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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.

Sharing Principle – Court of Appeal Gives Guidance

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The application of the ‘sharing principle’ to big money divorces is more than a matter of simple mathematics, and what family judges aim to achieve is a broadly fair outcome for both sides. That was certainly so in one case in which the Court of Appeal refused to increase an ex-wife’s £73 million award.

The former couple had two children who had grown to adulthood during their 26-year marriage and, by the time of their divorce, their overall wealth was valued at £182 million. By far their largest asset was a lighting manufacturing company. There was no dispute that the sharing principle should be applied to the case.

In assessing the wife’s entitlement, a family judge took account of the fact that the company had been founded by the husband eight years before the marriage. Taking a ‘straight-line’ approach to valuing the business at the date of the marriage, he found that the total marital wealth, net of taxes and costs of realisation, was £146 million. The wife’s award came to roughly half that total, £72.8 million.

In challenging the judge’s decision, the wife argued that her award was about £17 million lower than it should have been. Amongst other things, she pointed out that the husband owned half of the company on the date of the marriage, only later acquiring all of it. On that basis, it was said that the judge had underestimated the proportion of the company’s value that had been built up during the marriage.

In rejecting her appeal, however, the Court found that her overall award resonated with fairness. The outcome reflected the judge’s overarching view of the weight to be attributed to the husband’s contributions to the company throughout its existence. It also represented a fair assessment of the true value of what the husband had brought into the marriage via the company.

Also ruling on the husband’s cross-appeal, the Court found that the judge had erred in requiring him to pay the wife a £20 million lump sum within a year. In treating the value of the company as equivalent to cash, the judge had failed to consider whether the outcome achieved a fair division of copper-bottomed, non-risk assets. In order to achieve a broadly fair outcome, the Court ruled that the husband should have to pay the lump sum in four £5 million instalments over four years.

Commercial Surrogacies Abroad Are Not Illegal – Court of Appeal Ruling

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Although commercial surrogacy businesses have long been banned in the UK, the Court of Appeal recently ruled that a clinical negligence victim would not be breaking the law were she to enter into such an arrangement in California, where a more liberal surrogacy regime prevails.

The woman is unable to have children after she developed cervical cancer and had to undergo radical surgery. The NHS trust that was responsible for her treatment was ordered by a judge to pay her almost £600,000 in compensation after it admitted that four opportunities to diagnose her condition earlier had been negligently missed.

The woman wishes to have a family and, prior to the operation, a dozen of her eggs had been frozen. She objected to the UK’s restrictive surrogacy regime, and argued that the trust should pay the costs of her entering into a commercial surrogacy agreement in California, where such arrangements are lawful.

In refusing to make an award under that head, however, the judge in the lower court noted that, under the Surrogacy Arrangements Act 1985, it is a criminal offence to advertise in search of a surrogate or in order to offer oneself as a surrogate. In those circumstances, he found that requiring the trust to fund arrangements in California which would be illegal in the UK would be contrary to public policy.

In ruling on the woman’s challenge to that decision, the Court noted that, under English law, surrogate mothers are not permitted to bear children for reward and can only be paid their reasonable expenses. They remain the legal parents of children to whom they give birth and intended parents must obtain court orders to have their parental rights recognised.

In upholding the woman’s appeal, however, the Court found that the policy of the Act is to criminalise the provision of surrogacies as a business. Individuals who enter into such arrangements are not themselves committing a criminal offence. In those circumstances, the woman was not proposing to do anything illegal under either English or Californian law. It could not, therefore, be said that her desired recourse to commercial surrogacy offended against morals or public policy.

In those circumstances, in the Court’s view it would be incoherent to deprive her of her claim for damages at the outset when she personally proposed no wrongdoing. The purpose of the compensation award was, so far as possible, to put her in the same position that she would have been in but for the admitted negligence, and there was no bar on her recovering the costs of entering into commercial surrogacy in California. The total amount of her compensation should therefore be increased accordingly.

The NHS trust involved has announced its intention to challenge this ruling in the Supreme Court and we will inform you of the outcome of the appeal in due course.

Procedural Unfairness Stops Council Care Action

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When the mother of a teenage daughter who had been taken into care in 2016 with her agreement had another child, the local council’s social services department became involved. The woman’s daughter had been removed from home as a result of her mother’s relationship with the baby’s father. As is often the case in such situations, the family relationship was dysfunctional, having been described as being ‘characterised by alcohol consumed by both parties, but more important and additionally, alcohol which fuelled regular domestic violence within the household’.

