Private Client Titles – Autumn 2007


A Recipe for Dispute if Ex-Wife is Landlord
It is a general rule of thumb that on divorce, the marital assets should be divided more or less equally between the ex-spouses. However, there are circumstances in which this does not hold good and several factors can affect how the assets are apportioned. One such factor is the length of the marriage.
In a recent case heard in the Court of Appeal, a man appealed an order giving his ex-wife assets including the shares in the company which owned the business premises from which their family company traded. The district judge had also ordered him to make payments to his ex-wife, which would be reduced once the former matrimonial home had been sold.
The appeal was based on the facts that the trading company had been established prior to the marriage and that it was the main source of the family’s income. The ex-husband claimed that the presumption of equal division of the assets was incorrect, especially as the marriage had lasted only ten years. He also argued that his ex-wife’s assets were more easily saleable than his and that the payment of rents from the company to the landlord company was ‘double counting’ in favour of his ex-wife.
The judges hearing the appeal thought the decision of the district judge was flawed, especially as regards leaving the ex-wife as the de facto landlord of her ex-husband’s company. In the judge’s view, leaving the couple financially linked as landlord and tenant was ‘a recipe for ongoing dispute’.
The Court ruled that various revisions to the order should be made and gave the husband the right, until 1 January 2009, to buy the shares in the landlord company.
Partner Note
Smith v Smith [2007] EWCA Civ 454.
See New Law Journal, 3 August 2007, p 1116.
Bigamous Civil Partner Prosecuted
The first case of bigamy involving a person who entered into a civil partnership whilst still married has now come to court. Suzanne Mitchell, a mother of five from Shrewsbury, was found guilty of breaching the Civil Partnership Act 2004. Ms Mitchell entered into a civil partnership with Caroline Beddows before her marriage to Charles Mitchell had been dissolved.
She admitted making a false statement and was given an eight-month prison sentence suspended for two years. She was also sentenced to complete 100 hours of unpaid community service and was made the subject of a two-year supervision order.
Ms Mitchell has subsequently been reconciled with her husband.
Partner Note
Child Custody – How it Works
Arrangements over the custody of children (called ‘residence orders’ in legal parlance) after the breakdown of a relationship are usually best decided without the intervention of the court. Unfortunately, it is not always possible for the two parties to agree over living arrangements or what level of financial support is appropriate. Both parents normally have a legal responsibility under the Children Act 1989 to look after their children, financially and otherwise, until they are 18 years old or have left full-time education.
Part of the process of filing for divorce involves completing a Statement of Arrangements. This document contains, amongst other information, the details of how the parties to the divorce wish to organise the living arrangements of their children. If both parties are in agreement, and the court is satisfied that these arrangements are adequate and have been agreed between the parties, then the court is very unlikely to interfere.
If the parties cannot agree on child custody, then the court can be asked to settle the dispute. Normally, between four and ten weeks after applying for a court order, both parties will be asked to attend a meeting with the judge. The court will generally suggest that the parties meet with a Conciliation Officer to try to reach an agreement. The alternative – going to court – will almost certainly be a traumatic event for everyone involved and is normally best avoided if possible.
The main advantage of using mediation instead of the court process is that it helps to avoid some of the bad feeling that is inevitable when trying to settle such emotive issues in court. In addition, when an arrangement is reached by mutual consent rather than being imposed, it is more likely that both parties will honour it. The disadvantage of mediation is that it can be quite stressful for both parties to have to meet regularly.
Normally, an officer of The Children and Family Court Advisory and Support Service for England and Wales (CAFCASS) will also attend one or more of the meetings. If it is not possible to reach an agreement then the judge will normally request a court welfare report. It is the CAFCASS officer's job to draw up this report and it will involve meeting with the child and the parents as well as other relevant professionals, such as teachers and doctors. It may also involve the CAFCASS officer visiting the parties at home.
Within about three to six months a further hearing will be arranged by the judge to explain the decision. In making its decision the court will consider, first and foremost, what is in the best interests of the child. This decision will usually follow the recommendations of the welfare report.
For advice on all matters relating to family breakdown, contact <<CONTACT DETAILS>>.
Child Maintenance – or Jail?
A barrister who failed to comply with an order to pay child maintenance was recently sentenced to six weeks in prison. The barrister had been ordered to pay £365 per month to the mother of their two children but had built up arrears of £43,000 with the Child Support Agency (CSA).
The living arrangements regarding the children were that they spent one week a month with their father plus every weekend with him. This allowed their mother (a taxi driver) to continue to work normally. The Child Support, Pensions and Social Security Act 2000 contains no mechanism for the custody of children to be shared. Instead, it creates the position whereby one parent is the ‘parent with care’ and one is the ‘non-resident parent’. In this case, the mother was the parent with care and the father was the non-resident parent.
