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COVID-19 and Parental Contact With Children in Care – Guideline Ruling

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How, if at all, is the duty of local authorities to allow children in their care reasonable contact with their parents affected by social distancing rules arising from the COVID-19 pandemic? The Court of Appeal confronted that issue in a guideline case.

The case concerned three young children who were taken into interim care after one of them suffered a broken leg, an injury which was considered likely to have been inflicted. The mother was in the pool of potential perpetrators and the children were therefore taken from her care and sent to live with their maternal grandmother.

Until lockdown was announced in March 2020, the children had face-to-face contact with their mother three times a week. As the pandemic took hold, however, the council’s contact centres were shut down and the mother’s only contact with her children became indirect, via telephone and video calls.

The council took the view that direct contact could not be managed in a safe manner in that the children were too young to be expected to socially distance themselves from their mother. It persisted in refusing direct contact after lockdown rules were changed so as to permit ‘social bubbles’ in which two households could meet with each other exclusively as if they were one household.

The mother applied for a contact order on the basis that professionally supervised face-to-face meetings could take place between her and the children in a local park. Her application was rejected by a judge, who noted that, in such unprecedented times, it was difficult to assess what level of contact would be ‘reasonable’ within the meaning of Section 34(1) of the Children Act 1989.

The judge expressed enormous sympathy for parents whose contact with their children was restricted during the pandemic. Their situation was similar to that of patients dying in hospital being denied visits from friends and family, grandparents being unable to hug their grandchildren and mourners being prevented from attending loved ones’ funerals.

Amidst the unprecedented crisis, however, he found that the council was entitled to have regard to its depleted human and other resources. There was nothing so unusual about the mother’s case to justify an exception being made to the council’s policy, whilst lockdown continued, of permitting only indirect contact between parents and children in care.

Ruling on the mother’s appeal against that outcome, the Court noted that the local authority had recently agreed to a resumption of face-to-face contact once a week. That rendered the case academic in practical terms, but the Court nevertheless heard the appeal on the basis that it raised issues of wider importance.

Upholding the mother’s appeal, the Court observed that, by the time the judge came to make his decision, social distancing was no longer an absolute obstacle to face-to-face contact between her and her children. The evidence did not support his conclusion that no direct contact at all was possible.

Giving guidance for the future, the Court emphasised that contact arrangements must be considered on a case-by-case basis with the welfare of children always treated as the paramount consideration. There was no doubt that face-to-face contact would be in the children’s best interests if it could be achieved. Rather than deferring to the council’s policy on the basis that it was reasonable, the judge was required to form his own view as to what level of contact was appropriate.

The Court concluded that the ordinary principles governing applications for contact with children in care continue to apply during the pandemic, even though outcomes may well be affected by the practical difficulties that are being faced.

Judge Breaks Deadlock Between Unmarried Ex-Couple With Children

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When long-term relationships between unmarried couples break down, disentangling their property and financial affairs can be challenging, particularly where children are involved. As one case showed, however, a clean break is often the best option for all concerned.

The case involved a middle-aged couple who had continued to live uncomfortably under the same roof for more than three years after their relationship ended. Their oldest child had grown up and gone to university but their 14-year-old son still lived in the house with them amidst an increasingly fraught atmosphere. The woman largely inhabited an upstairs bedroom. She said that she felt unwelcome elsewhere in the house and was finding her situation increasingly intolerable.

The four-bedroom house, which they had bought together, was worth about £440,000. Although he for a long time disputed the point, the man eventually agreed that they each beneficially owned 50 per cent of the property. The woman, who earned a good living as an accountant, was in a stronger financial position than the man, who had been out of work for five years due to health difficulties.

The woman launched proceedings, seeking an order that the property be sold and the proceeds equally divided so that they could move on with their lives. The man, however, argued that their son’s welfare demanded that a sale be put off until he turned 21 or finished his education, whichever was the later.

Ruling on the matter, a judge noted that the boy’s school had expressed concern that his very difficult home environment was not conducive to his welfare. He needed stability and security and to be protected from exposure to his parents’ disputes. Delaying a sale of the property would also require the woman to continue living for some years in a house where she felt uncomfortable, excluded and unwanted.

Directing that the house be put on the open market as soon as possible, the judge noted that this was not a divorce case in which she had to strive to achieve financial or lifestyle parity between the higher-earning woman and the lower-earning man. His parents had given him generous financial support and had paid the boy’s school fees. The boy did not require to live in a four-bedroom house and the couple each had equity in the house of up to £170,000 which should enable them to purchase more modest properties in the area.

