RE M (PARENTAL RESPONSIBILITIES ORDER)

Becoming a father and appreciating the weight of parental responsibility are two distinctly separate issues, and the courts are slow to grant such rights to unmarried fathers when the nature of their relationship to the child(ren) proves routinely disruptive and damaging to the sanctity of ‘family’, whether intact or fractured.

On this occasion, the appellant was father to a son aged eleven, who at the time of his birth, was declared fatherless on grounds that while the appellant’s name was visible on the birth certificate, it was at a time before legislative changes granted parental rights to unmarried or estranged fathers under section 111 of the Adoption and Children Act 2002.

When the parents separated after seven years together, the appellant applied for a contact order, despite protestations that he had exhausted himself as a parent, and that he no longer wished to stay in his son’s life.

This was followed by his unexpected removal of their son from school, before disappearing for a number of days without any communication to both the mother, or the local police.

After returning with his son, the appellant further refused welfare visits, before releasing him back into his school unharmed.

In response, the respondent mother applied for a residence order, while declaring that the appellant should be subjected to no contact, and a prohibited steps order.

During the hearing, the father agreed to supervised contact, and things remained that way for the next two years, until the appellant applied for both parental responsibility and for direct contact with their son.

During this hearing, the appellant requested to remove his application, before departing the court unexpectedly; at which point, the judge awarded residency to the respondent, before issuing a two-year disposal order under section 91(14) of the Children Act 1989, thereby preventing any further orders of that kind from the appellant.

Despite total opposition from the respondent and their son, the appellant argued before the Court of Appeal that on a number of points, the judge had either overlooked or under appreciated, the status rights afforded him; and that his commitment to his relationship with his son was beyond reproach.

Contrastingly, the attending doctor’s report told quite a different story, when outlining that:

“It appears that when faced with rejection [father] will engage in varying behaviours, including cajoling, begging and threatening in order to manipulate others into meeting his needs and that when others do not meet his expectations he may become increasingly controlling, including expressing anger to manipulate them, transgressing boundaries in an effort to resume control of situations … the prognosis for significant behaviour change is poor due to excessive denial … it is possible that [father] will attempt to use his relationship with his son in an attempt to manipulate or denigrate [mother].”

This evidence ran counter to the nature of the appellants’ appeal, and while fully appreciative of the arguments adopted, careful examination of the previous judgment revealed that far from neglecting to consider the needs of the appellant, the court had been explicit in its reasoning.

And, that when issuing the section 91(14) order, welfare, existing authority and proportion of risk had all been calculated, so as to justify both the dismissal of the claim for parental responsibility and the appeal itself, while the court reminded the parties that:

“[W]here a father has shown commitment to a child, has a good relationship with the child and has sound and genuine reasons for wanting parental responsibility, an order granting him that status will not usually be refused simply because, through hostility to the child’s mother or an excess of zeal, he may seek to exercise parental responsibility inappropriately.”

RE G (EDUCATION: RELIGIOUS UPBRINGING)

The needs of the child and the heritage of religious conformity are bound to reach an impasse when the parents share opposing views of life; and so it is, that a divorced couple were forced to litigate when their five children were at risk of emotional and intellectual harm.

Born into families following the ultra orthodox principle of Judaism, it was by arranged marriage that the appellant and respondent were mutually bound before starting a family.

Having raised five children aged between three and eleven, the marriage broke down, resulting in the father leaving home and returning to his religious community, while the mother immersed herself into a less demanding way of life, yet remaining faithful to the principles of her faith.

Under Chassidic (Hasidic) or Chareidi rules, a persons life is subject to strict controls covering their dietary intake, dress, education, speech, community responsibility, respect for elders, religious education and cultural heritage, as was embraced by the father, and in whose words it was made clear that:

“Strict Chareidi parents will not allow their children to mix with children who are using the internet or watching television for fear that their own children will become corrupted.”

Contrastingly, the mother had since abandoned herself of such restraints in favour of a more mainstream and unorthodox lifestyle, including obtainment of higher education and a prominent teaching position within an established school.

It was for those reasons, that the mother had made plans for the children to attend new schools, in order to gain greater access to both educational and professional advantages while growing up.

