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FAMILY
NEWSLETTER Autumn 2009
EDITORIAL INSIDE
by Catherine Gargan, head of the Family Team
Welcome to the Autumn edition of the Family Newsletter. We return to a When is a promise a promise? 3
new legal year after the ‘glorious’ summer that never arrived but during which Jamie De Burgos
the Court of Appeal were hyperactive in our field before departing for their It was an ‘L’ of a time coming 3
holidays! As you reluctantly leave Re L on your desks and tread delicately around William Tyler
the possibility of findings after Re D, we hope you will find the articles and case Enforcement of Care Orders 4
summaries helpful and informative as we have endeavoured to deal with the ‘buzz’ in Scotland
topics of the moment. Patricia Cave
While for our profession the battle continues as we face ongoing challenges Low-money Ancillary Relief and 5
with the proposed cuts of public funding, as a team we intend to fight these and Children
where we can and continue to offer a committed and professional service to our Kate Makepeace Grieve
publically funded clients. On a personal note, I am delighted to return as ‘Head’ of Case Notes: 6
such a strong team and thank Gillian Temple Bone for all her hard work over the D (Children); Ansari v Ansari & Ors
last four years. David Ball and Emilie Pottle
Double bind:
the enforceability of pre & post nuptial agreements
by Andrzej Bojarski and David Ball
We consider the state of the law on pre-nuptial and post-nuptial agreements in the light of the recent decisions Radmacher v Granatino and
MacLeod v MacLeod. They conclude that a pre-nuptial agreement is merely a factor to be considered within ancillary relief proceedings. A fair
post-nuptial agreement is generally likely to be a decisive factor in such proceedings. It is not too unkind to say that the law on pre and post-nuptial
agreements is currently somewhat of a mess. Before wading into this mess this article first considers the difference between pre-nuptial, post-nuptial
and separation agreements. It then goes on to consider the effects of the Privy Council decision in MacLeod v MacLeod in December 20081, and
the Court of Appeal in Radmacher v Granatino in July 20092.
Agreeing to Disagree: sometimes, taken such agreements into nuptial agreement.
Pre-nuptial, Post-nuptial and account in ancillary relief cases as part of Separation agreements are rather
Separation Agreements ‘all the circumstances of the case’ which different. They can be binding contracts,
A pre-nuptial or ante-nuptial agreement must be considered under s.25 of the except insofar as they attempt to oust
is an agreement made at some point Matrimonial Causes Act 1973 (MCA). the jurisdiction of the court (s.34 of MCA
prior to a ceremony of marriage taking Generally any adjustment made in the 1973). In ancillary relief proceedings
place. A post-nuptial agreement is made light of the pre-nuptial agreement is the court retains the discretion to vary
at some point after the marriage has been modest but on extreme facts the parties the agreement or to provide a different
solemnised. A separation agreement is may be required to show cause as to why outcome. A separation agreement is a
by definition a post-nuptial agreement, the pre-nuptial agreement should not be factor which is considered in each case,
but is one made on separation but implemented by way of an ancillary relief with such weight being given to it as
before divorce. They are generally treated order in the same terms (e.g. Crossley is appropriate to the facts of the case
separately from post-nuptial agreements v Crossley: a case involving considerable (Edgar v Edgar and the long line of cases
because a post-nuptial deals with a wealth and a very short marriage of about stemming from it).4
possible separation, and a separation with 14 months).3
an actual separation. Post-nuptial agreements which provided Binding Post-nups post MacLeod
Historically, pre-nuptial agreements for a future separation were also likely to MacLeod v MacLeod was an appeal
have not been recognised as binding legal fall foul of the rule that such agreements from an Isle of Man court to the Privy
1 [2008] UKPC 64, [2009] 1 FLR
641
agreements in English Law. They have were contrary to public policy. Again they Council. It concerned a couple who were
2 [2009] EWCA Civ 649 been considered void on the grounds of would remain influential in ancillary relief American and married in Florida (where
3 [2007] EWCA Civ 1491
4 [1980] 1 WLR 1410 public policy. However, the courts have, proceedings in the same way as a pre- pre-nuptial agreements are common
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FAMILY
NEWSLETTER Autumn 2009
Double bind... (continued)
and are generally binding on the parties). nuptial agreement was made. The case grounds of public policy, yet it could still
On the day they married they entered was one which highlighted the different be taken into account as part of the s.25
into a pre-nuptial agreement. The husband outcomes upon divorce which would exercise of discretion. He also noted that
was a very wealthy man. They moved to result in different jurisdictions in Europe. there was no good reason as to why
live in the Isle of Man. During the marriage The issue was the extent to which the a pre-nuptial agreement in a marriage
the parties made two further agreements pre-nuptial agreement should limit the between English nationals should be
which varied the pre-nuptial agreement. husband’s claims. The first instance judge, treated differently from one involving
These were, therefore, post-nuptial Baron J, took only limited account of the foreign nationals (para 70).