Don't Even Consider a Foreign Adoption Without Specialist Legal Advice

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Adopting children from abroad can complete families and be of great benefit to all concerned. However, as a High Court case showed, it is fraught with legal pitfalls and should not be attempted without first taking specialist legal advice.

The case concerned a British citizen who adopted a child in Iran under Iranian law. The child had thrived in the adoptive placement. The parent launched proceedings in London, seeking recognition of the adoption in this country. The Home Office opposed the application on the basis that the criteria for recognition specified in the Adoption and Children Act 2002 had not been met.

Ruling on the matter, the Court noted that Iran has not ratified the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoptions. It is also not one of the countries where adoption is recognised by operation of the Adoption (Recognition of Overseas Adoptions) Order 2013.

The parent was domiciled in Iran at the time of the adoption and it was not disputed that the child had been legally adopted in accordance with the requirements of Iranian law. However, the Home Office argued that adoption in Iran does not have the same essential characteristics as adoption in England and that recognition should, for that reason alone, be refused.

The effect of an English adoption is to sever the legal relationship between the child and his or her biological parents. Section 67 of the Act provides that, if an adoption order is made, the child will be treated as if born to the adopter(s). Adoption orders made in this country can only be revoked in highly exceptional and very particular circumstances and such revocations are extremely rare.

The Court noted that those principles differ starkly from the position under Iranian law, where an adoption order does not extinguish the legal relationship between a child and his or her biological father. The threshold for revocation of Iranian adoption orders is also set at a much less demanding level.

The Iranian adoption had provided the child with much-needed security and stability. However, in refusing to grant recognition, the Court observed that the case turned not on the child’s welfare but on the interpretation of the legal principles through which English law recognises foreign adoptions.

The Court observed that an application for an English adoption order in respect of the child could be made under Section 49(3) of the Act if it could be shown that the child had been habitually resident in this country for 12 months. Any interference with the human rights of the child and the parent arising from the refusal to recognise the Iranian adoption was, in the circumstances, justified.

Want to Adopt a Child From Overseas? Beware the Legal Pitfalls

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Adopting children from overseas is fraught with legal pitfalls and those who attempt to do so without first taking expert advice expose themselves to heartbreak. In one case, however, the High Court came to the aid of a British woman who adopted a little girl who was found abandoned beside a Ugandan roadside.

The girl appeared to be about eight months old when she was found. After attempts to trace her genetic parents or wider family failed, she was placed in the foster care of a British woman who had been living in Uganda for some years. After forming a strong bond with the child, the woman applied successfully to a Ugandan court to adopt her.

The woman wished to return to England, but the Home Office had refused to grant a visa in respect of the child, who was believed to be aged about six, on the basis that the UK does not automatically recognise Ugandan adoptions. The woman sought legal advice and applied for an order officially recognising the Ugandan adoption in England.

In granting the order sought, the Court found that the woman was domiciled in Uganda at the time of the adoption. Although her marriage to a Ugandan man had failed, she had been living in Uganda for over a decade and had intended to make it her permanent home. She had dual British and Ugandan citizenship and had only decided to return to England for pressing family reasons.

The Court was satisfied that she had legally adopted the girl in accordance with the requirements of Ugandan law and that the foreign adoption had the same essential characteristics as an English adoption. There was no public policy or other reason why the Ugandan adoption should not be recognised.

The final decision as to whether the girl would be permitted to enter the UK with her mother lay with the Home Secretary, but the Court’s ruling greatly improved the chances of the required visa being issued.

Secret Marriage Leads to Legal Complications – High Court Ruling

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It is not only in the realms of fiction that lovers choose to marry in secret, away from the gaze of their disapproving families. A highly unusual High Court case, however, showed the legal difficulties that can arise from such arrangements.

The case concerned a former couple who, without telling their families, went through a ceremony of marriage in Madrid in 1993. About a year later, after their families’ attitude to their relationship had mellowed, they went through a second marriage ceremony in London.

The marriage did not prosper and, after the man petitioned for divorce, decrees nisi and absolute were pronounced in 1997. The couple settled their financial differences shortly afterwards. Crucially, however, the petition and the decrees only referred to the English marriage, making no mention of the earlier Spanish marriage.

