Talking Family Law - The Resolution Podcast

This month we are joined by Natasha Shotunde (Garden Court Chambers), Olamide Ogunrinade (Garden Court Chambers) and Donna Goodsell (Goodsells Family Law) to celebrate Black History Month.  Natasha and Olamide are members of the Black Barristers Network https://blackbarristersnetwork.org.uk.  Donna is one of the Co-Chairs of Resolution’s Equality & Diversity Committee.  Natasha tells us about the last Race at the Bar report.https://www.barcouncil.org.uk/resource/race-at-the-bar-report-2021.htmlThe statistics reveal a worrying lack of diversity in the Bar.  Natasha tells us that these figures are due to be updated soon.  Donna explains that Resolution last surveyed its membership in 2019, which found that the membership was disproportionately white: https://resolution.org.uk/wp-content/uploads/2020/01/resolution-diversity-data-report.pdfResolution is currently conducting a survey to see whether these figures have improved. Donna tells us that the starting point into making Resolution more diverse has been to ensure that the Committees are more diverse.  Olamide explains the research into the impact of race on outcomes in the Family Court. https://www.nuffieldfjo.org.uk/wp-content/uploads/2023/05/nfjo_briefing_paper_ethnicity_20230518_FINAL.pdf  The research continues as to why outcomes are impacted by race. In the meantime, she draws are attention to the anti-racist practice statement produced by the Sussex Quality Circle: https://www.sussexfamilyjusticeboard.org.uk/wp-content/uploads/2023/08/Family-Court-anti-racist-practice-statement-Final-app-FJYPB-00.12.2022.docx Natasha, Donna and Olamide leave us with an idea for one thing we can all do to make a difference today.  Olamide tells us to be curious.  If we are all curious about each other’s race, religions, and backgrounds we can create a different tomorrow.

In this episode, we are joined by Professor Jens Scherpe (Professor of Comparative Law at Aalborg University, and academic door tenant at QEB), and our very own Resolution Cohabitation Committee Chair, Graeme Fraser (Head of Family at William Sturges) to discuss what model of cohabitation law reform should be introduced in England & Wales.   This is a seminal moment for Resolution.  It has been campaigning to achieve family law remedies for cohabitees almost since its inception in 1983, with it being high on its list of priorities since the mid-1990s. The new government has confirmed they are committed to cohabitation reform, so what shape should that take?  What Resolution members know is that the general law is not good enough for families.  If you need convincing, Jens guides us to think - do you think cohabiting families are families? If yes, then you need family law remedies (rather than remedies for people with no connection because purpose of family law (unlike general law) is to address societal, financial and gender imbalances that arise from being a family.    Which model would you support? Do you think, we should: Assimilate the law for cohabitees – so use the same framework that we do for married couples; OR have aDifference model - so there is a clear difference between the remedy for a  cohabiting couple, or a married couple. With all family law remedies, you then need to decide are you: a.      Compensating a partner for the loss they have experienced generated by the relationship; OR b.      Sharing the fruits of the relationship both parties have participated in.  Graeme and Jens explore the law for cohabitees in Scotland, Ireland and Australia to consider the pros and cons of each model.  We then put them on the spot to what they think we should do in England & Wales.  In the conversation, Graeme refers us to the Law Commission report from 2007: https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2015/03/lc307_Cohabitation.pdfAnd the Vision for Family Justice: https://resolution.org.uk/wp-content/uploads/2023/11/Resolution-Vision-for-Family-Justice-full-221123.pdf If you would like to read more about this, then please do look at Jen’s books about comparative law: Jens M. Scherpe (ed.), European Family Law, Edard Elgar 2016 - European Family Law (e-elgar.com)Jens M. Scherpe/Andy Hayward (eds.), Future of Registered Partnerships – Family Recognition Beyond Marriage, Intersentia 2017 -  The Future of Registered Partnerships ~ Book ~ Larcier-IntersentiaJens M. Scherpe/Andy Hayward (eds.), De Facto Relationships – A Comparative Guide, Edward Elgar Publishing, forthcoming in 2025 in the following series: https://www.e-elgar.com/shop/gbp/book-series/law-academic/elgar-comparative-family-law-series.html 

