No politics please, we’re British

Religion and politics can be very emotive subjects. Especially when parents hold differing religious or political affiliations and cannot agree on how their children should be involved in religious or political activities. With the general election looming, the issue of politics is at the forefront of many people’s minds, and we were particularly interested to read about a case dealing with the involvement of young children in the political party of one of their parents.

The case, Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) 2015 saw a judge banning a UKIP Parliamentary candidate from bringing his children to election rallies, and then the decision being overturned on appeal.

The parents had five children. The eldest two lived with their father (the UKIP parliamentary candidate), and the youngest three lived with the mother, who held different political views. There had been ongoing litigation between the parents for some years but at a recent hearing, the mother had expressed concern about the effect on the children of the father involving them in his political campaigning. The judge made an order which said in its preamble (the non-legally binding background to the order) that the court held the view that it is “inappropriate for young children to be actively engaged in political activities as they may be emotionally damaged by potentially hostile reactions from members of the public.” The judge went on to order that neither parent was to involve the two youngest children (both under the age of 10) actively in any political activity.

The father appealed, arguing that the judge was plainly wrong when she made the order in relation to political activity, and was procedurally wrong in the way she dealt with the issue.

It is worth pointing out that a court does have power to set conditions about the time a child spends with a parent (known as contact conditions), and can also make a Prohibited Steps Order by which a parent is prevented from doing a specified activity with a child. A court will only make those orders if they are necessary and proportionate, and if it is better for the child concerned that the order is made rather than not being made, but there doesn’t have to be a specific application in relation to the particular issue for the court to take action – it can do so of its own motion, if in the interests of the children to do so.

The judge who made the original order in this case had expressed concern about the reactions of members of the public to UKIP campaigning when the children were present. The children had been taken out campaigning previously: one of them had had eggs thrown at him, and another had had a UKIP poster ripped up in her face. The judge considered this would be emotionally damaging for the young children so made what she thought would be a “ neutral” order, preventing both parents from directly involving children in political activities.

The appeal court found that the father had not been given notice of the mother’s intention to ask a judge to prevent him from involving the children in his political activities, so he had not had a chance to prepare his evidence dealing with this issue. This effectively rendered the judge’s decision unfair. There were also difficulties with the way the order had been drafted – no consequences of breaching the prohibition on political activity were included, and the banned political activities were not properly defined. Therefore the father succeeded in his appeal and the matter of involving children in political activity is to be reheard by a different judge, who will have the opportunity of making a fresh decision on all the evidence. It may go the father’s way, or the end result may be the same; we shall have to wait and see.

In another recent case Darlington Borough Council were strongly criticised by the President of the Family Division for having removed a young child from the care of his father because the father had connections with the far right political group the English Defence League (EDL). Social workers at the council considered the politics of the EDL to be immoral, and believed the child should not be exposed to those views. The President of the family court (‘top judge’) Sir James Munby was clear that local councils are not moral guardians, and that provided there are no welfare concerns the child should be looked after by his father. You can read the Guardian’s article about this case here: or the judgment here.

As politics rise to the forefront of many people’s minds this year, what do these decisions tell us? The Human Rights Act 1998 (which enacts the European Convention on Human Rights) protects the right to family life, which can only be interfered with when proportionate and necessary. The courts seem to be making it clear that political views which some may find distasteful are not grounds to interfere with family life unless there is a risk to the welfare of the children involved. Furthermore, if such issues are raised in litigation they must be fully explored in evidence before a decision is made.

If you would like to talk about any of the issues raised above, you can contact us on 01223 443333.

Budget, don’t fudge it

It’s a sad fact that if financial matters can’t be agreed during divorce, the court’s cogs can turn slowly. The litigation process, and for some people the process of gathering together the evidence that is necessary for a fair resolution of a financial difference of opinion, can take a long time. What happens in the meantime if one person is left without enough money to live on while the other has sufficient for their needs, or a surplus?

