Update: family law

Residential assessment '“ s 38 (6)

The court's power to direct a residential assessment was considered in Re L and H (Residential Assessment) [2007] EWCA Civ 213. The Court of Appeal found that the judge has been wrong to refuse a residential assessment, which had been recommended by an expert, on the basis that it included an element of therapy and was therefore outside the scope of s 38 (6) Children Act. Under s 38 (6) the court may give directions as it considers appropriate with regard to medical, psychiatric or other assessment of the child. In Re G (Interim Care: Residential Assessment) [2005] UKHL 68, it was held that this provision was to cover assessment and not treatment. In Re L and H the proposed residential assessment was held to be central to the issue of the child's welfare as it was to provide information on firstly how well the mother would manage the practicalities of parenting and secondly on the parent's relationship in caring for the child in the context of a supervised setting. Both the local authority and the guardian opposed the assessment on the basis that the parents were unable to meet the children's needs. The Court of Appeal held that before removing children from their natural families and placing them for adoption, the court should ensure that the case had been fully investigated and all the relevant evidence was available. The Court of Appeal referred to the underlying principles of the Children Act and Article 6 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Special guardianship/adoption

Three appeals (Re S (A Child) [2007] EWCA Civ 54; Re AJ (A Child) [2007] EWCA Civ 55 and M-J (A Child) [2007] EWCA Civ 56) were heard in the Court of Appeal in November and December 2006 and have just been reported. All three address the same question which is whether the children concerned should be adopted or should the prospective adopters in each case be appointed as the children's special guardians (s 14A Children Act as inserted by s115 Adoption and Children Act 2002). Although there are three separate judgements the cases are to be read together and the principles as set out in detail in Re S are to be applied to all three.

In analysing the statutory provisions, the Court of Appeal emphasised the strong and clear distinction between the status of adopted children and those who are the subject of lesser orders including special guardianship orders. This difference is apparent in the application of the welfare principle. When considering adoption the court must have regard to the child's welfare 'throughout his life'. There is a significant difference in the stability and permanency of the orders as special guardianship orders may be subject to variation or discharge.

The general guidance given is that there is nothing in the statutory provisions which limits the making of an adoption or special guardianship order to any particular set of circumstances. Whether an adoption or special guardianship order is made will turn on the facts of the particular case. A key consideration is the best way forward to secure the child or children's position within the placement. Each case will fall to be decided on what is in the best interests of the particular child on the particular facts of the case.

Re S was the only one of the cases that involved a placement with a non-family member and was an appeal against the making of a special guardianship order; the appellant had applied for an adoption order and the court had imposed a special guardianship order. An unusual feature of the case was the good relationship between the child's mother and the appellant and it was envisaged that contact would continue and perhaps increase over time. The child wished to continue contact with her mother. The Court of Appeal upheld the trial judge's decision which was to reject the proposition that special guardianship orders are limited to cases where children are placed permanently with family members or long-term foster placements.

Re AJ was an appeal by the parents against an adoption order made in favour of the child's maternal aunt and uncle. On appeal the parents argued that special guardianship orders had effectively replaced adoption orders in cases where the children are to be placed permanently in their wider families. The Court of Appeal upheld the adoption order and the trial judge's findings that there was a real possibility of future applications to court and that those applications would be disruptive of the placement In this case, as in Re M-J, the parents offered the prospective adopters the protection of orders under s 91 (14) for an indefinite period of time. In both these cases the Court of Appeal considered that the need for the child for stability and permanence in the light of possible applications that would be disruptive was a factor that was a clear pointer to adoption. In Re M-J it was held that no lesser order that adoption would meet M-J's welfare.

Immigration/care cases

Orders made in care proceedings do not prevent the exercise of powers by the Home Office. The purpose of S33(7) Children Act which prevents the removal of a child who is subject to a care order from the jurisdiction without the written consent of the local authority and those with parental responsibility or leave of the court was considered in Re L (Care Order: Immigration Powers to Remove) [2007] EWHC 158 (Fam). It was held that this section did not apply to the exercise of the powers and duties of the Secretary of State and did not prevent the removal of the child under immigration legislation.

