August 2003

Bulletin No 71
Butterworths Family and Child Law Bulletin – August 2003
Bulletin Editor
Jonathan Montgomery, BA, LLM
Professor of Law, University of Southampton

Butterworths Family and Child
Law Bulletin
provides an immediate updating service
for the main text of Butterworths
Family Law Service and Clarke Hall and Morrison on
. The Bulletin is published every month and sent to
subscribers to those publications.

References to BFLS
and CHM above each case are to the relevant paragraphs in Butterworths Family Law
and Clarke
Hall and Morrison on Children.


CAFCASS not obliged
to appoint guardian immediately

[2003] EWHC 235, [2003] 1 FLR 953, QBD

BFLS 3A[5003]; CHM

In R v CAFCASS [2003] EWHC
235, [2003] 1 FLR 953, QBD Charles J held that CAFCASS was not
obliged to make a children’s guardian available immediately
on request by a court. Properly construed, the statutory provisions
permitted a gap between request and appointment. The obligation of
CAFCASS was to respond as soon as practicable after the request was
made. CAFCASS should have general regard to the principal that
delay is likely to prejudice the interests of the child, but that
did not mandate an immediate response.

Comment: This is an
important clarification of the obligations of CAFCASS. As with most
public authorities that are required to manage their budgets, some
discretion to prioritise cases is necessary. This ruling does not
imply that CAFCASS allocation procedures are above criticism.
However, the criteria will be the proper use of public power rather
than compliance with a rigid time requirement.


Father ignorant of
child’s existence need not be contacted

Re J (adoption: contacting
[2003] EWHC 199 (Fam), [2003] 1 FLR 933,

BFLS 3A[4187]; CHM

In Re J (adoption: contacting
[2003] EWHC 199 (Fam), [2003] 1 FLR 933 Bennett J
found that it would be wrong to contact the father of a child being
placed for adoption. The father was not aware that the mother had
been pregnant, had moved away after their brief teenage
relationship and had had no further contact with her. The mother
had kept her pregnancy secret from everyone but her mother. She had
only revealed the father’s name to a social worker when
promised that he would not be informed. On the facts, the child
stood to gain nothing from disclosing his existence to his father
and there was considerable risk of bullying and harassment of the
mother (now 17 years old) if it became known that she had had a
baby. The only factor pointing towards disclosure was the fact that
the boy suffered from cystic fibrosis, a genetic disease, and the
father might benefit from being warned that he could be a carrier.
However, the father already had sufficient knowledge of this risk
from the fact that his own brother had fathered a child with the

Comment: The local
authority, as adoption agency, applied to the court for guidance as
to whether it should contact the father. Such contact appears
mandatory under reg 12(2)(aa) of the Adoption
Regulations 1983, but the courts have a discretion as to whether to
require such contact and have declined to do so in a number of
cases (see Re H, Re G
[2001] 1 FLR 646, Re P
[2001] 1 FLR 365, Re R
[2001] 1 FLR 302). One key factor is the impact of the Human Rights
Act 1998. Consideration has been given both to the current rights
of the unknowing fathers and also to the risk that they might use
human rights arguments to hold up adoption proceedings, to the
detriment of the children, in due course. In the current case,
Bennett J dealt with these issues by holding that Art 8 was not
engaged to create a right in the father for respect for his family
life because the relationship between the parents was too
transitory to qualify.


Practice and
procedure on disclosure of Children Act statement for use in
criminal proceedings

