2020

Separated parents face all sorts of challenges in relation to contact but these are always amplified around times of celebration. Each year in the run up to Christmas the Courts are filled with parents who simple cannot agree on where their children should be in the festive season. Covid has made this, already stressful time, … Continue reading →

Events which lead to the successful re-opening of cases are known as “Barder” events, after the sad case of Barder v Barder (Caluori Intervening) [1987] 2 FLR 480, where a financial award to meet the needs of the wife and children was fundamentally undermined by the death of the wife and children weeks after the … Continue reading →

Summary Every now and then, a court may make an “error” when giving judgment and making an order. There are circumstances where the judgment or order can be amended without giving notice to the other side and without the need for another hearing, but parties must be careful to ensure any amendments reflect the original … Continue reading →

During these troubled times, when a reliable crystal ball would be helpful, the case of OC v AG [2020] EWFC 52 in which judgement was handed down on the 29th of July 2020, is of interest. The Facts The facts related to cross-applications by the Husband (OG) and the Wife (AG) in respect of financial … Continue reading →

The question of varying a Rose order has had new light shed on it by Mr. Recorder Allen QC in G v C [2020] EWFC B35 (OJ). For those of you who are not family practitioners, there follows a brief fly-past of what constitutes a Rose order. Matrimonial finance specialists may wish to move straight … Continue reading →

This is the section of the Act which gives the Court the power to restrict applications under the Children Act…it provides: “On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order … Continue reading →

I have recently been asked by a commercial tenant, and not for the first time, do I have a lease or a licence? One might imagine that the document in which the details are set out would be very explicit. It is not always that simple. Just because the office, workshop, car park or sheep … Continue reading →

Background As a result of the current Covid-19 crisis, the backlog of cases is mounting, despite HMCTS’ commendable efforts to re-open courts and implement access to video, hybrid and telephone hearings. There are also reports of the crisis precipitating more cases than normal. Property possession claims wait in the wings, family and domestic abuse enquiries … Continue reading →

When a Child Arrangements Order is made giving an applicant the right to spend time with his child, that order is underpinned by the enforcement provisions set out below. That order is sometimes frustrated by the party against whom it is made, who I will refer to as the party in breach. This article examines … Continue reading →

Case Study N (Children: Interim Order/Stay [2020] EWCA Civ 1070 Decision of Lord Justice Peter Jackson. A helpful reminder of some basic principles _______________________________________________________________________________________ This successful appeal by the mother was dealt with on 29 July 2020 during the current COVID 19 restrictions. The facts are not as important as the principles which were dealt … Continue reading →

To feel able to speak freely with your lawyer is a fundamental principle which is integral to the proper working of any justice system. A sine qua non. At common law, this principle takes the form of legal professional privilege. Legal professional privilege affords the client the legal right to withhold lawyer and client communications, … Continue reading →

It is relatively common to see conduct pleaded by aggrieved litigants in financial remedy proceedings. It is far more unusual for such an argument to actually succeed and an award to be made reflecting such a finding. Section 25(2)(g) of the Matrimonial Causes Act 1973 states that conduct is only relevant “if that conduct is … Continue reading →

Summary Following on from my previous article on civil injunctions, I will cover injunctions in a family law context, focussing on freezing injunctions in matrimonial finance proceedings and applications under the Family Law Act 1996. Freezing injunctions – when are they needed? In the event of a marriage irretrievably breaking down, typical stages of a … Continue reading →

The Current Covid-19 pandemic has caused a great deal of change to the way legal proceedings are conducted and has also prompted a number of amendments to both the Civil Procedure Rules and Family Procedure Rules. As such one non-Covid-19 related amendment to the Civil Procedure Rules which may therefore have escaped the attention of … Continue reading →

An article exploring the Expert Panel’s Final Report (June 2020): Why Change is Considered Necessary and Recommendations for Change My colleague Marie Crawford recently wrote about a story that appeared in The Guardian newspaper on 25.6.20 and which referred to the (then unpublished) expert panel report entitled ‘Assessing Risk of Harm to Children and Parents … Continue reading →

Many parents find it difficult to agree on the arrangements for their children after separating. This can be an extremely stressful and upsetting situation for everyone concerned. The priority should be to shield the children from arguments wherever possible but what should you do when you receive an application for a Child Arrangements Order and … Continue reading →

