Bloomsbury Family Law Briefing: September Teaser

Top five cases

E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 (14 August 2019) – A mother urged to apply FPR 2010 Pt 18, back to the trial judge for a fresh hearing on the basis of new evidence which comes to light after a final order (and see MFPA 1984, s 31F(6)).

Moher v Moher [2019] EWCA Civ 1482 (21 August 2019):

  • The husband’s failure fairly to disclose his finances, did not impose on the financial relief judge a duty to evaluate undisclosed wealth.
  • Lump sum interest can run from prior to the date on which the lump sum is payable (MCA 1973, s 23(6)).
  • H should pay periodical payments (as well as a lump sum payment) till he took the necessary steps to obtain a Get under MCA 1973, s 10A.

Jofa Ltd & anor v Benherst Finance Ltd & anor [2019] EWCA Civ 899 (24 May 2019) – Where a disclosure order is made against a non-party (eg FPR 2010, r 21.2; Norwich Pharmacal order) the starting point is the non-party should have its costs.

Barker v Confiànce Ltd & ors [2019] EWHC 1401 (Ch) (5 June 2019), Morgan J – In narrowly appropriate circumstances orders for costs can be made against a litigation friend for children and against a child.

Scarle James Deceased (estate of) v Scarle Marjorie Deceased (estate of) [2019] EWHC 2224 (Ch) (13 August 2019) HHJ Philip Kramer – Law of Property Act 1925, s 184 does indeed say: where the order of deaths is unclear on intestacy, the older of joint tenants is deemed to die first.

Application to review findings of fact in children proceedings

What remedies does a party have in children proceedings where facts come to light which might have affected the outcome of earlier proceedings? The general rule is that a court seeks finality in its orders. Every judgment in family courts is intended to be final as between the parties. However in certain cases it may be necessary – to correct injustice or for the welfare of a child involved – to enable a party to have the earlier decision reviewed.

In E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 (14 August 2019) Peter Jackson LJ in the Court of Appeal considers with two issues arising from any need to review in children cases:

  • To what extent can a court – whether on appeal or by reference back to the trial judge – review earlier findings of fact made in children proceedings; and
  • Is this best done by a free-standing application under FPR 2010, Pt 18 to the judge who made the original decision; or on appeal, with application out of time and to adduce fresh evidence (as need be)?

In the course of considering these issues, the court in E reappraised the appropriateness of the test for admitting fresh evidence on an appeal in children cases (Ladd v Marshall [1954] 1 WLR 1489, (1954) FLR Rep 422). As an alternative to Ladd v Marshall, what factors should a judge should consider if application is made back to the original court for the judge to reconsider facts found in an earlier decision?

This article looks at factors which a court considers if application is sought for review (ie under MFPA 1984, s 31F(6)); and at whether, generally, a party should appeal against the original decision or apply to refer the fresh evidence back to the court which made that decision. What factors will the appellate court or the original court take into account where permission is made to admit fresh evidence?

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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