In this article I will, briefly, set out what a default judgment is, when and how it can be obtained and how it can be set aside. I will then set out the principles that the Court should consider when determining costs following the hearing of an application to set aside default judgment. Default Judgment … Continue reading
In the recently reported case of T & R (Children)(Refusal of Placement Order) [2021] EWCA Civ 71, the Court of Appeal had to determine an appeal made by a local authority and guardian against the refusal of the trial judge to make placement orders in respect of two young children. The case is of particular … Continue reading
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
I dealt recently with a claim for adverse possession which arose from a fairly unusual set of circumstances. My client had purchased two lock-up garages at auction in 1985 for the sum of £2,100; the garages were part of a residential estate which had been constructed by a large-scale Developer on previously agricultural land. For … Continue reading
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
We have a new Practice Direction 3AA which covers participation in proceedings for vulnerable person who will be required to give evidence, which is effective from February 2021 BRIEF SUMMARY OF IMPORTANT POINTS It is essential to seek a Ground Rules Hearing as early as possible in the proceedings. It is important to raise this … Continue reading
Introduction As we start to consider the possibility of lockdown lifting and our thoughts recklessly stray to the idea of getting away from it all, I thought I would dampen the exuberance by reminding us all of the perils of using leasehold property for holiday lets (Airbnb or otherwise). On the face of it, generating … Continue reading
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
Summary In the second of two articles, I look at housing disrepair claims brought under the Defective Premises Act 1972 (DPA 1972). A Brief History The liability of landlords for failing to safely maintain premises has steadily increased in scope in the past century by way of parliamentary intervention. A landlord has historically not been … Continue reading
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
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
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
Having recently had several cases with pension complexities, reread the PAG report and authorities and attended two remote seminars on the same, it seemed sensible to write a short review of what seem to me to be the key issues on a subject that probably causes more trouble than any other in financial remedy proceedings. … Continue reading
This is an article on the above case which is significant for a number of reasons and should be considered when dealing with any application to oppose the making of an adoption order. This was an appeal made by a local authority against a decision in adoption proceedings concerning a child then aged 2 years … Continue reading
Court hearings are stressful occasions. New surroundings, pressure, and decisions being taken out of your hands. There is now an extra layer: the remote hearing. The concept is simple – because of the pandemic there cannot be as many (or in some situations, any) people at court. So, we will have hearings (at least in … Continue reading
Re B (A Child) [2020] EWFC B44 A mother appealed the case-management decision made by a Legal Adviser that medical records relating to her for a period of 5 years should be disclosed into the case. HHJ Wildblood QC dealt with the substantive appeal in a Judgement that found the Order for disclosure to be … Continue reading
Paul Tapsell, a CMC-accredited civil mediator, extols the virtues of the CMC Fixed Fee Mediation scheme and virtual mediations. The present pandemic has resulted in a significant increase in the time it takes matters, especially civil claims, to get to court for a final hearing and those delays are only going to get longer so … Continue reading
In this article I will look at the recent decision of Mr Justice Moor in the case of RC v JC [2020] EWHC 466 (Fam) The brief facts of the matter are that the parties cohabited and were married for a total of 11 years. They had two children, aged 8 and 10. When they … Continue reading
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
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
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
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
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
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
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
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
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 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
Hall v Jagger; Akhter v Khan: void, voidable and non- marriages. In 1999, Jerry Hall and Mick Jagger separated and in a move heralding a long and acrimonious legal battle, Jagger sensationally released a public statement saying that he would be contesting Jerry Hall’s petition for divorce on the grounds that he and Jerry Hall … Continue reading
The recent case of AR v ML [2019] EWFC 56 is a cautionary tale against adducing further evidence at a late stage in an attempt to have the last say within financial remedy proceedings. This case centred around the wife’s application for financial remedy arising out of her marriage to the husband. The matter proceeded to a … Continue reading
This article explores the recent judgment in Re A (Children) (Parental alienation) [2019] EWFC. Re A is a long, drawn out case involving a mother’s repeated inability to promote the children’s relationship with their father. Professionals concluded that she had at best “allowed the demonisation of the father and, at worst, actively encouraged this demonisation … Continue reading