Two New HKFLA Talks

1. Wednesday, 17 March 2010 at 6:30 p.m.

Speaker: MS SOU CHIAM Deputy Principal Government Counsel

“The Report of the Working Group on Mediation: Possible Implications for the Family Law Practitioner”

The Conference Room at JSM 17th Floor, Prince’s Building, 10 Chater Road, Central, Hong Kong

The Report can be downloaded from the Department of Justice’s website http://www.doj.gov.hk

English version - http://www.doj.gov.hk/eng/public/mediation.htm

http://www.doj.gov.hk/chi/public/mediation.htm
http://www.doj.gov.hk/sc/public/mediation.htm

2. Thursday, the 22nd April 2010 at 6:30p.m.

Speaker: HER HONOUR JUDGE MELLOY

“The Less Adversarial Trial in Practice examples from the front line”

This talk will be accompanied with a DVD presentation, provided by the Australian Family Court

The Hong Kong Club, 1 Jackson Road, Central, Hong Kong

Registration from 6:00 p.m.

For both events: Members HK$150. 00

Non-members: HK$200.00

Students: HK$75.00

Inc Wine & Snacks

UK Supreme Court: On Whether Children should be Ordered to give Evidence in Family Proceedings

W (Children) [2010] UKSC 12

Family Law Week

KH 4th March 2010

Appeal to the Supreme Court by father in care proceedings relating to five children. At issue were the principles guiding the exercise of the court’s discretion in deciding whether to order a child to attend to give evidence in family proceedings. Appeal allowed.

In this judgment the Supreme Court reformulates the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. In so doing it removes the presumption or starting point of the current test, which is rarely if ever rebutted, that it is only in the exceptional case that a child should be so called.

At issue in this case is the care of five children. The mother and father at the relevant time were in a relationship and the father is the biological parent of the four youngest children. A sixth child is due to be born to the couple this month. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.

In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so. The local authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness. In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.

The Court of Appeal dismissed the father’s appeal (see [2010] EWCA Civ 57). They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal and remitted the question of whether the child should give evidence, and if so in what way, to Her Honour Judge Marshall to be determined at the fact finding hearing in light of the principles set down in this judgment.

REASONS FOR THE JUDGMENT

The court agreed with counsel for the local authority that there were very real risks to the welfare of children which the court must take into account in any reformulation of the approach [17 to 21]. However the current law, which erects a presumption against a child giving live evidence in family proceedings, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights. In care proceedings there must be a balance struck between the article 6 requirement of fairness, which normally entails the opportunity to challenge evidence, and the article 8 right to respect for private and family life of all the people directly and indirectly involved. No one right should have precedence over the other. Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point [22, 23].
Accordingly, when considering whether a particular child should be called as a witness in family proceedings, the court must weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child [24]. The court sets out a number of factors that a family court should consider when conducting this balancing exercise. An unwilling child should rarely, if ever, be obliged to give evidence. The risk of harm to the child if he or she is called to give evidence remains an ever-present factor to which the court must give great weight. The risk, and therefore the weight, will vary from case to case, but it must always be taken into account [25, 26]. At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the child’s evidence, and at the same time decrease the risk of harm to the child [27, 28].
The essential test is whether justice can be done to all the parties without further questioning of the child. The relevant factors are simply an amplification of the existing approach. What the court has done however is remove the presumption or starting point; that a child is rarely called to give evidence will now be a consequence of conducting a balancing exercise and not the threshold test [30].
In this case the trial judge had approached her decision from that starting point. The Supreme Court could not be confident that the judge would have reached the same result had she approached the issue without this starting point, although she might well have done so. Nor did the court consider it appropriate to exercise its own discretion, given that all of the relevant material was not before the court. The question is remitted to the trial judge to decide at the fact finding hearing scheduled for next week. Taking account of the detriment which delay would undoubtedly cause to all of the children concerned, including the unborn baby, there should be no question of adjourning that hearing [31 to 35].

"Perfectly reasonable argument" for a review of Payne says Lord Justice Wall

TUES 09/02/2010 - In a hearing for permission to appeal a leave to remove order today, Lord Justice Wall added his qualified support for a review of Payne v Payne. However, the judge decided that the case before him was not the right case for a challenge to Payne before the Supreme Court and refused the father's permission to appeal. The Payne case is controversial amongst parents' rights groups as it gives a child's primary carer considerable freedom to relocate abroad with the child. The case involved a father unsuccessfully appealing against an order allowing the mother to remove their children to New Zealand. In his judgment, Lord Justice Wall commented: "There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent." He went on to say: "This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a 'compelling reason' for an appeal to be heard." Families Need Fathers, a lobby group for parent contact rights, is disappointed with the decision. Their Director of Communications, Julius Hinks, who was present at today's hearing said: "Court secrecy rules prevent our discussing the merits of the father's own case, as presented in his submission, which were listened to at the earlier hearing. Under contempt rules, we cannot comment on the arguments that the father presented which were not addressed by Wall in his judgment. "For 39 years, the courts have allowed relocation and leave to remove without properly considering the impact on the children. Now that contemporary research confirms a risk of harm, it is entirely unacceptable that the courts continue to ignore such compelling evidence while upholding the legal niceties of process, procedure and precedent. The system is well served and protected, children are not," Mr Hinks concluded. Jordans Family Law Newswatch

23 July 2009

Mediator to give evidence on mediation

In a recent case the court dismissed a mediator's application to set aside a witness summons requiring her to provide evidence. The evidence related to a mediation over which she presided and which resulted in a settlement, that subsequently became the subject of litigation.

Background

The issue arose following a mediation some years previously between Farm Assist Limited (now in liquidation) (FAL) and the Secretary of State for the Environment, Food and Rural Affairs (DEFRA), at which the parties reached an amicable settlement.

Some six years after the mediation FAL sought to set aside the settlement, alleging that it had been agreed under economic duress. DEFRA wished to call the mediator to give evidence and both parties agreed that the mediator should be asked to provide evidence, including details of her private conversations with the parties. When approached, the mediator informed the parties that she had retained no relevant documents and had little factual recollection of the mediation. Unsatisfied with this response, DEFRA served a witness summons to require the mediator's attendance at the trial. The mediator attempted to set aside the summons, relying upon the express provisions of confidentiality and non-attendance as provided for by the mediation agreement. The mediator also argued that her evidence would have been confidential and/or irrelevant.

Decision

The judge decided that the mediator should give evidence and held as follows:

1. Confidentiality - the proceedings in the case were confidential between the parties and the mediator and it would therefore require the consent of all three to waive the confidentiality. However, the court, will where it is in the interests of justice to do so, waive this confidentiality. In this case, the allegation of economic duress could only be assessed by reference to what had happened in the mediation, and it was therefore in the interests of justice for the mediator to give this evidence.

2. Privilege - the court recognised that privilege in mediation proceedings might exist in many forms and discussed these in turn:

a. legal advice privilege: the use of correspondence between solicitor and client at mediation would not result in the privilege being lost;

b. litigation privilege: similarly, where the document is used for the purposes of the mediation, the without prejudice privilege will not be lost;

c. without prejudice privilege - all information provided in the course of mediation is deemed to be without prejudice and is not admissible in any litigation of the dispute. However, this is a privilege that belongs to the parties, and not to the mediator; the parties waived this when they agreed that a witness statement could be taken from the mediator;

d. mediation privilege: the court found that it is yet to be definitively determined whether there is such a privilege that extends to the mediation process as a whole, but that what privilege there is extends to the parties as opposed to the mediator.

3. The mediation agreement provided that none of the parties could call the mediator as a witness in any litigation, or arbitration "in relation to the Dispute" and that the mediation would be treated as confidential as between the parties and the mediator, except where the court made an order to the contrary. The "Dispute" was defined by the agreement as being a dispute relating "to the work performed by [FAL] on behalf of [DEFRA] during the foot and mouth epidemic in 2001". The court held that the current proceedings related to the circumstances under which the settlement agreement was entered into, rather than a "Dispute" as narrowly defined by the terms of the mediation agreement, and therefore the confidentiality provision did not apply.

4. Even though the mediator claimed that she had little recollection of the mediation, there was a possibility that she would recall certain details when presented with documents.

