Hello, welcome everybody. Very pleased to welcome you to today's session through Data law. My name's Safta Mahmood. And uh today then I'm going to be taking you through this live webinar in family and matrimonial cases by way of an update for spring 2024. So this is part one. I've split a session up into two parts for you. So that in total, it's for an hour and 30 minutes, I'll split up into two parts to make it easier for you. And with that in mind, the learning objectives of this session, we'll be taking you through some updates some in 2023 and also some of the updates in early 2024. And I'm looking at this as an update in May 2024. So the areas I'll be going through with you in this order of ease. Firstly, the first part of the session, I'll be taking you through some aspects on divorce and disillusion, some of the changes, some of the updates and I'm gonna be taking you through some changes in so far as financial matters are concerned, financial remedy applications and some updates on that and case law developments and then we'll tie that in with cohabitation, particularly schedule one of the Children that claims I'll then be taking you through some of the aspects, some of the other aspects surrounding cohabitation, uh sorry, uh personal protection orders and tied in with Children law matters. So we'll be looking at some elements of private and public Children law and uh also some development surrounding personal protection and therefore the Domestic Abuse Act of 2021 in particular. And this course is particularly relevant for those of you who are advising on family and Children law matters to keep you updated with updates and changes. And therefore it will be relevant for those of the advising and representing clients in these matters. Ok. So that's uh that's the aim and like I say, I'm looking at the laws of May 2024. So let me then start with the position with divorce and finances. So looking at some updates and uh see what the position is as far as this is concerned. So many of you will be familiar with the fact that ever since the sixth of April 2022 we've had changes to the procedure and also the law when you're running divorce cases for married persons, dissolution of civil partnership cases, and also nullity of marriage and nullity of civil partnership cases. So how has this changed matters in a way in which we progress divorces? Well, many of you will be aware of the fact that there are still some practitioners who have got cases under the old law ie those that lodge before the 31st of March 2022. You've got this link that I put here for you. This was last updated on the 28th of July 2023. And this continues to provide the procedural uh layout in so far as running cases under the old law because some of you in no doubt would still have cases where you've perhaps got as far as getting what used to be called decreed eyesight now referred to as conditional order. So you'll have that and you haven't yet applied for the finalization of that. By way of applying for final order, it might be because you're still in the process of negotiating the finances, for example. So maybe you've got some of those aspects at the moment. So therefore, you need to know what the procedure is under the old law. So here, then as you can see this procedural guide gives you information surrounding submitting the case, requesting personal service, for example, amending the petition, apply for dispensation and deem service, alternative service journeys, return the acknowledgement, apply for NSA and apply for final order. So you can see it's got the procedural elements there. But as many of you will of course, have divorces under the old law now, sorry under a new law. Now you then need to be ensuring that you are following the procedural guide relating to divorces on or after the sixth of April 2022. So you got this procedural guide here and this was last updated on the sixth of November 2023. So dealing with sole applications for divorce that some of you will be familiar with joint applications, whether you got lawyers on both sides, whether you got litigants in person on one side or the other and also archiving a draft divorce, if for example, the client gave instructions to pursue a divorce but wants you to not pursue that as yet. So you can archive it and then un archive it if they change their mind and they wish for you to continue with that going forward. Also, it's possible to do a joint application where you've got one lawyer acting for both parties as well. So you've got the procedural guides there and just bear in mind, of course, because most divorces now you'll be doing through the online portal sold through my H MC TS, the online portal, which means making sure that you are uploading the necessary documents. So uploading an image of the marriage certificate or civil partnership certificate, you should be retained the original order certified copy that's brought to you. You may need to produce that to court during the proceedings. Sometimes make sure making sure that all four corners of the marriage certificate are seen in the image, making sure it's a color as opposed to black and white copy of it, making sure that if uh the marriage certificate is not in English, making sure it's translated if the name is different to what it is on a marriage certificate for the client, making sure you change sending in a change of name deed and any other supporting documentation that may be required. Now under the new law, of course, it is possible to still put in the defenses under section 10 of the MC A 1973. So this is where this case of Thacker and Thacker is still a very useful and necessary case even under the new law, this is one whereby the wife had applied for divorce, she hadn't yet applied for final order. She wanted the finances to be resolved was close to. So she didn't apply for final order, her husband as you know, he can then apply three months after to pursue to section 92 of the MC A. So he put his application in to finalize a divorce wife at that stage, putting the defense under section 10 2 of the MC A on the basis that she was arguing that he had made no provision towards her financially at all or what he had provided was insufficient. And she claimed that he was a billionaire, she alleged serious financial non-disclosure on his part and therefore she would be seriously prejudiced if the divorce was to go through on this basis. And the court did therefore allow the section 10 2 defense to succeed. And therefore, that would delay and hold up the divorce until such time as there was further progress made in relation to uh the resolution of the finances. And all, even though tha was a case, which on the facts seem to suggest that the section 10 2 defense may be more relevant in those cases where it is of big money cases. Now that we've got this new divorce law, one would need to really ask themselves as to whether or not this would also be relevant for cases under the new law and therefore for your average wealth cases also. So again, very important to bear this in mind. Also bear in mind you've got section 10 A of the MC A. So this is where you've got a situation whereby you're dealing with a case where say you're for the wife and uh you're doing the civil divorce for her and say it's a family where they are orthodox Jewish family. Uh She would know and no doubt you would need to bear in mind that even if you were to do the civil divorce for her, this does not end the religious marriage. She remains married. And therefore, this is where it's important for her to ensure that she uh does obtain the get with a Jewish divorce documents that are best in the Jewish divorce court. But this can only be obtained by consent. So she needs to consent and her husband needs to consent. If he was unwilling to consent, even though the community would no doubt seem to encourage him to do so, he cannot be compelled to. And if he was not to consent to get, then under Jewish law, they remain married. And therefore the stigma that that would cause her uh in, in the community going forward would be tremendous. And that's why it's very important. Therefore, to bear in mind, the divorce Religious Marriage Act of 2002, which allows the fact that if she cannot obtain a get in these circumstances, because the husband's not prepared to consent to it, then he would be prevented from using that as a financial or emotional weapon in these circumstances. And therefore effectively the wife can put in the defense under section 10 A to prevent the civil divorce from going through until such time as the as the get has been pronounced. So again, very important to bear that in mind. Now, just a few days ago, we had the updated guidance on changing the method of service when it comes to divorces. So this was updated on the first of May 2024. So that many of you will be aware of the fact that if you do go on to the portal, you'll then be selecting a master service, whether you want the court to serve or whether you wish to elect solicitor service. Sometimes you will have to select solicitor service. If for example, you're looking to serve outside England Wales because the court will not serve outside England Wales. If you're serving somebody who doesn't have capacity and say they've got a, an attorney represented them or maybe a deputy appointed to the court of protection. In which case, you would have to serve the attorney or the deputy in those circumstances. But let's say you have selected court service. The respondent hasn't returned the acknowledge about service. You now wish to change the method service to solicitor service. That's where you can do so. And then you'll then be arranging for service upon the upon the uh respond, not you personally. Of course, it may be, you use other methods in all circumstances such as process service, for example. OK. So this could be used where say the applicant serve the application but the respondent's not been sent back the acknowledgement in all circumstances. OK. This is where you could be completing the form D 11 to the appli or court to change the method of service. There D elevens could also be used when you want to wish to use other methods of service. So for example, if you wish to serve through whatsapp, for example, or if you wish to serve through social media, then you may seek permission of the court to do so via filling in a form D 11 which the notes of application then uh attaching to that your evidence and support as to why you're confident that the person should be able to get notice through whatsapp or facetime ie what evidence is there to show that they will be able to communicate through that manner. You could also use the D 11 to apply for costs order, which isn't common under the new law. But it's possible also to apply to extend the period of service at the time of service. Because if you're responsible for service, you're selecting solicitor service, you are required to serve within 28 days of issue of the application. And if, if you do not, you do need to be applying for an extension of time. And again, the way to do that is to complete a form D 11. Other examples of when you may use the general application, the