New legislation on forced marriages this week, a couple of consultations, and cases on matrimonial finance, how not to act as a litigant in person in a family case, and a potentially invaluable tool in child-protection matters.
DCSF CONSULTATIONS
Recently launched but missed by me include Staying Safe, a remarkable document, in my opinion, as I cannot see what the impetus for it is. It contains one decent proposal (to extent anti-bullying policies and training from schools into other areas of children’s services) though one would have hoped that that could be achieved without the need for a new strategy. Beyond that, it seems another means by which to encourage the belief that British children are the subject of huge danger from which they all need to be protected. For a counter-argument, see the book Freakonomics or the Paliamentary All Party Group for Adventure and Risk in Society (‘A Risc’), headed by Cheeky-Girl squeezing MP Lembit Opik. It might be thought that the proposal in Staying Safe to ‘launch a communications campaign to encourage parents to let their children play outside in safe environments’ is meant to achieve what A Risc seek, but I will believe it when I see it. The consultation runs to October.
In a similar vein, in the wake of the alleged abduction of a British child from a holiday villa in Portugal the Government invites comment on the paper Safeguarding Children who may have been Trafficked. This takes as its starting point a report by another agency as revealed in paragraph 3.1.1 under the heading What evidence is there for child trafficking? The paper reports that ... data collected by Child Exploitation Online Protection Centre (CEOP) in its scoping report (11 June 2007) provide evidence of child trafficking into and within the UK. The CEOP report identified 330 children as trafficked cases.
That is not actually true. The most striking feature of the CEOP document is the fact that all the data in it are from secondary or tertiary sources every one of which is an agent of intervention. That is to say, that the only evidence in the scoping report is evidence of the success of the state and its partners in tackling the problem.
The authors accept that in the case of 92% of boys they could not actually identify a cause and therefore the children might have been smuggled i.e. for their good rather than for exploitation.
Using a separate methodology, it was accepted that 68% of all the children in the survey might not have been trafficked and that only in 32% of cases (105) was there actual evidence of exploitation (including that the child had so claimed).
So this consultation is actually about 105 children in 18 months who have been successfully rescued by the state.
The paper goes on to speak about the phenomenon of trafficking within the UK and refers to a paper by CROP (the Coalition for the Removal of Pimping http://www.crop1.org.uk/), an organisation set up by a mother in the wake of the appalling experience of her daughter being drawn into prostitution and being murdered very soon after. It has three full time and three part-time staff. According to Safeguarding Children at paragraph 4.2.2 ‘there are documented cases of girls, born in the UK, being targeted for trafficking between towns and cities for sexual exploitation. Such cases are highlighted in [the CROP paper] “Trafficking in our midst”’ In fact it does nothing of the sort, and admits that there are actually no statistics to indicate the size of the problem.
Readers may remember that many millions of pounds of damage arose from riots in Birmingham which were caused by one community believing that another had raped some girls from the first community. It would be grotesque to suggest that the entirely well-meaning efforts of whoever published this consultation can be said to be equivalent of the rampant destruction of an area of the Midlands, but one has to worry about the necessity of the consultation given the sources of the data collected and the quality of the research upon which it is based.
If trafficking exists – and there certainly is some (see 4.2.1) – then it should not be allowed. But this paper seems to be long on supposition; very, very long on complicated descriptions of inter-agency working and short on real concrete proposals. As far as I can make out they are a) the establishment of a child trafficking desk within the CEOP (an excellent organisation, for all the shortcomings I might find in its involvement in this particular initiative) to disseminate best practice advice within the police (4.1.7.3) (a role acknowledged in the consultation to be a function outwith the police already fulfilled by the UK Human Trafficking Centre); b) the establishment of an NSPCC Child Trafficking Advice and Information Line (4.3.5); c) a requirement that 10% of each port’s immigration staff have specialist training in interviewing children and young people and an awareness of trafficking issues (4.3.6.8); d) a requirement that all agencies work with the new Border and Immigration Agency (4.3.6) and; e) commentary to the effect that as private fostering arrangements can be used to hide trafficked children, no-one should hold back from reporting concerns to the local authority which can use the registration requirements in Part IX of the Children Act 1989 to investigate (4.3.8).
