A brief summary of the essential family law news and cases from the last week:
NEWS Supreme Court to consider applications to vary periodical payments orders under MCA s31(7)
Permission given to husband to appeal by Mills v Mills. Full story: Family Law Week.
Cafcass private law demand
In July 2017, Cafcass received a total of 3,709 new private law cases. This is a 10% increase compared with those received in July 2016. Full story: Cafcass.
Care applications in July 2017
In July 2017, Cafcass received a total of 1,238 care applications. This figure represents a 5% decrease compared with those received in July 2016. Full story: Cafcass.
Supreme Court to hear argument that 'unreasonable behaviour' in divorce is a 'linguistic trap'
Supreme Court grants permission to appeal in Owens case. Full story: Family Law Hub.
Judge approves suicidal girl care plan
A judge who said society should be "ashamed" for not protecting a suicidal girl has approved a care plan for her. Full story: BBC News. See X (A Child) (No 4), below. Family Procedure Rules amended as of today
New divorce form D8 may be used from today. Full story: Family Law Week.
CASES Joy-Morancho v Joy (Dismissal of Variation Application) [2017] EWHC 2086 (Fam) (11 August 2017)
Judgment dismissing husband's application for downward variation of spousal maintenance order. Full report: Bailii.
S v S [2017] EWHC 1298 (Fam) (28 May 2017)
Interim judgment in application by father for return of child to Iran, dealing with issue of expert evidence as to Iranian law and practice. Full report: Bailii.
K and P (Children : Discharge of care order) [2017] EWFC B51 (23 March 2017)
Application by local authority for discharge of care order in respect of two children. Full report: Bailii.
J (A Child : Care Proceedings : Apportionment of Experts' fees) [2017] EWFC B49 (3 August 2017)
Care proceedings involving possible non-accidental injuries to child. Judgment concerning how medical experts' fees should be apportioned between the parties. Full report: Bailii.
X (A Child) (No 4) [2017] EWHC 2084 (Fam) (07 August 2017)
Further judgment in care proceedings concerning a 17 year old girl who has made determined attempts to commit suicide on a large number of occasions. Full report: Bailii.
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The forms needed for couples in England and Wales to file for divorce are set to change. In paper and digital format, the new forms are designed to gather more information from both divorcees. Whilst the paper forms are yet to be released by the Ministry of Justice, a pilot for the digital equivalent is to be extended.
Being used on a trial basis in the East Midlands, the forms have a few key differences from the old one. Whereas all was needed for the current forms was a signature from both parties, for the new ones, a statement of truth is needed. This is to help give the authorities an idea of why couples are filing for divorce.
The statement requires the person(s) filling in the form to explain why they want a separation, being as descriptive and honest as possible. This could cause some confusion for those couples who have different versions of events leading up to divorce. It isn’t the only big change being introduced to the way in which couples can divorce.
Civil Partnerships
A version of the new divorce form will be introduced for couples in civil partnerships. As with married couples, their form will also have a statement of truth section, which needs to be filled in before it gets signed off. This step recognises that couples are looking to alternatives to marriage as a means of expressing their love for one another.
As for the pilot electronic form, this needs to be printed off before it can be agreed by the relevant bodies. Expert family law solicitors can assist with filling in the new divorce form. The pilot, which started towards the end of July, will gauge whether or not paperless divorces and separations are set to become the norm.
The most recent amendment to Form D8 was made this month, but other aspects of divorce or dissolution remain unchanged for now. Whilst one change may not seem like that much, knowing how to write the statement of truth may require plenty of thought from both divorcees.
Divorce by Phone
With the modified divorce form now available online, in theory, would-be divorcees could fill it in via their smartphones. This could cause some confusion, particularly if predictive text is used. Seeking specialist divorce law advice should help anyone choosing the electronic pilot over the paper form will be the best course of action.
However the form is filled in, if the electronic pilot succeeds, it should be rolled out across England and Wales at some point in 2018. The early signs thus far look promising for this shift towards digital divorces. Until then, divorce lawyers and offices nationwide will need to keep stocking up on paper forms and have pens at the ready.
A brief summary of the essential family law news and cases from the last week:
NEWS Senior judge: Fathers with valuable homes should pay more child support
Estranged fathers with expensive homes should be forced to pay more towards the upbringing of their children, one of Britain's most senior family judges has said. Full story: The Telegraph. See Green v Adams, below.
Judge warns of 'blood on our hands' if suicidal girl is forced out of secure care
Sir James Munby, head of high court’s family division, says he is ‘ashamed and embarrassed’ that no hospital place has been found for 17-year-old. Full story: The Guardian. See X (A Child) (No 3), below.
Government updates child maintenance application fee guidance
The Department for Work and Pensions has updated its guidance which sets out how it will decide if a victim of domestic violence or abuse is exempt from the Child Maintenance Service application fee. Full story: Family Law.
Judge dismisses council’s bid to block parents’ adoption petition
Parents' right to campaign outweighs risk to children, court finds. Full story: Community Care. See Southend Borough Council v CO & Anor.
Digital divorce update
Legal stationers are stocking up on new family law forms which will need to be used by the end of the summer. Full story: Family Law.
