Article 8 – the right to respect for family life

Practitioners will of course be familiar with Article 8 and the right to respect for family life, which touches on everything in the jurisdiction of the Family Court.

The formula settled upon to reflect consideration of Article 8 in judgments has tended to focus on necessity and proportionality, with an occasional reference to there being no lesser measure available to protect a child’s rights.

The Immigration and Asylum Tribunal has been at the forefront of the development of a more detailed assessment of Article 8 in the context of the removal of foreign nationals to their country of origin. The classic tests were set out by the House of Lords in R (Razgar) v Secretary of State for the Home Department 2004 UKHL 27:

In a case where removal is resisted in reliance on article 8, these questions are likely to be:

  • Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
  • If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
  • If so, is such interference in accordance with the law?
  • If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
  • If so, is such interference proportionate to the legitimate public end sought to be achieved?

In Hashim Ali v Secretary of State for the Home Department 2016 UKSC 60, the Supreme Court had reason to consider the Article 8 tests again in the context of the deportation of foreign criminals, the Immigration Rules and Article 8.

What may be of interest to family practitioners is the recasting of the Article 8 test. The Supreme Court did not refer to the classic formulation in Razgar but said this:

The Supreme Court considered paragraph 74 of Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39 which sets out the proper approach to assessing proportionality. In immigration cases, this approach is likely to qualify the Tribunal’s approach to the last two Razgar questions.

  1. The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine
  • whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
  • whether the measure is rationally connected to the objective,
  • whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
  • whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

For the family practitioner, the changes, if they are changes, to the recasting of the Article 8 tests may lead to little change in the content of judgments. Outcomes may not be significantly affected. However, the change in language is of some importance and is undoubtedly relevant to ancillary procedural issues in the Family Court, for example the sharing of confidential information between agencies. Although outside the scope of this note, practitioners may wish to consult John Fotheringham’s article in Family Law November 2016 1342 on the Named Person Service and the Supreme Court’s decision in The Christian Institute and others v The Lord Advocate 2016 UKSC 51 for an example of the application of the test.

 

Rupert Chapman

Sharing Offshore Pension Assets Revisited – UK Courts Unable to Share Foreign Pensions

In the latest judgment in the long running case of Goyal, Mostyn J has concluded that the pension sharing provisions contained in section 24B of the Matrimonial Causes Act 1973 cannot be used to share a foreign pension scheme, contrary to the view of the Court of Appeal in the same case.

The Court of Appeal, in a judgment reported as Goyal v Goyal [2016] EWCA Civ 792, had given guidance on the issue, while also addressing another issue relating to the making of injunctions in support of such orders.

The application for financial remedies was brought by Mrs Goyal after a marriage of 8 years. The proceedings lasted for 4 years and involved 65 separate hearings before the Court of Appeal dealt with the matter. A final hearing took place in November 2015 where the husband (a successful banker) was found to have gambled away more than £500,000. The Judge concluded that the entirety of the remaining assets should be provided to the wife for her and the parties’ child’s needs, on the basis that they were likely to be dissipated if transferred to the husband.

The husband had agreed in an earlier order to a pension sharing order in Mrs Goyal’s favour in relation to two pensions held in the UK. He later claimed that he had, before the order, cashed those pensions and used the monies to pay debts. In fact he had transferred the funds to an annuity policy in India, from which an income was being paid into an undisclosed bank account in his name, facts which he had not only withheld but also denied in the face of a specific question.

The Judge at first instance concluded that he was unable to make a pension sharing order in relation to the fund as it was held offshore. He did consider, however, that he had the power to order the husband to transfer the policy to the wife and to pay the income to her. Though the Judge did not explicitly indicate the jurisdiction for this order it was agreed on appeal that the only possible route was an injunction under s.37 of the Senior Courts Act.

The husband appealed on the basis that the court was unable to make a pension sharing order in relation to an offshore fund and therefore could not make an injunction to circumvent that lack of power, as such orders could only be made in support of an existing power.

The Court of Appeal’s view was that the second argument – the lack of power to make injunctions other than in support of an existing power – was plainly made out. The court did not retain a jurisdiction to make whatever orders it considered necessary to do justice between the parties. The statutory regime sets out the available orders and the Senior Courts Act compliments rather than expands it.

On the first point, however, the court considered that the Matrimonial Causes Act is not so limited as the Judge had assumed. The Act applied to any ‘specified pension arrangement, which includes ‘an annuity or insurance policy purchased, or transferred, for the purpose of giving effect to rights under an occupational…or personal pension scheme.’ As the offshore annuity scheme was purchased using the funds from an onshore personal pension scheme it was possible for a pension sharing order to be made. It was accepted by the husband’s counsel that an overseas scheme ‘may satisfy the criteria for the making of a pension sharing order” (paragraph 29) and that there was no territorial limitation on the court’s power to make a pension sharing order. It was observed that in individual cases it may not be possible to enforce such orders abroad, which issue might require expert evidence and correspondence, through the usual procedural avenues, with the provider. The point was not fully argued, however, the parties accepting that the jurisdiction was not so limited. The wife had not undertaken those investigations and so the court discharged the Judge’s orders and listed the case for a hearing before another Judge. That hearing was listed before Mostyn J.

