Retained law and the EU Withdrawal Bill

‘Retained law’: defined

 

The concept of ‘retained law’ is essential to an understanding of how the EU withdrawal bill  cls 2 to 6 are intended to work. This will define what EU law is to stay in UK law and what laws are intended to develop from ‘exit day’? In what follows these clauses will be considered followed by a guide to the powers retained by ministers further to amend primary legislation by delegated powers (‘Henry VIII powers’) in cls 7-9. For the family lawyer the position under retained law must then be compared with each individual case with a EU component: that is where one or both parents are in another EU country and the children (with the other parent or looked after by a local authority) remain in UK or are in a EU country.

 

Clause 6 defines what forms of law will be retained according to the following definitions in cl 6(7):

 

  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision in cl 5;
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of cls 2, 3 or 4 or sub-cls 5(3) or (6).
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day.

 

Cls 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,…

 

Cl 5 defined the intended status of retained EU law (see (3) above):

 

  • Cl 5(1) provides that the principle of supremacy of EU principle no longer applies to any enactment or rule made or passed on or after exit day.
  • Similarly, cl 5(2) provides that the EU supremacy principle does apply when questions arise after exit-day as to the interpretation, disapplication or quashing of pre-exit enactments and rules; and
  • Cl 5(3) says that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that ‘the application of the principle is consistent with the intention of the modification’.

 

The effect of these provisions is that for retained EU law will the EU supremacy principle will apply to pre-exit day legislation, but not after exit day. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law. As already mentions, cl 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day; though, for the avoidance of doubt, under cl 5(5) fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself. To that extent it therefore remains part of domestic law.

 

Interpretation of ‘retained EU law’

 

Cl 6 provides for ‘Interpretation of retained EU law’. Courts are no longer to be bound by decisions of the CJEU, from exit day; and no case or other matter can be referred to the European Court after that day (cl 6(1)). No court need ‘have regard to anything done on or after exit day by the European Court [unless] it considers it appropriate to do so’ (cl 6(2)). Thus decisions of the CJEU made after exit day will not be binding on UK courts and tribunals; domestic courts cannot refer cases to the CJEU on or after exit day; and UK courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.

 

Cl 6(3) requires courts national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The ‘explanatory note’ to the bill expands on this: any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre‐exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the travaux preparatoires (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law).

 

After exit day UK courts will also no longer be able to refer questions concerning the interpretation of Union law to the CJEU. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court for the CJEU when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (cl 6(5)).

 

All that said, s 6(2) affords domestic courts – under the leadership of the Supreme Court – a discretion to develop, or at least to permit, continued links with the EU jurisprudence after exit day.

 

Henry VIII powers

 

Cls 7, 8 and 9 provides ministers with substantial powers by order or other delegated legislation to amend statutory provisions: that is by ‘Henry VIII powers’. First a Henry VIII power must be defined. This was done recently by Lord Neuberger in the Supreme Court in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387 where he explained that the term, by reference to Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9 as ‘commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.’ He continued:

 

[25] … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.

[26] … In the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies (above) para 1.3.11: ‘…as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.

 

Each of the three clauses provide a similar formula, first to deal with ‘deficiencies arising from withdrawal’, thus:

 

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

 

Similar sub-clauses are included for complying with international agreements (cl 8) and for implementing withdrawal (cl 9); and all three clauses (7(4), 8(2) and 9(2)) add the henry VIII cover provision: that any ‘Regulations under this section may make any provision that could be made by an Act of Parliament’. And then, if that is challenged in the High Court the courts, says Lord Neuberger, must check whether the power was in truth ‘outside the legislature’s contemplation’ though subject to the fact that in each case the powers are not general, but are granted in each clause for specific purposes.

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Cohabitation property law: a short introduction

Cohabitants: money, children and domestic abuse

 

If the process of family breakdown can be characterised, from a legal point of view, as dealing with children (including child financial support), money, any domestic abuse and (in the case of marriage) divorce, then in all of these the law does not distinguish between married and unmarried couples. Divorce does not apply to unmarried couples, obviously; but the fat of not being married is fundamental to financial and property issues between married and unmarried couples; and that is the main thrust of what follows.

 

On the fortieth anniversary of the Court of Appeal judgment in Davis v Johnson [1978] UKHL 1, [1979] AC 264 (27 November 2017: the case went on to House of Lords) it is worth comparing the law in 1977 with now to show that things have moved a little; but they have not moved in the area of property law and other financial support between cohabitants. This article looks at the present law for those who live together, and who may have children and share property.

 

The law in 2017 does not discriminate when it comes to cohabitants in respect of their children, child support and domestic abuse; though, as explained in Davis v Johnson in 1977 the law moved forward in a way which, at the time, was regarded as truly radical.