This is the final episode in Season 3 and we wanted to finish with a bang! Nicholas Allen KC (29 Bedford Row) and Michael Allum (The International Family Law Group LLP) join us to talk about applications pursuant to Schedule 1 of the Children Act 1989.  Michael and Nick start by considering the line between payments that are properly for the benefit of the child and those which a court is likely to consider to be solely for the benefit of the parent (for example life insurance premiums or pension premiums).  Nick mentions the comments of Baroness Hale in a recent interview with Sam Hillas KC for the Financial Remedies Journal, where the Baroness says that Schedule 1 reminds her of the position before White v White for wives: https://financialremediesjournal.com/content/interview-with-baroness-hale.0a4bcf411d6346ba8dbdbdc4a9adb368.htm.   They go on to examine the difference between Schedule 1 cases and Matrimonial Causes Act 1973 cases. They talk about how the resources of the receiving party, or their new partner, are unlikely to weigh in the balance in the same way as they do under the MCA.  Michael highlights that there are no sharing or compensation claims under Schedule 1.  Michael tell us that to obtain provision after the child reaches their majority the Court is really considering whether there is a dependency, rather than a vulnerability.  Michael mentions UD v DN (Schedule 1, Children Act 1989; Capital Provision) [2022] 2 FLR 308 where the Court of Appeal allowed an appeal against Williams J’s long-term property order in the children’s favour.  He then talks about the exceptional case of TK v LK (Rev2) [2024] EWFC 71 (02 April 2024), https://www.bailii.org/ew/cases/EWFC/HCJ/2024/71.html where the Court made an order for the housing fund to remain with the child. But he says that is incredibly rare indeed, save for by consent.  Nick and Michael discuss the rare occasion when Schedule 1 claims can be brought after parties have been divorced and they reference PK v BC (Financial Remedies: Schedule 1) [2012] 2 FLR 1426, and MB v KB [2007] 2 FLR 586). We move on to a discussion of what constitutes a capital payment, and what expenses should be covered by way of maintenance.   We discuss the decision of Moor J considering an appeal against a series of lump sums made by Her Honour Judge Reardon in Stacey v McNicholas [2023] 2 FLR 321.  Nick points out that strictly speaking lump sums are for strictly one-off expenditure, not for day-to-day living expenses.   Michael discusses Dickson v Rennie [2015] 2 FLR 978, and that capital lump sums are not supposed to be used to top-up a CMS assessment. We talked about the fast-track procedure in the FPR 9.20 —(1) If the court is able to determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so.   Michael talks us through the development of the jurisprudence in respect of working out the appropriate level of top-up payments, through to the current formulation in James v Seymour [2024] 1 FLR 614 which applies unless you are considering a Household Expenditure Child Support Award, the ‘HECSA’ as set out in Collardeau-Fuchs v Fuchs [2023] 2 FLR 345. We finish with Michael and Nick talking us through LSPO and the likelihood of costs awards.

Our hosts, Anita Mehta and Simon Blain, discuss what to do when a reporter turns up in your Court and the importance of transparency with Joshua Rozenberg KC (Hon) and Lucy Reed KC (St John’s Chambers, Chair of The Transparency Project).  Joshua refers us to the lessons learnt in Tickle v Father & Ors [2023] EWHC 2446 (Fam) (05 October 2023). https://www.bailii.org/ew/cases/EWHC/Fam/2023/2446.html Our guests discuss the benefits both of judgments being published and reporters having access to write up what happens.  Joshua talks about the importance of the public knowing how the state will resolve their private disputes if they are unable to do so.  He makes the point that the public are only going to know about the importance of Family Jusctice being properly resourced if the press are able to report about what happens.  They both reiterate that scrutiny of the Court is healthy. The message that Joshua and Lucy give our audience is that there is nothing unlawful or inappropriate about a party or a lawyer asking a reporter if they would like to observe a case.  This is not a breach of s.12 of the Administration of Justice Act 1960.  This has been specifically endorsed by the senior judges responsible for the Reporting Pilot, because unless reporters are told about interesting cases they will not come to Court.    They make it clear that it is not appropriate for the Judge or the other participants to cross-examine reporters about who told them about the hearing, and the reporter does not need to make an application to attend the hearing.  Lucy refers us to the Transparency Project’s guidance notes for help if a reporter turns up in a case you are due to appear in https://transparencyproject.org.uk/updated-guidance-what-to-do-if-a-reporter-attends-or-wants-to-attend-your-hearing-pilot-and-non-pilot-court-versions/.  Lucy points out, it is not for the reporter/ blogger to make an application to make an application to be present in Court, as there is a limited basis for a Court to exclude a reporter, which is found in FPR 27.11 (3). (3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that— (a)this is necessary—(i)in the interests of any child concerned in, or connected with, the proceedings;(ii)for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or(iii)for the orderly conduct of the proceedings; or(b)justice will otherwise be impeded or prejudiced. If the Court is considering relaxing reporting restrictions it will need to undertake a balancing exercise to weigh the respective weight of article 8 and article 10, as set out by Lord Steyn in Re S (a child), Re [2004] UKHL 47 (28 October 2004).https://www.bailii.org/uk/cases/UKHL/2004/47.html ‘The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For presentpurposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.’ If you would like to hear Joshua’s new podcast, you can find it on rozenberg.substack.com If you are a lawyer considering becoming a legal blogger yourself (or a journalist interested in dipping your toe in reporting the family court), Lucy encourages you to get in touch with the Transparency Project:  trustees@transparencyproject.org.uk. You can find out more about legal blogging at www.transparencyproject.org.uk/legalbloggers