CASES Green v Adams [2017] EWFC 52 (03 August 2017)
Applications arising from order requiring the father to pay a lump sum to the mother, under Schedule 1 CA 1989. Full report: Bailii.
AM v DF [2017] EWHC 2034 (Fam) (01 August 2017)
Appeal by father against order allowing mother to take children to Iraq for four weeks. Appeal allowed. Full report: Bailii.
X (A Child) (No 3) [2017] EWHC 2036 (Fam) (03 August 2017)
Further judgment in care proceedings concerning a 17 year old girl who has made determined attempts to commit suicide on a large number of occasions. 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.
Family court judges need to extend their imaginations beyond writing verdicts in the form of ‘personable’ letters to family members, says a leading family charity.
Mr Peter Justice Jackson made headlines in late July when he sent a 14 year-old boy a personalised letter, outlining his reasons for denying the teenager the outcome he sought – to be allowed to move abroad with his dad.
But National Family Mediation says we should not be deceived by the novel approach.
“Make no mistake, it’s going to be very hard for Sam to digest the way the court saw his father,” says Jane Robey, the charity’s CEO.
“The language and delivery of the verdict may be worlds away from what we expect. Yet the basic fact that again here is a judge handing down a life-changing verdict to a young person based on evidence he accrued during a long and expensive court case.”
She added that it “doesn’t alter the fact that as ever in divorce and separation cases that go to a court, parents’ and children’s futures get determined by a judge: the one person on the scene who knows least about the family.
“I say it’s high time for the judiciary to become more creative and vocal in its efforts to avoid court battles that expose the dirty laundry of a separating family, often in the full glare of the people most affected: the children.
“Judges already have powers to direct people who come before them towards alternatives.”
In an article for Huffington Post, Jane Robey explains there is capacity within the Children and Families Act to order couples to attend a Mediation Information and Assessment Meeting, and explains how the charity was awarded a grant by the Department for Work and Pensions to develop an in-court mediation pilot programme.
“Our dispute resolution experts, based on hand in a sample of family courts, managed to settle cases just like this one in a much more constructive and amicable way.
“Crucially they avoided families involved having all their lives laid bare before a court. Many had already suffered years of court room squabbles but mediation helped them reach dignified agreements: settlements that were fully supported by the judges concerned.”
“We still await word from the DWP about a national roll-out of that in-court mediation programme that could transform the lives of thousands of separated families. And think of the money it could save the taxpayer.
“Transformative change could be a few heartbeats away, as long as the will exists. Judges and courts could manage their parenting, property and money dispute cases in a fresh way, using their existing powers to better effect, whilst seriously protecting the families’ right to a private life.
“A novel approach to writing a verdict is one thing: but it’s time for judges to use their imaginations in a completely different way.”
Damn, just broke my rule not to use a song lyric for the title of a blog post. Again. Still, that lyric did seem particularly apposite, at least in respect of the first of my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:
A brief summary of the essential family law news and cases from the last week:
NEWS Mother wins court battle to change child's 'tainted' middle name
A mother who no longer liked her child's middle name has won the right to have it removed in a legal challenge costing thousands of pounds in legal aid. Full report: The Telegraph. See Re C, below.
Judge writes personal letter to teen after High Court battle
A judge has written a personal letter to a 14-year-old boy explaining why he has rejected his request to move with his father to Scandinavia. Full story: BBC News. See report, below.
Domestic violence a factor in majority of child contact applications, research finds
Nearly two-thirds of applications heard in the family courts for contact with a child feature some kind of domestic violence allegation, a study has found. Full story: Children & Young People Now.
Supreme Court allows wife’s appeal in Birch v Birch
Court may hear wife’s application to be released from undertaking to sell former matrimonial home. Full story: Family Law Week. See report, below.
High Court affirms declaration that Charlie Gard’s life support may be withdrawn
Parents withdraw objection to GOSH’s application. Full story: Family Law Week. See report, below.
CASES Amin v Amin [2017] EWCA Civ 1114 (25 July 2017)
Appeal by husband against order made pursuant to Part III MFPA 1984. Appeal dismissed. Full report: Bailii.
D (Appeal : Failure of Case Management) [2017] EWHC 1907 (Fam) (24 July 2017)
Appeal by mother in proceedings relating to contact, against decision that allegedly abusive father could cross-examine the mother. Appeal allowed. Full report: Bailii.
L (Children) [2017] EWCA Civ 1137 (27 July 2017)
Appeal against care orders in relation to two children. Appeal dismissed. Full report: Bailii.
A (Letter to a Young Person), Re [2017] EWFC 48 (26 July 2017)
Application by father to remove child to a Scandinavian country. Judgment in form of letter to the child. Full report: Bailii.
C (A Child : Removal of forename). ), Re [2017] EWFC B44 (26 July 2017)
Appeal by father against order giving mother permission to remove child's middle name. Appeal dismissed. Full report: Bailii.
Birch v Birch [2017] UKSC 53 (26 July 2017)
Appeal by wife against decision that the court had no jurisdiction to hear an application to be released from undertaking to sell former matrimonial home. Appeal allowed. Full report: Bailii. N-S (Children), Re [2017] EWCA Civ 1121 (25 July 2017)
Appeal by father against care and placement orders in respect of four children, complaining of lack of adequate judicial reasoning for the orders. Appeal dismissed. Full report: Bailii.