Re Z (disclosure: criminal
[2003] EWHC 61 (Fam), [2003] 1 FLR

BFLS 3A[4665]; CHM

Re Z (disclosure: criminal
[2003] EWHC 61 (Fam), [2003] 1 FLR 1194 concerned
three points on the disclosure of a statement made in Children Act
proceedings to be used in a criminal trial. The father sought
disclosure because he hoped to use inconsistencies between the
statements made by the mother in the Children Act and criminal
proceedings to discredit her evidence as part of his defence to a
murder charge. First, Munby J had to exercise the discretion
whether to disclose the statement in accordance with the principles
established in Re EC
[1996] 2 FLR 725. He ordered disclosure, noting that there was a
possibility that the inconsistency might affect the credibility of
the wife and influence the criminal trial. Thus, the interests of
justice would be served by the disclosure in order to give the jury
the fullest picture of the facts. The seriousness of the charge of
murder meant that it would need to be an exceptional case where a
family court could deny an accused person access to the information
wanted in order to construct a defence. In addition, Munby J found
that there was little material (after he had compared the
statements) that would not in any event be properly explored in the
criminal trial. The tragic family circumstances would be exposed to
the public gaze whether or not disclosure was made, so there was no
case for protecting the children by restricting disclosure. They
would not be effectively protected from information being made
public. Further, it was in the children’s interests to know
the true facts about their father and it was not in their interests
for there to be uncertainty because of non-disclosure of the
statement. The second point concerned whether applications for
disclosure should be transferred to the High Court, as had been
done by the district judge in this case. Munby J did not think this
was necessary. It was desirable that the application be tried by
the trial judge who would have the fullest understanding of the
issues (see A Health
Authority v X
[2001] EWCA Civ 2014, [2002] 2 All ER 780). This
did not preclude the transfer of cases where the novelty or
complexity of the case made a High Court hearing appropriate, but
it was not routinely necessary. The third issue concerned notice to
the parties. The starting point would be that the parties to the
family proceedings would be notified. However, that was not always
appropriate. Here, notice to the wife might have warned her about
the husband’s line of defence in the murder trial and he
should not be deprived of the forensic advantage by having to give
her warning.

Comment: This case is
an illustration of how principles should be applied as much as
guidance on the law, but the two procedural points are helpful. In
relation to the discretion to disclose, it can be seen from Munby
J’s approach that disclosure is likely to be granted in most
cases where the charge in criminal proceedings is as serious as
murder. It is also significant that he was careful to leave any
assessment of whether the information did discredit the wife to the
criminal court. It was not for the family court to seek to assess
the precise impact on the criminal proceedings, merely to ask
whether it might be significant.


Financial provision
for children in ‘big money’ case

Re P (a child) (financial
[2003] EWCA Civ 837, [2003] 2 FCR 481

CHM 4[11]

Re P (a child) (financial
[2003] EWCA Civ 837, [2003] 2 FCR 481 appears to be
the first case in the Court of Appeal to consider the proper
approach to applications for financial provision for children under
Sch 1 to the Children Act 1989. Thorpe LJ set out the principles to
be applied. The welfare of the child was a very relevant
consideration, but it was not necessarily paramount. The starting
point will usually be the provision of a furnished home for the
child, which will ordinarily revert to the providing parent when
the child reaches the age of majority. That parent should have some
veto over unsuitable investments to protect the value of their
reversion. The next consideration will be the revenue costs that
the caring parent requires to maintain the home and look after the
child(ren). This will usually involve consideration of competing
budgets drawn up by the parties, but judges should resist parties
bickering unduly over the differences between these budgets, as any
order is variable and may have a comparatively brief duration
before it is challenged. Then it is necessary to consider the
carer’s allowance, often the most contentious aspect of the
case. The mother (as it usually as, and it was in this case) needed
to have control of a budget that reflected her position and that of
the father in social and financial terms. She should not be
burdened with unnecessary financial anxiety, nor be required to be
parsimonious while the father lived lavishly. However, it was
inappropriate to permit the award to fund a pension or savings. In
the circumstances of the case, it was reasonable for the mother to
seek to live in central London and a three-bedroom house or flat
was not excessive. That established the reality of the proposed
budget of £1million. The Court of Appeal noted that this was
approximately one tenth of the value of the father’s
principal home. A sum of £100,000 for decoration and
furnishing was not unreasonable given the parents’
status—in the light of the father’s lifestyle, it was
not appropriate to require the mother to furnish the home from John
Lewis. The father was entitled to proof that the money had been
spent on making a home for their daughter and had not gone into the
mother’s pocket. So far as providing the mother with a budget
to run the household, the Court of Appeal found that a broad-brush
figure of £70,000 per annum was appropriate. Again, the father
was entitled to a reasonably detailed account of expenditure. The
Court of Appeal then turned to consider whether it had the power to
award arrears to the mother. It found that it had the power to do
so from the date on which the assessment by the Child Support
Agency took effect. Such an assessment was required before an
application to the court for a ‘top up’ order could be
made (Child Support Act 1991, s 8(6)). Thus, the court had
jurisdiction to make an order from that date.