More than 20 years after those events, the woman asserted that she and the man remained husband and wife. The Spanish marriage, she argued, remained extant and could only be brought to an end by divorce proceedings in Spain. She did, however, indicate her willingness to consent to a divorce, provided that a very substantial financial settlement was made in her favour.

After the man launched proceedings, the Court found that the Spanish marriage was valid. Whilst the subsequent English marriage may have been important in emotional and social terms in bringing both sides of the two families together, it had no impact on the couple’s legal status. By then, they were already married.

Ruling on the matter, the Court found that the error on the face of the decrees, in giving the wrong date of the couple’s effective marriage, was one of process rather than substance. The decree absolute had the effect of bringing to an end their true legal marriage – the Spanish marriage – and they were thus validly divorced in 1997. In order to set the record straight, the Court directed that both decrees be rectified so as to state that it was the Spanish marriage that was being dissolved.

Divorce – Home-Maker Wife Compensated for Sacrificing Her Career

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Despite the drive towards achieving economic equality between the sexes, it remains common for women to give up their promising careers to support their husbands and devote themselves to child rearing and home-making. An important High Court ruling addressed the burning issue of how such sacrifices should be quantified in money terms in the event of divorce.

The case concerned a former couple who met when they were both working for a leading law firm. After their relationship blossomed, they decided that it would be inappropriate for them to continue working together. He remained at the firm, becoming a very highly paid equity partner, whereas she took an in-house position at a bank, which yielded earnings that were a fraction of his and from which she was later made redundant.

Following their marriage, she took on the role of a home-maker and full-time mother to their two children. Having suffered mental and physical health difficulties, she had not worked for some years before the 11-year marriage broke down. Their marital home was worth more than £5.8 million and, by the time of their divorce, their total assets were valued at over £9.7 million.

Ruling on the financial aspects of the divorce, the Court noted that both husband and wife broadly agreed that their assets should be divided equally. The principal area of controversy between them was whether the wife should in addition be compensated for the detrimental impact that the marriage had on her legal career.

The Court found that she was clearly a talented and driven lawyer and that, had she stayed at the firm, she would have stood a very good chance of becoming an equity partner, earning sums equivalent to those paid to the husband. Viewing herself as the parent with primary responsibility for the children, she treated her husband’s career as taking precedence over her own. Given her health problems, her continuing childcare responsibilities and the length of time since she had last worked, she had no residual earning capacity.

An equal division of assets would have led to the husband and wife each receiving about £4.85 million. The Court, however, awarded the wife an extra £400,000 to reflect the negative impact that the relationship had on her career and earnings. Her total award of £5,252,415 represented about 54 per cent of the overall marital assets. The Court noted that the facts of the case were exceptional and that its ruling should not be viewed as a green light for others to seek compensation for financial disadvantages arising from their marriages.

Children's Wishes and Feelings Prevail in Bitter Paternity Dispute

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In the throes of family breakdown, parents often focus on their own personal battles – but it is the best interests of their children that are always uppermost in family judges’ minds. In a case on point, the wishes and feelings of two teenagers proved the decisive factor in a bitter paternity dispute.

The man who brought up the children, aged 13 and 15, suspected that they were not in fact his progeny. He believed that their true father was a man his then wife, the children’s mother, had met at work. Since his divorce, he had, amongst other things, subjected the boy and girl to off-the-shelf DNA tests, taking mouth swabs under the pretence of checking their dental hygiene.

In seeking a declaration under Section 55A of the Family Law Act 1986 that he was not the children’s father, he pointed to a number of factors, including those test results and the alleged physical resemblance between the children and the putative father. Although he was paying maintenance in respect of the children, he insisted that he had their welfare at heart and denied that his application was financially motivated.

Ruling on the matter, a judge noted the children’s feelings of violation and confusion at having been subjected to DNA tests without their knowledge. Those tests having been performed in uncontrolled conditions, he declined to take their results into account. The children were mature enough for their wishes and feelings to be given great weight and both had declined to undergo further forensic tests.

The judge acknowledged that there was evidence indicating that the man might not be their father and that an eventual resolution of the paternity issue was likely to be in their best interests. Requiring him to meet the legal obligations of fatherhood in respect of children that might not be his would potentially amount to a violation of his human right to respect for his home and family life.

Striking a balance, the judge directed the man, the children’s mother and the putative father to provide DNA samples for testing. The results of those tests would be sealed in an envelope and stored securely. The children were also required to provide DNA samples, but that part of the judge’s order was stayed indefinitely so that they would not have to comply with it until they felt ready to do so.

