Legal News

In this issue: Practice and procedure Financial provision Private children Public children International children Lex Talk®Family: a Lexis®Nexis community Daily and weekly news alerts Updated content New Q& As New legislation Useful information Practice and procedure UKSC Deputy President gives speech on the law and AI On 30 November 2023, Lord Hodge, Deputy President of the Supreme Court, delivered an address at De Montfort University, Leicester, on the relationship between the law and artificial intelligence ( AI). He underlined the imperative to reshape legal rules to recognise and regulate emerging technologies, and pointed to the opportunities these innovations offer to strengthen both the legal and justice systems. See: LNB News 03/01/2024 44. Survivors of domestic abuse and their lived experiences with temporary ‘safe’ accommodation in England The Office for National Statistics has released qualitative research examining survivors’ experiences of accessing, living in, and moving on from temporary ‘safe’ accommodation in England. Mo J announces guide to accessing and...

Estate of Archibald and another v Stewart and another [2023] EWHC 2515 ( Ch) What are the practical implications of this case? A maintenance-centred claim under the I( PFD) A 1975—and likely a spouse’s claim too—is personal to the claimant and ends on their death. Exercise caution when advising elderly or seriously ill clients who may not survive to trial. A son- or daughter-in-law invoking I( PFD) A 1975, s 1(1)(d) as being treated as a child of the family must show more than ordinary affection, kindness, and hospitality from a parent-in-law. The court will examine whether the parent-in-law effectively took the claimant under their wing or accepted a distinctive parental responsibility towards them. There must be strong reasons to advance a claim long out of time. Dissatisfaction with discretionary trustees’ decisions is...

Z NHS Foundation Trust and another v Patricia and others [2023] EWCOP 41 (09 May 2023); In the matter of Patricia [2023] EWCOP 42 (15 May 2023) What are the practical implications of this case? Practitioners dealing with matters where protected parties have anorexia nervosa or other eating disorders will find these judgments helpful guidance when addressing capacity to make decisions about medical treatment. The determining factor for the judge was that, although the protected party stated a clear desire to live, the medical evidence and her behaviour during the proceedings showed that her intense fear of gaining weight—a feature of her disorder—was so powerful that it overrode her ability to take life‑preserving steps in accordance with medical advice. This is also an illustration of the unusual situation in which a protected party has capacity to conduct the litigation but lacks capacity to make the...

An NHS Trust v ST (by her litigation friend, the Official Solicitor) and others [2023] EWCOP 40 What are the practical implications of this case? It is crucial to stress that this ruling turned on its particular facts, and it should not be taken (as the Official Solicitor for ST plainly feared it might be) to amount to the crude rule: ‘if a patient accepts what the doctor says—capacity; if a patient does not—no capacity’. Rather, Mrs Justice Roberts’ remarks highlight the enduring significance of belief within the framework of the functional test set out in the Mental Capacity Act 2005 ( MCA 2005), a point of broader relevance; see further here for more on how the MCA 2005’s language sits with clinical and social work realities. Roberts J was plainly right to note that a formal diagnosis is not required before the court (or indeed...

Re P (a child) (fair hearing) [2023] EWCA Civ 215, [2023] All ER ( D) 11 ( Mar) What are the practical implications of this case? Practitioners should acquaint themselves with the principles articulated by Lord Justice Peter Jackson from para [42] onwards of this judgment, where the Court of Appeal set out how adjournment requests should be approached to ensure proceedings are ‘fair’. Those principles are liable to apply across proceedings under the Children Act 1989 ( Ch A 1989) and the Adoption and Children Act 2002. Where an adjournment is sought, para [46] confirms that fairness is the essential touchstone, and the weight to assign to any given proposition or other pertinent consideration is for the court’s judgement in the individual case. The propositions gathered at para [45] provide a non-exhaustive, yet very useful, suite of factors that a court may weigh when...

Re estate of Ramus (deceased); Ramus v Holt (as executor and beneficiary of the estate of Christopher Stewart Ramus) and others [2022] EWHC 2309 ( Ch) What are the practical implications of this case? As with many I( PFD) A 1975 claims, the facts are regrettable; yet a careful, lengthy judgment distils the core lessons and sharply reinforces the fundamentals. Issuing proceedings in haste is ill-advised; without cogent evidence, a claim cannot succeed. Contentious probate practitioners are reminded that every I( PFD) A 1975 application is fact-specific and must be assessed against its own circumstances ( Cowan v Foreman [2019] EWCA Civ 1336). Spousal claims also engage the special factors in s 3(2) of the I( PFD) A 1975. The Duxbury calculation should not be applied by rote; it is a helpful guide. The appropriate method is to start with Duxbury, attribute proper weight to the...