Comment

This decision highlights the exceptional circumstances in which it is in the interests of justice for the court to refuse to uphold the confidentiality provisions in mediation agreements, and grant an application requiring the mediator to give evidence of the mediation. Here, economic duress was alleged and the conduct of the parties at the mediation had to be assessed in order to determine whether the settlement agreement should be set aside.

The case serves as a reminder that mediation is a form of assisted without prejudice negotiation and that the limits of without prejudice negotiations apply equally to mediation. Similar situations in which evidence may be sought include those where maintaining confidentiality would allow perjury or blackmail, or where referring to without prejudice material is necessary to explain a delay, or similar issue. However, it is likely that the decision would have differed if one of the parties had been unwilling to seek evidence from the mediator and not waived their right to without prejudice privilege.

This decision warns potential parties to mediation that confidentiality provisions in a settlement agreement need to be carefully structured. There are circumstances in which even the most cautiously worded agreement may not protect against issues such as serious misconduct, which the court might choose to examine. It also serves as a useful reminder to parties and mediators to consider taking detailed notes during the mediation.

Finally, a mediator seeking to avoid being called as a witness in proceedings relating to that mediation should ensure that any agreement to that effect is drafted in the broadest terms and captures all potential subsequent proceedings.

This decision should also be read in the light of the EU Directive on Mediation, which seeks to preserve confidentiality in mediations subject to public policy exceptions. UK laws are required to comply with this Directive by May 2011.

Further reading: Farm Assist Limited (in liquidation) and the Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC)

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Wall LJ Quotes Larkin: “They **** you up, your mum and dad, They may not mean to, but they do”.

Wall LJ ordered a boy to live with father against his wishes. He ordered the boy to leave his home and school to go and live with his father, against the wishes of both the child and his mother. Lord Justice Wall gave him three days to pack his belongings and say goodbye after his mother was accused of poisoning his mind towards his father. The ruling was seen as a warning to other mothers who do not acknowledge a father’s rights. The boy, who does not want to leave, believes his father has “ruined” his life and warned that he would “punch and kick” rather than move. He has settled into a good local school where he is doing well, the court was told. However, a child psychiatrist and the boy’s guardian – appointed by the court on his behalf – agree he is suffering “emotional harm” by being estranged from his father. The father had argued that his current visits to his son were “futile” because of his ex-wife’s attitude and threatened to cut all contact if his son did not live with him. The boy’s parents split up a few months after he was born and his father went on to remarry. He has lived with his mother in Wiltshire ever since, with limited contact with his father. It is understood he will be taken from his home for a pre-arranged meeting at an office on Monday before going to live with his father. It is not clear when the mother will see him after that. His parents have been embroiled in a legal battle for much of his life and the move to his father’s was ordered by Judge Bond at Bournemouth District Registry earlier this month. The mother took her case to the Civil Appeal Court in London. Jane Hoyal, her barrister, said: “A move from the happy, settled and stable home he has with his mother would be momentous for this young man. “There is no dispute that he will be very upset, angry and defiant when this hugely disruptive move is implemented.” Miss Hoyal said her client had complied with the contact arrangement and had given her “unconditional support” to the relationship between father and son. She told the court that the wishes of the father had been given more weight than those of the boy who had voiced a “compelling personal wish” to stay with his mother. In addition, she said, the father and step-mother would be working away from home on a regular basis, leaving the son to be cared for someone else. In his judgement yesterday, Lord Justice Wall said he recognised that the move would be "almost cataclysmic" as the boy would have to leave his school where he is settled and has made friends. He also acknowledged that - despite the mother's “hostility” to the father - the boy was flourishing at home and at school. However, the judge said he could only intervene if Judge Bond's decision had been “plainly wrong”. Refusing permission to appeal, he said although the mother ostensibly appeared willing for father and son to have contact, the boy's “long term psychological welfare” demanded he live with his father. Lord Justice Wall went on to describe Judge Bond ruling as a “sensible, careful, well thought out and balanced judgment”. He added: “I appreciate that this will be hard for the mother and will be very hard for the boy.” Earlier this year, Lord Justice Wall borrowed the words of poet Philip Larkin to rebuke two warring parents, warning them they were “within a whisker” of losing their child. He quoted the opening lines from Larkin's 1971 poem This Be the Verse “They **** you up, your mum and dad, They may not mean to, but they do”. “These lines seem to give a clear warning to parents, who, post-separation, continue to fight the battles of the past, and show each other no respect,” he said. Telegraph 20th November 2009 (KH)

Guardianship of Children and International Parental Child Abduction

The Hong Kong government plan to implement recommendations in reports on Guardianship of Children and International Parental Child Abduction (November 2009). The Secretary for Labour and Welfare has advised the Law Reform Commission (LRC) of the Administration's plan to implement the recommendations in the LRC's reports on 'Guardianship of Children' and 'International Parental Child Abduction'. The Labour and Welfare Bureau intends to consult the Legislative Council Panel on Welfare Services before issuing the drafting instructions in 2009-10 for Bills: to implement the recommendations contained in the LRC's report on 'Guardianship of Children', which made nine law reform recommendations in relation to the law, mainly the Guardianship of Minors Ordinance (Cap 13) which governs the appointment of guardians for children in the event of the death of one or both parents; and to implement the recommendations contained within the LRC's report on 'International Parental Child Abduction' which concern legislative amendments to prevent, and provide remedy for, international parental child abduction. See here.(KH)

Domestic Violence: "Go" Orders Announced for UK

New powers help victims break cycle of domestic violence

29 September 2009

Violent partners will be banned from their homes and their victims given support to escape abuse under new government proposals.

The police will be able to issue domestic violence protection orders, known as ‘Go’ orders, to bar the perpetrators of domestic violence from their homes for up to a fortnight, giving their victims breathing space to consider their options.

Currently, victims can only be protected immediately if the perpetrator is charged and bail conditions set, or if a civil injunction is sought by the victim. This means that in many cases, the only option for victims is to escape to temporary accommodation. The 'Go' orders will allow police to give evidence on the victim's behalf, removing the perpetrator from the home and preventing contact with the victim where they are concerned about the on-going risk of violence.

'Go' orders will be a valuable tool

Home Secretary Alan Johnson said, ‘It is not right that victims of domestic violence, who have already suffered so much, are forced out of their home. It is both safer and fairer to remove the abuser.

'"Go" orders will be another valuable tool to help protect victims, and tackle perpetrators of domestic violence.'

Chief Executive of Refuge, Sandra Horley OBE said, 'Protecting abused women and children is at the heart of what Refuge does. These new orders will protect women from further risk of domestic violence if they are implemented effectively.'

Restraining orders

These new powers will complement restraining orders which come into force on 30 September, to help protect victims of harassment (including domestic abuse), where an offender has been prosecuted for any criminal offence, not just harassment offences.

Criminal courts will also have greater freedom to grant restraining orders when abusers appear before them, giving victims immediate protection and sparing them the ordeal of starting a separate civil action.

Implementing the new orders

New legislation will be needed to implement the orders. They will be piloted in two, yet to be decided, police force areas to test the impact of the orders, in particular the impact on victim’s safety. (KH)

Family Mediation: New UK Ministry of Justice Website

McFarlane v McFarlane [2009] EWHC 891 (Fam)

Periodical Payments increased in McFarlane case High Court varies periodical payments order upwards in "paradigm" compensation case Mr Justice Charles has increased the periodical payments to the wife in the McFarlane divorce. The divorce had previously been the subject of the landmark case of Miller & McFarlane considered by the Lords in 2006. As a result of the ruling the wife, Julia McFarlane, will now receive 40% of the husband's income as a partner at Deloitte's up to £750,000, 20% of any income between £750,000 and £1m and 10% of any income over £1m. Effectively that means she will receive a minimum £350,000 a year. In his analysis underpinning his judgment Mr Justice Charles noted that though “In the eyes of many the wife could live comfortably for the rest of her life if no further payments were made to her ... the plans and expectations of the parties when deciding that the wife should give up her career point strongly towards the conclusion that the relevant provision should be made for the wife from the husband’s earnings on or before his retirement if this is practical and can be fairly done” Family Law Week (KH)

'Serious Injustice': HK Courts Limited Powers to Grant Ancillary Relief following Overseas Divorce

