Talking Family Law - The Resolution Podcast (Resolution)

In this episode we are joined by Nicholas Bennett (29 Bedford Row), and Connie Atkinson (Kingsley Napley) who are both experts and enjoy pre-nuptial work including drafting, supporting or challenging pre-nups in Court.

Any discussion of pre-nups of course starts with Radmacher v Granatino [2010] UKSC 42, but we swiftly move on to Crossley applications (an application to the Court that the process of disclosure should be truncated because of the existence of the pre-nup) pursuant to Crossley v Crossley [2007] EWCA Civ 1491https://www.bailii.org/ew/cases/EWCA/Civ/2007/1491.html.  It is ‘tempting but risky’ was the conclusion, so it is only prudent when the pre-nup is a knock out blow.

We discuss the three essential procedural points that the Court is looking for before giving weight to the agreement – no unfair pressure, financial disclosure and independent legal advice.  We touch on the suggestion that an agreement has to be signed 28 days before the wedding and its relevance to giving time and space to understand and reflect on the proposed agreement and advice being given. We then turn to duress, fraud and misrepresentation and whether they are vitiating factors and what you would take into account when evaluating their impact on the agreement.  Connie refers us to the case of Traharne v Limb [2022] EWFC 27 (31 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/27.html  and AD v BD [2020] EWHC 857 (Fam) (08 April 2020) https://www.bailii.org/ew/cases/EWHC/Fam/2020/857.html.

Nick discusses whether it is possible to entirely exclude what would otherwise be matrimonial property in a pre-nup, and refers to  Brack v Brack [2020] EWHC 2142 (Fam) (29 July 2020);  https://www.bailii.org/ew/cases/EWHC/Fam/2020/2142.html.  

Connie discusses whether a pre-nup meets needs. She refers us to Ipekçi v McConnell [2019] EWFC 19 (04 April 2019);https://www.bailii.org/ew/cases/EWFC/HCJ/2019/19.html, and Cummings v Fawn (Rev1) [2023] EWHC 830 (Fam) (14 April 2023) https://www.bailii.org/ew/cases/EWHC/Fam/2023/830.html.  

Nick mentions HD v WB [2023] EWFC 2 (13 January 2023) - https://www.bailii.org/ew/cases/EWFC/HCJ/2023/2.html

We also discuss international agreements, and marriage contracts, including CMX v EJX (French Marriage Contract) [2022] EWFC 136; https://caselaw.nationalarchives.gov.uk/ewfc/2022/136

Hosted by: Anita Mehta and Simon Blain.

Guests: 

• Jo Miles (Reader in Family Law & Policy, Director of Studies and Fellow in Law, Trinity College, University of Cambridge)
• Lucia Clark (Partner, Morton Fraser LLP, Edinburgh) 
• Graeme Fraser (Chair, Cohabitation Committee and Partner, OGR Stock Denton) 

They discuss the case for cohabitation law reform in the light of experiences north and south of the border.

Further information and resources

Cohabitation Agreements:
https://resolution.org.uk/publications-books/cohabitation-agreements-online-and-print/

How to draft a cohabitation agreement:
https://resolution.org.uk/learning-at-home/modern-families/drafting-cohabitation-agreements/

Cohabitation Claims - 2nd Edition:
https://resolution.org.uk/publications-books/cohabitation-claims-2nd-edition/

Webinar: Anglo-Scottish Separation – Cohabitation Law North and South of the Border
Includes: Kate Dowdalls QC, Scottish Law Commissioner and Professor Nicholas Hopkins, England and Wales Law Commissioner
https://resolution.org.uk/learning-at-home/

Running cohabitation claims with confidence:
Workshop with Rhys Taylor and Andrzej Bojarski
https://resolution.org.uk/running-cohabitation-claims-with-confidence/

Resolution Cohabitation Committee:
https://resolution.org.uk/committee/cohabitation-committee/

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone 

This month we take an in-depth look at mediation with Jo O’Sullivan (O’Sullivan Family Law), Dr Jon Symonds (University of Bristol) and Rachel Chisholm (The Mediation Space, 4PB).

In November 2022, Dr Symonds with his colleagues Emma Dermott, Emma Hitchings, Eleanor Staples, and Heather Ottaway from Bristol University published research with the Nuffield Family Justice Observatory, called Separating families: Experiences of separation and support:
https://www.nuffieldfjo.org.uk/resource/separating-families-experiences-of-separation-and-support

Jon tells us about this research and how they looked at 42 people’s experiences of separation.  Eight participants in the study had been to mediation and told the researchers about their experiences.  Some participants said they had appreciated the information and signposting, but another said they had found it frustrating because the mediator had not told their ex-partner they were being unrealistic (and when the case did go to Court, the Court also found those requests unrealistic) and another had found it distressing because the mediator had been unable to manage the power imbalance.  In this study, all of the participants had tried to avoid going to Court, and had only used it as a last resort. 

We all agree that mediation is the gold standard for resolving issues about how to care for children.  We go on to talk about whether mediation works when there is a huge power imbalance between the parties, and whether there has been sufficient screening for domestic abuse in the past.  Jo talks about  the importance of having an initial appointment with each party separately, and whether that should be a mandatory part of mediation.  We discuss whether cases with allegations of domestic abuse should be automatically exempt from mediation.  Rachel reminds us of the importance of ‘do not harm’.

Jo shares some insights from her book ‘(Almost) anything but the family court’ https://www.familyseparation.shop/

All three of our guests talk about how the timing of mediation is key – both in terms of where the parties are in terms of their separation, and where they are in terms of proceedings.  Whilst acknowledging there can be difficulty with identifying when parties are emotionally ready, and what to do if they are ready at different time. 

We conclude with some thoughts for the future, including whether Court ordered mediation could work, the ability to have Early Neutral Evaluations provided to parties for mediation, and whether some of the rules and regulations around mediation should be lifted. 

About this episode

Hosted by: Annie Boxer and Lauren Guiler

Guests: Matthew Richardson and Trevor Sterling 

This is the second Resolution podcast episode of 2025 and it is a special YRes takeover featuring YRes National Committee members, Annie Boxer (Solicitor at the International Family Law Group LLP) and Lauren Guiler (Associate at Birketts). However, this episode can of course also be enjoyed by more senior Resolution members. 

We are hot off the back of the great success that was the YRes National Conference in November 2024 and there were some hugely interesting and engaging sessions that touched on topics such as wellbeing, mistakes, and career progression. The National YRes Committee thought about how we could we spread these conversations wider and we were kindly trusted by Anita Mehta and Simon Blain to host this podcast episode. 

Annie and Lauren are joined by Matthew Richardson (Barrister at Coram Chambers) and Trevor Sterling (Senior Partner at Moore Barlow). In addition to being financial remedy practitioner, a mediator and a private FDR adjudicator Matthew has taken a leading role in developing and implementing his chambers’ wellbeing programme. Matthew was named as the “Wellbeing Champion” at the Resolution awards in 2023. Whilst Trevor is not a family lawyer, his work as head of the major trauma team means that he is regularly exposed to extreme client situations and helping those most in need. Trevor has an extraordinary passion for helping the next generation and creating a movement of “ladder builders”. 

The topics discussed in this episode include law firm culture and wellbeing, mistakes made early in careers and lessons learned, mentorship and guidance, and diversity and inclusion. Annie and Lauren start the episode with an icebreaker by asking Matthew and Trevor to share and reflect on a mistake they made early on in their careers. They then delve into other topical discussions and Matthew and Trevor provide practical guidance along the way. 

