eBulletin - Legal Update
September 2014

Article 1 - The (lack of) funding in Children Act proceedings – a rant - Anthony Hand

As I write this article, it is my last afternoon at work before my summer holiday. I am probably past my “sell by date” and I am generally hacked off. Over the last few weeks (or I should say months or weeks) the funding of Children Act proceedings (or I should say the lack of it) has been particularly irksome for me.

In the very recent decision of the President in Q v Q and others (2014) EWFC 31, three private law cases were heard together. They all concerned the situation where the mother had the benefit of public funding but the father did not. As we are all aware by virtue of s.9 of Sch. 1 of LAPSO public funding is generally not available for private law proceedings, but there is provision where the one party is able to show that they have been subject to domestic abuse. So typically mothers, who can show that they were subject to abuse, may still be able to obtain legal aid.

At the time of the bill being debated, this produced calls saying this was unfair to fathers. A mother could allege DV, obtain funding, but the father would be left unrepresented. In order to even things up s.10 of Sch. 1 allowed for there to be a grant of public funding in private law cases in “exceptional circumstances”. The Lord Chancellor gave guidance that the discretion to allow funding should be “used in rare cases” (note the absence of the would “very” before rare). But what does this mean on the ground?

A freedom of information request was made to find out how many exceptional cases were actually being funded. The answer was that the LAA had granted funding to 8 or 9 cases a year! A government spokesman said “ we are satisfied that the system is working in accordance with the section”.

If public funding is only granted under s.10 in 8 or 9 cases a year how can this be fair? How can this said to be a working system? Further, where is the logic? One hopes that after the President’s decision in Q v Q the discretion to permit funding under the “exceptional” category will henceforth be used more liberally, but I will not hold my breath.

On a similar theme, also highlighting the lack of logic in LAA funding, experts instructed in care proceedings at the end of last year had a marked and somewhat arbitrary reduction in their fees. For example a consultant paediatric expert based outside London is allowed £108 per hour, whereas one based in London is permitted only £72 ph. The reason for the distinction is that apparently this can be justified on the basis of the market economy. London is awash with doctors willing to work for £38ph less than a doctor is Reading or Slough, it is said.

Is it me, or in reality are there no paediatricians willing to accept instructions at the inside London LAA rates? It is hard enough to find an expert willing to work for the outside London rates.

But why should I worry? Either way the expert’s hourly rate is greater than my own! However, without adequate funding the system breaks down. Reports are not written. Issues are not fairly disposed of. Ultimately, children would go unprotected and unserved by the system if local authorities were unwilling to step in and just sometimes agree to make up the shortfall in fees. This willingness to help, of course, cannot be the solution to the problem.

So, just on the verge of going on holiday, the temptation just to stay in Norfolk, become a deck chair ticket seller and never come back is a great one. However, the thing that keeps the heart of the child care / family law system going is that by and large it is staffed by good people. Be they social workers, guardians, lawyers or judges. These are people who are dedicated to the system. We get out of bed to see if me might make a small difference each day. On that basis, being a deck chair attendant may have to wait for another summer, but I do not think that we should stop complaining.

Article 2 - No Room for a Stiff Upper Lip in Occupational Stress Claims - Antonietta Grasso

Sir Robert Nelson’s judgment in the recent case of Patricia Daniel v Secretary of State for the Department of Health [2014] EWHC 2578 (QB) (‘Daniel’) has re-emphasised the need for those who represent Claimants wishing to bring a claim for damages for psychiatric injury arising out of occupational stress, to provide robust advice; particularly where concerns relating to an impending condition are not brought to an employers attention.

In Daniel it was decided that the Claimant’s psychiatric injury was not foreseeable, and that no duty of care arose due to the Claimant not making explicit grievances regarding her treatment. This decision is particularly stark considering that the court heard no evidence from the alleged perpetrator of the bullying/victimization, or evidence from the Defendant’s occupational health department regarding its involvement with the Claimant or her workload or its effect.

