Wednesday, October 31, 2012

Family Lore Clinic: Is there any benefit to a clean consent order?


Well, I suppose that being clean would make it more legible.

Seriously, I will assume that the questioner meant "clean break consent order".

The simple answer is "yes". The term "clean break" refers to a financial order after divorce or dissolution of civil partnership that dismisses all (further) financial/property claims by either party against the other, thereby ensuring that no such claims may be made.

Accordingly, if you wish to ensure that your former spouse or civil partner cannot make any financial claims against you in the future, you should get a clean break order. You may not consider it necessary, as you may think that you have nothing that your ex could claim, but obviously circumstances can change - the classic example often given is if you win the lottery (although this does not necessarily mean that any claim against your lottery winnings would be successful - still, best to prevent a claim at all).

Note that a clean break is not always appropriate, for example where one party requires the other to pay them maintenance. Note also that the order can specify that the clean break take effect at some future time, e.g. where maintenance is expressed to last only until a particular date or event, such as when the children finish their education.

(As usual, if you require more details or specific advice, you should consult a specialist family lawyer.)

From the Archives: October 29th 2011 - Father Of The Year, Halloween Edition

Just when you thought there was intelligent life on Earth, someone has to prove otherwise:

[Image and post title (I couldn't better it) from BuzzFeed.]

Tuesday, October 30, 2012

Good News


Lawyers braced for post-recession surge in divorces - The Telegraph, 30th October 2012

Is any Jaag driver ever entirely trustworthy?

The wait is over. The much-anticipated Charon QC UK Law Tour begins today, with a podcast with Andrew Hopper QC, whose website tells us that:
"Andrew Hopper QC is selective as to the cases he will accept. He has to be satisfied that he will add value for the benefit of the client, and his involvement cannot routinely be justified on the basis of cost. His office is not open to the public and his telephone numbers are unlisted."
Should be interesting. Expect the podcast to go up later today, or tomorrow.

I understand that Charon QC is travelling to the podcast by train, rather than the 'Jag Rouge', which he will be using for most of the tour. I have had the honour of a short trip in the Jag and can confirm that it is impressive without being entirely sensible, in a classic Charon QC sort of way. It puts me in mind of this exchange on Top Gear:

News Update: 30th October 2012


WELCOME to this week's Family Lore News Update. Take a deep breath, there's a lot to get through...

NEWS
Lawyers braced for post-recession surge in divorces
Lawyers are preparing for a possible surge in the divorce rate as the economy moves out of recession. Good news all round then! Full story: The Telegraph.

Support for care teens in England a 'national scandal'
Too many teenagers in England leave care without enough support, ending up in a "trap of poverty and joblessness", the children's minister has said. Full story: BBC News.

Domestic violence kills at least 105 English women in 18 months
Despite a national scheme to help police better serve their communities on this issue, research by the Guardian suggests there are still a disturbing number of fatal assaults in the home.

Demand for child protection continues to rise, say Directors of Children’s Services
Levels of demand for child protection and care services continue to rise nationally, new research shows, and a majority of directors of children's services fear that pressures will continue to rise in future years. Full story: Family Law Week.

After the Savile scandal, a revolution in child protection
"A revolution in child protection which would see elite graduates fast-tracked into social work has been given the go-ahead by Michael Gove, The Independent on Sunday can reveal."

Gay sperm donor told to pay child maintenance for 'his' two children
A gay man from Essex who donated his sperm to enable a lesbian couple to have two children, but who was never named on their birth certificate and had no role in their upbringing, is being forced by the Child Support Agency to pay for their support – 13 years after the first child was born. Full story: The Guardian.

CoA delivers shock verdict in big-money divorce case
The Court of Appeal (CoA) has delivered a shock verdict in a hotly anticipated big-money divorce case, ruling that companies belonging to oil tycoon Michael Prest should not be forced to hand over assets totalling £17.5m to his former wife. [See report below.] Is this a "cheat's charter"? Full story: The Lawyer.

Poorest child maintenance claimants ‘forced into a corner’, warns Barnardo’s
On the final day of the government’s consultation into child maintenance, the UK’s largest children’s charity is warning that the poorest parents will be forced to make an impossible choice under the new child maintenance system. Full story: Barnardo's.

Stoke council fined over child protection e-mail
A city council has been fined £120,000 after a solicitor sent e-mails about a child protection case to the wrong person. Full story: BBC News.

Divorce row over billionaire's refusal to pay ex's head chef
The former wife of a billionaire is claiming he has breached their divorce settlement by failing to maintain her two luxury homes, cutting down on the number of her servants and refusing to pay her head chef's salary. How the other half lives: The Telegraph.

Children's directors plan to overhaul care system
Directors to investigate how permanence, stability and support for teenagers can be improved, and warn government reforms to children's homes and adoption are too narrowly focused. Full story: Community Care.

Child benefit chaos for divorced couples
New partners of divorced parents face losing part of their salary under changes to the child benefit system if they earn over £50,000, even if the children are not theirs, accountants at Deloitte have warned. Full story: The Telegraph.

STATUTORY INSTRUMENTS
The Child Support Maintenance Calculation Regulations 2012
These Regulations provide for a range of matters in relation to the calculation of child support maintenance under the Child Support Act 1991.

The Child Support Maintenance (Changes to Basic Rate Calculation and Minimum Amount of Liability) Regulations 2012
These Regulations modify the provisions in Schedule 1 to the Child Support Act 1991 relating to the calculation of the basic rate of maintenance and the minimum amount of liability where the non-resident parent is party to another maintenance arrangement.

CASES
It's been a bumper week for reported cases:

Re H (Breakdown of Foster Placement: Further Assessment) [2012] EWCA (26 October 2012)
Judge adjourned care proceedings for 3 months and directed mother and child to return to first foster placement under interim care order while an independent social work assessment took take place. Appeal by local authority dismissed. Report: Family Law. See also the first post by suesspiciousminds, below.

Re M (Fact-Finding Hearing: Burden of Proof) [2012] EWCA (22 October 2012)
Appeal against finding of fact allowed: The judge had fallen into error and reversed the burden of proof in making the parents prove the injuries to the child were accidental. Report: Family Law. See also the first post by suesspiciousminds, below.

ZA & Anor v NA [2012] EWCA Civ 1396 (26 October 2012)
Appeal by father against order for the return of the children from Pakistan. Appeal allowed in part. Full report: Bailii.

WBC v CP & Ors [2012] EWHC 1944 (Costs) (12 July 2012)
Application for costs following Court of Protection and Administrative Court proceedings. Full report: Bailii.

A Local Authority v S & O [2011] EWHC 3764 (Fam) (15 December 2011)
Fact-finding hearing as to whether a couple who had apparently given birth to a child in Nigeria had been aware that it was actually a ‘staged labour’. Full report: Family Law Week. See also the post by suesspiciousminds, below.

