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PSL Essential Update - June 2016

Date:1 JUL 2016
In the month that Britain (or 52% of Britain) made the historic (and controversial*) decision to leave the EU, what has happened in family law?

Supreme Court strikes out appeal in Re D (A Child) [2016] UKSC 34

In very basic and brief terms, a Romanian court has held that a child should live with his father in Romania. The child lived in England with the mother and so the father appealed to the English courts under Brussels IIa to have the Romanian judgment registered and enforced. The English court refused because the voice of the child had not been heard. The Court of Appeal upheld this decision. The father appealed to the Supreme Court. The Supreme Court struck out the appeal, holding that it did not have the jurisdiction to hear it as appeals in England and Wales under the provisions of Brussels IIa may be brought only be a single further appeal on a point of law to the Court of Appeal. You only have one chance to appeal a Brussels IIa judgment basically, because the whole point of Brussels IIa is to make it a quick and administrative process to register a judgment in a contracting country.

The full judgment can be found here and a more in-depth summary, along with legislation references, is available here.

For further analysis, see Fiona O’Sullivan’s article – 'Missed opportunity to give children a voice: Re D (A Child) [2016] UKSC 34'.

The conclusion to 
Wyatt v Vince

It was last year that this case hit the news. Kathleen Wyatt had made a financial remedies application against her multi-millionaire husband, Dale Vince (the founder of Ecotricity), despite the fact that they had been divorced for 19 years and he only made his millions after their divorce. The case had made headlines following the Supreme Court's decision to allow the ex-wife's appeal, holding that the Court of Appeal was wrong to strike out the ex-wife's claim. The Supreme Court confirmed that there is no power of summary judgment in the FPR 2010. The case would be remitted to the family court to be heard, but this didn't mean that the ex-wife would necessarily land a large award. In fact, the Supreme Court said that the ex-wife would face 'formidable difficulties' in obtaining a financial order in her favour. So the question was, how much would the wife get? And should the public know? In short, the answer is: £300,000 on settlement, and that yes, the public should know. The parties had come to a compromise agreement following an FDR and asked the court to approve the terms. Cobb J, in approving the settlement, held that Ms Wyatt was entitled to receive a modest capital award following the breakdown of the marriage and that the lump sum payment fairly represented a realistic and balanced appraisal of the unusual circumstances of the case. £300,000 sounds like a piddly sum of money in the context of this case, but obviously in the real world it's a significant amount. You do wonder whether for Ms Wyatt it was worth it though, As Cobb J noted that she had an as yet unquantified solicitor's bill to pay. The husband had argued that the judge should publicise an estimate of Ms Wyatt's possible outstanding liability for costs, so that the public would know the likely net benefit to her of the lump sum payment once her costs liability to her solicitors had been taken into account, but Cobb J declined to do so. The case is definitely a very good example of why it is so important to ensure that divorcing parties record their financial agreements in a court order. The full judgment is available here.

See further Tony Roe, 'Publicity and costs: Wyatt and Vince' in August Family Law.

Top 10 errors in divorce petitions

Figures released from HMCTS last year showed that around 40% of divorce petitions are rejected by the court and sent back. At the beginning of the month Resolution provided a list of the top 10 reasons why petitions are rejected. The full list is available here, and it includes common mistakes such as forgetting the enclose a fee or the marriage certificate, or names, dates and places not matching the marriage certificate.


The referendum happened. It's going to impact family law, but we don't know precisely what will happen as there isn't yet a plan. Here are some articles about it (expect a lot more on this topic!):

Brexit and international family law
Brexit and national family law
The EU referendum special Family Law newsletter: 21 June 2016

The cases of fertility clinics getting it wrong continue to mount up

The alarming volume of cases in which fertility clinics have made vital errors leading to parents being left in limbo as to their legal status has continued to increase. This month, two cases emerged from the President's court: Re N [2016] EWHC 1329 (Fam) and Re J [2016] EWHC 1330 (Fam). In both cases, the Presdient granted declarations of parenthood pursuant to s 55A of the Family Law Act 1986 following errors in the consent forms prior to IVF treatment. There are now 11 judgments on these types of cases, and the President noted that there are at least four others awaiting final hearing and four other cases pending. The President saw the administrative failures in these cases as indicative of systemic failings both of management and of regulation across the sector and hoped that the litigation would lead to very significant improvements in understanding and practice.

