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14 JUN 2013

Samantha Bangham’s Week in Cases 14 June 2013

Samantha Bangham - Family Law Reporter Well, it has been quite a momentous week for family lawyers in both divorce and childcare fields with the Supreme Court decisions being handed down in both Petrodel v Prest and Re B. It was another opportunity to watch our Supreme Court Justices in all their splendour via the Supreme Court live coverage which as you all know, I do enjoy! Lord Wilson does have the most magnificent hair doesn’t he? I also, really, rather liked Lord Sumption’s tie.

Anyway … The first judgment to be handed down in the Supreme Court this week was Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR forthcoming, which concerned a mother’s appeal of a final care order in relation to her 3-year-old child. The case was one that all of the justices felt warranted their individual contributions to the judgment and each takes us through the law in this field in detail although largely resulting in the same conclusion. Baroness Hale of Richmond offers a dissenting judgment although only on the issue of whether a care order was proportionate in the circumstances. All of the justices were in agreement that the threshold had been crossed but while Lords Wilson, Kerr, Clarke and Neuberger found that the judge’s decision to grant a final care order was one that could not be interfered with, Baroness Hale of Richmond found that it could not be said that ‘nothing else would do’ when nothing else had been tried owing to the child being in foster care throughout her life. Another area of disagreement related to the appellate court’s approach to the issue of proportionality. Lords Wilson, Neuberger and Clarke found that the appellate court was under no duty to address issues arising under the Convention in these circumstances with any intensity. While there was a duty for appellate courts to discharge their duties in compliance with Art 8 of the Convention, domestic law ran broadly parallel with the demands of Art 8 and there would be no need for a further review by the appellate court itself. Baroness Hale’s judgment is, as ever, a joy to read. I often find that as cases progress up the court system, the issues become reduced to the purely legal, and the reality of the family involved can be lost. Baroness Hale reminds us of the extent of the abusive background suffered by the mother and she sensitively deals with the issues of parental mental health issues as well as the wider social need to avoid removing a child from parents, simply because an adoptive parent could offer better parenting.

Most family lawyers were pleasantly surprised with the Petrodel v Prest [2013] UKSC 34, [2013] 2 FLR forthcoming, result which afforded a just compromise between providing for the needs of the wife while respecting the bounds of company law and preventing the trumping of family law principles by applying that good old faithful trusts law. The Supreme Court unanimously held that the company appellants should transfer to the wife the seven disputed properties in satisfaction of the wife’s financial remedy claim. The full judgment provides an interesting read particularly in relation to the extremely limited circumstances, which were not present on these facts, where the court would be justified in piercing the corporate veil. The court rejected the view that a broader approach should be applied in matrimonial proceedings by virtue of s 24 of the Matrimonial Causes Act 1973 on the basis that there was no foundation for saying that the section authorised the transfer by one party to the marriage to the other of property which was not his to transfer. The only course by which the properties could be transferred to the wife was by the court inferring that the properties were owned by the companies for the benefit of the husband under a resulting trust.

I have also received a landmark judgment from the President on the issue of experts, Re H-L, [2013] EWCA Civ 655, which owing to the Supreme Court’s offerings this week I have been unable to explore further but that is something for you all to look forward to next week!

For a more in-depth analysis of this week’s cases please click here.

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.

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