Animals and Divorce – New Ruling May Set Cat Among the Pigeons
Financial settlements on divorce normally involve making financial provision for any children but, in a recent case, the ex-wife of a wealthy man successfully argued that her love of horses was sufficiently important to her that substantial maintenance should be payable for their upkeep.
The unnamed couple from Gloucestershire were childless and divorced after 11 years of marriage. The court heard that the wife had lost a baby in 2001 and regarded her three horses as substitute children. Her husband had bought her a foal as a tenth wedding anniversary present in 2004, when she already had two horses that she had purchased with her own money.
When the marriage broke up, the wife claimed that she required financial assistance in order to be able to keep and maintain her horses and for eventing. She argued that her husband’s past actions showed his awareness and understanding of the depth of her passion for horses.
The husband claimed that keeping three horses was an unnecessary extravagance and that his wife’s needs could be met by having a house worth £600,000 and one horse that was put out to livery.
In the Court of Appeal, Britain’s most senior family judge, Sir Mark Potter, stated that “during the marriage the horses played a major part in the wife’s life with the consent and encouragement of the husband.” The Court upheld the award made by District Judge, Michael Segal, of maintenance of £80,000 a year, including £50,000 for the upkeep of the horses, plus £900,000 for a house with grazing land suitable for the animals.
Emotional ties to animals can be very strong. It remains to be seen how influential this decision will be on other cases involving animals.
Partner Note
Widely reported. e.g. the Times, 22 September 2008. See http://business.timesonline.co.uk/tol/business/law/article4799038.ece.
Assisted Suicide – The Debate Continues
It is a hotly debated topic, yet there is still no certainty as to whether those who assist someone who wishes to end their own life, by helping them travel abroad to a country where assisted suicide is legal, will be prosecuted. The issue has become more prominent since Debbie Purdy, who has suffered from multiple sclerosis for 13 years, sought clarification from the Director of Public Prosecutions (DPP) on whether her husband would face prosecution under the Suicide Act 1961 if he travelled with her to a country where assisted suicide is legal.
The uncertainty stems from the fact that the DPP has complete discretion when deciding whether someone will be prosecuted or not. A new DPP could take a different stance, which adds to the uncertainty.
The DPP refrained from giving specific guidance in Ms Purdy’s case. In court, Lord Justice Scott Baker stated that by so doing the DPP was not acting unlawfully and did not breach Ms Purdy’s right to private life under Article 8 of the European Convention on Human Rights (ECHR). The judge’s reasoning was based on the fact that only Parliament can change the law relating to assisted suicide and as the law stands now it is drafted to cover a wide variety of circumstances.
The most decisive ruling to date is that relating to Dianne Pretty in 2001. She also suffered from a terminal illness and wished to end her own life. When her case came to court, the decision was that Article 8 ECHR was not engaged in assisted suicide cases. Ms Purdy’s lawyers claimed that times had changed dramatically since then and that the Pretty judgment was out of line with recent thinking. Ms Purdy’s solicitor argued that subsequent to the Pretty case, the European Court of Human Rights has in other similar cases concluded that Article 8 in essence is about the right to ‘self determination, the right to make decisions about personal autonomy, physical integrity and the quality of life’.
In 2006, Lord Joffe attempted to introduce the Assisted Dying for the Terminally Ill Bill, but this was blocked by the House of Lords. However, he intends to introduce a new Bill into Parliament to reflect the changes of opinion in society. The new Bill will only extend to terminally ill adults and will not apply in cases like that of the tetraplegic rugby player who ended his life in Switzerland recently. In this case, the actions of the man’s parents were investigated by the police but the DPP’s view was that although there was sufficient evidence for, and public interest factors in favour of, prosecution – not the least of which was the seriousness of the offence – these were outweighed by public interest factors against prosecution.
Because of Ms Purdy’s illness, her solicitor had hoped to get an appeal fast-tracked to the House of Lords, but permission was denied and so the case will now be referred to the Court of Appeal. Whichever way the decision goes, the case will almost certainly end up in the Lords if Ms Purdy lives long enough to see the matter concluded.
Says <<CONTACT DETAILS>>, “Clarity on the law in these tragic cases will be welcomed and we await the final decision with interest.”
Partner Note
R (on the application of Purdy) v DPP [2008] EWHC 2565.
Court Costs – Loser Doesn’t Always Pay
It is normally the case that the loser pays his own legal fees and those of the winner when a case is decided in court. Sometimes, however, the court may conclude that it is fair for costs to be shared. Even more infrequently, a costs order can be made against someone who is not even a party to the proceedings. This can occur when the proceedings are carried out on behalf of someone else.
A recent case illustrates one way this can arise. The receiver of a company carried out litigation on behalf of the company, which was insolvent. The aim of the litigation was to secure a larger payout for the secured creditors of the company. The receiver lost. The company which was the named party in the action, being insolvent, was unable to pay the costs. In such cases, the court will normally award costs against the receiver or the secured creditors who would have been the ultimate beneficiaries had the court’s decision gone the company’s way. In this instance, the court awarded costs against the receiver.