Le Pichon JA in ML v YJ [2009] HKEC 972 (CACV 89/2008)[85] to [87] in a Postscript to the judgment said: 'This appeal concerns the power of the court to grant ancillary relief. Neither this appeal nor the preliminary point on jurisdiction taken below would have arisen but for section 25(1)(b) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 which provides that no order for ancillary relief shall take effect unless the decree has been made absolute. Serious injustice could arise from this jurisdictional limitation. For example, where the marriage is terminated by foreign proceedings in which no financial order is made, the Hong Kong courts would have no power to grant financial relief even where there are matrimonial assets within the jurisdiction. This deficiency in the law was addressed by way of legislative reform in the United Kingdom, by the introduction of Part III of the Matrimonial and Family Proceedings Act 1984 conferring jurisdiction on the English courts to grant ancillary relief based on an overseas divorce provided that leave is obtained. In his reasons for judgment, [Lam J at first instance] highlighted the need for legislative reform in this regard in Hong Kong. See §§ 63-64 and 80-81 of his judgment. I fully endorse his plea for urgent legislative attention. (KH)

Domestic violence law to cover same-sex scenarios

Cohabitation Domestic violence Same sex partners The Domestic Violence (Amendment) Bill 2009, which will be gazetted on June 5, 2009 and tabled at the Legislative Council on June 17, 2009, will extend the scope of the domestic violence ordinance to same sex cohabitants, providing them with additional civil remedies alongside the existing criminal legislative framework. Under the amendments, a new definition of cohabitation relationship as 'a relationship between two persons who live together as a couple in an intimate relationship' will be introduced; structural changes will be made to delineate the categories of protected people under legislation's coverage; and the short title of the ordinance will be changed to Domestic and Cohabitation Relationships Violence Ordinance. The Secretary of State for Labour and Welfare, Matthew Cheung, confirmed that the proposed amendments would not affect the Government's stance of not recognising same-sex marriage, civil partnership or any same-sex relationship as a matter of legal status.

Article 12(2) of the Hague Child Abduction Convention

In search of a settled interpretation of Article 12(2) of the Hague Child Abduction Convention

One of the exceptions to mandatory return of an abducted child under the Hague Convention on the Civil of Aspects of International Child Abduction 1980 is that the proceedings are commenced after the expiration of the period of 12 months from the wrongful removal or retention and that the child is now settled in its environment (provided for in Art 12(2) of the Convention). This article discusses critically the Court of Appeal decision in the case of Cannon v Cannon in relation to the interpretation of the concept of settlement in this exception and the scope of the discretion conferred by the provision. It is argued that courts should take a more child-centred approach in construing and applying the Convention in general and this provision in particular. In a postscript, the article analyses the later House of Lords decision in Re M(Abduction: Zimbabwe) which, while agreeing with the Cannon decision in relation to the scope of the discretion conferred by Art 12(2), takes a more child-centred approach to the exercise of discretion under the Convention.

For the full article see Child and Family Law Quarterly, Vol 20, No 1, 2008.

Rhona Schuz is Senior lecturer and joint director of the Centre for the Rights of the Child and the Family at the Shaarei Mishpat Law College in Israel and a visiting lecturer in the Law Faculty of Bar-Ilan University (and formerly a lecturer in law at the London School of Economics).

Jordans Family Law News Watch

London's reputation as "divorce capital of the world" to be tested in the Lords

28/05/2009 - A Nigerian woman living in London has been given permission to appeal to the House of Lords after the Court of Appeal upheld a Nigerian court order granting her a fraction of the amount of money she would have received had her divorce been granted in England.

Sikirat Agbaje, 68, is repoted to be suffering from severe financial hardship and is homeless.

The Nigerian couple had spent most of their married life in Nigeria, although during the 33-year marriage they had acquired British citizenship and had spent some time living in England.

After the separation Mrs Agbaje set up home in England, but her attempt to obtain an English divorce was unsuccessful after a Family Division judge held that 'there was no evidence that substantial justice could not be obtained by the wife in the courts of Nigeria'.

Ultimately the Nigerian court granted her husband, Olusola Agbaje, 71, a divorce, going on to award the wife a life interest in the matrimonial home in Nigeria, worth about £83,000, plus a lump sum payment of £21,000 as 'maintenance for life'. Mr Agbaje retained assets of about £616,000, including two properties in London.

Mrs Agbaje sought leave to issue her application for financial relief in England following an overseas divorce. Her case was heard by Mr Justice Coleridge who awarded her £275,000 from the sale of the English property on condition that she transferred her life interest in the Nigerian property to the husband.

Mr Agbaje then went to the Court of Appeal where Lord Justices Ward, Longmore and Jackson ruled that the original Nigerian court order should stand on the grounds that the couple had more significant connection with Nigeria than with England, and Nigeria was the natural and appropriate forum for resolution of the wife's claims.

The case will test London's reputation as "divorce capital of the world" and is being eagerly watched by matrimonial lawyers.

Jordans Newswatch

ANCILLARY RELIEF: Agbaje v Agbaje [2009] EWCA Civ 1

(Court of Appeal; Ward, Longmore and Jackson LJJ; 20 January 2009)

The Nigerian couple had spent most of their married life in Nigeria, although during the 33-year marriage they had acquired British citizenship and had spent some time living in England. After the separation the wife set up home in England, but her attempt to obtain an English divorce was unsuccessful; a Family Division judge held that 'there was no evidence that substantial justice could not be obtained by the wife in the courts of Nigeria'. Ultimately the Nigerian court granted the husband a Nigerian divorce, going on to award the wife a life interest in the matrimonial home, worth about £83,000, plus a lump sum payment of £21,000 as 'maintenance for life'. The husband retained assets of about £616,000, including two properties in London. The wife sought leave without notice to issue her application for financial relief in England following an overseas divorce. The initial judgment granting that leave was short, but on the husband's application to set aside leave the leave judge produced a long judgment, confirming that unless leave was given the wife would suffer hardship. However, the application was confined to the English assets, and the issue of a periodical payments order. The trial judge eventually awarded the wife £275,000 from the sale of the English property on condition that she transferred her life interest in the Nigerian property to the husband; the trial judge placed considerable reliance on the judgment given by the leave judge for his findings.

In the first review by the Court of Appeal of a financial relief order following an overseas divorce (rather than a review of the grant of leave to apply for such relief), the court set out the principles to be applied. The permission stage was intended to protect the potential respondent from having to present a strong defence at substantial cost, particularly if, as would often be the case, he was living abroad. At the permission stage the court had to decide whether there was a substantial ground for making the order, on the basis of a quick impressionistic assessment of the merits. The apparent readiness of respondents to challenge the grant of leave, instead of getting on with the substantive hearing was unsatisfactory; the practice of arguing the merits at this stage was almost invariably a complete waste of time and money, and carried a risk that, as in this case, the trial judge would pay undue deference to a judgment that was no more than a grant of leave. The Family Division was advised to restrict attempts to overturn a grant of such leave to very plain cases only. The purpose of the jurisdiction to award financial provision after a foreign divorce was to remit hardship in the exceptional case in which serious hardship would otherwise be done. Comity between courts of competing jurisdiction, although this was not to be pushed too far, had a significant influence on the way the decision had to be taken. It was necessary to pay close attention to the interests of justice as they would have affected a stay, and such interests of justice as would require the correction of the order then made by the foreign court. The focus should be on whether substantial justice or injustice had been done in the foreign court, not on a comparison between the size of the foreign award and the size of the potential award in England. The trial judge had failed to refer to issues of comity, and had failed to explain why this was an exceptional case in which the wife should be allowed a second bite of the cherry. The husband and wife had more significant connection with Nigeria than with England, and Nigeria was the natural and appropriate forum for resolution of the wife's claims. No substantial injustice had been done to the wife in Nigeria. The wife's claim was dismissed; although it was plain that she would suffer real hardship in England and Wales, comity commanded respect for the overseas order.

Landmark divorce case puts pre-nuptial contracts to test

WED 22/04/2009 - One of Germany's wealthiest women will seek to enforce a pre-nuptial contract next week in a landmark appeal that would leave her former investment banker husband with nothing if she is successful.

Ms Radmacher, a paper industry heiress worth an estimated £100 million, claims that her estranged husband is seeking to renege on a deal the couple made three months before they married in London in 1998 in which he agreed not to claim against her if they separated.

