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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.

Divorce is Often Bitter, But Maintaining a Sense of Proportion is Crucial

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Amidst the emotional and financial destruction that can arise from divorce, keeping a sense of proportion is crucial. The Court of Appeal made that point in lamenting a former couple’s expenditure of more than £500,000 in legal costs fighting over an asset worth less than £300,000.

At the start of the couple’s 12-year marriage, during which they had two children, they both had highly paid jobs. However, by the time of their separation, their circumstances were greatly reduced and the only asset that was potentially available for division between them was an overseas flat.

The flat was owned by a company, the sole shareholder of which was the husband’s mother. However, following a hearing, a judge found that the husband was the flat’s beneficial owner. He was ordered to pay the wife £150,000, that sum representing roughly half of the flat’s value. After the mother appealed, the judge’s orders were upheld.

In upholding the mother’s further appeal, the Court noted that the case was yet another sad example of a highly educated former couple engaging in emotionally bruising, destructive and disproportionately expensive litigation in relation to money and the young children of the marriage.

The Court found that the initial trial of the action had been infected by serious procedural irregularities and that the mother had been denied a fair hearing. There was no basis for that part of the judge’s order which set aside any transactions that had led to the flat’s title being vested in the company and ultimately the mother. She thus continued, via her shares in the company, to be the flat’s legal owner.

The Court, however, went on to uphold the judge’s conclusion that the flat was and remained in the husband’s beneficial ownership. That finding was almost inevitable on the evidence. The lump sum order made against the husband was therefore justified. The Court noted that it was a matter for the husband whether to require his mother to sell the flat in order to raise the necessary funds.

Failing to Disclose Assets Can Bite Back in Divorce

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In a case illustrating the importance of candour regarding financial circumstances in divorce proceedings, a husband who failed to disclose the true extent of his wealth to family judges was subsequently ordered to pay his ex-wife a seven-figure lump sum, despite challenging the decision.

The couple married in 1995 and separated in 2016. They had three children who remained financially dependent on them. After their acrimonious separation, the judge considered that, if possible, it was ‘imperative’ for there to be a complete clean break between the parties. The husband had refused to dissolve the marriage by means of a Get, a religious requirement in certain sections of the Jewish community.

The judge found that the case had become ‘far more complex than it need have been, largely due to the failures of the husband to provide adequate disclosure and his lack of adherence to court orders’.

The husband was ordered to pay the wife a lump sum of £1.4 million, with the Family Court providing that, if he failed to pay all or any part of the lump sum by the required date, interest would accrue. He was also required to pay £22,000 a year in maintenance to the wife until he both satisfied the debt and granted her a Get.

An order was made under Section 10A of the Matrimonial Causes Act 1973 prohibiting him from applying for a decree absolute until a declaration had been filed by the parties that they had taken such steps as were required to dissolve the marriage by means of a Get.

The Court of Appeal dismissed the husband’s challenge to those orders and rejected his plea that the judge had erred in failing to quantify the extent of his financial resources. The judge was entitled to find that such an assessment had been rendered impossible by the husband’s lack of cooperation.

The Court found that the judge had undertaken a sufficient determination of the extent of the husband’s resources given the deficiencies in the evidence caused by the husband. The judge was entitled to conclude that there were sufficient resources both to meet the wife’s needs at the level of the proposed award and to meet the husband’s needs.

Family Judge Grasps Nettle in Sending Baby Boy to Live With His Father

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Family judges are always absolutely focused on the welfare of children and will not shrink from grasping nettles to give them the best chance of leading fulfilled and happy lives. That was certainly so in one case in which a judge ordered that a baby boy be taken from his troubled mother’s care and sent to live with his father.

The mother had been diagnosed as suffering from traits of a personality disorder and her two older children had already been taken into care and placed for adoption. Her history was characterised by poor relationship choices, resulting in domestic violence, together with verbal and physical abuse of her older children.

Despite this, however, she dearly loved her youngest boy, aged one, and had made much progress in caring for him in a therapeutic environment. She wished to make a permanent home for him, but social workers and the boy’s guardian were unanimous in recommending that his father take over as his primary carer.