D 11 route might be where you're seeking the court to disclose the res seeking for an order for the court to provide you the address of the response source to effect service, to maybe apply to rescind a conditional or find order, for example, to stay on a conditional to find order, for example. And if you wish to apply to say dispense Ford service, then the form you use for that is called AD 13 B. So there is that now just last week, there was also updated the guidance and apply for conditional orders in terms of sole and joint applications. So you'll be aware of the fact that once a 20 week period has expired after issue, then one can apply for conditional order. So like I say, you do have to wait for that 20 week period to have had passed first, you need to be able to confirm to the court that the acknowledgement service has been received or there are other methods that were used to affect service. So whether for example, the responder has been served through court bailiff through maybe process server, alternative service methods or would have deemed to have been served in the circumstances. Or you've got an order for dispensation of service. So you do need to show that either the acknowledgement has been returned or there has been the alternative method of service or like I said, dispensation of accordingly. And this is where then you'll be applying for conditional order. Once that 20 week period has expired, you can also apply for conditional order on the basis of a joint divorce. Of course. So if you got say, say your husband and wife to both wish to end the marriage, then effectively both could be the applicant. So you got applicant one, you got applicant two, then there will be the D eight completed by either the same lawyer or separate lawyers. In most cases that will be uploaded on the portal. It'll be issued. You then got that 20 week period, as we mentioned, once that's done, then they will be able to apply for the next stage of a divorce, which is a conditional order. And again, you'll have applicant, one, applicant two, they'll both be applying in those circumstances. Let's say you for applicant, one and your client wish you to continue with the stage of the divorce. But the other side has now changed their mind and they no longer wish to continue with the divorce. It is possible then after 14 days for your client then to choose to switch the joint divorce to a sole divorce. So that provision is still available uh under the uh under the new law in that regard. And in terms of applying for final order, the link for this was also updated just last week. So first of May 2024 we can apply for final order six weeks to the day after the conditional had been granted. If of course you do not apply, then the respondent can apply after three months thereafter, pursued section nine. So paragraph two of the MC A. So that provision is available and if you do not apply for final order and it's been 12 months since the conditional order was handed down, then you need to apply out of time. And that's where although you can apply for final order, you, you would need to then provide an explanation as to why the application was made out of time. It might be because the parties were attempting a reconciliation or they were perhaps continuing to negotiate on the finances, for example. But you do need to give an explanation as to why it was applied out of time as it's referred to or overdue application as it's referred to. Now again, with the joint divorce, as I mentioned, it might be that the two of them wish to jointly end the marriage. So you got applicant, one, applicant, two, they would join joint and then complete the D eight. They would join and apply for conditional order and they would be expected to jointly apply for the final order. But again, it's possible that in fact, they may change their mind on that and one of them may change their mind. In which case again, you got to wait for that 14 day period before you can apply for that to become a sole divorce. So that provision is, is still available there. Now, because of the fact that we're all now having to employ and use the online systems, not just for divorces, but across the board, in all areas of family law and other areas of law, errors will be made, mistakes will be made in that regard. And and therefore we all obviously have to be very vigilant of this and make sure that uh that we're very careful in the way and the manner in which we are using the technology. And with this in mind, this recent decision of Williams and Williams highlights this, this was handed down just a few weeks ago, this judgment on the 10th of April 2024 by the president, Sir Andrew mcfarlane. And this was a case involving a lawyer who applied in error for the final order in relation to the wife here. So even though this firm had been acting for his wife, they were also obviously acting for other clients as well by an error, they applied for final order on the wrong file. So it shouldn't have been on this client's case, it should have been on another one. So at 5:14 p.m. on the day, in question, the third of October, the lawyer in error is reported to apply for final order. And because of the speed at which this system is now employed, the final order was granted uh effectively uh some 20 odd minutes later. In fact, at 5:35 p.m. on the same day. And this is where the lawyer discovered a mistake. Uh thereafter, they discovered a mistake a few days later on the fifth of October, that in fact, although they had applied for final order, they applied on the wrong file. So this particular case, they were not ready yet and they shouldn't have applied for final order. So they saw to rectify that. So they filed ad 11 with the court on the sixth of October requesting that final order be set aside. And this is where the court was not prepared to do that the matter was referred to the President of Family Division who wanted to therefore hand down a a judgment on this and, and obviously hear legal submissions. And the president said that there was no uh reported to authority where decree absolute file order had been set aside in circumstances of complete procedural regularity. And here there was regularity in the sense that the application was made albeit on the wrong file. But nonetheless, the application was made once a six week day had passed. So as far as the court was concerned, there was no procedural failure. Here. Some of you may remember there were a number of cases decided some years ago where lawyers had applied for divorce had lodged ad eight. But without compliance of section 31, I it lodged the application for divorce before the 12 month period, minimum period for a marriage. And they hadn't picked up that error. The court hadn't picked up that error. The court had handed down the decree absolute. And the question was, could the court set aside that procedural failure and allowed those decree absolutes to stand? And the president said no, because there had been a procedural failure in that case. Whereas here they hadn't made, this application had been made albeit on the wrong file by the lawyer. But there had been compliance with the F pr here. And the president said there was no author authority, legal authority established that final order in such circumstances. Was considered voidable. So the court said because of that, we cannot render this voidable by the lack of actual consent for the wife where her solicitors were authorized to act for her. And the court is entitled to accept the application final order as badly obtained. On behalf of her behalf, there'd be no other reason to consider setting aside the order condition order having had been made voluntary, but a valy wife having had been entitled to apply for the order. So therefore, on that basis, the court said we simply cannot regard this as voidable. It is and was obviously genuine mistake and one that was understandable, but the application that was made was was valid in the circumstances. And therefore, on that basis, the court was not able to set it aside on that basis. So again, you can see the importance of this and therefore, one of the key lessons I would suggest to be learned from this case is mistake was no defense here. And obviously, you need to be very, very careful in using the portal to check and double check and triple check. And in fact, if you go on to the portal, they will be on there, there will be made provision on that on there for the fact that one can check and double check. And in fact, the parties names will be on there. So it obviously needs us to be vigilant when we're completing this and just bear in mind, other risky situations, you know, we can end up with this. For example, replying to all emails, how many lawyers do that rather than having to put in the email address of each parties individually? Because as you can imagine, the emails may then be sent to people who would not intend to be the recipients in those circumstances. Should additional safeguards be required by hm CCS. Some lawyers would say arguably not because in fact, you are taken to a number of screens before you, you then submit. So therefore, it does require that element of being vigilant in that regard. Let's now start looking at some of the other updates in so far as um this family law update is concerned. So let's have a look at some of the updates surrounding financial remedy and cohabitation related matters. And first and foremost, many of you will be familiar with the fact that we've got the family mediation voucher scheme. This became available in March 2021. It's extended up until the end of March next year. So 2025 and this is relevant where let's say you've got a situation where uh uh say you've got um a, a client who wishes to pursue a private Children law application or they wish to pursue a financial order for which there are also private Children law cases already ongoing or are contemplated. In that case, they can seek assistance from the court, from the minister of justice pilot scheme of £500 towards the cost of financial assistance towards the cost of mediation if they decide to go down that route. So they would be eligible for this. Firstly, if they have attended a Mayan, either because the Mayan requirements required them to order the court directed them attend and they did decide to attend and the proceedings are either private Children or cases or financial remedy cases for which there are already private Children or cases or they are contemplated and they wish to therefore go down the route of seeking mediation. And the purpose of this scheme when it first came in this contribution towards £500 when it first came in was designed to deal with the reduced backlogs in cases as a result of the Coronavirus pandemic, but also to really encourage more. So now uh to encourage more and more people to continue with trying to resolve matters other than longcore dispute resolution such as sort of core system as in so through mediation as in this case. Now, this family mediation voucher scheme is still available. It was the vouchers were issued by the Family Mediation Council up until the 31st of July 2023. But as from November 2023 these