Hello and welcome everybody. Thank you very much indeed for rejoining me for the second part of this live webinar through data law. This is the family and matrimonial law update for autumn 2023. And this is the second part, part two of this uh webinar. So as you know, I'm going through various areas of family and matrimonial matters with you. Uh in the previous session, I uh covered with you uh some of the aspects of any divorce, dissolution and financial aspects of the procedure and also some case law developments. So what I'm going to be doing is continuing then with uh the uh material. So you've got these slides that I'm working through and now I'm going to be covering a case with you on CBI a recent case. And thereafter we'll be looking at some aspects on personal protection orders, some of the developments brought about through Domestic Abuse Act 2021 and particularly the president's most recent guidance on running domestic abuse cases. And then we'll look at some aspects on Children. Ok. So I'll progress on that basis and I'm looking at the laws of October 2023 right? So when it comes to cohabitation, many of you will know that this is where when you are instruction on these matters, either as a potential claimant or for the defendant, then we'll be looking at uh possibly uh applications brought on as a Trust of Land and Trustees Act of 1996. And this is where sometimes you may then be pleading, possibly result in trust, most likely a constructive trust and perhaps sometimes proprietor stop or in that regard. And this most recent case and this was handed down on the ninth of August, this year ninth of August 2023 looks at an Opal claim and this was the case of Spencer and Spencer and others uh handed down in the High Court of Justice by Mr Justice Roger. And what this case really does, it really picks up on many of the previous kind of farming cases we've had, as you can imagine, there's been many of these over the years. Uh There was one of the key ones, uh which was uh the Davis and Davies case. Some of you remember in 2016, there's a field case in 2018, for example, there's a guest and guest uh in 2020. So there's been a number of these as you know, over the years and this was a similar one in that regard and that you got an adult child who is bringing a claim against in this case, the estate or his late father uh on the basis of Victor Oppo on proprietor stop. The estate was represented by the claimants sisters, the second defendant and the third defendant. And the father had owned his farm about 405 acres and other tenanted land about 408 11 acres. So the claimant is the deceased son uh and he farmed uh on the land since 1983 when he was just 19 years of age. And the father did not leave the farm land he owned to his son on his death and which, which led to this to stop or claim. Now his lordship, he said this. He said, look, this is one of the many farm cases in which a son or daughter says that their father, mother assured them that they would inherit this land on their father or mother's death. And therefore, the son or daughter has acted to their detriment and reliance on that assurance such that it would be unconscionable to allow the father to rene on that assurance. So that's what it's about. And uh the claimer said that uh he was touched to have the farm land owned by his father at his death, transferred to him on the basis of either proprietary stop or constructed trust was the two sisters who represented the estate. Uh They uh oppose this. So of course, the first thing one has to shower is the assurances, the assurances that were made. And this is where the son said that his father had made it clear throughout his life uh that he had hoped and expected his son would succeed him in farming the land either with his sisters or on his own. And from a very early stage, uh from when he was 19, he started to really throwing himself into uh this uh this business, this farming business in that regard. Uh His, his dad used to say to him, he said from a very early age that this would be his, he began driving farm machinery at the age of 12, 13, 14, he was working regularly on the farm during his school holidays and he left scoring his 50 would know his own qualifications and immediately started working on the farm. And the relationship wasn't the best after they did have clashes. In fact, they argued kind of weekly, but that didn't prevent him saying that nonetheless, my dad still promised me that I would be getting a significant part of uh of this land in that regard. So he brought his claim under proprietary stop. So his lordship did actually go through the law on this in quite some detail in the judgment. And as many of you will know, one has to show assurances, one has to show them detriment based upon those assurances. One that has to show that there was that reliance, one has to show that it would be unconscionable for the person who made the reassurances to go back on their word. And then you're looking to see how best to then provide that relief by way of allowing equity to provide that relief in that regard. So that's pretty much what, what the the claimant had to establish in this case. And uh he argued, he said there were general assurances made, there were specific assurances made. And the gist of this he basically said was that his dad had said to him throughout his life, words to the effect that he would inherit the farm one day, this would be his and that his dad would throughout