In ruling on the matter, the judge had no doubt as to the mother’s commitment to and deep affection for her son. The picture was not entirely bleak, but evidence revealed her sometimes erratic behaviour and her difficulty in managing her emotions and moods. In those circumstances, there was a risk that the boy would be exposed to significant harm if cared for by his mother outside a therapeutic context.

Emphasising the boy’s pressing need for stable and predictable parenting, the judge found that his welfare demanded that he live with his father, whose commitment to his son was not in doubt and who would receive support from the local authority in performing his parenting role. The judge directed that the boy should continue to have regular contact with his mother.

Court Orders Must Be Obeyed

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Public confidence in the civil justice system would collapse if court orders were not rigorously enforced – however agonising complying with them may be. The point was made by a case in which a divorcee who refused to move out of her home of 25 years came within an ace of being sent to prison for her defiance.

Following lengthy and bitter divorce proceedings, the woman had been ordered to quit the home where she brought up her children so that it could be sold and the proceeds divided between her and her ex-husband. A writ of possession was eventually issued and she was compelled to leave by bailiffs. However, she returned to the property a few weeks later and had remained there since.

As a last resort, the husband launched committal proceedings against her. He said that he had no wish to see her jailed, but the High Court noted that more than just his private concerns were in play. Those who choose the court process to resolve their differences are entitled to expect that obedience to judicial orders will be enforced to the hilt and, if necessary, by imprisonment.

The Court noted that the wife, aged in her 50s, had never previously been in trouble with the law. She was suffering from stress and was clearly struggling to move on from her divorce. The Court imposed a six-week jail term but was prepared to suspend the sentence for 15 months. That would afford her sufficient time to clear the house of her possessions and ready it for the market.

Growing Number of Cohabiting Couples Leaves More Families Open to Risk

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Cohabiting couples are the fastest-growing family type in the UK, according to newly released figures from the Office of National Statistics (ONS).

The ONS reports that the number of cohabiting couple families continues to grow faster than the number of married couple and lone parent families, with an increase of 25.8 per cent over the decade 2008-2018. It highlights the fact that more and more people are choosing to live together before, or without, getting married.

These changing demographics mean that an increasing number of people may be at financial risk in the instance of a cohabitation relationship break-up or the death of a partner. Currently, there is no such thing as a common law marriage in the UK and cohabiting couples are not afforded the same legal rights and protections as married couples.

The House of Lords is seeking to address this imbalance with the Cohabitation Rights Bill, which is currently passing through Parliament. The Bill proposes to establish a framework of rights for cohabiting couples following the end of the relationship or the death of one of the cohabitants.

The Bill’s provisions would only apply to cohabiting couples who had either been living together as a couple for a minimum period of three years or had a dependant child. It is intended to provide the right for either cohabitant, when a relationship breaks down, to apply to a court for a financial settlement order to redress a financial benefit or an economic disadvantage resulting from the period of cohabitation. It is also designed to make provision regarding the property of deceased persons who are survived by a cohabitant.

Where, If Anywhere, Do the Jet Set Call Home? High Court Gives Guidance

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Very rich people often live jet set lifestyles of ceaseless travel, so pinning down the country in which they are domiciled can be a serious challenge. The High Court faced exactly that difficulty in a case concerning the acrimonious breakdown of a relationship between a wealthy divorcee and her boyfriend.

The divorcee, who was a woman of immense means, for a number of years enjoyed a lavish and peripatetic lifestyle with her boyfriend, whom she had met at the gym where he worked. After they separated, she launched proceedings against him in London, seeking declarations that various assets acquired during the relationship – including a luxurious Italian property and a fleet of supercars – were owned by her alone, having been bought entirely with her money.

She also sought restitution of various business investments and over $9 million in cash. Her claims were based on an assertion that none of the assets and money concerned had been gifted to him and that they had been transferred to him by reason of the undue influence he had brought to bear on her.

He denied her claims and launched parallel proceedings in his native New Zealand, where the law enables division of relationship property on the permanent separation of unmarried couples. Neither of them was a British citizen and, following the end of the relationship, he had moved back to New Zealand to live with his parents. He argued that he had never been domiciled in England and that the English courts thus had no jurisdiction to entertain the divorcee’s claim.

