MONCRIEFF v JAMIESON

Vehicular access through the granting of a servitude (or easement), is something that when not considered at the date of grant, can also fail to appreciate the need to park within the allotted space over the course of time.

In this matter, the presence of land-locking and the limitations of geography, presented the respondents with no real means to enjoy their occupation as freeholders, when the parking of their car(s) was to be restricted to a public road, literally hundreds of metres away from the family home.

Situated in the village of Sandsound in the Shetland Islands, the cause of action rested upon the estranged living arrangements between three parties.

The respondents were owners of a property first purchased from one of the appellants in 1973; and which, was built on a coastal plot allowing access via a stone stepped path across the vendor’s land, or equally by boat.

Due to the formation of the land, it was impossible to park cars on the land owned by the respondents, while the appellants were the vendor (third appellant) and his son and wife (first and second appellants), who owned a neighbouring property situated in the same of land as the respondents.

At the time of conveyance, the deed included a clause granting “a right of access from the branch public road through Sandsound”.

This public route terminated short of a gate set at the top of the steps; and during the preceding ten to fifteen years, the respondents used the land around the gate for parking, unloading and reloading and to provide subcontractors with parking space while undertaking work on their house.

This regular use of land was never objected to by the vendor; and so, continued without interruption, until such time that the second appellant and the respondent constructed a new section of road that allowed the respondents dual parking and turning space.

Having both enjoyed the space provided, it was later decided by the second appellant that he would extend his garden and use the parking area to accomplish it, which resulted in the respondents being forced to park on the vendor’s land some distance away.

When put before the courts, it was argued that the terms of the servitude implied that a right to park formed part of the covenant, and so denying them such rights was a breach of the obligation carried within the terms of the disposition.

After considering volumes of testimony and associated evidence, the court employed the services of the local sheriff who, after a laboured inspection, decided by interlocutory judgment that the respondents were entitled to exercise their right to park, and that any interference by the three appellants would result in legal action by the court.

Upon appeal, the Court found disagreement with the mechanics of the injunctive measure, and amended the declaration to provide a legal right to park within the area determined by the servitude, so as to allow freedom to enjoy the rights contained within it.

When presented before the House of Lords, the principles of easements and rights to park were carefully balanced when assessing both the needs of the dominant tenement and the servient tenement.

While use of the land permits freedom to pursue access, it must also continue to the serve the needs of the servient tenement, when equally enjoying use of the remaining land.

This formed the premise of debate; and so, it was decided that implication can be relied upon when embracing the entirety of the servitude, insofar as enjoyment of the grant must be provided for in full in order to defeat anything that runs counter to its effect.

This translated that the right to park in the area previously used, remained free of obstruction and the appeal was uniformly dismissed, while the House reminded the parties that:

“Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude.”

MARCOU v DA SILVAESA

Due to similarity of circumstance and the nature of the positions argued, this appeal hearing involved two separate, but inextricably linked, claims for tenancy under the pretence of sham agreements.

While both sharing the same fundamental contracts, there were deviations both within and without the documents, that deserved enquiry, if at least to clarify the terms of occupancy. 

Markou v Da Silvaesa

Having entered into an agreement displaying the hallmarks of a licenced residency, it was argued that after being requested to leave the premises following a change in property ownership, the two parties in occupancy were legally entitled to remain so under the assumption of a tenancy.

This was largely reliant upon the poorly worded contract, insomuch as clauses 1 and 2 were at no point enforced, and where the latter clause defied logic and reason when providing for a practical living arrangement.

Clause 1 required that each day, the appellants were expected to vacate the premises between 10.30am and noon for the duration of the contract, while clause 2 reserved a right for the landlord to remove and/or substitute items of furniture as deemed necessary.

What became of concern, was that the contract also required that the claimants not only vacated the property, but took their personal possessions too; a stipulation that by all accounts, was impossible to execute.

Likewise, the right to remove furniture rendered the appellants powerless to prevent beds or other essential items, from being taken away should the respondent see fit to do so.

Upon the respondent’s application for possession under Order 113 of the Rules of the Supreme Court (RSC), the appellants challenged its validity, on grounds that the agreement signed was nothing less than a sham, and that when applying the principles of Street v Mountford there could be no right to remove them.

