30 September 2010

The mixing of money and children is a taboo for family lawyers which it is sometimes hard for the client to grasp. Of course when parties divorce, there is frequently an interrelation between financial provision and children's arrangements: the amount of time a child spends with each parent will determine child support payments under CSA 1991; and in most cases, the main carer of the children is likely to end up with the lion's share of the capital in order to provide a home for the children. However it is generally considered distasteful and off limits to directly connect financial negotiations with negotiations in respect of arrangements for children, and for good reason. A child's right to contact is not dependent upon the non-resident parent paying a certain amount of child maintenance, and the parental duty to maintain a child exists independent of contact taking place. A court in dealing with section 8 Children Act matters has no jurisdiction to make ancillary relief orders and vice versa.

There will occasionally however be cases where the overlap cannot be avoided and K v B [2010] EWHC 2151 (fam) was one such case. Here Sir Christopher Sumner considered a bargain struck between the spouses: the wife's Sharia law claims to a dowry would be dismissed and in return the husband would give up his rights of custody arising on the child reaching 7 years old under Sharia law, and provide a contingency fund in the event of abduction/wrongful retention by him. The husband had appealed against a preamble in the final ancillary relief order which left the wife's dowry claims open, and at the appeal hearing the parties agreed this set off. Both parties then claimed their costs against the other.

The judge pointed out that in this unusual situation the parties were inviting him to consider their litigation conduct in relation to both financial and custody matters. Therefore they had to accept either that he had jurisdiction in relation to both issues, or (if not) that he could properly have declined to make an order on the appeal or postpone its implementation on the basis that one of them was being unreasonable.

Accordingly the judge took account of the custody issue, even though not formally seized with any children application, since he observed, in reality, a settlement would have to (and did) cover both children and money matters. He considered that the wife could not have given up her dowry claims when it was her only bargaining chip to counter the husband's Sharia law custody rights. If the husband had taken the child to an Islamic country, the wife would have had enormous difficulty recovering the child unless the husband had formally given up his custody rights. So faced with the possibility of losing her child, it was not unreasonable for her to use her only leverage - her financial dowry claim.

In a strict sense, the husband had succeeded on his appeal because the wife's dowry claims were dismissed in accordance with his objection to the preamble. However the judge stressed the need to take a broad view of the litigation: there is no rule that costs should follow the result of the appeal; the court retains a discretion and must take the conduct of the parties into account. The husband's conduct in not agreeing to give up his custody rights until the appeal hearing was unreasonable and he was ordered to pay a substantial contribution towards the wife's costs. The wife had proposed an order in the terms finally agreed a long time earlier, but the husband had not accepted.

Hypothetically, had the parties not reached agreement outside court, the judge indicated that he might have allowed the husband's appeal on the dowry point, but if so he would likely have directed that it was not implemented until the husband's custody rights had been determined. This would effectively make the money order subject to appropriate resolution of the custody issue, and put financial pressure on the husband to give up his custody rights. Would this be overstepping the mark, or admirable pragmatism? In this case where the Sharia context had potentially grave consequences and the mother's motivation was not the restriction of contact but to avoid the permanent loss of her child, I would suggest the latter; but it is not an approach for universal application.

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

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