April 2004

    Butterworths Family and Child Law Bulletin – April
    2004

    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 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.

    Domestic violence

    Sentencing guidelines—concurrent Family Law Act 1996 and
    Protection from Harassment Act 1997 proceedings

    Lomas v Parle [2003] EWCA Civ 1804, [2004] 1 FCR 97

    BFLS 1A[3501], [4034]; CHM 5[252]

    In Lomas v Parle [2003] EWCA Civ 1804, [2004] 1 FCR 97, a wife
    appealed against a sentence of imprisonment imposed on her husband
    for breach of injunctions granted under s 42 of the Family Law Act
    1996, seeking to increase its length. The Court of Appeal was
    required to consider whether the sentence was ‘unduly
    lenient’, not merely whether it would itself have imposed a
    harsher sentence (adopting the approach taken in criminal cases
    when the Attorney General seeks to appeal against sentence, see
    Neil v Ryan [1991] 1 FCR 241). The Court of Appeal found that the
    sentences of four months to run concurrently were unduly lenient
    for a case with such an appalling history. This was the third
    sentence for contempt in relation to violence against the woman and
    the man had flouted the court orders and seized any leniency as an
    opportunity to resume his campaign against the wife. The judge
    seemed to have contradicted himself, noting initially that the
    man’s claim to have reformed was not credible in light of the
    history of the case, but then explaining the sentence as being
    premised on the fact that he had changed his life. The breaches in
    question were very sinister (death threats) and presented in a very
    unpleasant way (razor blades through the post accompanied by
    threats). The Court of Appeal regarded a sentence of less than 10
    months’ imprisonment as unduly lenient, but in fact fixed a
    lesser sentence of eight months to reflect the degree of double
    jeopardy due to sentences passed against him in prosecutions under
    the Protection from Harassment Act 1997 for behaviour directed
    against the wife.

    Comment: The clarification of the role of the court in an appeal
    to increase a sentence for contempt of court in a domestic violence
    case is helpful, but its substance was to be expected. Such appeals
    are automatic and do not require permission, but they will only
    succeed if the sentence is significantly shorter than would have
    been expected. Perhaps of more importance is the guidance given by
    the Court of Appeal on the interaction between the Family Law Act
    1996 and the Protection from Harassment Act 1997. Attention was
    drawn to reasons for choosing one remedy rather than the other. One
    such factor is that s 3(3) of the 1997 Act requires a separate
    application for a warrant of arrest once breach occurs, while a
    power of arrest may be attached to a non-molestation injunction
    under s 42 of the 1996 Act when it is made. However, as counsel
    pointed out, the combined effect of the maximum five year sentence
    for breach of a civil injunction imposed by s 3(6) of the 1997 Act
    and general police powers do in fact make such a breach an
    arrestable offence even without a warrant (see para [24] of the
    court’s judgments). Other factors for selecting a remedy
    include the fact that the victim has little control in criminal
    proceedings and this may prompt use of the 1996 Act rather than the
    Protection from Harassment procedure. It is also possible to use
    both Acts concurrently in order to take advantage of the scope for
    compensation under s 3(2) of the 1997 Act, and if this happens the
    proceedings should be consolidated (para [44]). In relation to
    sentencing where there are proceedings under both Acts in relation
    to the same conduct, the first court should not seek to anticipate
    the sentence in the other proceedings. Instead, the second court
    should take the previous sentence into account to ensure that the
    defendant is not punished twice for the same offence and should
    therefore be fully informed of the earlier proceedings. In general
    terms, however, judges should seek to ensure that there was no
    manifest discrepancy between sentences under the two Acts.