In the first hearing, the judge ruled that despite vagaries in the terms of the contract, there was insufficient evidence to suggest sham intentions, particularly when the majority of the terms were clear and concise as to the engaging parties occupancy as licensees; and when later asked for the matter to be dealt with in the County Courts for the purposes of trial rather than summary judgment, the option was also dismissed.

When presented to the Court of Appeal, any contention that the agreement constituted a sham was, despite clearer presentation of the facts, further dismissed on grounds that echoed the previous judge.

However, the complications arising from the oddly drafted clauses raised significant issue around the right to allow possession when so much certainty lingered as to the exactness of the relationship shared between landlord and licensees.

This concern sustained the appeal in favour of new proceedings under trial, before any conclusive findings could be reached.

Crancour Ltd v Merola

Operating under identical contracts, the appellants relied upon oral agreements between themselves and the resident housekeeper, when challenging the presumption of licensee over what they believed to be exclusive possession leading to tenancy.

Prior to the change in ownership, the appellants had engaged in conversation with the domestic help, whereupon the offer to clean the room in accordance with the contract was turned down in favour of privacy while in occupancy.

Alternately, the appellants left their bed linen and waste outside the door in order to benefit from the services provided by the landlord.

It was for this reason, that the claim for tenancy was argued, along with the issues raised in the first case.

As was agreed above, the lack of certainty for clauses 1 and 2, coupled with a need for witness testimony with regard to the orally agreed terms, meant that just as before, the issue of possession orders could not be sustained without renewed appreciation of the full facts.

And so, the appeal was upheld in conjunction with the directions cited, while the court reminded the parties that:

“[P]ossession of rooms for occupation as ordinary residential accommodation must, from its nature, be intended by both parties to be exclusive except where, as stated, the landlord requires unrestricted access for the provision of services or attendance.”

COPELAND v GREENHALF

The definition of an easement is one that runs with and benefits the land, when recognised under common law; and so, in this instance, the proclamation of easement by prescription, belied what may be equally construed as adverse possession, while defying the traditional purpose of rights of way over adjoining land.

When an estate comprising fields and a private orchard was sold to a new owner, a neighbouring property owner found themselves subject to complaint and mandatory injunction, when their use of a strip of the newly acquired land amounted to little more than exclusive possession under the pretence of an easement

The defendant in this matter occupied and operated, a wheelwright business that had enjoyed the benefit of storing carriages, and now, commercial and agricultural vehicles awaiting repair on the strip in question.

While the manner in which these items were left allowed for entrance and exit to the owner’s house, there had on occasion, been disruption to the use of the strip beyond that which was held as reasonable.

Having then taken the defendant to court in order for the vehicles to be removed, the argument was put before the judge that prior to the recent purchase, an agreement had been made between the former owners and the defendant, thus allowing him and his father to store carriages and spare parts until such time that they could be serviced and returned to their customers.

This arrangement dated back half a century, and so when the home had been leased to tenants, no complaints had been made regards the defendants use of the land.

This amounted to a claim that the existence of an easement was valid under the Prescription Act 1832.

While easements can be enforced by prescription, the court was indifferent to the manner in which the defendants had used the land, inasmuch as far from using the strip as a means of access, they had simply left a number of objects in situ, with the luxury of knowing they may, or may not, be used and removed.

Furthermore, the defendant’s land was adjacent to the strip and so did not touch the property in question, therefore it fell outside the scope of easement rights, and thus failed to determine the arrangement as one comprising a right of way.

With the defendant relying upon the far-reaching Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd to distinguish the claim, it was agreed that while no immediate objections had been raised by the previous owners, occupying tenants or new owners, it was not possible to consider the manner in which the land was used required possession; therefore, no claim for the former could be upheld, while the court reminded the parties that:

“[A]n easement can be lawfully acquired only if it is capable of judicial definition, restriction and control.”

BROWNE v FLOWER

Acrylic on Panel-24″ x 24″

Derogation from grant by way of illegal easement, and the right to peaceful enjoyment of property, make for a brief and yet divisive matter, when two leaseholders seek to enforce their own entitlements in the courts.

Having recently acquired tenancy in a shared building, the respondent took steps to reduce her portion of the property, in exchange for subletting to an additional tenant.

