FAMILY LAW UPDATE -- A review of domestic violence cases and when to consider a child's wishes-- Children's wishesHow far should the court take account of a child's wishes and feelings in making decisions concerning their future? To what extent should they be involved in their parents' proceedings? These questions remain as topical as ever.In Re M (Family Proceedings: Affidavits) [1995] 2 FLR 100, the Court of Appeal was critical of lawyers and parents who involved children in their proceedings.

It was not appropriate for children (here a child aged 13) to be allowed to give evidence in children proceedings between their parents.

By contrast, in Re C (Residence: Child's Application for Leave) [1995] 1 FLR 927 (decided two months later) Stuart-White J held that an application by a child (also 13) in existing proceedings between parents should be treated with caution, if only because the child might be exposed to the evidence of warring parents.

Leave was granted: the child had the necessary understanding and her application was not 'one which could not succeed' (following Booth J's test in Re SC (A Minor) (Leave t o seek a residence order) [1994] 1 FLR 96).Stuart-White J's cautious, yet essentially realistic, approach is surely to be preferred to Butler-Sloss LJ in Re M Stuart-White analysed the case in the context of Gillick and Re S (A Minor) (Independent Representation) [1993] 2 FLR 437, CA.

In the latter case the Master of the Rolls carefully reviewed the necessary approach when considering the question: a child's wishes are not to be ignored just because he or she is a child; and 'he or she should be free to express them and decision-makers should listen'.An alternative basis for proceeding is to assess the child's views (see, for example, Re W (Welfare reports) [1995] 2 FLR 142, CA).

This approach must be seen in the context of the Home Office's unfortunate direction that court welfare officers -- who are, after all, probation officers, with minimal training in child assessment -- should now only remain in the post for three years at a time.

The contrast between the expertise of court welfare officers, as against guardians ad litem in public law proceedings will become more pronounced still.

What price a child's views, and even their welfare then?-- Domestic violenceWith the furore which has forced the abandonment of its Family Homes and Domestic Violence Bill 1995, two recent cases draw attention to domestic violence.

Kahn v Khan [1995] 2 FLR 231, CA was a case of a wife who finally decided that she had had enough.

Violence was not a necessary prerequisite for an order.

In Hale J's unfortunate words: 'There comes a time when the worm is entitled to turn'.

This decision will be of particular relevance when balancing the respective need of the parties for a home and will be important if the 'significant harm' provision of the postponed Bill comes into operation.The case of Burris v Azadani (1995) The Times, 9 August, CA (in which a solicitor advocate appeared for Ms Burris in the Court of Appeal) is highly significant.

The applicant applied in trespass (as she would still have to under the new law) for an injunction to prevent what amounted to harassment, and obtained an order preventing the man from coming within 250 yards of her house.

The importance of the case lies in the fact that the Court of Appeal was prepared to find that, where necessary, courts (including county courts: County Courts Act 1984 s 44) could exercise an inherent jurisdiction to give their orders full effect.SOCIAL WELFARE LAW UPDATE -- A Review of the new rules on payment of 'housing costs'On 2 October, the government introduced significant restrictions to the amount of 'housing costs' paid to income support (IS) claimants.The main type of 'housing cost' is mortgage interest but there are others too -- for example, service charges and loans (secured or unsecured) for repairs and improvements.I will refer to all housing costs as 'ISMI' (income support mortgage interest).

The government's stated purpose is to encourage borrowers to insure against the risk of unemployment.The new rules are contained in a replacement shed 3 to the Income Support (General) Regulations 1987.-- The old systemPrior to 2 October, ISMI was payable immediately a person qualified for IS, although people under 60 received only 50% for the first 16 weeks.The actual rate of interest a claimant had to pay determined his ISMI.During the 16 week period, ISMI was paid to claimants; after that, it was paid direct to lenders participating in the Mortgage Direct Scheme.The portion of a loan over £100,000 was usually excluded, as was part of a loan on a home cons idered to be in excess of the needs of the claimant's family.In addition, loans taken out or increased while the claimant or a member of his family was on IS (or within 26 weeks of being on IS) were excluded, a provision particularly affecting separating couples.These exclusions still apply, though in amended form.-- The new systemOne must now differentiate between loans taken out before and after 2 October.

Where a claim for IS is made after 2 October by a claimant with a loan taken out before that date, no ISMI is generally paid for the first eight weeks, and only half for the next 18 weeks.

Where a claim is made after 2 October in respect of a laon taken out after that date, no ISMI is generally paid for the first 39 weeks.Remortgages are, in almost all cases, considered to be new loans.Claimants over 60 (or with a partner over 60) are exempt from these waiting periods, and in addition certain groups with new loans are treated as though they had existing loans.

Examples are carers and bereaved or deserted claimants with children (provided the claimant remains single).In calculating the various waiting periods, one ignores periods -- up to 12 weeks and sometimes longer -- when the claimant temporarily goes off IS.Eligibility in respect of repair and improvement loans has been tightened.

Only work of a listed type which is intended to maintain 'the fitness of the dwelling [or building containing it] for human habitation' now qualifies.ISMI is payable at a 'standard' rate, unless the actual rate is under 5% when ISMI is first payable.

This applies even to people over 60.

The standard rate is a market average and is currently 8.39%.ISMI is no longer payable to deserted or bereaved partners in respect of secured non-housing loans (eg business loans).

