Family Law

Family Law Newsletter #2408.05.19

Announcement

Press release from Ministry of Justice: New legislation makes it easier for court users to apply for divorce online

The 8th Family Law & Children’s Rights Conference will be held in Singapore in July 2020 and they have issued a call for papers.

Full details of the conference | More details on call for papers.

Updates & Guidance

New Approach to Legal aid to streamline family work rolled out. Details by Family Law Week

Updated “Quick Guides” for Providers using CCMS

Guidance on the Remuneration of Expert Witnesses

Para 6.29 of the guidance has been amended to clarify payments for legally aided interpreters at court.

Case Summaries

R (Children) [2018] EWCA Civ 3050

The guardian appealed a care order made on 29 May 2018 to place two children, aged 12 (C) and 10 (M) into foster care. At the hearing the local authority, supported by the guardian proposed that the children should live with their current carer (R), under a special guardianship and supervision order. C had been living with R since April 2016 and M since April 2017. The guardian’s grounds of appeal were summarised as follows:

  1. The judge failed to carry out the requiring balancing exercise. In particular, the judge failed to analyse the consequence for the children of moving to long-term foster care including the fact they were desperate to remain in the care of R;
  2. The judge wrongly placed considerable weight on matters which were not addressed during the course of the oral evidence with the result that R was unable to deal with them in her evidence;
  3. the judgment does not explain why the judge appeared to consider a care order, under which the children would live with R, would be consistent with their welfare needs but a special guardianship order with the same effect would not.

In the judgment LJ Moylan acknowledged the pressures on the family justice system including on judges. He stated that the judge that made the order was faced with a difficult situation due to missing evidence. LJ Moylan formed the view that due to the state of the evidence being incomplete the appeal should be allowed on that basis alone. He also held that the judge failed to sufficiently analyse the benefits and disadvantages of each of the options available to the court or to compare their respective benefits and disadvantages.

The appeal was successful on grounds (i) and (ii) and sent back for a rehearing.

Transcript

RP (Appeal costs) [2019] EWCA Civ 680 (16 April 2019)

In January 2019 the Court allowed an appeal by a foster carer against a care order made in respect of a girl (R), who had been in her care for 14 months. Following the successful appeal, the the appellant applied for an order that her costs be paid by the local authority and Cafcass.

The Court of Appeal confirmed the approach to be followed when considering applications for costs in cases involving children are governed by the principles from Re T [2012] UKSC 36 and Re S [2015] UKSC 20. It follows from those cases that a costs order should only be made in unusual circumstances, as recognised by Baroness Hale this is because whenever a court determines a question relating to the upbringing of a child, “there are no adult winners and losers – the only winner should be the child”. An example of an unusual circumstance would be where the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable (Sutton London Borough Council v David (No 2) [1994]).

The conduct of the local authority and the guardian fell short of the standard expected in care proceedings. However, the Court of Appeal concluded no order for costs should be made because the conduct did not fall into the category of behaviour identified in the Sutton case.

Transcript

Grandison v Joseph [2019] EWHC 977 (Fam)

The parties had built up a portfolio of 127 properties, most if not all of them heavily mortgaged. On the breakdown of their marriage in 2013 they agreed the portfolio would be divided equally between them in terms of value and income. The division was agreed in October 2015 and the parties agreed “best endeavours” to procure the release of the other from any liability under the mortgages. The wife transferred her share of the properties into her sole name and released the husband from the mortgages secured on them. He did not do the same in respect of his share of the properties.

In October 2018 Her Honour Judge Redgrave ordered that Mr Grandison (now appellant) will have to place 42 of his properties be placed on the market for sale unless he transferred the legal title of them into his sole name to release of his former wife from her obligations under the mortgages. The husband appealed on three grounds:

  1. there was no requirement in the underlying order requiring him to transfer the legal, as opposed to beneficial, ownership of the properties from either the wife’s name or joint names into his own name;
  2. the judge was wrong to place a time limit on the requirement that he use his best endeavors to obtain the wife’s release of her obligations under the mortgage;
  3. the judge shouldn’t have ordered a sale under Section 24A of the Matrimonial Causes Act 1973 as it amounted to a major variation of the final order in the case.

It was held the judge was plainly right to find the husband had not used his best endeavours to obtain the wife’s release from the mortgages. Each agreement must be seen in context and in this case it was a final order in financial proceedings agreed a number of years ago, it had been implemented by one party but not the other. The appeal was dismissed.

Transcript