The father argued that his child care costs were essentially the same as the mother’s and he refused on principle to pay the sum ordered. This in turn led to him receiving a suspended sentence, which led to the jail sentence when he still failed to comply.
The problem is, in essence, that there is minimal flexibility when it comes to the arrangements that the CSA can make. The calculation of the sum the father should pay was correct, according to the CSA rules, and there is no mechanism for addressing whether or not those rules should apply in a particular situation.
The upshot of the court’s ruling was that in order to enforce a decision which was intended to ensure the welfare of the children, the financial resources of both households were reduced and the children (who picketed the court to request that their father not be jailed) were deprived of their father’s company and care, albeit for what turned out to be only two weeks.
Although in some instances it is counter-productive as a remedy, the use of the blunt instrument of imprisonment is a threat which hangs over the heads of persistent non-payers of child support.
Partner Note
Re: Daniel Cox (unreported). See New Law Journal, 3 August 2007 p 1104.
Clinical Negligence – Liability Tests
For a case of clinical negligence to be proved, there must be a duty of care which is owed by the defendant to the person claiming damages. If such a duty of care exists, for an action to be successful, two further things must be shown. Firstly, the treatment given to the claimant must have been negligent. Secondly, the negligence must have caused (or contributed to) the injury for which compensation is sought.
A recent case (Sutcliffe v BMI Healthcare) illustrates these principles. Mr Sutcliffe had undergone a routine operation and was under sedation for pain relief while asleep. The pain killer used was morphine, a side effect of which is that the normal gag reflex, which occurs if the airway to the lungs is obstructed, can be suppressed.
Mr Sutcliffe’s vital signs were not monitored by the hospital. He vomited in his sleep and his airway became obstructed, with the result that there was a considerable loss of oxygen to his brain. This caused Mr Sutcliffe to suffer severe brain damage.
The first issue was whether there had been a breach of the duty of care owed by the hospital to Mr Sutcliffe. Whilst the High Court found that there had been some breaches of the hospital’s duty of care immediately post-operation, in its view those breaches had not caused the incident. Critically, the judge found that the nurses had exercised reasonable clinical judgment in deciding that it was not necessary to check Mr Sutcliffe’s vital signs at 6 am, whilst he was asleep. Having found that no duty of care was breached, it was not strictly necessary for the judge to consider whether the failure to observe Mr Sutcliffe’s vital signs had caused the injury, but the judge did so. He accepted evidence from an expert anaesthetist and concluded that even had Mr Sutcliffe’s vital signs been checked, he would have gone back to sleep and the incident was therefore unlikely to have been avoided.
The Court of Appeal confirmed the High Court’s decision.
Partner Note
Sutcliffe v BMI Healthcare [2007] EWCA Civ 476.
Cohabitation Agreements – Protection for Unmarried Couples
One of the most common myths in English law is that there is such a thing as a ‘common law marriage’. It simply doesn’t exist and this misapprehension has led the Law Commission to suggest proposals giving additional rights to cohabiting couples. However, until any changes in the law are made (which could be several years away), cohabitees will continue to have few rights. When a marriage or civil partnership breaks up or one partner dies, the rights of the respective partners are relatively clear. When the relationship of a couple who have been living together breaks up or one of them dies, the difference between a legally-recognised partnership and an informal one becomes all too obvious.
A recent case involved two barristers who had lived together. When they split up, long and expensive court proceedings were necessary to decide the appropriate apportionment of the two properties they owned, both of which were held in the name of one partner.
On the death of an unmarried partner not only do the intestacy laws make no provision for the surviving partner to inherit from the estate of their partner, but also the surviving partner does not benefit from the exemption from Inheritance Tax that would apply if the deceased’s estate passed to a spouse or civil partner.
Indeed, in order to receive anything at all, the surviving partner may well have to go to court to show that they co-owned assets which in some cases may have been paid for by both partners but were owned in one name only. The surviving partner may also have to show that they qualify for financial provision to be made out of the estate under the Inheritance (Provision for Family and Dependants) Act 1975, which is designed to protect the dependants of people who die without leaving adequate financial provision for them. In any event, the surviving partner may face severe financial pressure whilst a claim is ongoing, even if it is ultimately successful.
For example, consider the recent case of a woman who had lived with her alcoholic partner for nearly three decades before moving out, shortly before he died, because she feared for her safety. He left no will. Had they been married, the situation would have been simple. However, in this case the woman was forced to go to court to prove her entitlement to financial provision, which was resisted by her late partner’s family.
What Can be Done to Prevent Such Problems?
One easy and inexpensive solution is to make a cohabitation agreement. This is a contract, between two people who live together, which sets out their agreement on the division of their combined assets. It is sensible when cohabiting with anyone, without the protection afforded by marriage or civil partnership, to enter into a cohabitation agreement so that ‘who owns what’ is clear. This is not only important if a relationship breaks down, but also if one partner dies.
