This review of family law looks at undue influence; cohabitation; the production appointment; children seeking leave; and costs.UNDUE INFLUENCEThe House of Lords recently attempted to put to rest the question of whether a bank is entitled to enforce against a surety wife a husband's debt where she has been induced to stand surety by his undue influence or misrepresentation (Barclays Bank plc v O'Brien [1993] 3 WLR 786).

At the same time, they considered the issue of whether a lender can be fixed with the wrongdoing of a borrower where he has no notice of that wrongdoing (CICB Mortgages plc v Pitt [1993] 3 WLR 802).These questions depend on whether or not the lender had actual or constructive notice of the wrongdoing (undue influence, misrepresentation or fraud) as so lucidly explained by Lord Browne-Wilkinson, who gave the lead speech in a unanimous House.

In each case the questions to apply were: what did the lender know; and what should he have known?In both cases there was no issue but that the husband had caused the wife to sign a document which secured the borrowing.

Undue influence was, therefore, actual or could be inferred.

Thereafter the similarity ends.In O'Brien, the loan was to the husband for his company.

He misrepresented its terms to his wife and the bank failed to follow its own procedures as to the signing of the surety documents.

It was held that the bank should 'take subject to the wife's equity to set aside the transaction if the circumstances are such as to put the creditor on inquiry as to the circumstances in which she agreed to stand surety' ([1993] 3 WLR 798).

Where there is a relationship of confidence - as between husband and wife where one is responsible for all business affairs - undue influence will be presumed where the claimant sets up the existence of such a relationship and where, as here, the husband borrows money for his company.

A lender will then be 'on inquiry'.Lord Browne-Wilkinson suggested that a lender might avoid being fixed with constructive notice and therefore of taking subject to a wife's right to set aside a transaction by being (a) invited to a meeting with the lender (in the absence of the spouse); (b) warned of the risks being undertaken; and (c) advised to take independent legal advice.By contrast, in Pitt, the husband wanted to borrow money to buy shares and, by means of undue influence, persuaded his wife to remortgage their home for £150,000.

She did not read the mortgage documents, and so far as the mortgagees were concerned this was a straightforward remortgage by a couple of their house.

'There was nothing in this case to indicate to the plaintiff that this was anything other than a normal advance to husband and wife for their joint benefit' - as with the vast majority of building society loans to joint borrowers for a conventional house purchase.

Thus, if the lender is not affected by notice, actual or constructive, of a borrower's wrongdoing, he cannot be fixed by it.The surety obligation will be enforceable by the creditor, unless obtained by undue influence, misrepresentation or some other legal wrong of the principal debtor.

If there is undue influence, misrepresentation or fraud constructive notice, this fixes the creditor unless he or she has taken reasonable steps to ensure the surety entered into the transaction freely and with knowledge of the full facts, preferably by warning the surety - meeting him or her separately from the principal debtor - of the extent of his or her liability and advising him or her to take independent legal advice.For the adviser, the questions therefore are: (a) has the spouse or other relative or cohabitee been induced to incur the liability by means of undue influence; and, if so (b) has the lender actual or constructive notice - that is did he or she, knowing of the relationship, take the necessary steps to warn the surety? In cases such as O'Brien on the one hand and conventional house purchase on the other, the question will rarely be difficult to answer.

But, despite Lord Browne-Wilkinson's analysis, there will be cases in between - especially where one spouse borrows money for their business through credit-brokers of one sort or another - where the answers will be by no means clear.Undue influence may also be inferred in other relationships of confidence: relatives (Cheese v Thomas [1994] 1 FLR 118); cohabitees (Tinsley v Milligan [1993] 3 WLR 126); employees, and so on.COHABITATIONFrary v Frary [1993] 2 FLR 696 deals with two important issues, but may prove a regrettable instance of a good case making bad law.

First, it raises the often emotive issue of cohabitation of a former spouse with a partner of substance - in Frary the husband's partner, Mrs R, was said to have 'very considerable resources' - where the husband says he does not know what her means are.

Mr Frary had a cohabitation agreement with his partner whereby he shared housekeeping and the outgoings on her house.Secondly, the case is a rare reported decision on the production appointment under r.2.62(7) of the Family Proceedings Rules 1991 (SI 91/1247) by which the court may order 'any person [to] produce any document...necessary for the disposing fairly of the application for ancillary relief or for saving costs'.

In Frary, Mrs R was the appellant and objected to production.

The Court of Appeal allowed her appeal, holding that to make an order would be oppressive.

