Football & Family Arbitration: When can you appeal a bad result?

No one likes to pay for a bad result. Any Arsenal fan who paid £14.95 to Sky Box Office last weekend to see their team beaten at home 0-3 by Aston Villa will tell your that (if you have the courage to ask them).

In family law, parties litigating their divorce have the option to pay for a resolution out of court by using the Family Law Arbitration Financial Scheme. This is where the parties agree to appoint an independent third party, usually a practising barrister, to hear their case and make a binding decision (an award) which is then converted into a court order. This not only eases the burden on an overloaded Court system but usually allows for a much quicker and less stressful process which is kept private - an important advantage for high profile people who want to avoid making headlines with their personal affairs. A recent case, however, may have dramatically changed the nature of family arbitration.

In Haley v Haley [2020] EWCA Civ 1369, Lady Justice King considered what the correct test is when one party challenges the outcome of the arbitration and refuses to consent to the arbitration award being made into a financial order. Should the test be under the Arbitration Act 1996, from which the Family Law Arbitration Scheme derives its authority, or the Matrimonial Causes Act 1973, under which the financial order is made?

If the correct test is under the AA 1996 then the circumstances in which the award can be challenged are extremely limited. A party would have to establish that:

a.    the arbitrator had a lack of substantive jurisdiction (s67); or

b.    there has been a serious irregularity affecting the tribunal, the proceedings or the award (s68); or

c.    the award was [obviously] wrong on a question of law (s69).

There is no scope to challenge a finding of fact or to question the fairness of the award. It is very difficult to challenge an arbitration award on these grounds. This was an intentional outcome of the AA 1996 in order to promote certainty in commercial disputes.

If the correct test is under the MCA 1973, then award would be treated as if it had been made by a judge in the Family Court at a final hearing and the party appealing the decision would need to establish that the there is a real prospect that the award was:

a.    wrong; or

b.    unjust because of a serious procedural or other irregularity in the proceedings.

In applying this test, the court can consider the fairness of the award and whether the outcome is unjust. This provides a much wider scope for challenging an arbitration award.

In support of the test under the AA 1996, it was argued that the parties had agreed to the terms of arbitration under the AA 1996 and had therefore “[bought] the right to get a wrong answer”.  In other words, they had agreed to be bound by the result of the arbitration even if they felt it was unfair or unjust.  Lady Justice King disagreed. She found that the correct approach is the ‘appeals’ approach under the MCA 1973. In doing so she relied on the “fundamental tenet of fairness which has informed every decision made by the courts since the landmark case of White v White [2001] UKHL 54.” (para 92)

So what does this mean?

It means that there is wider scope to challenge an arbitration award notwithstanding the fact that the parties had agreed to accept the award as being binding. The next question is whether this is a good thing or a bad thing for family arbitration?

On the one hand, the appeal system exists because sometimes, for whatever reason, the court does not come to a fair decision. The same must be true of arbitration awards, sometimes they will be unfair. Why should the party who decided to take their case out of the court system and arbitrate be denied the same right of appeal as someone who has their case heard before a judge?  On the other hand, by using fairness rather than the strict terms of the AA 1996, the benefits of privacy and certainty, that arbitration promised, are now significantly diluted.

Where do we go from here?

As a result of Haley v Haley, some people may now be put off arbitration because it can no longer offer the privacy and finality of an equivalent commercial arbitration. On the other hand, others may be encouraged to arbitrate knowing that if they think the result is unfair, it can be challenged in the same way that a judgment at a final hearing can be challenged.

So, unlike football fans, who always run the risk that they might get a bad result when they pay to watch their team play, if you do pay for a result through family arbitration then you now have a better chance to challenge that result if you think it is unjust or unfair.

If nothing else, this case reminds us that if you are considering arbitration as an alternative to litigation, then it is essential that the clients understand exactly what they are signing up to.

The full judgment in Haley v Haley can be found on BAILII here.

Don't Waste My Time: There are (almost) always alternatives to going to Court

It is never pleasant when a Judge criticises you in Court, particularly in front of your client and the other side and their legal team. Even if, as a solicitor, you have the cushion of a barrister taking the brunt of the punishment it is an experience to be avoided if at all possible. It must have been an uncomfortable day in Court for those representing the parties in Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44.  The matter was considered by His Honour Judge Wildblood QC who was considering a appeal of a decision made by a Legal Adviser for disclosure of 5 years worth of medical records of the mother. HHJ Wildblood QC was quick to clarify that the publication of his judgment was not related to the legal issues of the appeal but rather "to highlight the extent to which court lists are being filled by interim private law hearing that should not require court involvement."

Some reminders:

• A private law case is one which is brought by a private individual, usually a parent of the child in question, whereas a public law case is one involving a local authority, for example, an application for a care order.
• An interim hearing is a hearing listed prior to the final hearing or conclusion of a matter, usually to address an issue that needs to be resolved before the matter can proceed, for example, disclosure of evidence (as in this case).

It is often said that going to Court is a last resort and every effort will be made to resolve matters by agreement.  That can be difficult in cases where there is high conflict or emotion and where any concession can feel like admitting defeat.  HHJ Wildblood QC, however, is making it absolutely clear that certain matters should always be resolved outside of Court and to do otherwise amounts to "an inappropriate use of limited court resources" (paragraph 3 of the judgement) which is contrary to the overriding objective set out in Rule 1 of the Family Procedure Rules 2010. The Judge helpfully gave the following examples of matters which would count as inappropriate applications:

1. At which junction of the M4 should a child be handed over for contact?
2. Which parent should hold the children's passport?
3. How should contact be arranged on a Sunday afternoon?

The Judge stated that those representing parties must steer their client away from bringing such disputes to Court and said that if such matters were litigated then "criticism and sanctions" may follow.

It is clear that everything must be done to try and keep such disputes out of Court including making the consequences of taking the matter before a judge clear to the parties. But what about those cases where even the smallest of issues is impossible to resolve without a third party stepping in to assist? Well there are alternatives and it is important to consider them particularly in light of this recent judicial warning. If negotiations are not working then mediation can be a helpful tool and HHJ Wildblood QC references this towards the end of his judgment. But mediation is not always appropriate particular if there have been allegations of domestic abuse. Another option is arbitration. 

Arbitration involves a third party selected by the parties (usually a practising barrister or judge) who will consider the issues and make a binding decision. Arbitration can be used to resolve all matters in dispute it should not be forgotten that smaller issues, such as those complained of by HHJ Wildblood QC can also be resolved through arbitration. The parties are in control of the process and it may even be possible to have the matter resolved without the need to attend a hearing. Whilst the parties will have to meet the cost of the arbitrator, considering the possible costs of a court hearing (in Re B the costs ran to thousands of pounds) it could be a more cost effective process and will certainly be a quicker way of reaching an outcome which would allow the matter to proceed and avoid taking up precious Court resources.

It would therefore be prudent to keep Re B in mind when considering whether to take an interim matter to court in private law proceedings as, not only are you likely to be criticised by the judge, but there could be a lot more lost than simply your client's preferred junction of the M4 for handovers.

What are your thoughts? 

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 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 sometimes 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?

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.

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.

 

 

 

 

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?

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.