What Should the Agreement Contain?
Like any contract, it should state who it is between, how long it is intended to last and that it is intended to be legally binding. If there are assets (e.g. your home) which are to be dealt with in a particular way, these should be specifically mentioned and details provided as to how they are to be dealt with on death or on break-up of the relationship. It is not uncommon for a couple to sell one of their properties when they move in together, with the property they live in being retained in the name of the original purchaser. In such cases, it is sensible to decide if the non-owning spouse’s contribution is to be treated, for example, as a loan or if they are entitled to a percentage of the property value.
The ownership of all significant assets – bank accounts, insurances, specific valuables etc. – should be considered. Details of income and expense sharing arrangements should be included if possible and if there is the intention that one partner should support the other, this should also be mentioned, as should any financial arrangements regarding family members.
It is obvious that a cohabitation agreement is normally best considered in tandem with your will. There are tax planning and other issues to consider – for example, you might think about writing any death in service benefits or insurances in trust for your partner.
For advice on cohabitation agreements, please contact <<CONTACT DETAILS>>.
Fag End Costs £500
Smokers who go outside to light up in order to avoid contravening the smoking ban could still find themselves falling foul of the law if they fail to dispose of their cigarette butts properly.
Kylie Henson, from Nottingham, has been fined more than £500 for dropping a cigarette end in the city.
The incident occurred before the smoking ban in England was introduced on 1 July 2007. Ms Henson dropped the cigarette butt in the city’s Old Market Square, in January 2007, and was issued with a £75 fixed penalty notice. She didn’t pay it and this led to a hearing in court at which she failed to appear. The court increased the fine to £350 and made a costs order, meaning the amount she owes now stands at £522.66.
Failing to pay fixed penalty fines can prove expensive. There are indications that councils throughout the UK are taking an increasingly strong line on littering and other seemingly minor offences.
Partner Note
Reported by the BBC 7 August 2007
Final Settlement – Court of Appeal Sees Sense
Wealthy builder Dennis North had a considerable shock recently when the court ordered him to pay his ex-wife, Jean, over £200,000 in financial support. Whilst such settlements are by no means uncommon, the oddity was that the couple divorced in 1978 and the financial arrangements were finalised in 1981. Multi-millionaire Mr North, now 70, quite reasonably thought that would be the end of the matter.
Mrs North had no source of income other than her settlement from her ex-husband, which included their matrimonial home and tenanted properties. She had not had any paid employment since the couple’s split. She decided to emigrate to Australia and so sold all her assets in the UK before moving to an affluent suburb of Sydney. However, her stay in the Antipodes was not a happy one. Her lifestyle and bad investments conspired to reduce her circumstances considerably and she subsequently returned to the UK. She then went to court seeking additional funds from Mr North and found the judge sympathetic. Despite agreeing that Mr North had no responsibility for his wife’s reduced circumstances, she was awarded £202,000 – more than 25 years after the original settlement.
A rapid appeal to the Court of Appeal brought a degree of restoration of common sense. The judges agreed that the award was unjustifiably large. Lord Justice Thorpe commented that, “the prodigal former wife cannot hope to turn to a former husband in pursuit of a legal remedy.”
Interestingly, however, the Court concluded that a settlement of a lesser amount was appropriate and later an order was made that Mrs North should be awarded £3,000 per annum from her ex-husband during their joint lives.
It is desirable whenever possible to get financial settlements right the first time. In this case, bearing in mind the long period between the couple’s divorce and the later claim, it is probably something of a surprise that the Court of Appeal allowed any claim on Mr North’s assets.
Partner Note
North v North [2007] EWCA Civ 760. See Family Law Week,
Finders, Keepers?
The recent and rather unsavoury news footage of people helping themselves to spilled cargo, following the beaching of the MV Napoli on the South Devon coast, has brought to the fore the question of whether beachcombers and others have the right to keep goods washed up on the shore as ‘the sea’s bounty’.
Strictly, any item washed ashore from a ship, whether wrecked or not, constitutes ‘wreck’ under the law. Such goods belong to whoever had title to them before they fell into the sea. Where the goods are washed up as the result of a shipwreck, they must be declared to the receiver of the wreck, by the person finding them, within 28 days. The receiver may subsequently pass them back to the finder (if the owner cannot be found). Otherwise, a payment for the salvage of the goods may be payable by the receiver to the finder.
Failure to report items of wreck found is a criminal offence and the retention of goods ‘unofficially salvaged’ could lead to a prosecution for theft.
The position relating to buried treasure is completely different. If something has been found buried, is made substantially of gold or silver and its owners or their heirs are unknown, it will be classed as ‘treasure’. In some instances, the pre-1996 requirement that such items had to have been buried with the intention that they would be recovered still remains. Discoveries of treasure must be reported to the local coroner and it is a criminal offence not to report them. It is also necessary to report any finds to the landowner. The coroner will decide on the fate of the treasure and the finder is entitled to a finder’s fee if the find is ruled to be treasure. In such cases, ownership passes to the Crown.