Although the prenuptial contract would have been fully enforceable in Germany or France, last July Ms Radmacher was ordered by a High Court judge in London to pay her estranged husband, Nicolas Granatino, a lump sum of £5,560,000.

Mrs Justice Baron ruled that it would be "manifestly unfair" to hold Mr Granatino to the contract, which was signed in Germany.

Ms Radmacher is now challenging that award and if she succeeds the ruling could mean that pre-nuptial contracts will become legally enforceable in England. However, most experts expect Ms Radmacher to fail.

Mr Granatino, a French national who worked for JP Morgan, gave up his banking career six years ago to pursue a doctorate in biotechnology at Oxford. He has hired Fiona Shackleton, who advised Sir Paul McCartney in his split with Heather Mills, to represent him.

Julian Lipson, head of family law at Withers, said: "The Court of Appeal will need to weigh up the conundrum between respecting the autonomy of parties to agree a financial settlement at the outset of their marriage, and the need for state interference at the time of divorce to protect the financially weaker party and any children.

"It is a political hot potato for one European member state to be saying that it will not respect a legally binding contract entered into in another, but the English court tends to be paternalistic in protecting divorcing spouses from themselves."

Jordans Family Law Newswatch

Lord Justice Thorpe warns lawyers not to apply to vary divorce settlements

WED 01/04/2009 - Bryan Myerson, the former city fund manager hit by the credit crunch, has lost his appeal to renegotiate his £9.5 million divorce settlement.

Three Court of Appeal judges dismissed his challenge, saying the "natural process of price fluctuation, however dramatic", did not satisfy the Barder legal test under which a court may grant leave to appeal out of time. Mr Myerson spokesman said he will now take his appeal to the House of Lords.

Mr Myerson's former wife was awarded 43 per cent of the couple's £25.8 million fortune when the divorce settlement was agreed in February last year, of which £7million has already been paid.

The main ground set out by Lord Brandon in Barder that Mr Myerson was relying on was "that new events have occurred since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed".

The crisis in the financial markets has driven down the value of Mr Myerson's shares in Principle Capital Holdings, where Mr Myerson worked as a fund manager. Since February the share price of Principle Capital Holding has plummeted from around £2.95 a share to just 27.5p on the date of the hearing.

Mr Myerson's barrister, James Ewins, argued that the drop in share prices and house values constituted the new events to satisfy the Barder test.

However, Lord Justice Thorpe, giving the ruling of the Court of Appeal, did not agree and said the appeal failed on the application of Barder and cited the judgement of Justice Hale in Cornick in which she analyses what circumstances will and will not satisfy the Barder test.

In addition, Lord Justice Thorpe added "the husband, with all knowledge both public and private, agreed to an asset division which left him captain of the ship certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead.

"When a businessman takes a speculative position in compromising his wife's claims, why should the court subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest?

"He continues to enjoy control of the opportunities that go with it. The market place may take a pessimistic view of his future prospects. He may not share the market place view. Unusual opportunities are created for the most astute in a bear market", Lord Justice Thorpe added.

Mr Myerson has four further equal instalments of £625,000 to pay over the next four years which, according to his spokesman, he will seek to cancel at the High Court in July.

Mr Myerson's spokesman said: "Mr Myerson is disappointed that the Court failed to recognise that the economic downturn had rendered his divorce settlement unfair.

"The aim of Mr Myerson's appeal has always been to ensure that the division of assets with his ex wife was equitable and he will now take his appeal to the House of Lords.

"A separate consequence of this appeal is that in July the High Court will hear a freestanding application to cancel the further payments that are presently due to his ex-wife under the terms of the existing settlement. That hearing will be in private."

Angela Davis of Nottingham law firm Berryman said she was not surprised by the ruling. "Had the appeal been successful, it could have triggered numerous similar applications, not just in 'big money cases' like for Bryan Myerson and his wife, but in all types of family cases where for example, the value of the former family home had fallen as a consequence of the current downturn."

However Lord Justice Thorpe warned anyone who may be thinking of making a similar application to vary their divorce settlements.

"There may be many who are contemplating an attempt to reopen an existing ancillary relief order on the grounds of subsequently encountered financial eclipse. All in that situation should ponder Hale J's analytical characterisation.

"They would be well advised to heed the warning that very few successful applications have been reported."

Jordans Newswatch

Click here to download the Myerson v Myerson judgment in full

Mediation Costs

Rothwell v Rothwell [2008] EWCA Civ 1600

(Court of Appeal; Thorpe and Jackson LJJ; 9 December 2008)

The husband sought to appeal an order made in ancillary relief proceedings. The Court of Appeal directed an oral hearing of the husband's application, on the basis that the judge had arguably misunderstood some of the financial information, and had thereby been led into a mathematical error. The Court also issued letters inviting the husband and wife to resolve outstanding issues within the court's ADR scheme, on the basis that there should be no further costs if mediation were successful. Mediation between the parties resulted in a clear agreement. However, the husband then appeared to resile from the agreement, in that he refused to honour a cheque sent in partial settlement of the wife's mediation award. After the Court of Appeal directed an oral hearing to show cause why the appeal should not be disposed of in accordance with the mediated agreement, the husband indicated that he was content for there to be a consent order in the terms of the mediated agreement. The wife sought her costs for the period since the mediation.

The wife would have incurred some professional costs after the mediation even without the husband's vacillation. There would be no order as to costs. The husband's concession that the proceedings could be disposed of by a consent order in terms of the mediated agreement had been wisely made. The principle that once the parties had arrived at a compromise of litigation, the court would uphold and enforce that compromise, absent some vitiating element, applied in the Court of Appeal to a contractual compromise of pending appellate proceedings. The Court of Appeal ADR scheme had had a relatively low take up from family appeals, but an encouragingly high success rate, and it was important that the court should signify that if parties arrived at a clear compromise, within the mediation process, the compromise would be robustly upheld by the court.

Jordans Family Law Newswatch

Interview with Sandra Davis, Head of Mishcon de Reya's Family Department

Sandra Davis, Head of Mishcon de Reya's Family Department

By Hugh Logue, Legal News Editor

Family Law Newswatch

Sandra Davis is the Head of Mishcon de Reya's Family Department, where she has been a partner for 25 years. Her work includes international and domestic 'big money' cases with a specialisation in high profile and high net worth individuals attracting media attention, international child abduction, divorce and separation, cohabitation disputes, pre-nuptial agreements and contact and residency disputes. She lives in London with her husband and their two children.

Davis is probably best known for having acted for a number of high-profile clients including the late Princess Diana, Mick Jagger's former partner Jerry Hall and, most recently she initially represented Heather Mills McCartney.

I met her at Mishcon de Reya's impressive Art Deco office building, Summit House, in central London. My immediate impression is that this is an open-minded firm. 'It is an entrepreneurial firm which is full of eclectic people and it is a firm that encourages diversity in attitude and working practices', Davis tells me. 'This is not about working 24/7 and feeling like jumping off a building at the end of the day'.

Many of Mishcon's clients attract the media spotlight, either because of their wealth or because they are public figures. I asked her how acting for a 'regular' client differs from acting for someone under the media spotlight.

'There's an added dimension when you act for someone who is in the entertainment industry or a well known public figure because you have to be aware of the part that the media will play in the rolling out of the facts. Whether you say something or nothing, it is often the case you have to make decisions about how you are going to manage the information as it comes out. Even if you have taken the strategic decision with a client not to comment, their spouse may well take a different line and the pressure on your client to try and redress the balance is enormous. We look very carefully at what is in the client's interests, and it is generally not in their interest to litigate both in the press and through the courts particularly since media interest is generally much more prolonged if there is comment than if there isn't.'

'Journalists are always trying to get information. They will often telephone to discuss an issue in family law and then move on to ask me about a specific case which they are well aware I won't comment on, but that doesn't stop them trying.'

The White case was an important case for high wealth specialists like Davis. The case involved a farming family where both partners worked hard to manage the farm and the case established the concept of the division of matrimonial assets equally. Does she feel that the previous mechanism of 'reasonable requirements' for the division of assets discriminated against women?

'The interpretation of s25 [of the Matrimonial Causes Act 1973] before White led to a glass ceiling of reasonable requirements on awards for wives of wealthy husbands and that was clearly unfair.

'The issue is whether post White and Miller the pendulum has swung too far in the other direction. The suggestion from the senior Judiciary is that in the case of the hugely wealthy it has.

