Spring 2020

No 18 Chambers eBulletin


As we enter the 5th week of lockdown in the UK, the Coronavirus pandemic has brought with it several significant challenges. From a Family Law perspective, two of the most concerning challenges is the significant increase in domestic abuse reports, as well as an increase in the issuing of care proceedings.

Domestic Abuse

According to news reports, the past few weeks have seen a reported 25% increase in the number of calls and online requests to the National Domestic Abuse Helpline. Adding the stress and worry of Coronavirus and the problems that come with it to an already strained relationship is likely to lead to significant harm or risk of significant harm to both the individual and any relevant children.

Whilst this current period of lockdown has significantly restricted movement, it is important to recognise that the Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 allows those to leave their property if they are escaping a risk of harm as it has been classed as a ‘reasonable excuse’ (Section 6(2)(m)).

An option to those who may be suffering from domestic abuse during this time is a non-molestation order. This is an order which prevents the Respondent from using or threatening violence, damaging property, and/or communicating with the Applicant in any form (including indirectly and through other people). The aim is to maintain the health, safety and wellbeing of the Applicant and/or any relevant child. Such orders can be made urgently and, if necessary, without notice to the other party.

No18 Chambers can assist in presenting applications for non-molestation orders to the Court and can also represent those who may be a Respondent to an application.

Care Proceedings

The pandemic has also led to a sharp rise in care proceedings being issued. It has been reported that financial constraints, families being confined together, and other general worries at this time has led to an increased concern that vulnerable children are at risk of suffering or are suffering significant harm. Domestic abuse, as discussed above, and alcohol misuse by parents are also toxic factors.

Care proceedings and emergency applications are being prioritised by the Court. Such cases are mainly being conducted remotely and attempts are being made to ensure that these proceedings progress with as little delay as possible for the sake of the child.

The report as to the increase in care proceedings can be found here:


No18 Chambers are able to represent all parties at all stages of care proceedings, including urgent applications.

re Carluccios [2020] EWHC 886 (Ch) on Administrators and the Coronavirus Job Retention Scheme

Snowden J. delivered a ruling in the High Court (Business & Property Courts) on the first published decision under the Coronavirus Job Retention Scheme (‘CJRS’).

Carluccio’s closed its 70 branches on 16th March to meet the Government’s strategy to mitigate the spread of COVID-19. Subsequently, its financial situation dipped and it went into administration on 30th March 2020 by order of ICC Judge Mullen, with the jobs of its 2,000 odd employees at risk.

The Administrators sought urgent guidance from the High Court on a number of issues arising from a proposed furlough of the Company’s staff, as part of a plan to sell the business whilst retaining staff. Chief among the issues was guidance as to how paying employees monies received under the CJRS would not fall foul of the duty to distribute assets in priority under insolvency legislation.

Whilst the Court recognised there were well trodden fields of Trusts law providing methods for excluding monies from an insolvent (i.e. Barclays Bank v Quistclose Investments Ltd [1970] AC 567 and Carreras Rothmans v Freeman Matthews Treasure Ltd [1985] 1 All ER 155), no mention of ‘trust’ featured in the CJRS Guidance or statements from Government Ministers.

The Administrators proposed to furlough employees by a letter seeking to carry out what they considered to be the necessary variations to give effect to the prospective scheme including –

- Employees would only be paid at CJRS rates (80% of wages up to £2,500pcm);

- Payment would only be made if the Administrators received a grant under CJRS;

- Any payment to the employee would be limited to sums received;

They were unable to delay beyond 13th April 2020 after which fall outside of the “safe period” of 14 days during which their actions would not amount to the adoption of any contracts of employment.

The concern arose as whilst the HRMC had issued relatively comprehensive guidance, the Scheme itself was yet to be published and the precise detail of its operation was not fully clarified, particularly in relation to its interplay with insolvency legislation, in particular the difficulties associated with monies passing to the Employer first and thus constituting an asset that must be disposed of in order of priority in accordance with the legislation.

