Thursday, 13 June 2019

A way with words: The language of family law

The words we use are important. This is especially so in the world of family law.


The interpretation and meaning attributed to certain words can influence the outcome of a specific case as well as how the law is understood by the public and implemented generally by the judiciary.


Words can be tricky. This is one of the reasons why we have rules for interpreting statute so that the Courts are not held to the strict ‘letter of the law’ if the result would be absurd or clearly not what was intended by Parliament. Some words are more important than others and, as the law and society evolve, so too does the language of the law.


People’s understanding of words used in family law can be influenced by similar language from other jurisdictions. This can lead to confusion and when about rights in this country particularly when engaging in legal proceedings. The problem can be compounded when these terms are mis-used in the press and media.


Below are a few examples of the importance of certain terms in family law and how sometime they are not used correctly.


CUSTODY



Many people talk about ‘custody’ when they discuss matters relating to children. They say “I want to have full custody of my children” or “I’m in a custody battle with my ex.” Yet the word custody is not part of family law in England and Wales. It was removed in 1991 because it was considered that the term conveyed a possessive, parent focussed message that gave the impression that one parent, the parent with custody, was in some way more important than the other. Custody was initially replaced the terms ‘residence’ to describe with whom the child would live with and ‘contact’ to describe the time that child spent with the non-resident parent.  These terms themselves eventually became subject to similar scrutiny and criticism.


The current terminology, set out in Section 8 of the Children Act 1989, refers to ‘child arrangements’ which can be broken down into ‘lives with’ orders and ‘spends time with’ orders. This language puts the focus very firmly on the child which is certainly a positive development. In addition, a child arrangements order can specify that a child ‘lives with’ both parents removing the perception that one parent has achieved a greater status which can create conflict. This could be appropriate when, for example, there is a shared care arrangement where the child spends a significant amount of time with each parent.


PRIMARY CARER



The term primary carer in children proceedings is used to describe a parent who undertakes the majority of care. It can be problematic with parents vying for this coveted status even before separation as they believe that it will give them the upper hand in any dispute. They may think that the ‘primary carer’ will be viewed more favourably by the courts and this will ensure that they will have control over the child and the time they spend with the other parent. It can sadly be perceived as leverage in financial disputes.  Witness statements can include detail about how involved that parent is in a child’s day to day routine and, conversely, how limited the role of the other parent has been.  This approach creates conflict, with parents fighting about who comes out on top rather than on what is best for the child going forward. It would seem that ‘primary carer’ may have become the new ‘custody’.


Such an approach is not child focussed.  The focus of the parents should be on what arrangements will best meet the needs of a child going forward. This could be very different from the status quo during the relationship. The court is obliged to start with the assumption that it will benefit a child if both parents play a meaningful role in that child’s life and so an arrangement which significantly limits the role of one parent is unlikely to be approved unless there is a good reason for this. This means that parents may have to accept that compromises will need to be made life after separation may look very different.  It may be that, for some families, there will be no ‘primary carer’.


JOINT LIVES



A ‘joint lives spousal maintenance’ order is where one spouse must make periodical payments to the other until one of them passes away. It is an order which the court can make in financial remedy proceedings. Such orders used to be more common although these days they are becoming much harder to justify with the focus shifting to encouraging financial independence within a specified time-frame and thus achieving a clean break.


The term can be deceptive. This is because it can be varied and, in fact, the expectation that that spouse will strive to achieve financial independence remains even if such an order is made. In reality, there will be very few cases that justify a true ‘joint lives’ order being made. Those will be cases where the court can say with certainly that the receiving party has no chance of achieving financial independence in the future.


A joint lives order can also be made when there is too much uncertainty as to when a spouse may achieve financial independence. It is, however, important to remember that the expectation is still there and, if a party does not take sufficient steps to increase their earning capacity then they could find themselves in financial difficulty if their former spouse applies for the payments to be brought to an end. It these circumstances, might it be better to refer to an ‘indefinite’ order rather than a ‘joint lives order.’