In ruling on that issue, the Court found that he had made his home in England before the relationship ended. However, his residence and domicile in this country had ceased by the time the divorcee issued proceedings (the relevant date). His principal connection to England came to an end at the same time as his relationship and he had been excluded from his only residence in this country.

However, the Court also ruled on the evidence that he was not domiciled in New Zealand, or anywhere else, on the relevant date. On that basis, the divorcee was entitled to sue him in England in that this country was his last known place of domicile. She had also been entitled, with judicial permission, to serve him with the proceedings in New Zealand, by means of a WhatsApp message. England was in any event the appropriate forum for the trial of the divorcee’s claim in that the relationship had, for the most part, been carried on in this country.

Big Money Divorce Engages Family Judge in Company Valuation

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Companies are notoriously difficult to value, and particular problems can arise when they form the principal assets to be divided in divorce proceedings. In a big money case on point, the High Court bridged a huge gulf between the value placed by a wife and a husband on the latter’s business interests.

The couple, who had two children, were married for about seven years. The husband’s business interests, principally his 40 per cent shareholding in the company he worked for, represented by far their biggest asset. There was a gaping divide of about £9.5 million between the value put on those interests by the wife and that contended for by the husband.

On the basis of expert accountancy evidence, the Court valued the husband’s net business assets at a little under £17.9 million. Those assets were agreed to be matrimonial property and the husband was ordered to pay the wife half of their value, a lump sum of £8,948,930. The wife, who was anxious to achieve her financial independence as quickly as possible, argued that the husband should be ordered to sell his shares within 12 months and that, if he failed to do so, a receiver should be appointed to enforce their disposal.

The Court, however, noted that it was not a propitious time to sell the shares, in that the company had just experienced its two worst ever years of trading. The wife, who was from a wealthy background, was not in immediate need of funds and an early forced sale of the shares was likely to cause both her and the husband significant financial loss. The Court therefore set a date about four years in the future when the husband would be required to pay the lump sum in full.

The Court made further orders designed to equalise the couple’s other assets and to make provision for their accommodation and other needs. The husband was ordered to make annual maintenance payments to the wife pending remittance of the lump sum, when a clean break would be achieved. He was also required to pay maintenance for the children and to pay their school fees.

Divorced Overseas? English Family Judges Can Still Help You!

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If you have been divorced abroad but are habitually resident in this country, English family judges have the power to ensure that you receive a fair share of the marital assets. In a case on point, the High Court awarded a woman whose marriage was dissolved in Russia, but who had settled in London, a financial settlement of £5 million.

The middle-aged former couple, both Russian nationals, had three children during their 22-year marriage. From very modest beginnings, the husband had achieved great things in business and they had enjoyed a luxurious lifestyle. By the time of their divorce in Russia, the wife had already been living in London for some years and the Court noted that she was clearly habitually resident in England.

After the wife launched proceedings under the Matrimonial and Family Proceedings Act 1984, seeking financial relief following an overseas divorce, the husband failed to engage in the proceedings and repeatedly disobeyed court orders requiring him to disclose the extent of his wealth. The Court described his litigation conduct and his manipulation of the wife in relation to the Russian divorce as ‘appalling’.

The husband’s failure to cooperate meant that very little evidence was available, but the Court concluded that he was worth at least £22 million. The wife, who was a teenager when she married him, had made a full and equal contribution to the acquisition of the marital fortune and, had she been divorced in England, she would have been entitled to half that sum under the sharing principle. Having acquired British citizenship, her connection to this country was strong.

In the circumstances, the Court found that it would be wrong to confine the wife to a solely needs-based award. She had moderated her lifestyle since the divorce and her measured and well-judged claim was based on a very reasonable budget. £5 million, together with assets worth around £1.6 million that she already held, represented a little under 30 per cent of the total marital wealth. Given his poor behaviour, the husband was ordered to pay the wife’s £170,000 legal costs.

Court Returns Two-Year-Old to Land of Birth When Parents' Marriage Collapses

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For a UK court to have jurisdiction over a family law case, it is necessary to show that at least one party to it has habitual residence in the UK. In a recent case, an Israeli woman divorcing her Israeli husband sought a declaration that their two-year-old daughter was habitually resident in the UK so that the UK Family Court could deal with the hearings regarding the child’s welfare.

