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?

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.

 

 

 

 

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.

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.

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:

• one or both parties have acted with iniquity and sought to use the press to their advantage (Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315);
• there already exists a great deal of information in circulation about the case, perhaps from previous proceedings (Young v Young [2013] EWHC 3637); or
• the information in the public domain is incorrect and it is in everybody's interests for this to be corrected (McCartney v McCartney [2008] EWHC 401 (Fam))

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.

UPDATE: Surrogacy & Parental Orders

Sir James Munby (President of the Family Division) has been drawing the “boundary line” in the ‘reading down’ of s.54 of the Human Fertilisation and Embryology Act 2008.

This topic was discussed in a recent post: Time for Change? What should Re X mean for surrogacy law in the UK?

Section 54 sets out the requirements that need to be met before the court can grant a parental order to the commissioning parents following the birth of a child to a surrogate. ‘Reading down’ refers to the application of section 3 of the Human Rights Act 1998 which states that legislation:

“...must be read and given effect in a way which is compatible with the Convention rights.”

In the recent decision of Re Z [2015] EWFC 73, Munby P refused to grant a parental order to a single father on the basis that he could not bring himself within s.54(1) of HFEA 2008 which states that the application can only be made “by two people”. The principle Convention right the father was invoking was the Article 8 right to a private and family life.

Previously, in Re X [2014] EWHC 3135, Munby P had used the principle of reading down to find that he could make a parental order notwithstanding the fact that the parties could not bring themselves within s.54(3) which required the application to be made with 6 months of the child’s birth. Other subsections have also been interpreted to allow parental orders to be made in situations where, on the literal wording of the Act, they could not be made.

This latest judgment distinguishes s.54(1) as going to the very nature of the legislation and clearly reflecting the intention of Government having given the issue due consideration. Munby P therefore concluded that he could not interpret s.54(1) to extend to applications made by a single person. Particular weight was given to the fact that the issue had been debated by Parliament and rejected in the lead up to both HFEA 2008 and its predecessor the HFEA 1990 and extracts from Hansard were quoted in the judgment. No such debate was had in respect of the requirement for the application to be made within 6 months the absence of which was relevant to the decision made in Re X.

You can read more about statutory interpretation and the decision in Re X here.

Time for Change: What should Re X mean for surrogacy law in the UK?

Kalmatsuy/Shutterstock.com

Statutory interpretation plays a fundamental part in our legal system. Bills are drafted and debated in Parliament which then votes on what the law will be and those bills eventually become statutes when Royal assent is given. These statutes, once in force, are then interpreted and applied by the judiciary in accordance with established rules in order to give effect to what Parliament intended. This is not always a straight forward exercise as statutes can be ambiguous or fail to account for unforeseen situations. Occasionally, a statute simply cannot be interpreted in any sensible way. This was the conclusion of the President of the Family Division, Sir James Munby, when considering the provisions of the Human Fertilisation and Embryology Act 2008 in the case of Re X (A Child)(Surrogacy: Time Limit) [2014] EWHC 3135.

The case considered an application for a ‘parental order’ made by a couple who had entered into a surrogacy arrangement with a woman in India. When the child was born, in accordance with the law (specifically ss. 33 & 35 of the HFEA 2008), the surrogate and her husband, not the commissioning couple, were the legal parents of the child and the only people with parental responsibility. In any case involving a surrogate, an order is required to extinguish the parental status of the surrogate parents and give it to the commissioning couple. If this is not done, then the legal status of the child does not change.

From 2013 to 2014 there were 201 applications for parental orders in the UK (a figure which is increasing) but it is estimated that thousands of surrogacy arrangements are entered into by UK couples every year. There must therefore be thousands of children being raised by couples who think they are the child’s legal parents, but in reality, they are not. Mrs Justice Theis called this a “legal time bomb” in her address to the Surrogacy Symposium in London earlier this year as it could cause significant problems in the future. For example, the commissioning couple would have no right to apply for a passport for the child or an inheritance to the child might fail. 

The procedure for making an application for a parental order is set out in s. 54 of the HFEA 2008 and includes various conditions which must be met if the parental order is to be granted. One of these conditions is set out in s.54(3) which states:

 “…the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

On the face of it, this seems to be an unequivocal piece of drafting leading to the simple conclusion that if an application was made after the 6 month deadline a parental order cannot be made. This had been the accepted position prior to Re X with those who miss the deadline having to resort to adoption orders to regularise their relationship with their child. Adoption orders are considered less favourable than parental orders as they do not allow for a new birth certificate to be issued. Munby, however, disagreed with the accepted position and found that he did have power to make a parental order notwithstanding the fact that the application had been made over two years after the birth of the child in question.