COMMON LAW WIFE/HUSBAND/MARRIAGE



There is no concept of ‘common law marriage’ in the law of England and Wales.  If you hear this term being used then it is wrong.  If you are using this phrase then please stop! It perpetuates a myth that someone is entitled to something they are not and can leave people in a dire financial position if their relationship ends. Whilst there are still powers for the Court to make financial orders in limited circumstances, there is no codified regime of cohabitee rights akin to that available on marital breakdown.


Further thoughts:


·         Do you agree with the above?


·         Are there any other family law terms which you consider are being misunderstood or should be reviewed?



Friday, 4 January 2019

UPDATE: Surrogacy & Parental Orders for Single Parents

There been a significant change to the law surrounding surrogacy in the UK.

On 03 January 2019 the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018. This will allow single parents to be able to apply for a parental order in the UK following the birth of a child through a surrogacy arrangement. Previously, such applications could only be granted to couples. In the case of Re Z [2015] EWFC 73 the then President of the Family Division, Sir James Munby found that parental orders could only be applied for by couples. This case was the subject of a previous post on this Blog.

Since then, Sir James has made a declaration that the law was incompatible with the protection of human rights under the Human Rights Act 1998. This declaration has led to the recent change in the law.

A parental order allows for a new birth certificate to be granted reflecting the parentage of the commissioning parents or, as of 03 January 2019, parent.

For further analysis, a useful article by Helen Blackburn of the International Family Law Group LLP can be found here.

Tuesday, 24 July 2018

Gender Reassignment and Pension Entitlement: Discrimination will not be tolerated


The law in England & Wales on marriage, relationships, sexual orientation and gender recognition has changed dramatically in the last 50 years.  This has included the decriminalisation of homosexuality in 1967 through to more recent changes brought about by the Gender Recognition Act 2005, the Civil Partnership Act 2003 and the Marriage (Same Sex Couples) Act 2013.  Each step has been a move away from discrimination towards equality for those in the LGBTQ community.
The law is complex, and these changes have required careful consideration of, and amendments to, previous legislation to ensure that they are effective and avoid further and unintentional discrimination.  Some of these amendments were considered in previous posts in relation to the legalisation of same sex marriage and whether same sex couples should be granted access to civil partnerships.
A person’s gender affects many aspects of their legal life.  One area which has come under particular scrutiny recently is that of pension entitlement.  The UK has, for some time, been moving towards a system in which the pension age for both men and women will be the same.  This should be the case by the end of this year and the pension ages will then increase the for both sexes in future years.
Under European law, specifically Article 4 of Council Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matter of Social Security, a Member State cannot discriminate whatsoever on the ground of sex. There is an optional exemption to this when it comes to determining pension age and the UK has chosen to apply this exemption. It is therefore legal, under European law, for the UK to allow there to be a different pension age for men and women although, as stated above, this is being phased out.
The Court Justice of the European Union (CoJ) has recently considered this issue in detail. A claim was brought against the Secretary of State for Work and Pensions in 2008 by a person, referred to as MB, who had been born a man but now claimed to be a woman.
Further details of the case are set out below but first, a word on Gender Dysmorphia.
“This is a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity. It's sometimes known as gender incongruence.
Biological sex is assigned at birth, depending on the appearance of the genitals. Gender identity is the gender that a person "identifies" with or feels themselves to be.”
Definition taken from https://www.nhs.uk/conditions/gender-dysphoria/
MB was born a man in 1948, married a woman in 1978, lived as a woman from 1991 and underwent gender reassignment surgery in 1995.  As far as she was concerned she was female, as far as the law was concerned she remained male. It was not an option for her to legally become female until the Gender Recognition Act 2005 came into force.  Even then, legal gender reassignment is not automatic.  Criteria have to be met including having undergone reassignment surgery, having lived as their identifying gender for a number of years and providing supportive medical evidence.  Only if these criteria were met would a Certificate of Gender Reassignments (CGR) be issued. The CGR was essential for there to be a legal change of gender.  MB could have opted to legally become a woman in 2005 but, at that time, marriage between same sex couples was not permitted.
Prior to same sex marriage becoming legal in 2014, a married person who met the criteria for a CGR had the following options:
a.    Remain married, in which case their legal gender would remain the same as at birth; or 
b.    Obtain an Interim CGR. This would entitle them to have their marriage annulled. They could then either enter into a civil partnership with their former spouse, remain single or re-marry another person of the opposite sex.
MB did not want to get an annulment because this conflicted with her religious beliefs. She therefore remained married and, as far as the law was concerned, a man.
The issue came to light when MB applied for her pension entitlement at aged 60. Being born before 1950, this was the age she would have been entitled to receive her state pension benefit, if she was a woman.  A man born before 1950 could not claim until he is 65. Section 9 of the Gender Recognition Act 2005 makes it clear that once the CGR has been granted that person has changed gender for all purposes. This includes claiming pension benefits. Without a CGR, MB’s application was rejected. As far as the law was concerned, she was still a man and so would have to wait until she was 65.
MB challenged this on the basis that she was being directly discriminated against on the grounds of sex.  To establish discrimination, one must identify a comparable person and show that you have been treated differently.  The comparable person was a married woman who had been born a woman. Her case slowly progressed through the UK Court system taking 8 years to make it to the UK Supreme Court.  The Supreme Court was divided and referred the case to the Court of Justice of the European Union. Their decision can be found here. A further 2 years later, and a staggering 10 years after her claim began, the CoJ ruled in her favour declaring that there was direct discrimination. The press release for the decision can be found here.
The second element of MB’s claim was that there was indirect discrimination as the vast majority of gender reassignment surgery is male to female. Whilst she was not successful in establishing indirect discrimination the case may raise the possibility of further claims being made by those who either missed out on their state pensions at an earlier age or who had to annul their marriages to obtain their pension benefits.
In another recent case involving transgender rights, the claimant had undergone the transition from female to male and had obtained a CGR recognising his male gender legally. He had then given birth and is now fighting for his right to be recorded as “father” on the child’s birth certificate.  As stated above, section 9 of the Gender Recognition Act 2005, it makes it clear that gender reassignment is for all legal purposes.  There is no qualification for such scenarios and yet the General Register Office say they cannot put anything other than “mother” on the birth certificate when referring to the person who has given birth to the child. This intriguing problem is generating considerable debate.
It is not possible for those making the law to consider every possible scenario when drafting legislative change and we may well see other cases where the changes to this area of law lead to discrimination. What is important is that when such issues do arise, they are dealt with appropriately and, if the recent CoJ decision is anything to go by, any form of discrimination is unlikely to be acceptable.
 