High Court Annuls Overseas Marriage After Ruling 'Wife' a Bigamist

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In order to be divorced you obviously have to be validly married, and bigamy remains a surprisingly common occurrence. In one case, the High Court found that a couple’s overseas wedding did not render them husband and wife – because she was already married to someone else.

A British solicitor and a Philippines-born nurse went through a wedding ceremony in a hotel in her homeland. After they returned to England, they lived together as man and wife and had two children together. She worked in the NHS and became a British citizen. Following their separation, she petitioned for divorce. He, however, argued that their apparent marriage was bigamous and therefore a nullity.

The woman argued that their marriage met all the requirements of Filipino law and that they had treated it as valid throughout their relationship. His opposition to her divorce petition was, she claimed, an attempt to gain financial leverage over her. The ceremony she had been through with another man over 10 years previously was not a marriage but an informal celebration of their relationship. That man had abandoned her and moved to the USA, where he was recognised as single.

The Court noted that neither the woman nor the man had emerged from the dispute with much credit. She had always believed that her previous marriage was valid and he had adopted a manipulative and unattractive stance in asserting his willingness to accept a divorce so long as there were no financial consequences for him.

In dismissing the woman’s divorce petition and granting the man a decree of nullity, the Court found that her previous marriage to the other man was valid under Filipino law. She remained the other man’s wife on the date that she purported to marry the solicitor and their bigamous marriage was therefore void from the outset. The Court noted that, by virtue of the Legitimacy Act 1976, its ruling did not affect the legitimate status of the former couple’s children.

Are Parents Obliged to Control Unruly Children? High Court Test Case

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To say that parents bear a moral responsibility to ensure that their children behave themselves in public is uncontroversial – but are they also under a legal duty to do so? The High Court addressed that issue in ruling that the sins of an allegedly anti-social teenager could not be visited upon his mother.

A local authority claimed that the 15-year-old boy had engaged in various forms of anti-social behaviour, including assaulting another schoolboy and setting fire to a public bench, which resulted in a detrimental effect on the quality of life of others living in the same area. The council responded by serving a Community Protection Notice (CPN) on his mother. On pain of criminal prosecution, the notice required her to take various steps to bring her son’s behaviour under control.

In subsequently upholding the mother’s appeal against the CPN, magistrates observed that the notice could not validly have been issued against her son because he was under the age of 16. They found that, on a true construction of Section 43 of the Anti-social Behaviour, Crime and Policing Act 2014, there is no power to issue a CPN in the name of one individual concerning the conduct of another.

Challenging that ruling, the council argued that a parent can ordinarily be expected to exert a measure of control or restraint on his or her child. However, in rejecting the appeal, the Court found that, on a straightforward reading of Section 43, Parliament’s intention was that CPNs should be served on individual perpetrators of anti-social behaviour with a view to getting such persons to desist, ultimately on pain of a criminal sanction.

The real target of the CPN was the son’s behaviour, not his mother’s failure to keep him under control. If the council’s interpretation of Section 43 were correct, schoolteachers, scout leaders or even local authorities with responsibility for children could be served with CPNs if their charges behaved anti-socially.

The power to issue CPNs was subject to various checks and balances, including the requirement that they can only be served on individuals aged 16 or over. Parliament had been astute to ensure that the power did not interfere disproportionately with family life. Had it intended to empower local authorities to issue a CPN against a parent who fails to control the anti-social behaviour of a child aged under 16, it would have said so.

Channel Islands Are Not 'Overseas Countries' – Guideline Divorce Ruling

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The Channel Islands may be separated from the UK mainland by miles of water, but they are not overseas countries. In an unusual case, that simple fact was enough to defeat a woman’s claim for a pension-sharing order following her divorce in Jersey.

After a long marriage, the woman’s husband left the matrimonial home in England and moved with his new partner to Jersey, where he swiftly launched divorce proceedings. The woman believed that he had done so because Jersey does not have provision within its family law for the making of pension-sharing orders. The husband’s pension was 2.5 times greater than the wife’s total income.

Following negotiations, what was essentially a clean-break settlement was agreed in Jersey whereby the wife received 55 per cent of the former matrimonial home and the husband 45 per cent. She was, however, most unhappy with the deal and shortly afterwards launched proceedings in London under the Matrimonial and Family Proceedings Act 1984, seeking a pension-sharing order.