We are joined by Charles Hale KC (4PB) and Tammy Knox (Pennington Manches Cooper) to discuss relocation. Charles and Tammy consider the law and principles applied in these cases.  They point out that the law is the same for internal and external relocation cases, as set out in Re C (Internal Relocation), Re [2015] EWCA Civ 1305, where Charles and PMC were successful in the Court of Appeal:https://www.bailii.org/ew/cases/EWCA/Civ/2015/1305.htmlHowever, they both agree that the welfare evaluation can be different. Charles and Tammy discuss the impact of domestic abuse and alienating behaviours.  They discuss C, Re (Parental Alienation: Permanent Removal to Germany) [2023] EWHC 1955:https://www.bailii.org/ew/cases/EWHC/Fam/2023/1955.html They make the point that practitioners should not shy away from dealing with financial plans, as cases can be made, or challenged on whether there is sufficient finance available. Charles and Tammy caution us to make sure the rules around mediation are really clear, particularly if the mediation is abroad so that clients know what is without prejudice Charles mentions research by Professor Marilyn Freeman: https://www.qmul.ac.uk/clpn/members/f/profiles/freeman.html#:~:text=Marilyn%20Freeman%20is%20widely%20acknowledged,in%20her%20areas%20of%20expertise.

What is the correct approach to a maintenance case? Listen to Sally Harrison KC (St John’s Buildings) and Farhana Shahzady (Streathers Solicitors) tell us how it is done.  Sally reminds us of the guidance of Mr Justice Peel in WC v HC (Financial Remedies Agreements) (Rev1) [2022] EWFC 22 (22 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/22.htmlwhen thinking about the quantum of a maintenance order.  Mr Justice Peel found that needs are an elastic concept, to be judged by reference to consideration of financial needs and obligations, whether there are children, and the age of the parties.  We discuss how the length of the marriage really impacts on how much the standard of living is taken into account.  Farhana reminds of guidance of Mr Justice Mostyn in SS v NS (Spousal Maintenance) (Rev 1) [2014] EWHC 4183 (Fam).https://www.bailii.org/ew/cases/EWHC/Fam/2014/4183.html Sally and Farhana discuss the distinction between cases involving wealthy families where the Court may well be inclined to make a Duxbury award, as opposed to need based income awards in the majority of cases.  We discuss the overall impression that Courts are being quite restrictive on terms and quantum of maintenance at present.   When talking about capitalising maintenance awards, Sally wrestles with the discrepancy between the Ogden tables having a -0.25% rate of return in England & Wales, as opposed to Duxbury’s 3.75% rate of return after inflation of 3%.Sally considers the following cases:HC v FW [2017] EWHC 3162 (Fam) (29 November 2017) https://www.bailii.org/ew/cases/EWHC/Fam/2017/3162.htmlTattersall Z (No.5) (Enforcement) [2024] EWFC 44 (04 March 2024)https://www.bailii.org/ew/cases/EWFC/HCJ/2024/44.html Farhana tells us why it is important to consider the impact of menopause, when considering maintenance quantum, term and nominal maintenance.  She shares the details of her survey about the impact of maintenance in family law and financial remedy cases.  Resolution will be releasing a spousal maintenance handbook in Summer 2024. Please check the website for details.