‘Maintenance pending suit’ (or ‘MPS’), otherwise known as ‘interim maintenance’, is a stop-gap legal solution intended to meet the financially weaker person’s needs in the short-term, before a court has had a chance to examine in detail the question of everyone’s long-term income, or capital, needs. It works on the same principle as spousal maintenance, i.e. periodical payments made from one party to the other, usually on a monthly basis. (For further information on what amounts to needs, you can take a look at our blog post here.)

In procedural terms, anyone who needs maintenance pending suit has to make a specific application to court – it is not something the court will automatically consider even if there’s already a financial application in the system. The person applying must submit written evidence in support of the application, including up-to-date information about financial circumstances and income needs. This will include preparing a detailed budget.

You might have read about budgets before but to summarise, when preparing a Form E, which is the comprehensive financial form used in family finance proceedings on divorce, you have to set out your income needs in the form of a monthly budget. This will usually include amounts spent on utilities, household expenditure, travel costs, clothes, entertainment and children’s activities etc. Most budgets tend to reflect a generous view of the pre-separation lifestyle and may include amounts for things like satellite television, gym membership, hobbies and holidays. However when it comes to preparing a budget for a maintenance pending suit application, luxury items and any expenditure which was not routinely incurred during the marriage ought to be disregarded. As MPS is a short-term fix, judges are only interested in ensuring the recipient has sufficient to cover the bare necessities required to keep afloat, financially speaking, until matters can be permanently resolved.

Some people say that maintenance pending suit hearings can amount to “rough justice” as they tend to be brief and dealt with fairly swiftly by the judge hearing the case. A judge will usually read the papers in the case, decide what the recipient really needs to get by over the coming months, consider what the payer can afford whilst still maintaining a reasonable standard of living themselves, and then impose a figure on the parties.

A recent case looked at the question of budgets within maintenance pending suit applications, and it is worth a quick look due to the comments made by the judge about the approach to take in MPS applications, and the unrealistic expectations of the wife who was the applicant in this case.

This couple has been married for 11 years and had four children. The husband was very wealthy with assets of £49m, as well as trust assets exceeding £100m, and an annual income of £1.7m net. The wife had property in her own name worth £2.9m and £1.4m in cash and investments, of which £1m had been transferred to her by the husband since the separation. He had confirmed that he did not expect her to use that any of that sum to fund her legal costs or living expenses.

The husband was voluntarily paying the wife £202,000 per annum as well as her legal fees. However the wife considered this insufficient and applied for maintenance pending suit of an “absolute minimum” of £280,000 a year. In fact, she pitched her actual budget on an interim basis at £392,000.

The husband was able to counter her claims by producing evidence that the family had lived on around £230,000-£265,000 a year including school fees. In support of his current position, he argued that the wife’s actual needs were around £156,000 per annum.

The judge agreed with the husband that maintenance pending suit should stay at the sum that he was currently voluntarily paying (£202,000 per annum). The judge said that the wife’s stated expectations substantially exceeded the marital standard of living. He felt her case was unprincipled and unreasonable, as it included a “significant element of forensic exaggeration”. He commented that whilst the standard of living during the marriage is not necessarily a ceiling to ongoing maintenance levels, there would need to be a specific powerful justification for that standard being exceeded on an interim basis before the final determination had been made.

The judge confirmed that the purpose of MPS is to ensure that the financially weaker spouse has sufficient resources to meet his/her immediate needs in a way which does not prejudice the longer term position, or place him/her at a significant disadvantage. He further observed that the application made by the wife here was a disproportionate use of both the parties’ and the court’s resources, particularly in view of their combined costs of around £90,000 which represented a significant chunk of the figure they were arguing over.

Even though MPS calculations tend to be on the rough and ready side, a court will aim for a fair interim outcome taking some account of the marital standard of living, whilst carefully scrutinising the parties’ budgets. An unrealistic budget will get short shrift and may well result in costs penalties, as unlike in the ordinary course of matrimonial finance law where the starting position is no order for costs, a court can more readily make costs orders against parties to litigation in MPS applications. The upshot is: be realistic, be reasonable, and you should get a fair decision. If you’re not, you may incur the wrath of the court.

If we can help with maintenance, or any other aspect of family law, please get in touch with us on 01223 443333.

