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01 MAR 2017

PSL Essential Update – February 2017

PSL Essential Update – February 2017
February 2017 has seen family law hit the headlines once again. Our current divorce laws were the focus of the Court of Appeal as it heard the case of Mrs Owens, whose divorce petition had been rejected. Several newspapers picked up on the case and the ongoing campaign for the introduction of no fault divorce. The Court of Appeal judgment isn’t available yet, but for an analysis of the implications have a read of Sally Pike’s excellent article here.

Below is a summary of other key developments in family law this month.

Vulnerable witnesses

On 23 February the Ministry of Justice released a report of a research study which explored how the family judiciary manage the cross-examination of vulnerable or intimidated witnesses by alleged perpetrators of abuse. The report presented the findings from an in-depth qualitative study based on 21 interviews with family judges and a workshop with representatives from external organisations.

The primary solution put forward by research participants was the provision of publicly funded advocates to be appointed for the purposes of cross-examination and the introduction of routine vulnerability assessments in all private law cases. The research study highlighted the need for more consistent and fit-for-purpose special measures such as screens and video links across family courts and for the provision of separate entrances, exits and waiting areas for vulnerable witnesses and alleged perpetrators.

On the same day the Family Procedure Rule Committee issued a consultation on a new draft Practice Direction 3AA – Vulnerable persons: participation in  proceedings and giving evidence.  The consultation is running for just over three weeks and the deadline for comments on the draft PD is 17 March 2017. The draft PD is available here.

The report also coincided with the launch of the Government’s Prisons and Courts Bill, with the MOJ stating ‘Victims and vulnerable witnesses are central to the Prisons and Courts Bill, with a range of measures that will bolster their protection in court’. Further details, including Resolution’s response can be found here.

Pensions

This month Family Law has published a pensions special issue to coincide with the annual Pensions on Divorce seminar on 7 March 2017. Articles include another instalment of Rhys Taylor’s comprehensive and popular articles ‘Pensions on divorce: another witches' brew’. The edition also contains articles from George Mathieson ‘Pension  offsetting: is a consistent approach possible or even appropriate?’ and Beverley Morris together with George Mathieson ‘Pensions – are we in denial?’ who suggest that the Family Justice Council’s Guidance on Financial Needs on Divorce could have done more to improve the way pensions are treated in financial remedy cases and call for more guidance on pension sharing/attachment and offsetting by way of a multi-disciplinary working party. Then Beverley Morris joined with Philip Cayford QC in examining an alternative route to enforcing pension related orders and finally solicitor David Salter dealt with the other side to the Goyal coin, frequently encountered in practice, where there are divorce proceedings in another jurisdiction and an order is sought in relation to an English pension.

Pensions were also the focus of the Supreme Court case Re Brewster for Judicial Review (Northern  Ireland) [2017] UKSC 8, a judgment which gave further recognition to rights of cohabiting partners. For further analysis see Julie Tierney’s article here.

Judicial attitudes

The results of the Judicial  Attitude Survey 2016 were released on 7 February.  The results showed that almost all of the judges surveyed (90%) feel their job has changed since they were first appointed in ways that affect them, and there is little change in this since 2014. A majority of judges are most concerned by the following changes (in order of concern): staff reductions, judicial morale, increase in litigants in person, fiscal constraints, stressful working conditions, ability to attract the best people to the judiciary and loss of judicial independence. A large proportion of the salaried judiciary say they might consider leaving the judiciary early over the next 5 years: 36% are considering it and 23% are currently undecided. This has increased since 2014. Judges are evenly divided over whether they would leave the judiciary if it was a viable option, but the proportion of judges in 2016 that said they would leave if it was a viable option (42%) has almost doubled from 2014 (23%).

Transparency

In the case of Norman v Norman [2017] EWCA Civ 49 the Court of Appeal gave guidance on the procedure for applying for a private hearing or reporting restriction order in the Court of Appeal (the basic gist is that you actually have to make a proper paper application setting out the grounds and supported by necessary evidence– you can’t just turn up on the day and make a vague oral application). The case considered the state of transparency rules in family law proceedings but was very clear that its decision (to refuse a reporting restriction application) was only relevant to cases in the Court of Appeal, not to first instance decisions. All three judges were keen to emphasise that nothing in the judgment could be used to resolve the current difference of judicial opinion; the Mostyn J v Holman J dispute (which most people will be aware of, but, just in case, in very basic terms: Mostyn = private and Holman = open). The good news is that the matter is due to be considered by the Court of Appeal ‘in the relatively near future’ and we can hope for a definitive answer to the question then.

