On how to pay and indemnify your ex-spouse for mortgage repayments

A tale of a Southampton consent order


Under the title CH v WH [2017] EWHC 2379 (Fam), Mostyn J’s of the approval of a consent order appears as a form of judgment with neutral citation and in the BAILII reports. (CH v WH emerges also as an example of use of the High Court’s inherent powers in President’s guidance: jurisdiction of the Family Court: allocation of cases within the family court to High Court judge level and transfer of cases from the Family Court to the High Court 28 February 2018:  at para 15). It is not a judgment. Mostyn J was doing the administrative job which district judges do up and down the country every day. It is an administrative task, without any judicial disposal involved (nor argument to be heard). Add to which: one of the parties chose their judge (‘[2] The matter has been referred to me by the wife’s solicitors…] – against all the normal rules of law; and with Mostyn J telling the parties to accept the form of order he had, himself, drafted (no conventional self-denying ordinance there).


The question concerned whether an agreement by one spouse to discharge mortgage payments on a former matrimonial home covenanted to be paid by both spouses should be dealt with by undertaking given to the court. This has generally been regarded as the appropriate course. Or, as the omnibus orders decree, should the payments be by order? Mostyn J does not recite the approved ‘orders’ but I take them to be those set out at the end of this post.


In considering which course should be followed, Mostyn J seems to take no account of statutory imperative, Supreme Court/House of Lords and Court of Appeal jurisprudence, but relied on the drafting of his own committee. The district judges’ who had considered the original draft order maintained that it should be based on conventional wording  and an undertaking.


Mostyn J rewrote their decisions (it was not an appeal) with the words:


[10] In my judgment, these sterile, technical objections to orders in these terms must cease. They have caused needless delay and have no doubt increased costs and caused other inconvenience.

[11] That concludes this judgment, which the President has seen and which he approves.


Professional negligence and a non-release or variation order


All this may appear Jesuitical, a pointless semantic exercise beloved of idle lawyers; and so it may be – until….


What happens when a person with a Mostyn J ‘order’ – as in the draft below – wants to vary it? Variation or an order can only be done under Matrimonial Causes Act 1973 (MCA 1973) s 31; but orders requiring payment of a mortgage are not covered – as far as I can see – under s 31(2) (as I explain below). If Mrs Birch (of Birch v Birch (below)) had agreed to a Mostyn J omnibus order she would have been stuck if she then wanted to vary it (if my reading of s 31(2) is correct); as against seeking release from it as the Supreme Court permitted her. And perhaps another Mrs Birch’s lawyers, who had been taken in by the omnibus orders, might have to refer the matter to their insurers.


Of the need to follow statutory provisions (ie MCA 1973) Mostyn J says:


[8] It is elementary that the court cannot make orders outside its powers: see Livesey v Jenkins [1985] AC 424 at 444G, where Lord Brandon stated that there was nothing in section 23 or 24 of the Matrimonial Causes Act 1973 which directly empowered the court to make the order requiring the wife, following the transfer of the matrimonial home to her by the husband, to be solely responsible for the mortgage and all other outgoings on it. Such a provision, he said, should have been incorporated in undertakings….


However, Mostyn J continued (with no hint of irony: see his reference to ‘sterile, technical objections’ cited in [10] above and to ‘conveyancing counsel’ below):


[8] …. [MCA 1973 s 30] gives the court power when making a property adjustment order to direct that the matter be referred to one of the conveyancing counsel of the court for him to settle a proper instrument to be executed by all necessary parties. While this provision is now virtually obsolete it cannot be disputed that the instrument in question could contain terms which furnish all necessary indemnities and the obligations to pay instalments in relation to a mortgage secured on the property. So I do not agree that the provision in question is outside the “parameters” of [MCA 1973].

[9] But that is not my main reason for disagreeing with the approach taken by the district judges in Southampton. My main reason is set out in the report of the Financial Remedies Working Group, set out above, with which, unsurprisingly, I agree…


So, says Mostyn J the district judges in Southampton can go outside MCA 1973 by use of their ability to use the inherent jurisdiction of the High Court (he does not consider Wicks below) conferred by Matrimonial and Family Proceedings Act 1984 s 31e(1)(a). They could just go along with what the Working Group had recommended. Quoting his own view in the group Mostyn J said:


‘This [the court’s power to direct one party to make such payments and/or indemnify the other against non-payment] is an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873. It was the very relief initially ordered in Salomon v A Salomon and Co Ltd [1897] AC 22 (but which was later set aside by the House of Lords as offending the rule about the separate legal personality of companies). As to mortgage and other outgoings in my view the power to order A to make payment to B plainly includes the power to order A to make payments on behalf of B.  The greater includes the lesser. It was necessary to spell out the power to order the payment of mortgage and other outgoings in Part IV FLA 1996 proceedings (see s 40(1)(a)) because the wider direct power does not exist in those proceedings. It would be anomalous if the power to order payment of outgoings only existed in Part 4 but not FR proceedings. It is necessary in my view for the court to have these powers if only to cover the position if someone is not prepared to give the necessary undertakings or is not participating in the proceedings.’


