Family law
By Carolyn Edwards
The introduction of the Public Law Outline (PLO), which replaces the present protocol, represents a major change in the way that care proceedings will be dealt with by the courts. Local authorities will be expected to submit better applications ensuring that all kinship options have been explored and they will be expected to have held a family group conference and to have undertaken all relevant assessments before making their applications to court. The PLO is to be introduced in England and Wales from April 2008 and prior to national implementation is to be introduced in 10 areas (including London) from 1 September 2007.
One of the objectives is to reduce delay which is caused by poorly prepared applications and alternative carers emerging late on in the course of the proceedings. Revised statutory guidance under s7 of the Local Government Social Services Act will be introduced to support local authorities in preparing care applications. The emphasis is on the importance of pre-proceedings work. The local authority should provide an explanation of its expectations of the parents in plain language as part of the pre-proceedings fairness requirements and provide a list of family solicitors; it is hoped that the availability of legal help (level 2) for significant adults will help reach agreement and avoid court proceedings.
The proceedings will be streamlined in that there will be four stages to final hearing rather than six; the focus will be on identifying and resolving issues.
Child’s attendance at court to give evidence In LM (by her guardian) v Medway Council, RM and YM [2007] EWCA Civ 9, the guardian appealed, supported by the local authority, against an order that the child, L, should attend the final hearing for the purposes of giving evidence via video link in care proceedings. The Court of Appeal dismissed the appeal but emphasised the unusual circumstances of this case and that the correct starting point, established by previous court of appeal guidance, is that it is undesirable that a child should have to give evidence and that particular justification will be required before the court allows this.
The comments made in B v Torbay Council suggesting that the discretion to direct oral evidence from a child should be exercised more often than was currently the practice should be treated with caution. In LM, both the mother and child had reported that the father was violent to the mother. This was the reason for the child being placed in foster care with the mother’s consent. Father always denied the allegations. Mother retracted the allegations and sought the return of the child. The parents wished the child to give evidence at the court hearing. The judge granted their request. In considering whether to make an order, the court had to balance the need for evidence, in the circumstances of the case, against the potential harm for the child. In this case, the Court of Appeal held there was a lacuna in the evidence in that no one knew whether or not the child had retracted the allegations, which left the judge in an extremely difficult position. L was 10-years-old and it was found that she was sufficiently mature to understand the need to tell the truth and to understand the issues about which she was asked, although it was recognised there was a risk of harm to her, particularly in relation to cross-examination.
Assessments
In the two cases below the Court of Appeal upheld appeals against the making of final orders and directed that there be further assessments.
In Re M-H (assessment: father of half brother) [2006] EWCA Civ 1864 the Court of Appeal upheld an appeal against a care order, setting aside the placement order and directed an independent viability assessment of the step father. The court of appeal emphasised that the interests of the child required an exhaustive investigation of his welfare needs and the options open to fulfil them. It was accepted that the local authority’s viability assessment of the stepfather was inadequate and flawed but the judge had refused to order a full independent assessment, relying on the guardian’s report to correct the flaws. The court of appeal held that the judge had been under a serious misapprehension if he believed that the guardian had carried out a full or viability assessment.
In Re K (care order) (Court of Appeal 12 June 2007), the Court of Appeal overturned the decision not to allow a residential assessment under s.38(6) Children Act 1989, which was refused on the basis that the assessment sought was not addressing the real issue, which was mother’s drug and alcohol problem. In allowing the appeal the court of appeal noted that the assessment had been recommended by one of the experts and found that without this assessment the essential requirement of fairness would be jeopardised.
The facts in these cases were distinguished in Re G and B (placement orders: adoption) [2007] EWCA Civ 258 where the mother appealed against the making of a placement order and sought an assessment of her foster sister. The court found that the judge did have sufficient material on which to make his decision not to order an assessment of the foster sister.
Private law – relocation case
Following the case of Payne v Payne* the court of appeal have ruled in the favour of the parent with care of the child relocating abroad on the basis that the child’s welfare is closely associated with the emotional and psychological stability and security of that parent. In Re H (Removal from Jurisdiction) [2007] EWCA Civ 222 the Court of Appeal dismissed the mother’s appeal against an order refusing her application to relocate to the US. The Court of Appeal found that the judge had exercised his discretion carefully. He had weighed and balanced the child’s welfare taking into account the relationship between the child and the father’s family as well as the impact of refusal of the application on the mother’s stability and security and the effect on her care of the child. He had concluded that the mother’s likely distress was not going to compromise her care of the child.
*(2001) EWCA Civ 166, [2001] 1 FLR 1052
• Liz Dronfield is a family solicitor at Bindmans
North v North
[2007] EWCA Civ 760
The appellant husband (H) appealed to the Court of Appeal against a decision that his former wife (W) was entitled to capitalisation of a nominal periodical payments order made by consent in 1981, after losing money on investments made after she sold assets derived from the original financial settlement on divorce.
The 1981 order settled W’s capital claims and provided for the transfer of ground rents to W so as to provide her with an annual income. This order also contained a provision for nominal periodical payments to the wife on a joint lives basis.