Another circumstance in which costs may not follow the decision is where a claimant exaggerates a claim, but subsequently wins a much lower level of damages. In such cases, especially if the winner was uncooperative or guilty of improper conduct in the course of the litigation (for example, refusing mediation or offers of settlement) the court may award a proportion of costs to the loser.
Clients who are concerned that if they win their case the other party in litigation may not be able to pay their costs can apply to the court to require the other side to deposit a security for costs.
We can advise you on the best course of action in any legal dispute.
Partner Note
See for example Dolphin Quays Development Ltd. v Mills [2008] EWCA Civ 385 and Business Environment Bow Lane Ltd. v Deanwater Estates Ltd. [2008] EWHC 2003 (TCC).
Court Must Have Information on Other Proceedings
In a recent reserved judgment in a case disputing a residency order, Mr Justice Munby ruled that a practitioner acting for a parent involved in a family law case must also be familiar with and up to date with the progress of any other relevant ongoing cases involving their client. For example, if a parent is also involved in a criminal, immigration or housing case, the outcome of which could affect their ability to satisfy their requirements under a given residency order, the practitioner representing them is under a duty to find out what stage the other proceedings have reached.
Two recent family law cases were both subject to delay because the practitioners who represented each of the parents were not aware of the current positions in the parallel immigration proceedings. In both instances, the failure to acquire the necessary additional knowledge had a detrimental effect on the conduct of the case, causing problems for both the court and other litigants who were ready to plead their case.
Leave was given to report the part of the judgment that related to the procedure to be followed in such cases. In the reported judgment, Mr Justice Munby stated that the court had to consider the other relevant cases and have up to date information on them in order to be able to reach a proper decision on the matter before it.
If you are seeking a residency order for your child and have a simultaneous court case, <<CONTACT DETAILS>> can advise you on how this could affect you. We can also assist you with the documentation you will need to make an application for a residency order.
Partner Note
Times Law Report, 26 November 2008.
Re:M (a Child) (Family Proceedings: Immigration) and re N (a Child) (Family Proceedings: Immigration).
Covenant Rights Need Not Continue
A bungalow owner who wished to replace a flat roof with a pitched roof found himself in court recently when his neighbour sought to rely on a fifty-year-old covenant ‘not to make any addition or enlargement or alteration’ to the bungalow without the consent of the vendor. The covenant stipulated that such consent would not be unreasonably withheld. The sale documents also contained a covenant prohibiting the building of anything other than a single bungalow on the property.
In this case, however, the vendor concerned was the original owner of the bungalow and the adjacent property. The adjacent property had been sold to a new owner years previously and the covenant was not stated to extend to successors in title.
The question before the court, therefore, was whether the new owner of the adjacent property could enforce the covenant. He argued that the commercial reality of the covenant was such that the benefit of it must be intended to pass to successors in title. The bungalow owner argued that the covenant had been restricted to the original vendor (who had died in 1977) and thus was not enforceable by the new owner.
Looking at the documents of sale, the court found that these were tightly drafted and there were other references to successors in title where appropriate. The court was not inclined to re-write the contract. The original vendor had created the covenant to protect her own position only. On her death, the covenant ceased to have any effect – otherwise, any future alterations to the bungalow would be rendered impossible because permission could not be given. The court described such a possibility as ‘astounding’.
A covenant relating to land is normally written to include successors in title. However, in this case, the covenant was written in terms which clearly distinguished between the vendor and the successors in title to the vendor’s land. Accordingly, the distinction between the rights of the vendor and the vendor’s successors in title was clear.
Says <<CONTACT DETAILS>>, “This case shows that when they are properly drafted, covenants may be able to be used more flexibly than you might think.”
Contact us for advice on all property and planning problems.
Partner Note
Margerison v Bates [2008] EWHC 1211 (Ch).
Credit Crunch – Tips for Clients
Although this is not strictly ‘legal material’ we thought clients might welcome some tips on managing their household finances during these straitened times.
Cutting Fuel Costs
Despite the recent falls in prices, the cost of fuel is still considerably higher than it was just a couple of years ago. Shopping around between different providers may well produce decent savings, as may agreeing a ‘bundled’ deal to obtain your energy supplies from a single source. There are a number of comparison websites on the Internet which may help you make a decision.
Of course, one way to reduce your energy costs is a simple, old-fashioned reduction in use. For example, if you have fireplaces which are open but never used, a chimney balloon may significantly reduce your energy consumption by reducing the draft through the chimney. A one or two degree reduction in the thermostat settings of your central heating and a five to ten degree reduction in the temperature of your hot water will produce immediate savings, as will taking simple steps such as turning off lights in rooms which are not occupied, turning timed water and heating on a little later and off a little earlier (although in some properties it might be almost as cheap to keep the heating on), not leaving windows and doors (external and internal) open unnecessarily and turning electronic devices off at night rather than leaving them on standby.
Investments that can offer fast returns in terms of reduced energy bills include using ‘low consumption’ light bulbs, installing loft insulation and draft proofing. The economic benefit of more sophisticated changes, such as switching to a condenser boiler, installing cavity wall insulation, solar panels and the like, are more difficult to calculate and should be considered carefully before purchase.
