Family Law Newsletter #3824.09.20
Issue #38 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.
Children’s Commissioner publishes report revealing 420,000 children are at risk of evictionRead More
Guidance / Updates
Updated Practice direction on committal for contempt of court in open court
HOC briefing paper: Adoption and Children (Coronavirus) (Amendment) Regulations 2020
R v P (Children: Similar fact evidence)  EWCA Civ 1088
Court of Appeal: Lord Justice David Richards, Lord Justice Hickinbottom and Lord Justice Peter Jackson
– A case which sets out the approach to be taken to similar fact evidence in Civil and Family Proceedings
The father in this case had applied for contact with his two children aged 5 and 2. The mother opposed contact based on the allegation that the father has subjected her to ‘extreme coercive and controlling behaviour’. In support of her case disputing contact, the mother wished to rely on similar coercive and controlling behaviour by the father towards another woman (Mrs D).
During the contact proceedings, the court commissioned reports under s.7 of the Children act 1989, the local authority recommended that there should be no contact between the father and children until a fact-finding hearing was conducted. This decision was based on information from the Welsh local authority. The information stated that the father had formed a new relationship with Mrs D. Mrs D had separated from her former partner (Mr D) and was, until recently, seeing her children regularly. The Welsh authority alerted the London local authority that there existed proceedings between Mrs D and Mr D in relation to their children. Mr D had issued a contact application which led to the commissioning of a s.37 report identifying concerns about the welfare of the children due to the nature of the relationship between Mrs D and the father. The Welsh Authority concluded that the father had acted in a coercive and controlling manner towards Mrs D. It was the mother’s case that the reports from the Welsh proceedings contained relevant evidence which demonstrated the controlling and coercive behaviour she was alleging in the current proceedings.
The issue of the admission of this evidence arose at four different hearings before the one concerned in this appeal; this was due to a lack of judicial continuity. Permission sought by the mother to rely on the Welsh reports has been refused on several occasions.
On 24th June the matter came before another judge as a pre-trial review. The judge was highly critical of the mother’s solicitors for exhibiting the documents from the Welsh authorities, the judge considered that these were documents which the court had decided were not to be admitted and therefore refused to allow the evidence to be adduced.
The mother appealed on the basis that the judge was wrong to exclude the evidence which was highly relevant to the upcoming fact-finding hearing. It demonstrated a strikingly similar pattern of behaviour to that alleged by the mother.
The Court of Appeal identified that the court has a broad power to control evidence under the Family Procedure Rules 2010. In relation to similar fact evidence, the judge cited O’Brien v Chief Constable of South Wales Police  UKHL 26;  2 AC 534:
“4. Evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied.“
Peter Jackson LJ found that this analysis in civil cases is also applicable to family proceedings. Where there exists a dispute about the admission of evidence of this kind there are two questions to be asked: Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted?
Further the case of R v Mitchell  UKSC 55  AC 571 aided the court in explaining the extent to which facts relating to other occasions have to be proved for propensity to be established. This case found that the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The jury does not however need to be convinced of the truth and accuracy of all instances of misconduct, in fact the question is whether overall, propensity has been proved. The Court of Appeal stated that this analysis is applicable to both civil and family cases.
In applying these principles, the court concluded that the judge’s decision in the present case could not stand. The judge had been mistaken about the stance the court had previously taken on the similar fact evidence and further, the reports from the Welsh authority were relevant and therefore admissible. The appeal was allowed, and the judge’s order set aside.
Full judgement available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1088.html
S v C  EWHC 2127 (Fam)
High Court: Mrs Justice Roberts
– Consideration of a claim where the financial consequences of the divorce had already been regulated by a consent order.
S and C divorced in 2015 after 5 years of marriage. In 2016 a consent order which regulated the consequences of their divorce was made and approved. This order supported a clean break.
S and C had a 6 year old daughter together (A) who had been diagnosed with a genetic chromosomal disorder. This disorder was caused by treatment and medication S had received during her pregnancy. One year after they had separated, S and C brought a claim seeking damages for the additional costs of bringing up a disabled child.
