched. Full story: Family Law.
Child maintenance: new steps to improve compliance and to allow arrears to be written off
The House of Commons library has written a useful summary of recent changes to child maintenance enforcement. Full story: Family Law Hub.
Supervision orders unsuccessful in a quarter of cases, research finds
Review of 26-week care proceedings reforms underlines impact of Re B and Re B-S case law and raises questions around decision-making. Full story: Community Care.
Paediatricians as Expert Witnesses in the Family Courts in England and Wales: Standards, competencies and expectations
Produced by the Family Justice Council and the Royal College of Paediatrics and Child Health, this guide directs the reader to discipline specific information with regards to paediatricians as expert witnesses. Full story: Courts and Tribunals Judiciary.
CASES F v M [2018] EWHC 2106 (Fam) (03 August 2018)
Appeal by father against refusal to register Russian order that child reside with him. Appeal dismissed. Full report: Bailii.
Kliers v Schmerler & Anor [2018] EWHC 1350 (Ch) (30 April 2018)
The applicant was claiming declarations as to the beneficial ownership of a property, the registered legal ownership of which was her brother. He had obtained a mortgage to buy the property on behalf of the applicant and her then husband as their credit rating was not sufficient. The declarations were granted. Full report: Bailii, via Family Law Hub.
EF and GH (Children) [2018] EWHC 1960 (Fam) (23 May 2018)
Proceedings relating to two children whose mother requested the local authority to accommodate them, following a diagnosis of terminal cancer. Judgment dealing with issue of whether threshold criteria satisfied. 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 Solicitors' phase of online divorce pilot given green light
The solicitors' application of the online divorce pilot has been approved to go live. Full story: Family Law.
English law applies to Islamic marriage, judge rules in divorce case
Husband tried to block divorce petition, arguing couple were married only under sharia law. Full story: The Guardian. See Akhter v Khan, below.
Sir Andrew McFarlane becomes President of the Family Division
Sir Andrew McFarlane has been appointed President of the Family Division, following the retirement of Sir James Munby. Full story: Family Law.
Financial consent orders can now be filed online
On Monday 6 August 2018 the family courts will take another step towards becoming digital. From that date applications for consent orders in family court financial proceedings can be filed online rather than delivery to a physical court office. Full story: Family Law.
CASES Akhter v Khan (Rev 2) [2018] EWFC 54 (31 July 2018)
Judgment considering issue of whether an Islamic marriage ceremony creates an invalid or void marriage in English law. Full report: Bailii.
Ubbi & Anori (Minors) v Ubbi [2018] EWHC 1396 (Ch) (27 July 2018)
Inheritance (Provision for Family and Dependants) Act 1975 case where the infant children of the deceased husband and his extra-marital partner claimed that his will (which pre-dated their births) did not make any provision for them after he left everything to his wife. Full report: Bailii, via Family Law Hub.
X (A Child : FGMPO) [2018] EWCA Civ 1825 (31 July 2018)
Appeal by father against provision in FGM protection order forbidding removal of child from jurisdiction. 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 President’s Circular: Financial Remedies Court Pilot Phase 2
Following the successful initiation of the Financial Remedies Court project in the West Midlands (part), centred at Birmingham, I am pleased to announce a further roll-out of the pilot, albeit for the time being in modified form. Full story: Family Law.
Pilot Practice Direction 36I – Procedure for online filing of certain applications for consent orders for a financial remedy in connection with matrimonial proceedings
This Practice Direction supplements FPR Part 36, rule 36.2 (Transitional Arrangements and Pilot Schemes). Full story: Family Law.
Practice Direction Amendments to PD9A, PD12B and PD27A
The Ministry of Justice have published a Practice Direction Amendment which makes three minor changes to existing practice directions. Full story: Family Law.
Practice Guidance: Children Arbitration in the Family Court
This Guidance concerns the interface between the Family Court and Arbitrations where the parties to a private law dispute relating to the welfare of a child have agreed to submit the issues in dispute for decision by an arbitrator. Full story: Family Law.
