Becket Chambers https://becket-chambers.co.uk Fri, 11 Sep 2020 16:26:10 +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 TO BAR OR NOT TO BAR…..that is the question? (Section 91(14) of the Children Act 1989 https://becket-chambers.co.uk/2020/09/11/to-bar-or-not-to-bar-that-is-the-question-section-9114-of-the-children-act-1989/ Fri, 11 Sep 2020 16:23:29 +0000 http://becket-chambers.co.uk/?p=4082 This is the section of the Act which gives the Court the power to restrict applications under the Children Act…it provides: “On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order […]

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This is the section of the Act which gives the Court the power to restrict applications under the Children Act…it provides:

“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court”

This means that the court can order that no further application can be made by a particular person in respect of a child, without permission first being granted by the court. This allows the court to act as a filter on future applications. However the Children Act does not provide further guidance on when this power can be used, so one must refer to case law and the most helpful guidance is that given by Butler-Sloss LJ in Re P (a minor) (residence order: child’s welfare) [2000]Fam 15., as follows:

1. Section 91(14) of the Children Act 1989 should be read in conjunction with s 1 (1), which makes the welfare of the child the paramount consideration

2. The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances

3. An important consideration is that to impose a restriction is a statutory intrusion into the rights of a party to bring proceedings before the court and to be heard in matters affecting his/her child

4. The power is therefore to be used with great care and sparingly, the exception and not the rule

5. It is generally to be seen as a useful weapon of last resort in case of repeated and unreasonable applications

6. In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

7. In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, with the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

8. A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point

9. A restriction may be imposed with or without limitation of time

10. The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order

11. It would be undesirable in other than the most exceptional cases to make the order ex parte

12. An absolute prohibition on making any application to the court, would not [in my view] be an order under s 91 (14), which presupposes an (ex parte) application to the court. An order imposing absolute prohibition would have to be made under the inherent jurisdiction of the court: See Re R (Residence: Contact: Restricting Applications [1998] 1 FLR 749.

In this case of Re P, it was a case where a child was born of Jewish orthodox parents and was born with Down’s Syndrome and other medical difficulties, but had been fostered by non practising Roman Catholics when she was 17 months of age. The foster carers developed a close bond and attachment to the child and managed to obtain a residence order when she was 4 years of age. This had initially been resisted by the biological parents in the first instance because they desired for her to be brought up in the orthodox Jewish faith. They were unsuccessful and were further unsuccessful some four years later in an application to vary the residence order. It was during these proceedings that the Court made a s 91(14) order restricting further applications from the biological parents. This decision was upheld by the Court of Appeal, and the guidelines emanate from the leading Judgment of Butler-Sloss LJ.

What we are perhaps most commonly finding is that there is a history of unreasonable applications when we see this order made and is the most usual reason given when applying for such an order, but what is perhaps not clearly understood is that this is not a prerequisite for such an order.

If we contrast the language of section 91(14), with that of s 42 of the Supreme Court Act 1981 which requires the AG to show that the ‘litigant has habitually and without reasonable grounds instituted vexatious proceedings’ before the court can impose any restrictions.

Section 91 (14) has no such requirement and as such this omission is no doubt intentional and designed to give the court wide discretion.

What is the most unifying feature of the main cases using this section is not, as one may suppose, a course of vexatious litigation but is predominantly where there is a risk that further litigation could impose on the child or the primary carers an unacceptable strain by being ongoing and in the future.

It is of note that restrictions cannot be applied to a s. 91 (14). But what the court can do is act as a filter and it is important to consider what a court is looking for. So clearly whilst there can be no actual restriction contained within the order, the Judge can advise the applicant of the issues which the party subject to the order needs to address to ensure a future successful application.

In Re S (Permission to seek relief) [2006] EWCA Civ 1190, [2007] 1 for 482) a s 91 (14) order was granted to restrict further applications by the Father of the child. There was an initial s 91 (14) order made and the Father applied for permission some four years later. He was refused and again refused on appeal. This case highlighted at para 100 of the Judgment of Wall LJ, that the Father had ‘not learned the lessons of the past’

……..the basis for a successful application is an acceptance of the findings made by Judge Hargrove (the judge at the series of substantive hearings concerning C-W including that in which the s 91(14) was made) and a recognition of the serious damage which his behaviour has done to any possibility of a resumption of a proper relationship between himself and C-W. Without evidence of even the beginnings of that process, Judge Murdoch, in our view, was entitled, in the exercise of his experienced judicial discretion, to dismiss Mr Everett’s application’.

In Stringer v Stringer [2006] EWCA Civ 1617, [2007] 1 FLR 1532 at para 10, Wall LJ expanded on this principle”

“In my judgement there is a real and very substantial difference between, on the one hand, the imposition of conditions on a s 91 (14) order and, on the other, a judge telling a litigant, when the s 91 (14) order is imposed, that unless he addresses a particular issue, and can show that he has addressed it any application which he makes for permission to apply to the court for further relief is unlikely to be successful. The latter, which is not binding on either the litigant or the judge, is plainly permissible. The former is not.”

The most recent cases Re C1 and C2 (Child Arrangements) [2019] EWHC B15 (Fam); Re C3 and C4 (Child Arrangements) [2019] EWHC B14 (Fam) were heard one after the other and the Judgments by Keehan J were intended to be read together.

In both cases the Judgment refers to the detrimental effects that the Father’s behaviour had on the Mother and therefore the indirect adverse effect on the children. He made the order by combining the findings he made regarding the Father’s inability to see anyone’s view but his own. Saying at paragraph 44 of his Judgment (Re C1 and C2)

‘The father was ‘obsessed with facts, but those are his facts. He has no truck at all with any contrary view of the world’

When making a s 91 (14) similar order in Re C3 and C4 at para 17 of his Judgment he opines:

‘I consider the welfare of the mother, and thereby the welfare of the children, require further respite from the Father’s litigation conduct. Were he to litigate in an unregulated manner it would cause harm to [the mother] and thereby harm to C3 and C4’

What these most recent cases highlight is that the behaviour of the Father in this litigation, which was found to be intimidating, coercive and aggressive to the Mother, and which was taking a grave toll upon her emotional and psychological wellbeing would then have a serious adverse impact directly on the emotional and psychological well being of the children.

What this effectively demonstrates that in viewing whether a s 91 (14) bar should be imposed is that the welfare of the child (children) is paramount even if the impact is upon the caring parent, but can be seen as this having the effect of causing harm and emotional distress to the child (children).

Summary

Whilst it may appear that section 91 (1) orders are somewhat draconian in nature – they are most usually found in cases which are extreme, difficult and contentious in nature in themselves.

It may be that there is a history of what appear to be repeated unreasonable and unsuccessful applications, BUT, this is not the prime mover in such cases and this order may be made without such a history but where such cases involve a high degree of conflict.

The thread which needs to be recognised is ‘the risk’ to the child mainly, but also to the primary carers, of further and continued litigation, and not just a history of litigation.

An order such as this may be particularly suitable and relevant where a parent cannot seem to recognise or understand how their behaviour and actions impact on their child (or the child’s carers). Where, for example, a parent is unable to recognise the impact to the child, and carers, and where they have failed to address issues which have been highlighted by experts and the Court in earlier proceedings which have and continue to cause difficulties for the child (and the primary carers) who are at the centre of the proceedings.