The test to be applied in cases of this nature is well known as being whether an employer falls “below the standard properly to be expected of a reasonable and prudent employer taking positive steps for the safety of his workers in the light of what he knew or ought to have known” Barber v Somerset County Council 2 AER 385 and [2004] UKHL 13. The Court of Appeal in Hatton v Sutherland [2002] ICR 613 answered the question of the strength of the indications required before an employer has a duty to act as being “plain enough for any reasonable employer to realise that he should do something about it.” (para 31) In Daniel, the Claimant who had a history of bipolar disorder carrying a very high rate of recurrence, maintained that her stress and subsequent mental illness were brought about by the negligence of her employer in permitting her to be bullied. The Claimant also alleged that she was seriously overworked causing stress contributing to her mental illness, and that her employer allowed that situation to continue. The court found on the facts before them that the Claimant had not been bullied – the principle antagonist’s actions being forceful and blunt (para 54), but not amounting to bullying or victimization. Rather more contentiously the court found that that there were neither indications nor explicit complaints of impending harm to the Claimant’s health arising from stress at work – the Claimant performing two roles within the employers organisation with the employers knowledge. Consequently the court found there were no indications plain enough for any employer to realise that he/she must do something about it. It was found that the Claimant’ psychiatric breakdown was a surprise to the employer (due in part to the Claimant’s reticence to make disclosure), and as a result not foreseeable and no breach of duty of care arose (paras 180, 182, 184-186). The courts are therefore clearly still extremely unwilling to be lenient toward Claimants as far as establishing a breach, since in Daniel despite the Claimant preforming the role of two employees for some length of time and to the Defendant’s knowledge the court dismissed the claim finding the Claimant had not established a duty of care where there were neither explicit indications or complaints of impending harm to her health arising from stress at work. Evidence from the Defendant’s occupational health involvement, or lack of, may have been useful in establishing a duty and subsequent breach. It could be argued that by being stoic the Claimant lost out on damages. The court found that the Claimant had “sought on all occasions to maintain professional relationships with her colleagues... she succeeded in this, but it was done at a cost; it caused her to be determined not to show any weakness or let her colleagues see the fact that she was stressed.” (para 150) It can also be inferred that it is not in an employer’s interest to delve too far into the previous medical history of employees, or be too proactive in terms of their occupational health activities. This is clearly at odds with the test in Barber, which makes a clear reference to an employer taking “positive steps for the safety of his workers”. In cases of this type (where a Claimant has behaved stoically), it may be useful to those advising Claimants to consider an alternative claim in the Employment Tribunal. When considering claims involving stress, it will also be useful for a representative to be aware of statutory occupational health requirements and guidelines, and an employer’s voluntary occupational health policy.

Article 3 - Civil Justice System Changes - David Lang

The 22nd April 2014 saw the formation of the Single County Court which will sit at different hearing centres throughout the Country. Judges will sit as Judges of the County Court. The formation of the single Family Court, means family matters will not be heard by the County Court, and it will therefore be a civil jurisdiction. In addition to the formation of the Single County Court, following recommendations from Sir Henry Brooke in his 2008 report, various reforms have been implemented to the Civil Justice System. The Commercial Bar Association has published a useful guide to these changes (which can be found here:

http://bit.ly/1kFo06q). In summary the following changes have come into effect:

  • The process for High Court Judges sitting in the County Court has been streamlined so the Lord Chancellor’s approval is no longer required.
  • Freezing Orders can be made in a County Court proceedings, however, the extended jurisdiction is limited to only nominated Circuit Judges.
  • There have been changes in the financial limit in equitable matters and High Court Matters. The County Court equitable limit has been increased to £350,000 and the lower financial limit for brining claims in the High Court has been increased to £100,000. Any claim below this limit should be brought in the County Court.
  • The High Court will obtain exclusive jurisdiction under an application to vary a trust under the Variation of Trusts Act 1958 and an application for a reduction in share capital under the Companies Act 2006.
  • Some Court fees have increased.

Whilst these changes have come into effect, it is not designed that there will be an impact on where, or how, insolvency proceedings are issued.

It is clear these reforms are designed to make the Court system more efficient and cost effective, through the removal of certain administrative processes and the increase in financial jurisdiction. Clearly the major impact of these changes will be on high value claims and some of those which the High Court would have jurisdiction of.

Article 4 - Will you marry me? Just sign here… - Amy Beddis

Property agreements between engaged couples are nothing new. People have been making pre-nuptial agreements for thousands of years. We are used to hearing about celebrity couples entering into pre-nups for example if Beyonce and Jay-Z divorce, their prenuptial agreement entitles her to $25,000,000.00 plus an extra $5,000,000.00 for every child they have. In 2007, Paul McCartney's decision not to have a pre-nup with Heather Mills cost him £24.3m. In contrast, in the same year Britney Spears - worth an estimated $120m - gave a mere $1m to dancer Kevin Federline in their divorce after ensuring a watertight pre-nup.

But things are changing. Pre-nups are no longer just for the rich and famous. Scottish Widows found that over half of people (56%) yet to be married would consider a prenuptial agreement. The principle of pre-nups has recently made headlines again with the Divorce (Financial Provision) Bill which was first introduced by Baroness Deech in February of this year and received its second reading in the House of Lords on 27th June 2014. The Bill amends provisions in the Matrimonial Causes Act 1973 and makes specific reference to pre and post -nuptial agreements. Lady Deech states that the area ‘desperately needs public and parliamentary input’ as the law has been developed by Judges creating ‘uncertainty in application’.

