Talking Family Law - The Resolution Podcast – Details, episodes & analysis

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.

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

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 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)

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 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

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 

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

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. 

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.