The Court refused the application and accepted that the child should be removed to Israel in accordance with the father’s wishes. He had previously consented to the child coming to the UK with her mother but then sought an order under the Hague Convention on the Civil Aspects of International Child Abduction 1980 to have her returned to Israel.

The couple had moved from Israel to the UK in an apparent attempt to salvage their marriage as part of a plan for a ‘fresh start’. The mother alleged that the marriage failed because of physical and emotional abuse by her husband, whom she characterised as ‘dangerous and violent’. However, evidence was produced that she had been advised to make false allegations about her husband to mislead the Rabbinical court, and there was a marked lack of evidence for the alleged behaviour or the mother having taken earlier action with regard to it. In addition, the rather short period between the couple’s arrival in the UK and the final breakdown of their marriage was not regarded as ‘a picture of stable integration into family and social life’.

In a long judgment (25 pages), the judge ruled that the child was habitually resident in Israel, not the UK, and should be returned there.

Time of the Essence in Overturning Agreements Made Under Duress

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We have often stressed the importance of obtaining high-quality legal advice in any dispute and starting any necessary legal action as soon as possible, and a recent divorce dispute illustrates why.

It involved a couple who were divorced in 2015. The financial settlement was made by way of a consent order and, as a result, the ex-wife received a cash settlement in excess of £1.7 million and financial support from her ex-husband for herself and their children.

In 2018 she went back to court, claiming that the original settlement had been obtained under duress and by ‘undue influence’, that her ex-husband had committed fraudulent non-disclosure of his true means and that she had not had legal advice on the terms of the agreement. Among specific allegations made were that he had transferred $5 million to his mother and had retained or ‘squirrelled away’ various assets without disclosing them.

She wished the original consent order to be set aside. Before it was made, she had instructed a firm of commercial solicitors that did not have a family law department to act for her. This was, she claimed, done at her ex-husband’s behest. That firm instructed another firm to provide her with family law advice. Her ex-husband had instructed the commercial firm on other matters and his ex-wife alleged that the arrangement had been made so that he could control the advice she was given, which she asserted was scant.

As happens in almost all such cases, there was voluminous and contradictory evidence. However, an important consideration was that the woman was aware of most of the matters about which she was complaining when the original consent order was made. Secondly, when she eventually went to a different firm of solicitors for advice, she failed to take action for nearly a year, a delay which undermined her claim as it lacked the necessary promptness. The judge commented that ‘on the hypothesis that she was constrained from bringing her application for a period because of the husband’s undue influence or duress, the onus was on her to make her application as soon as she could reasonably do so once she became free from that influence or duress. In practice, that means within weeks, not months.’

Her application was rejected.

Court Appearance May Not Mean Public Disclosure

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The principle of open courts is highly valued in the UK legal system. However, it is often a worry to people engaged in legal proceedings concerning family or marital issues that by going to court their family’s private affairs will become public knowledge.

In practice, with the assistance of expert legal guidance, many disputes can be efficiently negotiated without the need for a court battle. However, when the outcome of the dispute is court proceedings, the result may not be as bad as you expect.

Firstly, where children are involved, the courts will prohibit their identification, so that any reports are issued in anonymised fashion. Secondly, where it can be justified, it is possible to ask the court for an order which prohibits the reporting of the case.

Recently, for example, an order was granted to prohibit reporting on an appeal hearing in financial remedy proceedings in a divorce case, due to be heard later this year, in order to prevent the identification of the son of the parties involved. The Court of Appeal was of the opinion that the balance between the public interest and the right to anonymity on human rights grounds tipped heavily in favour of the latter.

Ignore Court Orders At Your Peril

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A wealthy Omani man who failed to pay to his ex-wife the financial settlement ordered by the court, or to cooperate with disclosure orders, faces arrest if he attempts to return to the UK.

When the couple’s marriage broke up, they were divorced under Omani law. However, the wife, a resident of the UK, sought and obtained orders in the UK court for financial relief (under Part III of the Matrimonial and Family Proceedings Act 1984) for herself and their children, who live with her.

The divorce took place in 2017 and the father remained in Oman, having not seen his children for many months at the time of the hearing. He did not comply with any of the court orders made and has not made the maintenance payments ordered.