Summary In the first of two articles on injunctions, I provide a quick guide to injunctions in a civil law context, setting out the relevant legal and practical considerations in making or responding to applications. Injunctions are an equitable remedy, where a court has the discretion to either order a person to refrain from doing … Continue reading →

In June 2020 the Family Justice Council (“FJC”) published its report on how to achieve best practice with respect to special guardianship orders. The report arrives in a climate where in recent years, family courts have made more special guardianship orders than placement orders and the proportion of special guardianship order has risen whilst the … Continue reading →

I often deal with cases arising from the lack of reasonable financial provision for a spouse or children under a Will, or where a person has died without completing a valid Will. I hope this article will help people avoid some of the most common problems in those situations. While the starting point is that … Continue reading →

A client who is successful in most forms of civil litigation can expect to recover some if not all their costs. Since the abolition of the Calderbank offer, it has been difficult to obtain cost orders in financial remedy litigation and the general rule is that the court will not make an order requiring one … Continue reading →

When a person loses the mental capacity to make decisions for themselves (and they haven’t already put a power of attorney in place), those who care for them may need to apply to the Court of Protection (COP) to appoint a Deputy. In this article I will briefly sets out the differences between a lasting … Continue reading →

The possibility of a detailed assessment of their costs under Section 70 of the Solicitors Act 1974 (the “Act”) is a possibility that all solicitors should be alive too. It is likely to be encountered in some sense during the course of a career and clients are becoming increasingly aware of the option. When a … Continue reading →

The Domestic Abuse bill which is making its way through the legislative process and which was delayed as a result of the calling of the general election (and the prorogation of Parliament) has reached the report stage in the commons this week. It is expected to be amended to incorporate the reforms to the legislation … Continue reading →

Two short but troubling issues in troubled times: Can the FR Appeal Court hold a one-sided oral permission hearing without formal notice to the Respondent? Does the pandemic/lockdown amount to a Barder event? Plus Arbitration simply is the answer, especially for children. Permission to Appeal Hearing I have recently had to consider whether it is … Continue reading →

Summary Is a landlord of a block of flats entitled to grant a licence to a lessee to carry out work which would breach an absolute covenant contained in a lease of their flat, where the leases of other flats in the same building require them to enforce covenants at the request of a lessee … Continue reading →

The issue of pensions in financial remedy proceedings is a complex area and has been subject to much change over the years. As many of you will be aware, the Pension Advisory Group (“PAG”) published a comprehensive report ‘A Guide to the Treatment of Pensions on Divorce’ in July 2019. It was a much-welcomed publication … Continue reading →

This article seeks to provide a further update from my colleague Paul Tapsell’s article on residential possession and lease forfeiture proceedings during Covid-19. London Borough of Hackney v Okoro [2020] EWCA Civ 681 This case follows the Court of Appeal decision in Arkin v Marshall [2020] EWCA Civ 620 which was recently handed down on … Continue reading →

Introduction On Halloween in 2003, the Service Charge (Consultation Requirements) (England) Regulations 2003 (the “Regulations”) came into force, amending section 20 of the Landlord and Tenant Act 1985 (“LTA 1985”). This amendment set a financial limit to works carried out on a residential building, beyond which a landlord would have to consult with tenants. That … Continue reading →

Summary The recent judgment in S (Parental Alienation: Cult), Re [2020] EWCA Civ 568 provides a useful summary of the law concerning freedom of belief and parental alienation in contested child arrangements orders. The father (F) appealed the refusal of his application for a variation of a child arrangements order amidst continuing concern over the … Continue reading →

It is always good to return to basics and remind ourselves of the fundamental principle that ‘findings of fact’ must be based on evidence, and this can include inferences that can properly be drawn from the evidence’. A reminder that it is not on suspicion or simply speculation. (RE A (Fact Finding: Disputed Findings) [2011] … Continue reading →

In these times of social distancing & restrictions on movement, when jury trials have come to a halt, and court hearings of all kinds are being adjourned due to the need to maintain social distance. Almost everyone is waiting to see what will happen when the lockdown ends. A backlog of cases is building up, … Continue reading →

