Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
1. ANCILLARY RELIEF Crossley v Crossley,  The Times, January 3 (Court of Appeal; Thorpe, Keene and Wall LJJ; 19 December 2007)
The judge had acted within his discretion in requiring a party to ancillary relief proceedings to show good cause why a pre-nuptial contract, stating that no provision was to be made between husband and wife on divorce, should not govern the division of assets on the dissolution of marriage. The Family Proceedings Rules were not intended to be a straitjacket precluding sensible case management.
2. ANCILLARY RELIEF MacLeod v MacLeod  UKPC 64 (Privy Council; Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Sir Henry Brooke, Sir Jonathan Parker; 17 December 2008)
An American couple entered into a pre-nuptial agreement on the day of their marriage; each was separately advised by lawyers and each disclosed their resources. The husband was then worth about £7 million as a result of business and property development. The agreement provided for each spouse to retain the property each had brought into the marriage, and to share any jointly owned property; in addition the husband would pay the wife a lump sum dependent on the number of years the marriage had lasted. A year later the couple moved to the Isle of Man, where they made a home and raised their five children. When the couple had been married for about 8 years a further, post-nuptial, agreement confirmed the pre-nuptial agreement, but made some substantial variations. The husband and wife were represented separately during the negotiations, which lasted some 14 months. Under the agreement the wife received a lump sum to invest, and a monthly allowance for herself and her grandmother, the costs of the wife obtaining another degree, and the husband's half-share in a property; the agreement specified that on divorce the wife was to receive £1 million, adjusted for inflation. The financial needs of the children were to be dealt with separately. On divorce, the wife sought financial relief, and argued that the court should disregard both the pre and post-nuptial agreements. The judge concluded that the agreement should be taken into account, but that it did not provide enough money to enable the wife to buy the children a house of a comparable size, and awarded the wife £1.25 million, rejecting the husband's argument that any such housing provision should be by way of trust until the children no longer needed to be accommodated. The husband eventually appealed to the Privy Council on the basis that any capital funding for children should be provided by way of trust, although he now conceded that the trust should last until the youngest child was 23, to avoid placing any pressure on the children to remain in education.
Under a long-standing rule, pre-nuptial agreements were not valid or binding in the contractual sense; this difficult issue was more appropriate to legislative reform rather than judicial development. However, post-nuptial agreements were very different; there was an enormous difference between an agreement providing for a present state of affairs that had developed between a married couple and an agreement made before the parties had committed to the rights and responsibilities of the married state, purporting to govern what might happen in an uncertain and unhoped for future. Post nuptial settlements could be varied by the court, whereas pre-nuptial settlements might not be covered by the variation power in Matrimonial Causes Act 1973, s 35. There was nothing to prevent a married couple from entering into a separation agreement, which would be governed by ss 34 to 36 of the 1973 Act, and a separation agreement could be made at any time; it did not have to be made after or on the point of separation. It was no longer the case that agreements providing for future separation were contrary to public policy. The couple's post-nuptial agreement had therefore been a valid and enforceable agreement, although subject to the court's right to vary. When considering what weight to give such an agreement in an ancillary relief context, the court was looking for a change in the circumstances in the light of which the financial arrangements were made, the sort of change that would make those arrangements manifestly unjust, or a failure to make proper provision for the children of the family. Even if there were no change of circumstance, it would be contrary to public policy to place upon the state an obligation that ought properly to be shouldered within the family. In ancillary relief the circumstances in which the agreement had been made might also be relevant; family relationships were not like straightforward commercial relationships, and inequality of bargaining power was possible in a number of different contexts. In this case, there had been no change of circumstance to justify a variation of the financial arrangements for the wife under the agreement. As the agreement had not purported to contain financial arrangements for the children the judge had been right to make provision for them, however, the housing provision for the children should have been on the basis of a trust, not as a simple lump sum to the wife. The appeal would be allowed, and an appropriate trust deed should be drafted.
3. ANCILLARY RELIEF McCartney v Mills McCartney  EWHC 401 (Fam) (Family Division; Bennett J; 17 March 2008)
Following a 4 year marriage between a husband with enormous pre-marital wealth and a wife with a modest career in modelling and public speaking, during which a child had been born, the wife was awarded a lump sum of £16.5 million, taking her total assets to £24.3 million. The wife's income need was assessed at £600,000 pa; after a short marriage to a very wealthy man it was unfair for the wife to expect to continue to live at the same rate as during the marriage; such an expectation was completely unrealistic. The judge rejected much of the wife's evidence, finding her a less than impressive witness, in particular he rejected her claim that the husband had damaged her career and her claim to have made an exceptional contribution. The husband had in fact encouraged and fostered the wife's career, and compensation did not arise as a factor. The marital acquest was estimated at £21.4 million, out of total assets of about £400 million. The wife's needs (generously interpreted) were not simply one of the factors in the case, but a factor of magnetic importance; in a case in which: (a) the vast bulk of the husband's enormous fortune was made not only before the marriage but before the husband and wife had even met; (b) the marital acquest was very small compared to the total assets; (c) the compensation principle was not engaged; (d) the marriage was short; (e) the standard of living lasted only so long as the marriage; (f) the wife was very comfortably housed; and (g) the child's needs were fully assured, fairness required that the wife's needs were the dominant factor.