    Jurisdiction

    Jurisdiction where foreign court has reserved jurisdiction to
    itself

    Re D [2003] EWH 565 (Fam), [2003] 2 FLR 1159 (FD)

    BFLS 5A[127]

    In Re D [2003] EWHC 565 (Fam), [2003] 2 FLR 1159 (FD) Bracewell
    J found that she should respect the jurisdiction of the court in
    Virginia, USA, in a contact case concerning a child now resident in
    the UK. The child had been brought to England with the permission
    of the American court, which had reserved jurisdiction to itself.
    While it would not be possible for such a reservation to determine
    jurisdiction in perpetuity, in a case where the foreign court had a
    great deal of information available to it and where it had
    exercised jurisdiction as recently as six months previously the
    issue would be concluded more speedily by that court than by the
    English court taking on the case. While habitual residence was a
    very important factor in cases involving children, it was not
    conclusive. In this case Virginia was the proper forum for the
    case. The mother’s application for a declaration that the
    English court had primary jurisdiction was refused. A stay of the
    English proceedings was issued.

    Comment: While the normal basis for jurisdiction is habitual
    residence, there were clear reasons for respecting the continuing
    jurisdiction of the court in this case. The child had already been
    resident in England at the time of the previous hearing in Virginia
    and the wife’s counsel could have raised the jurisdictional
    issue at that point. The only significant development since that
    time was that the mother had decided that she no longer wanted to
    comply with the order of the court. Having willingly submitted to
    the jurisdiction of the US court six months previously, she should
    not be permitted to seek to litigate in England merely because she
    felt that forum could be more sympathetic to her case.

    Taxation

    (Notes contributed by Philip Wylie, tax editor of the
    service)

    The following is a summary of the principal changes affecting
    taxation of the family which were either announced or confirmed in
    the Budget on 17 March 2004.

    Income Tax

    Rates for 2003/04 and 2004/05:

    2003/04
    starting rate 10% on the first £1,960 of taxable income
    basic rate 22% on taxable income from £1,961 to
    £30,500
    higher rate 40% on taxable income over £30,500

    2004/05
    starting rate 10% on the first £2,020 of taxable income
    basic rate 22% on taxable income from £2,021 to
    £31,400
    higher rate 40% on taxable income over £31,400

    The rate of tax on dividend income plus the related tax credit
    is 10% for a taxpayer who is not liable to higher rate income tax,
    and 32.5% for a taxpayer who is. The rate of tax on certain other
    savings income, mainly interest, is 10% if the income is wholly
    within the starting rate band, 20% (rather than 22%) if the income
    is within the basic rate band, and 40% for a taxpayer who is liable
    to higher rate income tax.

    For 2004/05 the trust rate of tax, payable mainly by
    discretionary and accumulation trusts, is increased to 40% (34% for
    2003/04), and the Schedule F (dividends) trust rate is increased to
    32.5% (25% for 2003/04).

    Personal reliefs for 2004/05 (2003/04 reliefs in
    brackets)

    personal allowance
    under 65 £4,745 (£4,615)
    65–74 £6,830 (£6,610)
    75+ £6,950 (£6,720)

    married couple’s allowance for those over 65 before 6
    April 2000 (restricted to tax relief at 10%)
    65–74 £5,725 (£5,565)
    75+ £5,795 (£5,635)
    minimum allowance £2,210 (£2,150)

    The personal and married couple’s allowance for the over
    65s are reduced by one half of excess of total income over
    £18,900 (£18,300 in 2003/04), but they can never be
    reduced below the ordinary personal allowance or the minimum
    married couple’s allowance.
    blind person’s allowance has been increased from £1,510
    to £1,560.

    Maintenance payments

    For those few maintenance payments which continue to qualify for
    income tax relief (a pre-condition is that one spouse must have
    been over 65 before 6 April 2000), the maximum amount on which a
    10% tax credit can be claimed is £2,210 (£2,150 in
    2003/04).