vouchers are now being issued by uh a limited. So even though they're still available and they will continue to be until the end of March 2025 and possibly extended beyond then than have been issued by the Oia Limited Company also bear in mind. Uh last month, there were these other provisions that came in insofar as the use of non court dispute resolution. So that when you are lodging an application for private Children or application or a financial remedy, then practice. Section three A has been amended to cater for the fact that the court, although they may will issue the application at the point of issue, they will need to ensure they are inquiring into the into the exemption that's claimed. So for example, if somebody has ticked the box to mark it as urgent and therefore, that was the reason why they ticked the box to say the matter was urgent and hence why they did not attend the maya. It is important to ensure that the court inquires as to why they mark it as urgent. What was the urgency in the circumstances? And this is where if the court feels that the exemption has not been validly obtained claimed or is no longer applicable because it's no longer urgent. For example, then they may direct the parties to attend the May and they may even adjourn the proceedings to enable them to, to do so. Also, uh it's now necessary for the parties to also follow the court when they are lodging these applications. A standard form setting out what their views are on using non court dispute resolution as a way of resolving matters. Uh So this would be relevant in Children or cases in finance cases in that regard. So as to set out what their views are in relation to N CD R, would they consider it? Have they considered it? Would they wish to partake in it if so? And if not, why not in those circumstances? And if the court has recommended that the parties engage in SN CD R, so if the court has adjourned the match to enable them to attend N CD R or adjourn the proceedings, generally for this, if a party fails to attend in those circumstances, then the court can now consider whether or not to make a cost order against them in those circumstances. So again, you can see the importance of this to encourage parties to go down the route of um attending the Mayans, uh sorry, attending uh and making full use of N CD R in these circumstances where it would be appropriate in relation to financial remedy matters. On the 12th of December 2023 Mr Justice Peugh and his honor judge Hes handed down these, this note where they said that the online system for contested financial remedy cases has been mandatory since February 2023. And uh both judges were concerned that it was apparent that practitioners were completing the wrong tabs on the online system. They weren't as familiar as they should be. And therefore, this was really a very strong message to be sent to lawyers to make sure that they familiarize themselves with the process of managing cases online. And again, that you can see the importance of this to make sure that mistakes are not being made. And also to ensure that we can effectively use the system and therefore to maximize efficiency in that regard. Now, sometimes you'll have cases whereby 1 may wish to be looking at pleading conduct in a financial remedy case. And if so, this is where this case of uh T set Feo and Kay Rover uh is very important. This decision by Mr Justice Peel of Fourth of August 2023 very important case. And one that really, I would suggest that we need to really remind ourselves about that importance when you are pleading conduct in these finance cases. Uh So this was a financial remedy case, assets were uh some 48 million. So obviously a big money case uh and the wife was seeking uh 50% and therefore half of that and therefore she was seeking 24 million. The husband however, was pushing for 6040 split in his favor. So therefore, that would really work out to 29 million to him and his wife getting 19 million. And uh you, you can see again here, this was a big money case. There were uh combined costs of just over 3 million representing both of them. Now, his lordship was concerned that um why is it that the costs were so significant? Why had they not been able to reach settlement? And part of the reason was because of the conduct issues that had been raised. There'd been 11 court hearings, there'd been 21 sworn statements. No stone had been left unturned. So you can see the level of conflict here between the parties. And in fact, this was a case where they had divided, the Children had divided their time between the parties. They had been child arrangements, order made and um both parties were born in Russia. Each now held UK Russian and Cypriot passports. It was a marriage of 11 years. Her husband's career was in two software systems and uh like I say, a big money case, it was a very high standard of living by both of them. Uh They deployed as wealth to acquire various properties of various jurisdictions. They had expensive jewelry and art flew regularly in private jets. So obviously a very luxurious lifestyle and um the husband ran conduct. He, he raised conduct, but he raised it very late later in the proceedings. He raised the fact that the the wife had shut him out of the family assets with very little in his sole name. He could no longer access family bank accounts for his personal business use. And the Ukraine and Russia conflict, exasperated the uh the difficulties there. Now, one of the things his lordship did say that if one is pleading conduct. It's very, very important to make sure that it's pleaded appropriately. Uh So that sometimes lawyers will inappropriately plead conduct in these circumstances. Conduct as you know, for the personal section 25 2 G should only be pleaded in circumstances where it would be inequitable to disregard. It's got to be what's good, gross and obvious. And his lordship did say that when you are asserting conduct in a finance finance case, there's two stages to it that have to be met. The first stage is you need to prove the facts that you're relying upon. So you need to set out the facts, you need to prove those facts because of course, they may well be disputed. And if those facts are established, they need to be satisfying conduct threshold at a high or exceptional level. So, so you can see here, it's got to be set at a very high level to standard. And secondly, even if you can identify that and you have set it at the very high level, then secondly, you have to show the negative financial impact it has upon the parties which has been generated by the alleged wrongdoing. So putting it simply, there has to be a causative link between that act or mission and the financial loss, you have to show that link. So just um being able to show that there was conduct, but without being able to show how distant has that causative link would simply be insufficient, there has to be has to be the two. And even if you can establish that, then you move on to a second stage of test of stage two. So that stage one is established, then the court will then go on and consider how this misconduct should impact upon the the outcome of the financial remedy proceedings. And this is what a judge will now embark upon basically applying the section 25 exercise. So even if conduct is made out, even at that exceptionally high level, and even if you can show that causative link, how then would the judge then take into account in exercising his or her uh discretion in applying to section 25 criteria. So putting it simple, putting it simply how much of an impact will that conduct that has been established have a bearing on the section 25 discretion. And that's where the judge then has to look at that and consider accordingly. Now, this is where his lordship did say that there is a tendency for parties to inappropriately fill in the conduct box on a form me. Ok. Sometimes lawyers will put on their box 4.4. And for me that many of you will be familiar with, they'll put on their something like they reserve their position on conduct or they may put prejudicial comments which do not in any way, remotely approach the requisite threshold. It just doesn't hit the threshold at that high level. And his lordship said that these practices are to be strongly deprecated and should be abandoned. The former leaves it hanging in the air, ie reserving your position, the latter bodies to waters and raises the temperature ie where you're putting prejudicial comments which really don't, don't go as far as that high threshold. So you can see the difficulties there and the correct procedure his lordship said is this conduct is specific factor, it must be pleaded, it's inappropriate to advance it at any final hearing. And particularly if it doesn't even meet the high threshold of that stage. So you can't just slip it in through the back door when the front door is not available. It's not something you should leave at the final hearing unless of course the information, the evidence wasn't there to support it previously, a party who seeks to rely upon it therefore must do so. Idealist opportunity. They should set out specifically the allegation, how it meets this high threshold and identify the financial impact caused by that. Ok. It should be clearly set out in box 4.4. Therefore, for me, court is banned obviously to consider the family procedure rules having regard to the overrunning objective in that regard, the court should determine. Therefore, at the first appointment, how to manage the alleged misconduct. So is it going to be allowed? So even though the parties have now pleaded, it, is the court going to allow it to be taken further. Has it been pleaded at that level where the court is satisfied that it does satisfy the exceptionally high threshold in those circumstances, the court needs to take into account proportionality. Uh Obviously, the increase in costs if it's going to be pursued and and therefore progress in that regard and therefore potentially diminishing the the um prospects of settlement. And the court would then have to take into account whether this allegation, even if it is proven at that requisite high level, would it be material to the outcome ultimately? So if it's, for example, going to be an average wealth case, is it really going to have a bearing on the outcome? For example. Now the court did say that sometimes the alleged conduct may show its head after provision of four ES which which is understandable. One obvious situation could be where somebody dissipates assets uh and money is in the lead up to trial. So they did it at that stage. Should a party seek to advance a conduct claim this must be brought to court as soon as possible in those circumstances and it should be pleaded sooner rather than later. Usually an exchange of short focus now to statements will suffice in that regard, but they should set out the facts asserted how they meet that requisite high threshold and what the consequential financial loss of detriment has occurred in the circumstances. So you can see the requisite standard at which it has to be met. And what about litigation misconduct? His lordship did say that for IVO of doubt, this suggested procedure