Bulletin no 95
Geraldine Morris, BSc
Solicitor and mediator, technical editor
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 Children.
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 Service and Clarke Hall and Morrison on Children. References are also included, where relevant, to Rayden & Jackson on Divorce.
Marriage and civil partnerships
Consideration of validity of foreign same sex marriage
Wilkinson v Kitzinger 
EWHC 2022 (Fam),  All ER (D) 479 (Jul)
BFLS 1A; Rayden Noter-up 1(1) 14.10
This was a decision of Sir Mark Potter as to the recognition and validity of a same sex foreign marriage. The petitioner and the first respondent had gone through a form of marriage, lawful and valid by the law of British Columbia that permitted, and recognised as valid, marriages between persons of the same sex.
Upon their return to the UK, and in advance of the coming into force of the Civil Partnership Act 2004, the petitioner, supported by the first respondent, issued proceedings for declaratory relief.
The petitioner applied to the court for it to give effect to the MCA 1973, s 11(c) and s 1(b) and ss 212–218 of the 2004 Act in such a manner as to recognise same-sex marriages, lawfully effected in other jurisdictions, as valid in English law. Alternatively, the petitioner sought a declaration, under the Human Rights Act 1998, s 4(2) that the relevant statutory provisions of the 1973 and 2004 Acts were incompatible with her rights enshrined in the European Convention on Human Rights.
The petitioner submitted that the provisions of the 1973 Act and the 2004 Act, which on their face precluded recognition of a marriage between persons of the same sex, amounted to a violation of her Convention rights under Arts, 8, 12 and 14. The intervener contended that all forms of relief claimed were essentially misconceived because the statutory provisions were clear and were compatible with the petitioner’s Convention rights.
The applications were dismissed.
Comment: In this important decision, the President of the Family Division, Sir Mark Potter, took the view that by the Civil Partnership Act 2004, Parliament had accorded formal recognition to relationships between same-sex couples (which had all the features and characteristics of marriage save for the ability to procreate children) at the same time as preserving and supporting the concept and institution of marriage as a union between persons of opposite sex and gender.
Civil partnerships give same-sex relationships effectively all the rights, responsibilities, benefits and advantages of civil marriages save the name, and thereby remove the legal, social and economic disadvantages suffered by homosexuals who wished to join stable long-term relationships.
To the extent that by reason of that distinction it discriminated against same-sex partners, such discrimination had a legitimate aim, was reasonable and proportionate, and fell within the margin of appreciation accorded to Convention states.
Child seeking to be added as a party to proceedings; application of FPR 1991 r 9.2A
Re H (a child: child abduction) 
All ER (D) 302 (Jul)
BFLS 3A; CHM 1; Rayden 1(2) 37.113
H was a 15-year-old girl. Her parents were divorced. Her country of habitual residence was South Africa, where she lived with her mother, although her father lived in the UK. She spent alternate school holidays with her father in the UK. After one such holiday, she refused to return to South Africa.
The mother commenced proceedings under Pt 1 of the Child Abduction and Custody Act 1985, and the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), seeking H’s return to South Africa. H applied to be added as a party to those proceedings.
The judge applied settled authority, stating that it was only in exceptional circumstances that a child would be joined to proceedings under the Hague Convention. He found that no such exceptional circumstances existed in the instant case, and refused the application. H appealed.
She submitted that the judge had erred in finding that there were no exceptional circumstances, given, inter alia, her age. She also submitted that the exceptional circumstances test should no longer be applied to applications to join a child as a party to Hague Convention proceedings, since in family proceedings a child would be joined to proceedings, if she were able to understand them, and give instructions in relation to them, pursuant to FPR 1991, r 9.2A.
She submitted that the test in relation to Hague Convention proceedings should be revised in the light of modern attitudes to the autonomy of children.
The appeal was dismissed and the suggestion that the exceptional circumstances test should be in any way relaxed was firmly rejected.
Comment: The Court of Appeal confirmed that FPR 1991, rr 9.2, 9.2A and 9.5 only regulate the participation of children in proceedings after they have crossed the first fence to obtain party status. In the rare reported cases in which a child had been granted separate representation in Hague proceedings, those cases generally had something close to a public law dimension.