'I suspect whenever pre-nups are introduced by legislation, reasonable requirements will return through the back door.

'I think that the fact that there is no discrimination of the wife as the home maker is positive, however this leads to discrimination against working wives who do it all. These women are in a less favourable position in terms of life choices, than those who have chosen to or have been asked to stay at home and look after the children. They will have to carry on working, whereas often those non-working women are not expected to return to work.'

Should there always be a right for an equal division of the assets accrued during the marriage?

'I think the short marriage cases at the wealthiest end of the scale suggest that there has been a greater increase in the investment divorcee. I don't necessarily think that it is fair to have a 50/50 split of assets accrued during such a marriage. I think that what we had historically - which was a fund to rehouse and a sum to assist them to readjust to their new circumstances - was perhaps a little fairer.'

Davis is in favour of pre-nuptial contracts becoming enforceable by statute to allow people to regulate their own affairs. But are pre-nuptial contracts only of use to wealthy individuals?

'No. They are of value to families who want to keep wealth within their family rather than risk alienating it to someone outside the family. They are also of use to people who have been divorced before and maybe want to provide for their children.'

In the recent case of MacLeod the Privy Council decided that although it was for the legislature, rather than the courts, to decide if the time had come for post-nuptial agreements to be regarded as binding under English law, there were circumstances where agreements made after marriage which provided for a future separation could be enforced by the courts. I asked if she thought there was a need for post-nuptial agreements or are they just a device to get around the fact that there is uncertainty about the enforceability of pre-nups?

'Well the door is now wide open for post-nups but not for pre-nups. In Macleod the Privy Council held that post-nups are binding even if objectively unfair but reconfirmed that pre-nups are just one of the circumstances that the court can take into account.'

When Davis qualified as a solicitor, family law was an emerging area of practice. For someone wishing to follow in her footsteps, does she think it is harder to succeed now as a family lawyer?

'I think that when I started out family law was the bottom of the pile, and I think that it was perceived to be the easy option that women moved into. Times have changed and issues have become more complex so as a result family practice is much more intellectually challenging.

'Family lawyers have become more respected and there are more specialist boutique firms. So with greater opportunities, becoming a name isn't easy.

'You have to be very focussed and very driven, I think it is a very competitive environment now. In the current economic climate people are going to look towards the professions as a safer haven than say the banking industry. There will be more competition and a commercial attitude is going to be far more valuable than just a first class degree.

'I think employers are going to look for people who have had some commercial acumen, who have done something that is creative and can stand out and who are personable.'

After being a partner for 25 years, Davis openly accepts that is not possible to square the circle of negotiating a divorce, 'a good settlement', she says, 'is one where everyone feels a bit of pain'.

Negligence Claims and LKW v DD?

NEGLIGENCE/ANCILLARY RELIEF

Williams v Thompson Leatherdale and Francis [2008] EWHC 2574 (QB)

(Queen's Bench Division; Field J; 10 November 2008)
Under the consent order the wife received the matrimonial home and £1.28 million in two lump sum payments, as a clean break settlement. The wife subsequently lost this money in a property development scheme. The wife sued her divorce lawyers, the solicitors and the barrister, for damages, claiming that they had negligently failed to advise her to delay reaching a settlement with the husband until after the House of Lords reached a decision in White v White.

Given that there had been a real possibility that the law would change in favour of applicant wives, especially in big money cases, and given that the total value of the joint assets had been over £4.5 million, the barrister had been under a duty, once he became aware that White was going to the House of Lords, to explain the potential implications of White to the wife, giving her the opportunity to decide whether to suspend negotiations until the Lords' made a decision. The barrister's failure to give that explanation amounted to negligence, and was not a mere error of judgment. The barrister ought to have advised the wife that there was a real, but far from certain, possibility that the decision in White would benefit her, and that she should weigh this against the negatives of abandoning the negotiations, which included ongoing dependence on the husband, the likely hostile reaction of the husband and the children, and the risk that the assets would fall in value. The fact that it seemed unlikely at the time that the wife would choose to postpone negotiations was no reason not to advise her of the potential implications of White. However, the barrister had not been under a duty to advise the wife that she ought to suspend the negotiations, indeed had he advised her that in his assessment she should proceed with the negotiations, that advice would not have been negligent. The wife had failed to prove that she had suffered any recoverable loss by reason of the barrister's negligence; the evidence established that the wife would have concluded the settlement in any event. The wife had failed to establish any negligence on the part of the solicitors, and had also failed to show that she would have repudiated the settlement agreement if the solicitor had invited her to do so after the decision in White was published.

Jordans Family Law Newswatch

President of Family Division backs Media Access and Pre-Nups

Media must be allowed into family courts, says Sir Mark Potter

President of the Family Division, The Right Honourable Sir Mark Potter

By Frances Gibb
TUES 21/10/2008 - Britain's most senior family judge has said that family courts should be opened to the media to dispel the "myths and inaccuracies" surrounding the system.

Sir Mark Potter, President of the Family Division, told The Times that he favoured allowing the media into children's care cases, where there was "the strongest case" for greater transparency.

He supports allowing similar access to private family disputes over money and children, subject to the discretion of the judge. In all cases the anonymity of the children involved, and where appropriate the parties, must be protected, he said.

Judges should be able to exclude the media in certain disputes between couples where there may be "prurient" interest because of their "sensational" nature but where the facts were of no concern of the public, he said.

In a rare interview, Sir Mark also called for pre-nuptial agreements to become all but binding; deplored the Government's policy of charging big fees to litigants in civil and family cases; and backed greater legal rights for unmarried couples.

Sir Mark, 71, said that "often tendentious and misleading descriptions in the media have distorted the public perception of the legal process and inhibited its understanding of how that process works".

But the balance, he said, "now seems to me to have come down in favour of increased openness by permitting the attendance of the media, subject to provisions to protect the anonymity of children, or indeed the parties in appropriate cases". He admitted that there were concerns among some judges who dealt with these cases daily.

The likelihood was that the identity of people involved would emerge, even if local press reports preserved their anonymity, because within communities it would "become fairly widely known who was involved".

There was a case, Sir Mark said, for saying that couples should not have to "wash their dirty linen in public" when they came to court to settle matrimonial disputes. "They might have a number of embarrassing issues to air that are of no interest whatever to the public ... save for sensationalism and prurience." That was why, in such cases, judges should have discretion to hold hearings in private, he said.

But he added: "In an age of transparency and amidst largely misplaced criticisms of 'secret justice', it is clear that the public ... should have confidence in the judiciary." Laying to rest some of the "myths" about family justice, he said that it was "simply untrue" that parties were unaware of the case against them (for instance, when children were being removed into care) or that they were denied seeing the evidence before the courts. They had a right to see all the evidence, he said. They also had the right to appeal and were entitled to legal representation and legal aid.

Citing another area of reform, he said that he did not favour legislation to make pre-nuptial contracts binding - at present they are only "persuasive" in disputes over assets between divorcing couples. He favoured strengthening the authority of such contracts between couples, however, "as a sensible means of dealing with the fortunes of the rich".

Sir Mark said: "I consider that great weight should be accorded to any such contract where the parties were legally advised at the time. It should usually be decisive."

He said that he would retain a "long-stop" judicial discretion for the prevention of injustice, so that judges would not have to follow such contracts where, for instance, one side had not disclosed all their assets at the time; or circumstances had radically changed during a marriage in an unforeseen way.

Sir Mark also made clear his strong opposition to government policy to recoup the costs of running the civil and family courts through charging high fees to litigants.

The "dramatically large increase" for cases over whether a child should be removed from its home had already led to a drop in the number of care cases brought by local authorities, which gave rise to "considerable concern", he said.

Councils were under a statutory duty to take proceedings to protect children. "It is not a question of a voluntary taking advantage of the system in the way that can be said of ordinary citizens going to law," he said.

Although £40 million had been provided to compensate councils over court fees, this funding was not "ring-fenced". He anticipated that there would be a similar damaging impact in the realm of private matrimonial disputes where it would "bear heavily upon those who, though above the exemption level [for paying fees] are of modest means and will not be able to stand the expense".

The result, he said, would be that they would not be able to come to court to sort out problems over contact or access to children, for instance, or, "what concerns as a judge, they will proceed as litigants in person [without a lawyer]".