his life repeatedly tell him that he would become the farm and take on the farm after him. He said he couldn't, he said he could not recall a specific conversation, but there was enough there to say that all throughout the relationship. Uh His dad would use words like this will be yours one day you're going to inherit this uh and so forth. So again, he was led to believe that this would be his on that basis. And um of course, the defendants would argue that these were just general statements, they didn't have that substance to them. These are just very generalized statement. Uh But uh his law, she was satisfied that actually the assurances were there. They were made on many occasions and these were just not generalizing after cough comments. These were actually serious comments that were made and they were legitimate and genuine on that basis. Now, if it does match, then of course, the second element then is you have to show detrimental reliance. And this is where if you look at paragraphs 92 93 of the judgment, there's a lot of information here then that the judge felt sided with why the claimant was able to show detrimental reliance on his part. He said that he described a 19 to 20 hour days he worked and during the 65 day year nature of the job, he spent no more than two days with his family on holidays before we turned to a farm. He said that um, his dad controlled a lot of the things there. He and his wife lived in a farm cottage which was cold damp for six years because his father wouldn't allowed him to take money out of the capital account to buy a house, insisting that he had to live on the farm. And his dad had to take control of the finances. And when he was working on the farm, he said he was paid a very low wage, £30 per week, which was significantly lower than £50 per week paid to his sister. Much lower than the farm hand. It was accommodated in the farm cottage. He was getting about £7200 a week. So again, you can see this evidence is the detriment being paid at lower wages, sacrificing really the career sacrificing holidays on the basis of this assurances and therefore the detrimental reliance, there'd be no change of circumstances just to find a repudiation of the assurances, there wasn't anything to suggest they would be unconscionable in that regard. And hence, the question is satisfying the equity and of course, equity is there to remedy unconscionability by satisfying the expectation of what the son had and the assumption was that he should receive what he was promised. So the court did in fact find in his favor and therefore the court would find in his favor and therefore he would get the farm as he was promised to continue the family farming in that regard. So you can see a really useful case, which therefore evidence is at that point, right, I want to now spend some time looking at the position with domestic abuse law developments. And many of you will know that we've had the Domestic Abuse Act of 2021 that came into effect on the 29th of April 2021. And a lot of it has been slowly but surely been coming into effect over the course of the last couple of years and uh two key provisions which came to effect on the fifth of April this year with these as a result of the Domestic Abuse Act 2021 commencement number one s of 2021. And firstly, you got section 68 which is the provision which relates to controlling or coercive behavior in an intimate or family relationship offense. Basically, what this is is many of you will know that for some years now, we've had the a criminal offense of somebody in an intimate or family relationship, controlling or cursing the other person that offense has been in place for some time. But what if they separate? It doesn't stop the control necessarily, it doesn't stop the coercive behavior, it might continue even if they separate. So that's what section 68 of this act has done is extended, made provision for the extension of a criminal offense so that the the perpetrator could still be convicted of this offense. Even if the party is now separated and not living together. Then you got section 77 which is the guidance about the disclosure of info by police forces. So finally, we've got Claire's law which the Domestic Violence Disclosure scheme finally put on a statutory footing after all these years, Claire Wood, as you know, sadly passed away, she was killed by her then partner George Upton, who she had met on Facebook and uh he strangled her to death. And even though she'd been to the police beforehand, because she had reservations about, about him and what he used to say and wanted to know about his background and the police refused to give her any probation. It was only after her death date transpired. In fact, he had been convicted for various offenses under the protection from Harassment Act of 1997. Had she given her that information, she may have left him, she may still be alive today. So Clare's law, as it was developed, the DVD S scheme allowed the police to share relevant information when they felt it appropriate subject to obviously the data protection requirements be met. But now finally, we've got this on a statutory footing as from the fifth of April. So the aim is that more police authorities will be prepared to share inappropriate cases. There's to be more consistency of approach. There's got to be more consideration as to what is to be shared and in what circumstances and more clearer reasons given as to why certain information is not to be