The court reasserted that it is the court which appoints a guardian and the court alone which can revoke or change such an appointment. Secondly, every binding decision about a child is made not by CAFCASS, nor by its officer nor by the local authority but by the court.

By the time the matter reached Sir Nicholas Wall on 25 January 2011 the local authority stated that they recognised that the information sharing process between CAFCASS and themselves must be transparent. CAFCASS also recognised that disagreements between a guardian and his or her manager in respect of the former’s recommendations had to be placed before the court. The guardian was accountable for his or her own views and managers were not in a position to insist that the recommendations and conclusions of an individual guardian be adopted against his or her wishes. However, if the manager concluded that the recommendations were either flawed or irrational, or did not properly represent the interests of the individual child, then the proper course was for CAFCASS as a body to seek to intervene in the proceedings with a view to the manager’s analysis being brought to the attention of the court. Almost inevitably, it was argued, this would be ancillary to an application the particular guardian’s appointment should be terminated.

An important practice point is that there is nothing “unhealthy or wrong about a disagreement between professionals in care proceedings. As I have already stated, there is often no unequivocally right answer in such cases. … the fact that two different minds have reached different conclusions on the same set of facts is not a matter of criticism. What, however, to my mind is crucial is that the process should be both transparent and fair” (Wall, paragraph 106)

Whilst NAGALRO have heralded this as a case which underlines the independence of a guardian, the circumstances of this case are that the CAFCASS manager sought to de-appoint the guardian following a difference of opinion between manager and guardian. The parents were understandably concerned about this and the apparent collusion between the local authority and CAFCASS. This judgment clarified that where there is a disagreement between CAFCASS and a court appointed guardian it is for the court to decide what course is best to take. In the circumstances of this case, fairness was achieved by the appointment of a new guardian who was employed by a separate team.

 Despite this common reaction, sometimes the EU takes on difficult but worthwhile assignments.  One such project is bringing legal clarity to property rights for international couples, the EU’s proposals for which were published at the end of March.[1]  These specifically include couples in registered partnerships, a significantly smaller section of the population, now, than the heterosexual married equivalent.

 What is the problem?  There are several.  As you will know, there is no universal stance across the EU towards recognition of same-sex partnerships.  Some countries do not, some are thinking about it (3), some do (13 of them) and one or two have more than one option available.  None of that is news, but it is good to know that across the 27 states of the EU standardisation is an objective. 

 What is more notable is that of the estimated 211,000 new partnerships registered across the EU in 2007 (the most recent year covered by the report) it is thought that over 41,000 of those (just under 20%) were entered into between people of different nationality (“international partnership”) or, where the same nationality, living in a different country from the one where the partnership was registered.  Put this in the context of annual dissolutions (death or “divorce”) of around 8,500 per year (that is 4% of 211,000 if you are wondering) and you can begin to see the number of international couples whose relationships are potentially affected each year.

 So what, I hear you say, divorce, death or something like it, is a sad fact.  Well, the EU has noticed that in the event of dissolution of the partnership of an international couple, there is considerable potential for added complications.  These centre around what legal regime governs the partnership and, so, what rights are conferred on the couple by that particular regime.  In theory, a partnership between persons of 2 different nationalities, residing in a country of which neither is a national or is not the country where the partnership was registered may have as many as 4 different countries’ laws to apply when considering where to start with legal rights and remedies; and for 4 choices, read potentially 4 different outcomes, whether in terms of allocation or resources between persons or the application of tax to assets and income.

Unfortunately, though, it is more complicated than that, since the target countries will also have different rules on what to do in the event of conflict between jurisdictions, formulated on the back of different initial legal assumptions (and comparing them would be as satisfying and straightforward, say, as comparing electricity tariffs here in the UK), which may produce surprising results not least the application of “renvoi”.  This is the legal equivalent of “pass the parcel” – one country applying another country’s laws.  Double “renvoi” (and yes, that can happen) is a concept similar to the desk top toy so popular some years ago – Newton’s Cradle – set in motion it bangs back and forth without much loss of energy or motion or, for our purposes, conclusion. 

 Maddeningly, even in instances which are factually straightforward it is sometimes not possible to predict with certainty what the division or taxation of assets will be, no matter how many lawyers and accountants are employed.  If the subject of jurisdiction is removed from the potential arguments, somebody at the EU has calculated that it could save the individuals who would otherwise have been affected several millions of the estimated 17 million Euros per year that registered partnership couples are thought presently to spend on dissolutions.  That last figure is set to increase exponentially as more countries offer registered partnerships and, sadly, those increased numbers begin to be reflected in dissolutions whether in life or on death.