would, would not be necessary or appropriate when a party relies on litigation misconduct, the court would no be able to do it swiftly with costs at the hearing in, in its time honored fashion. Ok. So here on the facts of this case, the husband in his former stated, he reserved his position. Number of matters came to light after the date of his for me. And uh the court at the hearing required the husband to identify conduct applications which he did and he basically put forward six specific heads of alleged conduct which he advanced. Um But the court did not allow the conduct to go really beyond that home. The husband was arguing that because of the conduct, the asset should be split 6015 in his favor. Um But the court did not allow it because the court said that they had already adjudicated on those matters. They didn't really see any justification for quantifying conduct on a broad based approach. Uh It was based on, on really putting matters forward in closing, which was not part of the case in opening. So therefore, really could have been something that was pleaded much earlier uh in that regard. And what about penalizing the wife in relation to litigation costs? Well, that's one of the things that was being sought here in the circumstances. And the court on the facts did say that they would be looking at penalizing the wife in costs because of her litigation failure and that's exactly what happened. So the judge then on the same day handed down the next judgment, which was the Sako and K Rover decision, the fourth of August 2023. We're here. The judge did in fact make a cost order against the wife of 50% of the husband's costs and those were to be paid on an indemnity basis. Ok. Now, when you're dealing with pensions, uh there has been recently updated the second edition of the guided treatment of pensions on divorce. This is the document by the report of the pensions advisory group of 2024. Put a link there for you. It's a very useful document that gives you a lot of useful literature on the position with uh dealing with pensions. Uh when you're advising on finances. Now, sometimes you may well have a case whereby there is a content application that's been made in relation to financial remedy application. This was uh raised in this case of Williams and Williams by Mr Justice Moore of October 2023. And this was a case whereby the father in this case, the husband was in contempt of court. Uh And um there had been a penal laws attached at the head of the order. Uh the husband had been required to file a for me by a certain date as well as other documents in readiness for the FDA the first directions appointment. He had lawyers at the time, the husband knew about the order, there was a penal notice attached, but he hadn't complied with the order and therefore he was in contempt of court. So what would the court do in these circumstances? Well, first and foremost, the court did say that the burden of proving the contempt is of course on the applicant and they have to show and satisfy the court on the criminal standard ie beyond reasonable doubt. So it's got to be at that level. The seriousness of the situation were brought into focus by the fact that when the father arrived at the airport, he had been away and then we arrived at the airport, he was immediately arrested, pursuit to a bench warrant that had been made by the court. Previously, he was kept in custody overnight. This was a big shock to him because this had been somebody who had previously been a law abiding citizen to find himself in custody was a big, big shock to him. And the court was satisfied that this finally had brought home to him. The seriousness of this matter and the fact that he just couldn't ignore court orders and failure to, to attend hearings, it needed to attend, it needed to comply uh with uh with these court orders. So therefore, what sentence would the court be imposing upon him bearing in mind he was in contempt of court. Well, he did uh admit the contempt. So therefore, that would obviously be taken into account. And the judge did say that there were two aspects to a sentence for contempt. The first was a punishment for not having had complied with an order which was serious in itself. So that the punishment factor and then the second one is to ensure compliance with the order. And therefore both would need to be taken into account. And here, the court was satisfied that only a custodial sentences would sentence would do. There was really no other option in the circumstances given the husband's sheer failure to comply with the, uh with the terms of the uh the uh the orders. And the court said this, they said that although they were going to be imposing a prison sentence, it was gonna be suspended. So they're gonna be making a suspended prison sentence and they would suspend it on the basis that they really wanted to achieve the overall outcome, which was for the husband to complete his, for me and participate in these proceedings. So essentially the court would suspend the sentence for a period of 28 days to enable the husband to file his for me. And therefore, it was suspended on terms that he would complete a comprehensive form. And he said now his entire financial position within 28 days of the order, if he failed to do so, then this is where the court would then be requiring him to then serve that time in prison. So you can see the purpose, therefore, why the sentence was going to be suspended on the fact to ensure compliance with the terms of the order. As for costs, the court did say that the wife would be entitled to the cost of the application and that would be on an indemnity basis. There had been various hearings made entirely as these hearings had been listed entirely as a result of the the failing on the part of the father and the court therefore did make an indemnity order costs order which was assessed in the sum of £58,000. But this would not be enforced without leave of the court given that the court had already made a previous costs order in relation to legal services funding. Ok. So you can see the sin in there there. Now staying with situations where persons are not complying with terms of orders. There's been this other recent case about capitalization of periodical payments, orders made and also the use of Atkinson's orders. So this is the case of re Z number five enforcement. This decision by Mr Justice Cobb handed down on the fourth of March 2024 in the family court. And basically this was a case involving an application brought via schedule one of the Children relating to a 33 year old. The child had been living with a mother. Parents are not married and their relationship ended even before the child was born. And this was a case where there had been previous judgments, substantive judgments. In fact, this was the fifth substantive judgment that the judge decided uh and uh delivered in this case, and the mother in particular was applying for the capitalization of the previous periodical payments order that had been granted. And the question really was, would the court capitalize, would the court allow in the circumstances for the capitalization of the periodical payments by way of enforcement? And um the court set out that this child had a particular health needs which obviously needed the the full support and therefore the mother who was actually providing substantially towards this child's health needs needed to ensure that there was the benefit of these orders and that there would be compliance with them. So there were three applications at this stage now before the court, firstly, for continuation of a without notice freezing order that had been made against a father in relation to some of the assets this had been made in November 2023. So that was a without notice order made. Now the court has been asked on the return date uh and and a further order uh to be made for that to continue. Secondly, for capitalization of the ongoing personal support for the child, the periodical payments effectively which was being used to cover the child support, the nanny care and also the education and thirdly for an order known as the Atkinson order following a case of Atkinson and Atkinson in 1952. So this was a case where a child had particular health needs. The child had cardiovascular disease, developmental delay and learning challenges. The mother was a primary care of this child. There had been back in November 2023 the freezing order made whereby the mother had applied for a worldwide freezing order that was applied for and obtained and granted without notice. And this was in the sum of 8.6 million. But even that judgment was being ignored by the father. So you can see even after making these orders, there were concerns that the father had not been really compliant with his expectations. As for the Schedule one award, the Schedule One Children Act Award that had been made, this covered a number of different elements and two of the principal parts of this award were these firstly, the husband had been required. So the father rather had been ordered to provide a sum of 3.65 million for a property to be settled on the child until the child attains the age of 18 or sees tertiary education. As you know, this is quite typical with these types of schedule one claims where the property may be transferred into the name of the mother as in this case, as a primary carer until such time as a child attains majority or in this case seizes the tertiary education and then once the child hits that trigger, then it reverts back to the other person. So here the father was to provide a sum of 3.65 million for property to be settled on the child until uh the child uh attained that uh that that uh particular trigger. I either the child turned 18 or seized tertiary education. And secondly, the other main order that was made was for the father to pay a lump sum to reflect the expenditure for the benefit of the uh the child. Not a problem. It was the father hadn't complied with these schedule one awards. So he hadn't complied with these orders. So hence, when the wife, the mother rather applied for capitalization, by way of enforcement, her legal team was saying that uh they would be asking the judge to consider making a contingent order for capitalization of the periodical payments and other financial support in the event of default in payment by the father. So if you fail to pay once again, then really for the capitalization to come into effect straight away. Um The previously, the court in the previous hearing, I'd asked for this contingent order for capitalization. But the judge at that stage had refused because they said, look, he needs to be given the opportunity to comply with the order rather than imposing these automatic triggers. But now obviously, it was different because now the evidence since, since those awards had been made and coming up to pretty much six months, at least, if not longer, the evidence had shown since that final hearing that he was not complying. So the evidence clearly demonstrated that the father had a clear opportunity to pay, but he didn't, he was encouraged to pay, but he failed to do so. And therefore on that basis, the evidence