Having then applied for a shared residence order, the father had argued against the children being moved from their existing schools, on grounds that their change of lifestyle would cause long-term harm to both their wellbeing and standing within the Chareidi community and extended family.

Despite this, the court awarded residency in favour of the mother, while allowing extensive contact by the father; and so, tentatively granted leave to appeal, the father took issue with the fact that the judge had erred in not granting the requested shared residence order; and that he was wrong to have adopted the views of the mother.

As far back as the eighteenth century, men were assigned sole discretion as to how best their offspring were to be educated; and so, remained beyond the powers of the court to interfere.

However, in light of the decision taken in Ward v Laverty, the welfare of the child quickly became statutory principle, as found in section 1 of the Guardianship of Infants Act 1925, which reads:

“When a court determines any question with respect to … the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.”

Guardianship of Infants Act 1925

This was further supported by section 1(2) of the 1925 Act, which explains that:

“The court … shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, … is superior to that of the mother, or the claim of the mother is superior to that of the father.”

Guardianship of Infants Act 1925

Which allowed men and women the right to equal measure in the eyes of the law, particularly in matters such as these.

It was thus held by the Court of Appeal that while the welfare of the children was integral to the decision making process, it was equally important to remain focussed on the bigger picture, as noted by Lord Bingham MR in Re O (Contact: Imposition of Conditions), who explained that:

“The court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.”

Re O (Contact: Imposition of Conditions)

Given the limitations of the Chareidi education system (which offered little beyond GCSE standards) it was noted that while article 9(1) of the European Convention on Human Rights (Freedom of thought, conscience and religion) allowed for the general traditions of religious practice, article 9(2) stresses that:

“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

European Convention on Human Rights

And that when considering the long-term welfare needs of the children, it was vital to embrace the opportunities available to those living in a democracy, while addressing the innate need for progressive learning in a twenty-first century society.

With further appreciation of the fact that the children had (for over two years) forgone their previously strict upbringing in lieu of a more liberal existence, the Court dismissed the appeal, while reminding the parties that:

“Evaluating a child’s best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations.”

RE A (A CHILD)

Parental contact is key to the successful and balanced growth of every child, regardless of whether the family unit is compromised through divorce or separation; and so, when the Family Justice System is left wanting, important questions must be addressed as to how and why the institution appointed to preserve the sanctity of familial cohesion, failed to provide fair and reasoned justice to a man whose accountability was an example to estranged fathers everywhere.

Having been in a relationship for over a decade prior to the birth of their daughter, the appellant and respondent had never committed to marriage, only cohabiting for a brief period, both before and after becoming parents.

Less than two years later, they separated; after which, the father applied for a contact order.

In a matter spanning twelve years, the two parties fought for their individual rights, as their daughter became a teenager.

At the age of fourteen, matters had reached a point where the daughter expressly refused any further contact with her father; and so, the court was willing to concur through the issue of a disposal order under section 91(14) of the Children Act 1989, which would render the litigants unable to request further orders of any kind with regard to the needs and interests of their child.

Basing his appeal on the systemic failure of the family courts to preserve his rights under articles 6 (Right to a fair trial) and 8 (Right to respect for private and family life) of the European Convention on Human Rights (ECHR) (and that his daughters views were polluted through the calculated manipulation of her mother) the father requested that the Family Law Division make a full and proper reevaluation of the facts of his claim for contact/residence, and restore the outcome so as to allow his rightful enjoyment of a natural and healthy relationship with his daughter, despite her protestations.

To summarise, the matter had been heard by numerous divisional judges, while two CAFCASS (Children and Family Court Advisory and Support Service) guardians retired through ill-health, an appointed child, adolescent and family psychiatrist retired, the local authority withdrew from the case, the mother ceased to attend court and the replacement NYAS (National Youth Advocacy Service) worker had never met the mother, nor provided any evidence in court.

In addition to this, the mother herself was alcohol and drug dependant, while suffering from a paranoia and depression-inducing personality disorder coupled with Crohn’s disease; and who, on one occasion had been charged with possession of a knife and subjected to a community order, prompting an investigative report under section 37 of the Children Act 1989.

