Newsletter Winter 2018

Sharing after Sharp v Sharp [2017] EWCA Civ 408 13/06/2017 - Gary Fawcett

If you do not have time to read the 20 odd thousand word judgements in this financial remedy case, here is a short appraisal.

 

Facts

1&1/2 years of cohabitation

4&1/2 years of childless marriage

Parties worked, basic salary similar (£100k), but W received bonuses of £10m during marriage

No deliberate and agreed intention to maintain strict separation of their finances, there were some significant aspects of their financial arrangements which indicated a degree of separation eg the splitting of restaurant and household utility bills between the parties, the husband was not privy to the details of bonuses received by the wife, and the wife's gift of three Aston Martins to the husband.

Total assets were £6.9m, comprising two properties, one (fhm) purchased by W before the relationship.

The figure for matrimonial assets used by trial judge Sir Peter Singer was £5.45m, he arrived at that figure by subtracting from the total assets £1.1m, being the value of one of the parties' homes, which H conceded (wrongly?) should be excluded from the pot of matrimonial assets, and £350,000 to reflect the balance of other pre-acquired assets.

The trial judge found that no sufficient reason had been identified for departing from equality of division and awarded the husband £2.725m. (His comment ‘the parties, in effect, subscribe (to the sharing concept) when they marry unless they choose to opt (or attempt to do so) with a prenup’ was disapproved by the CAp)

The Court of Appeal disagreed with the award and reasoning, McFarlane LJ delivered the main judgement in which the husband's claim was limited to £2m, calculated as follows:

            £1.3m being a 50% share of the aggregate value of the parties' two properties, which were          held in joint names; and

            £700,000 to reflect three factors: (i) the standard of living enjoyed during the marriage; (ii)            the need for a modest capital fund to live in the property the husband was to retain; and (iii)   some share in the assets held by the wife.

McFarlane LJ stated that any interpretation of paragraph [86] of the Court of Appeal judgment in Charman [2007] EWCA Civ 503, (24/05/2007) as expressing a preference for the views of Lord Nicholls in Miller, over the clear majority view, was erroneous (see para [80]). (Charman was not a short marriage nor a dual-career case; the observations at paragraph [86] were obiter).

The majority approach in Miller [2006] UKHL 24, (24/05/2006) was the authoritative guidance in relation to such cases. The ‘inescapable conclusion’ of the majority approach was that in relation to ‘short, childless marriages, where both spouses have largely been in full-time employment and where only some of their finances have been pooled’ fairness may require departure from, rather than a strict application of, the equal sharing principle. This departure may occur via ‘a reduction from a full 50% share or the exclusion of some property from the 50% calculation’.

McFarlane LJ said his court had to follow the majority view in Miller i.e. Baroness Hale’s approach (paragraphs 148-152) supported by Hoffman LJ (para 100). Mance LJ endorsed paras 150 - 153 of Hale LJ’s reasons. (However Lord Hope of Craighead at para 101 diplomatically (but not helpfully) said ‘I have had the privilege of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Baroness Hale of Richmond. I would find it very difficult to say to which of them I would give the award … On all points that are relevant to the disposal of these appeals I am in full agreement with them both’!).

The manner in which the parties arranged their finances was more than sufficient to establish that the wife maintained her capital separately, in a manner compatible with that described by Baroness Hale in Miller.

In Sharp, McFarlane LJ provides a good analysis of the relevant parts of White, Miller and other relevant cases.

Once again the higher courts make observation that where there are appropriate funds, sharing will apply, but give some indication of how the sharing principle can be departed from.

Harming Local Authorities or Arming Victims? - John Franklin, Tracey Hennessey

In the recent judgment of Armes v Nottingham City Council (2017) UKSC, by a majority of 4:1, the Supreme Court extended the concept of vicarious liability so as to include local authorities being liable for the actions of foster carers who had abused children in their care. In that case, the abuse complained of took between 1985 and 1988 under the pre-Children Act 1989 legislation.

