Friday, June 24, 2016

EU referendum result statement from Nigel Shepherd, Resolution

Nigel Shepherd
Speaking following the EU referendum result, Resolution Chair Nigel Shepherd said:

“It’s too early to know the full implications for family law, but what is clear is that we are entering a period of great uncertainty. Like most areas of legislation, family law in the UK is currently intrinsically linked to that in other jurisdictions.

“We won’t know yet what withdrawal from the EU will mean for measures like Brussels IIa, which provides for uniform jurisdictional rules for divorce proceedings; or maintenance arrangements, which are currently regulated throughout the European Union. It’s unlikely that the implications for family law will be a priority for the government, and it’s a distinct possibility that any currently planned or envisaged reforms to family law will be put on hold.

“There are also wider issues not directly related to family law. Should a short-term impact on the financial markets turn into a longer-term economic issue then it will affect people’s personal finances – things like pensions, investments and house values. These will all need to be taken into consideration when dealing with financial matters upon divorce.

“Resolution will continue our work with government and others to both influence the future of family justice, and provide our members with the support, information and resources they need in order to deal with the post-referendum landscape”.

Kids and cash, disappearing assets, court fee increases and more...


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog included:

Child contact and support are two separate issues - It should be obvious, but it's not to some.

The mystery of the disappearing assets - With reference to KC v RC & Anor.

Court fee increases deny access to justice - The House of Commons Justice Committee report on Courts and tribunals fees.

A short but poignant judgment - Mr Justice Keehan in Re QQ.

Have a good weekend.

Wednesday, June 22, 2016

In the matter of D (A child): Appeal struck out


Lady Hale gives the judgment of the Supreme Court

BACKGROUND TO THE APPEAL

These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England. The family returned to England after the birth. The parents separated in 2007 and DD has lived in England since then in the care of his mother. The father returned to Romania in 2009 but has maintained a significant relationship with his son. He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father.

The father applied for the recognition and enforcement of this custody order by the English court in February 2014. These proceedings are governed by the Brussels II (Revised) Regulation (‘BIIR’). DD was made a party. In July 2014 a High Court judge refused the father’s application, applying article 23(b) BIIR which provides that a judgment should not be recognised ‘if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought’. The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings. The Court of Appeal upheld the judge’s order.

The father sought to pursue a further appeal to the Supreme Court. The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR.

JUDGMENT

The Supreme Court unanimously rules that it does not have jurisdiction to hear the father’s appeal, which must therefore be struck out. Lady Hale gives the only substantive judgment.

REASONS FOR THE JUDGMENT

Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal. The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12].

The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process. Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68. The UK has provided in its list of notifications under article 68 that appeals in England and Wales under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16].

It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal. The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each other’s judgments without too many avenues for challenge [26].

The provisions of BIIR and the notification under article 68 are directly applicable in the UK. Article 34 does not depend for its implementation upon the member state’s choice of avenue of appeal and in any event the UK did make a notification [37]. It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38].

It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out.

References in square brackets are to paragraphs in the judgment, which can be found here.

Tuesday, June 21, 2016

Resolution statement on BBC's Mr v Mrs: Call the Mediator


Speaking ahead of the first episode’s broadcast, a Resolution spokesperson said:

“Resolution members and their clients will be watching tonight's documentary with great interest, and our hope is that it will demonstrate to the public the benefits that family mediation can bring for many separating families.

“At the same time it is important to remember that there is not a "one size fits all" approach when it comes to mediation, and family separation more generally. Every couple is different and it's vital that anyone going through separation looks at all the options available to them, seeks professional advice where possible, and identifies the right approach in the long term for them and their family - particularly any children involved.

“It's also important to remember that any family separation takes place in the context of a wider legal framework. It's therefore crucial that anyone going through a break up is aware, and is made aware by any professional supporting them, of the legal ramifications of any decisions they may make.

“Resolution members, many of whom practise as mediators and other dispute resolution specialists, will be able to steer you through the process and help ensure that any arrangements made are legally sound and stand the test of time”.
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For further information regarding the programme, see here.

Monday, June 20, 2016

Serious Injury Compensation and Divorce: Myth busting by First4SeriousInjury

It’s an unfortunate truth that marriages in which one person has experienced a serious personal injury are more likely to end in divorce than those that haven’t. From the strains put on day-to-day living to financial pressures suffered from loss of work, it’s sad but not surprising that many couples eventually decide to split.