Comment: There are a
number of interesting features of this case. Thorpe LJ found that
the judge had been wrong to order a reduction of payments once the
girl reached the age of seven (four years later). It might be
appropriate to reduce the mother’s allowance of carer when
the child was at school full-time, but it would not necessarily be
correct to do so. The proper approach would be for this to be
reviewed at the time on a variation application, not speculatively
in advance. He also suggested that mediation might have been
helpful to avoid a contested hearing. He wondered whether it would
have been more appropriate to allocate a case with such great
wealth to a Family Division judge with ancillary relief experience.
Then directions could have ensured that costs did not escalate. In
cases where the sums involved were more modest, he suggested that
cases could best be allocated to the judge dealing with pending
proceedings in respect of the child under s 8 of the Children Act
1989. One difficult feature in making sense of the implications of
this case is its application beyond ‘big money’
circumstances. For many families, the issue of maintenance for
children will be dealt with by the Child Support Agency rather than
the courts. This decision provides guidance for those able to pay
considerably more than the ceiling of CSA assessment. It remains
unclear whether the factors set out in this case can provide a
helpful guide in what might be termed ‘middle income’
cases, where there is some scope for a ‘top up’ order
beyond the CSA assessment, but the absent parent does not have the
funds to meet any reasonable order (as was the case here). In many
ways the reasoning offered by the Court of Appeal was similar to
that seen in the ‘reasonable needs’ cases under the
pre-White approach to
ancillary relief applications. However, the comments of Nicholas
Mostyn QC in GW v RW
[2003] EWHC 611 (Fam), [2003] 2 FCR 289, [2003] 2 FLR 108 (see
below) could be taken to suggest that the CSA assessment is to be
seen as the benchmark in all cases save those involving exceptional
wealth. Subscribers will find a very helpful summary of
considerations in Bodey J’s judgment (at para [76]) which
drew attention to the fact that the length and nature of the
parents’ relationship was not usually significant because the
child’s needs would be the same regardless. Both he and
Thorpe LJ rejected the suggestion that the father’s standard
of living was not relevant. Even though it was true that the father
would not be obliged in law to support his daughter as an adult,
this did not mean that he might not choose to do so. The judge had
been wrong to see the lack of legal obligation as an argument for
preventing her becoming accustomed to a rich life in case of
hardship when she was older.

Reluctance of courts
to accept ‘exceptional contribution’

Norris v Norris
[2002] EWHC 2996 (Fam), [2003] 2 FCR 245, [2003] 1 FLR 1142

BFLS 4A[821.3]

Norris v Norris [2002]
EWHC 2996 (Fam), [2003] 2 FCR 245, [2003] 1 FLR 1142 shows that a
full contribution by the wife, including using her own inherited
funds to invest in the husband’s business during a recession,
was not the same as an ‘exceptional contribution’ such
as to justify an increased share based on unequal contributions.
While most of the case concerns discussion of the particular facts,
Bennett J offers a careful review of the impact of the post-White cases, especially
Lambert, concluding
that it would be rare for an ‘exceptional contribution’
to be identified displacing the expectation of equal division. He
also rejected the suggestion that inherited wealth should be
excluded from the distribution of assets as a distortion of Lord
Nicholl’s speech in White.

Comment: This is
another illustration of the reluctance of the courts to accept
invitations to make close examination of respective contributions
to the family in order to quantify their significance. In the
post-White era, the
balance of contributions between spouses will usually be seen as
equal, although this will not necessarily lead to an equal division
of assets. In relation to distribution the yardstick is fairness,
but in relation to assessing contributions the staring point is
equality. The decision in Lambert v Lambert [2002] 3
FCR 673 has now made this clear. An appeal in relation to costs in
this case has now been heard by the Court of Appeal (see

Ancillary relief in
a medium length marriage where husband’s business already
established at time of marriage

GW v RW [2003]
EWHC 611 (Fam), [2003] 2 FCR 289, [2003] 2 FLR 108

BFLS 4A[821.3]