Resolution offers a 1-2-1 mentoring service and if you are interested in this service as a mentee or a mentor, please follow the below link. 

https://resolution.org.uk/professional-development/resolution-121-mentoring-programme/ 

Annie and Lauren hope you enjoy listening to this episode as much as they did recording it with their special guests. 

Matthew’s social media

https://www.linkedin.com/in/mrichardsonlaw/ 

Trevor’s social media

https://www.linkedin.com/in/dr-trevor-d-sterling-hon-causa-33841320/

In this episode, host Simon Blain and Anita Mehta talk to Brie Stevens-Hoare QC and Charlotte John, both at Gatehouse Chambers, about the intersection between civil and family proceedings.

In particular, they consider trusts of land and proprietary estoppel cases.

Resources

Pickering v Hughes & Ors [2021] EWHC 1672 (Ch)
https://www.bailii.org/ew/cases/EWHC/Ch/2021/1672.html

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone

In this episode we discuss the burgeoning jurisprudence around the impact of economic abuse on financial remedy cases with Olivia Piercy (Partner at Hunters Law) and Michael Horton KC (Coram Chambers).

Olivia and Michael discuss the following cases in the episode:  

Traharne v Limb [2022] EWFC 27 

DP v EP (Conduct: Economic Abuse; Needs) [2023] EWFC 6 

DN V UD (Schedule 1, Children Act 1989; Capital Provision) [2021] 2 FLR 497 

Hosted by: Anita Mehta and Simon Blain.

Guests: 

• Paul Cobley (Oak Barn Financial Planning)
• George Mathieson (Mathieson Consulting)
• Rhys Taylor (The 36 Group)

They discuss the work they are involved in to produce better guidance both for practitioners and the public on the issue of pensions on divorce.

Further information and resources

https://www.nuffieldfoundation.org/project/pensions-on-divorce-interdisciplinary-working-group
https://www.nuffieldfoundation.org/sites/default/files/files/Guide_To_The_Treatment_of_Pensions_on_Divorce-Digital(1).pdf
https://www.advicenow.org.uk/pensions

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone 

‘Finding the middle ground’ - in this episode Dr Mark Berelowitz (Consultant Child and Adolescent Psychiatrist) and Alex Verdan KC discuss how to manage parental alienation and high conflict cases.  With Resolutions thanks to Louise Tickle for a correction in the law from the first episode. 

This month we are joined by Samantha Hillas KC (St John’s Buildings), Geoffrey Kingscote KC (1 Hare Court) and Olivia Piercy (Hunters) to discuss domestic abuse in financial remedy proceedings.  When it will impact on the outcome, and how we can make the process of agreeing financial arrangements, or an order, safer for victim-survivors. 

Geoffrey explains the law in relation to s25(g), the test in Tsvetkov v Khayrova [2023] EWFC 130  (04 August 2023), and how Recorder Reardon approached the quantification following findings of conduct in DP v EP (Conduct: Economic Abuse: Needs) [2023] EWFC 6. Geoffrey explains that conduct is restricted to a very small number of possible cases as a result of the test of exceptionality. Sam makes the point that the assessment of needs is likely to be different if need arise from domestic abuse or for another reason. Olivia draws our attention to the Home Office research about the financial impact of domestic abuse: 

https://www.womensaid.org.uk/wp-content/uploads/2019/12/Economics-of-Abuse-Report-2019.pdf

We then go on to consider how proceedings could be reformed so as not to create more litigation, whilst also making the process safer and fairer for victim-survivors.  We agree that the current statutory test for Legal Services Payments Orders is not fit for purpose, and discuss other ideas for reform including re-drafting the Form E. 

Have you read Resolution’s report into the interplay between Domestic Abuse and the treatment of finances on separation and divorce?  If not, you should read this groundbreaking research. 

https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf

Please let Resolution have your views on communications@resolution.org.uk with a clear subject line ‘Domestic abuse in Financial Remedy’.

We all agree that costs applications, and costs orders, are becoming more prevalent in Children Act as well as financial remedy proceedings.  Public policy certainly seems to favour the use of costs orders as a way of ensuring that litigation is proportionate and reasonable.   

In this episode we are assisted by HHJ Reardon (who sits in East London Family Court and the CFC hearing both Children Act and Financial Remedy cases) and Laura Moys (barrister at 1 KBW) talk us through costs orders in respect of Children Act and Financial Remedy cases.  

We discuss LSPO including: 

·      HHJ Reardon reminds us (in the context of ever increasing interest rates) of the provision in Rubin V Rubin that: 

viii) If a litigation loan is offered at a very high rate of interest it would be unlikely to be reasonable to expect the applicant to take it unless the respondent offered an undertaking to meet that interest, if the court later considered it just so to order.

·      What happens in second LSPO applications; and 

·      LSPO in Children Act proceedings, including the need for equality of arms in accordance with BC v DE (Rev 1) [2016] EWHC 1806 (Fam) (21 July 2016).

We look at Costs orders in Children Act cases, and are reminded of the dicta in Re S (a Child), Re [2015] UKSC 20 (25 March 2015).  They discuss when a Court may order costs after a fact-finding hearings and refer to Re T (Children), Re [2012] UKSC 36 (25 July 2012). 

Finally we discuss costs in Financial remedy proceedings, including:

·      the Court’s approach to making orders that cover legal costs in needs cases.  Laura refers us to Azarmi-Movafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184 (30 July 2021);

·      When we should be dealing with costs arguments; and 

·      General guidance about Wwhat is and is not reasonable, in order to consider what sort of positions may result in costs orders;

·      We are reminded that the Court can make costs awards where a party has refused to negotiate; JB v DB [2020] EWHC 2301 (Fam) (23 July 2020);

We are joined by Charles Hale KC (4PB) and Tammy Knox (Pennington Manches Cooper) to discuss relocation.

Charles and Tammy consider the law and principles applied in these cases.  They point out that the law is the same for internal and external relocation cases, as set out in Re C (Internal Relocation), Re [2015] EWCA Civ 1305, where Charles and PMC were successful in the Court of Appeal:

https://www.bailii.org/ew/cases/EWCA/Civ/2015/1305.html

However, they both agree that the welfare evaluation can be different.

Charles and Tammy discuss the impact of domestic abuse and alienating behaviours.  They discuss C, Re (Parental Alienation: Permanent Removal to Germany) [2023] EWHC 1955:

https://www.bailii.org/ew/cases/EWHC/Fam/2023/1955.html

They make the point that practitioners should not shy away from dealing with financial plans, as cases can be made, or challenged on whether there is sufficient finance available.

Charles and Tammy caution us to make sure the rules around mediation are really clear, particularly if the mediation is abroad so that clients know what is without prejudice

Charles mentions research by Professor Marilyn Freeman: 

https://www.qmul.ac.uk/clpn/members/f/profiles/freeman.html#:~:text=Marilyn%20Freeman%20is%20widely%20acknowledged,in%20her%20areas%20of%20expertise.

This month we are joined by Hilary Woodward (Honorary Senior Research Fellow with Bristol School of Law), Paul Cobley (Oak Barn Financial Planning) and Rhys Taylor (36 Group) to discuss PAG2: https://www.nuffieldfoundation.org/wp-content/uploads/2023/A-guide-to-the-treatment-of-pensions-on-divorce-2nd-edition.pdf

Hilary tells us about the changes in PAG2 and mentions the guide to the changes which is available on the webpage: 

https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/The-PAG2-Guide-%E2%80%93-What-Has-Changed-1.pdf

The changes include the Divorce, Dissolution and Separation Act 2020, apportionment, short-marriages, lifetime allowance, Galbraith tables, and where there is an age-gap between the parties.