A privileged position

You may have heard lawyers talking about “privilege” or about “privileged documents”. We thought it would be helpful to have a brief look at the concept of privilege and what it means within the practice of family law.

Privilege is a long-standing principle of common law; in fact the earliest recorded examples date from the 16th century. It provides protection to clients from having to disclose certain documentary evidence to other parties and the court. Privileged documents include those which a party is entitled to keep confidential, such as documents referring to settlement negotiations, confidential communications with lawyers and documents prepared in contemplation of litigation.

In technical terms here are four main privileges: legal professional privilege; without prejudice privilege; common interest privilege; and privilege against self-incrimination. Only the first two are relevant to family law.

There are two forms of legal professional privilege. The first is called “legal advice privilege” and protects confidential communications between lawyers and their clients which were created in order to give or obtain legal advice. It is worth pointing out that privilege only applies between clients and their solicitor or barrister: it does not apply in the same way to relationships with other professionals. The second is called “litigation privilege” and protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, whether that litigation is in process or is contemplated.

“Without prejudice privilege” arises from the public policy of encouraging people in dispute to settle their cases rather than pursue them all the way to trial. It enables people to discuss ways to resolve their dispute, without worrying that any admissions or offers to settle which they might make will be used against them at a later date. All discussions and correspondence that are aimed at settling the case will be excluded from evidence, and will be considered to be “without prejudice”. This means they cannot later be drawn to the attention of a court or tribunal, in contrast to “open” correspondence or negotiations, which can. We wrote about whether discussions over dinner could be said to be without prejudice here.

Another case recently looked at privilege attaching to documents in the context of troubled relationships.

In this case the parties (‘SC’ and ‘YD’) had been been together for 17 years and they never married. They have five children aged between six and sixteen. The family lived in a substantial home which was held in the sole name of the father, and was worth around £2¾ million. The father’s estimate of his personal wealth was around £14.5milion. The mother had been the homemaker and had no independent means of support.

When the relationship deteriorated the father drew up a document entitled “Agreement between SC and YD” and presented it to the mother at the family home in February 2013. The agreement set out that the parties would share the use of the family home for the next seven years (until their youngest reached 13), and if they had to sell it, the proceeds would be split equally.

At that date neither the father nor the mother had sought legal advice as to their respective positions. Neither party signed the document.

When they finally separated two months later, the mother made a claim for a beneficial interest in the family home and for financial provision for the five children of the family.

There was then a dispute about whether the 2013 document could be admitted as part of the evidence for the forthcoming 5 day trial of the case which will be heard later in the year. The mother wanted to use it to support her claim to half of the equity in the house; the father wanted it excluded and claimed it was privileged and so could not be seen by the court. The deputy district judge had said that the document was not privileged because at the time there was no dispute between the parties, i.e. litigation was not in contemplation, and therefore it could be used in evidence. The father appealed, but the appeal court agreed with the deputy district judge.

The appeal judge looked at what was contemplated by both parties at the time the document was produced. It referred to them living under the same roof for several more years, with no imminent separation, but with a reassurance to the mother that should that arrangement fail, she would receive half the value of the house. So the appeal judge decided that back in February 2013 neither party was seeking to compromise actual or pending litigation. No existing or contemplated litigation meant that no privilege attached to the document, so it will go into evidence and be seen by the court at the trial.

The outcome is a similar result to the dinner date case, and a reminder that there needs to be at least contemplated litigation and a genuine attempt to settle it to get the protection of the without prejudice umbrella. Otherwise, any document can be produced as evidence at trial.

As always, if you would like to discuss this or any other aspect of family law with Gail, Sue, Adam, Simon or Tricia, please arrange an appointment on 01223 443333.

Role models for kids

In the field of private family law, one of the toughest decisions judges face is whether to let a child relocate permanently overseas with a parent. These cases are formally known as leave to remove applications, because leave (i.e. the permission) of the court is required in order to take a child away from the jurisdiction of England and Wales on a permanent basis if the parents do not agree. Doing so without consent of a parent or permission of the court can amount to child abduction.