Of course, what could be simpler and less sterile/technical than that? Don’t worry about what Lord Bridge says (quoted above) in Livesey v Jenkins:


[9] …. The basic mistake made by the judges in Southampton is to assume that their powers are confined to the four corners of the Matrimonial Causes Act. The Family Court has all the powers of the High Court. The High Court unquestionably has the power, as part of its equitable jurisdiction, to order an indemnity. If awarded, that represents a legal right in favour of the person so indemnified. The court can award an injunction in support of a legal right. To order someone who has been ordered to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage is of the nature of an injunction in support of a legal right. In my opinion, this provision is squarely within the power of the High Court to order, and is therefore within the power of the Family Court.


And now this wheeze is incorporated as part – it is said – of the High Court’s inherent jurisdiction and mentioned specifically in 28 February’s PGJFC para 15(b).


Supreme Court and Birch


So what does statute and recent Supreme Court jurisprudence say (quite apart from the clear opinion of Lord Bridge in Livesey’s case (cited by Mostyn J above))? In Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 the Supreme Court was concerned with whether or not a person could vary an undertaking which Mostyn J says can now be framed as an order. The Court said they could in the narrow circumstances described there and mostly on ground similar to those set out in MCA 1973 s 31 (not a section considered by Mostyn J).


MCA 1973 s 31 is critical to all this. It deals with variation of orders (ie not undertakings). So what orders can be varied? MCA 1973 31(2) – which I set out in full (other than pension orders) – defines which orders precisely can be varied:


(2) This section applies to the following orders, that is to say –

(a)any order for maintenance pending suit and any interim order for maintenance;

(b)any periodical payments order;

(c)any secured periodical payments order;

(d)any order made by virtue of section 23(3)(c) or 27(7)(b) above (provision for payment of a lump sum by instalments);

(dd) [pension orders];

(e)any order for a settlement of property under section 24(1)(b) or for a variation of settlement under section 24(1)(c) or (d) above, being an order made on or after the grant of a decree of judicial separation;

(f)any order made under section 24A(1) above for the sale of property.

(g) [pension sharing orders].


With the greatest respect to Mostyn J it is not clear to me which of these provisions would have enabled Mrs Birch to seek to vary an order made under his scheme; but from which the Supreme Court said she could seek release as an undertaking – and, probably, by seeking replacement as another undertaking.


In Birch Lord Wilson (with whom the majority in the Supreme Court agreed) said of an undertaking in an order:


[5] All three lower courts adopted without demur the wife’s description of her application as being to “vary” her undertaking. But her description betrays a conceptual confusion which it is as well to dispel as this early stage. An undertaking is a solemn promise which a litigant volunteers to the court. A court has no power to impose any variation of the terms of a voluntary promise. A litigant who wishes to cease to be bound by her (or his) undertaking should apply for “release” from it (or “discharge” of it); and often she will accompany her application for release with an offer of a further undertaking in different terms. The court may decide to accept the further undertaking and, in the light of it, to grant the application for release….


The Supreme Court held that the wife in Birch could apply to the court to seek release from her undertaking. Whether she should be permitted to do so was a matter with which the lower court must deal. Her application was to be dealt with as equivalent to a MCA 1973 s 24A(1) variation of sale order within the terms of MCA 1973 s 31(7). Undertakings can be dealt with in this way. Different statutory provisions apply for orders.


High Court’s inherent jurisdiction: Wicks


Finally, what of the Family Court’s powers outside the powers granted by MCA 1973? In Wicks v Wicks [1998] 1 FLR 470, [1998] 3 WLR 277 (a case very much still live: see eg Cobb J’s judgment in WS v HS (appeal – sale of matrimonial home) [2018] EWFC 11 (28 February 2018) a couple of days ago) Ward LJ (at 490) explained the inherent jurisdiction of the High Court as:


In 1970 Sir Jack Jacob described the inherent jurisdiction of the court as ‘a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their powers’ ((1970) 23 Current Legal Problems 52). But in my judgment the inherent jurisdiction, valuable and beneficial though it is in its proper procedural sphere in relation to litigation, cannot be invoked by the court to arrogate to itself the power to give substantive relief, particularly so in an area so much controlled by statute.


