Becket Chambers https://becket-chambers.co.uk Fri, 03 Apr 2020 16:44:54 +0000 en-GB hourly 1 https://becket-chambers.co.uk/wp-content/uploads/cropped-b-icon-32x32.png Becket Chambers https://becket-chambers.co.uk 32 32 Coronavirus: residential possessions and lease forfeiture proceedings. https://becket-chambers.co.uk/2020/04/03/coronavirus-residential-possessions-and-lease-forfeiture-proceedings/ Fri, 03 Apr 2020 16:44:54 +0000 http://becket-chambers.co.uk/?p=3916 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 […]

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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 business tenancies for non-payment of rent until (at present) the 30th June 2020 (section 82).

The Act has not removed the obligation on residential or business tenants to pay their rent but it has effectively removed the primary means open to a landlord to enforce that obligation, at least in the short term.

Equally, the threat or a fear of Covid-19 does not provide a ground for landlords to seek possession of property and any such actions are likely to amount to an unlawful eviction and harassment! Any tenant faced with this situation should seek professional advice as a matter of urgency (as well as contacting their local council and, if necessary, the police).

In addition the (temporary) closure of a large proportion of the Courts and the move to virtual or telephone hearings and the inevitable “triaging” of the work undertaken by the Courts which are open at a time of national crisis means that there are likely to be considerable (additional) delays to any proceedings once the situation returns to normal.

So, what should a landlord do when faced with a request for a “rent holiday” or when a tenant fails to pay the rent due? What should a tenant do when faced with immediate financial problems and/or uncertainties which mean they are unable to pay the rent?

There are no firm or clear answers at this stage and, to be honest, the situation is likely to remain changeable and uncertain for some time to come but, hopefully, a few pointers will assist in the short term and will serve to prepare the ground if a matter ends up going to court.

Seek Help
Firstly, and as indicated above, the Act does not remove the tenant’s obligation to pay rent, so the debt remains. In some circumstances the tenant, or indeed, the landlord may be entitled to assistance with the rent under one (or more) of the government schemes for individuals and businesses affected by Covid-19 or the implications of the “Stay Home” measures and they should seek (or be advised to seek) such assistance and to prioritise the payment of rent out of any such assistance, or make a reasonable offer for payment over time.

Talk
At the very least there should be some effective and frank, but constructive, communication between the parties so each knows where the other stands; you (whether landlord or tenant) should seek to open communications on a positive basis, providing suitable information to explain your situation and looking to reach a workable solution that is fair and workable for both sides (e.g. payment by instalments). If the other side agrees, a way forward may be found. If the other side unreasonably refuses to engage or rejects your approach out of hand, then that correspondence will be a useful piece of evidence to justify or defend your position if the matter ever goes to court.

Keep Talking
Try to maintain momentum in the course of discussions, and to keep the communication flowing; you don’t want to be barraging the other party with pointless emails, but it’s useful to “touch base” regularly, if only so that potential concerns can be raised, before they become issues or problems!

Adopting a hard-nosed or aggressive stance will not encourage the other side to meet you halfway and may serve to end discussions before they have even started!

If your payment is going to be a few days late, give the other side warning (and then make the payment as promised). Similarly, if a payment doesn’t arrive when expected, it’s often more productive to make a soft enquiry as to whether there’s a problem rather than immediately threatening to take the Gladiator approach and “Unleash Hell!”.

Keep Records
Keep copies of all relevant communications – ensure there is a clear and comprehensive note of what discussions there have been; emails are ideal because they are easy to retain and produce as evidence – text messages are often deleted, the phone is lost or damaged and, in my experience, are often open to misinterpretation.

Similarly, if you have a “chat” with the other side, send an email confirming what’s been discussed and agreed – if they reply confirming the agreement, then all well and good (and there’s evidence about what has been agreed). If they don’t reply but later seek to deny any agreement, you’ve got the email to evidence the discussion and can point to the fact that they didn’t deny the agreement at the time!

Keep records of all monies due and paid – if payments cover rent or a service charge, or electricity bills, make sure you record when it was paid and what it relates to – I have had many cases where there have been disputes about whether payments between the parties related to the rent, insurance premium, service charge liabilities or other “personal arrangements” so that the court found it difficult to determine what the actual arrears were. If there’s a clear and comprehensive record made at the time (and which ties in with, for example, bank records) then the court is likely to be persuaded that it’s accurate!

Conclusions
As an aside; the new Pre-Action Protocol for residential tenancies (announced but yet to be implemented) will require the parties to engage and cooperate and to seek to avoid litigation and to consider payment plans or other solutions; complying with the various steps outlined above will demonstrate that you have “ticked the boxes” as far as the Protocol is concerned!

If you require advice or assistance in connection with a landlord and tenant dispute, please do not hesitate to contact clerks@becket-chambers.co.uk who will be able to guide you through the process of instructing a barrister under the Direct Access scheme.

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Private Family Law: Children Summary of Recent Case Law October to December 2019 https://becket-chambers.co.uk/2020/04/03/private-family-law-children-summary-of-recent-case-law-october-to-december-2019-2/ Fri, 03 Apr 2020 16:28:54 +0000 http://becket-chambers.co.uk/?p=3913 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. […]

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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. The mother emotionally harmed the children in the way that she had behaved in pursuing her beliefs about the fathers. This included making 10 video-recordings of one of the children to evidence her mistaken belief that sex abuse had occurred.

Threshold was agreed but not the way that it was expressed in the threshold findings.

The judge required there to be unambiguous findings recorded that the father had not physically or sexually abused his daughter and identifying the mother’s behaviour and the consequences [para 55-56]. It was essential for the clarity to prevent debate by assessors and local authority personnel and those working with the family [paras 57 and 59]

She also comments on whether the behaviour described can be properly described as “parental alienation” when the child attends and engages in contact when possible [para 65]

It was her perception “that local authorities may be ill-equipped to grapple with complex private law proceedings where there are allegations of abuse made by one parent against the other.”

At [paras 64-69 and 71] she suggested
a) repeated section 47 investigations, which are not anchored to a comprehensive family assessment, are ultimately of little benefit;

b) greater respect needs to be given to the views of professionals who see the family more often than most social workers ever do;

c) in the interests of effective multi-disciplinary working, social workers may, on occasion, have good reason to challenge the views of other professionals. Ensuring other professionals understand the local authority’s concerns and are updated as to recent events may assist that process;

d) families should be referred to sources of guidance and support or offered it as part of the local authority’s intervention. This should happen sooner rather than later. The mother might well have benefitted from guidance about separated parenting and child development. Both parents would also have benefitted from advice and guidance in managing contact handovers and in communicating with each other about their child;

e) mediation services …might have helped this family at an early stage of the proceedings;

f) delay in commissioning expert assessments is damaging.

g) such cases require a high degree of professional skill from social workers and their managers and, in my view, should not be allocated to trainee or inexperienced social workers…

Date: 06/02/2020

Before:

MRS JUSTICE KNOWLES
– – – – – – – – – – – – – – – – – – – – –

Mrs Justice Knowles:

e H v F [2020] EWHC 86 (Fam)
This anonymised judgment was delivered in open court and will be published. The judge has given permission for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with.

Failure to do so will be a contempt of court.

Neutral Citation Number: [2020] EWHC 86 (Fam)
Case No: 2019/0141

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE CENTRAL FAMILY COURT ON AN ORDER
OF HIS HONOUR JUDGE TOLSON QC OF 8TH AUGUST 2019

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/01/2020

Before:

MS JUSTICE RUSSELL DBE
– – – – – – – – – – – – – – – – – – – – –

Between:

JH Appellant
– and –
MF Respondent
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –

Ms Katherine Gittins (instructed by Adams Harrison Solicitors) for the Appellant JH
The Respondent MF did not attend and was not represented

Hearing date: 5th December 2019
– – – – – – – – – – – – – – – – – – – – –

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
………………………..

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Honourable Ms Justice Russell DBE:

Introduction
1. This is an appeal from an order made on 8th August 2019 following a fact-finding trial in Children Act (CA) 1989 proceedings for child arrangement orders at the Central Family Court in London before the Designated Family Judge. The case concerned complaints of domestic abuse including of the most serious sexual assault. The Appellant (JH who had made the complaints) was represented by counsel, Ms Piskolti, and gave evidence. The Respondent (MF) was unrepresented (but had assistance from a McKenzie friend throughout) and the judge carried out the “cross-examination” of JH. This case is yet another example of the difficulties encountered by litigants when public funding is not available to the party against whom complaints are made; and of the way in which justice or a fair trial is compromised when the judge is required to enter the arena. The judge found against the Appellant.

2. The Appellant appealed against the judgment and order; permission was granted by Mrs Justice Lieven on 25th October 2019 (who gave permission to appeal four days out of time). In her written reasons Lieven J said that she had granted “permission to appeal on each of the grounds”, having set out each of the seven grounds advanced on behalf of the Appellant. In essence I agree with the observations made by Lieven J in granting permission to appeal but also find that the judge’s conduct of the hearing was fundamentally flawed and unjust for procedural irregularity as set out in Family Procedure Rules (FPR) 2010 (Cf. FPR rule 30.12(3)); and the appeal is allowed for that reason and the reasons set out in full below.

3. The Appellant was represented by counsel, Ms Gittins, before me at the hearing in the Royal Courts of Justice on 5th December 2019, trial counsel (Ms Piskolti) had prepared the written application for permission to appeal and the grounds of appeal referred to in this judgment. The Respondent did not attend the hearing. The Appellant’s solicitor was contacted by a supporter of the Respondent on 6th November 2019 who said that the Respondent would not attend the hearing on 4th December 2019 because the appeal was not directed against the Respondent but against the judge. The Respondent himself phoned the Appellant’s solicitor on 2nd December 2019 to repeat this message and was aware of the change to the hearing date. The court received no written or oral submissions on behalf of the Respondent.

4. The law. There is no argument in respect of the law which applies in this appeal. I have been reminded of, and keep in mind, the relevant case law; it is unnecessary for me to set it out in full. The approach of the court is succinctly and accurately set out by Lieven J when allowing the application and I would adopt it. In particular, I keep in mind the words of Sir James Munby P in Re F (Children) [2016] EWCA Civ 546, at paragraph 22,
“Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist”.
Nonetheless some of the analysis, commentary and the judgment in the instant case requires particular scrutiny.

5. To paraphrase the seminal speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, I am well aware that “The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case.” And that “An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

Background and history
6. The chronological background and of the case as set out here were taken from the chronology prepared for the court by those representing the Appellant which set out the complaints made about the Respondent and involvement of the Police. The Appellant (then only 17 years old) met the Respondent (then 23) in 2013 when they started their relationship. The Appellant moved in with the Respondent shortly after they met. Prior to their meeting police records indicate that there had been complaints made about the Respondent’s violent and abusive behaviour by his own mother, his brother, his aunt and a previous partner. According to the police records which were before the Family Court the parties first came to the attention of the Police in June 2014 as a result of third-party contact or referral; the Respondent was said to have been intoxicated, aggressive and abusive to the Appellant. The police records show a further incident including another verbal altercation in September 2014. The child who is the subject of these proceedings (C now 4 years and 11 months old) was born on 2nd January 2015.

7. There were police records concerning continuing domestic abuse in 2015. Specifically, there were complaints of domestic abuse by the Appellant in February of that year, followed in April by a record of an incident when the Respondent was said to have hit the Appellant on her head. She had fled to a neighbour’s home and the police were called. The Respondent was arrested for battery and released on bail. In May 2015 the Appellant contacted the police and retracted her statement. Nonetheless the Police made a referral to Social Services because of domestic abuse. Social Services were recorded to have responded that C would be placed on a Child in Need plan. The Appellant subsequently moved to another local authority area and the case was closed.

8. In May 2016 police recorded a phone call from the Appellant following another incident of domestic abuse; the Appellant was reported to have again fled the family home but without C (then an infant) who was locked inside with the Respondent. In late August 2016 the Appellant had reported to the Police a history of domestic abuse including sexual assault by penetration and was categorised as a high-risk victim. The Respondent was again arrested and released on bail. The Appellant left the family home and moved into a refuge with C. The Respondent then reported the Appellant to Social Services and made allegations about her inability to care for C; he called the Police to report her “missing”.

9. Meanwhile the Police had carried out a check on the Respondent following a third-party call raising concerns about him and alleged suicide threats. A day later a neighbour of the parties called the Police to complain of harassment and threats by the Respondent and his mother.

10. The Appellant was ABE interviewed by the Police at the end of August 2016. A third-party witness (AP) provided a statement to the Police setting out what she knew of the Appellant’s complaints about the Respondent’s abusive behaviour towards her. The Respondent was again arrested, this time for Controlling and Coercive Domestic Abuse contrary to s76 of the Serious Crime Act 2015 and interviewed under caution about that offence and the sexual assault by penetration, a serious offence under the Sexual Offences Act 2003. The CPS decided not to take further action over the sexual assault on 27th September 2017 the reasons for this decision are unknown.

11. When the Respondent applied for a child arrangements order on 15th October 2018, it was more than two years after the Appellant and C had left him and gone to a refuge away from what had been the family home. His bail conditions had been removed in September 2017, more than a year before he made his application under the CA 1989. The history set out above comes from such police records/disclosure as had been made available to the Family Court; it appears there may be additional material that has not yet been disclosed by the police. The Police also disclosed that the Respondent is “known to the police” and had a warning for assaulting a constable in 2008; convictions for theft, common assault also in 2008; criminal damage and resisting arrest in 2009; a conviction for battery and criminal damage involving a former partner in 2011; and a further caution for theft in 2014. There were numerous police “call outs” recorded in respect of the domestic abuse by the Respondent of his two previous partners.

12. The required safeguarding enquiries took place prior to the trial in August 2019 but the author had been unable to complete the checks because of the Appellant’s distress (as set out in the second safeguarding letter filed with the court). The Appellant was reported by her support worker as experiencing “feelings of severe trauma” and that the proceedings had led to a deterioration in her emotional well-being. No concerns were raised about her ability to care for C. I quote,
“I was told that [the Appellant] continues to experience feelings of severe trauma, and that these proceedings have lead [sic]to a deterioration in her emotional well-being. She has been progressing well and continues to do so in the main but is highly anxious. There are no concerns about her parenting of [C] and Children services in the area that she lives have not been involved with him. He is developing appropriately and is in good health.”

