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Family Law

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02 DEC 2014

R (On the application of J) (by his litigation friend, W) v Worcester County Council (Equality and Human Rights Commission intervening) [2014] EWCA Civ 1518

R (On the application of J) (by his litigation friend, W) v Worcester County Council (Equality and Human Rights Commission intervening) [2014] EWCA Civ 1518
(Court of Appeal, Floyd, King LJJ, Lord Dyson MR, 25 November 2014)

[The judicially approved judgment and accompanying headnote is now published in Family Law Reports [2015] 2 FLR 1053]

Public law children – Child in need – Child with down’s syndrome a member of the gypsy community – Only physically present in the local authority area during the winter – Whether s 17(1) of the Children Act 1989 enabled the local authority to provide services outside the area when the child was outside the area

The full judgment is available below.


The local authority appeal from a decision finding that it had the power to provide services to a child who was subject to a child in need plan outside of its area when the child was travelling as part of the gypsy community.

The 4-year-old child was diagnosed with Down’s syndrome. As such he was treated as a child in need in accordance with s 17(10)(c) of the Children Act 1989. He lived with his family who were fairground workers and part of the Gypsy community. Prior to his birth the family would travel between February and November, working on fairgrounds. During the winter months they lived in a caravan in the grandfather’s garden. Following the child’s birth the local authority conducted an assessment of the child’s needs and formulated a child/young person in need plan. During a review meeting the parents asked for services to be provided for the child when they travelled. A key need was a nursery placement for the child for a few hours each week to give the parents some respite. The local authority told the parents that the nursery provision could not be made available when they travelled as a number of local authorities would need to be accessed.

The child, by his father acting as his litigation friend, applied for judicial review of the decision. The judge found that pursuant to s 17(1) the local authority, by virtue of its assessment of the child’s needs made when he was actually present in the area had the power so long as the child remained in need to provide a range and level of services appropriate to his needs both within and outside the area. The local authority appealed.

The appeal was dismissed. Applying a purposive construction to the section, the local authority had the power to provide services for a child in need who they had assessed regardless of the circumstances which led to the child no longer being physically present in their area. The local authority had a power not a duty to provide the assessed services and could consider what services they could provide for a child in need having carried out the assessment. The power could be exercised outside the area when the child was outside the area.


Neutral Citation Number: [2014] EWCA Civ 1518
Case No: C1/2014/0133

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The High Court: Queen's Bench Division (Administrative Court)
Mr Justice Holman [2013] EWHC 3845 (Admin)

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: Tuesday 25th November 2014

Before :

THE MASTER OF THE ROLLS
LORD JUSTICE FLOYD
and
LADY JUSTICE KING

- - - - - - - - - - - - - - - - - - - - -

Between :

Worcestershire County Council
Appellant

- and -

R on app of J (by his litigation friend W)
Respondent

- and -

The Equality & Human Rights Commission
Intervener

(Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Andrew Sharland (instructed by Worcestershire County Council) for the Appellant
Chris Buttler (instructed by Bindmans LLP) for the Respondent
Jan Luba QC (instructed by The Equality & Human Rights Commission) for the Intervener

Hearing date : 4th November 2014


Judgment

Lady Justice King
:

[1] This appeal concerns the scope of a local authority’s power to provide services to a child in need under s17 of the Children Act 1989.

[2] The issue for the court to determine is whether a local authority’s power to provide such services is limited to children in need who are physically present in the council’s area at the time the services are provided, or whether the power extends to the provision of services to children who, although physically present at the time of assessment, are outside the area at the time of provision.

Background

[3] The respondent to the appeal is J who was born on the 1st April 2010 (4 yrs 7mths). J has Down’s syndrome; he lives with his parents, his twin and his older sister. The family are seventh generation fairground travellers and part of the Gypsy community. The pattern followed by the family prior to the birth of J was to travel to, and work on, fairgrounds across the country between February and November each year, returning to the Malvern area to spend the winter in their caravan in the garden of J’s grandfather, who, in his old age, no longer travels.

