Family Law News & Updates

21st June – QMY v GSS FACV 13/2016 – Four questions arose on this appeal: First, does the Court have jurisdiction to entertain applications under the GMO in respect of a child who is neither ordinarily resident nor present in Hong Kong?  Secondly, if such jurisdiction exists, does the Court have a discretion to decline jurisdiction other than on forum non conveniens principles? Thirdly, if it has such a discretion, what are the criteria to be considered in deciding whether jurisdiction should be declined?  Fourthly, if the appellant succeeds in establishing jurisdiction under the GMO or inherent jurisdiction, whether the Judge’s dismissal of the respondent’s forum non conveniens stay application stands?  See Press Summary – here 

11th AprilWork v Gray [2017] EWCA Civ 270 – UK Court of Appeal takes the opportunity to revisit the concept of ‘special contribution’ – inter alia, the question ‘What is the proper approach to the determination of whether a party has made a special contribution which, in the application of the sharing principle, justifies an unequal division of marital wealth?’ Good synopsis in Family Law Week 

5th April – QMY v GSS [2015] 4 HKLRD 641 – The CFA have granted leave to appeal on the following question of law in FAMV No. 24 of 2016. The appeal will be heard on 17th May 2017.

(a)   Does the Court have jurisdiction to entertain applications under the Guardianship of Minors Ordinance, Cap. 13 (“GMO”), in respect of a child who is neither ordinarily resident nor present in Hong Kong? We grant leave to appeal on the following questions of law:

(b)   If such jurisdiction exists, does the Court have a discretion (whether by reference to the Court’s inherent jurisdiction or otherwise) to decline jurisdiction other than on forum non conveniens principles?

(c)   If it has such a discretion, what are the criteria to be considered in deciding whether jurisdiction should be declined?

  1. We also grant leave on the “or otherwise” ground on the basis that if the applicant succeeds in establishing jurisdiction under the GMO or inherent jurisdiction, the question of whether the Judge’s dismissal of the respondent’s forum non conveniens stay application stands is a question which ought to be dealt with by the Court for the effective disposal of the appeal.

22nd March –  Revised Bar Code Code of Conduct comes into effect on 20th July 2017

1st January 2017 – Case Management –  Important new case management measures come into effect today. See Case-Management Directions January-2017  There are four Appendices: ‘Suggested Directions Preliminary for Issues’ Appendix-A;  Preliminary Issue Checklist’ Appendix B ; ‘Ancillary Relief Checklist’ Appendix C; and ‘Suggested Directions for Children Matters’ Appendix-D

30th December 2016 – Urgent NEW Rules  – Important CA decision on Enforcement Procedure for Judgment Debt – Following Mubarak v Mubarak [2001] 1 FLR 698 – YBL v LWC CACV 244/2015 [2017] 1 HKLRD 823 – ‘as a matter of Hong Kong jurisprudence and the legislative framework underpinning Rule 87, we are satisfied that a judgment debtor can only be committed to the prison under the judgment summons if the court is satisfied beyond reasonable doubt that he or she is able to satisfy the judgment wholly or partly or has disposed of assets with a view to avoiding satisfaction of the judgment wholly or partly. In other words, imprisonment can only be ordered when one of the criteria in Order 49B Rule 1B(1) of The Rules of the High Court, Cap 4A is satisfied’.  At para 113 the CA concluded: ‘Following from the analysis and the remedial interpretation we give to rule 87 above, there is an urgent need to revise the current practice for the judgment summons regime.  The best way forward is of course to amend Rule 87.  But unfortunately, experience shows that such a course is likely to take considerable time.  Pending legislative amendments, it would be necessary to issue a practice direction to set out the proper practice.  We urge the judge in charge of the Family Law List in the High Court and the judges in the Family Court to give the matter immediate attention and to issue practice direction setting out the procedures for the judgment summons regime having regard to Articles 10 and 11 of HKBoR.  The Family Court should also consider publishing leaflets and standard forms to assist and guide litigants in person in applying and defending judgment summons.  In this connection, the Director of Legal Aid would also have to review the current policy of not providing representation in judgment summons.

31st May – Use of Warship in absence of Hague route (Taiwan) – C v N [2016] HKEC 714; HCMP 154/2016 (16 March 2016) 

13th April – Removal of a Child out of Hong Kong – the Matrimonial Causes Rules (Cap 179A), r 94(2) was repealed on 5th April 2014. The reason for the repeal is because on the same date the Child Abduction and Custody Ordinance (Cap 512) (CACO) was amended to reflect recommendations in the LRC Report on “International Parental Child Abduction (April 2002) – never let is be said that HK rushes into amending legislation! There are many substantial amendments to the CACO, including Location Orders (s. 15) Mirror Orders (s.16) Recovery Orders (s.17) and Prohibition Orders (s.21). Of course, most of the amendments attach to Hague applications for unlawful removal. However, the frequently used ex-parte application under MCR r 94(2) on prevention of removal of a child from Hong Kong now arises under Part 3, s.21 CACO (Cap 512) as amended.

1st April – Practice Direction 15.13 – CDR Procedure is made permanent, with minor amendments to Form J.

