Family Law

Family Law Newsletter #4525.03.21

We begin this edition of the Family Law Newsletter by announcing that Spire Barristers current pupils, Aaqib Javed and Georgina Dalton are now both “on their feet” as they enter their 2nd Six. Both are available to take instructions. Please contact our clerks for further information.

Guidance / Updates

Amendments from 24 September 2020 to existing regulations relating to children in care

Channel 4 Dispatches issues a survey on domestic abuse and the family justice system for legal professionals

International Family Law Group’s response to the Family Procedure Rules Committee consultation

The Royal College of Paediatrics and Child Health (RCPCH) launches new guidance on perplexing presentations and fabricated or induced illness in children

The President of the Family Division endorses the publication of the President’s Public Law Working Group (PLWG) report

Case Summaries

BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20

-In the Family Court: Mr Darren Howe QC sitting as a Deputy High Court Judge

-A case which concerned an interim application to dismiss public law proceedings involving 6 children where there were numerous allegations of sexual abuse. Spire Barristers Taryn Lee QC and Liz Shaw represented 3rd Respondent and Jacqueline Thomas QC and Marie Harbin represented 1st Intervener.

The proceedings concerned six children, the eldest seventh child having been discharged following them turning 17. Of the six subject children, five were the subjects of care orders made in June 2018. Over a 14-month period following the making of final care orders, the children made allegations of sexual abuse against a number of adults and young people including: their parents; two older brothers; a maternal uncle and aunt; a cousin and a stepson; the maternal grandmother; deceased maternal grandfather, and another uncle. The children also alleged that a maternal cousin was a victim alongside them. The Local Authority issued applications for permission to terminate contact between the children and their parents and sought care orders for the cousin and her sister. As part of their substantive applications, the Local Authority sought findings as to the alleged sexual abuse.

The matter was listed for a 10-week finding of fact hearing to determine the truth of the allegations. This allowed six weeks for the hearing of the evidence called by the Local Authority. That evidence was concluded within 4 weeks.

At the conclusion of the Local Authority’s case, the Respondents and Intervenors (hereafter ‘the Respondents’) each applied for dismissal of the Local Authority’s applications or otherwise for the Court to exercise case management powers to limit the allegations to be considered for the remainder of the trial. The Local Authority subsequently sought permission to withdraw a number of pleaded findings, including the entirety of its case against the stepson consisting of one allegation alone.

The Respondents submitted that the Court should proceed on the basis that the abandoned matters were untrue and could therefore be relied upon as evidence of the children’s dishonesty. The Local Authority submitted that once an allegation has been abandoned, the Court should put the evidence of those allegations to one side as having no evidential advantage or disadvantage for any party by those allegations not being determined. Furthermore, the Local Authority submitted that, if the Court considers it necessary, the Local Authority can be compelled to pursue with the allegations it seeks to withdraw.

In relation to the application to dismiss proceedings, Mr Darren Howe QC set out the relevant legal principles, particularly those set out within AA v 25 others (Children) (Rev 2) [2019] EWFC 64. In this case, the Court concluded it did have jurisdiction to dismiss a Local Authority’s case beyond that found in part 12 Family Procedure Rules 2010, with the qualification that this power is only to be used in the most exceptional circumstances. Two examples were given of when such exceptional circumstances might arise; where medical evidence in an injury case changed substantially during the trial, or where pursuit of care proceedings as a vendetta against a parent amounts to an abuse of the process of the Court.

At [35] Mr Howe QC held that the examples ‘were not intended to be exhaustive.’ The Court must consider whether it is possible to say that the evidence of the Respondents would not assist in its determination of the facts. At [39] he surmised that the application for dismissal should only be granted if he can conclude that ‘having heard only the evidence called by the Local Authority…there is [was] no forensic purpose to be served by hearing further evidence.’  Furthermore, he held that ‘such a conclusion would be a further example of the application of the jurisdiction for reasons comparable to the example of an injury case collapsing.’