13. It was and remained the Appellant’s case that the Respondent was aggressive, intimidating and that he was also controlling and emotionally abusive during the relationship. It is her case that she had been subjected to domestic abuse which included verbal abuse and that he had physically and sexually assaulted her while the child was present in their home.

14. After police intervention the parties resumed their relationship and it is the Appellant’s case that the domestic abuse resumed. The Respondent’s abusive behaviour towards the Appellant continued and this had culminated in two occasions where the Respondent had sexual intercourse with the Appellant without her consent on or around 18th May 2016 and mid July 2016. The Appellant had then fled taking C with her and later reported the assaults and abuse to the Police. The Respondent called the police to report the Appellant (but, it is noteworthy, not the child) as missing. On the 28th August 2019 a neighbour had reported the Respondent to the police to complain about the Respondent harassing her and making threats via third parties, and because the neighbour was concerned that the Respondent was trying find out Appellant’s location.

Hearing on 8th August 2019

15. The trial took place on 8th August 2019. The Appellant, as can be seen from the letter alluded to above, is a vulnerable witness as set out and defined by FPR 2010 r3A.7 (a) (i); (d); (e); (j) and (f) and had applied for screens to be made available in the court room (r3A.8 (a)) as a measure to be put in place to assist her in giving her best evidence: to enable her to do so is the court’s duty under r3A.5. The judge took the inexplicable step, contrary to the expressed view and request of the Appellant, and contrary to the rules of procedure, of ordering that the Appellant give evidence from counsel’s row as “better” than using the witness box and screens. In doing this he had not only decided not to follow Part 3A of the FPR 2010, but he also completely failed to give any or adequate reasons for doing so as required by r3A.9 of the FPR 2010. These are serious procedural irregularities which would allow for an appeal to be granted under FPR 2010 r30.12 (3) (b).

16. The Appellant’s skeleton argument (as prepared by trial counsel) refers to the unsurprising difficulties that the trial judge then encountered in being able to hear the Appellant’s evidence. It is a matter of further complaint that as a result he actually did not hear significant parts of what the Appellant had said in court; a matter the judge himself accepted in paragraph 15 of his judgment. The judge then proceeded to order that the Respondent, too, should give evidence from counsel’s row making reference to the “feng shui” of the court room and the screens and saying that it was fair and “created some kind of balance” without any application having been made by the Respondent that he needed to give evidence in the same manner as the Appellant. Concerns raised by counsel were dismissed without reasons being given for this decision by the judge. The Respondent was then able to give evidence sitting next to his McKenzie friend who was, as a consequence, able to assist the Respondent in the answers he gave when the Respondent was being cross-examined. It follows that the Respondent was given an advantage and assistance denied to the Appellant. As was submitted by trial counsel in her skeleton argument and I accept “… it is plain and requires no citation that when a witness is giving evidence, they are ‘under oath’ and are to receive no prompting, assistance or advice during the midst of it.”

17. The 7th ground of appeal, as submitted by counsel, was that the decision was unjust for due to serious procedural irregularity; I would have allowed the appeal on this ground alone, but along with his conduct of this case any broad analysis of his judgment, and approach to the fact-finding is so flawed as to lead to the conclusion that it is unsafe and wrong. Counsel submits that the judge failed to apply the provisions on PD12J of the FPR 2010 and drew this Court’s attentions to the following definitions;
o “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.

o “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim

o “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour:”

18. It forms part of the Appellant’s case that the judge failed to apply these definitions, or at the very least, keep them in mind. That submission is accepted. Moreover, the definition of domestic abuse presently used by the Government (which includes so-called ‘honour’ based abuse, female genital mutilation (FGM) and forced marriage) reads
“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to psychological, physical, sexual, financial, or emotional.”

19. “[3] Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.” And “[4] Coercive behaviour is an act or pattern of acts of assault, threats, humiliation (whether public or private) and intimidation or other abuse that is used to harm, punish, or frighten the victim. Abuse may take place through person to person contact, or through other methods, including but not limited to, telephone calls, text, email, social networking sites or use of GPS tracking devices.”

20. At paragraph 8 the guidance addresses factors affecting the seriousness of the behaviours:
“Domestic abuse offences are regarded as particularly serious within the criminal justice system. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them. 9. Cases in which the victim has withdrawn from the prosecution do not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case.”

21. This judge, as a leadership judge in the Family Court, must be fully cognisant of the relevant guidance and definitions and should have borne it in mind, even if he did not explicitly say so, but he failed to do so in any part of his judgment. Furthermore by dismissing or ignoring the reports from the police, and the complaints of others by considering and concentrating only on the oral evidence of the parties (paragraph 9 of his judgment) he failed to take into account relevant material which formed part of the overall picture of the parties relationship and might reasonably have been found to have indicated a concerning history of reported aggressive, criminal and violent behaviour on the part of the Respondent.

22. According to trial counsel’s notes the trial concluded at 16:30, and she, as for the Appellant, was unable to make the all the closing submissions she intended to in the time that was allowed to her which commencing at 16:45, not least as her oral submissions were repeatedly interrupted by the judge. The judge did not then call on the Respondent at all. The real risk of the appearance of a partisan approach in the judge’s conduct is self-evident. This was compounded when, after delivering his judgment at 17:55, the judge ordered a s7 report and invited the Cafcass Officer to consider Cafcass contact intervention, yet no evidence in respect of the need for this was given or considered during the trial, and the Appellant was denied any opportunity to address the court about the necessity for, or the imposition of such conditions. The judge then failed to give any reasons for so doing and further compounded his errors when, on 23rd August 2019, the judge directed Cafcass to investigate any child protection concerns in the Appellant’s care of C. Nothing in respect of this was raised at trial, there was no evidence (indeed the opposite was indicated in the safeguarding correspondence) before the court to support such a direction but the trial judge saw fit to impose such a direction, nonetheless.

The judgement
23. The judgment was flawed for a multiplicity of reasons which I shall set out below. In the grounds of appeal and skeleton counsel has set out the principal grounds which I summarise and shall endeavour to deal with each in turn; i) that the judge had erred in his task in balancing the evidence by placing insufficient, indeed it could be said any, weight on corroborative evidence or material before the court and placing undue weight on irrelevant matters. The judge had directed police disclosure which included the independent witness statement of a neighbour along with police records which supported the Appellant’s account. In his judgment not only did he find there was no independent evidence he failed to set out why he chose to disregard it, or if he had had regard to it he failed to set out why he found that it was not independent or in any sense corroborative other than to dismiss both a friend and the neighbour’s evidence out of hand because they were the Appellant’s “friends”.

24. It was submitted that ii) the judge failed properly and correctly to balance the evidence before the Court and gave insufficient reason for not finding allegations as set out 1to 6. Specifically, it is submitted, the judge’s conclusions in respect of controlling and coercive behaviour on the part of the Respondent are predicated on an assumption that the use of language cannot form a significant part of the basis of a controlling relationship. This is contrary to the provisions of PD12J (as set out above). In the next paragraph the judge goes on to dismiss violent behaviour (throwing objects) as part of controlling or coercive behaviour without explanation. I accept the submission on behalf of the Appellant that the judge failed to make any findings about the Respondent’s use of language neither finding proved or dismissing the specific complaints made by the Appellant, which, if taken together, could be found to be part of a pattern of controlling, abusive and coercive behaviour.

25. The grounds of appeal go on iii) to say that the judge was wrong in that he had placed undue weight on the demeanour of the parties in Court when assessing their evidence. Appellate case law is redolent with cautionary guidance and comment on the need to look beyond demeanour when reaching a conclusion about the veracity of any witness yet the judge baldly said at paragraph 13 that the Respondent had the “better of the argument” describing the Respondent’s demeanour as straightforward without more. In this he failed, as he was required to, to give reasons for preferring the evidence of one party over the other (Cf. Lord Justice McFarlane (as he then was) in V (A Child) (Inadequate Reasons for Findings of Fact) (2015) EWCA Civ 274). Certainly the fact that the judge preferred the Respondent’s case was patent throughout his judgment. His reasons, such as they were for dismissing the evidence of the Appellant were wrong; specifically, the judge made a finding regarding the Appellant’s psychological state of mind without any forensic expert evidence (the absence of which had been a matter he himself alluded to previously at paragraph 7 of his judgment) when he said, in an exchange during closing submissions with counsel, “she [the Appellant] gives a description of a woman who is of a highly anxious, it might be said, neurotic, disposition”. In saying thus the judge had apparently reached a conclusion regarding the Appellant’s state of mind without sufficient evidence to support it; moreover it was a conclusion which was contrary to the case of the Respondent. It is necessary to interject here that other than denials it was not possible to decern with any particularity the case put by the Respondent (who was the applicant in the case) because of the absence of reference to it in the judgment.

26. If the Appellant appeared to be, and was in actuality anxious, and the judge referred to her as anxious from the outset of the hearing, and again in his judgment (see paragraph 15) is unsurprising given the judge’s comprehensive failure to apply Part 3A. The failure of the judge to provide the Appellant with the means of giving her best evidence was evidenced by the fact that her oral evidence was not heard by the judge and was not picked up on tape. To go on, as this judge did, to use it as one of the reasons he questioned her evidence is aberrant. Moreover, in his judgment the judge wholly failed to consider or even to entertain any likelihood that her anxious presentation was as a result of previous abuse, including the probability that this had included abuse by the Respondent. Or, as was submitted by counsel for the Appellant that, that as a vulnerable witness, she was likely to have been distressed when she gave her evidence which, in turn, would have had an impact on her ability to recall matters that had taken place. During oral her evidence, in response to a question by counsel, the Appellant had said she was “stressed, nervous. I haven’t slept, eaten anything. It’s hard if he can be here”. It is of note that there are facilities for witnesses to give evidence by video link near or in the Central Family Court.

27. In ground iv) the Appellant submitted that the judge failed to take into consideration that the Respondent had previously, and repeatedly, been involved with the police in respect of incidents of domestic violence and harassment and/or the judge failed properly to assess the Police reports and intervention not just with this Appellant but also involving previous partners and female relatives. Having ordered disclosure from the Police the judge then made little use of it except in reference to “inconsistences” in the Appellant’s later evidence; although her complaints to the police about incidents of domestic abuse remained consistent. Of the inconsistencies in the Respondent’s evidence, as put to him in evidence, the judge was dismissive but, again, failed to give his reasons for dismissing them [Cf. Lord Justice Moylan in Re A (Children) [2019] EWCA Civ 74)].

28. There was one incident of domestic abuse, which the judge appeared to accept, when the Respondent had pinned the Appellant against the wall, at least, the contemporaneous police report was of a more extensive assault, yet no finding was made; the judge’s comment that this was “the only allegation of violence” serves to underline a failure to consider or appreciate the concepts and reality of domestic abuse, control and coercion as defined by PD12J and set out above, and the fact that such abuse is not confined to physical violence. The judge did not deal with the effect such an assault (being pinned against a wall) would be likely to have on the Appellant particularly if it had taken place within an abusive relationship. The judge’s conclusion at paragraph 20 that the Appellant’s description “goes no further, really, in my view, on analysis, than saying that the relationship had its difficulties…” was reached in the absence of a thorough analysis of domestic abuse as it pertained in this case. Moreover, the judge’s comments (at paragraph 19 of the judgment) that the cessation of complaints by the Appellant beyond the end of the relationship were in anyway reassuring or supportive of a decision that there was minimal domestic abuse are wholly misconstrued as the most obvious reason there were no further incidents or complaints was that Appellant had fled the family home with C and their location was not known to the Respondent, who had remained on conditional police bail himself for another year.

29. The finding by the judge that C was not harmed by the Respondent, given his approach to the case as a whole, and the Appellant’s case specifically, cannot be considered safe; particularly as the judge (at paragraph 29) found that the Respondent had used “more force than normal” when changing the child’s nappy. The phrase itself is indicative of possible abuse, in handling the child roughly which, even if not deliberate or malicious could have been inappropriate or even harmful and was supportive of the Appellant’s case.

30. At ground v) the Appellant submitted that the judge “had been wrong to made findings on matters which were not put to the Appellant”. This ground referred to two matters, the first being that the judge found (at paragraph 30) that the Appellant had been “guilty of aggressive behaviour herself, on occasions.” This had not been put to the Appellant during the trial and it is improper to make findings against a party when that party is not given an opportunity, when giving evidence, to answer them. In addition it did not appear to form any part of the Respondent’s case.

31. Secondly, after failing to deal with the text messages, sent by to the Appellant by the Respondent, during the hearing and on being addressed by counsel in respect of this failure on application for permission to appeal, the judge had concluded that graphic, sexually explicit and threatening texts such as “If you don’t shut up I will stick my cock up your ass” were consistent with “sexting” and were not “helpful”. It had not been the Respondent’s case that the texts were “sexting”, nor was this put to the Appellant during her evidence. Not only was the content of the texts likely to have been relevant in connection with any consideration of controlling and coercive behaviour, it may well have had relevance in connection with the complaints of sexual assault. Notwithstanding the relevance of the texts as evidence, it would seem that the judge wholly failed to understand that is the effect on the recipient that is pertinent when considering whether any message or communication is threatening and/or abusive.

32. Ground vi) was in respect of findings that the Appellant had not been subjected to sexual penetration without consent (raped) by the Respondent. It is submitted on behalf of the Appellant that the judge was wrong in allowing his “out-dated views on sexual assault and likely victim responses” to influence his findings and conclusions on the facts and law on this case. The phrase “out-dated” is a euphemistic one on full consideration of the judge’s approach to the Appellant’s consenting to sexual intercourse in a physical position and manner which she, even on the judge’s assessment, found repugnant and was “sexual intercourse which was not, at the time, towards the [Appellant’s] taste or inclination.” (Paragraph 22)

33. The relevant passages in his judgment which make most concerning reading are to be found in paragraphs 23, 24, 25, 26, 27 and 28. I have not set them out in full detail nor should it be necessary to do so as it is clear that the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct.

