11 February 2011

I was very pleased to see J v J [2009] EWHC 2654 (Fam) overturned by the Court of Appeal (Jones v Jones [2011] EWCA Civ 41). Shortly before I left practice I volunteered to read and report back to my colleagues on Charles J's judgment, and when the printer ran out of paper for the second time I began to regret my offer. Further, the judgment could not just be skim read, but (for me at least) required significant concentration and re-reading. I was therefore relieved and reassured by Wilson LJ's comments that he felt "driven to describe it as far too long, too discursive and too unwieldy," and he had "devoted days to trying to understand it." In the event the Court of Appeal increased the Wife's award from £5.4m to £8m because the judge had in effect capitalised the husband's earning capacity at the date of the marriage and excluded this arbitrary sum from division. In this regard it overturned Mr Mostyn QC in GW v RW [2003] 2 FLR 108. The Court proceeded to apply its own arbitrary figures for the spring board effect and passive growth, but at least the decision is shorter and clearer.

Occasionally someone refers me to an article on family law in the tabloid press. I try to avoid it because it tends to do bad things to my blood pressure. Penny Booth refers to the distorted treatment of the Supreme Court's decision on domestic violence, and yet again the reporting of the result in Mansfield seems to me to be biased in favour of a good story. I have not yet read the Court of Appeal's judgment giving Mr Mansfield permission to appeal the ancillary relief order, but I suspect that this is one of those very difficult cases where a judge has had to conduct an almost impossible balancing act. On the one hand the provenance of at least some of the available assets was the pre-marriage compensation payment which Mr Mansfield received following the accident resulting in the amputation of his leg, and which was intended to meet his lifetime needs; on the other hand there are the needs of his two young children who live with their mother and which statute requires to be the court's first consideration. These are hard decisions, and one-sided reporting, demonising the judges who have to make them, paints an unfair and damaging picture of our family justice system. The Court of Appeal will, on the substantive appeal, consider how compensation payments such as this should be treated by the courts on marriage breakdown. I hope that this will provide useful guidance and anticipate that the court's observations will be intelligent, measured and sensitive, which is more than can be said for the tabloids.

Finally, the ADR pre-application protocol in the Family Procedure Rules 2010 has now been signed off. This provides that from 6 April 2011 anyone contemplating making an application for a financial order or for most private Children Act orders should attend (either together with or separately from the respondent) a Mediation Information and Assessment Meeting with a mediator to learn about mediation and other forms of ADR. There are some exceptions (recent domestic violence etc), but in any event a form will need to be completed to confirm that a meeting has taken place or is not appropriate. Whilst it is not compulsory to attend an information meeting, non-compliance could result in sanctions. So it is worth building this into advice to clients to manage their expectations of what is involved, the timescales and costs of issuing proceedings.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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