Contrastingly, throughout proceedings, the father had shown impeccable conduct, while being repeatedly subjected to unfounded accusations of abuse, irresponsibility, deviance and selfishness, despite making several allowances in favour of the mother and their child when others might easily have done otherwise.

Presented to the Supreme Court, it was with great sympathy that the facts of the appeal were given yet another examination, along with the willingness of the previous trial judge to waive enforcement of a large number of orders issued to the mother, and her continued breach of them.

Under r52(11)(3) of the Civil Procedure Rules (CPR), it is stated that the Appeal Court will allow an appeal where the decision of the lower court was either wrong, or unjust because of a serious procedural or other irregularity.

It was clear that on this occasion, denial of the appellant’s rights to spend time with his daughter, and the omission of the judge to enforce the court orders, were both violations of the natural course of justice and therefore subject to investigation.

With regard to the actions of the judge, it was held that the principles outlined by Munby J in Re L-W (Enforcement and Committal: Contact),were such that in order to avoid the risk of a case losing focus, there needed to be four points of approach adopted by the courts and presiding judges.

Namely:

(1) Judicial continuity

(2) Judicial case management including effective timetabling 

(3) A judicially set strategy for the case; and 

(4) Consistency of judicial approach

It was thus evident to the Court, that from the protracted and unstable manner in which the case had been heard, none of these virtues were visible; and that as all court orders are enforceable under section 11N of the Children Act 1989, there had been a gross departure from judicial obligation by the now retired judge. 

Looking again at the ECHR violations cited, it was held that there were obvious contradictions between the expressed wishes of the child, and her positive commentary of time spent with her father over the course of litigation; many of which, were traceable to the overt hostility shown by the mother toward the appellant, and the naturally arising sense of loyalty by the daughter (although none of these were given proper analysis prior to the judgment awarded).

This concluded that both articles 6 and 8 of the ECHR were breached, both in terms of fairness, and with regards to quality time shared between the appellant and his daughter.

Whereupon, the Court upheld the appeal, before ordering the expansive court transcripts to be sent to the President of the Family Division and Chairman of the Family Justice Board for urgent review, while the court also reminded the parties that:

“[O]rders for contact are orders of the court and, as such, consideration of the rule of law is directly engaged both when the court is considering making such an order and, crucially, when considering the consequences of any subsequent breach.”

MILLER v MILLER

While the principle of fairness is central to the conjoined appeals determined (see here also McFarlane v McFarlane), the two cases required differing approaches due to the duration of each marriage and the financial circumstances surrounding them.

Miller v Miller

In the first appeal, the arrangement of the marriage and financial footing of the two parties were unequal from the outset; and so, with consideration of the reasons cited for divorce, the presented facts displayed evidence of a self-entitlement that undoubtedly polluted the relationship and led to a generous settlement in favour of the weaker party.

When entering the relationship, the wife occupied a highly paid position that while enviable to most, paled in comparison to the recently acquired wealth of her new husband; who himself, was now a multi-millionaire and on his way to significantly increasing that sum through strategic investment in hedge funds management and a new business partnership. 

After less than three years, the couple separated and divorce proceedings began on the part of the husband, and while he filed under accusations of her unreasonable behaviour the wife cross-petitioned on grounds of adultery, given his disclosure of intent to re-marry; further noting how she never sought to end the marriage nor conducted herself in any way to suggest otherwise.

When bought before the judge, it was found that with consideration given for both his estimated current wealth of around £17.5m, and the potential resale value of his company shares which rested around £16m, his wife’s position showed debts above £200,000 were she to become be liable for her costs.

Through a division of matrimonial assets of both a property and lump sum award, the wife was legally entitled to a £5m settlement that enabled her to remain living in the home shared by both parties during their brief marriage, and provided enough capital to sustain the standard of living afforded her throughout the course of their relationship.

This decision was felt to represent the fairest terms on which to end their marriage, and one that was uniformly upheld under appeal to the House of Lords.

McFarlane v McFarlane

While bearing some similarities to Miller v Miller, the couple enjoyed over fifteen years of marriage and the joy of having three children of their own.