X London Borough Council v MR (by his litigation friend, the Official Solicitor) and others [2022] EWCOP 1 What are the practical implications of this case? While best interests determinations are always grounded in their specific facts, this decision will interest Court of Protection practitioners because it models a comparative best interests evaluation of end-of-life residence and care options. The judgment underscores that, in welfare proceedings, the court and the parties must look beyond mere preservation or extension of life and physical health, and give proper weight to a person’s quality of life. Here, the court accepted that relocating to a different care home carried ‘a high risk of adverse events including a higher risk of mortality’, especially in the initial months after any move. It also acknowledged that MR’s advanced dementia significantly curtailed his capacity to comprehend religious or cultural customs or...

Original report HM Treasury issues its response to the consultation on the 2015 public service pension scheme reforms, LNB News 04/02/2021 109 What was the background to the consultation? In April 2015, the principal public service pension arrangements were overhauled with the declared aim of making them fairer, more sustainable and affordable, reflecting the 2011 Hutton Report. Change was deemed necessary as expenditure on the legacy schemes had risen over time. The government viewed the new designs as more progressive, seeking to smooth pension value across pay levels. Consequently, some lower and middle earners saw improved outcomes under the reworked schemes. A further feature was protection for those within ten years of retirement, who were excluded, wholly or in part, from the new schemes and kept in their legacy arrangements (or treated in a manner ensuring they were no worse off than if they had stayed in...

The coronavirus pandemic sharpened awareness of personal freedom. For many adults, this was the first occasion they could not act as they wished or make independent choices. Yet a significant share of the population faces this reality every day, irrespective of the pandemic: people subject to a DOLS... A DOLS safeguards those who cannot consent to their care arrangements in a community or institutional setting when those arrangements deprive them of liberty. The most effective protection is achieved through regular assessments to confirm the measures are necessary and in the person’s best interests. Although, during the pandemic, curbs on freedom were considered to be in the general public’s best interests, the crucial distinction for people with DOLS is that they are under continuous supervision and control, are not free to leave their residence, and lack capacity to consent to these...

Newman v Southampton City Council and others [2021] EWCA Civ 437 What are the practical implications of this case? This ruling reinforces that, as the Supreme Court confirmed in PJS v News Group Newspapers Ltd [2016] AC 1081, appeal courts are slow to disturb a trial judge’s evaluation of the balance between the competing rights under Article 8 and Article 10 of the European Convention on Human Rights, provided the judge has conducted the exercise correctly. The dispute centred on how the principle of open justice operates where privacy and freedom of expression are finely balanced. It offers a practical illustration—against particularly delicate facts—of the degree to which written material placed before the court in proceedings should be available to non-parties, and the form in which such access ought to be granted. More broadly, the case exemplifies the ongoing tension in the family courts between...

Rowland v Blades [2021] EWHC 426 ( Ch) What are the practical implications of this case? Common intention vs resulting trust The judge concluded the property was not a business venture, albeit there was an investment aspect. It was therefore handled in line with dwelling house/family home authorities. The starting presumption from Stack v Dowden [2007] UKHL 17, [2007] 2 All ER 929—affirmed in Jones v Kernott [2011] UKSC 53, [2012] 1 All ER 1265—that equity tracks the legal title so the parties are beneficial joint tenants in equal proportions, applied. The Privy Council decision in Marr v Collie [2017] UKPC 17 did not dislodge this, as the acquisition arose in a domestic rather than commercial setting. Evidence This ruling underscores the evidential weight of contemporaneous documents, particularly where witness accounts directly conflict. Compensation under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) vs...

Local authority v CD & others ( Rev 1) [2020] EWHC 3298 ( Fam) What are the practical implications of this case? This judgment is a stark wake-up call to local authorities to conduct proceedings with fairness, objectivity and neutrality, while upholding transparency through full and frank disclosure. That obligation is even more acute where a child remains in foster care awaiting the final hearing. In this matter, the court criticised the authority’s deliberate yet ill‑conceived decision-making and its failure to provide the court with timely disclosure—conduct which, at best, evidenced a complete absence of judgment or professionalism. The court was unequivocal that this biased stance resulted in the child staying in a harmful placement for at least nine months longer than necessary. Crucial facts were disclosed far too late. The case underlines the necessity of close supervision of social...

B v Erinvale PTC Ltd and others [2020] JRC213 (registration required) What are the practical implications of this case? The court restated the firm principle that it would be an excessive use of its powers to compel a trustee to act (in this instance, to make the wife a beneficiary in her own right) or to exercise any power to add the wife itself. As the trustee had not yielded its discretion to the court, that was not the court’s function, whether under Article 51 of the Trusts ( Jersey) Law 1984 as amended, or otherwise. Instead, the court indicated it had “no doubt” that, on reflection, the trustee would now move to add the wife. The ruling also serves as a prompt to trust practitioners, when drafting, to consider carefully how a person’s position as a beneficiary might shift over time with changes in their...