The Supreme Court’s approach, derived from Cox v Ministry of Justice [2016] UKSC 10, was to find in the relationship between the local authority and local authority foster carers five factors that were also present in the relationship between employer and employees, where the concept of vicarious liability is a long-established principle. These five factors had previously identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the Christian Brothers Case) as usually making it ‘just, fair and reasonable’ to impose vicarious liability in the employer and employer relationship, and in his judgment could give rise to vicarious liability in relationships other than employer and employee.

Their Lordships and Ladyship rejected the idea that the imposition of vicarious liability might disincentivise local authorities from placing children in foster care and instead lead to more children being placed in residential care. Their reasoning was that local authorities are already vicariously liable for abuse committed in residential homes, and that private residential care is more expensive than foster care in any event.

Their Lordships and Ladyship also dismissed the ‘floodgates argument’, whereby the volume of abuse that emerge will eat into local authorities’ budgets and abilities to provide services in the present. Their Lordships and Ladyship simply say that in the event that abuse has been widespread, it is desirable to expose it.

While these arguments are attractive, they have to be set against a changing backdrop in how local authorities are able to fulfil their statutory duties. The latest Ofsted report ‘Fostering in England 2015 to 2016: key findings’ which was published in February 2017, revealed that there were significantly fewer applications to become foster carers in the reporting period, combined with a 1 % decrease in existing foster carer placements. These figures show what those practising in public law already know i.e. that it is increasingly difficult to find foster care placements for children who need them.

If the imposition of vicarious liability onto local authorities is likely to result in more stringent vetting of foster carers, this will increase the cost of foster care at the same time as the number of placements is falling. Thus, as the cost of foster care increases, the number of more expensive residential home places is also likely to be on the increase due to the fall in the number of foster care placements, further squeezing local authority resources and their ability to fulfil their statutory duties. This could result in a situation where local authorities have insufficient resources to provide enough residential home or foster placements.

The Ofsted report also revealed that in the reporting period there were 2,450 allegations of abuse against foster carers in 2015 – 2016, which was broadly in line with the number of allegations in the previous year. Assuming a same or similar number for each of the years since 1985 when the child in Armes suffered abuse would could amount to many tens of thousands of instances of abuse that will drain resources from local authority coffers. One has to wonder in the present fiscal climate, whether this decision will improve outcomes for the children in need of care now.

An Immigration Judge “Wholly Failing To Meet Standards That Are Demanded By The Office Of A Judge And Expected By The Parties” - Laura Baines

The Upper Tribunal has slammed an Immigration Judge for his handling of immigration cases. This has been described as unprecedented. The Immigration Judge in question is Immigration Judge Majid. The Upper Tribunal was hearing an appeal against 13 of his judgments. The Judgment makes for uncomfortable reading [AA/06906/2014 & Others [2017] UKAITUR].

The Upper Tribunal refers to the fact Immigration Judge Majid refers to no more than the most basic principles of law being referred to in the decisions and even then they seem to be quite wrong. The Upper Tribunal gives examples of the wrong principles used by Immigration Judge Majid.

In our judgment, these errors, and others to be found in Judge Majid’s decisions, are serious. They give the impression that the judge has very little idea of either his own (limited) powers or the content of the law that is in issue in the appeals before him. The error about the standard of proof in an asylum appeal is the sort of thing that the Upper Tribunal might well think was just an unimportant slip of the pen or ill-advised use of a standard paragraph if it occurred in a decision that was in other respects clearly an application of the appropriate law and standard of proof, but in Judge Majid’s decisions there is so little attention paid to the law or the actual facts of the cases that no such allowance can be made” [para 22].

The Judge was under the impression he was able to allow an appeal on the basis of his discretion or dismiss it on the basis of his impression of the economy is similarly a really serious error. The Upper Tribunal found it particularly troubling that this feature of the Judge’s decisions appears to replace, rather than supplementing, the necessary consideration of the legal issues actually raised by the appeals. In terms of consideration of the legal issues the decisions are almost wholly silent [para 24].