Petrodel Resources Ltd & Ors v Prest & Ors [2012] EWCA Civ 1395 (26 October 2012)
Appeal against order for companies controlled by the husband to transfer assets to the wife in or towards satisfaction of her financial remedy claim. Appeal allowed. Full report: Bailii. See also the news story above and the Family Law article, below.

Clarke, Re [2012] EWHC 2256 (COP) (31 July 2012)
Application to discharge a deputyship in relation to the management of the property and affairs of a 72 year-old woman. Application adjourned. Full report: Bailii.

Clarke, Re [2012] EWHC 2714 (COP) (09 October 2012)
Further hearing of application to discharge a deputyship in relation to the management of the property and affairs of a 72 year-old woman. Ordered that her property should not be sold or charged during her lifetime, and that the deputyship should be discharged. Full report: Bailii.

Clarke, Re [2012] EWHC 2947 (COP) (24 October 2012)
Further hearing of application to discharge a deputyship in relation to the management of the property and affairs of a 72 year-old woman, dealing with issue of costs. Full report: Bailii.

NHS Trust v K & Ors [2012] EWHC 2922 (COP) (15 October 2012)
The issue was whether a lady with cancer of the uterus who lacked capacity should have a potentially life-saving operation. held that she should. Full report: Bailii.

S v S [2012] EWHC 2960 (Fam) (25 January 2012)
Application for permission to appeal against financial remedy order, including litigation misconduct costs. Permission refused. Full report: Bailii. See also my post, below

Re C (Residence) [2012] EWCA (12 October 2012)
Father alleged that mother's care of the child deficient. Judge stopped father's evidence, stating that he had failed to show cause to support a change of residence. Father's appeal dismissed. Report: Family Law. See also the first post by suesspiciousminds, below.

F (Child) [2012] EWCA Civ 1364 (24 October 2012)
Appeal by father against order giving mother permission to permanently remove the child from the jurisdiction. Appeal dismissed. Full report: Bailii. See also my post, below

Re D (Findings of Sexual Abuse: Appeal) [2012] EWCA (17 October 2012)
During care proceedings the judge made findings that a boy had raped his sister. The boy appealed. Appeal dismissed. Report: Family Law.

B (Children) [2012] EWCA Civ 1275 (16 August 2012)
Appeal by local authority against refusal to make interim care orders on a care plan for the children's immediate removal. Appeal dismissed. Full report: Family Law Week.

C (Children) [2012] EWCA Civ 1281 (25 July 2012)
Appeal by local authority against order for indirect contact in favour of the father, pursuant to s26 of the Adoption and Children Act 2002. Appeal allowed. Full report: Family Law Week.

A (Children) [2012] EWCA Civ 1278 (18 July 2012)
Care proceedings. Appeal by father against finding that he was responsible for fatal injuries suffered by child. Appeal dismissed. Full report: Family Law Week. See also the post by suesspiciousminds, below.

W (Children) [2012] EWCA Civ 1307 (24 July 2012)
Residence application by father. Appeal by mother against refusal to re-open fact-finding inquiry. Appeal dismissed. Full report: Family Law Week. See also the post by suesspiciousminds, below.

ARTICLES
Petrodel Resources Ltd and Others v Prest and Others [see above]
"It is not open to Family Division judges, in proceedings for financial provision, to make an order against company-held property unless there exists on the facts of the case relevant impropriety justifying the piercing of the corporate veil." Says Amy Royce-Greensill in Family Law.

Quantification of financial provision under Part III
"Judgment has been published this week, although handed down 9 May 2012, in the case of Z v A [2012] EWHC 1434 (Fam), an important High Court decision of Coleridge J about quantification of financial provision under Part III MFPA 1984, financial remedies after a foreign divorce." Full article by David Hodson in Family Law.

“Does it matter what I think”? A comparison of the consideration of children’s views in Hague Convention cases and Children Act 1989 proceedings
Radhika Handa, barrister, of Coram Chambers compares the court's consideration of children's wishes in Hague Convention and Children Act cases, in both private and public law. Full article: Family Law Week.

Looked-after children: Care should be in the community
"Living close to home can offer 'looked-after' children much‑needed stability, so why do so many councils struggle to make local placements?" Asks Louise Tickle in The Guardian.

BLOGS
So tired, tired of waiting, tired of waiting for you
"A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on, and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing." He may not have heard of formatting, but he does know some good songs: suesspiciousminds.

One of these nights you’re gonna get caught, It’ll give you a pregnant pause for thought
This is a discussion of the extraordinary case of A Local Authority v S & O [2011] EWHC 3764 (Fam) [above]. Another song, another post by suesspiciousminds.

S v S: Dealing with a disparity in costs
A summary of S v S [2012] EWHC 2960 (Fam) [above]. WARNING: Contains maths. I needed a calculator to write this post.

F (Child) and the taxonomy of relocation cases
A summary of international relocation case F (Child) [2012] EWCA Civ 1364 [above]. Full post by yours truly.

Once you have eliminated the impossible
Is Sherlock Holmes’ maxim applicable to fact finding hearings? The Court of Appeal take a look - A (Children) [2012] EWCA Civ 1278 [above]. Suesspiciousminds turns to literature for his inspiration.

J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)
A discussion of Re W (Children) 2012 EWCA Civ 1307 [above]. Is it Zola? No, it's suesspiciousminds.

Monday, October 29, 2012

@familylaw: Five thousand followers can't be wrong...

...well, maybe they can, but at least the followers of my @familylaw twitter feed are keeping up with all the latest happenings in the world of family law. For those who don't already know (where have you been?), @familylaw feeds all news items, cases and articles from Family Lore Focus on to twitter, thereby providing a convenient way to stay up to date.

You can also keep up to date by subscribing to the free weekly Family Lore Focus Newsletter here - all that is required is your name and email address.

To recap, Family Lore Focus is essentially a site that aggregates freely available family law content from the web, including news, cases, statutory instruments, articles and blogs. Several times every day I check every source that I am aware of including family law sites, general law sites, blogs, newspapers, Bailii and many others, and post links to items of interest. The most recent links can be found on the front page of Family Lore Focus, and older ones on the relevant blogs: Family Lore News, Family Lore Case Digest, Family Lore Articles, and Family Lore Blogs.

[Post blatantly copied from earlier ones, but hey - this is my blog, so I'm allowed.] 

News Podcast: For the week to the 29th October 2012

Somewhat longer than usual, a summary of the top family law news stories and cases from the last week.



(If you can't see the audio player above, you can listen to the podcast here.)

Friday, October 26, 2012

Prest: A "cheat's charter"?

Lord Justice Rimer
The much-anticipated judgment in Petrodel Resources Ltd & Ors v Prest & Ors [2012] EWCA Civ 1395 has been handed down today by the Court of Appeal. I don't propose to write a full summary of the judgment (give me a break, it's 161 paragraphs long and it is Friday afternoon!), but can report that the judgment is likely to come as a disappointment to family lawyers.