Human Rights

The European Convention of Human Rights has been the focus of a couple of cases this month.

Steinfeld and Another v Secretary of State for Education [2017] EWCA Civ 81 was a case brought by a young different-sex couple who had deep-rooted and genuine ideological objections to marriage based upon what they considered to be its historically patriarchal nature. They wanted to enter into a civil partnership, rather than get married, but had been denied the opportunity to do so due to the bar in section 3(1)(a) of the CPA 2004 which prevents different-sex couples from entering civil partnerships. The Court of Appeal held that the bar was discriminatory on the grounds of sexual orientation and was within the ambit of Article 14 ECHR taken with Article 8 ECHR. However the discrimination was justified by the Government’s legitimate aim of undertaking a proper assessment of the optimum way forward - a ‘wait and see’ approach with the aim of avoiding unnecessary expenditure of taxpayers’ money as well as wasted time and effort in making a change that might have to be reversed. The Court of Appeal explained that the situation as it currently stands is not sustainable but that it was not the court’s role to set a deadline for compliance. The court would not micro-manage areas of social and economic policy.

 In the case of  Re CZ (Human Rights Claim: Costs) [2017] EWFC 11  human rights and the effect of LASPO 2012 were considered. A child had been removed from his parents soon after he was born and the local authority failed to inform the child’s parents of an urgent hearing to obtain the interim care order. The local authority conceded that the parents’ Articles 6 and 8 ECHR rights had been breached. The court’s task was to determine what appropriate recompense for the breach would be. The court accepted the declaration, offer of compensation and payment of costs made by the local authority and was satisfied that the figure awarded was the right one, despite the fact that the application of the statutory charge under LASPO 2012 would mean they would not actually benefit from the damages.

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European cases

There were more cases with a European theme too this month, not just the human rights aspect.

The Maintenance Regulation was the focus of the CJEU in MS v PS (Case C-283/16) when it ruled that a maintenance creditor (in this case a mother living in Germany trying to enforce a German child maintenance order against the father who was living in England) could apply directly to the competent authority and did not need to submit an application through the Central Authority. This clarifies the procedure - an application can be issued directly in the court with jurisdiction in respect of maintenance obligations (in this case the Family Court) and it does not need to first be lodged with the central authority (eg. the Lord Chancellor, for forward transmission to the Family Court through the Reciprocal Enforcement of Maintenance Orders Unit (REMO)).

The Maintenance Regulation featured again in the case of W, V v X (C‑499/15), together with Brussels IIA. A father applied to vary a Lithuanian court order concerning parental responsibility and maintenance obligations in respect of his child.  The child was at that point living in the Netherlands. The CJEU held that the Lithuanian courts no longer had jurisdiction as the habitual residence of the child was in another Member State.

The inherent jurisdiction

A rare occasion where the court decided to invoke the inherent jurisdiction based on the children’s nationality (rather than habitual residence) arose in Re K and D (Wardship Without Notice Return Order) [2017] EWHC 153 (Fam)The children were British citizens and had lived in England with their mother until she took them to Northern Cyprus. The children had been the subject of child protection plans in England and the local authority’s case was that the mother had taken them with the sole purpose of avoiding the involvement of professionals, by taking the children to an area outside the province of the Hague Convention 1980 or Brussels IIA. The court decided that in the particular and unusual circumstances of the case the inherent jurisdiction should be invoked as the children required the protection of the court because there was no one in the area to exercise parental responsibility for them and they were in effect in administrative limbo, separated from each other and without access to services to protect their welfare. The case could proceed without notice to the mother because there was clear evidence that giving her notice would result in a significant risk that she would try to frustrate the orders by persuading the children to abscond ahead of the orders being implemented.