Living Within Your Budget
Make a budget, based on the costs you can’t avoid and those you can. Make sure that your ‘avoidable’ costs are known and that you control them. However, if you know you will need something in a year or so, it might make sense to consider buying it when prices are being slashed (as they are for many goods, especially expensive items), rather than waiting for the market (and prices) to rebound.
Shopping
It is claimed that a quarter of all food bought from UK supermarkets is thrown away. Look at your shopping habits and eliminate waste as far as possible. Make sure you are aware of ‘2 for 1’ and similar offers on goods you use frequently, but remember that a saving in the cost of goods may be lost in additional travel costs. Being aware of prices offered by different retailers for the items you want to buy is recommended – but avoid impulse buying. Buying on the Internet may be a good idea, especially if your normal ‘weekly shop’ involves driving and if you tend to buy on impulse. Planning meals in advance and buying only what is needed for them is a very effective way to reduce waste.
Making Your Money Work for You
With interest rates falling, financial institutions have been cutting the rates they pay to savers. Check the rates your savings are earning – you may be surprised by how quickly the attractive interest rates used to tempt new investors are reduced.
Similarly, look at the costs of financial products you buy – insurances, your mortgage etc. There may well be savings to be made.
Benefits
Nearly one fifth of all state benefits are not claimed, especially those made available for families and the elderly. Make sure you claim any benefits to which you are entitled. The www.benefitshelpline.com website may be helpful as a starting point.
Make Sure You Have a Will and an LPA!
You may think this is an odd suggestion, but having an up to date will may prevent your estate incurring unnecessary costs (and possibly avoidable tax liabilities) in the unfortunate event of your demise. Similarly, creating a Lasting Power of Attorney (LPA) will be hugely beneficial in the event that you are unable to administer your own affairs and need someone else to look after them for you.
More importantly, however, having the right documentation in place speeds up administration, which can be very important. Most wills and LPAs are relatively straightforward to prepare. Contact <<CONTACT DETAILS>> for advice.
Disclosure of Information in Family Cases
In a recent case, a local authority claimed that it was proper for documents relating to a father’s possible sexual misconduct to be disclosed to experts who had been instructed in the course of care proceedings. The council’s argument was that whether the allegations were false or not, they represented significant events in the history of the family’s life and should therefore be considered. The parents of the child who was the subject of the proceedings opposed the release of the documents, claiming that the records contained allegations which had never been subject to criminal or family proceedings, were never proved and had not resulted in any charges.
The leading authority on the disclosure of documents in children’s cases is the Court of Appeal decision Re R (Care: Disclosure: Nature of Proceedings). The conclusions drawn in that case were that in general the disclosure of documents is inappropriate in such cases, but the Court retains the power to order ‘specific discovery’ (i.e. disclosure of specified documents). Unless the documents to be included are of real importance and relevance, they are not to be disclosed. The onus is on the party wanting to include records to prove that they are a necessary factor in their case.
Applying these principles, the parents’ appeal was allowed. The Court held that to allow the inclusion of the records would not be in the interests of the child. Also, the local authority could not introduce material regarding allegations that it had not pursued or proved at an earlier stage. If the material had already been deemed irrelevant to the judge’s task, it could not justifiably be regarded as needing to be examined by the experts.
In the Court’s view, it could harm relations between the local authority and the parents were the local authority to include and send to the experts any information that would ultimately be seen as unjust and prejudicial.
If you require legal advice on any family law matter, <<CONTACT DETAILS>> can assist you.
Partner Note
Re: S (Expert Evidence) [2008] EWCA Civ 365.
Extension Blues
Household extensions are a frequent source of dispute, although in most cases the dispute is between the property owner and the builder. It is not often that one sees problems arising because there is an issue with the building itself, rather than the extension.
In a recent case, however, a householder went to see an architect because he wished to add an extension to a property he had owned for three years. The architect noticed that the house itself differed considerably from the plans that had been approved by the local council at the time it was built. That was bad enough, but things got worse. The pre-commencement conditions for the building could not be shown to have been discharged, which meant that the house itself was in breach of planning regulations.
No plans had been provided when the man had subsequently purchased the house and the planning consent granted was not clear. Unsurprisingly, he claimed damages from the conveyancer who acted for him on the purchase of the property.
The moral is that when undertaking a property transaction, make sure you use a reputable firm, which is covered by insurance and has proper complaints and disciplinary procedures. All solicitors are obliged to meet these criteria.
Partner Note
Unreported – see the Solicitors Journal, 7 October 2008, p10.
Fairness Means Couple Receive House
It is common for families to dispute agreements made relating to property. In a recent case, a father, his two sons and the wife of one of the sons became embroiled in a complex dispute over the ownership of a family property in Wimbledon.
The property had originally belonged to the father and his wife. When the wife died, the father moved to Alderney in the Channel Islands. For Inheritance Tax purposes he purported to transfer the property to his two sons as tenants in common with equal shares, ‘in consideration of my natural love and affection for my sons’. This was the apparent position in 1986. However, the married son and his wife claimed that in 2000 his father had agreed with them that the property would become theirs if they renovated it and maintained it at their expense.
