Some time ago now I wrote an article about the Supreme Court case of Wyatt and Vince. That case explored the issue of whether a party to a marriage can make a claim many years after the marriage has ended; to which in short, the answer was, Yes. The recent High Court case of A … Continue reading
QUARTERLY DIGEST PRIVATE LAW Disclosure Lancashire County Council v A, B, and Z (A Child Fact Finding Hearing Police Disclosure) [2018] EWHC 1819 (Fam) 25th July 2018 Knowles J This was a fact-finding hearing following the death of a child whilst in both parents’ care. During the trial, it became clear that the police held … Continue reading
The Mental Capacity Act 2005 (“MCA”) introduced a framework for assessing mental capacity, enabling the court to assist persons who lack capacity to manage their affairs by taking decisions or by appointing decision-makers to act on their behalf. MCA is not retrospective and not relevant in considering the validity of wills made prior to 1 April … Continue reading
This case involved two parties who had married in 2000 and subsequently separated in 2010. The marriage produced one child who continued to reside with the wife. On 10th December 2012, a final financial remedy order was made dividing the capital unequally in the wife’s favour in order to enable her to purchase accommodation for … Continue reading
Committal CH and CT [2018] EWHC 1310 (Fam) Baker J The paternal grandmother (PGM) and her partner applied for a child arrangements order (CAO). A CAO was granted but M did not comply with the order. The PGM applied for enforcement of the order and argued that only a suspended sentence of imprisonment would make … Continue reading
Fact-Finding: Ground Rules Re M-Y (Children) [2018] EWCA Civ 1306 McCombe and King LJs P was the eldest of 4 children. P alleged that she had been physically chastised by her mother (M) including punching and kicking and sexually assaulted by M’s partner (S), after moving from Romania to live with them in the UK. … Continue reading
Those readers who follow legal stories in the press will not have failed to notice a spate of cases concerning end of life decisions. Last month, the Supreme Court ruled that an application may no longer be needed for an order to withdraw life-sustaining treatment for a person with a ‘prolonged disorder of consciousness’. “An … Continue reading
Prohibited Steps Orders are often regarded as a protective means available to a parent who has concerns about another party involved with their child. Whether the issue be the removal of a child from the jurisdiction or simply an order preventing an individual from undertaking a certain act, perhaps naively, Prohibited Steps Orders are used … Continue reading
Many claims under the Trust of Land and Appointment of Trustees Act 1996 (“the Act”) seek an order for sale of the property in question, however it may be the case that the claimant does not want the property to be sold, but instead to retain it as a sole owner, effectively removing a co-owner … Continue reading
The purpose of this article is to provide an overview of the Court’s approach to pensions in financial remedy proceedings generally and revisit specific issues such as pension off-setting and Duxbury calculations raised in my previous article published in July 2016 under the title, “Financial Remedy: Pension Values and Offsetting – Quo Vadimus”. PENSION OVERVIEW … Continue reading
The stress and cost of financial remedy proceedings are often overwhelming for couples unfortunate enough to have to endure them. However spare a thought for those for whom jurisdiction is in issue; the parties effectively have to fight over the correct jurisdiction in which to have the fight. The Court of Appeal recently considered when … Continue reading
Background Paragon Asra Housing Limited (“the Appellant”) is a provider of social housing. Mr Neville (“the Respondent”) was an assured tenant of the Appellant. Under Clause 3 of the Respondent’s tenancy agreement there were a number of- quite standard – obligations. These included: – barring him from using the flat for illegal or immoral purposes; … Continue reading
Frequently in this modern age, clients in private law proceedings, will have covertly record either their children or the other party to proceedings saying something that they think that the court ought to hear at some stage during the proceedings. The usual test as to whether it should be introduced into evidence is whether the … Continue reading
The Facts I acted recently in a case involving a right of way over an access running along the back of a terrace of houses and out to a public highway; my client (“D”, the Defendant) owned a house towards the “mouth” of the right of way and his neighbour (“C”, the Claimant) owned a … Continue reading
In February 2017 I wrote an article on the case of Mills v. Mills [2017] EWCA Civ 129 (http://becket-chambers.co.uk/2017/02/28/upward-variation-periodical-payments-recipients-financial-recklessness-political-hot-potato/) which considered whether capital needs could, in effect, be revisited in a future application to vary periodical payments. The case has now been reconsidered by the Supreme Court; here I provide a reminder of the original … Continue reading
Is the family justice system in crisis? Yes says Sir Andrew McFarlane, the new president of the Family Division of the High Court, who took over that role in July 2018. Sir Andrew was speaking at the launch of a Care Crisis review, an independent study by senior lawyers, social workers, charities & academics into … Continue reading
Introduction This article explores the recent case of Clay v TUI Ltd [2018] EWCA Civ 1177. Mr Philip Clay brought a claim for damages for personal injury against TUI UK Limited. Mr Clay sustained injuries when he fell from a balcony at a hotel in Tenerife, where he and his family had gone on a … Continue reading