spoke for itself, the judge did say that it was rare for a court to capitalize child support. And on the facts here, the court said that unless there was any other remedy really, there was very little else they could do, but it was rare for a court to capitalize child support. In this case, the periodical payments for the benefit of the child. But then what else could the court do here if there was no other remedy? And what the mother suggested was that the capitalized award should be held by a company for the benefit of the child on the basis that any residue would be returned to the father at the conclusion of the child's period of needs. Obviously, once that trigger came to effect, if there was any excess, it would be returned to the father. But given the excuse me, given the range and the extent of the child's disabilities, it seemed unlikely that this child would ever be in a position of self sufficiency. And the judge did say that this was really one of those rare cases where it would be appropriate to make a capitalized pp order to cover, not just obviously, uh the money that the father was to be paying towards the child's needs, but also to cover the school payments and also the costs of a nanny in that regard. So you're looking at an amount of about 3.6 million which he was to pay and for that then to be capitalized. So how would the court then capitalize that? And this is where the court would be looking at the multiplier. Are you looking at the number of years outstanding for support multiplied by the computer annual award? So what was the amount multiplied by the number of years outstanding? So to what period of time and that's how the court would actually work out. What amount would be capitalized in that regard? What about the second order? That was being the third order that was being sold because the first order I remember was the continuation of the freezing order which was done. The second order was the capitalization of the PP orders which was done. And the third order or that was being sought is for the Hodgkinson order. And the application was uh that this order would apply to the mus application for capitalization of the support payments. And effectively what the mother was asking for is an order in the form of the Hodgkinson order that the father should not be able to participate in or seek to defend, uh, that application. And less than until he had first complied with his financial obligations of the substantive order and the freezing order and paid into court, the sum of, uh, just over 8.5 million. So, basically, he shouldn't be allowed to participate in or seek to defend the application until he's complied with, with these orders. And the, the wife or the mother rather were arguing that because he hadn't in any sense, the word complied with the process, should the Hodgkinson order therefore be made in the circumstances? While the court looked at the criteria that needs to be met in deciding whether to make this order was in contempt, was the contempt deliberate and continuing. Was it an impediment to the course of justice? Was there any other realistic and effective remedy? And was it proportionate? Well, under facts. In fact, the court was satisfied that all of these requirements were in fact met, the court satisfied that the father was deliberately in contempt in lieu of the award. Uh And uh he even said it was outrageous and it was continuing, there was an impediment to a course of justice court made findings as to the child's medical housing, domestic needs. These were not being met by the father's non compliance. He was not working with the court in this regard for over a year now he had been avoidant, he hadn't even attended the hearings and even the freedom order. Uh, the problem is enforcement in the US may be problematic. So when you put all of these factors together, the court did say that would make the, uh Hinson order in the circumstances and therefore they did and therefore effectively, the court therefore made the old father would not be permitted to her on any issues permitted to relating to the substantive Shaan water, freezing water and capitalization until such time as he had complied with his uh obligation to pay these amounts. And as for costs, costs were being sought on an indemnity basis for the applications, the mother's costs were in the region of some £89,000. And the court was satisfied that the mother had been put to considerable litigation expense uh in relation to these proceedings and she shouldn't really be left out of pocket pocket in pursuing these orders that were had been made for nearly a year. So on that basis, there was also the costs order made against her father in these circumstances, right? Ok. So this is the part two of the live webinar on family and matrimonial law update for spring 2024 through data law. Now, in this second part of the session and what I'm going to be doing is continuing with some of the aspects surrounding finances. We'll be going through a few more cases on this and cohabitation in terms of schedule one claims. Also, I'm going to be spending a bit of time going through with you some of the updates surrounding private and public Children or cases and also elements of domestic abuse. Now, this case of Sy and personal representatives of the estate of Dy deceased is, is an important one of August 2023 this decision by Recorder Hames Casey. And really, it looks at the issues surrounding the you sort of bar the principle when it comes to pension uh sharing orders. And it's one whereby it was the former husband this time around he applied for permission to appeal out of time, an order that was made in financial remedy proceedings. Uh the year previously in September 2022. Uh this was a case where there had been a pension sharing orders. In fact, two orders made uh of 40.8% of the husband's two NHS pension arrangements. These were NHS funds which had different years and hence two different annexes. And basically the former wife had the benefit of pension sharing orders representing 40.8% of each of these which would then be provided to her as part of the financial order settlement. Why did the former husband bring this application to a period out of time? Well, because sadly, the tragic death of the former wife has to financial remedy proceedings, she died prematurely at the age of only 50. Now would the court be granting the former husband leave to appeal at a time and, and on the facts, they, they did, there was no real dispute between the parties ie the husband, not the former husband I should say. And also the estate of the former wife, they all agreed that yes, these pension sharing orders should be set aside. P bet hadn't yet been granted. The former wife's personal representatives were obviously acting on her behalf of the estate. Um, here, the former husband, he didn't apply to set aside a pension sharing in order to prevent the pension provider from implementing the pension sharing order. That's pursuant to regulation for pension sharing implementation and discharge of liability to 2000. And that's why he didn't need to apply because the application is set aside was not opposed. But what was the dispute between the parties? Well, essentially it was this, the reason why the former husband said that, uh, he wanted to set aside and set aside the, uh, the pension sharing order was he was out of view that the lump sum payment should not be made at all. And he said that a lump sum payment should not be made at all because that's what the deputy DJ had made by, with a pension sharing order essentially based on needs. And he said that the reason for the pension sharing orders that were made was to provide an income for the full wife upon her retirement. She had only limited NH pension fist and her husband who was a medical professional. And this is why she was given a pension share to really meet her future income needs and really to meet her future, he has needs and things uh going forward. But of course, this was no longer required given that she had tragically died. So therefore, on that basis, the former husband was saying that, uh, not only should the order be set aside, but there should be no requirement for him to pay any lump sum towards the former wise estate. And uh his argument therefore was that the distribution of the pension assets by the deputy DJ had nothing to do with sharing of resources. It wasn't treated as capital. He said it was merely a way of providing towards his former wise future needs in that regard and therefore that no longer applied on the facts and it was accepted that the court did have the authorization to allow permission to appeal at a time and to set aside the order on the basis of the part of principle. Um So the court did say that yes, section 24 A subparagraph two of MC A doesn't prevent the court from setting aside a pension sharing order. The NHS hadn't yet implemented a pension sharing order. Um There was correspondence on that basis and um the question was as to whether or not a former husband should in fact be paying any lump sum at all. Now the question therefore, which the court had to really determine was on what basis? Had the first instance, judge made the pension sharing order? Was it just for income or was it also for capital? Was it just to assist the wife in relation to her future income needs such as housing or did it represent capital in terms of really uh providing her with an amount which represented her contribution towards the years of marriage. And his honor said that the position between the two positions were very close, the court would deem it would that it would not be fair if the court was to leave the estate with nothing from the husband's pension share on the facts. The court said they did not accept that the deputy DJ made the order for the pension sharing order just on the basis of providing for income needs in retirement. Um It was clear from when one looked at the judgment, the Deputy D J's judgment from the existing legal principles that there was inevitably going to be an element of sharing, there was going to be an element of a sharing element and therefore an an entitlement in that regard. It couldn't be said that the pension of the former husband were in some way premarital or should be ring fenced just to be able to therefore provide for need. And if the court went with what the former husband was arguing, then basically he would be benefiting from the very early death of his former wife if the court didn't make any provision for some compensation to the former wife's estate. So therefore, the court wasn't prepared to do that. They were satisfied that the pension share was made to an extent, also towards meeting the capital needs of the uh the wife and representing therefore her contribution towards the marriage. And therefore that continued, even after her death, that continued in that regard. So therefore, what would the court do? What a judge would accede to the respondent's proposal with one caveat? So they would set aside a pension sharing orders, but with one caveat and that is, he would have six months on the sale of the home to complete the purchase of an alternative