 

Domestic Violence and Matrimonial Proceedings Act 1976

 

In the Court of Appeal Lord Denning MR (who sat with four other judges including Sir George Baker P) described the background to Domestic Violence and Matrimonial Proceedings Act 1976 as:

 

‘Battered wives’ are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the [1976 Act]. This Act came into force in June of last year. Soon afterwards many a woman sought the aid of the county courts for protection under the Act….

 

In the House of Lords Lord Scarman (at 347) described the operative part of the 1976 Act as providing a ‘new remedy’, and that also for unmarried partners, as follows:

 

Subsection (2) enables an unmarried woman (or man) who is living with a man (or woman) in the same household as husband and wife to apply to the county court under subsection (1) and expressly provides that reference in subsection (1) to the matrimonial home shall be construed as a reference to the household in which they are living together. This reference indicates to my mind that those provisions of subsection (1), which make available to married people an injunction excluding the other party from the matrimonial home and an injunction requiring the other party to permit the applicant to enter and remain in the matrimonial home, are intended to be available also to unmarried partners.

 

In particular the Act was designed to restrain a party to a marriage from ‘molesting the applicant’ or ‘a child living with her’ (s 1(1)(a) and (b)); and declares that the remedy in s 1(1) shall –

 

(2) … apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.

 

This was the radical extension under the 1976 Act and was succeeded in 1995/6 by what became Family Law Act 1996 1996 Part 4, which preserves (as FLA 1996 s 42) the terminology, undefined, of ‘molestation’ used – as it had been in civil proceedings injunctions – up to then. I considered this more fully in Lord Scarman and a definition of domestic abuse.

 

Discrimination and cohabitation law

 

In contrast to the modern law on domestic abuse, property law (including from income – ie maintenance as between partners) is entirely discriminatory as between couples where they are married or not married. There is, generally, no discrimination in children law (eg under Children Act 1989) or where child support maintenance is concerned (Child Support Act 1991) according to whether parents are married or not. This is also the case in respect of domestic violence or of exclusion orders (the sop to the Daily Mail and assorted Tory MPs in Family Law Act 1996 s 41 (which said that if a couple were not married then where ‘the court [should] have regard to the fact that they have not given each other the commitment involved in marriage’ has been repealed).

 

The law does not differentiate according to gender, sexual orientation or religion. In one of the leading cases, Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, Barry Stack was the non-owning partner and claimant; and an important case on proprietary estoppel (Wayling v Jones [1995] 2 FLR 1029) concerned a same sex couple. That said, it is most likely to be the carer mother who is affected by the unfairness in the law.

 

If a couple is married there is a very clear divide between between the statute law which governs them (Matrimonial Causes Act 1973 ss 22-25A (mostly)), which depends on the discretion of the judges as to how their capital is distributed on relationship breakdown (divorce) and if they are not married, but jointly occupy freehold property. Where couples cohabit, and whether they own property jointly or only one owns, there is tangle between common law (mostly equity) with little scope for judicial discretion. For example, in the recent Liden v Burton [2016] EWCA Civ 275 (proprietary estoppel: see later) Hamblen LJ characterised the issues on appeal as: ‘(1) whether the judge wrongly applied the law to the facts as found; (2) whether the judge erred in the exercise of his discretion in giving effect to the equity’ in the particular case.

 

Cohabitation and co-ownership

 

Two particular sets of circumstances arise: first, where an unmarried couple – hetero-sexual or same sex – live together and jointly own property; or, secondly, where they live together in property which is in the name of one only (A) but the other (B) asserts a claim over that property. The question then is to what extent B may able successfully to pursue a claim against the property in A’s name. If they were married B would have a share unquestionably (the amount would depend on ‘all the circumstances’ of the case: Matrimonial Causes Act 1973 s 25). If they are unmarried (whether with or without children), all sorts of arguments may be needed if B is to secure a share.

 

The starting point is legal title. What is recorded at the Land Registry? What was said at the time when the property was purchased? Equity follows the law. Thus, for example, the law says that if two people own property jointly they have an equal interest in that property, unless the documents say something different. If a property is owned by one of them only, no-one else has a share (save as explained in trust interests below). Lady Hale explained this in Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858 as follows:

 

[56] Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all. In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest.

 

If B claims a different share from what appears on the title then it is for B to prove it. Equitable principles apply. In practice these are more akin to contract principles than to the discretionary rules which apply on marriage breakdown. It remains the case that equity may be able to adjust the shares which appear on the title documents; but it is for the claimant to say why this adjustment should happen.

 

Implied trusts: resulting or constructive

 

The differential ownership – the ‘beneficial interests’ – which equity allows for is to imply a trust:

 

  • A resulting trust – Equity says that two (or more) owners share land in the proportions in which they put money up to buy it even though on the face of the title ownership is different; or
  • A constructive trust – The court imposes on A the requirement to hold property in some way other than required by law.

