Family Law Newsletter #3522.07.20
Issue #35 of Spire Barristers' Family Law Newsletter: edited by Connie Purdy and Taz Irshad; news and Case Reviews by Georgina Dalton. Georgina commences pupillage at Spire Barristers in September 2020.
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.
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Guidance / Updates
Updated version of the Remote Family Access Court released (Version 5)
COVID-19: Guidance for small marriages and civil partnerships
Villiers (Appellant) v Villiers (Respondent)  UKSC 30
Supreme Court: Lady Hale, Lord Kerr, Lord Wilson, Lady Black, Lord Sales
– A case which considers the jurisdiction of an English court to make a Maintenance Order under s.27 of the Matrimonial Causes Act 1973 when the parties have spent most of their lives in Scotland and the divorce proceedings were conducted there.
The parties in this case married in 1994 in England. Thereafter the parties relocated to Scotland until the couple separated in 2012. The wife returned to England in 2012 and issued a divorce petition in 2013. This was subsequently dismissed after the husband issued a writ for divorce in Scotland in 2014. The writ did not contain a prayer as to an order for financial matters. In 2015, the wife issued an application under s.27 of the Matrimonial Causes Act 1973 (‘s.27’) in England for maintenance payments.
The husband applied for an order to stay or dismiss the wife’s application under s.27 arguing that the English court did not have or should not exercise jurisdiction to hear the application. At first instance this argument was rejected and a maintenance order was made in favour of the wife. The husband then appealed to the Court of Appeal and was unsuccessful.
In the Supreme Court, Lord Sales identified 4 separate issues which the members of the court were required to determine, each was listed at paragraph 7 of the judgment as follows:
- Whether an English court has jurisdiction under s.27(2) to make any order for maintenance in a case with no international dimension?
- If so, whether Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484) (‘Schedule 6’ and ‘2011 Regulations’, respectively) allows for an English court to retain its previous discretion to stay maintenance proceedings before it on the ground of forum non conveniens?
- If not, whether the purported removal by Schedule 6 of a general discretion to stay proceedings on the grounds of forum non conveniens falls outside the scope of the Secretary of State’s powers?
- If not, whether the husband’s divorce proceeding in Scotland is a “related action” for the purposes of article 13 of the Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (‘Article 13’ and ‘Maintenance Regulation’, respectively), as applied by Schedule 6 and should the English court decline jurisdiction in respect of the wife’s maintenance claim under section 27, pursuant to that provision?
In relation to the first issue, the Appellant submitted that s.27(2) could only apply if the case was governed by both the Maintenance Regulation and Schedule 6, so that it only applies in inter-state cases. Lord Sales giving the leading judgment rejected this contention stating that the jurisdiction of an English court to make an order under s.27 is to be determined by application of the Maintenance Regulation and Schedule 6 taken together, it does not require that both the Maintenance Regulation and Schedule 6 apply.
After consideration of EU case law, in relation to the question of whether the English court has a discretion to stay maintenance proceedings before it on the ground of forum non conveniens, Lord Sales held it did not. It was stated that the object of the mandatory rule of jurisdiction in article 3 of the Maintenance Regulation is to afford special protection for a maintenance creditor by giving him or her the right to choose the jurisdiction most beneficial for them, therefore excluding the doctrine of forum non conveniens.
On the third issue, Lord Sales considered that the making of the 2011 Regulations is within the wide power conferred on the Secretary of State by s.2(2) of the European Communities Act 1972 to make subordinate legislation.
The members of the court disagreed on the fourth issue of whether the husbands divorce proceeding in Scotland was a ‘related action’ for the purposes of Article 13 and whether the English court should decline jurisdiction in respect of the wife’s claim for maintenance under s.27 pursuant to that provision. Lord Sales (with whom Lord Kerr agreed) and Lady Black held that the divorce proceedings and the maintenance application were not “related actions” as there was no relevant connection between the maintenance claim in England and the proceedings concerning marital status in Scotland.
Dissenting, Lord Wilson (with whom Lady Hale agreed) interpreted Article 13 broadly, concluding that that there were related actions pending in Scotland and England pursuant to Article 13. Such an interpretation would have provided the English Court with the power to stay or decline the wife’s application under s.27 and allow the husband’s appeal.
This judgment makes it possible for maintenance claims to be heard in England & Wales despite other legal aspects of divorce proceedings being pursued in a different jurisdiction. The future application of this judgment however hinges on the role of the Maintenance Regulation post-Brexit.
Full judgment available at: https://www.supremecourt.uk/cases/docs/uksc-2018-0114-judgment.pdf
Re A (Surrogacy: s.54 Criteria) M  EWCA 1426 (Fam)
High Court: Mr Justice Keehan
- – A case in which the High Court was required to read down s.54 of the Human Fertilisation and Embryology Act 2008 (‘2008 Act’) to make a parental order.
The Applicants in this case are the biological parents of the child (A) concerned. A was born following a surrogacy arrangement in February 2017 whereby the embryo was created using the parent’s gametes. Before A was born, the parents separated. Following the birth of A, the mother made an application for A to be made a ward of court. The father had at this stage stated that he did not wish to be involved in the upbringing of A.
In July 2017 the mother made an application for a parental order as a single parent, this application was stayed until the provisions of s.54A of the 2008 Act came into effect. When the provisions had come into effect, the father had changed his position and wished to be involved in A’s upbringing. The mother and father subsequently made a joint application for a parental order.
The facts of this case presented three legal issues to the High Court in this case:
- the application was made outside of the 6-month time limit (s.54(3))
- the child’s home at the time of the application and upon the making of any parental order will not be the same home as both parents because they are separated (s.54(4)(a)); and
- whether, at the time of the application, the mother and the father could be found as ‘two persons who are living as partners in an enduring family relationship’ (s.54(2)(c)).
Keehan J held that following the principle from Howard v Bodington (1977) 2 PD 203, s.54(3) of the 2008 Act does not have the effect of preventing the court from making an order merely because the application was made after the expiration of the 6-month period.
The term ‘home’ under s.54(4)(a) of the 2008 Act was given a wide and purposive interpretation with Keehan J stating that this term is not restricted to applicants living under the same roof. Keehan J was satisfied that A had his ‘home’ with both the mother and father.
Keehan J also determined that the mother and father were ‘two persons who are living as partners in an enduring family relationship’ in light of the commitment and dedication individually demonstrated by them to A.
Keehan J cited the case of Re X  EWFC 39 in which Theis J set out the reasons why a court may read down the statutory criteria of s.54 of the 2008 act and determined that this was such a case. Keehan J concluded the judgment, stating: ‘[t]he transformative effect of making this order for A cannot be overstated. It is fundamental to his identity and status for the whole of his life.’ (para 61) A parental order was granted in favour of the mother and father to promote the welfare best interests of A.
Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/1426.html