 


 
 

Wednesday, 24 January 2018

Parental Responsibility: How you get it. How you lose it.


Parental responsibility (PR) is a fundamental concept in UK family law. It is defined in Section 3(1) of the Children Act 1989 (the Act) as:
 
all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
Just because you are the biological parent of a child does not necessarily mean that you will have PR. This is particularly important for unmarried fathers who need to ensure that they are included on the birth certificate for their child when the birth is registered or else they will subsequently need to take administrative or legal steps to obtain PR. Further details are set out below.
This post is going to look at how PR is obtained and how it can be lost or restricted with consideration of the recent case of B and C (Change of Names– Parental Responsibility – Evidence) [2017] EWHC 3250 (Fam). A link to the Act is here which may be helpful as there are several references to specific clauses.

Obtaining Parental Responsibility

Section 2 of the Act set out how PR is obtained automatically. If a mother and father were married at the time of their child’s birth then both obtain PR automatically under section 2(1). Section 2(1A) contains similar provisions for when both parents will automatically have PR when a child is conceived through artificial insemination or IVF treatment. If the mother and father were not married, or the criteria for the other parent in section 2(1A) are not met, then only the mother will have PR automatically (section 2(2)(a)).
 
The father may obtain PR under section 4(1) of the Act by either:
a)     being named as the father on the birth certificate;
b)    by entering into a “parent responsibility agreement” with the mother; or
c)     by order of the court on his application.
Sections 4A and 4ZA contain similar provision on how people who are not the father, such as a second female parent or step-parent can obtain PR.
I have set out the legislative framework above as there is an interesting difference in the approach to those parents who obtain PR automatically under section 2 of the Act, and those who obtain it under the provisions in sections 4, 4ZA and 4A. This is relevant in the rare circumstances where PR may be withdrawn or restricted.