4. PUBLICITY/HUMAN RIGHTS Murray v Express Newspapers  EWHC 1908 (ChD) (Chancery Division; Patten J; 7 August 2007)
The parents, one of whom was a famous author, sought, on behalf of their 18-month-old child, an injunction to restrain further publication of a photograph of the child taken without theparents' consent while the family was walking together in the street. The taking of the photograph had caused no distress or harassment at the time. The parents were arguing that they had a right under Art 8 to personal privacy for themselves and their children when engaged in ordinary family activities conducted in public places.
A distinction should be drawn between a person engaged in family and sporting activities and a person merely walking down street. The former type of activity was clearly part of a person's private recreation time intended to be enjoyed in the company of family and friends; publicity of such an activity was intrusive. However, if a simple walk down the street qualified for protection then it was difficult to see what would not. The law did not allow parents wishing to shield children from media attention a press-free zone in respect of absolutely everything they chose to do.
5. ANCILLARY RELIEF NG v KR (Pre-Nuptial Contract)  EWHC 1532 (Fam) (Family Division; Baron J; 28 July 2008)
Awarding a husband £5.5 million, the court noted that the pre-nuptial contract, which provided for separation of assets on marriage and made no provision for either spouse on divorce, would not be recognised or enforced by the court because: the husband had not received legal advice; there had been no disclosure; there was no provision for the two children of the marriage; and, most unfairly, the contract provided no prospect of any financial settlement even in the case of real need. However, the contract would have been binding in both Germany and France, the wife and the husband's respective home countries, and it would not be right to ignore it completely, given that the husband was a man of commerce aware of the effect of the contract. The husband's award would be circumscribed to reflect the existence of the pre-nuptial contract.
6. IMMIGRATION/HUMAN RIGHTS EM (Lebanon) v Secretary of State for the Home Department  UKHL 64,  The Times October 24 (House of Lords; Lord Hope of Craighead, Lord Bingham of Cornhill, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood; 22 October 2008)
On the basis of the mother's case that on her return to Lebanon she and her 7 year old son would be separated permanently under Lebanese law, and that the violent father, who had been imprisoned in Lebanon for his failure to support the son, would be given physical custody of the child, the House of Lords quashed the Asylum and Immigration Tribunal decision that her removal to Lebanon would not breach her human rights. In the absence of very exceptional circumstances, aliens could not claim any entitlement under the European Convention on Human Rights to remain in England to escape from the discriminatory effects of the system of family law in their country of origin. It was not enough to show that the Lebanese custody regime was arbitrary and discriminatory; the mother had had to show that return to Lebanon would completely deny or nullify her own and the child's right to respect for family life together. The facts were crucial in establishing that a return would destroy family life in this case. The hearing had underscored the importance of ascertaining and communicating to the court the views of a child such as this, however, only in cases of genuine conflict between the interests of the child and the parent was separate representation called for.
7. ABDUCTION Re M (Abduction: Zimbabwe) (House of Lords; Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood; 5 December 2007)
The father applied for summary return of the children to Zimbabwe under the Hague Convention. The court rejected the mother's defence of grave risk, concluding that this was a Zimbabwean case. The children had been born and raised in Zimbabwe, neitherthey nor their mother had any lawful right to remain in the UK and, although settlement had been established under Art 12, the judge held that he had a discretion for an immediate return, and exercised it. The Court of Appeal dismissed the mother's appeal.
The judge had had a discretion to return the children notwithstanding that settlement had been established: Art 12 envisaged that a settled child might nevertheless be returned within the Convention procedures. In cases in which a discretion arose from the terms of the Convention itself, the discretion was at large; the court was entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare, however it was not the case that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not. It was wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return might be refused were themselves exceptions to the general rule, and that in itself was sufficient exceptionality. It was neither necessary nor desirable to import an additional gloss into the Convention. In settlement cases, it had to be borne in mind that the major objective of the Convention could not be achieved, in that a swift return to the country of origin could not be secured. It therefore could not be assumed that that country was the better forum for the resolution of the parental dispute; the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which might well, as in this case, include the child's objections as well as her integration in her new community. In this case the children should not be returned because of the delay; these children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide. To order separate representation in all cases, even in all child's objections cases, might be to send them the wrong messages, but it would not send the wrong messages in the very small number of cases in which settlement was argued under the second paragraph of article 12. These were the cases in which the separate point of view of the children was particularly important and should not be lost in the competing claims of the adults.
8. NEGLIGENCE/ANCILLARY RELIEF Williams v Thompson Leatherdale and Francis  EWHC 2574 (QB) (Queen's Bench Division; Field J; 10 November 2008)
Under the consent order the wife received the matrimonial home and £1.28 million in two lump sum payments, as a clean break settlement. The wife subsequently lost this money in a property development scheme. The wife sued her divorce lawyers, the solicitors and the barrister, for damages, claiming that they had negligently failed to advise her to delay reaching a settlement with the husband until after the House of Lords reached a decision in White v White.
