Articles

Magna Carta – A non-starter

Introduction As August turns into September and children up and down the country return to school, I thought it might be interesting to consider a subject which put me in mind of my own school days. Whilst dealing with a Family Law Act application, a member of Chambers had to grapple with an unusual defence Continue reading

The Factors and Guidance to make an application for Discharge of a Care Order pursuant to s. 39 of the Children Act 1989

Background: The combined effect of sections 1 and 39 of the Act is that on application of an entitled applicant the court may discharge a care order or replace it with a supervision order, in which case there is no requirement for the s 31(2) threshold to be crossed (the threshold for making a care Continue reading

E v L [2021] EWFC 60 (Fam) – Short, childless marriages, the sharing principle and absence of white leopards

The husband was aged 66 and the wife aged 61. The parties’ relationship began in 2015 when the husband immediately began providing the wife with financial support, paying her between £5000 – £10,000 per month. The parties became engaged in 2016 married in 2017 and separated in 2019. The parties disagreed over the date of Continue reading

Don’t Mix Your Drinks (or Tobacco Products)

As the restrictions on international travel and quarantine requirements are relaxed (at time of writing) many people’s thoughts will inevitably turn to foreign travel and, often, the opportunity to purchase and bring back duty-free or “duty paid” goods purchased en route or in countries with lower rates of duty, respectively. However, any traveller returning into Continue reading

And, breathe… The ‘Breathing Space Regulations’

Introduction   In this article, I will examine, in overview, the implications of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 for landlords and tenants in the context of private residential properties.   Further guidance for creditors (landlords) and debt advisors can be found online.   Continue reading

An ever-changing housing market- how an unpredictable housing market may impact upon financial remedy orders

In recent times, the housing market has seen a significant uptake with many reporting that house prices have risen in the last year at their fastest rate for over a decade. With many attributing the current boom in the housing market to the stamp duty holiday period, the question is now being posed what will Continue reading

The meaning of the term “associated person”- s.62 (3) of the Family Law Act 1996

Why is it important to show that the parties are “associated persons” for the purposes of FLA 1996 (FLA 1996)? When the court make an injunctive order such as a Non-Molestation or Occupation Order, certain criteria must be met. We are all aware that it is only possible to apply for such an order under Continue reading

To be Known by Another Name: Discharging Parental Responsibility

Summary The recent case of X and Y (private law – change of name – termination of parental responsibility) [2021] EWFC B24 provides a useful summary of the law around parental responsibility and any application to discharge parental responsibility in respect of one parent (and in this case, to change a child’s surname also). Background Continue reading

Spousal Maintenance, Future Earnings, Income Needs and a Re-Examination of Waggott

Following on from Edward Kenny’s article last month on Maintenance Pending Suit, it seemed logical to think next about spousal maintenance at final hearing but, of course at that point thoughts automatically turn to the Court of Appeal’s decision in  Waggott v Waggott [2018] EWCA Civ 727, 2 FLR 406 and, what seemed at the Continue reading

CPR Part 81 Contempt Proceedings – What Has Changed?

Despite various amendments over the years, many thought the wording of Part 81 was unsatisfactory, repetitive, and unnecessarily complicated. Following a consultation exercise by the Civil Procedure Rules Committee from March-May 2020, the committee proposed a new approach to Part 81 which: omitted nearly all the substantive law; dealt with procedure in the Rules, not Continue reading

Conversations in Family Law – Part 2

Conversations in Family Law In conversation…… Louisa Adamson and Mel Andrews, Family Law barristers continued…. Part 2: Court Hearings “Covid-Style”, supporting clients and working mothers Part 1 link here Mel: So you have been to Court for “in-person” hearings – how has that been? Louisa: I remember being quite worried about going back into court Continue reading

Determination of Flexible Tenancies: Forfeiture Clauses – London Borough of Croydon v Kalonga

Flexible tenancies were introduced by the Localism Act 2011 and are a type of secure council tenancy with a fixed term. Whilst intended to assist local authorities in having greater control over their properties enabling them to re-allocate the same to their tenants on expiry, flexible tenancies were not as popular as had been anticipated Continue reading

Summer 2021: The Summer of Delayed or Cancelled Flights, and Compensation Claims?

Holidays abroad… remember those? Most of us are looking forward to being able to go on holiday abroad again in the, hopefully, not too distant future. But holidays abroad aren’t all fun and sun. There can be unenjoyable aspects to travelling abroad. In particular, one unpleasant surprise can come when you get to your boarding Continue reading

To Trust…..Or Not…….Mesher Orders In Financial Remedy Proceedings

The purpose of this article is to consider the issue of Mesher Orders in the context of Financial Remedy proceedings. Mesher Orders arise and are used in Financial Remedy proceedings, when in all the circumstances in terms of section 25 of the Matrimonial Causes Act 1973 (“the Act”), it is appropriate for a property (normally Continue reading

A timely reminder: the principles of Maintenance Pending Suit and the decision of the Court of Appeal in Rattan v Kuwad [2021] EWCA Civ 1

In Rattan v Kuwad [2021] EWCA Civ 1, the Court of Appeal considered “an important point of principle as to the approach which the court should take to the determination of an application for maintenance pending suit.”[1] Moylan LJ, giving lead judgment (Macur LJ and Asplin LJ agreeing),  allowed the Wife’s appeal and determined that Continue reading

Residential Possession Claims

Residential Possession Claims   It is already well known that the Coronavirus Act 2020 (“CVA 2020”) has created a series of issues for both landlords and tenants.  Colleagues Paul Tapsell and Nicole Jennings have both written about the implications for possession proceedings when the first lockdown was initiated. The ability of a landlord in either Continue reading

Anti-Social Behaviour Powers – An alternative to lockdown regulations?