Restricting Parental Responsibility

Ordinarily, a child will benefit from both parents having and exercising their PR. Withdrawing or restricting PR is a significant and draconian step that will only be considered in the most extreme circumstances to protect the child.
A parent who has obtained PR automatically under section 2 of the Act can never have that it taken away from them but they can have it restricted, either in part or completely. Completely restricting PR could effectively achieve the same result as having it withdrawn.  In order to restrict someone’s PR in this way an application must be made for a prohibited steps order (a PSO) under section 8 of the Act. A PSO is defined in Section 8(1) of the Act as being:
an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order shall be taken by any person without the consent of the court
Applications made under Section 8 of the Act require the Court must apply the ‘welfare checklist’ set out in Section 1(3) of the Act.
In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
a)     the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
b)     his physical, emotional and educational needs;
c)     the likely effect on him of any change in his circumstances;
d)     his age, sex, background and any characteristics of his which the court considers relevant;
e)     any harm which he has suffered or is at risk of suffering;
f)      how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g)     the range of powers available to the court under this Act in the proceedings in question.”
 
A parent who has obtained PR through sections 4, 4ZA or 4A can have it restricted by a PSO but can also have it withdrawn completely. An application to withdraw PR is made under the relevant subsection in the Act. It is not an application made under section 8 and so the Court is not obliged to apply to welfare checklist.
The consequence of this is that the Courts may be required to take a different approach to what is essentially the same question depending on how the PR was obtained in the first place.

Does it matter?

Maybe.
This could be relevant when comparing an application to restrict PR completely when that PR has been obtained automatically, and an application to withdraw PR which has been otherwise obtained. The former arose in the case of B and C. The mother argued that the father posed such a threat to the children that he should play no part in their lives. He had, among other things, abducted the children to Southern Iran, excluding their mother from their lives and subjected them to physical abuse. The mother had to effect a risky rescue of the children to return them to England. The father had obtained PR automatically under section 2(1) of the Act.
In addition to the application for PR to be restricted under section 8, the mother applied for the children’s names to be changed completely and for her evidence to be withheld from the father as it contained details about where she and the children were living. All three such applications are highly unusual in children proceedings and would be considered an interference with the ECHR Article 8 right to private and family life. Notwithstanding this, the Court applied the welfare checklist as it was required to do and found that the circumstance were such to justify the applications and found in the mother’s favour on all points.
In considering the mother’s request to restrict PR, Mister Justice Cobb, considered the case of Re D (Withdrawal of Parental Responsibility) 2014EWCA Civ 315. In contrast to B and C, this case involved an application to remove PR completely (so not a section 8 application).  In his judgment, Cobb J set out twelve principles to be drawn from Re D. This included:
iv)That there was is no requirement upon the court to consider the factors set out in section 1(3)(the ‘welfare checklist’) but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned.
This suggests that, even where the welfare checklist does not apply, it is likely to have an influence on how the case is decided.  Arguably then, there will be little difference in how the court approaches the question of withdrawing PR or restricting it completely. However, as the Court is not bound to take the welfare checklist into account in applications for removal of PR, it would be prudent to give consideration as to what weight if any should be given to it in those circumstances. Should this be the case though? This leaves us with a situation where a different test will apply depending on the nature of the relationship between the parents and not the relationship between the parent and the child.
Thoughts?

Wednesday, 21 June 2017

UPDATE: Shooting Tigers in a Barrell - Court of Appeal Decision

The Court of Appeal has made a ruling on the case of Quan v Bray and Others [2017] EWCA Civ 405. The case involved a dispute over a trust, known as the Chinese Tigers South African Trust, which had been set up in 2002 by a husband and wife to help repopulate Chinese tigers to the wild. The couple subsequently separated and the wife issued a claim for a financial remedy in divorce proceedings. She argued that the trust, which held approximately £25m in assets at the time, was nuptial in nature and could therefore be considered a resource available to the parties from which her financial claims could be met. There were minimal matrimonial assets outside the trust so this question was fundamental to outcome of her claim.
 
In 2014, Sir Paul Coleridge found against the wife concluding that the trust had been set up for the benefit of the tigers and not to support the couple financially. The wife sought to immediately challenge the finding through a Barrell application which was the subject of a post on this blog. She was unsuccessful and drew criticism from the judge for trying to “have another go” without going through the correct procedure.
 