This is where the Court can act as a filter, of its own motion if necessary, to advise an applicant who seemingly cannot address the issues, and to place a bar on future applications.

These circumstances, however extreme, demonstrate how the Court can use its powers to act as a filter on future applications and thereby placing and promoting the welfare of the child as paramount.

 

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Lease or Licence? https://becket-chambers.co.uk/2020/09/10/lease-or-licence/ Thu, 10 Sep 2020 14:33:16 +0000 http://becket-chambers.co.uk/?p=4079 I have recently been asked by a commercial tenant, and not for the first time, do I have a lease or a licence? One might imagine that the document in which the details are set out would be very explicit. It is not always that simple. Just because the office, workshop, car park or sheep […]

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I have recently been asked by a commercial tenant, and not for the first time, do I have a lease or a licence? One might imagine that the document in which the details are set out would be very explicit. It is not always that simple. Just because the office, workshop, car park or sheep field you use has a document which says “licence” on it, it does not follow that it is a licence. Just because you call your cat “dog” does not change the fact that it is still a cat. The answer to the question lies not in the title, but elsewhere within. That is assuming you have a document: the commercial tenant who prompted this article had no contract and neither did their landlord.

What is a licence?

A licence grants permission to carry out some activity at the licensor’s property. It comprises a personal right or permission. It offers no legal or equitable property rights other than the right of use. It does not create an estate in land, does not offer exclusivity and would end if the owner sold the property. Examples of where a licence to occupy may be encountered include:

• As a concession in a department store
• A market stall
• A car parking space
• Sheep grazing

The licence document will often include a clause that limits exclusivity. For example, it might allocate parking space number 10 but go on to say, “or any other space as the owner sees fit”. It might limit the grazing of the field to, say, between April and October. For a store concession it may limit access to certain hours or days. In the first example, the owner can move you as they see fit to another parking space. In the second, the landowner can stop you grazing at the end of the season. In the last example, the shop owner can lock you out of the premises. None of these limitations would be present in a lease.

What is a lease?

There are three elements that need to be in place to determine if a lease exists. These were set out in Street v Mountford [1985] AC 809 and are that a person has been granted exclusive possession of land for a term of time at an amount of rent. As a principle, if one of these elements is missing, the position of the occupier is unlikely to be that of a tenant holding a lease. Let’s look at each of these in reverse order:

Rent

The presence of rent is usually a matter of fact. Either rent is paid, or it is not. The amount paid is not necessarily correlated to type of occupation. A leaseholder could pay a peppercorn rent. A licensee could pay more than a market rent. What can be important as we will see below, is the frequency of payment when it comes to determining some types of lease.

Term of time

The term of the lease must be a period of time less than that of any tenure held by the landlord. It must also be of a duration that is certain or capable of ascertainment. Of the main types of tenancy, certainty of term can be described as follows:

1. A fixed term tenancy is of certain duration. It lasts until the term end date, when it will expire by effluxion of time without any need for the landlord to serve notice.
2. A periodic tenancy is one which does not have a specified term, but instead continues until the landlord or the tenant give notice. Periodic tenancies perhaps counter-intuitively, also enjoy the benefit of certainty. Whilst the end date of the lease is not stated and the term does not expire, uncertainty is avoided by the power to terminate based on the period upon which rent is calculated (Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386). In other words, if the rent is paid quarterly, it would suggest a quarterly periodic tenancy.
3. For completeness, I include a tenancy at will. This exists where there is an invalid lease because of uncertainty of term but where there is exclusive occupation. It is often applied to a tenant whose lease has expired but they remain in occupation. The court is likely to infer a periodic tenancy where rent has been paid.

Exclusive possession

A person has exclusive possession if they can exclude everyone else, including the landlord, from the property. In reality, a tenant can only exclude the landlord up to a point. The landlord usually reserves certain entry rights (with or without notice) in any lease.

In the grazing example, the shepherd cannot use the land during the winter and thus has no exclusive possession, even though their possession may be exclusive during the grazing season. In the parking space example, the user can find themselves moved to space number 1 instead of 10 at any time, clearly not exclusive use even though while they occupy a space, it is exclusively for their use.

The right to renew

Under the Landlord and Tenant Act 1954, a business tenant occupying premises for its business generally has a statutory right to renew its tenancy at the end of the term. The landlord can only oppose renewal on certain limited grounds. Of course, there are exceptions which I will not go into here. Consequently, this could make a licence or a tenancy attractive depending on whether you are a landlord or a tenant and depending on what you want to do with the property.

This is a comprehensive area of law; this note is but a brief overview. As one might expect I have not covered every eventuality and have made some generalisations. If you require advice or assistance with a lease (or is it a licence?) dispute, do not hesitate to contact clerks@becket-chambers.co.uk.

 

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Is mandatory mediation the solution to the court backlog? https://becket-chambers.co.uk/2020/09/08/is-mandatory-mediation-the-solution-to-the-court-backlog/ Tue, 08 Sep 2020 09:17:22 +0000 http://becket-chambers.co.uk/?p=4074 Background As a result of the current Covid-19 crisis, the backlog of cases is mounting, despite HMCTS’ commendable efforts to re-open courts and implement access to video, hybrid and telephone hearings. There are also reports of the crisis precipitating more cases than normal. Property possession claims wait in the wings, family and domestic abuse enquiries […]

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Background

As a result of the current Covid-19 crisis, the backlog of cases is mounting, despite HMCTS’ commendable efforts to re-open courts and implement access to video, hybrid and telephone hearings. There are also reports of the crisis precipitating more cases than normal. Property possession claims wait in the wings, family and domestic abuse enquiries with solicitors are up. There are parties with unfulfilled contracts and employees who believe they have been unfairly treated. Given the risk posed to the rule of law and to access to justice, it is reasonable to suggest that new ideas might be needed.

There could be no better time to consider a greater role for mediation. While family mediation is part of the established process and in civil cases there is an expectation that parties will offer and be open to mediation and may be penalised financially if they do not, it is not mandatory. So, should we make mediation a mandatory step before allowing litigation to reduce the work for an overloaded legal system?

What is compulsory mediation?

Professor Frank Sander, an expert in dispute resolution suggested that requiring parties to enter mediation, was a permissible practice, whereas requiring them to reach an agreement in mediation was an impermissible form of coercion. Whilst some of the debate about compulsory mediation has confused the two, we will focus here on the permissible rather than the coercive. Broadly, there are three types of mandatory mediation:

1. Automatic and compulsory referral as a pre-requisite to commencing proceedings. This system is in use in in Italy.
2. Court-referred mediation. A judge refers parties to mediation with or without their consent. This is used in Australia.
3. Quasi-compulsory. Although not mandated, the effect is achieved through the potential for cost orders if ADR is not undertaken before bringing a case to court. This is effectively what we have in England and Wales.

Let us look briefly at all three.

Automatic compulsory referral

This is essentially the system in Italy, although the Italian system goes beyond simple compulsion in that if no settlement is reached, it permits a mediator to propose a solution to the parties which must either be rejected with reasons or accepted. This is the case even if one of the parties fails to appear. If nothing else, this does tend to ensure attendance.

Court referred mediation

Australia has several successful mandatory mediation schemes. Courts in Australia also have wide discretionary powers to order mediation without the parties’ consent. There is open judicial support and the process is often that of court-annexed mediation which is carried out by a court officer or a judge.