The couple claimed that, relying on this promise, they invested a great deal of time, effort and money into the renovation and upkeep of the property.
Recently, the father and his other son went to court, claiming that no such agreement had been made. The couple had merely been granted permission to live in the property if they maintained it. It was their contention that any money spent by the couple on the house was not in reliance on any representations, agreements or warranties from either of them. The father claimed that the property still belonged to him.
The married son and his wife claimed that the father was either being unduly influenced by his other son or was of insufficient mental capacity to make his own decisions.
Miss Justice Black, following the ruling in Stack v Dowden and the legal doctrine of proprietary estoppel, decided that it would be unjust for the married couple not to receive the property after they had acted to their detriment as a result of relying on the promises made to them.
This was a multifaceted case and the judge concluded that before other aspects of it could be decided, it first had to be determined who was the rightful owner of the family property in Wimbledon. In doing so, Justice Black had to examine the original intentions of those involved. Her decision was that, taking all the relevant circumstances together, equity could only be satisfied if the ownership of the property were to vest in the married son and his wife.
Making informal arrangements, particularly where family property is concerned, can be fraught with problems. It is important that any agreements you make are properly documented and implemented correctly in order to avoid disputes. <<CONTACT DETAILS>> can advise you on the best way to deal with family arrangements of all kinds.
Partner Note
RFQ v MJQ and FBQ [2008] EWHC 1874 Fam.
Forced Marriage – The Current Position
The Forced Marriage (Civil Protection) Act came into force on 25 November 2008, with specialist courts being created to deal with the cases arising.
The key concept is that a forced marriage is one in which one of the parties is forced into the marriage without their full and free consent.
The Act gives the courts the right to prevent a forced marriage occurring and to stop attempts by a person to coerce another person into a marriage.
Where the marriage has already taken place, the court is able to make an order to protect the victim if necessary. The Act does not allow the court to annul the marriage, nor does it make forced marriage a criminal offence.
The court can make a Forced Marriage Protection Order (FMPO) and has several powers, such as requiring the surrender of a person’s passport or that they reveal the location of missing persons. A power of arrest is available when an actual threat of physical violence has been made. Failure to comply with a FMPO constitutes contempt of court, an offence which can lead to imprisonment. A FMPO can be applied for by anyone who believes they are at risk of being forced to marry or, with the leave of the court, by an interested third party. In addition a ‘Relevant Third Party’ (RTP) can apply. A RTP is a person appointed by the Lord Chancellor who acts in a way similar to the official solicitor and who is empowered to make an application on behalf of the victim. As yet, exactly how the role of the RTP will work in practice is unclear.
The Government has announced its intention to abolish forced marriage and if the new legislation fails to prove effective, there is little doubt that the law will be amended.
Contact <<CONTACT DETAILS>> for advice on all family law matters.
Partner Note
For further information on FMPOs, see http://www.hmcourts-service.gov.uk/cms/14490.htm.
Forced Marriages
A forced marriage is defined by the Forced Marriage (Civil Protection) Act 2007 as marriage without the full and free consent of both parties. The Act, which came into force on 25 November 2008, creates specialist courts designed to prevent forced marriages occurring and to protect those individuals who have been forced into marriage without their consent. These courts are, however, restricted in terms of providing remedies once the marriage has taken place as they do not have the power to annul marriages and forcing an individual to marry against their will has not been made a criminal offence.
The courts can prevent forced marriages from taking place through the use of Forced Marriage Protection Orders (FMPOs) and, where there has been a true threat of physical violence, a power of arrest can be attached to an order. Conditions attached to orders can direct people to stop intimidation and prevent them from taking people abroad. They can also impose a duty to give the details of the whereabouts of a missing person and to surrender passports. A person in contempt of an order may face up to two years’ imprisonment.
A FMPO can be applied for by anyone who believes they are at risk of being forced to marry. Relatives, professionals and interested parties, however, can only apply for an order on behalf of the victim with the permission of the court.
In addition, Relevant Third Parties (RTPs), such as local authorities (once sufficiently ready to undergo the role), will be entitled to apply for an order without the court’s permission. Independent domestic violence advisers attached to the criminal courts may also be able to act as RTPs, depending on the outcome of a pilot study due to be carried out by the Ministry Of Justice.
Unusually, solicitors acting for a minor can apply directly to the court without the minor needing to have an adult ‘litigation friend’ to represent them.
It is hoped that the introduction of the Act will make it easier for potential victims of arranged marriages to come forward in the knowledge that there are systems in place to help them. It is also hoped that the legislation will make it clear to perpetrators that forced marriage is an identifiable civil wrong, bringing with it legal consequences. Advisors to the Government believe that there has been an under-reporting of such cases to date. On the first day the Act was in force, two successful applications for orders were made, one of which involved a 23-year-old woman who was on the verge of being flown to Pakistan for a forced marriage.
If you or someone you know is being coerced into a marriage against their will, contact <<CONTACT DETAILS>> for advice.