Of particular note, is that at the outset of their time together, the wife and mother of the children had a successful law career; and at that time, earned more than her husband, who was himself about to become partner of a well established accountancy firm.

It was later decided by them both that in order for the children to benefit from a grounded upbringing, the wife would surrender her position as a solicitor and become a full-time mother until they had grown into secondary school age; after which, she would return to paid work, or retrain for a new career.

At the point of their separation, the annual household income was over £1m; however, this was made up from the husband’s income, with average family living costs of around £150,000 per year.

When deciding how best to end matters, the court felt that in addition to the equal division of join assets worth £3m (made up of three properties), a joint lives order would best suffice, as the estimated annual living costs of the wife (and children) fell around £215,000 per year.

The husband countered that £160-180,000 per year would sustain a comfortable life for the family; at which point, the wife then claimed for £345,000 per year, whereupon the judge settled upon £310,000 per year, which was a figure deemed fair and reasonable.

The husband duly appealed, whereupon the Court of Appeal held that the amount determined was far in excess of the wife’s actual living expenses, and was such that would allow her to invest, and thereby accumulate, increased capital from his payments.

In light of this perceived inequality, the figure was readjusted down to £240,000 per year, whereupon the wife cross-appealed and the Court again upheld the award on grounds that in specific instances, periodic payment orders can be used as a means to enable recipient accumulation of monies, albeit with a determined liability period of only five years.

When submitted by the wife for final consideration at the House of Lords, it was wholly agreed that the original judgment must remain.

And so, while the essence of a ‘clean break’ was observed through the ability of each party to secure a tenable degree of financial freedom, it was done so under the assumption that at some point in the future, the joint lives arrangement would be mutually terminated through the reasoning of fairness, while the House reminded the parties that:

“The courts should have the discretion to provide for a longer period where, in exceptional circumstances and applying the overriding criterion of fairness, the judge finds that one party to the marriage whose contribution to the marriage has resulted in a reduction of his or her earning capacity ought to be compensated out of the other party’s future income because the capital needed to provide this is not available.”

MABON v MABON

The right for a minor to enjoy autonomous representation within family law proceedings, is enshrined under both the Care of Children Act 2004 and the Family Proceedings Rules 1991.

English common law functions within a patriarchal system; however, it is sometimes counter-productive to fetter the needs of the child, when their aptitude and resilience to parental influence permits them to speak for themselves.

In this matter, a couple had enjoyed a marriage bearing six children, until such time as they parted company. This produced an almost equal split between the children, with the father remaining with the three eldest boys aged thirteen, fifteen and seventeen.

After her departure, the mother applied for residence orders to enjoy spending time with her sons, whereupon the CAFCASS officer became the legal guardian of all six children prior to proceedings.

Following a lengthy and somewhat protracted hearing, the three boys approached their acting solicitor to remove the presence of the CAFCASS officer in lieu of direct representation.

This was requested under Rule 9.2A(4) of the Family Proceedings Rules 1991, which explains that:

“Where a minor has a next friend or guardian ad litem in proceedings and the minor wishes to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem, the minor may apply to the court for leave for that purpose and for the removal of the next friend or guardian ad litem …”

Family Proceedings Rules 1991

At which point, the court must evaluate the merits of such a request under Rule 9.2A(6), which reads:

“Where the court is considering whether to

(a) …

(b) grant leave under paragraph (4) and remove a next friend or guardian ad litem, it shall grant the leave sought and as the case may be remove the next friend or guardian ad litem if it considers that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem.”

Family Proceedings Rules 1991

On this occasion, the trial judge found himself unable to reconcile the boys’ request with his own consideration of both time constraints and the value of their own personal insight, before passing judgment.

In response, the boys’ countered by appeal to the Supreme Court that failure to allow for the removal of the appointed guardian, stood in direct conflict with article 12 of the United Nations Convention on the Rights of the Child 1989, and article 8 of the European Convention on Human Rights (ECHR) (Right to respect for private and family life).

Having also received a doctors report, the Court were reassured to learn that:

“What is clear is that all three boys are very able. They are quick in terms of being articulate and perceptive. Andrew is perhaps the more articulate of the three boys; being the middle of the three he tends to be the spokesman, whilst Craig is the more quiet and thoughtful of the three.”