The Local Authority resisted the applications and submitted to the Court that the case cannot be over until the Court has heard oral evidence from the Respondents. To this end, the Local Authority acknowledged that the evidence relevant for the Court to consider may come within evidence of the Respondents rather than solely evidence presented by the Local Authority. The Local Authority relied upon the general principle, or rule as it was termed, that all parties to family proceedings will give oral evidence prior to any substantive decision being made.

On behalf of the Respondents, it was submitted that due to established and accepted breaches of ABE guidance, the evidence obtained by the Local Authority has almost no evidential value and therefore the Local Authority case has been damaged beyond repair. Furthermore, the Respondents urged the Court to consider the position of the police. The police had already conceded that there was nothing in the material downloaded from the devices of alleged perpetrators that supported the allegations of sexual abuse and therefore the Court ought to have considered whether it would be oppressive for family members to be forced to answer distressing questions where the case brought against them was weak. Additionally, it was argued that the withdrawal of some allegations but not of others (as the Local Authority sought) made by the same child at the same time and in the same manner was illogical.

The Local Authority’s submissions were adopted on behalf of the children. It was argued that the best interests of the children require all the evidence to be heard prior to any determinations being made.

At [59] Mr Howe QC held that he could not, until he had ‘heard all of the available evidence including the evidence of the Respondents, determine the factual allegations pleaded by the Local Authority.’ Significantly, Mr Howe QC noted at this stage he was unable to conclude that no Court could properly make the findings as sought by the Local Authority. The reasons for his decision were as follows:

a. ‘The need for conscientious examination of all the evidence does not just apply to those aspects of the evidence that might support those facing allegations. It also… applies to the consideration of the Local Authority’s case and the allegations made by the children’;

b. In order for the Court to be able to reach its conclusions on the basis of best evidence, the Local Authority and the children need the same fair opportunity to cross-examine the Respondents;

c. ‘The Court should only deprive itself of this otherwise essential source of evidence where it can be satisfied that there is nothing that can be said by the witnesses that will inform its conclusions’;

d. ‘The Court will be assisted by hearing evidence from the Respondents, particularly from the parents concerning the sexual knowledge demonstrated by the children in the allegations they have made’;

e. ‘An exploration of the views of one mother as expressed in her police interviews may provide evidence of particular relevance’ pertaining to why she readily accepted that her husband had sexually abused the children;

f. ‘The Court can only reach a conclusion that no Court could safely make findings after having heard all of the available evidence’; and

g. ‘The number of breaches highlighted by the Respondents does not reduce or remove the need for the Court to undertake a detailed evaluation of all the evidence. The number of breaches in this case is closely matched by the number of allegations. What connection one has with the other, if any, is a matter requiring close examination that should, in my judgement, occur only once all the evidence has been received.’

In relation to the application to exclude certain allegations from further consideration, at [88] Mr Howe QC set out the law from Re B (Children) [2008] UKHL 35 where Lord Hoffman held that the Family Court operated on a binary system meaning that the only findings the Court can make are either that it happened or it did not happen, not that it might have done. At [93] he concluded that ‘if the Local Authority does not concede the allegations to be false… the most appropriate course of action is to continue to hear the evidence on all the sexual allegations to ensure that the Court is able to consider all matters of relevance and within that exercise assess the credibility of all the sexual allegations alongside each other.’

The Respondent’s applications were therefore dismissed. However, Mr Howe QC highlighted at [99] that he did not criticise the Respondents for pursuing the applications and that his refusal to accede to the application is just a further example of how exceptional circumstances must be for proceedings to be dismissed mid-way through a trial.

Full judgment available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/20.html

Villiers v Villiers [2021] EWFC 23

-In the Family Court: Mr Justice Mostyn

-A case which concerned an application by the wife under s.27 MCA 1973, a Judgment Summons issued by the wife (‘applicant’) and an application by the husband (‘respondent’) to set aside or stay enforcement of an interim order for maintenance and legal services provision. The Judgment Summons was not dealt with during this hearing.

The parties married in England in 1994. From 1995 until they separated in 2012, the parties resided in Dumbarton, Glasgow. Following the separation, the wife moved to London and became habitually resident in England. The husband remained in Scotland. In 2013, the wife issued a petition for divorce in England. In 2014, the husband lodged a writ for divorce in Scotland. The English Court therefore stayed the wife’s petition, and it was subsequently dismissed in 2015.