Mostyn J heard the matter on 17th October 2016 and his judgment can be found reported as Goyal v Goyal [2016] EWFC 50. The husband’s application was that the court should dismiss the wife’s claim for a pension sharing order for lack of jurisdiction and because of the lack of any evidence that such an order would be enforced by the Indian courts. The husband’s counsel indicated that he had accepted that there was such jurisdiction based on the notes within the Family Court Practice 2016. The Court of Appeal accepted this without argument and the relevant passage was obiter dictum and therefore open to Mostyn J to reconsider the position.

Having invited written representations from Resolution and the Family Law Bar Association the court undertook a detailed analysis of the statutory provisions and of the general constitutional background. The court noted that it is a basic rule of statutory interpretation that parliament cannot bind a jurisdiction over which it is not sovereign, in the absence of some provision within that other jurisdiction to give effect to the statute.

While a property adjustment order can be made in relation to foreign property where there is clear evidence that the foreign court would enforce it, the judge was not so persuaded in relation to the provisions of s. 24B. property adjustment orders are in personam – they apply to bind the person subject to the order and not the property itself, unlike a pension sharing order, which binds a particular piece of property held by a third party. While it was not explicit in the statute, the presumption against extra-territorial effect applied and the court was unable to make a pension sharing order in relation to any foreign pension.

The judge considered, however, other routes by which the same result could be achieved. One route was to incorporate an agreement within the order, backed by undertakings, to obtain an order in the foreign jurisdiction where one is available (such as the USA). This would require evidence that the foreign jurisdiction would agree to such an order. This route was not available to Mrs Goyal as she had failed to provide any evidence for the court that the Indian Court would make any sort of order.

Another would be to make an order under s. 24(1)(c) of the 1973 Act for a variation of settlement in relation to the pension (see Brooks v Brooks [1996] AC 375). There was some argument that this route too would be blocked by the presumption against extra-territorial effect, however that was a matter not before the court and so was not decided. This route was not available to Mrs Goyal as the court had previously dismissed her claims for property adjustment and financial provision orders.

The court could, however, make an order for periodical payments in the full amount of the annuity. That order could be accompanied by a legitimate injunction requiring the husband to receive the maximum amount and to pay it to the wife. These issues were adjourned for a further hearing on a later date.

It can be concluded then that, subject to any further appeal, the court is unable to make a pension sharing order in relation to any foreign pension scheme but can only either;

  • Include in an order an agreement, supported by undertakings, that the parties will obtain such an order in the jurisdiction where the pension is held, provided that there is evidence that such an order is possible,
  • Make a variation of settlement order in relation to that pension, providing there is evidence that such an order will be enforced, or
  • Make a periodical payments order, supported by injunctions to ensure that the monies are paid and that the pension (if in payment) is taken in full.

Members ranked in Chambers and Partners 2016

Michael Berkley
Exeter-based practitioner with significant experience. His chancery practice includes probate and wills work, property disputes and contentious trusts.
Strengths: “If someone said: ‘I have a chancery problem and need an Exeter barrister,’ I would give Michael’s name.”

Christopher Naish

Has a broad practice, acting for guardians, parents and local authorities on private and public children law matters, as well as being able to handle complex financial remedy cases.
Strengths: “Christopher Naish is very highly experienced and has a wealth of knowledge of family law. He also is very good at establishing a good relationship with clients and putting them at their ease.” “A commanding presence, with good attention to detail, and great in cross-examination.”

Carol Mashembo

Has a diverse family practice encompassing cohabitation disputes, financial remedies and private children law. She has over 15 years’ experience and is used to handling cases that involve dealing with litigants in person.
Strengths: “Good at looking at the wider picture, being pragmatic and finding the best solution for clients.” “Extremely impressive – she’s strong, sensible and very insightful. Her advice on when to fight and when not to fight undoubtedly helped the client enormously.”

The Right Warrant: Issuing Warrants Following the Breach of A Suspended Possession Order.

The Court of Appeal has recently given judgment in the case of Cardiff CC v Lee (Flowers) [2016] EWCA Civ 1034, which is concerned with the correct application to be made for a warrant for possession where there has been a breach of a suspended possession order (‘SPO’). It is not a simple application on Form N325 (request for warrant of possession of land) – that is appropriate where an outright possession order has been made. Instead, an application must first be made for permission to issue a warrant in accordance with rule 83.2 of the Civil Procedure Rules. Such an application may be made in accordance with Part 23 and may be made without notice being served on the tenant.