    WTC and CTC

    The working tax credit and child tax credit rates and thresholds
    for 2003/04 and 2004/05 are:

    2003/04/2004/05
    Working Tax Credit  
    Basic element  £1,525 £1,570
    Couple and lone parent element £1,500 £1,545
    30 hour element £620 £640
    Disabled worker element £2,040 £2,100
    Severe disability element £865 £890
    50+ return to work payment (16–29
    hours) £1,045 £1,075
    50+ return to work payment (30+
    hours) £1,565 £1,610
    Childcare element of the Working Tax Credit  
    Maximum eligible cost for one child per
    week £135 £135
     £200 £200
    % of eligible childcare costs covered 70% 70%
    Child Tax Credit  
    Family element £545 £545
    Family element, baby addition £545 £545
    Child element £1,445 £1,625
    Disabled child element £2,155 £2,215
    Severely disabled child element £865 £890
    Tax credits income thresholds and withdrawal rates  
    First income threshold £5,060 £5,060
    First withdrawal rate (per cent) 37% 37%
    Second income threshold 50,000   £50,000
    Second withdrawal rate (per cent) 6.67% 6.67%
    First threshold for those only entitled to
    CTC £13,230 £13,480
    Income disregard £2,500 £2,500

    Income-producing assets

    Under ICTA 1988 s282 if a married couple have joint legal
    ownership of income producing assets, each spouse is taxed on half
    the income, even if the beneficial ownership of the income is
    unequal.

    However, the couple may elect to be taxed on the income to which
    each is beneficially entitled. From 2004/05, for distributions from
    jointly owned shares in close companies only, the automatic 50:50
    split will no longer apply. Instead each spouse will be taxed on
    that spouse’s beneficial entitlement to the income. Close
    companies are broadly companies which are owned and run by five or
    fewer people.

    Corporation tax

    The Budget proposes a minimum rate of corporation tax of 19% on
    company distributions to non-corporate shareholders. The starting
    rate for corporation tax is 0% if profits do not exceed
    £10,000, and the effect of marginal relief is that the small
    companies’ rate of 19% on total profits is not reached until
    profits are over £50,000. For distributions made on or after 1
    April 2004 there will be a minimum rate of corporation tax of 19%
    on an amount of profits equal to the distribution. The new rule
    will therefore affect a company with taxable profits of up to
    £50,000. The higher charge will not apply if profits are
    retained in the company.

    Capital gains tax

    For 2004/05 the annual exemption is increased from £7,900
    to £8,200. The CGT rates remain unaltered at 10%, 20%, and
    40%.

    Inheritance tax

    The inheritance tax threshold is increased from £255,000 to
    £263,000 for tax charges arising on or after 6 April 2004.

    From 6 April 2005 there will be an income tax charge on a donor
    who has given away an asset (or provided funds to purchase it), but
    who continues to derive enjoyment from the asset. The intention is
    that an annual value should be determined for the use of the asset,
    and that annual value will constitute additional taxable income.
    The new rules will apply to assets disposed of before 6 April 2005
    if there is continued enjoyment of them on or after that date. It
    has been announced that the new rules will not apply to the extent
    that:
    — the property in question ceased to be owned before 18 March
    1986;
    — property formerly owned by a taxpayer is currently owned by
    his spouse;
    — the asset in question still counts as part of the
    taxpayer’s estate for inheritance tax purposes under the
    ‘gift with reservation’ rules;
    — the property was sold by the taxpayer at an arm’s
    length price, paid in cash (whether or not the sale is to a
    connected party); or
    — the enjoyment of the property is no more than incidental,
    including cases where an out-and-out gift to a family member comes
    to benefit the donor following a change in their circumstances.

    Stamp Duty and Stamp Duty Land Tax

    The main rates and thresholds of stamp duty and SDLT as they
    affect individuals remain unchanged.