Great Ormond Street Hospital -v- Yates and Gard [2017] EWHC 1909 (Fam) (24 July 2017)
Application by NHS Trust for an order that it is lawful and in best interests of child with brain damage for artificial ventilation to be withdrawn. Further hearing to consider fresh evidence. Full report: Bailii.
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Lord Wilson gives the judgment of the Supreme Court
BACKGROUND TO THE APPEAL
The husband and wife entered into a consent order on 28 July 2010. Part of the order provided that the husband should transfer to the wife his legal and beneficial interest in the matrimonial home subject to the mortgage so that the wife could continue to live there with the two children of the family. In return the wife undertook at para 4.3 of the recitals to discharge all mortgage payments, to indemnify the husband against any liability under it and to use her best endeavours to release him from the covenants under it. Then, crucially, she undertook at para 4.4 of the recitals that, if the husband had not been released from his mortgage covenants by 30 September 2012, she would secure his release by placing the home on the market for sale and proceeding to sell it.
On 18 November 2011 the wife, who had (and still has) duly discharged the mortgage payments, issued an application to “vary” her undertaking at para 4.4. She explained that she had not been able to secure the husband’s release from his mortgage covenants and would not be able to do so by 30 September 2012. The children were in schools in the vicinity of their home and it would be gravely damaging to their interests for them to have to move home while still at school. In such circumstances she sought a “variation” of the undertaking at para 4.4, so as to postpone for seven years her obligation to secure the husband’s release from his covenants under the mortgage by sale of the home until 15 August 2019, being the date of their son’s 18th birthday.
The husband argued that the court had no jurisdiction to hear the wife’s application and requested that the court rule on that preliminary issue. He argued that the wife’s undertaking was equivalent to an order for sale under section 24A of the Matrimonial Causes Act 1973 (“the Act”). And he relied on the Court of Appeal’s decision in Omielan v Omielan [1996] 2 FLR 306 that jurisdiction to vary the latter did not exist where it related to the “territory” of the property adjustment order.
When the wife’s appeal from an adverse decision below came before the Court of Appeal it held that its jurisdiction to hear the application was a “formal” jurisdiction which existed only “technically”; that scope for its exercise was “extremely limited indeed”; and that there was no basis for its exercise upon the wife’s application.
JUDGMENT
The Supreme Court by a majority of 4 to 1 allows the wife’s appeal and holds that jurisdiction exists to hear the wife’s application. Lord Wilson gives the lead majority judgment, with which Lady Hale, Lord Kerr and Lord Carnwath agree. Lord Hughes gives a dissenting judgment.
REASONS FOR THE JUDGMENT
The description of the application as being to “vary” the wife’s undertaking is confused. The court’s power is only to grant or refuse an application for release from the undertaking. Although the court’s exercise of its power may result in something which looks like a variation of an undertaking, if it decides to accept a further undertaking, it is the product of a different process of reasoning [5].
The courts below wrongly concluded that they did not have jurisdiction to release the wife from her undertaking. They failed to distinguish between the existence of the court’s jurisdiction to release the wife from her undertaking, and the exercise of its jurisdiction [6]. The case law indicates that there is full jurisdiction to hear the wife’s application [12]. Further, in circumstances where the undertaking in para 4.4 could have been framed as an order for sale of the property under section 24A of the Act, variable under section 31(2)(f), it would be illogical for the existence and exercise of jurisdiction to grant release from the undertaking to differ from those in relation to the variation of any such order [17-18]. The equivalence of the wife’s para 4.4 undertaking with a section 24A order for sale seems clearly to confirm the existence of the court’s jurisdiction to hear her application for release from it [19]. Lord Wilson is unable to subscribe to the Court of Appeal’s determination of the appeal in Omielan by reference to the non-existence of jurisdiction rather than a refusal to exercise its jurisdiction. Where Parliament has conferred jurisdiction on a court, there is no scope for a court to say part of it does not exist. The terms of a financial order are often interlinked and therefore it is difficult to apply the concept of different territories to such an order. The demarcation of territories within the order is no proper criterion for identifying the existence of a jurisdiction [27].
Parliament did not in section 31(7) or elsewhere in the Act make a change of circumstances a condition for the exercise of jurisdiction to vary a section 24A(1) order for sale. However, unless there has been a significant change of circumstances since the order was made, grounds for variation of it under section 31 seem hard to conceive [15].
The court remits to HHJ Waller the inquiry into whether the court’s jurisdiction to vary the undertaking should be exercised. In light of the equivalence of the wife’s undertaking with a section 24A order for sale, his inquiry will be conducted in accordance with section 31(7) of the Act. He will give first consideration to the welfare of the two children; but it is a consideration which may be outweighed by other factors. He will have regard to all relevant circumstances including in particular, whether the wife can establish a significant change of circumstances since her undertaking was given and whether, and if so to what extent, the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants [29]. If the court finds that the husband has suffered, and/or would be likely to suffer, prejudice as a result of delay in selling the home, the court might favour compensating him by asking the wife to make provision for him out of the ultimate net proceeds as a condition of release [30].