Which on the facts, allowed for greater appreciation of Rule 9.2A(6) and confirmation that to prevent the independent and separate representation of the three boys, was counter to the purposes of the Family Proceedings Act 1991 and both Conventions.

This was a view supported by section 6(2)(a)(b) of the Care of Children Act 2004, which reads:

“6 Child’s views

(2) In proceedings to which subsection (1) applies,

(a) A child must be given reasonable opportunities to express views on matters affecting the child; and 

(b) Any views the child expresses (either directly or through a representative) must be taken into account.”

Hence, with full consideration of not only the statutory powers afforded children, but the advances in family law since 1991, the Court recognised the need to embrace the advocacy of children’s views within family cases.

And so, while section 42 of the Children Act 1989 affords guardians powers to investigate the views of minors within trial environments, it was held unnatural to override the tenacity and endurability of children for the sake of adult overprotection.

Whereupon, the appeal was upheld and the order of Rule 9.2A(4) of the Family Proceedings Act 1991 allowed, while the court reminded the parties that:

“[T]he right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”

JONES v KERNOTT

The inference or imputation of equitable and proprietary rights, are two very distinct approaches within the remit of court discretion, while this family law appeal case serves the merits of those distinctions well.

When an unmarried couple chose to purchase their first family home, it was executed under joint legal title.

While this itself is not an uncommon approach to home-buying, the eventual separation that followed, fractured the robustness of their intentions, and raised questions around the true feelings of the parties at the time the mortgage began.

During their time together and the period in which they started to raise children, the couple remained unmarried for reasons best known to themselves; however, after nearly nine years of shared occupancy (albeit with disproportionate financial contributions), the decision was made by the father to separate and leave the family.

When a failure to sell their property led him to purchase one of his own, his previously meagre financial contributions to the home and family were now funding his new purchase, while the mother and children remained in occupation, as she honoured the mortgage repayments without interruption.

Thirteen years after his departure, the respondent took steps to claim his share of the equitable interest held within the home previously shared; whereupon, his former partner initiated proceedings to prevent it.

Counter claiming under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, it was her opinion that she was now the sole beneficiary of their family home, and that should the respondent feel he held any beneficial interest in that property, she was subsequently entitled to an equal share percentage of his.

The issues facing the courts ultimately stemmed from a lack of communicated intention (written or otherwise) by either party when purchasing the family home, along with the Stack v Dowden precedent when deciding the true intentions of cohabiting couples that have decided to terminate their relationship before dividing the assets of the property.

In cases that meet the requirements of such an approach, the outcome is fairly predictable; however, on this occasion the home discussed did not fall under sole legal title; and so, the inclination to apply it was reserved.

In the first hearing, the judge concluded that the shares held were ninety percent for the mother and ten percent for the father, based upon his agreement to sell, and the numerous events that followed (including his leaving and full investment into a solely occupied property of his own).

When challenged, the Court of Appeal found in favour of the Stack assumption that regardless of financial difference, the intention to purchase under joint title provides that equal shares are afforded the signing parties.

When heard in the Supreme Court, the question was whether automatic imputation of equitable rights could reasonably stand, when the actions shown by the father indicated his lack of interest in a home he no longer shared and had ceased contributing towards.

After a close examination of the validity of inference, it was agreed that there were indeed sufficient grounds to approximate beneficial interest, despite appreciation of the history behind unmarried couples, and the nature of intention by virtue of individual action, while the court also reminded the parties that:

“As soon as it is clear that inferring an intention is not possible, the focus of the court’s attention should be squarely on what is fair.”

EVANS v AMICUS HEALTHCARE LTD

In vitro fertilisation (IVF), and the unilateral consent of the potential mother, is a circumstance that invokes both legislative and Convention rights for both parties, prior to the actual process of childbirth.

On this occasion, the needs of a single woman are driven to exhaustion, despite knowledge that her former partner has made his position clear.

Having both met in their twenties, the parties to this case were engaged to be married, while at the time, equally excited about the possibility of raising children.