shared. So again, it's a very significant piece of uh law that's come into effect in that regard. Also, you'll be aware that uh the 21st of July last year, we had qualified legal reps, pro provisions came into effect qualified legal reps, which of course can then be required then to assist at court where you've got say the alleged perpetrator who wishes to test the evidence of the alleged victim in many situations, they would not be allowed any longer to personally cross examine the alleged victim. So instead the QLR will do that for them and this provision has been in place for new cases. That's on the 21st of July last year, the President's most recent views on the President's Chambers of July 2023 has emphasized that there hasn't been enough of a take up of QLRS and really he's inviting lawyers to consider signing up to this. So as to ensure that this service can then be met by the Ministry of Justice in that regard. But you can see this at the moment is an issue because there just haven't been enough people who have signed up to this. The other major change, of course, as I mentioned is we've now got this new practice guidance on no station injunctions which has come into effect in relation to injunctions under the Family Law Act of 1996. Uh This has been handed down by the President Sandra mcfarlane as of July this year. Now this one does replace the previous one that we had many of you will know that we had the previous one of 18th of January 2017 put together by the previous president of the family Division, Sir James Mum and that one had replaced the one of October 2014. So this is the most current one now that we've got of July 2023. So I do want to go through some of this with you because it's obviously very, very significant in many respects, particularly for those of you who do personal protection cases. So I just want to run through some of the key elements of this And one of the things the president has commented on is he said the number of applications for family working junctions has been increasing. And in fact, just over the past decade, it's increased by 50% by over 50%. In fact, plus we've had the law on domestic abuse that's developed. We've got the uh Domestic Abuse Act of 2021 as we know that's continuing to develop. And therefore the volume of applications requiring consideration by the courts has obviously been very challenging for courts given the limited court resources, the president has specifically referred to this case earlier this year of DS N AC. This was handed down by Mr Justice Leven on 29th of March this year whereby her ladyship specifically set out the situations in which we have to be very careful when we're seeking without notice orders and the exact requirements under section 45 2 need to be met before one is, is going to be able to satisfy the court that the order should be made without notice. So many of you will know about that. This is set out within section 45 sub paragraph two where you need to satisfy either A B or C. So either is there risk of significant harm to the applicant to a relevant child not to put a conduct of the order or not made immediately? Is a person likely to be deterred or prevented from pursuing the order? If it's not made immediately. And is the other person deliberately evading service? And uh could the applicant or a relevant child be seriously prejudiced by his delay? So you have to ensure that you satisfy one or more of these three, you must make sure that your stamp in support indicates that you're going for the order without notice. And you need to specify why that is. And her ladyship did emphasize that uh it's very important to bear in mind that without notice, orders are the exception, not the norm. So very important. So staying with this practice guidance that the president has handed down, uh this is where at paragraph five of the practice guidance, his lordship is saying that uh the court's approach in terms of deciding whether to make the order without notice or not, one has to consider the modern definition and understanding of domestic abuse. I set out within the Domestic Abuse Act. As you know, it's a very wide definition. It includes uh psychological, emotional economic abuse, coercive control and behavior. So this is where the president specifically gives the one very key example, which is if you are say uh seeking to go for the order, it might be that the evidence suggests that there's a pattern of coercive or controlling behavior. And it might be that if the applicant doesn't go for the order without notice and therefore, the respondent is served with the unnoticed application, they could be further coerced or controlling into withdrawing the application. And that can obviously don't have an impact on them and any other child. So again, that could be a reason why the person is then going for the order without notice in that regard. Now, his lordship did say that although the Family Law Act section 45 doesn't establish that test of exceptionality as you can see from what we've just looked at under section 45 2. It doesn't say that without notice, orders will be made exceptionally as you know, it's the case law that's developed that you got the case of R and I in 2014. And more recently, the case of DS N AC where without notice order should only be made exceptionally in that regard. And orders made without notice should not have the effect of buying a respondent from their home or place or work or the necessary location