agreements. Each of those post-nuptial agreement and awarded the husband a
agreements were negotiated by the substantial lump sum of over £5,000,000. Starting Points and Finishing Points:
parties who each had independent legal The wife appealed. In a long judgment, the Conclusion
representation. Baroness Hale reviewed Court of Appeal allowed the wife’s appeal There is something ironic about the
the historical position set out above. Her and remitted the matter for further leading male ancillary relief judges in
key conclusions were: consideration. The views of the three the Court of Appeal disagreeing with
judges require separate consideration to a female House of Lords judge about
a. It is not for the courts to change the ascertain what legal principles the case issues of inequality of bargaining power.
rule that pre-nuptial agreements are decided. Interestingly, there is some authority
not contractually valid or binding. Thorpe LJ questioned some of the confirming Baroness Hale’s view on
That is a matter for Parliament to conclusions on pre-nuptial agreements the unenforceable nature of pre-nuptial
consider. In fact, the Law Commission reached in the case of MacLeod. He felt agreements which Wilson LJ did not
has recently commenced a review of that rather than waiting for Parliament, consider (Fender v St John-Mildmay).
agreements between spouses. the courts could act to give more weight Nevertheless, the position at the
b. Post-nuptial agreements, on the other to pre-nuptial agreements. He clearly moment seems to be, in simple terms, as
hand, are quite different. Whereas a felt that the husband knew what he follows:
party may feel pressured to enter was doing when he entered into the
into an ante-nuptial agreement as pre-nuptial agreement and he should be • A pre-nuptial agreement is merely
the price required to enter into largely held to it. Thorpe LJ felt that most one of all the circumstances of
the marriage, once the parties are of the capital provision made for the the case to be considered at the
married that emotional pressure husband should be provided to him as ancillary relief hearing. The weight
has gone. a father rather than as a husband i.e. for to be given to it in each case will
c. A post-nuptial agreement is a binding the benefit of the children rather than depend on the circumstances of that
contract, although the court retains for his own personal benefit. It is clear case. A fairly negotiated pre-nuptial
a discretion to vary its terms in that Thorpe LJ was heavily influenced agreement, made with the benefit
ancillary relief proceedings. The law is by the fact that these parties each came of legal advice and an understanding
now that a post-nuptial agreement or from jurisdictions where the pre-nuptial of its consequences is likely to
a separation agreement, unless it can agreement would have been held to be given considerable weight and
be set aside on the usual contractual be binding on them. Whether such may well reduce a financial award.
grounds of misrepresentation, a robust approach would have been However, where a marriage is long
undue influence, mistake etc., is the adopted had the marriage been purely and particularly if there are children
starting point in the ancillary relief ‘English’ rather than an ‘international for which the agreement made no, or
proceedings. marriage’ is not clear. only limited, provision the agreement
Wilson LJ quite clearly stated that he may have less weight. Ultimately, the
In particular at paragraph 42 Baroness felt Baroness Hale in MacLeod had got outcome will be difficult to predict in
Hale commented that the court should the law wrong and that he knew of no such cases.
be alive to the risk of unfair exploitation, existing rule of law as to why a pre-nuptial • A post-nuptial agreement, so long
but should work on the assumption that agreement is void. However, he accepted as it is fairly entered into, is likely
each party to a properly negotiated that the wording of s.25 of the MCA to have more force. It is a binding
post-nuptial settlement should be able 1973 means that a party cannot rely on contract and so the court should use
to look after themselves. Just because such an agreement to bar consideration it as the starting point and consider
an agreement may not be what the of any of the other s.25 factors (para 120). whether there have been changes in
court would have done in the event of a So a pre-nuptial contract cannot be used the circumstances since it was made
divorce, that is not enough to set it aside. to defeat a claim for ancillary relief in the which require there to be different
same way as a compromise agreement or provision from what it intended.
