Saiqa Choudhury Joins New Court

New Court is delighted that Saiqa Chaudhry has joined chambers as a tenant.

Saiqa is a former member of 18 St Johns Street Chambers in Manchester.

Full profile to follow.


Elissa Da Costa Waldman's TLATA Case Hits The Headlines

Kirsty Cahill’s TLATA case hit the headlines last week as being the case of the mean property developer who humiliated her, the mother of his three children and partner of 20 years by refusing to accept that she was the true owner of the investment property purchased in her sole name.

The newspapers portrayed this as David –v- Goliath and the poor unmarried ‘wifely’ cohabitant against the older, arrogant, financially astute man of property. That wasn’t the whole story of course – there were some legal concepts involved which will be covered in the next NCC newsletter.

The case however highlighted two important aspects, one the Deficit of Knowledge being the lack of awareness and knowledge of those purchasing property or moving in with partners and who assume that the ‘common law wife’ not only exists but has rights. She is a myth without recourse to justice. The other aspect is the Importance of Evidence. Steven Farrer lost because the documentary evidence damned him. Two particular pieces of evidence being his emails to the managing agents who collected the rent and a ‘to whom it may concern’ reference for the painter and decorator that told the world that Kirsty was the sole owner of the property, the corollary of which was that his payment of the difference between the purchase price and the mortgage was indeed a gift to Kirsty!

This case will feature in our next newsletter.


Third Six Pupillage Applications

Chambers is looking to recruit a 3rd Six pupil to join our busy team in October 2016.  Applicants should have completed a 12 month pupillage with an emphasis on family work, and should be able to show a clear commitment and motivation to pursuing a career as a specialist family advocate.

The pupillage will be unfunded but we anticipate that the successful candidate can expect a busy court practice from the outset.

Please apply by sending a CV with a covering letter by 4:00pm on Friday 5th August 2016 to the Chair of the Pupillage Committee in hardcopy and by email to swallace@newcourtchambers.com, copying in clerks@newcourtchambers.com.

 


Settlement Conferences Are Here

By Laura Harrington

The Central Family Court has recently commenced a pilot scheme which sees the introduction of Settlement Conferences in family proceedings (both private and public law proceedings).  The scheme is already up and running in Cheshire and Merseyside and has been a success for the majority of cases which have opted into having a settlement conference.

What is a settlement conference?

It is a concept which has been taken and adapted from the Canadian legal system.  You only need to Google ‘settlement conferences’ and you will get many hits which show they are used in a number of countries across the world. In short, settlement conferences are hearings whereby the Judge takes a more ‘hands on' role and encourages all parties involved to try and reach a settlement.

When does a settlement conference take place? Is is instead of an IRH?

All parties will be given the option to have a settlement conference. In order for a settlement conference to take place all parties must consent.  A settlement conference should be listed as soon as practicable. If it is not possible to reach an agreement the matter will be listed for IRH and or final hearing depending on the case.

Will all judges sitting in the CFC be able to offer settlement conferences?

His Honour Judge Tolson QC has indicated that only a limited number of judges will be able to conduct settlement conferences.

What happens if it is not possible to reach a settlement?

If the case does not reach a settlement, then the matter will be listed before a different judge for further hearings. Everything which had been discussed in the settlement conference will remain confidential and parties will not be able to rely upon it at any further hearing.

If it is not possible to settle the case at the first settlement conference the court may list a further settlement conference with the consent of all the parties.

How will it work practically?

At the hearing the local authority will be invited to set out the issues and parties' positions. The Judge will then come down from the bench and speak to the parties individually. The Judge will explore how the issues can be resolved and try and get all parties to reach an agreed resolution (the judge would have read the majority of the papers and will steer the case to the resolution which he/she believes will be the outcome at the final hearing). The tape will be on during all the conversations and the judge will address parties directly rather than through their legal representative during these informal discussions.

The role of the legal representative during a conference is limited to only speaking on behalf of their client when all parties are present and advising the client outside of the court after discussions with the judge.