In ruling on the matter, the High Court noted that, where a marriage is dissolved or annulled by proceedings in an overseas country, the Act permits English family judges to provide financial relief to parties to the marriage who are habitually resident in or otherwise sufficiently connected to England and Wales.

The woman’s claim, however, faced the difficulty that Jersey – together with the other Channel Islands, the United Kingdom and the Isle of Man – has been defined by law since the Victorian era as part of the ‘British Islands’. Jersey is thus not an overseas country to which the Act can be applied.

The woman argued that she had suffered a serious injustice due to the unavailability of pension-sharing orders in Jersey. It was submitted that the Act should be interpreted in such a way as to avoid an absurd outcome. The Court, however, found that the interpretation contended for would ride roughshod over the unambiguous wording of the Act. It was for Parliament, and Parliament alone, to decide whether the provisions of the Act required amendment. The wife’s application was struck out on the basis that the Court had no jurisdiction to entertain it.

Cruelly Deceitful Husband Ordered to Pay Betrayed Ex-Wife £2.25 Million

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Where blame, if any, attaches for the breakdown of a marriage is generally irrelevant when it comes to dividing assets following divorce. However, as a cruelly deceitful husband discovered to his cost, bad behaviour can have consequences in that it is hardly likely to endear you to a family judge.

The case concerned a couple of Russian origin who had two children during their 25-year marriage. The husband had encouraged his wife to move to the UK with their children whilst he remained in Russia. It came as a complete shock to her when he announced years later that he had been leading a double life, cohabiting with another woman in Russia with whom he had four children.

Without the wife’s knowledge, the husband obtained a divorce in Russia which made no financial provision for her. However, she launched proceedings under the Matrimonial and Family Proceedings Act 1984, which enables family judges to provide financial relief to those who are habitually resident in England but who have been divorced overseas.

In ruling on the matter, a judge noted that various orders had been made against the husband, requiring him to disclose the extent of his wealth and to provide interim financial support to the wife and the children of the marriage, but he had ignored all of them. He had failed to participate in the proceedings in any way whatsoever and his attitude had been one of studied contempt for the court.

The judge gave no weight to a post-nuptial agreement, which was entered into when the relationship was still apparently happy. It made scant financial provision for the wife and she had received no legal advice before signing it at a time when the husband was continuously deceiving her about his second family.

Having lived in England for many years, the wife had taken British citizenship and clearly met the habitual residence and other requirements of the Act. Although she was highly educated and had taken steps to stand on her own two feet by obtaining work, she had substantial outgoings, was living in rented accommodation and had negligible capital resources. Her liquid cash came to only about £15,000.

The judge found that, on the extreme facts of the case, it would be inequitable to disregard the husband’s obvious and gross misconduct. It was hard to imagine a more grave and sustained assault upon a marriage apart from severe abuse or criminal behaviour. He noted, however, that the wife’s award was essentially designed to meet her needs rather than to punish the husband.

Given the husband’s total lack of cooperation, the judge declined even to hazard a guess at assessing his overall wealth or income. He only had himself to blame if the wife’s award was more than he could afford. He was ordered to pay her a lump sum of £2.25 million so that she could buy an appropriate home for herself and the children. Together with arrears of maintenance, he was also directed to pay the wife £2,600 a month until such time as the lump sum was remitted in full. The wife was awarded her substantial legal costs against the husband on the punitive indemnity basis.

Validity of Marriage – Court of Appeal Takes Rigorous Approach

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The full rigour of formalities that must be gone through in order to solemnise a marriage have been upheld in a landmark case. The Court of Appeal found that a ceremony performed in a restaurant which was not registered as an authorised wedding venue was a ‘non-marriage’ with no legal effect whatsoever.

Early on in their long relationship, which yielded four children, a former couple went through a nikah – a form of Islamic marriage ceremony – in the restaurant. Due to the venue’s lack of registration, they were aware that the ceremony did not create a valid marriage. They intended to make good that deficiency by going through a second, civil, marriage ceremony, but that was never done.

After the relationship ended, an issue arose as to whether the ceremony had created a marriage that was void, due to its failure to comply with the formal requirements of the Marriage Act 1949, or no marriage at all. The distinction was a critical one in that, if it were a non-marriage – as the man asserted – the woman would have no right to seek financial orders against him under the Matrimonial Causes Act 1973.