I have previously written on the Anti-Social Behaviour, Crime and Policing Act 2014 (“the Act”) in my article entitled ‘Using powers to prevent anti-social behaviour to protect, not punish’; that article looked at whether powers under the Act could be used in a way different to that that is normally expected. This article will consider Continue reading

Hindsight is a wonderful thing: occupation of the family home when it just won’t sell

The consent order is drafted, the ink on the judge’s signature is almost dry, and everyone is raising a glass in self-congratulation.  The family home is to be sold, the proceeds divided and a clean break provided for.  A great result.  Except when the family home won’t sell.  For 3 years.  And only then at Continue reading

PLACEMENT ORDER APPLICATION “GOOD PRACTICE” REMINDER FOR LOCAL AUTHORITY TO FILE THE PERMANENCE REPORT AND AGENCY DECISION MAKERS RECORD OF DECISION

S-F (A Child) [2017] EWCA Civ 964 (Leading judgment given by Sir Ernest Ryder, Senior President) I was recently very helpfully reminded of this 2017 case which is perhaps not too well-known as it raises no new issues of law or principal and the issue on appeal was described as ‘clear and simple’— was the Continue reading

Coercive and Controlling Behaviours: How are they to be dealt with in fact finding hearings after the recent case of F v M?

Allegations of domestic abuse are usually raised from the outset by either the applicant or respondent in private law proceedings. Further allegations may be raised at the safeguarding stage, with recommendations by Cafcass as to whether there should be a fact finding hearing, before final resolution of the case. Where the allegations are of violence Continue reading

Alternative Dispute Resolution

The family courts were overwhelmed with cases prior to the Pandemic, leading to long delays and, perhaps most distressing to the parties engaged in this type of conflict resolution, last minute adjournments which can incur significant wasted costs, for which there is generally no recourse, together with the distress and anxiety associated with yet further, Continue reading

Coronavirus: Separated Family and Contact with Children in Care FAQs (UK)

Family practitioners may wish to be aware of a Government briefing paper which seeks to address some key frequently asked questions concerning the impact of the coronavirus outbreak on separated families, contact with children, and child maintenance arrangements. The briefing paper provides links to relevant government guidance and to regulations and legislation, refers to the Continue reading

Failing to File and Serve a Costs Schedule in Time – Can a Party still Claim those Costs by Summary Assessment?

Summary In this article, Jasraj Sanghera will examine the Practice Direction governing the filing and serving of costs schedules where summary assessment of costs is sought, the decision in Robert Macdonald -v- Taree Holdings Ltd [2001] 1 Costs LR 147, and the implications of failing to file and serve a costs schedule in time in Continue reading

Non-Accidental Injuries to Children and Fact Finding Hearings

I recently represented a parent in a care case involving alleged non-accidental injuries (NAI) to a child. The local authority had brought care proceedings based on injuries the child had sustained, which were said to be non-accidental, and therefore inflicted deliberately. Typically, applications for care orders are based upon neglect or abuse. “Abuse’ in this Continue reading

Vaccination Disputes – A Reminder

Specific issue applications under the Children Act 1989 can be broad ranging and are frequently the source of significant points of contention between parties. Vaccination disputes between parents (where one parent wants a child to receive a particular vaccine and the other objects) are often hotly contested and the Courts are forced to make a Continue reading

Nightmare Neighbours – What Actions Can Be Taken Against Them?

Some of us are unfortunate enough to encounter nightmare neighbours who negatively impact our day-to-day life to varying degrees. This article seeks to explore the options available to clients who need to take further steps to resolve their neighbour disputes. It is, of course, advised that anyone experiencing an issue with their neighbour first try Continue reading

Parental Alienation

Parental alienation is no longer a fringe concept in family courts. It has been the subject of recent press coverage and is now used frequently in court. It is also a term that should be used with caution and is easy to jump to as a parent who feels treated unfairly. Many relationship breakdowns involve Continue reading

Domestic Abuse update – qualifying for Legal Aid, and how to safely engage in remote hearings

The restrictions placed on households due to Covid-19 have had a well-documented effect on victims of domestic abuse. The charity Refuge reported an 80% increase in calls to its National Domestic Abuse Helpline in June 2020 alone. Although a legal framework exists to offer protection to those in need, such help may be harder to Continue reading

Unnecessary Private Law Applications – a warning shot from the judiciary

In Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44 HHJ Wildblood QC, in a case with a title that gets straight to the point, has sent a message directed at family lawyers. Its stated targets are ‘parties and lawyers’. However, given that litigants generally don’t read law reports, it’s a safe assumption Continue reading

A Sorry State of Housing Affairs: Housing Disrepair Claims Part 1

Summary In the first of two articles, I will provide a quick guide to housing disrepair claims where remedies of damages and/or specific performance are sought. Compensation or injury? It should be noted that claims primarily seeking compensation or specific performance against a landlord regarding disrepair to the structure, exterior, or specific installations of a Continue reading