This month we are joined by Hilary Woodward (Honorary Senior Research Fellow with Bristol School of Law), Paul Cobley (Oak Barn Financial Planning) and Rhys Taylor (36 Group) to discuss PAG2: https://www.nuffieldfoundation.org/wp-content/uploads/2023/A-guide-to-the-treatment-of-pensions-on-divorce-2nd-edition.pdf Hilary tells us about the changes in PAG2 and mentions the guide to the changes which is available on the webpage: https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/The-PAG2-Guide-%E2%80%93-What-Has-Changed-1.pdfThe changes include the Divorce, Dissolution and Separation Act 2020, apportionment, short-marriages, lifetime allowance, Galbraith tables, and where there is an age-gap between the parties. Rhys explains the Galbraith tables – which is an attempt to provide the ‘true value’, or ‘market value’ of a defined benefit pension (not defined contribution schemes) for the purpose of divorce other than by use of the CE.  They provide a multiplier according to the person’s age and benefit to use against the income stream for a pension.  PAG2 says they are useful starting point, but remember they are a tool not a rule, which can be used when considering off-setting without the assistance of a PODE.  They have not had high level judicial consideration but they do appear in At A Glance.  Remember the current tables were drafted in early 2022 so just as the war in Ukraine started, and prior to Liz Truss’ terms as Prime Minister so there have been lots of changes in the bond markets since then.  The tables will be updated in the next At A Glance.  Paul reminds us that most of the time we are dealing with deferred pension scheme benefits i.e. where an employee has a pension scheme benefit from a previous employer.  It is therefore really important that you obtain the re-valued income to today’s date and not what the income would have been on date the person left the company before applying the multiplier.  We discuss off-setting, and that the key thing to ask yourself is do you have a broad handle on what the gross value of the pension is worth before you start trading it with other assets. Followed by apportionment - when is it appropriate, including in short marriage cases.  Importantly PAG2 stresses that the relevant date, when apportionment is appropriate, is when seamless cohabitation prior to marriage commences – therefore we all should stop asking seeking the additional pension calculation from when the actual marriage starts.  We discuss that the Lifetime Allowance is being abolished by the Finance Act (No. 2) 2023:https://www.gov.uk/government/publications/abolition-of-the-lifetime-allowance-from-6-april-2024/abolition-of-the-lifetime-allowance-lta#:~:text=At%20Spring%20Budget%202023%2C%20the,work%20to%20abolish%20the%20LTA%20. The lifetime allowance tax charge has in effect already been abolished, and from the 6th April 2024 the lifetime allowance will be abolished.  However, it will be replaced by the lump sum allowance, and the lump sum and death benefit allowance in the future.  The complexity comes that if a person had lifetime allowance protection before 6th April 2024 that allows a higher lump sum than is available on the standard lump sum allowance basisunder the new Act, they would still be able to benefit from the previous protections. Therefore, you must still find out whether the parties have a lifetime allowance protection.  There are four new suggestions for dealing with when there is an age gap between the parties, and one party is receiving their pension, and the other person needs the pension to meet their needs but is too young to receive it currently.  PAG2 now also suggests consideration of judicial separation (not divorce), spousal maintenance, an increased percentage PSO or consecutive orders (pension attachment to pension sharing orders).  Also deferred pension sharing orders are technically possible but inherently risky.  We discuss the problem with ‘moving target syndrome’ i.e. that the value of the pension at the time of the transfer is likely to be different to the value it was at the time of reports/ trial.  This is particularly an issue with Defined Benefit Schemes, although it affects Defined Contribution schemes too.  Unfortunately, in the last two years the values have often been a lot less at implementation (where in the past they have been a lot higher).  It is important that we advise clients of these risks.  Hilary, Paul and Rhys endorse the Survival Guide to Pensions on Divorce: - https://www.advicenow.org.uk/guides/survival-guide-pensions-divorceFor lay clients and litigants in person.  It is too is being updated, and is due to be released in May 2024.  Finally we say goodbye to Hilary.  Do read Rhys’ article about Hilary in the financial remedy journal at: - https://financialremediesjournal.com/content/interview-with-hilary-woodward.871526729c204f91bd4346757b9895b2.htm

This month we are treated to this tour de force by Robert Cole who is Head of the Family Team at Broadway House Chambers, Leeds and regularly sits as an arbitrator and ENE/pFDR adjudicator across the country, and Peter Smith from Quantis Forensic Accountants about how to analyse business accounts.  We immediately launch into a discussion about what should cause you concern in business accounts, and the well known issue that businesses always seem to be failing when people are getting divorced.  Therefore, how professionals need to have four to five years accounts to be able to look at trends.  Peter suggests we should take an overview of:Has revenue, sales or turnover gone down?Have gross profit margins gone down? And Have costs gone up?These factors will provide a good indicator of any causes for concern. Robert adds to that you should have look at what fixed assets there are, and whether the valuation has been updated.  If you consider these points, you will have good insight into whether you need to ask for a valuer from the Court.  Peter and Robert give us some tips for questionnaires, including: Asking for a copy of up-to-date profit & loss accounts, management accounts and balance sheets as most decent size businesses with accounting software will have that immediately available;Summaries from the VAT portal; And always checking viewing the Companies Article of Association;  We discuss when valuations from the business’s own accountants are reliable. Before moving on to consider what type of valuations should be used for each business.  Robert advises us that to be successful in a Daniels v Walker application that you first need to have tried to clarify matters with the expert, but even where you are not going to pursue a Daniels v Walker application but just want to make submissions about the reliability of the conclusions then questions are important to tease out vulnerabilities in the report.  Peter also points out that there is a distinction between wanting to challenge the expert’s judgment – which can be done without a separate expert – and where an expert has made a mistake for example an error in the factual basis. We discuss when should a quasi-partnership apply, and Robert advises us to use the checklist from Re: Bird Precision Bellows [1986] 2 WLR 158:close working relationship between the shareholders (usually pre-existing the incorporation);restriction on the transfer of shares to a third party;the shareholders continue to be actively involved in the day-to-day running of the company (not necessarily employed but consulted about day-to-day and strategic decisions) During the discussion, we refer to the following cases:  V v V (Financial Remedy) [2005] 2 FLR 697J v J [2014] EWHC 3654   HTTPS://WWW.JUDICIARY.UK/WP-CONTENT/UPLOADS/2014/11/J-V-J-JUDGMENT.PDFMartin v Martin [2018] EWCA Civ 2866 – risk and liquidity https://www.bailii.org/ew/cases/EWCA/Civ/2018/2866.html Versteegh v Versteegh [2018] EWCA Civ 1050 – on the lack of reliability in valuationshttps://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2018/1050.html&query=(versteegh) Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 https://en.wikipedia.org/wiki/Ebrahimi_v_Westbourne_Galleries_Ltd G v G (Financial Provision: Equal Division) [2002] 2 FLR 1143 - Where shareholders act in concert and would be unlikely to sell separately then discount less applicable Clarke v Clarke [2022] EWHC 2698 – on whether a minority discount should applyhttps://www.bailii.org/ew/cases/EWHC/Fam/2022/2698.html Technical factsheet from ACCA – for minority interests discountshttps://www.accaglobal.com/content/dam/ACCA_Global/Technical/fact/technical-factsheet-167.pdf  WM v HM [2017] EWFC 25 (09 May 2017) https://www.bailii.org/ew/cases/EWFC/HCJ/2017/25.html