In finding in the woman’s favour that it was a void marriage, a family judge ruled that the 1949 Act should be read in the light of human rights legislation, which enshrines the right to respect for family life and the right to marry and found a family. He was particularly influenced by the position of the children of the family. The woman was granted a decree nisi of nullity, which opened the way for her to seek financial remedies against the man.

The former couple had settled their differences since the judge’s decision but, given the general public importance of the issues raised and their relevance to other similar cases, the Court entertained an appeal against the ruling, brought by the Attorney General, and took the opportunity to clarify the law.

In allowing the appeal, the Court found that the restaurant event was a non-marriage in that the former couple had not thereby intended to marry under the provisions of the 1949 Act. The effect of the ceremony had to be determined as at the date it was performed and it thus made no difference that they had intended to proceed to a civil ceremony in due course. Their intention to marry at some future date provided no justification for changing the effect of the ceremony that in fact took place.

The Court emphasised the importance of couples knowing with certainty whether or not they are validly married. A ruling in the wife’s favour would extend the law in a way that would fundamentally undermine the manner in which the status of marriage is created and the necessary degree of certainty that underpins the required formalities.

Gender-Neutral Sharing of Assets on Divorce is Not Always That Simple

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A gender-neutral and non-discriminatory approach to divorce generally requires an equal division of marital assets – but it is not always that simple. In one big-money case, complexities arose in respect of the husband’s inherited assets and his wish to preserve a thriving family business.

During the lengthy marriage, the husband, a self-confessed workaholic, graduated from being an HGV driver to becoming the majority shareholder in a highly successful plant hire company. The wife performed an administrative role in the business and devoted herself to the care of the three children of the family.

Many of the husband’s shares were, however, inherited from his parents. He wished to carry on running the company but raised the spectre that financial liabilities arising from his divorce might force it into liquidation, with the loss of 130 jobs. A further difficulty arose because the couple’s marital home had been in the husband’s family for generations and remained an asset of his deceased father’s estate. He and his two sisters were each entitled to inherit a one-third share in the property, in which the wife had no interest.

Ruling on the matter, a judge valued the husband’s business interests at about £7.2 million and the total marital assets at over £9.5 million. In order to provide for the wife’s housing needs and an income of £100,000 a year, she would require a capital sum of about £3 million. Having made an equal contribution to the marital wealth, however, the sharing principle applied, and she was entitled to more than that.

The judge awarded the wife a £4.3 million lump sum after finding that 45 per cent of the marital assets should go to her and 55 per cent to the husband. Given the part that the husband’s inheritance played in the case, his retention of assets worth £5.2 million represented a fair outcome which reflected the length of the marriage.

The judge acknowledged that the husband would have to borrow in order to satisfy the wife’s award, but was confident that he would use his considerable abilities to raise the money whilst maintaining the fortunes of his business. The husband was directed to pay the wife’s award by instalments over a period of two years and three months. Payment of the final instalment would result in a clean break between them.

Former Couple's Division of Property Decided By Judge

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Unmarried couples frequently intermingle their property whilst love still blooms, but sorting out who owns what after separation can pose a serious challenge. That was certainly so in the case of a former couple who, between them, owned two former council houses when their relationship ended in acrimony.

During their relationship, which lasted more than 25 years, the couple exercised their right to buy their respective council houses. After encountering financial difficulties, the man had transferred his former home into the woman’s name with the result that she became the sole registered owner of both properties. The former couple failed to reach agreement on a fair division of property following the end of their relationship, and the dispute came before a judge for resolution.

In ruling on the matter, the judge found that the woman held her former council home on trust for herself and the man equally. A trust deed to that effect had recently been located and held sway. The property was no longer required as a family home for the former couple’s children, who had reached adulthood. The judge directed that the property should be sold and the proceeds divided equally between the pair.

In respect of the man’s former council home, the judge found that the woman held it on trust for him absolutely. Neither of them lived in the house during the relationship and, as an investment property, it had been let out to tenants. Following its transfer into the woman’s name, the man had retained control over it and discharged the mortgage from the tenants’ rent. The man being the sole beneficial owner of the property, there was no basis on which its sale could be ordered.

Adoption Only Justified If Nothing Else Will Do

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Adoption of children outside their natural families is always a last resort and will only be permitted if nothing else will do. The Court of Appeal made that point in coming to the aid of a couple whose son was taken from their care when he was just two days old.