 

The purchase of property, where another person (A) makes a contribution, generally sets up a resulting trust in favour of the contributor proportionate to any cash contribution. Thus where A gives money to B to buy property, and B does so then a trust results to A for the value of his or her contribution (Dyer v Dyer (1788) 2 Cox Eq Cas 92). B is a trustee for himself and A. A can then enforce the trust as trustee under Trusts of Land and Appointment of Trustees Act 1996 (as explained in Pt 3) not eg as a mortgagee or unsecured lender.

 

The resulting trust is no more than an equitable presumption. It must yield to other evidence that demonstrates that no such interest was intended eg that a loan or a charge were intended; or that (say) a gift was intended (see discussion in Marr v Collie (Bahamas) [2017] UKPC 17, [2017] 2 FLR 674).

 

Constructive trust

 

The more common trust as between cohabitants is where A buys, or (at the relevant time in the relationship) already owns, property in A’s sole name; or that A and B jointly own property, but one of them wishes to say that they own it in shares which are other than equal. The issue then is whether the court will adjust the shares shown on the legal title or will grant a share at all; though as Lady Hale made clear in Stack v Dowden: ‘[69] …. cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.’

 

A trust may be constructed first where the court finds there is an agreement between A and B for differential holding and in addition the court finds that there has been ‘detrimental reliance’ by B on that agreement (Lloyds Bank plc v Rosset [1991] 1 AC 107, [1990] 2 WLR 867, [1990] 2 FLR 155). Thus whilst the resulting trust arises from contributions, the constructive trust is concerned with an agreement, understanding or other bargain relating to property.

 

Thus (say) a man (A) owns property, and agrees with B that she will come and live with him. B gives up her house to live with A (Grant v Edwards [1987] 1 FLR 87, CA); or she puts up money to be used towards the refurbishment of property (Drake v Whipp [1996] 1 FLR 826, CA). Conduct on the part of the claimant may be evidence of an agreement: in Eves v Eves [1975] 1 WLR 1338, CA Janet Eves did a variety of work there, including wielding a 14lb sledge hammer to break up concrete which covered the front.

 

Indeed, Eves v Eves includes the following from Lord Denning MR (at 1431). He describes an unmarried couple:

 

… They get a house; but it is put in his name alone. Then, before they get married, the relationship breaks down. In strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street. She is not entitled to any maintenance from him for herself. All she can do is to go to the magistrates and ask for an affiliation order against him on the footing that she is a “single woman”: and get an order for him to pay maintenance for the children. If he does not pay, she may have great difficulty in getting any money out of him, even for the children. Such is the strict law. And a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing.

 

Little has changed in property law since then. Affiliation orders have gone and are largely replaced by orders under Children Act 1989 and by child support maintenance under Child Support Act 1991. Family Law Act 1996 has developed the law in relation to occupation and non-molestation orders. Equity may be able to bear children, as Lord Denning asserts; but the cohabitation cases considered in this article have hardly taken the law any further forward when it comes to adjustment of property owned by unmarried cohabitants.

 

Adjusting shares in jointly owned property

 

Secondly, a trust may be constructed which alters the legal entitlement where parties own property jointly, but one seeks a differential share. There the court can construct a trust which alters the legal entitlement. Thus in Stack v Dowden a property was held in the parties joint names, which had been bought by them from the proceeds of sale of a property originally owned solely by Ms Dowden. They had brought up their four children in the house. This and other factors lead the Court of Appeal to award Mr Stack 35%, a division upheld by the House of Lords (for reasons explained further later).

 

The constructive trust must be contrasted from proprietary estoppel (with which it shares certain features: eg detrimental reliance). Proprietary estoppel enables the court to hold that, where there has been a promise upon which a party has acted to their detriment, then the promissor should be estopped from denying the existence of the promise and from denying the benefit that was promised by it. The constructive trust vests a beneficial interest in the claimant, that is to say a trust interest in property which can be enforced by an order for sale under TLATA 1996 s 14. Proprietary estoppel will not necessarily result in any proprietary interest, but may result in a damages claim (akin to breach of contract), depending on the nature of the promise and the extent of the detriment.

 

Defining the shares

 

Where the court declares a constructive trust but determines that it should be in shares other than equal, how are the shares defined? Jones v Kernott [2011] UKSC 53 [2012] 1 FLR 45 the Supreme Court attempted to explain their earlier Stack v Dowden.

