As we are now well and truly in the season of advent, with all the fun and fretting that involves, we thought it would be a good time to have a look back over the last year and remind ourselves of some of the highlights of the family law year. So here is our tribute to 2013 in the style of that well known song, “The Twelve Days of Christmas”. We thought 12 days of family law might be a bit much for you, so here is an abridged version! Please feel free to add your own musical accompaniment.
On the first day of Christmas, my true love gave to me: A new single family court.
Due for launch in April 2014, the new court will see the existing three point entry system for the family courts (Magistrates, County and High Courts) all replaced with one unified family court, in which cases will be allocated to an appropriate level of judge by the court staff. All the courts operating under the new system will be able to deal with civil partnership dissolutions and with care cases, and this streamlining of administration and systems should, we fervently hope, make for a more efficient court system.
On the second day of Christmas, my true love gave to me: a way to pierce the corporate veil.
In Prest v Petrodel Resources Ltd the Supreme Court found a way to get round the problem of spouses putting property and assets within company structures in order to defeat the claims of their soon-to-be-former husbands or wives. The Supreme Court justices held that in this case inferences could be drawn that the companies held property on trust for the husband. As such, the husband was beneficially entitled to it, so it was subject to the powers of the court to redistribute assets in matrimonial proceedings and could be transferred to the wife. We wrote about the decision here.
On the third day of Christmas, my true love gave to me: protection from three nasty diseases
Several cases recently have involved disputes about whether children should receive the MMR triple vaccine. In all cases the court has come down on the side of sensible preventative healthcare and ordered the vaccinations to take place, particularly now that the report linking the vaccine with autism has been discredited. We wrote about it here.
On the fifth day of Christmas, my true love gave to me: five gold rings
Well, silver rather than gold, and 14 pieces of 5th century Roman silver vessels, rather than gold rings (but precious metal all the same!). Back at the start of the year we wrote about the unique problem of these antiquities within a divorce case. They belong to Lord Northampton, who bought them for £10million but as they are of dubious provenance and have unresolved questions over ownership they are essentially unsaleable.
On the sixth day of Christmas, my true love gave to me: six decisions of the Supreme Court.
We have not reported on all of these in our blogs as not all relate to the areas of family law in which we practise. However this year the Supreme Court has tackled family law on six occasions. Three of those cases concern public law (namely children being taken into care, or placed for adoption). In J (Children) they looked at how to treat the fact that a parent may have harmed a child in the past when considering the risk of future harm. Re L and B (children) looked at judges changing their minds about their decisions. The risk of future psychological harm was considered in B (a child). The only financial case the Supreme Court looked at this year was Prest v Petrodel (see the second day of Christmas!). The issue of returning children to countries from which they have been removed under an erroneous court order was examined in Re KL (a child), and the question of whether the court could make orders in respect of a child who had never been to England was tackled in Re A. These significant cases show perhaps that the law is struggling to adapt to new realities of peoples’ lives, particularly those who retain significant ties to other countries while living here; they also throw into sharp relief the big questions that family law is charged with answering.
On the eighth day of Christmas, my true love gave to me: recognition of the realities of international surrogacy
There has been quite a spate of cases concerning applications for parental orders (declarations of legal parentage) following children born through surrogacy arrangements. It seems that the courts are taking a pragmatic approach to making orders to regularise the position of children born this way, which is a relief. There are strict rules within the legislation about payments which are allowed to surrogate mothers, and many cases feature payments made overseas to surrogate mothers which if made in this country would be illegal. However the courts have shown a willingness to retrospectively approve arrangements to allow the children and commissioning parents to start life together in this country within a legally sanctioned set up.
On the tenth day of Christmas, my true love gave to me: ten Government-funded parenting projects
The Department for Work and Pensions recently announced funding for ten new projects across the country to help separated couples resolve grievances and agree financial and parenting arrangements in their children’s best interests. Funding has comes from the Innovation Fund and the projects will test new ways for separated parents to overcome conflict. Each project adopts a different approach and is based in a distinct geographical area. We will be really interested to see the results of the various approaches to conflict resolution, and will keep a look out for more news of how these projects fare. More details are here.
On the twelfth day of Christmas, my true love gave to me: support for religious arbitration
The English civil courts try their best to acknowledge the religious and cultural background of the parties in disputes. In AI v MT (a case we mentioned here) the High Court stayed the English court proceedings here to allow an orthodox Jewish couple to go through arbitration in the New York Beth Din (the Jewish religious court). Once agreement had been reached through the Beth Din arbitration, the High Court approved the agreement reached.
We hope this canter through some of the movements in family law from 2013 has been useful, and wish you a calm and enjoyable fortnight in the run up to Christmas. As ever, if you would like to make an appointment talk to us about anything family law-related, please give us a call on 01223 443333.