[4] J is a “child in need” if only by virtue of his disability (s 17(10)(c) CA 1989). In July 2012 an assessment of J’s needs was completed by Worcestershire County Council (the council); this was followed by a Child/Young Person in Need Plan dated 24th July 2012. Such plans are regularly reviewed and one such review took place at a meeting on the 8th February 2013. At the meeting J’s parents expressed their wish that the services provided to them for J within the area should continue to be provided to them when they were travelling. It was recognised in the meeting that a key need for this family was the provision of a nursery placement for J for a relatively modest number of hours each week in order to give his mother some much needed respite and to allow her to spend time with her other two children: The meeting recommended that “Social care considers funding a nursery placement of 5 hours a week and consideration is given whether these hours could “travel” with him and the family.”

[5] On the 6th March 2013, the council wrote to J’s parents informing them that the recommended nursery provision could not “travel” with the family. The parents were told:

“On those occasions as a travelling family, when you need to access social care services to support J and you are not living within the Worcestershire boundary, you will need to access the host local authority’s services. These are usually accessed by contacting the local authority’s access centre or hub.”

[6] It is this decision which is under challenge by J by his litigation friend, his father, W.

[7] On the 29th July 2013, a pre-action protocol letter was sent. The response was received on the 12th August 2013, leading to the issuing of judicial review proceedings on the 30th August 2013.

[8] Permission having being given to apply for judicial review by Mr Justice Holman, the matter came on for trial before him. Judgment was given on the 6th December 2013. Represented at the trial were Worcestershire County Council; J by his litigation friend his father W and the Equality and Human Rights Commission (EHRC), who had been given permission to intervene.

[9] The Judge found in favour of J concluding that:

“[55]…under s17(1) of the Children Act 1989, pursuant to assessments of the claimant’s needs made at times when he is actually present within their area, the Worcestershire County Council do have the power for so long as he remains a child who is a child in need, to provide a range and level of services appropriate to his needs both inside and outside their area, and at times when the claimant is not physically within their area (but is within England and Wales). The power includes the powers under s17(5) and s27(1).”

[10] It is against Holman J’s judgment that Worcestershire County Council now appeal, permission having been given on the 14th March 2014 by Lord Justice Beatson.

Section 17 Children Act 1989

[11] Section 17 provides:

"17 Provision of services for children in need, their families and others.

(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs."

[12] Since its introduction, s 17 CA 1989 has been the subject of clarification by the courts on a number of occasions notwithstanding that, at first glance, it would appear to be a straightforward provision giving local authorities broad powers and expressed in plain language. To date the courts have dealt with: a) the nature of the “general duty” ; and b) the extent of the obligation imposed by the section to provide services. What remains to be clarified is the issue as to whether the local authority’s power to provide services extends to a child in need who is out of the area of the local authority that carried out the s 17 assessment.

[13] R (Stewart) v London Borough of Wandsworth [2001] EWHC 709 (Admin) (Stewart), is the long standing authority in relation to the “general duty,” a decision no one in the present case seeks to challenge. Stewart establishes that:

i) A duty to assess under the “general duty” is triggered by the physical presence of a child in need in a local authority’s area. No more is needed.

ii) It follows that more than one local authority may be the subject of the duty to assess (in Stewart the child was living in one London Borough and going to school in a second.)

iii) Where more than one authority is under such a duty there is no reason for more than one authority to assess and “there is a manifest case for co-operation under s27 of the Children Act and a sharing of the burden by the authorities”. [28]

iv) The duty is to assess the needs of the child which, per s17(10)(a), includes situations in which the child is unlikely to maintain a reasonable standard of health or development without the provision of services by “a” local authority. “The provision is not restricted to services that would be provided by the authority making the assessment”. [29].

[14] At the time Stewart was decided a further issue in relation to s 17 CA 1989 was working its way through the courts namely whether, once the child’s needs had been assessed pursuant to the s 17 CA 1989 duty, there was thereafter a further duty to provide the services identified as necessary to meet the assessed needs.