Briefly, the background is that in October last year Mr Justice Moylan awarded the wife £17.5 million in settlement of her financial remedy claim. In view of the husband's appalling litigation misconduct, he ordered that companies owned and controlled by him (which Moylan J found the husband had used to try to defeat the wife's claims) transfer certain assets to the wife, in part payment. The companies appealed.

In the Court of Appeal Lord Justice Thorpe, as one might expect, wanted to dismiss the appeal. His judgment concluded:
"64. In this case the reality is plain. So long as the marriage lasted, the husband's companies were milked to provide him and his family with an extravagant lifestyle. That was only possible because the companies were wholly owned and controlled by the husband and there were no third party interests. Of course in so operating them husband ignored all company law requirements and checks.

65. Once the marriage broke down, the husband resorted to an array of strategies, of varying degrees of ingenuity and dishonesty, in order to deprive his wife of her accustomed affluence. Amongst them is his invocation of company law measures in an endeavour to achieve his irresponsible and selfish ends. If the law permits him so to do it defeats the Family Division judge's overriding duty to achieve a fair result."
However, he was 'out-voted' by the two commercial judges sitting in the court, Lord Justice Rimer and Lord Justice Patten, and the appeal was therefore allowed. Lord Justice Rimer held that unless there was some impropriety whereby "the controllers of the company have so used the fact of its separate identity for improper purposes that it may be appropriate for the court [to] disregard its separate identity in order that its controllers may not derive the advantage from such abuse that they intended to achieve", the judge had no choice but to reject the claim that the companies' assets were or could be regarded as properties to which the husband had any entitlement. He continued that the judge:
"...had no jurisdiction under section 24(1)(a) to make the orders he did in relation to them. Insofar as he was suggesting that section 24(1)(a) enabled the court to treat a company's property as belonging to its 100% owner, he was wrong. Section 24(1)(a) confers no such jurisdiction. It does no more than confer a jurisdiction to make a transfer order in respect of property to which the respondent spouse is beneficially entitled."
The ruling has already been called a "cheat's charter" by divorce lawyers, who fear that it will be used by wealthy husbands to avoid their liabilities to their families.

Mrs Prest is reported to be intending to appeal to the Supreme Court.

New Child Support Regulations

Regulations governing the new child support scheme have now been published.

The Child Support Maintenance Calculation Regulations 2012 were made on the 20th October and 'come into force in relation to a particular case on the day on which paragraph 2 of Schedule 4 to the Child Maintenance and Other Payments Act 2008 (calculation by reference to gross weekly income) comes into force in relation to that type of case' (reg 1).

Other than commencement. Part 1 of the Regulations provides for general matters including interpretation and the rules for rounding of calculations and service of documents.

Part 2 provides for applications for child support maintenance, including the priority rules where more than one application is made in relation to the same child.

Part 3 deals with decision making. Chapter 1 sets out the general rules for setting the effective date for a maintenance calculation. Chapter 2 sets out the general rules relating to revision of decisions in accordance with section 16 of the 1991 Act. Chapter 3 sets out the circumstances in which a maintenance calculation may be adjusted by a supersession decision and the dates from which such decisions have effect. Chapter 4 provides for the updating of the gross weekly income figure on which a calculation has been based (basically every 12 months). Chapter 5 sets out the requirement to notify decisions. Chapter 6 and the Schedule set out some miscellaneous matters in relation to appeals.

Part 4 contains provisions relating to the rules for calculation of child support maintenance, supplementing Part 1 of Schedule 1 to the 1991 Act. Chapter 1 contains the rules for calculating the non-resident parent’s gross weekly income by reference to information provided by Her Majesty’s Revenue and Customs for the latest available tax year. Chapter 2 sets out the rates of child support maintenance, Chapter 3 deals with default maintenance decisions and Chapter 4 covers special cases, including provision for determining which parent is the non-resident parent where the care of a child is shared (reg 50).

Part 5 provides for the variation of the rules for calculating child support maintenance. These include provision for reducing the amount payable where the non-resident parent has special expenses or increasing the amount payable if the non-resident parent has sources of income not otherwise taken into account or diverts income to another person or for another purpose.

Part 6 provides for the interpretation of various terms in the 1991 Act.

The Child Support Maintenance (Changes to Basic Rate Calculation and Minimum Amount of Liability) Regulations 2012 have also been published. These Regulations modify the provisions in Schedule 1 to the Child Support Act 1991 relating to the calculation of the basic rate of maintenance and the minimum amount of liability where the non-resident parent is party to another maintenance arrangement.

THE FIRM: Chapter 6 - Seduced


AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors, Mike McCheap is once again working late. In the adjacent room his secretary, Brenda Buxom, is struggling to keep up with his dictation. Since the cleaners left two hours ago, the two of them have been the only people in the office. Even Edgar Venal left early this evening, much to McCheap's surprise.

McCheap is pondering over a divorce file. It is pretty routine stuff - the client has declared himself bankrupt in order to defeat his wife's financial claims (the trick with such files is to stop the wife getting suspicious about how the client is paying his lawyer's fees). Despite it being routine, however, McCheap is finding it extremely difficult to concentrate on the file. His mind is cloudy and he feels slightly light-headed, almost as if he had been drinking.

What he does not know is that the coffee he has been sipping for the last four hours has been laced with vodka.

McCheap's reverie is interrupted by a noise and a scream from next door. He jumps up from his chair, but that makes the room spin a little. He shakes his head to clear it, and runs across to the door into Brenda's room.

He opens the door to find his secretary sprawled on the floor, holding her ankle. McCheap can't help noticing that her skirt is pulled up, exposing her slim legs.

"My stiletto." Says Brenda. "I caught it on the carpet. I think I've twisted my ankle."

McCheap bends down to assist his stricken secretary. As he does so, he notices three things: firstly, the overpowering scent that Brenda is wearing; secondly and thirdly, the ample view down the top of her dishevelled blouse.

Brenda looks up into McCheap's eyes. He thinks he sees her pout a little.

"I can't see what I've done." Says Brenda. "I need to remove my stocking. Will you help me?"

McCheap doesn't need a second invitation. He undoes the stocking from the suspenders and slides it down Brenda's leg. She lets out a little moan as he does so - he can't be sure whether in pain or pleasure.

He caresses the ankle with his hands. "No sign of injury." He says, breathing heavily.

"Oh good." Replies Brenda. She looks into McCheap's eyes again, grabs his tie and pulls him to her. He does not resist...

What McCheap also does not know is that there is a security camera in the ceiling, filming the entire scene.

Thursday, October 25, 2012

S v S: Dealing with a disparity in costs

Mr Justice Mostyn
A summary of S v S [2012] EWHC 2960 (Fam). WARNING: Contains maths.

This case concerned an application for permission to appeal against a financial remedy order. There were two points of appeal, but the interesting one is on the issue of costs, and that is the only one that I shall deal with here.