Social workers removed the boy due, amongst other things, to concerns about the family’s chaotic lifestyle, his parents’ over-chastisement of their older children and his mother’s mental health difficulties. After the couple admitted offences of child cruelty and neglect, a judge ordered the boy’s placement with prospective adopters. The couple were refused permission to oppose the making of that order.

In upholding an appeal against the latter decision brought by the boy’s guardian with the parents’ support, the Court noted that, after her son’s removal, the mother had completed a course of cognitive behavioural therapy which greatly improved her mental health. The couple had also undertaken a good parenting course and all professionals involved in the case had been impressed by the warmth of the family relationships and the transformation of the couple’s attitudes. Their three older children, who had also been removed, had been returned to their care.

The Court acknowledged that the boy, who was aged almost three by the time the appeal was heard, had not seen his parents for well over a year and had been living with his prospective adopters for a similar period. However, the mere passage of time was not decisive, and the evidence indicated a significant change in the parents’ circumstances. The Court directed a further, urgent, hearing of the case at which the parents would be permitted to oppose the making of a final adoption order.

High Court Backs Big Money Divorce Wife's Pursuit of Fraudulent Husband

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It is hardly surprising that confidential or privileged documents which have or may have been illegitimately obtained cannot be used in evidence. However, as the High Court made clear in the context of a big money divorce case, that rule does not apply where such documents are likely to assist in exposing a fraudster’s schemes.

A wife had obtained a record financial award against her husband. He had, however, failed to pay a penny and her legal team was engaged in an international struggle to enforce the debt. A former adviser to her husband had provided the wife with a USB stick containing documents concerning the husband’s affairs. That prompted the wife’s lawyers to seek the Court’s guidance as to whether the documents could be retained and made use of in the enforcement proceedings.

Ruling on the matter, the Court noted that the former adviser’s employment contract with a company through which he dealt with the husband’s affairs contained a widely drawn confidentiality clause. Many of the documents related to communications between the husband and his lawyers and they were therefore, on the face of it, absolutely privileged and thus inadmissible in evidence.

The Court, however, noted that it is a recognised exception to the rule that privilege does not extend to communications that are, whether lawyers know it or not, conducted with the intention of pursuing a fraudulent purpose. In finding that that exception applied, the Court noted that the husband had previously been found in contempt of court orders and to have engaged in an elaborate and dishonest campaign to evade enforcement of the wife’s award.

A brief perusal of the documents revealed that they formed part of the husband’s fraudulent scheme to defeat the wife’s claim. It was not a case where she had unlawfully accessed the husband’s confidential material, or procured another to do so, in the hope of obtaining some improper advantage. She had entrusted the documents to her lawyers, who had conducted a thorough review in order to weed out privileged material. In those circumstances, the Court found that it would be a disproportionate response to require the wife to destroy, or make no use of, documents which might assist in unravelling her husband’s schemes.

Couple Subjected to Race Discrimination By Adoption Agency Win Damages

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Race discrimination may not be intentional, but it can be deeply hurtful and, with the right legal advice, victims can both express their disgust and secure compensation. In a striking case on point, a Sikh couple who were rejected as potential adopters because of their ethnicity were awarded substantial damages.

The high-earning professional couple were born and raised in England and considered themselves culturally British, whilst acknowledging their Indian heritage. After making numerous attempts to conceive by IVF, they realised that they were unlikely to have a child biologically their own and applied to a local authority-run adoption agency to be placed on its list of prospective adopters. They were, however, rejected at an early stage of the selection process.

After they launched legal proceedings, the High Court noted that there was nothing in their background to suggest that they were not suitable people to adopt or that they could not offer a loving and caring home to a child. The agency’s policy to ‘match’ children with adopters from a similar background in reality amounted to the imposition of a criterion based on race.

The stereotypical assumption that lay behind the agency’s policy of seeking an exact, or near-exact, ethnic match gave race a disproportionate importance as a factor regarding the welfare of children. In treating the couple’s race as the key criterion when considering their application, the agency had given overwhelming priority to their ethnicity over other factors which were unanimously in their favour.

The couple were particularly vulnerable, having endured numerous rounds of IVF and a sad early pregnancy loss, and were desperate for a child. Whilst stopping short of finding that the discrimination they suffered was intentional, the Court ruled it a very serious case. They were awarded approximately £120,000 in damages, reflecting the injury to their feelings and the costs arising from the discrimination.

Adoption is Always a Last Resort – Troubled Mum Achieves Redemption

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One of the hardest tasks that family judges have to undertake is to remove children from the care of parents who are incapable of looking after them. However, as one case showed, adoption of children outside their natural families is only ever a last resort and there is always the possibility of redemption.