In the instant case, the judge at first instance had been correct for the reasons that he had given.Per curiam: if the test for the grant of party status to children in child abduction proceedings is to be revised in any direction at all, it should be made more rather than less stringent. Child abduction cases must be conducted more summarily in order to comply with obligations under international and EC law.
Inheritance Act 1975
Whether the claimant’s immigration status reduced award under the Inheritance Act (Provision for Family and Dependants) 1975
Witkowska v Kaminski 
EWHC 1940 (Ch),  All ER (D) 357
BFLS 4A; Rayden 1(1) 23.5
The defendant was the son of the deceased who had died wholly intestate, and was solely entitled to the deceased’s estate under the intestacy. The claimant was a Polish national who had first entered the UK on 10 January 1997 on a six-month tourist visa. The claimant met the deceased at a centre for Polish nationals and by July 1997, she and the deceased lived together in his house as if husband and wife.
During the period 6 October 1997 to 3 March 1999, the deceased made several cash transfers to the claimant’s Polish bank account to the value of £6,000. The claimant returned to Poland for short periods during that time and each time she re-entered the United Kingdom, she did so on a six-month tourist visa. The claimant continued to live with the deceased until she returned to Poland on 18 June 2002, to attend her nephew’s wedding. The deceased gave her £2,000 when she left and thereafter he sent her four payments of £250, the last being dispatched on 12 August 2002.
During her absence the couple exchanged correspondence and there was evidence that they had spoken on the telephone, although there was also evidence that the deceased was uncertain when, if at all, the claimant would be returning to the UK. The deceased suffered an accident on 27 September 2002.
The claimant returned to the UK to be with him on 6 October 2002, but he had died earlier that day. The claimant brought proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, by which she sought maintenance from the deceased’s estate on account of her having been maintained by the deceased at the date of his death.
The court found that she was entitled to relief under s 1(1)(e) of the Act and assessed £50 per week as a reasonable financial provision for her maintenance out of the deceased’s estate to enable her to be sufficiently maintained in Poland.
The court found that that conclusion was justified on the ground that it had been clear from the deceased’s actions that, at the time of his death, he had expected the claimant to return to Poland. The claimant challenged that finding and the defendant cross-appealed.
The claimant submitted that the court had failed to have regard to s 3(5) of the Act, requiring the court to ‘take into account the facts known to the court at the date of the hearing,’ in reaching its conclusion. By the time of the hearing, the claimant had been in the UK for eight years, wished to remain here, and by reason of Poland’s accession to the European Union, she was no longer an illegal overstayer.
The court had failed to take into account the passage of time from the deceased’s death. Further, it was submitted that the court had infringed Art 12 of the EC Treaty. In making the award, effectively forcing the claimant to return to Poland, the court had discriminated against her on the grounds of nationality.
The defendant cross appealed and submitted that the court had erred in finding that the claimant was eligible for relief under the Act. The court had allowed the claimant to obtain a benefit or an advantage upon reliance of her own unlawful act. The court had further erred because the claimant had been in Poland for several months immediately prior to the deceased’s death and the settled basis of the maintenance arrangement had come to an end.
The appeal and cross-appeal were dismissed, Blackburn J concluding that the court had not failed to take into account the events that had transpired after the death of the deceased. The judgment of the court had made numerous references to the facts and matters that had occurred after the death of the deceased.
In addition Art 12 of the EC Treaty was expressly stated to only apply within the scope of application of the Treaty. The EC Treaty had no application to the substantive law of succession to a deceased’s party estate. In the instant case, the claimant’s appeal on the ground that she had been discriminated against on the ground of nationality failed. In any event, even after the accession of Poland, the claimant had still been an illegal overstayer. Furthermore, it was clear that the deceased had expected the claimant to return to Poland after his death.
Comment: The court made it clear in its judgment that there was no requirement under the Act that the claimant’s ability to claim depended upon her being legally resident in the UK, nor should such a requirement have been read into the Act.
