Talking Family Law - The Resolution Podcast: Recent Episodes
Resolution
Guests take on a topical debate in family law in each episode in this podcast series from Resolution. Our hosts, Simon Blain and Anita Mehta, invite family law experts to share their experiences and anecdotes, in an insightful and entertaining conversation.
We all agree that costs applications, and costs orders, are becoming more prevalent in Children Act as well as financial remedy proceedings. Public policy certainly seems to favour the use of costs orders as a way of ensuring that litigation is proportionate and reasonable.
In this episode we are assisted by HHJ Reardon (who sits in East London Family Court and the CFC hearing both Children Act and Financial Remedy cases) and Laura Moys (barrister at 1 KBW) talk us through costs orders in respect of Children Act and Financial Remedy cases.
We discuss LSPO including:
· HHJ Reardon reminds us (in the context of ever increasing interest rates) of the provision in Rubin V Rubin that:
viii) If a litigation loan is offered at a very high rate of interest it would be unlikely to be reasonable to expect the applicant to take it unless the respondent offered an undertaking to meet that interest, if the court later considered it just so to order.
· What happens in second LSPO applications; and
· LSPO in Children Act proceedings, including the need for equality of arms in accordance with BC v DE (Rev 1) [2016] EWHC 1806 (Fam) (21 July 2016).
We look at Costs orders in Children Act cases, and are reminded of the dicta in Re S (a Child), Re [2015] UKSC 20 (25 March 2015). They discuss when a Court may order costs after a fact-finding hearings and refer to Re T (Children), Re [2012] UKSC 36 (25 July 2012).
Finally we discuss costs in Financial remedy proceedings, including:
· the Court’s approach to making orders that cover legal costs in needs cases. Laura refers us to Azarmi-Movafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184 (30 July 2021);
· When we should be dealing with costs arguments; and
· General guidance about Wwhat is and is not reasonable, in order to consider what sort of positions may result in costs orders;
· We are reminded that the Court can make costs awards where a party has refused to negotiate; JB v DB [2020] EWHC 2301 (Fam) (23 July 2020);
We could not have been more excited to have the opportunity to speak to Mr Justice Mostyn before he retires at the end of the month.
We discuss Movers & Shakers – his highly successful podcast with five other Parkinson’s sufferers:
https://cureparkinsons.org.uk/2023/03/movers-shakers-six-familiar-faces-launch-podcast-about-living-with-parkinsons/
Plus his best case, and thoughts on transparency of course!
The Judge clarifies that Hildebrand documents are admissible if relevant, but the case of Immerman deals with professional conduct around such documents. The Judge explains and justified the rates used for Duxbury, and invites Resolution to attend future meetings about the rates.
Finally, for all Resolution members you will be pleased to hear that the Judge completely supports the proposition that there should be no difference between the Court’s powers if the parties are married or not.
This episode gets better and better as the Judge goes on.
During the discussion the Judge mentions:
- RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – this is the case Mostyn J discussed being most proud of.
- Xanthopoulos v Rakshina [2022] EWFC 30 refers to the case of J v J [2014] EWHC 3654 (Fam)
- Evans v Evans [1990] 1 WLR 575, [1990] FLR 319
- James v Seymour [2023] EWHC 844 (Fam) (child support)
In this episode we are joined by HHJ Roberts who is the Designated Family Judge at the Central Family Court, and the National Lead Judge for Divorce. Before joining the Bench she was a solicitor, and ran the family department at her firm for 10 years, and HHJ Hess who is the Lead Judge of the London Financial Remedy Court, and the Deputy National Lead Judge of the Financial Remedies Court. He is also Co-Chair of the Pension Advisory Group. Before joining the Bench he practiced at the Bar for 25 years.
They join us for a fascination and wide-ranging discussion about the future for remote hearings, vulnerable witnesses, crypto-assets, the benefit of the change to divorce law, and why we should consider applying for judicial appointment.
Listen to Andrzej Bojarski (family barrister) and James Brockhurst (private client lawyer) discuss crypto-assets, including what they are, essential terms, tracing, taxation and division. This episode includes all the information required to understand this form of asset.
‘Finding the middle ground’ - in this episode Dr Mark Berelowitz (Consultant Child and Adolescent Psychiatrist) and Alex Verdan KC discuss how to manage parental alienation and high conflict cases. With Resolutions thanks to Louise Tickle for a correction in the law from the first episode.