In Wicks Ward LJ (with whom Peter Gibson LJ and Sir John Vinelott agreed) distinguished between procedural steps, where the court retained inherent jurisdiction, and ‘the power to give substantive relief’. In an area so set about by statutory powers creation of further substantive relief – such as to order discharge of mortgage repayments by order not in MCA 1973 – was not available to the courts: ‘The reality here is that the wife is seeking the enforcement of rights which MCA 1973 does not grant her…. She wants the money to buy a new home in her name, under her control, for her sole enjoyment to the exclusion of the husband. If the substantive law laid down by the MCA 1973 does not permit that to happen, then the court has no inherent jurisdiction to do that which Parliament has not granted it power to do….’


Thus Ward LJ: the court has no inherent power to do that which Parliament has not granted. A route via ‘an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873’ is not, it is submitted, an obvious grant of such a power by Parliament.


Draft orders in question


50 Procure release from mortgage and to indemnify

The [applicant]/[respondent] shall use [his]/[her] best endeavours to procure the release of the [respondent]/[applicant] from any liability under the mortgage [as in definition above] [by [insert date]]/[on or before completion of the transfer provided for by paragraph [insert] / [within [insert] days of the date of this order], and shall in any event indemnify the [applicant]/[respondent] against all such liability.


51 Payment of mortgage and outgoings on property

The [applicant]/[respondent] shall discharge as and when each payment becomes due, be solely responsible for and in any event indemnify the [respondent]/[applicant] against:

  1. all interest and capital repayments due in respect of the mortgage [as in definition above];
  2. all [reasonable] sums due in respect of council tax, utilities (including but not limited to gas, electricity, water and telephone accounts), and buildings and contents insurance premiums in respect of [the family home] and/or [insert property/ies as in definition above]; and
  3. etc

The payments shall start on [insert date] and shall end on the first to occur of:

  1. [insert date];
  2. the sale of the family home;
  • the [respondent’s]/[applicant’s] remarriage;
  1. the death of either party;
  2. the retirement of the [applicant]/[respondent]; or
  3. a court order discharging this obligation.

[as appropriate].


Financial relief disclosure: a miscellany of meanings

‘Self-help’ documents: when in law does the duty arise?


In ‘Just help yourself: self-help and disclosure in family proceedings’ in the Resolution Review Byron James describes the financial relief disclosure law, as he sees it, after Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814 as ‘still playing out’. He stresses that what he calls ‘the first proper post-Imerman guidance to professionals is in L v K (Freezing Orders: Principles and Safeguards) [2013] UKHC 1735 (Fam), [2014] Fam 35 (also called UL v BK) by Mostyn J. He concludes that ‘practitioners ought to adhere’ to what Mostyn J says (‘a decision from a puisne judge’); ‘or else ignore it at their peril’.


I am afraid I cannot agree. I dealt with this subject some time ago. ‘Illegality’ (as Mostyn J calls it) of a self-help party must be judged against the date or time at which the common law says disclosure takes place, a date which is not clear in civil proceedings. Thus if a party (like Mrs Livesey (Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813 or Mr Sharland (Sharland v Sharland [2015] UKSC 60, [2015] 2 FLR 1367)) has not disclosed material information where their case is settled, their non-disclosure may lead to an order or agreement between parties to be set aside. It may be fraud (as in Sharland). And, of course, on disclosure, L v K was not a ‘decision’. In issue was a freezing order for the wife and her lack of frankness in obtaining information about the husband. The Imerman comments of Mostyn J were not part of that decision.


Disclosure at common law


The common law gives no clear guidance as to when a duty of disclosure formally arises (save in ancillary relief cases as in Imerman (below)). Until the logically prior question – when does disclosure arise? – is answered, it is not possible to say whether a document has been ‘obtained illegally’ as, for example, explained by the Bar Council’s ‘Evidence obtained illegally in civil and family proceedings’ (last reviewed May 2016).


In Imerman the Court of Appeal said categorically: when Mrs Imerman received documents from Mr Imerman’s computer she was not entitled to them:


[140]   … The rules required him only to give full disclosure under Form E. Only thereafter might he be ordered to disclose further documents should the court think it necessary. Accordingly, since the rules specifically exclude any such obligation, it is not possible, it is simply unacceptable, to countenance Mrs Imerman taking the law into her own hands so as to obtain a premature advantage.


Well yes, this may be the rule in ancillary relief proceedings, where there are proceedings (ie someone has filed Form A). But what happens where parties are negotiating a settlement? Proceedings, if a case is to be settled, will not be in prospect.