These cases are always tricky. If a judge gives permission for a relocation, then the parent remaining in this country will be bereft, and left facing arduous and expensive journeys to see their child face to face. If permission is refused then the parent who wanted to leave, often to return to a home country or to one where they have family support, will be left feeling stranded and isolated in a country in which they no longer want to live, but hamstrung by the court’s decision.

As a general rule of thumb, to stand a chance of success, the parent applying for leave to remove a child from this country has to have a very well thought out plan for the child’s new life, including appropriate housing, schooling, medical care, financial support, and solid proposals for making contact work with the parent left behind. The motive for relocation must be genuine and not driven by malice or a desire to exclude the other parent from the child’s life. Judges carefully scrutinise each case, with many applications being refused.

A court’s first, and overriding, concern is the welfare of the child concerned – will it be better served by moving abroad or by staying? It will look at the impact of relocation on the left behind parent, and that parent’s reasons for objecting to a move, as well as considering the impact of a refusal to allow the relocation on the applicant.

A recent case, called S v G raised some interesting issues in connection with an application to relocate, which may well have wider resonance.

In that case the mother was Russian, and the father English, and they had a little boy, D, who was 2 ½ at the time of the hearing. The parents’ relationship was relatively brief, conducted across two countries (Russia and England) and unfortunately bad tempered towards the end. At the time of the hearing, the little boy was being cared for by both parents, but the mother wanted to return home to Moscow, where she had a far greater support network.

The judge had to weigh up the options and what would be in the best interests of the child. He considered their respective abilities to meet D’s longer term needs. He was clearly impressed with the mother, whom he described as a dynamic, energetic and insightful individual. She had until recently had a good career and a strong social network, she has learned English, and been keen to promote her son’s relationship with his father and wider family. She was not without her issues, however, including having been a cannabis user previously, and being arrested for assaulting the father, after which she acceded to social services’ suggestion that the little boy live with his father for a time.

The father’s case was that his son’s birth had given meaning to his life. However, he remained a user of cannabis, was unemployed and had not attempted to learn any Russian, despite it being the mother of his son’s first language. The judge also said that the father lacked an instinctive belief in the importance to D of time spent with the mother, refusing her requests to speak to him on Skype as he did not want his time with his son to be interrupted.   His family were also keen to support him, but would not engage with or support the mother at all despite her living just round the corner from them and being without an extended family in this country.

The judge acknowledged that returning to Moscow would cause a great loss to D in the short term, as he would lose time with his father. However he was rather damning of the father saying that in order to be in a position “to set an example for D and even to support him financially, he needs to regain control over his life and maximise his chances of rebuilding his situation, in particular by getting a job. This is not likely to happen if he is relying on D to give meaning to his life, when it is D who should be relying on him.”

The mother was permitted to return to Moscow, and to take D to live there. The judge commented that to require her to remain in England for at least the next 15 years would leave her with a justifiable sense of bitterness that would not be in D’s interests. The order itself is produced at the end of the judgment and shows that the judge built in provisions for regular, extended visits both ways and twice-weekly Skype contact, doing everything reasonable to enable D to have the opportunity to stay closely in touch with his dad.

The comments about the need to be a role model, and be successful, in order to be better placed to raise a child are interesting, as are the observations on the role of the wider family who can so often become polarised, and perhaps lose sight of what the child needs in these cases. We imagine they will not be restricted to use in other relocation cases, but may have relevance to domestic cases concerning arrangements for children, where differences in the approach of the parents may be under close scrutiny if matters cannot be agreed out of court.

Relocation matters have a reputation for being difficult to resolve in mediation or collaborative law because it may seem difficult to find a compromise that is bearable for both parents and in the child’s best interests. However, it is often possible to use these more creative forums to discuss options and skilled professionals can often facilitate the generation of ideas that, one way or another, might have the potential to make things work. In our experience, for the child’s sake it’s always worth trying to talk things through in a neutral forum with people who want to help.

If you would like to talk to us about relocation, or any other aspect of family law do please get in touch on 01223 443333.