Magdalen Chambers ranked as a leading set by the Legal 500

For the second year running Magdalen Chambers has been ranked by the respected professional directory, the Legal 500, as a leading set on the Western Circuit, with seven members of chambers, including both joint heads of chambers, being recognised as leading juniors in their fields.

Formed from the merger of Southernhay Chambers and Rougemont Chambers in 2013 – and with more than 40 members, now one of the largest sets on the circuit – Magdalen Chambers is considered by the authors of the Legal 500 to have “gone from strength to strength” and to be “very user-friendly”. Assisted by a clerking team headed by James Basden which was described as “helpful and accommodating” and providing “an excellent service”, chambers was recognised for its strength in the areas of commercial banking and insolvency, construction planning and environment, personal injury and clinical negligence, property and family law, where chambers is considered to be “one of the best sets in the South West for family law” and as being “particularly strong in public law children and financial remedy cases”.

The seven members recognised by the authors are;

  • Joint head of chambers Michael Berkley, who was ranked in the commercial, banking and insolvency and property categories and was described as “A very personable and able lawyer” who “undertakes cases concerning adverse possession, boundary disputes, and landlord and tenant matters”
  • Joint Head of Chambers Christopher Naish who was recognised for his expertise in family law and described as “effective in court, and good with clients from all walks of life.”
  • Rupert Chapman, in the area of family law who was considered to be “A strong all-rounder with extensive knowledge of public and private children law and financial remedies.”
  • Gavin Collett for expertise in construction, planning and environment, who is “known for his expertise in planning matters.”
  • William Hopkin, recognised for expertise in commercial, banking and insolvency work who, it was said, “provides clear, forthright and sensible advice.”
  • Jonathan O’Neill in the area of personal injury and clinical negligence of whom it was said that “it is clear that he is respected by his peers.”
  • Tony Ward, in the area of family law who was considered to be “ruthless in cross-examination.”

The Village Green is dead, long live the Village Green….

After a series of high profile cases in the High Court, Court of Appeal and Supreme Court in the last 2 years, together with recent legislative changes which appeared to reduce the chances of land acquiring Town or Village Green (TVG) status, the first high profile TVG case to be heard in the High Court in 2015 offers a glimmer of hope.

As promised on LinkedIn in July, I said I would post the decision of Mr Justice Dove in my long running case of R (Goodman) v Secretary of State for the Environment, Food and Rural Affairs once it had been approved. And here it is.

In summary the Inspector rejected the application to register following a public inquiry in 2013 because the landowner, Exeter City Council

  • had “impliedly appropriated” land from employment use so that the land became held as recreational open space (and therefore subject to a public trust) and that any recreational use was “by right”; alternative);
  • as the city council had allowed fairs and a circus on part of the land, any recreational use of it for sports and pastimes had been by implied permission following the decision in R (Mann) v Somerset County Council[2012] EWHC B14.

Dove J quashed the decision on the grounds that;

  • for an “appropriation” to have occurred (implied or otherwise), there must be evidence that the local authority directed its mind to, and answered, the statutory test for appropriation set out in s.122(2A) of the Local Government Act 1972. Simply managing land as recreational open space was not of itself sufficient to give rise to an implication that an appropriation had occurred; and
  • relying upon the decision in Mannitself, Dove J emphasised the fact sensitive nature of any inquiry. Further the status of the application land publicly owned (as opposed to privately owned as was the case in Mann) was a material consideration which the Inspector failed to have regard to bearing in mind the use put forward by the landowner was not inconsistent with a public entitlement to use the land.

It is clear that Goodman  provides a number of potential new lines of argument for those seeking to register land as a TVG especially when facing a local authority landowner who seeks to rely upon Mann.

Importantly Dove J emphasised that where land is held by a public body the initial focus must also establish the power under which any land is held.

I represented the Applicants at public inquiry in 2013 (instructed direct) and in 2015 was led by Douglas Edwards QC of Francis Taylor Buildings in the successful Judicial Review. We were instructed by Richard Buxton Environmental and Public Law for the Judicial Review claim which was initially stayed pending the outcome in Barkas v North Yorkshire County Council [2014] UKSC 31.

Exeter City Council did not participate in the Judicial Review.

Please contact my clerks for further details on (01392) 285200 or clerks@magdalenchambers.co.uk

I am happy to be instructed by members of the public direct on TVG matters in appropriate cases.

Rupert Chapman

Supreme Court Decision on Habitual Residence

At the recent Exeter Court user’s group  the Designated Family Judge drew to the attention of attendees the judgment of the Supreme Court in the case of Re LC (Children)[2014] UKSC 1. Handed down in January last year the case considers the extent to which an adolescent child’s own state of mind can be considered when deciding whether she has acquired habitual residence in this jurisdiction, as opposed to the state of mind of her resident parent.