Duty of disclosure: but when, according to the law?…


Imerman is a judgment of the highest authority (Lord Neuberger MR, Munby and Elias LJJ). But the ‘law’ on disclosure is not clear. At what stage does a duty of disclosure arise at common law?


  • Despite what Imerman says, there is a duty of disclosure when parties are engaged in settlement negotiations (or mediation), if an agreement is reached and a consent order is submitted to the court? Suppose then a party (A) finds information (like brother A below) which shows facts on which a settlement was made may be false (like Mrs Sharland). Must they be ignored by A’s solicitor and a fraud be permitted because the solicitor may not (per L v K [56](3), set out below) look at the documents? That is not the law, as I shall explain.


  • Imerman: the duty to disclose, which subsisted during settlement negotiations, is suspended between settlement attempts until after the process of inquiry is carried out after the first directions appointment. At least, this seems to be the logic of the position in Imerman.


  • And what of B’s private documents which should have been disclosed prior to the order (consent or contested)? These may be the stuff of a set aside application. This is precisely the material of which Lifely was made; but on L v K principles they should have been ignored, or at least not read and advised upon by A’s lawyers.


In both (1) and (3) above – perhaps even in (2) – where a lawyer who refuses to read documents tempts a negligence claim (as explained in conclusion). This stark assertion arises if application – based on any of those documents – should have been made to set aside the agreement (in (1)) and the order (in (3)).


Lifely and documents ‘to be disclosed’


To understand the status and admissibility of unlawfully obtained documents, it is necessary first to go to Lifely v Lifely [2008] EWCA Civ 904 (also Court of Appeal, considered in passing in Imerman at [176]). Lifely concerned two sons (A and B) of a farmer who, during his lifetime, had agreed distribution of milk quota shares. After the father’s death they failed to agree what they had agreed with their father, and went to the Chancery Division for an answer. The chancery judge agreed with B. A year later A found a diary (a personal diary: how private is that?) belonging to B. In it he found notes by B which recorded what he, A, had originally said to the judge was agreed. He showed the diary to his solicitors, who advised him to appeal.


The court gave him permission out of time and permitted the diary to be produced (Ladd v Marshall [1954] 1 WLR 1489). The appeal was allowed, the earlier order was set aside and the case remitted for rehearing with the diary in evidence before the court below. But if Imerman ‘principles’ (as defined by Mostyn J) had been followed, the brother’s diary could not have been read by Burges Salmon (A’s solicitors) and an appeal could not have got off the ground. Justice would have been denied.


In Vernon v Bosley (No 2) [1999] QB 18 the defendant’s leading counsel (A) received form an undisclosed source, and read, confidential documents (medical reports: highly private) about Mr Vernon (B). These disclosed information which, said the Court of Appeal, should have been disclosed. It was relevant evidence which had become available between the High Court hearing and the appeal hearing. This is the common law, said Stuart Smith LJ. The principle is now confirmed by Civil Procedure Rules 1998 r 31.11.


In these cases the documents were private. They belonged to someone who had not authorised their being read. They were obtained and read unlawfully (in this sense) and in breach of B’s rights under European Convention 1950 Art 8. At [32] Ward LJ said in Lifely: ‘I am prepared to accept… that there is at least a good arguable claim for misuse of private information which is protected by Article 8 of the ECHR [ie all A’s in the above examples were in the wrong]. However, the matter does not end there’. Ward LJ explained how he conducted the Art 6 – Art 8 balancing exercise required of judges to decide issues of this type. He concluded, as he must if Art 6 rights are engaged, that these trump Art 8 (paras [33] to [39]).


Imerman principles’: date of duty of disclosure


In L v K Mostyn J set out what he called ‘Imerman principles’. These are his deductions from the case, not what is stated the Imerman case itself. These ‘principles’ are obiter. They are made without reference to such cases as Lifely and Vernon. And as cases like those confirm, a fair trial requires that the court has access to all relevant material, which mostly means documents (such as diaries and further relevant information about a party). Therefore parties to a case must tell each other what documents or other information they have (such as Mrs Livesey’s plans to remarry).


The full text of what Mostyn J says on this subject (at [56] of L v K) is in Byron James’s article at Review p 23. The main aspects of it are:


‘(1) … It is simply and categorically unlawful for [A] to breach her husband’s privacy by furtively copying his documents whether they exist in hard copy or electronically….’.

‘(3) If [A] supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to [B’s] (if he has one). [B’s] solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife’s claim, pursuant to [B’s] duty of full and frank disclosure.

‘(4) If [B] does not have a solicitor [A’s] solicitor must retain the documents, unread, and in sealed files, and must approach the court for directions.