[15] The issue was settled by the House of Lords in R (G) v Barnet London Borough Council [2004] 2 AC 208. The House of Lords held that the local authority were not under a mandatory duty pursuant to s17(1) CA 1989 to meet every individual child’s needs regardless of resources. Lord Hope said:

“85 ….A child in need within the meaning of s17(10) is eligible for the provision of those services, but he has no absolute right to them."

And then:

“92…Section 17 refers to a range and level of services appropriate to the children’s needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services”.

[16] Lord Millett made it clear that the discretion afforded to local authorities in relation to the provision of services does not undermine in any way their duty to assess under s 17(1) CA 1989:

“110. It does not follow that the social services authority is not obliged to assess the needs of an individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance; and in the present context that involves assessing the needs of the child in order to decide whether and to what extent to which the authority will meet his needs. But there is no need to invoke this implied duty;… the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2.”

[17] The issue arose again in relation to the children of a failed asylum seeker in R (on the application of VC and others) v Newcastle City Council [2012] 2 All ER 227. Munby LJ restated [21] the principles established in R (G) v Barnet LBC, emphasising that, whilst there is a duty to assess, there is no duty to provide the assessed services. Munby LJ went on to put any failure on the part of a local authority to provide such services in context saying:

“[25] A refusal to provide assessed services is, of course, amenable to challenge by way of judicial review in accordance with recognised principles of public law, one of which is that discretionary statutory powers must be exercised to promote the policy and the objects of the statute”.

He continued:

“[26] Furthermore, where the assessment is to the effect that there is a need for services, any decision not to provide the assessed services will no doubt, and not least because a child is involved, be subjected to strict, and it may be sceptical scrutiny, particularly if there is no available argument based on lack of resources.”

[18] The law in respect of s 17 is, therefore, settled to this extent:

i) A local authority has a duty to assess a child in need who is physically present in their area.

ii) Having assessed the needs the authority thereafter has a broad discretion, in the form of a power rather than a duty, to determine how and to what extent they will make provision for the identified needs, subject always to the public law safeguard provided by challenge by way of judicial review.

[19] As noted above, Mr Beatson QC (as he then was), said in Stewart that “The provision is not restricted to services that would be provided by the authority making the assessment” [29]. This local authority operate on that precise basis and provide services out of area for children they have assessed whilst they were physically present in their area; such provision may, and often does, involve the child/children in question physically leaving the area in order to take up the relevant services.

The local authority’s case

[20] The local authority put their case as follows:

i) The county council has a duty assess the needs of a child who is physically present in their area and who is a child in need as defined by the Act.

ii) Having assessed the needs, the local authority has the power to provide services outside their area for a child they have assessed and who is physically present in their area, at the point of provision of the assessed services.

iii) They do not have the power to provide services for a child who has been assessed whilst physically present in their area, but who has voluntarily left the area, albeit temporarily. A distinction, they submit, must be drawn between children who leave solely in order to receive services and children who leave for some other unconnected reason.

[21] Mr Sharland on behalf of the appellant seeks to persuade the court that Stewart dealt not only with the duty to assess, but also with the provision of services consequent upon such an assessment. He submits that there is, therefore, no power to provide services to a child outside the local authority’s area and that such a conclusion is not inconsistent with his concession that, where a child is physically present in the county council’s area, the council can provide services outwith the area in circumstances where the child is sent out of the area in order to take up those services.

[22] Reading the judgment of Mr Beatson QC as a whole, it is clear that its focus was on the issue of assessment and not provision of services. The issue before the court was which of three authorities had a duty to assess and not which of the authorities, if any, had a duty to provide services, (or how such services should be provided). In my judgment Stewart does not provide the answer to the issue that was before Holman J and is now before this court.

[23] Mr Sharland further argues that on reading s 17 CA 1989, the phrase by providing a range and level of services appropriate to those children’s needs means “children within their area” so limiting the provision of services to children in their area. He cannot go further and argue that the words within their area should also be notionally inserted after the words “level of services” he having once made the concession that the local authority has the power to provide services out of their area for children who, at the point of provision of the services, are physically present in their area.