In order for this to work, it was proposed by the leaseholder to the landlord, that an iron external staircase would allow for access when the using the room created.

The landlord raised no objections, and so the work went ahead as planned.

Having rented the ground floor of the same building, the claimant’s privacy was impinged upon, as the staircase was erected between two of her bedroom windows.

This translated that the sub-tenant using the stairs was now afforded a clear view into those rooms.

Under the terms of the lease, the landlord was under obligation not to derogate from the arrangement, which included an agreement that no tenant would suffer, or cause to suffer, another tenant any nuisance or reduction of the view to the outside gardens while in occupancy.

As was clear from the location and purpose of the staircase, the claimant was now placed into a position where she either installed blinds or curtains to restrict the view, or argued that the imposition and loss of light resulting from them had constituted a breach of agreement on the part of the landlord.

Upon litigation, the court heard about, and fully appreciated, the invasive nature of the staircase, but when relying upon similar case precedent, there was insufficient evidence to suggest that the invasion of privacy amounted to total loss of the views provided for by the outside gardens, or any enjoyment of natural light.

It was held instead, that the change in circumstances proved mere inconvenience at particular times of the day and little more.

It was also held that while the terms of the lease prevented any use of the property beyond that of private tenants, the staircase had been built upon adjoining land, and not that used and paid for by the tenants, therefore it fell beyond the scope of claim.

In closing, the judge awarded in favour of the respondents, before noting that the landlord had only consented with the erection of the staircase on the respondent’s assurances that the claimant had raised no objections; therefore, there had been misrepresentation as to any disagreement prior to their installation, and so no order for her costs were made, while the court reminded the parties that:

“[I]f the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.”

BARRETT v BARRETT

Resting upon the equitable maxim ‘he who comes to equity must come with clean hands’, the clandestine collusion between two brothers falls foul, when the agreement dissolves in favour of the abetting sibling. 

After lapsing into bankruptcy, a business owner tries to circumvent the dissolution process in an attempt to save his home from repossession.

In order to achieve this, he asks that his brother purchase the property from the bankruptcy trustees, before holding the house on trust until such time that the now appellant is able to regain legal title.

While agreeing to this proposition, the respondent approaches the trustee, before securing the property through cash downpayment and mortgage redemption, prior to allowing the appellant to regain occupancy.

A second agreement followed that enabled the appellant to make contributions to the mortgage repayments, as well as investing money into the maintenance of the home; again under the pretence that the respondent held the property on trust and nothing more.

Fifteen years after the repurchase, the respondent sold the property for significant profit, placing roughly half the proceeds in trust with his sister, who then refused to pay the money back, on grounds that the respondent had breached his agreement and duty as a trustee to his brother.

At this point, the appellant issued proceedings for its recovery, before the sister part-paid the appellant and placed the remainder in the hands of the court.

This resulted in the appellant issuing proceedings for the balance held, while the respondent counter claimed to defend his position . 

Relying upon the argument of numerous trusts (express, constructive, common intention and resulting) with which to recover the sale proceeds, it was argued that by selling the home, the respondent had unlawfully profited from his position as a trustee; and that as such, the money was now owed to the appellant and enforceable through equity.

This claim was struck out in the first instance, on grounds that equity will not allow a trust created through illegality to stand, and therefore no remedy in law could exist when the appellant had requested that the respondent purchase the home in order to avoid duties brought about under section 333(2) of the Insolvency Act 1986.

When heard in the Court of Appeal, the facts were revisited with little to no effect for the appellant, despite continued multiple arguments from his representative.

While the appellant accepted that the original agreement served two aims (retention of the home and avoidance of creditor payments), the Court would not ignore the reality that the same person seeking equitable remedy, was behind the illegal concept and undertaking of, a property purchase designed to undermine and breach the legal duty owed when winding down a business.

It was then, for that very simple and yet unmistakeable reason, that the judge upheld the previous findings and flatly dismissed the appeal, while reminding the parties that:

“[E]quitable proprietary rights are to be treated in essentially the same way as legal proprietary rights and will be enforced provided that the claimant does not plead or lead evidence of the illegality.”

ASLAN v MURPHY

In order to enjoy the protective nature of exclusive possession from the powers of the Rent Act 1977, it must first be established what type of contractual arrangement has been agreed.