34. The judge, having started by accepting that the Appellant “had difficulties in taking physical enjoyment from sex…” because of events in her past and had often told the Respondent to stop during intercourse in the past then went on to accept that on the first of the two incidents of penetrative sexual assault the Appellant had been reluctant to have sex, that during intercourse she asked him to stop and he did not and carried on; this appears to have been accepted by the Respondent to some extent as he said both that he stopped and later that the Appellant had not asked him to stop. Paragraph 23 reads
“…the first occasion it is the mother’s own case that sexual intercourse began with her consent, and consent was only removed during intercourse when the mother told the father to stop — but he failed to do so. The difficulties do not end there because this is a mother who very often, and for all I know, always, found that she had difficulties in taking physical enjoyment from sex. She would, she tells me, often tell the father to stop during the times when intercourse between them was more frequent than it was in 2016. The difficulties arose, apparently, because of events in her past…”
The judge then went on to comment both that the Appellant had not physically resisted and that she was upset afterwards but dismissed her distress in this way; “If the [Appellant] was upset afterwards, which the [Respondent] recognises, this was nothing unusual because of the difficulties I have mentioned.”

35. At paragraph 24 of his judgment the judge dealt with the Appellant telling the Respondent to stop penetrating her in this way
“…the sex in question took place with the mother kneeling on the bed and the father standing behind her. During intercourse she told him to stop, but he did not, and carried on at least for “a couple of minutes”, which is a description given, I think, to the police. It is part of the mother’s case that she took no physical step to encourage the father to desist. The father’s contention is that the sex between them on this occasion, which he recognises because it was one of very few occasions when the parties had sex during the year in question, was entirely consensual from beginning to end, and he was not told to stop. If the mother was upset afterwards, which the father recognises, this was nothing unusual because of the difficulties which I have mentioned.”

36. Further in dealing with her consent the judge continued (at paragraph 25);
“My concern about this occasion centres on the idea that the mother did nothing physically to stop the father. In particular, given the position in which intercourse was occurring, because the mother was not in any sense pinned down on this occasion, but could easily, physically, have made life harder for the father. She did not do so. I do not find that the father was in any way on this occasion so physically forcing her as to cause her not to be able to take preventative measures, nor, in fact, is that case alleged. Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else. Her description, of course, does not indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.”

37. This judgment is flawed. This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent. This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim. Whilst the burden of proving her case was with the Appellant in any counter allegation the burden lay with the Respondent. Indeed it was the Respondent who had brought the case as the applicant in the Family Court, thus the burden of proof did not lie solely with the Appellant. Moreover the judge should have been fully aware that the issue of consent is one which has developed jurisprudentially, particularly within the criminal jurisdiction, over the past 15 years (of which more below).

38. The judge’s view in respect of consent is underscored by his comment at paragraph 25 (as quoted above) when he said, “My concern about this occasion centres on the idea that the [Appellant] did nothing physically to stop the [Respondent].” The judge then went on to say that because the Appellant was on all fours on the bed, at the Respondent’s insistence this would have, according to this judge, made it easier for her to resist and “made life harder for the [Respondent]…” and that the Respondent had not, the judge found (again the evidence on which he reached this conclusion is absent from the judgment), been “so physically forcing her as to cause her not to be able to take preventative measures [sic]..”. The judge then comments that the Appellant did not take immediate action to call the police or anyone else and that her description, in the view of this judge, did not “indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.” In keeping with his approach thus far the judge had apparently concluded that it is necessary for victims of sexual assault to report the assault or make a contemporaneous report. Yet it is now explicitly accepted that many victims will not do so, out of fear or embarrassment which are based on their cultural, social or religious background and the concomitant pressures, mores or beliefs.

39. The judge then considered the second incident when the Appellant says sexual intercourse took place without her consent at paragraph 26 of his judgment.
“The second occasion, occurring some two months later, began with the parties watching television whilst in bed. The father suggested the television should be turned off. As I understand it, it is common ground that it was, and then the father, again, requested sex of the mother. This time the mother’s case is that she refused, and when intercourse began it was not with her consent. She says that she was wearing pyjamas. The father took the pyjamas off and had intercourse with her, again from behind. This was at no point, the mother says, with her consent. The father maintains to the contrary — that intercourse was initiated by both of the parties and was entirely consensual throughout. Again, he recalls the occasion of which the mother speaks. Here, my difficulty with the mother’s account centres on the removal of her pyjama bottoms. I should emphasise that father’s account is that in fact she was wearing a nightie. I do not see why the mother could not, should not, have made life difficult for the father in the circumstances in which she found herself by preventing the removal of the pyjama bottoms. There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive on this occasion. Insistent in his requests, yes, but physically coercive, no.”

40. The Respondent was once again penetrated by the Respondent from behind. The Respondent said she consented. The Appellant said she did not at any point consent to sexual intercourse taking place. At paragraph 26 (quoted above) the judge said, “…my difficulty with the [Appellant’s] account centres on the removal of her pyjama bottoms…I do not see why the [Appellant] could not, should not, have made life difficult for the [Respondent] in the circumstances by preventing the removal of the pyjama bottoms.” Again the judge’s conclusion on whether sex was consensual or not is wrongly predicated on the presumption that to establish non-consensual penetration the complainant should have physically resisted. Similarly, the judge said “There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive (my emphasis) on this occasion” as can be seen below physical coercion or violence or the threat of violence is not considered a necessary element when considering consent or the lack of consent, thus the judge was wrong in his approach.

41. This time (as the judge noted in paragraph 27 of his judgment) the Appellant did report a serious sexual assault to the Police. Paragraph 27 reads
“The [Appellant] “was to report these events to the police at the end of August. But there may be some significance in the circumstances in which she did so because one of her friends, [P], in her written statement, appears to imply that the purpose of the visit to the police station at the end of August was to report father’s threats made to her [P}, and that it was almost incidental that the question of the mother being forced to have sex (the expression used in [P’s] police statement) came to be revealed. Moreover, the terms of [P’s] statement, again, can hardly be said to be heavily supportive of mother’s case as to the terms in which the mother was reporting what happened to her. [P’s] account contains the following sentence: ‘I asked her what had then happened and she told me that she had let the father have sex with her as it was easier than to keep saying no.’ That can hardly be said to support a coherent account of rape.”

42. Thus the circumstances in which the complaint was made was impliedly, and to some extent explicitly, criticised by the judge because the Appellant had originally accompanied a friend to the police station to complain about the Respondent’s aggressive behaviour to that friend, and it was the friend who had raised the incident of sexual assault on the Appellant with the Police. The friend told the Police, as the judge quoted in his judgment (above), ‘”I asked her what had happened and she said that she had let the [Respondent] have sex with her as it was easier than saying no.”‘ This, the judge found, could hardly be said to support a coherent account of rape. This conclusion is obtuse, any decision of consent must include a coherent account (to borrow the judge’s own phrase) and consideration of the extent to which the complainant or victim was free to choose and to consent, or to paraphrase the relevant criminal statute (s74 Sexual Offences Act (SOA) 2003), that person has had the freedom and capacity to make that choice. It is arguable, at the very least, that the evidence before the judge was that the Appellant’s freedom and capacity to choose had been extinguished or at least gravely compromised.

43. At paragraph 28 of his judgment, which reads
“My findings on this occasion, as to both these occasions, is that the sex between the parties carried the consent of both. This was not rape. It may have been that at a point during both occasions of intercourse the mother became both upset and averse to the idea of the intercourse continuing. But if she did so, I emphasise this was something which was usual for her, the product of events in her past and her psychological state in not being able to take physical pleasure from sex. It was not a consequence of any action on the part of the father. Moreover, at no point during these occasions do I find that the mother withdrew consent or conveyed to the father any discomfiture that she was feeling about the intercourse continuing. I cannot even, on this evidence, find that the father was somehow insensitive to the mother’s position. I can accept that he would have asked for sex perhaps on a number of occasions before sex commenced, but that is as far as it goes. Given the nature of these allegations I have felt it necessary to set out these detailed findings in respect of it.”

44. Thus, the judge had accepted that “at a point during both occasions of intercourse the [Appellant] became both upset and averse to the idea of intercourse continuing. [My emphasis]” but he continued to reach the conclusion that had the Appellant done so it was not as a consequence of any action on the part of the Respondent because it was “something that was usual for her, the product of her past and her psychological state in not being able to take physical pleasure from sex.” The judge went to say that “at no point do I find that the [Appellant] withdrew consent or conveyed to the [Respondent] any discomfiture that she was felling about intercourse continuing.” The judge failed to explain the reasons for his findings; as to why, if it was evident to the judge that the Appellant had become averse to sexual intercourse continuing it was not evident to the Respondent; and, secondly, why it was acceptable for the Respondent to insist on sexual intercourse knowing that it was distressing and unwelcome to the Appellant. The evidence that the judge had rehearsed thus far did would not support such a finding nor did he give any or adequate reasons for preferring the evidence of the Respondent, other than the bald comment in paragraph 13 that he had found him to be “the more convincing witness, giving his evidence in a straight-forward, forthright manner…” The fact is that this judge had largely relied on his view that the Appellant had not vigorously physically fought off the Respondent.

45. Moreover, the judge did not consider or explain in his judgment why, as it was an accepted fact that the Appellant was unable to take physical pleasure from sex, there was no onus on the Respondent to establish that the Appellant was able to and was freely exercising her right to choose whether or not to participate in sexual intercourse. The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate.

Legal Discussion: serious sexual assault in family proceedings
46. The Court of Appeal has considered the issue of analysing factual findings based upon criminal law principles and concepts in Re R (Children) (Care Proceedings: Fact Finding Hearings) [2018] 1 WLR 1821 : [2018] 2 FLR 718, Sir Andrew McFarlane (P) found that as a matter of principle it was fundamentally wrong for the Family Court to be drawn into an analysis of what had happened through the prism of criminal principles and concepts as proceedings could “…easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child”. Nonetheless there are many cases where the approach taken in the criminal courts to the interpretation of facts and analysis of evidence has been considered both helpful to, and applicable, in family cases; in any event there should be congruence of approach in both the family and criminal jurisdictions which would require some knowledge and understanding of the relevant approach criminal law particularly where consent is an issue. Two years previously in Re H-C [2016] 4 WLR 85 Lord Justice McFarlane (as he then was) said “I have taken the opportunity to refer to R v Lucas in the hope that a reminder of the relevant approach taken in the criminal jurisdiction will be of assistance generally in family cases.” It can be taken from this that approach applied in the criminal jurisdiction are of relevance in the Family Court and in family proceedings.

47. While a trial in the Family Court cannot, and must not, set out to replicate a trial or to apply, or seek to apply, Criminal Law or statute it cannot be lawful or jurisprudentially apposite for the Family Court to apply wholly different concepts or to take an approach wholly at odds from that which applies in the criminal jurisdiction when it comes to deciding whether incidents involving sexual intercourse, whether vaginally penetrative or not, and other sexual acts including oral penetration, penetration by an object or in other form were non-consensual. Non-consensual sexual intercourse was considered lawful within a marriage until as late as 1992 (Cf. R [1992] 1 AC 599) it has not been lawful in any other sphere for generations. There is no principle that lack of consent must be demonstrated by physical resistance, this approach is wrong, family judges should not approach the issue of consent in respect of serious sexual assault in a manner so wholly at odds with that taken in the criminal jurisdiction (specifically the changes in place since SOA 2003 and subsequent amendments). Serious sexual assault, including penetrative assault, should not be minimised as a part of or as an example of coercive and controlling behaviour (itself a criminal offence) although such behaviour may form part of the subordination of a potential victim’s will (see the guidance set out at paragraphs 19 and 20 above).

48. To consider the relevant approach to be taken reference should be made to the statutory provisions in respect of consent; s 74 of the Sexual Offences Act (SOA) 2003 provides that “‘Consent’ (for the purposes of this Part – my parenthesis) a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” There are circumstances in criminal law where there can be evidential or conclusive presumptions that the complainant did not consent set out in ss75 & 76 which, respectively, concern the use or threat of violence by the perpetrator and the use of deception; neither of which preclude reliance on s74 (Cf. Blackstone’s B3.46 2020 ed.)

49. To quote from Blackstone’s Criminal Practice [2020 at B3.28] where the absence of consent is considered it is said “the definition in s74 with its emphasis on free agreement, is designed to focus upon the complainant’s autonomy. It highlights the fact that a complainant who simply freezes with no protest or resistance may nevertheless not be consenting. Violence or the threat of violence is not a necessary ingredient. To have the freedom to make a choice a person must be free from physical pressure, but it remains a matter of fact for a jury as to what degree of coercion has to be exercised upon a person’s mind before he or she is not agreeing by choice with the freedom to make that choice. Context is all-important.” There can be no reason why this approach should not be followed in the Family Court, whilst applying a different standard of proof. The deleterious and long-term effects on children of living within a home domestic abuse and violence, including serious sexual assault, has been accepted for some years, as is the effects on children’s welfare, and their ability to form safe and healthy relationships as adults, if their parents or carers are themselves subjected to assault and harm.

50. In respect of consent in the criminal jurisdiction, which should inform the approach in the Family Court, the authors of Blackstone’s set out at B3.29 “Consent covers a range of behaviour from whole-hearted enthusiastic agreement to reluctant acquiescence. Context is critical. Where the prosecution allegation of absence of consent is based on lack of agreement without evidence of violence or threats of violence, there will be circumstances, particularly where there has been a consensual sexual relationship between the parties, where a jury will require assistance with distinguishing lack of consent from reluctant but free exercise of choice.” The Court of Appeal Criminal Division considered that a direction along the lines of the direction of Pill J approved in Zafar (Cf. the Crown Court Compendium (July 2019), chapter 20.4, para. 4) may well be appropriate. It should be advisable for Family Court judges to remind themselves of this approach and direct themselves appropriately based on the relevant approach contained in Chapter 20.

51. With further reference to B3.29 (Ibid) and the approach to take in making the distinction lack of consent from reluctant but free exercise of choice; “submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence” (Cf. Watson [2015] EWCA Crim 559); or where a complainant’s free choice was overborne so that they did not have a free choice; an example of which was when a complainant gave into a perpetrator’s demands because she was scared that if she did not he would have sex with her by force.