Partner Note
See Solicitors Journal, 3 August 2007, pp1018-9.
Guidance for Charity Trustees
The regime governing charities has been progressively tightened up over the years, making the sort of scandals that were once not uncommon much more of a rarity. This means that trustees now have to adopt a more professional attitude to the management of a charity’s affairs than was necessary in the past.
The Charity Commission has published guidance for the trustees of charities. This states that they must:
·        have and accept ultimate responsibility for directing the affairs of the charity and ensure that it is, and remains, solvent and well-run and that it delivers the charitable outcomes for which it has been set up;
·        ensure that the charity complies with charity law and with the requirements of the Charity Commission as regulator – in particular to ensure that the charity prepares reports on what it has achieved and annual returns and accounts as required by law;
·        ensure that the charity does not breach any of the requirements or rules set out in its governing document and that it remains true to the charitable purpose and objects set out therein;
·        comply with the requirements of other legislation and other regulators (if any) which govern the activities of the charity;
·        act with integrity and avoid any personal conflicts of interest or misuse of charity funds or assets;
·        use charitable funds and assets reasonably and only in furtherance of the charity’s objects;
·        avoid undertaking activities that might place the charity’s endowment, funds, assets or reputation at undue risk;
·        take special care when investing the funds of the charity, or when borrowing funds for the charity to use;
·        use reasonable care and skill in their work as trustees, using their individual skills and experience as needed to ensure that the charity is well-run and efficient; and
·        consider getting external professional advice on all matters where there may be material risk to the charity, or where the trustees may be in breach of their duties.
If you require advice on any aspect of being a trustee of a charity or any other entity, <<CONTACT DETAILS>> can advise you.
For more information, see
HIPs – Scope Extended
When Home Information Packs (HIPs) were introduced, on 1 August 2007, the rule was that a HIP had to be supplied when a property with four or more bedrooms was put on the market. Unsurprisingly, this led to a proliferation of ‘three bedroom’ properties being offered for sale which had an additional office, walk-in dressing room or similar.

The Government reacted quickly to this trend. On 17 August, it announced that HIPs and Energy Performance Certificates (EPCs) would be compulsory for all properties with three or more bedrooms put on the market after 9 September 2007.

Currently, the Government claims that a HIP costs in the region of £250-400 and takes about five days to create. It also asserts that putting into effect the measures recommended in the EPC could save the average consumer £300 a year on their fuel bills. ‘Green grants’ of £100 to £300 for energy saving improvements like loft insulation are available for many homeowners.

It remains to be seen whether the result of this latest move is a glut of ‘two bedroom, two office’ properties. We can, however, expect to see more three bedroom houses marketed as being ‘two bedroom plus home office’.

HCRs and EPCs are being held on a public register accessible via the Internet. This will allow potential buyers to confirm that the HIP or EPC is authentic and to verify its contents.
We can help you make sure your property purchase or sale runs as smoothly as possible from beginning to end.
House Sale Unfair if End Result the Same
An unusual divorce case has recently been heard by the Court of Appeal. It involved a divorced couple who were arguing about what should happen to their former matrimonial home. The court had ordered that it should be sold, on the basis that once it had been remortgaged to release the husband’s share, his ex-wife would not be able to afford the mortgage repayments. The court ordered that when the property was sold, the net proceeds, after discharging the mortgage, should be paid to the wife. In addition, she was to receive a payment of £100 per month until the property was sold and £300 per month thereafter.
The ex-wife wished to have the property transferred into her name, so appealed the decision. She claimed that she had received a mortgage offer with repayments of an amount she could afford and that selling the house and moving would prove disruptive for the couple’s children. She accepted that if in future she were unable to afford the mortgage payments, she would not be able to return to the court to seek an increase in the periodical payments from her ex-husband.
The Court of Appeal allowed her appeal. It judged that if she were unable to meet the mortgage payments, that failure would not prejudice her ex-husband and the outcome in that instance (her having to sell the house and move) would be the same in any event. It was fair to give her the opportunity to remain in the home.
Partner Note
Khalil v Bishieri CA (Civ), 10 July 2007.
See Solicitors Journal, 27 July 2007, p 987.
Insurance Law Reform Consultation
Insurance law has always been governed by the principle of ‘utmost good faith’. It is quite common for insurance companies to use this principle to try to avoid paying out on claims when there are minor errors or failures to make full disclosure on insurance application forms. Therefore,the Law Commission and the Scottish Law Commission have published a joint consultation paper proposing changes to insurance contract law. The paper deals with misrepresentation, non-disclosure and breach of warranty by the insured. 