That caused "enormous problems" both in procedure and the process of a case resulting in delays, because of the judges' need to give them full opportunity to express their points which counsel would express more succinctly, he said.

In another area of potential reform to family justice - the law on unmarried couples - Sir Mark made clear that they should have greater legal rights as proposed recently by the Law Commission, the law reform body. The Government has shelved the proposals for the time being, which was a "surprise and disappointment", but the Law Commission had made a "totally convincing case", Sir Mark said.

This article was originally published in The Times on 20 October 2008.

Children's Voices in Court: Should Judges see Children in Private?

WED 29/10/2008 - On Monday 20 October 2008, President of the Family Division and Chair of the Family Justice Council, Sir Mark Potter, chaired a wide-ranging debate at the Inner Temple examining a key issue for the family courts - how far should the participation of children and young people in family proceedings be enhanced?

While no speaker argued that children should not be heard at all, there was lively discussion as to how far participation should be taken. Are young people entitled to be present in court if they wish to attend? And should judges see children in private during the course of proceedings?

In keeping with the Family Justice Council's interdisciplinary nature, the debate was attended by participants from across the family justice system. Speaking on the panel or from the floor were judges, barristers and solicitors, mediators, social workers, Guardians, psychiatrists and therapists.

The debate also featured the voices of young people who had been through the courts system themselves.

Speaking in favour of widening participation, Mr Justice Hedley conceded that judges should constantly ask themselves how far children were taking part freely in proceedings and how far they understood what it was that they were participating in. He warned against using children's evidence to switch responsibility for deciding the outcome of a case from adults to children. However, he emphasised the importance of allowing children a say in cases which fundamentally affect their lives. "These cases are about children," he said. "It's important to remember whose life is at stake."

Anthony Douglas, Chief Executive of CAFCASS, also offered support for enhanced participation. He noted that the family courts are a service for children and, given the increasing emphasis on choice and participation in adult social services, he claimed it was "perverse" not to offer children a say in their own cases.

He pointed out, however, that a large proportion of the children involved in public law cases are under the age of six, that many are deeply distressed, or can be suffering mental illness or dealing with language or other barriers which make their participation problematic. "Seeing a judge can be an important part of the process," he said. "There is a real importance in children feeling that they are being taken seriously - but they must be well prepared in advance."

Anthony Hayden QC, argued for a more cautious approach to children's participation.

"The court room is a professional environment where professionals step up to take decisions parents haven't been able to," he stated, insisting that it was difficult for lawyers, trained to evaluate points of law rather than the emotions of children, to incorporate children's evidence into their deliberations.

He suggested that the current clamour for increasing child participation was born out of a misunderstanding of the Human Rights Act, in which the sense of rights being used to "protect" had been forgotten.

Anthony Hayden said he believed that it would often be inappropriate and distressing for children to hear the details of their case in court, that their presence may infringe a frank airing of the issues, and that allowing children to speak to judges in private may both inhibit the parents' rights and compromise the judge. Finally, he argued, we best achieve effective participation of children by ensuring that they have good representation in court and for that reason cross-disciplinary support for children should be improved.

This last issue was forcefully taken up by the final speaker in the debate, former Chair of NAGALRO Alison Paddle, who drew on her long experience of working with children to make the point that the role of the Guardian in representing children was of fundamental importance in family court proceedings and should never be seen as second best to speaking to the judge. "Participation must be genuine," she argued. "It must be tailored to the needs of children and it must be properly resourced."

Jordans Family Law Newswatch

EU Directive on Mediation

THURS 18/06/2008 - The European Parliament and the Council have approved a Directive on mediation covering civil, commercial and family matters. In addition to encouraging the use of mediation in cross-border disputes the Directive provides, for the first time, a framework around which parties can proceed with mediation safe in the knowledge that, should the mediation fail, matters that were raised will be kept confidential by mediators and that they will not lose the opportunity to take their dispute to court by the expiration of limitation periods. Bridget Prentice, Parliamentary Under Secretary of State at the Ministry of Justice said: "The Government believes that courts should be the last resort for people involved in civil or family disputes and has supported this proposal as a means of encouraging the use of mediation in cross-border disputes throughout the European Union. The UK gave priority to this initiative in the early stages of its negotiation during our Presidency of the EU in 2005 and I welcome its agreement." The European Commission issued its proposal for a Directive in October 2004. The European Parliament gave its first opinion in March 2007 and the Council of European Justice Ministers reached a final agreement on the text in November 2007. Following agreement of the Council's text by the European Parliament in April 2008 the Directive has now been adopted. Member States will have until June 2011 to comply with its provisions. The Directive is available on the EUR-Lex website. Jordans Family Law News Watch

Hong Kong Take Note: Domestic Violence Reforms Backfire in UK

Monday 1th April 2008 The Domestic Violence Act 2007 has led to fewer victims of domestic violence seeking help, it was claimed today.

Victims of domestic violence who have violent partners are said to be reluctant seek a non-molestation order because breaching it is now a criminal offence and they fear their partners will get a criminal record or a prison sentence of up to five years. Prior to the Domestic Violence Act, which came into force last July, the matter would have been dealt with through the civil courts.

It is claimed that the situation could be putting around 5,000 people a year at increased risk. A spokesman for the Ministry of Justice said the department is setting up a meeting with judges to discuss the problem.

Judge John Platt, a circuit judge dealing with domestic violence cases, told the Times today that he estimated that the number of women seeking non-molestation orders had fallen by between 25 and 30% since July 2007 compared to 2006 figures when there were 20,000 such applications.

"Obviously this is a very worrying figure. Either offenders have changed their behaviour - which seems extremely unlikely - or the victims do not want to criminalise the perpetrators," Judge Platt told the Times.

A spokesman for Sir Mark Potter, president of the family division of the high court, confirmed that other judges were also worried about the decline in the number of applications for non-molestation orders.

Sir Potter was "very concerned that, for whatever reason, the legislation appears to have led to a reduction rather than an increase in the protection afforded to victims of domestic violence as a result of the change of the law", the spokesman said. (Source Jordans Family Law News Watch)

Recently Reported Judgments (Jordans Family Law Newswatch)

ANCILLARY RELIEF: B v B (Ancillary Relief) [2008] EWCA Civ 543 (Court of Appeal; Sir Mark Potter P, Wall and Hughes LJJ; 19 March 2008) One possible reason for departing from equality was recognised to be that there were assets that were the product not of efforts of different kinds during the marriage, but of inheritance by one spouse only. In this unusual case, in which the whole of the capital available to the parties had been brought into the marriage by the wife from a source entirely external to it, and in which the marriage had played no part, however indirectly, in the acquisition of any of the assets now available, dividing the assets approximately equally did not lead to a fair result. Although not a big money case, this was not a case in which the needs of the parties compelled the court to disregard the source of the assets.
ABDUCTION: Re F (Abduction) [2008] EWHC 272 (Family Division; Sir Mark Potter P; 22 February 2008) The mother had removed the children from Poland without informing the father. The father had been granted restricted parental authority by the Polish courts, involving only vital problems in connection with upbringing, education and medical treatment. The father did not take any action to have the children, now aged 13 and 11, returned to Poland until over 11 months after the removal.
PROPERTY: Laskar v Laskar [2008] Court of Appeal; Tuckey LJ, Lord Neuberger of Abbotsbury and Rimer LJ; 7 February 2008) The presumption that, in the absence of a specific declaration of trust by the parties, domestic property conveyed into joint names was held jointly and equally in terms both of legal and of beneficial interests, applied to a family home occupied by cohabitants, not to commercial property or property purchased as an investment. It was not right to apply Stack v Dowden to cases in which the primary purpose of the property purchase had been as an investment, even if there was a family relationship between the parties.
ANCILLARY RELIEF: Dixon v Marchant [2008] EWCA Civ 11 (Court of Appeal; Ward, Wall and Lawrence Collins LJJ; 24 January 2008) The wifes remarriage shortly after the making of a consent order providing for payment of a lump sum to capitalise her periodical payments did not constitute a Barder type event invalidating the basis or fundamental assumption upon which the order was made, notwithstanding that the wife had made a statement in the proceedings that she had no intention to cohabit or remarry. The agreement between the parties could have included whatever recitals were appropriate to spell out any common assumption about a moratorium on the wifes remarriage, there was nothing in the agreement that would have alerted the judge to an intention between the parties to give the husband a right to claw back any part of the lump sum if the wife were to remarry soon after the payment had been made. There had been nothing before the court to indicate that the wife had been fettering her right to remarry; the risk of remarriage was one the husband had had to accept. (Wall LJ dissenting.)
ANCILLARY RELIEF: SW v RC [2008] EWHC 73 (Fam) (Family Division; Singer J; 25 January 2008) When the person paying maintenance for a child could not do so out of income, but maintained a high rate of expenditure on himself and his family by use of capital and borrowings, there was no reason in principle why the childs maintenance should cease, or be reduced. Maintenance paid from accumulated or borrowed money (both resources of a capital nature) was maintenance in the form of income in the hands of the parent with care, not a lump sum or other capital resource.
ANCILLARY RELIEF: VB v JP [2008] EWHC 112 (Fam) (Family Division; Sir Mark Potter P; 29 January 2008) The language of the House of Lords in Miller/McFarlane was of general application and extended, where appropriate, to consideration by the court of the overall fairness of an order made upon an application to vary a joint lives periodical payments order. The wife's revised periodical payments award rightly included an element of compensation for relationship-generated disadvantage, given that the wife, who had not worked during the marriage, had by her efforts following separation clearly demonstrated that had she worked during the marriage her earning capacity, sacrificed during the marriage, would have been substantially greater on separation than it in fact was.
M v S [2007] HKEC 2119 Family law - ancillary relief - whether petitioner barred from applying for ancillary relief under s.9 by reason of remarriage - whether leave should be given under r.68(2) to apply for ancillary relief - Matrimonial Proceedings and Property Ordinance (Cap.192) s.9 - Matrimonial Causes Rules (Cap.192, Sub.Leg.) r.68(2)
PFH v CMS [2007] HKEC 2210 (Children - custody - domestic violence - factors - included taking into sibling unity: children only one year apart and were very close - and status quo (see P v C in link below)