Neither is it payable in respect of interest on arrears in the limited circumstances where it used to be.All payments of ISMI are now made direct to participating lenders.Claimants with existing agreements who claimed prior to 2 October have transitional protection.COMMERCIAL LITIGATION UPDATE -- An Anton Piller order faced a test in the counterfeit Coke caseCounterfeit Coke is bad for your health it seems.

At least it was for Periclis Pericleous (aka Peter Smith) who faced a choice of violence to himself or his family from associates, or committal for refusing to disclose the identity of his associates.

He chose to go to prison (see Coca Cola v Gilbey, [1995] The Independent, 10 October).Coca Cola discovered a large and allegedly criminal organisation selling counterfeit Coke and other branded soft drinks.

In proceedings for trademark infringement and passing off, an Anton Piller order was obtained against MR Pericleous.

He complied with the order except for providing information relating to the whereabouts of items, documents and addresses used by the organisation and the names of those involved.He applied to discharge the order in two grounds: 1.

self-incrimination in criminal proceedings; and 2.

his safety and that of his family would be put at risk because he alleged that those involved had a propensity towards violence.Lightman J dismissed the self-incrimination issue.

It is hard to see how this point could have been argued in view of s 72 of the Supreme Court Act 1971, which removes the privilege against incrimination in relation to information required to be disclosed in an order made in civil proceedings for infringement of trademark or passing off.

It was a claim to the privilege in the case of Rank Film Distributors Ltd v Video Information Ce ntre [1982] AC 380, which appeared to be so entirely lacking in merit, that led Parliament to change the law by s 72.

Although statements or admissions made in compliance with an order would be inadmissible in any criminal proceedings against that person, it appears that evidence contained in documents is admissible.Mr Pericleous had given some evidence about the risk of violence.

He wanted to give further evidence in the absence of the plaintiffs and their legal representatives.

The judge held that that course was totally objectionable; he could only receive and act on one party's evidence if it was made available to the other party at the same time.

However, accepting the risk of violence at face value, and assuming that it established there was a real risk of physical violence, the judge had to balance the interest of the plaintiffs in obtaining the information against the interest of Mr Pericleous and his family in avoiding harm.

The judge held that the obligation imposed on a wrongdoer to provide information necessary to protect and preserve the interests of the victim was not lifted by the fact that his associates allegedly had a propensity towards violence.There were also four public interest factors which the judge identified, leading to the same conclusion: suppressing as soon as possible the fraud on the public; not giving wrongdoers a means of avoiding an obligation to make disclosure by pleading risk of personal danger not encouraging a belief that threats of violence would be able to obtain silence; and the need to deal promptly and effectively with the other persons involved in the scheme.Lightman J refused leave to appeal.

The Court of Appeal (Brown and Norse LJJ) also refused leave.

They upheld and endorsed the reasoning of the judge, and stressed that the interests of the plaintiffs, and the public, required the defendant to disclose the information.

They drew an analogy with the (rare) cases where victims of crime who refuse to testify can be committed.If Mr Pericleous's argument had succeeded it could have seriously undermined the value of Anton Piller orders, and the clear intention of Parliament which led to s 72 of the 1991 Act.-- A review of grant of leave to appealWhen will the Court of Appeal reconsider its own decision to grant leave to appeal? Not very often, according to First Tokyo Index Ltd v Morgan Stanley Trust Co, Ashley Morris Crisp, (see [1995] The Times, 6 October).Many appeals to the Court of Appeal may only be made with leave.

The most important category of cases where leave is required is interlocutory orders or judgments.

If the first instance judge refuses leave, an application can be made to the Court of Appeal.

Usually applications are dealt with by a single judge, ex parte on paper.

An ex parte grant of leave can be challenged by any other party affected by it.

The Court of Appeal has confirmed again that a grant of leave to appeal by a single judge should be treated as conclusive except in cases of obvious error.In First Tokyo, Ashurst Morris Crisp applied to have the claims against them struck out under RSC ord 18 r 19, or the court's inherent jurisdiction.

At first instance Blackburne J refused their application.

Peter Gibson LJ granted Ashurst's ex parte paper application for leave.

Two of the defendants applied for the grant of leave to be rescinded.Sir Thomas Bingham expressly approved a passage in the judgment of his predecessor, Lord Donaldson, in The Iran Nabuvat [1990] WLR 1115, as an authoritative statement of the law.

If one Lord Justice considered an appe al arguable, a grant of leave to appeal is conclusive unless the applicant can point to a factor not drawn to the attention of the single judge, or the applicant can show that the decision had overlooked a statutory provision or authority which was decisive in the sense that the appeal would inevitably fail.The rationale for the rule is twofold: justice and practical efficiency.

If the applicant can persuade a single judge that the appeal is arguable, even on an ex parte paper application, the Court of Appeal should be reluctant to interfere and stifle an appeal, even if two or more other Court of Appeal judges are sceptical about the chances of the appeal succeeding.

The appellant should be given the benefit of the doubt.

Second, the objective of the requirement for leave is to provide a filter mechanism to cut out unnecessary expense and delay caused by hopeless appeals using up the limited resources of the court, delay being a form of injustice to all litigants.

So Ashursts maintained the grant of leave to appeal.

This is a further reminder of the clear desire of the Court of Appeal to modernise and streamline its procedures.