Friday, 14 September 2007

Update 12th of September 2007


On the 2nd of August 2007 ss 11, 12 and part of 14 of the Children & Adoption Act 2006 came into force. This will have passed practitioners by as the last of these is of semantic effect while the other two relate to the imposition on adoptions into the UK in certain circumstances, which are themselves regulated by s9 which is not in force.

Coming into force on the 1st of October are the more immediately relevant ss6, 7 and 15 of the same Act (see Commencement Order No 1 SI2007/2287) which relate to Family Assistance Orders.

Not before time s6 (via s15 and Sch.3) repeals s16(3)(a) of the Children Act 1989 with the effect that a FAO can be made even where the circumstances are not exceptional. I have long felt that this was a necessary change given that there are many circumstances where a local authority’s assistance could avoid more invasive legal interventions later. (Admittedly, this depends on the local authority, but Westminster needs mention in my experience for doing family assistance rather well)

It also stretches the maximum duration of such an order from six to 12 months and provides that where a s8 order is also in force, one of the tasks for the local authority or officer can be to give effect to that order.

Arguably substituting for the repealed s16(3)(a) is the practice direction marked ‘Consultation’ set out below. One senses the broad parallel with the Special Guardianship procedure s14A(11) whereby the court cannot make an order until it has received a report on the proposal and I suggest that there is a departmental aim always to precede an order relating to children with an expert’s report. This seems to have been missed out by the parliamentary draftsman, but Sir Mark Potter has caught it as it was falling.

s7 introduces an additional child protection mechanism in the context of Children Act 1989 Part I proceedings in the form of a new s16A. In proceedings concerning children reporting officers are often invited to comment on particular risk factors and one hopes that if they identify any others, they would consider them. See the entry for practice directions below for an explanation of its effect.


Of the 3rd of September 2007: Consultation

Timed to take effect when s16(3)(a) is abolished, this PD requires the court to know the opinion of a proper officer (which could be in any form including orally or in a s7 report) as to whether it would be in the best interests of a child to make a Family Assistance Order, and to afford any person named in an order to comment on that opinion.

Of the 3rd of September 2007: Risk Assessments

This pre-dates by three weeks the coming into force of s16A of the Children Act 1989 (see Children & Adoption Act 2006, s7. The section is in force on the 1st of October).

That section is perfectly straightforward. It provides that where in family proceedings a welfare officer & c. is given cause to suspect that a child might be at risk, that officer has two duties viz. to carry out a risk assessment and to provide that assessment to the court.

The Practice Direction serves to emphasise that the second duty exists whether the risk assessment bears out the suspicion or not but the PD seems to augment the section by requiring the officer to ‘make clear the factor or factors that triggered the decision to carry out the assessment’. So the court is to be advised of what has been said, seen or heard even where the child has been found to be not at risk. I can well see that this could prevent the same allegations or suspicions counting against parties at a later stage (because they would already have been considered and rejected). My only concern is that the PD applies to all courts including the FPC where I can easily imagine a magistrate reading about the allegation, not being satisfied with the officer’s conclusion and trying to go behind it. We shall see.


If anyone can make real sense of HA v MB and A [2007] EWHC 2016 (Fam) I should be grateful if they would share that knowledge with the rest of us. It concerns the interface between the Hague Convention and the apparent (don’t quote me here) conflicting jurisdiction of Art 11 of Brussels II by which a court in the country from which the child was abducted (or from which it was unlawfully kept) can order the child’s return notwithstanding the court in the country where the child went had refused to order its return under Hague Art 13.

As if that were not startling enough, the Brussels II Art 11 offers no appeal from the decision to order return (though my benighted mind perceives that that could be because the domestic right of appeal could cover it).

And this is the first authority on the point, which I venture to suggest may well be a matter which will be encountered by colleagues despite the density of the argument.