 

The main factor in a convoluted background in Jones v Kernott was that the couple’s jointly owned property provided a home for J and two children of the relationship; and that liquidation of a life policy belonging to both of them had enabled K to buy his own separate property. These facts enabled the court to infer an intention to alter the legal title to a trust which reduced K’s share to 10% of the property. Lord Kerr summarised their common ground between the justices as, first, that a the common intention may be inferred objectively from the parties’ conduct; or, failing that, that each of the couple is entitled to such share as the court considers fair; and in considering fairness the court must consider the ‘whole course of dealing between the parties’.

 

Lady Hale and Lord Walker explained these propositions as:

 

[47] In a case such as this, where the parties already share the beneficial interest, and the question is what their interests are and whether their interests have changed, the court will try to deduce what their actual intentions were at the relevant time. It cannot impose a solution upon them which is contrary to what the evidence shows that they actually intended. But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.

 

Need for law reform

 

In truth, property law for cohabitants has only moved fractionally since Lord Denning’s comments in Eves v Eves. Some of the more depressing aspects of this area of law include

 

  • The failure of political parties to recognise the fundamental need for thoroughgoing reform to recognise the modern attitude to unmarried families and their children;
  • The law’s failure to recognise that the fact that one partner reposes trust in the other must be recognised fully by the law; and
  • That couples do not necessarily sit down before marriage or before starting their relationship and meticulously plan their financial futures as was recognised by the very human words of that human Chancery judge Waite LJ in Midland Bank plc v Cooke [1995] 2 FLR 915, CA – over twenty years ago – when he said (at 927):

 

Equity has traditionally been a system which matches established principle to the demands of social change. The mass diffusion of home ownership has been one of the most striking social changes of our own time. The present case is typical of hundreds, perhaps even thousands, of others. When people, especially young people, agree to share their lives in joint homes they do so on a basis of mutual trust and in the expectation that their relationship will endure. Despite the efforts that have been made by many responsible bodies to counsel prospective cohabitants as to the risks of taking shared interests in property without legal advice, it is unrealistic to expect that advice to be followed on a universal scale. For a couple embarking on a serious relationship, discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together….

 

Urgent law reform is needed to make cohabitation property law fair, especially – but not only – where couples have children and where one (generally the mother) gives up a career or time at work to look after the couples’ children.

Brexit: retained law and family proceedings

Family law after EU withdrawal

 

The pending process of EU withdrawal leaves English lawyers in a similar position, I suspect, to Anglo-Saxon lawyers immediately after the Battle of Hastings in 1066 (with the Tory Government now standing in as William the Conqueror’s victorious barons). How much of their law, they wondered, would survive the Norman Conquest? In the case of modern lawyers and Brexit, 950 years after the Norman arrival, what retained law will be permitted following passage of the European Union (Withdrawal) Bill (‘the withdrawal bill’), now before Parliament?

 

The starting point for this article (and its accompanying explanation) is Brexit and Family Law (October 2017; the ‘family law withdrawal paper’ or FLWP) published by FLBA, International Academy of Family Lawyers and Resolution who describe themselves as ‘the lead specialist family law practitioners’. The paper is a short (18 page) document which aims to produce recommendations as to where reciprocal family law arrangements (if any) should go following EU withdrawal.

 

An immediate problem is that it makes no attempt to explain the proposed statute law – still only in a bill, I accept – to its readers. In particular it does not explain the critical feature of the bill namely ‘retained law’ (cl 6). It makes no explicit reference to the extent to which the common law may be able to adapt principles of EU law to family proceedings. And it proposes an option for law reform (‘Option (i)’) which, save with a very large amount of EU good-will and law reform, is impossible to achieve.

 

This article outlines some of the family law issues and aims only to introduce EU withdrawal. It will be backed by future articles which will expand on what is said in summary here, and will proceed as follows:

 

  • The background to the withdrawal bill
  • A summary of the content of the bill
  • A review of the options in the FLWP
  • Thoughts on where now for family law reform; and suggestions in areas where FLWP seemed reluctant to tread…

 

Background to the bill

 

In a referendum in June 2016 United Kingdom has been treated as having voted to leave the EU. On 16 March 2017 European Union (Notification of Withdrawal) Act 2017 received royal assent. A EU (Withdrawal) Bill (‘withdrawal bill’) is now before Parliament. Clause 1 of the bill repeals European Communities Act 1972 (ECA 1972) from the date of exit from EU. It must be assumed that at the end of March 2019 (if Mrs May gets her way) UK law will no longer be governed by EU legislation. The question for any lawyer – by which I mean here, any family lawyer – is, what will be left of EU law once that happens.

