Legal Update
Spring 2013

Article 1 - Costs In Family Cases - Be Prepared - David Pugh

Costs applications in private family law cases may not be every advocate’s first thought. With the effects of the legal aid reforms nearly upon us it is likely that we will be representing privately paying clients with extremely limited resources, with a costs order either way having a significant impact on their decision making. Recent decisions regarding the appeal of costs orders have made awareness of the case law in this area essential reading.

The general rule is that Children Act proceedings are exempt from the general rule in civil proceedings that costs follow the event - this is due to the departure from the CPR r44.3(2) by the Family Proceedings Rules 2010, r28.2. Historically courts have been reluctant to make costs orders in Children Act cases; Wilson J in London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569, 570H - 571C, stated, "The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate".

The Court of Appeal provided a summary of the general principles in Re T (Order for Costs) [2005] EWCA Civ 311, [2005] 2 FLR 681 at 690 and 694. In general terms the court felt that costs against one parent may result in that parent feeling they have been ‘punished’, and may result in a reduction in cooperation between the parents. The court took the view that the unreasonableness of the parties must relate to the litigation rather than the welfare of the child. The court warned that in some circumstances there is an overlap between the conduct of the litigation and the conduct relating to the welfare of the children; with a corresponding increase in costs orders, particularly in relation to fact-finding hearings. Given that, in the absence of legal aid, there is a distinct possibility fact-finding hearings may result from allegations adopted and pursued spuriously, it is likely a privately funded party will be keen to recover his/her costs, and succeed.

In Re J (Children) [2009] EWCA Civ 1350, the Court of Appeal considered the position relating to costs in fact-finding hearings. Wilson J placed emphasis on the fact that the direction for a factfinding hearing resulted solely from the mother’s allegations, and therefore the costs incurred were wholly attributable.

In a novel approach to assessing quantum, the respondent father was ordered to pay two-thirds of the mother's costs of the fact-finding hearing on the basis that two-thirds of the mother’s allegations had been proved. The Court was clear that the Judge should consider:-

  • the nature of the enquiry,
  • the seriousness and relevance of the allegations;
  • the extent to which the allegations were admitted;
  • the extent to which the allegations had been found proved.

The case of R v R v A [2011] EWHC 1158 (Fam) extended this approach. Unpleasant allegations had been made against the father, which he had been obliged to defend. There was no factfinding hearing but the court made a costs order in any event, taking the view that the allegations, although ostensibly concerning the welfare of the child, were also an attack on the father.

A warning to those unprepared for an application for costs came in the recent case of HH v BLW [2012] EWHC 2199, where Holman J refused permission to appeal on the basis of 'proportionality'. This refusal was notwithstanding the fact that the applicant father’s solicitor and counsel confirmed they would represent pro bono. The relevant facts of the case were that at a First Hearing Dispute Resolution Appointment, a CAFCASS officer met with the child and reported a resolute unwillingness by the child to see her father. Without any resistance by or on behalf of the father, the judge ordered that there be no order on the father's application for contact.

The mother's solicitor promptly applied for costs.

The judge ordered the father to pay the mother's costs. With permission to appeal refused solely on grounds of proportionality (the appellant court accepted the applicant father’s case had merits) many costs orders made at an early stage in proceedings will be effectively unappealable.

Article 2 - She’s Left The Country With The Children! - Baljinder Bath

I was recently instructed in an international child abduction matter, which had a lamentable history: The father was a litigant in person. He had not had contact with his child for some years. He received information that the mother was planning to permanently remove the child from the jurisdiction to a Hague Convention country. He contacted the police who visited the mother. She told them that she was going away for a short holiday and produced return tickets. They accepted what she said at face value. A few days later she made an application to remove the child permanently from the jurisdiction, but before any hearing took place, she left the country with the child and did not return.

The father acted in person for the majority of the county court proceedings. He was a man of limited means living in a rural area, and unable to obtain a legal aid solicitor for many months. Notwithstanding that the mother had left the country, the county court carried on with the proceedings for removal in the UK. It was only some eight months after the removal that the proceedings were stayed, and the father made an application to the High Court. By that time there had been considerable delay, much to the prejudice of the father. Indeed the High Court judge who eventually heard the matter expressed judicial concern about the failure of the case at county court level.

So what should you do if you are instructed by a client whose child has been permanently removed from the country without consent, or order of the Court?

  1. If the child has been removed from England and Wales to another Hague Convention country, it will be the court in that other state which must determine whether a right of custody under the law of England and Wales has been breached. Therefore, the first step is to contact the International Child Abduction and Contact Unit (ICACU) which is the Central Authority in England and Wales.
  2. The ICACU then applies, on behalf of the applicant, to the central authority of the country to which the child has been taken. That foreign central authority should then take immediate steps to:-
    • Consider whether the requirements of the Convention are met and that the application is well founded;
    • Discover the whereabouts of the child;
    • Prevent further harm to the child;
    • Secure the voluntary return of the child if possible;
    • Commence court proceedings in that country if voluntary return is not possible;
    • Provide or facilitate the provision of legal aid and advice;

Sadly the father in my case made an application to the ICACU 11 months after the removal had taken place, and it was another two months thereafter before proceedings were eventually commenced in that country. As more than 12 months had passed since the removal, the court in that country were obliged to consider not only whether there had been a breach of the Hague Convention, but also if the child had now settled there.