In this instance, the Court of Appeal decided upon two cases where landlords seeking possession were subject to examination.

Aslan v Murphy (No 1 and No 2)

Having entered into a living arrangement with the landlord of a hotel, the appellant was granted use of a basement room, while deprived of many freedoms in lieu of strict usage controls.

The extent of those restrictions included a ninety-minute window, where the appellant was denied access to the room, as well as having to surrender the room keys to the respondent when leaving the room.

It was thus argued that the contract was between a licensor and licensee, as opposed to that of landlord and tenant.

This alteration of rights prevented the appellant from retention of occupancy under the Rent Act 1977; and so, having sought repossession of the room, the matter went to court, whereupon the necessary order was granted prior to an appeal, where the Court found that tenancy rights did exist.

Around the same time, the local authority served a closing order against the respondent upon grounds that the room was unfit for human occupancy and therefore unable to stand as chargeable for rents, as per section 266 of the Housing Act 1985.

This led to a second possession order in favour of the respondent; however, in order to secure alternative accommodation through the local authority, the appellant requested that the courts declared the actual nature of the contract as no notice to quit had been served, and that the appellant was now protected through exclusive possession until such time as notice was given.

Relying upon section 276 of the 1985 Act, the respondent countered that the power of the closing order negated any right to exclusive possession, while under section 277 of the same Act, it was further contended that any continued occupancy by the appellant constituted a criminal offence, subject to occupancy penalties. 

Put before the Court of Appeal, it was held that until clarification of the contract could be ascertained, there could be no effect to the possession order, despite the powers claimed under the Housing Act 1985; and that until such time, neither party could pursue their own ends.

Duke v Wynne

In this case, the relationship was that between a homeowner and a family in need of accommodation, while the contract entered into was one where the respondent reserved the right to terminate the arrangement on or around a two-year period.

Due to the generous size of the property, there was also express denial of exclusive possession within the terms of the contract, due to a provision for additional parties to share the home at the privilege of the respondent.

During the two years in which they remained in occupancy, the appellants used the whole of the house; and at no point, did any new occupiers enter the property, despite such prohibition.

At the point in which the respondent sought possession following her decision to emigrate, it was contested by the appellants that with no alternate means of accommodation, and having had free reign of the house, they were now entitled to remain in occupancy with exclusive possession under the terms of the Rent Act 1977.

Having considered the wording of the contract and the manner in which the appellants had been allowed to reside, it was held by the Court that without any evidence of shared occupancy, the appellants had by virtue of their liberties, enjoyed exclusive possession of the home for the duration of the time passed; and that vacant possession was not legally enforceable, failing any notice to quit, while reminding the parties that:

“[T]here are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain.”

AG SECURITIES v VAUGHAN

As discussed in Aslan v Murphy, the protection of exclusive possession under the Rent Act 1977 is under scrutiny when another two cases are subject to judicial wisdom.

In the first instance, the collective arguments of four individuals rally against the wishes of a landlord looking to remove them in favour of longer-term arrangements; while in the second case, the needs of two cohabiting parties are contested before a landlord seeking their departures for similar reasons.

AG Securities v Vaughan

Situated near the very popular West End of London, the building in question was a four-bedroom flat that had been apportioned to accommodate four individual residents at any one time.

The nature of the arrangements were unique to each party, so subsequently there were four separate contracts precluding the right to exclusive possession on grounds that each licence was for a six-month period, before commencing as a rolling one-month contract, prior to predetermined notices to quit from either landlord or licensee.

Over a period of around three years, the appellants had by grant of the respondent, enjoyed intrusion free use of the flat, and were eventually left to determine (through interviews and group discussion) who would replace those vacating their rooms during the passage of time.

Each party also paid differing amounts of rent, and had acquiesced to the terms of their agreements when becoming part of the group in occupation.

When the time came for the landlord to reassess how he wished to lease the flat, it was decided that long-term sub-leases were preferred; at which point, notice to quit was served upon the four remaining occupiers.

This prompted the local authority to establish through the rent officer, whether the appellants were in fact considered tenants under section 68 of the Rent Act 1977, and not licensees (as suggested by the respondent and indicated in the terms of their individual contracts), and thus how best to determine a fair market rent.