Not Entirely Coinciding: contract might act as a defence to a civil
Wilson LJ v Baroness Hale and action. On the basis of the wording of s.25 This remains an area where the law is
Radmacher v Granatino and the decision in MacLeod therefore, likely to continue to develop. However,
The binding effect of pre-nuptial it cannot be argued that a pre-nuptial it should be noted that later in 2009
agreements was again considered in the agreement is presumed to dispose of the the Law Commission will commence its
recent case of Radmacher v Granatino. ancillary relief application. It is merely one review of the law on Marital Property
The wife was German and the husband of the factors to be considered. Arrangements with a view to reporting
French. However, they married in England Rix LJ deferred to Thorpe LJ and Wilson with a draft Bill in 2012.6 It will be
and spent most of their married lives here. LJ, but he was also concerned by the interesting to see how much judicial
5 [1938] AC 1 at 44 The wife was very wealthy before the anomaly that in the light of MacLeod a development of the law takes place whilst
6 See http://www.lawcom.gov.uk/
marital_property.htm marriage and at her instigation a pre- pre-nuptial agreement was void on the that review is being undertaken.
2
When is a promise a promise?
by Jamie de Burgos
When is a promise a promise which binds at law and not a cruel exploitative game? That was the question to be answered in Thorner v Curtis1
on appeal from the Court of Appeal to the House of Lords. It is a case with an old-fashioned resonance which in its curious facts harks back to the
great Lord Denning (of whom mention later), but it is contemporary in application to issues of contested probate or potentially to informal promises
within marriage or partnership as well as wider commercial relationships.
David Thorner for a period of almost unambiguous as Lord Denning’s analysis and there is sufficient certainty as to the
30 years worked hard, but without pay, on if promissory estoppel is in issue. By subject matter.6
the Somerset farm of his father’s cousin, contrast, to establish proprietary estoppel Lord Denning, so keen in years past to
Peter Thornton. Old Peter died without the assurance must be, according to use equity to do justice as the common
leaving an extant will although he had by Lord Walker “clear enough”4 and that is man saw it, would surely have relented
a subsequently revoked will of 1997 left dependent on context. from his tight definition in the Bolsom
the farm to nephew David. The revocation It is hard to disassociate the substantial case. He would have approved Lord
was not connected to David, but had farm work done by the unpaid David Walker’s analysis of the three elements
the effect that when, in November 2005, from the concept of equitable estoppel necessary for proprietary estoppel:
David found Peter dead at the farm and Lord Scott was keen to promote a representation or assurance given
there was an intestacy. So David who had a remedial constructive trust.5 But the to the claimant;7 a reliance on such
worked all those years for no recompense case really centred on oblique or implied representation or assurance; and some
saw the reward of the farm slip away. He promises. In 1990 Peter handed David detriment to be suffered by the claimant.
sued. a bonus notice relating to two policies That was the view that unanimously
The basis of David’s claim was on his life saying “that’s for my death prevailed in the result with the reversal
proprietary estoppel, but as the Court of duties,” and thereafter there were further of the Court of Appeal and victory for
Appeal stressed, Lord Denning MR had remarks, especially towards the end of patient David.
said: Peter’s life, which encouraged him to It would be heartless not to agree
continue the unpaid labour. Nothing was with the result. But was the Court of
“But in order to work as an estoppel, ever precise; nothing clearly delineated the Appeal so perverse? Yes, David had been
the representation must be clear and farm as David’s inheritance. exploited for his unpaid labour, but it
1 [2009] 1 WLR 776 reversing unequivocal, must be intended to be acted There was another lurking problem seemed conceded that in itself the fruit
[2008] EWCA Civ 732 and
for constructive trusts see on, and in fact acted on…In short, the with David’s case: as so often the situation of his labour would not be delivery of the
Proudman J in Clarke v Corless
[2009] EWHC1636 (Ch.) representation must be made in such in will cases the estate (the farm in this farm. Peter, taciturn and uncommunicative
2 Sidney Bolsom Investment Trust
Ltd v E Karmios (London) Ltd circumstances as to convey an invitation instance) kept on changing shape as land in life, died intestate. How, it is relevant to
3
[1956] 1 QB 529 at 540
[2009] 1 WLR 776 at para.