3rd February – Landmark judgment on ‘Habitual Residence’ – see para 27ff – The Supreme Court handed down judgment in the case of In the Matter of B (A child) [2016] UKSC 4 and has allowed (by a majority of 3 to 2) an appeal by a non-biological mother of a child, holding that the unilateral removal of the child to Pakistan by the biological mother did not cause the child to lose her English habitual residence, and that the English court retained full jurisdiction to make decisions about her welfare. At para 25 “The consequence of the conclusions reached in the lower courts, in both of them by judges of great experience in the field of family law, is that applications intended to secure for B a continuing relationship with the woman who, with the respondent’s consent, has acted as one of her parents and who, even for the two years following the separation, managed to maintain a significant, loving presence in her life have been dismissed without any appraisal of B’s welfare; without any knowledge of her current situation; without any collection of her wishes and feelings; and in circumstances in which no such applications can be entertained in any other court. 26. Is it correct that, by the clandestine removal of her to Pakistan, the respondent has placed B’s interests beyond all judicial oversight? The Court of Appeal’s affirmative answer is arresting. It demands this court’s close scrutiny.”

1st February – “Parental Responsibility” – new SWD handbooks (in English and Chinese) for separating/divorcing parents and children – link here

25th November – Following HKLRC Report on Child Custody and Access (March 2005‘), the Labour and Welfare Bureau (‘LWB’) has today published it draft Bill, following extensive public consultations. The LWB invites views on the draft Bill before 25 March 2016 – Children Proceedings (Parental Responsibility) Bill See the Draft_Bill here.

14th October Two landmark UK Supreme Court Judgments (both delivered on the same day) that “Full and frank disclosure is required of all parties” In Sharland v Sharland [2015] UKSC 60 the consent order will not be sealed and Mrs Sharland’s application for financial relief will return to the Family Division of the High Court for further directions. Lady Hale gives the only judgment. In Gohil v Gohil [2015] UKSC 61 The husband owed a duty to the court to make full and frank disclosure of his resources, without which the court would be disabled from discharging its duty under s. 25(2) of the Matrimonial Causes Act 1973. One spouse cannot exonerate the other from complying with this duty – the Court reinstated Moylan J’s original order. Lord Wilson gave the main judgment and Lord Neuberger gave a short concurring judgment.

27th August – Hague Convention LCYP v. JEK [2015] HKCA 407; CACV 98/2015  – inter alia review of the principles on habitual residence under the Hague Convention in BLW v. BWL [2007] 2 HKLRD 193  – see Court of Final Appeal’s judgment of Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45 which construed ‘ordinarily resident’ in Article 24(2)(4) of the Basic Law.

19th August – QMY v. GSS [2015] HKCA 390; CACV 68/2014 – Guardianship of Minors Ordinance (Cap. 13), inherent jurisdiction of the Family Court over child not present in Hong Kong, stay of proceedings.

29th June – Practice Direction 15.15 – in force 2nd July 2015 – deals with the following aspects of family and matrimonial proceedings: (a) Mode of hearing; (b) Anonymisation of the parties; and (c) Publication of judgments.

23rd June –  Important Bar Circular – Family Practitioners Note

8th June – The Chief Justice has accepted the Final Report on Review of Family Procedure Rules – Mr Geoffrey Ma Tao-li, has accepted the recommendations made by the Working Party on Family Procedure Rules in its Final Report to improve the court procedures for Hong Kong’s family justice system. See Executive Summaryhere See Final Reporthere

15th March – Wyatt v Vince [2015] UKSC 14 W allowed to renew her claim for financial support some 22 years after decree absolute – for background to the case see here

16th February – Wright v Wright [2015] EWCA Civ 201  Wife must ‘get a job’. This decision was a refusal of leave to appeal and therefore is not a binding authority. However, in upholding the decision of HHJ Lynn Roberts in the Principal Registry here to vary the original 2008 order of DJ Cushing in favour of the husband (who was retiring), the decision may give an indication of the Court of Appeal’s approach to maintenance. Pitchford LJ highlighting paragraph 38 of District Judge Cushing’s judgment (i.e. the original 2008 judgment) that: “There is a general expectation in these courts that once a child is in year 2, most mothers can consider part time work consistent with their obligation to their children. By September 2009/2010, the wife should be able to work. She will be 46 or 47 years old. I do not anticipate her having a significant earning capacity nor would it be reasonable to expect her to muck out stables for the minimum wage. However, she should make some financial contribution.”

16th February IDC v. SSA [2015] HKCFA 16; FAMV 54/2014 – Refused leave to appeal to the CFA and they are not happy: ‘We wish to point out that the way that these so-called questions of great, general or public importance were framed was completely unacceptable. Such identified questions ought to be set out clearly and concisely, and not be in the tendentious and argumentative form they were in the present case. In future, and bearing in mind the provisions of Practice Direction 2.4, the Registrar may refuse to accept a Notice of Motion which fails in this regard.’