    Child protection

    Publication of child protection inquiry

    Local Authority v Health Authority (disclosure: restriction on
    publication) [2003] EWHC 2746 (Fam), [2004] 1 FCR 113, [2004] 1 All
    ER 480, [2004] 1 FLR 541 (FD)

    CHM 1[1395]

    In Local Authority v Health Authority (disclosure: restriction
    on publication) [2003] EWHC 2746 (Fam), [2004] 1 FCR 113, [2004] 1
    All ER 480, [2004] 1 FLR 541 (FD) a dispute arose over the
    publication of a ‘Part 8’ review into the care given by
    a foster mother. In fact, as the inquiry considered the position of
    vulnerable adults in the woman’s care as well as children, it
    was wrong to describe it as a review under Part 8 of Working
    Together, which was guidance under the Children Act 1989. The local
    authority wished to publish the first part of the report, which is
    the normal practice in relation to Part 8 reviews. The second part
    of the report was confidential to the agencies involved and
    contained detailed accounts of individual cases. The health
    authority, which had disclosed records to the inquiry, objected to
    publication on the basis that the report had been insufficiently
    anonymised. The foster mother, and the Official Solicitor on behalf
    of the children and some of the vulnerable adults involved, also
    sought to prevent publication of the first part of the report on
    the basis that the individuals concerned would be readily
    identified from the information that it contained. They contended
    that this would breach their rights under Article 8 of the European
    Convention on Human Rights. The local authority applied for an
    order under the inherent jurisdiction of the court for permission
    to publish the report, arguing that the main aim was to publicise
    the lessons to be learnt and relying on Article 10 of the ECHR
    (freedom of expression).

    The first issue concerned the power of the local authority to
    establish an inquiry that went beyond the parameters of a Part 8
    review. Elizabeth Butler-Sloss P held that the authority did have
    the power to do so under the Local Government Act 1972. Although
    the process had been misleadingly described as being carried out
    under Part 8 of Working Together, this did not invalidate the basis
    of the inquiry and the terms of reference had made it clear that it
    extended beyond the issues relating to the children. Nor was it
    ultra vires the authority’s functions.

    A second matter concerned the jurisdiction of the court. The
    local authority conceded this jurisdiction over 5% of the report,
    which was based on health information disclosed to the inquiry
    under court orders previously made by Hughes J and Munby J.
    However, it suggested that it was only in respect of this material
    that the court could exercise supervisory powers under the inherent
    jurisdiction. The President accepted that the court’s
    inherent jurisdiction could only be used to protect the interests
    of those under a disability. Consequently, it could not be
    exercised to protect the interests of the foster mother, the
    adoption agency that had been involved, or the health authority.
    Nor could the law of confidentiality be extended to cover the
    foster mother, although it was noted that not all of the arguably
    relevant lines of judicial authority had been canvassed before the
    court. The court did have jurisdiction to safeguard the interests
    of the children involved. Under this ‘protective’
    exercise of the jurisdiction (following the classification set out
    by Munby J in Kelly v BBC [2000] 3 FCR 509, 530 and adopted by Hale
    LJ in Re S [2003] EWCA Civ 963, [2003] 2 FCR 577 at [14]) the
    interests of the children had to be balanced against freedom of
    expression. It was to be presumed that the local authority should
    be permitted to publish unless that would be so disadvantageous to
    the child that the court was driven to restrain publication (see
    para [79]). Butler-Sloss P took the review that publication would
    lead to a huge amount of media interest, providing headlines for
    the tabloid press dwelling on ‘the more sensational and
    colourful passages’. The home in question would be readily
    identifiable from the information contained in the report and this
    would lead to intrusive and distressing scrutiny of those currently
    living there. The balance was thereby tipped against publication of
    the report.