Rhys explains the Galbraith tables – which is an attempt to provide the ‘true value’, or ‘market value’ of a defined benefit pension (not defined contribution schemes) for the purpose of divorce other than by use of the CE.  They provide a multiplier according to the person’s age and benefit to use against the income stream for a pension.  PAG2 says they are useful starting point, but remember they are a tool not a rule, which can be used when considering off-setting without the assistance of a PODE.  They have not had high level judicial consideration but they do appear in At A Glance.  Remember the current tables were drafted in early 2022 so just as the war in Ukraine started, and prior to Liz Truss’ terms as Prime Minister so there have been lots of changes in the bond markets since then.  The tables will be updated in the next At A Glance.  Paul reminds us that most of the time we are dealing with deferred pension scheme benefits i.e. where an employee has a pension scheme benefit from a previous employer.  It is therefore really important that you obtain the re-valued income to today’s date and not what the income would have been on date the person left the company before applying the multiplier. 

We discuss off-setting, and that the key thing to ask yourself is do you have a broad handle on what the gross value of the pension is worth before you start trading it with other assets. Followed by apportionment - when is it appropriate, including in short marriage cases.  Importantly PAG2 stresses that the relevant date, when apportionment is appropriate, is when seamless cohabitation prior to marriage commences – therefore we all should stop asking seeking the additional pension calculation from when the actual marriage starts. 

We discuss that the Lifetime Allowance is being abolished by the Finance Act (No. 2) 2023:

https://www.gov.uk/government/publications/abolition-of-the-lifetime-allowance-from-6-april-2024/abolition-of-the-lifetime-allowance-lta#:~:text=At%20Spring%20Budget%202023%2C%20the,work%20to%20abolish%20the%20LTA%20.

The lifetime allowance tax charge has in effect already been abolished, and from the 6th April 2024 the lifetime allowance will be abolished.  However, it will be replaced by the lump sum allowance, and the lump sum and death benefit allowance in the future.  The complexity comes that if a person had lifetime allowance protection before 6th April 2024 that allows a higher lump sum than is available on the standard lump sum allowance basisunder the new Act, they would still be able to benefit from the previous protections. Therefore, you must still find out whether the parties have a lifetime allowance protection. 

There are four new suggestions for dealing with when there is an age gap between the parties, and one party is receiving their pension, and the other person needs the pension to meet their needs but is too young to receive it currently.  PAG2 now also suggests consideration of judicial separation (not divorce), spousal maintenance, an increased percentage PSO or consecutive orders (pension attachment to pension sharing orders).  Also deferred pension sharing orders are technically possible but inherently risky. 

We discuss the problem with ‘moving target syndrome’ i.e. that the value of the pension at the time of the transfer is likely to be different to the value it was at the time of reports/ trial.  This is particularly an issue with Defined Benefit Schemes, although it affects Defined Contribution schemes too.  Unfortunately, in the last two years the values have often been a lot less at implementation (where in the past they have been a lot higher).  It is important that we advise clients of these risks. 

Hilary, Paul and Rhys endorse the Survival Guide to Pensions on Divorce: - https://www.advicenow.org.uk/guides/survival-guide-pensions-divorce

For lay clients and litigants in person.  It is too is being updated, and is due to be released in May 2024. 

Finally we say goodbye to Hilary.  Do read Rhys’ article about Hilary in the financial remedy journal at: - https://financialremediesjournal.com/content/interview-with-hilary-woodward.871526729c204f91bd4346757b9895b2.htm

We are joined by Joseph O’Brien of St Johns Buildings and Laura Flanagan of Burgess Mee to discuss how to manage cases that involve capacity issues.

Laura has recently co-authored an article with Maisie Lockyer on this issue:

https://financialremediesjournal.com/content/family-proceedings-and-litigation-capacity.ec7c993244094031bbcb75338ef9c29e.htm

Unfortunately, court commitments meant Maisie was unable to join us for the recording.

Joe tells us that the Mental Capacity Act 2005 is the basis on which all capacity assessments should be undertaken. He reminds us that there is a presumption of capacity, but the presumption of capacity can be rebutted. The test is set out in s.2(1):

2. People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Laura directs us to the Official Solicitor’s website, which includes guidance notes and the pro forma for the Certificate as to Capacity: 

https://assets.publishing.service.gov.uk/media/63e3b03ad3bf7f172ccae151/capacity-to-conduct-proceedings-certificate.pdf

Joe reminds us that capacity involves a two-stage test: the first stage considers whether the person is unable to make the decision, and the second examines whether that inability is caused by an impairment of the mind or brain, as per A Local Authority v JB (Rev1) [2021] UKSC 52 

https://www.bailii.org/uk/cases/UKSC/2021/52.html

We also discuss what should happen when the protected parties have fluctuating capacity. Laura and Joe remind us that you need to make an application to terminate the appointment of the litigation friend if your client regains capacity, but you must apply for the litigation friend to be reappointed if they lose capacity again.

Finally, we discuss how the Court makes the decision about whether the protected person should give evidence. Joe reminds us of the practice direction on participation of vulnerable witnesses 

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence#1

Hosted by: Anita Mehta and Simon Blain.

Guests: Pauline Fowler (Chair, Resolution's Pensions Tax and Financial Remedy Committee), Daniel Eames (Chair, Resolution's International Committee) and Tim Amos QC about the key implications for family lawyers of Brexit.

They discuss specifically: issues regarding divorce jurisdiction, forum and recognition now the UK has left the European Union.

Further information

Resolution's International Committee have recorded two webinar updates that consider the key issues for members as of December 2020.
https://resolution.org.uk/brexit-briefings/dec-2020/

Guide to International Family Law
This was updated in January 2021 to take account of the changes with Brexit:
https://resolution.org.uk/guide-to-international-family-law/

More information on this Resolution podcast:
https://resolution.org.uk/podcast/

Music credit: Hopefully Flies - Magnus Moone 

Listen to Katharine Landells (solicitor at Withers), Antonia Mee (solicitor at Burgess Mee) and Sarah Phipps (barrister at QEB) make the case for private FDRs, explain the project to ensure that women are also being put forward as private FDR evaluators and discuss what is key to having a successful private FDR.

Herewith the best practice guidelines about selecting your FDR evaluator from 5th October 2021.  In effect,  regardless of the size of the list of proposed evaluators you are invited to include one from each gender.  The invitation is still in place today, and is supported by Resolution.  

If and when this guidance is updated we will add it to these Notes. 

Listen to Andrzej Bojarski (family barrister) and James Brockhurst (private client lawyer) discuss crypto-assets, including what they are, essential terms, tracing, taxation and division.  This episode includes all the information required to understand this form of asset. 

Hosted by: Anita Mehta and Simon Blain.

Guests: 

• Prof Jo Delahunty QC

They discuss her work promoting diversity in the legal profession, her thoughts on the Court of Appeal case of Re H-N and on dealing with cases of abuse within the legal profession.

Further information and resources

https://www.gresham.ac.uk/professors-and-speakers/professor-jo-delahunty-qc
https://bridgingthebar.org
https://www.speakersforschools.org

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone 

Listen to Marcie Shaoul (The Co-Parent Way), Claire Colbert (Family Mediation and Mentoring) and Adèle Ballantyne (Eleda Consultancy Limited) from the Parenting After Parting Committee outline their Parenting Through Separation Guide.  This Guide is available to everyone for free at https://resolution.org.uk/wp-content/uploads/2021/05/Parenting-through-separation-guide.pdf, and is written for anyone who has children, and who has separated, or is thinking about separating. 

Our hosts, Anita Mehta and Simon Blain, discuss what to do when a reporter turns up in your Court and the importance of transparency with Joshua Rozenberg KC (Hon) and Lucy Reed KC (St John’s Chambers, Chair of The Transparency Project). 