Lord Hughes gives a dissenting judgment, not on the existence of the jurisdiction to vary a section 24A order for sale, or its equivalent achieved via an undertaking, but on the principles for its exercise. It must be kept in mind that the section 24A order is ancillary to a capital order and that final capital orders cannot be varied in their substance (whether or not there is a change of circumstances). Lord Hughes states that the acid test should be whether the application is in substance (impermissibly) to vary or alter the final order or whether it is (permissibly) to support it by working out how it should be carried into effect [54]. The application in the present case is one which attempts to vary, not to carry into effect, the originally agreed and court-endorsed order and therefore the Court of Appeal was right to hold that it was bound to fail [57]. Lord Hughes would dismiss the appeal [58].
References in square brackets are to paragraphs in the judgment, which can be found here.
A brief summary of the essential family law news and cases from the last week:
NEWS International meeting addresses domestic / family violence and the 1980 Child Abduction Convention
New Guide to Good Practice on Article 13(1)(b) developed. Full story: Family Law Week.
Mr Justice Peter Jackson appointed to Court of Appeal
Seven new appointments to Court of Appeal. Full story: Family Law Week.
Lady Hale appointed next President of Supreme Court, alongside three new Justices
Baroness Hale of Richmond will succeed Lord Neuberger of Abbotsbury as President of the UK Supreme Court, it was announced today, alongside three additional appointments to the UK's top appeal court. Full story: The Supreme Court.
Judge allows council to submit evidence on family gained from private investigator
But Judge Moradifar ruled allegations the covert surveillance breached parents' human rights should be dealt with separately. Full story: Community Care.
Judge praises ‘significant changes’ made by parents during care proceedings
A local authority withdrew its recommendation that a child be removed into care after the parents made changes during proceedings. Full story: Community Care.
Marriage and divorce on the rise at 65 and over
Increases explained by longer life expectancy. Full story: Family Law Week.
The Family Procedure (Amendment No. 2) Rules 2017
These Rules amend the Family Procedure Rules 2010 from 7 August 2017. Statutory Instrument. For further details, see this article.
Consultation launched to facilitate de-linking of financial applications from divorce / dissolution proceedings
The Ministry of Justice has launched a consultation on proposed amendments to Part 9 of the Family Procedure Rules (FPR): Application for a financial remedy. Full story: Family Law Week.
Police and not council must pay for special advocates in family case, says judge
The police and not a local authority must pay for the provision of special advocates in a rare example of them being required for a Family Court case, Cobb J has ruled. Full story: Local Government Lawyer. See R (Closed Material Procedure : Special Advocates : Funding).
CASES Casey v Cervi [2017] EWHC 1669 (Fam) (05 July 2017)
Appeal by mother against orders recognising and permitting enforcement of Irish custody order in favour of the father. Appeal allowed. Full report: Family Law Week.
A Local Authority v A & Ors [2016] EWHC 2635 (Fam) (19 September 2016)
Care proceedings in respect of a child living with a Nigerian couple who were not the biological parents. Full report: Bailii.
An NHS Hospital Trust v GM & Ors [2017] EWHC 1710 (Fam) (30 June 2017)
Judgment concerning the continued treatment of a child who had suffered severe brain damage. 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.
My posts this week on Marilyn Stowe’s Family Law & Divorce Blog included another couple of old cases, a Scottish pension sharing case and some thoughts as to why so many are dissatisfied with their experience of the family justice system:
A brief summary of the essential family law news and cases from the last week:
NEWS Judge warns double-booked lawyers: We will start case without you
A family judge has issued a public warning to solicitors and barristers to avoid 'cross courting' that impacts on the progress of a case. Full story: Law Society Gazette.
Outdated law of wills needs 'overhaul'
Law Commission consults on proposals to ease strict rules. Full story: Family Law Week.
Pension inequality ended for same-gender couples
Supreme Court judgment finds Equality Act exemption unlawful. Full story: Family Law Week.
Care applications to Cafcass in June up 3 per cent on a year ago
1,319 care applications received. Full story: Family Law Week.
Private law applications to Cafcass in June up 12 per cent on a year ago
Highest number of new cases in a month for more than three years. Full story: Family Law Week.
Charity issues guidance on publication of judgments about family matters
The Transparency Project has published a new guide designed to help parties in the family justice system “navigate the complicated issue of publishing judgments about private family matters”. Full story: Local Government Lawyer.
CASES Human Fertilisation And Embryology Act (Cases AD, AE, AF, AG and AH : No 2) [2017] EWHC 1782 (Fam) (13 July 2017)
Guidance by President for use in cases in which partner of mother of child born as a result of IVF treatment seeks a declaration that they are the child's legal parent, following administrative failure by clinic providing treatment. Full report: Bailii.
C (Children) [2017] EWCA Civ 980 (12 July 2017)
Appeal by father against refusal of application for summary return of children to Australia. Full report: Bailii.
P-K (Children) [2017] EWCA Civ 965 (12 July 2017)
Application for permission to appeal findings of fact made in public law children proceedings. Full report: Bailii.
S-F (A Child) [2017] EWCA Civ 964 (12 July 2017)
Appeal by local authority against refusal to make a placement order. Appeal dismissed. Full report: Bailii.