From the moment that the Government announced the possibility of lockdown measures being imposed, lawyers were inundated with questions about whether and how Child Arrangements Orders should be implemented over this period. As lockdown continues one of our local CAFCASS officers has told practitioners that many parents involved with the service have been able to … Continue reading →

Previously, I have considered the Public Sector Equality Duty (“PSED”) and possession proceedings in my article entitled “PSED, Cuckooing and Possession”. Whilst I appreciate that possession proceedings may not be at the forefront in the current climate (and for more information on this, please see Paul Tapsell’s article regarding possession proceedings and the Coronavirus Act … Continue reading →

 The landscape of February is gone, and legal professionals are all now working in previously unknown circumstances. The daily routine has vanished, we are for the most part not physically attending court, and traditional ways of doing things have changed. Recently I was in a far flung county court with a solicitor colleague as we … Continue reading →

Upon returning to Canterbury last month after a week away in London, I am now, like everyone else in the world, only just starting to get used to the surreal new reality we are all living in. However, despite recent events, I have not forgotten how fantastic my first two months of pupillage with Becket … Continue reading →

C (A Child) (Interim Separation) [2019] EWCA Civ 1998 (Judgement of Lord Justice, Peter Jackson) _______________________________________________________________________________________ We have all experienced cases, especially when representing a young mother who has been placed with the child, often a first child and a baby, in a mother and baby foster placement and that placement has broken down for … Continue reading →

The Coronavirus Act 2020 has put a hold on any existing residential possession proceedings for a period of 90 days and extended the notice period required as a precursor for any new residential possession to three months (section 81 of the Act and Practice Direction 51Z) and removed the right of re-entry or forfeiture for … Continue reading →

CAFCASS A County Council v Children and Family Court Advisory and Support Service (Cafcass) [2019] EWHC 2369 (Fam) Re S [2020] EWHC 217 (Fam) Care proceedings which had originated from a private law dispute between the mother and the fathers of her children. The mother alleged that the fathers had abused their children during contact. … Continue reading →

Preparing for A Mediation Appointment As time progresses mediation is being utilised more and more as a result of the significant benefits it provides to parties, including the ability to resolve disputes more quickly and less expensively than court proceedings. Tactics and advocacy utilised during mediation appointments vary greatly between representatives and indeed different disputes … Continue reading →

In the case of XW v XH [2019] EWCA Civ 2262 the Court of Appeal overturned a decision made by Baker J (as he then was) in 2017 that the husband (H) should retain the majority of the financial resources partly due to his “special contribution” in a case where H was a ‘breadwinner’ and … Continue reading →

I recently represented a claimant defending an application to set aside default judgment. The claimant obtained default judgment for a sum in the region of £2,000 in September 2018 and sought to enforce the judgment in January 2019. The defendant applied to set aside the default judgment in November 2019. The defendant submitted that they … Continue reading →

The Occupier’s Liability Act 1957 (“1957 Act”) The 1957 Act was enacted to regulate the duty of care which an occupier of premises owes to its visitors. The occupier owes the same duty of care to all its visitors, except in so far as the duty may be extended, restricted, modified or excluded in some … Continue reading →

The case of Re A (Children) (Parental Alienation) 2019 EWFC  demonstrates clearly the shortcomings of the Family Court to ensure that all children, wherever possible, enjoy a relationship with both of his or her parents. The position of the courts with regard to ordering no direct contact with the absent parent, is that it is … Continue reading →

Why, you may be wondering, would a barrister with 28 years’ experience of civil litigation and the adversarial process want to talk about mediation? Surely the whole purpose of barristers, and indeed lawyers, is to let people have their day in court and to demolish the “other side”? The fact of the matter is that … Continue reading →

The purpose of this article is to (a) review the guidance set out by the Court of Appeal in the case of Imerman v Tchenguiz and others; Imerman v Imerman [2011] 1 All ER 555 which was heard on the 10th to 12 of May 2010, judgement being handed down on the 29th of July … Continue reading →

CAFCASS A County Council v Children and Family Court Advisory and Support Service (Cafcass)                                                                                                [2019] EWHC 2369 (Fam) Keehan J Judgment: 20th September 2019 This was a public law case which may have relevance in private law proceedings. As part of the threshold grounds, the LA sought a finding that the father had sexually … Continue reading →