The draft Finance Bill 2022-23 https://www.gov.uk/government/publications/capital-gains-tax-transfers-of-assets-between-spouses-and-civil-partners-in-the-process-of-separating, released on 20 July, goes much further than the OTS’ recommendations. The headlines are as follows:
- No gain/no loss treatment extended to three years following the year of separation or date of decree absolute if earlier than 3 years
- No gain/no loss treatment with an unlimited time frame if the assets are subject to a formal divorce agreement (s225B(2)(a) or (b)https://www.legislation.gov.uk/ukpga/1992/12/section/225B - effectively a consent or court order)
- Where A has retained a financial interest in the property they will be able to claim PPR when the property is sold or transferred to a third party. This replaces the current rule under s225B that PPR applies on a transfer from one party to another (that will become redundant with the unlimited time frame if an order)
- For Mesher type arrangements where spouse A transfers to B, B resides and A does not get a share of the sale proceeds until many years later then the disposal date of that later interest for A is deemed to be the date of original transfer on a no gain/no loss basis (at present this is more complex as you may be able to claim PPR for the period of occupation by B but then have potential CGT between end of order and sale).
The consultation on the draft legislation ends on 14 September 2022. So what does this mean for family lawyers:
- The provisions will come into effect on or after 6 April 2023
- Life will be far simpler with much less risk about CGT arising in the context of divorce
- There is more parity on divorce with the other taxes – including SDLT
- There may be some merit in waiting to do a deal if it means you can claim the no gain/no loss treatment post April 2023 – that will be completely dependent upon a number of factors.
- Overall CGT is still an important consideration in the financial settlement – although there is not an immediate charge and cash flow issues – the transferee will still take the asset at base cost and will therefore have that to consider the CGT when they ultimately dispose of the asset(s)
The legislation is only in draft at this stage so it may change. If it comes into effect, this is a real result for families who potentially will no longer need to go to the expense of tax reports, advice and rushing to transfer assets.
In this episode, host Simon Blain and Anita Mehta talk to Brie Stevens-Hoare QC and Charlotte John, both at Gatehouse Chambers, about the intersection between civil and family proceedings.
In particular, they consider trusts of land and proprietary estoppel cases.
Resources
Pickering v Hughes & Ors [2021] EWHC 1672 (Ch)
https://www.bailii.org/ew/cases/EWHC/Ch/2021/1672.html
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Music credit: Hopefully Flies - Magnus Moone
In this episode, host Simon Blain and Anita Mehta talk to Alex Verdan QC and Dr Mark Berelowitz about their approach to high conflict relationships and the contested issue of parental alienation.
More information
More information on this Resolution podcast:
https://resolution.org.uk/podcast
Music credit: Hopefully Flies - Magnus Moone
In this episode, host Simon Blain talks to Rachel Spicer and James Pirrie about their approach to cases involving the Child Maintenance Service.
Jurisdiction of the CMS
1) Geography: The parent with care and child must be based in the United Kingdom – as
must (with some extensions) the non-resident parent
2) Age and stage: Broadly, the CMS has jurisdiction until the 31st of August in the year that the child completes their A-levels after A-levels, for those young people going on to university
3) Parentage: Applications can only be made for a qualifying child (s3 CSA ’91) as regards
“a parent”, which (per s54) means any person who is in law the mother or father of the
child. Thus natural 19 or adoptive parents 20 are in whilst step-parents, even those granted
parental responsibility or the object of a residence / child arrangement order are not.
4) Separation: Whilst the courts can make orders anticipating the separation of the parties,
only if separation has taken place does the CMS become able to receive an application for
provision (and it must follow that until this point, the court has a free hand to make an
order).
5) Order: Finally there is the question whether the court has made an order or not. If
the court made an order i) Prior to 3rd March 2003; or ii) on or after 3/3/2003 but within the
previous six months then such an order excludes the CMS from involvement.
Further information and resources
NACSA - https://www.nacsa.co.uk/
Child Support Handbook - https://cpag.org.uk/shop/cpag-titles/child-support-handbook-202122
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Music credit: Hopefully Flies - Magnus Moone
Hosted by: Anita Mehta and Simon Blain.
Guests:
- Prof Jo Delahunty QC
They discuss her work promoting diversity in the legal profession, her thoughts on the Court of Appeal case of Re H-N and on dealing with cases of abuse within the legal profession.