June 2016 Newsletter

The June 2016 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers Newsletter June 2016

This edition includes the following articles:

To subscribe to our newsletter and receive a copy by email, just fill in your details here.


Welcome to Nicola Hall & Kayleigh Long

We are delighted that Nicola Hall (2006 Call) and Kayleigh Long (2009 Call) have both accepted offers of tenancy with New Court Chambers.

Nicola and Kayleigh join us from Goldsmith Chambers where they have each built up successful and well-established family practises. They are both already well-known to a number of our instructing solicitors and we wish them both long and successful careers with us.


London Legal Walk 2016

Members and staff took part in the 2016 London Legal Walk on 16 May 2016 in aid of the London Legal Support Trust, raising over £600 in the process. The event as a whole involved over 10,000 walkers raising thousands of pounds for this very worthy cause. We'll see you next year!


HHJ Sir Gavyn Arthur (1951-2016)

It is with great sadness that members have today heard of the sudden death of His Honour Judge Sir Gavyn Arthur, Designated Family Judge at Luton Family Court.

Chris Poole writes;

“Like many members of Chambers, I appeared regularly in Luton before Sir Gavyn.  The experience was never dull and often memorable.  Sir Gavyn didn’t suffer people and he spoke his mind.  He was however keen on getting to the issues in a case and moving things forward in the best interests of all involved.  He also appeared very appreciative of help and assistance from advocates and would acknowledge this in court.  A trip to Luton will not be same again.”

Giles Bain writes:

“An appearance before HHJ Sir Gavyn Arthur ('Sir Gav') was always memorable. My condolences to his family, friends and colleagues. I will always be faithful to his plea: 'don't forget the gerund!' RIP.”

 


Re N - Supreme Court Considers Art 15 Discretion

By Katherine Couper

On 13 April 2016, the Supreme Court published its judgment in the case of Re N [2016] UKSC 15. The case considers the provisions of Article 15(1) of Council Regulation (EC) No 2201/2003 and the question of whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls.

As practitioners will be aware, Article 15(1) contains a discretionary power for the Member State with jurisdiction to request a court of another Member State to assume jurisdiction if the following three-limbs are satisfied:

  1. The child has a particular connection with the other Member State;
  2. The other Member State would be better placed to hear the case, or a specific part thereof; and
  3. This is in the best interests of the child.

The relevant background facts to the appeal of Re N are as follows:

  • The subject children are Hungarian nationals but were born and have been resident in England all their lives.
  • The parents of the girls are Hungarian nationals, who moved to England in 2011.
  • The older girl was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl in May 2013. Both girls were removed from their parents that day and placed in foster care, where they have remained.
  • Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members in Hungary to care for the girls. It was in touch with the Hungarian Central Authority, which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors.
  • The mother returned to Hungary in 2014 and has since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of Brussels II Revised.
  • The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents in England, without parental consent.
  • The High Court granted the mother’s application (supported by the Hungarian Central Authority) to request the transfer of the proceedings under article 15.
  • The Court of Appeal dismissed the appeal brought by the Children’s Guardian and local authority. The Children’s Guardian appealed to the Supreme Court.

As per Lady Hale at para 31, the principle issue before the Supreme Court was ‘the proper approach to the assessment of the child’s best interests in the context of an application for transfer under article 15’ (i.e. the correct approach to the third limb of the test set out above). In particular, the Court sought to address the following questions:

  1. Is it limited to questions of forum, and if so, how does it differ from the question of whether the foreign court is better placed to hear the case?
  2. Is the court entitled to take into account the consequences for the child of transferring the proceedings, where the transfer will also result in the child’s removal from her current placement to a placement in another country?

 

 

Note that the Supreme Court did not consider the question of whether Article 15 is capable of applying to care proceedings, (although Lady Hale notes at para 34 that this is ‘obviously not acte claire’). The Supreme Court of Ireland has made an extent referral to the CJEU in the matter of Child and Family Agency (CAFA) v JD (Case C-428/15), which includes this question. Pending the outcome of this referral, the Supreme Court ruled to proceed on the assumption that article 15 is capable of applying to public law proceedings.