Joshua refers us to the lessons learnt in Tickle v Father & Ors [2023] EWHC 2446 (Fam) (05 October 2023). 

https://www.bailii.org/ew/cases/EWHC/Fam/2023/2446.html

Our guests discuss the benefits both of judgments being published and reporters having access to write up what happens.  Joshua talks about the importance of the public knowing how the state will resolve their private disputes if they are unable to do so.  He makes the point that the public are only going to know about the importance of Family Jusctice being properly resourced if the press are able to report about what happens.  They both reiterate that scrutiny of the Court is healthy.

The message that Joshua and Lucy give our audience is that there is nothing unlawful or inappropriate about a party or a lawyer asking a reporter if they would like to observe a case.  This is not a breach of s.12 of the Administration of Justice Act 1960.  This has been specifically endorsed by the senior judges responsible for the Reporting Pilot, because unless reporters are told about interesting cases they will not come to Court.    They make it clear that it is not appropriate for the Judge or the other participants to cross-examine reporters about who told them about the hearing, and the reporter does not need to make an application to attend the hearing. 

Lucy refers us to the Transparency Project’s guidance notes for help if a reporter turns up in a case you are due to appear in https://transparencyproject.org.uk/updated-guidance-what-to-do-if-a-reporter-attends-or-wants-to-attend-your-hearing-pilot-and-non-pilot-court-versions/.  Lucy points out, it is not for the reporter/ blogger to make an application to make an application to be present in Court, as there is a limited basis for a Court to exclude a reporter, which is found in FPR 27.11 (3). 

(3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that— 

(a)this is necessary—

(i)in the interests of any child concerned in, or connected with, the proceedings;

(ii)for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii)for the orderly conduct of the proceedings; or

(b)justice will otherwise be impeded or prejudiced.
 

If the Court is considering relaxing reporting restrictions it will need to undertake a balancing exercise to weigh the respective weight of article 8 and article 10, as set out by Lord Steyn in Re S (a child), Re [2004] UKHL 47 (28 October 2004).

https://www.bailii.org/uk/cases/UKHL/2004/47.html

‘The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present

purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.’

If you would like to hear Joshua’s new podcast, you can find it on rozenberg.substack.com

If you are a lawyer considering becoming a legal blogger yourself (or a journalist interested in dipping your toe in reporting the family court), Lucy encourages you to get in touch with the Transparency Project:  trustees@transparencyproject.org.uk. You can find out more about legal blogging at www.transparencyproject.org.uk/legalbloggers

Listen to Michael Edwards (a barrister at 4PB), Amy Rowe (a partner at Dawson Cornwell) and Roz Osbourne (the Director of GlobalARRK which is a charity to support the stuck parent and children) discuss the law in respect of child abduction.  Amy and Michael take us through recent case law in respect of the defences to return orders under the Hague Convention 1980, and the use of inherent jurisdiction, they share practical and specialist insights about how to approach these summary proceedings.  

 In the discussion they refer to: 

Re B (Children) (Abduction: Consent: Oral Evidence) (Article 13(b)) [2022] EWCA Civ 1171 

Re NY (A Child) [2019] UKSC 49 

G v G [2020] UKSC 9

Roz invites us to look at abduction cases from a different angle and the impact on the ’stuck parent’.  GlobalARRK supports the stuck parent and campaigns for change to the current law and procedure.  Follow the link to read their Principles for Change document 

https://www.globalarrk.org/policies-principles/

Note, just before the end Michael says ‘abduction’ when he means and is talking about ‘asylum’ - this was just a slip of the tongue. 

This episode is a strong start to the year.  It is essential listening for all professionals working with separating families.  We are joined by Jenny Beck KC (Beck Fitzgerald) , Dr Jamie Craig (Consultant Clinical Psychologist) and Zoe Fleetwood (Mills & Reeve) to discuss children that are reluctant, resistant or refusing to see the other parent, as well as parents engaging in psychological manipulation of their children by alienating behaviour.

We examine the Family Justice Council guidance in this area. The report is both erudite and succient at only 30 pages long and should be read by everyone involved in this field:

https://www.judiciary.uk/wp-content/uploads/2024/12/Family-Justice-Council-Guidance-on-responding-to-allegations-of-alienating-behaviour-2024-1-1.pdf

Zoe reminds of what has happened in the last 10 years to lead us here from PD12J, to the presumption in favour of a parent’s involvement which was inserted into the Children Act in 2014, LASPO which removed legal aid, the Domestic Abuse Act, Re HN , RE C [2023] EWHC 345 (Fam), Re S (Parental Alienation: Cult) : [2020] EWCA Civ 568 https://www.judiciary.uk/wp-content/uploads/2020/04/re-s-a-child-judgment290420.pdf, the Harm report from 2020, and the Domestic Commissioner’s Abuse Commissioners report of 2023https://domesticabusecommissioner.uk/wp-content/uploads/2023/07/DAC_Family-Court-Report-_2023_Digital.pdf. Zoe concludes with the case of Re (Parental Alienation: Factual Findings) [2024] EWFC 75 which maybe an example of the Court starting to change coursehttps://www.bailii.org/ew/cases/EWFC/OJ/2024/75.html

Jenny reminds us that there are three elements that a Court needs to find before concluding there have been alienating behaviours:

1. There must actually be a child who is reluctant, refusing or resistant to engage in a relationship with a parent;
2. That reluctant, refusal or resistant must be as a result of something other than appropriate justified rejection, or caused by alignment, affinity or attachment.
3. It has to be as a result of other behaviours that has impacted the child and that has led to the child’s reluctance, refusal or resistance.

Jamie points out that the child’s behaviour is not evidence of the adult’s behaviour.  Nor is the absence of a reason for a child not to want to see the other parent proof that a child is alienating.

The guidance reminds us that there is not a equivalence between domestic abuse and parental alienation.  The guidance also reminds us about the importance of the choosing appropriately qualified experts in complex family situations.

Jamie warns us of the dangers of pseudo-science and the psychobabble.  He cautions against jumping to a conclusion that a child has been alienated if they are reluctant, refusing or resistant to the other parent.  For example, a child may just be exhibiting attachment response, or a child demonstrating an affinity for a particular parent, or they may have come to their own decision about how they have understood the situation.

All of this is not to say that there are never occasions when parents have psychologically manipulated their children. We know that they do.  Indeed, sometimes perpetrators of abuse psychologically manipulate children to believe the other parent is a danger.  The point is that the burden of proof should not be reversed, and the Court approaching the case as if a parent has to prove they are not engaging in alienating behaviours.

Zoe links back to when we last discussed this topic from March 2022; Finding the Middle Ground; Parental alienation and High conflict cases, with Dr Mark Berelowitz and Alex Verdan KC.https://resolution.org.uk/podcast/resolution-podcast-season-1/

Finally we ask our guests to wrestle with the question of what professionals should do if they have been involved in a case where the Court has relied on advice from an expert who lacked the appropriate qualifications, or has made recommendations based on what we do is pseudo-science.  Jenny suggests that if there has been an error in process then the professional or the Court may now need to engage with what is in the best interest of the child, therefore an appeal out of time maybe an appropriate step in some cases. 

Please note that Jenny and Jamie were the Chairs of the Family Justice Council working group that wrote the guidance.  However, they appear on this episode in their personal capacity and were not speaking on behalf of the Council.