The proposed changes would have the effect that policyholders who make innocent errors of fact or non-disclosure on their proposal forms would not lose their cover, whilst retaining protection for the insurers where there is dishonesty or recklessness in completing an application. A five year cut-off period is also proposed after which statements on the application could no longer be relied upon as older statements are difficult to check.
The consultation paper asks for responses by 16 November 2007. A second consultation paper will be published in 2008. This will deal with post-contractual good faith, insurable interest and damages for late payment of claims.
When the results of the two consultations have been considered, it is intended that new laws to replace the existing legislation (the main part of which is now a century old) will be introduced.
The consultation paper can be found at
Massive Claim Leads to Insurance Disclosure Ruling
The High Court recently ruled that a claimant was entitled to know the extent of the insurance carried by the defendant in order to be satisfied that the defendant would be able to settle the claim should the award be substantial. The request to know was related to a claim for damages running into seven figures brought by a gymnast who had suffered severe spinal injuries. The claim was expected to be in the region of £8-10m and it was agreed that the defendant would be 75 per cent liable. All that remained to be negotiated was the value of the claim, but the costs of doing so were likely to be high.
The ruling was sought because the claimant had genuine concern that he might not recover the whole of the award after costs if the defendant’s insurance cover was inadequate. The costs incurred were already very substantial, as is common in cases involving claims of this size.
The defendant’s insurers argued against divulging the information on various grounds, including that it would place them at a disadvantage as regards their negotiating position and that the claimant was not a party to their contract of insurance with the defendant and thus was not entitled to know the terms of the policy.
The Court considered that the claimant’s concerns were genuine and, given that the further costs were likely to be significant, the defendant could not withhold the information sought.
“Although knowing what insurance cover a defendant carries would definitely be useful for claimants in such cases, this decision is unlikely to open a Pandora’s Box of similar claims,” says <<CONTACT DETAILS>>. “The damages claimed in this instance were unusually large and those with smaller claims, within more normal limits of the expected level of public liability insurance, are unlikely to get a similar result.”
Partner Note
Harcourt v FEF Griffin [2007] EWHC 1500 (QB).
Massive Claim Leads to Insurance Disclosure Ruling
The High Court recently ruled that a claimant was entitled to know the extent of the insurance carried by the defendant in order to be satisfied that the defendant would be able to settle the claim should the award be substantial. The request to know was related to a claim for damages running into seven figures brought by a gymnast who had suffered severe spinal injuries. The claim was expected to be in the region of £8-10m and it was agreed that the defendant would be 75 per cent liable. All that remained to be negotiated was the value of the claim, but the costs of doing so were likely to be high.
The ruling was sought because the claimant had genuine concern that he might not recover the whole of the award after costs if the defendant’s insurance cover was inadequate. The costs incurred were already very substantial, as is common in cases involving claims of this size.
The defendant’s insurers argued against divulging the information on various grounds, including that it would place them at a disadvantage as regards their negotiating position and that the claimant was not a party to their contract of insurance with the defendant and thus was not entitled to know the terms of the policy.
The Court considered that the claimant’s concerns were genuine and, given that the further costs were likely to be significant, the defendant could not withhold the information sought.
“Although knowing what insurance cover a defendant carries would definitely be useful for claimants in such cases, this decision is unlikely to open a Pandora’s Box of similar claims,” says <<CONTACT DETAILS>>. “The damages claimed in this instance were unusually large and those with smaller claims, within more normal limits of the expected level of public liability insurance, are unlikely to get a similar result.”
Partner Note
Harcourt v FEF Griffin [2007] EWHC 1500 (QB).
Matrimonial Home Not Safe When Ex-Husband Bankrupt
It is usual for a family’s biggest asset to be the family home and, in many cases, the value of the house dwarfs the value of the rest of the assets. In such cases, when a marriage breaks up the financial arrangements often allow one spouse to remain living in the house, with the other spouse entitled to a share of the proceeds when it is sold.
Recently, the Court of Appeal had to consider a case in which just such an arrangement had been made. After their divorce, Mr and Mrs Avis agreed a consent order under which Mrs Avis stayed in the house and owned two thirds of it. Her ex-husband’s entitlement was agreed as one third of the value of the house, which he could only have when it was sold.
Mr Avis was subsequently made bankrupt and some years later his trustee in bankruptcy sought an order for the sale of the house. Mrs Avis argued that the trustee took over the rights that Mr Avis had been granted under the consent order – i.e. the right to a third of the eventual sale proceeds of the house.
The Court of Appeal could not accept Mrs Avis’s argument and ruled that the trustee in bankruptcy could apply for an order to sell. Mrs Avis’s right to resist a sale was qualified by the right of the other person interested in the property – in this case the trustee, who had acceded to her ex-husband’s rights.
Partner Note
Vivienne Joan Avis v Charles Hamilton Turner (Trustee in Bankruptcy of Charles Avis) and Charles Avis [2007] EWCA Civ 748, 19 July 2007.