So when does a duty of disclosure arise? This is the question which is central to all of this. Plainly before there is any final agreement – if a case settles – a duty to disclose arises. If parties settle before they issue proceedings there is a duty to disclose (as Mrs Livesey should have done) before any settlement. There will not be an Imerman Form E moment because there will not ever be a Form E if a case is settled.


In Imerman/L v K terms there is a pause between mediation and other attempts to settle. On this analysis a discovery no-man’s land develops. It continues – a strange silence between the party trenches – until such time as questionnaires are exchanged. This is not, I suspect, what the common law intends (though I accept that is what the Court of Appeal say in Arbili v Arbili [2015] EWCA Civ 542 and in Imerman).


Once the duty of disclosure has arisen then I doubt there will be many lawyers who would say that a client who – like brother A in Lifely – finds a private document or other material which should have been disclosed must give it back unread. In the case of (1) and (3) above – unlike Byron James – I would not follow L v K at all; and in a case where that Imerman period applies (between Form A and Forms E questionnaires) I would say L v K provides only obiter guidance.


I am sure my insurers would want me to look at the documents. My insurers will say that it can be assumed that, as a practising solicitor, I know – or I am deemed to know – what legal professional privilege and confidentiality are, even including a Cox v Railton document (ie excluded from privilege because covered by the ‘iniquity exemption’; which might apply here if fraud is involved; R v Cox and Railton (1884) 14 QBD 153); and that if privilege applies (as the Bar Council’s guidance says) then I must reflect as to whether I can continue to act.

US and its gun lobby


I had an exchange recently with a friend from US who had lamented President Trump’s proposal to arm teachers to control, as Trump sees it, the deaths of children killed in schools. She pointed out that teachers would leave their jobs if required to be armed. (I won’t discuss here the twisted logic of such an arm-teachers scheme: it is surely only comprehensible by a few of the more twisted of US intellects?)


Trump’s response was surely not that of a mature person? No one should have a gun, save for very good reason, in the first place. Guns should be banned; or at least their use should be heavily regulated (as they are in most countries which regard themselves as civilised).


My friend replied that US people would not accept that: ‘That’s never going to fly in the US. It’s in our Constitution. The key here will be which arms we have the right to bear; and under what conditions?’


So why not change the ‘constitution’ and teach US people that killing is wrong? ‘The means of killing should be taken away from people’ I suggested. Ah, ‘easier said than done, said my friend’. And yet, in 1865 the constitution was changed to deal with slavery….


This is all so basic. People in civilised countries stopped carrying swords and daggers more than two centuries ago; and yet in US most people – I believe – are entitled to carry guns. (I even find it odd that in eg France police and customs officers carry guns: that would never be allowed in England.) Guns provide a means far more lethal than swords to kill each other. You can kill at much further away with a fire-arm than with a dagger.


US claims to lead the free world; yet US people carry guns around to kill each other with in a way which to most of us is truly primitive. It gets worse. Success for some US persons – such as their President – is judged by how much money you can amass. Materialism is everything. Greed defines you. Yet it is said that it is easier for a camel to pass through the eye of a needle than for a rich man to get to heaven. In other societies art, music and intellectual achievement are measures of success, for many. US people, relative to their number, have a modest number of artists, composers, intellectuals, scientists and law reformers. The state of its religion is about where European societies were in the mid-1800s.


Compared to many other modern societies, US is a primitive country to be sure: governed by materialism and regulated by private gun-laws. And to ban or regulate guns is ‘Easier said than done’ said my friend. That was probably what many people said in (say) 1800 of slavery. In England slavery was said not to exist at common law (Somersett’s case) in 1775. Trade in slaves was abolished in 1807 and it was formally banned throughout the colonies in 1833. In US it was banned in 1865, though segregationist tendencies subsisted – still subsist, under Trump? – for a long time.


If the US can ban slavery in 1865, why can it not ban guns now; or at least severely regulate their use (as is the case with the rest of us)?


Legal aid and Convention rights in domestic violence committal proceedings


Non-molestation orders and conviction for breach


Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson [1978] UKHL 1, [1979] AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article


FLA 1996 s 42, as relevant, reads


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’ [(B)]) from molesting another person [(A)] who is associated with the respondent;

(b)provision prohibiting [B] from molesting a relevant child [(C)].

(2) The court may make a non-molestation order –

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by [A] with [B]; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or [C] even though no such application has been made.


Offence for breach of non-molestation order


Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:


42A Offence of breaching non-molestation order

(1)   A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….

(5) A person guilty of an offence under this section is liable –

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….


Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).


Conviction on a substratum of findings to a civil standard of proof


Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid.  B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.


If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest [2015] EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal) [2016] 1 FLR 773.


McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura [2013] EWHC 3633 (Fam), [2013] 2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan [2013] EWCA Civ 586, [2014] 1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:


[55]   The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.


The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:


[55] … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

(c)the burden of proof is at all times on the applicant; and

(d)the respondent cannot be compelled to give evidence.



The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak [2001] 1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:


[29] … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.


The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:


3 Everyone charged with a criminal offence has the following minimum rights –

(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…

(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;…


Engels v Netherlands: ‘legal assistance of his choosing’


Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:


[85] The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a “determination” of “civil rights”

[87] Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).


As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.


Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3


The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?


This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:


[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.


And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?


If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.


Legal aid and the non-molestation order


The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.


But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.


 I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.


Child contact, non-molestation and McKenzie Friends

Non-molestation and child arrangements orders



Re J (Children) [2018] EWCA Civ 115 (6 February 2018) raises at least the following issues:


  1. Hearing of cases of domestic violence and the period any non-molestation order;
  2. Case management and how long it takes a children case to come to trial;
  3. Litigants in person and their McKenzie friends (MFs);
  4. The fair trial of a parent’s case where he cannot obtain legal aid.


After nearly 20 years of marriage a couple separated in September 2014 when the father left their home. They had three children then aged around 16, 13 and 8. W obtained a not on notice non-molestation order in December 2014 (why she applied three months after the separation, the report does not say). This included that H should not communicate with W or the children; and it continued till 22 December 2016, though an earlier return date in January 2015 was fixed. H wanted contact with his children. He cross-applied for a child arrangements order and for his own non-molestation order. He alleged balancing abusive behaviour by W. A ‘finding of fact’ hearing was fixed before a judge on 2 July 2015.


At that hearing H had a McKenzie Friend (MF). But how much part could MF play in the proceedings? He was refused permission to address the court or to cross-examine W. It was agreed that as H was offered contact there would be no fact-finding exercise; though the injunction, with no contact by H and no findings still stood. The children remained resistant to contact. Eventually a final hearing was fixed for 12/13 July 2016 (sic).


The father’s appeal


It was the decision at that hearing against which H appealled to the Court of Appeal on the following grounds:


  • The non-molestation order was allowed to run without determination of facts.
  • The MF had been wrongly denied a right of audience.
  • No findings of fact had been made.
  • The full powers of the court had not been used eg where their guardian admitted they were suffering emotional harm.


The outcome was a Pyrrhic victory for the father. His appeals on (1) and (3) were allowed; but no order was made by the court. The objections expressed to NYAS by the children to contact made any fresh hearing on the contact application, said the court, ‘simply too late and contrary to the welfare interests of the [younger two] children’ (para [99]).


It will be striking in this post, that many of the legal principles applied are derived from a practice direction (eg FPR 2010 PD12J) and from ‘practice guidance’. Neither of these have the force of law in the way that, for example, a statute or the common law (judge-made law) have. It might have been possible for the father at first instance to have challenged the judge on the content of the McKenzie Friend practice guidance (considered below); but that is a discussion for another day.


‘Findings of fact’ hearings


Routinely family judges set down hearings for ‘findings of fact’. I have never understood quite what this means. It is the principal function of a judge in any case whatever the background that the court finds facts, applies any law to those facts and then, exercising any discretion vested in him or her, disposes of the case – ie makes an order. Having a ‘finding of fact’ hearing implies there is in some way a phased process, in which establishing facts is the first step. This is only rarely the case.


I can see that case management here might have demanded that the abuse issues between H and W needed to be resolved at one hearing. This would result in an order. A second hearing, probably before the special measure judge, might then involve further factual and welfare issues to be resolved for the boys. Any child arrangements order could then be made and the extent (if any) of the father’s contact resolved. Domestic abuse and contact might be separate issues; but each will call upon a court – as with all cases tried every day – to find facts on which a determination may be based.


Non-molestation order and its duration


The non-molestation order made for two years was not ever revisited. This was in breach of the then practice direction (re-enforced by Practice guidance 18 January 2017: Family Court – Duration of without notice orders): that without notice orders should have a return date of not more than 14 days from the first order (para 5(ii)).


I am not at all sure this is what the law (as distinct from a ‘practice guidance’) says. Family Law Act 1996 s 42, which enables a court to make a non-molestation order, says that an order can be ‘for a specified period or until further order’ (s 42(7)). For H in this case there is no doubt that the period should have been much shorter and the facts on which the original order was made should have been tested much sooner (as the Court of Appeal accepted).


Domestic violence: delay and case management


The courts had had what McFarlane LJ called a ‘wake-up call’ as to ‘the potential harm to children that may arise from domestic abuse within a family, whether or not the children are directly involved in any particular episode of such abuse (para [39]) Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334. Practice directions have followed.