 

The withdrawal bill is the only source material accompanied by the Department for Exiting the EU (‘DExEU’) euphemistically named ‘future partnership papers’ (little or none of which – bill or partnership papers – are given any prominence in the withdrawal paper). The paper which includes reference to EU-UK family litigation is Providing a cross-border civil judicial cooperation framework. It is a brief, bland document intended – touchingly – to ‘establish a deep and special partnership [for UK] with the EU’. On inter-EU country co-operation it includes:

 

6 Civil judicial cooperation is the legal framework that governs the interaction between different legal systems in cross-border situations. In particular, this framework provides rules to determine which country’s courts will hear a civil, commercial or family law case raising cross-border issues (jurisdiction); which country’s law will apply (applicable law); and enables a judgment obtained in one country to be recognised and enforced in another (recognition and enforcement)….

 

Any court order is only worth the extent to which it can be enforced (a point made, though not developed, by the Brexit paper). A parallel partnership paper is intended to deal with, Enforcement and dispute resolution. This paper is innocent, it seems, of the need for a court back-up: the bill abolishes in UK of the Court of Justice of the European Union (‘CJEU’):

 

The papers show little awareness in DExEU of the extent that cross-border families – as will appear from examples given separately – depend on the co-operation of courts in individual EU countries; and of the fact that the final arbiter of this co-operation is CJEU. Such cases as Re Rinau (Case C-195/08) [2009] Fam 51, [2008] 2 FLR 1495 (relied upon by the Court of Appeal in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347) shows only too clearly how essential CJEU law is to UK family law. Child and Family Agency v JD (Case C-428/15) EU:C:2016:548 [2017] 1 FLR 223 show the importance of cooperation between jurisdiction for example under Brussels IIA Art 15.

 

European Union (Withdrawal) bill and retained law

 

Under a sub-heading ‘Retention of existing EU law’ cls 2 to 6 of the bill defines what EU law is to be retained by UK institutions. The term ‘retained law’ is essential to an understanding of how the law is intended to develop from the ‘exit day’ when EU withdrawal happens; and it is these laws which will – or will no longer – underlie our advice to clients and children.

 

Clause 6 defines what forms of law will be retained:

 

  • ‘retained case law’ is composed of ‘retained domestic case law’, and ‘retained EU case law’; both depend on what the law is held to be ‘immediately before [EU] exit day’
  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision (above);
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above.
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and subject to the relator provision (above);

 

Clauses 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,..

 

Rights; or ‘rights undermined’…

 

Of retained rights it will be recalled that R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 at [69]-[73] (not referred to in FLWP), included the following of Brussels IIA:

 

[71] … Some rights falling within one category may be closely linked with rights falling within another category. For example, the rights under [Brussels IIA],would be undermined if a domestic judgment governing the residence of a child could not be enforced outside the UK.

 

Brussels IIA will be direct EU legislation; but as is emphasised by Miller it operates only so far as it goes since its operation depends on the co-operation of EU member states; and no-one knows yet how far such cooperation – if any – will be forthcoming.

 

By cl 5(4) the EU Charter of Fundamental Rights (which in important respects extends European Convention 1950) ceases to be part of domestic law on or after exit day. However, according to clause 5(5), fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself and can therefore form part of domestic law.

 

The Charter is critical to English children law (as Re D [2016] above, reminds us):

 

[15]   Recitals 12 and 13 [of Brussels IIA] deal with the underlying philosophy which is decision making based on the best interests of the child and recital 33 incorporates the fundamental rights of a child in the EU as set out in Art 24 of the Charter… which states:

‘(1) Children shall have the right to such protection and care as is necessary for their well-being. They may also express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

 

Clauses 2-4 propose that most existing EU law remains part of UK law; but cl 7 and Sch 7 recognise that a proportion of EU law will either be inappropriate following exit, or can only work in UK if modified (because, for instance, it presupposes things that no longer apply following withdrawal). Consequently cl 7 confers powers on Ministers of the Crown to amend, repeal or replace retained EU law – that is, what was originally primary legislation – by making administrative regulations also known as Henry VIII powers (as recently explained by Lord Neuberger in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531 at [25]). Thus cl 7(1) enables a government minister:

 

(1) … by regulations [to] make such provision as the Minister considers appropriate to prevent, remedy or mitigate—

  • any failure of retained EU law to operate effectively, or
  • any other deficiency in retained EU law, arising from [EU withdrawal].

 

Recent case law examples

 

A variety of recent cases show the importance of EU legislation, pre-eminently Brussels IIA; and all our courts which deal with family law – even up to Supreme Court (see eg Re B (A child) [2016] UKSC 4, [2016] AC 606, [2016] 1 FLR 561) – are fundamentally influenced by CJEU jurisprudence. Such cases as B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) (09 May 2017), MacDonald J and Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWFC B82 (OJ) (19 September 2017), HHJ Carol Atkinson as High Court judge provide examples from the financial relief and public law children jurisdiction, of the importance of EU legislation to UK family law.