19th January 2015New Practice Direction – Private Adjudication on Financial Disputes in Matrimonial and Family Proceedings comes into force today. See PD SL9

8th January – ‘Case management in Family Proceedings: Court of Appeal Judgment of Chan Cheung Ming Jacky and Siu Sin Man [2014] 5 HKLRD 89, CACV 152/2014 – Hon. Lam VP stressed that active case management is equally applicable to family proceedings as in other civil proceedings and legal representatives of parties owe a positive duty to assist the court in the proper carrying out of its case management function. At para 46 ‘ …active case management is equally applicable to family proceedings as in other civil proceedings.  And we must stress again, at the risk of repetition, parties and their legal representatives owe a positive duty to assist the court in the proper carrying out of its case management function. It is high time that those involved in family proceedings should take a real look at paragraph 16 of PD 15.12.’

4th December – proper conduct of preliminary issue in AR proceedings. Need for pleadings: ‘It was the manner in which the trial was conducted, the failure to formulate properly the issue for determination, and the lack of pleadings that generated much debate on appeal whether it was open to the judge to make a finding of gift of the shares to the wife, which was apparently inconsistent with the notion of a sale for value that was pursued by the husband vigorously in the course of the trial (para 38)’  LWYA and KYW and LLP (4th December 2014) CACV 151/2013 and CACV 152/2013 see also TL v ML & Ors (ancillary relief: claim against assets of extended family) [2006] 1 FCR 465

22nd September – CA  IDC v SSA CostsLeave to appeal to CFA refused. The CA once again were clearly aghast at legal costs estimated at well in excess of HK$11 million for both sides, on an argument about the level of child maintenance for a 6-year-old child. The dispute was between unmarried parents. The court described mother’s cost estimate as ‘exhorbitant’ (see para 7), and went on to say that ‘someone must have failed to have proper regard to the objectives of Order 1A r 1 in bringing about such a sorry state of affairs.’

17th July – Court of Final Appeal Kan Lai kwan also known as Kan Lai kwan kay and Poon Lok to Otto formerly known as Pun Lok to Otto FACV 20 & 21/2013 on appeal from CACV 48/2012

Court Summary

1. Poon Lok To Otto (the “Husband”) and Kan Lai Kwan (the “Wife”) were married in 1968. The Husband became very successful with his business from the mid-1990s. Analogue Holdings Ltd (“Analogue”) was incorporated to be the holding company of his business. In July 1995, a discretionary trust based in Jersey was set up (the “Trust”). The Husband was the Settlor, Protector and a potential beneficiary. HSBC International Trustee Limited was the Trustee. The Husband settled 84.63% of the shares of Analogue in the Trust.

2. In February 2009, the Husband petitioned for divorce on the basis of two years’ separation. The Wife did not defend the proceedings. The decree nisi was pronounced in May 2009 and made absolute in September 2010. The Wife applied for ancillary relief. She argued that the equal sharing principle should be applied to the entire value of the Trust, not only to two-thirds of that amount (which the Husband contended for). She also claimed that they had been separated only since 2008. The Husband, on the other hand, claimed that they had been separated since 2001. This was relevant due to the substantial profits generated by Analogue after 2001.

3. To decide whether the Trust was a financial resource of the Husband, the Court of Final Appeal adopted the test of asking whether, if the Husband were to request the Trustee to advance the whole or part of the capital or income of the Trust to him, the Trustee would, on the balance of probabilities, be likely to do so. Considering the creation and terms of the Trust, the Husband’s letters of wishes, the nature of the Trust assets and previous distributions made by the Trustee, the Court held that there was clear evidence of the overwhelming likelihood that the Trustee would, if requested by the Husband, advance the whole or part of the capital or income of the Trust to him. Accordingly, the Court of First Instance and the Court of Appeal were wrong to hold that the matrimonial assets included only a two-thirds interest in the value of the Trust. The entire Trust fund should be regarded as a financial resource available to the Husband.

4. Disagreeing with the finding of the Court of First Instance that the Husband and the Wife separated in 2001, the Court of Final Appeal held that as a matter of fact their marriage continued until they finally separated in 2008. The Court of Final Appeal also disagreed with the finding of the Court of Appeal, based on the doctrine of estoppel, that they separated in 2007. Whether the Husband and the Wife had separated was a question of fact. The Court was subject to a statutory duty to have regard to all the circumstances of the case. It was not estopped from finding that the Husband and the Wife in fact separated in 2008.

5. On the question of whether there should be a departure from the equality principle, the Court of Final Appeal held that the increased profits of Analogue did not provide a ground for such a departure. Those profits arose out of the business which had been built up during the Husband’s and the Wife’s marriage, in respect of which the Wife could legitimately assert an unascertained share.

6. Accordingly, the Court of Final Appeal unanimously allowed the Wife’s appeal and dismissed the Husband’s appeal.

9th June – SPH v SA FACV 22 of 2013 –  This is a landmark judgment which brings Hong Kong into line with English law in regards to prenuptial agreements. Hong Kong courts must now follow the English prenuptial case, Radmacher v Granatino – the effect is that the family courts should honour any prenuptial agreement freely entered into by both parties, “unless in the circumstances it would not be fair to hold the parties to their agreement”.