Quasi- compulsory mediation

Australia has also introduced quasi-compulsory mediation and (in New South Wales) has an ADR (Alternative Dispute Resolution) blueprint, recommending the use of ADR by government bodies and including an ADR Clause in government contracts. This has also happened in the UK.

The case for compulsory mediation

The Civil Justice Council ADR Working group Report (2017) lists the main arguments in favour of compulsory mediation as being:

1. ADR brings huge benefits
2. Voluntary uptake is slow and small – changing rules even temporarily could change culture
3. If you let parties waste energy and money arguing about whether or not to mediate, they will
4. The parties are not obliged to settle, only attend and participate in good faith
5. There is no evidence that mediation is less successful when compulsory
6. Some parties are relieved to feel externally compelled as voluntary proposal might look like weakness
7. There are already compulsory ADR processes in England and Wales – e.g. family MIAMs (Mediation Information and Assessment Meetings).

The report itself is relatively positive about implementing pre-action compulsory mediation, although this was not the majority view as I have set out below.

The case against compulsory mediation

The Law Society has told the Civil Justice Council that it should continue to steer clear of mandatory ADR, saying it would “frustrate the principle…” that litigants should have open access to the courts. That said, they stated that there was a good argument for active case management and for the judiciary to encourage ADR once the claim had been allocated.

In Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920, the court held that courts do not have the power to order parties to mediate against their will. They used the question of whether compulsion constituted a breach of Article 6 ECHR (European Convention on Human Rights), deciding that access to the courts was violated by compulsion to mediate. Lord Dyson did however determine that while courts could not order mediation, they can mandate a cost order on the basis of an unreasonable refusal to mediate. The European Court of Justice would seem to disagree. They ruled in the case of Rosalba Alassiniv Telecom Italia SpA (Legge 31 Iuglion 1997) that a cross-border scheme imposed by Italian law did not create a breach of Article 6 (1) ECHR. Possibly a moot point as a result of Brexit.

The Jackson report (2009) stated that mediation was a, “highly efficacious means of achieving a satisfactory resolution of many disputes”, but that what was needed was a “culture change not rule change.” The Jackson report went further stating that, “parties should never be compelled to mediate.”

The English legal system has already conducted an experiment in compulsion. The ARM (Automatic Referral to Mediation) pilot scheme ran in 2004/2005 and ultimately failed. The experiment randomly referred 100 cases each month to mediation. The results were that only 22 per cent had a mediation appointment and in 81 per cent of cases at least one party objected to the case being mediated. Some have suggested that the Halsey decision had a negative bearing on the trial.

The introduction of compulsory mediation in Italy has met with criticism. There is evidence of fewer settlements because the mediation authority cannot cope with demands. The Italian legal profession has also been heavily negative. However, in the Italian system the mediator can impose a decision. It might be argued that this type of compulsion removes the requirement for a mediator to be bipartisan and for the parties to be able to walk away, thereby moving the process into one described by Professor Sandler as being a form of coercion.

The Civil Justice Council ADR Working group list the main arguments advanced against mandatory mediation as being:

1. It taints the voluntary ethos
2. It has to be paid for by the parties or the state, often this will be wasted costs
3. The cost may be disproportionate in smaller claims
4. Compulsion means any claim, however worthless, will involve expense and hassle
5. It may result in a perfunctory box-ticking exercise – good faith is impossible to police.
6. There remain Article 6 issues in relation to access to the court system

The working group concluded that, having weighed both sides of the argument, they cannot come down strongly on the side of compulsion. As already suggested, a significant minority of group members did believe the idea had potential. This perhaps demonstrates that there is no clear answer.

Conclusion

Evidence as to the effectiveness of compulsory mediation schemes versus those which are voluntary, is at best scant. There are no scientific studies. Comparisons between different schemes in different subject areas, or in different countries are problematic.

The case for mandatory mediation is not proved. There are tantalising glimpses of success, but these are not universal. There are, it would seem, areas of law and jurisprudence where the idea lends itself better than others. Boundary disputes and clinical negligence are two areas where ADR is very successful and far preferable to litigation. Perhaps targeted compulsion in similar areas would be effective, such as residential landlord and tenant disputes and other types of domestic contract. Accessibility of ODR (Online Dispute Resolution), is increasing and offers a better price and convenience model for small claims.

I suggest that mediation is to law, what physiotherapy was to medicine 30 years ago. The benefits can be huge, but it requires confidence, leading to wide up-take and then government intervention to make its prescription mainstream. Should the UK bring in mandatory mediation? Probably not. At least not until or unless it forms part of our culture to seek mediation rather than litigation.

In the meantime, the court system is struggling. If you have are involved in a dispute, remember that not only does mediation offer a good prospect of reaching a resolution, it keeps the outcome in the hands of the parties, rather than the court, can be significantly cheaper and can save a lot of time. Becket Chambers have a team of qualified and experienced civil, commercial and family mediators who can assist. If you require advice do not hesitate to contact clerks@becket-chambers.co.uk.

I have made reference to several reports and other published material in this article. I am happy to be contacted by anyone wishing me to forward my references, or who wishes to discuss the ideas herein.

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Enforcement Child Arrangement Contact Orders: Are the Provisions Effective? https://becket-chambers.co.uk/2020/09/08/enforcement-child-arrangement-contact-orders-are-the-provisions-effective/ Tue, 08 Sep 2020 07:37:47 +0000 http://becket-chambers.co.uk/?p=4072 When a Child Arrangements Order is made giving an applicant the right to spend time with his child, that order is underpinned by the enforcement provisions set out below. That order is sometimes frustrated by the party against whom it is made, who I will refer to as the party in breach. This article examines […]

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When a Child Arrangements Order is made giving an applicant the right to spend time with his child, that order is underpinned by the enforcement provisions set out below. That order is sometimes frustrated by the party against whom it is made, who I will refer to as the party in breach. This article examines those provisions and seeks to dispel the opinion that they are somewhat of a blunt instrument, using two recent examples that the author has been involved in.

The law is set out at Section 11J of the Children Act 1989. Where a Child Arrangements Order is in place and a party has failed to comply with one of its provisions, without a reasonable excuse, the court can make an order imposing on that party an unpaid work requirement. The burden is on the party alleged to have breached the order to show, on the balance of probabilities that he has a reasonable excuse for doing so.

The court must also take into account the following:

a. whether the non compliance is agreed and if it is not, must conduct a hearing to establish the facts;
b. the reasons for non-compliance;
c. the wishes and feelings of the child;
d. whether advice is necessary from Cafcass;
e. manage any risks of making any further Child Arrangements Order;
f. whether the court should order a Dispute Resolution Appointment or the parties attend a Separated Parenting Information Programme, and
f. whether an enforcement order is appropriate and the welfare checklist.

A cursory glance of the the above provisions shows that the court need to take a holistic approach to an application for an enforcement order. It is not simply, that the times ordered for the Applicant to have contact with his child, has not been complied with without reasonable excuse.

Section 11J directs the court, if the facts of the case merits it, to revisit the original application. For example, the court must take into account the ascertainable wishes and feelings of the child concerned. The court may even order the parties to attend a Separated Parenting Information Programme, designed to assist the parties to communicate with each other in respect of the child concerned or set the case down for a Dispute Resolutuon Appointment.

Moreover the effect of provisions of Section 11J have to be seen in the light of Section 11L. Section 11L makes it clear that before an enforcement order can be made, the court has to be satisfied that:

a. the making of an enforcement order will have the desired effect of securing compliance with the order for contact;
b. the effect of the order proposed to be made is proportionate to the seriousness of the breach, and
c. there is suitable unpaid work within the area where the person in breach lives.