Solicitors Journal, 27 July 2007 p986.
Mortgage Blues – Lender’s Duties
The news that home repossessions are rising is not welcome in any quarter. Many homeowners are facing difficulty making repayments on their mortgages and even more are facing a shock when their current fixed rate or discounted rate deals end, as tens of thousands are set to do in the next few months.
When a mortgage lender faces serious arrears, it will seek to protect its position and recover the amount owing. This will normally involve the repossession of the property. Once the property is repossessed, the lender will exercise its power of sale. It acquires the power of sale if the legal date for the redemption of the mortgage has passed. It can exercise the power if:
·        a written notice has been sent to the borrower requiring payment of any monies due and three months have passed without the outstanding sum being paid in full;
·        there are more than two months’ arrears; or
·        the borrower has breached another term of the mortgage – for example, breaking a covenant not to sublet or run a business from the premises.
If the lender obtains an order for repossession of the property, it will then seek to sell it with vacant possession. When this course of action is taken, it becomes responsible for the maintenance of the property from the date on which repossession is granted. The lender owes the borrower a duty of care and is accountable to them for its conduct in dealing with the sale, but that duty does not extend to obtaining the best possible price on sale – it must obtain the ‘true market value’ or ‘proper price’. In general, as long as the lender obtains a valuation of the property and exercises reasonable judgment, and does a reasonable job in marketing the property, it will have done its duty. 
If you are behind with your mortgage payments, it is essential to take professional advice. There may be ways in which you could deal with mortgage arrears or debts which would allow you to continue to live in your home. It is important to act as soon as you are aware of the problem. The longer such matters are left, the more difficult it can be to resolve them satisfactorily.
If you are having problems managing your personal finances, contact <<CONTACT DETAILS>>
Non-Compliance with Court Rulings Means Child Custody Lost 
Child custody decisions (called residence orders in legal terminology) are one of the most difficult of all areas in family law. Often, there is a great deal of acrimony between the couple who have split up. This makes the decisions regarding which parent the children will live with and what the terms of access will be for the other parent both difficult to make and difficult to make work.
The courts frequently become involved subsequent to such decisions, when allegations are made that a parent is not complying with the order of the court regarding access to the children by the other parent. In such circumstances, the approach taken by the court to the offending parent can be robust, as a recent case illustrates.
When the couple concerned separated, their son continued to live with his mother but maintained contact with his father. The mother, however, repeatedly attempted to interfere both with the child’s contact sessions with his father and with conversations between them, on one occasion becoming violent.
The mother’s behaviour resulted in several court hearings and she was warned that her behaviour could lead to the son being placed in the care of his father. Eventually, the father applied for a residence order, which was granted after evidence was heard from a psychologist and a social worker, who supported the father’s application. It was alleged that the mother suffered from a serious personality disorder and that despite the child’s desire to remain with her, continued residence with his mother could have an adverse effect on him.
The mother appealed, arguing that the judge had given insufficient weight to the difficulties such a change might create for the child and to the fact that he wished to remain with her.
The Court of Appeal found that the judge was entitled to reach the decision he did, based on the evidence presented, and that it could not be claimed that he had given insufficient weight to specific factors – the weight to be given to the evidence was a matter for the judge to decide.
In a similar case in which a mother had failed to comply with orders of the court regarding contact, the court ordered that the child should in future live with the father. The Court of Appeal again supported the decision of the judge in the family court, ruling that his decision had properly balanced long-term benefit to the child against the short-term disruption of the change.
These cases show clearly the dangers inherent in failing to comply with the decisions of the court in such matters, says <<CONTACT DETAILS>>.
Partner Note
Re A (a child) CA Civ 15 June 2007. Reported in the Solicitors Journal, 22 June 2007, p807.
Re C (a child) CA Civ 3 July 2007. Reported in the Solicitors Journal, 13 July 2007, p 925.
Non-Molestation Breach Now a Crime
Since 1 July 2007, it has been a criminal offence to breach a non-molestation order, with a maximum penalty of up to five years’ imprisonment. Unusually, however, the victim of such breaches has the choice when taking action of opting not to take criminal proceedings. In that case, an application can be made for a warrant for arrest for the breach of the non-molestation order to be dealt with by the civil court as opposed to the criminal court. Where this is done, the maximum punishment which can be passed for the breach is two months’ imprisonment (if the case is dealt with in a magistrates court) or two years’ imprisonment (where the case is dealt with in the county court).
Where a non-molestation order made before 1 July 2007 is breached, the matter will be dealt with by the family court which made the order initially.