6th June IDC v SSA CACV 91 of 2013 – child maintenance unmarried mother – the Court of Appeal ruled (para 36) that the court ‘does have jurisdiction under Section 10(2)(e) [GMO Cap 13] to order a settlement of a sum of money to be held on trust for the purchase of a property to cater for the accommodation need of a child with a reversion to the paying parent. The judge was wrong in dismissing the application under Section 10(2)(e) for want of jurisdiction.’ – see discussion on background to the legislation in the judgment at para 23ff.  On the facts of this case the CA declined to order the father to purchase a property and otherwise held the maintenance provision of the court below.

22nd April  The Judiciary has issued a new Practice Direction on “Guidance on Direct Judicial Communications in International Family Disputes Affecting Children” PDSL 7 which will come into effect on 28 April 2014.

1st April – Hague Convention on Child Abduction came into force in Japan on 1st April 2014. Japan becomes the 91st Contracting State to the Hague Convention in January 2014. A central authority has been established within the foreign ministry. See details are here.

3rd March – the appeal in  IDC v SSA FCMP 158/2011 will reach the Court of Appeal on 8th May – this is an important case that raises questions upon the proper construction of s.10(2)(a) and (e) of the Guardianship of Minors Ordinance (Cap 13) and the level of maintenance for a child of unmarried parents generally. The background to this appeal is helpfully set out at some length by Cheung CJ in HCMP 3453/ 2013 which otherwise deals with the admission (which was granted) of a London silk to argue the case on behalf of the mother.

27th February UK Law Reform Commission Report on Marital Agreements (Prenups) – Married couples will be able to draft their own DIY divorce settlements using an officially-approved financial formula without having to fight over details in court. The LRC proposals would make prenuptial agreements legally binding in England and Wales for the first time. The Law Commission is also urging the Government to consider devising a specific numerical formula which separating couples could use to calculate how to divide their assets. The introduction of a Government-approved divorce ‘calculator’ would allow couples to work out how much each should receive without as much involvement from lawyers. See: UK LRC Prenups Summary and UK LRC Prenups Report 2014 – also Family Law Week Commentary and here

24th February – Review of Family Procedure Rules: Interim Report and Consultative Paper – The Consultative Paper contains over 130 proposals on the review of family procedure rules.  One of the key proposals is the adoption of a single unified procedural code that comprehensively deals with the processes and procedures for all family and matrimonial matters in the High Court and the Family Court.

6th February 2014 – Family Arbitration Award – Consent Order – will be supported by the courts.  S v S [2014] EWHC 7 (Fam) 14th January “Where the consent order which the judge is being asked to approve is founded on an arbitral award under the IFLA Scheme or something similar (and the judge will, of course, need to check that the order does indeed give effect to the arbitral award and is workable) the judge’s role will be simple. The judge will not need to play the detective unless something leaps off the page to indicate that something has gone so seriously wrong in the arbitral process as fundamentally to vitiate the arbitral award. Although recognising that the judge is not a rubber stamp, the combination of (a) the fact that the parties have agreed to be bound by the arbitral award, (b) the fact of the arbitral award (which the judge will of course be able to study) and (c) the fact that the parties are putting the matter before the court by consent, means that it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order. With a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case.”

13th January 2014 – Australia moves toward 50/50 division of matrimonial assets – Kane & Kane [2013] FamCAFC 205 – 18/12/2013 

4th November View from the President’s Chambers (England & Wales) Sir James Munby, President of the Family Division- inter alia on non-compliance with Court Orders: “What I fear is an even greater cause for concern – and it is for me a real concern – is something symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders. This principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Both parties and non-parties to whom orders are addressed must take heed. Non-compliance with an order by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body. Non-compliance with orders should be expected to have and will usually have a consequence” see Re W (A Child), Re H (Children) [2013] EWCA Civ 1177

It remains to be seen whether Judges in this jurisdiction will take such a robust view but I approve this message at para 53 of the judgment:

“Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.”

1st NovemberPractice Direction 15.14 on “Transfer of Proceedings from the Family Court to the Court of First Instance” was issued on 24 October 2013 and it will take effect on 6 November 2013.

9th October – Divorce law a dead parrot – Mr Justice Coleridge says: “[T]he current divorce and financial provision law (not to mention the law relating to unmarried partners) is no longer, I suggest, fit for purpose. It was designed in a wholly different era to deal with a wholly different society and way of life. In the immortal words of John Cleese it is a dead parrot. It is no more; it has gone to meet its maker. Or should do. The Matrimonial Causes Act 1973 with all its layers of crustacean growth needs to be humanely killed off and given a decent burial and the heroic efforts of the Supreme Court to maintain the life support system need to stop. The Act has, quite simply, had its day.” Read the full transcript here

27th September  The hearing on Hong Kong Special Administrative Region’s 2nd Report on the Convention on the Rights of the Child took place in Geneva on 26th and 27th September 2013.  See HKSAR Responses Rights of the Child September 2013  by Emily Lau 

By way of a footnote and example to the above see also ‘Mothers Choice Submission to UNCRC 11 September 2013‘ on the crisis in adoption here in Hong Kong. UNCRE session details here

9th September A (A Child) [2013] EWCA Civ 1104 – this is a remarkably robust children’s judgment against an implacably opposed mother. Whilst the facts of the case themselves are nothing short of a disgrace to the Family Court justice system it may be an indication that, at long last, the UK Court of Appeal is going to get tough.