without very careful consideration uh in that regard. So as you know, it's very difficult to together without notice, occupation order. Uh And uh because clearly you could be potentially barring them from exercising their right to occupy the home, going to work or otherwise in that regard, you can of course get without notice, occupation orders with the Zonal period. And again, this is where the president is emphasizing that you have to carefully consider if you're going to be doing that because it's obviously a significant infringement on their rights in that regard. So again, it should be exceptional. Now, paragraph seven takes us to the fact that uh there needs to be uh a without notice hearing. So when an applicant see commission order to be made without notice, the court may hold it without notice, hearing remote or attended. So there's, if there is a without notice order made, there will be a return date, but also the application is made without notice, the court may in fact decide, no, this isn't gonna be heard. That way we're gonna list it for a notice hearing that might be heard remotely may be attended. Ok. It might be that the court grants the order and they may even grant the order on paper. So as you know, that practice has developed over the years where the court reads the application and the supporting evidence rather than having the parties attend court, whether that's attended hearing or remotely. But again, the court in deciding whether to make the order must be satisfied that their criteria are met for that notice order which is just inconvenient to do so, paragraph goes on to say the court should not dismiss without not application on paper when it's been heard. They might for example, make the order, they might make it on different terms to what were was sought. They may want to hear evidence, sometimes they may call the parties in, they may call the lawyer in, they may call the applicant and they may want to hear evidence, even to get a fuller picture of what the position is. So that practice is obviously there and may well be necessary. Then some of the other key paragraphs in this practice guidance. One of the key ones here is about the return date. Now, many of you will know there's been a lot of judicial discussion about this over the last several years. And the fact that many years ago, it used to be a practice across England Wales, that the courts would not necessarily list a matter for a return date and instead would give the respondent liberty to apply. And that practice had to change to a number of successful challenges there. Then the president made it very clear that if without notice order is made and the return date must be within 14 days. But now the president is stating in his most recent guidance that in these circumstances to ensure fairness, the return date should ideally be within 14 days. But the volume of work may be such that realistically uh a target of 28 days is all that can be achieved. So it's not that we can wait until 28 days. We should still try and get it listed within 14. But realistically, that may not be the case. The other point the president has emphasized is experience shows that in some parts around England and Wales respondents may not turn up at the return date. And uh therefore one has to think about how best to use that time. So it may be that the judge who heard it without notice may not necessarily be the same judge who hears the return date, but nonetheless, there has to be that fixed date. One has to give the responder the opportunity to turn up and put forward their position in that regard and the return date should take place in person where possible subject to discretion to obviously order a remote hearing uh in that regard. So that's very, very important. And also to return date is acceptable and consistent for a court to explore whether they're willing to submit to an injunction with no findings. So of course, the court may make uh with uh a nom order on the return date but no findings. And if that's the case, then they have to emphasize that no findings of fact were made. Paragraph 12 repeats what we had in the previous uh president's guidance, which is the order must have a fixed end date. It's not enough just to simply make the order and leave it open and end it. It needs to specify uh an end date, a return date and the order itself could be for a period longer than the date when the matter returns to court. So even though the return date should be ideally within 14 days, but may not be until late 28 days. The initial order may be made for longer could be made for maybe six months, even 12 months, depending on the type of abuse and whether it's been maybe long term abuse, for example. So that provision is still provided for we as per the previous guidance and the president is emphasizing that standard family law order should be used. So the president has specifically referred to a simplified order as annex one to this guidance. Now, what about paragraph 16, I would suggest that's very important because when many of us are doing our orders, we'll be putting the advocacy fund advocacy scheme wording in there for attendance and payment and so forth. And the president has said that that type of wording should not appear in the main body of the order should be kept in a separate annex as well as separate case management orders. And in terms of the order itself, it should be proportionate. Of course. So if for example, uh one wants to