In practice, the new system means that there will be no tolerance whatsoever of domestic violence. However, the criminalisation of such behaviour is regarded by some as being an inappropriate way to deal with the problem. There are also fears that it may deter some sufferers of domestic violence from bringing an action. One of the main issues in such cases is often the evidence for the abuse and it is intended that legal aid will only be given to defend such charges when the allegations are very serious. The defence against claims of abuse is often that the allegations are false and it is feared that miscarriages of justice may result – a particular issue where a criminal record is the outcome of a successful action.
Domestic violence is a serious issue. If you need advice on this or any other family law matter, please contact <<CONTACT DETAILS>>.
Partner Note
Domestic Violence, Crime and Victims Act 2004 (amending Part IV of the Family Law Act 1996).
Paternity Disclosure is Court’s Decision
A recent Court of Appeal case dealt with the delicate question of whether or not the court had the right to inform children of the truth regarding their paternity. The case arose because DNA test results showed that the natural father of twins was not the man their mother lived with. She had lived with her current partner for several years and had another child of which he was the father. As far as the twins were aware, their mother’s partner was their father.
The natural father of the twins applied for a declaration of paternity and a contact order so that he could see them. Their mother opposed this and contended that the decision as to whether the children should be told the truth about their paternity should be a matter for the parents to decide. As the twins are now eight years old, she felt that it would be disruptive for them to be told the truth.
When the lower court ruled that the declaration of paternity and a contact order should be made, the mother appealed on the basis that the decision to inform the children was not within the jurisdiction of the court. The Court of Appeal dismissed the appeal.
The practical implications are that in similar circumstances, obtaining proof of paternity through DNA testing may well lead to this type of outcome. There may be some cases where it might well be preferable for the proof of paternity not to be obtained. Regardless of the financial arrangements made, once the true paternity is indisputable, the absent father may decide to try to become involved with his children.
If you need advice on any family law matter, contact <<CONTACT DETAILS>>.
Partner Note
Re F (Children) CA (Civ) 25 July 2007 – reported in Solicitors Journal, 3 August 2007 p 1022.
Post-Nuptial Agreements – the Basics
More than 40 per cent of marriages end in divorce (in England and Wales some 132,562 couples divorced in 2006) and when one in five of all men and women seeking to end their marriage have already been through one divorce, it is perhaps not surprising that more and more people are seeking to safeguard their individual positions by entering into a pre-nuptial agreement prior to marriage or securing protection by drawing up a post-nuptial agreement at a later time.
For couples who are already married, particularly those with children, drawing up a post-nuptial agreement, which is agreed upon by both as being a fair statement of their wishes, can prevent a lot of potentially harmful stress in the event that the relationship turns sour.
To be binding a post-nuptial agreement must be seen to be fair. When considering whether to enforce a post-nuptial agreement, the court has regard to:
·        the conduct of the parties leading up to the agreement;
·        the circumstances surrounding the making of the agreement;
·        whether there was undue pressure by one side or exploitation of a dominant position to secure an unreasonable advantage; and
·        the interdependence and mutual influence that existed between the parties.
Says <<CONTACT DETAILS>>, “It is clear that a post-nuptial agreement can help couples avoid a bitter battle in the event of a divorce and lead to fairer settlements, provided the agreement is given careful thought and made with the benefit of independent legal advice on both sides.”
Partner Note
In one case where a post-nuptial agreement was unsuccessful, Mrs Justice Baron in her judgment gave helpful general advice to practitioners dealing with such agreements, stating:
·        cases must be managed effectively and summonses must be issued in good time to allow the court to provide direction;
·        serious allegations must be backed up by powerful evidence;
·        when the validity of an agreement is challenged, the solicitors involved in its preparation and signing should stand aside in favour of new advisors; and
·        there must be more cooperation between counsel outside court to avoid delay.
The divorce statistics can be found at
Private Care Homes and the Human Rights Act
‘A sickening blow’ is how campaigners have described a landmark decision of the House of Lords on the rights of an 84-year-old care home resident with Alzheimer’s disease. It was a bitterly-fought case, which divided the five Law Lords 3-2 in their judgment that an elderly woman who was threatened with eviction from her privately-run care home did not enjoy the protection of the Human Rights Act (HRA), unlike residents of local authority-run care homes.
The woman had been placed in a private care home by her local council. The council threatened her with eviction from the home, because of an alleged ‘irreconcilable breakdown’ in relations between her family and the home’s management. She argued that the eviction was a violation of her right to family life, which is guaranteed under the HRA. The Law Lords ruled, however, that a private home is not exercising a public function when it cares for people referred to it by a council, and is therefore not bound by the Act.
Many vulnerable older people live and are cared for in homes operated by the private or voluntary sectors. Nine out of ten care homes in England and Wales are now privately run. The Law Lords’ ruling means that these residents cannot bring an action under the HRA if they are deprived of their human rights. The right of residents of care homes run by local authorities to bring actions under the HRA is clearly established.