President’s Guidance: Addition to Compendium of Standard Family Orders
The links to the three new orders (numbered 22.1, 22.2 and 22.3) to be added to the compendium of Standard Family Orders can be found below. Full story: Family Law.
Supreme Court rules woman ‘must stay married' as family law experts warn of ‘divorce crisis.'
Supreme Court rules woman ‘must stay married’ as family law experts warn of ‘divorce crisis.’ Full story: Resolution. See report, below.
New Judicial Protocol for Children’s Cases in Scotland, and England and Wales
Sir James Munby, President of the Family Division in England & Wales, and Lord Carloway, head of the Scottish judiciary, have agreed a new judicial protocol, which will provide for the direct exchange of information between judges in intra-UK cross-border cases involving children. Full story: Courts and Tribunals Judiciary.
President’s Guidance: Arrangements for adoption visits
Guidance from the President of the Family Division. Full story: Courts and Tribunals Judiciary.
CASES PS v BP [2018] EWHC 1987 (Fam) (27 July 2018)
Appeal by father against orders and findings following a fact-finding hearing, including judicial observations upon issue of father cross-examining mother. Full report: Bailii.
M v F [2018] EWHC 1949 (Fam (04 July 2018)
Application by mother for permission to relocate with the children to Uganda. Full report: Bailii.
Harris v Harris [2018] EWHC 1836 (Fam) (03 July 2018)
Appeal by husband against order capitalising spousal maintenance and increasing child support. Full report: Bailii.
A (Children) [2018] EWCA Civ 1718 (25 July 2018)
Appeal by local authority against dismissal of application for care orders in respect of five children. Appeal allowed. Full report: Bailii.
Owens v Owens [2018] UKSC 41 (25 July 2018)
Appeal by wife against dismissal of divorce petition. Appeal dismissed. Full report: Bailii.
Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018)
Fact-finding hearing in care proceedings concerning a girl aged 22 months.The hearing was beset by problems arising from the late disclosure of material held by the police. Judgment includes suggested solutions as to how such problems may be avoided. 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.
Lord Wilson gives the judgment of the Supreme Court
BACKGROUND TO THE APPEAL
The Appellant, Mrs Owens, and the Respondent, Mr Owens, were married in 1978 and have two adult children. Mrs Owens had been contemplating a divorce since 2012 (when she consulted solicitors who prepared a draft divorce petition for her) but it was not until February 2015 that she left the matrimonial home. The parties have not lived together since her departure. In May 2015 Mrs Owens issued the divorce petition which is the subject of the current proceedings. It was based on s.1(2)(b) of the Matrimonial Causes Act 1973, and alleged that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. It was drafted in anodyne terms but when it was served on Mr Owens he nevertheless indicated an intention to defend the suit, arguing that the marriage had largely been successful.
In October 2015 the matter came before a recorder for a case management hearing. In light of Mr Owens’ defence, the recorder granted Mrs Owens permission to amend her petition so as to expand her allegations of behaviour. The recorder also directed that the substantive hearing of the dispute would take place over the course of a day (Mrs Owens had originally suggested a half-day would suffice) and that there would be no witnesses other than the parties themselves. Mrs Owens duly amended her petition so as to include 27 individual examples of Mr Owens being moody, argumentative, and disparaging her in front of others, but at the one-day hearing her counsel ultimately focussed on only a very few of these.
The judge found that the marriage had broken down, but that Mrs Owens’ 27 examples were flimsy and exaggerated, and that those relied on at the hearing were isolated incidents. Accordingly, the test under s.1(2)(b) was not met and Mrs Owens’ petition for divorce was dismissed. Mrs Owens appealed against this decision to the Court of Appeal, but her appeal was also dismissed. She now appeals against the Court of Appeal’s decision to the Supreme Court.
