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Financial Provision

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  • The mother had wrongfully retained the son in England at the end of an agreed six-month visit, and then, after a court-ordered return to Ukraine, she had wrongfully removed him to England. In Hague Convention proceedings intended to secure his son's return, the father applied for disclosure of material generated during the child's successful application for asylum in England. This material, the father argued, formed the basis upon which he was being denied a remedy in the Convention proceedings. Prior to asylum being granted, orders had been made (and upheld) requiring the child's return. The question now was whether the court had locus or jurisdiction to take any further steps in the 1980 Convention proceedings or if they had come to an end by operation of law. Roberts J acknowledged the father's frustration at being unable to enforce the orders which he had secured, and the potential unfairness of an asylum process in which he had no right to see or challenge the evidence submitted. However, she dismissed the application for disclosure of the asylum file, describing it in part as little more than a fishing expedition into the prospects of a collateral challenge to the Secretary of State's decision. The child's Article 8 rights, those of his mother and the wider policy considerations underpinning the confidentiality of the asylum process tipped the scales firmly in favour of refusing disclosure. Different considerations might apply in proceedings under the Children Act 1989 or otherwise. The return orders would be set aside. Judgment, 08/10/2021, free
  • The former wife appealed against an order consequent upon a financial remedies hearing which had occupied several days in November and December 2020, following which the judge had circulated a draft reserved judgment which itself generated a request for clarification, further email submissions and ultimately a slightly revised approved judgment. The three live grounds of appeal were that the judge had been wrong to make no provision for the wife’s liabilities, had failed to step back and cross-check his award to ensure fairness, and had wrongly imposed a s 28(1A) bar. The latter ground of appeal was dismissed: the actual order made was within the available discretionary outcomes, and justifiable on the evidence. However, in the view of HHJ Mark Rogers, the practical impact of the judge’s exclusion of the costs liability had been to reduce the capital available to the wife for housing by about 37%, contrary to his own assessment of her housing need. The judge’s approach to the calculation of the correct needs-based lump sum had been wrong in law. As to the cross-check, failure to carry one out was not strictly capable of being a ground of appeal, as it was the ultimate decision that was under review, but, in the view of HHJ Mark Rogers, the judge’s failure to do so was clear and illustrated his failure to engage with the true discretionary process. The appeal was allowed and the lump sum order of £475,000 was set aside. The matter was not remitted; HHJ Mark Rogers assessed the appropriate lump sum award at £600,000. He directed that the husband should pay the wife’s costs of the appeal, the quantum of which was determined in a summary assessment, at the joint request of the parties. Judgment, 31/08/2021, free
  • The former husband appealed against an order committing him to prison for six weeks unless he paid the sum of £50,000 to his former wife, as previously ordered by Mostyn J, by way of maintenance. The order was made under s 5 of the Debtors Act 1869 and the judgment summons procedure in Order 28 of the County Court Rules 1984. Underhill LJ noted that a judgment debtor can only be committed if the creditor proves to the criminal standard that the debtor had the means to pay the sum in question at the relevant date, but had refused or neglected to do so. The former husband appealed on the ground that the judge could not have been satisfied beyond all reasonable doubt that he had the sum in question. Underhill LJ did not accept that submission. There was no rule that the only way in which the judge could be sure of that point was by explicit evidence given at the time of the committal hearing. What was required would depend on all the circumstances of the case, including such inferences as it was proper for the judge to draw from the evidence that he did hear, which might include an inference that unless there were some reason to believe to the contrary the original default was continuing. In the circumstances of the present case, the judge had been fully entitled to conclude to the criminal standard that the money was still outstanding. Nugee LJ agreed. The appeal had been lodged seven days out of time; the extension was allowed, and the appeal dismissed on the merits. Judgment, 23/08/2021, free
  • The wife had previously sought to register and enforce the financial provisions of a 2010 French order through the English courts, but rather than applying under the Maintenance Regulation in the Family Court had made the application in the High Court. The mistake came to light in March 2020. An application for rectification had failed since there was insufficient evidence for the court to be satisfied that the husband was habitually resident or had assets in England, and previous orders for enforcement were declared null and void. The wife now appealed against this decision on the ground that the judge had erred in failing to find the conditions in FPR PD 34E para 4 to have been satisfied, but her appeal was dismissed by the Court of Appeal on the basis of the respondent's notice, which argued that the court had made an error of law in finding that FPR 4.1(6) was sufficiently wide to allow the relief sought by the wife. The wording of FPR 4.1(6) did not provide for rectification, only for variation or revocation. In King LJ's judgment, even if FPR 4.1(6) had been engaged and an order of variation made, the court could not possibly justify backdating the order to September 2017 when the evidence necessary for the making of the order had not been before the court at the time the original order was made. It was therefore unnecessary for the Court of Appeal to hear argument in relation to FPR PD 34E. Lewison LJ and Sir Nicholas Patten agreed. The appeal was dismissed. Judgment, 31/07/2021, free
  • This was a second appeal in a financial remedy case described by the court as an exercise in self-destruction, the costs having become so disproportionate relative to the assets. The judge at first instance had made an order providing the husband with funds sufficient to buy a modest property and to pay most of his costs. The wife had appealed on the basis that the husband should not have been awarded anything at all and should bear his own costs. The appeal had been allowed, and the direct payment referable to the husband's costs had been substituted with a charge for the same sum to be secured on the property he would in due course purchase. The husband now appealed against the imposition of the charge. In King LJ's judgment, in cases where an order substantially in excess of the sum required to meet a party's assessed needs was sought in order to settle their outstanding costs (or debts referrable to costs), the judge should: (i) consider whether in any event the case was one in which an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4 should be made; and (ii) have firmly in mind what the order they proposed to make by way of additional lump sum to meet a party's costs would represent if expressed in terms of an order for costs. This would act as a cross check of the fairness of the proposed order. In her view the order originally made by the judge, which allowed the parties to achieve a clean break, could not be regarded as being outside his wide discretion such that it was appropriate for his order to be altered on appeal. Moylan and Newey LJJ agreed. The appeal against the imposition of a charge on the property the husband hoped to buy was allowed. Judgment, 31/07/2021, free

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