However, when the injured party has received an (often large) amount of compensation, the divorce process can become complicated. If you’re going through a divorce as the recipient of serious injury compensation or you’re the spouse of someone who has, here are some myths and preconceptions we’d like to bust:

My compensation will be protected by the court

It’s called serious personal injury compensation, right? We’re afraid not. When deciding on the final outcome of divorce proceeding, the court is primarily concerned with equality. This means taking into account each party’s earning capacity and income as well as the ongoing impacts of any serious injury. This means that the amount you were awarded may not necessarily be excluded when calculating your assets and that, while you may be living with a disability as a result of your injury for example, your spouse may still be entitled to some of your compensation if the court feels that their income, ability to earn or assets are significantly lower than yours.

As the injured party, I will be given the most consideration

Again, it’s important to remember that divorce proceedings are about finding a fair outcome for all involved so, while any disabilities and personal injuries will certainly be given great importance, the most consideration is often granted to any children involved in the divorce. Priority will be given to child welfare in most, if not all cases, and this can affect how your compensation is distributed.

The result of this past case means that my case will go the same way

It can be tempting to look at the results of past divorce proceedings similar to yours and to assume that the courts will act in the same way. However, each divorce case is extremely complex with many factors taken into consideration that will be completely unique to you and your family. So while you may read of one spouse who received part of their partner’s serious injury compensation, that doesn’t guarantee this will happen for you.

I’ve read up on serious injury compensation and divorce law and am confident going into this on my own

As we’ve mentioned, each divorce case is completely unique and the law surrounding the proceedings can be extremely complex and very specific. That’s why it’s vital to get expert legal advice before entering into any proceedings.

If you’ve suffered a serious personal injury and would like to know more about making a claim or finding out what you’re entitled to, visit our website at www.first4seriousinjury.com or call us on 0800 779 7862 for 24/7 advice from our expert and award-winning team of lawyers.

Resolution responds to Justice Select Committee calls for divorce fee charges to be rescinded

Nigel Shepherd
Nigel Shepherd, Chair, Resolution said:

“We are pleased to see the Justice Select Committee has listened to Resolution's evidence and recommended the government rescind the recent rise in fees for divorce petitions.

“The committee rightly recognises that this rise effectively amounted to a new tax on divorce; and that by raising it, people were being charged around twice what it actually costs to process a divorce petition.

“At the time the hike was announced, court staff, our members, and the people they help were given only a few days’ notice of the new fee. We said then that the government should have waited until this report was published.

“Now that it has, we urge Ministers to listen to the Committee, reverse the fee hike, and reimburse the thousands of people who have been unfairly penalised as a result of the divorce tax”
____________

For more on the Justice Select Committee report, see here.

News Essentials: 20th June 2016


A brief summary of the essential family law news and cases from the last week:

NEWS
Steep court fee rises are tax on justice, say MPs
Justice select committee condemns big rises in charges for divorce, employment or asylum cases as unjustified. Full story: The Guardian.

Mr Justice MacDonald reminds professionals of responsibilities when considering allegations by children
Actions of some professionals ‘materially prejudiced the welfare of both children’. Full story: Family Law Week. See AS v TH (False Allegations of Abuse).

Supreme Court to decide whether child must have ‘opportunity to be heard’ in disputed custody case
The Supreme Court will deliver its judgment in D (A Child) on Wednesday, 22 June. Full story: Family Law Week.

Hundreds of millions of maintenance owed to children is failing to be collected
A new report published today finds hundreds of millions of pounds of child maintenance arrears owed to children are failing to be collected by the government – with new debts piling up in the new system worth an average of £668 per family. Full story: Gingerbread.

Court of Protection: final Case Management Pilot Practice Direction
The attached pilot Practice Direction is published in advance of a case management pilot commencing in the Court of Protection. Full story: Courts and Tribunals Judiciary.

MoJ seeks views on domestic violence legal aid
The Ministry of Justice has begun a review of legal aid in domestic violence cases as part of efforts to gather data, giving solicitors just over two weeks to share their views. Full story: Law Society Gazette.

Munby: changes needed to encourage more children to give evidence in family court proceedings
The chief of the family court has said there has been a sea-change in attitudes to children giving evidence in court, but more changes are necessary. Full story: Community Care.

CASES
KB & RJ v RT [2016] EWHC 760 (Fam) (07 April 2016)
Surrogacy. Application for a parental order where the child was outside the jurisdiction. Full report: Bailii.

X, Y & Z, Re (Damages : Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016)
Application by mother for declarations and damages pursuant to the Human Rights Act following the two children being subject to a (purported) s.20 agreement to be accommodated by local authority when an interim care order was granted. Full report: Bailii.