In this episode we are joined by  HHJ Roberts who is the Designated Family Judge at the Central Family Court, and the National Lead Judge for Divorce.  Before joining the Bench she was a solicitor, and ran the family department at her firm for 10 years, and HHJ Hess who is the Lead Judge of the London Financial Remedy Court, and the Deputy National Lead Judge of the Financial Remedies Court.  He is also Co-Chair of the Pension Advisory Group.  Before joining the Bench he practiced at the Bar for 25 years.

They join us for a fascination and wide-ranging discussion about the future for remote hearings, vulnerable witnesses, crypto-assets, the benefit of the change to divorce law, and why we should consider applying for judicial appointment. 

This month we are joined by Natasha Shotunde (Garden Court Chambers), Olamide Ogunrinade (Garden Court Chambers) and Donna Goodsell (Goodsells Family Law) to celebrate Black History Month.  Natasha and Olamide are members of the Black Barristers Network https://blackbarristersnetwork.org.uk.  Donna is one of the Co-Chairs of Resolution’s Equality & Diversity Committee. 

Natasha tells us about the last Race at the Bar report.

https://www.barcouncil.org.uk/resource/race-at-the-bar-report-2021.html

The statistics reveal a worrying lack of diversity in the Bar.  Natasha tells us that these figures are due to be updated soon. 

Donna explains that Resolution last surveyed its membership in 2019, which found that the membership was disproportionately white: 

https://resolution.org.uk/wp-content/uploads/2020/01/resolution-diversity-data-report.pdf

Resolution is currently conducting a survey to see whether these figures have improved. 

Donna tells us that the starting point into making Resolution more diverse has been to ensure that the Committees are more diverse. 

Olamide explains the research into the impact of race on outcomes in the Family Court. 

https://www.nuffieldfjo.org.uk/wp-content/uploads/2023/05/nfjo_briefing_paper_ethnicity_20230518_FINAL.pdf  

The research continues as to why outcomes are impacted by race. In the meantime, she draws are attention to the anti-racist practice statement produced by the Sussex Quality Circle: 

https://www.sussexfamilyjusticeboard.org.uk/wp-content/uploads/2023/08/Family-Court-anti-racist-practice-statement-Final-app-FJYPB-00.12.2022.docx

Natasha, Donna and Olamide leave us with an idea for one thing we can all do to make a difference today.  Olamide tells us to be curious.  If we are all curious about each other’s race, religions, and backgrounds we can create a different tomorrow.

In this episode, we are joined by Professor Jens Scherpe (Professor of Comparative Law at Aalborg University, and academic door tenant at QEB), and our very own Resolution Cohabitation Committee Chair, Graeme Fraser (Head of Family at William Sturges) to discuss what model of cohabitation law reform should be introduced in England & Wales.  

This is a seminal moment for Resolution.  It has been campaigning to achieve family law remedies for cohabitees almost since its inception in 1983, with it being high on its list of priorities since the mid-1990s. The new government has confirmed they are committed to cohabitation reform, so what shape should that take? 

What Resolution members know is that the general law is not good enough for families.  If you need convincing, Jens guides us to think - do you think cohabiting families are families? If yes, then you need family law remedies (rather than remedies for people with no connection because purpose of family law (unlike general law) is to address societal, financial and gender imbalances that arise from being a family.   

Which model would you support? 

1. Do you think, we should: 
2. Assimilate the law for cohabitees – so use the same framework that we do for married couples; OR have a
3. Difference model - so there is a clear difference between the remedy for a  cohabiting couple, or a married couple. 

With all family law remedies, you then need to decide are you: 

a.      Compensating a partner for the loss they have experienced generated by the relationship; OR 

b.      Sharing the fruits of the relationship both parties have participated in. 

Graeme and Jens explore the law for cohabitees in Scotland, Ireland and Australia to consider the pros and cons of each model.  We then put them on the spot to what they think we should do in England & Wales. 

In the conversation, Graeme refers us to the Law Commission report from 2007: 

https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2015/03/lc307_Cohabitation.pdf

And the Vision for Family Justice: https://resolution.org.uk/wp-content/uploads/2023/11/Resolution-Vision-for-Family-Justice-full-221123.pdf

If you would like to read more about this, then please do look at Jen’s books about comparative law:

• Jens M. Scherpe (ed.), European Family Law, Edard Elgar 2016 - European Family Law (e-elgar.com)
• Jens M. Scherpe/Andy Hayward (eds.), Future of Registered Partnerships – Family Recognition Beyond Marriage, Intersentia 2017 -  The Future of Registered Partnerships ~ Book ~ Larcier-Intersentia
• Jens M. Scherpe/Andy Hayward (eds.), De Facto Relationships – A Comparative Guide, Edward Elgar Publishing, forthcoming in 2025 in the following series: https://www.e-elgar.com/shop/gbp/book-series/law-academic/elgar-comparative-family-law-series.html

This month we are joined by Sarah Branson (Coram Chambers) and Professor James Coulson (Professor in Clinical Pharmacology and Toxicology at Cardiff University). 

We discuss the concern that over-reliance on the numbers generated in hair testing can lead to miscarriages of justice.  The issue is that the use of a standardised cut-off levels have a racial bias, because the dark melanin in the hair helps to incorporate the drugs in the hair so someone with black hair will have a much higher reading than someone with red or blond hair, even if they have used the same amount of drugs over the same period of time. 

Sarah recommends that from now on when hair testing is commissioned that it has to be instructed like other expert evidence – with a letter of instruction, there is a full forensic history.  Sarah has drafted a template LOI and order which you can access on the Coram website: https://www.coramchambers.co.uk/resources/hair-strand-testing-resources/

James makes the point that in other Courts (like to civil, criminal or coroners courts) it is unusual to have an analytical chemist commenting on the wider interpretation of the result.  James agrees that it is very important that evidence is not seen in isolation.  James takes us through the information that he would to see in these instructions in the future. 

Sarah reminds us that we should start thinking about this evidence as expert opinion evidence rather than elevating the presumptive weight that should be given to the evidence.  Sarah directs us to the judgment of Lord Peter Jackson in D, Re (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498 (10 May 2024)

https://www.bailii.org/ew/cases/EWCA/Civ/2024/498.html.  Sarah points out the numbers from a test is the science but what those numbers mean is just someone’s opinion like any other expert evidence. 

During the discussion, Sarah and James refer to: 

The incorporation of drugs into hair: relationship of hair color and melanin concentration to phencyclidine incorporation M H Slawson, D G Wilkins, D E Rollins J Anal Toxicol 1998 Oct 22.

The effect of hair color on the incorporation of codeine into human hair. Rollins DE, Wilkins DG, Krueger GG, Augsburger MP, Mizuno A, O’Neal C, Borges CR, Slawson MH.J Anal Toxicol. 2003 Nov-Dec;27(8):545–51. doi: 10.1093/jat/27.8.545.

Cuypers E, Flanagan RJ. The interpretation of hair analysis for drugs and drug metabolites. Clin Toxicol (Phila). 2018 Feb;56(2):90-100. 