Mediation Not a Breach of Right to Fair Trial?

Mediation in UK: Judiciary should direct more parties to mediate

Master of the Rolls, Sir Anthony Clarke

6/05/2008 - The Master of the Rolls has said that judges should direct more litigants to mediate before taking disputes to trial.

Speaking at the Civil Mediation Council's second national conference in Birmingham last week, Sir Anthony Clarke said that the power exists for the courts to regularise mediation and to make it an integral part of the litigation process.

Sir Anthony said that "far too many people know far too little about mediation. I think we can all agree that this has to change... it must become such a well established part of [our litigation culture] that when considering the proper management of litigation it forms as intrinsic and as instinctive a part of our lexicon and of our thought processes, as standard considerations like what, if any expert evidence is required and whether a Part 36 Offer ought to made and at what level."

In order for this to happen Sir Clarke said lawyers and judges will need educating so that mediation becomes second nature to them.

In his speech, Sir Anthony said that the judges' approach in the landmark Halsey v Milton Keynes General NHS Trust appeal court case had been 'overly cautious'. This case ruled that compulsory ADR would breach the right to fair trial under Article 6 of the European Convention on Human Rights as it would amount to an unacceptable constraint on the right of access to the court.

Sir Anthony said that there may grounds for suggesting that Halsey was wrong to on the Article 6 point. "If mediation is successful it does obviate the need to continue to trial, but that is not the same as to waive the right to fair trial. If it were, any consensual settlement reached either before or during civil process could arguably amount to a breach of Article 6, which clearly cannot be the case", he said.

Jordans Family Law News Watch.

Mills v McCartney (Judgment in full PDF) from Jordans Family Law NewsWatch

TUES 18/03/2008 - Following yesterday's publication of the summary judgment for the Mills-McCartney divorce ruling, the judgment has been revealed in full after Ms Mills was told she could not appeal against its publication.

In Mr Justice Bennett's High Court ruling he wrote that he gave Ms Mills "every allowance for the enormous strain she must have been under".

But he added: "I am driven to the conclusion that much of her evidence, both written and oral, was not just inconsistent and inaccurate but also less than candid".

"Overall she was a less than impressive witness," he said.

By contrast Mr Justice Bennett found Sir Paul to be a balanced witness. "He expressed himself moderately though at times with justifiable irritation, if not anger. He was consistent, accurate and honest" he wrote.

Mr Justice Bennett found Ms Mills' claim for £125 million exorbitant.

"Nevertheless, as I have said, the wife is (or at least was) prepared to accept £50m in lieu of a claim for £125m. That, in my judgment, can mean only one of two things; either the claim by the wife for £125m is a reasonable claim, in which case the enormous drop of £75m to £50m is inexplicable, or, the claim for £125m is and was unreasonable, indeed exorbitant."

Download the judgment in full

Negligence: Sexual Abuse, Limitation Act A v Hoare & Others [2008] UKHL 6

(House of Lords; Lord Hoffmann, Lord Walker of Gestinghope, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood; 30 January 2008) Overruling Stubbings v Webb [1993] AC 498, which had created anomalies, the Lords held that Limitation Act 1975, s 11 did apply to a case of deliberate assault, including acts of indecent assault; therefore, in personal injury claims for damages arising out of sexual assaults and sexual abuse, the relevant limitation period was 3 years from the date of knowledge, with a judicial discretion to extend that period when it appeared that it would be equitable to do so. The appeal also raised the meaning of 'significant' injury in s 14(2), for the purposes of identifying the date of knowledge. The test in s 14(2) was an entirely impersonal standard; the question was not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings, but whether the claimant would 'reasonably' have done so. The effect of the claimant's injuries upon what he could reasonably have been expected to do was irrelevant; the test was external to the claimant. The question whether the actual claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings, was taken into account by the court when considering whether to exercise the discretion to extend the limitation period under s 33 of the Act. (Jordans Family Law)

New Hague Convention: International Recovery of Child Support and Maintenance

Professor William Duncan, Deputy Secretary General of the Hague Conference on Private International Law On 23 November 2007 more than 70 States, as well as the European Community, successfully concluded at The Hague, after negotiations which spanned four years, the new global Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, as well as its first Protocol on the Law Applicable to Maintenance Obligations. The new Convention holds the promise of a new era in the international recovery of maintenance one in which cross-border procedures, particularly in child support cases, should be simplified, swift, accessible and cost effective. The whole Convention applies on a mandatory basis to child support cases. The Convention also covers spousal support, but its provisions on administrative co-operation (ie the system whereby applications may be channelled through Central Authorities) will only apply to spousal support as between States which have made a positive declaration to that effect. Contracting States may also by declaration bring within the scope of the Convention (or any part of it) any other maintenance obligations arising from a family relationship, parentage, marriage or affinity. In this article Professor Duncan summaries the objectives and measures of the new Convention as well as providing a unique insight into the negotiations that preceded the signing of the Hague Convention. For the full article see [2008] International Family Law, Issue 1. (Jordans Family Law)

Threats to the integrity of trusts on marriage breakdown

William Massey, Partner, Farrer and Co LLP, UK Although the favourable tax regime has made England an attractive place for wealthy non-domiciliaries to live, it has also become an extremely good venue for their poorer spouses to bring divorce proceedings. Since the case of White in October 2000 and the subsequent decisions of, for example, London has become one of the most generous places for the less well off party to divorce and has regularly been described in the press as 'the divorce capital of the world'. Whereas before, the poorer spouse was limited to receiving sufficient money to satisfy their reasonable requirements, these recent cases have established the principle that property should be shared equally, unless there are good reasons to depart from this. At the same time, English courts also tend to be more generous in the level and duration for which spousal support will be payable. Of particular importance is that, unlike in many countries, under English divorce law the 'sharing' principle applies to all property, which may include trust interests. However, to the extent there is non-matrimonial property (for example property owned by one of the parties before the marriage or an interest in a trust established some time before marriage) these might be reasons for a departure from an equal division. The English court's approach, both in terms of generosity and its treatment of offshore discretionary trusts, was highlighted earlier this year in the well publicised case of Charman, heard by the English Court of Appeal, which has sent shockwaves through private wealth adviser circles. Not only did the court uphold the largest contested spousal award (of some &pound48 million), but it also affirmed the extremely robust approach English family courts often take to assets held in offshore trusts by treating assets of &pound68 million held in a Bermuda trust as though they were the husband's and available for division with his wife. In this article William Massey provides a detailed evaluation of the legal position of trusts on marriage breakdown and advises practitioners on how to mitigate the risk of trust assets being attacked on divorce. For the full article see [2008] International Family Law, Issue 1. (Jordans Family Law)

Jordans Top Five Family Law Cases of 2007

FRI 21/12/2007 - As 2007 draws to a close, Newswatch looks back at the five most significant family law cases over the last year. It has been an eventful year for family law practitioners with a major reform of legal aid by the Legal Services Commission, increased uncertainty about ancillary relief laws, the introduction of the Forced Marriage Act 2007, the further implementation of Domestic Violence, Crime and Victims Act 2004 and, several landmark judgments. Below are what we consider to be the most important five cases of 2007.