E and N (No 2), Re [2017] EWFC B27 (06 July 2017)
Judgment concerning the admission of potentially illegally obtained surveillance evidence in care proceedings. Full report: Bailii.
SA v FA (setting aside consent order on ground of duress) [2017] EWHC 1731 (Fam) (16 May 2017)
Application by mother to set aside consent order dismissing proceedings relating to the return of children from Iraq, on the ground of duress. Application granted. Full report: Bailii.
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Responding to the report being launched today (10 July) by the Family Rights Group which highlighted the number of local authorities using Foster to Adopt placements along with Section 20 which allows parents to place their child in care on a voluntary basis, Jeanne Kaniuk OBE and Managing Director of Coram’s Adoption Services said:
“We wholeheartedly support this piece of work by the Family Rights Group - it is inappropriate and risks violating parents’ rights when fostering for adoption placements are being used without family court proceedings. Parents who place their child in care voluntarily would not understand the implications of a Foster for Adoption placement without legal advice. If parents voluntarily wish to relinquish their child for adoption, they receive counselling to ensure that they understand the implications of this. However unless there is an unequivocal request by the parent/s for adoption, children should only be placed in Foster for Adoption placements if they are already subject to court proceedings, so that the parents’ rights are protected and the long term welfare of the child can be assessed.
“We fully support the FRG’s call for parents to receive free legal advice prior to a Foster for Adoption placement being made so that they fully understand the process by which their child is being placed and the rights they have, and our Coram Children’s Legal Centre works hard to support parents facing such situations.”
A brief summary of the essential family law news and cases from the last week:
NEWS Charlie Gard hospital applies to high court for fresh hearing
Great Ormond Street hospital says move comes ‘in light of claims of new evidence relating to potential treatment’. Full story: The Guardian.
Privy Council considers beneficial ownership case
The Judicial Committee of the Privy Council has dismissed an appeal by a Jamaican husband against a ruling of the Court of Appeal of Jamaica that the beneficial interest of a property bought by a married couple was to be held in equal shares. Full story: Family Law Week. See Miller v Miller, below.
CoA to decide whether English court can consider section 27 maintenance application when Scottish court is dealing with the divorce
Case concerns interpretation of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011. Full story: Family Law Week.
Legal Aid Agency guidance on a model approach to civil billing
The Legal Aid Agency has set out a standard approach to help turn around your work more efficiently when submitting online and paper bills. Full story: Family Law.
Children’s Commissioner’s report reveals millions of children in England living vulnerable or high risk lives
Report highlights ‘worrying gaps’ in official data. Full story: Family Law Week.
Settlement Conferences Pilot
Sir James Munby, President of the Family Division, has issued the following guidance in respect of the settlement conferences pilot. Full story: Family Law Week.
Cafcass publishes final version of guidance on the use of professional time to benefit children
Guidance effective from 1 July 2017. Full story: Family Law Week.
CASES Miller & Anor v Miller & Anor (Jamaica) [2017] UKPC 21 (6 July 2017)
Appeal by a Jamaican husband against a ruling of the Court of Appeal of Jamaica that the beneficial interest of a property bought by a married couple was to be held in equal shares. Appeal dismissed. Full report: Bailii.
W v The Secretary of State for the Home Department [2017] EWHC 1733 (Fam) (07 July 2017)
Application for recognition of a Nigerian adoption order. Full report: Bailii.
The London Borough of Tower Hamlets v M & Ors [2017] EWHC 692 (Fam) (31 March 2017)
Care proceedings in which a disclosure order was made against the Secretary of State for the Home Department (SSHD), seeking information about any extremist or radicalised conduct by the adults in the family. Application by SSHD for public interest immunity. Full report: Bailii.
Gibbs v Gibbs [2017] EWHC 1700 (Fam) (29 June 2017)
Application by father for committal of mother for breach of order restraining her from disclosing material relating to earlier Children Act proceedings. Full report: Bailii.
CB (International Relocation: Domestic Abuse: Child Arrangements), Re [2017] EWFC 39 (30 June 2017)
Cross applications by father for child arrangements order and by mother for permission to remove child from the jurisdiction to reside with her permanently in Portugal. 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 new guide will help parties caught up in the family justice system navigate the complicated issue of publishing judgments about private family matters. The Transparency Project's guide aims to help those dealing with cases involving privacy issues affecting children and vulnerable adults.
The guide is directed at families and the professionals working with them, to help them think through the possible pros and cons, and the potential practical consequences of publication. Rather than focusing just on issues of anonymisation and jigsaw identification, it aims to involve families in the decision making process about publication, and with the process of anonymising judgments so that privacy protection is robust and effective.
Lucy Reed, Chair of The Transparency Project said,
"We identified that there were no materials for families involved in family court cases to help them understand when, why and how judgments in their case might be published. Our guide aims to fill that gap. It isn't practical or appropriate for every judgment in every family court case to be published, but we hope that it will both help make sure judgments are reliably anonymised before publication, and help families and professionals to support publication where that can be achieved without jeopardising the family's privacy or welfare. We hope that our guide will be used by lawyers, social workers and children's guardians to talk through questions of publication of judgments with the children and parents they are working with, so that safe transparency can be facilitated where possible, and unnecessary anxiety avoided."