 The EU has identified 6 options, apart from doing nothing, to tackle the problem, two of which just involve raising citizens’ awareness (broadly, tell those about to register that not all states are the same and, second, tell the world that this is so).  The other 4 require harmonisation (either of jurisdiction rules/automatic recognition, or conflict of law rules, or a European pro forma for marriage or harmonisation of conflict of laws, jurisdiction and automatic recognition).

 The EU analysis of the pitfalls and advantages of the 7 options leads them to recommend potentially the most comprehensive solution, harmonisation of conflict of laws and jurisdiction rules, the introduction of rules on the automatic recognition and enforcement of judgments flowing from dissolution and last but not least, the creation of a webpage!  If implemented, that would seismically shift our current set of assumptions and laws inEnglandandWales, particularly on dissolution on death.

 If you are interested in this and are wondering what to do next, then you should have a look at the EU paper to understand more about the problems and suggested solutions.  After that, my suggestion would be to find your MEP and discover what he or she is thinking or doing about this document.  After all, 6 years from now, when we are working through the ramifications of the Directives the EU may well have passed, you might like to think you had had your say, even if you cannot tell whether anybody listened!

This latest information from the Office of National Statistics suggested that couples in their 20′s were the most likely group to divorce. As couples were also spending less time trying to mend their relationships, choosing instead to head straight for the divorce court, these so-called ‘starter marriages’ are, according to the statistics, the current trend.

According to the ONS, one in three marriages now ends in divorce before reaching the 15th wedding anniversary. A generation ago, this was one in five.

Does this signal a shift in the attitude of those choosing to marry? It would seem only in the young.  As a single 30 something, maybe I’ll be the one to have got it right, by luck as opposed to design!

Charlotte Conner

The new rules mean that anyone setting out to contest the terms of their separation must first consider mediation.

Mediators in Manchester have informed Justice Minister Jonathan Djanogly that early signs indicate that a lot more people are making enquiries and then chosing mediation.

Only time will tell if the rest of the country agree.

Charlotte Conner

 In a nutshell, Payne provides that if the relocating parent has a feasible plan and a genuine motive (i.e. is not relocating to frustrate contact between the child and the non-resident parent), the Court will likely consider the relocation to be in the best interests of the child. Courts in other jurisdictions have proved themselves less easily persuaded, indeed, the New Zealand Court concluded that the approach in Payne was “inconsistent” with that of New Zealand law (D v S [2002] NZFLR 116).  

 Last year Mr Justice Mostyn called for an urgent review by the Supreme Court of the Payne principles.  Payne is considered by many to be an overstatement of the importance of the wishes and feelings of the relocating parent to the detriment of the child’s relationship with his or her non-resident parent.   

 In Re D Lord Justice Wilson considered the criticisms of Payne and commented that there was a “perfectly respectable argument for the proposition that [Payne] places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the parent who is left behind. 

The recent Court of Appeal decision in Re W (Children) [2011] EWCA Civ 345 concerned an appeal by the mother of the trial judge’s decision not to permit her to relocate to Australia with two children aged 12 and 8.  The mother had been the children’s primary and sole carer for the majority of their lives.  The father had not had regular contact and did not have Parental Responsibility.  During the course of the proceedings, the father started to build up a relationship with the children and, despite a Cafcass report concluding that (i) the mother’s plans to relocate were well thought out and well-intentioned, (ii) that the children themselves wanted to live in Australia and (iii) that refusing the mother’s application would be devastating for the family, the trial judge did not permit the relocation. 

The Court of Appeal considered that the trial judge had been plainly wrong in his conclusions and that the mother’s relocation application should have been granted.  Lord Justice Wilson resiled from his earlier stance in Re D and confirmed that English Courts should continue to follow Payne.

The Court of Appeal are certainly sticking to their guns, but in light of the flurry of criticism of Payne is it only a matter only time before the English Courts take a more neutral approach to leave to remove cases?  

Colin Rogerson

The recent Supreme Court judgment in Re W (Children) [2010] UKSC 12, reformulated the Court’s approach to determining whether a child should give live oral evidence in family proceedings. In short, the Supreme Court removed the existing (and rarely rebutted) presumption that, other than in exceptional circumstances, the potential damage to the child is unjustifiable.

