Wednesday, July 26, 2017

Birch v Birch: Appeal allowed


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.

Monday, July 24, 2017

Internet Newsletter for Lawyers July/August 2017


The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue

  • Electronic evidence – Stephen Mason and George Weir describe the various mechanisms by which electronic evidence is adduced
  • Robot lawyers – Casey Flaherty of technology company Procertas is sceptical about intelligent robot lawyers
  • Robots in chambers – Stephen Ward of Clerksroom describes the features of Billy the robotic junior clerk
  • Digital marketing – Susan Hallam explains how and when you should employ competitive keyword advertising
  • Websites – Delia Venables asks What are chambers' websites for? and reviews the current offerings
  • Digital legacies – Alex Heshmaty explains the concept of digital legacies and offers some top tips
  • Robots at large – Nick Holmes looks under the bonnet at DoNotPay, "the world's first robot lawyer"

Access the Newsletter online

News Essentials: 24th July 2017


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.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, July 21, 2017

The old, the new, and the Scottish


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:

Robust approach to father’s change of residence application - As in the 2012 Court of Appeal case C (Children).

The umbrella of the dissolved marriage cannot remain open for ever - The interesting 1994 Court of Appeal decision Hewitson v Hewitson.

Are litigants expecting too much of the family courts? - I suspect many may be...

When a pension sharing order can’t be implemented… yet - The Scottish case G AGAINST G.

Have a good weekend.

Monday, July 17, 2017

News Essentials: 17th July 2017


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.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Monday, July 10, 2017

Fostering to Adopt only to be used as part of care proceedings says Coram


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.”

News Essentials: 10th July 2017


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.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Sunday, July 09, 2017

The Transparency Project launches guide for families concerned about the publication of family court judgments


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."

Publication of Family Court Judgments - A guidance note for families & professionals, can be found at http://www.transparencyproject.org.uk/resources in pdf format.

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.

Monday, July 03, 2017

News Essentials: 3rd July 2017


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.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.