30th August – First reliance on Prest v Petrodel Resources Limited and others [2013] UKSC 34  – in Hong Kong Family Court judgment SLA nee S v HKL FCMC 7500/2010

15th July – ‘Enforcing Child Contact Orders‘ – Some interesting preliminary research from the UK on ‘implacably hostile mothers’ and the UK courts’ response to enforcement of contact (access) orders. The full report will be published in September.

10th July – Hong Kong Law Reform Commission Report on Child Custody and Access. At long last there appears to be some movement by government on reform of Children’s law in Hong Kong. See:

LC Paper No. CB(2)1483/12-13(02) – Paper issued by the Administration on 3rd July 2013 setting out, inter alia,  the government’s (generally positive) responses to the LRC’s original 72 Recommendations.

LC Paper No. CB(2)1483/12-13(03) – Background brief prepared by the Legislative Council Secretariat Meeting on 8th July – 3rd July 2013

8th July – This month’s Hong Kong Lawyer has five articles, written by practitioners, dedicated to family law in Hong Kong. Click on link to view.

6th July – President approved guidelines and some robust advice and  to all lawyers – ex-parte ‘freezing orders’ a warning from UK  on avoiding ‘nuclear winter’.

UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam)

“It is worth remembering not only that the ex parte procedure is intrinsically unfair but also, and very importantly, that a case which begins with an ex parte order is usually poisoned from that point onwards. The unilateral step taken at the beginning of case echoes down its history. Often the respondent is enraged by the step taken against him and looks to take counter-offensive measures. Every single subsequent step is coloured by that fateful first step. Costs tend to mount exponentially. And even after the lawyers close their files and render their final bills the personal relations of the spouses will likely remain forever soured. A nuclear winter often ensues”

(See more on this important case in the Ch 5 Injunctions shortly – KH)

12th June – Prest v Petrodel Resources Limited and others [2013] UKSC 34. The Supreme Court unanimously allows the appeal by Yasmin Prest and declares that the seven disputed properties vested in the companies are held on trust for the husband on the ground (which was not considered by the courts below) that, in the particular circumstances of the case, the properties were held by the husband’s companies on a resulting trust for the husband, and were accordingly “property to which the [husband] is entitled, either in possession or reversion”. Lord Sumption gives the leading judgment and Lord Neuberger, Lady Hale, Lord Clarke and Lord Walker add concurring judgments.

Farrer & Co (London) were solicitors for Mrs Prest, the successful appellant. Partner, Jeremy Posnansky QC, writing in a short ‘Briefing Paper’ for the firm on this case suggests that ‘Legal commentators will have a field day with the judgments of the Supreme Court. Indeed, there is something for (almost) everyone in this decision. It will please family lawyers, by putting reality back into this important corner of family law and ensuring that a judge’s fair award is satisfied, not flouted. It will please company lawyers and corporators, whose fortresses will remain impregnable if their companies are properly run and really do own the assets held in their names. It will not please dishonest husbands who seek to deceive and who manipulate the truth.’

Mr Richard Todd QC, leading counsel in the case has also written a brief synopsis of the Supreme Court’s decision here.

In the matter of B (a child) [2013] UKSC 33The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismisses the appeal. The High Court judge was entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case. See Press Summary here .

Stripping Away the Veil of Deceit: Prest v Petrodel – John Wilson QC of 1 Hare Court analyses the Supreme Court’s judgment in the landmark case of Prest v Petrodel and considers its implications for family lawyers.

3rd June – CIRCULAR 13-374 (PA) – FAMILY

Family Registry Practice Filing of Affidavits

The Family Court wishes to remind practitioners on the filing of affidavits in both the High Court and the District Court as required in Practice Directions 15.11 on Financial Dispute Resolution and 15.13 for Children’s Dispute Resolution as follows:

1. Practice Directions 15.11 and 15.13 (“PDs”)

Family Judges in both the District Court and High Court have noted the increasing number of lengthy affidavits filed by parties without leave or permission of the court in applications relating to ancillary relief or children’s matters. This practice is in breach of the directions in PDs 15.11 and 15.13.

Practitioners must familiarize themselves with the requirements of PDs 15.11 and 15.13 in order to avoid the risk of being reprimanded and/or penalised by the court for costs:

(a) save for those documents expressly provided therein, no affirmation/affidavit/ statement/other documents shall be filed unless with leave of the court; and

(b) no experts are to be appointed unless with leave of the court.

The Family Court Registry may not accept such affirmation/affidavit/documents for filing without leave of the court, or it may bring the Judge’s attention to such non-compliance.

2. Mode of making application(O.32,r.1)

The Family Court Registry has confirmed it will revert to the former practice in relation to the filing of affidavits. Members are reminded to ensure that substantial applications should be supported by an affidavit/affirmation failing which they could face objections from the opposing parties for breaches of the rules/PDs and costs sanctions.