In the instant case, the question that the court had to decide was one of pure fact. It had asked itself whether two years prior to his death the deceased and the claimant had lived as husband and wife in the same household, and had concluded that they had. There had been no requirement for the court to consider the legality of the claimant’s status in the country.
Gully v Dix  All ER (D) 162 (Jan) was applied.
Mark v Mark  All ER (D) 370 (Jun) was considered on the issue of immigration status and overstaying, on the basis that the wife’s unlawful presence in this country was no bar to her ability in Mark v Mark to establish habitual residence and domicile in this country so as to ground jurisdiction in the court under s 5 of the Domicile and Matrimonial Proceedings Act 1973 ‘so also was the claimant’s unlawful presence in this country no bar to her ability to invoke the court’s jurisdiction under the Act to make reasonable financial provision for her out of the deceased’s estate’.
Circumstances in which ‘stellar performance’ will be taken into account and the treatment of offshore assets
Charman v Charman 
EWHC 1879 (Fam),  All ER (D) 32 (Aug)
BFLS 4A; Rayden Noter-up 1(1) 16.79
This judgment of Coleridge J has been awaited with interest. The parties married in 1976 when neither had significant resources. In 2003, the husband took up residence in Bermuda and separated from the wife, who remained resident in England. The wife issued a petition for divorce, which included an application for ancillary relief. The grand total of all resources held by the parties consisted of £131,323,000, broken down as to £6,634,000 in the wife’s name, £56,564,000 in the husband’s name and £68,125,000 in a trust fund.
The wife argued that the parties had a long marriage during which all the wealth was generated from scratch. She had played her full part as wife and mother of two sons, and fairness dictated that the fortune generated during their marriage should be split evenly.
However, she was prepared to accept a 45/55 % split to recognise the husband’s special contribution to the generation of the wealth if, despite her submissions, the court were to hold that in the instant case that was a factor properly to be taken into account in the divisionary process.
The court ruled that the instant case was one of the very small category where, wholly exceptionally, the wealth created was of extraordinary proportions from extraordinary talent and energy. Taking everything into account, the wife would be entitled to a total of around £48m, just under 37% of the total of the assets.
Comment: Of significant importance is the treatment of the substantial Bermudan assets, the husband having sought to persuade the court that they should not be put into the matrimonial ‘pot’. He failed in this argument due to the lack of an accompanying letter indicating ‘dynastic intent’ and further the court took the view that the trust was a traditional discretionary trust of which the husband was a potential beneficiary.
Conduct also reared its head, with the court taking a fairly dismissive approach to what it viewed as ‘back door’ attempts to refer to the wife’s alleged unsupportive conduct.
In exceptional cases the argument of stellar performance lives on, as previously dealt with in Sorrell v Sorrell  EWHC 1717 (Fam),  All ER (D) 104 (Oct).
In his judgment in the House of Lords in Miller v Miller; McFarlane v McFarlane, Lord Nicholls accepted that whilst the concept remained, it was of extremely limited application.
Consideration of conduct under Family Law Act 1996 distinguished from Miller/McFarlane
Lake v Lake  All ER (D) 297 (Jul)
BFLS 1A; Rayden Noter-up 1(1) 16.79
The wife applied for an order under the FLA 1996, Sch 7, para 5 to transfer a joint tenancy held with her husband into her sole name. She made various allegations of misconduct against her husband, some of which were admitted by the husband, including excessive consumption of alcohol, burning some of her clothing, forcing her to stay in the bathroom, and breaking undertakings. The judge made the order sought, on the basis, inter alia, of the husband’s admitted misconduct.
The husband appealed. He submitted that it was impermissible for the judge to have had regard to his misconduct, pursuant to Sch 7, para 5 to the 1996 Act. Paragraph 5 provided that a judge, in considering whether to exercise his discretion to order a transfer of a tenancy, might have regard to the factors set out in s 33(6)(a), (b) and (c), which related to his discretion to oust a party’s occupancy of premises, but para 5 did not provide that the judge should have regard to s 33(6)(d), which provided that the judge should have regard to the conduct of the parties. He also relied on House of Lords authority that a party’s misconduct could not be considered with regard to orders under the MCA 1973, s 25 (Miller/McFarlane).