In making a final financial order for maintenance and a lump sum, the judge also ruled that the husband should be committed to prison for three months for the failure to pay a matrimonial debt he clearly has the means to pay.

Absence of Evidence Dooms Unequal Shares Claim

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The legal ownership of property is not always the same as the beneficial ownership and disputes can arise when no documentation is executed to show the two are different. Such was the case in a recent dispute which occurred after a couple who had two children but never married broke up. The male partner worked in the IT industry and earned the greater part of their income. The female partner was a midwife, who switched to part-time working then gave up work to look after their young children.

The couple had moved to Hampshire from London, buying a property for £740,000 financed largely by the sale of the male partner’s property and a joint mortgage of just under £500,000. The female partner paid £39,000 to assist in the purchase, which was registered in joint names.

When the couple broke up, the ownership of the property was disputed. At the heart of the dispute was whether they intended to purchase it as joint tenants, as the female partner contended, or as tenants in common, as the male partner asserted. If they had purchased it as joint tenants, the value would be split between them equally. If they had purchased it as tenants in common, it would be owned in unequal shares corresponding to their respective contributions to its purchase.

Among the evidence given was that the male partner said in a conversation in a pub, "We are now 50:50 owners but that means you owe half the debt as well." The ownership of the property was recorded at the Land Registry as being a joint tenancy, this being consistent with the advice of the solicitor who acted on the purchase that in the event of either partner’s death, the title in the property would pass to the survivor.

At the original hearing, the judge ruled that the value of the property should be split equally. The male partner applied for permission to appeal, arguing that whilst he would have been content for title to pass if he died, while he was alive he would not have accepted a 50:50 split on a sale as he had provided more of the capital for the property’s purchase. He also contended that the evidence presented at the first hearing could not displace the assumption that the ownership would be in the ratio of the respective partners’ contributions.

In refusing the right to appeal, the High Court placed emphasis on the fact that the male partner did nothing to show that it was intended for the beneficial interest he had in the property to be different from the legal interest.

The moral of the story is that if you are buying a property with someone else and the legal title rests with all the buyers, you must ensure that if the beneficial interest is different, the appropriate documentation is put in place.

No Fault Divorce Legislation Promised in Next Parliamentary Session

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The process of divorce in the UK has for many years been seen as rather long-winded and tending to produce more conflict than need be. One of the reasons for this is that the grounds which demonstrate an ‘irretrievable breakdown’ of a marriage – the justification for a legal divorce – effectively apportion blame for the breakdown. This can cause the debate to become more argumentative than is necessary.

The Government launched a consultation last year and changes to the system were proposed to bring in ‘no fault’ divorce. These have met with overwhelming approval.

The Government has therefore promised to introduce legislation in the next Parliamentary session, which begins in May.

Mother Placed Under Improper Judicial Pressure to Consent to Care Orders

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The quality of British justice is respected around the world – but there are inevitably occasions when judges overstep the mark. In a family case on point, a mother had her two young children taken into care after a judge dismissed out of hand the  arguments put forward in her favour.

The mother was separated from the children’s father and trouble broke out when he failed to return her four-year-old daughter after taking her on holiday for a week. The mother and others went to his home, causing a fracas, and took the little girl away with them. The mother and other members of her family were subsequently arrested. The children were taken under police protection and placed in foster care.

Three days later, the local authority’s application for interim care orders in respect of both children came before the judge. She repeatedly warned the mother that, if she did not agree to the care orders, she would be stuck with any adverse findings made against her. In that event, the mother was told that the matter would probably be reported to the police and the Crown Prosecution Service.

The mother’s lawyer argued that she had faced a difficult choice and that she had been obliged to take steps to safeguard her daughter’s welfare. The judge, however, described those arguments as ‘nonsense’ and ‘preposterous propositions’ that would ‘fall on deaf ears’. Following a brief adjournment, the mother gave in and consented to the interim care orders being made. However, she soon afterwards became distressed at what had happened and lodged an appeal on the ground that she had been subjected to improper judicial pressure.

In upholding her challenge, the Court of Appeal found that her consent had not been freely given and had been secured by oppressive behaviour on the part of the judge, in the form of inappropriate warnings and inducements. Regardless of the fact that she had been legally represented, the judge’s approach went far beyond firmness and the mother had not received a fair hearing. The Court’s ruling means that the council’s application for interim care orders will be reheard by a different judge.