re M (A Child) [2017] EWCA Civ 2356 Introduction In a lead judgment from Jackson LJ the Court of Appeal have reiterated the guidance in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 that “an analysis of some sophistication and complexity” is required before granting an application for relocation. This case makes it … Continue reading
When conducting a family law case, chattels are normally dealt with in one of two ways. In some cases, clients will argue tooth and nail over all chattels involved and the arguments themselves will form a large part of proceedings. However, in other cases, chattels are an afterthought, discussed at the door of the Court. … Continue reading
Introduction This article explores the recent legislative changes that came into play in April 2018. From 6th April 2018, parts of the Housing and Planning Act 2016 ”The Act” commence introducing banning orders and a database of rogue landlords and property agents in England. This article focuses on those two main areas of change. In the … Continue reading
Sir James Munby, President of the Family Division, has announced that a final approved draft of the revised Practice Direction 27A (which awaits only formal signature by the relevant Minister) is due to come into force on 23 July 2018. The basic PD27A remains as before but with some minor changes. The three main changes … Continue reading
R (on the application of Perinpanathan) v City of Westminster Magistrates’ Court and Another [2010] EWCA Civ 40 is the current leading authority on the question of costs in civil matters brought in the Crown or Magistrates’ Court by a public authority. It applies and extends the principles in City of Bradford Metropolitan DC v … Continue reading
Once there has been a breakdown in the landlord and tenant relationship, and the landlord wants to seek possession, the default route is the instigation of formal possession proceedings. A problem that assured and assured-shorthold landlords are starting to encounter more frequently, however, is the Section 21 debarment that results from a failure to comply … Continue reading
When a social tenancy has been in place for decades, establishing what has previously occurred, and how it might impact a legal dispute today, can prove a complex matter. One generally accepted rule, though, is that whether it is governed by the Housing Act 1985 (“HA 1985”) or the Housing Act 1988 (“HA 1988”) only … Continue reading
Summary: In a case of potential relevance to anyone entering into a written contract, the Supreme Court has recently held that oral variations to such a contract may well be invalid. The case has wide reaching implications and changes the approach previously adopted by the courts. In its Judgment in Rock Advertising Ltd v MWB … Continue reading
Probate (and for the purposes of this article I include Inheritance Act claims, which some would argue are family cases rather than probate) are one of the areas of law where there can be a plethora of parties represented by the one legal adviser. To those of us working in this area of law, it … Continue reading
An interesting case has arisen where ‘misuse and abuse’ of the use of a s. 20 agreement has occurred. Let’s first remind ourselves of the main case on this subject with which we are now familiar, Re N (Adoption:Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FLR 621, in which the President described the delay in … Continue reading
Following the recent decision in Ilott v The Blue Cross and others [2017] UKSC the High Court has recently had the opportunity to consider the issue of reasonable financial provision in Thompson v Ragget and others [2018] EWHC 688 (Ch), this time from the point of view of a cohabitee. The Facts The claimant, aged … Continue reading
It is a familiar problem. A divorce is being endured. It is, by definition, fractious and, most importantly, still fractious in respect of the children. Or, put in lawyer’s tongue, there are ongoing matrimonial finance proceedings, in which the children are the first consideration (section 25 (1) Matrimonial Causes Act 1973) but the “child arrangements” … Continue reading
Introduction Hot on the heels of The Association of British Insurers (ABI) (in response to an apparent increase in whiplash claims) The Association of British Travel Agents (ABTA) has campaigned for reform in package holiday gastric illness claims. Personal Injury reform is a topic that I have previously explored under “Personal Injury Claims- further reform … Continue reading
The recently-reported case of Dobson v Griffey [2018] EWHC 1117 (Ch) provides a helpful reminder of the difficulties in cohabitation cases when seeking a share of a property that is held in another party’s sole name. The decision is that of HHJ Matthews sitting as a High Court Judge. The judgment considers the standard of … Continue reading
The President has issued further guidance on cases involving parents with learning difficulties: President’s Guidance Family Proceedings: Parents with a Learning Disability, 10th April 2018: He refers to the leading cases: Re D (A Child) (No 3) (2016) EWFC 1: http://www.familylawweek.co.uk/site.aspx?i=ed158421 and Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability) … Continue reading
Many practitioners are accustomed to seeing cases that do not quite fall within the category of “parental alienation” yet are characterised by the resident-parent’s views impacting adversely on the arrangements for contact between the non-resident parent and the child and often, as a consequence, on the relationship between the child and non-resident parent. Usually such … Continue reading