Judgment was published on 13th April 2020 following remote video hearings over the course of 6th – 9th April 2020 and, despite the Scheme not having been published and insufficient time to join either the Government or affected employees (save that the interests of some were represented via their union, ‘Unite the Union’). Snowden J. acceded to the Administrators requests, of the view–

“… it is right that, wherever possible, the courts should work constructively together with the insolvency profession to implement the Government’s unprecedented response to the crisis in a similarly innovative manner”

Conscious that the HMRC Guidance, whilst making the it available to them, suggested administrators’ access to the Scheme should be limited to those administrations where there was a “… reasonable likelihood” of rehiring workers…”, heard evidence that there had been several expressions of interest in the Company before finding the Scheme was potentially appropriate.
In short Snowden J. held the Administrators were able to furlough employees, making a number of findings –

- The administrators had validly varied the Company’s employees’ contracts so as to put in place a furlough agreement (for those who had agreed to it);

- That those employees who had not yet responded were deemed not to have had their contracts amended. Although implied acceptance by conduct was possible, it was not appropriate to make that findings given notice had only been given a matter of days beforehand and in light of the fact some had rejected the proposals;

- The Administrators would in effect have ‘adopted’ the contracts of furloughed employees for the purposes of para 99(5) Sch.B Insolvency Act 1986 when they made claims for funding under CJRS (deeming the legislation should be interpreted to give CJRS effect, despite staff not actually attending for work). This in effect was to render payments under CJRS payable to employees in priority over unsecured creditors and over the Administrators fees and expenses of the distribution as a floating charge (‘super-priority’);

- In consequence of the ‘adoption’, the consenting employees would have super-priority to receive the furlough payments under CJRS ahead of the Administrators’ fees and expenses, flouting charge and unsecured creditors.

- Further, if the employees who were yet to respond belatedly responded accepting the offer, would fall into the same position as the consenting employees.

However, the unvaried contacts of non-responders would not be treated as adopted at the end of the 14-day period and so the administrators would not have to take the precaution of dismissing those employees in order to avoid incurring super-priority liabilities towards them.

Andreewitch v Moutreuil - Procedural Irregularity and the Right to Remain Silent

The Court of Appeal has published its decision in the case of Andreewitch v Moutreuil [2020] EWCA Civ 382, a case concerning an appeal against findings made at a committal hearing in February 2020.

The parties, Mr Andreewitch and Ms Moutreuil, have been engaged in proceedings since 2019, beginning with financial remedy proceedings. The application for Mr Andreewitch’s committal was borne out of those proceedings, issued by Ms Moutreuil after Mr Andreewitch refused to comply with his duty of disclosure.

During the committal hearing, Mr Andreewitch appeared as a litigant in person.

The Judge, Lieven J, took care to ensure that Mr Andreewitch was aware of his right to legal representation, and to legal aid, during the hearing, but Mr Andreewitch preferred for the hearing to go ahead. Mr Andreewitch proceeded to give oral evidence, being cross-examined by counsel for Ms Moutreuil for approximately 2 hours.

At the conclusion of the hearing, a number of findings were made against Mr Andreewitch, and Ms Moutreuil’s application was successful.

The Appeal

Mr Andreewitch, acting in person, subsequently appealed the decision of Lieven J on 7 grounds, the most important being:

“2. Appearing as a litigant-in-person, the judge ought first to have explained to me that in a committal proceeding I was not obliged to give evidence at all. I was given no such warning. To the contrary, I was asked to give evidence and was immediately cross-examined.”

The substance of Mr Andreewitch’s appeal was that he had a “right to remain silent”; a right not to give evidence at all. The Court referred to the decision of Sir James Munby P in L (A Child) [2016] EWCA Civ 173:

“31. The absolute right of a person accused of contempt to remain silent, which carries with it the absolute right not to go into the witness box, was established in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, where this court held that such a person is not a compellable witness.”

In giving his judgment, Peter Jackson LJ drew particular attention to the care that needs to be given when the court is concerned with litigants in person. At paragraph 20 of the judgment, he stated:

“Had [Mr Andreewitch] been informed that he was not obliged to give evidence, it is not possible to be sure that he would have done so, and had he not done so the judge's findings might not have been the same. Put another way, there has been a serious procedural irregularity that justifies the grant of permission to appeal and the allowing of the appeal on this ground.”