Ancillary relief '“ the Australian experience

In these days following Miller v Miller: McFarlane v McFarlane [2006] UKHL 24, English family lawyers are having to accept that applying family law in practice to 'big money' cases is a particularly imprecise exercise. It entails a wrestle with what assets should count as matrimonial as opposed to non-matrimonial property; and with the concepts of 'needs', 'compensation' and 'sharing' and how they should be applied to the available assets. Clearer definition was being sought from guidance given in recent cases such as Rossi v Rossi [2006] EWCH 1482 (Fam), S v S (Ancillary Relief after Lengthy Separation) [2006] EWHC 2339 (Fam), FS v JS [2006] EWHC 2793 (Fam) and H v H [2007] EWHC 459 (Fam). However, we were warned by Mr Justice Charles in H v H, 'not to create set or rigid stepping stones, or apply a formulaic approach that is not set out in the statutes'. We need a balance to be struck between fluidity and formula so we can advise our clients with some certainty of outcome.

We know that the overall objective is to achieve fairness having regard to all the circumstances of the case, the first consideration being given to the welfare of any child of the family. We know too that we seek to achieve a clean break where possible, so that each party can set off on the road to independent living. Beyond that, there is still relatively wide room for debate, depending upon the circumstances of a particular case.

How does another kindred jurisdiction, Australia, do it? How are big money cases resolved there? Can we learn from the Australian approach, perhaps, to help clarify our murky conceptual waters?

The Australian approach

In assessing a person's entitlement for a property settlement pursuant to the Family Law Act 1975 in Australia, there is essentially a four-step analysis:

1) Identify and value the assets in the asset pool;

2) Assess the contributions (both financial and non-financial) made by the parties to the asset pool;

3) Assess factors pursuant to s 75(2), (commonly referred to as 'future needs'); and

4) Lastly, ascertain whether or not the proposed division is 'just and equitable'.

There are similarities to the English approach in that the overall objective for Australian family lawyers is to achieve a result that is 'just and equitable' having regard to all the circumstances of the case. In achieving that result, the welfare of any child of the family is taken into account pursuant to s 75(2)(c). Australian family lawyers must also look at the finality principle pursuant to s 81 of the Family Law Act 1975, so that each party will be financially independent of the other.

In contrast to the English approach in big money cases, Australian courts are not wrestling with concepts such as 'compensation' and 'sharing'. Further, Australian courts are not making a distinction between matrimonial and non-matrimonial property per se. In identifying the asset pool, all assets (including superannuation) are included, whether they were held by a party at the date of cohabitation, acquired during cohabitation/marriage or post-separation. The question posed is rather, what were the respective parties' contributions to the total asset pool?

In Australian family law, contributions can comprise many things, including (but not limited to):

1) 'special' contributions or skills (e.g. entrepreneurial skills);

2) third-party contributions (e.g. gifts, loans, childcare);

3) inheritances/redundancies/compensation payments;

4) non-financial (e.g. physical labour in renovating the home); or

5) contributions to the welfare of the family (i.e. as homemaker and parent).

The concepts currently in issue in Australian big money cases focus on the nature and quantification of the contributions each party has made. For instance, there is continuing debate about 'special', 'extra' or 'extraordinary' skills, similar to the debate in England.

Outcomes pursuant to the Australian approach appear to have been less generous to wives and that is perhaps due to the particular value that has been attributed to 'special' entrepreneurial skills.

In contrast, the English approach to division of assets on divorce retains a reputation for being the most generous jurisdiction in the world for wives.

Australian courts have been drawing upon principles in our big money cases. They now appear to have recognised the danger in applying 'special contribution' in a way that values contributions of a financial nature over and above any non-financial (e.g. homemaker/parent) contribution. For instance, in discussing the outcome in Figgins (referred to in the table below) in the Australian case of Hill and Hill (2005) FLC 93-209, Kay, Holden and Boland JJ noted that, 'In the course of their reasons for judgment Nicholson CJ and Buckley J queried whether the approach in the earlier cases such as JEL and DDF which gave recognition to 'special contributions' might need to be reconsidered in light of the decision of the House of Lords in White v White [2001] 1 AC 596. Their Honours remarked that there could be a serious tendency to undervalue the wife's contributions during a marriage.'

Rather than following one another, Australian and English courts appear to be drawing upon and developing the other's principles. We looked to Australia for inspiration in developing our ancillary relief procedure with its judicial checks at each key stage. Perhaps we should now be looking further into their approach to resolving the substance of ancillary relief claims and could draw inspiration from their four step analysis? In light of the calls for further reform and referral to the Law Commission, watch this space.