The wife claimed that the husband was guilty of "extreme litigation misconduct in giving misleading and false disclosure; in failing to comply with orders; and in raising and pursuing issues unreasonably", the result of which was to drive up the costs substantially. The district judge considered the husband's litigation misconduct and ordered him to make a payment of £100,000 towards the wife's costs.

On the application for permission, the wife's counsel argued that in his award (which essentially granted the wife 55% of the total assets) the district judge had not taken into account the husband's litigation misconduct properly, or at all. The net effect of the award to the wife was as follows:

55% of the total assets - £1,317,304

Less her unpaid costs - £263,163

Add costs payable by husband - £100,000

NET RECEIPT - £1,154,141

Looking at the position had the district judge taken unpaid costs off the top (as is the normal starting-point), counsel for the wife appears to have a good point:

The pool of net divisible assets after deduction of unpaid costs - £2,097,621

55% share to wife - £1,153,692

However, as Mr Justice Mostyn explained, such an argument was flawed, as can be seen when taking into account the disparity between the costs incurred by the wife and those incurred by the husband, and calculating the true net payment by one party to the other in respect of costs:

Wife's total costs - £365,564

Husband's total costs - £124,472

W pays 55% of H's costs = £68,460

H pays 45% of W's costs = £164,504

Therefore H pays the difference, i.e. £96,044, to W's costs

(Mr Justice Mostyn suggested that this was a useful technique in cases where there was a striking disparity in the costs.)

He concluded:
"I cannot judge that contribution to be unreasonable on the district judge's findings. Had I been sitting at first instance I may have taken a different view. Under FPR 2010 28.3 the starting point is no order as to costs. Where the combination of a disparity of costs and the division already means or effects a significant net costs shift between the parties I have to suggest that the conduct referred to in that rule would have to be very poor indeed to warrant any further adjustment."
Accordingly, he refused permission to appeal.

Family Lore Clinic: What do I do if my ex refuses to sign the decree absolute?


I will assume here that the questioner means "sign the application for" the decree absolute, and that his/her ex is the person in whose favour the decree nisi was pronounced.

The answer is essentially quite simple: you cannot force your ex to apply for the decree absolute. However, you can yourself apply for the decree absolute, once three months have elapsed since the earliest date upon which your ex could have applied, which would have been after the expiration of six weeks from the date of the decree nisi (i.e. you can apply after 6 weeks + 3 months from the date of the decree nisi).

It should be noted, however, that such an application cannot simply be dealt with through the post, as would an application by your ex. The court will fix a hearing and may not grant the decree absolute, for example if it considers that any financial/property settlement must first be finalised.

(As usual, if you require more details or specific advice, you should consult a specialist family lawyer.)

Wednesday, October 24, 2012

F (Child) and the taxonomy of relocation cases

Lord Justice Munby
A summary of international relocation case F (Child) [2012] EWCA Civ 1364.

The case concerned a boy, P, who was born in November 2004, to Spanish parents. The family moved to this country in 2009, when the father was offered a posting here by his employer, and intended to stay here until at least 2013. However, the relationship broke down and the mother returned to Spain in August 2011, leaving P in this country with the father. It was common ground that prior to August 2011 the mother was P's primary carer but that since then the primary carer has been the father.

The mother applied for the return of P to Spain in accordance with the provisions of the Hague Convention. However, her application was dismissed after the court held that P was at the material date habitually resident not in Spain but in this country.

The matter then proceeded on the basis of cross-applications for residence, with the mother also applying for leave to remove P from the jurisdiction and take him back to live with her in Spain. By the time the matter reached the final hearing before Judge Marston in the Portsmouth County Court on 25 July 2012, both parents were proposing a shared residence order.

Judge Marston made a shared residence order in favour of both parents but ordered that the mother have permission permanently to remove P from the jurisdiction. The father appealed. His case was as follows:
"The father's most important complaint is that Judge Marston erred in law. He submits that this was not a Payne v Payne case, as the judge seems to have thought, because the applicant – the mother – was not the primary carer; he was. Nor was it a K v K case, because there was no shared care arrangement. Judge Marston, he says, approached the case with a presumption in favour of the mother. He should, on the contrary, have recognised the father's claims as the primary carer, given due respect to the father's wishes and plans, in particular his reasonable wish to remain living in this country, and not imposed unreasonable constraints on his choice of residence. He did not. In short, says the father, Judge Marston reversed the guidelines. Thus, it was the father, who was not seeking to relocate, who was being pressed for clarity about his future plans. Moreover, he says, Judge Marston failed to acknowledge the importance of maintaining the child's status quo. A proper regard to these points ought, says the father, to have tipped the balance in his favour."
Giving the leading judgment in the Court of Appeal, Lord Justice Munby held (at paragraph 49) that there was no error of law:
"Although this was not a case where the application was being made by the primary carer, Judge Marston was ... entitled to have regard to Thorpe LJ's "discipline" as set out in Payne at paragraph [40]. He correctly appreciated that the case had to be decided by reference to P's best interests. And, at the end of the day, that is precisely what Judge Marston did."
He continued:
"50. He carefully took into account P's current circumstances in this country, the quality of his father's care of him and the father's own plans, wishes and feelings. There is nothing which begins to suggest that he started off with any presumption in favour of the mother's claim. And if the complaint is that he did not recognise the presumptive weight of the father's claim, the short answer, as explained by Black LJ in K v K, is that he would have erred in law had he done so.
51. A reading of his judgment demonstrates that Judge Marston took into account and gave appropriate weight to each of the factors to which the father has drawn attention. He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo. He gave appropriate weight to both points, whilst correctly appreciating that neither could be decisive."
He concluded in the following paragraph:
"In my judgment there is no sustainable basis for any complaint that Judge Marston either took into account irrelevant factors or failed to take into account any relevant factors. Nor, in my judgment, is there any sustainable basis for a complaint that Judge Marston erred either in the weight he chose to attach to the various factors he had to take into account or in his evaluative decision as to where the ultimate balance fell. That being so there is no proper basis upon which this court can intervene."
Accordingly, he dismissed the appeal. Lords Justices Toulson and Pill gave concurring judgments.

In a postscript to his judgment Lord Justice Munby made two further points:

Firstly, he emphasised and endorsed the "central core" of what Lady Justice Black said in K v K, at paragraph 145:
"I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application."
Secondly, he said (at paragraphs 60 and 61) that there was another lesson to be learned from this case:
"Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, "the circumstances in which these difficult decisions have to be made vary infinitely." This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a "Payne type case", or a "K v K type case" or a "Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.

The focus from beginning to end must be on the child's best interests. The child's welfare is paramount. Every case must be determined having regard to the 'welfare checklist', though of course also having regard, where relevant and helpful, to such guidance as may have been given by this court."
You have been warned!

Who said what at the Nagalro conference?


There seems to be some confusion over comments made by Mr Justice Ryder and/or Lord Justice McFarlane at the Nagalro conference last week.