    Jurisdiction in relation to protection for vulnerable adults is
    less clearly established in the case law. The President noted that
    the most common use of the inherent jurisdiction in relation to
    such persons was to make declarations as to the legality of medical
    treatment, but she held that it was not limited to such
    circumstances. Until legislation was passed dealing with these
    issues, the courts could properly use the inherent jurisdiction to
    plug the gap in protection for adults who were under a permanent
    disability. This had already been seen in relation to questions of
    residence (Re S [1995] 1 All ER 449; Re F [2000] 3 FCR 30) and
    contact (Re C [1993] 1 FLR 940, although this last authority was
    not specifically identified by the President as being what she had
    in mind). Butler-Sloss P held that she was able to exercise a
    ‘protective’ inherent jurisdiction to restrain
    publication of the report in the same way as she could in relation
    to children. The degree of disruption in their lives that could be
    anticipated if the report were published meant that their rights
    under article 8 of the ECHR were engaged. Publication would be
    damaging to their welfare. Even bearing in mind the importance
    attached to freedom of expression under art 10 of the ECHR and
    section 12 of the Human Rights Act 1998, the balance came down
    against publication of the report.

    The court then turned to consider the appropriate orders to be
    made. In respect of the children, there was precedent for the
    making of an order restraining publication. The injunctions were
    continued against disclosure of the material released to the
    inquiry after the court applications before Hughes J and Munby J.
    In relation to the adults, the established remedy was a declaration
    (F v W Berkshire HA [1989] 2 All ER 543). Such a declaration was
    made, but would not of itself bind the local authority not to
    publish. An injunction restraining publication was therefore also
    made. This had been done on an interlocutory basis in Re S [1995] 1
    All ER 449 to preserve the status quo and the Court of Appeal
    decision in that case did not indicate that there had been any
    concern over this procedure.

    Comment: The most significant legal ruling in this case is
    probably that concerning the scope of the inherent jurisdiction to
    protect vulnerable adults. The President cited the reliance of
    Thorpe LJ in Re F [2000] 3 FCR 30, 45, on comments of Lord Goff in
    the leading case on treatment of adults without consent (F v W
    Berkshire HA). Lord Goff had envisaged the need for the common law
    doctrine of necessity to extend beyond emergency life sustaining
    treatment in order to accommodate the situation where a patient was
    permanently incapacitated. Thorpe LJ previously and Butler-Sloss P
    in the present case relied on that observation to justify a general
    supervisory jurisdiction inherent in the court. This is vulnerable
    to two objections. First, Lord Goff was speaking of the powers of
    doctors to treat their incapacitated patients rather than the
    jurisdiction of the court. When he came to consider the
    jurisdiction of the court he found that there was only a
    declaratory jurisdiction, not one based on parens patriae. Second,
    subsequent cases have needed to justify the use of the inherent
    jurisdiction by reference to established legal rights—such as
    physical integrity and the right to associate—rather than a
    general supervisory jurisdiction . It may be that the expansive
    account given of the scope of the right to respect for private and
    family life under Article 8 of the ECHR provides a satisfactory
    basis for a rights based model for intervention. If it does so,
    then it seems possible that the courts will effectively be able to
    recreate the parens patriae jurisdiction despite its lapse in 1959.
    This development would be consistent with the approach taken by
    Munby J in Re S [2002] EWHC 2278 (Fam), [2003] 1 FLR 292.

    A further important aspect of this case was the adverse view
    that the judge took of the quality of the report itself. She noted
    the ‘emotive rather than factual’ tone of the report
    (para [82]). She indicated that she was not satisfied that this
    ‘sensational story’ needed to be told in order to
    support the worthy recommendations that had been made. She
    indicated surprise that a short executive summary had not been
    possible. In her view it had strayed far beyond the balanced
    guidance given in Part 8. The poor quality of the report may have
    served to tip the balance against publication. Perhaps if the
    language used in the report had been more restrained, then the
    court would have felt that the balance fell in favour of
    publication.