R v R [2016] EWHC 1339 (Fam) (29 April 2016)
Application by father for summary return of children to Canada. Return ordered. Full report: Bailii.

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For more news, see here.

For more cases, see here.

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.

Wednesday, June 15, 2016

Unique fly-on-the–wall TV documentary gives insight into how family mediation can settle disputes

Jane Robey
Money, children and property disputes into national spotlight

Millions of TV viewers will have the chance to watch the private world of family mediation with the launch of a ground-breaking three-part BBC Two ‘fly on the wall’ documentary series.

For over a year, TV cameras, rig and crews were given exclusive access to mediation sessions carried out by leading charity, National Family Mediation (NFM). The resulting series, ‘Mr v Mrs: Call The Mediator’, which kicks off on Tuesday 21 June at 9pm, will allow viewers to watch mediators and separating couples working together to negotiate solutions over money, children and property.

With NFM delivering an average of 16,000 mediations per year and 89 percent of cases closing successfully, it can be an intense but effective process - as the separated couples make plans together, face-to-face, with the help of a skilled mediator. Using a hybrid of between mediation sessions and at home, the series will allow viewers to see how families deal with the practical and emotional reality of the changes they agree upon.

“The 'traditional' route for separating couples to make arrangements over money, children and property has been to head off to a solicitor to prepare for a court room fight, but family mediation for separating couples is quicker, cheaper and less stressful. It helps families to focus on their future needs,” says Jane Robey, NFM’s Chief Executive. “As England and Wales’ leading provider, we are keen to help people understand how the process works.

“Our mediators and couples have granted privileged access to viewers to see a process that is usually kept behind closed doors, as couples work out long-term solutions that help them keep control of their own destinies, instead of handing it over to lawyers and judges.

“The series will provide a unique insight into an element of modern British family life rarely seen by others.”

Monday, June 13, 2016

News Essentials: 13th June 2016


A brief summary of the essential family law news and cases from the last week:

NEWS
Ex-wife of green energy tycoon awarded £300,000 in divorce cash battle
The ex-wife of a green energy tycoon has been awarded a "modest" lump sum payment of £300,000 in final settlement of the couple's divorce cash battle. Full story: Hereford Times. See Wyatt v Vince, below.

Cafcass private law demand
In May 2016, Cafcass received a total of 3,267 new private law cases.  This is a 17% increase on May 2015 levels. Full story: Cafcass.

Care applications in May 2016
In May 2016, Cafcass received a total of 1,141 care applications.  This figure represents a 23% increase compared to those received in May 2015. Full story: Cafcass.

Judge criticises police for flawed evidence gathering from children in abuse case
Boy's right to fair trial was breached in cases where he was alleged to have abused other children under his father's direction. Full story: Community Care. See E (A Child).

'Comedy of errors' left baby legally fatherless, judge reveals as he criticises NHS clinic
Britain's top family judge has criticised a "comedy of errors" at a top NHS fertility clinic that left a baby in danger of being left legally fatherless. Full story: The Telegraph. See Re J, below.

More than 1,200 cases of FGM recorded in England in just three months
At least two per cent of new cases were on girls under 18 and 11 girls were born in the UK. Full story: The Independent.

CASES
F (Children), Re [2016] EWCA Civ 546 (09 June 2016)
Appeals from an order made in Hague Convention proceedings concerning the return of three children to Hungary. Full report: Bailii.

Wyatt v Vince [2016] EWHC 1368 (Fam) (10 June 2016)
Judgment setting out terms of settlement of wife's claim, issued 19 years after decree absolute. Full report: Bailii.

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)
Wardship proceedings. Hearing to determine whether certain alleged incidents of serious abuse had taken place. Full report: Bailii.

De Renee v Galbraith- Marten 2016 EWCA Civ 537 (13 April 2016)
Application by wife for permission to appeal against an order dismissing her application for permission to apply for financial relief after an overseas divorce pursuant to Part III of the MFPA 1984. Permission refused. Full report: Family Law Week.

N, Re [2016] EWHC 1329 (Fam) (08 June 2016)
Application by partner of mother of child born as a result of IVF treatment for a declaration that he is the child's legal parent, following administrative failure by clinic providing treatment. Full report: Bailii.

J, Re [2016] EWHC 1330 (Fam) (08 June 2016)
Application by partner of mother of child born as a result of IVF treatment for a declaration that he is the child's legal parent, following administrative failure by clinic providing treatment. Full report: Bailii.

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For more news, see here.

For more cases, see here.

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.