Section 11L goes on to further “water down” the effect of the enforcement provisions in that:

a. The court has to obtain and consider information about the person in breach and what is the likely effect of the enforcement order upon him, and
b. whether the order if it is made conflicts with the religious beliefs of the person in breach and whether or not she is attending an educational establishment.

The first case that I was instructed in, was for an Applicant under the Direct Public Access Scheme. I had previously represented him in a two day final hearing where an order for contact in respect of two children was made in his favour. The party in breach who was represented at the final hearing, denied contact in respect of one of the children, from the outset and after three months of no contact, I was further instructed to enforce the order. The reason for the contact not resuming the party in breach said, was that the child did not want to see his father. The party in breach however was criticised for not returning the matter back to court as soon as possible and the court ordered Cafcass to look into the matter again and to make recommendations as to how contact could be resumed.

In the more recent case, I represented an Applicant after there was a breakdown in the substantive order. The original proceedings were acrimonious, with many hearings and lasted over two years. Following some minor breaches, the party in breach stopped contact entirely and at the time of the application, there had been no face to face contact for over three months. The Applicant was not only seeking the reinstatement of the order, but for or times missed to be made up and for there to to be an element of punishment, by way of unpaid work.

The court at the first hearing ordered the resumption of contact as previously ordered, gave the Applicant some added contact time with the child and sent a stern warning to the party in breach about what could happen if there were further breaches of the order, including the court ordering in the future, that the child move to live with the Applicant. The Applicant also wanted the party in breach to be punished by doing unpaid work, but that was not ordered. On balance the application achieved what the enforcement provisions intended; that is reinstating the order as soon as possible and sending a warning to the party in breach about the potential consequences of further breaches.

From my experience therefore, the enforcement provisions although they seem to be somewhat of a blunt instrument, in practice they are not. Applicants should be aware that the court will always strain as far as possible, to order contact between the child and him. Even in cases where objectively the suspension is justified, the court will always be critical of the party in breach, if the matter is not returned back to court as soon as possible. If the order is not being complied with, the court will want to look at the matter afresh to see how, if at all possible contact can be reinstated. In the cases where suspension is not justified the court may even consider ordering the child to live with him.

In conclusion the answer to the question whether the enforcement provisions are effective, is in my opinion yes. They are not perfect but they do have varying degrees of success. Rarely are the punitive provisions used against the party in breach, but the primary objective is usually achieved.

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Case Study N (Children: Interim Order/Stay [2020] EWCA Civ 1070 https://becket-chambers.co.uk/2020/09/02/case-study-n-children-interim-order-stay-2020-ewca-civ-1070/ Wed, 02 Sep 2020 16:04:48 +0000 http://becket-chambers.co.uk/?p=4066 Case Study N (Children: Interim Order/Stay [2020] EWCA Civ 1070 Decision of Lord Justice Peter Jackson. A helpful reminder of some basic principles _______________________________________________________________________________________ This successful appeal by the mother was dealt with on 29 July 2020 during the current COVID 19 restrictions. The facts are not as important as the principles which were dealt […]

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Case Study
N (Children: Interim Order/Stay [2020] EWCA Civ 1070

Decision of Lord Justice Peter Jackson.

A helpful reminder of some basic principles
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This successful appeal by the mother was dealt with on 29 July 2020 during the current COVID 19 restrictions.

The facts are not as important as the principles which were dealt with.

BACKGROUND:

The parents were from Afghanistan and the mother spoke no English and needed an interpreter.

There were three children aged 5, 7 and 12. The 7 year old had global learning difficulties.

The family had come to the attention of the local authority at the end of 2019 when the older child went to school with a mark on his face and said that he had been slapped by his father. He also spoke of being hit on other occasions, including with a cloth belt.

A neighbour had reported that the mother had visited her for help in 2018 after being assaulted by the father.

The children were taken in the police protection on 8th November 2019 and placed together in foster care for a week.

The local authority applied for interim care orders with a plan for the children to stay in foster care pending assessments but at a hearing before a circuit judge on 15th November 2019 it was agreed that the children should be returned to the mother on the basis of a working agreement.

The parents accepted that the interim threshold was crossed and an order was made under s.38A of the Children Act excluding the father from the home.

On 18 December 2019 and again on 20th February 2020 the local authority made two applications to remove the children from the mother’s care which were not pursued.

This appeal arose out of the local authority’s third application for the children’s removal in April 2020 with a care plan for indirect contact only due to the then COVID-19 lockdown with supervised contact with the mother twice a week thereafter.

On 27th April the hearing was before the same circuit judge, sitting as a Deputy High Court Judge, who had already dealt with the second removal application on the 20th February.

The matter did not take place on 27th April for lack of time and of an appropriate interpreter. It was adjourned for a one-day remote hearing on 6 May 2020, although the parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses.

The judge, however, when adjourning the matter directed, that the only witness to give evidence would be the social worker and the parents were directed to file sworn statements which the judge stated she would take “at face value”.

The judge made it clear that she would need to have “robust” evidence from the social worker and the impression given to the parties was that the local authority’s evidence was going to be scrutinized to see whether it was capable of sustaining its revised care plan.

The Guardian was unable to attend the hearing on 6th May but the judge was aware that the Guardian did not support removal.

At the hearing on 6th May 2020 the social worker gave evidence for three and a half hours, not limited to the three latest allegations but ranging over alleged breaches going back to December 2019.

The mothers advocate was at a disadvantage in that the remote hearing was being interpreted to the mother by an interpreter connected via the judge’s laptop and there was no real means of taking instruction during the hearing.

Do the course of the evidence, the solicitor for the father applied for him to be allowed to give evidence which the judge refused on the basis that she had read the father’s statement and understood that he disputed the social worker’s evidence.

During closing submissions, the request was repeated for the parents to be allowed to give evidence if the judge was considering removal of the children.

The judge was also reminded by the parents, supported by the Guardian, that the social worker had brought the case back to court on two earlier occasions because of reported breaches of the safety agreement but that on both occasions the local authority had not pursued removal of the children. It was submitted that the fact that this was the third occasion that the matter had been returned to court was insufficient pass the test of necessity and proportionality.

The judge did not agree with this analysis of the situation and looked at the pattern of behaviour which she said had built up a body of circumstantial evidence which, although individually could be ignored, together demonstrated a concerning persistent pattern of breaches of safety agreements, flouting court orders and a failure to implement the safety plan put in place for the protection of the children.

The judge further commented that she was satisfied at the pattern of evidence in the case gave the court reasonable grounds to believe that the standard required at the interim hearing had been established.

The judge approved the removal of three children from their mother and their placement in local authority foster care on the pre-existing interim care orders.

Counsel for the mother sought permission to appeal and a stay; both were refused and the children were taken in the foster care that evening.

During the hearing, the mother and children were at home, together with the interpreter. Counsel for the local authority suggested that it might be appropriate to have the matter listed for further directions on the following afternoon to enable the parents’ representatives to take instructions. The judge did not agree and said it was a matter for the local authority as to when it implemented its interim care order.

Counsel for the mother was not able to take her client’s instructions because communication with the interpreter came to an end when the judge rose. Consequently an application to the out-of- hours judge was not possible before the children were removed.