Partner Note
The Forced Marriage (Civil Protection) Act 2007 can be found at
How to Manage Your Mortgage in a Recession
During an economic downturn, a mortgage can stretch a borrower to the limit. If you are having problems paying your mortgage then you should take action as a matter of priority. Do not assume that all will be well if you do nothing. Failing to make mortgage payments on time could lead to the loss of your home. In all cases it makes sense to seek legal advice at an early stage.
If you are facing difficulties with your mortgage or payment of loans secured on your home, the following advice may help.
Act Quickly
As soon as you even foresee problems with paying your mortgage, you should take advice and, normally, contact your lender. You can never do this too early but it is possible to leave it too late. UK mortgage lenders are regulated and are required to treat you fairly and to help you to prepare a plan which is practical in your circumstances. The following websites may be of assistance also:
• The National Debtline at http://www.nationaldebtline.co.uk/;
• The Consumer Credit Counselling Service at http://www.cccs.co.uk/; and
• The Citizens Advice Bureau (CAB) at http://www.citizensadvice.org.uk/.
If at all possible, be ready to present a plan by which arrears in the loan will be repaid and the account brought back within terms within a reasonable period.
Can the Lender Help?
Ask your lender if they have any special rescue schemes for customers in difficulty or if they are prepared to change your mortgage terms to make it more manageable. Your lender might consider adding your arrears to the debt or extending the term of the loan to reduce the payments. It might even reduce the interest rate in some cases.
Pay as much as you can and offer to make payments towards the arrears over a period of time. Keep them informed if it looks as though you won’t be able to keep your promises.
Can You Increase Your Income?
Once problems arise, whether through redundancy, illness or just an inability to pay the new rates which start at the end of the fixed rate period of your loan, do what you can to increase your income. Apply for any available benefits, seeking advice from the CAB if you can't work out your entitlement for yourself.
If you took out a Mortgage Payment Protection Policy when the loan started, make full use of the benefits available under it.
Economise
Over the last few years, many households have not seen the need to economise. Some careful thought may show several areas of ‘excess’ spending, especially where travel, telephone and entertainment services are concerned.
Can You Raise Other Capital?
Do you have something valuable or any investments you can realise? If so, take advice regarding the wisdom of using them to reduce your arrears. Car boot sales and online auction websites can also raise surprising amounts of money.
Should You Sell?
Finally, consider the practicality of selling your property. Will you really be better off elsewhere and will you raise enough to pay off the whole loan? If you have a shortfall because you are in negative equity, the lender can still pursue you for the balance owing.
Don’t Put it Off
What you should not do is ignore the problem and it is almost certainly not a good idea just to give your keys back to the lender. Remember, the lender cannot evict you without a court order. Judges are more lenient than lenders and will normally respect someone who makes every effort to keep up with their mortgage. The court can in many circumstances give you time to pay by reducing payments, extending the term of the loan and even reducing the interest rate. These are called ‘Time Orders’ and you should ask for one if you have to go to court.
If it comes to a court hearing, treat the paperwork and proceedings with respect and comply with all time limits.
We can offer advice and assistance if you fear you will be faced with proceedings against you related to indebtedness. Contact <<CONTACT DETAILS>> for further information.
Insurers Must Pay After Court Backs Mesothelioma Sufferers
Asbestos-related illnesses are among the most common industrial diseases in the UK. A decision of the High Court has brought relief to sufferers from mesothelioma and their families who had seen their expected compensation claims put on hold as the result of an earlier decision of the Court of Appeal.
The Court of Appeal decision, reached two years ago in a different legal context, was that liability for injury was triggered when a disease was diagnosed, not at the point of exposure to the disease-causing agent. Insurers representing companies facing mesothelioma claims used this argument to avoid making payments to sufferers from the disease, a deadly cancer affecting the lining of the lungs that results from exposure to asbestos. It can take up to 40 years for mesothelioma to manifest itself and the prognosis for sufferers is very poor. The insurers argued that since the symptoms appeared long after the time when the exposure to asbestos occurred, and at a time when the relevant insurance policies were no longer in force, they were not bound to pay compensation.
However, the High Court did not consider the earlier decision of the Court of Appeal applicable. This means that the position is restored whereby liability arises at the time when a worker was exposed to the asbestos. Mr Justice Burton said, “It is plain that there is, albeit unknown to the sufferer, an injury and a disease present in his or her body well before it makes itself manifest by his finding difficulty in breathing.”
The practical effect of the ruling is that a person who develops mesothelioma as a result of exposure to asbestos caused by the negligence of a former employer can claim against the historic insurers of the employer.
However, an appeal to the House of Lords is likely.
Partner Note
Reported in the Times, 22 November 2008. The full judgment is available at http://www.bailii.org/ew/cases/EWHC/QB/2008/2692.html.
Looked After Children
Children under 18 may be 'looked after' by local authorities under a number of legal arrangements.
A recent decision of the Court of Appeal considered the responsibility of the local authority towards a 17-year-old boy who had nowhere to live but who, it deemed, was merely in need of help in obtaining accommodation.