The landlord contested the application, and sought to apply an injunction against the local authority, while seeking payment of rent arrears by the appellants, while on this occasion, the judge found in favour of the respondent, and declared the appellants licensees.

Upon appeal, three of the appellants were successful in reversing the previous decision by the court, thereby granting the appellants powers of joint tenancy, whereupon the respondent appealed. 

With a verdict of two to one for the now appellants, the principles of exclusive possession and joint tenancy were examined, within which the rights determined in Street v Mountford require exclusive possession in lieu of payable rents for a determinable period.

On this occasion, although the contract contradicted the nature of the living arrangements, the four appellants had enjoyed uninterrupted possession of the flat, and were subject to finite durations of contract prior to the respondent’s remuneration for  privilege of occupancy.

With regard to joint tenancy and the principles of unity of possession, interest, title and time, it was held that at one point the four appellants were equal in their period of residency, and while each resident held separate contracts, their duration was of the same length; therefore, unity of term applied, despite disparate cessation of each agreement.

While title must be held under the same Act, there was by implication, a single agreement that bound each resident to the same conditions; and although the contractual periods overlapped, each was determinable in duration, and therefore valid in terms of ascertainment.

This somewhat overreaching of the principles of tenancy, amounted to judgment in favour of the appellants and award of costs.

Appealed again in the House of Lords, it was quickly concluded that to allow a joint tenancy to exist would be an affront to the four unities, when no one person was granted exclusive interest in the property; but instead, were merely sharing a right to occupancy under licence; and that when compelled to enforce their legal rights, the technicalities of the contracts denied them tenancy powers, regardless of how hard they tried to collaborate. 

Antoniades v Villiers

In this matter, an experienced property manager took the steps to observe the legal principles held in Somma v Hazelhurst; where it was held that two parties sharing the same room while under separate contracts can enjoy the rights of exclusive possession, and thus those of the Rent Act 1977, despite signing licence agreements.

It was after openly discussing the respondent’s preference to licence agreements, that the appellants willingly co-signed separate, yet identical agreements on the same day, before commencing their occupancy as contracted.

Part of the agreement stipulated that at the luxury of the respondent, there was a possibility that additional residents may be added to the house; and that until such time, the appellants were to cohabit as husband and wife (even though they were just boyfriend and girlfriend).

Little over a year later, the respondent issued them with a month’s notice to vacate the property, following disputes over non-payment of rent.

It was then that the appellants asserted themselves as tenants and not licensees; after which, the rent officer upheld their claim and registered a lower rent than had been previously agreed.

Having taken them to court, it was found by the judge that while the terms of the agreement were reflective of the outcome of Somma, the recent decision taken by the House of Lords in Street had in essence, reversed that position back in favour of the appellants, when Templeman LJ said:

“Although the Rent Acts must not be allowed to alter or influence the construction of an agreement, the court should, in my opinion, be astute to detect and frustrate sham devices and artificial transactions whose only object is to disguise the grant of a tenancy and to evade the Rent Acts.”

Street v Mountford

This translated that those once considered licensees under similar circumstances to the one created by the respondent’s draft, were now deemed tenants under protection of the Rent Act 1977; and so, by following verbatim the minds of the judges, the court found in favour of the appellants, and dismissed the possession order.

In the Court of Appeal, the two judges agreed that great lengths had been taken by the respondent to act inside the legalities of occupancy rights, and that the transparent nature of the relationship both before and after the signing of the agreements, dictated how no efforts were made to conceal the limitation of rights ascribed the two parties.

For this reason, the appeal was upheld and possession procedures left to recommence.

Further appealed and evaluated in the House of Lords, the meaning of the agreements (while appearing legitimate) were now held to be nothing short of manipulative and misleading.

It was also agreed that by the two appellants signing mirroring contracts and paying the same amounts each calendar month, they had by extension, been afforded the same rights and freedoms provided for tenants under the very Act the respondent had looked to avoid.

It was also agreed that aside from clause 16, which allowed the respondent to reside himself, or introduce another occupier, there was nothing to suggest that a joint tenancy based upon interdependence did not exist; hence, the House allowed the appeal while reminding the parties that:

“Since parties to an agreement cannot contract out of the Rent Acts, a document which expresses the intention, genuine or bogus, of both parties or of one party to create a licence will nevertheless create a tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of a tenancy.”

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.”

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