Further information and resources
https://www.gresham.ac.uk/professors-and-speakers/professor-jo-delahunty-qc
https://bridgingthebar.org
https://www.speakersforschools.org
More information
More information on this Resolution podcast:
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Music credit: Hopefully Flies - Magnus Moone
Hosted by: Simon Blain.
Guests:
- Cris McCurley (Partner, Ben Hoare Bell)
- Pragna Patel (Southall Black Sisters and Women Against Fundamentalism)
They discuss their hopes and concerns for the Domestic Abuse Act 2021 which received royal assent earlier this year. They also consider other developments such as the publication of the "Assessing Risk of Harm to Children and Parents in Private Law Children Cases" and the recent case of Re H-N.
Further information and resources
https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895173/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf
https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf
https://southallblacksisters.org.uk/
More information
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Music credit: Hopefully Flies - Magnus Moone
Hosted by: Anita Mehta and Simon Blain.
Guests:
- Paul Cobley (Oak Barn Financial Planning)
- George Mathieson (Mathieson Consulting)
- Rhys Taylor (The 36 Group)
They discuss the work they are involved in to produce better guidance both for practitioners and the public on the issue of pensions on divorce.
Further information and resources
https://www.nuffieldfoundation.org/project/pensions-on-divorce-interdisciplinary-working-group
https://www.nuffieldfoundation.org/sites/default/files/files/Guide_To_The_Treatment_of_Pensions_on_Divorce-Digital(1).pdf
https://www.advicenow.org.uk/pensions
More information
More information on this Resolution podcast:
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Music credit: Hopefully Flies - Magnus Moone
Hosted by: Anita Mehta and Simon Blain.
Guests:
- Louise Tickle (Journalist and committee member of The Transparency Project)
- Professor Celia Kitzinger (School of Law and Politics, Cardiff University and co-founder Open Justice Court of Protection Project)
They discuss their work to ensure greater transparency in the operations of the Family Court and the Court of Protection.
Further information and resources
https://openjusticecourtofprotection.org/
https://www.transparencyproject.org.uk/
https://www.louisetickle.co.uk/
https://openfamilycourt.wordpress.com/
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Music credit: Hopefully Flies - Magnus Moone
Hosted by: Anita Mehta and Simon Blain.
Guests:
- Jo Miles (Reader in Family Law & Policy, Director of Studies and Fellow in Law, Trinity College, University of Cambridge)
- Lucia Clark (Partner, Morton Fraser LLP, Edinburgh)
- Graeme Fraser (Chair, Cohabitation Committee and Partner, OGR Stock Denton)
They discuss the case for cohabitation law reform in the light of experiences north and south of the border.
Further information and resources
Cohabitation Agreements:
https://resolution.org.uk/publications-books/cohabitation-agreements-online-and-print/
How to draft a cohabitation agreement:
https://resolution.org.uk/learning-at-home/modern-families/drafting-cohabitation-agreements/
Cohabitation Claims - 2nd Edition:
https://resolution.org.uk/publications-books/cohabitation-claims-2nd-edition/
Webinar: Anglo-Scottish Separation – Cohabitation Law North and South of the Border
Includes: Kate Dowdalls QC, Scottish Law Commissioner and Professor Nicholas Hopkins, England and Wales Law Commissioner
https://resolution.org.uk/learning-at-home/
Running cohabitation claims with confidence:
Workshop with Rhys Taylor and Andrzej Bojarski
https://resolution.org.uk/running-cohabitation-claims-with-confidence/
Resolution Cohabitation Committee:
https://resolution.org.uk/committee/cohabitation-committee/
More information
More information on this Resolution podcast:
https://resolution.org.uk/podcast
Music credit: Hopefully Flies - Magnus Moone
Hosted by: Anita Mehta and Simon Blain.
Guests: Pauline Fowler (Chair, Resolution's Pensions Tax and Financial Remedy Committee), Daniel Eames (Chair, Resolution's International Committee) and Tim Amos QC about the key implications for family lawyers of Brexit.
They discuss specifically: issues regarding divorce jurisdiction, forum and recognition now the UK has left the European Union.
Further information
Resolution's International Committee have recorded two webinar updates that consider the key issues for members as of December 2020.
https://resolution.org.uk/brexit-briefings/dec-2020/
Guide to International Family LawThis was updated in January 2021 to take account of the changes with Brexit:
https://resolution.org.uk/guide-to-international-family-law/
More information on this Resolution podcast:
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Music credit: Hopefully Flies - Magnus Moone