The conference took place at Woburn House on the 15th of October. It was chaired by Lord Justice McFarlane, and Mr Justice Ryder appeared as a speaker.

It was originally reported, for example in Family Law Week and on the Association of Lawyers for Children website, that during the course of the conference Mr Justice Ryder had commented on the proposed 26 week timetable for care proceedings. The Family Law Week report gave some detail, by saying that in response to a question from a delegate about the timetable Mr Justice Ryder said that the 26 weeks was not written in stone, that it was aspirational, and that in his view it may be achieved in two years' time.

The Family Law Week report (which was originally published on about the 18th October) has now been removed from its website as, it would appear, has the report on the Association of Lawyers for Children website.

Yesterday Family Law Week published a fresh report on the matter, which attributes the 'aspirational' comment to Lord Justice McFarlane, rather than Mr Justice Ryder:
"Lord Justice McFarlane, recollecting the recommendations of the Family Justice Review panel of which he was a member, said that 26 weeks was aspirational and that the review anticipated that it may take a period of time to implement."
Mr Justice Ryder is reported to have merely said that:
"Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case."
The comments attributed to Lord Justice McFarlane almost seem to be backtracking a little from those originally attributed to Mr Justice Ryder. It is also rather odd that the original report of Mr Justice Ryder's response to the delegate was so specific in what he apparently said, if he didn't actually say that. Or perhaps I am just imagining some sort of cover up...

Hopefully, all of this is just down to reporting errors in the original story, rather than confusion amongst the ranks of our senior judiciary. One thing is clear, however: the 26 week timetable is causing considerable concern amongst those who will (or is it 'may'?) be required to implement it.

Tuesday, October 23, 2012

News Update: 23rd October 2012


WHEN I BEGAN writing these updates I didn't particularly intend that they should appear at weekly intervals, but that is how it's turned out, so welcome to this week's Family Lore News Update!

NEWS
Former company boss says bankruptcy should wipe out debt to his ex-wife
"A ruling in favour of Alexander McRoberts would open the door to 'all the bankrupts out there who don't want to pay their lumps sums in family proceedings,' a judge is warned." Full story: The Telegraph.

Family Justice Review draft legislation
The Law Society's response to the Family Justice Review draft legislation.

Home Secretary and CPS appeal ancillary relief order to disclose material obtained under mutual legal assistance provisions
Permission has been granted to the Home secretary and the Crown Prosecution Service to appeal Moylan J's decision in P v P [2012] EWHC 1733 (Fam) [see report below]. Full story: Family Law Week.

Couple can keep Nigerian baby after 'scam' ruling
A couple, who could not have children, have been told by the High Court they can keep a baby born in Nigeria, despite tests showing they were not the child's biological parents. Full story: BBC News.

Birmingham City Council child protection 'inadequate'
The effectiveness of Birmingham City Council's arrangements for protecting children has been judged "inadequate". Full story: BBC News.

26 weeks timetable is ‘aspirational’, says Mr Justice Ryder
In response to a question from a delegate at the annual conference of Nagalro, Mr Justice Ryder was reported to have said that the 26 weeks was not written in stone, and that it was 'aspirational', according to the original story about this in Family Law Week. That story, however, has since been removed and replaced by this one, which indicates that it was actually Lord Justice McFarlane who said it was 'aspirational'.

Judge orders nationwide hunt for four missing children
"A High Court judge today launched a nationwide hunt for four missing children." Full story: The Independent.

Care runaway 'lived in cave'
"A teenager spent three weeks living in a cave rather than go back into care, an official study into how children feel failed by the system has disclosed." Full story: The Telegraph.

CASES
Evans v Evans [2012] EWCA Civ 1293 (08 August 2012)
Appeal by wife against an order that the decree nisi should be made absolute, on the basis that she would be severely prejudiced because she would lose the prospects of enforcing whatever order was made in relation to transfer of shares in an American company between husband and wife. Appeal allowed. Full report: Bailii.

Musa v Karim [2012] EWCA Civ 1332 (13 July 2012)
Application by husband for permission to appeal against ancillary relief order, primarily on the grounds that it was vitiated by the wife's material non-disclosure. Permisssion granted. Another case including appalling behaviour by the parties, summed up by this quote from HHJ Hayward Smith QC:
"...each of them demonstrated deep animosity and total mistrust of the other. Each of them found great difficulty in answering questions. Many, if not most, questions led to a diatribe by one of them against the other, often accompanied by remarks from the back of the court from the one who was not in the witness box. Each of them took every opportunity to denigrate and score points off the other ... Their behaviour at this hearing has not helped either of them, or me, in determining the facts or a conclusion that tries to be fair to both parties."
Full report: Bailii.

K (A Child) [2012] EWCA Civ 1306 (25 July 2012)
Appeal by mother against residence and contact order in respect of four children on the grounds, inter alia, that the order had been made without hearing from the parties and that allegations of domestic violence had not been adjudicated upon. Appeal allowed. Full report: Family Law Week. See also the post by suesspiciousminds, below.

P v P [2012] EWHC 1733 (Fam) (30 May 2012)
Application for an order for the CPS and for the Respondent to disclose material to the Applicant in the course of her application to set aside an ancillary relief order which she alleged had been procured by material misrepresentation. Full report: Family Law Week. See also the news story, above.

Z v A [2012] EWHC 1434 (Fam) (9 May 2012)
Application under Part III of the Matrimonial and Family Proceedings Act 1984: the correct approach in truly “international” cases; independent wealth and separate finances; short marriage; needs. Full report: Family Law Week.

MA v Camden & Ors [2012] EWCA Civ 1340 (16 October 2012)
Appeal against the rejection of the appellant's application to revoke placement orders. Appeal dismissed. Full report: Bailii.

J (A Child), Re [2012] EWCA Civ 1231 (12 October 2012)
Appeal by father against residence and contact orders. Appeal allowed and re-trial ordered. Full report: Bailii. See also my blog post, below.

ARTICLES
Clare's Law: Do you know your partner's past?
"A survey of 189 people currently living in refuges across England and Wales found that 75pc said they would have left their relationship had they discovered their partner’s violent history." Full article: The Telegraph.

No Direction Home? Financial Remedies and the Medium Asset case
Alexander Chandler, barrister, 1 Garden Court examines the principles the courts will apply in medium asset cases and offers practical guidance to those faced with the challenge of “stretching” limited assets. Full article: Family Law Week.

New threat to child maintenance for the women who already live in fear
"The Child Support Agency is to be replaced by the Child Maintenance Service – which will charge those using its services." Full article: The Observer.

Ben Butler's case reminds us the justice system is not infallible
Emma Sherrington, who represented Ben Butler in London Borough of Sutton v Gray & Ors [see last week's News Update], discusses the case, in The Guardian.

BLOGS
The importance of being formal
A discussion of the private law case of Re K (A child) 2012 EWCA Civ 1306 [above]. Full post: suesspiciousminds.

