News

District Judge's Forum - 18 November 2011 | 16 December 2011

PANEL COMPRISED DISTRICT JUDGES MILLWARD, LETHAM AND GLOVER FROM MAIDSTONE, TUNBRIDGE WELLS AND DARTFORD RESPECTIVELY

1. Is there a need for a Judge to be designated to deal with collaborative law cases at each County Court?

ANSWER

No

2 Given the delays with listing and box work do the panel feel it would be possible and of assistance to set aside a time slot, say once a week, when practitioners could attend to seek clarification on procedural matters or approval of urgent Orders, etc?

ANSWER

Some courts offer clinic appointments when such matters might be addressed but increasing pressure upon the court system is making such arrangements harder to accommodate.

3. In the light of the decision in Grey v. Grey does the panel think a husband is more likely to be able to achieve a clean break where there are young or dependant children and the wife is in a long term cohabitation relationship?

. Does the panel think that the introduction of the compulsory Mediation Assessment and Information Meetings has led to a reduction in the number of Ancillary Relief and Children Act Applications being issued?

ANSWER

No. Much will depend upon the extent to which there has been any intermingling of finances. D J Glover advocated the use of a section 28 (1) direction.

Such meetings are not compulsory. D J Letham described the introduction as having no teeth. D J Glover said there were a lack of providers in his area. Now that Cafcass are confining themselves more to the task of safeguarding, he is considering an approach in Tunbridge Wells to have mediators at court on a rota. There is unlikely to be funding for this.

4. (a) Is it now possible to issue either an Ancillary Relief Application

or a Children Act Application without a Form FM1?

(b) Does the Court treat Applications from litigants in person any

differently from Applications issued by solicitors?

ANSWER

(a) Yes

(b) No

5. Could the panel please provide some clear guidance on how the Form FM1 should be used when lodging applications by consent - do both parties have to lodge a form?

ANSWER

A Form FM1 is not required with consent orders. Note the FPR changes mean that the statement of information in support of a consent order now needs to be counter signed by both parties.

6. What does the panel think is the impact in Ancillary Relief cases of the decision in Immerman?

ANSWER

The District Judges have had scant opportunity to test this point. A member of the audience explained that they return any papers that may have come to their attention from the other side and list in a letter returning the items what is being released. That letter can serve as a useful aid memoire for questions etc afterwards and yet does not constitute retention of any of the papers, copies etc.

7. In the light of the Supreme Court’s decision in Jones v. Kernott what evidence does the panel consider most relevant to impute an intention in the absence of a cleared inferred intention? Does the panel think that the principle of intention over fairness will survive? How does the panel think the decision will impact on such cases in future and is it right to depart from the parties’ original intentions on the TR1?

ANSWER

The evidence will be different in every case and will supply the answer to the difference between being able to infer an intention or impute one. Everyone was recommended to read paragraphs 13 and 72 – 79 of the Judgement. The following warnings were also issued that if you serve a notice of severance then the effect of that in the absence of a declaration of trust is that the severance achieves a 50/50 sharing. The District Judges also warned of negligence on the part of conveyancers if they are not advising unmarried couples to enter into a declaration of trust.

8. What does the panel think of the new forms in Family Proceedings? What are the most common mistakes made in completing those forms? Is there any intention to modify or revise them?

ANSWER

None of the panel were particularly fond of the new forms. Any issues that

arise one should write to the Family Rules Committee and that is District

Judge Darbyshire.

9. Do District Judges have hot-tubbing sessions and discuss differences in approach? If so, and in any event, why is it that some common attitudes cannot be agreed e.g. approving clean break settlements where there are minor or dependant children?

ANSWER

There is often very little time to have any in-depth discussions, although they will go on where possible. On the subject of attitudes not being the same, this arises as a result of the exercise of judicial discretion. As an aside, there was a view ventured that a more inquisitorial style of questioning litigants in person will become necessary but it will mean that cases will take longer. We were urged to encourage litigants in person to use a Mackenzie Friend who can help them listen and understand.

10. Does the Court have jurisdiction to “enforce” CSA arrears where the Agency have not been collecting payments? One local Court seems to say yes and at least one says no.