52. As a further example of the approach to be taken in respect of consent in civil proceedings in Archbold Criminal Pleading and Evidence 2020, Chapter 20, Part II, at A [20-23] reference is made to the case of Assange v Swedish Prosecution Authority [2011] EWHC 2849 as
“relied on in R. (F.) v DPP [2013] EWHC 945 (Admin); [2013] 2 Cr. App. R. 21, DC, for the proposition that ‘choice’ is crucial to the issue of ‘consent’; and the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common sense way; where, therefore, a woman consents to penetration on the clear understanding that the man will not ejaculate within her vagina, if, before penetration begins, the man has made up his mind that he will ejaculate before withdrawal, or even, because ‘penetration is a continuing act from entry to withdrawal’ (s.79(2) (§ 20-42)), decides, after penetration has commenced, that he will not withdraw before ejaculation, just because he deems the woman subservient to his control, she will have been deprived of choice relating to the crucial feature on which her original consent was based, and her consent will accordingly be negated.”

53. A further and instructive distinction between consent and submission and the approach to be followed was drawn in R v Kirk (Peter & Terence) [2008] EWCA Crim 434: [2008] 3 WLUK 36, by Pill J at [92] where the expression “willing submission” had been used in directing the jury, it was said that the use of the expression was
“not an easy one in this context. Willingness is usually associated with consent. However, we are satisfied that the jury would not, in the context of this very full direction, have been misled by the use of the word “willing”. This was not a case where it was alleged that submission had been achieved by physical force. It was willing in the sense that there was no attempt at physical resistance by the complainant and the judge used it in that sense. That leaves open the possibility that the circumstances were such that the complainant submitted to sexual intercourse rather than consented to it. That was the overall effect of the direction. We are satisfied that, having regard to the full direction given, the jury would not have been misled or distracted, by the use of the expression “willing submission”, from the question they were told they had to answer. It is not, however, an expression we would commend for use on other occasions.”

54. The judge in the instant case should have considered the likelihood that the Appellant had submitted to sexual intercourse; he singularly and comprehensively failed to do so instead employing obsolescent concepts concerning the issue of consent.

Standard of proof applied

55. Finally, having previously dealt with procedural matters in respect of Part 3A which was ground vii), it is necessary to consider the judge’s approach as to the standard of proof he was obliged to apply. As Lieven J said when allowing the appeal “at paragraph 10 of his judgment the judge made comments on his approach to the standard of proof ought to be considered. The judge appeared to be troubled by the fact that if he made a finding, the binary nature of the law means he would have to proceed on the basis it was correct, even if he were wrong.” It is evident that in making his observations the judge was, in fact, applying a higher standard of proof than the simple balance of probabilities; for at paragraph 10 the judge said, after describing the standard of proof as a difficulty in this case, “So, if I find myself in respect of a particular allegation 51 percent favouring the evidence of one party and only 49 percent of the other, if in other words it is finely balanced, there is a grave risk that I get it wrong – but thereafter would have to treat my findings as absolutely correct.” He compounded the impression that he was troubled by applying the correct balance of proof when went on to say “In short, whilst it is the court’s duty to investigate and make findings, as best it can in accordance with the evidence, there is very often so far that the court can safely go before the benefits of a fact-finding begin to diminish.”

56. The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141. The words of Lord Hoffman in Re B which apply to serious sexual and physical abuse and assault as they would to any finding of fact: “If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one.” The judge gave the appearance of being reluctant to apply that standard, moreover, at paragraph 22, having reiterated that the standard of proof is the simple balance of probabilities he went on… “[t]he difficulty here is that on any view, as I have said the mother’s case is poised, it might be said exquisitely poised, on a point between non-consensual and consensual sexual intercourse which was not, at the time towards the mother’s taste or inclination.” This comment is a further example of the judge’s apparent reluctance to apply the binary system and thus the correct standard of proof. The judge has erred in law by applying, or appearing to apply, a higher standard of proof.

57. Any finding of fact in private law or CA 1989 proceedings, and in all civil cases must be based only on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. [12] “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation”. Yet in the absence of evidence the judge found that the Appellant had been “guilty” of aggressive acts herself. The judge has erred in law by making this finding.

58. For the reasons set out above the judgment was so flawed as to require a retrial; his decision was unjust because of serious procedural irregularity and multiple errors of law. The case is to be remitted for retrial by a High Court Judge or Deputy High Court Judge at the Royal Courts of Justice.

Recommendation
59. Judges in the family courts are regularly required to make decisions and find facts in cases where there is domestic abuse; this will include cases where serious sexual assault is alleged to have taken place. Currently there is comprehensive training on the procedural aspects of such trials and the implementation of PD12J in particular. Judges who sit in the family courts are not, however, required to undergo training on the appropriate approach to take when considering allegations of serious sexual assault where issues of consent are raised. Such training is provided to judges who are likely to try serious sexual allegations in the criminal courts. In principle the approach taken in family proceedings should be congruent with the principles applied in the criminal jurisdiction. I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges. This is a welcome development, a cross-jurisdictional approach to training on this important topic will be of assistance, support and benefit to all judges and will foster a more coherent approach.

Orders
60. These are the reasons for the order allowing the appeal and consequential orders, including for a retrial, which were made in December 2019 following the hearing.

AR January 2020

EF, GH, IJ (care proceedings) [2019] EWFC 75
Fact finding hearing in which the conduct of the police during the ABE interviewing process rendered the evidence unreliable
The court was concerned with three brothers aged 17, 14 and 12. All 3 were joined as parties to these proceedings and separately represented from the other. Serious allegations of sexual abuse were made by them against their father and members of paternal family. The paternal grandparents and paternal uncle were therefore joined as interveners in the case.

In 2017, when the parents marriage had broken down, the mother told the father she believed he had raped her the year previous and the relationship was now over. This allegation was later determined not to have happened in a fact finding hearing in private law proceedings.
Following the breakdown of the marriage, the father attempted suicide on two occasions and after a brief return to the family home, lived with the paternal grandparents where his contact would take place with the children.
Children services became aware of this family after the father’s first suicide attempt and an assessment started during which it was noted that there was a warm and positive relationship enjoyed between the children and their father and that the family were shielding the children from the father’s suicide attempt and were being supported by their paternal grandparents.
After the second suicide attempt, the mother attended her GP surgery as she was concerned that the children were suffering stress as a result of the father’s poor mental health and the parents agreed they should seek a referral for them all to the local Camhs.
Within three weeks of the second suicide attempt, the father again threatened to kill himself causing the mother to telephone the police informing them of the same.
In the following month the father informed the mother by text that he would not attempt suicide again and that he wanted to live and so the family fell into a pattern of gradually increasing weekly contact between the father and his children at the home of the paternal grandparents. No concerns were raised in this regard.
Over the summer the mother petitioned for divorce and the parties underwent a mediation process and whilst initially the mother had agreed that the children could go on holiday with their father to France, she reneged on this after a string of allegations were made by the children, firstly alleging physical harm against their father and his family, then increasing in severity to serious sexual abuse by their father, paternal grandparents and paternal uncle. These matters were part of private law proceedings brought by the father.
From August 2018 until March 2019 a police investigation was carried out by DC Andrews (now retired) and the children underwent 22 ABE interviews between them. These were often on consecutive days and were unusually long in duration; on one occasion an interview went on for over 3 hours. This evidence is summarised in the judgment and was of great concern to both the Judge and Expert instructed in the case. The children were also subjected to medical examinations.
Care proceedings were issued in March 2019 by which time the children were not having any contact with their paternal family and were aware of the outcome by the court of the mother’s rape allegation against the father.
Clinical Psychologist, Dr David Glasgow, was instructed to advise on a re W exercise for a fact finding hearing. Dr Glasgow expressed serious concerns regarding the conduct of the ABE interviews concluding that in his view they were “a disservice to the children, their family and to the family Court” and that the primary effect was to elevate concerns regarding the evidence of the children and place an increased burden on the family Court. His concerns are set out at paragraph 113.
Intermediaries were appointed to assist each boy during their oral evidence and special measures implimented. The judgment goes into great detail about the evidence heard and the concerns raised by the Judge as to the truthfulness thereof. Over the course of the hearing, and after their oral evidence, each child retracted some/all of their allegations and it soon became apparent that the mother didn’t believe that they had happened either and that the father posed no risk of harm to any of them.
A significant feature in this case is the conduct of DC Andrews. The court determined that the role she played in the lives of the family was hugely significant and that she breached most aspects of the Guidance and of accepted Good Practice when interviewing the children. The strong criticisms of her are detailed at paragraph 279 whereby the Judge concluded that the investigation carried out by her was done “in such an incompetent and harmful manner” and was “inexcusable”. The ABE interviews were so poor that little or no weight could be placed upon them.
The mother also came under criticism from the court for her omissions to act as a reasonable parent, the court concluding that she had caused the children significant emotional and psychological harm by failing to respond to the children’s allegations properly from the outset. There were allegations made by the children that she knew to be untrue yet she failed to challenge the children and appropriately reassure them that the father was infact a safe parent.
The court, having considered the totality of the evidence, could not even begin to be satisfied that the requisite standard of proof was reached and therefore did not make any of the findings sought and established that the threshold criteria was met.

 

______________
Neutral Citation Number: [2019] EWFC 75
Case No: WV19C00108

IN THE FAMILY COURT

Birmingham Civil Justice Centre

Date: 06/12/2019

Before :

MR JUSTICE KEEHAN
– – – – – – – – – – – – – – – – – – – – –

Between :

A LOCAL AUTHORITY Applicant
– and –
AB 1st Respondent
-and-
CD 2nd Respondent
-and-
EF, GH
AND IJ 3rd – 5th Respondents
-and-
KL 1st Intervener
-and-
MN 2nd Intervener
-and-
OP 3rd Intervener
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –

Mr R Hadley (instructed by The Local Authority) for the Applicant
Mr P Pressdee QC and Miss K Brown (instructed by Talbots Law) for the 1st Respondent
Mr S Momtaz QC and Ms V Clifford (instructed by Harrison Clark Rickerby Solicitors) for the 2nd Respondent
Mr J Vater QC and Ms K Taylor (instructed by Anthony Collins Solicitors) for the 3rd Respondent
Ms J Lattimer and Mr M Cooper (instructed by McDonald Kerrigan Solicitors) for the 4th Respondent
Ms L Meyer QC and Ms L Higgins (instructed by Rees Page Solicitors) for the 5th Respondent
Ms K Gallacher (instructed by Sharratts Solicitors) for the 1st and 2nd Intervener
Ms A Giz (instructed through Direct Access) for the 3rd Intervener

Hearing dates: 19th November – 6th December
– – – – – – – – – – – – – – – – – – – – –

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
………………………..

MR JUSTICE KEEHAN
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Hon. Mr Justice Keehan :
Introduction
1. In these public law care proceedings, I am concerned with three brothers, EF who is 17, GH who is 14 and IJ who is 12. Their mother is the First Respondent, AB and their father is the Second Respondent, CD. All three young people were joined as parties to these proceedings and are separately represented one from the other.

Keehan J

COMMITTAL
In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559
Baker Henderson and Coulson LJJ
Judgment: 22nd September 2019

The appellant was a member of Lincoln’s Inn, and hoped to train and practice as a barrister. He was working as a paralegal under a principal for a firm of solicitors in Hounslow, which specialised in immigration and family law. The appellant assisted in the preparation of a case in the Immigration and Asylum Tribunal and he prepared and filed a bundle. The bundle included a number of papers from family proceedings. The family court had not given permission for this disclosure and so this was a breach of Section 12 Administration of Justice Act 1960 and rule 12.73 FPR 2010 and a contempt of court.

The Tribunal found that the behaviour of the legal representatives fell a long way below that expected of solicitors, and requested a copy of this decision be forwarded to the Family Court for the attention of the relevant family judge.

The appellant provided a statement for the family court. At a further hearing in the family court the appellant attended but had not been served with notice of the hearing. The family judge required the appellant to take the oath and give evidence. He was warned that this was potentially a very serious breach which may lead to committal and can carry a term of imprisonment of up to 2 years. The appellant was offered the opportunity to seek legal representation and advice. He elected to proceed. He admitted to a breach of court rules, under his principal’s instructions. The Judge’s ruling was that the breach was so serious it could only attract a custodial sentence, and he sentenced the appellant to imprisonment for 6 months, suspended for 6 months. The Judge directed the principal to report himself to the Law Society (meaning presumably the SRA).

The appellant sought to appeal. He stated that he did not understand what was going on at the hearing.

Held: Committal order set aside

The court has repeatedly stressed that committal proceedings are of the utmost seriousness and it is imperative that the strict procedural rules governing such cases must be complied with. In this case the consequences of the disclosure may not have been as serious as in other cases. Nothing in this judgment should be interpreted as excusing the unlawful, unauthorised disclosure of confidential Family Court documents. However, it was plain there were a number of procedural errors which inevitably led to the conclusion that the appeal must succeed:

1. It was unclear whether or not the hearing was conducted in open court.

2. It was clear the appellant was given no proper notice that he was being accused of contempt of court or of the specific allegations against him. The warnings by the Judge about the consequences of a finding of contempt or the exchanges about legal representation were not anything like adequate to protect the appellant’s rights. The proper course which should have been adopted at that stage was either (a) to have issued a reprimand to the principal who seemed to have been principally responsible for any unauthorised disclosure, or (b) if the Judge considered it merited committal proceedings, to have particularised the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice.

3. The failure to particularise the allegations led to the further defect that it appeared the Judge was never shown the specific documents from the family proceedings which had been disclosed to the Tribunal, so it was impossible for the Judge to gauge the seriousness of the alleged breach.

4. There was little sign the Judge considered the extent of the appellant’s culpability. It did not seem to have occurred to the Judge that the principal may have been the real culprit.

5. The errors were compounded by the Judge’s direction to the appellant to go in the witness box. He overlooked the fact that a defendant to an application for committal is not obliged to give evidence.

The Court had no doubt that the appeal must be allowed and the suspended committal order be set aside.