THE APPEAL

They were four main grounds of appeal:

1: The judge’s decision to hear evidence only from the social worker and not from the parents was unfair.

2: Consequently findings were made without disputed matters being tested.

3: The judge should have heard evidence from the Guardian, who did not support removal

4: In adopting a “reasonable grounds to believe” test the judge had applied the wrong standard of proof.

When deciding to grant the appeal Peter Jackson, LC, made the following comments (in italics and bold type for emphasis only):

The power to make interim orders in cases involving children allows the court to regulate matters that cannot wait to final hearing.

Here, the interim threshold was accepted to have been crossed and the court was making an interim welfare decision.

A court considering an interim application in proceedings concerning children is required to undertake a level of investigation that is appropriate to the issues that need to be decided and sufficient to enable it to make a fair and effective evaluation of the advantages and disadvantages for the children of making or not making the interim order. Acting within the framework of the relevant substantive and procedural law, the court has a wide and flexible discretion as to how its investigation and evaluation should be conducted at the interim stage. Depending upon the case and the issues to be decided, the decision may well be properly taken without hearing any oral evidence: the question will be whether it is necessary to hear some, probably limited, oral evidence to enable a fair and effective evaluation to be made.

It is understandable that the judge did not feel able to deal with the issue before her on submissions only and that she needed to hear some evidence. However, once she had decided to do that, fairness required that in this situation she should hear from both the accuser and the accused…… The investigation was a factual one into events where the parents were primary witnesses. They were not making bare denials but giving possible explanations for much of the evidence brought against them and, at least on paper, those explanations were not self-evidently implausible and deserved proper consideration.

However, instead of taking them at face value (whatever that might be taken to mean), the judge largely left them out of account.
The investigation that was carried out was therefore not fair and effective.

The test for interim removal could not reasonably have been met on the evidence that the judge received.
(Paragraphs 28-34 of the judgement).

SHORT TERM STAYS:

When refusing the request for a stay the judge dealing with the matter had expressed concern that there were grave risks and concerns to the children in respect of breached exclusion orders and possible risks of removal, if not from the jurisdiction, but to another part of the country.

The Court of Appeal decided that the reasons given by the judge fell short of justifying refusal to grant a stay.

When deciding that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers, the Court of Appeal reminded itself of the distinction between such a short term application from a stay pending a decision on permission to appeal or a stay pending appeal.

By contrast, a short term stay is purely a practical remedy, distinct from the decision about permission to appeal.

With reference to Re A [2007] EWCA 899 at [27] Peter Jackson, LJ, said that the correct approach for the court to take to an application for a short term stay was described by Wilson, LJ, that the judge should always give serious consideration to allowing an applicant “a narrow opportunity” to approach the Court of Appeal so that the opportunity for a successful appeal is not unfairly eroded.

It may be helpful to set out the arrangements that then prevailed which were as follows:

The court could be contacted during working hours on civilappeals.registry@justice.gov.uk between 9.00am and 4.15pm and out of hours through security officers at the RCJ on 020 7947 6260, who will refer the matter on to the Duty Deputy. Urgent applications should whenever possible we made within court hours.

Unless already filed, the applicant or the applicant’s representative will be required to give an undertaking to file the necessary application form and court fee. Instructions may then be given for the transmission of essential information by email so that the application can be considered by a judge, who may decide to grant a stay, for example until the end of the following working day, to enable further documents, such as a note of the judgment and draft grounds of appeal, to be sent to the court for consideration of the merits of a further stay.

 

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Reactivation of possession claims – Practice Direction 55C and what it means for your proceedings https://becket-chambers.co.uk/2020/09/02/reactivation-of-possession-claims-practice-direction-55c-and-what-it-means-for-your-proceedings/ Wed, 02 Sep 2020 11:21:19 +0000 http://becket-chambers.co.uk/?p=4063 Practice Direction 55C (‘PD55C’) came into force on the 23rd August 2020. It is a Practice Direction within the Civil Procedure Rules that provides temporary provision in relation to possession proceedings during the Coronavirus pandemic. PD55C provides a temporary modification to Part 55 during the period beginning on 20th September 2020, which is the end […]

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Practice Direction 55C (‘PD55C’) came into force on the 23rd August 2020. It is a Practice Direction within the Civil Procedure Rules that provides temporary provision in relation to possession proceedings during the Coronavirus pandemic.

PD55C provides a temporary modification to Part 55 during the period beginning on 20th September 2020, which is the end of the stay imposed by rule 55.29 and ending on 28th March 2021 (‘the Interim Period’). Part 55 is the part of the rules relating to possession claims. Rule 55.29 provides that that all possession proceedings brought under Part 55 (and all enforcement proceedings by way of writ or warrant of possession) that are stayed immediately or brought after this rule came into force and on or before 19th September 2020 are stayed, until 20th September 2020. There are exemptions detailed in Rule 55.29(2) and it is noted that a claim can still be brought during this time but it may be stayed.

During the Interim Period, Part 55 has effect subject to PD55C. PD55C differentiates between ‘stayed claims’ – those being a claim which was brought on or before 19th September 2020 and which is accordingly subject to a stay imposed by rule 55.29 and ‘new claims’ which are claims brought after 19th September 2020.

Under paragraph 2.1, no stayed claim is to be listed, relisted, heard or referred to a Judge under Rule 55.15 until one of the parties files and serves a written notice (a ‘reactivation notice’) confirming that they wish the case to be listed, relisted, heard or referred. This mean that any claim brought on or before 19th September 2020 will not be automatically listed for a hearing once the stay is lifted – one of the parties needs to provide a written notice first. However, that does not apply to a stayed claim brought on or after 3rd August 2020 or in which a final order for possession has been made.

If you are serving a reactivation notice, it must confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred and (except in proceedings relating to an appeal) set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and any dependants. If the reactivation notice is filed and served by the Claimant and the claim is based on rent arrears, the Claimant must provide an updated rent account for the previous 2 years with the notice (except in proceedings relating to an appeal).

If you have had a trial date set prior to 27th March 2020, that trial shall be vacated and the case stayed unless a party complies with paragraphs 2.1 (reactivation notice), 2.3 (contents of the reactivation notice), 2.4 (providing an updated rent account) and 5.1 (directions requirements) not less than 42 days prior to the hearing date.

If by 4pm on 29th January 2021, no reactivation notice has been filed and served in relation to a stayed claim where paragraph 2.1 (reactivation notice) applies, that claim will automatically be stayed. Any application to lift a stay imposed where a trial has been vacated or a reactivation notice has not been served by the date set would not require a relief from sanctions application under CPR 3.9, as the stay is not a sanction for breach.

Where any hearing is listed or relisted in response to a reactivation notice, the Court must give at least 21 days’ notice to the parties (unless the Court directs otherwise).

Paragraph 4.1 of PD55C modifies Rule 55.5 during the Interim Period, so that it reads ‘(1) Subject to paragraph (1A), the court will fix a date for the hearing when or after it issues the claim form’ whereas it previously read that a date will be fixed when the Court issues the claim form. Paragraph (3)(b) which imposes the standard time period of 8 weeks between issue and hearing also does not apply during the Interim Period.

In a stayed claim where paragraph 2.1 (reactivation notice) applies and where case management directions were made before 20th September 2020, a party filing and serving a reactivation notice must file and serve with it:

• a copy of the last directions order together with new dates for compliance with the directions taking account of the stay and
• either a draft order setting out additional or alternative directions (including proposing a new hearing date) required or a statement in writing that no new directions are required and the hearing date can be met and
• a statement in writing whether the case is suitable for hearing by video or audio link.