    Adoption

    Child freed for adoption despite late identification of possible
    carers within family

    Re M (a child) (adoption) [2003] EWCA Civ 1874, [2004] 1 FCR
    157

    BFLS 3A[3147]; CHM 3[253]

    Re M (a child) (adoption) [2003] EWCA Civ 1874, [2004] 1 FCR 157
    concerned a case in which the local authority had placed the child
    with foster parents within three months of his birth and after six
    months planned to seek a order freeing him for adoption having
    ascertained that there was no-one within the family willing to be
    assessed as potential carers. Six months later, cousins of the
    father came forward for consideration as potential carers. The
    local authority and the guardian felt that this offer had come too
    late and that it would be wrong to uproot the child from the only
    family that he had known. The local authority sought a care order
    and an order freeing him for adoption. The father sought to have
    the proceedings adjourned. Ward LJ noted that the two applications
    had to be considered separately. The care order should be
    determined first (Re O [1999] 2 FCR 262, Re D [1999] 3 FCR 70).
    Only if a care order was appropriate would it make sense to go on
    to consider the freeing application. The judge, however, had failed
    to make this separation. He had granted the father’s
    application for adjournments because he felt that it would not have
    been possible to dispense with his agreement to adoption as his
    wish to explore the possibility of family care was reasonable. The
    proper course would have been to have considered the care order
    application first. The failure to do so led to the local
    authority’s appeal against the adjournment being allowed. The
    Court of Appeal considered that the child’s interests would
    not be furthered by an adjournment. No further evidence was likely
    to emerge that would alter the assessment that, even though the
    father’s cousins were admirable, the boy would be best served
    by remaining with the foster parents permanently. The father had no
    prospect of offering his son a home. As Ward LJ put it, ‘if
    ever… an adoption had a prospect of success, this adoption is
    it.’ Consequently, the application to adjourn the care
    proceedings should be dismissed and a care order made. The Court of
    Appeal then went on to consider the freeing application. A single
    paragraph records the reasoning that the father was unreasonably
    withholding his consent as the advantages of adoption for the
    welfare of the child were overwhelmingly strong enough to justify
    overriding the views and interests of the father. It was not open
    to the court to find that the father was reasonable simply because
    he was personally blameless and was prevented from caring for the
    boy by a serious mental illness.

    Comment: While this decision appears to be the best outcome in
    the interests of the boy in question, its reasoning seems unsound.
    The Court of Appeal criticised the judge for confusing the care and
    adoption proceedings by considering the prospects of dispensing
    with the father’s consent to the adoption as the key to both
    applications for adjournment. Yet the reason given by the Court of
    Appeal for refusing to adjourn the care proceedings was that the
    adoption had a high probability of success and the boy should
    therefore stay where he was (see para [35]). This displays the same
    conflation of the immediate and longer term issues that was seen in
    the county court judgment. This case also shows how the judicial
    reformulation of the test for dispensing with parental agreement to
    adoption as one of whether the benefits to the child are so strong
    as to justify overriding a refusal has taken the law a long way
    away from the statutory wording of ‘unreasonableness’
    on the part of the parent. The father had understandable reasons
    for his resistance to adoption pending the assessment of the care
    that could be given by his cousin with which many would sympathise.
    The essence of the court’s rejection of this approach was
    that his position, while understandable was not the best outcome
    for the child.

    Child support

    Child Support Act survives Human Rights challenge

    R (Kehoe) v Secretary of State for Work and Pensions [2004] EWCA
    Civ 225, [2004] 1 FCR 511

    BFLS 4A[391], CHM 4[94]

    In R (Kehoe) v Secretary of State for Work and Pensions [2004]
    EWCA Civ 225, [2004] 1 FCR 511, the Court of Appeal upheld the High
    Court decision that the Child Support Act 1991 was compatible with
    the European Convention on Human Rights. However, the majority went
    further and rejected the suggestion in Wall J in the High Court
    that rights under Article 6 of the Convention were engaged (see
    [2003] EWHC 1021 (Admin), [2003] 3 FCR 481). In his view (and that
    of Ward LJ in a minority in the Court of Appeal) these rights were
    satisfied by judicial oversight of the system through rights of
    appeal, although judicial review would not have been sufficient.
    The majority of the Court of Appeal found that Article 6 was only
    engaged where there were legal rights that were barred from
    vindication before the courts. There were no rights to maintenance
    outside of the Child Support Act scheme, so there were no prior
    legal rights that were being obstructed. Any rights only came into
    being as part of the Child Support Act scheme. Consequently, the
    claimant had no right exercisable against the father entitling her
    to participate in the assessment or enforcement process.