The proceedings were brought under the Hague Convention on the Civil Aspects of International Child Abduction. The father was from the UK and the mother was Spanish. There were four children aged 13, 11, 9 and 5. They were all born in England and were Spanish nationals. The parties separated in July 2012 and until then the family had lived in England. On their separation the mother took all four children to Spain, where they remained until December the same year when they returned for an agreed holiday with the father. He retained them in England and the mother issued proceedings for their return.

Those proceedings concluded with a judgment of Cobb J (reported at [2013] EWHC 1383(Fam)) by which the children’s return to Spain was ordered. The Judge found that the children had acquired habitual residence in Spain shortly after their arrival there and had not lost it on their return to the UK. He found that while the older child had reached an age where her objection to being returned was a relevant objection under Article 13, but that the younger children had not and that their wish to remain in the UK was a preference not an objection. He further rejected father’s contention that there was a grave and intolerable risk to the children should they be returned to Spain and that he should exercise his discretion to permit the children to remain in the UK.

Father appealed to the Court of Appeal, as did the oldest three children, having successfully engaged various solicitors themselves and sought to challenge the refusal to grant them party status. The children’s appeals were rejected by the Court, as they did also the father’s (the judgment is at [2013] EWCA Civ 1058) in respect of all but the oldest child, whose objection they felt the judge had given insufficient weight. The return order was therefore overturned in her respect. This left the Court of Appeal having to consider whether the impact of separation from that child created an intolerable situation for the younger children if they were to be returned, which necessitated a remission to the Family Division for a further hearing.

His appeal to the Supreme Court focussed on the issue of habitual residence. The Court (Lord Wilson giving the leading judgment, with which Lords Toulson and Hodge agreed) observed that as Spain is an EU nation, the provisions of Brussels IIR take precedence over the terms of the convention. The regulation provides by Recital 12 that the court of the state where a child has habitual residence should have jurisdiction to decide on her welfare. That regulation has specific and different rules regarding the return of children, in particular that where the court of a member state declines (as here) to return a child, the court of the state where the child has her habitual residence can override that order provided that the parties and the child have been given an opportunity to be heard and that such an order would not be open to challenge in the ‘requested state’ (here the UK). As such habitual residence is crucial to the decision as to whether a return order is open to challenge. If the Supreme Court were to overturn the decision on habitual residence then the Spanish Court could not overturn the decision to refuse to return the children.

Lord Wilson observed that the test in R v Barnet LBC ex p Shah [1983] 2 AC 309 had been overturned by the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60 shortly after Cobb J’s judgment and that the test for habitual residence was now the same as under BIIR – “the place which reflects some degree of integration by the child in a social and family environment”.

Habitual residence must be assessed with this in mind and it will be highly unusual for a child not to acquire habitual residence in the country to which she travels lawfully to live with a parent, however the requirement for integration permits some flexibility.

Lord Wilson held that where a child is an adolescent or has the understanding of her situation of an adolescent, particularly where the residence with the other parent is sufficiently short the assessment needs to look at all the facts, including the state of mind of the child herself (while living in the other country as opposed to her wishes at the point of the trial) as to her degree of integration into each competing state. Baroness Hale (with whom Lord Sumption agreed) agreed, though she was of the view that the same approach applies to younger children as well.

This was an explicit reversal of the statements of Lord Scarman in the Barnet case (above). It opens up the issue of habitual residence to be more than simply a surface consideration of where the child has a school, a home and so on, to also consider whether the child had settled in the new jurisdiction in their own mind and whether they had themselves committed to that home. This new avenue is remarkably close to being a welfare consideration – the child’s ‘wishes and feelings’ being treated as different to, but at least superficially very similar to, their ‘state of mind’. It is certainly a shift towards the child and away from the old-fashioned attitude of habitual residence being related to parental rights.

Taking that into account the evidence was that the three older children did not themselves feel integrated in their new community in Spain, having neither a permanent home nor friends and having not settled, the mother not having assisted them in that process. The Court therefore set aside the conclusion that the eldest child was habitually resident in Spain and remitted that issue for rehearing in the Family Division. The issue of the younger children, though not adolescents, was also remitted for rehearing on the basis that they were so close as a sibling unit that the whole needed to be considered as well as the individual position of the older child.

The court further held that the child’s welfare was the ‘threshold consideration’ for a decision of whether to join them as a party to proceedings and not simply a ‘primary consideration’. Where, as here, the child’s account of their state of mind was central it would follow that the child should be given party status. Their consideration of this issue, though focussed on convention situations, bears consideration in all proceedings where such an order is sought.