The Respondent and Equality and Human Rights Commission’s case

[24] Mr Luba QC on behalf of EHRC accepts that, taken alone, the words of the section do not make clear the extent of the power of a local authority to provide services. Mr Luba QC therefore submits that the modern approach to statutory interpretation requires the court to adopt a purposive interpretation in ascertaining Parliament’s intention where, as here, the wording of the statute itself does not provide an unequivocal answer.

[25] Mr Luba QC relied on a number of matters in support of his submission

i) The context of the section within the Act. Section 17 CA 1989 is the first section within Part III of the Children Act 1989 entitled “Local Authority’s Support for Children and Families, Provisions of Services for Children and their Families”. Mr Luba points also to the heading of s17 CA 1989 itself, “Provision of Services for Children in Need, their Family and Others”. Mr Luba submits that his interpretation is consistent with those headings.

ii) There is no express inhibitor within the terms of s 17 CA1989 or its progeny s20 CA 1989 as to where services can be provided, in other words there is no circumscription found within the wording of the section.

iii) The precise wording of s 17(1)(b) requires a local authority to “promote the upbringing of such children by their families”. The reference to families must, he submits, relate not only to static families but travelling families such as J’s.

iv) Where Parliament is seen to grant a power to provide services, it is ordinarily content to allow the authority in question, the discretion as to how that power is to be used without any form of inhibition.

[26] Mr Buttler made submissions largely to the same effect as those of Mr Luba.

Section 27 Children Act 1989

[27] Section 27 provides: Co-operation between authorities. (1) Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority specifying the action in question. (2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

[28] Mr Sharland on behalf of the local authority submits that “on the ground” local authorities rely on their duty to cooperate under s 27 of the Children Act 1989 as the route to ensuring that a child’s assessed needs are met when a particular child leaves its area of its own volition. A family, he suggests, can travel around the country taking their assessment with them and the local authority will call ahead with a request that services be provided to the family upon their arrival. There is Mr Sharland maintains, therefore, no gap in the provision of services consequent to the local authority having what has been referred to as an iron curtain around their geographical area which prevents services from ‘travelling’ with a child in need.

[29] Whilst I accept that local authorities cooperate with each other on a day to day basis, it would be wrong in my judgment for a local authority to rely on the s 27 CA 1989 duty to co-operate rather than its primary statutory duty and accompanying power under s 17 CA 1989. Further, in these days of severe financial stringency it is a considerable leap of faith on the part of this local authority to suggest that in circumstances where there is a power and not a duty to provide services, a “foreign” local authority, based only on another authority’s assessment of a child’s needs, will provide the funding and resources necessary to meet those needs in respect of a child who it is known will be in their area for only a matter of weeks or days. I note that this local authority’s preferred course at the meeting on 8 February 2013 in relation to J, was not that s 27 should be pressed into service, but that J should ‘travel’ with his allocated provision of respite nursery care.

Conclusion

[30] Section 17 CA 1989’s somewhat spurious clarity has already necessitated the assistance of both the Court of Appeal and the House of Lords in interpreting its proper construction. In my judgment the judge found himself in similar difficulty in relation to this issue; the wording is equivocal and does not, on its own, provide an answer to the question of whether a local authority has the power to provide services outside its area where a child in need has left the area voluntarily.

[31] I agree with the judge, Mr Luba and Mr Buttler that, that being so, the court must, in divining Parliament’s intention, look to a purposive interpretation, as Holman J put it : [54] (i) “Section 17 confers a broadly expressed, general duty (and power) which, when it relates to the provision of services, should be purposively construed”.