DECLARATION OF PARENTAGE
PQ v RS and others (Legal Parenthood: Written consent) [2019] EWFC 65
Mrs Justice Theis
Judgment 15th October 2019

These were Children Act proceedings in which PQ sought a declaration of parentage and RS sought a declaration of non-parentage pursuant to S55A Family Law Act 1986. PQ was the non-biological parent of two children who were conceived following fertility treatment involving a sperm donor. RS was the mother.
PQ and RS agree that prior to any treatment, they both believed they were consenting to PQ becoming a parent of any child born as a result of the treatment, and they both believed they had signed whatever was legally required to ensure they were both became parents. They continued to believe this after the children were born, after they had jointly registered the children’s birth naming PQ as the children’s father.

In 2014, following an audit pursuant to the Human Fertilisation and Embryology Act 2008 PQ and RS were informed that the consent to being a legal parent form had been filled in incorrectly in that they had inserted their respective names in the wrong boxes. They both met with the clinic but decided to take no further action. In 2017 they separated. In the same year, PQ applied for a child arrangements order and the proceedings were adjourned for the issue of parentage to be determined. The children wee joined as parties and a guardian was appointed.

The HFEA 2008 provides a framework for the acquisition of parenthood by a non-biological father whose partner undergoes fertility treatment at a licenced UK clinic.
Provided the conditions are fulfilled, legal parentage is crystallised at the point at which the fertility treatment takes place. This was confirmed by Sir James Munby in Re HFEA 2008 (Cases A, B, C, D, E, F, G and H) [2017] 1 FLR 366.

PQ and RS agreed that: Both PQ and RS believed they were consenting to PQ becoming the parent of any child born as a result of the treatment at the Clinic; Both PQ and RS believed they had signed whatever was legally required, to ensure they both became parents; Both PQ and RS continued to believe the above, after the children’s birth and after they jointly registered the children’s births naming PQ as the children’s father on their birth certificates; and, PQ wrote to the CMS in late November 2017 stating that he had obtained written confirmation from the clinic that he was not the legal parent of the children.

RS argued that rectification of the ‘consent to being a legal parent’ form, is a discretionary equitable remedy and that the court should not order rectification in favour of PQ because of his conduct post separation. RS relied in part upon the delay in bringing the application and upon the fact that PQ had denied being the parent and this had been relied upon by third parties.

Held The application to rectify the consent to being a legal parent form was granted. PQ was granted the declaration of parentage.

The court summarised the circumstances in which mistakes on the face of the documents can be corrected:

1) This is permissible if the mistake is ‘obvious on the face of the document and it is plain what was meant: In the matter of HFEA 2008 (cases A-H, Declaration of Parentage) [2015] EWHC 2602 (Fam))

2) The court can do this by way of construction or rectification Re Y, Z, AA, AB and AC [2017] EWHC 784 (Fam) [11]).

3) In either case (correction or rectification) the fact of the parties’ separation is ‘legally irrelevant…for…the legal status of all parties finally and irrevocably crystallised at the moment when the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, and this treatment resulted in the birth of the child’: Re Y, Z, AA, AB and AC [2017] EWHC 784 (Fam) [65])

The Children’s Guardian and PQ argued that the court should be concerned with what the parties’ intentions were at the time the consents were signed. Whilst ‘conduct’ may be relevant to the Children Act Proceedings, it is not relevant for the declaration of parentage.

In this case the Form PP had been filled in incorrectly so that PQ and RS’s names were in the wrong part. There is no evidence to suggest this was anything other than a mistake, and the clinic did not pick up on this at the time. It was only as a result of the audit that the error was identified. The judge decided that the errors in the form are clear and obvious mistakes, and the court has jurisdiction to correct these mistakes by transposing the parties’ names into the correct sections on the PP form. The purpose of rectification is to permit equity to rectify the terms in the written instrument, namely the PP form, so as to make it accord with the true agreement of the parties at the time. The judge agreed that the focus of the court’s concern is the parties’ common intention at the time, as this is when the status crystallises.

FACT FINDING
F v M (Appeal) [2019] EWHC 3177 (Fam)
CobbJ
Judgment: 21st November 2019

This was an unsuccessful appeal by the father against a finding of fact that he had raped the mother, resulting in the subject child’s conception. The mother alleged that at first, intercourse between them was consensual. She did not want him to ejaculate inside her because they were not using contraception. She told him to stop but he carried on. The circuit judge found that knowing that the mother wanted him to stop, he knowingly carried on and ejaculated inside her. This was rape.
The father was granted permission to appeal the finding he had ‘raped’ the mother. He acted in person at the appeal. He said the judge had not properly considered all the evidence and the inconsistencies in the mother’s evidence. Further, he said the judge had not considered that the sexual intercourse had always been consensual, and the ejaculation was an accident on his part. The mother relied upon the definition of rape as the intentional penetration of the vagina without consent or where the person does not reasonably believe the other consents.

Held: Appeal dismissed. The appeal judge noted that the circuit judge had found that both parties had not been entirely honest in their evidence and had given herself an appropriate direction under R v Lucas; R v Middleton [1981] QB 720. The judge had properly considered the burden and standard of proof, carefully evaluated the evidence and she had written a detailed, thorough judgment. The appeal judge had found a rape had occurred not because of the ejaculation but rather, as the mother had withdrawn consent to the sexual act when she asked the father to stop part-way through the act. The continued penetration became a serious sexual assault which, in criminal law, under the Sexual Offences Act 2003 was classed as rape. The appeal was dismissed.

LITIGATION FRIEND
Raqeeb v Barts Health NHS Trust (Litigation Friend) [2019] EWHC 2976 (Admin)

At the age of 4, the child suffered extensive and irreversible brain damage. The child required constant life-sustaining treatment. She was minimally aware, if at all, but did not appear to be suffering pain. Medical consensus was that continued medical intervention would only sustain her life at or very near her current condition but if maintained, she would live for a substantial period of time.

The child’s parents wanted the child’s treatment to continue. The parents wanted to take the child to Italy to continue her treatment. The doctors wanted the treatment to be withdrawn, resulting in her death.

There were two applications:
1) an application for judicial review brought on behalf of the child by her litigation friend XX (a relative) seeking a review of the NHS Trust decision not to permit the child’s transfer to Italy to continue life sustaining treatment. In the case of this decision, the court would be functus as to the wider ‘best interests’ decision

2) an application by the NHS under the Children Act 1989 and the inherent jurisdiction for a declaration that it was in the child’s best interests, for life sustaining treatment to be withdrawn

XX was appointed by the court as litigation friend at an earlier hearing. The NHS opposed that appointment but did not appeal the decision. The NHS subsequently made an application to terminate XX’s appointment on the grounds of a change of circumstances and invited the court to substitute the OS or the child’s parents. The NHS contended that XX lacked the ability to take a balanced and even-handed approach to the merits of judicial review and would only ever hold a settled view to pursue a course in line with the tenets of Islamic Law, which did not support the withdrawal of the life-sustaining treatment because:

• XX lodged a position statement in the CA1989 proceedings opposing the withdrawal of treatment

• A fatwa had been obtained from the Islamic Council of Europe and served by TR’s parents indicating that it would be a grave sin for any Muslim to consent to the withdrawal of life-sustaining treatment for TR. This placed XX in an untenable position

• The NHS was uncomfortable that TR was being “caused” to argue that there was no need for, and she was not entitled to, a fully argued ‘best interests’ decision
Held: The NHS application was refused.

The court gave a detailed review of the statute and case law pertaining to litigation friends. The application was refused for the following reasons:

• XX was litigation friend in the judicial review proceedings only. The issue in those proceedings was whether the NHS decision was unlawful by reference to the child’s rights under directly effective EU law (Specifically Art 56 of The Treaty on the Functioning of the European Union which concerns free movement in relation to the provision of medical treatment).

• There was no suggestion that XX had been incompetent, had failed to acquaint herself with the issues or had, with the assistance of a highly experienced legal team, failed to take all steps necessary to further the interests of the child in that litigation

• In response to the assertion that XX was unable to act impartially, the court found:- That assertion concerned the potential consequences of the judicial review application being successful, not the merits of the application. XX’s views about the religious probity of withdrawing treatment were not relevant to the administrative law issue

– XX had a highly experienced and specialist legal team. There was no suggestion that she sought to pursue a course for improper motive. A solicitor acting for a child or protected party was likely to be under an obligation to inform the court of any such concern. In any event, the NHS had conceded, and the court granted permission for judicial review

– Even if XX’s love for the child and her religious belief, rather than legal advice, was the driving motivation for XX to pursue judicial review, it was not inevitable that a successful outcome would result in no ‘best interests’ evaluation being conducted. That decision was also a question of law, and XX’s familial affection and religious belief were not relevant to it

• The delay that would be caused by granting the NHS’s application, particularly in circumstances where there was no indication from the OS on her willingness to act or timescales and the inevitable derailment of the final hearing was not in TR’s best interests

• In any event, the court was not persuaded that there had been a material change in circumstances since XX’s appointment

The court ordered the NHS to pay the costs on the application but declined to order them to be paid on an indemnity basis as sought by the parents, because although the application was ‘not successful and indeed might be characterised as misconceived’, it did not amount to unreasonable conduct of proceedings.

PARENTAL ALIENATION
Re A (Children) (Parental Alienation) [2019] EWFC
HHJ Wildblood QC
Judgment: 24th September2019

This was the father’s application for child arrangements orders in respect of his children, against a background of parental alienation. The proceedings went on for 8 years and involved over 36 court hearings and the involvement of more than 10 experts. A children’s guardian was appointed. Public law proceedings were initiated. Eventually, and on the recommendation of 3 experts, the judge who since 2017 had heard the proceedings throughout, ordered that the children live with their father. There was a transfer plan, which involved the children being collected after school to go and live with their father. The move did not go well. The children were extremely hostile and ran away more than once. Within a month they had returned to their mother. By the date of the final hearing, the children had not seen their father for 3 months.

At an earlier hearing, the father was granted permission to withdraw his private law applications. At the final hearing, the court granted leave for the public law applications to be withdrawn. With regret, the court accepted that there was nothing more that it could do to try to promote a relationship with the father.

The judge decided to publish a heavily anonymised Judgment because this was such an exceptional case that it is “in the public interest for the wider community to see an example of how badly wrong things can go and how complex cases are, where one parent (here the mother) alienates children from the other parent. It is also an example of how sensitive the issues are when an attempt is made to transfer the living arrangements of children from one residential parent to the other parent.

The judge acknowledged that there was no doubt that in the long-term, what has occurred within this family will cause the children significant and long-term emotional harm and that the cause of this harm lies squarely with the mother.

The judge identified 10 factors that with hindsight, had contributed to difficulties in the case:

i) There was a failure to identify, at an early stage, the key issue in this case – the alienation of the children from their father by the mother. By the time that it was identified, the damage had been done.

ii) Overall there was significant delay within the proceedings.

iii) At the early stage of the private law proceedings the case was adjourned repeatedly for further short reviews. There were eight orders for review hearings in the first two years of the private law proceedings alone. Under the current Children Arrangements Programme (PD 12B of The Family Procedure Rules 2010) which came into force on 22nd April 2014 this would no longer be allowed to happen1.

iv) At no point prior to the judge’s involvement in 2017 was there a full hearing on evidence to determine what was going on in this family. There were underlying and important allegations of fact that needed to be resolved but also, there needed to be a definitive judgment explaining the difficulties within the family so that future work with the family members could be based upon that judgment.

v) The use of indirect contact in a case where there is parental alienation has obvious limitations, as this case demonstrated. The father’s letters, cards and presents were being sent by him into a home environment where he was ‘demonised’. They served no purpose in maintaining any form of relationship between the father and the children. It was regrettable that there was not more perseverance in the earlier private proceedings to resolve the obstructions to contact.

vi) The proceedings saw a vast number of professionals. Each new person brings a new, personal and different insight into a case of this nature. Family members (especially children) are embarrassed about speaking of personal issues with strangers, develop litigation fatigue and learn to resent the intrusions into their lives by a succession of professional people. The children reached a stage where they said: ‘no more.’

vii) A particular difficulty in this case was the absence at times, of collaborative working by professionals. A particular example of that occurred when an attempt was made to move the children to the father’s care. The professionals involved with the court process and the schools had not had sufficient dialogue before that move was attempted. If professional people show their disagreements, as happened in this case on the day of transfer, it undermines the process and allows cherry-picking by family members of what they want to hear.

viii) Early intervention is essential in a case such as this. It took years (probably five) to identify the extent of the emotional and psychological issues of the mother. By that stage it was too late for there to be any effective psychotherapeutic or other intervention in relation to her, the children’s views having already become so entrenched.

ix) There is an obvious difficulty about how to approach the expressed wishes and feelings of children who are living in an alienating environment. If children who have been alienated are asked whether they wish to have a relationship with the non-resident parent there is a likelihood that the alienation they have experienced will lead them to say ‘no.’ Therefore, in this type of case, the approach to the wishes and feelings of children has to be approached with considerable care and professionalism. To respond simply on the basis of what children say in this type of situation is manifestly superficial and naive. The children’s expressed wishes that they should not see their father had gone on for many years. The lack of an effective and early enquiry into what was happening within the family meant that there was no effective intervention. That, in turn, led to the children’s expressed wishes being reinforced in their minds. It has also resulted in the mother being able to say ‘we should listen to the children’, rather than addressing the underlying difficulties.

x) It was unfortunate that the joinder of the children to the second set of proceedings was so delayed. Any attempt to conduct these proceedings without the joinder of the children would have been even more complex and unsatisfactory.

1 Paragraph 15.3: ‘While it is acknowledged that an interim order may be appropriate at an early stage of court proceedings, cases should not be adjourned for a review (or reviews) of contact or other orders / arrangements and/or for addendum section 7 reports, unless such a hearing is necessary and for a clear purpose that is consistent with the timetable for the child and in the child’s best interests.’