property or otherwise provide security for a lump sum that would be ordered for him to make. If that for uh security wasn't forthcoming within that six month period from the sale of the home, he would be paid to the estate on on that date and penning the six month period, the court direct the sum of the 531,051 would be retained by the solicitors having conduct of the sale of the home. So effectively, he had six month window to find ro into property which could be used as security. Ok. So you can see how bad it was relevant here. But also the court wanted to ensure that the estate of the former wife would not uh be penalized here by her early death. Now, this is where we also need to bear in mind. Uh uh Other cases which will be looking specifically at the position uh surrounding uh the uh the position with the contribution towards debts and all sorts of positions surrounding what would happen if one is unable uh to be able to deal with matters uh going forward, particularly if there are situations whereby uh one has large, large debts, for example. So if they say there's an application that is being made uh for periodical payments order, then would the court in those circumstances allow um the person to be expected to continue to keep borrowing until such time as they would potentially be able to pay and clear those debts and not necessarily in those circumstances. Now, this next case that I wanted to take you through is the case of TK and AC this was of 10th of November 2023. And what this case looks at is this will the court order, periodical payments to be made which potentially will lead to an increase in debts to the payer. So by making these orders, if they're in debt in this will really continue, will the court make that order requiring the payer to pay in those circumstances? So this was a case handed down by Mr Justice uh Sir Jonathan Cohen and the application was this time made by the husband. He appealed against the order requiring him to pay the wife in these circumstances. Effectively, there had been orders made that he was to be paying £1000 per month backdated to earlier in 2023. And then from the first of October 2023 to pay an increased amount of just over 3.5 £1000 per month until the financial remedy proceedings were determined. And he was also to pay a legal services order in a sum of some £4000 per month for four months. So you can see there were quite substantial payments that he was being required to be making in these circumstances. Now, the difficulty in this case was this, the husband had very large debts and you can see here, his indebtedness had just risen. Uh He had a, he had debts amounting to about 1.7 million. Some of these debts took the form of about half a million due to HMRC uh and uh credit card debts of about 100 and £50,000 commercial debts of 100 and 25,000 directors loan debt of some 625,000 if that wasn't paid for the tax liability, various debts to various friends and family. Now about £300,000. So significant debts would simply were not going away. And the issue was this, if the court did order him to pay the periodical payments under the legal associates order as they did, if that was on the facts, likely to increase his indebtedness. Should the court be doing that or should they really be drawing a line under this and saying really, this is just not feasible in the circumstances. There's no doubt that obviously the husband had been living substantially beyond his means. So what would the court do? Well, the court said it was plain that there were no solicitor involved. The court needs to, of course, firstly, discharge that legal services order. This was no longer appropriate given that there were no lawyers involved any longer. The wife had no harm. Uh This was one where uh the, the court had ordered the, um, the increase in the order. It wasn't any longer relevant. The wife had approached the council for housing but faced with the argument that she had voluntarily given up a private rented accommodation, the wife's needs were obvious, obvious as well there. So what would the court do? Well, the court took the view that they just simply couldn't order the maintenance order in the circumstances where as in this case, there were no source of funds that could be identified. The director's loan couldn't be extended. There was no commercial lender who had been identified, no person was prepared to advance any money in these circumstances where no security could be given. And really all the court was left with was just continuing to make these orders with the indebtedness would just continue and the hope that really there would be some way of meeting these debts. So on that basis, the court had to take the very firm approach and they allowed the appeal and therefore would discharge the orders, ok? So you can see the thinking behind that. Now, the other case I wanted to take you through this case of PF and QF and what this case looks at is the position with, with surrounding applications for financial order where one has been found to have been vigorous. So what would a court be doing in these circumstances where if one is found to have committed bigamy, does that prevent them from pursuing a financial remedy application? So this was a case of PF and QF of 15th of January this year handed down by her honor, Judge Riordan in the family court. Now, this was an application by the respondent husband. And in fact, he applied for an order that the applicant wife be debarred from pursuing a claim for financial remedy under the MC A of 1973. They had entered to have married some the 19 years previously, but at the date of that marriage, when they had entered into that marriage, uh the wife was in fact still married to someone else and therefore this marriage to now her husband, I either responded to these proceedings was therefore void, void of an issue from the outset pursuit of section 11 B of the MC A. She had married her first husband in Bangladesh some years previously, she stated that first marriage was one where she had been forced to live together, separated soon after. And she had issued the divorce and decree nice a decree absolute had been pronounced, she claimed. But in fact, here it transpired that in fact, they had a divorced at the point at which she got married with her second husband. So in fact, the second husband, now he issued a petition for nullity which the wife didn't defend. She later lodged an application for a for financial remedy order. And that's where the respondent husband said that she shouldn't be allowed to do that. And that's because he said that um until the nullity proceedings were commenced, he believed because the applicant wife had told him that her first marriage had ended before they got married. And it wasn't until many years later, he discovered through doing a publicly available record, a search of the decree absolute that in fact, um she wasn't divorced at the point at which she married him. And that came as a big shock to him and he felt betrayed for all those 19 years. Uh So his issue was that she should be prohibited. She should be therefore prevented from pursuing a financial order on the basis of her conduct. So effectively, she should be debarred from pursuing any claim for financial remedies principle as set out in the principles of wh wh however, the wife said she should not be debarred. And in fact, her argument was that the Western principles need to now be read in light of the decision in White and Vince. Now remember in White and Vince in 2015, the Supreme Court decided that the former wife could bring a financial claim some 22 years after the divorce. Uh and there was no limitation period. And therefore, the former wife's argument was that her application for financial remedy should be read in light of that. And she said that the court did not have the power to strike out a financial remedy claim simply on the basis that she had committed bigamy. And, uh, and therefore it should be dismissed. She was out of view that, uh, she did not know that her first marriage had endured beyond the date of her marriage to respond to the old the party separated many, many years later. And in fact, uh, she said that when she did meet the respondent, he knew that she'd remarried, uh, she went around and married her first husband and in fact, he offered his support and help her with the paperwork to complete the divorce. And in fact, when she married a respondent, she believed herself to be divorced and she did not therefore commit bigamy with that intention of committing bigamy on the basis that she was already married. Now the court was satisfied that both parties knew the applicant was not divorced at the point at which they purported to marry each other. They both knew the other knew that too. And it was just more comfortable for them in the circumstances to really embark on their married life on that basis. So both of them were really complicity complicit to that in that regard. And therefore the court did sound on the facts really following the principles in wide, convinced the court would say that Big Main itself was not a reason to prevent somebody from pissing in a financial order claim, it would depend upon the particular circumstances as to whether or not they would be prevented otherwise. So if the jurisdiction did exist, which here, the court said it did, should it be exercised, should the court bar the form for the wife from being able to pursue a financial order? Well, here, the court said that uh the applicant knew she remained married to her first husband when she entered into a marriage. So when he were a responded, but so did he, but they both knew that in fact, she was still married at the material time. So in fact, neither misled the other. And over that period of time, they lived together in a partnership which they were, they were content to treat as a marriage and the response application, if on that basis, the call said would be dismissed. So you can see the thinking behind that. Now, this other more recent case of BR and BR is a very useful one because here Mr Justice P has given some very useful guidance on the position. We're instructing experts in matters surrounding financial remedy cases. So this was handed down on the 30th of January 2024 in the family Court. And there was a first directions appointment in a financial remedy application in which submissions were made where uh council of both parties informed the court and of an agreement that although the business assets should be valued, they were agreed, but that it should be valued by two separately instructed, sole experts, one for each party and his lordship in fact sent an email to council stating that uh his initial provisional view was that the court should be looking forward to making a direction for a single joint expert as opposed to uh to c instructed experts. And um later at the start up scene as the parties in fact agreed that way forward. But his lordship did take the opportunity to be able to really set out specifically the position surrounding the instruction of experts and the use of single joint experts in family proceedings. And his lordship did say that there was no doubt