The most recent practice direction, was an amended PD12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm (October 2017) by which ‘courts are required, at an early stage in proceedings, to identify whether there are issues of domestic abuse and, if so, apply the requirements of PD12J to their management of the case’ (para [40]). PD12J para 19 requires court to ensure that cases which may involve domestic abuse are resolved and emphasises the need for ‘the proceedings to be “conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties” (emphasis added by the judge)’ (para [45]).


McKenzie friends


The role of McKenzie friends are regulated by practice guidance Practice guidance: McKenzie friends (civil and family courts): 12 July 2010 [2010] 2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P). There is no clear law on what their role and rights of audience are. No rules or even a practice direction, still less primary legislation, explains their positon.


By contrast common law backed by European Convention 1950 Art 6(1) (right to a fair trial) – and, perhaps, Art 6(3) (to be explained another day) – requires that anyone coming to court should have a fair trial. This is backed by Convention jurisprudence which declares that Art 6(1) entitles parties to ‘equality of arms’; and this is echoed in the family proceedings overriding objective that requires that parties be ‘on an equal footing’ (FPR 2010 r 1.1(2)(c)).


The practice guidance provides a definition of what a McKenzie Friend is and what they may do. The case of Re J, said McFarlane LJ ([68]), did not provide an opportunity to set out guidance beyond what is in the 12 July 2010 practice guidance. So far as cross-examination by a McKenzie Friend is concerned, the court by implication was not prepared to consider this. The ‘stark’ choice remains (as set out in K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754): either the alleged abuser cross-examines; or the judge puts the questions for him or her (MFPA 1984 s 31G(6)).


On the McKenzie Friend ground the father’s appeal was not allowed; though his McKenzie Friend was permitted to address the Court of Appeal. However, acting as ‘counsel in a trial’ said the Court of Appeal was an ‘altogether different issue’ ([62]).


Fairness of an alleged abuser’s trial


This still leaves the question of the fairness of the way in which cases such as H’s are tried, where someone in his position does not have access to legal aid nor the means to pay for representation. This is for another day, with the current legal aid provisions and with the law – such as it is – on McKenzie Friends and Arts 6(1) and 6(3) fully in mind.


Listening to children and ‘disclosure’

Interviewing children: Cleveland and ABE guidance


In AS v TH (False Allegations of Abuse) [2016] EWHC 532 Fam, MacDonald J said of the term ‘disclosure’ cases where child abuse is suspected that the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmd 412: Cleveland Report) contains a variety of important guidance with respect to cases involving allegations of sexual abuse and children proceedings. Before setting out his thoughts on this the judge – a highly experienced children lawyer – noted, in passing:


[33] … despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them).


And now a prompt for this note is that last Friday (2 February 2018) Resolution (which represents a group of family lawyers, and assert expertise in children law) and NSPCC both put out publicity asking for replies for a survey on ‘receiving disclosures’:


We would like invite you to complete our survey on professionals’ experiences of listening to children and receiving disclosures of abuse and neglect. Our ambition is to develop a practical resource that will support professionals working with children to confidently deal with disclosures of abuse and to improve children’s experiences of the disclosure process.


Resolution backed this up with a tweet:


The @NSPCC is looking for input from professionals working with children and family courts to inform a new resource to help professionals deal with disclosures. The survey should take 15 minutes and all submissions are anonymous via https://buff.ly/2EsWt7d 


Neither organisation has responded to my concern at the mismatch between what they are sending out, and what was said – over 30 years ago – in the Cleveland Report. Both should be well aware of the report.


Yesterday (5 February 2018) Sarah Phillimore posted: http://childprotectionresource.online/mind-your-language-whats-the-problem-with-disclosure/ on what’s in a word, like ‘disclosure’.


Mr Justice MacDonald and the Cleveland Report


MacDonald J continued in relation the Cleveland Report and to how professionals can respond to worries about a child being abused:


[35] Where a child makes an allegation of abuse to a professional, the relevant guidance for professionals to whom allegations of abuse are reported makes clear the following principles with respect to the initial contact with the child.

[36] In the departmental advice What to do if you’re worried a child is being abused (HM Government, March 2015) (replacing previous guidance published in 2006) states that before referring to children’s services or the Police an attempt should be made to establish the basic facts. Within this context, the following is said at [28]:

“The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information”

And at [29]:

“If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”


And then to ABE Guidance and video recording of alleged victims:


[37] The statutory guidance Achieving Best Evidence in Criminal Proceedings (March 2011) makes clear at [2.4] that the need to consider a video recorded interview in respect of the allegations may not be immediately apparent to professionals involved prior to the police being informed. [Para 2.5 continues]:

“Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present.”