In this episode we are joined by Professor Emma Hitchings (Bristol University), Professor Emerita Gillian Douglas (Kings College, London), and Joanne Edwards (Chair of Resolution’s Family Law Reform Committee/Forsters) to discuss the Fair Shares report. This report is the first time there is a fully representative picture of the financial arrangements families make (and in a lot of instances, don’t make) on separation and divorce, and how they arrive at those arrangements.  It is essential reading for anyone practising, or interested, in this area. The full report can be found here:https://www.bristol.ac.uk/media-library/sites/law/news/2023/Fair%20Shares%20report%20-%20final.pdf In this episode Emma tells us that the report found that the median value of assets on divorce is £135,000.  Thus, the cases that hit the headlines are not representative of most people’s experiences.  The research serves to dispel a lot of myths peddled in the media about finances on divorce. In the research the academics classified the divorcees into different types or mindsets i.e. how they viewed their marriage, and their hopes on separation.  This arose from the qualitative data.  We discuss how using this typology can help understanding of how divorcees reach different outcomes despite having similar circumstances.  Broadly, there was: The unequal couples – they can be the most problematic to help. There is invariably a power imbalance, and there could have been domestic abuse, including financial abuse.  In these cases, it is not possible for the parties to genuinely negotiate.  The effect can be that the less dominant party walks away with nothing, or a poor agreement. The partners – these couples were a true joint enterprise during the marriage and that feeds through to how they agree things should be divided on divorce. The housemates – these couples were individualistic during the marriage, they saw things as ‘theirs’, they kept their finances separate during the marriage, and they expect to keep what is ‘theirs’ on separation. The parents – in these relationships the children are the most important concern, and the division of assets is structured to support parenting.  The parent with care was found to be very focussed on the immediate future.Jo considers how being aware of these divorcee types may feed into practice. Emma and Gillian hope to be able to analyse whether each type impacts on the outcome process in the future. We discussed how spousal maintenance is relatively uncommon, and where it is granted it is definitely not a ‘meal-ticket’ for life.  It is virtually always for a fixed term, and that term is generally linked with child-care responsibilities, and it is really associated with financial vulnerability of the receiving spouse.  We consider whether a different term would help dispel the myths as very rarely are people ‘maintained’ – they are usually working and just having some assistance in meeting their living expenses. The research found evidence that mediation outcomes did not work out as people expected in many more instances than outcomes arrived at through lawyer negotiations or court. We try to analyse why that may be this case; was it because people had exhausted other options and felt obligated to get to an agreement in mediation. Jo, as a mediator, considers the implications. We invite our guests to share some concluding thoughts for reform.  Gillian believes that how we share pensions (as only 11% of cases have pension sharing orders), and the needs of older children would be obvious areas for reform.  Emma says that this research dispels the proposals that there should be a time-limit on maintenance, or a presumption of 50/50 sharing as that would lead to unfairness and parties being unable to meet their needs.  As we look ahead to the Law Commission publishing a scoping report next September, Jo applauded the fact that Fair Shares gives a proper evidential basis for any reform. If you would like to see all our guests speaking at the launch of the report, please follow the link below:https://www.youtube.com/watch?v=cLTLL77qvW8