The boy became homeless after his relationship with his mother had deteriorated so that it was considered irreparable. He spent some months sleeping at friends’ houses and in cars before he approached the London Borough of Southwark Council for help, asking it to consider his needs under the Children Act 1989 (ChA). The Council provided him with bed and breakfast accommodation whilst his claim was being considered.
In a case such as this there are two remedies available under the ChA. If it is considered necessary to provide accommodation (under Section 20), then the child becomes a ‘looked after child’. If the child remains looked after for a substantial period of time, the local authority has additional responsibilities, for example under the Children (Leaving Care) Act 2000. These responsibilities can last up until the young person’s 21st birthday or beyond if he or she is in a programme of education or training which takes them past that age. If, however, the only service deemed necessary is to assist the child in finding accommodation (under Section 17 of the ChA), no further duties fall on the local authority.
Southwark Council concluded that as the boy did not have any additional vulnerabilities or needs and was a resourceful teenager, he was not in need of help under Section 20 of the ChA. In its view, his needs were primarily housing and education and the former could be met by the housing department. The boy sought a judicial review of the decision that he did not need accommodation provided but the judge concluded that that was a matter for the Council to determine. However, the Court of Appeal ordered a full hearing of the appeal.
However, the decision was reached by a 2-1 majority, with one judge giving a powerful dissenting judgment. In his view, in a case within section 20(1), the ChA regime has primacy over the Housing Act 1988 (HA) regime and it was therefore incorrect for the Council to conclude that where the housing department was obliged to provide accommodation under the HA, there was no need for it to provide, and therefore the child did not require, accommodation for the purposes of section 20(1) of the ChA. In the dissenting judge’s view, the test as to whether a child’s situation meets one of the three conditions in which a local authority ‘shall provide accommodation for any child in need within their area who appears to them to require accommodation’ is a narrow test. This means that if a child satisfies one of the criteria, then the required accommodation must be provided. The three criteria are that:
- there is nobody to care for them;
- they have been abandoned or lost; or
- the person caring for them is prevented from providing them with suitable care or accommodation.
This case illustrates the problems that can arise because of the interplay of different laws, in this case between sections 17 and 20 of the ChA and between the ChA and the HA.
Following the ruling in this case, the situation remains uncertain. It is likely that there will be an appeal to the House of Lords, which it is hoped will clarify the position.
If you need advice on any housing issue, contact <<CONTACT DETAILS>> for advice.
Partner Note
R (on the application of G) v London Borough of Southwark [2008] EWCA Civ 877.
The Children Act 1989 can be found at
New Criminal Injuries Compensation Scheme
After considerable debate, the Criminal Injuries Compensation Scheme 2008 (CICS) has been finalised and came into effect with regard to all claims made on or after 3 November 2008. The CICS exists to provide compensation for people who are injured or killed as a result of a crime.
For the purposes of the CICS, personal injury includes physical injury, mental injury and disease that is a medically recognised illness or condition. It is not necessary for the assailant to have been convicted of a criminal offence in connection with the injury.
Compensation is payable in accordance with a tariff and may include compensation for loss of earnings. The actual rules and restrictions are complex – the guidance booklet referred to below runs to 55 pages.
The changes made are not changes of substance and in many cases there is no change to the level of compensation on offer. The changes are aimed at providing an improved service to victims of violent crime and include streamlining some administrative procedures, clarifying the scheme rules in areas of doubt and updating the tariff of injuries to reflect current views on the relative seriousness of certain injuries.
The Criminal Injuries Compensation Board has published an information booklet, which can be downloaded at http://www.cjsonline.gov.uk/downloads/application/pdf/2008-06-18%20Draft%202008%20Scheme.pdf.
It is often forgotten that a person who is injured by someone else, whether in furtherance of a crime or not, may have a personal right of action against the person responsible.
In such circumstances, we can advise you of the appropriate course of action to take.
Parental Responsibility Prior to Adoption Abroad
The interpretation of the laws that apply when a child is to be adopted by prospective adopters who live in a foreign country remains unclear, following two recent rulings.
In the first case, the parents of a girl agreed that adoption was the desired solution but the mother did not want the child to be adopted outside the UK. The proposed parents were the father’s sister and her husband, who lived in the USA. They resided in the UK temporarily, in order to satisfy the requirements of the Adoption and Children Act 2002 (ACA), which dictates the determination of parental responsibility prior to adoption abroad.
The father of the child was happy for the adoption to go ahead but the mother was not. She claimed that during the ten week period the prospective adopters were caring for the child, only the sister had been present the entire time and so the statutory requirements had not been satisfied. The judge rejected this argument, saying the husband had been there for a substantial enough period of time.
The child’s mother also claimed that pursuant to Regulation 10 of the Adoptions With a Foreign Element Regulations 2005, the couple had not satisfied the requirement to obtain confirmation in writing, from the relevant foreign authority, that the child is or will be authorised to enter and reside in that country. The issue arose because the United States Embassy in London was not prepared to grant the child a visa until the adopters could produce the order showing that they had exclusive parental responsibility. They were unable to obtain such an order until such time as they could demonstrate to the English courts that they would be able to reside with the child in the USA.