GW v RW [2003] EWHC 611
(Fam), [2003] 2 FCR 289, [2003] 2 FLR 108 raised a number of
interesting points in relation to division of family assets of some
£12 million. First, the assessment of the duration of the
marriage. The parties had cohabited for eighteen months before they
married. Nicholas Mostyn QC, sitting as a deputy High Court judge,
found that in a case such as this where the parties had moved
seamlessly from cohabitation into marriage, the period of
cohabitation should be included when assessing the duration of the
relationship. However, a period of estrangement during which the
parties separated should not be counted as part of the marriage,
even though they succeeded in reconciling themselves. Consequently,
this was to be treated as a marriage lasting just over 12 years.
Mostyn QC found that there was a fundamental unfairness in finding
that a party who has made domestic contributions during a marriage
of 12 years should be awarded the same proportion of the assets as
one who has made them for more than 20 years. In his view this
justified some departure from equality in this case of a shorter
marriage. The second interesting issue concerned the argument that
the husband’s earning potential had been developed prior to
the marriage and should therefore be treated as a resource that
predated the marriage, not one acquired during it. Mostyn QC found
that the husband’s career was in full flight by the time the
parties’ relationship began so that his earnings could not be
said to be entirely developed through the marriage, as was often
the case. In his view, fairness required departure from equality of
distribution to reflect this fact. As a result, he awarded 40% of
the assets to the wife. He dealt with the difficulties in
liquidating assets or assessing their future value by dividing the
different categories of assets between the parties rather than
seeking to make an overall valuation (following the approach in Wells v Wells [2002] EWCA
Civ 476, [2002] 2 FLR 97). The third issue concerned the starting
point in making financial provision for children. Even though the
Act was inapplicable as the children resided abroad, Mostyn QC
found that the appropriate benchmark was provided by the award
likely to be made under the Child Support Act 1991, as amended. Any
substantial departure from this figure would provide an incentive
to one of the parties to seek an assessment under the Act and
therefore destabilise the negotiated settlement. Finally, the issue
of costs fell to be considered. Mostyn QC noted that the Calderbank system made
little sense in the post-White era. Proceedings
were now concerned with ascertaining shares rather than
‘winning’ an award from the richer spouse, so that the
model on which Calderbank offers were
premised was no longer relevant. He suggested that in big money
cases, the starting point should be no order as to costs, with
adjustment where one party litigates in an unreasonable manner.

Comment: The matter
of costs as now been considered by the Court of Appeal in Norris v Norris; Haskins v
[2003] EWCA Civ 1084 (see below) where it was found
that Mostyn’s approach strayed too far from the rules,
although the policy considerations that he set out were regarded
sympathetically. Nicholas Mostyn rightly noted that White and Lambert both concerned
marriages of considerable length, where both parties had made
substantial contributions to marital life, and had not considered
the application of the principles to shorter marriages. It is not
clear, however, where the division between short, shorter and
substantial marriages should be drawn. It seems just as unfair to
treat a marriage of 12 years in the same way as one of three as to
treat it in the same way as one lasting 20 years. Nor is it clear
why 20 years should be seen as a ‘full length’ marriage
leading to equality of contribution rather than a longer period.
Nor is the basis of the calculation that 40% was the appropriate
proportion spelt out in the judgment. Consequently, this decision
does nothing to provide certainty, although it is helpful in
identifying factors that may justify departure from equality if
distribution. In relation to provision for children, it may be that
Mostyn QC will be seen to have taken a restrictive view of what
children should receive in the light of the Court of Appeal
decision in Re P (a child)
(financial provision)
[2003] EWCA Civ 837, [2003] 2 FCR 481
(see above).