Before conception could begin, the appellant was diagnosed with cancerous tumours to both her ovaries; at which point, her world quite literally turned upside down.

Following a medical consultation, the appellant learned that due to slow tumour growth, there was hope that IVF treatment might permit her the chance to carry a child to birth, and thus have the life she had hoped for. 

As part of the process, the two parties were asked to complete consent forms for the use and storage of sperm and embryos, as prescribed by the Human Fertilisation and Embryology Act 1990 (HFEA).

Upon completion of the harvesting and fertilisation process, six embryos were cryogenically frozen for use by the donors at a time two years from the treatment, and as advised by the clinic.

Roughly six months after their participation, the couple separated, and the man wrote to the clinic, expressly notifying them of his wish to withdraw from the arrangement, and to request that the embryos be destroyed.

Upon learning of this, the appellant issued proceedings against him by injunction on the stipulation that he could not withdraw from the agreement, that the embryos were to be kept frozen for ten years as per the terms of the agreement, and that the appellant was lawfully entitled to receive the embryos, despite his obvious disagreement.

By declaration of incompatibility with schedule 3 of the 1990 Act, it was further claimed that anything to the contrary was a violation of articles 2 (Right to life), 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), and that the embryos were afforded equal rights under articles 2 and 8 accordingly.

Schedule 3 of the HFEA 1990 Act was drafted to address all matters relating to consent and use of gametes or embryos, and while it was contended that paragraph 2(1)(a) provided that consent allowed for the treatment of two people acting ‘together’, it is also clearly provided for in section 4(1)(b) that no person shall:

 “[I]n the course of providing treatment services for any woman, use the sperm of any man unless the services are being provided for the woman and the man together or use the eggs of any other woman, except in pursuance of a licence.”

HFEA ACT 1990

This translated that the written withdrawal by the appellant’s former partner had vetoed the use of the embryos in the absence of his consent, and the family court adopted the same line of argument, before dismissing her claim.

Having been appealed before the Supreme Court, the implications of Convention rights and incompatibility were given greater consideration, along with commentary by the Secretary of State, as required under section 5(2) of the Human Rights Act 1998.

Adopting the position that the case revolved around the right to bring life into being as opposed to a right to life, the Court held that the appellant needed to recognise the complexities of the IVF process, and that careful scrutiny of the Warnock Report demonstrated that the rights of fathers had been exercised with due caution of the rights of potential mothers.

It was also held that while denial of the treatment to the appellant was a violation of article 8 of ECHR, the same principles equally applied were the Court to allow the appellant to proceed without the consent of her former partner.

Therefore, in circumstances of public policy, it was deemed justifiable to encroach upon certain Convention rights where the best interests of the people applied.

While accusations of discrimination levelled under article 14 ECHR were also valid, there were unavoidably distinct differences between natural conception and the rigours of IVF; therefore, a right to withdraw from consent was fundamental to the mechanics of such treatment, and thus did not prejudice the appellant on grounds of gender.

With regard to the rights of the embryos, it was determined under article 2 of ECHR (Everyone’s right to life shall be protected by law), that in accordance with section 37(1)(a) of the HFEA Act 1990, a twenty-four week old foetus was eligible to legal rights, but not before.

And so, any declaration that non-enforcement of rights was incompatible with the Convention could not be sustained; hence, the appeal was dismissed, with note to the need for greater clarification of individual rights during the IVF registration process, so as to avoid further painful outcomes for those involved, while the court reminded the parties that:

“[W]hile legislation modifying individuals’ private law liabilities can be expected not to infringe their Convention rights without clear justification, legislation directed to the implementation and management of social policy may well have to infringe some individuals’ Convention rights in the interests of consistency.”

PREST v PETRODEL RESOURCES LTD

Piercing the corporate veil’ and the lawful applicability of section 24(1)(a) of Part II of the Matrimonial Causes Act 1973 are uneasily paired to establish liability in this post-matrimonial conflict of property transition, while the extensive evaluation of this mis-applied doctrine in cases of reminiscent yet distinguishable natures gives rise to ponder its continued relevance.