The judge concluded that it did not need to be a governmental body that said that the child would be able to reside in the USA. The equivalent of an English adoption agency would suffice. He gave the prospective adopters 28 days to ascertain from the American Adoption Agency whether it was likely that the child would be authorised to enter and reside permanently in the USA.
In the second case, a child was also to be adopted by a family member who lived in the USA. The issue arising here was that for some part of the requisite period of determination of parental responsibility, the child had been staying with the prospective adopters in America. This would seem to have been in contravention of statutory requirements as it is an offence to remove a child from England or Wales, for the purposes of adoption, without a court order. Haringey London Borough Council was seeking to obtain such an order to legitimise the removal of the child from the UK, making the foreign residence period ‘count’ for the court proceedings.
The judge saw no reason why ‘home’ for the purposes of the ACA had to be in England or Wales. He was not, however, prepared to grant an order going against the intentions expressed by Parliament. He therefore gave leave to appeal to the Court of Appeal for it to rule on this point of law.
The ruling of the Court of Appeal in the second case will affect the ease with which adoptions such as these can go ahead. As the law stands at the moment, it is difficult for those who live abroad to adopt a UK based child as they are required to leave their country, home and work in order to satisfy the requirement for a lengthy period of residence in the UK prior to adoption.
If you need advice on any family law matter, contact <<CONTACT DETAILS>> for advice.
Partner Note
Re: G [2008] EWCA Civ 105, All ER (D) 272 and Haringey LBC v MA [2008] EWHC 1722 (Fam).
Reasonable Discretion and Financial Settlements
When decisions are made in ancillary relief proceedings (the legal term for the financial arrangements made on divorce), there is not one single reasonable way to evaluate evidence, but a ‘spectrum’ of reasonable approaches.
Therefore, to appeal successfully against a decision made at a judge’s discretion, it is necessary to convince the appeal court that the decision was outside the spectrum of reasonable responses.
In a recent case involving an Iranian couple, the former wife sought to overturn the settlement awarded by the court, claiming that it was not reasonable.
The couple owned their matrimonial home and an investment property in the UK. The wife also owned properties in Iran, some of which had been inherited. After commencing divorce proceedings against her husband in Iran, she purported to transfer the properties to her children, retaining the power of attorney to administer them on behalf of the children and a life interest in them. In practice, the arrangement meant that she retained ownership of them.
The couple sought a clean break, with the former wife retaining the matrimonial home. The judge ordered her to pay her husband a total of £180,000. In practice, this meant she ended up with slightly more than half of the couple’s assets.
The wife appealed, claiming that the award to her husband was plainly excessive and that in the absence of evidence that she could remove assets from Iran, the judge should have proceeded on the basis that she could not.
The Court of Appeal agreed that the judge should have explained the basis for his decision and created a balance sheet for each party. However, the order did not offend the ‘needs’ principle in that it left the wife with substantially more than her assessed needs. In practice, her ability to meet those needs was based on the assumption that she could realise assets in Iran and remit the proceeds to the UK to discharge her liabilities here. In that regard, the finding that the arrangement she had made with regard to the Iranian properties was equivalent to ownership of the assets was a key finding of fact by the court. Were the properties in Iran to be only notionally attributable to her, she would not have had the ability to meet her liabilities in the UK.
Although a different judge might have taken a somewhat different view on how best to treat the inherited assets, the judgment of the court was not considered to be outside the spectrum of reasonable responses and so the appeal was dismissed.
Says <<CONTACT DETAILS>>, “This case had many complexities, including the question of which system of law (English or Iranian) should apply. In such cases, there is no ‘right answer’ and the Court of Appeal will uphold a decision which is reasonable, even one which is not necessarily the best possible decision. In practice, the best results, especially in cases where the assets are substantial, are normally achieved by careful negotiation with the benefit of expert legal support.”
Partner Note
Behzadi v Behzadi [2008] EWCA Civ 1070.
See the Solicitors Journal, 14 October 2008 p 29.
Relief for Borrowers
In a bid to provide some relief for borrowers, a new pre-action protocol (the set of procedures that must be followed before going to court) has been created which covers claims for possession based on arrears of residential mortgages.
The new protocol covers both first mortgages and second mortgages and applies to those regulated under the Consumer Credit Act 1974 and other mortgages. It provides that reasonable steps should be taken by the parties to discuss the reason for the arrears, the borrower’s financial circumstances and proposals for repayment of the arrears (including referral to independent debt advice). The lender is also required to write to the borrower within ten days to provide reasons for rejecting the borrower’s repayment proposals.
In addition, it includes a provision that consideration can be given to a postponement of the claim for possession if the borrower can show that they have taken reasonable steps to put the property on the market at a reasonable price in accordance with appropriate professional advice.
If you are having problems managing your loan or mortgage repayments, we may be able to help. Contact <<CONTACT DETAILS>> for advice.
Partner Note
The new protocol was created following a consultation period which ended in May 2008. See http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_mha.htm.