 

Meanwhile in FE v MR & Ors [2017] EWHC 2298 (Fam) (14 September 2017), Baker J considered Brussels IIA Art 15 in relation to recognition and enforcement of family court orders so that a UK court (as the court of a member state (a requesting court)) can request the court of another member state (Spanish), where the requesting state might ‘be better placed to hear the case’ (Art 15.1.

 

Options and the EU withdrawal paper (FLWP)

 

FLWP (the FLBA etc withdrawal paper) summarises its exit day ‘Options for family law’ as follows (at pp 14-17). It touchingly hopes for inter-EU member agreement with its deserting ‘partner’ (ie UK). ‘Option (i)’ is to retain full reciprocity. It is said the UK Parliament ‘could replicate the EU instruments in our own domestic law and maintain the existing reciprocal arrangements between the UK and the other EU member states’. (The paper talks of ‘UK’; though it is not clear to what extent its authors speak for Scotland and Norther Ireland.) This option does not acknowledge the need for reciprocal legislation from all EU state.

 

‘Domestication without full reciprocity’ is regarded as ‘completely unsatisfactory’, the ‘worst of all outcomes’, now or in the long-term; but this is what the bill and Miller – unmentioned by the authors – anticipated. And this is what seems to be the outcome envisaged by the EU withdrawal bill, the specific consequences of which are not reviewed by FLWP.

 

The recommendation is for ‘our own bespoke arrangement’ – the term used by the authors, in effect, for their anticipated procedural law reform – to provide a ‘new framework for family law co-operation between the UK and the EU’. This is the firmly preferred outcome; but merits only two paragraphs in the paper. No evidence is provided that all – or indeed any – other EU jurisdictions will agree to reciprocate with English courts as has been EU law up to now. In default of agreement, our clients must be told that the best option would take ‘a very long time to consider, negotiate and put into place’… ‘It will not be possible to agree a bespoke arrangement by 2019 given the enormity of the task.’ If the Government tips us off the cliff then: what next?…

 

What is to be done?

 

Option (iii) proposed by FLWP and its not-possible-to-deal-with-it-by-2019 is unsatisfactory. It is like saying: it will take too long to put together a defence – whether in war or as advocate in a case – so we won’t defend. It is to think that the opposition – in this case the Government – will just say ‘OK that’s fine we’ll leave the law as it is’; and all the EU member states will say ‘there, there of course our judges must go on co-operating with you, even though you’re outside the EU now…’.

 

I rather think it may not work like that. Lawyers have had since June 2016; and there are 15 months to go (say till around March 2019) to ‘agree a bespoke arrangement’. Harold fought off the Danes at Stamford Bridge, and then managed to turn up – and nearly to win – the Battle of Hastings. If other EU courts will not co-operate with English courts – and do we yet know that they won’t? – and if falling off the EU reciprocity edge is to be softened as much as possible, our MoJ and DExEU will need to do something – if only, at least, to protect the rights of children which may be lost.

 

The following questions may provide a start:

 

  • To what extent can we do we have to do reciprocal jurisdiction deals with individual EU countries; or will they expect – or agree to – an approach common to all respective 27 jurisdictions?
  • To what extent can we model arrangements on reciprocal arrangements with other non-EU nation jurisdictions?
  • Are there any international agreements as to how children’s views should be received in proceedings which concern them (see eg Re D [2016] (above))?

Secrecy and disproportionality in the family courts

Attempts to ‘conflict out’ a party to family proceedings

 

In ZS -v- FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017) Williams J allowed a rich (I assume) Russian to spend two days arguing whether or not his wife (who may of not be FS: see later) should be allowed to use Ray Tooth (RT) whom she had chosen to instruct. In the meantime the ‘representative’ (OE) of the husband (say, ZS) said he had been to see RT, who could not remember the meeting. The judge assumed this was an attempt by ZS to ‘conflict out’ (a new verb?) FS so that she could not use Tooth to act for her. ZS’s application was unsuccessful.

 

The judge found OE (why ever was his case kept anonymous) to be ‘blasé about … accuracy in matters evidential’ (as the judge put it at [68]). Others might have said OE was lying. The case was heard in ZS’s absence, though with ranks of lawyers and OE present and a witness for ZS.

 

Why does all this matter? There is a relatively well-developed jurisprudence in relation to conflicts of interests if a professional who owes a duty to one client, and then takes on another with a conflicting interest. Like the accountants in Bolkiah v KPMG [1998] UKHL 52, [1999] 2 AC 222, solicitors may not do it. In the field of matrimonial litigation the issue has arisen, for example, in Davies v Davies [2000] 1 FLR 39, CA (another case in which RT could not remember a client) and Re Z (Restraining Solicitors from Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132 Bodey J. The subject is well-aired. So too is that of legal professional privilege which is the other aspect of the case which looks at law, though in connection with mostly well-known cases.

 

It is what the case does not look at – but perhaps should have done? – is what this note considers: first, the question of proportionality; and, secondly, at release of information to help us ‘make sense’ of the case.