4.5 to 10 are achingly complicated provisions telling agencies to work together and do what common sense would dictate, while paragraph 5 proposes a role in the prevention of trafficking of Local Safeguarding Children’s Boards (see s13 Children Act 2004 and Chapter 3 of Working Together to Safeguard Children DFES, 2006
(http://www.everychildmatters.gov.uk/_files/AE53C8F9D7AEB1B23E403514A6C1B17D.pdf)).
Appendix 2 is a commendable effort at trying to cover absolutely everyone who might be involved with a child, including librarians and fire officers, but excluding barristers, and to describe what should be done, but in the whole document there is one surprising lacuna: there is no power that I can see to allow detention of a child pending enquiries in circumstances where there is reasonable cause to believe that that child might be trafficked.
Perhaps it is thought that such a power is not necessary at a port as if an entry-clearance officer has doubts over the reliability of a person’s story of documents, he need not allow that person to enter without first interviewing him. But one would have thought that if there are going to be 10% of staff specially trained to interview children and young people at each port, it might be helpful to give an additional power to detain pending that specialist interview. It does not appear to me that the provisions of CA89 s46 meet the case: firstly they extend only to the police and secondly they require the police to remove the child to suitable accommodation or prevent its removal from accommodation. What is surely needed is a power to detain a child for a maximum of – say – two hours for interview (extendable on PACE-type lines or by application to the magistrates).
This prolix consultation ends fairly shortly on the 16th of August.
LAW
On the 26th of July, Royal Assent was given to the Forced Marriage (Civil Protection) Act 2007. This tacks a Part 4A onto the end of the Family Law Act 1996 starting at s63A. The said Part gives rise to a power of the court to order an injunction to prevent someone from taking any steps towards obliging another to enter a marriage against his or her will, whether that conduct is within the jurisdiction or elsewhere. Such an injunction is a ‘forced marriage protection order’.
The form of Part 4A is plainly modelled on non-molestation orders under s42 so there is provision to consider the welfare of the person being protected when considering whether to make the order; the order can be made on application or without application in relevant proceedings (though only against someone also involved in those proceedings (see s63C(6)(c))); it can be made ex-parte (and, Lord Woolf, the Act does use that term!); the application can be compromised by way of undertakings; a power of arrest can be attached; a warrant can be applied for on affidavit evidence for an arrest for breach where no power of arrest was attached and; the order can be for any period.
(A little historical note is that Singer J in the High Court found no difficulty in making an order of the type that would now be covered by Part 4A as long ago as February 2005 (Re SK Proposed Plaintiff [2004] EWHC 3202 (Fam) but he did so under his inherent jurisdiction which did not extend to county court judges. Notwithstanding Part 4A that judgment remains useful to see what the High Court can do and how it does it, and by providing a template order for the tricky business of getting other jurisdictions to co-operate.)
Finally I suspect that it might be the intention of Parliament that a breach of a Part 4A order should be punishable as a breach of s42A is i.e. in a criminal or civil court. On the other hand in 2005 the Government rejected the proposal of the Forced Marriage Unit to make a specific criminal offence of forcing someone into marriage (though to do so will almost certainly involve other offences), so perhaps I am wrong.
CASES
W (Children) [2007] EWCA Civ 786 is one of the most extraordinary judgments you will read this year. It concerns a father with a grievance against the system but who is far from unintelligent or uninformed. Indeed, he plainly spent a great deal of time researching disparate bits of law and cases on the internet and represented himself with great – too much – passion. He wanted the World to know that the System was involved in a campaign of child abuse (by requiring him to behave reasonably towards his children) and I would put good money on the fact that the expert he engaged to assist him (who the court was too delicate to name) was Dr L.F. Lowenstein, largely-unsuccessful champion of ‘parent alienation syndrome’.