The inherent jurisdiction was invoked again (by the same judge) in the case of Re SL (Permission to Vaccinate) [2017] EWHC 125 (Fam). The court acceded to an application by a local authority under the inherent jurisdiction for a declaration that it was in a child's best interests to receive two immunisations where the mother was opposing. The balance of risk as between administering the vaccines to the child and not doing so plainly favoured immunisation.

In other news:

The right choice? New research identifies impact of shortened care proceedings - The introduction of the 26 week timetable for care proceedings has halved their average length. Research, led by Professor Judith Masson, provides insight into the impact this is having on the decisions being made on behalf of vulnerable children.

Children have no right to speak to family judges - Natasha Phillips - Despite promising to give children a greater voice in the Family Court the government still seems to be doing little on this front. The latest disappointment comes after government spokesmen confirmed that the Ministry of Justice never enacted a policy allowing children to speak to judges.

FDAC - a trauma-informed service - Dr Sheena Webb and Tom Borro - This is the third in a series of blogs about FDAC and the work of the FDAC specialist teams. In this blog we want to talk about trauma and the impact it has on many, if not all, of the parents who come into FDAC.

A  judgment of words and numbers - Jason Hadden MBE - The government's bill allowing for it to trigger Article 50 had but two clauses and 137 words (this article has three times as many), yet in many quarters was criticised for its brevity.

New  Guidance on MCA and DoLS - Dr Sheena Webb and Tom Borro - Following the Court of Appeal judgment in Ferreira v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, regarding deprivation of liberty (DoLS) in an intensive care unit (ICU), the Faculty of Intensive Care Medicine and the Intensive Care Society have released summary guidance on the Mental Capacity Act and DoLS in ICU settings.

Fairness,  needs and stockpiling: AB v FC [2016] EWHC 3285 (Fam) - Kathryn Mason - At a final hearing, the court considered the appropriate needs for the wife of a professional footballer in circumstances where there was limited capital, the marriage had been short and there was no marital acquest.

Wyatt  v Vince - Vindicating post-separation contributions - Philip Cayford QC, Simon Calhaem and Miles Geffin - The decision of the Supreme Court clarifies the law on strike-out in family proceedings and provides clear guidance to lower courts on the efficient case management of financial remedy proceedings.

Do  litigants in person have an unfair advantage? - Jason Hadden MBE - It has been very clear for some time that the number of litigants in person (LIPs) appearing before the civil and family courts without legal representation has increased significantly.

Third  party disclosure: public interest immunity and closed material procedures - David Burrows - The case of Re C (A Child) [2016] EWHC 3171 (Fam) (case heading: London Borough of Tower Hamlets v M and F and Others), Pauffley J raises a number of issues over where the welfare of a child may be treated as in conflict with the needs of national security (as asserted by SO15).

The  impact of contact and living arrangements on a child's psychological  development - Hannah Perry - Research tells us that children of divorced parents may be affected by a higher than average incidence of depression and mood disorders, and also achieve less academic success than their peers from intact families.

Parents'  and children's rights and good practice: section 20 - Penelope Welbourne - A series of cases decided from 2012 onwards has highlighted failings in local authority practice when accommodating children under s 20 of the Children Act 1989.

3-person  IVF approved by HFEA - what does this mean? - Louisa Ghevaert - On 15 December 2016, the Human Fertilisation and Embryology Authority (HFEA) approved the use of a new medical technique, known as mitochondrial donation, at UK fertility clinics.

Re TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6 - The declaration sought by the adoption agency was granted.

Bezeliansky v Bezelianskaya [2016] EWCA Civ 76 - The husband's appeal from a variation of the consent order and a suspended committal order was dismissed.

Egeneonu v Egeneonu [2017] EWHC 43 (Fam) - The mother's application for the father's extradition from Nigeria was dismissed.

Re  A and others (Children) (Adoption) [2017] EWHC 35 (Fam) - The President held that Scottish permanence orders should be recognised by the English court.

Re MM (a patient) Teresa Kirk v Devon County Council [2017] EWCA Civ 34 - The appeal from a decision requiring the man's repatriation to the UK was allowed.

J v  B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 - A transgender father's application for direct contact with his five children was refused and indirect contact ordered.

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