International Dimension Makes Child Travel Risky

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The welfare of children is always top of the list of priorities of the Family Court when making arrangements following the break-up of a family. This can be especially difficult where the parents are from different countries, as shown by a recent case in which the Court considered the welfare of a child of a Mexican mother and an English father.

When the child, aged seven, had expressed a wish to return to live in Mexico, the CAFCASS official appointed as the child’s guardian recommended that this did not occur. When the child was 18 months old, the mother had taken her to Mexico to visit her family for what was intended to be a short holiday, but had stayed there. It took four years to obtain the return of the child to the UK, in the face of deception and obstructions put in place by the mother.

Recently, the mother expressed the wish to go to Mexico to see her elderly father, and to take the child with her. The mother has formed a new and lasting relationship with another English man and lives in the UK. She claimed to be ‘in a different place’ now. The judge commented at length that there were obvious risks of a repetition of the earlier events if the application were granted.

The hearing made it plain that careful safeguards would be required and a substantial financial bond would have to be put in place by the mother to enable the father to recover the child should legal proceedings be necessary. In addition, part of the earlier separation agreement would have to be redrafted.

As the issue was not capable of resolution at the hearing, a further hearing has been scheduled for mid-March 2019 and a final hearing for July. CAFCASS was reappointed to act as the child’s guardian, with a recommendation that the same officer be appointed.

High Court Decision Underlines the Finality of Divorce Arbitration Awards

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Divorcing couples can sometimes achieve savings of both time and money by opting for arbitration, rather than court proceedings, as a means of resolving any financial disputes. However, as a guideline High Court case underlined, arbitration has its potential downsides and it is vital to remember that arbitrators’ decisions are generally treated as final.

Faced with the prospect of having to wait several months for a court date following the breakdown of their ten-year marriage, a middle-aged couple chose to submit their differences to an arbitrator. He decided that the net capital assets of the marriage should be divided 60 per cent to 40 per cent in the husband’s favour.

Such division was to be achieved by the sale of the family home and was designed to enable each of them to purchase a new property. The wife was awarded 76 per cent of the husband’s pension and he was required to pay her maintenance at steadily reducing rates up to the date of his retirement. The wife was, however, dissatisfied with the arbitrator’s award, arguing that it was untenable.

She claimed, amongst other things, that the arbitrator had failed to take into account her inability to take on a mortgage and the husband’s excessive spending following the end of the marriage. In those circumstances, she argued that the award should not, as is usual, be recognised in the form of a court order.

In ruling on the matter, the High Court noted that arbitration awards are binding in their own right, although they are generally confirmed by court order so that they can be enforced against third parties. However, an arbitration agreement, or an award, does not oust the Court’s jurisdiction under the Matrimonial Causes Act 1973 to investigate the circumstances and make an order in different terms.

The effectiveness of the arbitration scheme, however, depends on awards being generally treated as effective and binding. In pursuit of a swift resolution of the dispute, both husband and wife had freely entered into the arbitration process with the benefit of legal advice. Both had also signed a form by which they signalled their understanding that the arbitrator’s award would in principle be final.

In dismissing the wife’s arguments, the Court found that she had failed to establish any fundamental change in circumstances, or mistake on the arbitrator’s part, sufficient to undermine his clearly reasoned and balanced award. In the circumstances, the Court made an order in the terms of the award.

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  • He is very approachable and explains everything as well.
    Chambers 2019
  • Works incredibly hard for clients, and builds up strong empathy with clients while remaining objective and discerning.
    Chambers & Partners 2017
  • John Randle is efficient, calm, approachable, and realistic.
    Legal 500 - 2014
  • I received excellent service from John Randle. I could not have got through my case without all his help and support over the last 2 years.
    Mrs M
  • I would heartily recommend your services…..in such a stressful circumstance, it was such a relief to have someone of your calibre in my corner.
    Mrs C
  • John came highly recommended to me …..from the start of my case to its conclusion John was sympathetic, resolute with your advice and kept me focused and grounded. I can’t thank him enough for what he has done for me.
    Mrs H