The bill proposes a number of changes to pre and post nuptial agreements: A pre-nuptial or post-nuptial agreement is to be treated as binding on the parties and is to be given effect unless—

(a) the agreement attempts to impose an obligation on a third party who has not agreed in advance to be bound by it (in which case the agreement is not binding on the parties insofar as it attempts to impose that obligation);

(b) a party neither received independent legal advice, nor had an adequate opportunity to do so, before the agreement was made;

(c) in the case of a pre-nuptial agreement, the agreement was made less than 21 days before the marriage;

(d) there was no full disclosure of assets as between the parties before it was made; or

(e) the agreement is unenforceable under the applicable rules of law relating to the validity or enforceability of contracts generally.

What does this mean in practice? What should be included?

The Family Law Protocol specifically states that the following should be included within the agreement:

  • that the parties intend to create a legally binding contract
  • that there would have been no marriage without the agreement;
  • how all the assets are to be divided including pre-marital and post separation accruals
  • what should happen in case of change of circumstances e.g. children

The Court, when considering a pre-nup, will look to the backgrounds of the parties and in particular:

  • Their ages
  • Whether each party has been married or in a long-term relationship before and the circumstances in which that relationship ended
  • Whether either party has children from a previous relationship and with whom they live
  • Whether the parties have a child or intend to have one in the near future
  • Where the parties are currently domiciled/resident and where they intend to reside
  • Whether the parties are cohabiting and for how long
  • either party expects the financial position to change significantly during the course of the marriage (i.e. inheritance, sale of business)
  • If one party was clear that they would not marry without an agreement, this should be recorded.

The existence of children, whether provided for in the agreement or envisaged by the parties, will not necessary vitiate the agreement. The law currently provides that children of a marriage are an important factor however this emphasis will change if the Bill aforementioned comes into force.

Context of the relationship and fairness of the agreement is going to be key!

Article 5 - TERMINATION OF JOINT TENANCIES – WILL IT TAKE TWO TO TANGO? - Carol Davies

Mr & Mrs Sims were joint tenants of a secured periodic tenancy of a residential property let by Dacorum Borough Council. The tenancy agreement provided that where either joint tenant wished to terminate their interest in the tenancy, they must terminate the full tenancy. The Council would then decide whether any of the other joint tenants could remain in the property or be offered more suitable accommodation.

The marriage broke down; there were allegations of domestic violence against Mr Sims. Mrs Sims left the property and she gave a notice to quit the tenancy in July 2010. Mr Sims asked to remain in the property and a transfer of the tenancy into his sole name. The Council told him he had no legal right to remain in the property. The Council eventually issued possession proceedings in October 2010.

Mr Sims defended the proceedings and argued that the legal position settled by the then House of Lords in Hammersmith and Fulham BC v Monk [1992] AC 748 is incompatible with Article 8 of the European Convention of Human Rights (“ECHR”). That legal position is this: in common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant serves a notice to quite on the landlord. The deputy district judge made a possession order against Mr Sims.

Mr Sims appealed to the Court of Appeal on the ground that the lower court was wrong in law to decide that the service of the notice to quit by Mrs Sims was effective to terminate the joint tenancy when that state of the law breached Articles 8 and 1 of the ECHR. Lord Justice Mummery gave four clear reasons for dismissing the appeal.

  1. He confirmed that the appeal related to whether or not the legal position in Monk was compatible with Articles 1 and 8; it was not about the engagement of the Articles with the Council’s possession proceedings.
  2. The sole aim of the appeal was to enhance property rights: “Stating the matter quite baldly, [Mr Sims] is aiming, by use of the ECHR, to obtain a tenancy of a three bedroom family house for himself in place of a joint tenancy of a family home which the Council had originally granted...”
  3. Article 8 was not engaged as Monk laid own a substantive rule of property under contract law; that right being that either joint tenant has the right to serve a notice to quite unilaterally in order to terminate a periodic joint tenancy.
  4. Article 1 was not engaged either. The rule in Monk is a proprietary and contractual legal right inherent in the joint tenancy of the property and the notice given by Mrs Sims was an exercise of her right as a joint tenant. So there was no interference by her or the Council with the enjoyment of Mr Sims’ possessions. His possession was an interest in a joint tenancy, which could be terminated unilaterally by either him or Mrs Sims. The Council was only a recipient of the notice and it did nothing itself that could be described as an interference with Mr Sims’ peaceable enjoyment of the property.

As to the proposed appeal to the Supreme Court, Mummery LJ made it clear that spending public funds on appealing further to the Supreme Court was not sensible and would be a waste of money. Permission to appeal was refused.

However, Mr Sims managed to get to the Supreme Court. The full judgment has yet to be handed down but on 26th June 2014, the Supreme Court suggested that it was minded to dismiss the appeal. What might this mean? It seems for now, the legal position in Monk since 1992 will remain in place and social landlords can feel some relief that they will not be stuck with a tenant remaining in a property that may no longer be suitable for his or her needs. However, similar cases such have been stayed due to this pending Supreme Court decision. Someone might want to press on further and head to the European Court of Human Rights, which might find a way of favouring Mr Sims’ argument and that it should take all joint tenants to quit a joint tenancy.

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