Pre-owned businesses: when does non-matrimonial property become shareable in a divorce?
A discussion of the case of Jones –v- Jones, which involved the treatment by the Court of Appeal of a business which began before the marriage but significantly increased in value during it. Full post: Marilyn Stowe Blog.

Re J (A Child): When the past needs to be investigated
A summary of Re J (A Child) [2012] EWCA Civ 1231 [above], in which a father successfully appealed against residence and contact orders. Full post: Family Lore.

Family mediation is a waste of time
Why is the government so intent on 
forcing people into mediation when this is 
patently not delivering results, 
asks Marilyn Stowe.

Parents regain access to children after five year battle
"A London couple have regained access to their two daughters after a five-and-a-half year saga which saw the father imprisoned with sex offenders and both children taken into care." More on the London Borough of Sutton v Gray & Ors case [see last week's News Update], this from Marilyn Stowe.

LASPO and the domestic violence gateway
"As a solicitor, who set up a firm with two other family lawyers in 2005 primarily to deal with family legal aid cases for the mixed housing area of Shirley in Southampton where we practice, I was very concerned when I heard of the proposed new reforms for family legal aid work", writes Wendy Hewstone in LegalVoice.

Monday, October 22, 2012

Exclusive: Interview with Edgar Venal

Family Lore: Today I have the very great honour to be interviewing Edgar Venal, here in his office. Edgar Venal is the Senior Partner of leading divorce lawyers Venal & Grabbit. He has had a long and glorious career, acting for the rich and famous (particularly the rich). He has written extensively on the subject of family law, his published books including How to squeeze the last penny out of divorce clients and Mediation? Don't make me laugh. He has also received numerous awards, having won the prestigious Family Law Fee Earner of the Year Award for the last three years running, the Practical Family Lawyer Lifetime Achievement Award and the Better At Family Lawyering Than Any Other Family Lawyer Award.

Mr Venal, thank you for agreeing to this interview. It is a privilege to be speaking with you today.

Edgar Venal: I know.

FL: Quite. Now, I would like to discuss with you some of the big issues in family law today. What, for example, are your views on gay marriage?

EV: I fully support it. After all, more marriage means more divorces, which means more work for family lawyers.

FL: There are some who have argued that it could lead to other changes in the institution of marriage, even polygamy. What are your thoughts on that?

EV: I have no problem with polygamy. After all, more marriage means more divorces, as I have said.

FL: I see. Moving on, legal aid for private law family matters will be abolished next April. What are your thoughts on that?

EV: I think it is an excellent thing.

FL: Really?

EV: Yes. Getting rid of legal aid will mean more private clients, which will mean more money for us lawyers who are too sensible to do legal aid work.

FL: But many people won't be able to afford to instruct a solicitor on a private basis. That will mean the courts clogging up with litigants in person. Won't that be a bad thing?

EV: Not at all. It will be a time of great opportunity for lawyers to get good results for their clients by bullying and harassing people who don't know their way around the legal system.

FL: Hmm. Of course, the Government hopes that the issue will be relieved by more people using mediation. What do you think about that?

EV: Mediation denies litigants what they really want: the chance to have their day in court. As with most progressive family lawyers, I do everything I can to discourage it.

FL: You believe most progressive family lawyers are opposed to mediation?

EV: Oh yes. We have started a fight back against this scourge. I like to call us "Conflict Magnification Professionals".

FL: "Conflict Magnification Professionals"?

EV: Yes. We work to encourage conflict and dispute between parties to family litigation. For their own good, of course.

FL: Of course. On a different subject, what are your thoughts about the Family Justice Review?

EV: Well, obviously I am concerned that any change in law or procedure could simplify things to the extent that those involved in family breakdown may be foolish enough to believe that they can proceed without legal representation. However, I am confident that those responsible for the Review will ensure that this does not happen.

FL: Do you have any views on the shared parenting issue?

EV: None at all. Whatever the law, parents will still fight tooth and nail over the arrangements for their children, so we family lawyers will still have plenty of work to do.

FL: And what about the Law Commission's project on Matrimonial Property, Needs and Agreements. What are your views on pre-nups?

EV: Well, I suppose preparing them is all work for lawyers, but I do worry that they could reduce financial disputes after divorce.

FL: On that subject, some people are proposing that there be a formula for determining financial settlements on divorce. Do you think that would be a good idea?

EV: Perish the thought! Where's the fun in divorce if you can't argue over finances?

FL: And where's the income for lawyers?

EV: Exactly. And on that subject, I have fee-earning to do, so if you would kindly bring this interview to a close and vacate my office, I should be obliged.

FL: Oh, OK. Thank you for your time.

EV: Pleasure. My account will follow in the post.

News Podcast: For the week to the 22nd October 2012

A short summary of last week's top family law news stories and cases. Keep up to date in four minutes twenty seconds!



(If you can't see the audio player above, you can listen to the podcast here.)

Saturday, October 20, 2012

Something for the Weekend: Room 101 - Spike Milligan

Someone mentioned Spike Milligan to me the other day, and that was all the excuse I needed to post a Milligan video (or three). If you can spare half an hour to watch these, you won't be disappointed (Merton is also, of course, excellent):





Friday, October 19, 2012

THE FIRM: Chapter 5 - The Private Investigator


EARLY SUNDAY MORNING, New Dilapidated House. Mike McCheap hasn't slept all night, despite working in the office until eleven o'clock the previous evening. Instead, he has been lying awake worrying about what Inspector Gormless had told him.

Could Hugo Belligerent really have been murdered? If so, by who, and why? More importantly, why did Gormless think he could be in danger? Just what was going on at Venal & Grabbit?

He had decided it was time to find some answers.

He glanced across the bed at his wife Abigail. She looked as gorgeous as ever and, to his relief, was still asleep. He carefully slipped out of the bed and crept into the living room, shutting the bedroom door behind him.

He picked up the telephone handset and walked out onto the balcony, dialling a number as he did so. While the phone rang at the other end, he watched the rising sun light up the graffiti alongside the nearby railway tracks.

Eventually a voice answered: "Eddie Lowlife, Private Investigator. Whoever wants me at this time on a Sunday morning must have a bloody good reason."

"Eddie?" Replies McCheap. "It's Mike. Mike McCheap. Remember me from Cambridge?"

McCheap had instructed Eddie to dig the dirt on one of his law lecturers, to 'ensure' he got a First. What Eddie had come up with was more than enough to ensure a First...

"McCheap? Oh yeah, that kinky law lecturer." Says Eddie. "What can I do for you now?"

McCheap explained what had happened to Hugo, and what Inspector Gormless had told him.

"What I want you to do," he says, "is have a snoop around Venal & Grabbit, and see if there's anything funny going on. Find out whether Hugo was pushed, and if so whether that means I'm in any danger."

"OK." Replies Eddie. "I'll see what I can do."

"Good." Says McCheap. "I'll look forward to hearing from you."