Given that there had been a real possibility that the law would change in favour of applicant wives, especially in big money cases, and given that the total value of the joint assets had been over £4.5 million, the barrister had been under a duty, once he became aware that White was going to the House of Lords, to explain the potential implications of White to the wife, giving her the opportunity to decide whether to suspend negotiations until the Lords' made a decision. The barrister's failure to give that explanation amounted to negligence, and was not a mere error of judgment. The barrister ought to have advised the wife that there was a real, but far from certain, possibility that the decision in White would benefit her, and that she should weigh this against the negatives of abandoning the negotiations, which included ongoing dependence on the husband, the likely hostile reaction of the husband and the children, and the risk that the assets would fall in value. The fact that it seemed unlikely at the time that the wife would choose to postpone negotiations was no reason not to advise her of the potential implications of White. However, the barrister had not been under a duty to advise the wife that she ought to suspend the negotiations, indeed had he advised her that in his assessment she should proceed with the negotiations, that advice would not have been negligent. The wife had failed to prove that she had suffered any recoverable loss by reason of the barrister's negligence; the evidence established that the wife would have concluded the settlement in any event. The wife had failed to establish any negligence on the part of the solicitors, and had also failed to show that she would have repudiated the settlement agreement if the solicitor had invited her to do so after the decision in White was published.
9. CARE PROCEEDINGS/FAMILY PROCEEDINGS Re M (Fact-Finding Hearing: Burden of Proof)  EWCA Civ 1261 (Court of Appeal; Sir Mark Potter P, Arden and Wall LJJ; 19 November 2008)
At a fact-finding hearing it was established that the baby had suffered two sets of injuries, first metaphyseal fractures of both lower limbs, and subsequently injuries to the head, face and abdomen, including an intensive fracture of skull. Some of the experts considered that the mother's explanation for the second set of injuries was plausible. However, the judge rejected the mother's innocent explanation of both sets of injuries, finding that the mother's account had not been truthful and in any event did not satisfactorily explain injuries to both sides of the baby's head. The judge found that both sets of injury had been non-accidental, and that the mother, as the main carer, was the most likely perpetrator, but that the father could not be excluded as a perpetrator in relation to the second set of injuries. The mother appealed, arguing, inter alia, that the judge had placed the burden of proof on the mother to establish that the injuries were accidental and that it was inconsistent to identify the mother as the most likely perpetrator while not ruling out the father.
The appeal was dismissed. As Re H (Sexual Abuse: Standard of Proof)  AC 563 made clear, judges were guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivations of the witnesses. What mattered was that when the judge reached his or her conclusion on the facts it should be clear that in reaching that conclusion the judge had done so on the basis that the burden of proof remained on the local authority and that the essential facts had all been found on the balance of probabilities. The judge had correctly directed herself as to the burden and standard of proof and the question therefore had to be whether, in the process of making findings of fact she either forgot her earlier and correct self-direction, or that she got the burden wrong in some material way. Given the serious injuries sustained by the child, the judge had been entitled to look critically at any parental explanation of the injuries. It was not a reversal of the burden of proof for the judge to disbelieve the mother, or to find that the mother's explanation did not explain all the child's injuries. The case would, however, be remitted to the judge for clarification of her judgment as regarded the father as possible perpetrator of the second set of injuries, as it had not been open to her to find that the mother was the most likely perpetrator but go on to find that the father was a possible perpetrator. It was high time that the Family Bar woke up to the fact that English v Emery Reimbold & Strick Ltd  3 All ER 385 applied to family cases, and to cases involving children in both public and private law, as much as to any other case. Following receipt of this judgment, counsel should have raised with the judge any queries that arose, inviting her to deal with them; had this happened it was most unlikely that the perpetrator aspect of this case would have reached the Court of Appeal. Counsel had a positive duty to raise with the judge not just any alleged deficiency in reasoning process but any genuine query or ambiguity arising on the judgment. Judges should welcome this process, and any who resented it were likely to find themselves the subject of criticism in the Court of Appeal. It was to be hoped that in the future the Court of Appeal would not be faced with matters that were plainly within the province of the judge, and were properly capable of being resolved at first instance.
And finally a dire warning to lawyers who don't prepare properly for trial...
10. PRACTICE AND PROCEDURE Re X and Y (Bundles)  EWHC 2058 (Fam) (Family Division; Munby J; 22 August 2008)
It was over 8 years since Practice Direction (Family Proceedings: Court Bundles)  1 FLR 536 had been issued, and over 2 years since Practice Direction: Court Bundles (Universal Practice to be Applied in all Courts other than the Family Proceedings Court)  2 FLR 199; the continuing failure by the professions to comply with their obligations regarding bundles was simply unacceptable. In the instant case the various errors had led to an adjournment; it would not be fair or just to expose a practitioner to the sanction of being publicly identified in judgments delivered in open court without fair public warning having been given that the sanction was available and that it might be applied in appropriate cases. The professions had however now been warned; next time a defaulter might not be so lucky as to go unidentified.