This article explores the correct way Defendant’s added to a claim after April 2013 should approach qualified one-way costs shifting (“QOCS”) It explains how QOCS should be applied in respect of an unsuccessful claim for damages for personal injury. In particular, the article reviews the recent Court of Appeal decision in Corstorphine (An Infant) v … Continue reading
Experts Buerhlen and Buerhlen [2017] EWHC 3643 (Fam) Moor J dismissed the father’s appeal against the decision of HHJ Scarratt that it was not necessary to instruct an expert as to earning capacity. The judge had correctly applied the test of necessity as described in Re HL [2013] EWCA (Civ) 655, that evidence that is … Continue reading
Appeal Against An Adoption Order Re J [2018] EWFC 8 (Fam) Fr’s appeal out of time against the grant of an adoption order in favour of the child’s step father was granted. M and the step father had obtained the adoption order by falsely claiming that they did not know the identity or whereabouts of … Continue reading
Can you get an order for sale of the family home before the final hearing? As of a few weeks ago, and some 45 years after the Matrimonial Causes Act was enacted, it became apparent that eminent High Court Judges disagree on both the jurisdiction and the basis for such an order. So can you … Continue reading
A recent case before Mostyn J provides a helpful reminder of what a court can, and cannot, do when seeking to implement a final financial order. The case is SR v. HR (SC (as Trustee in Bankruptcy of SR) intervening) [2018] EWHC 606 (Fam). A consent order had been approved in 2012 which included property … Continue reading
As we are aware, in cases where grandparents are denied spending time with their grandchildren, they have to apply to the court to do so. Moreover, the procedure is a two stage process, with them having to apply for leave first and satisfying the conditions set down in Section 10(9) of the Children Act 1989. … Continue reading
In this article I will attempt to summarise what I understand to be the position on the thorny question of when and if the Children’s Guardian should attend and what role the Guardian would play in a Fact Finding Hearing in care proceedings. We have all experienced cases where the judge has expressed a clear … Continue reading
In modern times it is becoming more and more prevalent for couples to live together without marrying and as such disputes over ownership of property arise more frequently. The recent case of Culliford and another v Thorpe [2018] EWHC 426 (Ch) afforded the Chancery Division the opportunity to consider what was required to constitute a … Continue reading
Have you ever felt frustrated by the Courts’ reluctance to use its powers to enforce disclosure? In the latest round in the long running bout of Hart v Hart, HHJ Wildblood QC sitting as a Deputy High Court Judge has sentenced the Husband (H) to 14 months imprisonment for contempt for failing to produce documents … Continue reading
A Larke v Nugus request is a request regarding the circumstances of drafting a Will. The starting point is the case of Larke v Nugus (1979) 123 SJ 327. It is a case I sometimes use when advising probate clients. The case held that the professional who drafted the Will should provide information about the drafting and … Continue reading
Although now a fact of life for personal injury lawyers since its introduction in April 2013, one aspect of QOCS (Qualified One Way Costs Shifting) has given rise to uncertainty: namely the thorny issue of how “fundamental dishonesty” is defined and how the term also applies to the Criminal Justice and Courts Act 2015 (“CJCA”). … Continue reading
Change to the small claims track limit Reform to personal injury claims is a hot topic at present, with significant pressure being placed on low-value claims. Most notably government ministers decided recently that there will be an introduction of whiplash reforms in April 2019. There was news on 23rd February 2018 that the Small Claims … Continue reading
Firstly, the question of whether the factual matters that have been, or may be, the subject of a criminal prosecution should also be litigated within family proceedings is always to be determined on a case-by-case basis. Secondly, a fact-finding hearing should only be embarked upon where it is both necessary and proportionate to do so. … Continue reading
The prospect of one party receiving an inheritance is often cited in financial relief cases as a reason to depart from equality. But to what extent is the court likely to take it into account? What factors are relevant in assessing what is sufficiently certain and what is impossibly vague? The decision in Alireza v. … Continue reading
In my August 2017 article I considered the Cafcass document ‘Guidance on the use of professional time to benefit children’ (‘the Guidance’) in the context of private law children proceedings. While Cafcass believes it is crucial that the work it carries out before and at the First Hearing (FHDRA) should continue unchanged, it proposes to … Continue reading
Identifying the problems One social worker who took part in a recent study of Child Protection Practice with Romani and Traveller children declared that ..”it is virtually impossible to get a foster carer or adoptive parent who can meet the child’s cultural needs. The opportunity to get a perfect match is impossible. I know of … Continue reading
The purpose of this article is to explore in the context of Financial Remedy, the extent to which the law has evolved, if at all, since the case of Xydhias v Xydhias [1999] 2 All ER 386 especially in relation to the rather vexed question of whether the parties have entered into a concluded agreement, … Continue reading