[32] The following points are of particular assistance when looking to a purposive construction:

i) The starting point for ascertaining the purpose of the section is clear: the “Provision of services for children in need, their families and others”.

ii) I accept also that the section has no express limitation as to where the services can be provided which accords with the fact that ordinarily, where Parliament has granted a local authority power to provide services, it is content to allow that authority discretion as to how that power is to be used without any form of inhibition.

iii) I agree with Holman J that whilst sections 17(5) and 27 CA 1989 do not directly impact upon the scope or construction of s 17(1) CA 1989, they”: “indicate that Parliament contemplated and intended that the reach of powers under section 17(1) does extend to the provision of services outside the area when the child himself is outside the area”. [54(v)].

iv) In putting forward their interpretation of s 17 CA 1989, the local authority have been compelled to make a somewhat artificial distinction as between children sent out of the area by the authority to take up services they are providing and those who have left the area “voluntarily”. Such a distinction does not seem to me to be sustainable; the local authority having accepted, as they do, that they have a power to provide services outside their area, it must follow that such provision is under an ‘umbrella’ power to “Provide services for children in need, their families and others”.

v) The question thereafter as to which children, and to what extent, those services are to be provided is a matter for the discretion of the assessing local authority. The exercise of that discretion derives from the same power and can accordingly be exercised as much to provide respite care for the severely disabled child of a travelling family with a long standing winter base in their area, as to the placement of a child in accommodation across into an adjoining local authority area.

vi) I accept the submission of Mr Luba that it is no answer to say that any difficulties for families such as the family of J are ameliorated through the use of s 27 CA 1989. Not only do I regard such an approach as unlikely to be routinely effective, (particularly in relation to a travelling family), but the primary duty is that found in s 17 CA 1989 and it should not be subrogated to the s 27 CA 1989 duty to co-operate.

[33] Mr Luba provided the court with a skeleton argument on behalf of the EHRC written from the perspective of its statutory and other responsibilities in relation to the application and promotion of equality and human rights legislation, which includes the protection of human rights of the Gypsy and Traveller minority communities in Great Britain.

[34] Each of the parties were in agreement, as was the court, that in the event that the court felt able to construe s17 CA 1989 without embarking on a consideration of the Human Rights/Equality arguments then there would be no need for the court specifically to deal with those issues. In my judgment a purposive construction of s 17 CA 1989 leads to only one result, namely that a local authority has the power to provide services for a child in need who they have assessed regardless of the circumstances which have led to that child being no longer physically present in the area of that local authority. In those circumstances, whilst thanking Mr Luba for the written argument he has produced, it is not necessary to give consideration to it in this judgment.

[35] The local authority asked the court to take into consideration the impact of such a construction upon hard pressed local authorities. In my judgment a proper interpretation of the section does not result in an intolerable burden on an authority and it is erroneous to picture a local authority left coping with providing for services long after families have moved away, or in relation to the feckless or irresponsible parent passing through their area. As already stated the council have the power and not a duty to provide assessed services and are therefore entitled to consider what services they will provide for a child in need having carried out the assessment. Legitimate considerations as suggested by the judge in his judgment will include the child’s connection with the area, how long they intend to be away, whether, as with this travelling family, they will be staying for short periods in many different locations and also whether they are likely ever to return.

[36] In all the circumstances therefore I endorse the judge’s finding that the power under section 17(1) is, as the claimant claims, “capable of being exercised outside the area of the local authority and at a time when the child himself is outside their area” [54]. Accordingly I dismiss the appeal.

Lord Justice Floyd:

[37] I agree with both judgments.

Master of the Rolls:

[38] I agree that this appeal should be dismissed essentially for the reasons given by King LJ.

[39] The narrow issue is whether a local authority’s power to provide services to children in need pursuant to section 17(1) of the Children Act 1989 is limited to the provision of services to children who are in the local authority’s area, or whether it extends to the provision of services to children who have, of their own volition, left to reside in the area of another local authority. It should be emphasised at the outset that the question is whether a local authority has the power to provide services in such circumstances, not whether it has a duty to do so.

[40] Mr Sharland submits that, if the child in question ceases to be within the local authority’s area, the power to provide services to that child ceases. He says that this is clear from the language of section 17(1) itself. This provides:

“It shall be the general duty of every local authority… (a) to safeguard and promote the welfare of children within their area who are in need; (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs”.