This month we take an in-depth look at mediation with Jo O’Sullivan (O’Sullivan Family Law), Dr Jon Symonds (University of Bristol) and Rachel Chisholm (The Mediation Space, 4PB).In November 2022, Dr Symonds with his colleagues Emma Dermott, Emma Hitchings, Eleanor Staples, and Heather Ottaway from Bristol University published research with the Nuffield Family Justice Observatory, called Separating families: Experiences of separation and support:https://www.nuffieldfjo.org.uk/resource/separating-families-experiences-of-separation-and-supportJon tells us about this research and how they looked at 42 people’s experiences of separation.  Eight participants in the study had been to mediation and told the researchers about their experiences.  Some participants said they had appreciated the information and signposting, but another said they had found it frustrating because the mediator had not told their ex-partner they were being unrealistic (and when the case did go to Court, the Court also found those requests unrealistic) and another had found it distressing because the mediator had been unable to manage the power imbalance.  In this study, all of the participants had tried to avoid going to Court, and had only used it as a last resort. We all agree that mediation is the gold standard for resolving issues about how to care for children.  We go on to talk about whether mediation works when there is a huge power imbalance between the parties, and whether there has been sufficient screening for domestic abuse in the past.  Jo talks about  the importance of having an initial appointment with each party separately, and whether that should be a mandatory part of mediation.  We discuss whether cases with allegations of domestic abuse should be automatically exempt from mediation.  Rachel reminds us of the importance of ‘do not harm’.Jo shares some insights from her book ‘(Almost) anything but the family court’ https://www.familyseparation.shop/All three of our guests talk about how the timing of mediation is key – both in terms of where the parties are in terms of their separation, and where they are in terms of proceedings.  Whilst acknowledging there can be difficulty with identifying when parties are emotionally ready, and what to do if they are ready at different time. We conclude with some thoughts for the future, including whether Court ordered mediation could work, the ability to have Early Neutral Evaluations provided to parties for mediation, and whether some of the rules and regulations around mediation should be lifted.  

This month we talk to Professor Jane Monckton-Smith.  The Professor is a specialist in homicides that are preceded by domestic abuse and coercive control.  This is important for every single professional working in the family justice field because the Professor tells us that separation is the single biggest factor in homicide.Coercive control is domestic abuse – it is not a facet of domestic abuse. It is a pattern of behaviour designed to trap someone in a relationship.  This can be violence/ stalking/ financial abuse/ psychological  etc.  We are reminded that it is the control, not the level of physical violence that is the metric for risk.  We discuss bi-lateral violence and how difficult that is for the Court to determine risk.  The Professor tells us that there maybe two people who are being violent, but only one of them is controlling; we need to identify that person.The Professor also tells us about the eight stages on her timeline before fatal violence.  The Professor points out that anyone who is perpetrating coercive control, domestic abuse, or stalking, is somewhere on this timeline although that does not mean that it will always result in fatal violence.   However, she questions whether concepts like ‘low-level’ domestic abuse – sometimes used when there is limited physical violence - is a helpful approach.  The issue is not whether the victim-survivor has a broken bone, it is about the level the of control.The Professor tells us how each stage on the timeline represents an escalation, and each of these stages can cause the victim-survivor serious harm.The Professor also reminds us that not all disputes about children involve coercive control, but we need to identify the cases where the perpetrator is using the family justice system to continue their abuse.  We need to be alert to the fact that perpetrators are likely to be very at home amongst the fray of litigation.  Victim-survivors may find it easier to just agree with what the perpetrator wants, or could appear intractable, because they are determined not to have their children experience the thing that they have.We also talk about how to approach initial advice, injunctions, Clare’s Law, whether there should be capacity for findings made in family cases to be shared with Police, when coercive controlling people have the capacity to change, what to look for in a perpetrator course, the use of coercive control experts, and so much more. If you would like to know more about the Professor’s work, she has written a book ‘In Control; Dangerous Relationships and How They End in Murder’.

In this episode we are joined by Nicholas Bennett (29 Bedford Row), and Connie Atkinson (Kingsley Napley) who are both experts and enjoy pre-nuptial work including drafting, supporting or challenging pre-nups in Court. Any discussion of pre-nups of course starts with Radmacher v Granatino [2010] UKSC 42, but we swiftly move on to Crossley applications (an application to the Court that the process of disclosure should be truncated because of the existence of the pre-nup) pursuant to Crossley v Crossley [2007] EWCA Civ 1491https://www.bailii.org/ew/cases/EWCA/Civ/2007/1491.html.  It is ‘tempting but risky’ was the conclusion, so it is only prudent when the pre-nup is a knock out blow. We discuss the three essential procedural points that the Court is looking for before giving weight to the agreement – no unfair pressure, financial disclosure and independent legal advice.  We touch on the suggestion that an agreement has to be signed 28 days before the wedding and its relevance to giving time and space to understand and reflect on the proposed agreement and advice being given. We then turn to duress, fraud and misrepresentation and whether they are vitiating factors and what you would take into account when evaluating their impact on the agreement.  Connie refers us to the case of Traharne v Limb [2022] EWFC 27 (31 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/27.html  and AD v BD [2020] EWHC 857 (Fam) (08 April 2020) https://www.bailii.org/ew/cases/EWHC/Fam/2020/857.html.Nick discusses whether it is possible to entirely exclude what would otherwise be matrimonial property in a pre-nup, and refers to  Brack v Brack [2020] EWHC 2142 (Fam) (29 July 2020);  https://www.bailii.org/ew/cases/EWHC/Fam/2020/2142.html.  Connie discusses whether a pre-nup meets needs. She refers us to Ipekçi v McConnell [2019] EWFC 19 (04 April 2019);https://www.bailii.org/ew/cases/EWFC/HCJ/2019/19.html, and Cummings v Fawn (Rev1) [2023] EWHC 830 (Fam) (14 April 2023) https://www.bailii.org/ew/cases/EWHC/Fam/2023/830.html.  Nick mentions HD v WB [2023] EWFC 2 (13 January 2023) - https://www.bailii.org/ew/cases/EWFC/HCJ/2023/2.htmlWe also discuss international agreements, and marriage contracts, including CMX v EJX (French Marriage Contract) [2022] EWFC 136; https://caselaw.nationalarchives.gov.uk/ewfc/2022/136

