27 January 2011

This week I thought I would share with you some brief observations from my recent reading of three judgments.

Re S (a child) (care order: fact finding) [2010] EWCA Civ 1363

There had been concern about the mother who was in prison prop-feeding her baby and in the absence of the prison being able to prove what the local authority adequate safeguards, the child was removed. There are two particular points of interest in this judgment given by the President. Firstly the courts should be slow to condemn local authorities and social workers acting in good faith; and secondly the court should focus on the ECHR in applying the test for removal under an interim care order. The President's preferred test therefore incorporates the notion of proportionality - "whether continued removal of the child from the care of her parents is proportionate to the risk of harm to which she will be exposed if allowed to return to her parents' care."

SK v WL (Family Division - as yet unreported)

The husband's business which had been set up during the marriage had been sold four years after separation for about £37m gross, considerably more than it was worth at the date of separation. The wife wanted half of everything, the husband wanted to give her 50% of pre-separation assets and only 20% of what he said the post separation increase was. They were both outside the bracket according to Moylan J. The valuations of the company as at the date of separation were a hypothetical and artificial exercise since neither expert had taken into account the known facts about the company's subsequent performance and ultimate sale price. On that basis to use those valuations to support a formulaic approach "would give no more than a spurious mathematical validity to the discretionary exercise". Further, the degree of specificity required is a matter in the discretion of the judge, and Moylan J decided that he did not need to define with precision what was matrimonial and what was non-matrimonial property. He simply decided to award the wife £7m out of the £16.4m of quantified assets and 40% of any additional wealth resulting from the realisation of the husband's loan notes, the value of which was disputed. This he said was a fair result.

Whilst I think I agree with Moylan J - this result overall feels fair to me and flawed valuations should not be used to calculate a settlement - I pity the ancillary relief lawyer trying to advise their client as to likely outcome. Here I think it was clear that neither party was going to succeed on their open offer. But if the wife had gone in at around 40% on an open basis, would the judge still have awarded it? Without Calderbank, there is no costs protection for making a sensible without prejudice offer, and the fear is that a judge will, nine times out of ten at least, come down somewhere between the two open positions. Where a couple of percent equates to hundreds of thousands of pounds, the incentive to make a realistic open offer is debatable.

Yemshaw v London Borough of Hounslow [2011] UKSC 3

The Supreme Court has ruled that "violence" in the context of s177 of the Housing Act 1996 is not limited to physical conduct. The interpretation should be brought more into line with that expressed in other areas including the Family Law Act 1996 and the President's Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [2009] 2 FLR 1400. This overturns two unanimous Court of Appeal decisions.

The woman in question who had left the family home with her children and sought alternative accommodation, reported that among other things her husband had shouted in front of the children, but had not been physically violent or threatened to be so. The media of course styled this as "a bit of shouting" or "raising your voice" equates to domestic violence and you could be kicked out of your home! What was actually said by Lady Hale was that the housing officers in this case had applied a narrow interpretation of violence and therefore the decision should be remitted to them to consider whether, applying the wider definition of violence, their decision should be changed.

As family lawyers know, of course there it is a question of degree and seriousness - an occasional shouting match between two adults is not of itself going to be characterised by the courts as domestic violence such that one party will be excluded from their home. But nor should a campaign of verbal bullying, control, harassment, emotional abuse etc be disregarded because it does not involving physical aggression; the effects of psychological abuse can be truly devastating for adults and children. The alignment of housing and family law in this area is surely to be welcomed.

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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