Unsurprisingly then, the wife appealed Sir Paul Coleridge’s decision and the Court of Appeal handed down its decision last week. Lady Justice King delivered the leading judgment in which she considered whether Sir Paul Coleridge had provided adequate reasoning for his finding, whether or not he had dealt with all of the relevant issues and, if not, whether his conclusion would have been different. King LJ was cautious about the shortness and lack of detail contained in the original judgment, stating:
Whilst economical judgments are to be applauded, it is hard to resist a submission that this judgment, if not actually short of background and of analysis of the surrounding arguments, was perilously close to it.”
Notwithstanding this comment, the wife’s appeal was dismissed. The Court of Appeal found that the wife had not successfully challenged the original findings and, as such, the trust was not nuptial in nature and therefore not available to the parties on the divorce.
The status of the trust was a preliminary issue which has taken years to get to this stage at considerable financial cost. King LJ referenced over £3.5m in legal costs with £340,000 alone spent on the wife’s appeal. If this is the end of the matter then the wife’s financial claim can proceed to be determined without reference to the funds in the trust. That said, given the wife’s determination in this case so far, it would not be surprising if this case were to find its way to the Supreme Court.
The original post on the case can be found here.

Wednesday, 3 August 2016

Standard of Proof: When Non-Payment Means Prison


When any Court makes a decision to issue a custodial sentence it does not do so lightly.  If a person’s freedom is at risk then a high level of proof is required to justify removing that freedom.  In family cases, a custodial sentence can be issued if, for example, one party is in contempt of Court by failing to provide information under a Court Order or by failing to make payments in accordance with the terms of a financial order.  The Court will always give the party in contempt an opportunity to purge themselves of that contempt by providing the information or making the payment within a reasonable deadline.  If the party still does not comply then a custodial sentence can be imposed.  In the case of non-payment the payee can make an application for a judgment summons and the Court will consider whether a short custodial sentence is appropriate for the defaulting party. The Court will not take such a step unless it is satisfied that the defaulting party has the means to pay, or had the means when the payment fell due, and has wilfully or neglectfully not paid. One might expect the same high standard of proof to apply to this test as in criminal proceedings however that is not the case. 

In the case of Magliaccio v Magliaccio [2016] EWHC 1055 (Fam), a former wife made an application for a judgment summons in respect of arrears of child maintenance and an unpaid costs order.  The parties were divorced and a financial order had been made in which the husband was to pay the wife maintenance for herself and their child by way of periodical payments.  The husband had failed to pay and arrears of £64,000 had accrued.  The wife had returned the matter to Court for enforcement and it was during those proceedings that a settlement was reached and a further order was made.  The new order stated that the husband was to pay a total of £19,000 consisting of £13,500 for the outstanding maintenance payments and £5,500 towards the wife’s costs.  There was also to be continued child maintenance of £1,150 per month with maintenance for the wife dropping to a nominal level.
 
The husband paid the £13,500 for the arrears but did not pay the sum ordered for the wife’s costs.  He also took it upon himself to reduce the periodical payments for the child below the level ordered.  The wife once again returned the matter to Court and by the time it came before Mr Justice Mostyn further arrears of £4,100 had accrued.  The husband did provide an explanation, by way of email, as to why he had not made the payments. He claimed that he was facing financial hardship because he was soon to be made redundant and because he had recently remarried. He also thought that he should not have to pay maintenance for the month that the child visited him. Significantly, the husband failed to supply any evidence to substantiate his position.

Mostyn J was not impressed. He said, referring to the husband’s e-mails: 
These writings show a profound misunderstanding of obligations under an Order of a Court of law.  An Order of a Court of law which provides the child periodical payments is not some indicative suggestion; it is a judgment that must be complied with.

By the husband’s writings he seems to believe that because he has in mind that there are circumstances which might justify a variation application that he is entitled unilaterally to reduce the payments to what he thinks is just; not what the Court has determined to be just. This is completely unacceptable and if such behaviour were to be tolerated it would strike at the very heart of the rule of law.” (paras 17 & 18)
 
Mostyn J went on to consider the legal position in relation to the judgment summons for non-payment of periodical payments.  Specifically, he considered Section 5 of the Debtors Act 1869 which sets out that a person may only be punished by imprisonment in relation to certain specified unpaid debts. Mostyn J satisfied himself that non-payment of periodical payments ordered in the context of matrimonial proceedings were enforceable in this way.  This was by virtue of paragraph 2A ofSchedule 8 of the Administration of Justice Act 1970.
 