The appeal was dismissed upon the basis that it was not impermissible for a judge to have regard to a party’s admitted misconduct, in considering whether to transfer a tenancy to one of the parties, pursuant to Sch 7, para 5 to the 1996 Act. A contrary construction would run counter to all good sense. If the absence of express reference in para 5 to s 33(6)(d) were construed as placing such a fundamental limitation on the exercise of the court’s discretion, all sorts of practical difficulties would arise as to whether something was or was not conduct.
Although s 25 of the MCA 1973 contained such an express limitation on judicial discretion, no such express limitation could be found within Sch 7. If judges were to exercise what was often a difficult and finely balanced discretionary judgment under Sch 7, it was extremely important that they should look at the case in the round, and have regard to all relevant circumstances.
In the instant case, it followed that the judge had been entitled to take account of the husband’s admitted misconduct.
Miller v Miller; McFarlane v McFarlane  3 All ER 1 was distinguished.
Comment: This judgment illustrates a slightly different approach to conduct, the judge distinguishing the approach under a Sch 7 application from the extensively examined approach under s 25 of the MCA 1973.
See Bulletin 94 for further consideration of financial conduct under s 25 in M v M  All ER (D) 58 (Jun).
Correct approach on appeal to vary ancillary relief order
Warner v Warner  All ER (D) 350 (Jun)
BFLS 4A; Rayden E
Warner v Warner was a Court of Appeal decision concerning the variation of an ancillary relief order made by a district judge, and whether the circuit judge on appeal impermissibly re-examined the facts and credibility of the parties.
The parties were married for over 20 years, before they separated and began divorce proceedings. They had two adult children, a modest house, which was sold by agreement, and an endowment policy. The husband was in secure employment, earning £30,000 a year, before tax.
The wife came from an affluent family. Her father had sold his business for several millions of pounds. Much of the purchase price had consisted of loan notes redeemable in 2010. Some of those loan notes had been gifted to the wife. Prior to redemption, she was entitled to an income, at a rate considerably over the current base rate, and she could draw down some capital, in each successive year, resulting in an annual income of £17,000. The wife’s mother continued to live in a valuable property, and had provided for its equal division among her four children. She had also lent £20,000 to the wife, had provided for holidays, and had given her presents.
The wife had, however, not worked for over 20 years, had no qualifications, and there was medical evidence to the effect that she suffered from a degenerative back condition. She now had a new partner.
After an oral hearing, the district judge ordered that the net proceeds of the sale of the matrimonial home and the endowment policy be divided equally between the parties. He ordered a clean break and the reciprocal dismissal of the parties’ claims. He found that the wife depended on the income from the loan notes.
The husband would keep the pension fund and the contents of the former matrimonial home. The wife would keep the loan notes and her reversionary interest. The husband appealed to a circuit judge, arguing that the district judge had erred in not dividing the illiquid assets, ie the loan notes and the reversionary interest, equally between the parties. At the hearing of the appeal, he also attacked the wife’s credibility. The circuit judge found that the illiquid assets ought to be divided equally between the parties.
He found that the wife would be supported by her new partner, and by the generosity of her mother, contrary to the findings of the district judge, and without any further oral hearing.
The wife appealed. She submitted that the district judge’s order had not been plainly wrong, since he had concluded that the wife’s retention of the loan notes and the reversionary interest was balanced by the husband’s retention of his pension rights, the chattels, and the benefit of a ‘clean break.’
She also submitted that the circuit judge had impermissibly come to findings of fact contrary to those of the district judge, without any evidential basis.
The appeal was allowed upon the following basis:
(1) The district judge had not fallen into the errors for which he had been indicted. He had not excluded the benefits in reversion or suspension, but had brought them into the general balancing exercise in a way that was defensible.
It was quite plain that he had carried out a relatively sophisticated balancing exercise. He had considered the fact that he was terminating the wife’s claim to periodic payments; the fact that the husband was in secure employment, during which he could build up pension rights; and the fact that the husband had retained the chattels. He had also considered the fact that the wife had the benefit of the reversionary interest in her mother’s home; the benefit of a generous mother; and in the short-term income from the loan notes.