to act on it”2 was added or ceded. Such fluctuation ask, would David have launched his claim
54; Treitel, 12th Edition, at para
3–144
in the subject matter was not fatal, for, if there were a will which excluded him
4 [2009] 1 WLR 776, para. 56 No express representation had ever as Lord Neuberger commented, the from the farm? Perhaps Lord Scott’s solo
5 [2009] 1 WLR 776, para. 20, 21
6 [2009] 1 WLR 776, para. 90, been made and, as was quoted by Lord question was whether the assurances foray into ‘remedial constructive trust’ may
102
7 [2009] 1 WLR 776, para. 29 Walker, Treitel, Law of Contract3 is as related to the farm as at Peter’s death yet have some future life.
It was an ‘L’ of a time coming: an analysis of Re L-A and the
revived test for interim removal of children
by William Tyler
It is now at least 18 months ago that those acting for parents in contested ICO hearings in which the removal of the child was in issue starting telling
Judges and Magistrates that Ryder J somehow created a new test in Re L1 and that unless there was ‘an imminent risk of really serious harm’, removal
was unlawful. Somehow we all knew that this untenable assertion would have to come to an end sooner or later. And so it did on 14th July 2009
when Thorpe and Maurice Kay LJJ gave extempore judgment in the case of Re L-A (Children).2
The Court of Appeal found the Judge at first instance to have misdirected himself when he considered Re L to have ‘raised the bar for the Local
Authority’; instead, on appeal, the removal of four children was (essentially) permitted when chronic neglect (which had caused the proceedings to be
initiated) deteriorated into ‘something more serious, which, even in the short term, placed the children in jeopardy’.
It has always been clear (and this running through the relevant cases. In In Re L-A he described this proposition
was conceded by all parties in Re L-A) Re H he restated the important difference in these terms:
that Ryder J did not intend to create a between interim and final hearings:
new test; nor could he have done so, ‘[T]he decision taken by the court on
considering, as he was, Court of Appeal ‘Above all it seems to me important to an interim care order application must
authorities. It is those authorities to recognise the purpose and the bounds of necessarily be limited to issues that
which we must now return when seeking an interim hearing. There can be no doubt cannot await the fixture and must not
to persuade or prevent a court from that a full and profound trial of the local extend to issues that are being prepared
authorising interim removal. authority’s concerns is absolutely essential. for determination at that fixture.’ (Para 7)
1 Re L (Care Proceedings: Removal
Parents, however, need not fear that the But the interim hearing could not be
of Child), [2007] EWHC 3404
(Fam), [2008] 1 FLR 575
firm putting of Re L in its proper place will allowed to usurp or substitute for that trial. In Re H,3 he also set the test for interim
2 Re L-A (Children), [2009] enable Local Authorities to remove as in It had to be properly confined to control the removal higher than had previously been
EWCA ?? (Civ)
3 Re H (A Child) (Interim Care the bad old days of a decade or more ago. immediate interim before the court could the case (and much higher than a simple
Order), [2002] EWCA Civ
1932, [2003] 1 FCR 350 Thorpe LJ is the common judicial strand find room for the essential trial.’ (Para 38) exercise of operating the s.38(2) criterion):
3
‘In my judgment, the Articles 6 and 8 yet ‘it is hard to see the risk of short-term must be real and pressing and not
rights of the parents required the judge harm unless it be expressed in terms of speculative;
to abstain from premature determination the possibility of [the child] being caught • separation of parent and child is only
of their case for the future beyond the in some physical crossfire. There is no justified if the child’s safety demands it;
final fixture, unless the welfare of the evidence of anything of that sort having • even the risk of exposure (of a very
child demanded it. In effect, since removal occurred in the past. It seems to me to be young child) to volatility and possible
from these lifelong parents to foster a relatively insignificant risk in relation to a violence (between adults) does
parents would be deeply traumatic for future period of approximately 4 months.’ not necessarily meet the ‘very high
the child, and of course open to further The final case in his trio is Re K and H5 standard that must be established’.