Following the lengthy divorce of a shrewd businessman and his estranged wife, the order of the court to transfer title of a number of properties to the appellant was met with continued evasion and somewhat aggressive objection when the ex-husband consistently went to great lengths in order to frustrate proceedings, and through his refusal to permit the submission of evidence in order to expedite the legal obligation put before him.

First developed in Re Barcelona Traction Light and Power Co Ltd, the intended effect of ‘piercing the corporate veil’ was to stymie the deliberate and fraudulent actions of those parties holding controlling shares of limited companies for the sole purpose of self-interest and avoidance of legal duties, while section 24(1)(a) of the 1973 Act provides that:

“[A]n order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion…”

Matrimonial Causes Act 1973

However, on this occasion there were a number of other properties acquired by the respondent through his established companies, while the majority of the funds used were alleged to have been sourced individually. 

While it was accepted that the matrimonial home would be handed over, the time wasted by the respondent in clarifying his legal and beneficial entitlement to the remaining seven properties led the High Court of Justice to rely upon the above principle in order to establish precise liability and enforce the transfer on grounds that:

“[A]ll the assets held within the companies are effectively the husband’s property. He is able to procure their disposal as he may direct based again on his being the controller of the companies and the only beneficial owner.”

Thus, when challenged in the Court of Appeal, the appellant argued against the piercing of the corporate veil on grounds that the narrowness of the principle’s design prevented it from such arbitrary application, whereupon the Court upheld the appeal while holding that:

“[T]he only entity with the power to deal with assets held by it is the company.”

Whereupon, the case was finally presented before the UK Supreme Court, who took the time to examine previous judicial exercise of this rigid and yet shoe-horned legal moral before upholding the appeal on grounds that transfer of title could take effect through statute, while reminding the parties that:

“[T]he corporate veil may be pierced only to prevent the abuse of corporate legal personality.”

ALDER HEY CHILDREN’S FOUNDATION TRUST v EVANS

In a heart-rending case concerning the right to life and right to choice of venue with regard to palliative care, the parents of an almost two-year old boy become torn between the stark truth of their son’s condition, and the parental struggle to override the needs of the State, where the only voice missing is that of the child.

Born in spring of 2016, the respondents’ son Alfie James Evans was admitted to the Alder Hey Hospital in December of that year, after their son displayed a number of concerning behaviours that in turn led to various forms of treatment, albeit none of which showed any long-term success until he was later diagnosed with a mitochondrial disorder, producing a degenerative condition that itself was causing the functional erosion of his brain to the point of almost exhaustion, while also proving elusive as to the exact cause and identifiable epistemology.

As time progressed, their son eventually lapsed into a coma, and thus the decision was broached as to what possible steps were available to both the respondents and the hospital, regards how best to care for their son during the time remaining between the diagnosis, gradual and distressing deterioration, and his eventual passing.

The hospital had initially suggested that a long-term palliative plan might offer a prolonged lifespan, although the ultimate prognosis was that Alfie was now in a semi-vegetative state, and would remain so indefinitely.

However, the respondents were reluctant to accept the suggested prognosis, and so in December 2017 the applicant NHS Trust sought a judicial declaration in the High Court, to support their conclusion that there was little merit in continuing to keep Alfie under ventilatory support, whereupon the respondents moved to adjourn the hearing.

Having undertaken extensive research around the diagnosis, the respondents argued that previous symptoms were traceable to hydrocephalus; however, the brain tissue had continued to degenerate and whatever now remained was merely water and cerebral spinal fluid, as anticipated by the medical team and relevant expert testimonies.

In addition to this, the respondents had advised that Alfie be transferred to the Bambino Gesu hospital in Rome, Italy, where should no treatment prove conclusive, he would again be admitted to a third hospital in Much, Germany, albeit at significant risk to his already fragile health.

While the court extended tremendous sympathy to the plight faced by the respondents, it relied in this instance upon the expert opinion of a Professor Nikolaus Haas of the University Hospital, Ludwig-Maximilians university, Munich, who had previously remarked that:

“Based on the extensive testing already performed, I do agree with the medical teams involved that there are no useful tests that may be performed to improve Alfie’s condition. The genetic testing (i.e. whole genome sequencing) is performed by blood sampling and without any risks for Alfie. These tests may in certain cases be beneficial to delineate a new rare disease as pointed out by the doctors of the Bambino Gesu Hospital. To the best of my knowledge these tests have, even if a new disease is found, never been able to cure a patient with a similar disease pattern as Alfie shows.”