Forensic Science Internation (2018)

In this episode we chat to Natasha Watson (Acting Head of Law at Brighton & Hove City Council),  Caroline Lynch (Principal Legal Advisor at Family Rights Group) and Hannah Markham KC (36 Family) who were all members of the Public Law Working Group which reported in March 2021:

https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf

This is a wide-ranging discussion about the issues facing the family justice system.  Natasha and Caroline discuss the importance of Courts and social workers drawing a distinction between parenting in poverty, and poverty.  Natasha draws our attention  Anti-Poverty Practice Statement developed by the Sussex Quality Circle

https://www.sussexfamilyjusticeboard.org.uk/sussex-fjb-bulletin/

They discuss whether 26 weeks is achievable, and whether it is even the right KPI in respect of case, the importance of Family Group Conferences and pre-proceedings work, and experts.  This includes reference to Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam)

https://www.judiciary.uk/wp-content/uploads/2023/02/Re-C-Parental-Alienation-judgment-220323.pdf

Finally they discuss the importance of the right support package for special guardians and the need for us all to be more familiar with the special guardianship guidance.  The Public Law Working Group Best practice Guidance in relation to Special Guardianship can be found here:

https://www.judiciary.uk/wp-content/uploads/2021/03/Special-guardianship-BPG-report_Clickable.pdf

This document produced by Family Rights Group sets out in detail the legal and practice framework relevant for financial support for special guardians:

https://frg.org.uk/wp-content/uploads/2021/09/SG-allowance-briefing.pdf

This month we talk to Professor Jane Monckton-Smith.  The Professor is a specialist in homicides that are preceded by domestic abuse and coercive control.  This is important for every single professional working in the family justice field because the Professor tells us that separation is the single biggest factor in homicide.

Coercive control is domestic abuse – it is not a facet of domestic abuse. It is a pattern of behaviour designed to trap someone in a relationship.  This can be violence/ stalking/ financial abuse/ psychological  etc.  We are reminded that it is the control, not the level of physical violence that is the metric for risk.  We discuss bi-lateral violence and how difficult that is for the Court to determine risk.  The Professor tells us that there maybe two people who are being violent, but only one of them is controlling; we need to identify that person.

The Professor also tells us about the eight stages on her timeline before fatal violence.  The Professor points out that anyone who is perpetrating coercive control, domestic abuse, or stalking, is somewhere on this timeline although that does not mean that it will always result in fatal violence.   However, she questions whether concepts like ‘low-level’ domestic abuse – sometimes used when there is limited physical violence - is a helpful approach.  The issue is not whether the victim-survivor has a broken bone, it is about the level the of control.

The Professor tells us how each stage on the timeline represents an escalation, and each of these stages can cause the victim-survivor serious harm.

The Professor also reminds us that not all disputes about children involve coercive control, but we need to identify the cases where the perpetrator is using the family justice system to continue their abuse.  We need to be alert to the fact that perpetrators are likely to be very at home amongst the fray of litigation.  Victim-survivors may find it easier to just agree with what the perpetrator wants, or could appear intractable, because they are determined not to have their children experience the thing that they have.

We also talk about how to approach initial advice, injunctions, Clare’s Law, whether there should be capacity for findings made in family cases to be shared with Police, when coercive controlling people have the capacity to change, what to look for in a perpetrator course, the use of coercive control experts, and so much more. 

If you would like to know more about the Professor’s work, she has written a book ‘In Control; Dangerous Relationships and How They End in Murder’.

In this episode, host Simon Blain talks to Rachel Spicer and James Pirrie about their approach to cases involving the Child Maintenance Service. 

Jurisdiction of the CMS

1) Geography: The parent with care and child must be based in the United Kingdom – as
must (with some extensions) the non-resident parent
2) Age and stage: Broadly, the CMS has jurisdiction until the 31st of August in the year that the child completes their A-levels after A-levels, for those young people going on to university
3) Parentage: Applications can only be made for a qualifying child (s3 CSA ’91) as regards
“a parent”, which (per s54) means any person who is in law the mother or father of the
child. Thus natural 19 or adoptive parents 20 are in whilst step-parents, even those granted
parental responsibility or the object of a residence / child arrangement order are not.
4) Separation: Whilst the courts can make orders anticipating the separation of the parties,
only if separation has taken place does the CMS become able to receive an application for
provision (and it must follow that until this point, the court has a free hand to make an
order). 
5) Order: Finally there is the question whether the court has made an order or not. If
the court made an order i) Prior to 3rd March 2003; or ii) on or after 3/3/2003 but within the
previous six months then such an order excludes the CMS from involvement.
 

Further information and resources

NACSA - https://www.nacsa.co.uk/
Child Support Handbook - https://cpag.org.uk/shop/cpag-titles/child-support-handbook-202122

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone

We could not have been more excited to have the opportunity to speak to Mr Justice Mostyn before he retires at the end of the month.  

We discuss Movers & Shakers – his highly successful podcast with five other Parkinson’s sufferers:

https://cureparkinsons.org.uk/2023/03/movers-shakers-six-familiar-faces-launch-podcast-about-living-with-parkinsons/ 

Plus his best case, and thoughts on transparency of course!   

The Judge clarifies that Hildebrand documents are admissible if relevant, but the case of Immerman deals with professional conduct around such documents. The Judge explains and justified the rates used for Duxbury, and invites Resolution to attend future meetings about the rates. 

Finally, for all Resolution members you will be pleased to hear that the Judge completely supports the proposition that there should be no difference between the Court’s powers if the parties are married or not. 

This episode gets better and better as the Judge goes on. 

During the discussion the Judge mentions: 

• RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – this is the case Mostyn J discussed being most proud of.

• Xanthopoulos v Rakshina [2022] EWFC 30 refers to the case of J v J [2014] EWHC 3654 (Fam)

• Evans v Evans [1990] 1 WLR 575, [1990] FLR 319

• James v Seymour [2023] EWHC 844 (Fam) (child support)

This is the final episode in Season 3 and we wanted to finish with a bang! Nicholas Allen KC (29 Bedford Row) and Michael Allum (The International Family Law Group LLP) join us to talk about applications pursuant to Schedule 1 of the Children Act 1989. 

Michael and Nick start by considering the line between payments that are properly for the benefit of the child and those which a court is likely to consider to be solely for the benefit of the parent (for example life insurance premiums or pension premiums).  Nick mentions the comments of Baroness Hale in a recent interview with Sam Hillas KC for the Financial Remedies Journal, where the Baroness says that Schedule 1 reminds her of the position before White v White for wives: https://financialremediesjournal.com/content/interview-with-baroness-hale.0a4bcf411d6346ba8dbdbdc4a9adb368.htm.  

They go on to examine the difference between Schedule 1 cases and Matrimonial Causes Act 1973 cases. They talk about how the resources of the receiving party, or their new partner, are unlikely to weigh in the balance in the same way as they do under the MCA.  Michael highlights that there are no sharing or compensation claims under Schedule 1. 

Michael tell us that to obtain provision after the child reaches their majority the Court is really considering whether there is a dependency, rather than a vulnerability.  Michael mentions UD v DN (Schedule 1, Children Act 1989; Capital Provision) [2022] 2 FLR 308 where the Court of Appeal allowed an appeal against Williams J’s long-term property order in the children’s favour.  He then talks about the exceptional case of TK v LK (Rev2) [2024] EWFC 71 (02 April 2024), https://www.bailii.org/ew/cases/EWFC/HCJ/2024/71.html where the Court made an order for the housing fund to remain with the child. But he says that is incredibly rare indeed, save for by consent. 

Nick and Michael discuss the rare occasion when Schedule 1 claims can be brought after parties have been divorced and they reference PK v BC (Financial Remedies: Schedule 1) [2012] 2 FLR 1426, and MB v KB [2007] 2 FLR 586).

We move on to a discussion of what constitutes a capital payment, and what expenses should be covered by way of maintenance.   We discuss the decision of Moor J considering an appeal against a series of lump sums made by Her Honour Judge Reardon in Stacey v McNicholas [2023] 2 FLR 321.  Nick points out that strictly speaking lump sums are for strictly one-off expenditure, not for day-to-day living expenses.   Michael discusses Dickson v Rennie [2015] 2 FLR 978, and that capital lump sums are not supposed to be used to top-up a CMS assessment.