 

Overriding objective; and what may have been left undone in ZS v FS

 

Since the end of the 1990s there has been a real concern amongst civil lawyers to keep cases within bounds (ie ‘proportionality’); and this expresses itself in what were intended in Civil Procedure Rules 1998 Pts 1 and 3 to be tighter case management rules, incorporated 12 years later into Family Procedure Rules 2010 (FPR 2010) Pts 1 and 4.

 

This application – it was an interim hearing which I assume ran under FPR 2010 Pt 18 – lasted two days. It engaged a QC per party each with a junior (with solicitors sitting behind, and as witnesses). It resulted in a 72 paragraph judgement as well as, within that and in addition, a three page chronology. The court fee for an application like this (if any was charged) this is £155 (ie the payment to the Treasury for all that, plus ushers, court staff, heating lighting etc).

 

The application – which would normally be dealt with on paper (perhaps with short submissions) by a district judge – was ‘a hearing other than the final hearing’ (FPR 2010 r 22.7), so ‘the general rule is that evidence at [such] hearings… is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise’. There is nothing in Williams J’s judgment to say he had considered r 22.7, and what he had concluded from r 22.7 to make him decide upon a full hearing on evidence being called.

 

We do not know why the case was not dealt with summarily on the papers. Outside London, you would expect a case like this to be dealt with by a district judge on the papers; with maybe short submissions only.

 

Proportionality and expeditious disposal

 

And then the overriding objective and proportionality in FPR 2010 terms, surely, comes into it? FPR 2010 r 1.1 requires that cases be dealt with ‘justly’; and this surely includes the court administrators and judge giving thought to others – others more deserving, if not so rich? – who might want a High Court judge’s time. ‘Dealing with a case justly’ (FPR 2010 r 1.1(2):

 

(2) … includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;… and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

True it is that the judge says (at [32]) he found it very helpful to hear ‘the parties give oral evidence’ (though did this include the husband? – I think not); but surely it must have been possible to devise a summary basis for the application and for it to be heard in a fraction of the 2 days and by a district judge? This is what the ‘overriding objective’ and its appeal to proportionality would anticipate.

 

We send children whose parent says they are ‘at grave risk [of suffering] physical or psychological harm’ (Hague Convention Art 13(b)) back to their former homes by a summary (ie no oral evidence) process. Children are rarely heard. An application like that of ZS should surely be treated as less important than the future of a child? After all, the worst would be that his wife could not have RT as her lawyer. Excellent though he may be (had the wife lost on this application), there are others…

 

Banks of lawyers – family lawyers who would know the rules for family proceedings – were involved in this case. Did any of them draw to the judge’s attention to FPR 2010 rr 1.1, 18.7 or 22.7? If they did, the judge does not say so.

 

Hearing documents and a ‘skull painting’…

 

The other unwitting aspect of the case is that of ‘hearing documents’. This is a well-trodden path. This case only shows the increasing need for it, if judges are to be able to keep their judgements relatively economical in length.

 

‘Transparency’ it has been suggested from judges at the highest level (see eg Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338’ Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 and Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618) could – must, in the interests of openness – be increased by release of certain documents read by the judge outside the hearing. This would enable those who attend court or otherwise want to ‘make sense’ (Lord Scarman’s term) of proceedings (eg witness statements, skeleton arguments etc suitable anonymised).

 

The essential elements of ZS’s main application before the court (for a declaration of the validity of a Russian divorce) are said to have been ‘set out at B3’; and an unexplained ‘skull painting’ (referred to only once in the judgement ay [15]), are listed amongst a number of items which are intended show that ‘the meeting’ with OE took place. An understanding of the declaration application may be essential to an understanding of the judge’s decision; the ‘skull painting’ less so. The reader of the judgement (as would have been the case for anyone attending the hearing) can only make limited sense of it, without also being able to read certain basic documents.

 

What price proportionality?

 

The reality of transparency and the understanding of proceedings will be the greater if this issue – for courts which sit in private and in open court (as the example of the Guardian v Westminster case makes clear) – is looked at soon; and see Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

We shall never know what part ZS’s wealth had in the generosity of High Court time given to him. It certainly was not the difficulty of legal principle involved (despite the array of learned counsel deployed to argue it). Most of the cases cited are well-known; and do not form any express part of the judge’s decision-making (ie in one paragraph he merely lists the cases he has been referred to).

 

Secrecy over release of court documents is still not part of any ‘transparency’ procedure in any civil proceedings; and has nothing to do with a party’s money. However, it is a matter for thoughtful review of court process; and of anonymisation of read documents for private hearings.

 

And why anonymity?