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Preparing for A Mediation Appointment https://becket-chambers.co.uk/2020/04/01/preparing-for-a-mediation-appointment/ Wed, 01 Apr 2020 11:45:06 +0000 http://becket-chambers.co.uk/?p=3911 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 […]

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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 may require different approaches to be utilised on the day. However, irrespective of the nature of the dispute or the tactical approach selected, it is important that in advance of the appointment all of the necessary steps are taken to give a party the best chance of using the appointment to its full potential. Set out below are some suggested steps to be undertaken prior to the mediation appointment.

Obtain All of the Necessary Facts and Figures
In order to ensure that a party is aware of the best options available to them at a mediation appointment, it is imperative that they have as much knowledge of the relevant aspects as possible. Whilst it is often the case that parties will have access to the internet on the day in question and thus can look into or research certain information, there are some things it will be too late to obtain by that stage. For example, it is important that a party is aware of the value of anything in dispute. Whilst disputes are not always around money, or indeed that is not always a party’s priority in a dispute, such information assists to enable parties to make informed decisions. Ideally any such information will be obtained jointly or disclosed beforehand to ensure such values are not disputed, however even if that is not possible, it is preferable for a party to have such knowledge in any event.

For example, in a dispute about a house, it is imperative that the value of the property is known, so that a party can determine what is a good offer and what is not. Even in the event that it is known in advance that the property will be sold and the parties are therefore in dispute over their respective percentage shares of the proceeds of sale, the value thereof will enable a party to compare the financial implications of any offer made as measured against the potential financial consequences of proceeding to trial.

In the event that one party has been residing in the house and the other has not it may be that it is possible that one party would wish to make a claim, or receive an additional sum, by way of occupation rent. As such it would assist if the monthly rental value of the property were obtained. Whilst at first blush such a claim for occupation rent may be dismissed as baseless, or morally reprehensible given the heightened emotions of such disputes, if the rental value is not known then it is not possible to calculate the value of any such element of the claim.

Moreover, if a party has carried out works to the property in question, they may seek to argue that they are entitled to an additional share equivalent to the increase in the value of the property that arose from such work. However parties are likely to disagree over whether work added value, and if so how much, or simply made the property ‘more sellable.’ If an estate agent is asked in advance to value the property on the basis that the works were carried out and also on the basis that they had not been carried out, then the difference between the two can be utilised as the increase in value attributable to the works.

Consider All of the Possibilities
When in the midst of a dispute parties are of course likely to be aware of the outcome they are seeking, however it is unlikely that the other party/parties are of the same view. As such it is important that a party considers all the possible means by which the dispute can be settled beforehand. This will ensure that there is less chance of a party being caught off guard by an offer made by the other side on the day, and also mean that they are more likely to have an opportunity to obtain any additional information prior to the mediation. A party should therefore spend time in advance considering all of the possible ways the dispute could be resolved, even those that they have no intention of agreeing to, as this will enable them to prepare for any proposals made and also potentially think of a way forward they otherwise would not have done. For example, again using the example of a dispute regarding a house, whilst a party may not initially think they are in a position to purchase the other party’s interest, they should enquire as to their financial position, including in respect of their mortgage capacity or the possibility of additional funding available from family, as an offer may be presented on the day that may make that outcome beneficial.

Prepare for a Long Day
Parties should ensure that they have made arrangements (such as travel and childcare) that will enable them to be present at the mediation throughout the day, at least until 5pm and perhaps beyond. Parties should also ensure that they have prepared mentally for the appointment to last all day as if they become irritable that may impact upon their ability to make sensible decisions. Whilst it is easy to think that it will not take long as ‘they’ll either agree with what I’m asking for or they won’t,” in fact mediation appointments often take far longer than expected as the mediator is not simply a messenger service passing offers from one party to another, their role requires time and thus the mediation appointment often takes longer than expected.

Imagine You Are in the Other Party’s Shoes
Think about the dispute from the point of view of the other party. A party should put themself in the other’s position and consider what sort of outcome they would be looking to achieve. This will enable them to ascertain where the potential middle ground may lie.

Consider any Additional Information You May Wish to Obtain
Whilst the primary aim of a mediation appointment is to resolve the dispute, it also presents an opportunity to obtain information from another party. Thus in advance time should be spent thinking about any information that may be useful, both in respect of the other party’s legal position in the case as well as any extraneous factors that may assist. Whilst the other party may of course refuse to answer any such questions, it may be possible to gain the information using other methods on the day, such as reading between the lines on any position adopted by the other party during negotiations.

Guidance
In the majority of cases mediation presents the best opportunity to obtain a comparatively quick and inexpensive way to resolve a dispute. By considering the above suggestions a party will improve their chances of fully exploiting the benefits of mediation.

Members of Becket Chambers can provide assistance with parties attending mediation; in addition Becket Mediation (www.becketmediation.co.uk) has a number of civil mediators approved by the Civil Mediation Council. Please contact the clerks on 01227 786331 to discuss your situation and requirements.

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Is This The Death Knell For “Special” Contributions?: XW v XH [2019] EWCA Civ 2262. https://becket-chambers.co.uk/2020/04/01/is-this-the-death-knell-for-special-contributions-xw-v-xh-2019-ewca-civ-2262/ Wed, 01 Apr 2020 11:22:23 +0000 http://becket-chambers.co.uk/?p=3907 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 […]

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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 the wife (W) a ‘homemaker’. W was awarded approximately £152 million, being roughly 29% of the parties’ combined capital resources of £530 million.

 Background

The parties married in 2008 and separated in 2015. At the date of the Judgment, H was aged 50 and W was 48.   They have one child together, a son, who has a rare, life-threatening genetic condition and significant disabilities.   The vast majority of his care was undertaken by W.   H was the CEO of a company that he had set up with others some years before the marriage. It was during the course of the marriage that this company became hugely successful. When it was sold in 2015/16, H received approximately £370m from the sale of his shares. Due to investments and exchange rate changes, by the time of the final hearing before Baker J, the funds were worth some £500m gross, or £490m net of tax.   W was working as an artist at the time that the parties met. She was from a very wealthy family, and was found to have received substantial support from her mother both before and during the marriage, as well as benefitting from trust funds. In all, Baker J found that W had net assets of just under £34m.

Finally, the parties jointly owned a property valued at £3.7m net.

The First Instance Hearing

W’s case at first instance was that she should be awarded a sum equal to half the marital property which included (and almost entirely comprised) the increase in the value of H’s shares in the company since the marriage.   H argued that W’s case was a needs case and submitted that she was not entitled to a share of the wealth for a number of reasons, including:

  • When the parties married in Italy, they had signed a deed of marriage which elected ‘the regime of separation of assets’ rather than community of property – further, they had maintained a separation of assets throughout the marriage;
  • The shares in the company should be considered to constitute non-matrimonial property because they had existed and been owned by H before the marriage;
  • H’s exceptional business acumen should be considered to be a special contribution;
  • The relatively short length of the marriage should reduce the scale of W’s claim; and
  • W already had her own resources.

Despite rejecting H’s argument that the shares were unilateral assets, Baker J concluded that the fact that the wealth was generated almost entirely by H’s business activities could not be ignored entirely. He said while it would be wrong to exclude these assets from sharing entirely, the nature and source of the assets could be considered in deciding how they should be shared and this despite referring to W’s contribution to the family as “incalculable”.

The Appeal

W appealed to the Court of Appeal on the following grounds:

  • that any principle that the manner in which the parties managed their financial affairs might impact on the division of the marital wealth had no application to this case;
  • that H’s “business assets” created during the marriage were marital property which should have been shared equally between the parties;
  • that the Judge was wrong to find that the company had latent potential;
  • that the Judge was wrong to find that H had made a special contribution, in particular because he only considered H’s financial contribution and did not balance this with W’s contribution or consider the disparity in the parties’ respective contributions when determining this issue;
  • that the Judge failed to quantify how each of the above factors, in particular latent potential and special contribution, impacted on his award;
  • that the Judge’s decision in respect of restricted stock units (RSUs) and stock options was flawed and he should have awarded W a share of these when received by H.

The Court of Appeal’s Decision 

The Court of Appeal, having assessed the first instance Judgment, determined that the Judge was wrong to conclude that H’s contribution fell within the concept of a special contribution and therefore to order a departure from equal division. Regarding the issue of special contribution Moylan LJ referred to the case of Gray v Work [2017] EWCA Civ 270, and decided that Baker J had failed to consider whether there was such a disparity in the parties’ respective contributions to the welfare of the family that it would be inequitable to disregard. This was the clear test from Gray v Work and it had not been applied. As a consequence, Baker J’s finding in this respect was set aside.  The Court of Appeal could not see how a proper application of the legal principles could lead other than to a determination that there was not such a disparity in the parties’ respective contributions that it would be inequitable to disregard them when deciding what award to make. Although H’s contributions had clearly been very significant, the necessary disparity was not present in this case. There was no balancing by Baker J of the parties’ contributions.   Moylan LJ did offer some further guidance on special contribution, stating at [122] that in his view, ‘the search for an analysis of whether a special contribution is established should be undertaken through a relatively general, or broad, assessment of the evidence.’

On the other grounds of appeal the court held that Baker J was wrong to decide that the fact that the “assets which grew so substantially during the marriage were the husband’s business assets”, was relevant to the division of that wealth between the parties. In so far as they were the product of endeavour during the marriage they were marital assets which should be shared equally between the parties absent other factors.

Regarding latent potential, Moylan LJ held that Baker J had been entitled to find that part of the proceeds of sale of the shares was non-marital property to which the sharing principle did not apply.    He had also been entitled to determine what proportion was not marital property other than by applying the expert’s valuation increased by indexation. It was open to him to undertake ‘a broad evidential assessment’ and to conclude that there was significant value not reflected in the formal valuation.

The appeal was therefore allowed and the Court of Appeal went on to substitute its own decision. As to the marital property question, the Court of Appeal undertook the broad assessment required and applied Baker J’s determination that the ultimate success of the company was attributable to ‘a not inconsiderable extent’ to its pre-marriage ‘foundations’ and that they remained a ‘significant’ factor.    The Court of Appeal concluded it was fair to treat 60% of the wealth derived from the shares as matrimonial property (£293 million) and 40% as non-matrimonial (£195 million).   This led to W receiving a lump sum of £145 million (in place of Baker J’s £115 million) and the jointly owned property worth £3.7 million. This then gave W 34.5% of the parties’ combined wealth and left H with 65.5%, as opposed to the 28.75% to 71.25% that had been originally ordered by Baker J.

Significance of the decision 

The Court’s decision in this case is one that is said to be a landmark judgment for sex equality in divorce.   The breadwinner v homemaker debate will no doubt continue, but, for now, this case reaffirms that domestic roles in a marriage are not overlooked in financial claims on divorce and a financial contribution to a marriage is not any more significant than a domestic contribution.

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Setting Aside Default Judgment – How Prompt Do You Need to Be? https://becket-chambers.co.uk/2020/03/25/setting-aside-default-judgment-how-prompt-do-you-need-to-be/ Wed, 25 Mar 2020 11:09:12 +0000 http://becket-chambers.co.uk/?p=3898 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 […]

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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 were unaware of the proceedings against them until enforcement of the judgement in January 2019, despite having responded to correspondence at address X where the claim form and particulars of claim had been delivered. The judge was satisfied that service of the claim form and particulars of claim were effective.

We then turned to the issue of delay. The defendant justified the delay in applying to set aside default judgment by stating that he was unaware of the judgment initially, changed solicitors in April 2019 and then had to obtain documents in support of his application.

I submitted that even if January 2019 was used as the ‘notification date’, the application was issued nearly 11 months later in November 2019 and that changing solicitors and obtaining very basic documents (that should already be within his possession) were not adequate reasons for such a delay in the context of the case.

The Judge agreed, she stated that the defendant did not need the documents in order to issue the application and changing solicitors was not an adequate reason for an 11-month delay. Despite there being a real prospect of success, she dismissed the application to set aside default judgment.

The Test to Be Applied

The rules regarding applications to set aside default judgment are contained within CPR 13.3 and the court may set aside judgment if:

(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

In considering whether to set aside judgment, the court must have regard to whether the application was made promptly, CPR 13.3(2).

Denton Principles

The principles to be considered when deciding an application to set aside judgment were considered in Denton v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Ltd v Davies and others [2014] EWCA Civ 906, which dealt with the analogous and often linked circumstances of an application for relief from sanctions under CPR 13.3. This gave rise to the following 3 stage test:

(a) whether a failure, which gave rise to the judgment, was serious or significant
(b) whether there was a good reason for the default or failure
(c) whether, in all the circumstances of the case, the default judgment ought to be set aside

Core-Export Spa v Yang Ming Marine Transportation Corp [2020] EWHC 425 (Comm)

The recent case of Core-Export Spa v Yang Ming Marine Transportation Corp [2020] provides further guidance on the relevant principles, in particular promptness, when considering whether to set aside default judgment.

The claimant issued a cargo claim with a value of £25,000 against two defendants, one of whom did not file an acknowledgement of service. The claimant obtained default judgment and notified the defendant on 20 September 2019. The defendant made an application to set aside default judgment on 23 October 2019, 23 days after notification.

The defendant maintained that it had a real prospect of defending the claim as he was not the correct defendant and because, it has a real prospect of defending the claim on its merits.

The Judge considered the issue of promptness, “it is necessary to view the speed with which the application has been made in the context of what has gone before”. The defendant had a history of failing to respond to correspondence prior to issue and this proved to be a significant issue for them as “what may be prompt where there is no history of earlier delay may not be so if there has been such delay” Regency Rolls Limited & Anor v Carnall [2010] WLUK [2017] EWHC 1223 (TCC) [69].

The only explanation offered for the 23-day delay was that the defendant needed to investigate the claim. The claim was first presented to the defendants circa 30 January 2019. The Judge considered this and “unless the claim was simply ignored from that point until judgment was entered, the second defendant had the opportunity to investigate what on any view is an apparently straight forward claim for 9 months”.

The judge considered the history of ignored emails, an ignored request to extend the limitation period and the lack of any response when the claim form was issued. The judge concluded that the defendant continued to ignore claim “and ultimately it was that which led to the default judgment”.

The judge found that failure to acknowledge service was both a serious and significant default, and the delay in issuing the application was a second serious and significant default. The judge made particular reference to the circumstances of the case prior to issuing the claim making the defaults even more serious and significant.