This decision is of great significance because the general practice until now has not been to make such an application. The Court of Appeal observed that rule 83.2, which was introduced in 2014 to “address what might reasonably have been considered to be a weakness of the system, namely that there was no judicial scrutiny of the landlord’s case that the conditions had been breached” (paragraph 3), requires a two stage procedure: application for permission followed by application for a warrant (paragraph 9). In giving the judgment of the court, Arden LJ stressed that this rule provides “an important protection for tenants” (paragraphs 23 and 31), where the landlord has to show that it has “informed the court (among other matters) that the appellant had breached the terms of suspension” (paragraph 9).

The main focus of the appeal in Cardiff CC v Lee (Flowers) [2016] EWCA Civ 1034 (it having been conceded that rule 83.2 was the correct rule) shifted to whether the circuit judge was correct to dismiss the tenant’s appeal notwithstanding that no application for permission had been made in accordance with rule 83.2. The Court of Appeal held that he was. The District Judge at first instance had on the facts of that case, held a contested hearing at which the issue of whether there had been a breach had been considered along with any other arguments advanced by the tenant. The Court of Appeal relied upon rule 3.10 of the Civil Procedure Rules (an error of procedure does not invalidate a step in proceedings unless the court so orders, and can be remedied by the court), and rule 23.3(2)(b), which allows for the dispensing of an application in form N244, in coming to this conclusion. However, this does not provide carte blanche for the future for landlords to avoid following the correct procedure. The Court of Appeal placed heavy reliance in that case on the fact this was a genuine mistake, the social landlord did not know it was entitled to proceed as it had, and the fact that all issues had been considered by the judge in any event. Such a situation is unlikely to be available in the future because social landlords should be aware of this decision and Arden LJ said: “Social landlords must ensure that from now on their systems are such that the same mistake will not be made in the future.”

Some Brief Observations

It is now clear that permission needs to be sought from the court following an allegation of breach of an SPO and the court must consider whether there has been a breach before granting permission. However, the fact that this can be made without notice to the tenant and without a hearing potentially, I think, opens a can of worms. If a District Judge were to do this then they would presumably need to give the tenant the right to set aside the permission that had been given in accordance with the Civil Procedure Rules. My view (and it is just a view) is that the way forward is to make provision in future SPO’s for this procedure, in the same way that previously occurred in the old PPO’s. It strikes me that this would be of benefit to both parties as it allows everyone to know in advance what procedure will be followed in the event of a breach.

PD27A, FPR 2010: Trial Bundle documents and the Litigant in Person

A recent Judgment from the High Court has provided a robust reminder regarding the need to comply with Practice Direction 27A. The Judgment was published with the approval of the President and reminds practitioners of the need to ensure that a litigant in person is provided with timely disclosure of the required Practice Direction (PD) documents.

The case of Re B (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam) was concerned with child abduction. At what is described as “the door of the court” of the final hearing, counsel for the applicant provided their opponent, a non-English-speaking litigant in person with a 14 page position statement and 4 legal authorities amounting to 100 pages in length. All documents were written in English.

The case can be located here.

At a previous court hearing, directions had been given for the final hearing which included directions for the filing of statements and a Cafcass report. The final hearing was fixed with a direction that the parties attend and for interpreters to be provided by the court. No direction however was given for timely service of documents on the litigant in person.

In his judgment, Jackson J states that where one party is represented and the other not so represented, the court should normally direct as a matter of course

  • that the documents required under PD27A are served on the other party at least three days before the final hearing, especially where the litigant in person is not fluent in English;
  • the method of service, usually email, should be specified; and
  • where there is time, that the key documents are served with a translation.

Moreover, in cases where late service may cause genuine unfairness, the court should consider whether the hearing should be adjourned to enable the position to be corrected.

The reasons are obvious but are worth repeating. Ultimately, equality of arms consistent with article 6 rights to a fair trial should underpin all proceedings.  A right to a fair trial includes a right to know the case that has to be met. An imbalance is often present in cases where many litigants in person lack experience and are hesitant to raise a complaint about a matter such as late service of documentation. Additionally, late service of documents weakens the position of litigants in person as it removes any chance they may have to obtain explanation or advice before the hearing itself.

PD 27A can be found here. It is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements and additionally makes it clear (at paragraph 2.1) that these are subject to specific directions in any particular case.

Paragraph 6 states that the PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule goes on to state that it does not provide for service on the other parties, but the implication must be that the documents will be sent to them no later than that. However, the court in Re B makes it clear that the timings stated in paragraph 6 are “minimum service requirements” and that earlier preparation and service is necessary to prevent unfairness to litigants in person.

The Judgment is a timely reminder to practitioners to ensure that the court specifically deals with directions regarding PD27A to include method of service and possible translations well before the hearing itself.