If the other parties(s) do not agree with any of the proposals filed and served, they must file and serve a response within 14 days of service of the reactivation notice. If no party has complied with filing and serving matters in relation to directions by 4pm on 29th January 2021, the claim will be automatically stayed. As before, lifting such a stay would not require a relief from sanctions application.

In any new claims or stayed claims brought on or after 3rd August 2020, the Claimant must:

• Bring to the hearing 2 copies of a notice –

  1. In a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that the Claimant has complied with that Pre-Action Protocol and detailing how the Claimant has done so and
  2. In all claims, setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants and

• Serve on the Defendant not less than 14 days prior to the hearing the notices referred to above.

In any claim brought on or after 3rd August 2020 to which Section II of Part 55 (accelerated possession claims of property let on assured shorthold tenancy) applies, the Claimant must file with the claim form for service with it a notice setting out what knowledge that party has as to the effect of the Coronavirus Pandemic on the Defendant and their dependants.

From the details set out above, it is clear that in the Interim Period, there are new requirements in relation to possession claims which landlords and tenants should be aware of before ‘reactivating’, issuing or defending any claims.

Specialist advice on possession proceedings can be obtained from members of Becket Chambers – please contact us at clerks@becket-chambers.co.uk for further information.

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Waiving Privilege: Legal Professional Privilege and AG v VD [2020] EWHC 1847 (Fam). https://becket-chambers.co.uk/2020/09/02/waiving-privilege-legal-professional-privilege-and-ag-v-vd-2020-ewhc-1847-fam/ Wed, 02 Sep 2020 11:10:43 +0000 http://becket-chambers.co.uk/?p=4060 To feel able to speak freely with your lawyer is a fundamental principle which is integral to the proper working of any justice system. A sine qua non. At common law, this principle takes the form of legal professional privilege. Legal professional privilege affords the client the legal right to withhold lawyer and client communications, […]

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To feel able to speak freely with your lawyer is a fundamental principle which is integral to the proper working of any justice system. A sine qua non. At common law, this principle takes the form of legal professional privilege. Legal professional privilege affords the client the legal right to withhold lawyer and client communications, both in writing and by spoken word, from a third party and/or the Court. In other words, it potentially gives a party the right to withhold evidence.

The ambit of privilege is, of course, circumscribed. It does not simply appear when a client and their lawyer are communicating. The purpose of the communication, for one, is essential. Nor is it an absolute right. If it exists then it can also be lost. Ascertaining whether privilege has been lost, whether a party has waived privilege, requires careful consideration. And, further, if privilege has been waived then what is the effect of such waiver? Where is the Court to draw the line between waiver and privilege? In practical terms, what documents need to be produced in the wake of any waiver? The entire file? What is to happen if a party seems to be both waiving and claiming privilege at the same time (and presumably doing both to further their case)? This is the so-called “cherry-picking principle” which was considered by Cohen J in AG v VD [2020] EWHC 1847 (Fam).

In the substantive case, W (“AG”) brings proceedings against H (“VD”) under Part III Matrimonial and Family Proceedings Act 1984. The parties had both married and divorced in Russia.

Within the proceedings, H sought an order that W produce the files of her previous legal advisors.

H (identifying three occasions in W’s two statements and her replies to questionnaires) contended that W had waived privilege.

A key issue within proceedings concerns the length of the marriage which is disputed. It is in issue whether the marriage continued until the middle of 2014, as pleaded by H in the petition in Russia, or late 2017, as W contends in the current proceedings?

W had previously filed a petition (later withdrawn) in England in March 2017. In that petition, W had stated, “the petitioner and the respondent have been separated for the past two years in that they live separate and independent lives and do not have sexual relations” (as at para 4 of Cohen J’s judgment)

In her stated case in the present proceedings, W had made various criticisms of her previous representatives. She had stated, for example, that previous representatives were “incompetent … possibly even negligent…the petition was riddled with errors and inaccuracies.” W had also stated that the petition, “Incorrectly asserted that we had separated two years previously” and “mistakenly refers in the statement of case to a two year period of separation and to a lack of marital relations” (12).

Cohen J summarised W’s case as follows (14),

It is clear that these words are carefully chosen by the specialist legal team that W now has acting for her. Behind these emollient words it is clear that the way W’s case is being put is as follows:
i) The petition did not reflect her instructions and that she did not tell her advisors that she had separated two years prior to March 2017 or that marital relations had then ceased;

ii) Whoever drafted the petition misunderstood W’s instructions;

iii) W never saw the petition (as I was told during the hearing) or, alternatively, that it was “just put in front of her” but at no time was it translated into Russian either on paper or orally with the result that W did not understand its contents and/or was deprived of the opportunity of checking it;

iv) At no time did W ever speak to a qualified lawyer or anyone in any capacity at [the firm of solicitors].”
Mr Justice Cohen continued,
“It is important that I have spelt out exactly what W’s case now is so as to evaluate the inconsistencies between the position as pleaded in her divorce petition and now and in order to assess the extent of the substance of the inconsistency. Is she simply making a passing reference to an erroneous document or is she opening the door of the notional consulting room in which she and her advisors were meeting and explaining and relying upon what would otherwise be a privileged process?” (15; my bold)

In answer this question, Cohen J took as his starting point the judgment of Elias J, as he then was, in Brennan and Others v Sunderland City Council and Others [2009] ICR 479. Elias J summarised the approach as follows:

(1) As a matter of public policy, all communications between a legal adviser and/or his or her client are privileged from date of production so long as they are confidential, written by or to the legal adviser in his or her professional capacity, and for the purpose of giving or getting legal advice … The interest which it protects is to ensure that communications between a solicitor and client may be frank and free and should not emerge into the public domain if litigation is subsequently pursued.

(2) A party may, however, waive that privilege. Classically, and uncontroversially, this would be so in instances where the party refers in detail to, and seeks to rely upon, part of a document setting out legal advice, but resists the other party’s efforts to obtain disclosure of the whole of that advice.

(3) Whether or not privilege has been waived is determined by the application of the principle of fairness…

In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation, Mustill J, as then he was, said this:
where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood“.

This is frequently referred to as the “cherry picking” principle. A party cannot seek to gain an advantage in litigation by placing part of a document before the court and withholding the remainder.

(4) The fact that waiver is accidental makes no difference; once waived, the whole document must be produced (or at least all parts of the document relating to that subject matter) …

(5) A document may be redacted to remove immaterial matter or material of no relevance to the case, whether privileged or otherwise” (para 16 of Cohen J; para 16 of Elias J)

Elias J had continued:
We begin with the observation that the underlying principle here is fairness. We agree with Mr Engelman that it is also inconsistency -waiving where it suits and claiming privilege where it does not – but the test for determining whether there is such inconsistency as would warrant a finding of waiver is fairness.

In our view the fundamental question is whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?

Typically, as we have seen, the cases attempt to determine the question whether waiver has occurred by focusing on two related matters. The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the party’s case? …

Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established in that context something more than the effect of the advice must be disclosed befree any question of waiver can arise.