The guidance arising from Re N can be summarised as follows:

  • The ‘better placed’ and ‘best interests’ considerations (paras 5b and 5c, above) are separate questions and must be addressed separately. Some of the same factors may be relevant to both, but the second question does not inexorably follow from the first. (para 43);
  • The ‘best interests’ question is restricted to whether transfer of the case is in the child’s best interests. It is a different question from whether the eventual outcome of the case will be in the child’s best interests (para 44)
  • The factors relevant to deciding the ‘best interests’ question will vary depending on the circumstances of the case and cannot be explicitly defined. However ‘there is no reason to exclude the impact, in the short or the longer term, of the transfer itself. What will be the immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome?’ (para 44)

In applying the above guidance to the facts of Re N, the Supreme Court ruled that the lower courts had erred in concluding that it would be in the best interests of the children to transfer the matter to Hungary. The following points were highlighted as factors which should have been considered within the ‘best interest’ question:

  • The short term consequences of a transfer to Hungary would be that the girls would be removed from the home where the youngest had lived for virtually all her life and the oldest had lived for most of hers, where they were happy and settled, and doing well (the older child’s behaviour having been seriously disturbed when they first arrived);
  • The children would be transferred to a foster placement about which the court knew nothing, other than that the foster carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to the children;
  • A long term consequence of transfer would be to rule out one possible option for their future care and upbringing, that is, remaining in their present home on a long term legally sanctioned basis, whether through adoption, or through a special guardianship order, or through an ordinary residence order … ‘indeed the outcome which those professionals with the closest knowledge of the case and the children now consider would be best for them’.

 


Wasted Costs Orders in Care Proceedings

By Laura Harrington

Review of Re L (Case Management: Wasted Costs) [2016] EWFC 8B

These proceedings concerned a young boy who had suffered injuries whilst in the care of his parents. The matter was listed before His Honour Judge Bellamy for a two day fact finding hearing. At this hearing the Judge adjourned the fact finding and considered whether or not to make a wasted costs order against all or any of the parties.

At the first case management hearing the order made provision for the local authority to serve copies of the child’s health visitor, GP, and hospital records ‘to include any images’ and for the police to disclose to the local authority ‘witness statements, interviews, photographs and medical reports in respect of the injuries’.

It became apparent just days before the fact finding hearing that the local authority had not been provided with the medical photos, the audio recordings and or transcripts of the parents’ police interviews and as such these had not be served on the parties.

His Honour Judge Bellamy considered the recent authorities which have emphasised the obligation to comply fully and timeously with case management orders and the likely consequence of failure to comply.

Whilst he found the local authority were at fault for failing to ensure all disclosure had been provided by the third party; he was clear that the other parties also have a responsibility and duty to consider the disclosed material and satisfy itself that the disclosure complied with the case management directions and further identify any document or category of document that appears to have been omitted and inform the parties and court of such an omission.

 

In this instance His Honour Judge Bellamy was satisfied the responsibility for the failure identified rested primarily with the local authority however, the solicitors for the parents and the guardian also had some responsibility.

His Honour Judge Bellamy then went on to consider whether to make a wasted costs order. He found the local authority was negligent in failing to take appropriate and timely steps to obtain and disclose the audio recordings and to obtain and serve the parents’ police interview transcripts.  He was equally satisfied that the other parties were negligent in failing to identify this omission and in failing to take a pro-active response in drawing the omission to the attention of the local authority and the court. As a result, wasted costs orders were made against all four parties.

This case is unusual, in that wasted costs orders were made against all parties and consideration was even given to limiting the costs received by the solicitors for those parties in receipt of public funding.  In my opinion this case is a clear warning to all parties involved in family proceedings that the court is becoming firmer and is willing to consider severe consequences for parties’  non compliance with court directions. All parties should have this case in the forefront of their mind when dealing with cases involving disclosure from third parties , in particular, when large amounts of disclosure is requested from a third party who could easily omit certain documents in error.  This case emphases the need for parties to have constant consideration to directions and non-compliance as failure to do so may lead to the court finding fault at your door.