Family Law Newsletter #0113.09.17
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Getting it Right in Time: The Nuffield Foundation report
Parents who lack litigation capacity in care proceedingsRead More
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Hart v Hart  EWCA Civ 1306
Court of Appeal: Moylan LJ (leading judgment), Beaston LJ and Lloyd Jones LJ.
The parties had met in 1979, began cohabiting in 1983 and married in 1987; the separating in 2006. At the time of the decision at first instance, the total assets were worth £9.4 million. The husband had developed wealth from different but overlapping business interests. There were significant assets in a trust, amounting to £5.5 million, that HHJ Wildblood QC (first instance judge) decided should be treated as resources available to the husband.
The judge at first instance had calculated that the award the wife was entitled to would be in reference to: needs; mingled assets; a non-matrimonial calculation; and the wife’s proprietary rights plus 25% of the trust assets. Having completed his multi-faceted approach, HHJ Wildblood QC chose to award the wife the sum of £3.47 million- being the sum necessary to meet her needs. The wife appealed the decision on two grounds.
The first ground was that despite the husband having been wealthy at the start of the relationship, his litigation misconduct had made it impossible to establish the true value of his pre-marital wealth. As the court was unable to carry out the ‘formulaic approach’ to calculating non-matrimonial assets, the court should have instead awarded the wife 50% of the total assets in the case.
The second ground was that if a departure from equality was justified on the basis of non-marital assets in spite of the husband’s litigation misconduct, the decision to ground the award on the basis of the wife’s needs was arbitrary and incorrect. This denied her the greater figure she should have received if the marital and non-marital assets had been properly quantified.
Moylan LJ dismissed both grounds of appeal raised by the wife. Moylan LJ noted that classifying property as matrimonial or not is relevant to any court seeking to apply the sharing principle. This is because the sharing principle applies with force to marital property. However, it does not apply, or applies only with significantly less force, to non-marital assets.
The court is not required to adopt a formulaic approach. A formulaic mathematical approach is not required to achieve consistency or to guarantee a fair outcome. On the contrary, this case demonstrates the challenges which can arise when a court seeks to take a formulaic approach in circumstances where the financial history makes this difficult to achieve.
The notion of property being marital or non-marital is in fact a legal construct. An asset can be both matrimonial and non-matrimonial in its nature. When an asset is a combination of both types of property, it is artificial to seek such a sharp division – ‘the exercise is more of an art than a science’.
Moylan LJ admitted that the wife’s second ground of appeal did cause him to reflect carefully on whether the first instance judge had fallen into error. He concluded however that this was not the case and dismissed the ground of appeal. He resolved that the ‘tension’ in the judgment between HHJ Wildblood QC’s award and the other calculations came from the fact he felt compelled to seek to adopt a formulaic approach in the first place. The judge had been right to conclude that the fourth calculation ignored the origins of wealth and that the non-marital calculation was unreliable.
London Borough of Southwark v F  EWHC 2189 (Fam)
High Court: Hayden J
The London Borough of Southwark (the LA) made an application pursuant to section 25 of the Children Act 1989. The hearing considered a 14 year old boy (F) who was made subject to a Care Order in June 2016 in favour of the LA. F was placed in a residential unit following care proceedings which concluded in June 2017. He had since absconded and was found by chance, during a police operation, in a crack den in Peckham, London.
F is involved in serious gangland activity and there are real grounds for believing that has found employment as a drugs courier or deliverer. He has been investigated for an offence of rape, though this has been discontinued and he finds himself before the youth court facing two serious charges of robbery. He already has a conviction relating to knives. F has a complex care history, had experienced significant disruption to his upbringing and was a risk to himself and others.
At the time of the LA’s application in August, there were no secure units available for F. The interim plan was to place the child in a residential unit with 2 to 1 supervision. Having been unable to identify a suitable secure placement, the LA issued a deprivation of Liberty Application (DOLS) alongside an application for a Secure Accommodation Order. The objective underpinning this thinking was to secure F in a residential placement and to shore it up, reinforce it, with appropriate additional safeguarding measures.
Mr Justice Hayden made both orders and authorised deprivation of the child’s liberty. Mr Justice Hayden stated that the test in section 25 is a predictive one and that the order that the LA seeks is absolutely a measure of last resort and it is a significant deprivation of F’s liberty. Any court will consider the grant of such an order with very great care and in this care the measures were justified in light of the risks.