Divorce free increase 'is unjustified', says new Justice Select Committee report

In March we reported on the short notice and significant increase of divorce fees from £410 to £550. The Justice Select Committee has this month published a report recommending that the increase be rescinded. It said:

'We share the concerns which have been expressed to us about the increase in the fee for bringing a divorce petition. £410 is already an enhanced fee: a further increase to £550, which is approximately double the cost to the courts of providing the service, is unjustified. It cannot be right that a person bringing a divorce petition, in most cases a woman, is subject to what has been characterised in evidence to us as effectively a divorce tax'.

Family Law Awards

Nominations for the Family Law Awards 2016 closed on 10 June, and since then we've been busy compiling the judges' packs. And what an absolute pleasure it is to read through the nominations we've received. The talent, dedication and commitment described by colleagues and clients alike is tremendous. This year is going to be GOOD! The shortlist will be released on 1 September 2016. You can purchase tickets here.

*For me, anyway. I'm not pleased. This is an understatement.

Article continues below...

In other news...

New appointment to the Civil Procedure Rule Committee
The Lord Chancellor has appointed a new member to the Civil Procedure Rule Committee (CPRC).

Seventeen per cent increase in private law cases received by Cafcass in May 2016
Figures released by Cafcass show that, in May 2016, the number of private law cases received increased by 17% from May 2015 levels. A total of 3,267 new cases were received.

Care applications received by Cafcass in May 2016 increase by 23%
In May 2016, Cafcass received a total of 1,141 care applications. This figure represents a 23% increase compared to those received in May 2015.

Female bench appointments sees gender diversity success
A recent statistical bulletin published by the Judicial Appointments Commission (JAC) indicates success for women receiving appointments to the judicial bench in England and Wales, with almost half (45%) of candidates being female.

Bristol courts increase awareness of domestic abuse
The Bristol Civil and Family Justice Centre held a session on 26 May 2016 to provide more information to court staff and Personal Support Unit volunteers about domestic abuse. The packed court heard from the probation service, Next Link and a service user.


Hart to Hart
The newspaper headlines in respect of the case of Hart v Hart [2016] EWCA Civ 497, which was the husband's application for permission to appeal, reflected only a very small part of the husband's grounds of appeal. 

We need to talk about the children
One of the hardest things for parents following separation is continuing the conversation about what their children need in order to keep channels of communication open, and to continue to parent as part of an effective working relationship.

Private lives not private after all?

Should financial remedy claims be heard in public or private, and what will the long-term consequences be for the rule of law?


PRACTICE & PROCEDURE: AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam)
The judge found on the balance of probabilities that the allegations of abuse against the father were false and that the mother had lied and coerced the children into making the allegations.

PUBLIC LAW CHILDREN: Re X (A Child) [2016] EWHC 1342 (Fam)
The President ordered a re-opening of the fact-finding hearing.

FINANCIAL REMEDIES: Hart v Hart [2016] EWCA Civ 497
The husband was refused permission to appeal.

PUBLIC LAW CHILDREN: Re V-Z (Children) [2016] EWCA Civ 475
The appeal was allowed, the care and placement orders were set aside and the case was remitted for rehearing.

PUBLICITY & REPORTING: Re S [2015] EWHC 4159 (Fam)
A reporting restriction order was continued in relation to a child arrested in connection with terror offences.

The husband's application for declarations in respect of a consent order was refused.

Legislation & Guidance

How attorneys and deputies can make gifts
Office of the Public Guardian issues updated practice note on how attorneys and deputies can make gifts and what kind of gifts are appropriate.

Court of Protection: final Case Management Pilot Practice Direction
The final version of the pilot Practice Direction has now been published in advance of a case management pilot commencing in the Court of Protection (CoP).

Semi-automated online legal services
The Law Society has issued guidance for solicitors and members of their staff offering or planning to offer semi-automated online legal services.

Updated guidance: Lasting powers of attorney
The Law Society has issued updated guidance for solicitors who advise clients on drawing up a lasting power of attorney (LPA) and solicitors who are acting as an attorney under an LPA.

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