upset should the parents’ case ultimately in which he summarised the earlier two
succeed, that separation was only to cases, saying: For those acting for Local Authorities,
be contemplated if [the child’s] safety the importance of the case can perhaps
demanded immediate separation.’ ‘Decisions in this court have emphasised be reduced to these two propositions:
(Thorpe LJ, para 39) that at an interim stage the removal
of children from their parents is not to • In general terms: an artificial and
In Re M4 he chided the Judge at first be sanctioned unless the child’s safety perhaps dangerously high test which
instance, concluding that he had not requires interim protection.’ (Para 16) had wrongly gained mantra status is
properly considered the risk of harm to be replaced by a balanced welfare-
as a ‘two-sided coin’ with risk of harm Thus, even if judges and lay benches can based appraisal, albeit subject to the
if returned to the family on the one no longer be taunted with the supposed rigours set out above.
side, and risk of short-term emotional need to identify a clear ‘imminent risk • In specific terms: while some judges,
harm corollary with separation from of really serious harm’, it will always be post-L, seemed to think that interim
parents, siblings and home on the other. apposite to point out that: removal was all but impossible in a
He described the concerns needed to neglect case, this is clearly not the
justify removal as being ‘real and pressing, • interim decisions are exactly that; view of the Court of Appeal.
not speculative’ and he did not believe final conclusions are not relevant and
‘that the very high standards that must not to be made;
be established to justify the continuing • the interim threshold criterion of
removal of a child from home were section 38(2) is not determinative
made good in this case’. of the question of removal; the test
He went so far as to say that, while involves two stages:
concern at the long-term effect of (a) interim threshold;
volatility and occasional violence in a (b) welfare; 4 Re M (Children) [2005] EWCA Civ 1594, [2006] 1 FLR 1043
home on a young child is understandable, • concerns said to justify removal 5 Re K and H [2006] EWCA Civ 1898, [2007] 1 FLR 2043
Enforcement of Care Orders in Scotland
by Patricia Cave
Somewhat surprisingly, the reciprocal enforcement of Care Orders made in England, Wales and Northern Ireland is an issue that does not arise often
in practice. Regulations came into force in 1997 that provide for the reciprocal enforcement of Care Orders in the UK, but not much is known about
them. This article will set out the position under the regulations and provide an illustration of their use in care proceedings.
The Children (Reciprocal Enforcement child to live in Scotland must notify dispense with anyone’s consent if they
of Prescribed Orders etc. (England and the court that it agrees to the local withhold it unreasonably.
Wales and Northern Ireland)) (Scotland) authority in Scotland taking over the
Regulations 1996 came into force in April care of the child. The local authority in Scotland had to
1997. Section 2 provides that certain notify the Court in writing that it agreed
orders, including Care Orders, shall have CaSE STuDy to the transfer of the order and the
effect in Scotland if the following three In an ongoing case, three children under English local authority had to notify the
conditions are satisfied: Interim Care Orders in England are to be Court that it agreed to the Scottish local
placed with a member of their extended authority taking over its Care Orders.
• The court must give its approval family in Scotland. There are concerns From the date of the transfer the local
under paragraph 19 (1) of Schedule that the children’s father may attempt to authority in Scotland will ‘run’ the order, as
2 to the Children Act 1989, or The locate them and/or disrupt the placement, if a supervision requirement under section
Children and Young Persons Act hence the need for ongoing involvement 70(1) of the Children (Scotland) Act 1995
1969, to the local authority arranging by a local authority. Procedurally the steps had been made by a children’s hearing
for the child to live in Scotland. followed were: the court in England gave for the local authority in whose area it is
• The local authority for the area in approval under Para 19(1), Schedule 2, proposed the child or young person live.
which the child or young person is to Children Act 1989 for the local authority In other words, the English Care Orders
live in Scotland must notify the court holding the ICO to arrange and assist the cease to have effect for the purposes of
in writing that it agrees to take over children to live in Scotland. All parties with the law in England and Wales as the local
the care of the child. parental responsibility had to approve the authority in Scotland take over the care of
• The local authority arranging for the move to Scotland although the Court can the child.