3. Law Society circular 12-907(PA) has been superseded.

13th May Court of Final Appeal landmark judgment in W v The Registrar of Marriages, FACV 4/2012

Held – by a majority, Mr Justice Chan PJ dissenting, the appeal is allowed. Viewing the realities of W’s position, by denying a post-operative transsexual woman like her the right to marry a man, the statutory provisions in question deny her the right to marry at all.  Hong Kong statute, reflecting the so-called Corbett criteria – are incomplete in that they are limited to a person’s biological features existing at the time of birth and treated as immutable.  They ignore the psychological and social elements of a person’s sexual identity and ignore any sex reassignment treatment that has occurred.  As such, they do not permit a full and appropriate assessment of the sexual identity of a person to be made for the purposes of determining whether he or she has the right to marry.  In adopting such restrictive criteria, the provisions are inconsistent with and fail to give proper effect to the constitutional right to marry.  They are therefore unconstitutional.

7th April Baroness Hale of Richmond, the first and only woman to sit in the Supreme Court, echoed a criticism view that judges who have risen through the Bar, the Temples and other parts of the “establishment” are not always ideally placed to cast judgment on the complexities of modern life. This is possibly a statement of the blindingly obvious – but family lawyers are certainly at the forefront of the ‘complexities of modern life’.

4th March Petrodel Resources Limited and others (Respondents) v Prest (Appellant) – The UK Guardian – Battle for tycoon’s assets threatens UK’s title as divorce capital of the world. Landmark case in the UK Supreme Court listed for 2-days on 5th March. On Appeal (see here) from the Court of Appeal Civil Division England and Wales – Whether it is open to the court in ancillary relief proceedings to treat the assets of a company of which a spouse is the sole controller as being assets to which that spouse is ‘entitled’ for the purposes of s 24(1)(a) Matrimonial Causes Act 1973.

Facts – The appellant wife brought financial proceedings ancillary to her divorce from her husband Michael Prest. The husband was ordered to pay a lump sum of £17.5m to the wife, which he has not paid. The respondents are all Isle of Man companies under the control of the husband. The wife obtained an order that real property held by the respondents should be transferred to her so as to reduce the lump sum order. The respondents successfully appealed against that order.

26th February – The UK government is pressing ahead with reform of the Children Act 1989 which, inter alia, is likely to replace ‘Contact’ and ‘Residence’ Orders with ‘Child Arrangements Orders’ under the Children and Families Bill which is currently receiving its second reading. With the Hong Kong government currently still ‘consulting’ on the 2005 LRC Report on Child Custody and Access – amendment to the Children Act in the UK will inevitably widen the gap still further beyond the research and recommendations in this commendable but now dated report. See the ‘Resolution’ briefing paper on the new Bill here.

20th February – two new UK Supreme Court judgments highlighted by Family Law

In the Matter of J (Children) [2013] UKSC 9 – This case relates to when a previous court has found that one or both of two individuals have caused significant harm to a child, whether this constitutes a ‘finding of fact’ for subsequent proceedings which are aimed at determining whether there is a real possibility that other children will suffer harm in the care of one or other of those individuals. The Supreme Court unanimously dismisses the local authority’s appeal.

For the Supreme Court summary and the full text of the judgment click here.

In the Matter of L and B (Children) [2013] UKSC 8 – This case relates to whether the first instance judge correctly exercised the power to change her decision following an oral judgment where no order had yet been perfected. The Supreme Court unanimously allows the appeal by the father. It gave its decision to the parties at the conclusion of the oral hearing of the appeal on 21 January 2013 and now provides its written judgment. The Supreme Court restores the February judgment and the welfare hearing has already proceeded on the basis of the findings in that judgment.

For the Supreme Court summary and the full text of the judgment click here.

15th February – Court of Final Appeal  KEWS v NCHC FACV 18/2012 – ‘it would be better if the term “judicious encouragement” were no longer to be used’.

The Court of Final Appeal unanimously and robustly dismissed the husband’s appeal with costs. It held inter alia that the Court of Appeal were correct, on the facts, to reverse the findings of the Family Court judgment and the (increased) orders of the Court of Appeal were entirely justified. The court further held that in the assessment of the financial resources of the parties to a marriage for the purposes of considering an application for ancillary relief under section 4 of the Matrimonial Proceedings and Property Ordinance (Cap 192), the court is guided only by section 7(1) and in particular section 7(1)(a).  The term ‘judicious encouragement’ does not call for a different approach when third party assistance is involved – it would be better if the term “judicious encouragement” were no longer to be used.

The appeal involved a consideration of the court’s approach in applications for ancillary relief under section 4 where, in the assessment of the financial resources of the parties to a marriage, it is relevant to take into account the financial assistance provided by third parties to the husband or wife. This concerns the court’s approach in taking into account property or financial resources to which the husband or wife has or is likely to have access, but to which (until the property or financial resources are transferred) that party has no legal entitlement. For example, trust property to which a husband or wife has a legal entitlement, do not present any difficulties: such property will certainly be taken into account in ascertaining that party’s assets.  But where discretionary trusts are involved or where the financial assistance has come from a party’s relatives (in the present case, the parents), difficulties may sometimes be encountered.

The width of the wording of section 7(1)(a) will include financial assistance made by third parties to the parties to a marriage.  Accordingly, such assistance made by a third party to the husband or wife may be taken into account in the computation of that party’s overall financial resources. In every case where third party assistance is involved, there are two critical evidential questions for the court to consider: (1) What is the extent of the financial assistance provided by the third party to the husband or wife? and (2) What is the likelihood of such financial assistance continuing in the foreseeable future?