The case concerned a 14-month-old girl whose mother had been an alcoholic since she was in her teens. Having lived largely in care during her childhood, the mother had appeared before criminal courts for offences fuelled by her addiction. There had been extensive social services involvement in relation to her parenting of her older daughter.

The girl had spent her entire life in foster care after the local authority removed her from her mother immediately after her birth. The council was subsequently granted a full care order in respect of her and a judge directed her placement for adoption. Those orders were, however, later overturned by the Court of Appeal.

In considering the matter afresh, a different judge noted the mother’s committed and independent engagement with Alcoholics Anonymous and that she had been sober for almost two years. She had a strong family support network and the evidence established that, when sober, she could be an excellent mother.

The judge noted that severing ties between the girl, her mother and her wider family would be a great loss to her. The mother had shown increasing insight into the impact of her drinking on her child and, although there could be no guarantees, the prognosis was good if she managed to avoid alcohol for five years.

Ordering the girl’s rehabilitation to her mother’s care, subject to a supervision order, the judge found that the risks involved in that course were outweighed by the benefit to the girl of being brought up within her natural family.

Family Judge Blocks Attempt at Divorce Tourism in Big Money Case

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English judges are respected around the world – but they are not the sole arbiters of fairness and the decisions of foreign courts must be respected. A family judge made that point in shutting the door on divorce tourism and refusing a Russian ex-wife the opportunity to seek a greater share of her husband’s enormous wealth.

During the couple’s marriage, which lasted over 30 years, they had built up a fortune which the wife estimated at $20 billion. A blizzard of litigation, in Russia and elsewhere, followed the end of their marriage. The wife claimed that, due to the power and influence exerted by her husband in their homeland, she had been awarded only $41.5 million, or less than 0.3 per cent of the marital assets, by the Russian courts.

After she moved to England, and following a hearing at which the husband was not represented, a judge granted her permission to seek further financial relief from him under the Matrimonial and Family Proceedings Act 1984. That was on the basis that she had an arguable case that she had suffered a grave injustice at the hands of the Russian courts and that the sums she was awarded there came nowhere near meeting her reasonable needs.

In setting aside that permission at the husband’s behest, the same judge found that, in applying for it, the wife had breached the duty of candour that she owed to the court. Amongst other things, the provisions of Russian law, the full extent of the litigation there and the true value of the award she had received had been misrepresented.

Although there was no dispute that she was habitually resident in England, there were doubts as to whether she was domiciled here. Having moved to this country only after the end of the marriage, her connections to England were recent and modest and her links to Russia were infinitely greater.

The judge acknowledged that, given the scale of the husband’s wealth, the award to the wife made by the Russian courts was, by English standards, paltry. Had she been divorced in England, her award – whether based on the sharing principle or her reasonable needs – would have been vastly greater. To that extent, she could be said to have suffered hardship.

However, the judge noted that it is not the job of the English courts to correct alleged deficiencies in the legal systems of other countries. The wife’s case was a classic example of a spouse with no connection to England seeking to take advantage of the perceived more generous approach of English judges to the financial aspects of divorce. She had taken the fullest possible advantage of the Russian legal system and, were her claim permitted to proceed, there would be no limit to divorce tourism.

High Court Assists Husband in Drawing a Line Under His Divorce

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Litigation can be long and bitter, but it is the prime objective of the justice system to eventually bring it to a satisfactory end. In a case on point, the High Court came to the aid of a husband in drawing a line under his divorce.

The case concerned a middle-aged couple who were self-employed in the IT world, each of them earning enough to support themselves. The wife had a child from a previous relationship who was treated as a child of the family. In dividing the marital assets between them post-separation, a family judge awarded the wife £478,000, approximately 49 per cent of the total.

After the judge handed down her judgment, but before an order was perfected giving effect to it, the wife sought to present fresh evidence that the proposed award would not meet her and her child’s reasonable housing needs. The judge was persuaded to adjourn the matter with a view to hearing further argument.

In upholding the husband’s appeal against that ruling, the Court emphasised the importance of finality in litigation. The adjournment application was a spurious attempt by a disappointed litigant to get the judge to change her mind immediately after she had given judgment. She should not have succumbed and the decision to grant an adjournment was plainly wrong. The judge was directed to make a final order reflecting the terms of her original judgment.

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