Mostyn J had previously considered this very issue in the case of Bhura v Bhura [2013] 2 FLR 44 in which he noted that the Court of Appeal had provided principles to consider in the case of Karoonianv CMEC [2012] EWCA Civ 1379 which he was bound to follow. He specifically identified two principles as being relevant which he set out are set in his Judgment.

These were:
It is essential that the Applicant adduces sufficient evidence to establish at least a case to answer. Generally speaking, this need not be an elaborate exercise.  Proof of the Order and of non-payment will likely give rise to that inference which establishes the case to answer”; and

If the Applicant establishes a case to answer and evidential burden shifts to the Respondent to answer it if he fails to discharge that evidential burden then the terms of Section 5 will be found proved against him or her to a requisite standard”.
(para. 23)
This may seem straightforward and sensible in light of circumstances where there has clearly been a failure to pay.  However, in the very recent case of Prest v Prest [2016] 1 FLR 773 Lord Justice McFarlane made some comments which brought these principles into doubt.
 
McFarlane LJ’s concern was that when considering issuing a custodial sentence for non-payment it was not sufficient to rely upon findings in family proceedings as these would have been made to a civil standard of proof (balance of probabilities) rather than a criminal standard (beyond reasonable doubt).  McFarlane LJ pointed out that if the case to answer had been proven then it must be decided whether the Respondent has had since the date of the Judgment the means to pay the sum due and whether he had refused or neglected to pay the sum.  He said that this should be proved to the criminal standard and that the burden of proof should at all times remain on the Applicant.  He went even further to say that the Respondent could not be compelled to give evidence. 
 
Mostyn J considered McFarlane LJ’s comments and rejected them outright.  He pointed out that the consequences of McFarlane LJ’s approach would be that every fact would need to be proved from scratch to a much higher standard than had been required in the original proceedings.  Mostyn J satisfied himself that he had relied on binding principles from the Court of Appeal and relied on comments from Lord Justice Richards who had, in Karoonian v CMEC, considered the issue from a human rights perspective. He stated that, in cases where there was clearly a case to answer there would be an evidential burden on the Defendant to answer it and that was unobjectionable to Article 6 (referring to the right to a fair trial as set out in the European Convention on Human Rights).  In following this approach Mostyn J made it quite clear that the criminal standard of proof is not required in order to make a committal order for a breach of non-payment of periodical payments in matrimonial proceedings.
 
It is difficult to see how MacFarlane LJ’s approach would not bring the entire system of enforcement to a grinding halt. It would lead to extensive enforcement proceedings that could require evidential investigation above and beyond what had been required to make the original order, a re-trial to a higher standard.
 
Perhaps the nature of financial evidence in family proceedings is also relevant. In the earlier enforcement proceedings, the husband had provided the evidence which the Court had relied on to determine that the husband did indeed have the means to pay the maintenance, his Form E. The husband had completed this himself and signed a statement of truth to confirm the contents were accurate. The husband had disclosed in this form that he held significant funds and the email evidence he had presented prior to the judgment summons hearing did nothing to address that but simply stated that he did not think he should pay because of an impending redundancy and further financial hardship by virtue of the fact that he had recently remarried. Mostyn J therefore had no hesitation in imposing a suspended 14 day custodial sentence on the husband.
 
Mostyn J has given a definitive answer on the issue of the burden and standard of proof in these circumstances. However, should care be taken when considering how to deal with these issues particularly in light of the increase in Litigants in Person who might not appreciate the evidential requirements on them or the serious consequences of failing to discharge that burden? The husband in this case was unrepresented and had presented a case without due reference to the legal principles being considered. He may have had “a profound misunderstanding” of the obligations under a Court Order but had he received legal advice he might have been able to correctly address these and avoid the committal order being made against him. Again, this needs to be balanced against the unquestionable need to ensure that parties comply with Court Orders.
 
As usual, comments are welcome.

Tuesday, 15 March 2016

Privacy v The Press: When can divorce proceedings become public knowledge?