While in Aintree University Hospital NHS Trust v James, Baroness Hale had explained that:

“[T]he focus is on whether it is in the patient’s best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.”

Aintree University Hospital NHS Trust v James

And so, with full cognisance that Alfie had now lost all sense of vision, hearing, smell and touch response, the court was appointed the painful task of holding that the continued use of ventilation was now an exercise in futility, and that in the best interests of the child, the applicants were free to determine an end date for the treatment.

Relentlessly pursued in the Court of Appeal, Supreme Court and European Court of Human Rights, the previous judgment was consistently upheld, before being heard again in the High Court in order for a decision to be made as to exactly when the palliative care was to cease.

However, under new representation the respondents sought a writ of habeas corpus on grounds that Alfie was now being unlawfully detained in Alder Hay hospital against the wishes of the respondents, a contention that was given little credence; and upon which, the court relied upon the words of Lady Hale in the Supreme Court hearing, who stressed that:

“A child, unlike most adults, lacks the capacity to make decisions about future arrangements for themselves. Where there is a dispute, it is for the court to make a decision, as it would in respect of an adult without capacity. This is the gold standard by which most of these decisions are reached. It is an assessment of best interests that has been concluded to be perfectly clear.”

Which again concluded that the care plan now in effect was in every respect, in the best interests of their son, and that it was the express desire of the court that the respondents at least help support the medical team assigned his care.

Appealing against the decision under Rule 52.3(1)(a)(iii) of the Civil Procedure Rules, the respondents argued before the Court of Appeal that the High Court had merely continued in its support of the cessation of medical ventilation, instead of clarifying as to the lawfulness of Alfie’s alleged detention at Alder Hay hospital.

Upon which, the Court turned to Gard v United Kingdom, wherin McFarlane J had held that:

“It goes without saying that in many cases, all other things being equal, the views of the parents will be respected and are likely to be determinative. Very many cases involving children with these tragic conditions never come to court because a way forward is agreed as a result of mutual respect between the family members and the hospital, but it is well recognised that parents in the appalling position that these and other parents can find themselves may lose their objectivity and be willing to “try anything”, even if, when viewed objectively, their preferred option is not in a child’s best interests. As the authorities to which I have already made reference underline again and again, the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view.”

Gard v United Kingdom

Thus, the Court held again that:

“The application of a different legal label, namely habeas corpus, does not change the fact that the court has already determined the issues which the parents now seek, again, to advance. Their views, their rights do not take precedence and do not give them an “unfettered right” to make choices and exercise rights on behalf of Alfie.”

Before dismissing the appeal on grounds similar to those taken by the High Court.

After which, an application for the return of Alfie to Italy was presented to the High Court, based upon the granting of Italian citizenship by the Italian Ministry of Foreign Affairs to the Secretary of State for Foreign and Commonwealth Affairs, an act that was immediately refuted both on grounds of lineage and self-evident jurisdiction of the court, the latter of which was shown in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) in which Lord Wilson had explained how:

“A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).”

Re B (A Child) (Habitual Residence: Inherent Jurisdiction)

And that:

“Article 8 of Council Regulation (EC) No 2201/2003 (“Regulation B2R”) provides that the courts of an EU State shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised.”

Re B (A Child) (Habitual Residence: Inherent Jurisdiction)

However, the Court also noted that since the last hearing, Alfie had been successfully extubated from the ventilation unit, and was now breathing of his own accord, a change that moved the court to conclude that:

“[T]here arises an opportunity to explore creatively, ambitiously and even though it may be a forlorn hope, cooperatively, the options that may now emerge in a palliative care plan which could encompass, at least theoretically, Alfie being cared for, in his final hours or days, at home or in a hospice, or even on the ward and not in the PICU.”

Upon which, the application was dismissed, and the matter now left for the respondents and Alder Hay Hospital to hopefully negotiate as best as possible with the time remaining.