We all agree that costs applications, and costs orders, are becoming more prevalent in Children Act as well as financial remedy proceedings.  Public policy certainly seems to favour the use of costs orders as a way of ensuring that litigation is proportionate and reasonable.    In this episode we are assisted by HHJ Reardon (who sits in East London Family Court and the CFC hearing both Children Act and Financial Remedy cases) and Laura Moys (barrister at 1 KBW) talk us through costs orders in respect of Children Act and Financial Remedy cases.   We discuss LSPO including: ·      HHJ Reardon reminds us (in the context of ever increasing interest rates) of the provision in Rubin V Rubin that: viii) If a litigation loan is offered at a very high rate of interest it would be unlikely to be reasonable to expect the applicant to take it unless the respondent offered an undertaking to meet that interest, if the court later considered it just so to order. ·      What happens in second LSPO applications; and ·      LSPO in Children Act proceedings, including the need for equality of arms in accordance with BC v DE (Rev 1) [2016] EWHC 1806 (Fam) (21 July 2016). We look at Costs orders in Children Act cases, and are reminded of the dicta in Re S (a Child), Re [2015] UKSC 20 (25 March 2015).  They discuss when a Court may order costs after a fact-finding hearings and refer to Re T (Children), Re [2012] UKSC 36 (25 July 2012).  Finally we discuss costs in Financial remedy proceedings, including:·      the Court’s approach to making orders that cover legal costs in needs cases.  Laura refers us to Azarmi-Movafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184 (30 July 2021);·      When we should be dealing with costs arguments; and ·      General guidance about Wwhat is and is not reasonable, in order to consider what sort of positions may result in costs orders;·      We are reminded that the Court can make costs awards where a party has refused to negotiate; JB v DB [2020] EWHC 2301 (Fam) (23 July 2020);

We could not have been more excited to have the opportunity to speak to Mr Justice Mostyn before he retires at the end of the month.   We discuss Movers & Shakers – his highly successful podcast with five other Parkinson’s sufferers: https://cureparkinsons.org.uk/2023/03/movers-shakers-six-familiar-faces-launch-podcast-about-living-with-parkinsons/  Plus his best case, and thoughts on transparency of course!    The Judge clarifies that Hildebrand documents are admissible if relevant, but the case of Immerman deals with professional conduct around such documents. The Judge explains and justified the rates used for Duxbury, and invites Resolution to attend future meetings about the rates.  Finally, for all Resolution members you will be pleased to hear that the Judge completely supports the proposition that there should be no difference between the Court’s powers if the parties are married or not.  This episode gets better and better as the Judge goes on.  During the discussion the Judge mentions:   RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – this is the case Mostyn J discussed being most proud of.  Xanthopoulos v Rakshina [2022] EWFC 30 refers to the case of J v J [2014] EWHC 3654 (Fam)   Evans v Evans [1990] 1 WLR 575, [1990] FLR 319  James v Seymour [2023] EWHC 844 (Fam) (child support)

In this episode we speak to two keen advocates known for their appellate work; Chris Barnes and Joe Rainer.  Chris speaks about appeals in Children Act work and Joe speaks to financial remedy appeals.  We discuss how to evaluate the type of decision – is it an evaluative or discretionary decision, or is it a finding of fact and how this impact on your likelihood of success.  This is the speech of Mr Justice Mostyn about that:https://www.judiciary.uk/speech-by-mr-justice-mostyn-to-the-hong-kong-family-law-association/In the context of the discussion, Joe talks about the decision of HHJ Hess in SC - and -TC  [2022] EWFC 67 in respect of a pre-nup:https://caselaw.nationalarchives.gov.uk/ewfc/2022/67We also discuss the ability of the respondent to put in a written response to an appeal, pursuant to:Jolly v Jay & Anor [2002] EWCA Civ 277 (7th March, 2002)https://www.bailii.org/ew/cases/EWCA/Civ/2002/277.html Chris mentions that the current case law in respect of costs on appeal in Children Act cases is contained in Re S [2015] UKSC 20 and Re T [2012] UKSC 36https://www.bailii.org/uk/cases/UKSC/2015/20.htmlhttps://www.bailii.org/uk/cases/UKSC/2012/36.htmlPlus we cover when to file a notice of appeal, caulderbanks, when to participate in the permission stage, costs, and procedural issues. If you have an appeal, or a potential appeal on your desk, this is a really helpful episode.

