Family Law

Family Law Newsletter #6126.05.22

Issue #61 of Spire Barristers' Family Law Newsletter: edited by Gemma Carr and Georgina Dalton; news and Case Reviews by Eleanor Suthern. Eleanor will commence pupillage at Spire Barristers in September 2022.

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.

Jump to: Guidance / Cases Update

High court case brought by a man who wants to have his dead wife’s baby with a surrogate

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Survey finds that divorcees often misunderstand pension implications

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The Home Office proposes faster information for victims of domestic abuse – Open Consultation

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Thousands of domestic abuse victims denied legal aid due to LASPO

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Guidance / Updates

Child Support Regulations amended in relation to electronic communication and information for child maintenance

Ministry of Justice publishes a summary of responses following a call for evidence on dispute resolution in England and Wales

Guidance for Judges and Magistrates: Fact finding hearings and domestic abuse in Private Law children proceedings

Case Summaries

G v W [2022] EWHC 1101 (Fam)

This case concerns an appeal brought by the mother in proceedings under schedule 1 of the Children Act 1989 [1].

The parties are the parents of a child, who is 2 years old and lives with his mother [2]. The application concerns the provision of a housing fund of £1.35m, with a furnishing fund; periodical payments of £8,000pm; nursery and school fees to be paid by the father; and the provision of the car [3]. The judge had to deal with five issues but they turn on the application of issues of principle [4-5]:

(1) Should the father clear all of the mother’s liabilities because it is in the interests of the child that his mother should be debt free?

(2) Should the father pay additional payments so that the mother can hire a nanny for certain reasons?

The initial judge made an order, which is outlined at paragraph 6 of the judgement. The judge granted permission to appeal two grounds, namely, declined provision for nanny care and backdated payments [7]. The first ground relates to the mother’s debts and consists of two elements, past costs incurred and future costs [9].

The initial judge was critical of the mother in two ways [17]. Firstly, she incurred costs, knowing full well no provision was made for such costs. Secondly, that her claim for her medical condition was contrary to costs she incurred. The initial judge determined that he was not bound by the parties’ approach as to childcare funds [18].

The judge stated that whilst he did not entirely agree with the initial judge that childcare costs to restart a career do not fit within the scheme of schedule 1, a difficulty arises as the lump sum provided to the mother was described by the judge to “reimburse childcare costs”, yet was put by him to meet the mother’s commercial debts [19]. It was held that the same sum of money cannot do the same three things, namely, meet commercial debts, reimburse childcare costs and meet future childcare costs [20].

It was held that the approach adopted by the judge, namely the fact that the future childcare costs should be taken out of the money given to the mother per month was incorrect. The reason for this is that the money given monthly was exclusive to third party childcare costs [22].

The judge addressed the grounds of appeal in turn. Firstly, the mother’s request for a nanny. Secondly, backdated costs.

Firstly, it was concluded that judge was wrong to dismiss the mother’s need for a nanny, and that it was not unreasonable, yet hours suggested should be reduced [23], [25]. The appeal judge hesitated to make a lump sum payment, fearful that it would not be used for said purposes and that the child must be the main concern [24]. If the costs go above and beyond what was outlined at paragraph 25(i)-(iii) of the judgment, these must be paid out of the monthly allowance given to the mother for childcare already [26].

Secondly, the backdated costs of a nanny were considered appropriate [28], however, the appeal judge made no further provision for the payment of the mother’s other debts which were caused by reckless over-expenditure as this would not impact on the child’s welfare [29].

The judge then addressed the costs clawback at [30]-[35].

Concluding the case, the judge stated that he rejected the mother’s application by way of oral renewal for permission to appeal the expenses of legal costs [30], operations and additional security to her home [33]. However, the appeal was allowed in relation to the nanny provision [36].

Full judgment available here: https://www.bailii.org/ew/cases/EWHC/Fam/2022/1101.html

D (A Child) (Appeal from the Registration of a Maintenance Order) [2022] EWCA Civ 641

The case concerns the extent of the right to appeal from the registration in England and Wales of a foreign child maintenance order.