However, in our view, the answer to the question whether waiver has occurred or not depends upon considering together both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter, the authorities in England strongly support the view that a degree of reliance is required before waiver arises, but there may be issues as to the extent of the reliance. Ultimately, there is the single composite question of whether, having regard to these considerations, fairness requires that the full advice be made available. A court might, for example, find it difficult to say what side of the contents/effect line a particular disclosure falls, but the answer to whether there has been waiver may be easier to discern if the focus is on the question whether fairness requires full disclosure.” (paras 62 -67)

Elias J had continued at paragraph 79:

“We agree that the law should be careful not too readily to find that relatively casual references to legal advice in collective bargaining negotiations constitute a waiver of privilege…In particular, if there is no reliance on these references then, even if they are relatively detailed, that will still not lead to waiver of privilege. If on the other hand there is reliance, it is only fair that the full advice (at least with respect to any relevant issue disclosed) should be produced.”

Decision

Cohen J held that W had indeed “invited H into the consultation room” (24).

He determined that it was plain that W was advancing a case that her instructions had been misconstrued, misquoted or not followed and that she was expressly challenging what her lawyers quoted her instructions to be. This amounted to “a radical change of direction in her case which goes to its substance” (24).

As a result, it “would not be fair for H to be put in the position where he could not challenge this statement by reference to what are likely to be contemporaneous notes, emails or other communications” (25).

It did not matter that W had avoided specifying a particular conversation or did not refer to the advice itself which was “neither here nor there” (26).

It was, however, relevant that W had “opened up the question of what she told her advisors. She puts it squarely in issue and is relying upon what she told her agents” (26).

Having reached that conclusion, he determined that to allow H to “see the whole of the file goes too far” (31).

W would be required to disclose: “(i) such material, whether attendance notes or communications, in which W’s instructions are given or noted as to when the parties separated and when marital relations between them ceased; ii) copies of all such communications and notes so as to identify those to whom W gave her instructions and the language in which those instructions were given as to the specific matters set out in i); and iii) Those documents identifying when the draft petition was sent to W or any communication with her about its contents, whether coming to W from her advisors or from W to them” (para 32).

W was ordered to pay the costs of H’s summons on the standard basis.

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Raising another man’s child: conduct that it would be inequitable to disregard https://becket-chambers.co.uk/2020/09/02/raising-another-mans-child-conduct-that-it-would-be-inequitable-to-disregard/ Wed, 02 Sep 2020 09:59:48 +0000 http://becket-chambers.co.uk/?p=4058 It is relatively common to see conduct pleaded by aggrieved litigants in financial remedy proceedings. It is far more unusual for such an argument to actually succeed and an award to be made reflecting such a finding. Section 25(2)(g) of the Matrimonial Causes Act 1973 states that conduct is only relevant “if that conduct is […]

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It is relatively common to see conduct pleaded by aggrieved litigants in financial remedy proceedings. It is far more unusual for such an argument to actually succeed and an award to be made reflecting such a finding. Section 25(2)(g) of the Matrimonial Causes Act 1973 states that conduct is only relevant “if that conduct is such that it would in the opinion of the court be inequitable to disregard it”. The House of Lords in Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186, HL made it clear that “in most cases” conduct would not be relevant, and that appears to have been the approach of the courts since.

Where arguments have succeeded, they have generally involved conduct which has had a financial effect on the parties. It has long been established that gambling away the parties’ assets can result in an adjusted award (M v M (Third Party Subpoena: Financial Conduct) [2006] 2 FLR 1253, FD). Similarly, a physical assault on a wife, diminishing her earning capacity, was accepted as meeting the section 25(2)(g) test (H v H (Financial Relief: Attempted Murder as Conduct) [2006] 1 FLR 990, FD).

Litigation conduct is a well-established ground under the same section, which more usually results in a costs order rather than an adjustment of the award itself. It is, however, of note that where the assets in the case are modest, the making of a costs order can effectively adjust the financial award in any event.

Cases where non-financial conduct arguments have succeeded are harder to come by. The recent case of FRB v. DCA [No. 2] [2020] EWHC 754 (Fam), heard by Mr Justice Cohen, is one such example. The parties were both from exceptionally wealthy families (each party estimated the other family’s worth at over £2 billion). They lived a lavish lifestyle, with estimated annual expenditure of over £10 million.

They separated after 14 years of marriage, at which point the husband heard rumours that the wife had been having an affair during the marriage. He took a paternity test which confirmed that the child of the family, C, (who at separation was aged 8) was not the husband’s child. The wife admitted the affair and gave the identity of C’s father.

The husband claimed that the wife’s conduct was such that it could not be ignored. Meanwhile the wife argued that it had not occurred to her that the child could have been her lover’s. After hearing extensive cross-examination of the wife, Cohen J concluded that “W did not know that she was carrying another man’s child, but it is impossible to believe that the thought that the child was not H’s never crossed her mind… I regard that evidence as incredible”. The judge was clear that the fact and extent of the affair itself did not fall within section 25(2)(g) (and he cited Miller; McFarlane in support of the same) but that the wife’s silence and the effect of it on the husband were “devastating” to the husband, and could not be ignored.

To what extent the financial award should be adjusted to reflect such conduct was a far more difficult issue. As Cohen J pointed out, “there is no guidance in reported authority as to how this sort of conduct should be reflected”. He noted that he could not speculate what would have happened if the husband had been informed of the wife’s unfaithfulness. The judge also stated that the paternal relationship that the husband has with C has been “of enormous value” to both. Although the husband raised in argument the financial burden of raising C, it is not something that the judge chose to address, instead focusing on the emotional impact alone.

Cohen J remarked just how difficult it was to try to put a figure on the emotional damage caused to the husband; he likened doing so to “comparing apples and pears”. In the circumstances (and somewhat unfortunately for all lawyers looking for guidance on how to quantify a successful conduct argument), the judge made no adjustment to the overall award. However, this was because he had already made a finding that the husband had been “seriously deficient” in his disclosure, and the judge was confident that the husband had access to or ownership of further assets which could not be quantified. In those circumstances, he held that no adjustment in the husband’s favour was necessary.

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Injunctions Part 2: Freeze and desist https://becket-chambers.co.uk/2020/08/28/injunctions-part-2-freeze-and-desist/ Fri, 28 Aug 2020 11:21:38 +0000 http://becket-chambers.co.uk/?p=4055 Summary Following on from my previous article on civil injunctions, I will cover injunctions in a family law context, focussing on freezing injunctions in matrimonial finance proceedings and applications under the Family Law Act 1996. Freezing injunctions – when are they needed? In the event of a marriage irretrievably breaking down, typical stages of a […]

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Summary

Following on from my previous article on civil injunctions, I will cover injunctions in a family law context, focussing on freezing injunctions in matrimonial finance proceedings and applications under the Family Law Act 1996.

Freezing injunctions – when are they needed?

In the event of a marriage irretrievably breaking down, typical stages of a matrimonial finance dispute are as follows (post-proceedings being issued via a “Form A” being sent to the court and both parties completing their financial, “Form E”, statements):

A First Directions Appointment (FDA)

This will be the first time the parties attend court, and generally, the hearing is a way to narrow down and define the major issues upon reviewing the Form Es filled in by both sides (for example the value and party interest in any jointly owned property) and to try to save extra legal costs being incurred going forward. Parties must file and serve a financial statement no less than 35 days before the appointment, and a statement of issues, chronology, questionnaires, and a notice stating they are ready to proceed must be filed and served no less than 14 days before the appointment date.