In reaching this conclusion, Munby considered s.54(3) in light of the rules of statutory interpretation developed through case law going back to 1877 as well as the European Convention on Human Rights (ECHR) and the welfare of the child in question. He gave weight to the fact that the issue was one of fundamental importance to the child’s identity which would have profound consequences for the rest of the child’s life and that the reason for the delay was that the commissioning parents were unaware of the need to make the application despite their best efforts to research the matter in advance. He also noted that there was no guidance to be found as to why Parliament had included the 6 month rule in the first place but concluded that Parliament would have intended a ‘sensible result’. At paragraph 55, he said:

“Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical.”

Munby was satisfied that he could make the parental order notwithstanding the fact it was made after the 6 month deadline. He did so initially based solely on the authorities of statutory interpretation but went on to say that he would have come to the same conclusion with reference to the ECHR as the statue required ‘reading down’ to ensure that its terms were interpreted in such a way as to protect Convention rights. In Re X, the Article 8 right to family life of both the parents and the child was considered.

The concept of ‘reading down’ comes from the UK Supreme Court case of Pomiechowskiv District Court of Legnica, Poland and another [2012] UKSC 20. It was considered again in Adesina v Nursing and Midwifery Council [2013] EWCA Civ818, a case which considered whether the rejection of an appeal filed a few days after the time limit breached the Article 6 right to a fair trial. In that case ‘reading down' was described as:

“…leaving some wiggle-room, notwithstanding the apparently absolute nature of the time limit.”

Interestingly, the finding in Adesina was that, whilst there could be some wiggle room, a few days in the context of that particular case was too long to enable the court to apply it and the appeal failed.  Munby distinguished Re X, where the application was made years after the time limit, on the basis it was necessary to protect the rights of the child who was in no way responsible for the delay but who would be the one to suffer the consequences for the rest of its life.

Finally, Munby considered the welfare of the child and concluded that making the parental order was unquestionably in its best interests and so could be justified on that basis as well.

It should be noted that other conditions of s.54 were considered, including whether the child had his ‘home’ with ‘both’ of the commissioning parents in accordance s.54(4) notwithstanding the fact that they had separated, and whether payments other than ‘reasonably incurred expenses’ had been made in breach of s.54(8). It is, however, the analysis of the 6 month rule in s.54(3) which arguably presents the most extreme example of judicial interpretation being stretched to its limits.

The decision in Re X could be hugely significant as there are undoubtedly many couples who were unaware they had to make an application for a parental order following a surrogacy arrangement but who have now missed the 6 month window. There have already been several cases since Re X in which applications for a parental order made after the 6 month deadline have been granted including A and B (No.2 Parental Order) [2015] EWHC 2080 (Fam) and Re A and B (Children) (Surrogacy: Parental Orders: Time Limits) [2015] EWHC 911.  This relaxing of the rules may go some way to diffusing the ‘legal time bomb’ referred to by Theis J but are we missing the bigger picture?

The law governing surrogacy arrangements in England & Wales has been the subject of an increasing amount of debate in recent years and has been described by some leading experts (including the barrister who represented the child in Re X) as “woefully inadequate”. A candid analysis of Munby’s conclusions in Re X reveals s.54(3) of the HFEA 2008 to be a nonsensical piece of legislation which is incompatible with the ECHR and contrary to a child’s welfare. Surely the logical conclusion here is that the law needs to change, something which can only be done by Parliament. Yet does this type of extreme judicial interpretation not only blur the line between the legislature and the judiciary but also accommodate the problem rather than acting as a catalyst for much needed change?

When balancing the rules of statutory interpretation against the fundamental and lifelong relationship between a child and its parents, Re X confirms that the welfare of the child will be paramount. This will almost invariably lead to parental orders being made in such situations. But surely that conclusion, however justified, should not detract from the wider significance of the case in highlighting the fact that the law governing surrogacy in the UK is in desperate need of reform?

This blog was created to encourage debate and comments are therefore welcome.
AN UPDATE ON THIS POST CAN BE FOUND HERE.