As I know vaguely one of the counsel in the case and am utterly convinced that s/he will not have understood anything Singer J said, I feel slightly better about having a headache after getting about half-way through the judgment. But if, as I say, there is a genius reader who can help, please do as this is not as obscure as the complexity of the law suggests.

More digestible is S v S [2007] EWHC 1975 (Fam) which reminds readers of the principles of appeal applicable to ancil proceedings (para 35, Cordle v Cordle); of the limited notice which the court should take of potential testamentary property (para 43) and gives a little guidance as to the proper course to take to compensate a person who has had to wait for a lump sum (para 59)

Baron J makes three points in passing i.e. where trust property is held for children of the family who have reached their majority those children should probably be joined but that the court should be slow to interfere with the administration of such monies in any event (para 23); and that it is wrong to state that once a decree nisi is made a decree absolute will inevitably follow.

But the point to come out of the judgment is to emphasise the importance of an FDR. As readers are aware, FPR91 r2.61D requires an FDR unless the court decides that one is inappropriate, and a number of courts use a declaration on making that decision that an FDR would not assist the parties in approaching settlement. Obviously this can rarely be said.

In S v S the parties seem to have conspired with the judge to avoid the FDR; I say that as the trial judge sat on the FDR but did so little that the parties agreed he could hear the case. Thinking this through, it seems to me that the reason why the court did not seize the case by the throat at FDR could only have been that the judge did not really understand how to deal with the issues in it (i. testamentary property; ii. trust property; iii. pensions). If that is so, he cannot possibly have been the right person to hear the trial.

I may be reading too much into the words of paragraph 16 to infer Baron J harboured the same suspicion, but she expressed the need for an FDR to take place, for it to be effective, for the parties to have an opportunity to mediate and then;

It must become before an experienced tribunal and it must be given sufficient time to enable that tribunal to read the papers fully and to engage with the parties... in order that the matter can, if possible, be sorted out.

The failure to do this was the first step on the way to the parties spending in fees the entirety of the amount in dispute between them. One wonders what their lawyers were doing advising them to persist...

Reading In the matter of J-C (A Child) [2007] EWCA Civ 896, one has to hope that inexperienced counsel before the Court of Appeal does not give up and run away. This case was mentioned in the update of the 21st of August 2007 concerning the procedural requirements in committal proceedings and I here provide the reference. It is most unfortunate reading for counsel in the case who seems really to have rattled Wall LJ into using emphatic, sometimes demotic language (“apple-pie order”, “that is 100 miles from this case”, “a thoroughly bad point”, “quite impermissible”, part of the grounds “simply does not bear examination...[it] simply has no substance”, a pleaded fact “is neither here nor there’; and of the judge, he gave an “immaculate direction”, was “extremely careful” etc.), but though I thoroughly enjoyed reading it, I have described the point in a previous update.

For a truly spectacular example of a family let down by the System, see Gull v Gull [2007] EWCA Civ 900 which concerns a man with learning difficulties who repeatedly broke a non-molestation injunction. He was, as often happens, insufficiently well to access some services and insufficiently ill to access others. So on release from prison or on being given a suspended sentence, he would return to his mother’s house and beg to be admitted, thereby breaching the order.

The court cut his sentence from 21 months to 12 (whereby he would be released within a fortnight of the judgment) but in serving a copy of the judgment on Bradford Social Services, clearly hoped that they would find some resource which would assist, notwithstanding the court did not care to identify what it might be.

In reality, it could be that this man and his family will have to wait until he breaches the order again and is prosecuted in order to get any real assistance. I make that slightly surprising comment having been prompted by the concluding words of the judgment relating to Family Law Act 1986 s42A of which;

[t]he effect would be to criminalise breaches so that a wider range of sentencing options would be available to the court.