We talked about the fast-track procedure in the FPR 9.20 —(1) If the court is able to determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so.  

Michael talks us through the development of the jurisprudence in respect of working out the appropriate level of top-up payments, through to the current formulation in James v Seymour [2024] 1 FLR 614 which applies unless you are considering a Household Expenditure Child Support Award, the ‘HECSA’ as set out in Collardeau-Fuchs v Fuchs [2023] 2 FLR 345.

We finish with Michael and Nick talking us through LSPO and the likelihood of costs awards.

What is the correct approach to a maintenance case? Listen to Sally Harrison KC (St John’s Buildings) and Farhana Shahzady (Streathers Solicitors) tell us how it is done. 

Sally reminds us of the guidance of Mr Justice Peel in WC v HC (Financial Remedies Agreements) (Rev1) [2022] EWFC 22 (22 March 2022) 

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/22.html

when thinking about the quantum of a maintenance order.  Mr Justice Peel found that needs are an elastic concept, to be judged by reference to consideration of financial needs and obligations, whether there are children, and the age of the parties.  We discuss how the length of the marriage really impacts on how much the standard of living is taken into account.  Farhana reminds of guidance of Mr Justice Mostyn in SS v NS (Spousal Maintenance) (Rev 1) [2014] EWHC 4183 (Fam).

https://www.bailii.org/ew/cases/EWHC/Fam/2014/4183.html

Sally and Farhana discuss the distinction between cases involving wealthy families where the Court may well be inclined to make a Duxbury award, as opposed to need based income awards in the majority of cases.  We discuss the overall impression that Courts are being quite restrictive on terms and quantum of maintenance at present.  

When talking about capitalising maintenance awards, Sally wrestles with the discrepancy between the Ogden tables having a -0.25% rate of return in England & Wales, as opposed to Duxbury’s 3.75% rate of return after inflation of 3%.

Sally considers the following cases:

HC v FW [2017] EWHC 3162 (Fam) (29 November 2017) 

https://www.bailii.org/ew/cases/EWHC/Fam/2017/3162.html

Tattersall 

Z (No.5) (Enforcement) [2024] EWFC 44 (04 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/44.html

Farhana tells us why it is important to consider the impact of menopause, when considering maintenance quantum, term and nominal maintenance.  She shares the details of her survey about the impact of maintenance in family law and financial remedy cases. 

Resolution will be releasing a spousal maintenance handbook in Summer 2024. Please check the website for details.

In this episode we speak to two keen advocates known for their appellate work; Chris Barnes and Joe Rainer.  Chris speaks about appeals in Children Act work and Joe speaks to financial remedy appeals.  

We discuss how to evaluate the type of decision – is it an evaluative or discretionary decision, or is it a finding of fact and how this impact on your likelihood of success.  This is the speech of Mr Justice Mostyn about that:

https://www.judiciary.uk/speech-by-mr-justice-mostyn-to-the-hong-kong-family-law-association/

In the context of the discussion, Joe talks about the decision of HHJ Hess in SC - and -TC  [2022] EWFC 67 in respect of a pre-nup:

https://caselaw.nationalarchives.gov.uk/ewfc/2022/67

We also discuss the ability of the respondent to put in a written response to an appeal, pursuant to:

Jolly v Jay & Anor [2002] EWCA Civ 277 (7th March, 2002)

https://www.bailii.org/ew/cases/EWCA/Civ/2002/277.html

Chris mentions that the current case law in respect of costs on appeal in Children Act cases is contained in Re S [2015] UKSC 20 and Re T [2012] UKSC 36

https://www.bailii.org/uk/cases/UKSC/2015/20.html

https://www.bailii.org/uk/cases/UKSC/2012/36.html

Plus we cover when to file a notice of appeal, caulderbanks, when to participate in the permission stage, costs, and procedural issues. 

If you have an appeal, or a potential appeal on your desk, this is a really helpful episode.

In this episode we are joined by Professor Emma Hitchings (Bristol University), Professor Emerita Gillian Douglas (Kings College, London), and Joanne Edwards (Chair of Resolution’s Family Law Reform Committee/Forsters) to discuss the Fair Shares report.

This report is the first time there is a fully representative picture of the financial arrangements families make (and in a lot of instances, don’t make) on separation and divorce, and how they arrive at those arrangements.  It is essential reading for anyone practising, or interested, in this area. The full report can be found here:

https://www.bristol.ac.uk/media-library/sites/law/news/2023/Fair%20Shares%20report%20-%20final.pdf

In this episode Emma tells us that the report found that the median value of assets on divorce is £135,000.  Thus, the cases that hit the headlines are not representative of most people’s experiences.  The research serves to dispel a lot of myths peddled in the media about finances on divorce.

In the research the academics classified the divorcees into different types or mindsets i.e. how they viewed their marriage, and their hopes on separation.  This arose from the qualitative data.  We discuss how using this typology can help understanding of how divorcees reach different outcomes despite having similar circumstances.  Broadly, there was:

The unequal couples – they can be the most problematic to help. There is invariably a power imbalance, and there could have been domestic abuse, including financial abuse.  In these cases, it is not possible for the parties to genuinely negotiate.  The effect can be that the less dominant party walks away with nothing, or a poor agreement.

The partners – these couples were a true joint enterprise during the marriage and that feeds through to how they agree things should be divided on divorce.

The housemates – these couples were individualistic during the marriage, they saw things as ‘theirs’, they kept their finances separate during the marriage, and they expect to keep what is ‘theirs’ on separation.

The parents – in these relationships the children are the most important concern, and the division of assets is structured to support parenting.  The parent with care was found to be very focussed on the immediate future.

Jo considers how being aware of these divorcee types may feed into practice. Emma and Gillian hope to be able to analyse whether each type impacts on the outcome process in the future.

We discussed how spousal maintenance is relatively uncommon, and where it is granted it is definitely not a ‘meal-ticket’ for life.  It is virtually always for a fixed term, and that term is generally linked with child-care responsibilities, and it is really associated with financial vulnerability of the receiving spouse.  We consider whether a different term would help dispel the myths as very rarely are people ‘maintained’ – they are usually working and just having some assistance in meeting their living expenses.

The research found evidence that mediation outcomes did not work out as people expected in many more instances than outcomes arrived at through lawyer negotiations or court. We try to analyse why that may be this case; was it because people had exhausted other options and felt obligated to get to an agreement in mediation. Jo, as a mediator, considers the implications.

We invite our guests to share some concluding thoughts for reform.  Gillian believes that how we share pensions (as only 11% of cases have pension sharing orders), and the needs of older children would be obvious areas for reform.  Emma says that this research dispels the proposals that there should be a time-limit on maintenance, or a presumption of 50/50 sharing as that would lead to unfairness and parties being unable to meet their needs.  As we look ahead to the Law Commission publishing a scoping report next September, Jo applauded the fact that Fair Shares gives a proper evidential basis for any reform.

If you would like to see all our guests speaking at the launch of the report, please follow the link below:

https://www.youtube.com/watch?v=cLTLL77qvW8

Hosted by: Simon Blain.

Guests: 

• Cris McCurley (Partner, Ben Hoare Bell)
• Pragna Patel (Southall Black Sisters and Women Against Fundamentalism)

They discuss their hopes and concerns for the Domestic Abuse Act 2021 which received royal assent earlier this year. They also consider other developments such as the publication of the "Assessing Risk of Harm to Children and Parents in Private Law Children Cases" and the recent case of Re H-N.

Further information and resources

https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895173/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf
https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf

https://southallblacksisters.org.uk/

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone

Listen to Natalie Gamble (a solicitor and the director of NGA law) and Andrew Powell (a barrister at 4PB) consider the current law in respect of surrogacy before the law commission releases their final report due in Spring 2023. 