It can be used as a tool to assist parents and their lawyers to discuss and think through whether publication is likely or appropriate in their case, and if so how it should be done, and can be used by social workers or children's guardians to work through similar issues with older children, depending on their understanding and maturity.
A brief summary of the essential family law news and cases from the last week:
NEWS 'Access Denied': Law Society's 25-point plan to salvage civil justice
The Law Society is calling for a root-and-branch overhaul of civil legal aid provision to help repair the damage inflicted by deep cuts four years ago. Full story: Law Society Gazette.
Length of care proceedings begins to creep up
New cases started in family courts up 4% on a year ago. Full story: Family Law Week.
MIAMs down 5% on year ago
Mediation starts also down on a year ago. Full story: Family Law Week.
Paid McKenzie’s conduct ‘utterly inconceivable’, says judge
A paid McKenzie friend has been denied permission to appeal against a decision that banned him from being involved in a family dispute and criticised for describing himself as a ‘quasi-solicitor’. Full story: Law Society Gazette. See report, below.
Charlie Gard parents lose European court appeal
Judges at the European Court of Human Rights have rejected a plea from the parents of terminally-ill baby Charlie Gard to intervene in his case. Full story: BBC News.
British Sikh couple take legal action after being advised not to adopt
A British Sikh couple are bringing a legal case, claiming they were advised by an adoption agency not to apply because of their “cultural heritage”. Full story: The Guardian.
“Children Deserve More” – Child Maintenance Service loopholes deny children the support they deserve
The child maintenance system is failing to ensure children receive the appropriate level of support they are entitled to, according to a new report by Gingerbread. Full story: Gingerbread.
CASES Welch v Welch [2017] EWFC B32 (19 June 2017)
Application by husband for declaration that sale documents could be sent to wife without naming purchasers, to prevent wife frustrating order for sale. Full report: Bailii.
M (Children) [2017] EWCA Civ 891 (29 June 2017)
Appeal by father against refusal to enforce Estonian contact order, on the basis that the order required the contact to be supervised, and there was no child welfare authority or child care professional willing to supervise the contact and no order could be made to compel this. Appeal dismissed. Full report: Bailii.
H (Children : exclusion of Mackenzie friend) [2017] EWFC B31 (05 March 2017)
Application by mother in contact proceedings for permission to appeal against order excluding McKenzie friend from future involvement with the proceedings. Permission refused. Full report: Bailii.
A Local Authority v The Mother & Anor [2017] EWHC 1515 (Fam) (19 May 2017)
Care proceedings regarding baby of mother from ethnic minority community, in which the mother agreed to adoption but did not want the father to be given notice of the proceedings, as the mother feared the reaction from her family and in the community within which she lives. Full report: Bailii.
CS & Anor v PD [2017] EWHC 1514 (Fam) (07 April 2017)
Application by mother to set aside order requiring her to return children to America, on the basis of a subsequent change in circumstances, namely a deterioration in her mental health, which could deteriorate further if the children had to return to America. Full report: Bailii.
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So said the late, great, Ian Dury. It may come as a surprise to some, but that excellent piece of advice can also apply to family law cases, as explained in one of my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:
Resolution, who represent 6,500 family justice professionals, has published a report highlighting the growing need for specialist financial advisers in family law. The report has been published in partnership with the Personal Finance Society, the professional body for the UK financial planning profession.
The report, authored by a group of financial advisers and planners, highlights that there are currently only 42 financial adviser specialists accredited in family law, which is just one for every 5,000 people that divorce each year.
As well as exploring this demand for skilled financial advisers in family law, the report also sets out the long-term sustainability for financial advisers, and the skills required for success within this field.
Nigel Shepherd, national chair of Resolution, said:
“We know from talking to financial planners and advisers who are already Resolution members that the world of financial advice is changing.
“What clients want is sound guidance and trusted support. This is especially true in times of change or upheaval, and they do not come much more unsettling than a divorce or separation.
“Advising those going through a divorce or separation is a very specialist area. There are real opportunities for those financial advisers that are able to position themselves as experts in the field, and by being part of Resolution they have great access to a large, unsaturated market.”
Keith Richards, Chief Executive of the Personal Finance Society, added:
“In high stress situations, such as divorce or the loss of a partner, emotions can make focusing on the practical aspects of personal finance decisions extremely difficult. Having access to trusted financial advice as part of an integral and supportive professional network at such a key stage in life can be invaluable.
“Professional financial planning gives consumers peace of mind that their personal finances are aligned with their future aspirations and goals.”
Financial advisers are crucial in every aspect of a family case, and Resolution members are “crying out” for specialist advisers.
One Resolution member - a family lawyer, said:
“99.9% of our cases are about the financial needs for the separating couple - how much they require to buy a house, what their mortgage capacity is. It’s about what they need in terms of an income.
“This involves looking at investments to see what income this can provide for them. And importantly, it’s also about what they’re going to need at retirement. It’s very rare I see a case where financial input isn’t needed at some stage.”
There are a number of different professions – solicitors, mediators, family consultants and barristers – that all come under the family justice banner and work regularly with financial advisers. According to Resolution, all these professions acknowledge that there is a shortage of financial advisers in this field.