The father appeals from the order made by the appeal judge by which he dismissed the father’s appeal. The basis for such an order was that the “court has no jurisdiction as there is no right of appeal against registration” [1]. This was decided without a hearing, because of the effect of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (MO(RE)A 1972) and Schedule 2 of the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 (“the 2007 Order”).

An applicaton for the enforcement of an Elbert County maintenance order (Colorado, USA) was made (the Elbert County Order) [3]. The application relied on the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (the 2007 Convention). The order was effected expeditiously however progress has since been slow, mostly attributable to the pandemic [3]. The judge referred to the 2007 Convention’s emphasis on enforcement decisions to be conducted expeditiously. As stated, the reason for such haste is due to the obligation of maintenance to meet current needs.

The facts can be summarised as follows, the father and mother were married in the USA but live in England, their only child, R, was born in England in 2013. In 2016, the mother was given permission to relocate with R to the USA. They divorced in 2019 [6]. The Elbert County Order, made under the provisions of the 2007 Convention, requires the father to pay child maintenance to the mother [7]. The Elbert Order was registered, and the father was notified of his right to appeal [10].

The father appealed, on the grounds set out in article 22(b), 22(d) and 22(e)(i) of the 2007 Convention [11-13]. This appeal was dealt with, without a hearing [15]. The appeal judge determined that the father was given no right to appeal by the MO(RE)A 1972 or the 2007 Order [15]. The judge referred to the fact that it may have been better, and consistent with the overriding objective if the appeal judge had given the parties an opportunity to make further submissions [16].

In respect of this appeal, the father relied on 5 grounds, 2 of which were granted by the judge [17]. Both contend that the judge was wrong to decide that pursuant to MO(RE)A 1972 and/or the 2007 Order, there was no right of appeal from the Elbert Order [17].

Addressing the legal framework, the judge stated the following [18]. Firstly, that both the UK and USA have ratified the 2007 Convention [19]. Secondly, that Article 1 of the 2007 Convention provides a structure for international enforcement of maintenance orders [20]. Additionally, Article 22 outlines the grounds on which recognition and enforcement can be refused [21] and Article 23 sets of relevant procedure [22].

The judge referred to the 2012 Regulations which provide that the Lord Chancellor is the designated Authority for England and Wales [24]. The judge then referred to the provision of Schedule 1 of the 2012 Regulations [24] and section 31K Part 4A of the Matrimonial and Family Proceedings Act 1984 [25]. The latter provision refers to the right of appeal, subject to any Family Procedure Rules, and also subject to any order made under section 56(1) of the Access to Justice Act 1999 [25]. In short, rule 34.31(2) FPR provides that an appeal made under 23(5) of the 2007 Convention “must be to the family court” [27]. The judge stated that this reiterated the right of appeal provided under the 2007 Convention [27].

Submissions were outlined at [28-29]. The judge referred to Part 30 and PD 30A of the FPR 2010 provisions, which govern appeals in the family court [30-31]. Following an analysis of the provisions, the judge proposed that the President of the Family Division and Family Procedure Rules Committee should be invited to consider the issue of registration of orders [34]. The reason for this is, although administrative, the registration of orders requires a judicial act (Re S (Foreign Contact Order) [2010] 1 FLR 982 at [12]) [33].

The provisions of MO(RE)A 1072 and the 2007 Order were considered not applicable to this case [36].

The conclusion of the judgment is as follows [37]:

(1) Registration of the Elbert County Order was applied for and was effected under the 2007 Convention

(2) The 2007 Convention, by article 23(5), provides for a right of appeal from the initial registration and, by article 23(1), permits such further right of appeal as exists under domestic law;

(3) A further right of appeal is provided by the relevant legislation and rules and is to a circuit judge in the Family Court;

(4) The Judge was wrong to decide that the appeal was governed by the MO(RE)A 1972 and the 2007 Order and was also wrong to decide that there was no right of appeal from the Leyland Order.

The appeal was allowed and a re-hearing of the father’s appeal from the Leyland Order was ordered [38].

Full judgment available here: https://www.bailii.org/ew/cases/EWCA/Civ/2022/641.html

Publications

Jacqueline Thomas QC’s latest practitioner text a ‘Practical Guide to Transitions From Child to Adult Social Care’ is available to purchase via Law Brief Publishing

Order your copy online