The judgment makes no new law but it is plain that permission was granted to appeal right up to the Court of Appeal, and the judgment was reported, in order to publicise to all that the court system is not pursuing a campaign against absent parents, but simply applying the law. Consequently the judgment is written in an unusual form as it frequently addresses the reader, and I would advise practitioners to be aware of it in order to hand a copy to recalcitrant litigants in person.
North v North [2007] EWCA Civ 760 is the preliminary outcome of the case widely reported in the newspages where a wife applied for a variation of periodical payments 26 years after ancil proceedings were compromised on the basis of a consent order and got a capitalised sum at the county court of £202,000. The county court judge in his judgment ran through each of the reasons why in the intervening period she had lost money and concluded that none of them were matters for which the husband could be said to be responsible. But without any explanation (though seemingly because he thought the former husband could spare the cash and the former wife needed it) he then made a capitalised award representing £16,500 p.a.
Because of the absence of explanation the order could not stand, the Court of Appeal held, and it also went on to discuss the merits, coming close to agreeing with everything the county court had said about the reasons for the loss of fortune, but making this distinction: where the losses were occasioned by the financial mismanagement by the former wife, the former husband could not be expected to bail her out – he was not an insurer against all risk; but where it was through sheer misfortune, he might be. (Note that this point is not picked up in the digest on Lawtel which, until the final judgment is published, should be treated with caution)
Somerset v DFM (the father) [2007] EWCA Civ 810 is a case of which I managed to make use within 30 hours of judgment and could be very, very useful to practitioners. The meat of it is in paragraph 44. The local authority had made an application before the FPC for an interim care order and the matter was transferred to the county court. The district judge who got hold of it issued directions which, despite the presence of representation for the local authority, wrongly set the matter down for the first part of a split hearing. This was wrong for two reasons: firstly there was no need for a split hearing as the local authority was not seeking disposal – their application was merely for an ICO to allow further assessment of the parents who were co-operating splendidly; secondly because the local authority did not seek findings of fact – they just wanted an ICO to protect the child while they went about their business.
HHJ O’Malley (mentioned in glowing terms last week) heard the matter and but for introducing the erroneous concept of ‘no case to answer’ was broadly right in saying that the local authority failed to satisfy the test in s31. He was not asked to nor did he address his mind to s36 which was, from the luxurious position of outside the case, obviously the right course.
This led to Wall LJ saying in paragraph 44:
...in my judgment, a circuit judge is not necessarily obliged simply to try the case which is put in front of him. He is entitled – indeed obliged – to consider whether or not the case presented to him is being presented as it should be – and that the relief being sought is genuinely in the interests of the child.
The case I am currently involved in gives an example of how this might be useful. The local authority has produced a schedule of findings of fact which it invites the court to make in the first half of a split hearing. Those findings are not necessary to cross the s31 threshold as all parties concede that point. But the local authority seek them because they are entitled to ask, another local authority seek them because they are going to have to take the case on and want to know what they are dealing with, and the grandmother and mother want them in order to be able to get some finality and to move on.
We have a judge who sits in the criminal division, adding to the likelihood that she is inclined to restrict herself only to the findings sought. (Even family judges tend to do this because of the similarity between a fact-finding hearing and a contempt hearing under the CCR O29 rules). But it can be argued that it is in the interests of the children (who need protection from the fathers) for some finding to be made that there has been violence in the household notwithstanding that the individual allegations (now 1-4 years old) cannot stand up.
To my mind it was open to me to say that the court was compelled to consider what findings could be made on the basis of the evidence which were in the interests, and then to make those findings.
I may not succeed, but Wall LJ’s comments seem to me to be very powerful authority to allow parties to rescue a badly or infelicitously prosecuted case &/or to defeat an excessively technical approach by a party who denies allegations against him/her in childcare proceedings.
Showing posts with label North v North. Show all posts
Showing posts with label North v North. Show all posts
Friday, 14 September 2007
Update 12th of September 2007
LAW
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.
PRACTICE DIRECTIONS
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.
CASES
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.
ENDS
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.
PRACTICE DIRECTIONS
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.
CASES
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.
ENDS
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