restrict communication between the parties, it should be proportionate because it may be that the respondent needs to communicate with the applicant to arrange position with the Children or to uh certainly uh communicate relating to say the divorce or the finances. So clearly, that has to be considered. And what about the geographical aspect? Many of us will be used to what we used to do many years ago, which is sometimes we used to say that the response is forbidden from coming, say within 100 m of the home and that is far from satisfactory. Really. It's not very clear, we should specify the roads which should specify the streets that they shouldn't come on. And if you are going to be using a map, the problem with that is it can get detached. So therefore, make sure the map is clearly embodied within the main body of the ARI. That's how you're going to do it. If an order is made without notice. And paragraph 19 says, phraseology like liberty apply is not sufficient. So this ties in with the previous guidance we had, the order should spell out that the respondent is entitled without waiting for the return day to apply to set aside or vary the order. So that provision is as per what we had previously. And if the order is made without notice, it must indicate that it was made in the absence of the respondent and there were no findings made. It's very, very important if you are going to forward with that notice order and you're bringing in new evidence, let's say, whilst you've been waiting to see the judge that your, your client has had a text sent to them by the other person as they threaten them or some other aspects. And you may wish to use that as evidence. It's very important that that evidence if it's allowed exceptionally uh is recorded on the face of the order and reduced writing because the respondent obviously needs to know the full extent of the um the evidence that was referred to. Now the bit about undertakings, many lawyers sometimes uh are not aware of section 46 3 and this needs to be brought to their attention. And this basically provides that if an undertaking has been offered to the court, then the court should not be accepting the undertaking and instead it should be making an anomalistic order in a case where it appears the court that a respond has used the threat of violence against the applicant or relevant child and for the protection of them, it's necessary to make the order so that any breach is punishable by way of the police taking action. So it's important to bear that in mind. And therefore it, it severely restricts the circumstances in which undertakings may well be accepted. There's all sort of position with service. So in the first instance, uh one is looking at a personal service that could be through Court Bailey process server, making sure that certificate of service is done. Uh The court can of course, uh make arrangements and orders for other methods of service if necessary. So that can be dealt with if appropriate. And the other point which really mirrors what we had in the previous guidance of January 2017, is this if you turn up at the return date as the applicant's lawyers and the respondent doesn't turn up and the order is already for a longer period of time. So you're not looking to alter the order in any way in that situation, you won't need to personally served. The order can simply be sent to the post to the respondent. But if there is any amendment to it, then one has to make sure that the respondent is once again personally served in that instance. And just a few of the pointers on case management. Uh One of the things that the president has said and this is quite new. Uh We didn't have this particular provision in the previous guidance. Is this his lordship is saying that the court should put in place a system for identifying uh parallel proceedings under the Family Law Act and Private Law proceedings under the Children Act where allegations of abuse have been made between the same parties. They should aim to effectively have one case manager hearing, bringing the two sets of proceedings at an early stage together in that regard, the court should avoid duplication. So that factual findings and evidence should only be disclosed from one set of proceedings to the other. And that's where uh pa section 12 J needs to obviously come into play. So that's quite interesting and it will be interesting to see how that in practice actually pans out. So it'll be interesting to see how that works over the over the months and years to come. And then of course, paragraph 28 the president has reminded us about vulnerability and about parties taking directions. Uh and therefore, of course, uh making sure that appropriate directions are made for that. And that also ties in with the position with the fact find hearings approach, which was the guidance issued last year in on the fifth of May 2022. So it's a very useful and updated uh practice guidance that the president has handed down. It really ties together a lot of the key developments that we've had in the area of domestic abuse and aspects of Children over the course of the last few years. So very, very good in that regard and very useful and necessary. Now, many of you will know that on the first of May this year, there were some changes that came into public funding and family law cases as a result of the legal aid, sentencing and punishment of offenders Act 2012 Legal Aid, family and domestic abuse miscellaneous amendments, sort