[41] Mr Sharland submits that the reference to “those children” in the last line is a reference back to the children referred to in section 17(1)(a), namely “children within their area who are in need”. But despite the weight he places on these words, Mr Sharland does not go so far as to say that a local authority is prohibited in all circumstances from providing services to children in need who are outside its area. He accepts that a local authority has the power to provide such services outside its area and that it cannot rely on its placement of a child outside its area to bring its power to provide such services to an end. He submits that the power to provide services ceases when the child, of his or her own accord (i.e. without the involvement of the local authority) leaves the local authority’s area and travels to another local authority’s area.

[42] I find it impossible to find a basis in section 17(1) for the distinction that Mr Sharland seeks to draw. On Mr Sharland’s argument, a child who is placed by local authority A in the area of local authority B, for example, in order to receive some specialist service, remains “within the area” of local authority A and can, therefore, be provided with services by local authority A. On the other hand, he says that if a child in need who is in receipt of services voluntarily moves with his family (even for a short period) from the area of local authority A to the area of local authority B, local authority A is unable to continue to provide the services, even if it considers that it is in the best interests of the child that it should do so. In my judgment, there is no warrant for drawing a distinction between children who move of their own accord and those who are required to move by a local authority. Such a distinction cannot be derived from the language of section 17(1).

[43] If Mr Sharland’s distinction cannot be justified, the question remains whether section 17(1) permits a local authority to provide services to a child in need who is residing in the area of a different local authority. Section 17(1) does not provide an explicit answer to this question. I agree with King LJ that the question must be answered by construing the statute purposively. I summarise my reasons for holding that the judge reached the right conclusion. They are essentially the same as those of King LJ and the judge.

[44] First, as I have already emphasised the issue is whether there is a power in local authority A to provide services to a child whilst residing in the area of local authority B. There is no duty on local authority A to provide services in such circumstances. No reason has been suggested as to why Parliament would have wished to curtail the powers of local authorities in the manner for which Mr Sharland contends. No useful purpose would be served in doing so. The court should be slow to impute to Parliament an intention to do something which serves no useful purpose.

[45] Secondly, there is every reason to suppose that Parliament would have intended to give local authorities the power to provide services to children in need even when they are residing in the area of a different authority. At para 35 of his judgment, Holman J gave examples of the type of practical difficulties that would arise if local authorities did not have this power. He said:

“On Mr Sharland's and the local authority's construction there is, in effect, an iron curtain around the boundary of the local authority with a one way services door. Services can of course be brought in from outside, so some specialist person can come in from outside the area of the local authority to provide a service to the child within the area. But, submits Mr Sharland, no service at all can be provided to the child while outside the area. Many examples were discussed during the hearing. Suppose, pursuant to section 17, a care worker is funded and provided to attend daily at a disabled child's home to help him get up, wash or bath, and dress. Continuity, regularity and familiarity might be very important to the child. Then suppose that, for good reason, the child's parents had to spend a short period of time just over the county boundary, perhaps caring for a sick relative, and took the child with them. At once, on Mr Sharland's argument, the provision of the care worker would have (if only temporarily) to cease, even if the distance between the two dwellings was short, and the temporary one no less convenient to the care worker. It is an iron curtain (not Mr Sharland's metaphor, but mine, based on his argument) and the moment the child is out of county, however near by and however temporarily, the service cannot be provided. This is no doubt an extreme, although by no means a fanciful, example.”

[46] Parliament is unlikely to have intended to enact a provision which would give rise to such difficulties.

[47] Thirdly, the purpose of section 17 is to promote the welfare and best interests of children in need. Unless the language of the section compels a different interpretation, the court should construe it in a way which advances these aims. The interpretation adopted by the judge has this effect. It means that local authority A has the power to provide services for a child in need even where the child is resident in the area of local authority B. It is to be expected that it will only exercise that power if it considers that it is in the best interests of the child to do so. The interpretation for which Mr Sharland contends means that local authority A cannot provide services for a child who is resident in the area of local authority B even if it considers that it is in the best interests of the child to do so. There is nothing in the language of section 17(1) which, either expressly or by necessary implication, compels an interpretation which has this effect. This is a powerful reason for adopting the interpretation which found favour with the judge.

[48] For these reasons, which do not in substance differ from those of King LJ and Holman J, I would dismiss this appeal.
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