 

Finally, it might be mentioned in passing: why was this case in private and why anonymity for the mysterious OE? The husband is found to have been ‘strategising and manoeuvring’ ([65]) over the case and aspects of OE’s evidence ‘are patently false’ ([68]). As Tomlinson LJ said in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 142 of a first instance decision not to publish:

 

[87] … It is I think unrealistic to assume that the revelation of dishonesty or other misconduct in the course of the litigation of a private dispute, particularly a matrimonial dispute, will necessarily attract any great interest from those not immediately affected by the outcome. I agree that dishonesty is not ordinarily entitled to confidentiality….

 

And any decision on anonymity is for the judge himself to address (R v Legal Aid Board exp Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA), since the parties are likely to want to keep this sort of hearing private (Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J).

LORD SCARMAN AND A DEFINITION OF DOMESTIC ABUSE

Domestic Violence and Matrimonial Proceedings Act 1976 as new law

 

In a judgment (speech in House of Lords) in Davis v Johnson (9 March 1978; ) [1978] UKHL 1, [1979] AC 264 at 348 Lord Scarman explained the remedies provided by Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976) s 1; and then, he defined domestic violence for the purposes of the Act:

 

… Conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction — actual, attempted or threatened — is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.

 

Lord Scarman was a pre-eminent family lawyer from a time when children law was hardly regarded as a separate discipline (think Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA;  A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948, (1981) 2 FLR 222; Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224; Re E (A Minor) (Wardship: Court’s Duty) [1984] FLR 457 for a flavour of his children law work).

 

Non-molestation orders: a new family law remedy

 

Before the quote above, Lord Scarman (who gave the fifth speech) had set out the text of s 1(1) of the Act (still no mention of domestic violence or domestic abuse – just of ‘molesting’ a party:

 

(1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely—

(a) a provision restraining the other party to the marriage from molesting the applicant;

(b) a provision restraining the other party from molesting a child living with the applicant;

(c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included;

(d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home, whether or not any other relief is sought in the proceedings

 

Lord Scarman explained s 1(1) as follows:

 

Subsection (1) enables a party to a marriage to make application to a county court. It is without prejudice to the jurisdiction of the High Court and it empowers a county court (any county court, whether or not invested with divorce jurisdiction) to grant an injunction “whether or not any other relief is sought.” Clearly the subsection provides a new remedy additional to, but not in substitution for, what already exists in the law.

 

Section 1(2) applied s 1(1) equally to a couple who were not married; and references to matrimonial home were to be construed accordingly.

 

Non-molestation in 1996; but still no domestic violence definition

 

And so, in 1975-6, a new family law remedy was born in the 1976 Act. It was intended to cover both the married and the unmarried, and their children: the free-standing (‘whether or not any other relief is sought’) non-molestation injunction. This is the remedy which – for today’s purposes – is reproduced in Family Law Act 1996 s 42(1):

 

42 Non-molestation orders

(1)In this Part a “non-molestation order” means an order containing either or both of the following provisions—

(a)provision prohibiting a person ( “the respondent”) from molesting another person who is associated with the respondent;

(b)provision prohibiting the respondent from molesting a relevant child.

 

The 1996 still avoided a definition of ‘domestic violence’: the rest of s 42 deals with procedural matters; whilst earlier sections of FLA 1996 had dealt with occupation orders.

 

The charming authors of Legal Aid Sentencing and Punishment of Offenders Act 2012 attempted a definition of ‘domestic violence’ which is tucked away at Sch 1 para 12(9):

 

‘domestic violence’ means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;…

 

Contact practice direction and domestic abuse

 

In Family Procedure Rules 2010 PD12J Child Arrangements & Contact Orders: Domestic Violence and Harm those who draft Family Procedure Rules 2010 and their accompanying practice directions have given us as a definition of domestic abuse – but only in relation to child contact. Para 4 (I set this out in full):

 

‘domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;…

 

In addition the terms ‘abandonment’, coercive behaviour’, controlling behaviour’ and ‘ill-treatment’ are further defined.

 

A practice direction as law

 

The first comment on this must be to recall that a rule, still less a practice direction, cannot change the law (Re Grosvenor Hotel, London (No 2) [1965] Ch 1210, CA approved by Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 at [27]). The law is what was explained by Lord Scarman in Davis v Johnson. And anyway what does the practice direction add to what was said by Lord Scarman 40 years ago?

 

One problem with any definition is that the more extensive you make it, the weaker it is: detail only suggests more ways in which a person can wriggle round it. That is the beauty of Lord Scarman’s definition; and as law it applies to a much wider set of statutory circumstances (FLA 1996 s 42; children proceedings generally (ie not only contact); and occupation orders).

 

The practice direction is a lesser form of law, and priority when advice is given or legal aid applied for, should be given to Lord Scarman (with a nod, perhaps, to LASPOA 2012 Sch 1).