    Comment: The Court of Appeal clearly found the analysis of the
    connection between the Child Support Act 1991 and rights under
    Article 6 of the ECHR difficult, but all three judges agreed that
    the claimant could not sustain her challenge to the legislation.
    Ward LJ reached this conclusion by finding that even though Article
    6 was engaged, the limitations on access to the court were
    justified as a proportional step towards a legitimate aim, which
    was to improve the child support system. While this decision
    contains some interesting discussion about the nature of rights in
    respect of administrative systems, it lends little support to the
    view that the Child Support Act 1991 is significantly vulnerable to
    human rights challenges.

    Financial provision

    Financial incentive to encourage religious divorce

    A v T (2004) Times, 2 March, FD

    BFLS 4A[2127.2]

    In A v T (2004) Times, 2 March, FD Baron J made a lump sum order
    for the wife of £35,000 in ancillary relief proceedings, with
    additionally a conditional order for an order of £65,000 if
    the husband failed to grant the wife a talaq divorce within a
    specified time. The two predominant factors were that the marriage
    had lasted only seven weeks, and the cultural context. The court
    had to take into account the pre-marital agreement, which settled a
    substantial sum of money on the wife. It also had to consider how
    the Iranian courts would have dealt with the matter. If the husband
    were to divorce the wife by talaq or to refuse to divorce her, then
    under Sharia law she would be entitled to retain her marriage
    portion. However, if the wife wanted a khula divorce, she would
    need to negotiate what portion of her marriage portion she would
    sacrifice in order to obtain it. In this context Baron J was
    satisfied that her order would be equitable.

    Comment: It is not clear from the brief Times report whether
    Baron J was intending to achieve the same outcome as she believed
    would have occurred in Iran, or whether she was seeking to offset
    the possible inequity that might have occurred if the husband
    refused to issue a talaq. Talaq is a form of unilateral divorce,
    available only to the husband. Khula is a consensual divorce that
    can be initiated by the wife but which requires the husband’s
    consent. The protection of the wife from the economic consequences
    of a talaq divorce that is provided by the ‘marriage
    portion’ system is not secure in a khula because of the scope
    for negotiation over the ‘price’ of the husband’s
    consent. Baron J’s order seems to have been aimed to ensure
    that the wife maintained her financial rights under a talaq divorce
    by providing an incentive for the husband to use that process
    rather than force the wife to negotiate a khula. It is uncertain
    how far this could also be seen as an indirect mechanism for
    enforcing a pre-marital agreement. It should be noted that in
    relation to Jewish marriages, a different route is available for
    difficulties that arise in cases where one party declines to
    arrange a religious divorce after a secular decree has been issued.
    The Divorce (Religious Marriages) Act 2002 provides for the court
    to refuse to make a decree of divorce absolute until steps have
    been taken to secure a religious dissolution of the marriage. This
    power can be extended to other faiths by statutory instrument, but
    this has not yet happened. It is not clear whether this would have
    provided a solution in the present case because it would work only
    where the husband wished the divorce to go through. If nothing
    else, however, the case demonstrates that it is not only in
    relation to Jewish marriages that the law needs to be able to take
    into account the interaction between secular and religious marital
    status.

    Human Rights

    ECHR not place to determine paternity dispute

    Haas v Netherlands (App No 36983/97) [2004] 1 FCR 147, [2004] 1
    FLR 673 (ECHR)

    BFLS 5A[4000]

    In Haas

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