In the fact finding exercise, the court must look at the reality of the situation and have regard to matters of substance and not just form.  In looking at reality, the court can take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made.  In O’D v O’D [1976] Fam 83, which involved the court taking into account the financial support given to the husband by his father, Ormrod LJ said at 90 D-E “In making this assessment the Court is concerned with the reality of the husband’s resources, using that word in a broad sense to include not only what he is shown to have, but also what could reasonably be made available to him if he so wished”. In addition, in looking at what may occur in the foreseeable future, past conduct is often a useful guide: see SR v CR (Ancillary Relief: Family Trusts) [2009] 2 FLR 1083, at 1091 (para 27).

Having ascertained the extent of the financial assistance provided by the third party and then finding on the evidence on a balance of probabilities that there is a likelihood of the continuation of such financial assistance in the foreseeable future, the court is then in a position in law first to take this into account in the identification of the financial resources of the parties and secondly, in determining the appropriate ancillary relief to be granted. This is an approach that is entirely consistent with the court’s duty under s 7(1) of the MPPO.  Needless to say, the outcome in any given case is inevitably fact-sensitive.

6th February – UK MPs Vote 400 to 175 in favour of ‘Gay Marriage‘ – a number the Lords are unlikely to challenge – Churches will be able to ‘opt-in’ although this seems about as likely as Hong Kong following suit.

5th FebruaryChildren & Families Bill  will be published by UK Parliament today following Government response to family justice review here.

28th January 2013 – variation of maintenance Family Court erred in allowing H reduction – W entitled to status quo.  AEM v VEM CACV 216/2011 (28th January 2013) ‘It is said by the husband that the parties have now been divorced longer than they were married and maintenance has now been paid for longer than the parties were married.  This may be so, but in order to justify a substantial downward adjustment of the periodical payment on account of change of circumstances, the Court should look not only at the wife’s position but also at the husband’s position as well.’

24th Janaury – The appeal of KEWS v NCHC FACV 18/2012  was heard in the CFA today. It is on the issue in divorce proceedings, when and in what circumstances can a court treat the resources of a third party as resources of a party to the divorce for the purpose of distributing those resources to the other party to the divorce in making an order for the payment of maintenance or a capital sum?  See Court of Appeal judgment here

Japan to Join Hague Convention on Child Abductionhere

Lord Neuberger, President of The Supreme Court First annual BAILII Lecture No Jugment – No Justice 20 November 2012. On the need for clear judgments accessible to litigants and the public at large.

Law Society CIRCULAR 12-906 (PA) 3 December 2012 Family Court Practice Revised November 2012. The consolidated Family Court Practice as approved by the Family Court Users Committee has been revised and please click here for a copy.

HHML v RYD HCMC 7/2011 – Husband should not be heard until he purges his contempt.

Husband in contempt – case to go ahead despite his absence –  see Hadkinson v Hadkinson  [1952] 2 All ER 567 and discussion of using Hadkinson as a ‘shield’ or a ‘sword’ in Mubarak v Mubarik [2006] EWHC 1260 (Fam) – In the light of the considerable argument in Mubarak (which does not appear to have been before Poon J) particularly on the issue of whether Hadkinson is Bill of Rights compliant and what standard of proof is to be applied – Poon J’s judgment here does seem somewhat cursory (even if correct) for such a draconian step.

Per Poon J in Chambers – ‘In my view, his non-compliance with the MPS order is a deliberate tactical move, calculated to achieve two illegitimate purposes.  First, he wants to harm the Wife financially when these proceedings are pending, which also incidentally put B and C at peril.  Her present income and savings are hardly sufficient to support herself and the two boys.  (A is now living in Spain, presumably supported by the Husband.)  The Wife has to live on the generosity of her friends, one of whom has kindly provided rent-free accommodation until her financial situation improves.  Second, he wants to force her to return to Spain to fight the divorce there, in total disregard of Deputy Judge Lok’s previous order of refusing his application to stay.  His conduct is reprehensible indeed.  He is now in Spain, well beyond this court’s jurisdiction and it is most unlikely that he would ever return to Hong Kong again.  Any enforcement of the MPS order is extremely difficult if not impossible. … n these circumstances, justice demands that the Husband should not be heard until he purges his contempt.  I refuse to entertain his removal application, which is dismissed.’

  • Lawrence v Gallagher [2012] EWCA Civ 394 – financial remedies upon dissolution of a civil partnership.
  • Re S (A Child) (Abduction: Rights of Custody) [2012] 2 FLR 442 – the Supreme Court held that subjective anxieties can found an Art 13(b) defence in Hague Convention proceedings.
  • Re A (Fact-Finding Hearing: Judge Meeting with Child) [2012] 2 FLR 369 – the circumstances in which it is appropriate for a judge to meet a child.
  • Re T (Children) [2012] UKSC 36 – the Supreme Court addressed costs orders in Children Act proceedings.
  • Peter Jackson J imposes conditional residence order to overcome mother’s resistance to contact

Valuable lesson on what a court can achieve under existing rules where a judge is prepared to use his own initiative and common sense to seek justice in a case instead of slavishly following ‘expert’ opinion.