A settlement of £5m was agreed in January 2019 and those funds were held by Kingsley Napley, the Solicitor’s firm jointly instructed by the parties. Such claim was in contemplation of the parties at the time of the consent order in 2016, although the outcome was unknown. The consent order provided that any settlement would only be invested and applied in a manner expressly agreed between the parties in writing.
S and C’s solicitors issued an application in which the court was asked to determine the beneficial ownership of the £5m. Following an agreement that each was entitled to 50% of the frozen funds, an order was made authorising the payment to each parent but reserved pending the resolution of the current proceedings. S had applied for financial remedy order in respect of A.
The issue in this case was, with all matrimonial claims between them now settled, to what extent should the court exercise its jurisdiction under s.23 of the Matrimonial causes act 1973 to impose conditions on the release to the parties of a frozen fund of £3.74 million.
The first issue dealt with by Mrs Justice Roberts in the High Court was computation. There existed little issue between the parties in relation to computation and the assets available. The agreed bottom line figure was £4.64 million, further it was accepted that C should move out of rented accommodation and into a house of his own. There were further discussions which related to the applicants trust interests which were not disclosed in her form E and C’s business interests. C had been involved in the world of motor sport and powerboat racing which had provided him with an income. If and when that investment is concluded, the father has an agreement with the new shareholders that he will be entitled to withdraw his £500,000 from the company.
Mrs Justice Roberts then set out the parties’ positions at the hearing before her. S brought this application under 3 separate limbs: an application for a lump sum for A under s. 23(1)(f); an application for child maintenance under s. 23(1)(d) – permitted due to A’s ongoing disabilities and an application for secured child maintenance under s. 23(1)(e).
S’s position was set out at paragraph 46 of the judgment. This stated that £1.5m was to be transferred by each party into two separate trusts, of which £1m would be used to discharge the mortgage on the Fulham home. C would have up to £1m for his housing needs, but he would not be permitted to use any part of that sum as collateral for further borrowing. The remaining £500,000 was to be released to each party on the basis that C could choose to use 50% of that sum towards the purchase of a property, or in repayment of his debts. From the remaining 50%, he would have to establish a ring-fenced fund of £150,000, which would be preserved as a maintenance fund from which A’s maintenance payments would be met at £2,000 pcm. This meant that the only free capital which would be made available to C outside this agreement would be £350,000, less any further sum up to £250,000 which he chose to invest in property. S, however, would have the free use of £350,000, but would ring-fence a fund of £150,000 to cover nanny and other costs for A.
It was C’s position that the court should dismiss the mother’s applications and make no orders in respect of the Kingsley Napley funds.
There was no evidence before the court as to A’s future needs, though a letter from the expert had identified that there was potential for developmental delay (though unclear how severe).
It was not accepted by the court that no order should be made in relation to the Kingsley Napley funds. The funds were intended to ensure a stable financial basis for A’s future and there was a need to ensure that A would continue to benefit from those funds. In respect of this, the best method was a tax efficient ring-fencing of the settlement monies which each parent held.
Roberts J order is set out between paragraph 90 and 95 of the judgment and can be summarised as follows:
(a) Child maintenance for A will to be paid at the rate of £2,000 per month.
(b) A sum of £150,000 will be set aside as a secured maintenance fund from C’s share of the settlement funds. C will be entitled to draw down against that fund at the rate of £24,000 per annum (£2,000 per month) between now and A’s 18th birthday in order to meet the child maintenance payments.
(c) In relation to housing funds, a sum of £900,000 will continue to be preserved until such time as C is in a position to purchase a property of his own. Any property he acquires (and it must be a property in this jurisdiction) will be held in his sole name and will be subject to a charge in A’s favour. S will be permitted to use funds from her share of the Kingsley Napley settlement monies to redeem her existing mortgage on the Fulham property.
(d) Thereafter, any surplus held by either party from their shares of the settlement monies would be theirs to deal with as each saw fit.
(e) Each party was to put in place an acceptable form of life assurance in an agreed sum.
Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2127.html