Removing or Modifying Restrictive Covenants
Restrictive covenants are restrictions on the rights relating to a property. They may, for example, allow rights of access over the property concerned or operate to prevent a nuisance to nearby landowners.
The procedural law relating to such covenants is complicated, but any covenant created after 1 January 1926 must be registered to be effective.
It is often the case that a covenant was created many years ago for a perfectly good reason, but the reason no longer exists. When that is the case and the covenant has a negative impact on the land owner it affects, it may be possible to have the covenant modified or removed altogether. This can be done by contacting the person benefiting from the covenant and obtaining their agreement to discharge it or by making an application to the Land Registry, which can often lead to a court hearing.
The law allows a covenant to be modified or discharged when:
- it is obsolete in that it secures no practical benefit to those entitled to enforce it; or
- it is contrary to the public interest; or
- financial compensation would be adequate recompense for its discharge and its continuation would impede a reasonable user of the land; or
- its modification or discharge has been agreed (expressly or by implication); or
- its discharge or modification would not harm those entitled to benefit from it.
Although this list makes it look as though obtaining a modification or discharge of a covenant should be straightforward, the court will not permit this unnecessarily. For example, in a recent case, an application to discharge a covenant which prevented the erection of more than one dwelling on a piece of land was rejected by the court, which took account of the impact of the building on the neighbourhood. An increased risk of flooding, the alteration of the character of the area and a reduction in sunlight to adjoining property were just three of the factors which collectively swayed the court.
If your land is subject to a covenant that impairs your use of it, contact us for advice. It may seem tempting to try to reach an agreement yourself with the person benefiting from the covenant, but it is normally inadvisable as there are a number of complexities and potential traps for the unwary. For example, in some circumstances a modification or discharge of a covenant may create a charge to Stamp Duty Land Tax. Contact <<CONTACT DETAILS>> for advice on all property matters.
Partner Note
Re Hopkins Application [2008] EW Lands LP/89/2006.
Right of Silence is a Personal Right
In a significant decision, the court has ruled that a defendant in criminal proceedings cannot rely on the ‘right of silence’ to refuse to give up a password which will allow access to encrypted information held on his or her computer.
The ruling means that if material has come lawfully into the possession of the Police, failing to make that material accessible to them is an offence. Where the failure involves matters of national security, the result may be imprisonment for up to five years.
The decision confirms that data held on computer is treated as essentially the same as written material – the right not to self-incriminate does not apply to evidence which has an existence independent of the person involved. The right of silence is a strictly personal right.
Partner Note
R v S and A [2008] EWCA Crim 2177. See
School Admissions Policies Come Under Scrutiny
Nowadays, for children to be admitted to a given state school, it is quite often necessary for them to live within that school’s catchment area. This often poses problems because of the varying educational standards among schools. Parents are naturally concerned about their children’s education and want them to attend the best possible school. Sometimes, they even move house in order to ensure they are in the catchment area for their preferred school. Very often, the demand for places at good schools far exceeds the number of places available.
Children sometimes live within the catchment area for more than one school. When popular schools are choosing which children to admit, they may have a policy of accepting only those who live within the catchment area of their school alone and excluding those who are also within the catchment area of another school. This can result in a situation where children who live in the catchment area for two schools are not even considered for acceptance, because they have another option. This policy seems to discriminate against families who live in the catchment area for more than one school as their children do not receive the same treatment as other applicants from within the school’s catchment area.
This issue has recently come under the scrutiny of the High Court in a challenge to the Schools Adjudicator, who had decided that a popular West London secondary school’s admission code had indirectly discriminated against poorer families. Drayton Manor High School was accused by Ealing Council of discriminating against children living on nearby council estates because it prioritised places for children who lived nearest to the school. This meant that children who also lived near a less popular school could be denied a place at Drayton Manor. The school argued that if it were to change its admissions policy, equally deprived children living south east of the school could also be disadvantaged.
The High Court ruled in favour of the school. The Adjudicator had made a fundamental error by not taking the school’s submissions into account when upholding the Council’s claim.
This is believed to be the first successful challenge to a decision of the Adjudicator since the new Schools Admissions Code came into force in 2007. Whilst more challenges are expected to emerge, it is not considered likely to open the floodgates owing to the time and money it is necessary to expend in order to bring a case to judicial review.
Partner Note
Reported in the Times, 29 October 2008. See http://www.timesonline.co.uk/tol/news/uk/education/article5031807.ece.
Speeding Drivers to Face Double Penalty Points
Jim Fitzpatrick, the Transport Minister, has set out new guidelines on penalties for speeding in a Road Safety consultation paper. The proposed changes will mean that motorists caught driving at a speed significantly over the limit could face a penalty of six points on their licence, rather than the current three points. This would mean that after two speeding offences a driver’s licence could be revoked, without a court hearing. As the law stands, only the courts can impose a penalty of more than three points for a speeding offence.
The Government is hoping that by tightening up the law it will provide a deterrent for drivers. Those caught driving between 90mph and 100mph in a 70mph zone, at 60mph in a 40mph zone and at 50mph in a 30mph zone could all face the increased penalty. In these circumstances, drivers will be given a six point penalty and a fine of £100. Current