This is a wide-ranging discussion about the principles behind surrogacy, surrogates consent, and commercial surrogacy.  This is a really helpful episode if you have a client approach you about obtaining a parental order in respect of their child.  We discuss reading down the legislation to make it compatible with the Human Rights Act 1998, and the concern about the impact on individual’s rights in this field if they did not have recourse to invite the Court to make a Declaration of Incompatibility. 

During this discussion, Natalie and Andrew refer to: 

Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) - where the High Court read down the legislation to permit a parental order to be made after the 6 month time limit has expired.

Re Z (A Child) (No 2)https://www.bailii.org/ew/cases/EWHC/Fam/2016/1191.html - where the Court made a Declaration of Incompatabilty in respect of the statute at that time which required two applicants for a parental order; this has since been amended.

Re X [2020] EWFC 39 - https://www.bailii.org/ew/cases/EWFC/HCJ/2020/39.html - where the High Court read down the legislation to permit a parental order to be made where the male applicant tragically died during his wife’s pregnancy;

Natalie also talks about the research conducted by Brilliant Beginnings and University of Cambridge into why people looking for a surrogate often go abroad, which can be found here - https://brilliantbeginnings.co.uk/education-and-awareness/.  Natalie invites the listener to get involved with the campaign for law reform in this area at - Surrogacy law reform brilliantbeginnings.co.uk

If you would like to buy Andrew’s book ‘The law in relation to surrogacy’. The book is available to buy from Amazon; https://www.amazon.co.uk/Practical-Guide-Law-Relation-Surrogacy/dp/1912687496

The draft Finance Bill 2022-23 https://www.gov.uk/government/publications/capital-gains-tax-transfers-of-assets-between-spouses-and-civil-partners-in-the-process-of-separating, released on 20 July, goes much further than the OTS’ recommendations.  The headlines are as follows:

1. No gain/no loss treatment extended to three years following the year of separation or date of decree absolute if earlier than 3 years
2. No gain/no loss treatment with an unlimited time frame if the assets are subject to a formal divorce agreement (s225B(2)(a) or (b)https://www.legislation.gov.uk/ukpga/1992/12/section/225B - effectively a consent or court order)
3. Where A has retained a financial interest in the property they will be able to claim PPR when the property is sold or transferred to a third party.  This replaces the current rule under s225B that PPR applies on a transfer from one party to another (that will become redundant with the unlimited time frame if an order)
4. For Mesher type arrangements where spouse A transfers to B, B resides and A does not get a share of the sale proceeds until many years later then the disposal date of that later interest for A is deemed to be the date of original transfer on a no gain/no loss basis (at present this is more complex as you may be able to claim PPR for the period of occupation by B but then have potential CGT between end of order and sale).  

The consultation on the draft legislation ends on 14 September 2022.  So what does this mean for family lawyers:

1. The provisions will come into effect on or after 6 April 2023
2. Life will be far simpler with much less risk about CGT arising in the context of divorce
3. There is more parity on divorce with the other taxes – including SDLT
4. There may be some merit in waiting to do a deal if it means you can claim the no gain/no loss treatment post April 2023 – that will be completely dependent upon a number of factors.
5. Overall CGT is still an important consideration in the financial settlement – although there is not an immediate charge and cash flow issues – the transferee will still take the asset at base cost and will therefore have that to consider the CGT when they ultimately dispose of the asset(s)

The legislation is only in draft at this stage so it may change.  If it comes into effect, this is a real result for families who potentially will no longer need to go to the expense of tax reports, advice and rushing to transfer assets.

This month we are treated to this tour de force by Robert Cole who is Head of the Family Team at Broadway House Chambers, Leeds and regularly sits as an arbitrator and ENE/pFDR adjudicator across the country, and Peter Smith from Quantis Forensic Accountants about how to analyse business accounts. 

We immediately launch into a discussion about what should cause you concern in business accounts, and the well known issue that businesses always seem to be failing when people are getting divorced.  Therefore, how professionals need to have four to five years accounts to be able to look at trends.  Peter suggests we should take an overview of:

• Has revenue, sales or turnover gone down?
• Have gross profit margins gone down? And 
• Have costs gone up?

These factors will provide a good indicator of any causes for concern. 

Robert adds to that you should have look at what fixed assets there are, and whether the valuation has been updated.  If you consider these points, you will have good insight into whether you need to ask for a valuer from the Court. 

Peter and Robert give us some tips for questionnaires, including: 

• Asking for a copy of up-to-date profit & loss accounts, management accounts and balance sheets as most decent size businesses with accounting software will have that immediately available;
• Summaries from the VAT portal; 
• And always checking viewing the Companies Article of Association; 

We discuss when valuations from the business’s own accountants are reliable. Before moving on to consider what type of valuations should be used for each business. 

Robert advises us that to be successful in a Daniels v Walker application that you first need to have tried to clarify matters with the expert, but even where you are not going to pursue a Daniels v Walker application but just want to make submissions about the reliability of the conclusions then questions are important to tease out vulnerabilities in the report.  Peter also points out that there is a distinction between wanting to challenge the expert’s judgment – which can be done without a separate expert – and where an expert has made a mistake for example an error in the factual basis.

We discuss when should a quasi-partnership apply, and Robert advises us to use the checklist from Re: Bird Precision Bellows [1986] 2 WLR 158:

• close working relationship between the shareholders (usually pre-existing the incorporation);
• restriction on the transfer of shares to a third party;
• the shareholders continue to be actively involved in the day-to-day running of the company (not necessarily employed but consulted about day-to-day and strategic decisions)

During the discussion, we refer to the following cases: 

 V v V (Financial Remedy) [2005] 2 FLR 697

J v J [2014] EWHC 3654   HTTPS://WWW.JUDICIARY.UK/WP-CONTENT/UPLOADS/2014/11/J-V-J-JUDGMENT.PDF

Martin v Martin [2018] EWCA Civ 2866 – risk and liquidity 

https://www.bailii.org/ew/cases/EWCA/Civ/2018/2866.html

Versteegh v Versteegh [2018] EWCA Civ 1050 – on the lack of reliability in valuations

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2018/1050.html&query=(versteegh)

Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 

https://en.wikipedia.org/wiki/Ebrahimi_v_Westbourne_Galleries_Ltd

G v G (Financial Provision: Equal Division) [2002] 2 FLR 1143 - Where shareholders act in concert and would be unlikely to sell separately then discount less applicable

Clarke v Clarke [2022] EWHC 2698 – on whether a minority discount should apply

https://www.bailii.org/ew/cases/EWHC/Fam/2022/2698.html

Technical factsheet from ACCA – for minority interests discounts

https://www.accaglobal.com/content/dam/ACCA_Global/Technical/fact/technical-factsheet-167.pdf

 WM v HM [2017] EWFC 25 (09 May 2017) 

https://www.bailii.org/ew/cases/EWFC/HCJ/2017/25.html

Hosted by: Anita Mehta and Simon Blain.

Guests: 

• Louise Tickle (Journalist and committee member of The Transparency Project)
• Professor Celia Kitzinger (School of Law and Politics, Cardiff University and co-founder Open Justice Court of Protection Project) 

They discuss their work to ensure greater transparency in the operations of the Family Court and the Court of Protection.

Further information and resources

https://openjusticecourtofprotection.org/
https://www.transparencyproject.org.uk/
https://www.louisetickle.co.uk/
https://openfamilycourt.wordpress.com/

More information

More information on this Resolution podcast:
https://resolution.org.uk/podcast

Music credit: Hopefully Flies - Magnus Moone