Occupation of the family home; child's litigation friend


Currey v Currey [2005] 1 FCR 25, CA



In Currey, the issue was essentially whether the husband or the wife should live in the parties' former matrimonial home; this was likely to dictate where the children should live. If he was not to live in the house, had the judge below given him enough to re-house himself?


Two significant features of the case are that the children (aged 18, 16, 14 and 11 years old) had a litigation friend - 'an experienced specialist solicitor' - to represent them in view of the fact that they held beneficially a substantial proportion of the property; and that between judgment at first instance and the appeal hearing, the wife's assets increased by improvement of her entitlement under her grandfather's marriage settlement.



The husband's advocate in the Court of Appeal chose not to seek to establish this accretion to the wife as a form of Barder event (see Barder v Barder (Caluori intervening) [1988] AC 20; [1987] 2 FLR 480, HL, which enables the court to consider giving leave to appeal out of time), but relied on being able to show that the court below was plainly wrong or had erred in some way, so that the new assets would come into the equation when the court exercised its discretion afresh. He failed to show this and the husband's appeal was dismissed.



One of the husband's criticisms of the judge was that he lead the wife in her evidence that she wanted to stay on in the house for fear that, if required to enable the husband to return, the children would be likely to remain there with him. The court was critical of the husband's advocate for characterising the judge's questions as leading. For the judge to lead on an issue such as where the children should live may be understandable; but it can be unfair to a party when a judge leads evidence on a critical aspect of the case. The court would have none of it.


Rule 2.57(2) of the Family Proceedings Rules 1991 enables the court to direct separate representation of children in any ancillary relief proceedings (as does rule 9.5 'in any family proceedings'). Anyone with a beneficial interest in a property that may be the subject of an order for sale under section 24A(1) of the Matrimonial Causes Act 1973 must be given an opportunity to make representations on any such order (a rather different point, but worth noting in the context).


We may see more children of age and understanding in ancillary relief proceedings being given a chance to express a view on where - and even with whom - they wish to live, where their home is in issue.



Enforcement terms, consent order and bankruptcy



Ram v Ram (No 2) [2004] EWCA Civ 1684; [2004] 3 FCR 673, CA



Lord Justice Thorpe described Ram v Ram (No 2) as a case showing 'great folly on the part of both of the principal parties'.



After protracted proceedings characterised by failure of disclosure on the part of the husband, and by the wife's failure to accept he consequences of the husband's bankruptcy, the stage was set for a three-day final hearing.


The wife's solicitors wrote to the husband's solicitors, proposing terms that were accepted unconditionally. The wife's advocate went before the judge two days later and secured an order, not only in terms of the compromise, but also containing a variety of terms relating to immediate enforcement (backed with a penal notice), and without proper regard to the rights of the husband's trustee in bankruptcy.


In allowing the husband's appeal, the Court of Appeal distinguished between those terms that expressed the compromise and those which dealt with 'the rigid scheme of enforcement'. On grounds of 'fairness' and of procedural irregularity, the order, so far as it did not comply with the compromise, failed.



And that part of the order that transferred the husband's property to the wife failed because the trustee should have had notice of the proposed transfer (section 24A(6) of the Matrimonial Causes Act 1973, and see Currey).



All practitioners should, perhaps, be aware, not only of this sub-section, but also rule 2.59(3) and (4) of the Family Proceedings Rules 1991, which prescribes service of notice in form A on, for example, trustees of any settlement, mortgagees etcetera.



Child support and a liability order



Farley v Secretary of State for the Department of Work and Pensions (2005) The Times, 27 January, CA



In Farley, the Court of Appeal held that on an application to the magistrates' court for a liability order, the Secretary of State for the Department of Work and Pensions (in other words, the Child Support Agency (CSA)), must, if asked so to do, justify the basis of that application - and not just treat the justices as a rubber-stamp as Mr Justice Keith ((2004) The Times, 23 July) held should be the position on appeal from the North Somerset Family Proceedings Court.



One reason for this is that, if a 'liable person' (as defined in section 33(1) of the Child Support Act 1991) wished to challenge the jurisdiction of the agency on a pre-March 2003 assessment, he had no means for doing so (other than by judicial review) under the appeals mechanisms in the Act. Most liability orders will relate to pre-March 2003 assessments and therefore anyone sent to prison, deprived of his licence, with a charging order and so on - may find that he has had an order enforced against him illegally; and it would be helpful if we could alert relevant clients to this.



Section 33(2) of the Child Support Act 1991 enables the CSA to apply to the justices for a liability order where a deduction from earnings order is inappropriate or has failed and there are continuing arrears. The justices must be 'satisfied that the payments in question have become payable' (see section 33(3)), but they 'may not question the maintenance assessment' under which the maintenance became payable (see section 33(4)). Adopting an obiter dictum from an earlier case - and in Mr Justice Keith's case misreading later legislation - the courts below held that they could not question the validity of the assessment.



In Mr Farley's case, he had a pre-1993 separation agreement that precluded the agency from assessing the mother of his children to child support maintenance unless she claimed a prescribed benefit (mostly income support - see section 6(1)). There was no evidence for such claim and the CSA refused to produce it, or any other papers - the justices must take our word for it, said the agency.


The Court of Appeal disagreed. Section 33(4) can only mean the calculation of child support maintenance itself, not the jurisdiction to make the order. Section 33(1) refers to a 'liable person'. If someone denies that he is liable - and he had no other forum, save by judicial review to do so, as the Act then stood - then to satisfy themselves under section 33(3) the justices must be sure that the non-resident parent, said to be liable is, in fact, liable. This is particularly important, given that a liability order is a passport to an application for committal, among a number of enforcement remedies.


Consideration is now being given to what procedure should be adopted by justices where there is a challenge. It may also be necessary to look at what is to be done where a non-resident parent has had an order made and/or enforced without the justices ensuring that they are 'satisfied' under section 33(3).


See Law reports



By David Burrows, David Burrows, Bristol