Re C (a child) [2020] EWCA Civ 987, [2020] All ER ( D) 136 ( Jul) What are the practical implications of this case? The case arose when, during a remote hearing that had far exceeded its time estimate, a hard-pressed judge expressed irritation about the mother in what she believed was a private exchange with her associate. As the hearing link had not been closed, the parties unintentionally overheard the remarks. The Court of Appeal had to determine whether those adverse comments signalled a real possibility of bias; while sympathetic to the pressures the judge faced, it concluded that they did. Considerable understanding was extended to the judge, whose off-the-record words were accidentally audible during a break. The backdrop of the worldwide coronavirus ( COVID-19) pandemic is significant. The Court of Appeal recognised that family judges are grappling with...

A local authority v A [2020] EWCOP 38 What are the practical implications of this case? Hayden J confirmed that when a deputy wishes to cease acting, they must make an application to the court. Importantly, the court will not rubber-stamp such applications: the deputy, whether an individual or a body, must convince the court that stepping down accords with the person’s best interests. What was the background? As at May 2020, local authority deputies for property and affairs in England and Wales were acting for 22,775 people, making up around 39% of all deputyships. Over the previous two years, both the headcount of local authority deputies and the number of deputyships managed by local authorities had been steadily rising. The applicant council formulated criteria that led it to pinpoint seven matters in which it no longer wished to continue as deputy. It therefore supported a court...

A local authority v PB (by his litigation friend, the Official Solicitor) [2020] EWCOP 34 What are the practical implications of this case? This ruling underscores the need to avoid imposing an unduly stringent threshold when determining capacity in areas such as care and accommodation. Health and care practitioners (and the lawyers advising them) should guard against allowing the instinct to secure what is objectively in a person’s best interests to shape or elevate the standards by which capacity is judged. The mere fact that an individual might hold an unrealistic perception of their ability to control their......

Whittington Hospital NHS Trust v XX [2020] UKSC 14, [2020] All ER ( D) 05 ( Apr) What are the practical implications of this case? For those practising in clinical negligence, the ruling carries clear yet significant ramifications for day-to-day case assessment. In infertility cases, claimants may, in certain, defined situations, recover the expenses of commercial surrogacy by way of damages. Lawyers representing both claimants and defendants must now deepen their grasp of surrogacy law within the UK and in other jurisdictions, from a comparative perspective, to properly evaluate whether this category of loss is recoverable. This decision is a helpful starting point, with Lady Hale carefully guiding readers through the pertinent law in a complex area. For family practitioners, although the matter was a civil tort claim, Lady Hale’s judgment—among her final decisions on the bench—serves as a powerful critique of the current...

Andreewitch v Moutreuil [2020] EWCA Civ 382, [2020] All ER ( D) 108 ( Mar) What are the practical implications of this case? Two practical consequences emerge from this judgment. It converts the right to silence in contempt proceedings from a matter of principle to a mandatory procedural step. Every alleged contemnor, and particularly anyone without legal representation, must be cautioned that they are under no obligation to give oral evidence (para [16]). The right operates as a safeguard available to all, mirroring the position in criminal proceedings (para [8]). The ruling stresses the fundamental nature of that right. A failure to alert an alleged contemnor cannot be dismissed as a mere technical slip (para [17]); it is a procedural defect that may result in real injustice. That risk is amplified for litigants in person, irrespective of intellect or...

Pillmoor (as trustee of the bankruptcy estate of Mohammed Erfan Miah) v Miah and another [2019] EWHC 3696 ( Ch), [2019] All ER ( D) 211 ( Oct) What are the practical implications of this case? This decision offers practical direction on claims where one spouse seeks a beneficial stake in a property not held in their legal name. The judgment clarified the threshold for proving a common intention constructive trust, identifying what will, and will not, suffice. The party asserting the interest must adduce evidence of either an explicit arrangement to share the beneficial ownership, or facts from which such an accord can properly be inferred. Accordingly, proof should address matters that bore on ownership and family finances, including: discussions between the spouses that touched on the question of ownership; the role each spouse played in the...

ND v LD [2019] EWHC 3639 ( Fam) What are the practical implications of this case? It is apparent that the court may adjudicate disputes over funeral and burial arrangements, although such matters are infrequent in practice. For deceased adults, the issue typically emerges only on intestacy, as provisions are ordinarily included in a Will to settle any disagreement and to guide arrangements. Children, however, always die intestate because only adults can make a valid Will, so the limited authorities on this topic have mainly concerned deceased children. There is, nevertheless, conflicting High Court authority on the legal route by which these disputes should be determined. In Re JS ( Disposal of Body) [2016] EWHC 2859 ( Fam), Peter Jackson J decided that either SCA 1981, s 116 or the High Court’s inherent jurisdiction could generally be deployed, though that case was...