"Just one thing." Says Eddie. "You do know what you're doing? I hear Edgar Venal is not the sort of man you want to cross."

"I know what I'm doing." Replies McCheap, and hangs up.

What he does not know however is that, as a matter of course, Venal & Grabbit Head of Security Bill Devastator taps the phones of all employees...

Thursday, October 18, 2012

Law Makers: Dame Gillian Pugh

Dame Gillian Pugh
Dame Gillian Pugh was appointed a member of the Family Justice Review Panel in 2010. She has been described as 'a pioneer in contemporary childcare services and an important contributor to Government thinking on the education, social care and health services support for disadvantaged children and their families.'

In the mid-1970s she took charge of library and information services at the National Children’s Bureau (NCB), where she remained for two decades.

She was was Chief Executive of Coram, one of the UK's first children’s charities, until her retirement in April 2005, after eight years of service.

In November 2006 she was elected Chair of the NCB, a position which (by pure coincidence) she vacates today.

She was also a member of the Children’s Workforce Development Council, a Board member of the Training and Development Agency for Schools and has held numerous advisory positions to government departments.

She has published widely, including London's Forgotten Children: Thomas Coram and the Foundling Hospital (2008) and Contemporary Issues in the Early Years (5th edition 2009).

She was awarded the DBE in 2005 for services to children and families.

Wednesday, October 17, 2012

GOV.UK - Family Law Resources


The shiny new GOV.UK website launched today, replacing the old Directgov and Business Link sites. I have had a brief look at it and thought it might be useful to set out some of the family law-related resources that it contains.

Before I begin, however, I have to report that in some places the site commits the heinous crime of referring to 'register offices' as 'registry offices'. I trust that this grave error will be corrected, and that the person or persons responsible will be dealt with with the utmost severity.

Whilst I have obviously not looked at it all, the site clearly contains a lot of information, on a large number of subjects. Its navigation, however, leaves something to be desired. There are headings on the home page, which in turn lead to pages with sub-headings. Thereafter, however, you are on your own, presented with a list of topics to scroll down. The list is (mostly) in alphabetic order, but that is not particularly helpful, as the first word in each topic heading is not necessarily a 'key' word for that topic. It appears that the thinking may be that most users should (or will) use the search function, at the top of every page, and this may be the quickest way to find what you want.

Most of the family law-related resources come under the main heading 'Births, deaths, marriages and care', which includes sections on 'Having a child and adoption' and 'Marriage, civil partnership and divorce'.

Family law-related topics in the first of these include Parental rights and responsibilities, Adding a father's name to a birth certificate, Child adoption and several sections on Child maintenance (which will obviously have to be updated shortly when the new scheme is introduced - it will be interesting to see how well the site is kept up-to-date).

Family law-related topics in the marriage, civil partnerships and divorce section include (apart from links to topics mentioned above): Get a divorce, Money and property when a relationship ends, Contact with grandchildren and Divorcing a missing husband or wife.

Elsewhere on the site there is other information that could also be relevant to family breakdown, including Housing and local services, Benefits and Court fees.

Lastly, note that I have not read all of the contents of the various topics mentioned above, so cannot vouch for their accuracy or usefulness. From what I have read, however, it seems that some topics may be somewhat limited in their detail. For example, the section on getting a legal separation makes no mention of separation agreements, which are obviously far more common than judicial separations. As always with advice sites, the difficulty is as much to do with what to leave out, as what to put in.

Family Lore Clinic: How is spousal maintenance calculated?


Unlike child maintenance, there is no formula used to work out the amount of spousal maintenance. How, then, is spousal maintenance calculated?

The first point to note is that the court is under a duty in all cases to consider whether a 'clean break' is appropriate, whereby neither party has any on-going financial obligation towards the other. Accordingly, spousal maintenance orders will only be made where they are appropriate, for example where one spouse's income is insufficient to meet their needs.

Having said that, how is spousal maintenance calculated when it is appropriate?

Firstly, each party must disclose to the other full details of their means, in particular their income and essential outgoings (usually referred to as ‘needs’). This disclosure should be given voluntarily, but if it is not, then the court can order it.

Once disclosure has taken place, the means of the party who seeks the maintenance should be considered, and a calculation made as to the shortfall between their needs and their income – this will indicate their maintenance requirement. If this calculation cannot be agreed, the parties may ask the court to deal with the matter.

Once the maintenance requirement is known, then the ability of the other party to pay that sum should be looked at. If they clearly can pay, then that may be the end of the matter; if they can’t afford the full amount, then there may have to be some adjustment.

It is important to note that there are no hard and fast rules when it comes to the calculation of spousal maintenance, for example a different approach may be appropriate in high-income cases, and there may be other factors that affect it. The above is just intended to give an indication of the sort of approach that is commonly taken.

The court may also make a nominal maintenance order. These are often made in favour of the party who is looking after the (dependent) children. Obviously, there will normally be child maintenance in such cases, but this can be out of the control of the court. Accordingly, some courts will make nominal orders, which the court can increase at a later date if the need should arise, for example if the child maintenance should stop for any reason.

(As usual, this is necessarily a simplification of the law. If you require more details or specific advice, you should consult a specialist family lawyer.)

Tuesday, October 16, 2012

Re J (A Child): When the past needs to be investigated

Lord Justice Munby
A summary of Re J (A Child) [2012] EWCA Civ 1231, in which a father successfully appealed against residence and contact orders.

The case concerned a boy 'J', who is 'about 9½ years old' and whose parents were never married. The parents separated in November 2003, when the mother left the family home taking J with her. In December 2003 the father applied for parental responsibility, residence and contact, and the litigation has continued almost unabated since then.

The history of the litigation is set out in the judgment of Lord Justice Munby, but essentially until 2008 the father was granted and enjoyed periods of contact, which were then disrupted by the mother after a few months. The 'high water mark' of the father's position was when in January 2008 a shared residence order was made by consent, with him having a generous division of care.

In October 2011 the mother issued an application seeking sole residence, supervised contact and no staying contact, and in November the court made an order suspending the order of January 2008, directing that in the interim J was to live with his mother. In April 2012 the father issued an application seeking a sole residence order in place of the suspended joint residence order.

The final hearing took place on 15 May 2012, before Mr Recorder Bryan sitting in the Southend County Court. He ordered that the previous residence and contact orders be discharged, that J reside with his mother and that there be a contact order in favour of the father under which J would, initially at least, spend considerably less time with him than under the January 2008 order.

The father appealed. He put forward three grounds of appeal, but the case was decided upon the first ground: that the Recorder failed to conduct the hearing fairly, in particular by restricting questioning of the mother.

Giving the leading judgment, Lord Justice Munby explained that in her application of October 2011 the mother was opposed to anything other than supervised contact. However, by the time of the hearing she was expressing herself as being "happy" with unsupervised contact. When counsel for the father had tried to question the mother about this change of stance, she was stopped by the Recorder, who told the mother not to answer and asked counsel whether she really wanted the witness "to rake over all her earlier concerns and worries". There then followed this exchange:
Counsel: "Your Honour the problem is ... that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes ... concessions in court that lead to a small step forward. The point I'm making is ... that if we are going to have a stable regime of contact... that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we're back to where we were, square one."

