Family law

Situation in Israel - not a 'grave risk' of harm

Re S (Child) (Abduction: Custody rights) (2002) The Times, 15 July, CA

Article 13(b) of the Hague Convention on the Civil Aspects of Child Abduction sets out a stringent test for the court in adjudicating on whether or not a child would be at 'grave risk' of exposure to 'physical or psychological harm or otherwise [would be placed] in an intolerable situation' if returned to its state of habitual residence.

In Re S, the child had been removed from Israel and the mother argued that for the child to be required to return there would amount to an article 13(b) defence.

The Court of Appeal agreed that the mother had raised an article 13(b) defence on the facts.

However, the court must then stand back and consider whether the harm alleged was enough to say the child would be placed in an intolerable position if returned.

The test was a narrow one - the issue was not whether there was a state of war in Israel, but was there a grave risk to this particular child if she was returned? While the court was sympathetic to the mother's fears, it was not satisfied, in this instance, that there was a 'grave risk' of harm within the terms of article 13(b).

Point of transfer of title following a property adjustment order

Mountney v Treharne (2002) The Times, 9 September, CA

The important question of when title passes to a spouse following the making of a property adjustment order is answered by Mountney v Treharne - the spouse who receives the benefit of the order acquires an equitable interest at the point when the order becomes effective, namely upon decree absolute.

The case concerned a husband who was made bankrupt after the making of a property adjustment order but before the formal transfer of title to the property had been completed.

In these circumstances, said the Court of Appeal, the trustee takes any interest in the property subject to the wife's equitable interest.

In the case of an outright transfer, as here, the husband's trustee took nothing.

The practical consequence of this is that in the case of an imminent bankruptcy or the possibility of premature death of the transferring spouse, a decree absolute should be applied for as quickly as possible after the property adjustment order.

Failure to apply in the event of death or bankruptcy will leave the beneficiary spouse with no more interest than she had immediately prior to the making of the order.

Any joint tenancy will probably have been converted to a tenancy in common by the court application; and certainly will have been so converted by the order or the subsequent bankruptcy.

No split of child benefit - importance to child support

R (Barber) v Secretary of State for Work and Pensions (2002) The Times, 29 August

The Secretary of State for Work and Pensions has no power to split child benefit between two parents (perhaps where they share care equally), as may have been previously thought; and to refuse to share child benefit is not incompatible with the Human Rights Act 1998.

So held Sir Richard Tucker, sitting in the Queens Bench Division, when he was asked by Mr Barber to review the refusal of the secretary of state to split benefit between himself and his former wife, the mother of the child concerned.

This decision - generally unsurprising - is important in the context of child support maintenance, since the scheme under the Child Support Act 1991 depends upon one parent receiving child benefit and the other being the non-resident parent (under the present scheme see regulation 20(2)(b)(i) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992).

Judges to be wary of differing from opinion witnesses

Re M (Child: Residence) (2002) The Times, 24 July, CA

While a judge is entitled to disagree with the evidence of an expert witness, he should not do so merely on an impression of that witness in the witness box.

The Court of Appeal so held in Re M in a children case in which the judge heard three witnesses testify as to the father's damaged personality.

Furthermore, it is well-established law that a judge who does differ from an expert witness should explain the reasons for so doing more fully than the judge did in this case.

Undue influence - the family aspect

Hammond v Osborne and ors (2002) The Times, 18 July, CA

Undue influence enables the court to set aside a gift or other transaction; and in certain circumstances there is a presumption of undue influence (see Snell's Equity, 13th edition (2000 Sweet and Maxwell) paragraph 38-09 et seq), as where a donee is in a position of trust and confidence in relation to a donor.

Such a relationship can occur in many family relationships: husband and wife, child and parent, elderly parent and mature child, and so on.

In Hammond v Osborne, Sir Martin Nourse, sitting in the Court of Appeal explained where, as a matter of public policy, the courts might intervene to prevent abuse of such a relationship occurring.

Here the gift had created a substantial tax liability for the donor.

Therefore, it was essential for the donee to show that the gift had been made after full, free and informed thought.

Even though, as here, the gift had been spontaneous and after free thought, this did not rebut a presumption of undue influence.

Recoupment or deferral of legal aid costs

Oliver Fisher (a firm) v Legal Services Commission [2002] NLJ 792, Mr Justice Scott Baker

Where a solicitor fails to comply with the legal aid regulations and the legal aid fund incurs loss then the Legal Services Commission can 'defer' payment to the solicitor.

Where money was paid to the solicitor, the commission had no power to then recoup it from that solicitor via another case; nor could the commission defer where there would be no possibility of the legal representative ultimately being paid.

Here the commission's difficulties arose because the regulations were badly drafted.

Variable order not enforceable

Cartwright v Cartwright [2002] EWCA Civ 931, [2002] 2FLR 610, CA

Where an order for maintenance or other periodical payments is capable of being varied, the debt is not enforceable by bankruptcy.

In the above case, the order had been made in Hong Kong and could be varied there.

Accordingly, it was not final and conclusive and was not therefore enforceable in bankruptcy.

By David Burrows, David Burrows, Bristol