of 2023. Principally when we've got the new domestic abuse protection or disease and orders that will be piloted first and then when they are coming into into effect, those will be able to be used as the gateway evidence for purpose of getting public funding in terms of demonstrating domestic abuse. But also as from the first of May, this year, when your client is, may be getting the gateway evidence from their GP or other health professional who has confirmed that they are the victim of abuse. Then that consultation they have with a GP or health professional doesn't have to be in person. It could be done over the phone or by video conference and that will also suffice in that regard as well. So that could be used as evidence if it needs to be in case worth noting, right, just for the last part. And I want to pick up on a few matters in relation to the Children, aspects as well, both private and public. And with that in mind, I wanted to just remind you about this uh uh competence document which came into effect on the first of June this year. So this is the guidance on the use of psychologists as expert witnesses in the family court in England and Wales. And uh this is guidance that's been put together from the Family Justice Council. Uh and also uh the British Psychological Service and competencies and expectations. And uh one of the things to bear in mind, of course, is this really leads on from a number of cases which have been decided, which have looked at the issue surrounding the use of unregulated and unqualified psychologists. And this is where this was raised in this and referred to in this case of VC parental alienation of 2023 earlier this year in February 2023. So when you are looking to instruct a psychologist, it's very important to make inquiries to see whether or not. The psychologist is HC PC registered, uh, and uh, with the Healthcare and Professions Council. And if they are, then of course, that that should then reassure at you in terms of their instruction and the fact they are regulated. But if they are not, it doesn't mean you can't use them. But then you should be going through a number of additional questions that are asked to look at their experience, their expertise, to see whether they are the right person to be instructed in the circumstances. So, again, very important to have a look at that and staying with the position surrounding parental ali alienation. Uh Even that term is one that really has been seriously questioned this year. Uh And uh this was uh something that was raised just recently once again by his honor, Judge Middleton Roy, in his case of AM MRF and the Children GMB. And this was a case whereby uh two Children, nine and 12, it was a private law dispute. And within those proceedings, there had been a 16.4 appointment. And in fact, the court had provided for the instruction of a psychologist to undertake a global psychological assessment of the parents and also of the uh the Children. Now the mother lodged an appeal and she lodged three grounds of appeal. Uh And she said the judge was wrong to order the psychological assessment in the first place because in accordance with the VC case, the 2023 case. It wasn't for a psychologist to give an opinion as to prevental alienation. And in fact, it should have been uh the court that makes a finding of finding a determination as to finding on that. And also a judge, she said in a complied part 25 in terms of deciding on that. So this is where uh the mother specifically through her lawyers referred to the case of c that I've mentioned. And this is where in that case, there were submissions from the Association of Clinical Psychologists where basically here it was being suggested that uh the decision about whether or not a parent has been a allowed to their child is a question of fact for the court to determine not a diagnosis can that can or should even be offered by a psychologist. Ok. It's not a syndrome capable of being diagnosed. It's a process of manipulation and it's a, it's an alienating behavior. It's a question of fact. And therefore the idea that there is this diagnosable syndrome of that name is helpful. It was being suggested just like it is with domestic abuse. That's a form of behavior. It's not a diagnosable type of um illness or disorder in that regard. It's a state of affairs depending upon the fact as to whether the person has or has not subjected to the other person. Domestic abuse in this regard, alienating behavior is, should be something that's within the court's focus rather than uh using this label here. So when the question was asked in this case as to the attitude of parents towards each other, whether it's positive or negative. Uh then his, his honor said that this was clearly not a question that the psychologist should have been asked. This was the attitude of her parents towards each other. It was a question of fact, it shouldn't have been asked of the expert. And also the other question that the expert had been asked was whether or not the parent had alienated a child. And again, his honor said this was outside the expert's remit. This was a question of fact for the court to decide not a diagnosis that could or should even be offered by a psychologist in that regard. And therefore, that shouldn't have been asked in that regard. Now, the lower court did fall into error. There was no consideration by the judge or exposing the Children to yet another professional. Uh The court didn't specifically