One family mediator says in the report “I would like to involve financial advisers more in all my cases, but at the moment there just aren’t enough of them working in this area. I have two or three that I am close to… but they are really, really busy!”
Through this report, Resolution hopes more financial advisers will see the benefits of working in the divorce and separation market, stating they are well-placed to help new entrants build their business.
Nigel Shepherd, national chair of Resolution, said:
“At Resolution, we already have a network of 6,500 family justice professionals that all share the same positive values and principles about divorce and separation. We have the right infrastructure to help financial advisers meet the right family lawyers.”
A brief summary of the essential family law news and cases from the last week:
NEWS Mrs Justice Roberts gives comprehensive summary of the law regarding sham trusts
Trust disclosed in Form E found to be genuine. Full story: Family Law Week. See ND v SD, below.
Government announces draft Domestic Violence and Abuse Bill
Queen’s Speech includes draft legislation to transform approach to domestic violence. Full story: Family Law Week.
Divorces in 2015 fell by 9 per cent compared with previous year
Fall in divorces is consistent with decline in new marriages. Full story: Family Law Week.
The Transparency Pilot: A note from the Vice President of the Court of Protection
On 20 June 2017 Mr Justice Charles, Vice President of the Court of Protection, issued the following note. Full story: Family Law Week.
Life support must continue for baby at centre of legal battle
Terminally ill Charlie Gard to remain on life support for three weeks while European court of human rights considers case. Full story: The Guardian. See this Supreme Court judgment. President of Family Division circular: Amendment to Practice Direction PD12D – Interviewing Wards of Court
On 4 May 2017 I handed down judgment In the matter of a Ward of Court [2017] EWHC 1022 (Fam). Full story: Courts and Tribunals Judiciary.
CASES A Local Authority v HB (Alleged Risk of Radicalisation and Abduction) [2017] EWHC 1437 (Fam) (26 May 2017)
Applications by local authority under inherent jurisdiction and for care orders in respect of two children who were believed to be at risk of being radicalised. Full report: Bailii.
ND v SD & Ors [2017] EWHC 1507 (Fam) (21 June 2017)
Preliminary hearing in financial remedies proceedings, dealing with issue of whether a trust was genuine or, as the wife claimed, a sham. Full report: Bailii.
GP (Wrongful Removal) [2017] EWHC 1480 (Fam) (20 June 2017)
Application by father for return of child to Italy, in a case in which the mother had been sentenced to 1 year in prison for the removal of the child by the Italian court. Full report: Bailii.
R v B & Ors [2017] EWFC 33 (17 March 2017)
Hearing of husband's financial remedies application, including finding that the husband had engaged in conduct that it would be inequitable to disregard. Full report: Bailii.
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A new report from leading children’s rights organisation Coram Children’s Legal Centre (CCLC) highlights the fate of hundreds of thousands of children and young people who, despite having been brought up in the UK, are trapped in precarious situations because they are unable to secure permanent status in the UK.
Entitled This Is My Home and highlighted in this evening’s (Monday 26 June) episode of Dispatches on Channel 4, CCLC’s report explores the challenges on young people’s lives of living with uncertain immigration status and the impact on this group of children as the UK leaves the EU.
Approximately 120,000 children in the UK are undocumented, 65,000 of whom were born here. Without documentation, a young person cannot work, open a bank account or access sources of support such as housing, and is cut off from college and university. They are left vulnerable to poverty and at risk from exploitation.
Obstacles to children achieving permanent status which This Is My Home highlights include lack of free and quality legal representation, unaffordable application fees with very limited fee waivers, and complex law and policy.
The report’s author and CCLC’s Head of Policy and Programmes, Kamena Dorling, said: “Thousands of undocumented children and young people will have grown up in the UK, have been educated here, and will think of themselves as British. Even if they manage to make an immigration application, they will usually only be granted 2 ½ years leave and will have to wait ten years before they can apply for indefinite leave to remain.
“During this period they have to make five further applications, and face over £8,000 in fees and charges, while living in a state of insecurity. They are prevented from legally participating in and contributing to the communities in which they live and, in many cases have lived, all their lives.”
Recommendations to improve the lives of undocumented children and young people outlined in This Is My Home include:
A shorter route to permanent status for long resident children and young people and lower application fees
Better Home Office decision making on children and young peoples’ long residence cases in line with established law
An urgent review of children and young people’s needs for legal services and at least the reinstatement of legal aid for separated children’s immigration status
Information for social workers and improved local authority practice through training and designated social care leads.
Dr Carol Homden, CBE and Chief Executive of Coram said: “The rights of all children should be protected and an upheld without exception. As Brexit negotiations commence, and we wait to fully understand the fate of EU children in the UK, it is more important than ever to ensure that children who have grown up here are able to have secure status and build their futures in this country.”
New headaches for justice Ministers follow flopped 2014 family legislation
Three years after it became compulsory for separating couples to consider mediating agreements before taking their cases to court, it has emerged that only four out of ten are complying with the landmark legislation.
Introduced in April 2014, the law made it compulsory for separating couples to attend a Mediation Information and Assessment Meeting (MIAM) before they can apply for a court order to settle disputes over parenting, finance and property.
But figures obtained by National Family Mediation (NFM) show that in 2016 over 60 per cent of couples ignored the law. Of nearly 90,000 applications for private law proceedings to a family court, only 35,627 had followed the MIAM process.