[38] The ABE Guidance goes on to state at [2.6] under the heading ‘Initial Contact with Victims and Witnesses’ that a person engaged in early discussion with an alleged victim or witness should, as far as possible, (a) listen, (b) not stop a free recall of events and (c) where it is necessary to ask questions, ask open-ended or specific closed questions rather than forced-choice, leading or multiple questions and ask no more questions than are necessary to take immediate action.


ABE Guidance


The subject of interviewing children takes the practitioner back to Chapter 12 of the Cleveland report, which is entitled ‘Listening to the Child’ and summarises the evidence of a number of the child psychiatrists who gave evidence to the inquiry. The purpose of the interview must be ‘to hear what the child has to say’ (§12.12) where the child is of sufficient ‘age and understanding’ (§12.10). The interviewer must use open questions (§§12.24; 12.34.4) and understand that there may be a variety of reasons why the child is speaking or is not willing to: the abuse has occurred; the child does not want to speak or is in denial; or the abuse has not occurred (§12.25). Interviewers must have an open mind (§12.34.3: which makes the term ‘disclosure’ such bad practice). Those conducting interviews must be trained (§12.34.2&11).


These recommendations are developed on the back of interviewing for court in criminal proceedings following Youth Justice and Criminal Evidence Act 1999 Pt 2 in ABE Guidance. The Guidance is clear: no assumptions as to anything that has happened – which had bedevilled the initial investigations by doctors in Cleveland – must be made by anyone interviewing a child. An open mind and open questions are essential.


EU withdrawal and family law

Notes on speech of Lady Sherlock in House of Lords


Extract from conclusion to speech of Lady Sherlock in House of Lords debate on EU withdrawal on 31 January 2017. The numbering is mine. Comments appear below each paragraph:


Procedure and European Court of Justice

1 What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.


The procedural point cannot be stressed too strongly. Each EU country keeps its own cultural roots in family law. No one tells the UK it must change its primitive adoption laws; nor dictates to any EU catholic country which may have different bases for dissolution of marriage. UK money distribution remains its own.


That said the primacy of children’s welfare in any decisions is one adopted by EU law and re-enforced by the European Court Neulinger and Shuruk v Switzerland Application No 41615/07 [2011] 1 FLR 122, ECtHR).


A bespoke arrangement

2 Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.


‘Slow and difficult’ is not an answer. We are here today with ‘exit day’ a matter of months away; so for the sake of the families and children concerned it must be dealt with by 2019. The opposing Brexit army abetted by MPs on both sides of the Commons, is advancing. Family lawyers cannot just say: ‘wait, we aren’t ready to fight’. We just have to work harder to prepare battle positions: ie a fresh Brussels IIA.


The ‘bespoke’ solution sounds a little like the second option put forward by family lawyers in reply to Brexit (October 2017). If nothing is ‘bespoken’, separating families and their children will fall off the famous Brexit cliff edge; and this is not for lack of warning. The problems families will suffer as outlined in the earlier part of the speech were predicted by the Supreme Court over a year ago in R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 at para [71].


The painful fact of the matter is that unless EU and the Tories agree to keep such instruments as Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) on hold families like the one in the earlier part of Lady Sherlock’s will fall into a Brexit void where few hold will be barred between competing jurisdictions.


The Ministry of Justice and practising lawyers must get their heads together with individual jurisdictions to work out what reciprocity can be agreed following EU withdrawal and to agree how this is to be enforced. For the sake of the families and their children concerned, surely those who support EU withdrawal can agree that the European Court of Justice continue to have jurisdiction in those few cases where a neutral arbiter is needed?

3 I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

4 I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.




The issues over children go must wider than anti-trafficking (crucial though this is). EU law is much more firm and clear – though still not always followed by UK law (as I explain ). UK is bound by eg Charter of Fundamental Rights of the European Union (2000/C 364/01), which the Government proposes to ditch. This gives children rights to express their views which still need clearer procedural expression in English and Welsh law. Outside EU there is a real risk that children’s rights will again suffer. The massive advances of Children Act 1989 twenty-five years later and without the impetus of EU law reform look tawdry in the area of children rights.


Without Brussels IIA children in care will find themselves caught in a jurisdictional cross-fire where parents leave UK, and children are in care in England and Wales (Brussels IIA Art 15: there are a number of recent reported decisions on this see eg Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge).


Agenda for EU withdrawal


If EU withdrawal is to go ahead


  • Lawyers and the Ministry of Justice must urgently engage with EU judges (through a representative body, or in each state)
  • Children law and children’s rights to be heard must be made more clear preferably by statute.


Without this families and children will suffer.