But what could the High Court in the UK do when the child had already been removed from this Country? Section 8 of the Child Abduction and Custody Act 1985, provides that the High Court may make a declaration that the removal of any child from, or his retention outside, the UK was wrongful within the meaning of Art. 3 of the Convention. This section contemplates applications being made for the purposes of Art. 15 by ‘any person appearing to the court to have an interest in the matter’ and is not limited to the circumstances within the narrow definition of Art.15. This declaration from the High Court is often necessary to enable the applicant in proceedings outside the UK to obtain an order for the return of a child who has been wrongly removed or retained With the advent of the global world and low cost travel, cases like this will become more and more common. It is important that we are all aware of the international options available in any case, particularly as the courts are flooded with litigants in person!

Article 3 - The Psychology Of Litigation - Daniel Nother

As a litigator, have you ever wondered why your claimant clients, with a good case, will walk away for a heavily discounted settlement while defendants will fight a hopeless case? For the sake of simplicity, this article ignores the quantum and burden of costs.

Assuming that £1,000 is a significant but not a life-changing sum for you, which of these two bets (‘the claimant’s choices’) do you prefer?

(a) A 90% chance to win £1,000, 10% chance to win nothing.

(b) £750 for sure.

The majority of people would choose the latter option, even though the mathematical value of the gamble in (a), £1,000 x 90% = £900, superior to the sure thing.

Again, assuming that you could lose £1,000 without facing ruin, how about these (‘the defendant’s choices’)?

(A) A 90% chance to lose £1,000, 10% chance to lose nothing.

(B) Lose £750 for sure.

This time, the majority of people would prefer the gamble. Faced with a significant loss, most people would take the 10% chance to avoid all loss, even though, on average, they would expect to be even worse off.

These preferences feel intuitive and unremarkable. People dislike losses more than they like gains and psychological research suggests that the ratio is about 2:1 - they like a gain of £2,000 about as much as they dislike a loss of £1,000.

This suggests that if you are a claimant with a 90% chance of winning your case with damages of £1,000, you would be likely to accept an offer from the defendant of £750. Conversely, as the defendant you would probably not wish to make the offer because you prefer to take the gamble. The result is a trial. The respective positions accord with the experience of lawyers in representing members of the public.

Defendants, perhaps to the discomfort of their lawyers, often prefer to fight on against the odds when a mathematically favourable settlement is on the table.

Now consider that you are offered the claimant’s choices (a) and (b), but that you get to gamble ten times. You would be much more likely to accept the gamble this time. Your expected gain for gambling each time is £900 x 10 = £9,000 as opposed to only £7,500 for taking the sure thing and the risk of coming away with less than £7,500 is very small. For identical reasons, you would probably take the certain loss each time faced with the defendant’s choices (A) and (B). The litigant with a series of choices is in the position of a professional used to litigation, for example an insurer, whose concern is to maximise gains or minimise losses over the long run and who will take the occasional hit with equanimity.

You can read more on this subject in the highly recommended book, ‘Thinking, fast and slow’ (2011) by Nobel Laureate in economics Daniel Kahneman.

Article 4 - Transfer Of Tenancy And Separated Spouses - Gemma Bower

I came across an anomaly in this area of the law recently whereby separated (but importantly not divorced) spouses could not obtain a court order for a transfer of a tenancy. The reason was that there were no divorce proceedings and hence no decree of divorce or judicial separation as required by paragraph 2(a) of Schedule 7, FLA 1996.

Of course there could be, and was, an occupation order. In an appropriate case there could be an application under Schedule 1, CA 1989. However, it seemed to both the judge and myself a strange position to be in and one where effectively the husband in that case was forced to either divorce his wife or judicially separate from her in order to obtain a contested transfer.

I tried to argue around this on the basis that the husband would apply for a divorce and the order for transfer would not be dated until after the granting of the decree (akin to the position with regards there being a financial remedies order before decree nisi). It was acknowledged in the case of Pounds v Pounds [1994] WLR 1535 that a District Judge would have power under RSC Ord.

42, r3 to approve a draft financial consent order in advance of decree nisi and to direct that it should take effect at a future date and that no fresh appraisal of the matter was required after decree nisi was announced.

Whilst the authority only extends to consent orders it is important to note that RSC Ord. 42, r3 states,“(1) a judgment or order of the court...takes effect from the day of its date (2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the court...orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day”. The wording of the RSC Order therefore is not limited in its application to consent orders.

The court would therefore be able to consider the application for a transfer of tenancy and once satisfied on the evidence proceed to make the order with a direction pursuant to RSC Ord. 42 r3(2) that the final order is not to be dated until a date after the decree has been granted. Unfortunately, such argument did not succeed in the case I was briefed in on the basis the husband had not yet even issued divorce proceedings!

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