Campaigners, including Help the Aged, agree that their Lordships have thrown down a challenge to the Government to rectify the anomaly through legislation to ensure that care home residents living in establishments in both the private and voluntary sectors enjoy the same level of protection under the HRA.
The civil rights group Liberty has also condemned the ruling, calling for urgent legislation to prevent local authorities from ‘contracting out of dignity for Britain's elderly’.
The Government is said to be considering legislation to rectify the anomaly whereby protection under the HRA is dependent on the ownership status of the care home in which a person lives.
Partner Note
YL v Birmingham City Council and others [2007] UKHL 27. See
Proceeds of Crime Targeted
Over the last few years, the approach of the authorities towards acquisitive crime has increasingly moved from focusing on obtaining long sentences for serious criminals to ensuring that they are deprived of the wealth they have acquired through crime.
The operation of the Proceeds of Crime Act is such that where criminal property is confiscated, it can be used to compensate victims of crime (where these can be identified) and ploughed back into funding the various law enforcement agencies.
For property to be identified as the proceeds of crime, the burden of proof is the civil one of ‘on the balance of probabilities’, rather than the criminal one of ‘beyond a reasonable doubt’. In practice this means that the confiscation of assets acquired through criminal activity is relatively easy.
Recently, Leicestershire Police confiscated criminal assets of nearly £3m, including £1m in cash, following the convictions of sixteen people for offences ranging from theft and benefit fraud to car clocking.
Says <<CONTACT DETAILS>>, “The new approach is being aided by the formation of the Serious Organised Crime Agency (SOCA), which now coordinates the activities of the police and other government agencies (such as the Customs investigators dealing with the importation of illegal drugs) that deal with serious organised crime.”
Protection from Unfair Selling Practices
Further protection for consumers from unfair selling practices is due to be introduced next April. This should help to reduce the litany of complaints of sharp practice that abound in some areas of trade.
The Unfair Commercial Practices Directive, when enacted in UK law, will prohibit various unsavoury practices. These include high-pressure selling, unfair or misleading advertising and so on. It applies only to business dealings with consumers, not dealings with other businesses, and the unfair practices it prohibits include acts of omission as well as acts of commission. It bans acts which may ‘materially distort’ the behaviour of the average consumer or consumers in relation to a product or products.
The definition of an ‘average consumer’ leaves much scope for future argument, as does the concept of what might materially distort one’s behaviour. However, a series of practices are specifically prohibited, including the following:
·        running a promotion or prize draw in which no prizes are awarded;
·        advertising aimed at children which attempts to get them to persuade their parents or other adults to buy something;
·        refusing to leave someone’s house when asked (a common ‘high-pressure’ sales technique);
·        persistently soliciting for business by fax, telephone, email etc.; or
·        falsely stating that the product will be available only for a limited period of time.
If you have bought something after being pressured to do so or the product has not met the claims made for it, you may be protected by consumer law. Take advice quickly. In some cases, the right to cancel an agreement (for example timeshare and insurance purchases) is only available for a limited period of time.
Partner Note
For further information on the Unfair Selling Practices Directive, see .
Right to Remain Silent Not Absolute
It is not uncommon for the police to have difficulty identifying the actual driver of a vehicle caught on camera exceeding the legal speed limit.
A brave, if somewhat misguided, attempt by two motorists, both of whom were caught breaking the speed limit, to contest the need to give evidence to the police so that a prosecution could be brought, failed recently.
Gerard O’Halloran’s car was filmed travelling at 69 mph in a 40 mph limit and Idris Francis’ car was caught doing 47 mph in a 30 mph limit. Both were convicted of speeding.
Both appealed against their convictions on the basis that the requirement that a person suspected ofa crime provides information which might contribute to a conviction was a breach of their human rights under Article 6 of the European Convention on Human Rights – the right to a fair trial.
The right to a fair trial is unqualified, but what was debatable was whether the provision of the information sought would compromise a fair trial.
In UK law there is a duty under the Road Traffic Offenders Act which requires the registered keeper of a vehicle to give information about the driver of the vehicle in certain circumstances. The fact that this is a requirement should be known by drivers and the penalties for failure to provide the information are not custodial – neither is an offence committed if the registered keeper is genuinely unable to give the information sought. Accordingly, the requirement is not an infringement of the right not to incriminate oneself.
The right to silence is not absolute. When it is exercised lawfully in a criminal trial, the invoking of the right to silence is disclosed to the jury.
New speed cameras are gradually being introduced which will photograph the driver in sufficient detail to make identification possible in most instances. However, under changes in the law which came into force on 24 September 2007, harsher penalties will be handed out to motorists who fail to disclose who was driving when a speeding offence was committed. The courts can now impose six penalty points on a driver’s licence, rather than a maximum of three points.
Partner Note
O’Halloran and Francis v UK, App numbers 15809/02 and 25624/02 [2007] All ER (D) 07 (Jul).

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