Family law

Residential parent's plans to move house

Re S (a Child) (Residence Order: Condition) (No 2) [2002] EWCA Civ 1795; [2002] 1 FCR 138

Generally, it is impossible for a court to prevent a residential parent moving house within the jurisdiction; nor does the parent need court permission save, probably, a specific issue order for any change of schooling.

For the non-residential parent who may want to oppose a move, the remedy lies in an application for a variation of the residence order; or, in exceptional circumstances, to seek a Children Act 1989 section 11(7) condition on any existing order.

Under section 11(7)(b), the court can impose conditions on any person 'in whose favour an order is made'.

In a truly exceptional case, a section 11(7) condition restricting the mother's own planned move could be contemplated.

In Re S, the child suffered from Downs Syndrome, with a life-shortening heart condition and respiratory problems.

A move might cause severe emotional difficulties for the child and impede the father's contact.

The Court of Appeal held that the judge was entitled, in his discretion, to impose the section 11(7) condition.

Post-marital relationship - set aside or appeal?

Shaw v Shaw [2002] EWCA Civ 12, [2002] 3 FCR 298, CA

The procedural background to Shaw v Shaw presents a sad tale of a husband who went to exceptional procedural lengths resulting in ultimate failure in the Court of Appeal.

From issue of the wife's application in June 1996, via a district judge's judgment in October 1997, and various appeals and an application to set aside, the case took until 31 July 2002 for judgment in the Court of Appeal.

The wife received a lump sum (with a Duxbury element) of 400,000.

She agreed to reduce this on appeal to 300,000.

Interest was to be paid on this sum and periodical payments were to continue until it was paid.

This compromise order on appeal from the district judge was further appealed and sought to be set aside.

The husband's success before the circuit judge went on appeal to the Court of Appeal, where the wife's appeal was resoundingly allowed.

The husband's only success (Mr Justice Ferris dissenting: he should be held to his bargain) was to be relieved of paying some of the outstanding periodical payments (the interest remained to be paid).

Proceeds of Crime Act 2002 - section 330 and the family lawyer

Offences relating to failure to disclose money-laundering may affect the family lawyer because of the wide definition given to 'criminal property' by the Proceeds of Crime Act 2002 (it might include proceeds of tax evasion or benefit), and because not to disclose information to the appropriate authority constitutes an offence.

A statutory defence enables a lawyer to say that information came to him in 'privileged circumstances' if it is communicated to him by a client (for example, 'in connection with the giving by the adviser of legal advice to the client' - section 330(10)).

The precise meaning of 'privileged circumstances' is critical.

Further advice will follow.

By David Burrows, David Burrows, Bristol