The failure to acknowledge service was serious in itself as acknowledgement of service is required to be filed in all cases and in all circumstances as per the Commercial Court and the Circuit Commercial Court Guides.

The judge found that the existence of a realistically arguable defence is “clearly outweighed by the history of delay, inaction, and non-engagement that is regrettably a feature of the way in which this litigation has been conducted and the pre-litigation interchanges as well”.

HHJ Pelling QC commented obiter dictum that having a realistically arguable defence cannot trump the other factors of consideration otherwise the purpose of the Denton 3 stage test would be defeated. As with both cases mentioned above, regard must be had for the parties to engage promptly and in a meaningful way because the costs that can be generated by granting the application to set aside and any further proceedings may far exceed the actual value of the claim.

Promptness will always be a significant factor to consider and particular attention must be paid to the facts of each case as default judgments have been set aside even where there has been excessive delay.

If you are notified of a default judgment against you or your company it is important to obtain immediate specialist legal advice from either a solicitor, the Citizens Advice Bureau or a suitable direct access barrister to ensure that the correct action is promptly taken.

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Becket Chambers Statement: Covid-19 Action Plan https://becket-chambers.co.uk/2020/03/17/becket-chambers-statement-covid-19-action-plan/ Tue, 17 Mar 2020 16:21:34 +0000 http://becket-chambers.co.uk/?p=3892 Becket Chambers are continuing to assess the developing situation in relation to Covid-19. We are reviewing the situation daily and will continue to take advice and follow guidance from the Government, Bar Standards Board and Bar Council. All of our systems are cloud based, and as such our clerking team are able to work remotely […]

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Becket Chambers are continuing to assess the developing situation in relation to Covid-19. We are reviewing the situation daily and will continue to take advice and follow guidance from the Government, Bar Standards Board and Bar Council.

All of our systems are cloud based, and as such our clerking team are able to work remotely so we will be able to continue to operate as normal. We will though be implementing the following procedures:

  • We will aim to provide as much notice as practically possible when switching Counsel or cases. As you will appreciate this may be at short notice depending on how matters progress.
  • We will offer our clients the option of telephone / skype conferences, rather than face to face.
  • For the foreseeable future, to reduce the risks we will be insisting that case papers are emailed through as we will not be accepting hard copies.
  • We will require those clients who have bookings with us, and that have suffered or a suffering symptoms of Covid-19, to declare this information to us.

Health and safety

No doubt you will already be aware of key measures to be taken to protect yourself and your staff, and customers and suppliers you are in physical contact with. You will undoubtedly have already read much on this topic so we will not cover it again here. If needed, further advice is contained in the government guidance at https://www.gov.uk/government/topical-events/coronavirus-covid-19-uk-government-response

Support

Whatever your personal views on the coronavirus and the reaction of governments and individuals worldwide, it is becoming increasingly clear that the human and economic impact will be significant. Most of all we hope to be able support you as best as we can even if the government implements more stringent measures and court hearings are reduced/cancelled . We will be able to offer assistance by:

  • Attending virtual courts by telephone/Skype
  • Case Conferences (via telephone or Skype)
  • Direct Access Conferences (via telephone or Skype)
  • Mediation Appointments inc. Intake appointments and MIAM’s (via Skype)
  • Drafting documents and advices.

We will continue to monitor this situation closely and will provide regular updates where possible.

Thank you for your understanding.

Becket Chambers

 

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Occupier’s Liability – Who Do You Owe a Duty of Care To? https://becket-chambers.co.uk/2020/03/04/occupiers-liability-who-do-you-owe-a-duty-of-care-to/ Wed, 04 Mar 2020 15:26:29 +0000 http://becket-chambers.co.uk/?p=3861 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 […]

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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 circumstances.

The duty of care owed by the occupier is to “take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there” (s.2(2)).

An ‘occupier’ is not defined in the 1957 Act, but it is widely accepted that an occupier is someone who exercises an element of control over the premises and does not necessarily have to ‘occupy’ the premises.

It is important to note that ‘the premises’ is not limited to buildings and land, but also includes vessels, vehicles, aircraft and temporary/mobile structures such as scaffolding and ladders.

A ‘visitor’ may be an individual who has express permission, implied permission or a lawful right of entry.

The 1957 Act expressly states that an occupier must be prepared for children to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm.

At the other end of the scale is ‘skilled visitors’, the 1957 Act assumes that such visitors will have a greater awareness of the risks/dangers and the measures needed to take to guard them from such risks/dangers. The knowledge of the skilled visitor will only apply to their particular expertise and may not remove all liability from the occupier, the occupier will still need to act reasonably.

The occupier may discharge their duty of care in certain circumstances. In determining whether the duty has been discharged regard has to be had to all of the circumstances. For example, a sign warning the visitor of the danger may be enough to discharge the duty if the sign enables the visitor to be reasonably safe.

Possible defences available to an occupier include the following:

  • Consent of the visitor. Where a visitor willing accepts the risk, the occupier may not be liable for the damage incurred.
  • The occupier may raise contributory negligence to reduce their liability if the visitor has failed to take reasonable care.
  • The occupier may reduce their liability by agreement.

The Occupier’s Liability Act 1984 (“1984 Act”)

The 1984 Act was enacted to regulate the duty of care which an occupier of premises owes to unlawful visitors. This includes trespassers and those who have exceeded their permission as a lawful visitor.

A ‘trespasser’ is “someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to”, Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929].

Three criteria must be met before an occupier of premises owes a duty to another (not being his visitor). The occupier owes a duty if:

  • he is aware of the danger or has reasonable grounds to believe that it exists;
  • he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned, or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
  • the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

Other Considerations

It is important when considering whether an occupier owes a duty of care to an individual on their premises to contemplate whether a claim under legislation beyond the 1957 Act and 1984 Act is applicable.

For example, where an injury has been caused by an animal on the occupier’s premises then the Animals Act 1971 will be applicable as the keeper of an animal owes a duty of care to prevent the animal from causing harm to others.

Where the injury/damage is caused by an animal belonging to a dangerous species, the keeper of the animal will be strictly liable for the injury/damage, unless an exception is applicable.

Where injury/damage is caused by an animal not belonging to a dangerous species, the keeper of the animal will be liable for the injury/damage if:

  • the damage is of a kind which the animal, unless restrained, was likely to cause – or if caused by the animal, was likely to be severe; and
  • such likelihood is due to the characteristics of the animal which are not normally found in animals of the same species, or are not normally so found except at particular times or in particular circumstances; and
  • those characteristics were known to that keeper.

However, a person will not be liable for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either:

  • that the animal was not kept there for the protection of persons or property; or
  • if the animal was kept there for the protection of persons or property, that keeping it there for that purpose was not unreasonable.

So, as one can see, it is important for one to understand the different elements of liability owed by an occupier when drafting or advising on a claim in order to accurately reflect the circumstances of the breach of duty, as you may be able to claim under the 1957 Act then in the alternative under the 1984 Act.

Members of Becket Chambers can provide advice and representation on a variety of disputes concerning an occupier’s liability. Please contact the clerks on 01227 786331 or clerks@becket-chambers.co.uk to discuss your situation and requirements.

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Parental Alienation: An Example Where The Alienator Succeeds and Guidelines As to How to Minimise it Happening. https://becket-chambers.co.uk/2020/03/02/parental-alienation-an-example-where-the-alienator-succeeds-and-guidelines-as-to-how-to-minimise-it-happening/ Mon, 02 Mar 2020 17:06:13 +0000 http://becket-chambers.co.uk/?p=3856 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 […]

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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 a very serious step to take, and should only be taken where it is plainly not in the welfare best interests of the child.

The facts of Re A are these: The father made a private law application in 2011 to have contact with his two children. That set of proceedings ended in 2014, with an order for the father to have indirect contact with them. Proceedings resumed in 2016, and ended when the father withdrew his application in 2019. This was after an order for the children to live with the father was tried and failed miserably. The Local Authority then initiated care proceedings after the failed attempt of transfer of residence.

In dealing with the father’s application to withdraw his application, the court reflected on the extensive history of the proceedings. There had been at least thirty five previous hearings and the first full hearing with extensive evidence happened in 2017, six years after the first private law application.

With hindsight, the judge considered that there were ten factors which contributed significantly to the difficulties that arose. The relevant ones, in relation to parental alienation were:

a) a failure to identify at an early stage that the key issue in the case was the alienation of the children from the father, by the mother;

b) early intervention is essential in a case such as this and this did not happen. It took about five years to identify the extent of the emotional and psychological issues of the mother. By that time it was too late for there to be effective psychotherapeutic or other intervention in relation to her, the children’s view having already been so entrenched;

c) there is an obvious difficulty about how to approach the expressed wishes and feelings of the children, who are living in an alienating environment such as they were. Children in these circumstances if asked whether they would like to have a relationship with the ‘absent’ parent, are likely to say no. Therefore, the approach in this type of case to ascertain the wishes and feelings of the children, has to be approached with considerable care and professionalism. To respond simply on the basis of what children say in this type of situation, is manifestly superficial and naive.

The lack of an effective early enquiry into what was happening within the family, meant that there was no effective intervention and that has caused the children’s expressed wishes being reinforced in their minds and resulted in the mother being able to say that the court should listen to what the children say, rather than addressing the underlying difficulties;

d) there was no hearing on evidence prior to 2017, to determine what was going on in the family and there should have been a definitive judgment by then, explaining the difficulties within the family, so that future work with family members, could be based upon that judgment;

e) the order for indirect contact, in a case where there is parental alienation has obvious limitations. Letters, cards and presents, were being sent by the father into a home where he was ‘demonised’ by the mother. In the circumstances , they served no purpose in maintaining any form of relationship between the father and the children;

f) there were at least ten different professionals involved, with each bringing a new personal and different insight into a case of this nature. The children became embarrassed speaking about personal issues with a stranger and became resentful of the intrusions into their lives. It is worth also mentioning that all of the professionals were of the view that the father was suited to have contact with the children and one was further of the view that they should live with him.

About two years before the conclusion of proceedings, the court having identified that the mother had alienated the children against the father, made an order for them to live with him. That order was for the children to live with him for a period of seven weeks, during which time they were not to have any contact with the mother. The children however became extremely distressed and resistant to them being placed with the father, their schools expressed concerns about the level of distress that the children were showing and the police became involved. Within a month of the order being made,  the children returned to live with their mother and have not had direct contact with the father since. The Local Authority then initiated proceedings in an effort to get contact started under a supervision order with no success and the court gave permission for that application to be withdrawn. That showed the level of concern there was for the children, that public law orders were considered, having regard to the threshold for making such orders.

The judge in concluding his judgment addressed the father directly:

“I am truly sorry that this is the outcome and I do hope that you will find some happiness in the future, despite all that has occurred.”

This case shows starkly, that with the assistance of lawyers  representing the alienated parent, how alive the courts have to be from the start of proceedings, to prevent the views of the children against the ‘absent’ parent becoming further entrenched. The court needs to identify the problem as soon as possible. Part 25 applications for the suitable expert may need to be considered right from the FHDRA hearing, running in tandem with any indirect contact that may be agreed at that hearing . A fact finding hearing or a hearing where extensive evidence is heard, should be set down as soon as possible to appraise the court as to the extent of the difficulties within the family and how best to address those difficulties.  If these things are not done as soon as possible, the likely outcome is that any order that the court makes for contact will be futile because,  the views of the children will have by then be set in stone.

 

 

 

 

 

 

 

 

 

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Mediation – a way forward? https://becket-chambers.co.uk/2020/03/02/mediation-a-way-forward/ Mon, 02 Mar 2020 16:59:15 +0000 http://becket-chambers.co.uk/?p=3853 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 […]

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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 civil litigation is often expensive, time-consuming and unpredictable and often result in a Pyrrhic victory (i.e. it costs more than it is worth); a successful party will often recover only a percentage of their actual costs, or the losing party may not have the means to satisfy any judgment, let alone the costs awarded against them. A losing party will, usually, have to pay the judgment against them as well as (some/most of) the other side’s costs in addition to their own costs.

At a time when the court system is, frankly over-loaded and under-funded, it can often take months, if not years, for a case to come to trial, especially if it has been allocated to the multi-track (i.e. a higher value or “complex” case taking more than a day to hear) with the costs, to all parties, climbing steadily throughout. And that’s before you consider satellite litigation and the appeal process!

Your lawyer will have told you all of this at the outset but the deeper you get into a case and the more emotionally invested, committed and entrenched the parties become (and the higher the costs get), the more difficult it is for you and the other side to extricate yourselves.

Mediation doesn’t always work (although, generally, civil mediation has a success rate in the region of 85%, while family mediation figures are lower) but provides an opportunity to break out of the cycle of increasing costs and stress. The parties’ “investment” in the settlement (replacing their financial and emotional investment in the fight) can provide a sound basis for a civil and productive way forward for both parties. Even where it is not successful it often allows the issues between the parties to be narrowed down, which simplifies any subsequent litigation.