(2) It could not be overemphasised that the circuit judge before whom an appeal was listed had to uphold the findings of the district judge, unless he had received fresh evidence, or the district judge’s findings were contrary to the evidence. It was particularly difficult to challenge on appeal findings of the district judge on the credibility of witnesses when he had heard oral evidence from them.
Comment: A Court of Appeal decision of interest, not because of a particularly novel point of law, but for its useful guidance as to the correct approach upon appeal. In the instant case, the circuit judge had been drawn into an impermissible re-examination of facts and the relative credibility of the parties and the order of district judge was restored.
Implications of sale of former matrimonial home and the impact upon the children of the family
E v E  EWCA Civ 843,  All ER (D) 303 (Jun)
BFLS 5A; Rayden 1(2) 43.56
E v E was a Court of Appeal decision as to whether the judge at first instance had failed to analyse the implication of the sale of the former matrimonial home upon the children upon acceding to the mother’s proposal.
The parties were the parents of four children born between March 1996 and March 2003. At the time the parties’ proceedings came before the county court they were still living in the matrimonial home, taking it in turns to temporarily vacate the property to allow the other to live in the house for the purpose of looking after the children.
In July 2004, the judge made a shared residence order legislating for the division of the children’s time up to the end of the 2004 summer holidays. The mother was to remain in the matrimonial home with the children. The father obtained rented accommodation close to the former matrimonial home. Subsequently, the mother sought to vary the residence order and the application was combined with the parties’ cross-applications for ancillary relief.
It later transpired that the mother was seeking a sole residency order and an order that the matrimonial home be transferred into her sole name so it could be sold enabling her to move.
The judge, inter alia, found that the shared residency order should remain, but accepted the mother’s proposal to sell the matrimonial home and move. The father appealed against the latter aspect of the judge’s decision. The mother appealed against the refusal of her application for a sole residence order.
The appeals were allowed. Wall, Maurice Kay and Wilson LJJ taking the view that the judge’s approach to the question of the children’s residence was plainly flawed, requiring the question to be thoroughly reviewed. In abnegating the court’s responsibility for deciding what was in the children’s best interests, and entrusting that responsibility to the mother, the judge had accepted her proposals without any proper analysis of their implications for the children. In addition there would be a rehearing of the financial issues, which were clearly interlinked.
Comment: This case illustrates the conflict which may arise in cases where the court is considering financial issues in conjunction with a dispute as to the residence of the children. Wall J expressed concern in his judgment as to the level of costs which had been incurred to date and would be further incurred at a rehearing. With this in mind the court provided useful guidance for the benefit of the judge who would rehear the matter and allocated a High Court family judge for the rehearing.
Wall J took analogy with the line of cases which begins with Poel v Poel  1 WLR 1469 and most recently in P v P 2001] Fam 473. He gave the example of a mother with a residence order who wishes to relocate abroad with her children where the children’s father objects and concluded that function of the court is to decide whether or not the relocation is in the best interests of the children.
In that context, the judge’s duty is to subject the mother’s relocation proposals to rigorous scrutiny, and (assuming the mother to be acting bona fide) to balance their benefits for the children, and the effect on the mother of refusing her application, against the effect on the children of the disruption of their relationship with their father.
Wall J considered that the fact that the mother did not require the formal leave of the court in this case was beside the point. If it was doubtful as to whether it was in the interests of the children to move, the court would need to consider whether it would be preferable to attach a condition to any continued residence order, shared or otherwise, in favour of the mother that they should continue to reside at the former matrimonial home or indeed to invest their sole residence in the father.
In relation to the financial order, this was dealt with more succinctly, in departing from equality post White v White  1 AC 596 without explanation or reasoning this was described as ‘not only internally inconsistent, but plainly wrong’.
Inter-relationship between the provisions of Pt III of the Children Act 1989 and Pt VII of the Housing Act 1996R (on the application of M) v Hammersmith and Fulham London Borough Council  EWCA Civ 917,  All ER (D) 41 (Jul)
BFLS 3A; CHM App B
Consideration by the Court of Appeal as to whether the local authority should have identified the claimant as a ‘child in need’.