Recorder: "Well I think you will find that the court, at least this court, will want to move forward rather than to linger ... I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction ... to kick it back to the [January 2008 order]."

Counsel: "But Your Honour the reality is ... that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only ... when we have never actually established why the previous arrangements were wrong ... But we're now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I'm trying to get to the bottom of why she feels that that is necessary."

Recorder: "Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?"
Counsel for the father maintained that by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing. Lord Justice Munby found that the father's appeal must be allowed on this ground alone. He stated (at paragraph 32):
"The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J's future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error - and in my judgment he here fell into plain and obvious error - was in rejecting [counsel for the father's] entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation - the cross-examination - that [counsel for the father] wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother's attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed."
In the circumstances he allowed the appeal and ordered a re-trial.

Lord Justice Lewison and Lord Justice Maurice Kay gave consenting judgments.

News Update: 16th October 2012


WELCOME to the Family Lore News Update.

NEWS
High Court awards wife £8.7m in ‘needs’ case involving inherited wealth
In Y v Y [2012] EWHC 2063 (Fam) Mrs Justice Baron has awarded a wife a lump sum of £8,738,000 in a case which, in the light of the wife's needs, required her to 'invade' the husband's inherited assets. Full story: Family Law Week.

Bad weather now blamed for rise in domestic violence
Police have blamed a sharp rise in domestic violence on the weather claiming rain drives up attacks, according to this story in The Telegraph.

Couple win back children from social services after High Court battle
A couple whose two daughters were taken away by social services have been praised by a judge for “weathering the storm” of a lengthy High Court battle to win them back. The London Borough of Sutton v Gray & Others case - see below. Full story: The Telegraph.

Child protection case time limit 'penalises kinship carers'
Family members could be missing out on the chance to become legal guardians for children who can no longer live with their birth parents, due to the new six-month time limit for completing care proceedings in the courts, charities have warned. Full story: Children & Young People Now.

Survey demonstrates ongoing impact of Imerman v Tcheinguiz
Family lawyers are increasingly handling divorce cases in which they have knowledge of concealed assets or income but are unable to rely on any of the documents in court, according to Grant Thornton’s ninth annual matrimonial survey. Full story: New Law Journal.

Fury over Eastenders' 'misleading' social work storyline
Social workers and campaigners have condemned an 'inaccurate' and 'misleading' storyline on the BBC soap Eastenders, which showed a social worker removing a baby from a teenage mother. Full story: Community Care.

CASES
Y v Y [2012] EWHC 2063 (Fam) (27 June 2012)
High Court. Financial remedy case, involving inherited assets, determined on 'needs' basis. Wife awarded a lump sum of £8.7 million, equalling 32.5% of the net assets. Full report: Family Law Week.

Musa & Ors v Holliday & Ors [2012] EWCA Civ 1268 (15 October 2012)
Appeal against order made under the Inheritance (Provision for Family and Dependants) Act 1975. Appeal dismissed. Full report: Bailii.

Kremen v Agrest [2012] EWCA Civ 1266 (18 September 2012)
Applications for permission to appeal the judgment in Kremen v Agrest (No.11) (Financial Remedy: Non-Disclosure: Post-Nuptial Agreement). Full report: Family Law Week.

London Borough of Sutton v Gray & Ors [2012] EWHC 2604 (Fam) (12 October 2012)
Care proceedings in respect of two sisters, one living with grandparents under a Special Guardianship Order, the other with foster parents. The father was exonerated from injuring one child, and issue of the threshold in respect of the other child adjourned. Full report: Bailii. Discussed by suesspiciousminds - see below.

London Borough of Sutton v Gray & Ors [2012] EWHC 2763 (Fam) (12 October 2012)
Further hearing in the above case. The grandparents agreed to that child returning to the mother, and the local authority withdrew their allegations in respect of the other child. Full report: Bailii.

R.P. AND OTHERS v. THE UNITED KINGDOM - 38245/08 - HEJUD [2012] ECHR 1796 (09 October 2012)
The applicant complained about a decision to take her daughter into local authority care, relying on Article 6 (1). Held, there had been no violation of her rights under Article 6(1). Full report: Bailii. See also the UK Human Rights Blog post, below.

Knecht v Romania (App No 10048/10) (2 October 2012)
The applicant had embryos stored at a fertility clinic in Romania. When a criminal investigation took place at the clinic the embryos were moved to the institute of forensic medicine, a State facility, which was not authorised to function as a genetic bank. The woman alleged a breach of her Art 8 rights under the European Convention in respect of her being prevented from becoming a parent. Report: Family Law. Full report: ECHR.

SB v A Local Authority & Ors [2012] EWCA Civ 1269 (10 October 2012)
Care proceedings. Appeal by father against findings of fact. Appeal dismissed. Full report: Bailii.

KH (A child), Re [2012] EWHC B18 (Fam) (05 October 2012)
Application by NHS Trust for declarations in relation to the medical treatment of a severely disabled boy, including the withholding of life-sustaining treatment in the event of a serious deterioration in his condition. Full report: Bailii.

ARTICLES
Enhancing the Role of Grandparents in the Current Legal Landscape
Julie Stather, barrister, of 42 Bedford Row suggests some ways to benefit children by strengthening the position of grandparents. Full article: Family Law Week.

The High Sheriff of Oxfordshire’s Annual Law Lecture
'Out of his shadow: The long struggle of wives under English Law', a speech given by Lord Wilson on the 9th October. Full speech: Supreme Court (PDF).

Common Sense Prevails
"The recent, anonymised judgment in A v A [2012] has come as a welcome relief to divorcing spouses, and to professionals involved in financial remedy proceedings. Individuals' private financial affairs revealed under compulsion through the courts can now ordinarily expect to remain confidential." Says James Copson in Family Law.

BLOGS
A tapestry of justice
A discussion of London Borough of Sutton and Gray 2012 – in which the High Court determined that an earlier finding of fact that a father had shaken a child, causing injuries (and for which father went to prison) was wrong and had been in effect a miscarriage of justice. Full post: suesspiciousminds.

Judge rules brain-damaged Muslim should not be resuscitated
"A man left brain-damaged after a massive heart attack should not be resuscitated, a High Court judge has ruled, despite the likelihood of him wishing to be were he conscious." Full post: Marilyn Stowe Blog.

In the name of God: ultra-orthodox Jewish education not in children’s best interest, rules Court of Appeal.
A discussion of the case Re G (Children). Full post: UK Human Rights Blog.

Autonomy and the role of the Official Solicitor – whose interests are really being represented?
A discussion of the R.P. and others v United Kingdom case (see above). Full post: UK Human Rights Blog.