We are entitled to a certain amount of privacy. This is enshrined and supported by Article 8 of the European Convention on Human Rights.

The act of marriage itself though is not private. It must take place in a public building, notice must be given and witnesses must be present. Beyond that, however, no one else is entitled to know the details of how a couple conduct their marriage unless, that is, they choose to share them or they live out their private lives in the public sphere.

Divorce also requires a certain amount of publicity. Court proceedings must be started and the marriage is brought to an end first by the grant of decree nisi and finally by the granting of a decree absolute at least six weeks later. Information on the making of these orders is available to the public. The procedural side of a divorce is seldom contentious with court proceedings relating to the division of finances or child care arrangements being much more likely.

Financial proceedings require a comprehensive and invasive look into the financial lives of both parties. The standard of disclosure is high. The Court requires a full, frank and honest picture of the parties economic life to be able to adjudicate on a fair outcome. The standard format to provide this disclosure (Form E) runs to 28 pages and requires documents to be attached which include recent payslips, banks statements and pension information.

In order to protect the parties’ right to privacy, financial proceedings are heard in private but there are circumstances in which they may be opened up. These were considered by Mr Justice Mostyn last year in Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam).

The case related to the financial proceedings in the divorce of Nicole Appleton and Liam Gallagher in which they jointly made application to exclude the press from the financial proceedings. There was a great deal of public interest in their divorce due to the celebrity status of the couple. In the case of most divorces the press will have little interest in attending a hearing but when celebrities divorce the case is very different. Mostyn J reviewed the legal position and frame work for considering when the press should be allowed access to such proceedings and, if so, to what extent.

The legal position is found in Family Proceedure Rule 27.11 which states that all hearings are held in private, this prevents the public from attending. FPR 27.11(2) provides a list of who may be present at these private hearings, which includes “duly accredited representatives of [the press]”. It should be noted that the court also has the power to exclude any member of the press, or indeed anyone else, if it sees fit (FPR 27.11(3)).

The press are also limited as to how they report the case. It is a contempt of court if they repeat outside of court anything that is said before the court. This applies to the parties as well. The press are also not allowed access to any documents. So the parties can be assured that journalists will not be able to go through their bank statements. Indeed, Mostyn J commented that, when the press is allowed to attend a hearing, their presence is more akin to that of an observer or watchdog.

What then of the judgement itself? Matrimonial judgments do not have to be made public by virtue of the Judicial Proceedings (Regulation of Reports) Act 1926. Such judgments can contain a great deal of personal information which would undoubtedly be an invasive breach of the right to privacy of the parties. That breach is not, in itself, a bar to judgments being published. The court must balance the parties’ right to privacy against the right of freedom of expression. In family proceedings a great deal of weight is given to the right of privacy but this can be countered where:

These issues do not just apply to celebrities. Shortly after his decision judgment in Appleton& Gallagher, Mostyn J made public a judgment in financial proceedings which involved no element of celebrity and no information about the case was already in circulation. The case was Veluppillai & Others v Veluppillai[2015] EWHC 3095 (Fam) which involved a husband who was a litigant in person and whose conduct throughout the case had been particularly bad. At paragraph 17 of his judgement Mostyn J stated:

There is no doubt the husband's misconduct has been at the extreme end of the spectrum. It is in the public interest for his conduct to be exposed. The public should be aware of the scale of problems that courts administering justice and implementing the rule of law have to face at the hands of unrepresented and malevolent litigants determined to do everything they can to destroy the process. I appreciate that the wife, who is wholly innocent, will lose her rights to privacy by virtue of this judgment being published without anonymisation but in my opinion the public interest in the whole truth being known outweighs her privacy rights.” 
This shows that, when considering whether or not to publish a judgment, the balancing act is not just between the right to privacy and freedom of expression but also extends to the public interest and can be applied to any case being considered by the courts.

Arguably, there will always be some uncertainty as to what private information may be made public if a case goes to a final hearing. Different approaches between judges adds to that uncertainty and there are calls for further guidance to clarify the position. If nothing else, this issue highlights the benefits of resolving financial claims outside of court.

This post is based on an article written for the Spring Law Update, February 2016. You can read the original article here.