This decision of the court makes it clear that the court has a duty to ensure that litigants in person are fully aware of their “right to remain silent”, and not to do so would constitute a ground for appeal on the basis of a procedural irregularity.

Removal from the jurisdiction – a bit of a Payne?

In any case where the court is faced with an application for removal of a child from the jurisdiction, whether permanent or temporary, the paramount consideration remains the welfare of the child in accordance with the welfare checklist (s.1(3) Children Act 1989).

Payne v. Payne [2001] EWCA Civ 166 was a case in which the mother’s application to return to New Zealand with the children was granted, having resided there with them initially before the parents separated. Thorpe LJ sets out four questions for the court to consider in an application for removal:

“a) …Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask, is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

  1. b) If, however, the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
  1. c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
  1. d) …An overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist”

Although the Payne guidance is still considered in such applications, it is clear that it is not a prescriptive test and should not be too heavily relied upon. In GT v. RJ (Children - Leave to Remove) [2019] 1 FLR 46, Mostyn J dismissed a mother’s application to remove the parties’ children to Ukraine. At paragraph 2 of his judgment, he stated:

“The legal test to be applied is now very straight-forward. It is the application of the principle of the paramountcy of the children's best interests…That principle is not to be glossed, augmented or steered by any presumption in favour of the putative relocator. Lord Justice Thorpe's famous "discipline" in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, guidance which can be drawn on, or not, as the individual case demands. In fact, most of the features of that guidance are statements of the obvious.”

That legal test has been applied by Mostyn J again in the recent case of AY v AS & Another [2020] 1 FLR 536.

It seems that the way forward in such applications now is not for the court to disregard entirely the guidance from Payne, but to apply it subject to a global view of the case and its merits, and, of course, always subject to the welfare of the child as the court’s paramount consideration.

LA v M, F, and CG [2020] EWHC 1086 (Fam)

Mrs Justice Lieven decided to hear lay evidence remotely but keep the matter under review.

The Judge had heard 5 days of medical evidence by Zoom remote platform in a care case and adjourned the trial to hear submissions on whether the hearing should continue with evidence from the parents and other lay witnesses via Zoom.

This was an application for a care order in respect of SX - a 4 year old child.

Summary of facts:

April 2019 - AX a 2 month old sister died at home of unknown causes.  When a post Mortem and subsequent investigation was carried out AX had sustained 65 fractures to various parts of her body.  The LA were granted an ICO since when SX had been in LA foster care.  There were considerable delays in getting the case to a full hearing.  There was an issue as to whether the F could continue to give his evidence.  He was assessed by a psychiatrist and certified as able to participate in the proceedings - in particular by video.

The Judge reminded herself of Re P (A Child Remote Hearing) [2020] EWFC 32 and the advice by MacDonald J on remote hearings.  The Judge reminded herself as to what the President said in Re P at paragraphs 22-29 of the judgment.  The Judge then refers to the Court of Appeal cases of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 584.  Mrs Justice Lieven referring to Re A paragraphs 3, 9 and 10 then considered SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 - paragraphs 36-41 concerning the assessment of witnesses.

The Judge concluded by stating that it is clear from Re A that the Court of Appeal is not saying all fact finding cases should be adjourned because it is an exercise that cannot be undertaken remotely.  The Judge then set out her conclusions in terms of considerations required in order to determine whether to proceed remotely or not.   A summary of considerations appears at paragraphs 31-52 of the judgment.  The considerations are:

  1. The importance and nature of the issue to be determined.
  1. The need for urgency.
  1. The question of legal representation.
  1. The ability of the parents to engage in the proceedings.
  1. The case should not be one proceeding on submissions alone.
  1. The evidence involved was lay evidence of fact which was strongly contested.
  1. The length of the hearing.
  1. The platform in use - in this case Zoom - technology so far had worked reasonably smoothly.
  1.  The ability of the court and the participants to manage the technology.
  1. Whether there are any safe alternatives that would allow some parts of the evidence to be heard in court.

Taking all the above factors into account the Judge concluded it was appropriate to continue to hear the case remotely by Zoom