refer to the test for instructing experts didn't take into account specifically, section 37 of the Children and families act. This was a significant error and therefore, on that basis, the court did allow the appeal and therefore the instruction of the expert that had been made would be set aside. So you can see it's a very important case which makes that point. There's also then this other care case that I wanted to really bring to your attention. This is about the issue of join. So this was a very, very uh difficult situation, a very sensitive case whereby a father had been charged with rape, but he was nonetheless made a party to the care proceedings. This is the case of handed down by the court of appeal on the 20th of June this year. And the question was whether or not he should in fact even be joined as a party in these proceedings. His application at first instance had been refused, which led to the appeal. Now, the child who was the subject of these proceedings was 11 years of age and uh the child had a number of physical emotional neurodevelopmental issues. The mother of this child was uh the the father's niece. So in fact, the father was uh of the mother, he had raped uh his niece. And uh she had given birth to this child who was now 11 years of age. The father was not named on his son's birth certificate. He didn't have pr for him. But the child did believe uh that this man was, was was his father. So the appellant was there for the not only the child's father, but indeed the uncle of the mother, uh she had conceived a child when she was only 17 when she lived with her uncle who assumed a parental role from her death row. Her own father, her mother had left her and went elsewhere she had made allegations of rape, there had been a police investigation and the father had been charged with rape and sexual assault. Now he was not joined by, by the court at first instance. And what this case really looks at is what is a test for party status for father without pr and was the right test employed in the circumstances. And the court said had he had pr he's of course got an automatic right to be made a partnership proceedings here he's not got pr so hence, the court has to look at whether or not he should be joined. So what are the tests? What's a test for party status for father without pr well, a child welfare is important but it's not paramount. There's a case of VB which is one of the leading authorities in this area. Many of you will know that this case emphasizes that there is a presumption that he should be joined unless there is justifiable reason why he shouldn't. But there is no requirement for a father without pr to show an arguable case. So that's not a test and that would be for nonparent under section 10 9 but not for the father. So what relates to a justifiable reason so that he should not be joined? There's no requirement for the father to satisfy the criteria into section 10 9 of the Children that rejoined her that would apply to a non parent. And in terms of justifiable reason that we bought this presumption. That's a question of fact and discretion based on the circumstances of the case. And the court has to, of course, also consider article six and eight in that regard of the father and indeed also of the child in those circumstances. Now, at first instance, the judge fell into error because the judge did say that, uh, there was a presumption of Joiner without justifiable reason, But the judge went on to say that he needs to show an arguable case. And as you can see, uh that is not the test. So the judge fell into error in, in thinking that that's what was required in that regard. And the court then said, the real issue is that there should be a justifiable reason for Joiner given the concerns that have been raised. So with that in mind, uh the uh what the court said was, it was clear that the judge approached the application on the basis that he needed to show an arguable case that wasn't. And in fact, the judge's view on whether he should be joined was understandably colored by the nature of the relationship between the father and the mother. Again, here, we've got a situation where the uncle who has raped his, his niece. And the judge's decision was very much colored and influenced very much by that in that regard. But those concerns how important they were, didn't mean that a biological father didn't have article eight rights as in this case and that he should not be made a party. Did he have family life? Yes, he did. He had actually brought up his child for many years. There had been that family life already developed and therefore on that basis, the court was satisfied that the judge, although it was a very, very difficult decision, sadly, did apply the wrong test. And in fact, on the facts, there was insufficient evidence here to show that there was no justifiable reason to rebut the presumption that he should not be joined. So, in fact, the court did allow the appeal. Ok. Right. So that brings me then to the end of this part of the session and in fact, to the end of this live session. So I hope this has been a useful session for you. Can I thank you very much indeed, obviously for, for logging in today and for listening, I hope it's given you a useful update on various areas of family and matrimonial matters. And I thank you very much indeed. And I look forward to speaking to you next time. Thanks very much. Bye for now.
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