Bullet Point “Takeaways”

  • Mediation is “Better” than LitigationHowever, mediation will often result in settlements which include elements which would be more than a Court could award (e.g. an apology or a review of processes to prevent a similar situation occurring again) or resolves several aspects of a dispute between parties which would otherwise involve multiple sets of proceedings.
  • Mediation can apply in a whole range of circumstances covering all types of civil disputes, e.g. boundary disputes, probate, employment, contract and commercial disputes, clinical and professional negligence, etc.; usually if it can be litigated, it can be mediated!
  • Civil Mediation is Voluntary (at the moment).You cannot be forced to agree a settlement; a court case will impose a resolution on the parties, a mediation allows the parties to agree a solution. A court decision will often leave both parties feeling dissatisfied; a mediation should leave both parties feeling they have achieved something positive and found a way forward from and out of the dispute.
  • You cannot (at the time of writing) be required to attend and engage in mediation – the fact that the parties have agreed to mediate is, of itself, a positive demonstration of their desire to resolve the dispute and to move on with their lives; they just need to find the “right” solution.
  • Mediation is the Parties’ Process.
  • Mediation is a “facilitative” process – the mediator is there to help the parties find their own solution to their dispute; the mediator cannot impose a solution and is not there to judge the case or decide the merits of the parties’ arguments. However, if the individual parties have been open with the mediator about their position and what they want (or don’t want) from the case, then the mediator may be able to identify some common ground between the parties upon which an agreement can be built.
  • Mediation is ConfidentialAny discussions and offers made by either side are confidential and cannot be used in any subsequent litigation; parties are encouraged to be open and realistic about their case (with themselves and the mediator) safe in the knowledge that any “concessions” cannot be held against them in the future.
  • Any discussions between a party and the mediator are confidential and private and will not be disclosed to the other side unless or until the party has said it can be disclosed. However, if the mediator knows what a party considers their most important (and least important) elements of the dispute and of any settlement, the discussions can be focussed on the important factors. Often the parties can have different priorities which can lead to a solution where those priorities can dovetail together and complement each other, giving the parties a “win/win” result.
  • Mediation is (relatively) Cheap
  • Parties are free to decide whether they take representation to a mediation or not, but the cost of the mediator will be shared between the parties; in any event, half a mediator almost always costs significantly less than the cost of going to trial!
  • Mediation is QuickCivil mediation usually involves a day (or half a day) and the matter is either resolved or not, although parties can sometimes agree a settlement, based on the progress made at mediation, shortly after the mediation.
  • As indicated above litigation takes time – a relatively simple multi-track case can take 18 months or more to come to trial (from pre-action conduct through the exchange of pleadings, case management, filing of evidence to the hearing), even “fast track” trials (i.e. hearings dealt with in a single day) can take over a year from claim to hearing. Final hearings are sometimes cancelled by the court (often a day or so before the hearing) and then re-listed six months later. And then the losing party can appeal!
  • Mediation is Binding
  • A mediation settlement once agreed will be reduced to writing by the parties or their representatives and signed; it becomes a binding contract so that, if either party seeks to go back on the agreement, the other party can rely on the agreement (and sue on it) rather than having to re-litigate the original dispute.

In short, parties should always consider mediation before embarking on and having started litigation (and it may be in time that civil mediation will be mandatory, either pre-issue, as it is with many matrimonial disputes or as part of the case management process). If mediation works, it will usually have saved the parties a significant sum and considerable stress. If it doesn’t (and particularly if a party refuses to engage in mediation) then that can be a matter that the court can consider when considering the question of costs.

Members of Becket Chambers can provide assistance with parties attending mediation; in addition Becket Mediation (www.becketmediation.co.uk) has a number of Civil Mediation Council-approved civil mediators. Please contact the clerks on 01227 786331 to discuss your situation and requirements.

 

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Financial Remedy: Confidential and Illegal Material: Imerman Revisited https://becket-chambers.co.uk/2020/02/25/financial-remedy-confidential-and-illegal-material-imerman-revisited/ Tue, 25 Feb 2020 14:23:17 +0000 http://becket-chambers.co.uk/?p=3839 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 […]

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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 2010 and (b) to comment on developments and case law following the Imerman decision.

The facts in the Imerman case were briefly that, fearing that the Husband would conceal his assets, one of the Wife’s two brothers (“the defendants”), with the possible help of others, accessed a server in an office they shared with the Husband and copied information and documents stored by the Husband.  From that material, they printed out 11 files and handed them to their solicitor.  The defendants’ solicitor arranged for a barrister to sift the documents for those in respect of which it was thought the Husband could claim legal professional privilege, which resulted in 7 files of documents.  Those 7 files were then passed on to the Wife’s solicitors (who had already issued a Form A giving notice of intention to seek ancillary financial relief in the Family Court) and copies of the 7 files were also sent to the Husband’s solicitors.

The Court of Appeal in Imerman dealt with 3 interlocutory (cross) appeals namely:

  • an appeal by the defendants against Eady J’s decision in the Queens Bench Division whereby they were restrained by Eady J from communicating or disclosing to third parties including the Wife and the defendants’ solicitor any information contained in the documents and from copying or using any of the documents or information contained therein. The defendants were also ordered to hand over all copies of the documents; and
  • an appeal by the Husband against Moylan J’s decision in the Family Court in respect of the financial remedy proceedings, which ordered that the 7 files be returned to him so he could remove any material for which he claimed privilege but which then had to be returned to the Wife for use by her in the matrimonial proceedings; and
  • a cross-appeal by the Wife against Moylan J’s decision seeking (a) more control over the process by which the Husband could assert privilege and (b) reversal of Moylan J’s refusal to restrain the Husband from disposing of certain memory sticks.

The Court of Appeal duly (i) upheld Eady J’s decision in the Queens Bench division and (ii) varied the order/s made by Moylan J in the Family Division [para 153]. The consequence of this was that the Court of Appeal ordered that subject to one set of documents being held by the Husband’s solicitors (in case those documents included documents disclosable in the ancillary relief proceedings) the defendants had to return all copies of the documents and were enjoined from communicating any of the information they had gleaned therefrom. The reasoning behind this was that the judge hearing the ancillary relief application would, upon deciding it would be fair and proportionate to do so, be able to see all or any of the documents.

In the course of its judgement, the Court of Appeal in Imerman held in particular as follows:

  • Spouses can claim the right of confidentiality (with the normal rules of equity applying) against each other [para’s 74 & 84-89] with each case depending on its own facts;
  • A claim for breach of confidentiality may be defeated by a defence of unlawful or intended unlawful conduct [para 142];
  • In respect of the so-called Hildebrand (Hildebrand v Hildebrand [1992] 1 FLR 244) rules, there is no legal basis for such rules save for the retention of the narrow rule/ratio as to the time at which copy documents obtained in breach of confidence or illegally should be disclosed to the other spouse [para’s 41 – 42 & 120];
  • Although the admission of improperly obtained material (whether in breach of confidence, tortuously or even criminally) is permissible, the Court has a discretion to exclude it [para 170] and will consider the relevance in light of all the circumstances including the evidence and its case management powers [para 174 -177].

It will be noted that in Imerman the actions of the defendants and the Wife were deemed to amount to pre-emptive “self- help” and the Court held that the rules and the judge’s application of the rules must be robust to prevent such conduct [para 137] given that in the appeal the Wife was not entitled  to the confidential material at the stage that she obtained it.

The Appeal Court analyzed the Family Proceeding Rules 1991 (which have now been replaced by the Family Procedure Rules 2010 which came into force on the 6th of April 2011 some 9 months after the judgement was handed down) and distinguished between (i) the disclosure of relevant facts and matters; (ii) the discovery of relevant documents; and the evidence required to establish the relevant facts [para’s 25-33].  The Court also observed that judges (in financial remedy proceedings) have far greater control than they have under the CPR in normal civil proceedings, over which documents should or should not be produced in evidence [para 34].

Towards the end of the judgement, the Court of Appeal observed that on its analysis of the law in this case, it was unlikely that questions as to the use of unlawfully obtained documents would arise in the future [para 174].  However, the Court indicated that the question for the Court in the future would be, the extent to which the Wife’s recollection of information derived from unlawfully obtained documents may be deployed to establish the inadequacy of the Husband’s disclosure [para 174].

The Court concluded its judgement [para 174] by re-iterating that in ancillary relief proceedings the Court has a discretion whether or not to admit unlawfully/wrongly obtained evidence and that it in exercising that power, “the Court will be guided by what is ‘necessary for disposing of any application for ancillary relief or for saving costs’ and will take into account the importance of the evidence, the conduct of the parties, and any other relevant factors, including the normal case management aspects”. The Court observed that ultimately it is required to carry out a balancing exercise, which is easy to state in general terms but often difficult to effect in individual cases in practice [177].

As is apparent from its judgement, the Court of Appeal also touched on parties’ article 8, 6 and 10 Convention Rights [para 154] and their rights under the criminal law and Data Protection Act 1998 [para 92-94 & 102-104].

It will be noted that since the Imerman case, the Supreme Court has dealt with the duty of parties’ (ongoing) duty of full and frank disclosure (and material non-disclosure) in the context of consent orders in the cases of Sharland v Sharland [2015] UKSC 60 and Gohill v Gohill  [2015] UKSC 61 and the Data Protection Act 2018 came into force on the 25th of May 2018.

Turning to case law post Imerman, two cases in particular, illustrate the application of the law.

The first of these is the case of Thum v Thum [2019] EWFC 25.  This was for the Wife’s enforcement application on the 16th of April 2019 relating to a disclosure order which had been made at the First Appointment (“FDA”) on the 5th of December 2018.  At the FDA the issue had been certain documents stored on a flash drive which the Wife found in the parties’ joint safety deposit box in Zurich.  It was password protected.  The Wife alleged that the stick was in an envelope on the front of which the password had been written.  This was disputed by the Husband who alleged that the Wife must have accessed the flash drive using a technology specialist.  The Wife agreed to deal with the flash drive and its contents as if they were Imerman documents.  On the Husband’s behalf it was accepted that disclosure of Wife’s list (para 10) of documents would be given save for one document.  Disclosure by the Husband was duly ordered by 4 pm on the 7th of December 2018.  The Husband failed to comply with the Order for Disclosure.

At the hearing of the Wife’s enforcement application, Mostyn J indicated [para 10-11] that even though the disclosure order had not been opposed, the para 10 documents still had not been produced.  The Court went on to observe that “the Court finds itself in the absurd situation where these documents are sitting on the flash drive which is in the possession of the husband’s solicitors as well as on a copy of the flash drive held by the Wife’s German lawyers but still they have not been produced either to the Wife’s English solicitors or to the court.  The reason that they have not been produced is because the husband flatly refuses to comply with my order without good reason…… He has deployed a variety of excuses, none of which, in my judgement, is tenable” [para 10 -11].

After dealing with the Husband’s reasons for non-disclosure which included commercial confidentiality and/or the risk of civil and/or criminal sanction if he were to comply with the Disclosure Order, Mostyn J held as follows [para 33]:  “I am completely satisfied that the husband faces no risk whatever were disclosure of the documents to be made.  I am completely satisfied that the conduct of the husband amounts to improper filibuster, mounted in bad faith, consistent with his attitude and conduct from the very dawn of this case”.

Mostyn J accordingly granted the Wife’s enforcement application and ordered [para 35] that in order to cut through the “nonsensical” position that the Court found itself, disclosure of the para 10 documents should be made from the flash drive retained by the Wife’s German solicitors.

The second case is that of Akhmedova v Akhmedova [2020] 4 WLR 15.  The facts were that on the 20th of December 2016 a final order was made by Haddon-Cave for the Husband to pay the Wife £453,567.152 in settlement of her financial claims.  The Husband failed to pay the sum awarded and disengaged from the proceedings.  The Wife initiated a range of enforcement proceedings and on the 30th of September 2019 applied for directions as to how to treat a bundle of financial documents provided to her by a former employee of the Husband which had or may have been illegitimately obtained and which may have attracted confidentiality and/or legal professional privilege.  The Husband did not appear nor was he represented.

Knowles J handed down judgement on the 22nd of November 2019.  In respect of the directions, the Court summarized the law and in particular referred to the Imerman at [17 read with 29-52].

In granting the Wife’s application, Knowles J took into account all the circumstances of the case when exercising her discretion [33-42] including the Husband’s contempt of the court’s orders and disengagement of the process which meant that he could not be expected to give any or any proper disclosure and the fact that the Wife did not deliberately omit to seek directions in the hope of obtaining some improper advantage.

Knowles J dealt with the effect of impropriety [19-23] and the issue of privilege [24-27 and (lack of proper) service [28].

Knowles J also went on to deal with the guidance set out in the case of UL v BK (freezing orders:  safeguards: standard examples) [2013] EWHC 1735 (Fam) [18, 30, 31 and 43-48].  In the UL case the Wife had obtained an ex parte freezing injunction and also had accessed confidential documents of the Husband’s which had been stored in his safe.  The Husband’s case was that the Wife’s application for a freezing injunction had violated every known principle governing a freezing application.  The Husband gave an undertaking not to dispose of the assets pending the resolution of the financial remedy proceedings.  Mostyn J gave guidance in respect of freezing injunctions generally [51-53] and specifically in respect of illegally obtained documents [54-56].

As Knowles J indicated [18] para 56(iii) – (iv) of the UL case includes guidance to solicitors who receive confidential or improperly obtained documents and deals with the situation where the other party is unrepresented, which is:  (a) solicitors are to return the documents to the other party’s solicitors who (as officers of the court) can then ensure that they are preserved and that proper disclosure is given, or (b) in the event that the other party does not have solicitors, to obtain directions from the court, such directions which may include the party seeking disclosure to pay for an independent lawyer to deal with the disclosure issue [43-48].

Knowles J also at para’s 48 – 52 of her judgement deals with the fact that at  the time of her judgement (ie, 22nd of November 2019) there was a difference between civil search orders and such orders in the Family Division especially in respect of how issues relating to privilege were handled.  At para’s 49 and 50 Knowles J observed:  “It is clear that in both forms of order, the supervising solicitor undertakes to provide ‘an explanation that the respondent may be entitled to avail himself of the privilege against self-incrimination and legal privilege’.  However the Family Division order (Order 3.2) has no equivalent of para 11 of PD25A Order in that it has no regime for handling claims of privilege”.

Knowles J then went on to hold that “The Format of Order 3.2 seems to me to be wrong in principle.  It would be desirable for Order 3.2 to contain a paragraph in the same terms as paragraph 11 of the PD25A Order [para 50]”.  Knowles J concluded her judgement with the observation that the omission of the appropriate paragraph 11 was probably inadvertent and suggested that appropriate provisions in (the Civil Procedure) PD25A should be incorporated in  (Family) Order 3.2 to remedy any inadvertent omission [52].

Following on from the Akhmedova case and Knowles J’s suggestion in respect of the omission in respect of search Order 3.2, Mr Justice Mostyn issued a revised version of Order 3.2 of the Search Order on the 14th of January 2020 to remedy the omission and align it with its Civil Procedure counterpart.

Pulling the strands together as will be noted from the above, it really important for practitioners to be aware of the law and the latest developments and their associated duties – both to their clients, the Court and the other side.

 

 

 

 

 

 

 

 

 

 

 

 

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