in a case such as this expert evidence was required as to value tax and liquidity, which was necessary to assist the court result of suing. So clearly, the test for the instruction of the expert was necessary. And there was reference to the case of J and J of 2014, whereby here um this would be allowed. But of course, the question was, should it be single joint experts? Uh single, 22 experts in these circumstances and therefore instructed individually or should it be a single joint expert in that regard? And um his lordship did say that there were a number of good reasons why the position should be the instruction of a single joint expert. And some of the reasons were these firstly, it's usually cheaper to instruct one rather than two experts. Obviously, cost is an issue and clearly cost is a factor that has to be borne in mind when it comes to applying the overriding objective and the principles of the F pr all experts have an overriding duty to court. It's a duty to help court matters within expertise. This is irrespective of who is paying them. So therefore, it shouldn't be that we're going to use our expert rather than the other side because we're the ones who are paying their fees. Because of course, the expert has a duty to the court and not to the party instructing them. OK. And uh therefore, that level of independency is obviously very, very important. The third reason was a single joint expert prepares a report in accordance with one letter of instruction, jointly provided info and one series of joint questions was if you had two separate experts instructed by two different parties. You may receive different instructions, different information, different questions and there's a risk therefore that the court potentially will be faced with these two reports which are not just different in possibly their conclusions, but based on different information, different questions, different instructions. And as you can imagine, it's difficult then to do a synopsis of what they agree and disagree on because the basis upon their instruction may have been very different from the outset. Nothing of course prevents either of the parties from instructing shadow experts to assist in maybe drafting a letter of instruction raising questions once the report has been received. And in fact, it's common at trial for a single joint expert for require to give evidence to be cross examined. So that's possible. But of course, questions can be asked of a single joint expert after provision of the report is that provision under rule 25.10. So once the report from a single joint expert has been received, there is provision within the F pr rule 25.10 to in fact, explore areas which uh have been considered not to be appropriately addressed. Therefore, there could be questions put which potentially may avoid a need for that expert. Then to actually attend court to give evidence in those circumstances. Of course, that provision is already available on the F in the F pr an instruction of a joint single joint expert will usually enable that expert to decide what documents they need and request them. And it could be common to include an in court order direction that the party cooperated requests for information. And that's the most practical way to deal with issues about what's sometimes seen as company disclosure. And therefore appointing a single joint expert usually avoids the need for lengthy questionnaires addressed to company matters. And finally, the court said when it does therefore look at the issue of cost and proportionality, this is more relevant in lower value cases where clearly if an expert is needed, obviously, one has to keep a very careful eye on the costs. But even in big money cases, obviously, the court does need to bear in mind the cost involved there as well. So you can see a number of reasons why the judge has set out that the default position in family proceedings should be the instruction of a single joint expert, ok. And that's exactly what happened on the facts of this case. Now, in terms of cohabitation, schedule one claims, then I wanted to take you through another case on schedule one. This is the case of Y and Z schedule 1/16 of January this year also had done by Mr Justice Peel. And this really looks at financial provision for Children where the millionaire's defense was raised in this particular case. So this was a schedule one claim in relation to two Children aged two and four. Uh mother was a professional equestrian from the age of 18 until shortly before the birth of their first child. Mother was re uh recovering from post traumatic stress disorder due to traumatic previous relationship, unconnected to the father and her depression and anxiety had really got worse as a result of his litigation. Father was a member of the Middle East and royal family. He'd never undertaken any royal duties wasn't part of the core royal family, but nonetheless, he was a member of the, of the royal family in the Middle East and he was a cousin of the present ruler. Now, the husband and wife had married in a kind of Islamic marriage ceremony here in uh in England in London. And it was accepted by both parties. This, this did not constitute value marriage nor was it avoid affordable marriage so effectively they had been cohabiting and therefore, when it comes to financial relief, as you can imagine, therefore, one would be looking and turning to schedule one of the Children Act, which is what was done here. Both Children were born in England. They were not official members of the father's royal family but had royal blood. The mother had negligible financial resources other than some jewelry that had been given to her worth about um £508,000 in total. And as for the husband, he ran the millionaire's defense. So the father and here he ran the Millionaire's defense. So he said that affordability would simply not be an issue. Now, this is where the court did look at the law then surrounding the so called Millionaire's defense. And it's based on this case of thy and Boa at number two, which basically is where one would be under a Millionaire's defense to seek to avoid or reduce the need for full disclosure in those circumstances. But on the basis that they would basically be paying what the other person asked. But the court did say that even in where one does run the millionaire's defense, it is customary for there to be at least some disclosure provided, there had been only one reported case. Uh the case of hr H uh Haya Bint Al Hussein and H uh uh H Mohammed bin Bin Al Makoto in 2022 which were unique on the facts where there was no requirement for no disclosure at all. But in practice, there will be some disclosure provided in these circumstances. And the reason for that is one, it enables the claimant the person then who's seeking the award to at least have some understanding of the scale of wealth or the other person. So that then at least what they're asking for is commensurate to really what the respective financial position of both parties is. Otherwise, how does one know that what they're asking for is proportionate to what the other person has in terms of the MC a and schedule one discretion, exercise of discretion in terms of income and capacity and resources and therefore it enables one to give some structure and enforceability of an award in that regard. So the court here did say they did say to the father, they said, look, we don't expect you to give us chapter and verse. But what we are going to do is we are going to order you to do a for me. But we, but we've removed the usual obligation for you to provide us with documentary evidence and support such as bank statements, company accounts and so forth. And instead provide us a narrative explanation of non-standard assets such as trusts and businesses. But you want to provide supporting documentation. And so he did that. So the father was prepared to do that. So he did this for me with that in mind and these assets he put in there were in the region of 100 and £11 million uh nat so that's what he was saying. Now, in terms of a schedule one claim, the court said there's various orders that can be made on the schedule one settlement property where the property could be hard on trust them for the uh the parent until trigger such as when a child turns 18. For example, lump sum lump sum payments can be ordered. Child maintenance can be ordered as long as it's for the benefit of the child. But remember if you're seeking a schedule one claim by way of child maintenance. It can't be used to oust what the child maintenance service would do. So therefore, it would be the top up over and above the child maintenance service eligibility in that regard. Uh, and therefore, it's got to be an amount of and above the £156,000 which the C MS would be responsible for assessing. And the court would then consider, uh, the factor set out in paragraph or schedule one in terms of exercising their discretion. Um, paragraph four specifically does not refer to standard of living. Although in practice, the court will of, of course, take that into account also in that regard. And as I just mentioned, where child maintenance support assessment has been made, of course, there is no jurisdiction to make a child maintenance order unless it's a top up territory ie where the payer's gross income exceeds 100 and £56,000. Ok. And even if the court has jurisdiction, for example, if the payer lives abroad, a notion of C MS assessment will be yardstick for such an order in these circumstances, it could be used as a yardstick for seeing what the amount of the, uh, the PP amounts are in that regard. And here on the facts, the court did actually assess the mother and the children's needs and in relation to the housing in particular, the court provided an amount of $5 million to be provided as well as the father to pay the costs of purchase, including property tax and survey there. Now, in terms of some of the aspects on Children law developments, uh this is where there was this case uh last year called We be a father and ma mother. Very useful case by his honor, Judge Talbot, where in this case, the judge said that it was very difficult to think of a more unreasonable and reprehensible set of behaviors that the father had demonstrated here. Uh Sorry about the mother here, uh, who decided to make repeated false allegations, which the judge said he would focus on, in particular, the false allegation that the mother had made that the father had sexually abused his own daughter, uh where clearly he had not done. So, uh, the court was satisfied that the mother's conduct was unreasonable. It was at the highest end of unreasonableness within family proceedings and therefore cross order should be made accordingly. Now, the court was told that the mother was on receipt of a limited income through income support and, uh, that this should result not in making an order for costs. And uh, the court should really only be if the court were minded to make costs, it should only be enforced upon further order. Uh, the court was satisfied that an order for costs was appropriate and a sum of just over £31,000 would be ordered. But in the circumstances, given