Costs in ancillary
relief proceedings

Norris v
Haskins v
[2003] EWCA Civ 1084, (28 July 2003,

BFLS 4A[1904],

The cases of Norris v Norris; Haskins v
[2003] EWCA Civ 1084 (28 July 2003, unreported),
concern the allocation of costs in family financial disputes and in
particular the current significance of Calderbank offers. The
President found that Mr Mostyn QC in his judgment in GW v RW [2003] EWHC 611
(Fam), [2003] 2 FCR 289 (see above) was wrong to treat the relevant
rule as incomprehensible and to substitute his own approach by
making a decision which was not based on the existing rules. She
noted that his view that the proper starting point should now be
that there should be no order as to costs was also the approach
recommended by the Costs Sub-Committee of the President’s
Committee on Ancillary Relief in its Report. The court was,
nonetheless, obliged to apply the rules unless or until they are
amended. Rule 2.69, as amended, provides the current code on Calderbank offers and had
to be followed until any further rule changes were made. Sub-rules
2.69(1) and (2) gave statutory authority to the Calderbank practice in
ancillary relief proceedings. The starting point in r 2.69B was
whether the offeror offered more or less than the eventual court
order. If less, he or she will pay the additional costs incurred
from 28 days after the offer was made, unless the court considers
it would be unjust to do so. However, under r 2.69D the court must
take into account all the circumstances when assessing whether this
would be just. This enabled the court to look at the whole position
of the parties after the order has been made and see whether costs
fell disproportionately on one party rather than the other. That
enabled a judge or district judge to mitigate, to some extent, the
uncomfortable consequences of a Calderbank situation in a
case where there is some but not a substantial amount of property
and/or money to divide and where costs will have to be paid from
the available capital. The judge, in such a case, could make an
order, often just enough to buy a suitable property for the wife,
and then find that effect of the Calderbank process might
totally destabilise his intentions. Equally, of course, the Calderbank process must
have teeth that can bite. Both parties are under an obligation to
engage in genuine negotiation with the other side, failure to do so
might have to be penalised in costs. The President recognised the
difficulties presented by medium asset cases. She suggested,
however, that r 2.69D gave the court greater latitude in making
costs orders than might have been widely recognised so far.

Comment: This is a
significant decision on an area of uncertainty but great
importance. There is some confusion over both the correct
interpretation of the amended rules and the relationship between
the Civil Procedure Rules and the Family Proceedings Rules. Thorpe
LJ noted that the determination of any question of costs in
ancillary relief proceedings must be governed by CPR 44.3 together
with FPR r 2.69 in its current form, namely rr 2.69, 2.69B and
2.69D. The harmonious integration of these separate codes was in
his judgment best achieved by treating CPR 44.3 as covering all
cases. The President agreed, noting that in so far as the court is
looking at a Calderbank type case, the
exercise under sub-s (4)(c) is better dealt with
under the fuller provisions to be found in FPR rr 2.69, 2.69B and
2.69D. The starting point is therefore the expectation that a party
who holds out unsuccessfully for a better settlement than they have
been offered will bear the costs incurred through the unnecessary
continuation of the litigation. However, the President was careful
to emphasise that, reading the two sets of rules together, the
court has a general and wide discretion to depart from the starting
point of ‘winner takes all’. The extent to which courts
will use this discretion to achieve the solution proposed by
Nicholas Mostyn QC and the Costs Sub-Committee of the
President’s Committee on Ancillary Relief pending a change in
the rules will only become clear after further litigation has
reached the courts. Although criticised for prematurity in his
approach, Nicholas Mostyn QC’s comments in GW v RW [2003] EWHC 611
(Fam), [2003] 2 FCR 289 (see above) on relevant considerations may
well be helpful. He gave a number of illustrations of ways in which
a party might act unreasonably in the litigation leading to their
conduct being taken into account in assessing where costs should
lie: failure to give full and frank disclosure, meritless tactical
posturing, unreasonable and unsuccessful pursuit of a particular
issue, failure to negotiate. These might well be factors that can
be expected to lead to displacement of the starting point that
costs should follow the event. Mostyn QC had also suggested that
there might be differences where the pool of marital assets was
insufficient to meet both the requirements of the parties and their
costs, where the marriage was short or where the assets were
inherited rather than built out of contributions during the
marriage. The President echoed this view in respect of
middle-income cases, but did not consider the other categories.

Medical treatment

HFEA can license
tissue typing to secure child who can be stem cell donor for

R (on the application of
Quintavalle) v HFEA
[2002] EWCA 667, [2003] 3 All ER
257, [2003] 2 FCR 193

BFLS 3A[323]

R (on the application of
Quintavalle) v HFEA
[2002] EWCA 667, [2003] 3 All ER 257,
[2003] 2 FCR 193 concerned the scope of the powers of the Human
Fertilisation and Embryology Authority. The Court of Appeal
confirmed that the Authority had jurisdiction to authorise the use
of tissue typing to identify a healthy embryo that would also have
the potential to donate stem cells that would benefit an existing
child affected by a serious medical problem. That embryo would then
be selected for implantation as part of the mother’s
fertility treatment. The Authority had not before permitted such
tissue typing to enable a potential donor to be selected.
Pre-implantation genetic diagnosis had previously been used only to
screen embryos so that those

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