A few commentators have commended the government for criminalising breaches but far more have complained that the effect is to some extent to dull the sensitivity of the breach procedure to the needs of the victim. In this very unusual case, where the needs of the perpetrator do deserve to be given primary consideration in order to break the cycle of destructive behaviour, the new procedure has an unequivocally positive effect in that the whole range of imaginative sentencing options are now available including support, testing where appropriate, tagging, accommodation restrictions, assistance with accommodation and life-skills and so on. Let’s hope for the sake of the Gulls that it works.

A couple of updates ago I left hanging what the outcome in North v North [2007] EWCA Civ 760 was. The court has now decided that the proper amount of compensation to the wife for the failure of the investments which she had received by way of settlement 26 years before was £3,000 pa which was then Duxburyised (a verb I have borrowed from Baron J, so it must exist). This was rather less than the £16,500 pa which the first-instance judge had allowed, but it is certainly enough to put beyond doubt that one can seek an adjustment of periodical payments seemingly until death.

Finally a money case, Holman v Howes [2007] EWCA Civ 877 wherein the court used the device of estoppel to do what in my view ss13, 14 and 15 of TOLATA could have achieved more neatly.

A property was bought in roughly equal shares and conveyed into the man’s name in 1979 in anticipation of the reconciliation of parties who had divorced the preceding year. The reconciliation did not last long and in 1980 the man left his former wife and child in situ and did not return. In 2005 the court was asked to determine the proportion of the beneficial interests (the parties accepting that the beneficial interests were not the same as the legal ones) and to find or reject the contention that the man was stopped from evicting the woman during her lifetime on the basis of words said at the time of the purchase. The judge at first instance said:

‘I do accept that the [man] almost certainly said something to the [woman] which gave her the clear impression that, in whosever name the Property was purchased, she was going to be secure in the Property for however long she wished. The impression would thus be that in those circumstances, even if the relationship was not restored and the [man] left her, the [man] was not going to make any ‘claim’ to the Property, but that this would be in the sense of maintaining a claim to evict her and (as she then was) her child from it’

On the proportion point, the Court of Appeal upheld the first-instance decision that the intentions of the parties in relation to the beneficial ownership was 50:50

Turning to the argument concerning the woman’s continuing occupation, Lloyd LJ indicated that the above finding was crucial. At paragraph 42 he listed the factors which he felt indicated that the woman had acted on the man’s assurances to her disbenefit and found therefore that the minimum that Equity had to do to reflect the estoppel which arose therefrom was to bar the man from getting an order for sale against the house against the will or consent of the woman. No doubt the woman was content with that outcome and will be happy to see the matter drop there, but close analysis of that paragraph shows the reasoning to be flawed. I say so as the only act to the woman’s disbenefit which she took was to invest all of her savings in this property which then accumulated value. Since then she had had the considerable advantage of a similar investment from the man – entirely cost free – and so had effectively lived in twice the house she would otherwise have been able to afford and there is every chance that between 1980 and 2005 the accumulation of value in such a house as the parties owned would have been greater in percentage terms than a more modest property. Some disbenefit! I find it very, very difficult to accept this reasoning notwithstanding that the result (a 50:50 distribution but the man unable to enforce against the woman’s will) was right.

The alternative approach would be to consider that the finding of the first-instance judge plainly evidenced the intentions of the parties at the time of creating the trust (TOLATA s15(1)(a)) and the purposes for which the trust property was held (s15(1)(b)). s15 provides the matters which the court is to have regard when deciding on an application under the under-used s14(2)(a) concerning the exercise of trustees duties and freedoms. It may be that the court felt restrained as no application of that sort had been made, but one might have expected mention having been made of it.

I should declare an interest in that I recently used s13, 14(2)(a) and 15 to seek a Mescher-type order in a case involving unmarried joint tenants. The argument there was that the house had been bought as a family house to provide for the accommodation of the children during their minority. (i.e. the trust was established for that purpose) The court indicated its inclination to make such an order but adjourned for the parties to take stock and settle. I should be most interested to hear of any similar solutions encountered or devised by colleagues.