Family law

By David Burrows, David Burrows, Bristol

Can White give rise to an application to set aside

S v S [2002] NLJ 398, Mr Justice Bracewell

This is surely an unfortunate example of good cases making bad law.

Five eminent members of the bar contested an application before Mr Justice Bracewell in a case that may have been intended to answer the question: is White a Barder event? (see Barder v Barder [1988] AC 20, which established that in appropriate cases the court has a limited power to set aside an order).

If not, does such an important case enable a spouse to apply to set aside an order? Mr Justice Bracewell concluded that, yes, a decision such as White could be a Barder supervening event; but not in this particular case.

S v S turned on whether, a month before speeches in the House of Lords, the wife's advisers should have framed their advice to her to agree terms for settlement with an eye on the approaching House of Lords decision in White.

After all, on the facts, the House of Lords changed nothing from the decision in the Court of Appeal.

Surprise to tell, Mr Justice Bracewell said, yes they should have had White in mind.

W's attempt to set aside a consent order on a mistake of law or to appeal out of time on the basis of a supervening event therefore failed.

Of significance to family lawyers is the underlying debate on whether an order can be set aside on the basis of a mistake of law.

In Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095, HL, a strong House of Lords considered whether, in a restitution case, money paid under a mistake of law could be recovered outside the limitation period (as can be money paid under a mistake of fact).

With Lord Browne-Wilkinson and Lord Lloyd dissenting (they would have preferred to leave a decision to change the law to Parliament) it was held that money so paid could be recovered.

Section 32(1)(c) of the Limitation Act 1980 applied to such claims, so that the limitation period ran from the date of discovery of the mistake.

Mr Justice Bracewell held, obiter, that Kleinwort Benson could not apply to consent orders.

A preliminary consideration of their lordships' speeches, leads this column to a different - albeit tentative and respectful - conclusion.

Though Kleinwort Benson, itself, was limited to restitution, the principles considered - for example, unjust enrichment - section 32(1)(c) seems not to be limited to restitution cases.

It applies to any 'action ...

for the consequences of a mistake'.

For this and cases of non-disclosure (perhaps) time does not run till discovery of the 'concealment or mistake' - a point worth bearing in mind, also, for non-disclosure cases.

Use of child's chosen names

Re H (Child's Name: First Name) (2002) The Times, 6 February

In Hull, a problem has arisen of fathers turning up at register offices before the mother of the child, to register a child's birth in names chosen by him, not necessarily by the mother.

In Re H (Child's Name: First Name) (2002) The Times, 6 February, CA, the father had had no contact with the mother during her pregnancy, registered the birth first, and found that, not only did the registrar of births take the view that the names should stand, but so too did a recorder in Kingston-upon-Hull County Court.

The child thereby acquired an immutable series of names by statutory registration.

For all other purposes, said the Court of Appeal - both at home and to the outside world (school, health records etcetera) - the name of the child was that chosen by the mother.

Privilege and an expert's opinion

R v Davies (Keith) (2002) The Times, 4 March

This is a case from the Court of Appeal (Criminal Division), but it arises in circumstances which may have relevance to the family lawyer.

Mr Davies was referred to a psychiatrist whose unfavourable report was not disclosed to the prosecution.

On the basis that there is no property in a witness, the prosecution called the psychiatrist.

His opinion, said the Court of Appeal, remained privileged.

Mr Davies was entitled to protection from inadvertently incriminating himself to the doctor; and he was entitled to assume that what he said to him had the same confidential status as what he said to his legal representatives.

The general rule (much simplified here) is that reports obtained in anticipation of any litigation are privileged.

In children proceedings, permission of the court is required to release papers to an expert.

That permission will be granted on terms that the contents are passed on to other parties.

A measure of protection against self-incrimination is afforded by section 98 of the Children Act 1989.

But what of the report, say, in private law proceedings, which is obtained on a parent prior to issue of proceedings? That report might contain findings which are damaging to a parent's application and which may reflect adversely on the welfare of the child.

Does the adviser put privilege - that is client confidentiality - before the welfare of the client's child? R v Davies suggests that client confidentiality comes first.

Disputed parentage

Section 55A of the Family Law Act 1986 crept onto the statute book last year, barely observed by many practitioners.

It fills a long-term lacuna: the fact that fathers could not apply on a free-standing basis for a decision as to their paternity of a child (save perhaps under order 15 of the Rules of the Supreme Court 1965).

Now 'any person' may file a petition (rule 3.13 of the Family Proceedings Rules 1991) for a declaration of parentage under section 55A.

Yes, anyone; but there is a filter which enables the court to weed out applications where it is thought that the applicant does not have 'a sufficient personal interest in the determination of the application' (section 55A(3)).

A further important amendment in this area, also introduced (like section 55A) by the Child Support, Pensions and Social Security Act 2000, is the amendment to section 21(3)(b) of the Family Law Reform Act 1969, which now enables the court to direct the taking of samples for DNA testing even though the person with care and control does not consent if the court considers it in the best interests of the child that the sample be taken.

Subject to prospects of success and financial eligibility, legal aid should be available for a petition under rule 3.13.

The following can now seek a declaration under section 55A: fathers in doubt as to the parentage of a child; a child questioning, as an adult, his or her parentage; and grandparents whose son has died and whose estranged daughter-in-law has denied their son's parentage of children they had always believed to be their grandchildren.

Variations of periodical payments - 'read between the lines'

Rule 2.69F(1) of the Family Proceedings Rules 1991 provides that 'a party may apply at any stage of the proceedings for...

an interim order [for periodical payments]'.

'Read between the lines,' says a senior district judge not unknown to these columns.

What this means, he says, is that a party can apply on form A for a variation of periodical payments; and at the same time application is made for an interim order.

This involves both spouses exchanging 'short sworn statements' (rule 2.69F(4) and (5)).

On hearing the interim application, the court will make an order.

If the parties are content with that order - which surely will be the case, says the district judge - they can convert it to a final order.

The filing and service of form E avoids extensive disclosure, etcetera.

I wish I had thought of that.

Maybe my clients have been missing out and other practitioners are doing this all the time.

I wonder.