Family Law Week

Last chance for mother to facilitate contact

M (Children) [2012] EWHC 1948 (Fam) is an interesting example of an intractable contact case in which Peter Jackson J has ordered that the mother does not facilitate her children staying with their father on stipulated occasions, they will live with the father and the mother will immediately give up the children to the father.

The father had applied for a transfer of residence in respect of his two sons, J aged 10 and B aged 8. The parents had separated in 2007 and at the time of the hearing the mother and children lived with the mother’s new partner. The mother had two further children by different fathers, who also lived with her.

Following separation there were difficulties between the parties and in May 2010 the father applied for contact. At that stage, he was having contact each Sunday for the day. In July 2010 the father expanded his application to include residence, but contact ceased in August 2010 following an incident of apparent boisterous play involving the father and the boys at a swimming pool.

Although proceedings were ongoing thereafter, no further contact took place until April 2011. It became apparent that the mother was influencing the children to speak negatively of their father and that they were acting out of loyalty to the mother. At one point the mother renewed the boys’ passports, substituting her own surname for the boys’ paternal surname.

In due course a Guardian was appointed and in April 2011 some contact was successfully observed, with the children cuddling the father at the end. Unfortunately further contact could not be facilitated and a psychologist was consequently appointed. In August 2011, the mother removed the children from their home and school in Blackpool and moved to Devon without notice to anyone.

Thereafter, the mother disengaged with the court and committal proceedings ensued. At the committal hearing, which the mother attended, three periods of contact were ordered and took place successfully. However, thereafter the children were once again negative about the father. The existing Guardian recommended limited contact thereafter, but Peter Jackson J found her approach to be flawed, later replacing her with a different Guardian.

Difficulties continued and the father made a further formal application for residence. When the hearing came on the Guardian had no firm recommendation as to the way forward. His Lordship met with the children and arranged a meeting between the father and children at court, before hearing submissions for the parties.

In giving judgment Peter Jackson J found that the mother did not believe that the children needed a relationship with their father or the wider family and was not supporting contact. Furthermore, His Lordship was “convinced” that the children loved their father and wanted to be able to see him, but were being prevented from showing their feelings or acting on them. His Lordship weighed up the factors against changing residence, including the children’s attachment to the mother and their siblings, their good progress at school and the risks that they might not settle with the father. However, on balance His Lordship concluded that the children’s welfare would be better served by living with the father, unless contact could take place successfully. His Lordship took into account that it would be contrary to the children’s interests to learn that the sort of manipulation they had been caught up in might succeed.

On balance, however, His Lordship felt that the mother should be given one more opportunity to facilitate contact. His Lordship therefore made an order for two periods of staying contact, providing that if the contact did not take place the children would thereafter live with the father and that the mother would facilitate their handover. In the event that the mother failed to do so, an application for the recovery of the children should be made.

This news item is derived from Stephen Jarmain’s case summary. The judgment can be read here.

  • Damning with Praise

Jones v Jones [2011] EWCA Civ 41

Appeal by wife against ancillary relief order made by Charles J, in which he awarded her £5.4 million from a total asset pool of £25 million. Appeal allowed.  This judgment should be read not only for its handling of the matters subject to appeal – not least the specific overruling of Nicholas Mostyn QC’s (as he then was) judgment in GW v. RW (Financial Provision: Departure from Equality) [2003] EWHC 611, [2003] 2 FLR 108 – but the acerbic (and often hilarious) remarks on how not to write a judgment, including ‘fourteen pages of suggested corrections jointly submitted by counsel to him following dissemination of his judgment in draft’ and per Wall LJ, the absolute requirement for brevity where (as in this case) everyone was ‘agreed that the essential issues could be reduced to a single sheet of paper’.  As Wilson LJ remarks at para 3: ‘The judge released his judgment for publication but on an anonymised basis, i.e. as J v. J. Its citation number is [2010] EWHC 2654. It has 484 paragraphs. An article on the judgment, by Mr Ashley Murray of counsel, has recently been published in [2010] Family Law, Vol 40, at 1111. Mr Murray introduced his article as follows:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Charles J. One of his most recent is J v. J …”

Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite. The judgment is a monument to the intellectual energy of the judge. Nevertheless, notwithstanding my extreme personal discomfort in saying so, I feel driven to describe it as far too long, too discursive and too unwieldy. I have devoted days to trying to understand it. So have the parties’ advisers, at substantial further cost to the parties themselves. With respect to a colleague whom I greatly admire, I refuse to accept that our modern principles of ancillary relief are as complex as the content of the judgment of Charles J implies.

Finally Wall LJ notes: ‘… is that it seems to me unfortunate that our law of ancillary relief should be largely dictated by cases which bear no resemblance to the ordinary lives of most divorcing couples and to the average case heard, day in and day out, by district judges up and down the country. The sums of money – including the costs – involved in this case are well beyond the experience and even the contemplation of most people.  Whether the wife has £5 or £8 million, she will still be a very rich woman and the application of the so called “sharing” and “needs” principles may look very different in cases where the latter predominates and the parties’ assets are a tiny percentage of those encountered here.’