4
FAMILY
NEWSLETTER Autumn 2009
Low-money ancillary relief and children:
the considerations in transfer of a secure tenancy
by Kate Makepeace Grieve
In low-money ancillary relief cases, a secure tenancy may be the only family asset. Even if the property is not subject to a right-to-
buy the tenancy has real value to the parties: after transfer one will be left in the family home while the other will most likely face
homelessness. Regardless of what housing ‘points’ the loser may have the process of re-housing by the Local Authority requires living in
temporary accommodation and uncertainty for a considerable amount of time.
Schedule 7 of the Family Law Act Jones v Jones [1997] 1 FLR 27 (a case
1996 provides that the court may order which preceded the coming into force Michael Horton in his book, Family
that a tenancy be transferred to the sole of the 1996 Act) and Akintola v Akintola Homes and Domestic Violence: The New
name of a party upon the dissolution of [2002]1 FLR 701 endorse the view that Legislation (1996) put it a bit more simply:
a marital relationship. It is applicable in the court should take into account the
ancillary proceedings in relation to both likelihood of either of the parties being re- ‘If the general purpose behind one or both
same-sex partnerships and marriages. housed by the council. Lord Justice Phillips of the parties becoming tenants was
Paragraph 5 provides that in says that the local authority housing policy the provision of a home for the parties
determining whether to exercise its should be considered, as should the effect and their children, the court may well be
powers under Part II of this schedule and, of the decision of whom is to remain disposed to transfer the tenancy to the
if so, in what manner, the court shall have under a local authority tenancy. That effect partner looking after the children. Thus, the
regard to all the circumstances of the case may be on the local authority itself, any interests of children will be an important
including: others on the housing list or anyone else factor in applications for the transfer of a
directly effected by the decision. However tenancy.’
(a) the circumstances in which the it is unlikely that the local authority
tenancy was granted to either or will offer any assistance other than a Although a transfer of tenancy will not
both of the spouses...; statement of their Housing Policy. necessarily be made in favour of the parent
(b) the matters mentioned in s.33(6)(a), The criteria for determining a transfer with care of any relevant child, when the
(b) and (c) [...], and of tenancy provided at paragraph 5 purpose of the provision is considered it is
(c) the suitability of the parties as of Schedule 7 of the Family Law Act clear that the interests of the children and
tenants. 1996 was recommended in the Law their housing needs are important factors
Commission report number 207, Domestic to be considered when deciding on the
The circumstances described in s.33 are Violence and Occupation of the Family transfer of their family home.
that of: Home (1992) paragraph 6.9. At paragraph
6.3 of the same report an analogy is
(d) the housing needs and housing drawn between the considerations of
resources of each of the parties and what is now the Trusts of Land and
of any relevant child; Appointment of Trustees Act 1996 and
(e) the financial resources of each of the those proposed in a transfer of tenancy:
parties; and
(f) the likely effect of any order, or of any ‘Most affected tenancies are joint
decision by the court not to exercise tenancies of a family-sized home granted
its powers under ss.(3), on the health, to the couple concerned by the local
safety and well-being of the parties authority for providing a home for them
and of any relevant child. and their children. It is likely that the
parties themselves understood that the
It may seem obvious that care of the property would be used as their joint
child or children would assure success in home and the home of their children
such an application. However, unlike other and it might reasonably be said to have
family-law provisions the considerations in been in their contemplation that if their
relation to the relevant child or children is relationship floundered, only one of them
only one factor for the court to consider. would remain there, probably with the
It is not the paramount consideration as children. Where cohabitants are joint
provided in the Children Act 1988, or owners, the court takes into account the
even a first consideration as provided by underlying purpose for which the trust
s.25(1) of the Matrimonial Causes Act was created which, where the property in
1973. Instead, in deciding to which party question is a family home, may often be
the transfer should be made, the Judge the provision of a family home. Although
must ‘do justice between the parties’. there is conflicting dicta in the Court of
There is little case law on the point Appeal about the precise effect that the
and nothing which states that the parent continuing need of young children for a
with care of the relevant child should home should have on general principles,
necessarily be awarded the transfer. The there is no dispute that their interests
resources of the parties is an important are an important factor to be taken in to
consideration. account.’