A Financial Dispute Resolution Hearing (FDR)

This hearing is designed to allow both sides to freely discuss their respective positions as to distribution of the marital assets, with the court having updated and more complete financial disclosure. The Judge will give the parties a non-binding indication of what would likely happen to the distribution of the “marital pot” were the case to go to a final hearing. This indication often focusses minds and can help parties to reach a settlement, which can be approved by the Judge at the hearing.

Final Hearing

If the parties are still unable to come to an agreement after the FDR, a Judge (a different one from the FDR) will make a final decision at a final hearing. This will traditionally follow the procedure of a “trial”, where the parties give evidence and are examined by lawyers, closing speeches will be made by each side’s representative, and the Judge will give a final, binding judgment on the distribution of the parties’ assets.

During the proceedings (especially when disclosure seems to not be as forthcoming as it should be), it may come to light that one party might (for a variety of reasons) want to dispose (i.e. sell or spend) of assets to prevent them from being included in the marital pot and potentially being awarded to the other side. A typical example would be where it appears likely that a party holding shares abroad will attempt to sell them in the near or immediate future.

In this type of scenario, a freezing injunction application may be appropriate.

When can they be granted?

Freezing injunction orders can be granted as an interim remedy (often in conjunction with an order requiring a party to provide information about the relevant property or assets), most often by the High Court. They can be wide-ranging in nature, covering any sort of asset (e.g. property or bank accounts), can be made at any time during the proceedings, and can last for any time (although usual practice is until the conclusion of proceedings).

They are considered draconian in nature. They impose strict conditions and consequences for non-compliance (i.e. a custodial sentence, large fines, seizure of assets) on a respondent where technically they have not done anything yet, and the respondent is often not given notice of the application itself (for fear of the respondent then proceeding to carry out the action at the heart of the application).

As with civil injunctions, whether to grant the remedy is a matter for the court’s discretion (per the Senior Courts Act 1981 section 37(1) and National Commercial Bank of Jamaica Ltd v Olint Corp Ltd (Jamaica); American Cyanamid Co v Ethicon Ltd). The more recent authority of UL v BK (Freezing Orders: safeguards: Standard Examples) [2013] EWHC 1735 (Fam) emphasised the following factors that need to be considered in making a without notice application for a freezing injunction:

• The application must be supported by evidence and must include a statement as to why the application cannot be made on notice.
• An order can only be made if urgent or desirable in the interests of justice.
• An order not on notice can only be made if there are good reasons for not giving notice (e.g. notice would cause the subject matter of the order to be destroyed). Generally, there should always be some notice, even a telephone call.
• The applicant must make the fullest disclosure of all the relevant circumstances known to them, for and against their case, and whether of fact or law.
• An applicant must bring to the attention of the respondent, at the earliest practicable opportunity, the evidential and other materials on which the injunction was granted.
• Especially in a without notice application, numerous undertakings are required from the applicant (undertakings as to damages must be considered if appropriate).
• Where available and appropriate, independent evidence should be filed.
• In the case of a freezing order that covered all the respondent’s assets, all principles and safeguards appropriate to such orders must be adhered to (such as drafting any necessary exceptions into the order which would allow the party to pay their necessary day-to-day expenses).

Injunctions under the Family Law Act 1996

Injunctions under this regime can be made as stand-alone applications or as part of a larger case relating to the welfare of children or in matrimonial finance proceedings. The need for one may arise from allegations of domestic abuse and/or the wish for one of the parties to leave the family home, and also in relation to protecting a parent and/or child when they appear to be at risk from a partner.

Non-molestation and occupation orders

The two main types of injunctions under this regime are non-molestation orders and occupation orders respectively, although in practice they are often applied for concurrently. The court can make an order of its own initiative during proceedings if one is deemed necessary.

Non-molestation orders will prohibit the respondent from:

• “Molesting” the applicant or the relevant child/ren (molestation is not defined in the Act but some examples from case law include: acts and threats of violence, searching through the applicant’s belongings without permission, writing to the applicant in an abusive or threatening manner, and circulating explicit pictures of the applicant to media outlets).

Whilst an occupation order will generally:

• Exclude a perpetrator of domestic violence from entering the family home or a part of it, or regulate occupation of the family home more generally.

When will either or both be granted?

In considering an application for a non-molestation order, the court will have regard to section 42(5) of the Family Law Act, which states that the court must consider all the circumstances of the case, including the need to secure the health, safety and well-being of the applicant and/or any relevant child.

It is important to note that in coming to a decision the focus is not necessarily on the behaviour of the respondent in and of itself, but rather the impact of the alleged behaviour on the applicant and/or child.

An application also needs to demonstrate that there has been molestation, that the relevant person/s need protection, and that judicial intervention is needed to control the respondent’s behaviour.

In contrast, as occupation orders interfere or regulate the right of the respondent to live in their home (by either declaring, extending, or creating rights for the applicant regarding the family home, or regulating the occupation of the family home by the parties), they are more limited in scope depending on the status of the parties involved in the application.

For example, if the applicant is entitled to occupy the family home (mainly though legal or beneficial ownership, a contract, or “home rights”) then the chances of them being granted the application can be higher than when the applicant does not enjoy any of those legal rights to the family home (although this will depend on the facts of each case). It is important to establish the status of the applicant when making or responding to an application as this will inevitably influence the likelihood of success.

As well as this, the court considers section 33(6) of the act, which is comprised of: the housing and financial needs of the parties, the likely effect of an order or not on the parties, and the conduct of the parties towards each other and in general. The court also considers section 33(7), known as the “balance of harm test”, which says that if there is a risk of the applicant or child suffering significant harm from the respondent in the event of no order (with harm being broadly defined), the court must make an order (unless the relevant party is likely to suffer equal or greater harm if the order is made).

As regards section 33(7) it should be noted that only “entitled applicants” benefit from this mandatory provision. The lack of benefit from this provision is another hurdle for those not entitled to have to overcome in making an application, although the court will still have discretion to make an order based on the facts of the particular case.

Enforcement

For both, orders can last for a specified period or until further order, and breach of either is a criminal offence which can result in a custodial sentence (where the respondent has breached the relevant order without reasonable excuse).

Finally, undertakings can be given by the respondent in lieu of an injunction, although in practice undertakings should not be accepted where there is a high risk of domestic violence and a court is not likely to accept one in those circumstances.

Both the Civil and Family teams at Becket Chambers are experienced in representing clients applying for and responding to injunction applications and can also offer general advice on injunctions (our recent cases are available here). If you require advice or assistance with an injunction matter, do not hesitate to contact our team at clerks@becket-chambers.co.uk or more information is available here.

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Sussex Annexe: Change Of Address https://becket-chambers.co.uk/2020/07/31/sussex-annexe-change-of-address/ Fri, 31 Jul 2020 14:55:20 +0000 http://becket-chambers.co.uk/?p=4043 We are excited to announce that as of the 1 August 2020, our Sussex annexe will be moving to new premises in Brighton: Mocatta House Trafalgar Place Brighton BN1 4DU United Kingdom Please note that our Eastbourne address will therefore close for business

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We are excited to announce that as of the 1 August 2020, our Sussex annexe will be moving to new premises in Brighton:

Mocatta House
Trafalgar Place
Brighton
BN1 4DU
United Kingdom

Please note that our Eastbourne address will therefore close for business

The post Sussex Annexe: Change Of Address appeared first on Becket Chambers.

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