ANSWER

The court does not have jurisdiction. In the case in 2005 involving Miss Keo it was determined that she had no such rights and must refer to the CSA to enforce.

11. Does the Court have jurisdiction under FPR 20.2(c)(v) to make an interim order for sale of real property?

ANSWER

The authority of Wicks says no but a member of the audience then said that District Judge White at the Principal Registry has just made such an order. District Judge Letham felt that an argument on this point would be very interesting and while he doubted one could go against the authority of Wicks, he would still be interested in anyone seeking to try! District Judge Glover said that perishability could not apply to property but the other arm of the reasoning enables it to be for any other good reason which could mean anything. However it was still felt that the principle of only being able to make one order should prevent an interim order for sale.

12. Is the panel particularly worried about what is pleaded in an unreasonable behaviour Petition provided the allegations appear to satisfy the fact?

ANSWER

Not particularly. There needs to be 3 or 4 decent points made which can contain both subjective view and an objective assessment of what was therefore unreasonable.

13. Does the panel think it would be possible for the Notice of Proceedings issued in Children Act Applications to include not only the time of the hearing (or Cafcass appointment) but also an earlier time by which the parties and their representatives should be at Court, similar to the requirement for all parties to an FDR hearing to be at Court one hour prior to the hearing? This would enable lawyers in publicly funded cases to claim fees from the time of arrival at Court rather than from the time of the hearing.

ANSWER

The court is alive to this predicament and is willing to permit this.

14. Does the panel think that couples who have cohabited for a fixed period of time say 2 years should have similar financial rights entitlements and obligations to married couples or should there be a clear distinction drawn in financial terms between married and unmarried couples?

ANSWER

When this subject was debated by the Kent Resolution membership a couple of years previously, the majority view had been that the law should not be changed because it was not easy to see that any change would make the situation ultimately better. District Judge Letham expressed his views that a change in the law to offer greater clarity.

15 Could the panel confirm their view on how box 7 of the new Affidavit in support of the Petition – 2 years separation should be completed when the parties have lived in the same property but not shared any communal living? In one case “no” was ticked where the parties lived in the same property but within separate households yet the District Judge requested further affidavit evidence concerning the living arrangements.

ANSWER

It was recommended that as there was insufficient space to give details, the information about how they were separate households could be provided on a Rider. That would obviate the need for a further affidavit to be produced. Again this may be something that could be addressed by writing to the Family Rules Committee.

16 Following the Norgrove Report what single key change in the Family Court system does the panel think we are likely to see in the next 5 years that will enhance access to justice?

ANSWER

District Judge Millward felt that if the last few words were omitted there might be an answer to the question but all the panel were somewhat sceptical of there being any improvement in the system. Whilst the Norgrove report is idealistic there is simply not enough money.

The panel explained that to get listing of ancillary relief final hearings within a year of the Form A, HMTCS will need to have that as a target. As no target is currently set there is no incentive to list ancillary relief cases whereas there are targets for other areas. Comment was also made that we need a properly funded legal profession. District Judge Letham commented that there is a fundamental misunderstanding that mediation can succeed/replace the court, where you have the rigour of the law on one hand and expectations that are unrealistic on the other. More unhappiness and disharmony are likely and may only make matters worse.

During the question and answer session attention was also drawn to the fact that Cafcass are using a “every child matters” checklist which does not encompass the full welfare checklist. All practitioners were encouraged to ask for specific directions for the report to cover the welfare checklist. Capability of parents is not part of every child matters and the lack of that is leading to some strange Cafcass reports.

Family Law Day | 9 September 2011

The Resolution Kent 2011 Family Law Day is rapidly approaching, and if you have not already booked, now is your chance to do so.

There has been a change of speakers, with Simon Calheam of 29 Bedford Row unfortunately unable to attend.

In his place, Patrick Chamberlayne QC will be speaking.

This is an excellent opportunity to hear from leading counsel at a very modest price. Space at the venue remains limited, and therefore to avoid disappointment, please book now.

Please see the Events section for more details.