5
CaSE NOTES
D (Children) also known as NH v A County Council
[2009] EWCA Civ 472; 4 June 2009
by David Ball
This is an important interpretation of Re B [2008] UKHL 35 and the vexed question of how to deal with a pool of perpetrators.
In Re B Lord Hoffman famously a genuine uncertainty at the end of a attribution of all the injuries to the father
commented that if a fact is in issue then a fact-finding hearing about who caused an was therefore unsound. They therefore
judge has to decide whether it happened. injury, the judge should simply state this as substituted the finding that the father
“There is no room for a finding that it their conclusion. was the sole perpetrator of the fractures
might have happened. The law operates a In D a 10-week-old baby was with a finding that neither parent could
binary system”. As Wall LJ noted, Re B is diagnosed with various skull and rib be excluded as possible perpetrators of
in danger of being misunderstood. So, for fractures, and a torn frenulum. The trial the fractures.
example, in D (Children) the trial judge said judge found that the father was the The case is clearly a very important
that “on the authorities” the court should perpetrator of the fractures. He left the application of Re B. It specifically draws
try and identify whether the mother or frenulum as a “neutral finding” stating attention to the tension between the
the father was the perpetrator “rather that the only finding he felt able to make public interest in identifying perpetrators
than leave an unsatisfactory state of was that “the mother had conceded that wherever possible (Re K [2004] EWCA
uncertainty”. she may have caused it”. The mother Civ 1181) and the obvious interests of
The Court of Appeal held that “judges had clearly accepted responsibility for justice that someone is only identified
should not, as a result of the decision in the frenulum in cross-examination. The when it is more likely than not that they
Re B... strain to identify the perpetrator Court of Appeal held that on this basis did it (Re B). Most interesting perhaps
of non-accidental injuries to children”. the judge was bound to find that the is the comment that failing to find a
The Court of Appeal state that judges mother had been the perpetrator of perpetrator should not be treated as the
should not begin from the starting point the frenulum. In these circumstances exception. Potentially more interesting
that only in an exceptional case can they they went on to find that the judge’s still is the extent to which this may now
fail to identify a perpetrator. If there is overall vindication of the mother and become the norm.
Ansari v Ansari & Ors
[2008] EWCA Civ 1456
by Emilie Pottle
This case concerns the difficult question of dispositions intended to defeat ancillary relief claims involving third parties. The Courts will not set aside a
disposition for valuable consideration to a person who acted in relation to it in good faith and without notice.
The husband left the matrimonial ii) Could the bank claim that it had of good faith, the fact that the bank
home, which was in his sole name, and acted in good faith even though it had notice of the wife’s rights did not
the wife registered her rights under had notice of the wife’s rights? indicate an intention on the part of the
ss.30–33 of the Family Law Act 1996. The iii) Could the charge nevertheless husband to defeat the wife’s claim for
husband then proceeded to sell the house be set aside under s.37(3) as a financial relief. Had the transaction been
although the wife remained in occupation. “consequential disposition”? a reviewable disposition, the bank would
The solicitor acting for the purchasers have been entitled to rely on s.37(4).
and the mortgage bank had notice of the Longmore LJ found that the Finally, the Court accepted that under
wife’s rights. The wife started proceedings transaction between the bank and s.37(3) the Court could set aside a
to prevent the husband from dealing with the purchasers was not a reviewable disposition between third parties which
the sale proceeds but did not seek any disposition within the meaning of s.37(2) was made subsequent to the reviewable
relief against the bank’s charge. (b) because only dispositions made by disposition. However, the sub-section
The Court of Appeal identified three the respondent to the ancillary relief could not be used in a case, such as
questions: proceedings (i.e. the husband) can be the present, where the party to whom
reviewed. His Lordship rejected the disposition was made acted in good faith
i) was the transaction a reviewable argument that the sale and grant of the without notice of any intention on the
disposition under s.37(2)(b) of the mortgage could be viewed as part of part of the husband to defeat the wife’s
1973 Act? the same transaction. As to the question rights.
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