However, the wife then issued an application in England under s.27 Matrimonial Causes Act 1973 (hereafter ‘the MCA 1973’). She sought a lump sum payment by way of capitalised maintenance of £3.15 million with an indemnity in respect of marital debts amounting to £936,000. The husband sought a stay of this application. In relation to the jurisdiction of the English Court and the stay application, the Supreme Court held in 2020 that:

i. Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011 No.1484) imported in modified form the jurisdictional and other legal rules in Council Regulation (EC) No 4/2009 to intra-UK jurisdictional disputes;

ii. There was no scope for the operation of a forum non conveniens discretion in the context of the legislative scheme of Schedule 6; it was not preserved by s.49 Civil Jurisdiction and Judgments Act 1982. Therefore, the English Court lacked jurisdiction to stay the s.27 application on these grounds; and

iii. The wife’s application could not be stayed under Article 14 of the Maintenance Regulations as a “related action.” There was no relevant connection between the wife’s application and the husband’s proceedings and therefore no risk of irreconcilable judgments.

The Court sought to explain the law surrounding the present application. At [13] s.27 MCA 1973 was explained as being a provision which ‘allows an application to be made to the Court by a party to a marriage for maintenance.’ There is no dependence on the Court ‘having pronounced a decree of divorce, nullity or judicial separation.’ The common law duty to maintain was highlighted with reference to Northrop v Northrop [1968] P 74 where it was held that a husband was under a duty to provide his wife with ‘necessaries’.

The Court highlighted at [31] that ‘a critically important feature of the common law duty to maintain is that it endures only for as long as the marriage subsists.’ The MCA 1973 now includes provision for such maintenance to continue after the dissolution of the marriage during the parties’ joint lives under s.28(2) of the Act. However, where the marriage had been dissolved by a foreign court, the situation was more convoluted. Mr Justice Mostyn at [38] made clear that ‘where there had been a foreign divorce accepted as valid in England, the English Courts would recognise that they no longer had jurisdiction over the parties.’ Despite this, the Court referenced the case of Wood v Wood [1957] P 254, in which it was held that the Court still had discretion to decide how to approach maintenance applications following a foreign divorce. Mr Justice Mostyn considered at [45] that discretion should be exercised in the following manner:

i. ‘Where a maintenance order has been made, and where there has later been a valid foreign divorce in a friendly state, or in another part of the British Islands, by ordering the discharge of the maintenance order; or

ii. Where, as here, there is a maintenance application pending and it is known that there will in the future be a valid divorce pronounced in a friendly state, or in another part of the British Islands, by disposing of the claim for maintenance in such a way that it covers only the period up to the date of the foreign divorce.’

At [127] the Court set out the requirement of s.27(3) MCA 1973 which states that the Court has to be satisfied of the fact that either party to the marriage has failed to provide reasonable maintenance for the applicant and have regard to all the circumstances of the case. Mr Justice Mostyn considered the Court ought to be looking at the period immediately preceding the application before making an evaluative assessment of what proportion of the respondent’s means should go to the wife as maintenance, taking note of the s.25(2) MCA 1973 factors.

Scott v Scott [1951] P 245 was highlighted at [130] to illustrate that reasonable maintenance is to be judged by the respondent’s ability to pay and the marital standard of living. On this basis, the Court dismissed the wife’s application after concluding that the respondent would not be able to pay any sum ordered. However, the respondent was ordered to pay the costs order made in the Court of Appeal previously as he had not succeeded on legal argument and his ability to pay was not a relevant consideration for the making of that order.

At [143] Mr Justice Mostyn held that ‘once the parties are divorced, the Sheriff’s Court at Dumbarton should deal with all financial questions between the husband and wife.’ However, he did observe that the husband’s decision to challenge the jurisdiction of the Court to hear the wife’s s.27 MCA 1973 application was misguided as it only served to waste time and money for both parties.

Full judgment available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/23.html