Following the birth of her son, care proceedings were issued and the mother and child moved into a mother and baby unit. When analysing the local authority’s application for a care order, the judge took into account that ‘it was accepted by the local authority that the mother’s relationship with the child was "excellent". They were bonded; they had formed a close attachment to each other and with the wider family. There were no complaints whatsoever about the mother’s ability to parent on "a normal parenting basis".’

Concluding that the effect of being separated from the mother would be ‘substantial’ for the child, the judge went on to make a care order that he should live with his mother at home, subject to a written agreement requiring that she stay away from alcohol and the child’s father, and inform social services if there were any incidence of domestic violence on the part of the father.

Some months later, the mother became concerned about her baby’s health and the local hospital diagnosed him as suffering from acute gastroenteritis. The child’s illness led the father to arrive at the mother’s flat in the early hours of the morning and it was alleged that he accused her of being a bad mother and assaulted her. She called the police and the father left. She kept on insisting that her son was really ill and so it was agreed that they be taken to hospital, where he was diagnosed with meningitis. Following that incident, the council declined to return the child to his mother and placed him in foster care.

The mother went to court seeking to challenge the care order. At the child custody hearing that resulted, the father was not given the opportunity to give evidence, despite being present in the court. This was described as a serious error when the decision was appealed. Whilst the mother’s evidence of what had happened that night could be accepted, the finding that the father had committed assault could not stand in the absence of a chance for him to give evidence.

The result of the appeal was that the council’s application was not upheld and the child was ordered to be returned to his mother pending final resolution of the matter.

UK Fairness Test Mitigates Italian Pre-Nuptial Agreement

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The law relating to the division of family assets on divorce varies widely across the world and the UK is generally regarded as one of the fairer jurisdictions for such financial arrangements in that the assets tend to be divided more equally than in many other countries.

Accordingly, where a family with an international lifestyle breaks up and there is a reasonably strong connection to the UK, it is often chosen as the jurisdiction of preference for divorce proceedings by a spouse who might be disadvantaged if the proceedings are conducted elsewhere.

In such instances, it is often important that the proceedings are initiated here. If they are begun under a different jurisdiction, that right may be lost.

It is also the case that different countries have different rules about what sort of pre-nuptial agreements may be enforced.

In such instances, complexities can proliferate. A 2017 case that was heard in the UK dealt with the financial arrangements after the marriage of a couple who had married in Italy in 2008 and had one child foundered. They had entered into an agreement in Italy (‘separazione dei beni’) under which they agreed that the assets that each of them brought into the marriage would belong to them separately and not be split on divorce.

At issue was a massive increase in the value of shares owned by the husband during the course of the marriage. The husband argued that this gain should be retained by him exclusively, the principal reason being the pre-marital agreement.

The wife challenged his assertion. Not only was it unfair, but she had not fully understood the implications of the agreement she had signed, not being Italian. There was also no specific agreement that their property division would be subject to Italian, not English, law.

In the end, the particular facts of the case determined the division of the family assets and the wife’s settlement included only approximately a quarter of the increase in value of the husband’s shares during the marriage.

However, had the divorce been conducted under Italian law, the wife would not have been entitled to any of that increase.

Misled Mother to Lose Home

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It may sound overcautious to say so, but it is always worth taking legal advice before entering into any significant arrangement, even when it is with a trusted member of the family.

Failing to do so has proved to be an expensive lesson for a woman who has now lost her home as a result of an agreement she entered into with her son.

The facts were straightforward. The woman’s son needed money and persuaded his mother to let him take out a mortgage on her home. In order to accomplish this, she had to make her son a joint owner of the house. She believed the sum borrowed would be £32,000, but instead he borrowed £120,000 using the house as security.

When the required repayments were not made, the bank sought to repossess the house for sale. The son was convicted of fraud.

The woman argued that as she had been defrauded, her liability to the bank should be limited to the sum she would have owed had the original mortgage been for £32,000. However, the way the original form had been filled in to add her son’s name to the property title meant that his share of the property was one half. Accordingly, even if the mother’s liability were limited to £31,250 as she argued, the bank could still pursue her son for the balance and force the sale of the property to achieve that end.

Initially, the woman argued that the form used to add her son to the title was not clear and would not convey to a layman that the property would be held in equal shares. She had believed that he would have no legal interest in the property at all.

The High Court dismissed her claim. The bank had not been a party to the conveyance transferring a half share in the property to her son. Its loan was advanced later and it had no reason to believe that the transfer had been the result of undue influence or fraud.

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