The issue arose from care proceedings in which the father appealed an Order refusing his application for the oldest of the five subject children, to give oral evidence and be cross-examined. The child in question had made allegations of rape against her father and had given oral evidence in the ongoing parallel criminal proceedings. The father is the biological parent of the four youngest children and a sixth child is due. As a result of the oldest child’s allegations, all five children were taken into foster care.

The parties had previously agreed the 14-year-old girl would give evidence via video link at a fact-finding hearing. The judge however requested further argument on the matter and the local authority changed its position, after considering the evidence already provided to be sufficient. The judge decided against the father’s application for the girl to be called. The father’s appeal was then dismissed by the Court of Appeal, which felt bound by prior jurisprudence, but expressed concerns about the fairness of the existing presumption.

The father appealed again to the Supreme Court, arguing that the distress caused to children in such proceedings, though grave, is not such as to justify the persistent failure of the courts to exercise their discretion in a balanced and considered way. He further argued that such a failure in this case would constitute a breach of his Section 6 HRA right, impinging upon his right to a fair trial.

The Supreme Court unanimously allowed the father’s appeal and reformulated the test. The question of the child’s evidence was remitted to the judge at first instance for a fact-finding hearing.

The new test – a balance must be struck between competing Convention rights, namely article 6 requirements of fairness and article 8 right to private and family life. Striking this balance may well mean that a child should not be called to give evidence in most cases, but this is a result and not a presumption or even a starting point. The essential test is whether justice can be done to all parties without further questioning of the child.

Certainly the reformulated test appears to sit more easily within the approach of the European Court – the presumption is stripped away, leaving the discretionary balancing act of Convention rights in unfettered judicial hands. However, I can’t help but wonder if any family judge worth his or her salt would really permit the cross examination of a child in anything but exceptional circumstances? Thus, save for having made a pleasingly deferential nod towards the ECHR, is this not merely a distinction without a difference?

Olivia Piercy

This week, the Court of Appeal brings what has been nicknamed the “Shhh. Not in Front of the Children Order”. In ETK v News Group Newspapers, the case concerned two parties who worked in the ‘entertainment industry’. They were both married to other people but had had an affair. When Mr X’s wife found out, he agreed to stop seeing Ms Y and both parties continued to work together. A year later, Ms Y’s contract was not renewed and a story leaked that it was due to the affair. A case was brought by both Mr and Mrs X and Ms Y to prevent the News of the World from reporting the affair. The News of the World argued that there was a public interest in discussing whether the affair was the true reason Ms Y was dispensed with by her employer. The Court of Appeal didn’t agree and the injunction was granted.

The children of Mr and Mrs X were “bound to be harmed by immediate publicity”, said Lord Justice Ward, because it would undermine the family as a whole and “because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment”. Although his remarks were not given in relation to a family law dispute, they do indicate that having children may be your passport to privacy.

Elizabeth McGowan 

High up on the agenda was the impact on the recent cases of Imerman v Tchenguiz [2010] EWCA Civ 908 [2010] 2 FLR 814. A workshop by Harry Oliver and Christopher Pocock QC of 1 King’s Bench Walk confirmed the importance of advising clients not to remove paperwork or documents belonging to their spouse that may be confidential.

However, confidentiality is not easy to determine. Ultimately, it will depend on the circumstances of each case. The Court of Appeal in Imerman indicated that documents which deal with an individual’s private life, including personal finances would be confidential. But that is not the end of the matter. It also depends where the document was left, for example if a husband or wife were to leave private documents lying around on the kitchen table, they may well lose their confidential nature. The test seems to be whether the husband or wife would consent to the documents being copied or viewed. This is not easy for some of our clients to determine in reality.

Accessing computer data belonging to a spouse is more clear-cut since that would be a criminal offence under the Computer Misuse Act 1990. However, if the parties shared a password on a family computer the boundaries seem to blur once again.

The result is a potential minefield for family lawyers and most attendees of the conference seemed genuinely concerned about the implications of this judgment. Many family lawyers are confronted by a situation when a client brings in documents they have found belonging to their spouse, often as a result of real concern about lack of disclosure. More worrying is that solicitors who are passed such documents may be prevented from acting further in the case.

From now on, it seems that family lawyers should be advising clients not to go looking for documents about their spouse’s finances, in any circumstances. Original documents should certainly never be taken without agreement. If, however, a client has made a mental note of the content of some of the documents he or she has seen, these can be communicated to their lawyer.

It remains to be seen whether this will complicate the already difficult task of obtaining disclosure from those unwilling to provide it.

Lucy Marks