JUDGMENT
The Supreme Court unanimously dismisses the appeal, with the result that Mrs Owens must remain married to Mr Owens for the time being. Lord Wilson gives the majority judgment, with whom Lord Hodge and Lady Black agree. Lady Hale and Lord Mance each give a concurring judgment.
REASONS FOR THE JUDGMENT
It is important to bear in mind the legal context to this dispute, namely that defended suits for divorce are exceedingly rare. While the family court recognises that s.1 of the Matrimonial Causes Act 1973 must be conscientiously applied, it takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being [15]. The expectations are that almost every petition under s. 1(2)(b) will succeed, that the evidence before any contested hearing will be brief, and that the judgment of the court in such a hearing will almost certainly result in the pronouncement of a decree [17]. This is the background to the contested hearing in this case, and explains why Mrs Owens’ advisors agreed to a short hearing with no external witnesses to corroborate her evidence [14-15].
When applying s. 1(2)(b) the correct inquiry is: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable [28]. This test has been applied for many years but the application of the test to the facts of an individual case is likely to change over time, in line with changes in wider social and moral values [30-32]. The most relevant change over the past forty years is the recognition of equality between the sexes, and of marriage as a partnership of equals [34].
At the hearing, the judge gave himself the correct self-direction; he understood he was applying an objective test, but with subjective elements [39]. The majority nevertheless have concerns about other aspects of the judge’s analysis. In particular, they have an uneasy feeling about the summary despatch of a suit which was said to depend on an authoritarian course of conduct, when the judge had scrutinised only a few individual incidents of Mr Owens’ behaviour [42]. However, uneasy feelings are of no consequence in an appellate court. A first-instance judge has many advantages in reaching the relevant conclusions, and Mrs Owens’ complaints about the judgment have already been rehearsed and dismissed by the Court of Appeal. In such circumstances it is most unlikely for it to be appropriate for the Supreme Court to intervene [43]. However, the majority invite Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances [44-45].
Concurring judgments
Lady Hale agrees with Lord Wilson as to the legal analysis, but has several misgivings about the judge’s judgment [47-48]. Her gravest misgiving relates to the fact that this was a case which depended upon the cumulative effect of a great many small incidents (which were said to be indicative of authoritarian and demeaning conduct over a period of time), yet the hearing before the judge was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated [50]. In light of her misgivings, she considers that the proper disposal is to allow the appeal, and send the case back to the first-instance court to be tried again. However, this is not a disposal which Mrs Owens is actually seeking, and Lady Hale is therefore reluctantly persuaded that the appeal should be dismissed [53-54].
Lord Mance also agrees with Lord Wilson as to the wider legal analysis, however he does not share the concerns expressed by Lord Wilson and Lady Hale about the judge’s judgment. Lord Mance considers that the judge did not misdirect himself at any stage, and that the judge properly concluded that there was nothing in the case overall [57, 59]. Moreover, although the hearing of the defended divorce petition was listed for a relatively short period, this was how the judge was invited to decide the matter. It would be inappropriate for the Supreme Court to interfere at this stage and say it was not possible in the circumstances for the judge to have reached a fair determination [58].
References in square brackets are to paragraphs in the judgment, which can be found here.
HHJ Edward Hess, HHJ Martin Dancey & Edward Devereux QC
£60 - Published by Class Legal, in association with the FLBA: July 2018
"They [i.e. the authors] would be delighted if you decided to review it in Family Lore." They said.
Well actually, I will not be reviewing it. Because I don't need to.
The reason for that is quite simply that I have already not reviewed the Standard Family Orders Handbook, Volume 1, covering Financial and Enforcement orders and, apart from the fact that Volume 2 covers children and other orders (a fact that I'm sure you will already have gathered), everything you need to know about Volume 2 is in that earlier non-review, which you can find here.
I need say nothing more because if you are a family law practitioner you will already be aware that you simply have to have this volume, nestling next to its companion, on your bookshelf.
The Handbook can be purchased from Class Legal, here. Note that pre-orders are only £45.
