Family law

Habitual residence: meaning of 'habitually'Ikimi v Ikimi (2001) The Times, 18 July, CAIn Ikimi v Ikimi the Court of Appeal considered the meaning of the words 'habitually resident' in the context of a spouse being 'habitually resident in England and Wales' under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.

They looked at the phrase on analogy with R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 308 where the House of Lords held that 'ordinarily resident' meant habitually resident in the particular context.On this basis, and according to the short report so far available, Lord Justice Thorpe held that 'ordinarily' and 'habitually' must now be regarded as synonymous.

Furthermore, he decreed - grandly - that henceforth, in any family law statute where either of the two words appear, they must be given the same meaning.

This is an intriguing approach to language; for 'habitually' seems to connote a more settled basis for residence than 'ordinarily'.

In ex parte Shah it might be said that the House of Lords went from the wider term to the more restrictive.

It does not necessarily follow, without straining the language, that one can go the other way, as Lord Justice Thorpe has sought to do.'Habitually resident' is a phrase which has seen much recent judicial trampling.

Since ex parte Shah the House of Lords has considered the term again in a family based context under article 4 of the Hague Convention on Child Abduction (application of the Convention to children who are habitually resident before breach of any rights of custody).

In Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 the House of Lords held that habitual residence is a question of fact to be decided by the circumstances of each case.

It may be possible for a person to cease to be habitually resident in one jurisdiction, without yet becoming habitually resident in another.Protection of primary carerRe H (Children) (Contact Order) (No 2) (2001) The Times, 10 AugustIn wholly exceptional circumstances it might be appropriate to refuse contact, even overriding the children's wishes in so doing.

So held Mr Justice Wall in Re H (Children) (Contact Order) (No 2), a case where a father had threatened suicide and to kill the child of the family as well.

This provoked in the mother the reaction that, were he to see the children again, even under supervision, it might trigger in her a nervous breakdown.

Her protection in such circumstances was more important than the welfare of the children.Trial of a preliminary issueSteele v Steele (2001) The Times, 5 JuneCivil Procedure Rules 1998 (CPR), rule 1.4(2)(b) and (d) provides that 'active case management' includes 'identifying the issues at an early stage' and deciding the order in which 'issues are to be resolved'.

The regime introduced by CPR encourages the courts to split issues for separate trial where possible and where this might have a costs saving consequence; and Family Proceedings Rules 1991 rule 2.51B(6)(c) ('identifying the issues at an early stage') has a similar effect for ancillary relief proceedings (T v T (Judicial Separation) (2000) Fam Law case summaries, July 517 and Re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773 provide examples of split trials in the family jurisdiction).

In Steele v Steele, Mr Justice Neuberger (in the Chancery Division) gave an indication of the circumstances in which a split trial should be ordered, including:l Might disposal of the preliminary issue dispose of the whole issue before the court, as in care proceedings and determination of whether the threshold has been achieved? See, for example, Re S, above.l Could determination of the preliminary issue cut down the costs and length of trial, or might it only have the effect of increasing costs?l If a question of law, could it be determined on agreed facts (as in, for example, T v T, above)?l The relevance of determination of the issue: the more relevant the more it is likely that a preliminary issue might be listed for hearing.In the ancillary relief jurisdiction, obvious areas for trial as a preliminary issue are disputed issues of valuation and whether provision of money by a spouse's family is a gift or a loan.

As suggested by Mr Justice Neuberger one criterion is likely to be: might determination of the issue help the parties to reach agreement (for example, because the court has determined the value of the parties' net assets in the example of the family gift/loan)?Costs miscellanyThe following costs cases will be of significance to family lawyers:l Wasted costs - Re P (a Barrister) (Wasted Costs Order) (2001) The Times, 31 July.The Court of Appeal held that the trial judge was the appropriate person to deal with wasted costs orders - that is, not a different judge.

The intention of the jurisdiction was summary disposal - swift, economical and effective; it was to compensate, not to punish; more was needed than mere mistake (see further Ridehalgh v Horsefield [1994] Ch 205, [1994] 2 FLR 194, CA for what is needed to found an application for an order); and in the normal course of an application the standard of proof was the civil standard.l Limitation on costs orders - Times Newspapers Ltd v Chohan (2001) The Times, 1 August.It is not always appreciated that recovery of costs is subject to limitation of action.

In the case of judgments, the period is six years after the judgment becomes enforceable (section 24 of the Limitation Act 1980).

But what of an order for costs not certified until many months after the judgment? In Times Newspapers Ltd v Chohan (in which Gazette columnist Jeremy Morgan acted for the newspapers) the Court of Appeal held that the period of six years ran from the date of certification of costs due, since before that there was nothing to enforce and time could not therefore run under section 24.l Judicial review costs of defendant at permission stage - R (Leach) v Commissioner for Local Administration (2001) The Times, 2 August.A defendant in judicial review proceedings may now oppose the grant of permission to apply for review, a new addition under CPR, part 54.

If the defendant successfully opposes the grant of permission, the claim can proceed no further; but can he then get his costs? Yes, said Mr Justice Collins in R (Leach) v Commissioner for Local Administration.

By David Burrows, David Burrows, Bristol