In this episode we chat to Natasha Watson (Acting Head of Law at Brighton & Hove City Council),  Caroline Lynch (Principal Legal Advisor at Family Rights Group) and Hannah Markham KC (36 Family) who were all members of the Public Law Working Group which reported in March 2021:https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdfThis is a wide-ranging discussion about the issues facing the family justice system.  Natasha and Caroline discuss the importance of Courts and social workers drawing a distinction between parenting in poverty, and poverty.  Natasha draws our attention  Anti-Poverty Practice Statement developed by the Sussex Quality Circlehttps://www.sussexfamilyjusticeboard.org.uk/sussex-fjb-bulletin/They discuss whether 26 weeks is achievable, and whether it is even the right KPI in respect of case, the importance of Family Group Conferences and pre-proceedings work, and experts.  This includes reference to Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam)https://www.judiciary.uk/wp-content/uploads/2023/02/Re-C-Parental-Alienation-judgment-220323.pdfFinally they discuss the importance of the right support package for special guardians and the need for us all to be more familiar with the special guardianship guidance.  The Public Law Working Group Best practice Guidance in relation to Special Guardianship can be found here:https://www.judiciary.uk/wp-content/uploads/2021/03/Special-guardianship-BPG-report_Clickable.pdfThis document produced by Family Rights Group sets out in detail the legal and practice framework relevant for financial support for special guardians:https://frg.org.uk/wp-content/uploads/2021/09/SG-allowance-briefing.pdf

In this episode we discuss the burgeoning jurisprudence around the impact of economic abuse on financial remedy cases with Olivia Piercy (Partner at Hunters Law) and Michael Horton KC (Coram Chambers). Olivia and Michael discuss the following cases in the episode:   Traharne v Limb [2022] EWFC 27  DP v EP (Conduct: Economic Abuse; Needs) [2023] EWFC 6  DN V UD (Schedule 1, Children Act 1989; Capital Provision) [2021] 2 FLR 497 

Listen to Natalie Gamble (a solicitor and the director of NGA law) and Andrew Powell (a barrister at 4PB) consider the current law in respect of surrogacy before the law commission releases their final report due in Spring 2023.  This is a wide-ranging discussion about the principles behind surrogacy, surrogates consent, and commercial surrogacy.  This is a really helpful episode if you have a client approach you about obtaining a parental order in respect of their child.  We discuss reading down the legislation to make it compatible with the Human Rights Act 1998, and the concern about the impact on individual’s rights in this field if they did not have recourse to invite the Court to make a Declaration of Incompatibility.  During this discussion, Natalie and Andrew refer to:  Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) - where the High Court read down the legislation to permit a parental order to be made after the 6 month time limit has expired. Re Z (A Child) (No 2)https://www.bailii.org/ew/cases/EWHC/Fam/2016/1191.html - where the Court made a Declaration of Incompatabilty in respect of the statute at that time which required two applicants for a parental order; this has since been amended. Re X [2020] EWFC 39 - https://www.bailii.org/ew/cases/EWFC/HCJ/2020/39.html - where the High Court read down the legislation to permit a parental order to be made where the male applicant tragically died during his wife’s pregnancy; Natalie also talks about the research conducted by Brilliant Beginnings and University of Cambridge into why people looking for a surrogate often go abroad, which can be found here - https://brilliantbeginnings.co.uk/education-and-awareness/.  Natalie invites the listener to get involved with the campaign for law reform in this area at - Surrogacy law reform brilliantbeginnings.co.uk If you would like to buy Andrew’s book ‘The law in relation to surrogacy’. The book is available to buy from Amazon; https://www.amazon.co.uk/Practical-Guide-Law-Relation-Surrogacy/dp/1912687496

Listen to Michael Edwards (a barrister at 4PB), Amy Rowe (a partner at Dawson Cornwell) and Roz Osbourne (the Director of GlobalARRK which is a charity to support the stuck parent and children) discuss the law in respect of child abduction.  Amy and Michael take us through recent case law in respect of the defences to return orders under the Hague Convention 1980, and the use of inherent jurisdiction, they share practical and specialist insights about how to approach these summary proceedings.   In the discussion they refer to: Re B (Children) (Abduction: Consent: Oral Evidence) (Article 13(b)) [2022] EWCA Civ 1171 Re NY (A Child) [2019] UKSC 49 G v G [2020] UKSC 9 Roz invites us to look at abduction cases from a different angle and the impact on the ’stuck parent’.  GlobalARRK supports the stuck parent and campaigns for change to the current law and procedure.  Follow the link to read their Principles for Change document https://www.globalarrk.org/policies-principles/ Note, just before the end Michael says ‘abduction’ when he means and is talking about ‘asylum’ - this was just a slip of the tongue. 

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