Specific reference to the facts of cases is sparse; in some of the decisions it is even sparser than specific reference to the law” [para 28].

Given that Judge Majid makes no detailed reference to facts or to law, it might be expected that his decisions are short, and indeed they are. Despite that, however, they are full of observations many of which are of dubious correctness, some of which are of dubious relevance, and a few of which are wholly inappropriate” [para 37].

It seems to us that the complaints made about Judge Majid’s decisions are entirely well-founded. Nobody reading them could detect how the judge reached the conclusion he did, acting within the law and applying the relevant substantive law to the facts as found. That is partly because the law and the facts are never the subject of any detailed reference, disputes on the facts are not identified, and there are next to no findings of relevant fact; more seriously is it because the Judge’s statements in his decisions, either by direct assertion or by disquisition on the irrelevant, give real reason to suppose that he is not even trying to act within the law and apply the relevant substantive law to the facts as found” [para 46].

We regard the body of his work that we have examined in the course of these appeals as wholly failing to meet the standards that are demanded by the office of a judge and expected by the parties. As a result, every one of the decisions under appeal shows error of law, in most cases serious error, in most cases multiple serious errors. Whether the decisions are looked at together or separately, they show that nobody should assume that Judge Majid has an adequate knowledge of the law or of his task as a judge. If his decisions continue to have the features we have identified in the foregoing examination, they are clearly open to criticism.” [para 47]

In each case, Immigration Judge Majid’s decision was set aside or remitted to the First-tier Tribunal. Following publication of the ruling, a judicial spokesman did confirm that there has been a complaint against Immigration Judge Majid. Issues concerning conduct and discipline are in the first instance responsibilities of the Chamber President.

Injury to Feelings Awards - Barnaby Large

Is the Joint Presidential Guidance 'Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd' relevant to assessment claims for injury to feelings issued prior to September 2017?

Yes, held the Court of Appeal in Durrant v Chief Constable of Avon & Somerset Constabulary.

The Claimant, a woman of mixed race, was successful in her race discrimination claim against the Respondent regarding her treatment in respect of a suspected assault. She successfully demonstrated discrimination with the Court finding:

•  whilst grounds for arrest were proper, the police initially focused on arresting her before the white men who were also suspected of involvement;

•  the Claimant's hands were handcuffed behind her back;

•  there was significant delay in allowing her to use the toilet, such that she was obliged to urinate on the floor of her cell in front of male staff.

The Claimant was awarded £4,950 for injury to feelings and appealed to the Court of Appeal who increased this to £14,000. The Court applied the guidance, despite accepting it had not at that date to come into effect, "as the best way in the circumstances in which this court finds itself of making due allowance for the effect of interest and an appropriate element of uplift in relation to the long and hard road...".

The arrival of Practice Direction 12J- Domestic Abuse is brought to the forefront - Katherine Henry

PD12J came into force on 2nd October 2017 following a review by Mr Justice Cobb. This was as a result of recommendations made by the All Party Parliamentary Group on Domestic Violence in its briefing dated 29 April 2016 and by Women’s Aid Federation of England (WAFE) in its ‘Nineteen Child Homicides’ report published in February 2016.

PD12J sets out what the court “is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse”.

Numerous amendments have been made. However, some key points to note:

  • There is an expanded definition of “domestic abuse” (paragraph 3).
  • Mandatory requirements at paragraphs 8,14,15,18, 22 and 29 have been added to be specified in the court’s order. In particular it is highlighted at paragraph 14 that “the court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.
  • Special measures for victims are considered both before court (paragraph 10) and during evidence (paragraph 28).
  • In cases of domestic abuse, the court should take steps to obtain information about facilities available locally (paragraph 32).
  • Clear consideration should be given “in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent” (paragraph 36).

In his circular issued on 14th September 2017, the President of the Family Division stated “Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.”