As a result of lifestyle choices and following a move to Australia, W’s assests were drastically reduced, leading her to make an application to vary the 1981 order.
Without undertaking a detail analysis, the district judge granted the application and ordered H to pay a lump sum of £202,000 for the capitalisation and dismissal of W’s periodical payments claim. In doing so, the judge also held H should not be responsible for those elements of W’s needs which resulted from her own choices which H had no control over, and for which he should not bear any responsibility. These findings however, were inconsistent with the order made.
H’s appeal against this order was dismissed by Justice Charles on the basis that the district judge’s decision was within his discretion as per the 1981 order made. On appeal to the Court of Appeal, H submitted that the district judge, having found that H should not be held responsible for the depletion of W’s finances, should have dismissed her claim outright.
“Fundamentally flawed” judgment
The Court of Appeal accepted H’s absolution from responsibility for W’s financial status was clearly stated by the district judge and agreed that his decision to order capitalisation of H’s periodical payments to W was an inconsistency amounting to a contradiction.
But while the Court of Appeal found that the judgment was “fundamentally flawed”, it held that it did not necessarily follow from this conclusion that W was entitled to no order. The court held that some level of payment could be justified.
In exercising the court’s discretion conferred by Section 31 of the Matrimonial Causes Act 1973, Lord Justice Thorpe emphasised that the court’s overarching objective is to achieve a fair result for both the applicant in need and the respondent to pay. Although the applicant’s needs are likely to be the dominant factor it does not follow that the respondent is inevitably responsible financially for any established needs. Namely “he is not an insurer against all hazards”.
Thorpe LJ stressed that: “the wife’s failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband, her choice of a more hazardous future in Australia together with her lifestyle choices in Australia, were all productive of needs which she had generated and for which the husband should not, as a matter of fairness, be held responsible in law.”
The court did not entirely dismiss W’s claims because her investment losses should “be characterised as misfortune rather than mismanagement” and a fair result required W to receive “some modest award”.
Despite the fact that W had “largely made her own bed” she nonetheless had an obvious need which H could meet without undue hardship. “The 1981 order was intended to be and remains a safety net”. Taking all factors into account, the Court of Appeal held that it was right to exercise its discretion under s31(7) and a fair award was one of £3,000 per annum during joint lives or until further order, a figure significantly lower than W’s actual needs as found by the district judge.
This case provides authority for the proposition when addressing an upward application to vary, it is not necessary for the applicant to demonstrate that they have used their best endeavours to help themselves. However, failure in that regard is highly likely to weigh heavily in the exercise of the courts broad discretion, which must consider all circumstances of the case.
S v S
[2007] EWHC 1975 (Fam)
This case concerned an appeal by the husband (H) against an order in ancillary relief proceedings on the grounds that the district judge had been discriminatory in his division of the matrimonial assets.
This was a conventional marriage of over 20 years, made up of the breadwinner and homemaker, with matrimonial assets in excess of £2m. The now retired H was aged 58 and the wife (W) who came from a prosperous family, was aged 51.
The district judge based his original order on the premise of an equal division of the matrimonial assets including pensions, save for two assets held in W’s sole name. These two assets consisted of a 50 per cent share in the W’s parents’ matrimonial home and a bond, which the district judge ring-fenced and viewed as non-matrimonial property.
H appealed, claiming that the judge had discriminated against H for failing to take into account his contributions during the marriage and the assets he brought into the marriage from its outset; incorrectly assessed W’s contributions; ignored W’s inheritance prospects; and incorrectly analysed the parties’ respective needs.
No departure from equality
Mrs Justice Baron held that elements of the district judge’s judgment indicate his analysis was plainly wrong. Yet she did not accept that the judge had been wrong in failing to take into account W’s inheritance prospects.
Although it is likely that W will receive something from her parents, “the timing and amount are uncertain and unclear”. Therefore “at its highest, this factor can only be used as a background factor which weighs lightly in the analysis of fairness in this case”.
Despite the parties’ assets being in excess of £2m, Baron J emphasised that “this is quintessentially a needs case” given that each of the parties are relatively young, each of them needs a home, and all their assets will be required to fund their lifestyle in the future.
In light of these two considerations, Baron J established that the district judge had been unfair and discriminatory to ring-fence W’s financial contributions to the marriage which had emanated from her parents. Each party had made a full and proper contribution to the marriage and all the assets that had come into the marriage should be available to cover the parties’ equal requirements. To that extent, Baron J held that the district judge was plainly wrong in his analysis.
Baron J added that: “there is nothing in the factual matrix which would permit of a finding that the wife made an additional contribution in circumstances where the husband had assets which he brought into the marriage and where he worked extremely hard during its existence”. She continued, that this case is typical of many, and highlighted that “it would be unfair and discriminatory to ignore each of the parties’ contributions, whenever made, including that made by bringing monies in at the beginning of the relationship. As time goes by all assets are amalgamated and it would seem to be inappropriate to omit them from overall consideration”.
Thus Baron J concluded that there was no feasible reason to depart from equality, particularly given the long length of the marriage, and therefore made an order for the equal division of all the matrimonial assets.