Ralph Gibson LJ reminded practitioners that production can only be an order where a subpoena or witness summons would be issued (r.2.62(8) of the FPR 1991); and here Mrs Frary, it seems, had no intention of calling Mrs R.Provided that its limitations are borne in mind - and Ralph Gibson LJ explains these in Frary - the production appointment can be a useful tool.

For example, a partner could be ordered to produce payslips and a recent mortgage statement to show: (a) that dependence on the spouse need only be limited; and (b) that he or she owns the house in which they are living (office copy entries will also show this) subject to a mortgage of a particular amount.

This might be relevant in a case where, for example, the husband or wife sought the sale of the former matrimonial home.

Pension fund trustees can be asked to produce documents; so too can bank managers, company secretaries and so on.What remains unfortunate about Frary is the limitation which R alph Gibson LJ put on the disclosure of information by cohabitees by citing, with approval, Wynne v Wynne and Jeffers [1981] 1 WLR 69.

Since that case, the House of Lords has plainly held that 'unless the parties [to a financial relief application] make full and frank disclosure of all material matters, the court cannot lawfully or properly exercise' its discretion under s.25 of the Matrimonial Causes Act 1973 (Livesey (formerly Jenkins) v Jenkins [1985] AC 424); though this case was not referred to in the judgment in Frary.

What is a 'material matter' is for the court to decide in the exercise of its discretion.

But surely the criterion should be that all cards be on the table face up? The client is told that it is then a matter for argument and for the court as to how each of the cards is dealt with.

And the potential for resentment in the future - especially regarding cohabitees' means - is thereby reduced.CHILDREN SEEKING LEAVEPublic law cases under the Children Act 1989 breed like rabbits, but private law issues are now providing their own distinctive cases.

While the Act and rules remain as at present, acting for children will remain of concern.

Three recent cases have considered aspects of this area of law.In Re C (A Minor) (leave to seek s.8 orders) [1994] 1 FLR 26, Johnson J refused leave to a 15-year-old to seek a residence and specific issue order.

In the particular circumstances of the case, he stressed the need for families to work together concerning a child, and to seek conciliation, so far as possible, rather than resort to the courts.By contrast, Booth J granted leave in Re SC (A Minor) (leave to seek a residence order) [1994] 1 FLR 96 to a 14-year-old in care who wanted to go to live with a friend's family.

In considering leave, the court must have in mind the likelihood of success of the application, but it must not fetter the child's statutory ability to seek an order in appropriate circumstances.Finally, the question of representing a child's views to the court where the child was not a party arose in L v L (Minors) (separate representation) [1994] 1 FLR 156.

Here, the welfare officer felt unable truly to represent the views of the 14, 12 and nine-year-olds concerned.

A guardian ad litem was thought appropriate, but how was he or she to be paid? If a guardian ad litem was to be appointed, the children must be made parties to the proceedings and their solicitor could then obtain legal aid for them.Though the case was appropriate for him, the official solicitor could not prepare himself in time for this particular case (see Official Solicitor Guidelines [1993] Fam Law 95).COSTSThere is potential for development in two areas of costs.-- Wasted costs orders.

The Court of Appeal considered fully the burgeoning wasted costs jurisdiction in Ridehalgh v Horsefield [1994] The Times, 28 January.

The Master of the Rolls explained the meaning of the words 'improper', 'unreasonable' and 'negligent', but stressed the need for the court not to deter adventurous lawyers from doing their jobs by threats of use of the wasted costs jurisdiction.

He approved for civil process also the procedure for such orders proposed in a Re A Barrister (wasted costs order) (No.1 of 1991) [1993] QB 293.While a solicitor, left in difficulties by Legal Aid Board delays in considering discharge of a client's certificate, may be guilty of an error of judgment in failing in time to seek an adjournment, this is short of acting 'improperly, unreasonably or negligently...An order for costs against a solicitor personall y is a serious order for the court to make.

It goes far beyond the financial detriment to the solicitor' (see Re A Solicitor (wasted costs order) [1993] 2 FLR 959).-- Applications under s.18 of the Legal Aid Act 1988.

In Middleton v Legal Aid Board [1994] 1 FLR 586 the Court of Appeal held that where the area director has been given power to deal with time limits then the court has no power to extend time, even though, as here, the board is also a party to the process.Where application is made by a successful unassisted party against the board where his or her opponent is legally aided, he or she must file an affidavit of costs and resources within 21 days of the order being made.

If he or she does not do so and his or her application to extend time is refused, then he or she cannot press his or her claim for costs.The solicitor will then be liable for any consequential loss to the client and will not have his or her own costs paid.

If the area director refuses to extend time, the Court of Appeal - which found the regulations most unsatisfactory - suggested that applicants could only extend time by application for judicial review.