The claimant, aged 18, was asked by her mother to leave home when she was 17. She had at no point in her life been in local authority care. The claimant went to the defendant local housing authority’s housing department and stated that she was homeless. She was provided with temporary bed and breakfast accommodation under the Housing Act 1996 and the Homelessness (Priority Need for Accommodation) (England) Regulations 2002.
Her application for permission to apply for judicial review of the authority’s decision was refused, but her appeal was allowed by a single Lord Justice, and the substantive application for judicial review was retained in the Court of Appeal.
The claimant submitted that the authority: (i) should have identified her as a child in need under s 17(1) and (10) in Pt III of the Children Act 1989; and (ii) should have provided her with accommodation under s 20 of the 1989 Act. She submitted that the authority’s action in providing her with temporary accommodation under the 1996 Act was unlawful, and that as a consequence she had been deprived of the services which would have been available to her at the age of 18, had the provisions of the Children (Leaving Care) (England) Regulations 2001 been applied to her, and had she, in particular, been treated as ‘a former relevant child’ pursuant to s 23C of the 1989 Act.
The application was dismissed.
Comment: The Court of Appeal made it clear that faced with a person in the claimant’s position, the authority had to act at once. However, in areas where a local authority’s housing functions were separate from its social services functions it would be absurd if a housing department had to turn away a homeless 17-year-old who had never been in care or ‘looked after’ by a local authority on the ground that social services owed her a duty to accommodate her under s 20 of the 1989 Act as a ‘child in need’, and because, for that reason, she did not qualify as being in priority need for housing under s 188 of the 1996 Act.
It was of considerable importance that s 188(1) of the 1996 Act only required the authority to have ‘reason to believe’ that the terms of the sub-section were met. It was, accordingly, dealing with ‘apparent’ priority need, and was entitled to act accordingly. Before the fuller duty under s 193 applied, there was plainly a duty to investigate.
On the day that the claimant had sought help from the authority, she was not a ‘relevant child’ within the terms of s 23A(2) of the 1989 Act.
Had she, for example been asked if she had ever been in care or looked after by the authority, the truthful answer would have been ‘no’. She could, however, have properly appeared to the authority to be someone who might fall within reg 3(1) of the 2002 Regulations.
It followed that, at that date, she fulfilled the criteria laid down in s 188 of the 1996 Act, and it was accordingly lawful for the local authority to believe that she was a person in priority need. It was not, therefore, incumbent on the housing officer dealing with the claimant to assume that she was a ‘child in need’ under s 17 of the 1989 Act.
She was plainly not disabled, and there was nothing in the evidence to suggest that she presented as unwell, either physically or mentally. Her complaint was that she was homeless.
Per curiam: The outcome of the instant case should not be seen as, in any way, either limiting or relaxing the duties of local authorities both to investigate the circumstances of those under 18 who may be in need, and, where appropriate, to make provision under Pt III of the 1989 Act for them.
In particular, this judgment should not be read in any sense as relieving local authorities of their obligations under Pt III in general and, in particular, of their duty to identify and accommodate children in need under ss 17 and 20 of the 1989 Act.
Reversal of Court of Appeal decision transferring residence to non-biological parent
Re G (Children) FC  UKHL 43
BFLS 3A ; CHM 1; Rayden Noter-up 1(2) 39.56
With a leading judgment by Baroness Hale of Richmond, the House of Lords reversed the earlier decision of the Court of Appeal when the non-biological parent in a same-sex relationship had successfully secured a residence order.
The background of this matter is set out in the earlier judgment Re G (Residence: Same-Sex Partner)  EWCA Civ 462,  1 FCR 681 and concerned a lesbian couple who made the conscious decision to have children together, who together arranged for anonymous donor insemination at a clinic abroad, and who brought up the children together until their relationship broke down.
That decision was reversed by the House of Lords upon the basis that the court had not had enough regard to the biological basis of the appellant’s relationship with the childre