the mother's uh limited resources, the court satisfied that it would not be enforced without further order. Ok. So even though the cost order was made against her mother in these circumstances, given her reprehensible behavior and unreasonable behavior, it wouldn't be enforced without further order of a court. So again, you can see the importance of that. Now sometimes in family proceedings, whether in finances, whether in Children, whether in domestic abuse cases, divorce cases, otherwise there may be a need for an intermediary. Intermediaries are appointed pursuant to part three, a practice direction. Three, a a of the family procedure is to assist a person to communicate in court in terms of the questions that are put to them and in terms of the responses they're providing, in terms of making sure for example, adequate breaks are provided for them to enable them to communicate uh and understand the court process. What this recent case just a few weeks ago has handed down this case of X and Y intermediary practice and procedure is. It really emphasizes how the court has to tread carefully when they are making provisions for the instruction of an intermediary in family proceedings. This case was handed down by Mr Justice Williams. So this case involved pre care presuming related to two Children. An application was made on behalf of the mother for an intermediary assessment to betake and pursuant to part 25 the mother had a diagnosis of post traumatic stress due disorder and a DH D and she sought the support of an intermediary throughout these proceedings. All parties were agreed on this but the court adjourned the application and his lordship said he was delivering this judgment because the use of intermediaries was becoming commonplace in family courts. And there needs to be some uh consistency of the manner which this is being dealt with. And his lordship did say that intermediaries can of course play a very essential part to enable a witness and all parties to participate fully in these proceedings. Uh But they shouldn't be used as a safety net or security blanket by lawyers or the courts. But the only way the need is actually necessary. There are obviously limited resources, there are cost implications and therefore, we should only be looking to have intermediaries where necessary. And the court did say uh that um the evidence which may emerge from maybe needing an intermediary could be maybe from a cognitive assessment by say, a psychologist, it might be looking at say the medical history of the party or witness may which may suggest they've got maybe a learning disability or difficulty. They may have a condition, a disorder which impacts on the ability to participate short of rend and incapacities to conduct a proceeding. So there could be a number of situations there. Um There may be evidence even from their legal team, um even with the skills of a Solicitor Council using the Advocates to toolkits um that they do not feel that this person can participate fairly without an intermediary. So as you can see the information which leads to one seeking intermediary could be from any of these uh various avenues. But his lordship said that these were just examples to look at what kind of evidence there may be before the court to justify an intermediary assessment. Now, his lordship did say that an intermediary assessment application shouldn't be made pursued to part 25. It's not a expert appointment instead it's a case management direction. So therefore this should should it shouldn't be one that's applied for via part 25 but instead should be part of a direction that's been sought as part of your case management directions just like you are when you're looking to instruct the appointment of say, seeking a direction for the point of an interpreter, for example, and H MC Ts do have contractual arrangements with providers of interpretation and intermediary services to provide this and they will then have those contracted provisions there. And once the intermediate assessment is obtained together with the other evidence which causes a court to commission intermediate assessment, then it enables them to make those participation directions as are necessary. So go forward what his lordship has said is this firstly, if you are therefore looking to instruct an intermediary, you shouldn't be lodging it by over a part 25 application that's not the appropriate application. Instead, it's by way of seeking a direction as part of case management directions, the basis for the application. It is a it may well be assertion that the party has a diagnosis but where is the supporting evidence of the diagnosis of the impact so that needs? And here on the facts, there was no explanation of why on the specific facts it was needed. And therefore, that's why it was an issue in this case. And hence, the court didn't flatly reject it. It would say they would adjourn the application until further information was made available if appropriate. So in that regard, the court said that the previous proceedings, various forms had not really identified sufficient and concerned to say that there was a need for intermediaries as let the current report or the social worker, independent social worker reports would suggest this and therefore there need to be further exploration as to why this may be needed on the facts. Now, in terms of some of the other aspects surrounding domestic abuse and some of the developments, this is where uh there has now started to be piloted in some areas uh in in spring of this year. Now, uh the Domestic Abuse Protection oses and domestic abuse protection orders. These will be replacing if the pilots succeed the domestic Violence Protection notices and Domestic Violence Protection orders that we have at the moment, the DPO as they referred to or the DDVP OS as they refer to domestic Violence Protection orders can uh only be made for up to 28 days. Whereas these new orders will be able to be made for longer than 28 days. There will be a change of the name from violence to abuse at the moment. These can only be applied for by the police in the criminal courts under the new provisions. These will be applied for by victims, potentially the police relevant third parties, family members will be able to apply, but also you'll be able to apply not just to criminal courts, you'll be able to apply in the civil courts and indeed also in the family court also. So like I say, these are being piloted and uh these will then continue to be developed over the course of the next two years to see what is going to happen thereafter. Also, uh there's the practice direction update number one of 2024. So that practice direction 12 J uh has now been amended uh so that there are more generic references to domestic abuse interventions as opposed to domestic abuse perpetrator programs, given that domestic abuse perpetrator programs are no longer being provided. So it's more general references now to domestic abuse uh interventions. And also in North Yorkshire, his practice direction 36 Z A which the pilot scheme in place in North Yorkshire where the court would be sending copies of any occupation orders with powers of arrest attached and any no molestation orders by email to the police. So that particular pilot has now been extended to the 28th of February 2025. So is that provision also there, many of you will be familiar with the fact that we've also got the QLR scheme, the qualified legal representative scheme. So of course, this is where in family proceedings, whether it's Children proceedings or otherwise. If the uh say the uh court is faced with a situation whereby say there's a, there's a fact finding and uh one has been asked to determine allegations that are made. Then in many situations, the alleged perpetrator will be prohibited from cross examining the alleged victim personally and the victim will be pro will not be expected to personally question the alleged victim in uh alleged perpetrator in these circumstances. And instead the court should be turning to the qar to qualified legal representative to see if they can ask the questions in that regard. Um And even though lawyers can apply to become a QLR, not as many lawyers have applied to become on register as what had been hoped. And his most recent guidance uh about claiming fees has been updated so that as from January 2024 1 can continue to claim not just the fees in respect of carrying out the advocacy services and also the bolt on for large bundles and also the costs related to uh the fees incurred in the QLR. But also one can claim costs which could include travel and overnight expenses subject to eligibility criteria. So therefore, those provisions are available insofar as that is concerned and given the ongoing difficulties with not having sufficient QLRS available. The president has recently handed down in this case, a VZ the prohibition on cross examination or QLR in his judgment on ninth of February 2024 the difficulties associated with not having a QLR available and instead the court has had to then resort to continuing to ask the questions in those circumstances. But the judge has to make sure that they are remaining impartial when they are asking these questions in the circumstances. Uh So if the court does decide to abandon the attempt to point a Qlr, then the reasons for this charge should be clearly recorded on the face of the order and uh and or in a short judgment. And like I said, the court can continue to ask the questions, but they must make sure that they are impartial. Many of you will also be aware that in July 2023 we had the updated guidance by the President on the Molestation Order injunctions under the Family Law Act of 1996. So this was guidance that was put together very important that you're familiar with the various aspects of this, which deals with in particular without notice applications. And the president has said that a number of applications for family law injunctions had increased by over 50% just in the previous decade. And uh the area of domestic abuse continued to develop and therefore why it was very important to make sure that we all were familiar uh with this guidance going forward. And with that in mind, the president did refer to his case, Ds and ac this judgment had done by Mr Justice Leave of March 2023 whereby her ladyship did emphasize that without notice, applications were more the exception than the norm. And when one is seeking these orders, it's very important to make sure that what one is complying with section 45 of the Act. So that without notice, order should only be granted exceptionally if one award these factors under section 45 2 of the family law from 1996 are met and if not, the court should not be making the application without notice on the facts. OK. So that brings this part to an end and that brings this session to an end. So I hope you found this useful in terms of giving an insight into some of the key developments surrounding various areas of family law as of spring 2024. Can I thank you very much indeed for listening and I'll speak to you next time. Thanks very much. Indeed. Bye for now.
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