NFM Chief Executive, Jane Robey, says: “By making the consideration of mediated settlements compulsory, the government’s aim was help tens of thousands of couples who separate each year save money, time and stress in making post-divorce arrangements.
“Only four out of ten couples are even attending the initial mediation awareness meeting, let alone following that route through to its conclusion.
“Ministers need to get to grips with what’s going on and explain these figures. Until they do so, the 2014 legislation, though well-intentioned, will be seen as a failure.
Box-ticking exercise
“Are solicitors finding their way around the law, encouraging their clients to exempt themselves from mediation, so that they can carry on with the case and carry on charging their clients? We are certainly seeing an increasing number of clients who have been told by their solicitor “go and see a mediator, get your form signed, and then we can go to court”. Those solicitors are treating the new law like a box-ticking exercise.
“The role of family courts is pivotal, and we need to know how rigorously they are monitoring applications and checking compliance. There is absolutely no evidence that courts are using their powers to direct people to attend a meeting with a mediator and instead the courts allow the system to remain clogged up when there are effective alternatives available.
“The government surely needs to be more instrumental in ensuring that the law is properly enforced so that much more mediation is delivered and many more families avoid high cost damaging litigation, achieving better outcomes for the whole family.
“At the very least Ministers need to provide more support to inform, educate and publicise the fact that MIAMs are compulsory so they ensure that the law is properly enforced and that much more mediation is delivered.”
The ‘traditional’ route for divorce sees a solicitor’s office and the court room as the first stop for separating couples looking to make arrangements over property, finance and children. Mediation enables and empowers families to take control over their own destiny, rather than handing it over to a family court judge. National Family Mediation’s expert professionals help separating couples agree settlements on property, finance and parenting issues without the need for a courtroom drama. They achieve full agreement in over 80 per cent of cases.
A timely message from Lord Thomas - Like, I suspect, most lawyers, I was pleased to read what he had to say last week about the relationship between the courts and the State.
If the May half term was a struggle as a separated parent, think what the summer holiday will bring
As children start to look forward to their long school holiday, staff at a national family charity are urging separated parents to head off summer nightmares by organising a Parenting Plan.
“The summer school holiday brings childcare headaches for separated couples, and for many those six weeks are a parenting nightmare,” says Jane Robey, Chief Executive of National Family Mediation.
She said that a number of factors force separated couples into crisis during the summer, including changes in established daily routines, and the expense of keeping family members entertained.
“Separated families often find the summer holiday is the time when parenting agreements imposed on them by courts prove to be unworkable.
“Arrangements that were imposed on them by divorce courts can be exposed as being in nobody’s interests. Pick-up, drop-offs and living arrangements that have been tolerable in term-time become inadequate when the long holiday comes.
“Resentments resurface, hostilities accelerate, and the child can be caught helplessly in the middle,” she adds.
She highlights lifeline help for parents facing a miserable summer: “A Parenting Plan is an agreement made by separated parents, covering how the children will be supported and cared for in the years after separation,” she says.
“Its value is that you both tailor it to suit your own circumstances. Over time, as the lives of separated families change, the Plan can be revisited. It’s not just the parents whose needs change; the children’s do too as they grow up."
To find out more, call NFM on 0300 4000 636 or visit www.nfm.org.uk.
A brief summary of the essential family law news and cases from the last week:
NEWS Court of Appeal determines that application of ‘sharing principle’ is unfair in short marriage
Julie Sharp has been successful in her appeal against the lower court's order which had awarded capital totalling £2.725 million to the husband, which represented exactly 50% of the total matrimonial assets of £5.45 million (after deductions and concessions). The award to the husband has been reduced to £2 million. Full story: Family Law Week. See Sharp v Sharp, below.
European court to decide whether to hear more evidence on ill baby
Charlie Gard, 10 months old, has been offered experimental therapy in US, but UK judges have ruled he must be allowed to die with dignity. Full story: The Guardian.
McKenzie Friends tread ‘fine line’ providing non-legal advice
What it means to conduct litigation is not clear, researchers find. Full story: Solicitors Journal.
Delinking of divorce & financial remedies to be rolled out nationally next week
Successful pilot sees national roll out from 19 June. Full story: Family Law Hub.
17% increase in private law cases received by Cafcass in May compared with 2016
3,707 new cases received. Full story: Family Law Week.
Care applications received by Cafcass in May rose 3% year-on-year
1,190 applications received. Full story: Family Law Week.
CASES Quan v Bray & Ors [2017] EWCA Civ 405 (16 June 2017)
Appeal against an order declaring that assets held within a Mauritian trust were not, for the purposes of section 25 of the Matrimonial Causes Act 1973, a resource of either the husband or the wife. Appeal dismissed. Full report: Bailii.
Sharp v Sharp [2017] EWCA Civ 408 (13 June 2017)
Appeal by wife against award of half of the matrimonial assets to the husband, in short marriage/unequal contribution case. Appeal allowed. Full report: Bailii.
IH (Observance of Muslim Practice) [2017] EWCOP 9 (12 June 2017)
Applications relating to observance of religious custom and practice of 39 year old man lacking capacity, while in his supported care home. 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.