1.Charman v Charman [2007] EWCA Civ 503

(Court of Appeal; Sir Mark Potter P, Thorpe and Wilson LJJ; 24 May 2007) The parties had been married for 28 years and had two children, now adult. The judge found that the parties' assets amounted to 131 million, including 68 million in an off-shore discretionary trust created by the husband upon an expression of wish that during his lifetime he should be its primary beneficiary. A trust set up for the children, containing assets of at least 30 million, was not treated as part of the assets to be divided. The judge awarded the wife 48 million, 36.5% of the assets; this was believed to be the highest ever award on determination of a contested application for ancillary relief in divorce proceedings. The wife had conceded a special contribution by the husband in the generation of the fortune, and the judge based his departure from equality on both the husband's special contribution, and the greater risks inherent in the assets remaining with the husband. Under a further order, if the husband was required to make specified tax payments (estimated by the husband at 11 million) the wife should contribute 36% of such payments (up to 3.5 million). The husband argued that the wife's award should have been no higher than 28 million, and that the money in the trust should not have been treated as assets of the parties, because the trust was a dynastic trust intended for the benefit of future generations.

2.Stack v Dowden [2007] UKHL 17

(House of Lords; Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury; 25 April 2007) [2007] The Times April 26. The starting point in a case of joint legal ownership was joint beneficial ownership. A conveyance of a domestic property into joint names indicated both legal and beneficial joint tenancy, unless and until the contrary was proved. The burden would be upon the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests. Many factors other than financial contribution were likely to be relevant, eg advice or discussions at the time of the transfer, reasons for acquisition in joint names, purpose of the home, financing of the purchase, and financing of the household. Cases in which joint legal owners would be taken to have intended that their beneficial interests should be different from their legal interests would be very unusual. Curiously in the context of homes conveyed into joint names, but without an express declaration of trust, the courts had sometimes reverted to the strict application of the principle of the resulting trust. The approach to quantification in cases in which the home was conveyed into joint names should certainly be no stricter than the approach to quantification in cases in which it had been conveyed into the name of one only, and to the extent that Walker v Hall [1984] FLR 126, Springette v Defoe [1992] 2 FLR 388 and Huntingford v Hobbs [1993] 1 FLR 736 held otherwise, they should not be followed. However, this case was a very unusual one, in that although the couple had cohabited for a long time and had four children together, they had kept their financial affairs rigidly separate. This was strongly indicative that they did not intend their share, even in the property in joint names, to be held equally. The woman had made good her claim for 65% of the property, having contributed far more to the acquisition of the house than had the man.

3.Hill v Haines [2007] EWCA Civ 1284

(Court of Appeal; Sir Andrew Morritt C, Thorpe and Rix LJJ; 5 December 2007) A property adjustment order made in ancillary relief proceedings, whether following a contested hearing or by consent, was made for consideration in money or moneys worth and could not therefore be set aside as a transaction at an undervalue. The order quantified the value of the applicant spouses statutory right to apply for financial provision by reference to the value of the money or property to be paid or transferred by the respondent spouse to the applicant spouse. Parliament could not have intended that a court order of this type be capable of automatic nullification on the suit of a bankrupt spouses trustee in bankruptcy.

4.North v North [2007] EWCA Civ 760

(Court of Appeal; Thorpe and May LJJ, Bennett J; 25 July 2007) The husband and wife divorced in 1978 after the wife had an affair. A financial order was made in 1981, settling (although not expressly dismissing) the wife's claims to capital by the husband's provision of a house for her and by his transferring ground rents to her to provide her with an annual income. The order also contained a provision for nominal periodic payments of five pence per annum until the wife remarried or until a further order was made.

In the following years the husband transferred further ground rents and investments to the wife, all together worth upwards of 30,000. He also carried out works to the wife's mother's property without charge and paid half of the wife's legal fees in connection with an application for a residence order in respect of a grandchild. Between 1978 and the present the wife chose not to work, and in 2000 moved to Australia, investing all her money there and living in a rented apartment in Sydney. The investments turned out to be unwise and the net result was that her assets and income dwindled drastically. The wife applied for a variation of the periodical payments order. The district judge ordered that the husband pay the wife a lump sum of 202,000 for the capitalisation and dismissal of the wife's periodical payments claim. The husband appealed.

The appeal would be allowed. In his judgment the district judge had absolved the husband of responsibility so that the order he then made amounted to a contradiction. It could not be said however that the wife's application for variation of the periodical payments order must be dismissed as a matter of principle: the factors upon which she relied were not excluded as a matter of statute or authority. The wife's failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband and her lifestyle choices in Australia were matters which the husband could not be held responsible for in law. The investment losses fell into a different category and were more the outcome of hazard and came down to misfortune rather than mismanagement. In a second judgment handed down on 31 July the Court of Appeal awarded the wife 3000 a year in periodical payments, anticipating that the parties would agree a conventional capitalisation which would result in the dismissal of the wife's outstanding claims.

5.Ella v Ella [2007] EWCA Civ 99

(Court of Appeal; Thorpe and Maurice Kay LJJ and Charles J; 17 January 2007) The husband and wife both had dual British and Israeli nationality, but had been largely resident in England during the marriage. The husband had brought proceedings against the wife in Israel; the wife had brought proceedings against the husband in England. A pre-nuptial agreement between the parties provided that the law of Israel should apply. In the Israeli jurisdiction the wife had committed herself to a consent order concerning a postponement. The English judge agreed to stay the English proceedings, noting that the family's relationship with Israel was a profound one and identifying the pre-nuptial agreement as a major factor.

Whatever the relevance of the pre-nuptial agreement might be in England, it was undoubtedly a contract of considerable effect in the Israeli forum, of juridical advantage to the husband. An alternative basis for the judge's conclusion could be found in the history of the concurrent proceedings in Israel. If the husband obtained enforcement of the terms of the pre-nuptial agreement in Israel, the wife's prospects of getting permission to make a claim under Part III of the Matrimonial and Family Proceedings Act 1984 were good, given the connections of the family with England.

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Restraining orders

Implementing the new orders

Family Mediation: New UK Ministry of Justice Website

McFarlane v McFarlane [2009] EWHC 891 (Fam)

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Family Law Ordinances

Practice Directions

Hong Kong Court of Appeal Judgments

High Court Judgments

Family Court Judgments 1973-2008

Family Court Judgments Ancillary Relief

Family Court Judgments Children

Ancillary Relief 'Big Money' Cases

Miscellaneous & Interlocutory

Property Rights and Cohabitation

Hague Convention & Cross Boarder Cases

Article 12(2) of the Hague Child Abduction Convention

London's reputation as "divorce capital of the world" to be tested in the Lords

Landmark divorce case puts pre-nuptial contracts to test

Lord Justice Thorpe warns lawyers not to apply to vary divorce settlements

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Interview with Sandra Davis, Head of Mishcon de Reya's Family Department

"Prenups and Professional Negligence" Crossley v Crossley [2007] EWCA Civ 1491

Negligence Claims and LKW v DD?

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Children and Family Rights & Foreign Statutes

EU Directive on Mediation

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Recently Reported Judgments (Jordans Family Law Newswatch)

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Mills v McCartney (Judgment in full PDF) from Jordans Family Law NewsWatch

Negligence: Sexual Abuse, Limitation Act A v Hoare & Others [2008] UKHL 6

New Hague Convention: International Recovery of Child Support and Maintenance

Threats to the integrity of trusts on marriage breakdown

Jordans Top Five Family Law Cases of 2007

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